93 W. Va. 463 | W. Va. | 1923
Respondents Carl G. Bachmann, prosecuting attorney of Ohio County, and Harry T. Clouse, sheriff of said county, have been ruled before us upon the petition of Joseph Cam-bria and others, to show cause why they should not be punished as for a contempt of this court for alleged violation of the process, awarded February 10, 1923, of appeal from and supersedeas to a decree of the circuit court of said county dissolving an injunction in the chancery cause of said Cambria and others against respondents and Fred H. Frazier, chief of police of the City of Wheeling.
The grounds upon which the preliminary injunction was awarded, as alleged in the bill, in substance were that re-lators were the owners of some eighty-five machines known and designated as automatic machines or devices for vending chewing gum and checks commonly known as trade checks, to operate which they had obtained licenses from the State of West Virginia and the City of Wheeling pursuant to statute and the ordinances of said city; that the aforesaid licenses were actually issued to them: that petitioners had applied to Honorable J. B. Sommerville, judge of said court, to compel the city clerk to issue said licenses, upon which application a full hearing was had as to whither said machines were gambling devices, and when one of said machines was exhibited to
The allegations of the bill most material here were: First, that these orders of defendants that said machines should be taken by force if necessary were without any authority or warrant of law or any complaint against the complainants or those in whose possession or in whose places of business the machines were located, and that the complainants were advised and charged that said officers would carry, out said orders unless restrained by an order of the court: Second, that the business done by the said machines was a legitimate business, authorized by the laws of the State of West Virginia and the ordinances of the City of Wheeling, and that the confiscation of their property if carried out would work irreparable injury to complainants, for which the law provided no adequate remedy; that the method of confiscation so proposed, as plaintiffs were advised, was a high-handed and unheard of method, not contemplated by law; that after being served with notice of the application for said injunction, defendant Bachmann directed the officers to go ahead
The prayer of the bill, in accordance with the injunction order therein recited, was that a temporary injunction be issued against said defendants and each of them, their deputies, agents, servants and employees, from in any manner confiscating and removing said machines or interfering with the operation thereof until the further order of the court, and that upon a final hearing said injunction be made permanent.
The defendants answered the bill, and as they claim, and as the circuit court undoubtedly concluded, fully denied all material allegations of the bill, and moved the court to dissolve the injunction; and upon the hearing of said motion, upon the bill and exhibits therewith, and the answers and exhibits therewith, the court, on February 5, 1923, by the decree appealed from, adjudged, ordered and decreed that the -said temporary injunction be and the same was thereby wholly dissolved.
The plaintiffs in said bill, the relators in the present petition, contend that respondents’ answers to said bill were not denials, but constituted admissions of the facts alleged and that the other allegations thereof relied on, to the effect that said machines were gambling devices, which could not be legally licensed by state or municipal authorities, a mixed question of law and fact, were affirmative in nature, and as to which facts the plaintiffs were entitled to protection by virtue of their licenses until the character of said machines could be determined by the proper tribunal, and that the burden of proof was upon defendants, and as to which defendants and respondents offered no proof.
The petition for the present rule alleges that, on February 20, 1923, after the writ of appeal and supersedeas of this court was allowed, respondents Bachmann and Clouse, disregarding and in violation and contempt of said process rein
To the rule against them for contempt respondents Bach-mann and Clouse have now appeared and joined in a motion to quash the rule and filed their respective answers thereto. The grounds of their motion to quash are: (1) That the circuit court was without jurisdiction to restrain them from proceeding by valid search and seizure warrants to arrest the persons operating said machines and to seize and take them into their possession; (2) That as to the machine on the premises of Dave Bohrer, they were not enjoined from seizing it, either with or without a warrant, because it was not included in the list of machines appended to the bill for the temporary injunction.
