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Clark v. Holden

Supreme Court of Mississippi, In Banc
May 26, 1941
191 Miss. 7 (Miss. 1941)

Opinion

No. 34514.

May 26, 1941.

1. REPLEVIN.

Right of plaintiff in replevin to recover slot machines and similar articles held by the defendants depended upon the plaintiff's ability to show that he had such a property right or legal interest therein as to be entitled to immediate possession thereof without regard to whether the possession of the defendants was wrongful.

2. REPLEVIN.

Plaintiff could not maintain replevin action for recovery of slot machines and similar machines and devices which had been seized by police, since under statute no property right could exist in the plaintiff and the possession by the plaintiff of such machines was unlawful (Laws 1938, chap. 353, secs. 1-3).

3. CONSTITUTIONAL LAW.

The legislature has the power to render possession or ownership of slot machines and similar devices unlawful and to provide for their seizure and destruction without violating the "due process of law" clause of the Fourteenth Amendment (Laws 1938, chap. 353; U.S. Const. Amend. 14).

4. CONSTITUTIONAL LAW.

Although under the Fourteenth Amendment a state cannot deprive one of his property without "due process of law," in determining what is due process of law, the court must consider the nature of the property, the necessity for its sacrifice and the extent to which it has previously been regarded as within state's police power and so far as property is inoffensive or harmless it can only be condemned or destroyed by legal proceedings with due notice to the owner but so far as it is dangerous to the safety or health of the community, due process of law may authorize its summary destruction (U.S. Const. Amend. 14).

5. GAMING.

The alleged fact that slot machines and pay-off tables which were seized by police were contained in their original crates as shipped from the factory and that the plaintiff, who sought to recover them in replevin action had not operated any of them and that they were intended for sale in a state wherein their possession, ownership and operation was lawful, did not preclude seizure of such devices under Mississippi statute, nor entitle the plaintiff to recover them (Laws 1938, chap. 353).

6. GAMING.

Statute making possession or ownership of slot machines and other similar devices and apparatus which are "gambling devices per se," unlawful, was enacted in the proper exercise of the "police power" of the state (Laws 1938, chap. 353).

APPEAL from circuit court of Hinds county, HON. J.P. ALEXANDER, Judge.

Jaap Quin, of Jackson, for appellant.

The test of the constitutionality of an act of the Legislature is not what is sought to be done under it but what can be done under the act.

State v. Sansome, 133 Miss. 428, 97 So. 753.

The act here in question, Laws 1938, Chap. 353, confers upon the executive department of the government the judicial power to declare the instrumentalities seized subject to destruction and to destroy them summarily, which we submit is a gross violation of Section 1 of the Constitution.

12 R.C.L. 733, Sec. 34; Lawry v. Rainwater, 70 Mo. 152, 35 Am. Rep. 420; Notes, 19 L.R.A. 197; 2 Ann. Cas. 937.

It is the use of such articles as slot machines and gaming tables as a means of accomplishing unlawful acts, and not the articles themselves, which the law condemns. Hence if the court finds that when they were seized under a search warrant they were being used for an unlawful purpose it may order their destruction, but if it finds that they were not being so held or used, it should order their restoration to the owner.

State v. Robbins, 124 Ind. 308, 8 L.R.A. 438.

The act of 1938 here complained of violates the Fourteenth Amendment of the Constitution of the United States and Section 14 of the Constitution of the State of Mississippi, in that it deprives appellant of his property without due process of law.

Dartmouth College v. Woodworth, 4 Wheat. 518; 8 Cyc. 2, 3, 8, 10, and footnotes; Donovan v. Mayor and Council of Vicksburg, 29 Miss. 247; Williams v. State, 130 Miss. 827, 94 So. 882.

We are familiar with the law that "statutes authorizing summary destruction of slot machines if found by magistrate to be gambling devices are not unconstitutional as denying due process."

Durant v. Bennett, 54 F.2d 634; State v. Kizer, 162 S.E. 444.

