In re TWENTY-ONE SLOT MACHINES, etc. TUCSON PRESS CLUB et al.
Reversed and remanded with instructions.
E. T. Cusick and Richard H. Chambers, Tucson, for appellants.
Fred O. Wilson, Atty. Gen., Maurice Barth, Asst. Atty. Gen., and Robert Morrison, County Atty. of Pima County, Tucson, for appellee.
David H. Palmer, Jr., County Atty. of Yavapai County, Prescott, amicus curiae.
Gibbons, Superior Court Judge. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur. De Concini, J., having announced his disqualification, the Honorable J. Smith Gibbons, Judge of the Superior Court of Apache County, was called to sit in his stead.
Gibbons, Superior Court
[72 Ariz. 410] This is an appeal from judgments and orders of the superior court of Pima County decreeing certain slot machines property illegal per se, directing the destruction thereof, and denying owners' motion to return money contained therein at the time of seizure.
Since the docketing of this appeal, by stipulation of counsel there has been an order substituting (a) Frank A. Eyman, present sheriff of Pima County, Arizona, as appellee for and in stead of Jerome P. Martin, former sheriff, and (b) Robert Morrison, county attorney of Pima County in lieu of Bryce H. Wilson, former county attorney. It was the former officers who initiated the proceedings here under review.
The stipulated and established facts necessary to a determination of this case are that Jerome P. Martin, as sheriff of Pima County, seized, without a search warrant or other legal process, certain slot machines and money contents located on and within the property of the Tucson Press Club, the E1 Rio Golf and Country Club, and the [72 Ariz. 411] Old Pueblo Club, respondents, appellants, whose premises are open only to members and invited guests, and not to the public. Criminal complaints were filed in the justice court charging each manager with the crime of permitting the operation of slot machines on the premises of his respective club. Defendants moved for a suppression of the evidence (consisting of the said machines and money contents) and for a return thereof, which motion was granted and petitioner directed to replace all property seized to the locations and in the same condition as when removed from said premises. The sheriff appealed from this order and the superior court of Pima County, on August 15, 1949, dismissed said appeal and remanded the case to the justice court for further proceedings. Thereupon the sheriff was again ordered to return the property taken.
On September 13, 1949, the club managers were tried on the criminal charges pending and each severally acquitted. On August 16, 1949, petitioner initiated proceedings in the superior court for the destruction of the slot machines under section 7, chapter 110, Session Laws of 1947, section 12-423, A.C.A.1939, Cumulative Pocket Supplement. The respondents answered the petition, admitted and claimed ownership of the slot machines, but alleged the seizure was unlawful and void and that petitioner did not have legal custody thereof. Respondents contend that all matters involved herein were adjudicated in the justice court, that the trial court herein had no jurisdiction to hear this matter, that the property was not in custodia legis and the proceeding was and is "extra judicium". Motions for summary judgment and for the return of the money were also filed at the time of the answer. One of the grounds alleged in the motion for summary judgment was that section 7, chapter 110, supra, is unconstitutional under article 4, part 2, section 13, of the constitution of Arizona, in that the subject matter contained in section 7 is not within the scope of the title of the Act. These motions were denied, the slot machines were adjudged illegal per se and ordered destroyed.
From the foregoing facts we concur in the conclusion expressed by the trial court that these proceedings are separate and distinct and are in nowise ...