In the case of Lee, et al., v. City of Miami, 121 Fla. 93,163 So. 486, this Court construed and held valid Chapter 17257, Acts of 1935, saying:
"Chapter 17257 on its face does not clearly offend against organic law, nor do the coin-operating vending machines described in Section 2, the use of which is restrained, constitute lotteries per se. It may be that some of them or *Page 382 possibly all of them in their operation will become such, but we leave that question to be determined when a specific case arises.
To such holding I dissented, saying:
"There is no ambiguity in our constitutional provision prohibiting lotteries and we know of no rule of construction which will permit us to determine that the intent of the Constitution is that the section should apply to certain classes of lotteries and not to others. It may have been that the framers of the Constitution had in mind a particular kind of lottery when they adopted this provision. It occurs to me that the definition given by the Supreme Court of Michigan in the case of Price v. Elliott, supra, is a clear, concise and logical definition of `lottery' which should be applied in determining what is meant by this section of our Constitution, that is: `A lottery is a scheme by which a result is reached by some action or means taken in which result man's choice or will has no part, nor can human reason, sagacity, foresight or design enable him to know or determine such result until the same has been accomplished.' * * *
"We have repeatedly held that what everybody knows this Court is assumed to know. Therefore it follows that we are assumed to know that the machine described in paragraph (1) of Section 2 of the Act is a machine which constitutes a gambling device and the use of which for such purposes has infected the whole community and country. They are found in operation in many places in almost every community. They constitute an habitual and almost ever present lure to the gambling instinct of those members of the public who are least able to indulge such inclination. It is also a matter of general knowledge that such machines are referred to as one-armed bandits because they are so *Page 383 constructed that there is nowhere an even chance for the player as against the operator; that they constantly pay large weekly dividends to the operator and that in the operation thereof by the player there is involved no element either of judgment or of skill." * * *
"Having reached this conclusion, I think we should hold that the operation of the machines constructed and to be used in the manner provided for in paragraph numbered (1) of Section 2 of the statute would constitute lotteries, and that, therefore, the Act offends against Section 23, Article III, of the Constitution and is void."
Experience throughout the State during the past two years has abundantly justified what I said in that opinion.
It is now generally conceded that no more generally damning influence has been applied to the honesty, integrity and frugality of the boys and girls and men and women of this State than that which was foisted upon them by the provisions of Chapter 17257, supra. It is also generally conceded that to hold the operation of these devices to be merely a lottery is being charitable. But I must concur in the conclusion reached in the opinion prepared by Mr. Presiding Justice WHITFIELD because our Constitution in Section 22 of the Declaration of Rights, provides:
"The right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches shall not be violated, and no warrants issued, but upon probable cause, supported by oath or affirmation, particularly describing the place or places to be searched and the person or persons, and thing or things to be seized."
And Section 10 of Article I of the Constitution of the United States provides:
"No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin *Page 384 Money, emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; Pass any Bill of Attainder, expost facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."
Chapter 17257, Acts of 1935, defined the terms used therein, "operators" and "location operators." The provisions of the Act contemplated that an operator would lease the devices referred to in the legislative Act to a location operator and that both would be required to pay a license tax for the privilege of operating each machine. It is a matter of common knowledge, and, therefore, a fact which this Court may be assumed to know, that the "operators" of these coin operated devices leased the machines, under the provisions of the law above referred to, to "location operators" and that location operators entered into contracts with the "operators" for the possession and control of the machines for and during the tax period; that these were valuable contracts to the "location operators"; that the location operator did not own the machines and, therefore, if the machines should be confiscated at the end of the lease period it would mean no loss to the "location operator."
This factual condition requires us to differentiate the case at bar from such cases as that cited by the appellees, of Samuel v. McCurdy, Sheriff, 267 U.S. 188, and other like cases. The basis of the conclusion reached in those cases appears to be that the owners of the property involved had control of such property and, therefore, could have avoided a violation of the statute.
I frankly concede that "the police power is a governmental function and neither the State Legislature nor any inferior legislative body to which a portion of such power has been granted, can alienate, surrender or abridge the right to exercise *Page 385 such power by any grant, contract or delegation whatsoever." 12 C.J. 912; Jackson v. Ledwith, 26 Fla. 163, 7 So. 885.
I also know that it is a settled principle of law that the Legislature may authorize the seizure and confiscation of gambling devices, but, all provisions of the Constitution must be taken and read together. It is not a contract between the State and the slot machine owner which is involved in this case, but there is involved here the rights established by contract between the slot machine owner and the slot machine location operator, which contract was provided for and sanctioned by the legislative Act, Chapter 17257, Acts of 1935. Under the provisions of those contracts which are matters of general knowledge, the "location operator" acquired the right to use and operate the machines during the license period which ended with the end of the day of September 20th, 1937, and, although the operator had notice by legislative Act that it was purported to make it unlawful "To manufacture, own, store, keep, possess, sell, rent, lease, let on shares, lend or give away, transport or expose for sale or lease, or to offer to sell, rent, lease, let on shares, lend or give away" such machines as are here involved beginning with the 1st day of October, 1937, it is a false premise to assume that he, therefore, had time and opportunity to get the machines beyond the jurisdiction of the State of Florida before the law went into effect. He could do that only by violating his contract with the location operator and depriving the location operator of a valuable right which he was entitled to exercise under his contract until the operation of such machines became unlawful. If the Act required the operator to pursue this course then it required him to abrogate his contract in violation of the constitutional provision above referred to. *Page 386
So it is that the question presented is whether or not the provisions of the Act authorized an unreasonable seizure of personal property which Section 22 of our Declaration of Rights prohibits.
The effect of the Act is to say that every one of the machines described in the Act which operates to the end of the tax period authorized shall thereupon be subjected to confiscation and the owner thereof subjected to criminal prosecution because of ownership.
Although we concede that the machines involved possess all the evil attributes that have been charged to them, it is evident that a strict enforcement of the Act under consideration would constitute an unreasonable seizure of personal property and to that extent the Act contravenes the provisions of the Constitution and is invalid.