Glennon v. Britton

Mr. Justice Phillips delivered the opinion of the . court: In this case a common law writ of certiorari was directed to appellant, a justice of the peace in and for the town of South Chicago, commanding him to certify and bring into the circuit court of Cook county the record of the proceedings in and about a search warrant which was issued by him in respect of premises known as 2700 State street, in the city of Chicago, upon a complaint made under division 8 of the Criminal Code, and to do and receive what the court should order in connection therewith, etc. The office of the common law writ of certiorari is to bring before the court the proceedings of inferior tribunals or officers acting judicially, in cases where they exceed their jurisdiction or where they proceed illegally, and there is no appeal or other mode provided for directly reviewing their proceedings, (Miller v. School Trustees, 88 Ill. 26; Lees v. Drainage Comrs. 125 id. 47, and cases cited;) and the case is tried and determined upon the record alone, no evidence outside of it being admissible. (Ibid.) It would seem that the justice of the peace, after complying with the mandate of the writ, by certifying and producing to the circuit court the proceedings had before him, would have no interest in the subject matter, and nothing more to do in connection therewith, except to obey and carry out the further order of the court. But whatever the effect of this may be in legal contemplation, in so far as it may affect the question of his being a competent party to take this appeal, it suffices that the proceedings in the circuit court were entitled and conducted in the name and style of “R. S. Britton, plaintiff, v. E. T. Glennon, Justice of the Peace, etc., defendant,” and the judgment is so entered. The rule appears to be well settled that an appeal .must be perfected or a writ of error sued out by and in the names in which the proceedings below were 'conducted, and in none other, (Robinson v. Magarity, 28 Ill. 423; Railroad Co. v. Surwald, 150 id. 394, and 147 id. 194;) and that an appeal by a person not a party to the record is unauthorized and void. (Rorke v. Goldstein, 86 Ill. 568; Hesing v. Attorney General, 104 id. 292; Railroad Co. v. Surwald, 147 id. 194.) The appeal to this court having been taken by the justice of the peace, a party to the record by name, the objection that he was not so far a party as to be entitled to prosecute the appeal is not well founded. It is insisted by counsel that the common law writ of certiorari ought not to have been issued by the circuit court, for the reason that the petitioner had a remedy by appeal. When the petition was filed and the certiorari applied for, the twenty days allowed by law for taking an appeal from the judgment of a justice of the peace had not expired, and if the petitioner had a remedy by appeal, it is. manifest that he was not entitled to the common law writ. (Authorities supra.) This question was not raised, however, in the court below. It does not appear, from the record, that any motion was made to quash or dismiss the writ, as having been improvidently issued, nor, indeed, was the propriety of the proceedings in any way questioned in that court. Moreover, the parties, by counsel, appeared, and by stipulation, in writing, the cause was to be submitted upon printed briefs to be thereafter filed, and upon such stipulation and submission the case was taken under advisement by the trial court, and subsequently decided. The effect of the stipulation, which was practically a submission of the case upon the merits, was to withdraw from the attention of the trial court the question now insisted upon, and the rule is familiar that a party will not be permitted, in a court of review, to insist upon error committed at his own instance, contrary to his express stipulation, upon which the lower court was induced to act. (Chicago and Northwestern Railway Co. v. West Chicago Park Comrs. 151 Ill. 204.) If the adverse party has mistaken his remedy, advantage can only be taken of that fact in the usual mode, and by preserving and assigning the same for error upon the record. That the circuit court had jurisdiction to grant the writ is unquestionable. In People v. Wilkinson, 13 Ill. 660, it was said to be “unnecessary to multiply cases upon the authority of the court to issue this writ. It is a common law power, and is vested in our circuit courts,—which, in this State, are the highest courts of original jurisdiction, and answer to the court of King’s Bench in England,—-unless it is taken away by statute. There is certainly no express statute which deprives these courts of this jurisdiction, nor is there any which takes it away by implication.” It is therefore manifest that in the certiorari proceedings the court had jurisdiction to issue the writ, of the parties and of the subject matter, and the opposite party can not be permitted to submit the cause upon the merits, thereby waiving all questions of regularity, formality or propriety of the proceedings, (Mitchell v. Jacobs, 17 Ill. 235,) and afterward be heard in this court upon those questions which he should in fairness have brought to the attention of the court below. (Railroad