J.B. Mullen & Co. v. Mosley

• Decision Date: 06 June 1907
• Citation: 13 Idaho 457,90 P. 986
• Parties: J. B. MULLEN & COMPANY, Appellants, v. D. H. MOSELEY, Sheriff, Respondent
• Court: Idaho Supreme Court

90 P. 986

13 Idaho 457

J. B. MULLEN & COMPANY, Appellants, v. D. H. MOSELEY, Sheriff, Respondent

Supreme Court of Idaho

June 6, 1907

REPLEVIN OF NUISANCE-ANTI-GAMBLING LAW-GAMBLING DEVICES-SLOT MACHINES-SUMMARY SEIZURE AND DESTRUCTION OF GAMBLING DEVICES-CONSTITUTIONALITY OF ANTI-GAMBLING LAW-POLICE POWER-DUE PROCESS OF LAW.

1. Replevin will not lie to recover gambling devices known as "slot machines," the same being incapable of use for any purpose except in violation of the anti-gambling law. (Act Feb. 6, 1899; Sess. Laws 1899, p 309.)

2. A litigant will not be heard in a court of justice to wage his action against an officer of the law over the right of possession of an instrument or device designed and intended only for use in the commission of crime.

3. The act of February 6, 1899, commonly known as the anti-gambling law, is not in conflict with section 13 of article 1 of the state constitution as depriving the citizen of his property without due process of law.

4. Section 4 of the anti-gambling act, which authorizes the summary seizure and destruction of gambling devices, is a constitutional and legitimate exercise of the police power of the state for the suppression and prevention of crime and the protection of the public morals and welfare of the state.

5. The police authorities of the state may be properly invested with power and authority to seize and destroy public nuisances and to seize such instruments and devices as are designed and intended for use in the commission of crime.

6. A "slot machine," incapable of use for any purpose except in violation of the penal provisions of the anti-gambling law, is not property within the meaning and protection of section 13, article 1 of the state constitution, which provides that "no person shall be deprived of life, liberty or property without due process of law."

7. The police power of the state extends to everything necessary or essential to the due and ample protection of the public morals and the maintenance of the peace and quiet of the state as well as to the protection of life and property, and in the exercise of that power the state may authorize its officers to summarily abate and destroy nuisances and those things specifically designed and prepared for the commission of crime.

8. Gambling itself was a nuisance at common law, and is a crime under the statutes of this state, and the machines instruments and devices designed and intended for carrying on such nuisance and crime are themselves nuisances.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District for the county of Ada. Hon. Geo. H. Stewart, Judge.

Action in replevin by the plaintiffs for the recovery of the possession of a number of "slot machines." Judgment for defendant and plaintiffs appealed. Affirmed.

Judgment of the trial court affirmed. Costs awarded in favor of the respondent.

Hawley, Puckett & Hawley, for Appellants.

The real and only material issue involved in this case is as to constitutionality of section 4847 of the Penal Code (1901), which, we contend, is contrary to section 13 of article 1 of the constitution, in that it does not provide for taking property by due process of law, or any process of law whatever; and even though it might be claimed from the reading of the section itself that it was the intention of the legislature that the justice issuing the warrant should destroy the property by due process of law, in this particular case we contend that the justice ordered the property destroyed without the process of law, and that the whole proceeding was ex parte, and that there was no notice of any kind given to the plaintiff of such action, and that the plaintiff never had his day in court, as shown by the answer itself. (Ieck v. Anderson, 57 Cal. 251, 40 Am. Rep. 115; State v. Robbins, 124 Ind. 308, 24 N.E. 978, 8 L. R. A. 438; Chauvin v. Valton, 8 Mont. 451, 3 L. R. A. 194, 20 P. 658; Brown v. City of Denver, 7 Colo. 305, 3 P. 455; Stuart v. Palmer, 74 N.Y. 183, 30 Am. Rep. 289; Thomas v. Gaine, 35 Mich. 155, 24 Am. Rep. 535; Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616; County of San Mateo v. Southern Pacific Ry. Co., 13 F. 722, 8 Saw. 238; Colon v. Lisk, 153 N.Y. 188, 60 Am. St. Rep. 609, 47 N.E. 302; Lowry v. Rainwater, 70 Mo. 152, 35 Am. Rep. 420.)

We do not think that there can be a case found anywhere in the reports wherein the courts of any state in the Union have held that a provision of this kind is constitutional, unless by the act itself it declares the property to be destroyed a nuisance.

The section of this act authorizing the issuance of the warrant cannot be sustained, for the reason that it authorizes the issuance of a warrant which is in effect a search-warrant, without probable cause supported by oath or affirmation, and is therefore directly in conflict with section 17, article 1, constitution of Idaho. (Garland Novelty Co. v. State, 71 Ark. 138, 71 S.W. 257.)

