State v. JOHNSON

• Decision Date: 19 July 1948
• Docket Number: No. 5101,5101
• Citation: 52 N.M. 229,195 P.2d 1017
• Parties: STATE v. JOHNSON et al.
• Court: New Mexico Supreme Court

52 N.M. 229

195 P.2d 1017

STATE

v.JOHNSON et al.

No. 5101.

Supreme Court of New Mexico.

July 19, 1948.

[195 P.2d 1018, 52 N.M. 231]

J. B. Newell, of Las Cruces, for appellants.

C. C. McCulloh, Atty. Gen., and Robert W. Ward, Asst. Atty. Gen., for appellee.

COMPTON, Justice.

The New Mexico State Police seized gambling paraphernlia, devices and equipment in the adjoining club rooms of the Central Cafe and Mint Cafe in Ruidoso, New Mexico, consisting of twenty-one slot machines, three roulette tables and wheels, one chuck-a-luck table, three dice tables, and three Black Jack tables, three poker tables and eight decks of cards, two boxes of poker chips and certain money found in the slot machines allegedly used as part of the gambling operations of said machines.

Proceedings were immediately instituted by the District Attorney against the proprietors of the premises, Ted Johnson and Tommy Hicks, in Cause No. 5371, and Buford Fisher in Cause No. 5372 of the District Court of Lincoln County under the provisions of Section 41-2206, New Mexico Statutes, 1941 Comp., to enjoin and restrain them from thereafter gambling upon the premises. Defendants consented to the entry of an order thus enjoining and restraining them from engaging in gambling on the premises.

Subsequently, the District Attorney instituted this proceeding summarily to abate a public nuisance and destroy the property thus seized. By permission of the court, the defendants in the prior proceedings intervened and urged as a defense, among others, (1) that Sec. 41-2209, New Mexico Statutes, 1941 Comp., provides the exclusive remedy for the abatement of nuisances and the destruction of gambling paraphernalia, devices, equipment, etc., and (2) that in any event, the proceedings in the prior causes constituted a bar to the claims urged here. Appellants also seek restoration of the equipment, devices and paraphernalia.

The trial court made the following findings of fact:

'1. That the gambling paraphernalia described in the complaint was seized by officers of the New Mexico State Police in the performance of their duty and in the enforcement of the laws of the State of New Mexico.

'2. That said gambling paraphernalia was by the New Mexico State police turned over to the Sheriff of Lincoln County for safe keeping and it is now in his possession.

'3. That at the time of the seizure of said gambling paraphernalia, said gamblingparaphernalia was being used for gambling purposes.

'4. That the gambling paraphernalia listed in the complaint together with theequipment therein listed are gambling devices.'

Under the frequently announced rule, findings supported by substantial evidence will not be disturbed upon review. We have examined the record and conclude that the findings are amply supported by the evidence. Consequently the facts for our consideration are those found by the trial court.

The decisive questions for our determination are (1) whether Section 41-2209, supra, affords an exclusive remedy for the abatement of public nuisances and the destruction of gambling devices, equipment, etc., and (2) whether Causes 5371-5372 are a bar to this proceeding.

Under Section 41-2209, supra, where an injunction has issued, gambling paraphernalia, devices, equipment, etc., may be destroyed by order of the district court. From a consideration of this section it is obvious that the statute is merely permissive. It does not purport to modify or impair the common law powers of the courts, summarily to abate a public nuisance.

At 39 A. J. 'Nuisances', the author expresses the rule in the following language:

Sec. 14. '* * * As a rule, statutes declaring certain things to be nuisances which were nuisances at common law are held to be merely declaratory of the common law and not to supersede the common law as to other acts which constitute a public nuisance at common law, nor, as a rule, do statutory remedies for the abatement of nuisances supersede existing common law remedies.'

Sec. 183. 'The summary abatement of nuisances without judicial process or proceeding was well known to the common law long prior to the adoption of the Constitution, and hence, is not within the prohibition of the provisions of that instrument, and exists in the absence of statute. Subject to limitations hereafter stated, the right may be exercised by public officers, municipal corporations, and by private individuals. * * *'

Sec. 187. '* * * Things which are by the common or statutory law declared to be nuisances per se, or which are by their very nature palpably and indisputably such, may be abated or destroyed without notice or hearing. And where a statute so specifically defines what shall constitute a nuisance as to leave no room for latitude on the question, officials are authorized and protected in abating such described nuisances, and no notice of hearing is essential.' (Emphasis ours.)

The former proceeding were directed at certain persons to enjoin and retrain them from gambling upon the premises; whereas, this proceeding is directed against the gambling paraphernalia itself, to abate and destroy it. The former proceedings werein personam, the latter in rem. Separate causes of action are seen to exist.

Courts generally hold that where a single cause of action exists, a judgment between the same part...