Opinion
Nos. 4612, 4661.
February 21, 1964. Rehearings Denied March 19, 1964.
Appeal from the Circuit Court for Sarasota County, Robert E. Willis, J.
John W. Boult, of Shackleford, Farrior, Stallings, Glos Evans, Tampa, for appellant.
William E. Robertson, of Robertson, Robertson Walker, Sarasota, for appellees.
The appellant, Central Theatres, Inc., brings this interlocutory appeal to review the action of the chancellor below in issuing a temporary restraining order without requiring appellees to post a bond. The appellees were plaintiffs in the proceedings below.
On November 13, 1963, the complaint was filed by the appellees against the appellant, charging, among other things, that the appellant owned and operated a certain business in the City of Sarasota known as the Ritz Theatre, and that on November 13, 1963, the defendant began showing a motion picture entitled "Blood Feast." The complaint charged that in this picture there are scenes depicting sadistic and inhuman behavior, and plaintiffs set out briefly three such scenes from the movie as follows:
"(a) A fiend who pulls the heart out of a woman which shows the opening of the body with a knife and thereafter the removal of the heart, with the ensuing profuse bleeding that would naturally occur.
"(b) The pulling and cutting out of the tongue of a woman, with the ensuing profuse bleeding.
"(c) The dismemberment of a woman in a bathtub whereby her arms and legs are cut off, with the ensuing profuse bleeding."
The complaint then states that the motion picture presents to the public, as a public offering, sadism at its worst, to the detriment of the morals, welfare and well-being of the relators herein and the public as a whole in Sarasota County. The complaint further alleges that this motion picture tends to annoy the community, injure the health of the community, and that it is manifestly injurious to the morals and manners of the people, as well as their public health and safety. In conclusion, the complaint alleges that this movie is a public nuisance in accordance with Chapter 823, Fla. Stat., F.S.A., and subject to abatement under Chapter 64 of the statutes, F.S.A. Pursuant to this complaint, and without notice to the defendant, the court issued a temporary restraining order, without bond. In the restraining order the chancellor set the cause to be heard on November 15, 1963, at 9:00 A.M. A subpoena duces tecum has been issued at the request of the plaintiffs, and was served upon the resident manager of the defendant corporation, commanding him to bring into court the film of the picture, "Blood Feast."
At the hearing on November 15 the plaintiffs, through their attorney, stated that they were proceeding under Sec. 64.11, Fla. Stat., F.S.A. The attorney for the defendant requested the chancellor to set an adequate bond to indemnify the defendant for any harm done as a result of this particular injunction in the event that the defendant prevailed. The chancellor refused to do this, holding that he would simply continue the temporary restraining order until further hearing. At that time counsel for the defense objected as follows:
"If I may make this observation? The effect of what counsel for the Plaintiffs is contending under a section of the Florida statute, which we feel does not apply to this situation, is to set any private citizen up as a board of censorship by virtue of the order of the Court. We are only going to operate for 7 days. This order precludes the showing of this picture and is an invasion of the rights of these people."
The chancellor replied:
"I recognize that. I think as far as this particular show is concerned we will have to figure that this is in the event of a wrong decision and we will figure this is something that you are sacrificing by virtue of this case coming up in Court.
"Rather than enter a final injunction now and thereby establish a precedent, I think we should say this is the appropriate remedy and the appropriate way of disposing of a question of this kind."
It might also be noted that an affidavit has been filed in this court by the assistant secretary of the defendant corporation. There is no evidence that it was properly submitted in the lower court, yet it nevertheless states various matters of interest which we note in passing. Said affidavit would show that "Blood Feast" is a motion picture which is distributed by Dominant Pictures of Charlotte, North Carolina, and that said distributor may reasonably expect $2,000.00 a week as percentage film rental. Damages to the defendant, if the injunction is granted without bond, may be considerably in excess of this amount. The affidavit further shows that this motion picture has been shown at various places throughout Florida, including Miami, Tampa, Jacksonville, Ocala and St. Augustine. We also take judicial notice of the fact that even as this opinion is being written, said motion picture is being shown at a local drive-in theatre. But even apart from this affidavit, it is readily seen that the defendant, if this restraining order is granted without bond, will suffer a large amount of damages. In addition to the restraining order, the film is tied up by the subpoena duces tecum.