We submit that the statute here under consideration is unconstitutional because it condemns innocent, harmless, yet valuable property to destruction without a hearing. If the peace officers of the State obey its mandates, it will be their duty to invade the depots and warehouses of the railroads and bus companies and without notice to the companies or the owners break up any pin ball or slot machines or other devices condemned by the statutes, notwithstanding such machines are in transit into a state wherein their possession is legal.

The search of appellant's premises outside the City of Jackson by non-residents of the First Supervisor's District was utterly and entirely void and violative of the Constitution of the State relative to search warrants.

Kirkland v. State, 72 Ark. 171; 65 L.R.A. 76; 24 R.C.L. 702, par. 4; Riley v. James, 73 Miss. 1, 18 So. 930; Boutwell v. Grayson, 118 Miss. 80, 79 So. 61.

This search and seizure amounted to no more than a trespass and the goods wrongfully taken from appellant's workshop were wrongfully impounded and should be returned to the appellant.

Henry E. Barksdale, of Jackson, for appellees.

Before one can claim the protection of the law in regard to property, it must be lawful property. The courts which have decided cases based on statutes similar to the one here in question have all held that gambling apparatus and implements are pernicious and dangerous to the public welfare, and they are not subject to the protection of the law, that no property rights exist in property which is inherently evil and illegal, and slot machines have been adjudged to fall within this category. The majority of cases decided, in which the property was held to be illegal and in which no property rights exist, all revolved around slot machines.

16 C.J.S. 1199, Sec. 599.

It is true that under the Fourteenth Amendment no state can deprive a person of his life, liberty or property without due process of law, but in determining what is due process of law we are bound to consider the nature of the property, the necessity for its sacrifice, and the extent to which it has heretofore been regarded as within the police power. So far as property is inoffensive or harmless it can only be condemned or destroyed by legal proceedings, with due notice to the owner; but so far as it is dangerous to the safety or health of the community, due process of law may authorize its summary destruction.

State ex rel. Daniel v. Kizer, 164 S.C. 383, 162 S.E. 444; Sentell v. R.R. Co., 166 U.S. 698, 17 S.Ct. 693, 41 L.Ed. 1169.

We think that petitioner's machines constitute, as one court has clearly observed, "a menace to the welfare of the community and invite a breach of the law." It is not then surprising to find it almost universally held that a statute providing for the summary forfeiture and destruction of gambling apparatus such as petitioner's "is a valid exercise of the police power of the state and is not in conflict with the Constitution as depriving the owner of his property without due process of law."

State ex rel. Daniel v. Kizer, 164 S.C. 383, 162 S.E. 444; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; League for Preservation of Civil Rights Internal Tranquility, Inc., v. City of Cincinnati, 28 N.E.2d 660, 64 Ohio App. 195; Durant v. Bennett, 54 F.2d 634; Garland Novelty Co. v. State, 71 Ark. 138, 71 S.W. 257; Kite v. People, 32 Colo. 5, 74 P. 886; Mullen v. Moseley, 13 Idaho 457, 90 P. 986; State v. Robbins, 124 Ind. 308, 24 N.E. 978; State v. Klondike Machine, 76 Vt. 426, 57 A. 994; Farr (Gressit, Intervenor) v. O'Keefe, Adj. Gen. of Miss., 27 F. Supp. 216; Pasternack v. Bennett, 190 So. 56.

The manner in which the search was made and by whom made is not germane to the issue. If the statute here in question, Chapter 353, is held by this court to be constitutional, then appellant is not entitled to have the slot machines restored to his possession. If this act is held to be constitutional, this court would not do a vain and foolish thing such as to order the machines restored to appellant, because should this be done, the sheriff would have the right to take them from the appellant immediately after they were delivered to him. His, appellant's, mere possession would be unlawful, and the proper officer could again seize the machines and destroy them immediately.

The intent of the Legislature was that all gambling equipment should be condemned and destroyed, whether the gambling equipment, slot machines, etc., were actually being used or not. The Legislature did not intend for this act merely to apply to slot machines that were actually in operation, but was meant to apply to all slot machines and gambling equipment which was capable of being used or put into operation for gambling purposes. And what earthly use has a slot machine except an illegal one; what use has it except for gambling purposes.

