Opinion
Nos. 7677, 7678.
March 15, 1977. Rehearings Denied April 13, 1977. Writ Granted May 26, 1977.
APPEAL FROM 29TH JUDICIAL DISTRICT COURT, DIVISION "B", PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA, HONORABLE THOMAS J. MALIK, J.
Howard P. Elliott, Jr., Baton Rouge, Richard L. Bodet, New Orleans, for State of La. through the Dept. of Public Safety, plaintiff-appellant.
Daniel E. Becnel, Jr., Reserve, for Joseph G. Madere, plaintiff-appellee.
Before REDMANN, GULOTTA and BOUTALL, JJ.
Certain officers of the Louisiana State Police obtained a search warrant for the house and garage of Joseph G. Madere and in execution of the warrant seized 62 slot machines and parts belonging to Madere. The articles seized were stored and application was made to the 29th Judicial District Court, Parish of St. John the Baptist, whence the warrant issued, for a declaratory judgment to ascertain whether the machines could be immediately destroyed by the State Police without a court order under the provisions of LSA-R.S. 15:31. The trial court held that there must be a determination whether or not the machines were being used for illegal gambling within a reasonable time of the seizure and found as a fact that the seized property was taken from Madere's garage where it had been in storage for several years. The State's motion for declaratory judgment was dismissed. The State has appealed.
The companion suit is by Madere against the State for damages. It was agreed that this suit should remain dormant until the declaratory judgment suit should be decided.
The pertinent provisions of LSA-R.S. 15:31 are as follows:
"31. Confiscation and destruction of gambling devices.
"A. All law enforcement officers of municipal forces, sheriffs' departments and the division of state police are hereby authorized and empowered and it is made mandatory and compulsory on their part to confiscate and immediately destroy all gambling devices or machines used for gambling that come to their attention.
"B. As used, in this section the term 'gambling device' means: (1) any slot machine; or (2) any machine, mechanical or electronic device of any sort whatsoever with a cash automatic payout device; or (3) a pinball or other ball machine, mechanical or electronic device equipped with a mechanism to release the number of free games or replays and a mechanism to record the free games or free plays so released.
"C. Whenever any other machine, mechanical or electronic device, including but not limited to roulette wheels and similar devices, designed and manufactured primarily for use in connection with gambling, and (1) which, when operated, may deliver, as the result of the application of an element of chance, any money or property, or (2) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property, is used to conduct gambling, then following the conviction of any person for the crime of gambling by use of any such machine or device, the court wherein the verdict of guilty was returned shall order the immediate destruction of the machine or device by the proper law enforcement agency of the parish wherein the machine or device was used for gambling.
"D. Whenever any machine or other mechanical or electronic device of any kind whatsoever, not designed and manufactured primarily for use in connection with gambling, including specifically but not limited to coin-operated bowling games, shuffle alleys, mechanical baseball games, pinball games, mechanical guns, electronic ray guns, digger type machines, iron claws, and all similar types of coin-operated games, is used to conduct gambling, then following the conviction of any person for the crime of gambling by use of any such machine or device, the court wherein the verdict of guilty was returned shall order the immediate destruction of the machine or device by the proper law enforcement agency of the parish wherein the machine or device was used for gambling."
. . . . .
We agree with the facts found herein that the machines were not "used for gambling", and, as a result they are not subject to confiscation and immediate destruction under LSA-R.S. 15:31.
There is no basic dispute here as to the facts. According to Madere, the machines were stored for 10 years or more, were covered with dust and cobwebs, were in many cases inoperable and were not being used. The State concedes that the machines were in storage and not being used for gambling, but asserts some were being repaired by Madere. No criminal charges have been filed against Madere.
The issue here is the application of the law set out in LSA-R.S. 15:31 as amended by Act 130 of 1972, particularly the interpretation of that portion of Subsection A which mandates law enforcement officers to confiscate and immediately destroy "all gambling devices or machines used for gambling". The State contends that the phrase "used for gambling", modifies only the word "machines", and reasons that gambling devices are not required to be used for gambling. Madere contends that the phrase "used for gambling" modifies both words "devices or machines" and hence his non-used slot machines are not subject to destruction.
In the interpretation of statutory law we are governed by certain basic rules provided by the legislature itself. Where the language is clear and unambiguous, as statute must be held to mean what it plainly expresses in accordance with its context. The court cannot give its language a different interpretation from that which the words used clearly import. R.S. 1:3, La.C.C. Art. 14. We cannot disregard the letter of a law under the pretext of pursuing its spirit. R.S. 1:4, La.C.C. Art. 13.
An examination of LSA-R.S. 15:31 as presently enacted reveals that the words "machines and devices" are used interchangeably and as synonyms, and that the phrase "used for gambling" modifies both. This is not only the plain interpretation of the statute but is the only one clear and free from ambiguity. The statute clearly provides for three classes of devices or machines and the procedure governing each class. The first is set out in subsections A B: those devices or machines (slot machine, etc.) described in B are to be immediately destroyed: § A when used for gambling. The second in subsection C: those devices or machines designed primarily for use in connection with gambling, when used in gambling are to be immediately destroyed after conviction of any person for the crime of gambling by their use. The third is subsection D: those devices or machines not designed primarily for use in connection with gambling, when used in gambling are to be immediately destroyed after conviction of any person for the crime of gambling by their use.
