Commonwealth v. Gaming Implements , 119 Mass. 332 ( 1876 )

Devens, J.

Many of the objections taken by the claimant of the personal property, which has been proceeded against, were fully discussed and passed upon in Attorney General v. Justices of the Municipal Court, 103 Mass. 456, and although the mandamus there prayed for was not granted, the conclusions stated are not to be treated as the claimant contends as ohiter dicta only. The nature of the application was such, it being a petition for the purpose of compelling an inferior but important local tribunal to take jurisdiction of certain proceedings under the St. of 1869, c. 364, and to consider and determine whether certain property found- and seized should be condemned and sold under its direction, that it was appropriate to consider and determine what were the powers and duties of that court under that statute as well as under the Gen. Sts. c. 170, §§ 1-5, of which it was an amendment, even if in the particular case owing to certain defects in the »proceedings no mandamus could properly be issued. So far, therefore, as this case is disposed of by the conclusions there reached, as we are satisfied upon reexamination with their correctness, it would be superfluous to discuss or even to re-state them. We proceed to consider only those objections not there passed upon.

1. The complaint described with sufficient precision the premises intended to be searched. It alleges that the articles are “ in certain rooms ” in a building definitely described, “ that is to say, ' in the rooms in the second, third and fourth stories of said building,” which said “ rooms ” are further averred to be occupied by some person whose name is unknown to the complainant, and a warrant is prayed to search “ there ” for the articles complained against. The warrant authorizes a search of the rooms described in the complaint. The words, “ the rooms in the second, third and fourth stories,” distinguish them sufficiently from the other rooms in the building in which they are situated, and include all the rooms which answer this description.

2. The complaint, also, and the warrant, in the description of the articles intended to be seized, other than gambling apparatus or implements, follow the words of the St. of 1869, c. 364, § 2, which authorizes the search for and seizure of “ all the furniture, fixtures and personal property found .in such gaming-house.” Section 3 renders liable to condemnation and sale all such property so found which was “ used as the furniture, fixtures or personal property of such gaming-house,” it being intended thereby to subject to forfeiture articles convenient and useful in themselves, which have been put to the improper use of making a gaming-house more comfortable or agreeable. But the officer is not limited, in his right to seize, merely to the personal property thus liable to condemnation. As one of the objects o* the seizure is to obtain evidence of the unlawful business conducted in such house, he may also seize the other personal property there, even if it should not be found afterwards subject t® condemnation as the personal property of the gaming-house, as it may be of importance in furnishing evidence of the business there transacted.

Even if this were not so, a complaint and warrant which were too broad in their terms as including articles which would not properly be liable to seizure, would not be so far defective that the claimant of property properly described therein, and which was liable to seizure, could take advantage of such defect to quash the proceedings.

3. The objection, that the information, filed after the return of the search warrant against the property here claimed, does not show that this property had been seized under the authority of the warrant, cannot avail. The information, after alleging the previous steps and the terms of the warrant, contains a recital of the acts done by the officer who had served it, and the words by “ virtue of said warrant,” with which this recital commences, apply to and qualify the whole of it, the sentence which states the seizure of the “ furniture, fixtures and personal property ” by the officer, as well as that which precedes it, which states his entry into the premises and the seizure of the gambling apparatus.

4. Neither is the objection tenable that there was no sufficient notice of the information against the articles sought to be condemned. No notice is provided for by the statute in express terms, but as it would be contrary to the general spirit of our law to decree that property should be destroyed or declared forfeit without a suitable effort to notify the owner thereof, thus affording him an opportunity to be heard in relation thereto, it has been held that notice should be given. Attorney General v. Justices of the Municipal Court, ubi supra. It should be such notice as in the judgment of the court would be reasonable and likely to convey information of the facts and proposed proceedings to the party in interest. While service of the notice, where parties are unknown, by advertisement in the public papers may often be proper, yet it is not the only mode, and often not the most effectual. The order issued by the clerk, “ in accordance with the order of the court,” directed a service by copy of the information and order upon the persons in whose possession the articles were found, and by posting up a copy of the order and information on the building where the seizure was made, fourteen days previous to the hearing. The return of the officer shows that after diligent search he could not find the parties named, and that their usual places of abode were unknown to him, and that the notice was served by posting a copy as directed on 1 the building. This was a reasonable notice, and one which the court, before whom the proceedings were had, might well deem quite as likely to convey the information intended to the parties interested, as any which could be adopted.

Exceptions overruled.