State ex rel. Igoe v. Joynt

• Decision Date: 27 September 1937
• Parties: State of Missouri at the relation of William L. Igoe, Albert Bond Lambert, George T. Priest, John J. Phelan and Bernard F. Dickmann, Members of and Constituting the Board of Police Commissioners of the City of St. Louis; John J. McCarthy, Chief of Police of the City of St. Louis; John J. Carroll, Chief of Detectives of the City of St. Louis, and Harry Walk, Member of the Police Department of the City of St. Louis, Relators, v. John W. Joynt, Judge of the Circuit Court of the City of St. Louis
• Court: Missouri Supreme Court

110 S.W.2d 737

341 Mo. 788

State of Missouri at the relation of William L. Igoe, Albert Bond Lambert, George T. Priest, John J. Phelan and Bernard F. Dickmann, Members of and Constituting the Board of Police Commissioners of the City of St. Louis; John J. McCarthy, Chief of Police of the City of St. Louis; John J. Carroll, Chief of Detectives of the City of St. Louis, and Harry Walk, Member of the Police Department of the City of St. Louis, Relators, v. John W. Joynt, Judge of the Circuit Court of the City of St. Louis

Supreme Court of Missouri

September 27, 1937

Preliminary rule made absolute.

Edgar H. Wayman, Oliver Senti and Charles P. Williams for relators.

(1) Gambling devices, or devices intended and constructed mainly for gambling, ought not to be regarded as property at all but as a species of public nuisance which may be summarily abated, and even without a hearing. Durant v Bennett, 54 F.2d 634; Stanley-Thompson Co. v People, 168 P. 750, 63 Colo. 456; Mullen v. Mosely, 13 Idaho 457, 12 L. R. A. (N. S.) 394; Police Commissioners v. Wagner, 93 Md. 182; Garland v. State, 71 Ark. 138, 73 S.W. 257. (a) As to the nature of such things as property, protected by the law. Miller v. C. & N.W. Ry. Co., 153 Wisc. 431; Robertson v. Porter, 1 Ga.App. 223; Spalding v. Preston, 21 Vt. 9; Triangle Mint Co. v. Horgan, 223 N.Y.S. 570. (b) As to the power of summary destruction. Lawton v. Steele, 152 U.S. 133; Sentell v. Railroad Co., 166 U.S. 705; Hoffer v. Carson, 102 Ore. 553, 203 P. 232; Eichenlaub v. St. Joseph, 113 Mo. 395; Lemon v. Rumsey, 108 W.Va. 242; Louisiana State Board v. Tanzman, 140 La. 755. (c) There are a few cases to the contrary. McConnell v. McKilib, 71 Neb. 716; Woods v. Cottrell, 65 L. R. A. 616. The only case in this State which seems to bear directly on this matter is Lowry v. Rainwater, 70 Mo. 152. That case is quite out of line with modern authority, if it is to be applied to property of the character here in question. (2) It has long since been overwhelmingly settled that due process of law does not necessarily involve court trial and determination. The decisions to this effect are so numerous as to defy citation. A few are as follows: Public Clearing House v. Coyne, 194 U.S. 509; Reetz v. Michigan, 188 U.S. 507; United States v. Ju Toy, 198 U.S. 253; McMillen v. Anderson, 95 U.S. 41; Title Guar. Co. v. Allen, 240 U.S. 136; State ex rel. v. North, 304 Mo. 620; Stettler v. O'Hara, 69 Ore. 539; Mott on Due Process of Law, sec. 88, pp. 214, 215.

Hyman G. Stein and William J. Hough for respondent.

