(With Resolution. March 31, 1964)

The Director of the National Bureau of Investigation hereinafter
referred to as the Director seeks the review of an order of the Court
of First Instance of Rizal directing the return of fifty-one (51) slot
machines, and the paraphernalia thereof, to the owners thereof. The
appeal is before us only questions of law being raised therein.

It appears that sometime before September 1, 1959, said slot
machines and paraphernalia were being operated by the owners thereof in
Pasay City pursuant to licenses issued by said City in conformity with
its Ordinance No. 106. On the date adverted to above, the
aforementioned machines and paraphernalia, together with slot machines
operated without said license, were seized under and by virtue of
search warrants issued by a Judge of the Court of First Instance of
Rizal, Said unlicensed slot machines were the subject matter of
criminal case Nos. 9571-1 and 9569-I of the Municipal Court of Pasay
City. However, the special prosecutor in charge of said cases opined
that’ no criminal cases should be filed against the owners of the
fifty-one (51) slot machines involved in the case at bar, and,
accordingly, recommended that said machines and its paraphernalia be
released and returned to the owners thereof. As a consequence, on
September 2, 1959, the Secretary of Justice ordered the Director to
release said slot machines to their respective owners. However, this
order was subsequently suspended, the Director having invited attention
to the fact that the court which issued the search warrants adverted to
above might punish him for contempt if he released the machines without
judicial authority therefor. This led to the filing of a motion by the
owners of said machines praying that the same be ordered released and
returned to them.

The Director objected to the motion upon the ground that the
machines in question are intended to be used for the commission of an
offense (gambling), and are a public nuisance, as well as illegal per se. After due hearing, the lower court overruled this opposition and granted said motion. Hence this appeal.

The main issue therein is whether or not the aforementioned slot machines constitute a nuisance per se
or will be devoted, if released, to some unlawful use. Appellant
maintains that the answer should be in the affirmative, relying mainly
upon the decision of this Court in Philips vs. Municipal Mayor
(G. R. No. L-9183, promulgated May 30, 1959), in which we held that an
ordinance of the municipality of Caloocan authorizing the operation of
slot machines was illegal it being violative of section 2242 (j) of the
Revised Administrative Code imposing upon municipal councils the duty
“to prohibit and penalize gambling.”

The doctrine laid down in the Philips case is not in point, for
Republic Act No. 188, which is the Charter of Pasay City (Section 16[n]), expressly authorizes its municipal board “to regulate and fix the amount of license fees for” inter alia,
“slot machines” a power not granted to the municipal council of
Caloocan. It being conceded that the municipal board of Pasay City has
passed Municipal Ordinance No. 108 (approved on June 26, 1957), fixing
the amount of the license fees for the operation of slot machines, and
that the owners of the slot machines in question have paid said fees
and secured the corresponding licenses, it follows that the operation
of said machines is neither illegal nor constitutes a nuisance.
Needless to say:

“The mere possession of slot machines or even its
operation for amusement and not for profit does not constitute a
crime.” (38 CJS. 159, footnote 99 [1].)

“A slot machine is not a ‘gambling device’ per se, because it can be operated legally as well as illegally.” (Gen. Code No. 13066, Nader vs. State, Ohio Supp. 287.)

WHEREFORE, the order appealed from is hereby affirmed, without special pronouncement as to costs. It is so ordered.

Bengzon, C. J., Bautista Angelo, Labrador, Barrera, Paredes, Dizon, Regala, and Makalintal, JJ., concur.

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March 31, 1964

CONCEPCIÓN, J.:

Appellant seeks a reconsideration of the decision of this Court in
the above-entitled case upon the ground that the ruling therein made is
a complete reversal of the view taken in Uy Ha vs. City of Manila (108
Phil., 400); that the slot machines in question are gambling devices
the operation of which constitutes a violation of Article 195 of the
Revised Penal Code punishing gambling; and that said slot machines are
illegal per se.

Appellant’s contention is untenable inasmuch as:

1. The case of Uy Ha vs. City of Manila (L-14149, May 30, 1960), relied upon by appellant, does not support his pretense for:

   (a) In the case cited there was an ordinance in effect prohibiting
   “the installation and/or operation of * * * ‘pinball’ machines”, the
   legality of which ordinance was contested by Uy Ha, but upheld by the
   Court, as a valid exercise of the authority of the City of Manila,
   under the general welfare clause found in its charter, whereas the
   ordinance involved in the case at bar expressly authorizes the operation of the slot machines in question;

   (b) In the Uy Ha case this Court quoted with approval that view that “a
   slot machines is not per se a gambling device, since it may be used and
   played upon for innocent purposes” and that the “use to which it is put
   must determine its character”, as set forth in Heartley vs.
   State (157 S.W. 2nd 1, 178 Tenn. 354), applying the doctrine laid down
   in Ex parte Overby (279 P. 523, 524, 43 OH. Cr. 400, 39 Words and
   Phrases, p. 519);

2. In Phillips vs. Municipal Mayor (G.R. No. L-9183 May 30,1959), cited in appellant’s brief, there was evidence regarding the nature of the slot machines involved therein as gambling devices; but no such evidence has been introduced or sought to be introduced in the case at bar. In Sopor vs.
   Michal (123 Md. 542, 91 Atl. 684, LRA 1915A 232), it was held,
   reiterating the view expressed in Wagner vs. Upshur (95 Md. 519, 52
   Atl. 509, 93 Am. St. Rep. 412), “that articles or property that may or
   may not be used for legal purposes cannot be seized until it has first
   been established that the article was procured, held or used for an
   illegal purpose” and “that in order to establish that the article
   was designed to be put, or has been put, to an illegal use, there must
   be a proceeding in a court of criminal jurisdiction * * *;”