Co. v. Wrixon, 150 Ill. 532.) It may be that appellee originally had the right to an appeal from the judgment of the justice, and, had the question been properly raised, would have been remitted to that remedy; but that not having been done, the court below, by its judgment, necessarily found the contrary, and that certiorari would lie, and appellee, by his failure to object, and stipulation, having acquiesced in the action of that court, can not now be allowed to urge for reversal that which he should have insisted upon at the time,—and this upon the plainest principles of estoppel, too clear to require the citation of authority. The important question presented upon this record is, whether the proceedings before the justice, prosecuted under division 8 of the Criminal Code, were authorized by law, and valid, and whether the finding and judgment of the circuit court, vacating and setting the same aside, were therefore erroneous. It is insisted that the statutes contained in said division of the Criminal Code relating to search warrants, and under which the justice of the peace proceeded, are in violation of the fourteenth amendment of the constitution of the United States, which provides, “nor shall any State deprive any person of life, liberty or property without due process of law,” etc., and of section 2, article 2, of the State constitution, which provides, “no person shall be deprived of life, liberty or property without due process of law,” in that said statutes provide for the seizure and destruction of property without notice to the owner, a trial, or any opportunity on the part of one having an interest in the property to be heard, and we are cited to very many of the numerous cases in which these provisions of the organic law have found construction and application. They do not, however, afford a satisfactory solution of the question of the constitutionality of the statutes under consideration, which are similar, if not in all essential particulars identical, with those which have been passed and become the law in very many, if not quite all, of the States of the Union. It is not true, as seems to be supposed by counsel, that the statutes in question do not provide for or contemplate the service of any notice upon the owner or party in possession preliminary to the condemnation and destruction of the property seized. Section 3 provides for a search in the day time, and that the warrant shall command the officer, among other things, “to bring such stolen property or other things, when found, and the person in whose possession they are found, to the judge or justice of the peace who issued the warrant, or to some other judge or justice of the peace or court having cognizance of the case.” Section 4 provides for search in the night time, in which case the warrant is to be issued by two judges or justices, and, among other things, shall command the officer “to bring the property or thing described in the warrant or summons, and the person in whose possession they are found, before either of the judges or justices who issued the warrant, or some other judge or justice of the peace of the county.” Section 7 provides that the property seized under the search warrant, for which search is allowed by the act, “shall be safely kept, by direction of the judge, justice or court, so long as necessary, for the purpose of being produced or used as evidence on any trial,” and that, as soon as may be afterward, stolen or embezzled property is to be returned to the owner, and all other things seized by virtue of such warrants to be burned or otherwise destroyed, under the direction of the judge, justice or court. Section 8 provides: “If, on the hearing, it appears there was no probable cause for suing out the warrant, the whole cost may be taxed against the complainant,” etc. It is manifest that sections 3 and 4 contemplate that the officer empowered to execute the search warrant shall bring, not only the things described in the warrant and against which the complaint was made, but also the person in whose possession they are found, if found, before the judge or justice. Notice of the proceedings, by service of the search warrant and bringing the person in possession of the property before the court, is clearly intended by the statute, and .is doubtless required for the purpose of giving the owner or other person interested an opportunity to claim the property, as well as, perhaps, to ascertain whether the party in possession has committed an offense. In respect of all property mentioned in the act, except that which has been stolen or embezzled, the party in possession is, presumably, for the purposes of the act, the owner, if any one can in law be regarded as having ownership. Certain articles or things customarily regarded as property when lawfully acquired and used for a lawful purpose, may, by proper statutory enactment, cease to be so treated, and become liable to seizure, forfeiture and destruction, if they or their use is deemed pernicious or dangerous to the public welfare. And where the wrongful use of the property is surreptitious, or so concealed that discovery thereof can not be had by ordjmu^process and diligence, and the proper officers are apprised, in