In reviewing the applicable law involved we first wish to point out certain excerpts from Chapter 64, Fla. Stat., F.S.A. Sec. 64.11 reads as follows:
"Whenever any nuisance as defined in § 823.05 is kept, maintained or exists, the state's attorney, county solicitor, county prosecutor, or any citizen of the county through any attorney he may select, may maintain his action by complaint in the proper court in the name of the state upon the relation of such attorneys or citizen to enjoin said nuisance, the person, or persons conducting or maintaining the same and the owner or agent of the building or ground upon which said nuisance exists."
Sec. 64.12 states, in part:
"In such action the court, judge or court commissioner before whom the complaint may be brought may upon proper proof being made allow a temporary writ of injunction without bond. * * * At least three days notice in writing shall be given defendant or defendants of the time and place of application for said temporary injunction."
Also, Sec. 64.03 reads as follows:
"In all suits in equity where summary process by injunction or otherwise shall be prayed, and the complaint justifies such process, and affidavit shall be made of the truth of the statements of the complaint, and that the complainant is unable to give bond of indemnity or other security, the chancellor shall receive from both parties evidence of the truth or falsity of the statements of the complaint and of the accompanying affidavit, and if they shall appear to be true, shall grant such process without requiring such security."
The appellees also cite Chapter 823, Fla. Stat., F.S.A., and in particular, Sec. 823.05, which statute defines certain places as nuisances, but without mentioning motion pictures or theatres where they are shown, other than stating:
"Whoever shall erect, establish, continue, or maintain, own or lease any building, booth, tent or place which tends to annoy the community or injure the health of the community, or become manifestly injurious to the morals or manners of the people as described in § 823.01, or shall be frequented by the class of persons mentioned in § 856.02, or any house or place of prostitution, assignation, lewdness or place or building where games of chance are engaged in violation of law or any place where any law of the state is violated, shall be deemed guilty of maintaining a nuisance, and the building, erection, place, tent or booth and the furniture, fixtures and contents are declared a nuisance. All such places or persons shall be abated or enjoined as provided in §§ 64.11-64.15."
These were the statutes under which the appellees herein obtained the restraining order without bond. No showing was made in evidence that any of the complainants below were without facilities to give a bond, and it is again noted that no notice was given the defendant of the application for the restraining order.
Though we certainly do not endorse movies containing scenes as depicted above, it must nevertheless be kept in mind that we are not in a position at this stage in the proceedings to rule on the merits of the case. Our question is simply whether or not such a movie may be summarily enjoined without even the necessity of a bond. And in answering this question we must take into consideration various basic principles of law and justice.
The motion picture industry in the United States has become a tremendous force in the promotion of entertainment and education of our people — so much so in fact that the various States of this Union have enacted laws seeking to protect the public as well as to supervise the maintenance and control of the industry in order to limit objectionable effects. Among the laws which the various States have enacted is the sort concerned with the censorship of the various motion pictures shown. In Florida such law is found in Chapter 521 of our statutes, F.S.A., which has the general heading, "Exhibition of Motion Pictures." In Sec. 521.02 it is provided that it is unlawful for any person to display any motion picture that has not first been "reviewed and approved by the national board of review of motion pictures, inc., its appointees or successors, or the film estimate board of national organizations or licensed by the state department of education of the state of New York." In the event that such picture is shown without compliance with Sec. 521.02, it may be restrained by the state attorney, county solicitor or county prosecuting attorney in the name of the State upon the relation of such state attorney, county solicitor or county prosecuting attorney. Under Sec. 521.021 it is provided, among other things:
"In any action brought as provided in this section, no bond or undertaking shall be required of the state or the state attorney or county solicitor or county prosecuting attorney before the issuance of a restraining order provided for by subsection (2) of this section, * * *."
