Weathers v. Williams

• Decision Date: 08 July 1938
• Citation: 182 So. 764,133 Fla. 367
• Parties: WEATHERS v. WILLIAMS, Sheriff.
• Court: Florida Supreme Court

182 So. 764

133 Fla. 367

WEATHERS v. WILLIAMS, Sheriff.

Florida Supreme Court

July 8, 1938

Rehearing Denied July 26, 1938.

Extraordinary Petition for Rehearing Denied Aug. 1, 1938.

Suit by J. F. Weathers against H. T. Williams, as Sheriff of Brevard County, Florida, for a temporary restraining order enjoining defendant from seizing or interfering with the operation of certain pin ball machines and other devices belonging to plaintiff. From an order denying the restraining order plaintiff appeals.

Affirmed. Appeal from Circuit Court, Brevard County; M B. Smith, judge.

COUNSEL

Walter A. Shelley and Grant & Luther, all of Daytona Beach, and H H. Wells and B. K. Roberts, both of Tallahassee, for appellant.

George Couper Gibbs, Atty. Gen., Tyrus A. Norwood, Asst. Atty. Gen and Lloyd F. Boyle, Asst. State Atty., of Sanford, for appellee.

OPINION

BUFORD Justice.

J. F. Weathers exhibited his Bill of Complaint in the Circuit Court of the Ninth Judicial Circuit in and for Brevard County in which he alleged:

'I. That the plaintiff is the owner of certain skill and amusement machines and marble and pin game machines known as 'Pace's Races,' 'Keeny's Track Time', 'Exhibits Races', 'El Toro Bumper', 'Chico Derby', 'Bobs' and 'Long Beach'; That the plaintiff is engaged in the business of installing said machines in stores in Brevard County, Florida.

'II. That said machines are duly licensed under the Laws of the State of Florida and are not gambling devices or 'Slot Machines', but are solely for amusement purposes.

'III. That said 'Pace's Races' Amusement Machines consist of a rectangular box with a glass top, in which is located a runway, and upon which runway are seven mechanical horses; on the side of said machines there are seven slides, each of which is numbered respectively from one to seven corresponding to the numbers on the mechanical horses. Such machines are operated in the following manner: The player selects the particular horse which he thinks will win, by depositing a coin in the slide bearing the number corresponding to the horse selected, which coin releases the operating mechanism so that the horses proceed at different paces towards the barrier at the end of the box. The player placing the coin in the slide bearing the number corresponding with the number on the winning horse wins the game. Said machines emit no money or slugs or any kind of article, nor do they pay off in any manner, the purpose of said machines being merely for the amusement of the players. No cash or other valuable prizes are awarded to the winner of any of the games. That such purpose of said machines is conspicuously displayed thereon. That said plaintiff does not allow, permit or suffer said machines to be played for gaming or gambling purposes, by any person or persons, for any valuable consideration; that said Plaintiff does not permit said machines to be played in any house, room, or building used for the purpose of gambling.

'IV. That said 'Keeny's Track Time' Amusement Machines consist of a console table with a glass top, on which is located three illuminated dials; on each of the dials appear the heads of seven horses. On one side of the glass top appears seven slides, each of which is numbered respectively from one to seven corresponding to the numbers on the faces of the horses on the illuminated dials. Such machines are operated in the following manner; the player selects the particular horse which he thinks will win, by depositing a coin in the slide bearing the number corresponding the horse selected on the illuminated dials, which coin releases the operating mechanism so that the dials containing the horses faces illuminate, each face consecutively on each dial until it comes to rest upon the face of the winning horse on each dial. The player placing the coin in the slide bearing the number corresponding with the number on the winning horse on the first dial wins the game; the player placing the coin in the slide bearing the number corresponding with the number on the winning horse on the second dial is considered to have selected the horse running second, or placing; the player placing the coin in the slide bearing the number corresponding with the number on the winning horse on the third dial is considered to have selected the horse running third, or showing. Said machines emit no money or slugs or any kind of article, nor do they pay off in any manner, the purpose of said machines being merely for the amusement of the players. No cash or other valuable prizes are awarded to the winners of any of the games. That such purpose of said machines is conspiciously displayed thereon. That said plaintiff does not allow, permit or suffer said machines to be played for gaming or gambling purposes, by any person or persons, for any valuable consideration; that said plaintiff does not permit said machines to be played in any house, room or building used for the purpose of gambling.

