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District Court of Appeal, First District, Division 2, California.

LEE ON et al. v. LONG et al.

Civ. 14322.

Decided: November 16, 1950

Deasy & Dodge, Oakland, for appellant. Fred N. Howser, Attorney General, Clarence A. Linn, Deputy Attorney General, Francis W. Collins, District Attorney of Contra Costa County, Thomas F. McBride, Deputy District Attorney, Martinez, for respondents.

Plaintiffs were arrested in August of 1945 and charged with a violation of section 330 of the Penal Code (gaming). At the time of their arrest the sheriff and his deputies seized certain dice, dominoes, playing cards and lottery tickets. From the table or tables at which plaintiffs were seated they also seized $6,248.35 in money. The County of Contra Costa filed a petition in the superior court praying for an order authorizing the destruction of the cards, dice, etc. and the forfeiture of the money to the county. Plaintiffs brought an action against defendant Long, as sheriff, and Collins, as district attorney, for the recovery of the money. The two cases were consolidated for trial and the court while denying the county's prayer for the forfeiture of the money also denied plaintiffs a recovery in their action.

The trial court found that the money was seized from gambling tables where it was ‘in use in gambling games, including dice and dominoes'; that plaintiffs had pleaded guilty to a violation of Penal Code sec. 330 and each had paid a fine of $250; that the money had been deposited by defendant Long with the county treasurer and that plaintiffs had filed no claim ‘against defendants in their official capacity * * * pursuant to the requirements of section 29704 of the Government Code.’ The court concluded that the claim was barred by the failure to comply with Government Code sec. 29704, and that ‘the law will not lend its support to a claim founded on its own violation.’

The court made no finding on the allegation of plaintiffs' ownership of the money, which was denied by the answer, and respondents argue that the judgment must be affirmed because plaintiffs made no such proof. An examination of the transcript shows that proof of ownership was reserved with the consent of the trial judge. At the close of the trial counsel for plaintiffs said: ‘Now if your honor decides to not confiscate it, I would desire the right to produce the rightful owners.’

After a running discussion between counsel and court plaintiffs' counsel finally stated: ‘And if you decide there is some further action, then I will produce the evidence at that time.’

The judge replied: ‘All right.’

The proof of ownership was clearly reserved with the understanding that if the trial judge determined that plaintiffs could not recover in any event its production in the trial court would serve no useful purpose. In this state of the record it would be grossly unfair to plaintiffs to hold now that they are foreclosed on appeal by following the procedure to which the court assented.

Gov.Code sec. 29704, which at the time of the seizure was Pol.Code sec. 4075, provides: ‘Any claim against the county or any public officer in his official capacity payable out of any public fund under the control of the board (of supervisors) * * * shall be presented to the board before any suit may be brought thereon.’

The controlling language, so far as this action is concerned is ‘payable out of any public fund under the control of the board’. Unless the money seized by the defendant sheriff, by his deposit of that money with the county treasurer, thereby became a part of a ‘public fund under the control of the board’, sec. 29704 had no application to a claim for its recovery.

Respondents argue that the sheriff was authorized to make the deposit with the county treasurer by section 335a of the Penal Code, which reads in part:

‘In addition to any other remedy provided by law any machine or other device the possession or control of which is penalized by the laws of this State prohibiting lotteries or gambling may be seized by any peace officer, and a notice of intention summarily to destroy such machine or device * * * must be posted in a conspicuous place upon the premises in or upon which such machine or device was seized. * * * (I)f such machine or device shall be held by the court, in any such action, to be in violation of such laws, or any of them, the same shall be summarily destroyed by such officer immediately after the decision of the court has become final.

‘* * * Any and all money seized in or in connection with such machine or device shall, immediately after such machine or device has been so destroyed, be paid into the treasury of the city or county * * * where seized, said money to be deposited in the general fund.’

Even assuming sec. 335a to be applicable to this case it did not authorize the sheriff to deposit the money with the county treasurer before the destruction of the gambling devices ‘in connection with’ which the money was seized. The section clearly authorizes such deposit only ‘after such machine or device has been * * * destroyed.’ Here the question of the destruction of the cards, dice etc. was submitted to the court contemporaneously with the plaintiffs' claim for the recovery of the money and the time had not arrived under the plain terms of the section for the payment of the money by the sheriff into the county treasury.

We are satisfied, however, that section 335a was not applicable on the facts found. The court found that when seized the money was ‘in use in gambling games, including dice and dominoes.’ While some lottery tickets were seized there was no finding that the money had any connection therewith and no testimony to that effect. Furthermore the plaintiffs were charged with and pleaded guilty to a violation of Pen.Code sec. 330. For that reason we feel it unnecessary to explore the question whether the mere ‘possession or control’ of lottery tickets ‘is penalized by the laws of this State prohibiting lotteries or gambling’. Addressing ourselves to ‘cards and dominoes', the only gambling devices in connection with which the court expressly found that the money was being used, we have found no statute of California which penalizes their ‘possession or control’.

In another connection the court considered the scope of Pen.Code sec. 335a in Chapman v. Aggeler, 47 Cal.App.2d 848, 119 P.2d 204. The court in that case pointed out the clear language of the section which limits its operation to ‘any machine or other device the possession or control of which is penalized by the laws of this State’, and properly refused to extend it beyond the scope of its language. Pen.Code sec. 330a penalizes when used for gambling the possession or control of certain gambling devices but it is limited in its application to ‘any slot or card machine, contrivance, appliance or mechanical device’ and ‘any card dice, or any dice having more than six faces or bases each.’ Whatever the purpose of the legislature in limiting the operation of sec. 330a to the enumerated devices neither ordinary six sided dice nor dominoes (nor indeed playing cards) are included in the enumeration. Sec. 330 prohibits the act of gambling ‘with cards, dice or any device’, but does not penalize their possession or control. Respondents have not attempted to point out any other section or statute which penalizes the possession or control of ordinary dice or dominoes whether used for gambling or not and we have found none. We conclude that under the findings it does not appear that sec. 335a has any application to the money involved in this action.

