Furth v. State
78 S.W. 759
Ark.
1904
Check Treatment
Hughes, J.

(after stating the facts). The objection that that there is reversible error in the court’s overruling the objection of the appellant to giving testimony in the case on the ground that it might tend to criminate him is not tenable, we think, for the following reason: It does not appear to us that the testimony he gave would tend in fact to criminate him. But, without the testimony of the appellant, the evidence otherwise is such that no reasonable doubt can be entertained that the devices were gambling devices, kept and used for gambling, practically, alone, and that they were kept and used in violation of the statute.

The appellant contends that the act providing for this proceeding is void, because sections 1618 and 1619 of the statute are unconstitutional, because they are uncertain and ambiguous. We do not consider this objection sound. These sections read as follows:

Section 1618, Sandels & Hill’s Digest, says: “It is hereby made and declared to be the duty and required of the judges of the supreme court, the judges of the circuit courts and of the justices of the peace, on information given or on their own knowledge, or where they have reasonable ground to suspect, that they issue their warrant to some peace officer, directirig in such warrant a search for such gaming tables or devices hereinbefore mentioned or referred to, and directing that, on finding any such, they shall be publicly burned by the' officer executing the warrant. Such warrant may be substantially in the following form:” Here follows the language of the warrant. Though the meaning of this section might have been made plainer by particularity in the use of language, it is easily understood-by anyone who does not want to misunderstand, and the court has no difficulty in determining what it means, and this objection on account of uncertainty is not sustained. Section 1619 only provides for the fees of the officer executing the warrant to be paid by the person keeping such gambling devices, in case they are adjudged to be burned. There is no uncertainty in this section.

We do not think these sections are repealed by what is known as the “Wilson Act” (Acts 1901, p. 114). We do not think the two acts inconsistent, or that the Wilson act covers the entire subject-matter of these sections in such manner as to amount to a repeal, or that the legislature intended by the latter act to repeal the former act.

The objection that the act in question does not provide for a jury is a serious one. But this is a proceeding in rem of a civil nature. It is a summary proceeding in the exercise of the police power of the state, under a statute passed to suppress the nuisance of gambling. Gambling was a nuisance at common law, and in such case trial by jury was not a right at common law. It is only in cases where a jury could be demanded as a matter of right at common law that the refusal of a jury under our constitution is ground for reversal.

The contention is made here that the legislature had no right or power to enact this statute. |We understand that it is competent for the legislature to provide by statute for the suppression of nuisances by a summary proceeding, and to authorize the destruction of gambling devices the use of which constitutes a nuisance. The principle is settled in case of the Garland Novelty Co. v. State, 71 Ark. 138, 71 S. W. Rep. 257, which case counsel for appellant asked this court to reconsider and modify, so as to confine its ruling to cases where not only the devices seized are nuisances per se, but where the facts are confessedly that such property is used for gambling purposes only, and cannot be used for any other. This we cannot do. This case stands on its own facts, and announces correct principles of law.

To maintain the constitutionality of the statute under consideration, the doctrine of what is known as the “Fish Net Case,” Lawton v. Steele, 152 U. S. 133, is justly invoked, which, in effect, decides that statutes providing for the abatement of nuisances by the destruction of the means used in carrying them on without a judicial trial, and without notice is not unconstitutional, and that a party is not by them deprived of his property without due process. In this case the court says: “The summary abatement of nuisances without judicial process or proceeding was well known to the common law long prior to the adoption of the constitution, and it has never been supposed that the constitutional provision in this case was intended to interfere with the established principles in that regard.” But the owner of gambling nuisances is not necessarily deprived of a right to trial by jury by this summary proceeding. The burden of proof may be changed. But he has his remedy in replevin, or in trespass. The court said in this case that where the property was of little value, it might be destroyed without a judicial trial, but that where it was of great value it would be dangerous to give such power to an officer. In this case the evidence tends to show that these gambling devices were of very small value, and that they were practically of no use save for gambling purposes, and that there was no market for such devices.

Finding no error, the judgment is affirmed.