(1) Where the jurisdiction of a court to hear and determine a case rests upon facts, this court will not, by its writ of prohibition, preclude such court from determining its jurisdiction from the facts. State ex rel. Am. Pigment & Chemical Co. v. Shields, 237 Mo. 334; State ex rel. North v. Miller, 280 S.W. 48. (a) Whether the plaintiff in the injunction suit will suffer irreparable injury from the relators' acts and threatened acts therein complained of, and whether such suit is within the jurisdiction of respondent, as circuit judge, must be determined from the allegations of the petition for an injunction. State ex rel. Chase v. Hall, 229 Mo. 600. (b) The law does not require, as urged in relators' point (1), that the respondent shall prejudge the merits of the injunction suit by taking a stand in his return as to the nature and description of the machines in controversy, and concerning which he may, in the due performance of his judicial office and duties, form no opinion until he shall have heard and determined such suit. Nor does the decision in State ex rel. v. Harris, 229 Mo.App. 721 (relied on by relators), support relators' contention. State ex rel. v. Harris, 229 Mo.App. 743. (2) Accordingly, respondent, under the allegations in the petition presented before him by such plaintiff, had jurisdiction over the subject matter of such petition, and in the exercise of such jurisdiction is entitled to proceed to ascertain whether the machines in controversy are of the character and are being used or held for the purposes condemned by the gambling laws of this State, and to enjoin their being seized or destroyed and their use being interfered with, if the respondent finds that they are not of such illegal character and are not being so used or held. Lowry v. Rainwater, 70 Mo. 152; Sec. 10, Art. II, Mo. Const.; Sec. 30, Art. II, Mo. Const.; Sec. 1, 14th Amendment, U.S. Const.; 5th Amendment, U.S. Const.; State v. Boyd, 108 Mo.App. 529; State v. Grant, 76 Mo. 244. (3) The provisions in Section 7557, Revised Statutes 1929, to the effect that the acting president of the police board is constituted a "magistrate" and clothed with jurisdiction to determine judicially the character, nature and use of property seized as alleged gambling devices, do not meet the requirements recognized by this Honorable Court in Lowry v. Rainwater, supra, that such property may not be seized or destroyed without due process of law and judicial proceedings to ascertain whether the same is of the character and is being used or held for the purposes condemned by the gambling laws. (a) The judicial power in this State is, by our Constitution, vested in certain courts therein named and the General Assembly has no authority to create any other tribunal and invest it with judicial power. Accordingly the General Assembly had no power to constitute the acting president of the police board a magistrate or invest him with judicial power. State ex rel. v. Ryan, 182 Mo. 355; State ex rel. Railroad v. Pub. Serv. Comm., 303 Mo. 218; State ex rel. v. Pub. Serv. Comm., 316 Mo. 239; Sec. 1, Art. VI, Mo. Const.; Art. III, Mo. Const. (4) While the general rule is that a court of equity will not arrest the enforcement of criminal laws, nevertheless a court of equity does have jurisdiction to inquire into the legality of any invasion or threatened invasion of property or rights of property, by public officers charged with the enforcement of the criminal laws; and where the facts alleged in the petition show that irreparable injury will result to plaintiff's property if such invasion is held unlawful, equity has jurisdiction to act. Park Transportation Co. v. State Highway Comm., 332 Mo. 596; State ex rel. Chase v. Hall, 297 Mo. 600; Merchants Exch. of St. Louis v. Knott, 212 Mo. 646.

OPINION

Douglas, J.

This is an original proceeding in prohibition against Honorable John W. Joynt, a judge of the Circuit Court of the City of St. Louis. On November 30, 1936, one Sid O. Martin filed a petition in that court asking for a temporary restraining order and also that a hearing be had and thereafter a permanent injunction be issued against the members of the Board of Police Commissioners of the City of St. Louis and members of the Police Department. In his petition Martin states that in his business he owns and operates certain devices known as "rotary merchandisers" which, he alleges, are amusement devices and not gambling devices; that he has invested large sums of money in these devices, has created a valuable trade and good will in them and has contracted with many persons by leases and otherwise for the display and use of such devices; that he was arrested and the police confiscated one of the devices; that he has been notified that the police contemplate destroying the devices seized by them and will seize and destroy any other rotary merchandiser plaintiff may use in his business. He further alleges if he is not permitted to operate these devices without interference he will be deprived of his property and means of livelihood without due process of law; that he will be subject to great and irreparable loss. He prays that the defendants be restrained from preventing in any way the operation of such rotary merchandisers; from seizing them; from destroying the one already seized; from interfering with their maintenance, operation, distribution and use by patrons.

On the morning following the filing of the suit a ten-day restraining order was granted by the respondent without notice or hearing, restraining the police from interfering with the erection, maintenance or operation of the said devices and from molesting or interfering with any person patronizing them. The defendants filed objections to the jurisdiction of the lower court which were overruled, whereupon they sought the intervention of this court through a writ of prohibition. Our preliminary rule issued to which respondent made return and relators then moved the court to make the preliminary rule absolute.

The Statutes of Missouri, 1929, by Section 4287, make it a felony for any person to set up or keep or permit any person to play on any gaming device or slot machine adopted and designed for the purpose of playing any game of chance for money or property, and by Section 4314 to establish any lottery or gift enterprise.

No evidence was taken. It is insisted for the respondent that the trial court has the power to determine its jurisdiction from the facts to be presented before it, that is to decide whether or not the machine described is a legal device, and that it should not be precluded from doing so by this court. [State ex rel. American Pigment & Chemical Co. v. Shields, 237 Mo. 329, 141 S.W. 535.] It is the rule that this court, in determining the jurisdiction of the trial court, is limited to the allegations of the petition pending there. [State ex rel. Chase v. Hall, 297 Mo. 594, 250 S.W. 64.] But if it should appear from the petition that the protection of a court of equity is sought for an unlawful device then there is no cause of action stated and prohibition will lie. [Wellston Kennel Club v. Castlen, 331 Mo. 798, 55 S.W.2d 288; State ex rel. Castlen v. Mulloy, 331 Mo. 776, 55 S.W.2d 294.]

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