The appellant had the license provided for under this Chapter. It is noted that this Chapter makes no provision for any private citizen of the State of Florida to file a complaint against an exhibitor of a motion picture by reason of the fact that such exhibitor does not have the license described. Hence, we come back to Chapter 64 for the appellees' right to file a suit such as the present one. There is no attack made upon the bill of complaint as filed in the instant suit, thus we have only the question of whether or not the chancellor in his discretion was correct in denying the security petitioned for by the appellant. It is seen in Sec. 64.12, supra, that the chancellor does have a certain amount of discretion. However, in view of the fact that the appellant in the instant case would assuredly suffer damages in the event that the restraining order were ultimately dissolved, and in view of the chancellor's statement that "* * * [W]e will figure this is something that you are sacrificing by virtue of this case coming up in Court," it is evident to us that the chancellor must have misconstrued the nature of this suit and the potential damages that the appellant would suffer if ultimately the restraining order were dissolved. The appellant did not bring this suit — it was brought into court by the appellees.
In Dade Enterprises, Inc. v. Wometco Theatres, Inc., 1935, 119 Fla. 70, 160 So. 209, it is said:
"It is a rule of general application in injunction cases that an injunction should not be granted where there is substantial dispute as to the legal rights involved and the right of complainant is doubtful, or is not clear, or is questioned on every ground on which he puts it, not only by the answer of the defendant, but by the proofs in the cause. This is especially true in a case like the one now before us, where a decision on the merits of the present controversy would necessarily affect valuable rights of the principal parties to the basic contract, neither of which party is before the court, but whose contract and the interpretation that it should have are wholly determinative of whatever right complainant may be capable of asserting in the premises. (Citations)."
In practically all cases where a restraining order is granted, and particularly where granted without notice, a bond is required, although this is usually a matter for the discretion of the chancellor. In the case of Belk's Department Store, Miami, Inc. v. Scherman, Fla.App. 1960, 117 So.2d 845, the Third District Court of Appeal, through Judge Carroll, laid down certain ground rules as to the limits of this discretion:
"A party seeking and obtaining a restraining order or other form of injunction, unless he or she makes a sufficient showing of poverty or inability to make bond, must, as a condition of the effectiveness of such injunctive order, be required to file a bond, with good and sufficient surety, to be approved by the court or clerk of the court, payable to the opposing party or parties, in the principal amount fixed by the court, and conditioned as required by law. Sections 64.02, 64.03, Fla. Stat., F.S.A.; Dixie Music Co. v. Pike, 135 Fla. 671, 185 So. 441; Lewis v. Lewis, Fla. 1953, 66 So.2d 260; International Brotherhood of Teamsters, etc., v. Miami Retail Grocers, Fla. 1954, 76 So.2d 491. See 17 Fla.Jur., Injunctions, §§ 70, 71.
* * * * * *
"When a person's conduct is restrained, or his business or property handed over to a receiver, the protection which such bonds afford should not be lightly dispensed with, but should be zealously guarded and uniformly enforced by the courts. Such orders for injunction and receivership may have serious and far reaching effects on a person's liberty of action and his property or business. The party who initiates such drastic writs and processes should be made to place himself in a position of accountability, at least to the extent that the law specifies, to recompense his adversary for losses sustained, if it should be concluded ultimately that his action which brought it about was irregularly or improvidently invoked, or his cause without merit."
The above discussion is particularly in reference to Secs. 64.02 and 64.03, which sections are concerned with injunctions in general. Nevertheless, the language of Sec. 64.12, to wit, that the court "* * * may upon proper proof being made allow a temporary writ of injunction without bond * * *" is equally susceptible to the abovequoted discussion. In other words, it is usually within the discretion of the chancellor, in an action to abate a nuisance pursuant to Sec. 64.11, Fla. Stat., F.S.A., to require or not to require a bond. Therefore, the ultimate question is whether there has been an abuse of this discretion by the chancellor below.
