Parry v. Crosby

• Decision Date: 25 August 1941
• Docket Number: 6225
• Court: Utah Supreme Court
• Parties: PARRY v. CROSBY, Justice of the Peace, et al

116 P.2d 411

100 Utah 496

PARRY v. CROSBY, Justice of the Peace, et al

No. 6225

Supreme Court of Utah

August 25, 1941

Appeal from District Court, Sixth District, Kane County; Henry D Hayes, Judge.

Prohibition proceeding by Whitney Parry against J. H. Crosby, as Justice of the Peace of Kanab Precinct, Kane County, State of Utah and others. From an order denying a writ of prohibition plaintiff appeals.

Affirmed.

Harley W. Gustin, of Salt Lake City, for appellant.

Joseph Chez, Atty. Gen., and S.D. Huffaker, Deputy Atty. Gen., for respondents.

WOLFE Justice. McDONOUGH, J., PRATT, Justice, concurring. LARSON, Justice, MOFFAT, Chief Justice, dissenting.

OPINION

WOLFE, Justice.

Appeal from an order of the District Court of Kane County, denying a writ of prohibition against the defendants. The action grows out of the following facts:

Plaintiff, Whitney Parry, and his brother C. G. Parry, were co-partners operating a hotel in Kanab, Utah, known as "Parry Lodge." In June, 1939, the lodge was being rented and used exclusively by a motion picture company. During that time signs were posted indicating that the lodge was closed to the public. Meals, room, bar, and janitorial services were furnished by the partnership. The four slot machines involved in this action were located in the bar room. The machines were of the common type operated by the pulling of a lever after inserting a coin of the required denomination.

On June 12, 1939, the sheriff, one of the defendants, filed an affidavit before the Justice of the Peace, defendant Crosby, swearing on information and belief that plaintiff had certain slot machines in the lodge which were being operated contrary to law. This affidavit bore the title, "State of Utah v. Whitney Parry." The Justice of the Peace then issued a writ of attachment commanding the sheriff to attach and keep the slot machines until disposed of by order of court. The sheriff seized and carried off the four devices on that date. Plaintiff denied that a copy of the writ or other instrument had been served upon him. After the seizure the Justice of the Peace issued an order directing plaintiff to appear and show cause why the machines should not be destroyed and the money therein (about $ 600) forfeited to the County. Before time for hearing in the Justice's court on the order to show cause, this action for a writ of prohibition was commenced in the district court. After hearing, the writ was denied.

The only issue before this court is whether or not a writ of prohibition will lie to enjoin the Justice's court from exercising jurisdiction over the slot machines seized by the sheriff in the manner hereinbefore described. This involves the construction of Sec. 103-25-1, R. S. U. 1933, and the procedure to be followed in forfeiting or destroying slot machines as gambling devices under that section. That statute reads:

"Every person who deals or carries on, opens or causes to be opened, or who conducts, either as owner or employee, whether for hire or not, any game of faro, monte, roulette, lansquenet, rouge et noir, rondo, or any game played with cards, dice or any other device, for money, checks, credit or any other representative of value is guilty of a felony, and it shall be the duty of all sheriffs, constables, police and other peace officers whenever it shall come to the knowledge of such officer that any person has in his possession any cards, tables, checks, balls, wheels, slot machines or gambling devices of any nature or kind whatsoever used or kept for the purpose of playing for money, or for tokens redeemable in money, at any of the games mentioned in this chapter, or that any cards, tables, checks, balls, wheels, slot machines or gambling devices used or kept for the purposes aforesaid may be found in any place, to seize and take such cards, tables, checks, balls, wheels, slot machines or other gambling devices, and convey the same before a magistrate of the county in which such devices shall be found; and it shall be the duty of such magistrate to inquire of such witnesses as he shall summon or as may appear before him in that behalf touching the nature of such gambling devices, and, if such magistrate shall determine that the same are used or kept for the purpose of being used at any game or games of chance described in this chapter, it shall be his duty to destroy the same." (Italics added.)

