Cambria v. Bachmann
| Decision Date | 27 March 1923 |
| Docket Number | 4850. |
| Citation | 118 S.E. 336,93 W.Va. 463 |
| Parties | CAMBRIA ET AL. v. BACHMANN ET AL. |
| Court | West Virginia Supreme Court |
submitted March 13, 1923.
Rehearing Denied April 23, 1923.
Syllabus by the Court.
Equity has no jurisdiction as incident to the protection of the property to enjoin the arrest of the owner or the seizure of his property, with or without warrant, employed by him as a gambling device in violation of section 1 of chapter 151 of the Code (Code 1913, § 5440). Such seizure of the property is a proceeding in rem, and being contraband, the provisions of the Constitution relating to trial by jury and depriving one of his liberty or property without due process of law are inapplicable.
It is not necessary that here should be a previous adjudication as to the nature and character of a machine operated by the owner to whom a license has been issued to operate a slot machine before suing out a warrant for his arrest and the seizure of such property, which the prosecutor complains is being operated in violation of said section 1 of chapter 151 of the Code (Code 1913, § 5440.)
The statute providing for the arrest of the owner and the seizure of property charged in the warrant to be employed contrary to the statute also provides for the trial of the accused, and if found guilty, for the destruction of the property, or if not, for the restoration of the same to the owner; and where such property is susceptible of no other use, this is the sole remedy of the State and the accused to determine the rights of the accused with respect to such property.
A proceeding by mandamus by the owner of such property against the licensing authorities to compel them to issue him a license to operate a slot machine, in which there was no process upon the petition, and no return nor issue joined by defendants, and no record made thereof, but an opinion of one of the judges announced, will not amount to an adjudication binding the parties nor protect the owner against arrest or seizure of his property operated contrary to the provisions of the statute.
Because of the character of such contraband property, equity will not enjoin the arrest of the owner or the seizure of his property, and the principles of Block v. Crockett, 61 W.Va. 421, 56 S.E. 826, and other cases referred to in the opinion, are inapplicable.
The writ of quo warranto, provided by section 6 of chapter 109 of the Code (Code 1913, § 4510) does not by proper construction extend to proceedings against licensees having licenses to operate slot machines issued under the revenue laws of the State, the arrest and trial of the owner for violating the criminal statute and the proceeding provided by section 34 of chapter 32, Barnes' Code 1923, being adequate for the protection of the State and the accused. Moreover, by section 1 (r) of said chapter 32, no license to operate such a machine will protect the owner in the unlawful employment thereof.
Where on bill and answer the circuit court has declined jurisdiction and dissolved a preliminary injunction enjoining public officers from proceeding against the owner and the seizure of his property by criminal process, this court should not take jurisdiction by appeal and supersedeas to review such decree and restore such preliminary injunction which was void for want of jurisdiction; and the public officers can not be held guilty of contempt for disregarding such void decree of the circuit court.
Properly construed the preliminary injunction in this case did not enjoin respondents from arresting the relators for a violation of the statute in operating their slot machines and in so far as it undertook to enjoin seizure of their property without warrant of law, the order for the reasons stated was void; and for the subsequent arrests upon warrants and the seizure of relators' property by lawful process, respondents were not guilty of any contempt of the appellate process of this court for which under the circumstances they should be punished. An injunction of this character must be interpreted in the light of the pleadings.
Petition of Joseph Cambria and others against Carl G. Bachmann and another. On rule to show cause why defendants should not be punished for contempt. Rule discharged, and petition dismissed.
J Bernard Handlan, G. Alan Garden, and John J. Coniff, all of Wheeling, and Poffenbarger, Blue & Dayton, of Charleston, for petitioners.
Carl G Bachmann and Carl O. Schmidt, both of Wheeling, and W. C. Revercomb, of Charleston, for respondents.
MILLER, P.
Respondents Carl G. Bachmann, prosecuting attorney of Ohio County, and Harry T. Clouse, Sheriff of said county, have been ruled before us upon the petition of Joseph Cambria and others, to show cause why they should not be punished as for a contempt of this court for alleged violation of the process, awarded February 10, 1923, of appeal from and supersedeas to a decree of the circuit court of said county dissolving an injunction in the chancery cause of said Cambria and others against respondents and Fred H. Frazier, chief of police of the City of Wheeling.
The grounds upon which the preliminary injunction was awarded, as alleged in the bill, in substance were that relators were the owners of some 85 machines known and designated as automatic machines or devices for vending chewing gum and checks commonly known as trade checks, to operate which they had obtained licenses from the State of West Virginia and the City of Wheeling pursuant to statute and the ordinances of said city; that the aforesaid licenses were actually issued to them; that petitioners had applied to Honorable J. B. Sommerville, judge of said court, to compel the city clerk to issue said licenses, upon which application a full hearing was had as to whether said machines were gambling devices, and when one of said machines was exhibited to the court in the presence of the prosecuting attorney and the city solicitor, and when it was agreed that what was alleged concerning said machines and the operation thereof was true; that no answer was made to said petition; that in and thereon in an opinion delivered the court determined that the petitioners were entitled to licenses to operate said machines as applied for; that thereafter petitioners invested large sums of money in the purchase of said machines, and in installing the same; that without formality of judgment by the court upon the record there was issued to plaintiffs by the City of Wheeling and the State of West Virginia licenses to operate said machines; that after petitioners had so purchased said machines and installed them, the said Carl G. Bachmann, prosecuting attorney, Harry T. Clouse, sheriff, and Fred H. Frazier, chief of police, and their deputies, agents and employees, pretending that said machines were gambling devices, gave notice to plaintiffs to remove them from the places where they had been installed by midnight of February 2, 1923, or that they would by force if necessary confiscate them and prevent their operation and remove them from the places where they had been so installed.
The allegations of the bill most material here were: First, that these orders of defendants that said machines should be taken by force if necessary were without any authority or warrant of law or any complaint against the complainants or those in whose possession or in whose places of business the machines were located, and that the complainants were advised and charged that said officers would carry out said orders unless restrained by an order of the court: Second, that the business done by the said machines was a legitimate business, authorized by the laws of the State of West Virginia and the ordinances of the City of Wheeling, and that the confiscation of their property if carried out would work irreparable injury to complainants, for which the law provided no adequate remedy; that the method of confiscation so proposed, as plaintiffs were advised, was a high-handed and unheard of method, not contemplated by law; that after being served with notice of the application for said injunction, defendant Bachmann directed the officers to go ahead and confiscate any machine found in any place and to arrest the proprietor of the place and put him in jail, thereby to prevent the operation of said machines without any authority of law and without any offense being committed by the complainants or those in whose places of business said machines were located.
The prayer of the bill, in accordance with the injunction order therein recited, was that a temporary injunction be issued against said defendants and each of them, their deputies, agents, servants and employees, from in any manner confiscating and removing said machines or interfering with the operation thereof until the further order of the court, and that upon a final hearing said injunction be made permanent.
The defendants answered the bill, and as they claim, and as the circuit court undoubtedly concluded, fully denied all material allegations of the bill, and moved the court to dissolve the injunction; and upon the hearing of said motion upon the bill and exhibits therewith, and the answers and exhibits therewith, the court, on February 5, 1923, by the decree appealed from, adjudged, ordered and decreed that the said temporary injunction be and the same was thereby wholly dissolved.
The plaintiffs in said bill, the relators in the present petition, contend that respondents' answers to said bill were not denials but constituted admissions of the facts alleged, and that the other allegations thereof relied on, to the effect that said machines were gambling devices, which could not be legally licensed by state or municipal authorities, a mixed question of law and fact, were...
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