Taking heed to the language in the Belk's case, and in view of the certain and extensive damages that the appellant will incur in the event that the restraining order is ultimately dissolved, and also taking into consideration the chancellor's apparent misapprehension as to the distinct possibility of such incurrence, we feel that the chancellor has abused his discretion in denying the appellant's petition for setting a proper bond.
Reversed.
WHITE, J., concurs specially.
SMITH, C.J., dissents with opinion.
The alleged scenes in the subject motion picture are undoubtedly shocking. The witnessing of such simulated horrors might well be avoided as a matter of good taste if for no other reason. I nevertheless agree that the exercise of injunctive power in this case exceeded the bounds of sound judicial discretion.
The plaintiffs obtained a temporary restraining order without notice and without bond. Two days thereafter the defendant's request for bond was denied and the restraint without bond was continued pendente lite. At that point in the swift proceedings the defendant had not filed an answer nor presented any motion other than the motion for bond, but the motion for bond was necessarily linked to the complaint. In this situation, according to my appraisal of the complaint, the motion for bond should have been granted, or in the alternative the restraining order should have been dissolved sua sponte and the case determined in due course on the question of whether or not public exhibition of the film constitutes an abatable nuisance within the meaning of the statute, § 64.11, Fla. Stat., F.S.A.
Thus my view of the error stems basically from limitations of the complaint itself in that the facts alleged did not justify the avowed fear of great public harm in the event the defendant was not instantly restrained. The defendant was, of course, immediately prejudiced when the restraining order disrupted its schedule of shows. The following discussion assumes that this particular field is not preempted by Chapter 521, Fla. Stat., F.S.A., relating to exhibition of motion pictures, and Chapter 847, Fla. Stat., F.S.A., relating to criminal responsibility for display of indecent, immoral or sadistic material.
The plaintiffs proceeded in the name of the state under §§ 64.11 and 64.12, Fla. Stat., F.S.A., relating in part to abatement of public nuisances at the instance of private citizens, and I have indicated my conviction that their complaint did not allege a danger menacing enough to call for immediate removal and full investigation later. The statute does authorize dispensing with notice and bond in contemplation of emergencies, and it confers discretionary power to that end. This, however, is a legal discretion to be measured and tested by the factual content of the complaint minus conclusions of the pleader.
Here it may be arguable, contrarily, that the statute contemplates that before denying or ordering immediate restraint the chancellor may consider proofs outside the complaint — and that this presumptively was done here although the record on interlocutory appeal is unrevealing. In my opinion the portion of the statute referred to is merely an affirmation of the chancellor's right to have further verification of the facts already alleged rather than an authorization to go into unpleaded matters in pais. In any event it would be an inversion of logic to require an appellant, in the position of this defendant, to make and bring up a record of some undisclosed and perhaps non-existent portion of preliminary proceedings of which he had no knowledge.
F.S. § 64.12, F.S.A. "In such action the court [on presentation of complaint] * * * may upon proper proof being made allow a temporary writ * * *."
On principle, if such an order should be entered upon consideration of matters presented but not pleaded, the matters should be noted in the official case file in deference to the chancellor whose order, in the event of appeal, would be backed by an appropriate record of the factors on which it was based. It is not too much to expect that this service should be provided by the party who presumably influenced the decision in his favor; also the prevailing party may, on appeal by his adversary, cause the record to be supplemented if necessary to an adequate review of the case. It therefore is proper to assume that the complaint before us reflects the premises on which the action below was taken.
F.A.R. 3.6(d), 31 F.S.A.
The plaintiffs described several especially gruesome scenes of cruelty and bloodshed allegedly depicted in the protested film. Apparently these affirmative allegations were deemed sufficient to justify the initial and continued restraint of the defendant pending final adjudication of the case. Inasmuch as the complaint may be measured in part by what it does not allege, let us consider it briefly from that standpoint.
