Parry v. Crosby, Justice of the Peace

116 P.2d 411, 100 Utah 496, 1941 Utah LEXIS 58

• Court: Utah Supreme Court
• Decided: August 25, 1941
• Docket: No. 6225.
• Status: Published

Opinions

WOLFE, Justice.

Appeal from an order of the District Court of Kane County, denying a writ of prohibition against the defendants. The action grows out of the following facts:

Plaintiff, Whitney Parry, and his brother C. G. Parry, were co-partners operating a hotel in Kanab, Utah, known as “Parry Lodge.” In Juné, 1939, the lodge was being rented and used exclusively by a motion picture company. During that time signs were posted indicating that the lodge was closed to the public. Meals, room, bar, and janitorial services were furnished by the partnership. The four slot machines involved in this action were located in the bar room. The machines were of the common type operated by the pulling of a lever after inserting a coin of the required denomination.

On June 12, 1939, the sheriff, one of the defendants, filed an affidavit before the Justice of the Peace, defendant Crosby, swearing on information and belief that plaintiff had certain slot machines in the lodge which were being-operated contrary to law. This affidavit bore the title, “State of Utah v. Whitney Parry.” The Justice of the Peace then issued a writ of attachment commanding the sheriff to attach and keep the slot machines until disposed of by order of court. The sheriff seized and carried off the four devices on that date. Plaintiff denied that a copy of the writ or other instrument had been served upon him. After the seizure the Justice of the Peace issued an order directing plaintiff to appear and show cause why the machines should not be destroyed and the money therein (about $600) forfeited to the County. Before time for hearing in the Justice’s court on the order to show cause, this action for a writ of prohibition was commenced in the district court. After hearing, the writ was denied.

The only issue before this court is whether or not a writ of prohibition will lie to enjoin the Justice’s court from exercising jurisdiction over the slot machines seized by the sheriff in the manner hereinbefore described. This involves the construction of Sec. 103-25-1, R. S. U. 1933, and the procedure to be followed in forfeiting or destroying slot machines as gambling devices under that section. That statute reads:

“Every person who deals or carries on, opens or causes to be opened, or who conducts, either as owner or employee, whether for hire or not, any game of faro, monte, roulette, lansquenet, rouge et noir, rondo, or any game played with cards, dice or any other device, for money, checks, credit or any other representative of value is guilty of a felony, and it shall be the duty of all sheriffs, constables, police and other peace officers whenever it shall come to the knowledge of such officer that any person has in his possession any cards, tables, checks, balls, wheels, slot machines or gambling devices of any nature or kind whatsoever used or kept for the purpose of playing for money, or for tokens redeemable in money, at any of the games mentioned in this chapter, or that any cards, tables, checks, balls, wheels, slot machines or gambling devices used or kept for the purposes aforesaid may be found in any place, to seize and take such cards, tables, checks, balls, wheels, slot machines or other gambling devices, and convey the same before a magistrate of the county in which such devices shall be found; and it shall be the duty of such magistrate to inquire of such witnesses as he shall summon or as may appear before him in that behalf touching the nature of such gambling devices, and, if such magistrate shall determine that the same are used or kept for the purpose of being used at any game or games of chance described in this chapter, it shall be his duty to destroy the same.” (Italics added.)

The words of the statute pertinent to this case simply say that the officer shall seize the property whenever it comes to his knowledge that they are in the possession of any person, used or kept for gambling purposes. Nothing is said about a search warrant. Nothing is said about seizure in connection with the arrest of the owner or other person charged with gambling or operating the devices. Nothing is said which would allow an exception in the instant case merely because the lodge was being used exclusively by one group of people. The scope of the statute is two-fold; The first part makes it a crime to operate any of the games listed. The second part makes it the duty of peace officers to summarily seize gambling devices therein enumerated which are used or kept for gambling purposes and convey them before a magistrate who shall determine if they were used or kept for such purposes.

Statutes authorizing the summary seizure of such devices have been upheld in numerous decisions by courts in other jurisdictions. The case of Durant v. Bennett, D. C. 54 F. 2d 634, 638, involved an application to the Federal court to enjoin the state officials of South Carolina from enforcing a statute upon the ground it violated the Fourteenth Amendment to the Federal Constitution. The section of the statute cited by the court as being in issue, reads:

“Any vending or slot machine * * * prohibited by this Act shall be seized by any officer of the law and at once taken before any Magistrate of the County in which such machine is seized, who shall immediately examine same, and if he is satisfied that such vending or slot machine is in violation of this Act or any other law of this State, he shall direct that said machine be immediately destroyed.” Act S. C. May 9, 1931, 3/7 St. at Large, p. 369, § 3.