Respondents assert that even if sec. 335a has no application to this money ‘(t)he sheriff paid it into the treasury as he was required to do even if the seizure was illegal’, citing People v. Bunker, 70 Cal. 212, 11 P. 703. The case is not in point. In that case the officer collected fees under a statute which in terms required him to pay the fees into the treasury. The court said: ‘The defendant, having assumed to act under a statute of this state, and having collected moneys according to the letter of that statute, cannot be heard to say that the statute was in conflict with the constitution of the United States; that he was unauthorized to collect them; and that he was not bound to pay them over to the proper officer.’

Here no statute is pointed out, except Pen.Code sec. 335a, which would give even color of authorization to the sheriff to pay these moneys into the county treasury, and as we have pointed out above the money under sec. 335a is only to be paid into the treasury after the destruction of the gambling devices therein referred to. Even though an officer purports to act in an official capacity in collecting money where there is no statutory provision therefor its payment into the treasury is not authorized. San Bernardino County v. Davidson, 112 Cal. 503, at page 505, 44 P. 659, in which People v. Bunker, supra, is distinguished; cf. Gov.Code, sec. 27000, limiting money received by county treasurer to ‘money belonging to the county and all other money directed by law to be paid to him’.

The deposit of this money with the county treasurer by the sheriff being without legal authorization the treasurer must be regarded in law as a mere depositary for the sheriff's convenience and Gov.Code sec. 29704 has no application thereto.

The remaining question is, assuming that plaintiffs can establish their ownership of the money as alleged in their complaint, are they barred from its recovery by the court's finding that it was ‘at the time of its seizure in use in gambling games.’

Respondents point to no statute authorizing its forfeiture, except Pen.Code sec. 335a which we have held inapplicable. The legislature has expressly provided for the forfeiture of money used in gambling in at least two instances, Pen.Code sec. 335a and Pen.Code sec. 325 which provides: ‘All moneys and property offered for sale or distribution in violation of any of the provisions of this chapter (prohibiting lotteries) are forfeited to the state * * *.’

Under the rule expressio unius and the rule strictly construing statutes involving forfeitures the legislature's express declarations must be held to mark the limits of such forfeitures. This is made conclusive by the equally express legislative declaration in sec. 2604, Pen.Code: ‘No conviction of any person for a crime works any forfeiture of any property, except in cases in which a forfeiture is expressly imposed by law’. (Emphasis ours.)

Despite this legislative declaration prohibiting forfeitures for crime except where expressly imposed by law, respondents seek to work an indirect forfeiture of money for the crime of gambling with no express statutory authority for such forfeiture on the sole ground that when seized the money was being used in gambling and is therefore tainted. To deny plaintiffs a recovery of this money on this ground, assuming they prove their ownership, would be a judicial nullification of Pen.Code sec. 2604 above quoted. See Chapman v. Aggeler, supra, 47 Cal.App.2d 848 at page 860, 119 P.2d 204, discussing Pen.Code sec. 677 since superseded by sec. 2604.

Respondents cite from other jurisdictions in support of the claim that plaintiffs are barred from recovery because the money was being used for gambling: Dorrell v. Clark, 90 Mont. 585, 4 P.2d 712; Krug v. Board of Chosen Freeholders, 3 N.J.Super. 22, 65 A.2d 542; Fairmount Engine Co. v. Montgomery Co., 135 Pa.Super. 367, 5 A.2d 419; Germania Club v. City of Chicago, 332 Ill.App. 112, 74 N.E.2d 29; Hofferman v. Simmons, 290 N.Y. 449, 49 N.E.2d 523; and State v. Johnson, 52 N.M. 229, 195 P.2d 1017. We have carefully read all of these cases. They proceed on several grounds: 1. that money in a slot machine is a part of a gambling device and hence subject to forfeiture under a statute authorizing confiscation of any gambling device; 2. that money in a slot machine belongs not to the owner of the machine but to those who deposited it therein as players; 3. that money received in payment of an illegal bet belongs to the bettors and not the recipient; 4. that money ‘earmarked for use in gambling’ is a gambling device within the meaning of a particular statute authorizing the confiscation of gambling devices.

Whatever, or however various, the reasons given in these cases from other jurisdictions for refusing recovery of money seized from gamblers in none of them is the statutory background shown to be similar to our statutory provisions herein discussed. Where our legislature has sought to forfeit money used in gambling it has plainly provided for such forfeiture and in Pen.Code sec. 2604 it has as plainly provided that there shall be no forfeiture of property for any crime ‘except in cases in which a forfeiture is expressly imposed by law’.

The maximum fine for the crime to which these plaintiffs have pleaded guilty is $500. Pen.Code sec. 330. If the respondents are correct, in the face of an express legislative declaration to the contrary, to this $500 penalty may be added any number of thousands of dollars which may be seized from the table at which two or more persons are engaged in gaming in violation of that section.

Respondents characterize plaintiffs' attempt to recover their money as ‘grab stakes'. It is respondents themselves who are seeking to apply that rugged procedure.

It nowhere appears that the district attorney ever had any part of this money. On that ground the judgment as to him is proper.

Judgment affirmed as to defendant Collins and reversed as to defendant Long.

DOOLING, Justice.

NOURSE, P. J., and GOODELL, J., concur.