The complaint does not allege any misconduct of spectators during or after any showing of the film. It does not allege any incident or fact indicating that as a result of the show the safety or health of the community was threatened as by fire or physical violence or by contamination of air, food or water; nor does it allege any fact indicating that as a result of the show the peace and quiet of the community was disturbed as by excessive noise. It does not allege the depiction of voluptuous scenes with sexual intimacies repugnant to public policy; nor does it allege that children were invited or permitted to attend the show. In short, the complaint does not demonstrate by averments of ultimate fact that the defendant was conducting its business in a manner critically detrimental to the health, morals or property rights of the community. Cf. Mayflower Holding Co., Inc. v. Warrick, 1940, 143 Fla. 125, 196 So. 428; Federal Amusement Co. v. State ex rel. Tuppen, 1947, 159 Fla. 495, 32 So.2d 1; Bartlett v. Moats, 1935, 120 Fla. 61, 162 So. 477; 52 Am.Jur., Theatres, Etc., § 45.
Accordingly the hasty action against the defendant was without justification unless the described scenes should be deemed clearly a nuisance per se; but the plaintiffs did not present a case of nuisance per se. Cf. 39 Am.Jur., Nuisances, § 63; 66 C.J.S. Nuisances §§ 30, 125; Thebaut v. Canova, 1866, 11 Fla. 143. In the case authority just cited the Supreme Court of Florida said at page 168:
"* * * before an injunction will be granted `ex parte' and before the hearing on the merits, to restrain a nuisance, it must be shown to be a case of urgent necessity, or one in which irreparable mischief will be produced if the aid of the Court is denied. The object of an injunction before answer is to preserve all things in their then condition, not to determine any by anticipation, or to undo or restore anything. * * *
"If the thing sought to be restrained is in itself a nuisance, and it so appears from the facts set forth in the bill, the court will give its aid to stay irreparable mischief, and will grant a temporary injunction in the first place until the parties can have a hearing. * * * But where the thing sought to be restrained is not unavoidably and in itself noxious, but only something which may, according to circumstances, prove so, then the court will refuse to interfere until the matter has been tried. * * * [latter emphasis supplied]
"The authority of courts of equity, says Judge Story, to interfere by way of injunction in cases of private nuisance, is founded upon the ground of restraining irreparable mischief, or of preventing multiplicity of suits; and it is not every case which will furnish a right of action at law against a party for a nuisance, which will justify the interposition of courts of equity to redress the injury or remove the annoyance.
"On the other hand, where the injury is irreparable, or where loss of health, loss of trade, destruction of the means of subsistence, or permanent ruin to property may or will ensue from the wrongful act or erection, in every such case courts of equity will interfere by injunction, in furtherance of justice and the violated rights of the party."
The instant complaint, moreover, does not allege facts sufficient to justify immediate restraint on the ground of anticipatory nuisance. In 7 A.L.R. 749, 756, the text reads:
"There must be proof of imminent danger to justify an injunction against the threatened nuisance. * * *
"The complainant must establish the prospective nuisance with clearness and reasonable certainty; the danger apprehended must appear to be imminent, and in the natural course of events, clearly impending, and the injuries in their nature and character irreparable, and it is not sufficient to make out a doubtful or possible case of danger. * * *"
In Garnett v. The Jacksonville, St. Augustine and Halifax River Railway Co., 1884, 20 Fla. 889, 902, the court said:
"The general rule is that injunctions against threatened nuisances will not be granted except in extreme cases where the threatened use of property or the act sought to be restrained is clearly shown to be such as leaves no doubt of its injurious results, such results as are recognized to be substantial legal injuries. The bill must set forth such a state of facts as leaves no room for doubt upon the question of nuisance, for if there is any doubt upon that point the benefit will be given to the defendant. Mere allegations of conclusions or opinions as to the contemplated injuries are not sufficient. The precise manner in which he is to be injured must be stated." [emphasis supplied]
When does the portrayal of evil become a public nuisance? Is it determined by the peculiar character of the particular evil, or by the demonstrated ill effects of its showing, or by a combination of those factors? Are the objectionable features of a show bad enough to condemn it entirely?