The answers of both respondents admit the proceedings upon the bill and answer in said circuit court, and the award by this court of the appeal from and supersedeas to the order dissolving said injunction; and they further admit- that since the process from this court on February 10, 1923, respondent Carl Baehmann made complaint under oath before a justice of the peace in Ohio County and obtained warrants for the arrest of said Ruttencutter, Katsadoras and Bilo, and for the seizure of the machines in their possession, alleged
And respecting the proceeding by mandamus alleged in relators’ bill, it is averred in the return that the circuit court did not adjudicate thereon the question of the legality or illegality of said machines; that said court had no jurisdiction to determine such question in a mandamus proceeding, as shown by the affidavit of the clerk of said court exhibited with the return. The return further alleges that said machines were taken under lawful process, issued in accordance with law and upon proper complaint by him. s He further avers that he acted in good faith in enforcing the criminal laws of the State, and disclaims any intention to violate any decree of the circuit court or the process of .this court; and that if in the opinion of this court he has misinterpreted the intent of the circuit court or the supersedeas of this court, he makes due apology and professes his willingness to make such amends as may be required of him on this hearing. The further answer of respondent Clouse is substantially the same as the answer of the prosecuting attorney.
The first question which is always addressed to a court is that of its jurisdiction, and this is the first question presented by respondents’ motion to quash the rule. Did the circuit court have jurisdiction to enjoin respondents as public officers from proceeding against relators with or without warrants for the arrest of their persons or the seizure of their property?
We observe by reference to the literal terms of the injunction, that it did not restrain respondents from criminal prose-
The authorities hold that the seizure of such property is not violative of the constitutional provision against depriving one of his property without due process of law. Woods. v. Cottrell, 55 W. Va. 476.
In Kite v. People, 32 Colo. 5, it was decided that a proceeding under a similar statute of Colorado was a proceeding in rem, and that the constitutional right of trial by jury is not thereby infringed, nor is the provision of the constitution that no person shall be deprived of life, liberty or property without due process of law thereby broken.
The reason for this rule, particularly applicable to gaming statutes, is that contraband property of this character is not protected by the constitution, and property which is not susceptible for any but unlawful use may be seized’by public officers summarily on proper warrant. Mullen v. Mosely, Sheriff, (Idaho), 12 L.R.A. (N.S.) 394. According to the contention of respondents, there having been no adjudication nor any showing that the machines here involved were capable of any 'other than for gambling purposes, they might be seized and held as a preventive measure and for evidence. Of course, if on the trial of the accused they be found not guilty and the machines not to be gambling de
In the case of Wagner v. Upshur, 95 Md. 519, 93 A. S. R. 412, which was on second appeal, it was held that- if the property may be used for a legal as well as illegal purposes, the presumption can not be indulged that the owner intended to use it for the illegal purposes, unless it is first established that the article was procured or held for illegal purposes; and that the fact can not be so established except by purceedings in a court of criminal jurisdiction. Relators of course contended in the circuit court, as here on this rule, that the machines seized were not gambling devices; that that fact was established by adjudication, or what amounted to an adjudication, upon mandamus in the circuit court; but we do not think that a proceeding of which no record appears, and showing at most but a moot inquiry, can be given a place of formal adjudication binding the parties.
The proposition relied on, that the injunctive process of a court of equity may be made use of by the owners of such property to enjoin criminal proceedings as incident to equity jurisdiction to protect it, and.prevent its confiscation or the operation thereof, predicated upon our decisions in Block v. Crockett, 61 W. Va. 421; Fellows v. City of Charleston, 62 W. Va. 665; Flaherty v. Fleming, 58 W. Va. 669; C. & O. Ry. Co. v. Avis and Conley, 67 W. V. 129, can not be successfully maintained.
