Woods v. Cottrell
| Decision Date | 29 March 1904 |
| Parties | WOODS v. COTTRELL, Justice, et al. |
| Court | West Virginia Supreme Court |
Submitted March 9, 1904
Syllabus by the Court.
1. A justice who issues a warrant to arrest a party for keeping a slot machine as a gaming table, and to seize the same, and who, on hearing, requires the accused to give recognizance to appear before the criminal or circuit court to answer the charge, and orders the constable to turn over to the clerk of such court the slot machine to abide its order, is acting within his jurisdiction; and a writ of prohibition will not lie against him and the constable to restrain them from executing such order, nor against such clerk to prohibit his retaining the machine until such court act upon it.
2. Section 1, c. 151, Code 1899, in authorizing the seizure of gaming tables or instruments covered by it, is not unconstitutional, as depriving a person of property without due process of law.
3. When gaming tables are seized under a warrant from a justice under Code 1899, c. 151, § 1, the justice cannot order them to be burned. That can be done only upon conviction of their owner upon the charge of keeping them, in a criminal or circuit court, and under its order.
4. Public nuisance--power to destroy things constituting it.
Error to Circuit Court, Kanawha County; W. Gordon Mathews, Special Judge.
Proceedings by Gibby Woods against Joel Cottrell, justice, and others for writ of prohibition. Judgment for defendants, and plaintiff brings error. Affirmed.
J. W Kennedy, Cornwell & Cornwell, John H. Holt, John Bassel, and M. G. Sperry, for plaintiff in error.
S. B. Avis, Pros. Atty., for defendants in error.
A justice of Kanawha county issued a warrant requiring the arrest of Gibby Woods, charging that he kept and exhibited "a gaming table, called an A. B. C. table, and E. O. table, and faro bank, and keno table, and table of like kind, under the denomination of 'slot machine." The warrant required the constable to arrest Woods, and bring him before the justice to answer the charge, and also to seize the slot machine and any money staked and exhibited to allure persons to bet at such table or bank; and under it the constable arrested Woods and seized the slot machine, and upon hearing Woods was required to give bond for his appearance before the criminal court to answer the charge, and the slot machine was by the justice's order turned over to the clerk of the criminal court to await its action as to the machine. Two days after the justice's action Woods obtained from the circuit court a rule against the justice, the constable, and the clerk of the criminal court to appear and show cause why a writ of prohibition should not go to prohibit them from proceeding upon the said order of the justice, "and commanding them no further to hold said slot machine from said petitioner." Upon hearing the court discharged the rule, and Woods sued out a writ of error from this court.
At once the question thrusts itself upon us, does prohibition lie in this case? No one can question that a justice has jurisdiction to issue a warrant to begin a prosecution for keeping gaming tables under Code 1899, c. 151, § 1. Say that he erred in deciding that a slot machine is a table, an instrument of gaming, under that statute. It is only an error of judgment within the pale of a lawful jurisdiction. It is not a usurpation of jurisdiction, but mere erroneous decision in a case lawfully before him. The law commanded him to consider and decide whether or not keeping a slot machine was an offense under that statute. He did only what the law required of him--he decided that question. Prohibition lies only where there is "usurpation and abuse of power, when the inferior court has not jurisdiction of the subject-matter in controversy, or, having such jurisdiction, exceeds its legitimate powers." Code 1899, c. 110, § 1; Haldeman v. Davis, 28 W.Va. 324; County Court v. Boreman, 34 W.Va. 362, 12 S.E. 490. It was argued at the bar that the Code just cited says that the writ lies as "matter of right." So it does in those cases where it does lie, but those words do not define the cases where it lies, but were inserted only to say that in cases proper for the writ it should be demandable of right, instead of resting in the discretion of the court as before that enactment. For such error in mere judgment the law provides another remedy. West v. Rawson, 40 W.Va. 480, 21 S.E. 1019. If indicted, the criminal court, then the circuit court, then the Supreme Court--all in the due course of law; and this is another reason against prohibition. A bold proposition it is to say that, when a justice sends out a warrant for a criminal act for which the law gives him power to issue it, a prohibition lies, even where the act does not constitute an offense. Can the question whether it is an offense be tested by prohibition? It is not a criminal writ. Can the usual criminal procedure be arrested and frustrated by this writ? Surely not. To so hold would palsy the vigor of criminal process. Everybody would be asking a prohibition when a warrant is sued out against him. We decline to set such a precedent, and decide the merits without regard to the question of the propriety of thus using the writ, and thus be understood as holding that prohibition can be so used, even though the parties consent, as we do not think that consent can give the writ a function not given it by law. See dissenting opinion in State v. Godfrey, 46 S.E. 185, 54 W.Va. 54.
