Board of Police Commissioners v. Wagner

Page. J., delivered the opinion of the Court. 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 plaintiffand 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. ¹⁹¹ 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 án 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 constitional limitations which declare that no person shall be deprived of his property “without due process of law.” Deems v. M. & C. C. of Balto., 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 ¹⁹² 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 ¹⁹³ 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 am 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