Lowry v. Rainwater

• Decision Date: 31 October 1879
• Citation: 70 Mo. 152
• Parties: LOWRY v. RAINWATER et al., Appellants.
• Court: Missouri Supreme Court

70 Mo. 152

LOWRY

v.RAINWATER et al., Appellants.

Supreme Court of Missouri.

October Term, 1879.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

E. T. Farish for appellant.

1. The power conferred by the act is the police power of the State. It is invoked for the preservation of public morals. It is of the same nature as the power to suppress nuisances, preserve health, prevent fires and enforcement of quarantine laws. The safety of society is the paramount law. Public exigency may require summary destruction, and the police power is of necessity despotic in its character, commensurate to the sovereignty of the State. Potter's Dwarris on Stat., p. 450; Cooley on Const. Lim., p. 596; Tanner v. Trustees of Albion, 5 Hill 121; Comm. v.Colton, 8 Gray 488. The destruction of property constituting a common law nuisance, when committed for the public safety or health, is sanctioned. In abolishing a nuisance, property may be destroyed and the owner deprived of it without trial, without notice and without legal compensation. Manhattan Manfg. Co. v. Van Keuren, 23 N. J. Eq. 251; Coe v. Schultz, 47 Barb. 64; Potter's Dwarris on Stat., 444; Cooley on Const. Lim., 572; Guillotte v. New Orleans, 12 La. Ann. 432; Mayor of Mobile v. Zuille, 3 Ala. 137. The proceeding authorized by this act is a summary process of abatement, authorized and growing out of the necessity of the case. Hart v. Mayor of Albany, 9 Wend. 571.

2. The setting up or keeping of any gaming device is strictly prohibited, and is a highly penal offense in this State. Wag. Stat., § 16, p. 501; § 18, p. 502. And there can be no property in anything malum per se, in an obscene book or picture, gambling devices, &c., and the law does not recognize property in obscene prints or immoral instruments. They are public nuisances, and any one may destroy them, taking the risk only of establishing the immoral character of the article destroyed. Phillips v. Allen,41 Pa. St. 481.

3. Without this power the police authorities are powerless to suppress a noxious element in society or effectually reach and destroy the implements and devices with which the gambler plies his avocation. Nor is this proceeding a deprivation of property, without compensation or due process of law, in the sense of the constitution. It is a destruction for the public safety or health (or morals), and really for the prevention of its noxious or unlawful use. This summary process of abatement is authorized by common law, is “due process of law.”

John D. Johnson for defendant in error.

Section 7 of said act is in contravention of sections 17 and 18 of the then State constitution, inasmuch as it interferes with the citizen's inviolable right of trial by jury, his right in criminal prosecutions to be heard by himself and counsel, and seeks to deprive him of his property otherwise than by the judgment of his peers or the law of the land. Wag. Stat., §§ 17, 18, p. 36; Dartmouth College v. Woodward, 4 Wheat. 519, 581; Ames v. Port Huron, &c., Co., 11 Mich. 139; Hibbard v. People, 4 Mich. 126; Greene v. Briggs, 1 Curtis C. C. 332; Fisher v. McGirr, 1 Gray 1; Parsons v. Russell, 11 Mich. 129; Ervinc's Appeal,16 Pa. St. 256; State v. Staten, 6 Cold. 244; Cooley's Const. Lim., 356, n. 1; 362, 410, n. 1; Hall v. Marks, 34 Ill. 363; Chandler v. Nash, 5 Mich. 409; Flournoy v. Jeffersonville, 17 Ind. 170; Poppen v. Holmes, 44 Ill. 360; Bullock v. Geomble, 45 Ill. 218; Donovan v. The Mayor, 29 Miss. 247; Rockwell v. Nearing, 35 N. Y. 306; Leavitt v. Thompson, 56 Barb. 543; Van Zant v. Waddel, 2 Yerger 260; Greene v. James, 2 Curtis C. C. 187; State v. Snow, 3 R. I. 64; Beekman v. Saratoga R. R. Co., 3 Paige 45; Gray v. Kimball, 42 Me. 299; Willis v. Legris, 45 Ill. 289; Cooley's Const. Lim., 582, 583, 585; Pomeroy Const. Law, § § 246, 329; Story on Const., § 1954.

