Attorney General v. Justices of the Municipal Court

Ames, J. The searchwarrant in the present ca'se appears to have been issued in pursuance of the provisions of the Gen. Sts. — 462 — c. 170, §§ 2, 3, 5, as modified by the subsequent St. of 1869 c. 364. The application and complaint were in proper form describing with all due precision the place that was to be searched, and giving, as the reason for the proposed search, the belief of the complainant that gaming apparatus and implements were used, and kept and intended to be used, in the place described as a common gaming-house; the warrant issued upon that complaint recites that it appears to the court that there is reasonable cause for that belief; and so far the proceedings appear to be regular and in conformity to the statute. The officer holding this warrant proceeds to make the search, and to seize the gaming apparatus and implements, and also the furniture, fixtures and personal property contained in the place searched, (which under the St. of 1869, c. 364, he is authorized to seize at the same time,) and he returns his warrant, with the property seized by virtue of it, into the court from which it issued. It does not appear from his return that he arrested anybody upon — 463 — that warrant, although by the law he was authorized, and by the warrant he was required, to arrest not only the person or persons in whose possession the apparatus, &c., were found, but also all persons who were found present at the playing of any unlawful game in the place in question. We are therefore left to infer that all persons so present, at the time when the officer “ stopped the game ” as stated in his return, made their escape, and that the owner of the apparatus and other things seized under the warrant, or the person in possession of them, is some person unknown. No party defendant is before the court, and of course no issue is joined, and no trial in any constitutional or proper sense of the term is had. There is nothing before the court to be proceeded against, except the property seized; and the question then arises, what is to be done with that property ? The 170th chapter of the General Statutes authorizes, with certain preliminary formalities and conditions, the issue of search-warrants for the seizure of personal property, stolen, embezzled or obtained by false- tokens or pretences; for counterfeit money and counterfeiters’ tools; for obscene books and pictures; for lottery tickets; and for gaming apparatus and implements. It is the duty of the officer serving the warrant to bring it, with the property and “ other things ” so seized, and with the persons having such stolen property and “ other things ” in their possession, before the magistrate who issued the warrant, or other magistrate or court having cognizance of the case. In the present case, the warrant was properly returned into the municipal court of the city of Boston, not only as the court from which it issued, but as the court having “ cognizance ” of the case. That court has jurisdiction concurrently with the. superior court “ in all offences punishable by fine not exceeding one hundred dollars, or imprisonment in the jail or house of correction not exceeding one year, or both said punishments." Gen. Sts. c. 116, § 13. St. 1866, c. 279. The punishment for the offence of keeping a common gaming-house is within those limits. Gen. Sts. c. 85, § 7. The purpose for which the property and other things so taken are to be brought into court seems to be, by the Gen. Sts. c. 170, § 4, that, they shall be safely kept, under — 464 — the direction of the court or magistrate, so long as necessary foi the purpose of being produced or used as evidence in any trial. The section then goes on to provide that, as soon as may be thereafter, that is to say, as soon as may be after it shall have ceased to be necessary to keep them for the purpose of being produced or used as evidence in a trial, the stolen and embezzled property shall be restored to the owner, and the other things seized by virtue of such warrant shall be burnt or otherwise destroyed under the direction of the court or magistrate. In the present case, nobody has been arrested; nobody is accused by name or description of any offence; nobody is to be brought to trial; and the things seized are not wanted to be used as evidence. The terms of the statute, taken literally would seem to require their summary destruction in such a case, without any inquiry as to their ownership; and apparently the court or magistrate is to decide on mere inspection, and without any formality of notice or trial, whether the articles brought in with the warrant are correctly and truly described, in the complaint, as counterfeit money, or as obscene books or prints, or as gaming implements, as the case may be. But we think that the statute is not to be taken in quite such a narrow and literal sense. With regard to the various articles that may be seized upon a searchwarrant, it is easy to see, for instance, that it must be an important question, and may be a difficult matter to decide, whether bills that have been seized as counterfeits are spurious or genuine; or whether tools seized as counterfeiters’ tools are really such, or honest and lawful implements. Even in the case of books or prints alleged to be obscene, there might be different opinions among different men and under varying circumstances. Pictures and illustrations, that might be considered unobjectionable in scientific and philosophical