Opinion
February 13, 1951.
Appeal from the Circuit Court for Broward County, C.E. Chillingworth, J.
Robert J. Davis and Ennis R. Shepherd, Fort Lauderdale, for appellant.
Thomas O. Berryhill, Fort Lauderdale, for appellee.
In a habeas corpus proceeding originating in the Circuit Court of Broward County, Florida, the trial court held valid Ordinance 156.09 of the City of Fort Lauderdale, which is viz.: "156.09 — Possession of Gambling Paraphernalia — It is unlawful for any person, firm or corporation to have in his or its possession, custody or control in the City of Fort Lauderdale any machine, device, paraphernalia, equipment or things commonly used in gambling or prohibited by the provisions of this Chapter."
The Charter power for the adoption of the Ordinance supra is Section 168.08, F.S.A., which provides:
"Powers as to houses of ill fame and gambling
"The city or town council may suppress and prohibit all houses of ill fame, lotteries and all games or devices in the nature of lotteries, gambling and gaming houses, and authorize the destruction of all instruments or devices used for lotteries or for the purpose of gaming."
A search warrant based upon an affidavit issued out of the Municipal Court of the City of Fort Lauderdale which authorized the search of the following described premises situated in said city, to-wit: "The said building known as a corrugated metal building located behind the Sun Hotel at 3340 Federal Highway in the City of Fort Lauderdale, Florida, and there to diligently search for gaming and gambling implements and appliances used for the purpose of gaming and gambling, contrary to and in violation of the law and ordinances of the City of Fort Lauderdale, Florida, and if any such gaming or gambling implements or appliances shall be found upon such search, that you bring all the same, and also the person or persons found operating said place and all persons found therein violating any gaming or gambling * * *" before the Judge of the Municipal Court of the City of Fort Lauderdale, Florida.
The return on the search warrant after execution reflects that the building described therein was duly searched on the 31st day of August, 1950, and described gaming implements and gambling paraphernalia were seized by the searching officers and the petitioner Walter Stanley ("Pete") Allen was arrested. He immediately applied by petition for writ of habeas corpus to the Circuit Court of Broward County, Florida, for a writ of habeas corpus, and, after the issues were made, a hearing was had on the single issue of whether or not Section 156.09 of Ordinance C-378, supra, was constitutional. The trial court held the ordinance valid and remanded the petitioner, but an appeal therefrom was authorized by an appropriate order as provided by statute.
On this appeal it is contended that the City of Fort Lauderdale for various reasons was without the necessary charter power to make the mere possession of the gaming implements and gambling paraphernalia as seized in the aforesaid search a crime or unlawful act. The trial court held to the contrary and reversible error on this appeal has not clearly been made to appear.
Affirmed.
TERRELL, ADAMS, HOBSON and ROBERTS, JJ., concur.
SEBRING, C.J., and THOMAS, J., agree to conclusion.