Commenting on this statute, the Federal court said:

“There is no doubt that the procedure outlined in section 3 is very drastic and summary. It provides that the machine may be taken before a magistrate who shall examine the same, and, if he comes to the conclusion that the machine is a gambling device, he may order it to be summarily destroyed. There is no provision for a hearing by the magistrate. There is no provision for the defendant to test the accuracy or wisdom of the magistrate’s decision. It is certainly a drastic remedy. But, when we take into consideration the evil which this statute seeks to remedy, we do not think that it violates the due process clause of the Fourteenth Amendment.”

The decision in Durant v. Bennett, supra, is adopted in toto by the Supreme Court of South Carolina in construing the same statute in State ex rel. Daniel v. Kizer, 164 S. C. 383, 162 S. E. 444, 81 A. L. R. 722. See also Stanley-Thompson Liquor Co. v. People, 63 Colo. 456, 168 P. 750.

Mullen & Co. v. Moseley, 13 Idaho 457, 90 P. 986, 987, 12 L. R. A., N. S. 394, 121 Am. St. Rep. 277, 13 Ann. Cas. 450, has been cited in many decisions dealing with this issue. That case involved an action in replevin against a sheriff to recover slot machines. The sheriff had proceeded under a statute which made it the duty of a judge whenever he “shall have knowledge or shall receive satisfactory information that there is any gambling * * * device” to issue a warrant directing the sheriff “to seize and bring before him such gambling * * * device, and cause the same to be publicly destroyed, by burning or otherwise.” In that case the court stated that while a man’s property may not be taken without due process of law, he may not invoke this guaranty when he seeks his day in court to dispute with officers of the law the right of possession of in-strumentalities directed against society. It then said:

“In such case there can be no doubt of the power of the Legislature to authorize a summary seizure and destruction of such instru-mentalities and devices.” (Italics added.)

One view adopted by courts upholding such summary seizures is that

“where gambling implements and apparatus are determined by the legislature to be dangerous and pernicious to the public welfare, they are not property which is subject to the protection of the law, but cease to be regarded as property within the meaning of the due process clause and are liable to seizure, forfeiture, and destruction.” 24 Am. Jur. 437.

In Board of Police Commissioners v. Wagner, 93 Md. 182, 48 A. 455, 457, 52 L. R. A. 775, 86 Am. St. Rep. 423, such seizures are approved as an effective and necessary medium of crime prevention, the court placing slot machines in a category with burglar’s tools, and saying:

“The duty to prevent crime carries with it in such a case the power to summarily seize the offending article.”

We do not adopt the cases above cited as authority for more- than the seizure in a summary manner. Certainly after being seized, the destruction or forfeiture of the devices can only be ordered by the magistrate whose duty it is to determine the purpose for which they were kept or used.

That slot machines of the type involved in this case are gambling devices has been held in numerous cases. Courts have so held even in the light of evidence that some machines were of a type capable of incidental nongambling functions. Guarnera v. Lee County, 285 Ill. App. 238, 1 N. E. 2d 98; Rogers v. Douglass, 181 Okl. 32, 72 P. 2d 823; Enloe v. Lawson, 146 Or. 621, 31 P. 2d 171; 18 Words and Phrases, Perm. Ed., 40, and cases there cited. From these cases we conclude that under our statute, a seizure would be lawful and the devices subject to confiscation on the determination by the magistrate that the devices are of such a type as to be inherently illegal, capable of no lawful use, and, therefore, must have been used or kept for gambling, or that the officer at the time of the seizure had knowledge that they were so used or kept.

The Colorado case of Stanley-Thompson Liquor Co. v. People, supra, involved a statute similar to ours. The gambling devices involved, some of which were stored in warehouses and others in the back room of the place of business, were held to be subject to destruction as much as though actually being used. The court said [63 Colo. 456, 168 P. 751]:

“It is well settled that things which are capable of no nse for lawful purposes — and it is established that these instruments are of 'that class — are not the subject of property. They cannot be recovered in replevin, nor will damages be given for their loss or injury. * * * If an instrument can have no lawful use, it must be presumed, in absence of evidence to the contrary, that an illegal use is intended. * * * Its very existence is an imminent danger to the social welfare * * *; and it may be seized under statutory authority, or even under general police regulations.”