treatises upon medicine or surgery, might be highly indecent and immoral if intended for public circulation. Some of the finest works of art in painting and sculpture, though greatly admired by artists and critics, might be considered by a portion of the community as wholly improper for public exhibition. The general rule undoubtedly would be, that the magistrate would have — 465 — no practical difficulty in deciding whether the alleged counterfeit money, or obscene books or prints, were of such a character as not to be capable of being applied to any lawful or honest use ; of such a character that the law will not recognize th~m under any circumstances as property, or entitled as such to its protection. But cases may arise, in which there would be much practical difficulty in drawing the exact line, in a matter in which no exact standard of judgment can be prescribed in advance. So also in the case of gaming apparatus and implements, they may happen to be composed of valuable materials, capable in some other form of being applied to lawful and proper uses; they may be entirely harmless and innocent in themselves without any change of form, and may have value as merchandise in honest hands. If at the time of their seizure the owner or keeper should be known, and arrested to be dealt with by indictment or other criminal proceeding, the trial of the case against him would of course involve a judicial investigation into the character and nature of the things seized; but in a case in which the offender is not known, and nothing is before the court to be proceeded against but the things themselves, those things being in the custody of the law, and for that reason not in a position for the time being to be dangerous to the public morals, there would seem to be no reason why notice should not be given before passing and carrying into effect a decree that they should be burnt or otherwise destroyed. The statute does not in terms require that such notice should be given, but it is entirely contrary to the spirit of our laws that property which may be valuable should be literally destroyed without some attempt to notify the owner in season to give some explanation or offer some excuse, or to have a hearing on the question whether the property can be said to be of that class which the statute intends to condemn. In the case at bar, the articles described in the return upon the warrant, and seized as falling within the description of gaming apparatus and implements, are in the custody and subject to the jurisdiction of the municipal court of the city of Boston. They are not needed for the purpose of being used as evidence — 466 — on any trial. We are of opinion that as to those articles it is within the power, and is also the duty, of that court, upon proper application, to order their destruction, provided that the court shall be satisfied that they are in fact gaming apparatus and implements, and provided also that notice be first given to the owner or keeper, if known, to appear and show cause why they should not be destroyed. If the owner be unknown, notice should be given by advertisement in some public newspaper published in the county, describing the articles, and the time, place and cause of their seizure, and naming the time at which the court will pass upon the question of their condemnation. In other words, the notice should be such as in the judgment of the court would be reasonable, and likely to convey the information to any party in interest. The owner certainly ought to have an opportunity to raise the question whether the very general terms used in the statute on this subject include everything that can be used for gaming purposes, or only such things as have little or no value except what may be found in their special adaptation to such purposes. It is easy to see that there might be cases in which that question would be altogether too complex to be decided by mere inspection. With regard to the other articles seized at the same time, the question presents itself in a different aspect, and depends upon other considerations. The St. of 1869, c. 364, has greatly enlarged the range of the searchwarrant, and made it a much more efficient instrument for the suppression of establishments of this particular kind. The officer, to whom the warrant is committed, is required not only to seize the gaming apparatus and implements, but also “ the furniture, fixtures and personal property, found at such gaming-house” “ at the time when any persons are there found playing at any unlawful game.” But articles falling within this latter description are not in themselves mischievous or objectionable. They are seized merely because they constitute part of the equipment of a gaming-house; but they do not on that account cease to be property and to have a value, for proper uses, which the law will recognize. As to them, the law that may be supposed to pro vide — 467 — for the summary suppression of nuisances, or the destruction of articles that are-under all circumstances dangerous or prejudicial to the public morals, can hardly be said to be applicable. The law does not require that they should, in any event, be burnt or otherwise destroyed, as if they were not capable of being put to any good use; but that they shall be forfeited and sold for the benefit of the county treasury, on the ground that at the time of their seizure they were appropriated to a bad and unlawful use. The statute which has introduced this new provision into the law upon this