Valdez v. State Ex Rel. Farrior

• Decision Date: 27 February 1940
• Citation: 142 Fla. 123,194 So. 388
• Court: Florida Supreme Court
• Parties: VALDEZ et al. v. STATE et rel. FARRIOR, State Atty.

194 So. 388

142 Fla. 123

VALDEZ et al. v. STATE et rel. FARRIOR, State Atty.

Florida Supreme Court

February 27, 1940

En Banc.

Certiorari to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Suit by the State of Florida, on the relation of J. Rex Farrior, as State Attorney of the Thirteenth Judicial Circuit of the state of Florida, against Antonio Valdez and another to enjoin the operation of an alleged nuisance. To review an order denying a motion to dismiss the bill of complaint and an order striking portions of defendants' answers defendants bring certiorari.

Writ denied.

COUNSEL

Whitaker Brothers and Leroy Allen, all of Tampa, for appellants.

George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for relator.

OPINION

BUFORD Justice.

This case is before us on petition for certiorari to review an order of the Circuit Court denying motion to dismiss bill of complaint and also order of the Circuit Court striking portions of defendants' answers.

The amended bill of complaint seeks to enjoin the operation of an alleged nuisance under the provisions of Section 5639 R.G.S., Section 7832, C.G.L., which is as follows:

'Whoever shall erect, establish, continue, or maintain, own or lease any building, booth, tent or place which tends to annoy the community or injure the health of the community, or become manifestly injurious to the morals or manners of the people as described in section 7817, or shall be frequented by the class of persons mentioned in section 7655, or any house or place of prostitution, assignation, lewdness or place or building where games of chance are engaged in violation of law or any place where any law of the State of Florida is violated, shall be deemed guilty of a nuisance, and the building, erection, place, tent or booth and the furniture, fixtures and contents are also declared a nuisance, and all such persons, places, shall be abated and enjoined as provided in Article 19, Chapter X, Title III, Second Division of these Compiled General Laws.'

Section 7817, referred to in the above section, provides:

'All nuisances which tend to annoy the community or injure the health of the citizens in general, or to corrupt the public morals, shall be indictable and punishable by a fine not exceeding two hundred dollars, at the discretion of the court; and any nuisance which tends to the immediate annoyance of the citizens in general, or is manifestly injurious to the public health and safety, or tends greatly to corrupt the manners and morals of the people, may be removed and suppressed by the order of the justice of the peace of the district, founded upon the verdict of twelve householders of the same, who shall be summoned, sworn and impaneled for that purpose, which order shall be directed to and executed by any sheriff or constable of the county; and an indictment shall lie for the same.'

Section 7655 provides:

'Rogues and vagabonds, idle or dissolute persons who go about begging, common gamblers, persons who use juggling, or unlawful games or plays, common pipers and fiddlers, common drunkards, common night walkers, thieves, pilferers, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons who neglect their calling or employment, or are without reasonably continuous employment or regular income and who have not sufficient property to sustain them, and misspend what they earn without providing for themselves or the support of their families, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, idle and disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses or tippling shops, persons able to work but habitually living upon the earnings of their wives or minor children, and all able bodied male persons over the age of eighteen years who are without means of support and remain in idleness, shall be deemed vagrants, * * *.'

The amended bill of complaint alleges, inter alia:

'Second. That the defendants, Antonio Valdez and Chas. M. Valdez, keep and maintain in said Hillsborough County a nuisance, as defined in Section 7832, Compiled General Laws of Florida, 1927; that said nuisance consists of unlawfully operating, promoting and conducting lotteries for money, commonly known as 'Bolita', 'Cuba' and 'Bond' in that certain building known and described as 3607 Nebraska Avenue, commonly known as 'Charley's Restaurant' in the City of Tampa, County of Hillsborough and State of Florida, which building is located on Lot 11, Block 1, Francis Subdivision, as the same is recorded in the office of the Clerk of the Circuit Court of Hillsborough County, Florida, in Plat Book 4, page 45; that said real estate is owned by the defendants Antonio Valdez and Chas. M. Valdez.

'Third: That the defendants, Antonio Valdez and Chas. M. Valdez, on August 29, 1939, and at divers times and dates before and after said date, has at and in said premises maintained and continued in said place and premises a public gaming and gambling place and now so continues the same; that said premises are open to the public and divers numbers of persons frequent said premises for the purpose of gaming and gambling by purchase for money tickets in lotteries known as 'Bolita', 'Cuba' and 'Bond', in open and wilful disregard and violation of the laws of the State of Florida, and in contempt and disregard of and injury to the public morals, welfare and the decency of the community.'