Much of the above language is quoted with approval by the California court in People v. Kay, 38 Cal. App. 2d Supp. 759, 102 P. 2d 1110, in construing a statute somewhat different from that of Utah or Colorado. The California statute makes unlawful the possession of any machine,

“Upon the result of action of which money * * * is staked or hazarded, and which is operated * * * by placing or depositing therein any coins,” etc. Pen. Code Cal. § 330a.

The California court held that the operation of its statute is not to be restricted to those cases only in which slot machines are in actual use. The Utah statute applies to' machines which are “used or kept” for the purpose of play ing for money, etc. It was enacted for the purpose of suppressing devices used or kept for gambling. As we construe the statute, a determination by the court of whether or not they are devices of the type used or kept for gambling or are so used or kept is not necessary prior to seizure. However, to sustain the seizure and order the destruction of the devices, the magistrate must determine that the officer had prior knowledge of the possession of the devices, and that they were used or kept for gambling purposes, or that the devices were of such a type as to be inherently illegal, capable of no lawful use, and therefore must have been used or kept for gambling.

The procedure prescribed in Sec. 103-25-1, R. S. U. 1933, for confiscating gambling devices must not be confused with the procedure set out in Sec. 164, Chap. 43, Laws of Utah 1935, for seizing articles connected with the illegal sale or manufacture of alcoholic beverages, as was done in plaintiff’s brief in citing Utah Liquor Control Comm. v. Worras, 97 Utah 351, 93 P. 2d 455. The former provides for the summary seizure of gambling devices. Under the latter statute, seizure of alcoholic beverage implements requires an affidavit, search warrant, etc. The statutes are entirely different and the liquor control procedure is not to be deemed to affect the right of peace officers to seize gambling devices where they proceed on knowledge that they are kept or used for gambling. See concurring opinion of Mr. Justice Pratt in Utah Liquor Control Comm. v. Worras, supra.

A further contention of plaintiff in this matter is that the Justice’s court lacked jurisdiction over the property because there was no proceeding in rem. Admittedly the proceedings were not styled in rem, but the court was acting in rem and made no attempt to act in personam. By the order to show cause, plaintiff had due notice of the forfeiture hearing and of the fact that the res alone was being proceeded against. Enloe v. Lawson, supra. He, therefore, had full opportunity to appear before the justice’s court and defend his case on its merits; offer proof, if any, that the machines were not gambling devices within the meaning of the statute; or object to the form of the procedure being followed. That is the course of law to be followed to determine the nature of the seized property and to test its liability to forfeiture and destruction. Therein, and in an appeal from the Justice court’s ruling, lay plaintiff’s remedy. But before exhausting that course, he undertook this action to enjoin the Justice’s court proceedings. Under such circumstances a writ of prohibition could not properly issue. Hislop v. Rodgers, 54 Ariz. 101, 92 P. 2d 527; State ex rel. Carrigan v. Bowman, 40 Utah 91, 119 P. 1037.

The rule is well settled that equity will not interfere to prohibit or enjoin the enforcement of a criminal statute. Conte v. Roberts, 58 R. I. 353, 192 A. 814; Guarnera v. Lee County, supra; Rogers v. Douglass, supra; Jackie Cab Co. v. Chicago Park Dist., 366 Ill. 474, 9 N. E. 2d 213; City of Wink v. Griffith Amusement Co., 129 Tex. 40, 100 S. W. 2d 695; State v. Joynt, 341 Mo. 788, 110 S. W. 2d 737. In some cases that rule has been applied even though the constitutionality of the statute was in question. In Carotene Products Co. v. Wallace, D. C., 27 F. Supp. 110, 113, affirmed, 307 U. S. 612, 59 S. Ct. 1033, 83 L. Ed. 1495, the court said:

“To justify such interference there must be exceptional circumstances and a clear showing that an injunction is necessary in order to afford adequate protection of constitutional rights and the danger of irreparable loss must be both great and immediate; otherwise the accused must set up his defense in the criminal case, even when his defense involves the validity of the statute, with the violation of which he is charged.”

In the case before us plaintiff has not shown a state of facts which would require equitable relief.

By way of summary we conclude that plaintiff’s petition for a writ of prohibition was properly denied for the reasons that (1) the summary seizure of slot machines is authorized by Section 103-25-1, R. S. U. 1933; and (2) in any event, equity will not interfere, under circumstances such as these, to enjoin the enforcement of the criminal statute, there being an adequate remedy at law. State v. Joynt, supra.

Judgment affirmed. Costs to respondents.

McDonough, j., concurs.