Pompano Horse Club, Inc. v. State Ex Rel. Bryan

Ellis, C. J.,

dissenting:

I am unable to agree with the majority of the Court in the conclusion reached in this case.

Lord Brcham said that the authority of the Bench would cease to have any weight at all if its decisions were unaccompanied with argument and explanation. If it is permissible to attempt an amplification of the thought of so high an authority, it might be added that the argument and explanation should rest upon maxims, rules and principles according to which we attempt to square our conduct and upon which our rights and duties are adjudicated.

My difficulty in the present case arises from an inability to assent to the postulates underlying the argument in the majority opinion.

First. As a general rule Courts of Chancery deal only with matters of property and the maintenance of civil rights. This is true because equity affords no remedy where there is a full and adequate remedy at law and the process of the law courts is regarded as fully adequate. In this casa no property right is involved and the analogy sought to be established between this case and a proceeding wherein a “nuisance” is sought to be abated is without authority in law or precedent. It rests upon a pyramid

*453

ing of suppositions, the original one being: that a nuisance may consist of immoral conduct or a violation of law. Upon that supposition is placed others, such as: betting on horse races is conduct denounced by the statute as criminal; that criminal conduct is a nuisance if the statute defines it as “gambling”; that the statute provides for enjoining one from “gambling” because it is a nuisance; that betting on a horse race is use of the race track, stand for spectators, paddocks, grounds and stables for illegal purposes.

A Court of Equity has no jurisdiction in matters criminal or immoral. It leaves the correction of these matters to the criminal courts. The remedy at law is presumed to be adequate, but if not so the relief must come from the lawmaking power and not from courts. People v. Condon, 102 Ill. App. 449 ; Cope v. Fair Association of Flora, 99 Ill. 489 ; People v. Prouty, 262 Ill. 218 , 104 N. E. Rep. 387, 51 L. R. A. (N. S.) 1140, Ann. Cas. 1915B, 155.

To assume such a jurisdiction or to restrain or relieve against proceedings for the punishment of offenses is to invade the domain of the courts of common law and administrative department of the Government. Philadelphia Co. v. Stimson, 223 U. S. 605 , 56 L. Ed. 570 , 32 Sup. Ct. Rep. 340; Fitts v. McGhee, 172 U. S. 516 , 43 L. Ed. 535 , 19 Sup. Ct. Rep. 269; Harkrader v. Wadley, 172 U. S. 148 , 43 L. Ed. 399 , 19 Sup. Ct. Rep. 119.

The farthest limit to which the courts have gone in sustaining proceedings in equity to restrain criminal conduct is where under statutes which declare an act criminal and make the repetition of it a public nuisance and vest the courts with power to restrain it after conviction. It is doubtful if such a statute would be valid in this State under the provisions of our Constitution. Statutes of that character relate to the violation of the laws regulating or

*454

prohibiting the liquor traffic. Eilenbecker v. District Court of Plymouth County, 134 U. S. 31 , 33 L. Ed. 801 , 10 Sup. Ct. Rep. 424; Mugler v. Kansas, 123 U. S. 623 , 31 L. Ed. 205 , 8 Sup. Ct. 273; State v. Ehrlick, 65 W. Va. 700 , 64 S. E. Rep. 935 , 23 L. R. A. (N. S.) 691.

Second. A Chancellor has no criminal jurisdiction. Something moré than the threatened commission of an' offense against the laws of the land is necessary to call into exercise the injunctive powers of the court. There must be'some interference actual or 'threatened with property rights of a pecuniary nature: In re Debs, 158 U. S. 564 , 39 L. Ed. 1092 , 15 Sup. Ct. Rep. 900.

The charge as made in the bill is of-a criminal nature.' The bill actually charges crime, but the crime charged does not touch the enjoyment of property. The majority opinion, however, assumes that property rights are involved, viz.: the right to the use of the race tracks, grounds and buildings; but that is the defendant’s property which his alleged conduct affects, if at all, and which is no injury to the rights of the public except as a moral or religious offense.

If there was material injury to others or the public in Such use of the property, if by any process of reasoning betting on a horse race can be said to bé use of property,, then equity through its power to abaté a nuisance has. jurisdiction to abate and suppress the race track and the adjudication of- guiltiness of a crime would be incidental; here it is primary.

Third. The bill in this ease, stripped of all unnecessary ■words, charges the defendant, Pompano Horse Club, with two crimes: One a misdemeanor, the other a felony denounced by our statutes and sanctioned by penalties prescribed. The two offenses are "gambling” and "main-

*455

taming a place for the purpose of gambling.” The latter is a felony.

Fourth. No statute exists in this State authorizing a Court of Chancery specifically to enjoin the commission of crimes. Sections 3223-3227 inclusive, Revised General Statutes, provide for the abatement of nuisances such as are defined in Section 5639, Revised General Statutes. That section in terms refers to Sections 5624-5497, Revised General Statutes. Neither of these sections refer to Section 5514, Revised General Statutes, defining the crime of betting “upon the result of any trial or contest of skill, speed or endurance of man or beast”, although Sections 3223 to 3227 and 5639, being Chapter 7367, Acts of 1917, were enacted six years after Chapter 6188 of 1911 was enacted and which was carried into the Revised General Statutes as Section 5514.

