Dorrell v. Clark , 90 Mont. 585 ( 1931 )

In October, 1929, L.W. Clark, sheriff of Wheatland county, seized two slot-machines which had been installed in Dorrell's "Billiard Parlor" under an agreement that he would "pay" to the owner twenty-five per cent. of the money they took in, and arrested Dorrell who pleaded guilty to the crime of operating them.

The court ordered the machines destroyed and any money found in them deposited with the clerk of the court; $88.85 was so deposited and, on refusal of the clerk to turn the money over to him, Dorrell commenced this action, alleging that he was entitled to the "immediate possession of it." Issue being joined, the cause was submitted to the court on an agreed statement of facts, which recites that the "point in dispute is as to whether or not * * * sections 11166 and 11167 of the Penal Codes are broad enough to permit" the confiscation and destruction of money, and "whether plaintiff * * * is entitled to have the money returned to him."

The cited sections provide for the seizure and destruction of "every machine, apparatus or instrument" used for the purpose of violating the Anti-gambling Law. Money used to gamble, either with or for, is not mentioned in the Act, except that it is provided that money lost in this manner may be recovered by the loser within sixty days, and if the loser fails to seek recovery within the time limited, anyone dependent upon him may recover it within one year. (Secs. 11173, 11174, Rev. Codes 1921.)

It is clear that the Act does not authorize the seizure of[1] money, as such, and, certainly, it does not authorize its destruction in violation of the laws of the United States, but it does not follow that the seizure of the money in the manner indicated here was unlawful or that plaintiff is entitled to have it returned to him.

Counsel for plaintiff relies solely upon the pronouncements found in Miller v. State, 46 Okla. 674, 149 P. 364, 365, and Kearney v. Webb, 278 Ill. 17, 3 A.L.R. 1631, 115 N.E. 844, each of which is clearly distinguishable from the case at bar.

The question determined in the Miller Case was as to the authority of a sheriff to seize a "roll" of money found on a poker table at the time of a raid. Writing in humorous vein Justice Brewer, of the supreme court of Oklahoma, declared that all devices legally seized must under the law be destroyed, and that we would be "hard to convince that even our most opulent legislators could have intended to so treat a commodity so widely and universally useful and so strangely hard to acquire," but decided against the authority of the sheriff on the mere showing that the money was found "on the table" — that it was not shown to have been in the "pot" and "certainly none of it had found its way into the ``kitty.'" The court declared that "it may have been that the sporty individual was merely making a vulgar display of his wealth" to impress his opponents, or "was merely extracting from his ``roll' a small bill, for purposes of refreshment" as "it is said that such environs are conducive of thirst."

In the Illinois Case, Kearney recovered money which he had placed with his employee for the purpose of gambling and which was seized on a raid, on the theory that Kearney had a right to withdraw from the illegal agreement and have his money returned to him, and made out a prima facie case without showing the illegal agreement, which was brought into the case by the defense. Neither holding is authority for a recovery by this plaintiff.

The recent case of State v. Falgren, 176 Minn. 346,223 N.W. 455, 456, is more nearly in point. The question there was as to the authority of the court, in condemnation proceedings against slot-machines, to order the machines sold, after destruction, so that they could no longer be used for gambling, and the proceeds of the sale and such money as was found in the machines forfeited and turned into the county treasury. In this connection the court said: "The purpose of the statute is to destroy gambling devices * * * not to get for the county the proceeds of gambling nor the junk value of the gambling devices. It seeks to stop gambling, not to take for the county money which has been lost at gambling or the value of the gambling devices." Another declaration of the court will be later considered. The court modified the order of condemnation by striking therefrom the provisions considered. The decision is undoubtedly correct, but the court did not hold that the money found in the slot-machines was the property of the operator of the machines, or order it turned over to anyone.

It will be noted that in the case at bar, the court did not order the money here involved "forfeited" or turned into the county treasury; the order was merely that it be deposited with the clerk of the court, and thus held in custodia legis for whomsoever was lawfully entitled to it.

In seeking to recover the money, plaintiff brought his action[2] in conversion, alleging that the sheriff, without right or authority, seized and carried away and detains property to the "immediate possession" of which plaintiff was entitled. In such an action plaintiff must recover, if at all, upon the strength of his own title and not upon the weakness of that of his adversary (Kinsman v. Stanhope, 50 Mont. 41, L.R.A. 1916C, 443, 144 P. 1083; Shipler v. Potomac Copper Co., 69 Mont. 86,220 P. 1097), and, without regard to the nature of the action, plaintiff must establish his right to the money in order to secure its delivery to him.

