State v. Equipment, Civil 3472

• Decision Date: 28 January 1935
• Docket Number: Civil 3472
• Citation: 45 Ariz. 112,40 P.2d 746
• Parties: STATE OF ARIZONA, Appellant, v. GAMBLING EQUIPMENT, Appellee
• Court: Arizona Supreme Court

40 P.2d 746

45 Ariz. 112

STATE OF ARIZONA, Appellant, v. GAMBLING EQUIPMENT, Appellee

Civil No. 3472

Supreme Court of Arizona

January 28, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. Henry C. Kelly, Judge. Judgment modified and affirmed.

Mr Renz L. Jennings, County Attorney, Mr. A. David Latham Deputy County Attorney, and Mr. Arthur T. La Prade, Attorney General of the State of Arizona, for Appellant.

Mr Herman Lewkowitz and Mr. J. B. Zaversack, for Appellee.

OPINION

ROSS, J.

On June 7, 1933, one John Grayson was arrested by the sheriff of Maricopa County upon a warrant issued out of the superior court of said county charging him with carrying on keeping or maintaining a gambling house at No. 28 South Central Avenue, Phoenix, known as the Avalon Club. At the time of the execution of the warrant of arrest the said sheriff, under a search warrant issued out of the same court, searched said club for gambling equipment and therein found the following articles: A crap table, a roulette wheel, a roulette table, four card tables numerous chips, three decks of cards, and one set of dice. Later, on June 24th, Grayson pleaded guilty to an information charging him with such offense and was fined.

Thereafter the county attorney of Maricopa county, Renz L. Jennings, filed a complaint in said superior court entitled, The State of Arizona v. Gambling Equipment, in which he detailed the above facts and some others immaterial to be stated, and prayed that the court issue an order to Grayson to show cause why said gambling equipment should not be destroyed by the sheriff. Grayson appeared and answered, and in his answer denied that said property was used by him for gambling purposes, or that it was only suitable for that purpose, and asked that it be returned to him. The court, after considering the case, denied both prayers -- the county attorney's prayer on the ground that there is no statutory law in Arizona authorizing the civil authorities to destroy gambling devices, and Grayson's prayer on the ground that the courts will not help one recover property whose only use can be to violate a criminal law of the state.

The county attorney has appealed from the court's judgment and assigns as error the court's refusal to order the property destroyed.

This proceeding is not authorized by any statute of the state, nor can we find any precedent for it at the common law. It seeks to have gambling implements destroyed under judicial process after notice and hearing to the owner. That it is within the police power of the state to prohibit gambling and to destroy devices and implements used for that purpose is well settled. In the exercise of the power the state may authorize its executive officers summarily to destroy such apparatus, or it may require or provide for a judicial investigation and a court order for such destruction. Both means have been adopted and received court approval. 27 C.J. 1044, § 258; 12 R.C.L. 733, § 34; 20 R.C.L. 487, § 100; 24 R.C.L. 724, § 29; State ex rel. Daniel v. Kizer, 164 S.C. 383, 162 S.E. 444, 81 A.L.R. 722, and note at page 730, where are collated the cases sustaining state laws authorizing the destruction of gambling devices. It is said by the annotator in the above note (81 A.L.R. 730):

"... Statutes have been passed in practically all the states and in England, which prohibit, with greater or less degree of particularity, the carrying on of such games, and punish the offender with fine or imprisonment, or both. Great diversity exists in the details of the various state statutes regulating the offense, giving rise to no little conflict of judicial opinion, which is necessarily irreconcilable. Therefore, before a decision of one state is used as an authority in another, a comparison of the respective statutes of such states should be made. 12 R.C.L., p. 708, § 3. The constitutionality of statutes providing for the destruction of gambling apparatus and devices has, however, with one exception, been uniformly upheld."

We have found no case, and we think we have examined most of them that has, without enabling legislation, sustained or approved of the destruction of gambling devices by executive officers or otherwise. All the cases upholding such power do so upon an express legislative grant of authority. In Arizona the legislation goes no further than to impose a fine or imprisonment, or both, on persons violating the gambling laws of the state. Sections 4671-4676, Rev. Code 1928. It gives to neither the executive officers of the state nor the judiciary the power or right to destroy equipment used for gambling purposes. Police regulations properly emanate from the legislature (Bacon v. Malker, 204 U.S. 311, 27 S.Ct. 289, 51 L.Ed. 499), and, until that body sees fit to adopt as one of the means to suppress the evil of gambling the destruction of devices used for that purpose, the other departments are helpless. They must act...