City of Chicago v. Sayer

• Decision Date: 14 January 1947
• Docket Number: Gen. No. 43803.
• Citation: 330 Ill.App. 181,70 N.E.2d 870
• Parties: CITY OF CHICAGO v. SAYER. SAME v. THOMSON. PEOPLE v. SAYERS. SAME v. THOMPSON.
• Court: United States Appellate Court of Illinois

330 Ill.App. 181

70 N.E.2d 870

CITY OF CHICAGO

v.SAYER.

SAME

v.THOMSON.

PEOPLE

v.SAYERS.

SAME

v.THOMPSON.

Gen. No. 43803.

Appellate Court of Illinois, First District, Second Division.

Dec. 31, 1946.

Rehearing Denied Jan. 14, 1947.

Appeal from Municipal Court of Chicago, Cook County; Gibson E. Gorman, Judge.

Quasi criminal proceedings by the City of Chicago against Ray Sayer and against Theodore Thompson for unlawfully keeping, owning, operating and using or causing to be used, in a certain building, certain slot machines. Proceedings on informations by the People against Ray Sayer and against Thompson for unlawfully keeping a building for the purpose of storing slot machines. Identical orders were entered in each case denying defendants' motions to suppress the evidence and return to defendants, as custodians, some 118 slot machines taken by police officers and directing confiscation and destruction of the machines, whereupon the People nolle prossed the informations and the city took nonsuits. From the orders, the defendants appealed directly to the Supreme Court which transferred the cases, 393 Ill. 568, 66 N.E.2d 436, to the Appellate Court.

Orders affirmed.Robert Bachrach and Harold Marovitz, both of Chicago, for appellants.

Barnet Hodes, Corporation Counsel, of Chicago (J. Herzl Segal, A. A. Pantelis and Sydney R. Drebin, Asst. Corporation Counsel, all of Chicago, of counsel), for appellee.

FRIEND, Justice.

The defendants, Ray Sayer and Theodore Thomson, each prosecuted two direct appeals to the Supreme Court from four separate but identical orders entered in four proceedings in the Municipal Court of Chicago. Two of the orders were entered upon quasi-criminal complaints of the City of Chicago against each of the defendants charging them with unlawfully keeping, owning, operating and using or causing to be used in a certain building, slot machines, in violation of section 191-5 of the Municipal Code of Chicago, and the other two upon an information filed by the people against each of the defendants charging them with unlawfully keeping a building for the purpose of storing slot machines, in violation of section 3 of the Act to Prohibit the Use of Slot Machines (Ill. Rev.Stat. 1943, ch. 38, par. 343). In all of these cases the court denied defendants' motions, as amended, to return to them, as custodians, some 118 slot machines taken by police officers, and to suppress the machines as evidence upon hearing of the charges lodged against them. The court's rulings were incorporated in an order prepared and submitted by defendants, which not only denied their motions, but upon their insistence, directed confiscation and destruction of the machines. Following the entry of these orders the people nolle prossed the information brought against defendants under the statute, and the city took a nonsuit in the cases which were brought under the city ordinance. The appeals were taken to the Supreme Court on the theory that the confiscation order was entered under an invalid ordinance, and also that section 2 (par. 342) of the Act to Prohibit Slot Machines, authorizing seizure of slot machines not in use, is unconstitutional. The Supreme Court disallowed the latter claim, holding that it had previously sustained the validity of that section of the statute in Frost v. People, 193 Ill. 635, 61 N.E. 1054,86 Am.St.Rep. 352, and in Bobel v. People, 173 Ill. 19, 50 N.E. 322,64 Am.St.Rep. 64, where its validity was attacked on similar grounds, and said the mere assertion of its invalidity raised no constitutional question giving the court jurisdiction on direct appeal. City of Chicago v. Thomson, 393 Ill. 568, 66 N.E.2d 436. As to the alleged invalidity of the ordinance under which seizure was made, the court held that since the suit based on the ordinance was nonsuited, the court was not required to pass on the validity thereof. Accordingly the four cases were transferred here for determination.