The words of the statute pertinent to this case simply say that the officer shall seize the property whenever it comes to his knowledge that they are in the possession of any person, used or kept for gambling purposes. Nothing is said about a search warrant. Nothing is said about seizure in connection with the arrest of the owner or other person charged with gambling or operating the devices. Nothing is said which would allow an exception in the instant case merely because the lodge was being used exclusively by one group of people. The scope of the statute is two-fold: The first part makes it a crime to operate any of the games listed. The second part makes it the duty of peace officers to summarily seize gambling devices therein enumerated which are used or kept for gambling purposes and convey them before a magistrate who shall determine if they were used or kept for such purposes.

Statutes authorizing the summary seizure of such devices have been upheld in numerous decisions by courts in other jurisdictions. The case of Durant V. Bennett, D. C. 54 F.2d 634, 638, involved an application to the Federal court to enjoin the state officials of South Carolina from enforcing a statute upon the ground it violated the Fourteenth Amendment to the Federal Constitution. The section of the statute cited by the court as being in issue, reads:

"Any vending or slot machine * * * prohibited by this Act shall be seized by any officer of the law and at once taken before any Magistrate of the County in which such machine is seized, who shall immediately examine same, and if he is satisfied that such vending or slot machine is in violation of this Act or any other law of this State, he shall direct that said machine be immediately destroyed." Act S. C. May 9, 1931, 37 St. at Large, p. 369, § 3.

Commenting on this statute, the Federal court said:

"There is no doubt that the procedure outlined in section 3 is very drastic and summary. It provides that the machine may be taken before a magistrate who shall examine the same, and, if he comes to the conclusion that the machine is a gambling device, he may order it to be summarily destroyed. There is no provision for a hearing by the magistrate. There is no provision for the defendant to test the accuracy or wisdom of the magistrate's decision. It is certainly a drastic remedy. But, when we take into consideration the evil which this statute seeks to remedy, we do not think that it violates the due process clause of the Fourteenth Amendment."

The decision in Durant V. Bennett, supra, is adopted in toto by the Supreme Court of South Carolina in construing the same statute in State ex rel. Daniel V. Kizer, 164 S.C. 383, 162 S.E. 444, 81 A. L. R. 722. See also Stanley-Thompson Liquor Co. V. People, 63 Colo. 456, 168 P. 750.

Mullen & Co. V. Moseley, 13 Idaho 457, 90 P. 986, 987, 12 L.R.A., N.S. 394, 121 Am. St. Rep. 277, 13 Ann. Cas. 450, has been cited in many decisions dealing with this issue. That case involved an action in replevin against a sheriff to recover slot machines. The sheriff had proceeded under a statute which made it the duty of a judge whenever he "shall have knowledge or shall receive satisfactory information that there is any gambling * * * device" to issue a warrant directing the sheriff "to seize and bring before him such gambling * * * device, and cause the same to be publicly destroyed, by burning or otherwise." In that case the court stated that while a man's property may not be taken without due process of law, he may not invoke this guaranty when he seeks his day in court to dispute with officers of the law the right of possession of instrumentalities directed against society. It then said:

"In such case there can be no doubt of the power of the Legislature to authorize a summary seizure and destruction of such instrumentalities and devices." (Italics added.)

One view adopted by courts upholding such summary seizures is that

"where gambling implements and apparatus are determined by the legislature to be dangerous and pernicious to the public welfare, they are not property which is subject to the protection of the law, but cease to be regarded as property within the meaning of the due process clause and are liable to seizure, forfeiture, and destruction." 24 Am. Jur. 437.

In Board of Police Commissioners V. Wagner, 93 Md. 182, 48 A. 455, 457, 52 L.R.A. 775, 86 Am. St. Rep. 423, such seizures are approved as an effective and necessary medium of crime prevention, the court placing slot machines in a category with burglar's tools, and saying:

"The duty to prevent crime carries with it in such a case the power to summarily seize the offending article."

We do not adopt the cases above cited as authority for more than the seizure in a summary manner. Certainly after being seized, the destruction or forfeiture of the devices can only be ordered by the magistrate whose duty it is to determine the purpose for which they were kept or used.

That slot machines of the type involved in this case are gambling devices has been held in numerous cases. Courts have so held even in the light of evidence that some machines were of a type capable of incidental nongambling functions. Guarnera V. Lee County, 285 Ill.App. 238, 1 N.E.2d 98; Rogers V. Douglass, 181 Okla 32, 72 P.2d 823; Enloe V. Lawson, 146 Ore. 621, 31 P.2d 171; 18...