Good and evil have been contrasted and dramatized since the dawn of history. Man's inhumanity to man has been the central theme of numerous novels, paintings, plays and operatic productions that have passed the censorship of public tolerance or approval. Some are considered classics. This does not argue against official checks on shows featuring material which tends to corrupt public morals, but it points up the not infrequent difficulty of ascertaining just what may be tolerated and what should be suppressed by law. Ordinarily this type of alleged nuisance does not call for abatement in advance of full hearing and final adjudication; and if it becomes a question of weighing doubtful harm to the public against manifest injury to the defendant, the nod should go to the defendant. Thebaut v. Canova, supra.
Reference has been made to the common acceptance of many works of literature and dramatic art which depict tragedy and perversity in various forms. These include "Dracula", "Beowulf", Poe's "Pit and the Pendulum", Goethe's "Faust" and its operatic counterparts; also Milton's "Paradise Lost", Voltaire's "Candide", Shakespeare's tragedies such as "Macbeth" and "Hamlet", and the more recent production "Psycho" by Alfred Hitchcock. Modern television and newspapers publish lurid accounts and photographs of torch suicides of Buddhist Monks on the streets of Saigon, mass executions of Cuban dissidents and atrocity murders of American soldiers in Korea. Scenes like these are transmitted willy nilly into millions of homes almost daily. Conventional motion pictures ordinarily do not play to such captive audiences.
Tastes vary with the individual and in the individual. A person who enjoys beauty and harmony may also find interest in shows reflecting the opposite. In Pfingst v. Senn, 1893, 15 Ky. Law Rep. 325, 23 S.W. 358, 360 the court noted the difficulty of drawing a true medium among varieties of taste where each citizen has certain rights. The fact that a show is distasteful and highly offensive, even to a proven majority of people, does not necessarily make it subject to suppression by law. The determinative question is whether or not the particular show in itself, or in its immediate or probable effects, is indeed a public nuisance.
For the reasons stated I concur in the conclusion reached in Judge Shannon's opinion. The initial restraining order without notice and bond was not justified by the complaint. The complaint, being insufficient as a predicate for that order, was likewise insufficient to support the order for temporary injunction which denied the defendant's motion for bond and extended the restraint pending outcome of final hearing. The case should be specially remanded for proceedings not inconsistent with the judgment of this court.
In dissenting I must briefly restate the procedural aspects of this case. Attached to the complaint was the verification of one of the relators, stating that the facts set forth in the complaint were true. Upon such a sworn complaint, the judge was empowered by Rule 3.19, Florida Rules of Civil Procedure, 31 F.S.A., to grant instanter without notice the restraining order effective until the hearing or until further order of the court. In the temporary restraining order thus issued, the cause was set for further hearing on the second day following entry of the order. The record of this hearing discloses no motion by the defendant, nor the taking of any testimony, nor further proceedings of any kind before the court — except the reporter's transcript of argument by counsel for the respective parties and citation of authorities to the court. From the said transcript, it appears that counsel for the defendant argued that the licensing of the subject motion picture under § 521.02, Florida Statutes, F.S.A., prohibited the relators from bringing this action. During the course of the argument, counsel for the defendant requested the court to fix an adequate bond. Thereupon, by consent of the parties, the court set the cause down for further hearing, set a date for the taking of testimony, and continued the temporary restraining order.
The cited rule provides, in part, as follows:
"In all cases of application for injunction, the judge * * *, before granting the same, shall be satisfied that sufficient notice of the application has been given to the party sought to be enjoined * * *, and no order for such injunction shall be granted without such notice, unless it is manifest to such judge, from the sworn allegations in the complaint or the affidavit of the plaintiff or other competent person, that the injury apprehended will be done if an immediately remedy is not afforded, whereupon he may grant instanter an order restraining the party complained of until the hearing or the further order of the court * * *."