Argued orally by C.O. Jaap, Jr., and Percy Quin, for appellant.


This action was begun by affidavit in replevin and a declaration filed thereon by the appellant, in the Circuit Court of Hinds county, Mississippi, against the chief of police of the city of Jackson and others, demanding the return of some slot machines; a cigarette vending machine which did not deliver a uniform amount, either in value or number, of cigarettes on each operation; certain automatic pay-off tables which did not pay a uniform number of slugs or coins on each operation; a slot dice machine; and some small gum vending machines which did uniformly deliver a package of gum of the same quality and quantity upon each operation of the machine, and nothing else. The case was tried upon an agreed statement of facts, characterizing the property in the manner hereinabove stated, and with the result that the Court ordered the gum vending machines returned to the plaintiff, whereas the pay-off tables and the slot machines were to be kept in the custody of the sheriff of the county pending this appeal.

Prior to the institution of this action of replevin, it is shown that most of these articles had been seized by a police officer of the city of Jackson, residing in supervisor's district No. 4 of the county, pursuant to a search warrant issued by a justice of the peace of the same district, and who was assisted by a constable of district No. 5, in making the seizure in district No. 1, in the possession of the plaintiff in his repair shop and storeroom, outside the city limits of Jackson; and it is agreed that no emergency existed within the meaning of section 2080, Code of 1930, such as to authorize the execution of the search warrant in supervisor's district No. 1 by officers residing in districts 4 and 5, respectively, since the sheriff, his deputies and two constables were available in district No. 1 for that purpose. Hence it is urged by the plaintiff in replevin, as appellant here, that under the decisions in the cases of Riley v. James, 73 Miss. 1, 18 So. 930, and Boutwell v. Grayson, 118 Miss. 80, 79 So. 61, the officers who made the seizure were without jurisdiction or authority to do so, and that their possession of the property involved was obtained by means of a trespass, and is therefore unlawful.

We pretermit any consideration of the question above-mentioned, for the reason that the right of the appellant to recover the property in this replevin suit depended upon his being able to show that he had such a property right or legal interest therein as to be entitled to the immediate possession thereof, as alleged in his affidavit, and without regard to whether or not the possession of the defendants was wrongful. The articles had been seized under the provisions of chapter 353, Laws of 1938, as "gambling devices." That act makes it unlawful for any person to have in possession, own, control, display or operate certain types of machines or other apparatus therein enumerated, except a music or bona fide automatic vending machine, where the purchaser receives exactly the same quantity of merchandise on each operation of said machine; and it expressly prohibits the possession, ownership, etc., of "any slot machine which delivers, or is so constructed as that by operation thereof it will deliver to the operator thereof anything of value in varying quantities, in addition to the merchandise received," and further provides that: "any slot machine constructed in such manner as that slugs, tokens, coins or similar devices are, or may be, used and delivered to the operator thereof in addition to merchandise of any sort contained in such machine, is hereby declared to be a gambling device, and shall be deemed unlawful under the provisions of this act." Section 1. Section 2 of the act provides as follows: "No property shall exist in any person, natural or artificial, or be vested in such person, in any or all of the devices described in the preceding section; and all such devices are hereby declared to be at all times subject to confiscation and destruction, and their possession shall be unlawful, except when in the possession of officers carrying out the provisions of this act." Section 3 of the act make a violation of the provisions of the statute a misdemeanor.

It necessarily follows that replevin will not lie for the recovery of articles in which no property right can exist in the plaintiff, and the possession of which by him is made unlawful.

