defining “forfeit” and “forfeiture” as a loss or penalty
How later courts described this case
- defining “forfeit” and “forfeiture” as a loss or penalty
Written by the judges who cited it.
The opinion
Miller, J.
(specially concurring) — I think that the majority opinion reaches the correct result herein. However, I am unable to agree with the theory adopted in deciding this case.
The opinion states that the confiscation of the machines involved herein is not a penalty because the machines confiscated do not constitute property. I agree with such holding. However, in announcing the theory under which it is determined that the machines do not constitute property, the opinion states, “We are satisfied that in no case can there be any such property right unless there is a legal right to possession, and a right to transfer or to dispose of as one’s own. Unless there is such legal right the law affords no protection, and it would naturally follow that there is no property right.” I cannot agree with this statement. It seems to me to be too broad.
At the present time the government, in the exercise of its police power for the purpose of prosecuting the war in which we are now engaged, is making it unlawful to transfer or dis
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pose of many kinds of property. They can be transferred only pursuant to rules for priorities. Obviously, the owner does not have “the right to transfer or to dispose of as one’s own” in such property. Nevertheless, it is still property and could not be appropriated by the government without paying just compensation therefor under the due-process clause of the state and federal constitutions.
The majority opinion states that no constitutional question is raised. That is true. However, the constitutional questions determine the proper approach and whether or not the proper theory has been applied. As I see it, the devices involved herein are considered not property for reasons other than the fact that the legislature has prohibited their possession or sale. The reason is that the legislature has determined that such devices are dangerous and pernicious to the public welfare. This is in accordance with the rules stated in 24 Am. Jur. 437 , section 57, to wit:
“According to one view, where gambling implements and apparatus are determined by the legislature to be dangerous and pernicious to the public welfare, they are not property which is lawfully subject to the protection of the law, but cease to be regarded as property within the meaning of the due process clause and are liable to seizure, forfeiture, and destruction. * * * It is the use of such articles as slot machines and gaming tables as a means of accomplishing unlawful acts, and not the articles themselves, which the law condemns. Hence, if the court finds that at the time when they were seized under a search warrant, they were being used for an unlawful purpose, it may order their destruction; but if it finds that they were not being so held or used, it should order their restoration to the owner.”
The indictment herein charged that the defendant held in his possession “certain punch boards, slot machines and other machines used for gambling.” The demurrer to the indictment admits these facts. Because these machines are used for gambling, they are dangerous and pernicious to the public welfare and may be seized and destroyed without requiring compensation for their value. Accordingly, the owner thereof suffers no loss which the law will recognize. Having suffered no loss, no penalty
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has been inflicted. I think that is the proper theory on which to decide, the case. •
In division II of the opinion, the court holds that even if the destruction of the machines is to be considered to be a penalty so that section 12893 was not applicable to the statute as originally enacted, this is not controlling now because the destruction of the machines is now accomplished by chapter 617 and not by reason of the original statute. The opinion holds that chapter 617 is a different kind of proceeding than that provided in the original statute. I think that this is immaterial. If we are going to assume that the destruction of the machines constitutes the destruction of property so as to be a forfeiture and a penalty, it seems to me to be immaterial whether the destruction. is accomplished by chapter 617 or by the original statute. Section 12893 applies only in the event that there is no other penalty prescribed in the entire Code. If the destruction of the machines is a penalty, it is such no matter how it is accomplished. I think division II of the opinion should have been eliminated.