It is upon the foregoing record that the defendant-appellant presents to this Court the sole question as to whether or not the trial court erred in granting and continuing the temporary restraining order without requiring the plaintiffs to furnish a bond. Emphasizing the absence of a motion by the defendant to dismiss the complaint or dissolve the temporary restraining order, and the absence of any action by the defendant to controvert the alleged facts, I cannot conclude that the record clearly shows that the Chancellor abused his discretion. In my opinion, the most efficacious remedy was that offered by the trial court and agreed to by the parties; that is, to hold a prompt hearing before the Chancellor where the matter could be fully explored and the facts developed. Appellant's efforts to short-circuit such procedure by the more difficult and time-consuming process of appeal should be rejected by this Court, and the order appealed should be affirmed. Such was the decision of the Supreme Court in Greater Miami Development Corp. v. Pender, 1940, 142 Fla. 390, 194 So. 867. This procedure would leave the granting and continuing of injunctions resting largely in the sound judicial discretion of our trial courts. Godwin v. Phifer, 1906, 51 Fla. 441, 41 So. 597; Thursby v. Stewart, 1931, 103 Fla. 990, 138 So. 742; Masser v. The London Operating Co., 1932, 106 Fla. 474, 145 So. 72, 79. It seems to me that this is the established practice in Florida. See Webb v. Gregory, Fla.App. 1958, 105 So.2d 183; International Brotherhood, etc. v. Miami Retail Grocers, Fla. 1954, 76 So.2d 491; and Strong v. Clay, Fla. 1950, 47 So.2d 822. Moreover, the statutes and rules contemplate this procedure. See §§ 64.13 and 64.05, Florida Statutes, F.S.A., and Rule 3.19, Florida Rules of Civil Procedure.
On the question of furnishing bond, § 823.05, Florida Statutes, F.S.A., permits the enjoining of places or persons maintaining a public nuisance; § 64.11, Florida Statutes, F.S.A., specifically permits any citizen of the county to maintain an action such as this in the name of the state upon the relation of such citizen; and § 64.12, Florida Statutes, F.S.A., empowers the court to enter a temporary restraining order without bond upon proper proof being made to the satisfaction of the court. The sworn complaint herein alleges facts which have not been controverted; these facts, if true, would bring the exhibition of this motion picture under the provisions of the foregoing statutes. On the record here, these facts must be presumed to be true. Thus, as stated in appellant's brief, the question before this Court is simply "whether private citizens may, in a proceeding [brought in the name of the state] to abate an alleged public nuisance, be accorded the drastic relief of a temporary restraining order without being required to furnish an injunction bond."
It is my opinion that the foregoing statutes answer this question in the affirmative. The appellant relies upon the decisions in Metropolitan Dade County v. Polk Pools, Inc., Fla.App. 1960, 124 So.2d 737; Belk's Department Store, Miami, Inc. v. Scherman, Fla.App. 1960, 117 So.2d 845; Merryman v. Southern Tours, Inc., 1935, 120 Fla. 440, 162 So. 897; Dixie Music Co. v. Pike, 1938, 135 Fla. 671, 185 So. 441; and Lewis v. Lewis, Fla. 1953, 66 So.2d 260. However, these cases did not involve the enjoining of alleged public nuisances under the provisions of §§ 64.11 and 64.12, Florida Statutes, F.S.A., and they are therefore not controlling.