Another proposition of relators’ counsel is that having obtained licenses, they are protected as such licensees until some remedy is pursued by state or municipality to determine the character of the machines; that the possession of such licenses protects the owner until the legality or illegality of their machines have been so determined, and that quo warranto, provided for by section 6 of chapter 109 of the Code, or some other adequate remedy is pursued. The first reply to this proposition is that the statute itself, section 1 (r), chapter 32 Code, provides that “no slot machine or other, automatic device with respect to which, or its operation, service or supplies, there is any element of chance, (being a gaming table, within the meaning of section one, of chapter
Our statute, section 34, chapter 32 of the Code, provides a summary remedy for revoking all licenses and privileges of this character, but as these licenses are not granted for the operation of any particular slot machine but authorize the operation of slot machines not inhibited as a gambling device, that remedy has not been pursued. As the law authorizing the licensing of such machines is a revenue measure and such license does not protect the operation of a gambling machine, it is unnecessary for the protection of the public to resort to this remedy before proceeding criminally to punish the offenders and confiscate their property.
It is contended, however, by relators that quo warranto under the facts and circumstances-of this case is the proper remedy, and that it must be pursued and an adjudication had in advance of the seizure of the machines. It is provided by section 6 of chapter 109 of the Code, that the writ of quo warranto may be prosecuted in the name of the State at the instance of the attorney general or prosecuting attorney of any county in certain enumerated cases, the second of which is, “Against, a person for the misuse or nonuse of a privilege and franchise conferred upon him by or in pursuance of law. ” It is conceded that neither of the other three specifications cover cases of this kind. Number 1 pertains to the misuse or nonuse of corporate privileges or franchises not conferred by law, or obtained for a fraudulent purpose @r for a purpose not authorized by law. Number 3 relates to persons acting as corporations without authority of law. Number 4 relates to any person who shall intrude into or usurp any public office. At common law the writ of quo
To hold, as we now do,-that the circuit court had“no jurisdiction to award the injunction in this case, the question arises upon the present rule for contempt, what jurisdiction had we to award an appeal from and supersedeas to the decree below dissolving the injunction upon the bill and answer, and whether the acts of the public officers complained of and cited before us on the rule for contempt may be regarded as in contempt of the appellate process of this court. If in the place of dissolving the injunction, the circuit court had entered a decree perpetuating it, we might possibly have taken jurisdiction to correct its error upon appeal, but the remedy by prohibition would also be available. We have in a number of cases prohibited courts of inferior jurisdiction
Assuming that the injunction was broad enough in terms to cover, prosecution of the offenses charged, may we lawfully hold respondents in contempt of our process? ¥e are inclined to hold that we ought not to do so; that the appeal was perhaps improvidently awarded, and that upon motion in due course it ought to be dismissed. As a general proposition there can be no contempt of a void judgment or decree as being in excess of judicial authority. Ruhl v. Ruhl, 24 W. Va. 279; Swinburn v. Smith, 15 W. Va. 483; Powhatan C. & C. Co. v. Ritz, 60 W. Va. 395; Laidley v. Jasper, 49 W. Va. 526; Trudgeon v. Blair, 39 W. Va. 704; Hebb v. County Court, 48 W. Va. 279.
But assuming the jurisdiction of this court to award the appeal and supersedeas, were respondents by their subsequent proceedings guilty of any contempt of the process of this court? We are of opinion to hold that they were not. The order of injunction, as we have already held, did not enjoin such criminal prosecutions, and respondents’ return, taken in conjunction with the bill and exhibits, we think shows quite clearly, when read in the light of the pleadings and proofs in the case, that there was no intention to enjoin and that a fair interpretation of the decree will not justify the conclusion that respondents were enjoined from enforcing the criminal laws of the state in respect to slot machines or other gambling devices. An injunction of this character must necessarily be interpreted in the light of the pleadings. McEldowney v. Lowther, 49 W. Va. 348; Powhatan C. & C. Co. v. Ritz, supra; Bettman v. Harness, 42 W. Va. 433.
For the foregoing reasons we are of opinion to discharge the rule with costs to respondents against relators.
Buie discharged.