In each class, it is the use of the device for gambling which creates its illegal status and causes its subsequent destruction. The separation into three classes is consistent with the nature of the device and the conditions of its destruction. The first class includes by definition those devices which by their construction automatically arrange a pay-off or provide for a return of winnings, and when used for gambling the device itself completes the illegal act. The second and third classes require the activity of some person to complete the illegal act of gambling, but differ in their intended primary use.
To maintain the suggested statutory construction or interpretation proposed by the State not only destroys the consistency and clarity of the statute, but it creates ambiguity and an insoluble dilemma. Subsection A provides for mandatory destruction. It cannot be said to provide this destruction only for gambling devices because the plain wording also provides for immediate destruction of "machines used for gambling". Yet subsections C and D would prohibit immediate destruction and require criminal conviction. Such a direct conflict places law enforcement officials in the position of having to choose one of two opposite courses of action. Arguably, this conflict is solved by simply reading those words "machines used for gambling" right out of the statute and ignoring them. It is not reasonable to conclude that the legislature intended these words to be meaningless.
Both parties have referred us to the prior statutory and jurisprudential authorities considered pertinent for aid in interpretation of the statute. Appellant relies strongly on the prior legislative history of R.S. 15:31, and appellee equally as strongly on Gascon v. State, 263 So.2d 81 (La.App. 1st Cir. 1972). Suffice it to say that the change in R.S. 15:31 from its composition under Act 311 of 1966 to its present composition under Act 130 of 1972 was more than a simple deletion of the phrase "and that they may find in operation". The change was a broad revision of the entire prior law, setting up an entirely new system, which we must consider on its own. The legislative history of a statute is only pertinent where there is ambiguity or uncertainty in the meaning of the present statute. For similar reasons, the case of Gascon v. State is not controlling here. It interpreted a greatly different statute.
In summation, we find LSA-R.S. 15:31 should be interpreted under its clear definition of three classes of machines or devices which are used for gambling as outlined above. The facts in this case show no use for gambling and we hold that these machines or devices are not subject to mandatory immediate destruction.
Based on this finding, and in consideration of the procedural posture of this case, there is no basis to consider the constitutional question of due process. The police in this case did obtain a warrant from the court and did provoke a court hearing.
For the reasons assigned above, the judgment of the trial court is affirmed.
AFFIRMED.
I dissent.
I agree with the State's contention that a slot machine is a "gambling device" as defined in Section B. of the applicable statute; and, that the State Police are mandated to seize and destroy these machines although not in "use" of "used for gambling" at the time of seizure.
LSA-R.S. 15:31(A) empowers and mandates the State Police to "immediately destroy all gambling devices or machines used for gambling that come to their attention." LSA-R.S. 15:31(B) defines the term "gambling device" as either a "slot machine" or a machine "with a cash automatic payout device" or "a pinball or other ball machine, mechanical or electronic device" with mechanisms to release and record free games or free plays. No provision for a hearing prior to destruction of the machines is required in these two sections. LSA-R.S. 15:31(C) however, provides that "any other machine, mechanical or electronic device . . . designed and manufactured primarily for use in connection with gambling" can only be destroyed pursuant to a court order "following the conviction of any person for the crime of gambling by use of any such machine or device." Similarly, LSA-R.S. 15:31(D) provides for post-conviction destruction pursuant to a court order of "any machine or other mechanical or electronic device of any kind whatsoever, not designed and manufactured primarily for use in connection with gambling."
Reading these sections in pari materia, I conclude that the Legislature contemplated a distinction between "gambling devices" and "machines used for gambling". The category of "gambling devices" defined in Section B. consists of machines which can only be used for the unlawful purpose of gambling. Slot machines are specifically included in this category. On the other hand, the category of "machines used for gambling" consists of any other machines, not exclusively illegal, that can be used, "primarily" or otherwise, for gambling purposes. The statutory provisions defining and differentiating the two types of devices lead to a conclusion that the legislature did not intend to provide for a hearing prior to destruction of such devices which can only be used for illegal purposes (in this case, slot machines). I find further manifestation of this Legislative intent in Act 130 of 1972, amending LSA-R.S. 15:31, which provides in its title as follows:
". . . to define the term 'gambling device' and to provide for confiscation and destruction of such devices; to provide for the destruction of machines and devices not primarily designed for gambling after conviction of any person for the crime of gambling by use of such machine or device . . ." (emphasis supplied).