3. No such proceeding has taken place in connection with the slot machines
   involved in the present case. Worse still, no such proceeding is
   seemingly contemplated to be instituted in relation thereto. Although
   appellant maintains that the operation of said slot machines
   constitutes a crime:

   (a) The special prosecutor of the Department of Justice in charge of the case in the lower court declined to file any information against the owners and/or operators of said slot machines, upon tho theory that they had committed no criminal offense, and, accordingly, recommended that said machines be released and returned to its owners;

   (b) Acting favorably upon his recommendation, the Secretary of Justice,
   in his letter to appellant herein, dated September 2, 1959, ordered him
   to return said machines “no criminal case having been filed in
   connection with their possession and operation” and “inasmuch as no further action is contemplated by this Office or any prosecuting agency in connection with them”;

   (c) Although this order was suspended upon the suggestion of appellant
   herein, to forestall any possible liability for contempt of
   court—should the release be made without express authority of the court
   that issued the search warrant pursuant to which said machines had boon
   seized—it would seem clear that the
   Department of Justice still intends to file no action against the
   owners of said machines, for no such action has been instituted despite
   the lapse of about five (5) years since the seizure took place, on June 3, 1959, notwithstanding the request,
   made by counsel for the owners of said machines, in a letter to the
   Secretary of Justice dated July 5, 1959, to the effect “that the NBI
   officers concerned should be directed to act promptly—either to return the properties to their owners or to institute such action,
   which they may deem proper—in order that the owners will have the
   opportunity to protect their rights and obtain redress of the wrong
   done against them;”

4. Appellant would have
   the court order, in effect;, the forfeiture or confiscation of the slot
   machines in question without a proceeding appropriate therefor. In
   Woods vs. Cottrell (55 W. Va. 476, 47 SE 275, 65 LRA 616, 104
   Am. St. Rep. 1004, 2 Ann. Cas. 933), the Court had the following to say:

   “* * * We think that whether the machines shall be burnt or released depends on whether the accused is guilty. If not guilty lie is not himself to be punished, neither is the machine to be burnt, and as only the trial
   court can determine his guilt, so only it can condemn the machine to be
   burnt. If the party is guilty, destruction of the machine follows the
   ascertainment of his guilt; if acquitted, judgment of restitution
   to him of his property follows. Though the thing be plainly an
   instrument of gaming under the statute, yet its owner be acquitted of
   using it for the purpose, it cannot be destroyed, as it is only
   instruments actually used and kept for gaming that are thus condemned
   to destruction.” (Italics ours.)

   In Church vs. Goodnough (14 F. [2d] 432, 434), it was held:

   “When the goods seized are not in themselves subject to condemnation
   except when intended or used for illegal purposes, judicial proceedings
   for forfeiture, which shall give notice to claimants and afford them an
   opportunity to show that condemnation is not justified, seem necessary for due process of law.” (Italics ours.)

   To the same effect in Robenson vs. Inches (220 Mich. 490, 190 NW 227, 228) from which we quote:

   “* * * while the officers had a right to seize the money to be used as evidence, it was their plain duty to return it when complaint was neither made nor contemplated.”
   (Citing Newberry vs. Carpenter, 107 Mich. 573, 65 N.W. 530, 31 L.R.A.
   163. 61 Am. St. Rep. 346, Taylor vx. Circuit Judge, 209 Mich. 101, 176
   N.W. 550, and sections 15880-15883, Comp. Law 1915.) (Italics ours.)

5. Although the operation of slot machines in the Philippines may—under
   certain conditions, the existence of which has not been established in
   the case at bar—constituto gambling, the latter is illegal not per se, but only if and when prohibited by statute;

6. There can be no doubt but that, under the theory of preventive justice,
   the state may by law prohibit and punish such things as it may deem
   inimical to the common good, such as lottery lists, tickets and
   advertisements, and papers and other matters containing letters,
   figures, Signs or symbols which pertain to or are in any manner used in
   the game of jueteng or any similar game, as well as instruments or
   implements intended to be used in the commission of the offenses of
   counterfeiting or falsification, the possession of which is punished in
   the Revised Penal Code (Articles 176, 195 [c] and 196), but neither
   said Code nor any other law punishes the possession of slot machines of
   any kind whatsoever. Thus, in Mullen vs. Mosely (12 L.R.A. [n] 394), State vs. Soucie’s Hotel (95 Mo. 518, 50 Atl. 709), and Police Commissioner vs.
   Wagner ,(93 Md. 182, 48 A 455, 52 L.R.A. 775, 86 Am. St. Rep.
   423)—cited in petitioner’s brief—the theory of preventive justice was
   applied to justify the summary abatement of the objects involved
   therein, as authorized by a statute declariing said objects noxious per se. Upon the other hand, in McConnel vs.
   McKillip (99 N.W. 505), involving the seizure by a game warden of three
   (3) shotguns used in hunting chicken in violation of the game law,
   which provided for the forfeiture of said guns to the state, it was
   held that which forfeiture may take place only upon conviction to the user of the guns, and that otherwise he was entitled to recover the latter in an action for replevin; and

7. If appellant still believes, as he claims, that the operation of the
   slot machines in question is violative of a criminal law, his remedy is
   obvious—to make proper representations with the Department of Justice,
   the views of which, thereon are binding upon him (Sections 79 [c] and
   83, Revised Administrative Code), for the filing of the corresponding
   informations by officers of said Department.

Wherefore, the motion for reconsideration is hereby denied.

Bengzon, C. J., Bautista Angelo, Labrador, Reyes, J. B. L., Barrera, Dizon, Regala, and Makalintal, JJ., concur.