thcTappropriate mode, that the property is being used in the manner or for the purposes denounced by the statute, and the law therefore violated, a warrant may be issued for the search and seizure of such property. As will be seen later on, statutes for this purpose have generally been held valid enactments. It is ordinarily the practice everywhere to allow claimants to be heard, (Cooley’s Const. Lim. 6th ed. 364, et seq.,) and we think this was clearly the intention'of the act under consideration. By section 7 the property “shall be safely kept, by direction of the judge, justice or court, so long as necessary, for the purpose of being produced or used as evidence on any trial.” It may be a question as to whether the property is being used in the manner or for purposes in violation of law, and this becomes an issue, to be tried and determined according to established procedure; or the person in whose possession the articles are found may be held for the commission of a public offense, in which case the property may be kept, to be used or produced as evidence upon the trial. It is futher provided by section 8, that “if, on the hearing,” it appears that the warrant was issued without probable cause, the complainant may be required to pay the costs. The words “trial” and “hearing,” as here used, are familiar terms, and are generally understood as meaning a judicial examination of the issues between the parties, whether of law or of fact. It will be found that, ordinarily, search warrants are required to particularly specify the place to be searched and the thing to be seized. (21 Am. & Eng. Ency. of Law, 959.) But the statute in this State (sec. 6) requires as explicitly that the return of the officer shall specify the property taken, the place where and the person from whom taken. If, on the hearing, the property is found not to be of the character, or used, obnoxious to the statute, it may be restored to the person from whom it was taken, and to this end, if no other, the purpose of requiring the officer to so state in his return becomes manifest. The statute provides for notice to the only person who could be considered as owner, if the property is found to be of the class which .shall be destroyed. If it is of the obnoxious class which the law condemns, it is very doubtful if it can be deemed the subject of property or any one the owner of it. If, on the other hand, it be harmless and moral, or not of the class to be condemned and destroyed, it can be restored to the party from whom it was taken, and no one be injured by the proceedings. Where, as must be done, it is made prima'facie to appear to the proper officer that property or things are being used in the manner or for the purposes denounced by the statute, and are concealed in a specified place, can it be said to be incumbent upon the £ ate to serve any other or further notice than the bringing of the property and of the person in whose possession found, before the judge or justice? Must the State go out upon an exploring expedition to find the owner, in order to give him a day in court? Statutes of the character of those in question are enacted upon the theory that the proceedings shall be against the thing or in rero, and the State and Federal reports abound in decided cases in which laws of this kind have been held constitutional and valid, where no service was had or contemplated other than that upon or against the offending thing and the person in whose possession it is found. In respect of the major part, if, indeed, not all, of the property of the character described in the act, except that denominated as stolen or embezzled, it would be practically impossible to find the owners, if any. When counterfeit or spurious coin, forged bank notes, and instruments or tools for making the same, are confiscated by public officers, the owners are often unknown, if not in remote and distant parts. Owners of obscene and vulgar [jooks, pamphlets or pictures, who circulate or dispose of their goods secretly and in violation of law, are not readily found and identified with the goods, nor do either they or spurious coin makers hasten to claim rights of property in the things seized. Gambling tables, implements and devices are not usual and customary subjects of property, and if such articles chance to be seized upon by vigilant officers of the law, the owners are. more difficult to locate and apprehend. Experience has shown that while the property, materials and paraphernalia may be seized, and the immoral resort or rendezvous thus perhaps broken up, the proprietors, or those who engage in 'the immoral and nefarious business, are on the alert, and not infrequently evade, if they do not altogether escape, the just penalties of the law. The object of the proceedings to be instituted under the statute is, that the unlawful and immoral practice be stopped, by destroying implements, apparatus, materials, etc., with which it is carried on. The theory is, in respect of such property, that no one is longer the owner of it. The moment it is used and applied in the unlawful business it becomes liable to forfeiture, and though the claimant may appear and claim it, he has no greater rights in property so used than has any other