Fifth. Section 5497 defines the offense of vagrancy and by Section 5498 provides for its punishment as a crime. Section 5624 defines “nuisances” and provides a statutory proceeding at law for their removal and suppression. Section 5639 provides that the persons who maintain the places as described in Section 5624 or which are frequented by the persons described in Section 5497, or who maintain a place where “games of chance are engaged in in violation of law or any place where any law of the State of Floxdda is violated” shall be deemed “guilty of a nuisance” and the place be declared a nuisance and such ‘ persons, places, shall be abated and enjoined as provided ixx Article 19, Chapter 10, Title 3, Second Division of these Revised General Statutes ’ ’. That reference is. to Sections 3223-3227,

supra.

Sixth. A race track where horse races are held, the buildings, seats for spectators, judges’ stands, paddocks, stables and.other buildings and structures usually existing at such places do not constitute a nuisance or place for

*456

bidden by law to be maintained. Neither is horse racing a violation of law. When a bet or wager of money or other thing of value is made on a race such act constitutes a misdemeanor under Section 5514, which declares the act to be “gambling” and provides for its punishment.

Seventh. To construe the statute to authorize a Court of Equity to enjoin the commission of acts which are criminal and punishable as such upon the ground that the person so guilty is a “nuisance” is to ignore the meaning of the word “nuisance” and to misapply the law applicable to that subject. The theory upon which a Court of Equity abates a “nuisance” is that property is held under the implied obligation that the owner’s use of it shall not be injurious to the community; that the jurisdiction will be exercised sparingly, reluctantly and with great caution and only in extreme cases; that before granting equitable relief even in a proper case of “nuisance” before the complaining party resorts to a Court of law, the case must be clear, free from all substantial doubt as to the right to relief, and a strong mischievous case of pressing necessity must exist. See Boston Beer Co. v. Massachusetts, 97 U. S. 32 ; 24 L. Ed. 989 ; Mugler v. Kansas,

supra;

Charlisle v. Cooper, 21 N. J. Eq. 576, 29 Cyc. 1221; Flood v. Consumers Company, 105 Ill. App. 559 ; Nelson v. Milligan, 151 Ill. 462 , 38 N. E. Rep. 239; Simpson v. Justice, 8 Iredell’s Eq. (N. C.) 115.

Eight. The statutes invoked in this case deal only with the usual procedure for the abatement of a public nuisance which is an unlawful use of one’s own property in such way as to cause

material

annoyance, discomfort or hurt to the public. A public nuisance affects the rights enjoyed by citizens as part of the public; the right to which every citizen is entitled. A private nuisance is anything done to the hurt, annoyance or detriment of the lands, tenements

*457

or hereditaments of another and not' amounting to a trespass. 29 Cyc. 1152.

A public nuisance does not furnish grounds for an action either at law or equity by an individual who merely suffers an injury which is common to the general pubic. 29 Cyc. 1208; Lutterloh v. Ceder Keys, 15 Fla. 306 .

Where an adequate remedy may be had by resorting to a criminal prosecution an injunction will not be granted. Sparhawk v. Union Passenger Railway Co., 54 Pa. St. 401.

When the matter complained of is not clearly a nuisance against which the complainant is entitled to relief by abatement or injuction a Court of Equity will not interfere until the light and the existence of the nuisance have been established at law or by verdict of a jury. Shivery v. Streeper, 24 Fla. 103 , 3 South. Rep. 865 ; Bell v. Ohio and Pennsylvania Ry. Co., 25 Pa. St. 161, 64 Am. Dec. 687 .

Ninth. If the statute is construed to mean that a person may be enjoined by a Court of Equity from committing the crime of “gambling or “maintaining a place for the purpose of gambling” its validity would be in grave doubt as ah attempt to deprive a person charged with crime of the right of trial by jury. A statute should not be 'construed as to make it operate in violation of the Constitution but on the other hand when it is possible to do so it should become so as to preserve constitutional rights and not destroy them. Statutes should be construed so as to avoid grave doubts upon that score. Burr v. Florida East Coast R. Co., 77 Fla. 259 , 81 South. Rep. 464 ;

In re

Seven Barrels of Wine, 79 Fla. 1 , 83 South. Rep. 627 .

Tenth. Proceedings to abate a public “nuisance” may be maintained only in the name of the State, upon the relation of some officer, usually the Attorney General or some prosecuting officer. The reason for this rule and that which denies to any private citizen the right to maintain the action is to avoid a multiplicity of suits. If the

*458

majority opinion is correct then any citizen may bring an action for the same offense and the wise rale against multiplicity of suits and subjecting a person to annoying litigation unnecessarily is violated by the statute. On the other hand if the State as a party is precluded from maintaining m,ore than one action upon the same cause her Attorney General, County Solicitor, or State Attorney may be forestalled in the performance of their duty by some active and alert citizen who first preempts the State’s name and binds it to an adjudication upon the ease made by him. In such way both the criminal procedure and equitable relief may be frustrated and turned to no purpose because the judgment of the Court in the equitable proceeding is binding upon both parties and may on the one hand prevent a successful prosecution of the crime or on the other deprive the person charged of the right of jury trial.