It is unnecessary that we construe the statute in question to the extent of determining whether or not the possession and ownership of all the machines, and all other apparatus enumerated therein, can be made unlawful by the Legislature in the exercise of the police power of the state, since it is sufficient to say that the language of the statute outlaws the possession or ownership of all the articles involved in this suit, except the gum vending machines, which were ordered by the court below to be restored to the plaintiff; and as to these slot machines and pay-off tables, the Legislature does have the power to render their possession or ownership unlawful, and to provide for their seizure and destruction, without violating the due process clause of the Fourteenth Amendment to the Constitution of the United States. It was said, in the case of Sentell v. New Orleans C.R.R. Co., 166 U.S. 698, 17 S.Ct. 693, 696, 41 L.Ed. 1169, that:

"It is true that under the fourteenth amendment no state can deprive a person of his life, liberty, or property without due process of law; but in determining what is due process of law we are bound to consider the nature of the property, the necessity for its sacrifice, and the extent to which it has heretofore been regarded as within the police power. So far as property is inoffensive or harmless, it can only be condemned or destroyed by legal proceedings, with due notice to the owner; but, so far as it is dangerous to the safety or health of the community, due process of law may authorize its summary destruction."

The Court said in State v. Kizer, 164 S.C. 383, 162 S.E. 444, 449, 81 A.L.R. 722: "We think that the petitioners' machines constitute, as one court has clearly observed, `a menace to the welfare of the community, and invite breaches of the law.' . . . It is not, then, surprising to find it almost universally held that a statute providing for the summary forfeiture and destruction of gambling apparatus such as petitioners' `is a valid exercise of the police power of the state, and is not in conflict with the Constitution, as depriving the owner of his property without due process of law.'"

See, also, Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; and Pasternack v. Bennett et al., 138 Fla. 663, 190 So. 56.

It is next urged by the appellant that since the agreed statement of facts discloses that the slot machines and pay-off tables in question were contained in their original crates as shipped from the factory, and that he, as plaintiff in the court below, offered to testify that he had not operated any of them, and that they were intended for sale in the State of Louisiana, where their possession, ownership and operation is lawful, they could not be seized and destroyed under the provisions of said chapter 353, Laws 1938. But in construing a similar statute, the Supreme Court of Illinois, in Bobel v. People, 173 Ill. 19, 50 N.E. 322, 324, 64 Am. St. Rep. 64, said:

"And we are of the opinion that it was the purpose of the legislature in enacting this statute, not only to suppress the use of these gambling devices, or the keeping of them for gambling purposes, but also to prohibit the ownership or the keeping of them, whether for gambling purposes or not; otherwise, why make it a criminal offense to own or keep them, without qualification as to the purpose of such ownership or keeping, and why provide for their seizure and destruction?"

That, we think, is what was intended by the language of our statute, whose words in this connection we have quoted. We think it is clear that for the purpose of preventing the use of a device for gambling the Legislature may prohibit its possession or ownership, when it is designed for that purpose. The statute does not make its intended use for gambling a prerequisite.

We have cited the foregoing cases merely to show that so far as our statute makes the possession or ownership of slot machines and other similar devices and apparatus, which are gambling devices per se, unlawful, the statute was enacted in the proper exercise of the police power of the State, and that the replevin suit here cannot be successfully maintained, since the plaintiff could have no property rights in such articles, and could not be entitled to the possession thereof. And we expressly pretermit, as unnecessary to this decision, any discussion of the question as to whether a seizure of such articles by an officer for destruction should be upon notice to the alleged owner, as a requisite to due process. Suffice it to say, he has had a hearing in the case at bar, with full opportunity to present all the facts necessary to assert whatever rights he claimed, before any steps to destroy the articles in question have been taken.

Since the replevin suit cannot be maintained, for the reasons hereinbefore stated, the judgment of the court below must be affirmed.

Affirmed.


Summaries of

Clark v. Holden

Supreme Court of Mississippi, In Banc
May 26, 1941
191 Miss. 7 (Miss. 1941)
Case details for

Clark v. Holden

Case Details

Full title:CLARK v. HOLDEN, CHIEF OF POLICE, et al

Court:Supreme Court of Mississippi, In Banc

Date published: May 26, 1941

Citations

191 Miss. 7 (Miss. 1941)
2 So. 2d 570

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