Cambria v. Bachmann

• Decision Date: 27 March 1923
• Docket Number: (No. 4850.)
• Citation: 118 S.E. 336
• Parties: CAMBRIA et al. v. BACHMANN et al.
• Court: West Virginia Supreme Court

118 S.E. 336

CAMBRIA et al.

v.BACHMANN et al.

(No. 4850.)

Supreme Court of Appeals of West Virginia.

March 27, 1923.

Rehearing Denied April 23, 1923.

(Syllabus by the Court.)

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 respondent's 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 an 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 affirmative in nature, and as to which facts the plaintiffs were entitled to protection by virtue of their licenses until the character of said machines could be determined by the proper tribunal, and that the burden of proof was upon defendants, and as to which defendants and respondents offered no proof.

The petition for the present rule alleges that, on February 20, 1923, after the writ of appeal and supersedeas of this court was allowed, respondents Bachmann and Clouse, disregarding and in violation and contempt of said process reinstating said injunction, interfered with and stopped the operation of four of said gum vending machines, and seized and took them into their possession and removed them from the places in which they were and from the custody and control of those lawfully in possession thereof, one from the place of business of Roy Rutten-cutter, another from the place of business of Harry Katsadoras, another from the place of business of William Bilo, and another from the place of business of Dave Bohrer, all in the City of Wheeling and County of Ohio, and as to the machines in the possession of said Ruttencutter, Katsadoras and Bilo pursuant to warrants issued by John W. Kindelberger, justice of the peace, upon complaints sworn to and filed by respondent Bachmann as prosecuting attorney, and as to the machine in the possession of Dave Bohrer, without any warrant or process of any kind, but on the theory that an offense had been committed in the presence of said sheriff, and that they have thereby stopped the operation of all other like machines of relators.

To the rule against them for contempt respondents Bachmann and Clouse have now appeared and joined in a motion to quash the rule and filed their respective answers thereto. The grounds of their motion to quash are: (1) That the circuit court was without jurisdiction to restrain them from proceeding by valid search and seizure warrants to arrest the persons operating said machines and to seize and take them into their possession; (2) that as to the machine on the premises of Dave Bohrer, they were not enjoined from seizing it, either with or without a warrant, because it was not included in the list of machines appended to the bill for the temporary injunction.

The answers of both respondents admit the proceedings upon the bill and answer in said circuit court, and the award by this court of the appeal from and supersedeas to the order dissolving said injunction; and they further admit that since the process from this court on February 10, 1923, respondent Carl Bachmann made complaint under oath before a justice of the peace in Ohio County and obtained warrants for the arrest of said Ruttencutter, Katsadoras and Bilo, and for the seizure of the machines in their possession, alleged by respondents in their answers to be gambling devices, and directed said Clouse to enter their premises and arrest those in possession of said machines and to take the machines into his possession, to be used as evidence by said Bachmann as prosecuting attorney on the trial of indictments found by the grand jury against the keepers thereof on March 5, 1923; but respondent Bachmann denies that he had interfered with or stopped the operation of said machines so seized and taken them into his possession in disregard of, or in violation, disobedience or contempt of the injunction or of the process of this court, for the several reasons assigned; (1) that said injunction was designed and intended only to prohibit him from illegally and unlawfully confiscating or removing said machines or interfering with the operation thereof, and was not intended to prohibit or restrain him, as a public officer charged with the duty of enforcing the criminal laws of the state, from proceeding by valid warrants to arrest violators of the statute and to seize the implements used by them in the violation thereof; (2) that it was distinctly understood both by respondents and by counsel representing relators that the injunction was not designed to prohibit respondents from proceeding by valid warrants against the keepers and exhibitors of...