The bill then continues describing the manner in which 'said lotteries are operated'.

We must hold that the allegations of the bill of complaint are sufficient to withstand the motion to dismiss because, as heretofore pointed out by quoting from the bill of complaint, the allegations are that 'said nuisance consists of unlawfully operating, promoting and conducting lotteries for money', and that the defendants 'at divers times and dates before and after said date has on and in said premises maintained and continued in such place and premises a public gaming and gambling place and now continues the same; that said premises are open to the public and divers numbers of persons frequent said premises for the purpose of gaming and gambling by purchase for money of tickets in lotteries known as', etc. (Italics supplied.)

It is hardly necessary for us to attempt to add anything to what was said by this court in the case of Pompano Horse Club et al. v. State, 93 Fla. 415, 111 So. 801, 810, 52 A.L.R. 51. In that case we said, inter alia:

'Where the state is concerned, the presence of actual injury is not an essential element of or prerequisite to chancery jurisdiction. Littleton v. Fritz, 65 Iowa 488, 22 N.W. 641, 54 Am.Rep. 19; State v. Marshall, 100 Miss. 626, 56 So. 792, Ann.Gas.1914A, 434, wherein it is said: 'When a business is a public nuisance, no matter how it gets to be such, whether inherently so or made so by law, the court of chancery has power to enjoin.' See, also, State v. Canty, 207 Mo. 439, 105 S.W. 1078, 15 L.R.A. (N.S.) 747, 123 Am.St.Rep. 393, 13 Ann.Cas. 787; Davis v. Auld, 96 Me. 559, 53 A. 118; Ex Parte Allison, 99 Tex. 455, 90 S.W. 870, 2 L.R.A. (N.S.) 1111, 122 Am.St.Rep. 653; 20 R.C.L. 474; Respass v. Com., 131 Ky. 807, 115 S.W. 1131, 21 L.R.A. (N.S.) 836; State v. Noyes, 30 N.H. 279; Jones v. State, 38 Okl. 218, 132 P. 319, 44 L.R.A. (N.S.) 161, Ann.Cas.1915C 1031; 20 R.C.L. 386; 14 R.C.L. 379, and cases cited in note 11; also idem page 380; State v. Ehrlick, 65 W.Va. 700, 64 S.E. 935, 23 L.R.A. (N.S.) 691; State v. Gilbert, 126 Minn. 95, 147 N.W. 953, 5 A.L.R. 1449; State v. Wagener, 77 Minn. 483, 80 N.W. 633 [778, 1134], 46 L.R.A. 442, 77 Am.St.Rep. 681.

'Even at the risk of some tedium, we quote finally from 5 Pomeroy's Equity Jurisprudence (2d Ed.) § 1893:

”As a public nuisance concerns the public generally, it is the duty of the government to take measures to abate or enjoin it. Hence it follows that the government can obtain an injunction restraining a public nuisance, without showing any property right in itself. The duty of protecting the property right of all its citizens is sufficient warranty in issuing the injunction. Therefore, wherever a public nuisance is shown, equity must enjoin it at the suit of the government. Every place where a public statute is openly, publicly, repeatedly, continuously, persistently and intentionally violated, is a public nuisance.'

'It does not lie within the legislative power to arbitrarily or capriciously declare any or every act a nuisance. State v. Saunders, 66 N.H. 39, 25 A. 588, 18 L.R.A. 646. 'It does not at all follow that every statute enacted ostensibly for the promotion of these ends (the preservation of the public health, safety and morals) is to be accepted as a legitimate exertion of the police powers of the state.' Mugler v. Kansas, supra. It rests, however, very largely within the province of the legislative body, to prescribe what shall constitute a nuisance, and in defining nuisances the Legislature may rightfully exercise a broad and extended discretion. Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; 20 R.C.L. 404, and cases cited. It may make that a nuisance which was not one at common law. United States v. Reisenweber (C.C.A.) 288 F. 520, 524. That being true, certainly the legislative body, in the rightful exercise of its power to preserve and protect the public morals and safety of its citizens, may lawfully denounce and prohibit gambling as a criminal offense, and at the same time declare to be public nuisances, and abatable by injunction places or premises which are resorted to or kept for the...