Chas. F. Koelsch and R. P. Quarles, for Respondent.

The stipulation of facts stipulates the appellants out of court. By their solemn admission these slot machines are instruments of crime, adapted only to unlawful uses. This shows them to be what the law regards as "outlawed" property, incapable of ownership by anyone, and such property as courts will not lend their aid to recover, especially from officers of the law whose duty it is to prevent and punish crime. Replevin will not lie in such case. (Spaulding v. Preston, 21 Vt. 10, 50 Am. Dec. 68; Board of Police Commrs. v. Wagner, 93 Md. 182, 86 Am. St. Rep. 423, 48 A. 455, 52 L. R. A. 775; State v. Robbins, 124 Ind. 308, 24 N.E. 978, 8 L. R. A. 438.)

The most effectual way of preventing crime is to seize the instruments by which that crime is committed and summarily destroy them, and state statutes authorizing such seizure do not conflict with the constitution. (Lawton v. Steel, 119 N.Y. 226, 16 Am. St. Rep. 813, 23 N.E. 878, 7 L. R. A. 134; S. C., 152 U.S. 133, 38 L.Ed. 385, 14 S.Ct. 499; Board etc. v. Wagner, 93 Md. 182, 86 Am. St. Rep. 423, 48 A. 455, 52 L. R. A. 775; Garland Novelty Co. v. State, 71 Ark. 138, 71 S.W. 257; State v. Soucie's Hotel, 95 Me. 518, 50 A. 709; Frost v. People, 193 Ill. 635, 86 Am. St. Rep. 352, 61 N.E. 1054; Furth v. State, 72 Ark. 161, 78 S.W. 759; Glennon v. Britton, 155 Ill. 232, 40 N.E. 594; Boble v. People, 173 Ill. 19, 64 Am. St. Rep. 64, 50 N.E. 322; Wagner v. Upshur, 95 Md. 519, 52 A. 509, 93 Am. St. Rep. 412; Bales v. State, 3 W.Va. 687; State v. O'Neil, 58 Vt. 163, 56 Am. Rep. 557, 2 A. 586; Deems v. City of Baltimore, 80 Md. 173, 45 Am. St. Rep. 339, 26 L. R. A. 541; 25 Am. & Eng. Ency. of Law, 2d ed., 146.)

The statute under consideration is purely a police regulation adopted to protect the citizen in his property and to promote good morals.

AILSHIE, C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

This action was commenced by the plaintiffs to recover a number of "slot machines" from the defendant, who was then sheriff of Ada county. The cause was determined in the district court on an agreed statement of facts, and judgment was entered against the plaintiffs and in favor of the defendant for his costs. The plaintiffs have appealed from the judgment. It is stipulated, among other things, as follows:

"That on or about the 23d day of March, 1905, plaintiff was and now is the owner of the following described personal property, to wit:

"Six (6) Mills' slot machines, numbered, 8,592, 6,171, 12,232 8,392, 751 and 661, respectively, one (1) Wattling machine and two Gable slot machines of the value, if of any value at all, of one hundred and twenty-five ($ 125.00) dollars.

"That said defendant came into the possession of said property lawfully.

"That before the commencement of this action, to wit, on the 20th day of January, 1906, plaintiff demanded the possession of said property from the defendant, but to deliver the same, or any part thereof, defendant refused and still refuses, and withholds the possession thereof from the plaintiff, to his damage, if to his damage at all, in the sum of one ($ 1.00) dollar. . . .

"That said property above described are gambling devices, and were devised, and are designed and constructed for the sole and only purpose of playing games of chance for money, and are not adapted to any other use, or for any other purpose; and are devised and adapted solely, entirely and only to the betting of money, at which money is lost or won, and are not capable, susceptible or fitted to be devoted or used in, or for any other purpose or purposes.

"That at the time said machines were originally seized by Constable A. Anderson, and for some days prior thereto, said machines were all being used for the sole purpose of playing games of chance at which money was bet, and won or lost, in Boise, Ada County, Idaho.

"That on the 22d day of October, 1904, information in writing and under oath, was presented to W. C. Dunbar, a duly elected, qualified and acting Justice of the Peace in and for Boise Precinct No. 2, Ada County, Idaho as such Justice of the Peace, that gambling devices, to wit, the slot machines mentioned and described herein, were within the City of Boise, Ada County, Idaho and within the jurisdiction of said Justice of the Peace, and were then and there in operation, and used as such gambling devices, and particularly described said machines, and the places where the machines were then situate.

"That thereupon said Dunbar as and acting as such Justice of the Peace, thereafter issued warrants directed to the Sheriff or any Deputy Sheriff or Constable of said county, commanding that the said gambling devices, the said slot machines mentioned and described herein, and other slot machines, be...