HENRY, J.

The petition alleged substantially that on the 19th day of May, 1874, the defendants Watkins, Huthsing, Gardner and Hamilton, at the instigation of defendants Rainwater and Huebler, being by them employed and assisted, with force, &c., broke and entered the house and dwelling of plaintiff in the city of St. Louis, and took and carried away an extension dining table, the property of plaintiff, of the value, &c., and destroyed it to his damage, &c. Defendants pleaded in justification, that the defendant, C. C. Rainwater, was at that time vice-president of the board of police commissioners of the city of St. Louis and acting president, and, as such, under and in pursuance of the act to establish said board, issued his warrant to defendant, Huebler, an officer of the police force; that at said time and at the place named in the petition, there was kept a prohibited gaming table, or other gaming device, of which said acting president had received satisfactory information, and that said officers charged with the execution of said warrant did, in pursuance of said act for the purpose of executing said warrant, break open the doors, and, for that purpose, had the assistance of the other defendants as members of the police force, and that, in pursuance of said act of the General Assembly, they caused said prohibited gaming table to be publicly destroyed, and that the wrong complained of by defendant was the above and no other.

On the pleadings the circuit court rendered judgment for plaintiff, which was affirmed at general term, and on appeal to the court of appeals was by that court affirmed, and is now here on appeal from that judgment. Since this case was decided by the court of appeals, that of McCoy v. Zane was decided by this court, (65 Mo. 13,) wherein this court intimated an opinion that sections 24, 26 and 27, Wag. Stat., 503, are constitutional. These sections are identical with sections 5, 6 and 7 of the act creating the board of police commissioners for the city of St. Louis, except that sections 24, 26 and 27 of the general statutes confer the power upon any judge or justice of the peace, which by the police commissioners' act, is conferred upon the acting president of the board.

Section 5 of the act creating a board of police commissioners provided that: “Whenever the acting president of said board (in the general statutes ‘any judge or justice of the peace’) shall have knowledge or shall receive satisfactory information that there is any prohibited gaming table, or other gaming device, kept or used in the city of St. Louis, he shall have power to issue, and it shall be his duty forthwith to issue a warrant directed to some officer of the police force under said board (in the general statutes ‘to the sheriff or any constable’) to seize and bring before him such gaming table or other gaming device.”

Section 6. “The officer charged with the execution of such warrant shall have power, if necessary, to break open doors for the purpose of executing the same, and for that purpose may have the assistance of the whole police force.”

Section 7. It shall be the duty of such acting president (in the general law “of the judge or justice of the peace') before whom any such prohibited gaming table or gaming device shall be brought, to cause the same to be publicly destroyed by burning or otherwise.”

In McCoy v. Zane the constitutionality of the sections upon which the proceedings of Judge Hendricks were based was not considered by this court, NAPTON, J., observing that “in view of the conclusions we have reached in the case, it is unnecessary to determine the questions which have been so extensively discussed by the counsel in regard to the constitutionality of these statutory provisions.” It is, therefore, in this State, an open question with which we are, in this case, directly confronted. By the general law a judge, or a justice of the peace, and by the act establishing the board of police commissioners, the acting president of the board may issue his warrant directing a constable, or police officer, to bring before him any gaming table or gaming device alleged to be used for gaming purposes, and, without any further investigation, order its destruction. A legislative act which authorizes an officer, without notice to the owner, or even the semblance of a judicial investigation, to seize and destroy the property of a citizen, cannot be sustained under a constitution which declares that “no State shall deprive any person of life, liberty or property without due process of law.” Lord Coke says that the words “ per legem terrae” mean by due process of law, and being brought into court to answer according to law. In the language of Curtis, J., in Greene v. Briggs, 1 Curtis 325, the words “ law of the land” do not mean any act which the assembly may choose to pass. If it did, the legislative will could inflict a forfeiture of life, liberty or property without a trial. The exposition of these words as they stand in magna charta, as well as in the American constitutions, has been that they re...