State Ex Rel. Padgett v. Circuit Court of Eleventh Judicial Circuit in and for Dade County

• Decision Date: 03 May 1933
• Citation: 148 So. 522,110 Fla. 46
• Parties: STATE ex rel. PADGETT et al. v. CIRCUIT COURT OF ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY et al.
• Court: Florida Supreme Court

148 So. 522

110 Fla. 46

STATE ex rel. PADGETT et al. v. CIRCUIT COURT OF ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY et al.

Florida Supreme Court, Division B.

May 3, 1933

Proceeding by the State, on the relation of E. H. Padgett and others individually and as copartners under the name and style of the Magic City Novelty Company, and others, for a writ of prohibition to the Circuit Court of the Eleventh Judicial Circuit of the State of Florida in and for Dade County and Worth W. Trammell, a Judge thereof.

Rule nisi to show cause made absolute and perpetual.

COUNSEL Vincent C. Giblin, of Miami, for relators.

Vernon Hawthorne, State Attorney, and Bart A. Riley, both of Miami for respondents.

OPINION

BUFORD Justice.

The record in this case shows that certain slot machines were brought under subpoena duces tecum before the grand jury of Dade county; that the machines were operated by or in the presence of the grand jury and $2,731.26 was taken from them.

By order of the grand jury, the machines and the money were delivered to the clerk of the circuit court, with directions to the clerk of the circuit court to keep and retain the same in the registry of the circuit court, subject to the order of the said Court.

Padgett Mahone, Saxon, Bowen, and Walston claimed to be the owners of the machines and the money. They assigned the money to Giblin and Gordon. They were indicted for the crime of conducting a lottery by the use of such machines. The indictment was certified to the criminal court of record of Dade county where they were informed against by the county solicitor and were in the latter court convicted.

While it appears immaterial, the record shows that Messrs. Gibson and Gordon filed a petition praying an order of the circuit court for the delivery of the money to them as assignees of the owners. The petition was denied.

The state's attorney, Honorable Vernon Hawthorne, filed a petition in the circuit court amongst other things praying that the money be adjudged forfeited to the state, and that it be transferred to and deposited in the fine and forfeiture fund of Dade county. In this petition it was prayed that rule nisi be issued to Messrs. Giblin and Gordon to show cause why the said money should not be adjuged forfeited and be transferred to and deposited in the fine and forfeiture fund of Dade county. Messrs. Giblin and Gordon appeared and demurred to the petition. The demurrer was overruled, and order was made in accordance with the prayer of the petition.

The petitioners herein then filed suggestion for writ of prohibition to issue, whereupon rule nisi was issued to a judge of the circuit court of Dade county requiring him to show cause why he should not be prohibited by order of this court from exercising jurisdiction under such a petition.

The sole question presented here is whether or not the circuit court had jurisdiction to adjudge a forfeiture of the money delivered to the clerk of the circuit court by the grand jury in the sum of $2,731.26, which was alleged by the grand jury presentment to the circuit court to have been extracted from the above-mentioned slot machines.

The record does not show that there has ever been any adjudication of forfeiture of the money by a court of competent jurisdiction.

Circuit courts under section 11 of article 5 of the Constitution 'have exclusive original jurisdiction in all cases in equity, also in all cases at law, not cognizable by inferior courts, and in all cases involving the legality of any tax, assessment, or toll; of the action of ejectment and of all actions involving the titles or boundaries of real estate' etc.

The civil court of record of Dade county has exclusive original jurisdiction in all cases at law, including writs of attachment and garnishment where the matter in controversy does not exceed, exclusive of interest and costs, the sum or value of $5,000, etc. Section 1, chapter 11357, Acts 1925 Extra Session; section 5156, Comp. Gen. Laws. Nor is it clear that the matter in controversy here does not exceed $5,000. The matter in controversy is the sum of money in the sum of $2,731.26.

It is the contention of the respondent through the state's attorney that the circuit court, being in possession of the fund, is authorized to declare it forfeited and to order it transferred to the fine and forfeiture fund of the county under the provision of section 5512, Rev. Gen. St., section 7670, Comp. Gen. Laws.

The circuit court did not have jurisdiction of the offense for the purpose of a trial and conviction of which the defendants were convicted and concerning which the slot machines were originally seized as evidence. The particular statute under which the circuit judge purports to be acting in section 5512, Rev. Gen. St., section 7670, Comp. Gen. Laws, supra, and is as follows:

'All sums of money and every other valuable thing drawn and won as a prize, or as a share of a prize, in any lottery, and all property to be disposed of, or offered to be disposed of, by chance or device under any lawful pretext by any person being an inhabitant or resident within this State, and all sums of money or other thing of value received by such person by reason of his being the owner or holder of any ticket or share of a ticket in a lottery, or pretended lottery, or a share of right in any such schemes of chance or such device contrary to the provisions of this article, shall be forfeited, and may be recovered by civil proceedings, filed, or by an action for money had and received, to be brought by the Attorney-General or any State attorney, or other prosecuting officer, in the name and on behalf of the State; the same to be applied when collected as all other penal forfeitures are disposed of.'

Our view is that this section of the statutes clearly contemplated that there should be an adjudication of forfeiture in a court of competent jurisdiction. That it is the purpose of the statute to limit the power of the courts to declare forfeitures in cases to which the statute is applicable so that in such cases private property may not be taken without due process of law. The reason for such statute is obvious for the protection of individual rights. In this case for instance there is no record of any evidence taken before any court that the money found in the slot machines was put there in a gambling or lottery operation. Non constat, the money may have been put in the machines by the owners of the machines. It appears that the officers have assumed, what may be quite true, that the money was placed in the machines as the same were used in conducting a lottery, but, before private property is forfeited to the state, there must be evidence before a court of competent jurisdiction of the existence of the right of forfeiture. A person found with gambling devices in his possession may be convicted, and a part of the judgment of conviction may be the forfeiture of the gambling devices, but that is not this case. In this case the indictment charged certain defendants with using slot machines in the operation of a lottery. That indictment was returned in a circuit court which did not have jurisdiction to try the cause. The indictment was then transferred to the criminal court of record, and that court proceeded in an orderly manner to try the cause on information filed therein, and a conviction was had. But we find in the record no evidence of the judgment of forfeiture of this money along with that judgment of conviction.

Our construction of the statute is that there must be a judicial determination of the right of forfeiture in...