Board of Police Commissioners v. Wagner , 52 L.R.A. 775 ( 1901 )

This is an action of replevin to recover a musical slot machine. The third plea is, that the article is "a gambling device or instrument intended and designed to be used by the plaintiff and others in violation of the gambling laws of the State, which can be put to no legitimate use, and was detained by the defendants, in the discharge of their official duty, to prevent such violation and to be used, if necessary, as evidence against the plaintiff;" and the replication is, that at the time the machine was taken, "there was no charge pending against the plaintiff for any violation of the gambling laws of this or any other State; that the plaintiff was not arrested, nor has since been arrested nor any warrant issued for his arrest on any such charge, nor has any such charge been preferred against him; and that the said machine was not taken and retained by the defendants for use as evidence against any other person." To this replication the defendants demurred, which being overruled this appeal was taken. The effect of the demurrer is to admit.

1st. That the musical slot machine is a gambling device "intended and designed to be used by the plaintiff and others in violation of the gambling laws of the State."

2nd. That it can be put to no legitimate use.

3rd. That it is detained by the appellants in the discharge of their official duty to prevent such violation of the gambling laws of the State, and,

4th. That such machine was taken at a time when there was no charge pending against the appellee for a violation of the gambling laws of this or any other State, nor any warrant issued for his arrest, nor any charge preferred against him."

The contentions of the respective parties turn upon the question whether a machine of that character, seized summarily by a police officer, can be recovered in an action of replevin. The appellant contends that inasmuch as it is admitted by the demurrer that it is an instrument incapable of being put to any legitimate use and was designed to be used by the appellee and others for violating the gambling laws of the State, it is an instrument malum in se, hurtful in character to the public peace and morals, and as such is subject to summary seizure and detention under the police power of the State, and therefore the action will not lie.

It is fully sustained by the decisions in this Court that the State has power to pass such laws as are necessary to protect the health, morals or peace of society; and where the summary seizure, or even the destruction, of the offending thing is necessary for the public safety, may authorize that to be done, and such laws are not incompatible with those constitutional limitations which declare that no person shall be deprived of his property "without due process of law." Deems v. M. C.C. ofBalto., 80 Md. 173; Mugler v. Kansas, 123 U.S. 62. If therefore this principle must be assumed without further question, it is clear that if the Police Commissioners have been invested by the State with power to make seizures of property for the purpose of preventing crime, such authority can be amply sustained under the police power of the State, and its proper exercise would not be obnoxious to the constitutional provision against seizing property without due process of law. The question here confronting us therefore, is not a constitutional question, but one which depends upon the authority which the State has conferred upon the Police Commissioners. By the 744th section of the Charter of Baltimore City (ch. 123, Acts of 1898), the duties of the Board of Police Commissioners are defined: It is made their duty "at all times of the day and night," to "preserve the public peace, prevent crime, and arrest offenders, protect the right of persons and property, guard the public health * * prevent and remove nuisances * * see that all laws regarding pawnbrokers, gambling, intemperance, c., are enforced, c. An examination of the entire section will show that these and many other duties are imposed on them for the purpose of preventing the perpetration of acts which are prejudicial to the peace, order, comfort and health of the public. Prevention of acts prejudicial to the general welfare is in fact their chief obligation. They must preserve order, protect the rights of persons and property, and prevent nuisances and crimes, c. By what means they are to prevent crime is not defined; but it is clear that in exercising such a power, they must act in accordance with well-established rules of persons and property, so that the rights of the citizens shall not be invaded under the pretence of protecting them. Subject to these limitations, they are charged with the duty of acting intelligently, astutely and industriously in preventing every infraction of the law that would result in destroying or injuriously affecting the peace of society, or in the commission of crime.

In the case at bar the property seized, under the concessions of the demurrer, is an instrument "intended and designed to be used by the plaintiff and others in violation of the gambling laws," and one of such a character that "it can be put to no legitimate use." It does not therefore belong to the class of articles that may or may not be used for legal purposes. If it did, the presumption could not be made that the owner intended it for illegal purposes; and however the law may be, otherwise it is clear upon principle and authority that no seizure can be made, as a preventive measure, without it had first been properly established that the article was procured and held for an illegal purpose. But if the article be of such a nature as to be incapable of being used for legal purposes, the presumption as a matter of fact would be that, being an unlawful article, that it was intended for such uses only as it was capable of being put to; and in that event the appellee, to rescue himself from the charge of having in his possession an evil chattel, would be forced to show that he did not intend to use it at all, but was keeping it for some innocent purpose; as a curiosity for instance. In Commonwealth v. Coffee, 9 Gray, 140, where a person was indicted for the larceny of brandy in Massachusetts, where liquor could not be legally sold, it was contended that having been bought to sell again, it was not the subject of larceny; the Court held that, notwithstanding it could not be legally sold, it was property, because it did not appear "that it was procured and held for an illegal purpose." In that case the owner did not forfeit his right to the property, because he held possession of the liquor, but because the illegal purpose of the possession had not been determined in the method the law pointed out. In the case at bar there can be no such difficulty, because by the demurrer, it is admitted the machine was held for an illegal purpose and could not have been used for any other.Monty v. Arneson, 25 Iowa 383. So in State v. May,20 Iowa 308, a person was indicted for stealing liquor; the defense was the sale of liquors was prohibited; but the Court decided it was property that could be the subject of larceny, because "it may at any time be withdrawn as an article of trade, and be kept exclusively for private use."

