State ex rel. City of Milwaukee v. Newman

71 N.W. 438, 96 Wis. 258, 1897 Wisc. LEXIS 300

• Court: Wisconsin Supreme Court
• Decided: May 21, 1897
• Status: Published

Opinion

PiNNEY, J.

1. The ordinance brought in question by this proceeding was framed for the discovery and suppression of gambling and gambling houses in the city of Milwaukee. It subjects the keeper of the gambling house, room, or place, and all persons who shall be there found, whether playing, gaming, or otherwise, to the penalties prescribed. The keeping of a common gambling house, as well as betting, wagering money or any thing of value, upon any game of cards, dice, or other device, are misdemeanors by the general statute. R. S. secs. 4529, 4530. And by secs. 4539 and 4840 search warrants for the detection and discovery of gambling and gaming devices, etc., are authorized to be issued, substantially under similar circumstances as provided by the ordinance. The proceeding against the petitioner, Newman, for keeping a gaming house was ywasi-criminal, although prosecuted in the name of' the city. Boscobel v. Bugbee, 41 Wis. 59; Platteville v. Bell, 43 Wis. 488. In Platteville v. McKernan, 54 Wis. 487, it was held that where a city or village ordinance prohibits that which is a crime or misdemeanor and punishable at common law or by statute, and prescribes a penalty for its violation by fine, with imprisonment on default of payment, as in the present case, the action to recover such penalty is quasi-criminal. Oshkosh v. Schwartz, 55 Wis. 487; State ex rel. Hamilton v. Municipal Court of Milwaukee, 89 Wis. 361. Although the action is gwsi-criminal, the right of action for the penalty is in the city, and the common council had a right, under the provisions of the charter, to enact a proper and suitable ordinance to restrain and prohibit gaming, and, as incident thereto, to provide for the issue of search warrants as a means of detection and suppression of violations of the ordinance. It seems to be the clear weight of authority that an act may be a penal offense under the laws of the state, and that further penalties, under proper legislative authority, may be imposed for its commission by municipal by-laws or ordinances, and the enforcement of the one would not preclude the enforcement of the other. Cooley, Const. Lim. 239, and cases cited. In Mayor v. Allaire, 14 Ala. 400, where a city ordinance imposed a fine for assault and battery committed within the city limits, and its validity was questioned, the court said: “ IJhe object of the power conferred by the charter, and the purpose of the ordinance itself, was not to punish for an offense against the criminal justice of the country, but to provide a mere police regulation for the enforcement of good order and quiet within the limits- of the corporation. So far as an offense has been committed against the public peace and morals, the corporate authorities have no power to inflict punishment. . . . The offense against the corporation and against the state are distinguishable and -wholly disconnected, and the prosecution, at the suit of each, proceeds upon a different hypothesis. The one contemplates the observance of the peace and good order of the city. The other has a more enlarged object in view,— the maintenance •of the peace and dignity of the state.” The great weight of authority is clearly in support of this view (1 Beach, Pub. Corp. § 510, and cases cited); though the author expresses the view that the cases opposed, while fewer in number, are sounder in principle. The ordinance in question is a police regulation for the city, passed under competent legislative authority, the better to subserve good morals and civil order in a large city, where the necessity of stringent police regulations is greater than in rural or less densely •settled communities.

2. It is objected that the ordinance violates the provision •of the constitution (art. I, sec. 11) which declares that “ the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Article IY of the constitution of the United States contains substantially the same provision. “ The things here forbidden are two — search and seizure. And not all searches nor all seizures are forbidden, •but only those that are unreasonable. Beasonable searches, therefore, may be allowed; and if the thing sought be found, it may be seized.” Per Miller, J., in Boyd v. U. S. 116 U. S. 641. The object of the constitutional provision was to abolish searches by general warrants, which authorized .searches in any place or for any thing. Searches founded •on affidavits which describe the thing to be searched for, the person and place to be searched, are not unreasonable, and are still permitted. In the same case, Mr. Justice Bead-ley said that “ laws which provide for the search and seizure of articles and things which it is unlawful for a person to have in his possession for the purpose of issue or disposition, such as counterfeit coin, lottery tickets, implements of gambling, etc., are not within the category of unreasonable searches and seizures. Comm. v. Dana, 2 Met. 329. Many other things of this character might be enumerated.” 116 U. S. 623, 621. The subject of what are reasonable searches and seizures was elaborately considered in Glennon v. Britton, 155 Ill. 233, in which it was held that a search warrant might be issued for the search and seizure of property deemed by law pernicious or dangerous to the public welfare, and the wrongful use of which is surreptitious, or so concealed that discovery cannot be had by ordinary process or diligence, where the officers are apprised that the law has been violated, and that searches and seizures of gambling implements are not within the inhibition of federal or state constitutions, which guarantee the citizen immunity against unreasonable searches and seizures. In this case Phillips, J., said: “ Experience has shown that while the property, materials, and paraphernalia may be seized, and the immoral resort or rendezvous thus, perhaps, broken up, the proprietors, or those. who engage in the immoral or nefarious business, are on the alert, and not unfrequently evade, if they do not altogether escape, the just penalties of the law. The object of the proceedings to be instituted under the statute is that the unlawful and immoral practice-be stopped, by destroying implements, apparatus, material, etc., with which it is carried on. The theory is, in respect to such property, that no one is longer the owner of it.”