'V. That the remaining machines consisting of marble or pin game machines are operated in the following manner; They consist of a rectangular box with a glass top. A coin is deposited, which releases the operating mechanism so that small balls or marbles are made available for playing, which are propelled by a plunger; this plunger has a certain amount of resistance because it is spring controlled. The player permits the plunger to strike against the marble in some respects as a billiard cue would strike a ball. The object is to get the ball into holes or to strike a bumper with the highest numbers, so as to run up a high score, which score increases relative to the skill of the player. Hazards appear on the face of the game in the shape of little nails, springs, resilient rails, etc. Said marble or pin game machines emit no money or slugs, or any article of any kind, nor do they pay off in any manner, the purpose of such machines being to test the skill of the player. No cash or other valuable prizes are awarded to the winner of any such games; that such purpose of said machines is conspicuously displayed upon said machines; that said plaintiff does not allow, permit or suffer said machines to be played for gaming or gambling purposes by any person or persons for money or other valuable consideration; that said plaintiff does not permit said machines to be played in any house, room or building used for the purpose of gambling.'

It is then alleged that H. T. Williams is the duty elected, qualified, and acting Sheriff of Brevard County, Florida, and that he has deputized as certain deputy sheriffs, servants, agents and employees various individuals, the number and names being unknown to the plaintiff, who are authorized under the statutes to act in the name of the Sheriff and who are responsible to the Sheriff for their conduct in the sheriff's office, and that under the provisions of Section 4578, C.G.L. 1927, the Sheriff is responsible for the neglect and default of such deputies, servants and employees.

It is alleged that under the provisions of Chapter 18143, Acts of 1937, operation of machines commonly known as slot machines is made unlawful and the operation of such is prohibited.

The bill then pleads the provisions of Sec. 2 of Chapter 18143, supra, and of sections 3 and 4 of the same Act.

It alleges that section 5 of the Act provides for the destruction of the machines, apparatus and device under certain conditions.

It is then alleged:

'That, in and by section 7664 [7665], Compiled General Laws of Florida, 1927, it is provided as follows: 'The sheriff or any peace or police officer, when any of the implements, devices or apparatus commonly used for gambling purposes are found in any house, room, booth or other place, used for the purpose of gambling, shall seize the same and hold them subject to the discretion of the court, to be used as evidence, and afterwards the same shall be publicly destroyed in the presence of witnesses under order of the court to that effect.”

And it further alleged:

'That the Sheriff of Brevard County, Florida, through his deputies, has personally advised said plaintiff that he will, on the 15th day of June A. D. 1938, seize and confiscate the plaintiff's said machines, above described, as slot machines and gambling devices; that, therefore, unless said Sheriff and his deputies are instanter enjoined as hereinafter prayed, all of said plaintiff's, 'Pace's Races', 'Keeny's Track Time', 'Exhibits Races', 'El Toro Bumper', 'Chico Derby' 'Bobs' and 'Long Beach' machines above described, will be seized and confiscated by the Sheriff and/or his deputies, arbitrarily and without authority, on the ground that the said constitute slot machines and gambling devices; that, by reason of such action and threats on the part of said Sheriff and his deputies, said plaintiff will be deprived of property without due process of law, his duly licensed business destroyed, and the value of said machines and the proceeds therefrom will be forever lost to said plaintiff, whereby said plaintiff will suffer immediate and irreparable injury, loss and damages, before notice can be served and a hearing had thereon, in violation of the Constitution of the United States; that the injury apprehended will be done if an immediate remedy by way of a restraining order is not afforded.'

The bill prays for temporary restraining order, as follows:

'1. That this Honorable Court will forthwith grant to the Plaintiff a temporary restraining order herein enjoining and restraining said H. T. Williams, as Sheriff of Brevard County, Florida, and his successors in office, and their deputies, servants, assistants, agents and/or employees, from seizing, confiscating, molesting, taking, or in any manner interfering...