subject does not point out with any precision the mode of proceeding in order to enforce the forfeiture. It merely provides, in very general terms, that there must be an application to a court of competent jurisdiction for a decree of condemnation, and that, upon the hearing upon said application, if it shall be found and adjudged, &c., the property shall be adjudged forfeit. In the case at bar, the property in question was seized by virtue of a warrant from the municipal court, and is returned with the warrant into that court. That court has full jurisdiction over the offence for which the property became liable to seizure. The custody of the goods taken is incident to a lawful process issued from and returnable to that court. The keeper of the alleged gaming-house not having been ascertained or arrested, there is no reason why that process, and the goods seized by virtue of it, should be transferred to any other court. The statute plainly intends that there shall be a proceeding in rem against the property itself; and it is difficult to see why that proceeding, in the absence of any statutory regulation to the contrary, should not be had in the court which has the lawful custody of the property which is to be proceeded against. The provisions of the Gen. Sts. c. 153, do not in our judgment apply to the case at bar. That chapter is intended to apply to seizures without process; it gives a remedy, in the nature of a civil action, to any prosecutor (if he may be so called) who shall see fit to make a seizure for the purpose of recovering forfeited goods for his own benefit and advantage; it makes him liable not only to costs, but also to damages, if he does not succeed in estab — 468 — fishing his claim. The provisions of that chapter are wholly inapplicable to the case of goods, seized upon a search warrant, returned and placed in the custody of the law, and proceeded against not for the private benefit of a prosecutor, but claimed to be forfeited to the public for a criminal offence. The St. of 1869 certainly was not intended to compel the police officer, who serves a searchwarrant, to prosecute a civil action at his own expense and risk as to damages and costs. The proceeding against the property in such a case seems to be incident to and dependent upon the process issued from the municipal court, and it is difficult to see why (there being no defendant personally on trial) it may not be effectively prosecuted in that tribunal. It must be admitted that the St. of 1869, c. 364, § 3, is unfortunately somewhat vague and indistinct as to the mode of proceeding in such a case. We may safely assume that it never could have been the intention of the legislature that the unascertained owner of all this furniture and other property, who may be wholly ignorant of its seizure, and innocent of all participation in its unlawful use, is to be deprived of it without notice, without trial and without appeal, upon a mere ex parte motion, upon a summary process, in which the only evidence is the oath of some person that he believes the place in which it was found was a common gaming-house. There can be no doubt that, in order to fall within the familiar provisions of our Constitution, the application, intended in the section above referred to, must be in writing, and must set forth the subject matter with such formality and detail that any claimant of the property shall have the means of knowing what it is proposed to have adjudged forfeit; when, where and on what ground it was seized ; and generally, what it is that he is to answer to, in order to defend his right. The hearing and adjudication spoken of in the recent statute must be understood to mean a judicial hearing, with all its iqpidents, of notice, actual or constructive, trial, and the right of appeal to a jury if any claimant should see fit to appear and resist the application, or an inquiry by the court after default if he should not appear — 469 — We have therefore come to the conclusion that in a case like that at the bar the municipal court of the city of Boston is a court of competent jurisdiction, and may lawfully and properly proceed, to enforce the forfeiture provided for in the third section of the St. of 1869, c. 364. Upon a proper and formal application, we hold it to be the duty of that court, under such a state of facts, so to proceed. But a mere summary and ex parte motion, incidental to a process which is in its nature merely preliminary, and intended mainly for the seizure of the property for the purpose of bringing it within the jurisdiction of the court, is not the kind of application intended by the statute. There must be, as we have already said, a written application, describing the property, and setting forth all such particulars of time, place and cause of seizure as may fully inform the claimant what the charge is that he is to meet; and upon such application it would be the duty of the court to order such notice to be given as would be a proper preliminary to a judicial hearing, and such as shall reasonably give to the owner, whether known or unknown, a full opportunity to assert his rights. The motions which have been filed by the complainant do not come within this description, and for that reason do not furnish a proper foundation for any action on the part of that court. With regard to the money seized by the officer, there seems to be no reason for saying that there is any legal authority for proceeding against it with a view to its forfeiture. Petition dismisiedL