Under the warrant issued pursuant to the ordinance under consideration, the particular house, building, room, or place to be searched is specified; and the persons implicated are described, in general, as persons who resort thereto for gambling, contrary to the provisions of the ordinance, and who are found present when play is in progress, whether engaged in play or not. ' The officer is “ to arrest all persons found playing for money, or other thing of value, and all persons who shall there be found, whether playing, gaming or otherwise, and also the keeper thereof.” For the arrest and detention of persons caught in actual violation of the ordinance, no warrant was necessary. Hawkins v. Lutton, 95 Wis. 492. The validity of statutes or ordinances such as the present, authorizing searches for and seizures of gambling implements, and the arrest of persons engaged in using, or present when used, is universally sustained as a proper and justifiable police measure for the detention, suppression, and punishment of gambling. People v. Hanraham., 75 Mich. 611; Hastings v. Haug, 85 Mich. 87; Comm. v. Dana, 2 Met. 329. This ordinance is similar in most of its provisions to the statute in Massachusetts in regard to entering common gaming houses, arresting parties engaged in violation of the law, and seizing gaming implements. Pub. St. Mass, ch. 99, sec. 10, and sec. 2, ch. 449, Laws of 1887, amendatory thereof. The case of Comm. v. Warren, 161 Mass. 281, as to the circumstances under which persons will be regarded as present at any game played for money, whether engaged in playing or not, if the implements of gaming are found in the place searched, as well as Comm. v. Adams, 160 Mass. 310, have material bearing upon the questions under consideration.

3. It was contended that the provision of the ordinance authorizing the arrest, by the officer executing the search warrant, in addition to those found playing for money, etc., •of “all persons who shall there be found, whether playing, gaming or otherwise,” was void. "While this question is not strictly material to the case before us, in respect to the keeper of the house, we think it proper to call attention to the fact that similar provisions in the Massachusetts statutes have been upheld in Comm. v. Smith, 166 Mass. 370, where it was said: “ It is unnecessary, under the statute, to allege the defendant’s knowledge of the presence of the implements or the character of the place. The statute means that people enter such places at their peril. . , . "When, according to common experience, a certain fact generally is accompanied by knowledge of the further elements necessary to complete what it is the object of the law to prevent, or even short of that, when it is very desirable that people should find out whether the further elements are there, actual knowledge being a matter difficult to prove, the law may stop at the preliminary fact, and, in the pursuit of its policy, may make the preliminary fact enough to constitute a crime. It may say that, as people generally do know when they are selling intoxicating liquors, they must discover at their peril whether what they sell will intoxicate. It may say that, if a man will have connection with a woman to whom he is not married, he must take the chance of her turning out to be married to some one else. Comm. v. Elwell, 2 Met. 190; Comm. v. Murphy, 165 Mass. 66. In like manner it may say that people are not likely to resort to a common gaming house without knowing it, and that they must take the risk of knowing the character of the place to which they resort, if the implements of gaming are actually present.” See Laws of Mass. 1895, ch. 419, secs. 2-4.

4. It would not, we think, be a defect fatal to the ordinance, if it should be held that the common council had no authority to enact the rule of evidence contained in sec. 5. This provision is an independent one, and, if held invalid, the offense could well be prosecuted, and a conviction be had, under the common-law rules of evidence. This question relates only to the trial, and we give no further opinion in respect to it.