person. That the business or traffic designated, in which the offensive property is used, is immoral and unlawful, and therefore a public nuisance, can not be questioned, and for the promotion of the general welfare the State, under its police powers, has the undoubted right to adopt the most expeditious, inexpensive and effective mode of abolishing and abating the same. Under the various acts of Congress goods and things are seized, condemned and destroyed without service of process on the owner, other than seizure of the goods and arrest of the person in whose possession they are found, and that such statutes, and proceedings under them, are regarded constitutional and valid has been determined in many adjudicated cases in the Federal courts. (Beer Co. v. Mass. 97 U. S. 25 ; Bartemeyer v. Iowa, 18 Wall. 129; United States v. Distillery No. 28, 6 Biss. 384; Boyd v. United States, 116 U. S. 616; Stockwell v. United States, 3 Cliff. 284; Locke v. United States, 7 Cranch. 339 ; “The Luminary," 8 Wheat. 401; Henderson's Distilled Spirits, 14 Wall. 44, and cases cited.) And it will not be necessary to enter upon an examination of them. The doctrine is generally understood and stated to be, that where the offense consists of the possession or use of things which are prohibited by law, either because of their injurious effects upon the public or because the goods belong to another, or when there is an unlawful detention of persons, search warrants may be issued for their recovery, when satisfactory evidence of their being stored in a particular house or place is presented to the judicial officer who issues the warrant. And search warrants have accordingly been granted to search for stolen goods; for counterfeit money, forged bills and notes; for goods held or smuggled into the country in violation of the revenue laws of the United States; for implements of gaming or of counterfeiting; for lottery tickets or intoxicating liquors kept for sale in violation of law; for obscene books and papers kept for sale or circulation; for gun powder, explosives and dangerous materials so kept as to endanger the public safety; for the recovery of public records and books retained from proper custody; for females supposed to be concealed in houses of ill-fame, children enticed away from parents or guardians, and in aid of sanitary and other police regulations. (Cooley’s Const. Lim. 6th ed. 370; Tiedeman on Lim. of Police Power, 462, and cases in notes 2, 3, 4.) And the rule in all such cases generally seems to be, that the warrant must command, not only that the goods or articles to be searched for, if found, but the party in whose custody they are found, be brought before the magistrate, “to the end,” says Judge Cooley, “that, upon further examination into the facts, the goods and the party in whose custody they were may be disposed of according to law.” (Cooley’s Const. Lim. 369, and cases in note 4.) Searches and seizures of the character in the case at bar are not deemed unreasonable, and therefore are not within the inhibition of Federal and State constitutions, which guarantee to the citizen immunity against unreasonable searches and seizures. It was said by Justice Bradley in Boyd v. United States, 116 U. S. 616, that “laws which provide for the search and seizure of articles and things which it is unlawful for a person to have in his possession for the purpose of. issue or disposition, such as counterfeit coin, lottery tickets, implements of gambling, etc., are not within the category of unreasonable searches and seizures. Commonwealth v. Dana, 2 Metc. (Mass.) 329. Many other things of this character might be enumerated.” (See, also, Langdon v. People, 133 Ill. 382.). The exercise of the power should be properly guarded, and every proper means adopted in order to prevent abuses and infringement upon the rights of the citizen under the constitution. To this end, we think, the evident purpose and intent of the legislature in requiring that not only the property, but also the person in whose possession it is found, shall be brought before the court, were to acquaint parties who might be interested, with the proceeding, and give opportunity to be heard concerning the disposition that should be ultimately made of the property. The legislature has seen fit to require this form of notice, which they, in their discretion, must have deemed sufficient for the summary purposes and objects of the act, and we do not feel inclined to hold that it is insufficient, or that any other or further notice should be given. It is the duty of this court to hold the statutes under consideration constitutional and valid, if it can consistently and reasonably be done, (People ex rel. v. Gaulter, 149 Ill. 39, and cases cited,) and in view of this firmly established doctrine we are of opinion that such provision is made by the statute for notice of the proceedings and a hearing of the matters involved, that no one under it will necessarily be deprived of his property without due process of law. It follows, therefore, that we are also of the opinion that the circuit court erred in holding the statutes in question unconstitutional and void, and the judgment will accordingly be reversed. Judgment reversed.