Losey v. State Ex Rel. Giblin

Early in this year the appellee filed a bill in chancery charging that property owned by two of appellants was being used by the others as a gambling house and importuning the court to halt further operation of the enterprise because it was a nuisance. Immediately afterward the relator served notice he would apply for an injunctive order, but evidently before the application was entertained he filed a motion to dismiss. The court denied the motion and simultaneously discharged the relator and substituted for him the State Attorney of the Eleventh Juricial Circuit and the County Solicitor of Dade County, instructing them to "proceed with the cause."

A more extensive chronicle of the steps to this point and a more detailed description of the pleadings may be found by examining our opinion in State ex rel. Giblin v. Sullivan,26 So.2d 509, not yet reported in Florida Reports. In that case the court discussed and determined the validity of a judgment for contempt entered against the relator, Giblin, because of the contents of his own affidavit appended to the motion to dismiss.

We are presently concerned with that part of the order denying dismissal where the court, sua sponte, dismissed the relator, but not the cause, and directed the matter to continue in the names of the prosecuting officers. As a preface, the chancellor found "it abundantly clear that the said relator [had] come into a court of equity with unclean hands, and [that] his bill of complaint, and his attempt to dismiss the same, [constituted] a base and utterly reprehensible attempt to use [the] Court for a most unconscionable purpose. To permit the Courts of this State," he continued, "to be so used would constitute an infinitely greater danger to the public welfare than the existence of a public nuisance."

The appellants then sought dismissal of the bill on the grounds that if its filing was but an attempt to exploit the court and if the hands of the relator were unclean, the subject matter ostensibly presented for adjudication could not be freed of the taint by the simple process of changing relators. This motion was denied; whereupon the appellants answered, and the court heard testimony on the question of the issuance of the injunction, eventually entering a permanent restraining order.

The first point to be decided is the propriety of the order substituting the prosecuting officers for the original relator and directing the successors to continue the proceedings. To determine it we must consult two statutes, Sections 64.11 and 64.13, Fla. Statutes, 1941, and F.S.A. The first of these provides that a suit of this kind may be maintained by the State Attorney, the County Solicitor, or a citizen; the second, that a bill once filed by a citizen may not be "dismissed except upon a sworn statement made by said citizen and submitted to the court and unless the court shall be satisfied that said cause shall be dismissed, the said bill shall not be dismissed but shall continue and the state attorney or county solicitor notified to proceed with said cause." Applied to the facts here presented, the bill lodged by Giblin could not have been dismissed without his submission to the court of a sworn statement, presumably giving valid reason for the action. Upon his doing this, dismissal would not have followed unless the court was satisfied from the representation that discontinuance was proper. If the court decided that it was not, then it was his duty to instruct the prosecutors to proceed with the cause.

The difficulty we encounter in approving what was done springs from the attitude of the judge toward the litigation as expressed by him in his order. He found that the relator's hands were unclean, which is but another way of saying that the suit was an attempt to use the court for selfish, ulterior purposes. He was at pains to point out how the remedy could be abused by employing it, for instance, "as a weapon of internecine warfare between rival gangs of gamblers; as a means by which the gamblers attacked might exert strong indirect pressure upon law enforcement officers to induce them to relax their vigilance as to some other gambling establishment in which the relator has a financial interest; or to accomplish various other sinister purposes exactly opposite to a bona fide desire to abate a public nuisance for the public welfare" — and so on.

Now, it is true that the chancellor was dealing with the matter objectively when he used the language we have just quoted, but a review of the entire record, including the order, leads inescapably to the view that he thought the original relator's motives were of the character and quality of those denounced by him. If they were, what better reason could have existed to dismiss the suit? Obviously a citizen may not bring such a suit under the statute and then dismiss it whimsically or capriciously without cause; by the same statute the court is empowered to direct a continuance only if there is no sound reason to dismiss. So if we assume that this suit was brought to suppress one "gang of gamblers" that a rival group might prosper, or if employed as a "weapon of internecine warfare between rival gangs of gamblers," was its insidious purpose thwarted simply because an injunction was ultimately secured by the successor-relators instead of the original one? We believe not. If the bill prayed for relief calculated to benefit one band of gamblers to the detriment of their competitors, the pleading was inherently bad, and the vice could not be cured by a substitution of relators. The relevancy of the doctrine of uncelean hands is not gauged by the personal character of a relator, but by his conduct with reference to the subject matter, the transaction, under scrutiny. Miller v. Berry,78 Fla. 98, 82 So. 764.

Accepting the chancellor's appraisal as correct, it is immediately patent that the suit should not have been brought and, having been brought, should therefore have been dismissed when he found it to be tainted by improper motive. After all, from a practical standpoint, no obstacle would thus have been cast in the path of Dade County's and the Eleventh Circuit's prosecutors. Either of them could have then instituted if he considered it advisable, or could have exercised his prerogative of refraining from doing so if convinced that such action on his part would result in eliminating one gaming place to the advantage of a competitor. It seems incongruous for the prosecuting officers to be required to urge the issuance of a permanent injunction based on a bill which the very chancellor trying the case had condemned.

We find it necessary to consider only one other question — namely, the one challenging exclusion by the chancellor of certain testimony proferred by appellants. The court had permitted the introduction, over objection, of evidence about the reputation of the place as a gambling "joint," but when appellants sought to establish by the mayor of the municipality (El Portal) and thirty-five other residents of the community from various walks of life that they had never heard of gambling being carried on there, the proffer was denied. No reason for the ruling appears in the record, and none could be given when counsel presenting the case orally before this court was questioned about it during the argument. We think this ruling was plainly erroneous.

For the reasons given, the decree is reversed and the cause remanded, with instructions to dismiss the bill of complaint.

Reversed.

TERRELL, BUFORD and ADAMS, JJ., concur.

CHAPMAN, C. J., dissents.