Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-10-21
KENO.
Fiat OF Iudg8 Lee Restraining the
Police Commissioners.

complainant IN n pursuit OF MS business
of Keno at 43H Jefferson street, and from
arresting and hhprisoning complainant,
his guests, &c, and from selling or de-
strOying his property, implements, DC.
The following nat of Judge Lee, of the
Law Court, IL Exhaustive as 10 the rights
Of a citizen and the powers of the Police
Commissioner in the premises:
The injunction herein prayed for is
refused. We bsdieve the process issued
from the Municipal Court was utterly
void; that the Judge of that Court had
no power or Jurisdiction to issue the
same. The process ISSUED Isl the nature
Of an injunction or writ of prohibition.
Tho Judges of the Law and Criminal
Courts of the STATE, except the Judge oil
the Municipal Court of Memphis, have
power TO issue hljunctions and other e.
t%ruordinSry process returnable to
the Chancery Court. The exer-
else of this power by the Judge of the
Municipal COur Is specially prohibited
by its organic aia. The process issued in
this case, however, Is not made returna-
bic to the ChaneeTy Court, but Is an Origi-
nal mandate OF, and made r~eturnable 10,
the Municipal Court. In regard to the
powers 20 issue the process Of injunction,
returnHble TO his own Court, the Judge ol
the Municipal Court stands upon the
same footing with the Judges OF all the
Law and Chancery Courts of the state.
All the powers possessed by any OF them
20 issue such profess, 50 ~returnable, is de-
| rived from section 1863 of the code. This
provision of the o)de would most certain
ty authorize the issuance of an Injunction
~ an original process, returnable to the
Municipal Court.
I'm ~eNplanatioTi of the comment upon
the action Of the Judge OF the Municipal
Court, we will stitte that the said j. w.
- ,.wTTa1 go m srs.r..
ton TO Judge FOute, which was granted,
and afterwards, upon argument, was
quashed and naught held, from which
ruling of the Judge of the Municipal
Court the said J. w. Alley appealed 10 the
| Supreme Court. In the petition present.
ed to Judge Lee, he alley claims that
| his appeal supercedes the action of Judge
Foute-quashing the injunction hereto
fore granted, etc.--and that by virtue of
aid appeal, the injunction issued by
Judge Foute remained in full force and
effect until the case was heard before the
Supreme Court.-REPORTER.
Judge Lee goes on to say The effect
of an Injunction issued in pursuance of
the prayer of this bill, would be 10 give
vitality and legality 10 a process which it
is apparent was Toid In its inception,
never had any legal force, and might have
been d~isregaTded by the defendants. In
junction does not lie TO restrain a public
officer in the discharge Of his duty. The
place of business of the complainant was
public. and open 10 the visitation of the
defendants or any of their force. They
are not charged with breaking doors or
using any violence TO effect an entrance.
II is certainly thtir duty 10 arrest u
party found committing an Offense in
their presence Ginning is made al Of
Tense by the statute law or the State; so
is its encouragement or promotion.
Presence in a gaming room, unless
in the performance Of official duty,
is an 4" encouragement and promotion
of the offence. Hence, E" customers and
guests " are liable to arrest equally with
the proprietor. Keno " is the most Ian
gerous and alluring of gaming devices;
in the s~eni-lOttery form that il assumed,
and the publicity with which it is conduc-
ted, 1t is far mora calculated to sntice the
young and the labOiinS classes, those hav-
ing families dependent upon them, and
who can iliy afford to lose their hard
earnings, than any gaming device that
modern ingenuity has su Zgested, so far as
its destructive, den.oraliZing n ~ruinous
influences upon society are concerned.
d" Fare" Is comparatively a harmless rec
rea.ion. 1t does not Affect the same classes
has never been Conducted openly, and
reaches, with its Iernicious Influences,
but a small clement OF society. We think
it the duty of the police force to arrest all
parties present in Keno" roOms as often
As they find the offence of gaming being
committed in theirpresence, andtherefore
so far as the bill prlys an injunction to
restrain the officers of the Law in the per-
Torrance of this duty, thesame is refused.
So far as the destruction of the imple-
ments seized by the defendants il con
cerned, we think the bill presents a ques-
tion Of much gravity and doubt. The au-
thority for such destruction is found in
section I722 of the code, which distinctly
authorizes such destruction and the sum
mUGing of a posse cDniitatus to perform
1.-THE breaking of doors, etc. 1t has
been the law in Tennessee since 1901. The
section contains substantially the law Of
1911, That provided, in addition, that
gamesters might be sold at auction as a
servant upon three days notice. While
law has remained upon the tatu
book all this time, and apparently I'M
questioned, yet if it appears TO be in viola
ton of the Constitution, its enforcement
should most certainly be restrained.
Lapse Oftime could not give validity to
an unconstitutional act. Gaming imple-
ments are certainly property, as much as
any article can be; md if they are nos
put TO any unlawful purpose, may be
owned and used, and no law could inter
The law would as sacredly guard
and protect the citizen in its enjoyment as
it would in that of any species of proper
". Does the fact that the property is put
to al unlawful use, to-wit: gaming. au-
.horize its seizure and destruction with
warrant, trial conviction or cOndem- I
and DOES q law authorizing such
of seizure and destruction con-
tain no infraction of the Bill of Rights of
the Constitution? The law is entitled to
ne respect on account of its age, but
can look upon il in no other light than
Is a clear violation of the letter and spirit
IF the Constitutional provision protecting
he right of properly. Not hiatt gaming inn
plements are not subject to seizure and
also TO destruction by iue process Of law,
Dutthat the citizen is protected in his rights
IF property until the same is condemned
BY the law OF the lald to destruction
through the regular forms of legal pro-
and by the Judgment Of his peers.
is guaranteed by section S, article 9,
II the Constitution, 10 every citizen. We
if the police find property, being
n their presence used for gaming pur-
poses, they may seize the same and turn
{ over to the custody Of the law, to await
egal proceedings and The Judgment of a
ury, and that upon conviction and or
lemnstiOn the same may be destroyed.
my other mode Of procedure we deem
'~iQlatiye of the Constitutional right of
he citizen, and any law to that effect
TO be held null and void.
" Upon complainant executing bond
n the sum Of $500, writ Of i%niunc-
ion may issue restraining the defendants
rom any further destruction of the prop
rty of complainant, unless the same be
ondemned by due process Of law, and the
Judgment of complainant peers.
"H. s. LEE,
Judge Of Law Court of Memphis"
Bond being given by complainant, the
1Tit ofipiunctiOn was issued by the Clerk
nd Master, Ia accordance With the above
at.