5. The ordinance, as a police measure, provides for a single proceeding, commencing with the issuing of the search warrant, and upon the proper execution of which the keeper and inmates found in the gambling house, building, room, or place may be arrested, and, upon sufficient return made, complaints may be filed against them, which “ shall be considered a part of the action or proceeding,” and adjournments of which may be had, and upon which a trial and conviction may take place; the defendants in the meantime to “be detained in custody of the officer, or admitted to bail, as in other actions for violation of the ordinances of the city.” After the conviction of the person arrested as the keeper of the gambling house, “ the court in which the said conviction is had shall immediately proceed, upon the return of the officer making the arrest, and such schedule [as may be to said return attached], and amy answer said keeper may make thereto, to hear, try and determine whether or not the devices,” etc., “'seized by the officer and described in his return,” or any part of them, are devices, schemes, etc., “ adapted, suitable, devised or designed for gambling purposes,” and whether they, or any part thereof, were taken from the gambling house, etc., where the keeper was found; and, if these matters be found in the affirmative, the court is to make an order for their destruction, and they are to be destroyed accordingly.

6. The return of the officer upon the warrant is vague and indefinite. It does not appear from it that Newman, the petitioner, arrested as the keeper of the gaming house searched, or those arrested as inmates, were either of them found or arrested in the building, room, or place authorized by the warrant to be searched. In a proceeding of such a drastic and summary character nothing should be left to inference, but all material facts should be stated in the return with clearness and certainty, so as to justify and support the subsequent proceedings required to be taken upon the return of the warrant. This leads us to the consideration of the question whether, when the writ of habeas, corptis was sued out, the petitioner was held in custody by “ due process of law.” His name is not mentioned in the search warrant, or in the affidavit upon which it issued. In brief, he is not charged, so far as the sheriff’s return to the writ of habeas corpus shows, with any offense, or held by any process directed against him personally. Erom his petition it appears that he was arrested under the search warrant, and brought before the police court, November 9, 1895, for trial, but for what offense it is not stated; that the trial was continued until the 27th of the same month, and for want of bail he was held in custody, imprisoned, etc., by Sheriff Stanley, under and by virtue of said proceedings, and not otherwise. There is nothing in the return,or record to show that any complaint had been filed against him or was pending in the police court. The fact that he was arrested while violating the ordinance would justify his detention for the usual and reasonable time to take him before the court or magistrate when and where a complaint in due form might be lodged against him, but it would be an unheard-of and wholly unjustifiable course of proceeding to hand an accused party over to the sheriff or other officer without warrant or commitment founded upon information or complaint against him upon which process might issue. If was necessary, when the case was adjourned for trial, that appropriate process, properly warranted and supported, for his detention, should have been, but none appears to have been, issued. The only appearance of authority the sheriff had was the original warrant, in which the petitioner was not named, issued upon an affidavit making no direct charge against him, and the fact that he was arrested by the officer while, perhaps, in the commission of the offense specified in the ordinance. The detention and restraint of which the petitioner complains were not, for these reasons, we think, by “due process of law.” Const. Wis. art. I, sec., 8, as amended; Amendm. Const. U, S. art. XIY, sec. 1. ' An indictment or information duly found, or complaint filed, and a proper order or warrant thereon, were indispensable to his lawful detention. Under the general law, an information can be filed only in cases where there has been a hearing on a preliminary examination, or where it has been waived by the accused. We do not think that it was in the power of the common council to justify the arrest and detention of persons for violations of city ordinances, without “ due process of law,” founded upon information or sufficient complaint. “ Due process of law,” as applied to arrest and detention of persons and judicial proceedings in general, means ‘Daw in its regular course of administration, according to the prescribed forms, and in accordance with the general rules for the protection of individual rights.” Rowan v. State, 30 Wis. 149. It is process founded on, and according to the course of, proceedings applicable to the subject matter, and conformable to those general rules which affect all persons alike, observing and conforming to the general rules respecting the liberty and safety of the person, “ intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.” Bank of Columbia v. Okely, 4 Wheat. 244; Westervelt v. Gregg, 12 N. Y. 209-212. Due process of law is required and intended to protect the life, liberty, and property of the citizen against acts of mere .arbitrary power in any department of the government, and it means law in its regular course of administration through the courts of justice. Cooley, Const. Lim. 431 etseq. Whether, a complaint signed by the city attorney without previous .public examination of the accused, and not otherwise verified than by his official signature, is due process of law in-this respect, is a point not here involved, and .upon which we express no opinion. Inasmuch as it is not made to appear that the petitioner was duly charged, by a sufficient-complaint, with having violated the ordinance, we think that there was no authority for the detention or imprisonment of which he complains.

Upon the grounds and for the reasons stated, we must hold that the judgment of the circuit court affirming the ■order of the- court commissioner discharging the petitioner was correct and must be affirmed.

By the Court.— Judgment is ordered accordingly.