Another reason why the writ does not lie, so far as it seeks to restrain the action of the justice, is that he had already acted. When he sent Woods on to the criminal court, he was functus officio. The matter was that instant in the criminal court. "Prohibition does not lie to restrain an inferior court after the judgment has been given and fully executed." Haldeman v. Davis, 28 W.Va. 224.
Next, as to whether the writ can go to operate upon the constable and clerk. As to the constable: We are to presume that as the justice made his order on December 7th, and the petition for prohibition was not presented until December 9th, the constable had already lost custody of the slot machine. It does not appear to the reverse. Where, after judgment, prohibition is asked to restrain its execution, as may, under some circumstances, be done, it must appear that execution has not been done; but in this case it does not so appear. City v. Beller, 45 W.Va. 44, 30 S.E. 152; Wilkinson v. Hoke, 39 W.Va. 405, 19 S.E. 520; Bodley v. Archibald, 33 W.Va. 229, 10 S.E. 392. And the constable is not a judicial officer, nor is the clerk, and prohibition is only to judicial tribunals. As to clerk: The rule proposes that the writ shall command him "no further to hold said slot machine from the petitioner"; that is, that he surrender it to Woods. It can have no other significance. It would be worthless otherwise. This makes the writ an action of detinue--a function which it cannot perform. If the order of the justice were void (as it is not), or if that feature touching the machine were void, it could be so held in an action of detinue, which would be the proper process. Prohibition does not lie where other plain remedy exists. But, aside from the last consideration, the statute gives authority to seize, under the warrant of the justice, a gaming table or faro bank, and the power to burn it, and within this would be included the power to hold it as evidence in furtherance of the prosecution originating with the warrant, and to answer final judgment of its condemnation. Now, this seizure is thus under color of statute authority and jurisdiction; not without jurisdiction, not an excess or abuse of jurisdiction, but within the very letter of the jurisdiction given by the statute. The arrest, holding the accused to answer in court, and seizure of the instrument, thus preventing its use in gaming until trial and judgment, all these are under color and justification of the authority or jurisdiction given by the statute. To sustain a jurisdiction wide enough to justify not only the issue of the warrant and hold the accused to answer an indictment, but also the seizure of the slot machine, is not to assert a power in the justice to burn the machine. We do not think he has that power. This warrant was issued under a statute which does not give the justice power to hear and determine final judgment. His only power is to determine whether there is probable cause to hold the party to answer in the trial court. We cannot cut his power into separate pieces, and say that, whilst he cannot try the guilt of the accused, and impose punishment, yet he can pass judgment that the machine be burned. We think that whether the machine shall be burned or released depends on whether the accused is guilty. If not guilty, he is not himself to be punished, neither is the machine to be burned; and as only the trial court can determine his guilt, so only it can condemn the machine to be burned. If the party is guilty, destruction of the machine follows the ascertainment of his guilt. If acquitted, judgment of restitution to him of his property follows. Though the thing be plainly an instrument of gaming under the statute, yet, if its owner be acquitted of using it for that purpose, it cannot be destroyed, as it is only instruments actually used and kept for gaming that are thus condemned to destruction.
It is argued that only after trial by a jury and conviction of the accused can the gaming table be seized. This cannot be so. It is designed to take from the accused the gaming instrument, and stop its use until trial. It goes along with the accused to share his fate.
It is argued that there is no authority to turn over to ...
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