There are, however, "certain instances" in which "the law refuses its full protection to property because of its hurtful character and on strict grounds of public policy." Thus, a burglar's or gambler's tools, or counterfeit money, may be seized and confiscated under appropriate Acts. 2 Schouler on Pers.Property, sec. 24. It is difficult to perceive any sufficient reason for the denial of this principle. Why should a person be left in the possession of counterfeit money? To what use could it be applied except an illegal use? If, on its seizure, the owner could show that it was not his bona fide intention to make any use of it at all, but was only keeping it as a memento or as a curious object, perhaps another case would be presented; but until that is made clearly apparent, it would have to be presumed that he intended to use it for the illegal purpose for which it was created and for which it was only adapted. So in the case at bar, no legal use can be made of the machine and it would seem to follow, in the absence of proof to the contrary, that the appellee intended to put it to the illegal uses for which it was constructed and for which alone it was capable of being used. And this would be so even if it were not admitted, as it is here, that its intended use was in violating the gambling laws of the State. What more effectual means for preventing crime than to deprive the thief or the burglar of the instruments of his evil trade? If, at midnight, a policeman find a person on the streets laden with burglar's tools hidden on his person, is he to permit him to go his way with his illegal burden? Is not the seizure of these instruments of crime a proper and reasonable thing for him to do? Would it not be conducive to the prevention of crime for the police officer charged with the enforcement of the law, and the prevention of crime, to do that? Must the owner be allowed to retain them until it can be shown that he has already made an illegal use of them or intends so to use them? So, also, as to a slot machine, conceded in this case, to be incapable of being used for legal purposes, it is a most effective manner of preventing its use, to seize it as "outlawed" property. The duty to prevent crime carries with it in such a case the power to summarily seize the offending article. It would be anomalous to hold that the Legislature in imposing on the policeman an obligation to prevent crime, intended to deny him one of the most effective means of performing such obligation. The power of the Legislature to confer this authority, under the police power, cannot be questioned. If it can properly confer upon a milk inspector power to destroy milk summarily, as in Deem's case,supra, it may for the same reasons, authorize the summary seizure and destruction of the tools and implements of crime.

We have been cited to no case where these principles have been denied. Those relied upon by the appellee, some of which have already been adverted to, are not in conflict with them. Those are cases where the article seized may be put to legal as well as illegal uses, and until it has been shown before the proper tribunal that it was designed to be put, or has been put, to an illegal use, it cannot be seized as a preventive measure. But that is not the case at bar, because we here have it admitted, not only that the slot machine cannot be used for a legal purpose, but that the appellee intended to use it for illegal purposes. The subject has been learnedly and exhaustively discussed by JUDGE REDFIELD in the case of Spalding v.Preston, 21 Vermont, 10, in which the Court sustained the view we have presented. That was an action of trover for certain counterfeit coin taken from a person who was afterwards indicted. The coin was claimed by a third person without, however, accounting "for the unfortunate guise" in which it was presented. REDFIELD, J., delivering the opinion of the Court, said, if trover under these circumstances can be maintained, then trespass would also lie for the taking of the property. Further, that the right of the sheriff to seize rests "upon grounds of preventive justice, aside of any statute whatever upon the subject;" and that the right to detain the base metal might be rested on two grounds: 1st, for evidence, and 2nd because, "Courts of Justice will not sustain actions in regard to contracts, or property which have for their object the violation of law — such property is ``outlawed.'" And again, in State v. O'Neil, 58 Vermont, 163, where the Court said, "that articles or instrumentalities once impressed with the characteristics of adaptation and intended use for purposes prohibited by law and contrary to public peace, health or morals, are subject to summary seizure under statutory or even general police regulations."

In Bales v. State, 3 W. Va. 687, the Court while holding that poker chips might be the subject of larceny, said that "they could not have been recovered by action is clear on the general principle that no Court would lend its aid to the guilty keeper or owner to recover his illegal articles." This case is not cited as being approved in all respects by this Court, but merely as sustaining the position that in a case like the present one the action of replevin will not lie. Eichenlaub v. City ofSt. Joseph, 113 Mo. 395, (21 S.W. 8). For these reasons the judgment must be reversed.

Judgment reversed and cause remanded for new trial.

(Decided March 8th, 1901.)