Sunshine State News Co. v. State, 60-40

Decision Date23 June 1960
Docket NumberNo. 60-40,60-40
Citation121 So.2d 705
PartiesSUNSHINE STATE NEWS COMPANY, a Florida corporation, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Truett & Watakins, Miami, for appellant.

Richard E. Gerstein, State Atty., Miami, and George Eadie Orr, Asst. State Atty., Miami, for appellee.

HORTON, Chief Judge.

Defendant by this interlocutory appeal seeks review of a temporary injunction and order denying application for bond. The State Attorney, on behalf of the State of Florida, filed a sworn complaint for declaratory decree and injunctive relief pursuant to § 847.01, Fla.Stat., as amended by Chapter 59-360, Acts of 1959, F.S.A. The state alleged that the appellant was engaged in the distribution and sale of magazines, etc., and had in its possession for the purpose of distribution and sale a certain publication which was obscene. The complaint further alleged that said magazine has United States second class mailing privileges. Attached to the complaint were affidavits in support of the allegations of the bill, as well as a copy of the magazine alleged to be obsence.

By its answer, the appellant denied violation of any statute and alleged that the statute involved did not provide for the granting of temporary relief. Upon the sworn bill of complaint, the attached affidavits and the magazine annexed as an exhibit to the bill, the chancellor enjoined the appellant from selling and distributing the subject magazine until further order of the court. Further, the chancellor denied appellant's application to require bond to be posted on behalf of the state as a condition of the issuance of the injunction.

Two questions are raised upon appeal--first, whether the chancellor erred in granting, under § 847.01, subd. (7), injunctive relief against a magazine holding United States second class mailing privileges prior to a declaration of obscenity; and second, whether the chancellor erred in denying appellant's application for bond as a condition for issuance of the temporary injunction.

Inherent in the first question raised by the appellant is the necessity to determine the effect upon § 847.01, subd. (7) 1 of the amendment to this section by Chapter 59-360, supra. The exception as provided in Chapter 59-360 is indicated as subdivision (c) of subsection (1) of § 847.01, and provides:

'This chapter shall not apply to any periodical or other printed matter having United States second class mailing privileges or any periodical or printed matter which may be legally sent through the United States mail until such time as such periodical or printed matter has been determined by a court of competent jurisdiction of this state to be obscene. The attorney general or any county prosecuting attorney, county solicitor, or states attorney of any county in which the sale or distribution of such periodical or printed matter occurs may institute a proceeding in an appropriate court for a declaratory judgment to determine whether such periodical or printed matter is, in fact, obscene. If it is determined in such proceeding that the periodical or printed matter is obscene, the court shall enter an appropriate order adjudicating said periodical or printed matter to be obscene, and thereafter any person who sells or distributes such periodical or printed matter shall be punished as provided by subsection (1); provided further any person who thereafter possesses such periodical or printed matter except for purposes of removing same out of circulation, shall be punished as provided in subsection (1)(b).'

Although we are aware that a statute should be construed in its entirety and as a whole (Realty Bond & Share Company v. Englar, 104 Fla. 329, 143 So. 152) the cardinal rule of statutory construction is that effect must be given to the intent of the legislature. 30 Fla.Jur., Statutes, § 73, and cases collected therein. Further, it is apparent to us that the legislature has made a material change in the statute in subdivision (c) of subsection (1) and from this, the legislature is presumed to have intended some objective. See Blount v. State, 102 Fla. 1100, 138 So. 2, 80 A.L.R. 830, and see also Fresno City High School Dist. v. DeCaristo, 33 Cal.App.2d 666, 92 P.2d 668. Throughout the act and amendatory act, the term 'section' is uniformly used in referring to other parts. The lone exception is in subdivision (c) of subsection (1) of the amendatory act in which the legislature used the following language: 'This chapter shall not apply * * *.' [Emphasis supplied.]

In 1 Sutherland, Statutory Construction, § 1931, that authority said:

'Since an amendment changes an existing statute, the general rule of statutory interpretation that the surrounding circumstances are to be...

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14 cases
  • Central Theatres, Inc. v. State ex rel. Braren
    • United States
    • Florida District Court of Appeals
    • February 21, 1964
    ...discretion, having due regard to the public interest, require or dispense with the requirements of a bond. In Sunshine State News Company v. State, Fla.App.1960, 121 So.2d 705, the Third District Court of Appeal sustained the issuance of an injunction without bond upon the application of th......
  • Gwin v. City of Tallahassee, 40078
    • United States
    • Florida Supreme Court
    • July 26, 1961
    ...alteration of the law. 30 Fla.Jur., Statutes, Section 91, Blount v. State, 102 Fla. 1100, 138 So. 2, 80 A.L.R. 830; Sunshine State News Co. v. State, Fla.App., 121 So.2d 705. A reading of the preamble to the amendatory statute makes it even more evident that in this case the legislature int......
  • Tanner v. Hartog
    • United States
    • Florida Supreme Court
    • May 13, 1993 to legislative intent should be resolved by an interpretation that best accords with the public interest. Sunshine State News Co. v. State, 121 So.2d 705, 708 (Fla. 3d DCA 1960). Rhoades, 554 So.2d at 1190-91. The court went on to hold that upon the expiration of either the ninety-day to......
  • Bauer v. Reese, E-172
    • United States
    • Florida District Court of Appeals
    • March 3, 1964
    ...and the subject statutes are not applicable. I, therefore, dissent. 1 30 Fla.Jur., Statutes §§ 79 and 97.2 Sunshine State News Co. v. State, 121 So.2d 705 (Fla.App.3d, 1960).3 Rogers v. Rogers, 152 So.2d 183 (Fla.App.1st, 1963).4 Conascenta v. Giordano, 143 So.2d 682 (Fla.App.3d, 1962).5 Pe......
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