On appeal from the Appellate Division of the Superior Court whose opinion is reported in 32 N.J. Super. 178.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Justice Oliphant. The opinion of the court was delivered by Vanderbilt, C.J.
[17 NJ Page 329] The plaintiffs brought this action in the Passaic County District Court against the county prosecutor, seeking recovery of money taken from each of them during the course of a gambling raid. Subsequently the parties consented to the substitution of the present defendant, the county treasurer of Passaic County, in place of the prosecutor against whom the action was then dismissed. At the trial without a jury the testimony brought out that the essential facts were not in dispute.
The three plaintiffs were admittedly players in a dice game, which took place in the early morning hours of December 6, 1953, at 43 West Broadway in Paterson, New Jersey. State and county law enforcement officers, led by the county prosecutor, conducted a raid upon the game. The front entrance to the building was barricaded with a steel door, which the police tried unsuccessfully to break down. They finally were able to force an entry through a side door, but by that time the dice game had ceased and there was no money in view on the dice table. Of the 52 persons arrested, 48, including the three plaintiffs, were players, while four were operators of the game. According to the police the plaintiffs, along with the other players, emptied the contents of their pockets on the dice table pursuant to the order of the prosecutor. The plaintiffs, on the other hand, claim that the money was taken from them by one of the detectives. In any event, the money along with personal effects was admittedly in the plaintiffs' pockets at the time the police were finally able to gain admittance to the gambling room. All 52 persons were taken to the police headquarters where the 48 players, including the plaintiffs, were formally charged with, and subsequently pleaded guilty to, a violation of the city gambling ordinance, and as a result of the conviction each paid a fine of $200. The four operators of the game were subsequently indicted and convicted of operating a dice game contrary to the provisions of N.J.S. 2 A:112-3. The personal effects of the players were returned to them, but the money seized in the raid was turned over to the defendant county treasurer as contraband of law, as required by N.J.S. 2 A:152-7. It is this money which the plaintiffs seek to recover.
After a full trial the trial court entered judgment in favor of the plaintiffs, Pratico, Lusky and Gallione, in the amounts of $297.04, $205, and $265.01 respectively, these sums constituting the total amount taken from each by the police at the raid. The court found as a fact that the moneys seized from the respective plaintiffs belonged to them personally, were not being used as an integral part of the gambling
operation, and were not dedicated thereto, and that such moneys were not earmarked and segregated as part of the gambling operation, and that the moneys seized were not a gambling device. The court further concluded that N.J.S. 2 A:152-7, which provides that under certain circumstances moneys seized shall be deemed prima facie to be contraband, was not applicable to this case, and even if it were applicable the plaintiffs had overcome the prima facie presumption by showing that the moneys belonged to them personally and had not been used in any way in connection with the gambling.
On appeal the Appellate Division of the Superior Court affirmed in a two to one decision, 32 N.J. Super. 178, the majority declining to upset the factual findings of the trial court, although admitting that "we might have reached a different factual conclusion." The dissenting state judge took the position that the statute, N.J.S. 2 A:152-7, setting up a prima facie presumption was applicable to the case at bar, and that therefore the case called for an independent review of the facts which would compel a reversal of the decision of the trial court. The appeal is before this court as a matter of right in view of the dissent in the Appellate Division, R.R. 1:2-1(b).
The applicable statutory provision is as follows:
"2 A:152-7. Whenever any money, currency or cash shall be seized or captured by the police, constabulary or other officer in connection with any arrest for violation of or conspiracy to violate any gambling law of this state, the said money, currency or cash shall be deemed prima facie to be contraband of law as a gambling device, or as part of a gambling operation, and it shall be unlawful to return the said money, currency or cash to the person or persons claiming to own the same, or to any other person, except in the circumstances and manner hereinafter provided." (Italics supplied.)
(1) It is apparent that N.J.S. 2 A:152-7 is applicable since clearly the moneys were seized by the police "in connection with any arrest for violation of or conspiracy to violate any gambling law of this state." The trial court was
in error in concluding that to bring this particular section of the statute into play there had to be an arrest of the particular persons in possession of the money seized for violation of a New Jersey statute as distinguished from a municipal ordinance. First of all, the statute refers to "any arrest" so the apprehension of the four operators of the game for violation of N.J.S. 2 A:112-3, a gambling law of this State, makes it applicable to this case. As stated in State v. Link, 14 N.J. 446, 453 (1954), "the statutory qualifications are complied with if it appears the arrest was in connection with a violation of the gambling law." Secondly, we cannot subscribe to the theory that the statutory words "any gambling law of this state" are to be limited solely to enactments of the State Legislature. Rather the term refers to any lawful enactment covering gambling, regardless of whether it was passed by the Legislature or by a municipality under the powers granted to it by the Legislature, McGrath v. City of Bayonne, 85 N.J.L. 188, 192 (E. & A. 1913); People v. Ziady, 8 Cal. 2 d 149, 64 P. 2 d 425, 429, 430, 108 A.L.R. 1234 (Sup. Ct. 1937); Southern Ry. Co. v. City of Danville, 175 Va. 300, 7 S.E. 2 d 896, 898 (Sup. Ct. Apps. 1940); Herman v. ...