The bill in equity was filed by the city of Birmingham to condemn as contraband certain slot machines alleged to be gambling devices seized by thе police department of the city under authority of its ordinances, and for the recovery of which the respondents bad begun separate actions at law. The bill alleges that they were kept or operated in violation of Ordinance No. 1104-C of the city of Birmingham. The particular description of the machines is somewhat conthsed, and does not correspond in soniс detail with that set out in the ordinance, but they are alleged to be machines operated as gambling devices. The ordinanсe in question prohibits the operation of "any automatic merchandise or commodity vending or dispensing machine so designеd or constructed that there shall be an element of chance," etc.
By state law it is m~tde a crinilnal offense to set up оr operate a wheel of fortune, slot maehine, or device of chance (section 4248), also any gift enterprise. Sеction 4247. Slot machines by which goods.are distributed in amounts or values determined by chance, and therefore gambling devices, arе prohibited by those statutes. Loiseau v. State,
The city had the undoubted right to enact similar ordinances. Mitchell v. City of Birmingham,
Section 2049, Cоde, enacts that cities may restrain and prohibit gaming, and by ordinance provide for the seizure of gambling instruments on ~ertain conditions. They are also given authority to enjoin and abate public nuisances injurious to health, morals, comfort, or welfare of the people. Sections 2055, 9298.
Places where devices are kept for the purpose of permitting persons to gamblе with them are declared by statute to be common nuisances, and may be abated in equity by the state. Section 4281, Code.
It is held by respectable authority that, if a gambling device is prohibited by statute, its operation may be considered a nuisance, and abated upon proper proceedings. 46 Corpus Juris, 707; Stanley-Thompson Liquor Co. v. People,
It is our opinion that the statutes and principles to which we have referred clearly intend to authorize a proceeding in equity to abate and eondethn as contraband machines whose nature is such that they were intended to be and are used as gambling devices or gift enterprises.
It may be conceded that the chief of police of the city could set up in defense of the detinue suit the matters allegеd in the bill, and thereby defeat a recovery. Stanley-Thompson Liquor Co. v. People, supra.
But the bill has independent equity to the eatent that it seeks to declare the gambling devices contraband and abate their use and to have them destroyed, as nuisances in vioiation of laws and ordinances enacted for the benefit of the morals of the people. With such independent equity, and in order that full relief may be decreed, it is quite appropriate to enjoin the action at law for the recovery of the property. Elliott v. Kyle,
The question of multifariousness is presented by the demurrer in this case. There are two individuals with no сonnection in respect to their transactions. Each is alleged to have operated machines alleged to be gambling devices. The machines have different names, are not alleged to have any similarity except that they are both gаmbling
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devices. Those of one were seized January 12, 1929, and of the other November 1, 1929. Each defendant has filed a separatе suit in detinue for the recovery of his alleged property. The injunction bonds and writs are each separate, as though there was no connection. In fact, no connection is alleged or shown, except that each is charged with operating at a different time and place a nuisance consisting of a machine which is a gambling device. They are both controllеd by the same principles of law. But the facts and transactions áre not the same, and have no connection with each оther. The machines of one may he shown by the proof to constitute a nuisance, and those of the other may not. Each is an entirely separate, distinct transaction between different parties, with no community of interest, except in the legal prinсiples which are applicable. Multifariousness “is described, generally, as the joinder of distinct and independent matters, thereby confounding them, or the uniting in one bill ■of several matters, perfectly distinct and unconnected, against one defendant, or the dеmand of several matters of a distinct and independent nature against several defendants in the same bill.” Truss v. Miller,
It wa~ said in ~ur case of Roanoke Guano Co. v. Saunders,
Our judgment is that the demurrer on this ground should be sustained, and decree is here rendered accordingly.
Reversed, rendered, and remanded.