The machines seized in the instant case were housed in the owner's garage and dwelling; and the State admits that the devices were not in actual operation at the time of seizure. Accordingly, the owner argues that the machines were not susceptible to seizure and destruction because the phrase "used for gambling" in the statute modifies the phrase "gambling devices or machines" and, therefore, the statute requires that the devices be actually in use for gambling purposes in order to be destroyed. I disagree. I interpret the phrase "used for gambling" to modify the word "machines" immediately before it and not, as contended by Madere, the phrase "gambling devices or machines".
In support of his argument that the machines must be in operation at the time of seizure, Madere relies on Gascon v. State, Department of Public Safety, 263 So.2d 81 (La.App. 1st Cir. 1972). The decision in Gascon, however, was based on Act 311 of 1966, as incorporated in LSA-R.S. 15:31, which provided for the seizure and destruction by the State Police of "all gambling devices or machines used for gambling that may come to their attention and that they may find in operation" (emphasis supplied). The court, in Gascon, concluded that machines covered with cobwebs were not "in operation" as required by the statute as a prerequisite to destruction and could not be seized.
In Act 130 of 1972, however, the Legislature amended LSA-R.S. 15:31 by deleting the phrase "and that they may find in operation" and added the provisions differentiating "gambling devices" from "machines used for gambling". In view of this statutory change, Gascon is no longer authority in support of Madere's claim. I conclude that LSA-R.S. 15:31 provides for destruction of the slot machines seized under the circumstances of this case, though they were not in use. Accordingly, under the statute the machines can be summarily destroyed by the police without the necessity of obtaining a court order authorizing destruction.
See Schimpf v. Thomas, 204 La. 541, 15 So.2d 880 (1943), where the provision of the slot machine statute (Act 231 of 1928) was substantially similar to the pertinent provision of Act 130 of 1972. The court held that the machines could be confiscated whether they were in operation or not.
However, a more serious question is whether the statute violates the due process clauses of the U.S. and State Constitutions because of the failure to provide a hearing prior to destruction of the gambling devices.
U.S.Const., XIV Amendment, Sec. 1; La. Const. of 1974, Art. 1, Sec. 2.
In State v. Ricks, 215 La. 602, 41 So.2d 232, 234 (1949), the Louisiana Supreme Court was confronted with a due process attack on the constitutionality of Act 231 of 1928 which authorized and mandated police officers "to confiscate and immediately destroy all gambling devices known as slot machines that may come to their attention, or that may find in operation". Act 231 of 1928 contained no provisions for notice or hearing. In upholding the constitutionality of the statute, the court noted that slot machines are "contraband" and, therefore, "proper subjects for summary confiscation and destruction under the police power of the state". Because contraband is property which is not susceptible to ownership, the court concluded that the possessor of it has no due process rights in it. Citing Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894); Samuels v. McCurdy, 267 U.S. 188, 45 S.Ct. 264, 69 L.Ed. 568 (1925) and Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887), the court reiterated the principle that a state under its police power has the right to summarily destroy nuisances and other things obnoxious to the public good. Applying this doctrine to slot machines, the court said:
"* * * Suffice it to say that the legislative intent is clear that gambling devices of that character [slot machines] are outlawed as contraband and their summary confiscation is ordered as an effective means of carrying out the mandate of the Constitution for the suppression of gambling.
"In addition, it is plain that the Legislature, in the exercise of its police power, had the right to declare that gambling slot machines should be confiscated. * *
"And the fact that destruction of the slot machine is ordered without notice or hearing does not render the statute unconstitutional as depriving any claimant thereto of due process — as he cannot have or acquire property rights in the condemned article."
I subscribe to the holding in Ricks. The subsequent amendments to the statute, including Act 130 of 1972, have not lessened the authority of the Ricks case. Accordingly, I would conclude that the statute's provision for the summary destruction of slot machines does not violate the due process provision of the Federal and State Constitutions.
I further find no merit to the owner's contention that summary destruction of the seized machines will deprive him of his "day in court". In the rare instance that properties seized were not slot machines, the owner would still have the opportunity to bring a suit against the individual police officers and the Department of Public Safety for damages resulting from their wrongful seizure. As the court stated in Ricks:
"* * * In the first place, there cannot be any mistake about the type of device declared contraband by the statute and it is not to be presumed that any officer would seize and destroy anything other than the gambling slot machines condemned by the Legislature. But, should he do so, his act would not render the statute unconstitutional. In such case the offending officer would be amenable to prosecution for violation of the criminal statutes of the State respecting offenses against property * * * and would also be civilly liable for his unlawful act."
The Louisiana Legislature has seen fit to condemn gambling as a vice and LSA-R.S. 15:31 as amended by Act 130 of 1972 has been passed as a means to suppress that vice. Slot machines, according to this statute, are to be summarily destroyed. The authority rests within the police power of the State. La.Const. Art. 1, Sec. 4. See Vaughan v. Dowling, 243 La. 390, 144 So.2d 371, 376 (1962).
Accordingly, I would reverse the judgment of the trial court and would render judgment in favor of the State of Louisiana, declaring that LSA-R.S. 15:31 empowers and mandates the proper authority to confiscate and immediately destroy, without a hearing, slot machines.