It is first apparent that the sheriff did not wrongfully seize[3] the money in question. The statute authorized him to seize the slot-machines in operation. It is clear from the record and from the nature of the devices seized that the money was within the mechanism of the slot-machines and was not disclosed until the order for their destruction was obeyed. Clearly, these were what is known as "money machines" and were operated by placing a coin in a slot and manipulating a lever, when the coin became a part of the device for operating the machine and if, perchance, the operator was lucky, it released other coins from the internal workings of the machine and expelled them therefrom. Under such circumstances the coins, and all of them, were as much a part of the gambling device as was the lever, or dials, or slot; the machine could not be operated without their use, and the machines, as they were when seized by the sheriff, could not "pay" except for the coins therein. When, therefore, the sheriff carried away the machines as he found them, he committed no trespass — he but performed a duty imposed upon him by law. This theory is said to have been "adroitly" advanced by the state in State v. Falgren, above, with the addition that the money was "subject to disposition as a part of the gambling devices." It was not discussed by the court, but merely passed with the remark: "We do not take this view." Whether or not the money here considered was "subject to disposition as a part of the gambling devices" we need not here determine; the trial court did not dispose of it as such, but, in so far as the taking is concerned, the money was clearly such an integral part of the machines as that the machines could not be carried away without taking the money.

We concede that, had plaintiff unlocked the machines and taken the money therefrom before they were seized by the sheriff, the latter would not have been authorized to seize the money, but here the plaintiff had but permitted another to place in his "Billiard Parlor" a trap for the gullible under agreement to divide the spoils, and had not yet reduced these to possession. The money had been placed in the machine by parties unknown on the chance that the mechanism might discharge a greater amount from the stored-up capital of those who had taken a like chance of getting much for little. All of this money belonged to those who had put it into the machines, and, had plaintiff reduced it to possession, it could have been recovered from him on demand. Consequently, at the time the order was made, which was within thirty days after seizure of the machines, the owners of the money might have demanded it from the court, and at the time the matter was submitted to the court in this action and the judgment herein was entered, those dependent upon the losers were entitled to recover the money under the statute above cited.

All of these facts were necessarily disclosed to the court by the plaintiff in attempting to make a prima facie case. Thus the plaintiff, admitting the violation of the law, asked the aid of the very court charged with the duty of punishing that violation, and which had performed that duty, in securing the fruits of his outlawry, which he admitted he would not be entitled to retain under the law, had he reduced the same to possession. "No principle of law is better settled than that a party to an illegal contract cannot come into a court of law and ask to have his illegal objects carried out; nor can he set up a case in which he must necessarily disclose an illegal purpose as the groundwork of his claim." (13 C.J. 492; Morrison v. Bennett,20 Mont. 560, 40 L.R.A. 158, 52 P. 553; McManus v. Fulton,85 Mont. 170, 67 A.L.R. 690, 278 P. 126.)

Plaintiff asserts that the general rule is that illegality cannot be set up by a third person, but is only available to a party to a contract (13 C.J. 508); but he fails to note that the text reads: "This rule is of course subject to an exception, where it is attempted to assert rights based on the contract." Strictly speaking, there is no contract here involved; plaintiff merely seeks the aid of the court to reduce to possession the spoils of the law's violation.

It is urged that "inferentially Montana recognizes the winner[4] of money in a gambling game reduces same to ownership and possession" by reason of the provisions of sections 11166 and 11167, above. In the ordinary gambling game wherein money changes hands, the winner undoubtedly reduces it to possession, but where the money is but entrapped as in a slot-machine the "possession" is at least qualified; it has never come into the hands of the operator and, as shown above, remains a part of the machine until released. As to "ownership" the statute rather recognizes that in the loser and but prescribes a statute of limitation or condition precedent for its recovery; although, after the expiration of the time limit, an action will not lie, it does not follow that the law recognizes ownership in the winner.

We are not concerned with the ultimate disposition of the money; we agree that it was not deposited with the clerk of the court as a "fine or forfeiture" to go to the school fund; as it constitutes a retrieved portion of a destroyed machine, can it be considered "treasure-trove"? (Ferguson v. Ray, 44 Or. 557, 102 Am. St. Rep. 648, 1 Ann. Cas. 1, 1 L.R.A. (n.s.) 477, 77 P. 600; Vickery v. Hardin, 77 Ind. App. 558, 133 N.E. 922.)[5] However, whatever may or may not be done with the money in the custody of the court, the power of our courts, either at law or in equity, cannot be invoked in aid of one showing a violation of the law, to complete the illegal transaction and secure to the violator the fruits of his outlawry.

The judgment is in conformity with the public policy of the state and of good morals. Affirmed.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN and FORD concur.