Not only does the trial court have authority to issue an injunction without bond under the provisions of §§ 64.11 and 64.12, but § 64.021, Florida Statutes, F.S.A., provides that when an injunction is issued upon complaint of the state or any officer, agency or political subdivision thereof, the court may in its discretion, having due regard to the public interest, require or dispense with the requirements of a bond. In Sunshine State News Company v. State, Fla.App. 1960, 121 So.2d 705, the Third District Court of Appeal sustained the issuance of an injunction without bond upon the application of the state attorney. The court relied specifically upon the statutory authority, § 64.021, supra, and noted that the appellant had failed to demonstrate that the Chancellor's refusal to require a bond was an abuse of discretion. In providing for the abatement of public nuisances, the Legislature has conferred upon private citizens, such as the appellees here, the authority to institute an action to enjoin such nuisances and to act in the name of the state. In such a suit, the statutes, supra, permit the court to grant a temporary injunction without bond. In upholding the right of a private citizen to maintain such an action, the Supreme Court, in The Merry-Go-Round, Inc. v. State ex rel. Jones, 1939, 136 Fla. 278, 281, 186 So. 538, 539-540, stated:
"It would be a sad commentary on our system of jurisprudence to now hold that nuisances affecting the health, morals, welfare and manners of a community could not be suppressed at the instance of a private citizen when that very thing has been done under the common law for more than three hundred years and is approved by practically every State in the union. The State is a party to such proceedings, and they are recognized as being employed for a very wholesome purpose. They are conducted under different procedure from a criminal prosecution, are directed to the place rather than the perpetrator of the act, and are not conclusive as to individual guilt."
Although the Merry-Go-Round decision was limited to the right of a citizen to proceed in the name of the state and did not involve the propriety of granting a temporary injunction without bond, the rationale is applicable here. This conclusion is further fortified by the fact that the Supreme Court has held that §§ 64.11 and 64.12, supra, confer upon a private citizen the right to bring such a suit in the name of the state and that such a suit is in effect one instituted in behalf of the public and in which the public is the real complainant, to the same extent as though the suit were brought by the attorney general or public prosecutor. Pompano Horse Club, Inc. v. State ex rel. Bryan, 1927, 93 Fla. 415, 111 So. 801, 52 A.L.R. 51; Kathleen Citrus Land Co. v. City of Lakeland, 1936, 124 Fla. 659, 169 So. 356; and National Container Corp. v. State ex rel. Stockton, 1939, 138 Fla. 32, 189 So. 4, 122 A.L.R. 1000.
The sworn complaint in the case at bar alleged sufficient facts upon which the Chancellor could, in the exercise of his discretion, issue the restraining order without bond, and there is nothing in the record before us to show any abuse of that discretion. In Sax Enterprises, Inc. v. Hotel Employees Union Local No. 255, Fla. 1955, 80 So.2d 602, the Supreme Court reversed an order denying a temporary injunction where it found that the sworn complaint stated a cause of action and was not challenged by motion to dismiss, answer, or affidavit denying the facts relied upon. I find the procedural situation in the case at bar to be similar to and controlled by the rationale of that decision.
I must further note that the affidavit filed in this Court on behalf of the defendant-appellant was not filed in the trial court. The filing of the affidavit in this Court was contrary to Rule 4.2, subd. (d), Florida Appellate Rules, 31 F.S.A.; accordingly, I am of the view that said affidavit should have been either stricken or completely disregarded in arriving at a decision.
It is my view that, in order to reverse the Chancellor on the record before us, this Court must determine that it is plainly apparent that the complaint is without equity; this the appellant does not even contend, and only one of the majority so finds. Hall v. Horne, 1906, 52 Fla. 510, 42 So. 383; Builders Supply Co. v. Acton, 1908, 56 Fla. 756, 47 So. 822; Godwin v. Phifer, 1906, 51 Fla. 441, 41 So. 597; B.L.E. Realty Corp. v. Mary Williams Co., Inc., 1931, 101 Fla. 254, 134 So. 47. Even if it could be said that the injunction should not have issued without bond, this would not require reversal of the order granting the injunction; the Court should merely direct that a bond be given (e.g., International Brotherhood, etc. v. Miami Retail Grocers, Fla. 1954, 76 So.2d 491), unless it appears irrespective of the absence of a bond that the injunction should not have been granted (e.g., Fuller v. Cason, 1890, 26 Fla. 476, 7 So. 870).