The opinion of the court was delivered by: FOLLMER
This is a motion by defendants to dismiss the action for the following reasons:
1. Because of the rule that a federal court will not ordinarily restrain local officers from enforcing criminal laws of a state, and there being no allegations in this action of such unusual or exceptional circumstances as would impel a federal court to deviate from this rule.
2. Because of the pendency of the action in the Court of Quarter Sessions of Indiana County, Pennsylvania, the slot machines being within the jurisdiction and under the control of said court, the plaintiff herein having voluntarily appeared and presented evidence and arguments of law in said proceeding.
3. Because of the ultimate question at issue between the parties hereto, the defendants have not exceeded the limitations of their police power as defined by the Constitution of the United States.
This is an action by O. D. Jennings & Company, an Illinois corporation, having its principal office in the City of Chicago, State of Illinois, against J. Murray Buterbaugh, James F. Washington, and Paul W. Jeffries, respectively, District Attorney, County Detective, and Sheriff of Indiana County, Pennsylvania, all of whom are sued in their said official capacities, and all of whom reside in and are citizens of the Borough of Indiana, Indiana County, Pennsylvania.
The complaint alleges that the plaintiff is engaged, inter alia, in the manufacture of slot machines; that pursuant to an order from John Costello, Homer City, Pennsylvania, to ship to him, but to be consigned in the name of William J. Bryan, plaintiff did on or about March 10, 1948, ship 15 boxes containing slot machines from the City of Chicago, Illinois, consigned to William J. Bryan, Homer City, Pennsylvania; that the fair and reasonable market value of the 15 slot machines was $ 3,332; that the said machines were shipped C.O.D. in interstate commerce, to wit, by a common carrier, Pennsylvania Railroad Company, from Chicago, Illinois, to Homer City, Pennsylvania; that after the slot machines had reached Homer City, Pennsylvania, but before they had been delivered to the purchaser or consignee thereof, and before the sum to be collected on delivery had been paid to the common carrier, to wit, Pennsylvania Railroad Company, the defendants Washington and Jeffries, having first secured a warrant, jointly and severally seized and took possession of the boxes of slot machines from the freight house or warehouse of the said Pennsylvania Railroad Company at a time when the same were in interstate commerce within the meaning of Article 1, Section 8, of the Constitution of the United States. Further it alleges that after seizing and taking possession of the slot machines as aforesaid, the defendants removed the same to the basement of the Indiana County Jail, and although requested so to do, have refused to deliver same to plaintiff; that since the seizure of the slot machines as aforesaid, the purchaser or consignee has refused to pay for or accept the same, and that the defendants have instituted proceedings in the Court of Quarter Sessions of Indiana County, Pennsylvania, under the Penal Code of Pennsylvania, seeking an order for their destruction.
The complaint seeks judgment for the title to and possession of the slot machines, and further that defendants be permanently enjoined and restrained from destroying, damaging or removing the machines, and that defendants be ordered and directed to deliver possession and control of the machines to plaintiff or its agent, and be further restrained from prohibiting or interfering with plaintiff in shipping or transporting the machines out of the State of Pennsylvania.
It is admitted that after the seizure of the machines, the District Attorney of Indiana County, on April 5, 1948, filed a petition in the Court of Quarter Sessions of Indiana County, praying for an order to destroy the machines, and that plaintiff appeared and filed an answer to the said petition, and at the hearing notified the court of its intention to file a complaint in the United States District Court for the Western District of Pennsylvania, raising the question of jurisdiction and the right of local officers to seize goods in interstate commerce.
Defendants admit that the machines are in the possession of defendant Jeffries, Sheriff as aforesaid, but claim that he is not free to return them, destroy them, or dispose of them in any manner, as they are in custodia legis pending the outcome of the proceeding instituted as aforesaid in the Court of Quarter Sessions of Indiana County, to Number 56 March Sessions, 1948.
The proceeding in the Court of Quarter Sessions of Indiana County was instituted under the provisions of the Pennsylvania Act of March 31, 1860, P.L. 382, § 60, 18 P.S. § 1445. In Schuettler v. Maurer, 159 Pa.Super. 110, 112, 46 A.2d 586, 588, the court held, 'The statutory procedure, indicated by the two sections of the Act of 1860 was intended to be exclusive to determine the legality of such seizure, as outlaw property, so long as the devices and money remained in the hands of the officer who seized it, or the district attorney, or the clerk of court, or otherwise in custody of law subject to the control of the quarter sessions court. The act is not explicit as to the practice in raising the issue nor the method of securing a hearing by the court. The proceeding however is in rem and the prior conviction of the owner on a charge of setting up a gambling device is not essential. * * * The issue may be raised on petition of the district attorney, or of a police or other officer, for an order of forfeiture of money and the destruction of gambling devices * * * or on petition of an owner seeking to recover possession of his property which had been seized. * * * But however raised, the quarter sessions has jurisdiction to decide the issue only so long as the property remains in custody of the law.' (Emphasis supplied.) It is agreed that the slot machines are in the custody of the Sheriff and the County Detective in the basement of the Indiana County Jail. There is, therefore, no question but that this is an in rem proceeding;
that the property in question remains in the custody of the law and that the Court of Quarter Sessions of Indiana County, Pennsylvania, acquired and still had jurisdiction of the res at the time of the institution of this suit.
Moore's Federal Practice, Vol. 2, Paragraph 3.06, in discussing the cause of conflict of jurisdiction between state and federal courts, states, inter alia, as follows:
'(1) where the federal and state courts have concurrent jurisdiction, as in diversity and general federal question cases, action in personam may proceed concurrently;
'(3) a court having in rem or quasi in rem jurisdiction must necessarily have exclusive jurisdiction over the res involved to the extent necessary ...