| Ark. | Dec 20, 1902
(after stating the facts.) This is an appeal from a judgment of the Garland circuit court directing the sheriff to destroy a certain slot machine, which the court found to be a gambling device and owned and operated.as such. The Garland Novelty Company, the owner of the machine, having brought this appeal, now contends that the judgment of the court was without authority of law, and should be reversed, and that is the question we are asked to determine, and which we will now consider.
Our statute declares that it shall be a misdemeanor to set up, keep, or exhibit any gaming table or gambling device of any kind or description. Sand. & H. Dig., § 1613. Another section of the statute makes it the duty of the judges of the circuit courts, on information given or on their own knowledge, or where they have reasonable ground to suspect that the law is being violated by the operation of such gambling devices, to “issue their warrant to some peace officer, directing in such warrant a search for such gaming tables or devices hereinbefore mentioned or referred to, and direct-rug that, on finding any such, they shall be publicly burned by the officer executing the warrant.” Sand. & H. Dig., § 1618.
Counsel for the Novelty Company contend that this section gave the court no authority to institute a trial to determine the character of the property seized, and that the statute is unconstitutional, for the reason that it directs the forfeiture and destruction of property without due process of law. But it will be noticed that the statute only authorizes the destruction of such gaming tables and gambling devices as the statute makes it a crime to keep and exhibit. The statute does not authorize the seizure and destruction of tables or other useful furniture simply because they may be found in a gambling house, or because they may be used in playing cards or other games upon which money is bet, but it permits the destruction of those tables and devices only that are made and kept solely for the purpose of carrying on a business which the law forbids. It is, under our statute, a nuisance to publicly exhibit and operate a machine made solely for the purpose of gambling, and the legislature has, by this statute, authorized the abatement of the nuisance by the destruction of the machine.
There is no question that the legislature has the power to prohibit the public exhibition and operation of gambling devices, and the only room for doubt is whether it had the power to accomplish this result by authorizing the summary destruction of the device itself. While the legislature would have no right to authorize the summary destruction of a house to prevent gaming or to prevent the illegal sale of liquor therein, it being unreasonable, oppressive and unnecessary to resort to such measures for the prevention of crime, yet, if the nuisance be one that can be well abated in no other way, even the destruction of property so valuable as a house may be justified, as where its destruction is necessary to prevent the spread of fire or disease.
And so, as a reasonable means - of abating the nuisance which they create, it is now well settled that the legislature may authorize the summary destruction of obscene books and pictures and implements that are capable of an illegal use only. The court of appeals of New York went further than this, and upheld a statute of that state which made the use of nets for taking fish in the waters of the state a nuisance, and authorized the summary destruction of the nets as a means of abating the nuisance. The court held that this statute was not in conflict with the constitutional provision against depriving the owner of his property without due process of law. Lawton v. Steele, 119 N. Y. 227. This judgment was after-wards affirmed by the supreme court of the United States. The decision of the court of appeals was unanimous in favor of the legality of the statute, though, on the appeal to the supreme court of the United States, three of the judges of that court dissented from the judgment. But they did so on the ground that the nets which the statute directed to be summarily destroj^ed were capable of being used for lawful purposes, and were not things which the legislature could lawfully declare to be a nuisance, and authorize the abatement thereof by such a summary proceeding. They impliedly admitted that it might be different with those things which were made and designed for an illegal use only, such as the gaming tables and .gambling devices which our statute permits to be destroyed. Whenever such tables and devices are used, -the law is violated, and it would therefore seem that a rational way to prohibit the offense and abate the nuisance is to destroy the instrument by which it is committed. While there are cases to the contrary in some of the states, we may say of those decisions, as the supreme court of the United States said of them, that the3r take a more technical view of the law than the necessities of the case or the adequate protection of the rights of property require. Lawton v. Steele, 152 U.S. 133" date_filed="1894-03-05" court="SCOTUS" case_name="Lawton v. Steele">152 U. S. 133.
We are therefore of the opinion that our statute authorizing the summary destruction of gaming tables and gambling devices is not unconstitutional on the ground that it deprives the owner of his property without due process of law.
It will be noticed from the statement of facts that the manager of the company which owned the slot machine ordered to be destroyed testified that such a machine is used only for the purpose of gambling, and can be used for no other purpose. In other words, it was not only a gambling device, but it was of no value as property except for such illegal purpose. If his statement was true as to the nature of the machine, the order for its destruction is fully sanctioned by the statute.
The owner of property thus summarily destroyed 'is- not without a remedy if the destruction be wrongful, for, if the property be not such as is contemplated by the statute, the officer is responsible to the owner in damages. For this reason it is advisable that an officer should act with due caution and circumspection before undertaking to destroy property under a statute of this kind. We think, therefore, that the circuit court did well to give the owner of the property an opportunity to be heard before issuing the order for its destruction. If we should admit the contention of appellant that the statute did not authorize a judicial determination of the question in that way, and that the owner of .the property is not bound by the decision, a matter about which we need not express an opinion, still, .it was an investigation entirely proper to be made for the information of the judge issuing the order; for, if the judge of the circuit court had the power, to issue a warrant for the destruction of this slot machine without notice to the owner thereof, he certainly had the power to make such an order after notice to the owner and a full hearing and consideration of his rights in the matter.
To avoid misapprehension, we will now notice a matter connected with the form of this warrant. It seems that the circuit judge issued the preliminary warrant to seize the slot machine upon his own motion, and without any supporting affidavit. So far as the order to seize is concerned, that was in accordance with the law, but the warrant, following the form of the statute, directs also a search for the slot machine. Now, this statute was enacted before the adoption of our present constitution, which provides that no search warrant shall issue “except upon probable cause, supported by oath or affirmation.” Const. 1874, art. 2, § 15. For this reason, if the question before us was whether the order to search was properly issued, it is doubtful if it could be sustained, not being supported by oath or affirmation, as the constitution requires. But that question is not before us; for, thoiigh the warrant incidentally directed a search, none was necessary, and none was made, as the slot machine was being publicly exhibited and operated at the time of its seizure. The object of the warrant was not to empower the officer to search, but to empower him to seize the slot machine, and to summon the owners thereof to appear and show cause why it should not be condemned and destroyed. In obedience to this summons, the owner appeared, and objected to the forfeiture, but the court overruled the objections. The company owning the machines does not complain of any search, unreasonable or otherwise, for none was made. The only question presented is whether the court had the power to order the destruction of its property. Under the facts as they appear in the record here, we must answer that question by saying that in our opinion the judgment and order was proper, and it is therefore affirmed.