There is substantially no dispute as to the salient facts adduced upon the hearing of defendants' motions to suppress the evidence and to return the machines. Defendants supported their motions by affidavits, but introduced no oral testimony. Several witnesses testified on behalf of the city. From the evidence it appears that in the early morning of March 28, 1945 the fire department was forced to break in the doors and windows on the second floor of premises known as 1653-55 West Madison street to extinguish a fire. During the progress of the fire Battalion Chief Peterson sent for Police Officers Rupp and Karnick, who were directing traffic at the corner of Paulina and Madison streets. They entered the premises about i:20 A.M. without forcing the door, walked up the stairs where the firemen had entered on the second floor, and there found numerous so-called slot machines, some of which were created and others not. The premises consisted of five rooms, and machines were stored in every room. Later in the day Captain Looney of the police department entered the premises. The door was open. He and other officers played dime and quarter machines by inserting coins and pulling the handles. They inspected some of the machines, of which there were 118 in number, and found them mechanically operative. While some of the officers were on the premises a man and woman who lived in the back of the building entered the second floor. Upon interrogation it was found that they were the custodians of the building. The man, Ray Sayer, gave the police a written statement, saying that he was the janitor at 1655 West Madison street and that the machines had been in the building since November 1944. The officers took Sayer in custody, seized the machines and ordered them moved to the police custodian.

On April 2, 1945 police officers were called to the premises at 1653 West Madison street, and there found the defendant Theodore Thomson, who had come to the police station earlier in the evening to report a burglary and theft of liquor at the Madison street address. Thomson and Sayer met Officer McManigal at the front door and took him into the premises. While there he saw two slot machines, which he played in the manner heretofore described. Thomson was taken into custody, and the two machines were seized. Both Sayer and Thomson were charged with possessing slot machines in violation of section 191-5 of the Municipal Code of Chicago and section 343 of the Criminal Code (Ill.Rev.Stat. 1945, ch. 38). All the machines taken from the premises were gambling devices.

Pursuant to a hearing the court denied defendants' motions to suppress as well as their petitions for the return of the slot machines, holding that the averments and prayer of the petition should be the subject of a civil proceeding. Thereupon attorneys for defendants prepared and submitted to the trial court a draft order which provided that the slot machines be confiscated. The city's attorney objected to the entry of such an order, on the ground that the only motions before the court were those to suppress the evidence and to return the slot machines, and in lieu of the orders presented by defendants he presented a draft order providing that the motions to suppress the evidence and to return the slot machines, be denied. The court refused to sign the order submitted by counsel for the city and on insistence of defendants entered the draft order which their attorneys had prepared and submitted, providing for the confiscation of the slot machines. Defendants appeal from that order.

The record clearly establishes the fact that the devices taken from defendants' premises were ‘slot machines.’ The testimony of the police officers in this respect stands uncontradicted and unimpeached, and in fact the order entered by the trial court at the insistence of the defendants' attorneys and prepared by them, makes the following finding: ‘(4) that the devices taken by the Department of Police of the City of Chicago consisted of what are commonly known as ‘slot machines.” Courts in this and other jurisdictions have repeatedly held that gambling devices are not lawful subjects of property which the law protects but have ceased to be regarded or treated as property, and are liable to seizure, forfeiture or destruction. The two leading cases cited by the Supreme Court in remanding these proceedings are squarely in point. In Bobel v. People [173 Ill. 19, 50 N.E. 324] the court said that they were ‘Of the opinion that it was the purpose of the legislature in enacting this statute [An act to prohibit the use of clock, tape, slot or other machines or devices for gambling purposes, Laws of 1895, p. 156], not only to suppress the use of these gambling devices, or the keeping of them for gambling purposes, but also to prohibit the ownership or the keeping of them, whether for gambling purposes or not; otherwise, why make it a criminal offense to own or keep them, without qualification as to the purpose of such ownership or keeping, and why provide for their seizure and destruction?’ In the Frost case [193 Ill. 635,61 N.E. 1056] the court said that ‘The legislature have determined that gambling implements and apparatus are pernicious and dangerous to the public welfare, and the keeping of them is an offense prohibited by law. They are therefore not lawful subjects of property, which the law protects, but have ceased to be regarded or treated as property, and are liable to seizure, forfeiture and destruction without violating any constitutional provision.’ In Stanley-Thompson Liquor Co. v. People, 63 Colo. 456, 168 P. 750, 751, the court held it to be ‘Well settled that things which are capable of no use for...