CARTER, J. I dissent.
The majority opinion holds, contrary to the statutes, that a person convicted of gambling (Pen. Code, § 330) may be subjected to two penalties, fine or imprisonment and the loss of the money that was used in the gambling enterprise and seized by the arresting officers. It arrives at that astonishing conclusion by equally astonishing reasoning. It concedes that the state could not declare a forfeiture of the money — that it is not contraband. Yet it concludes that if the state does seize it and is unlawfully holding it, the owners cannot recover it. If the result of that conclusion is not confiscation or forfeiture, then the law is indeed an “ass,” for it forsakes logic and reason for sophistry — a mere play on words resulting in a legal paradox — the state cannot acquire title — the owner cannot recover possession from the state.
[505]The majority announces the broad rule that where any property is used in the commission of any unlawful act and the officers seize it while making an arrest (I assume it was lawfully seized and could be held as evidence for the trial), then the state may retain it although it cannot declare it forfeited. The implications of that rule are far reaching and inimical to our concept of justice. It may even go so far that any time a traffic officer has the notion, he may seize a car which he claims is being used in violation of any of the innumerable traffic laws. A pertinent illustration is suggested by what is done under the ordinances which authorize the towing away of cars when parked in prohibited areas. If the city should decide that it would like to use those cars for carrying on its business, it may do so. According to the majority opinion they could not be confiscated but the owners could not recover them from the city. The same would be true of a horse run in an illegal race.
The statutes in this state leave no room for doubt that property used in the commission of an unlawful act cannot be confiscated by the state unless the statute expressly so provides. It is conceded by the majority that there is no statute authorizing or permitting the forfeiture of money used in a gambling game. The Penal Code provides: “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; . . .” (Pen. Code, §2604.) (Italics added.) A conviction of gambling cannot, therefore, “work” a forfeiture; that is, the law cannot “work” a forfeiture. But this court, by refusing to allow recovery of the money seized, puts itself above the law and “works” a forfeiture. This section has been applied as not defeating an action to protect a homestead on property used for prostitution. In Harlan v. Schulze, 7 Cal.App. 287, 294-295 [94 P. 379], the court stated: “If residing in a house of prostitution is a crime, as suggested by respondent in view of section 315 of the Penal Code, we must not overlook section 677 [the predecessor of '§ 2604] of the same code, which declares: No conviction of any person for crime works any forfeiture of any property, except in cases in which a forfeiture is expressly imposed by law; and all forfeitures to the people of this state, in the nature of a deodand, or where any person shall flee from justice, are abolished. ’ ” In Chapman v. Aggeler, 47 Cal.App.2d 848 [119 P.2d 204], the owner of slot machines seized by the police in a raid, brought an action to recover them. Losing in the trial [506]court, the owner appealed. The appellate court reversed and directed the trial court to order return of the machines. The court proceeded in part on the ground that there was no finding that the machines were used for gambling, but also, said (pp. 860-861) : “We first call attention to the fact that this appellant was convicted of no crime, and then cite the restrictive rule which obtains even when a defendant is found guilty. It is found in section 677 of the Penal Code providing that ‘No conviction of any person for crime works any forfeiture of any property, except in cases in which a forfeiture is expressly imposed by law. . . .’ In all of chapter X of the Penal Code, which is entitled ‘ Gaming, ’ and where section 330a appears, there was, prior to this year, no provision for forfeiture. This can hardly be considered accidental since the preceding chapter dealing with lotteries contains a provision for forfeiture in section 325, an instance where forfeiture is ‘expressly imposed by law.’ But even there, in order to make forfeiture effective, an action must be brought or an information filed ‘by the attorney-general, or by any district attorney, in the name of the state.’ And by this procedure no lottery or gambling' machine may be taken by the state, but only the ‘moneys and property offered for sale or distribution. . . . ’ In short, there is no statute in California that has been called to our attention or that we have been able to find that vests in the court authority to declare a forfeiture in a case such as we are considering. In the absence of express statutory authority, the order requiring the destruction of the property in question is without legal sanction and void.
“It follows from this that the portion of the judgment, by which the-court ordered the seized property to be destroyed and a record entry made of its destruction, cannot be sustained.
‘ ‘ Judgment reversed, without costs to either party, and the cause remanded with instructions that judgment be entered for plaintiff entitling him to the return, forthwith, of the seized property.” (Italics added.) That case stands, therefore, for the proposition that if property, seized while being used unlawfully, may not be confiscated by the state, the owner may recover it.
Furthermore, it should be observed that the Legislature has provided that the maximum penalty for the violation of section 330 of the Penal Code, of which plaintiffs were convicted, is a $500 fine. (Pen. Code, § 330.) Yet this court, by refusing to allow recovery of the money, levies a fine of over $6,000.
[507]It has been held that the owner may recover money when it is used in gaming and seized by the state where there is no statute providing for a forfeiture. (Chappell v. Stapleton, 58 Ga.App. 138 [198 S.E. 109]; Kearney v. Webb, 278 Ill. 17 [115 N.E. 844]; 23 Minn.L.Rev. 976.) Schur v. Johnson, 2 Cal.App.2d 680 [38 P.2d 844] and Asher v. Johnson, 26 Cal. App.2d 403 [79 P.2d 457], relied upon by the majority are not in point, for they did not involve or consider the lack of right in the state to declare a forfeiture unless expressly authorized by statute. (Pen. Code, § 2604, supra.) Moreover those cases ignored the rule, later discussed, that a stranger to the gambling game — the state here — cannot rely upon the illegality of the use being made of the money.
The majority opinion rests its conclusion in part upon the proposition that a third party, the state here, may raise the claim of the illegality of the transaction between the participants in the game and cite Schur v. Johnson, supra, and Asher v. Johnson, supra. That is not the law in California or elsewhere. For illustration, it is said in Kyne v. Kyne, 16 Cal.2d 436, 440 [106 P.2d 620]: “For example, a bank will not be permitted to invoke the illegality of a contract between two individuals and thereby retain money which was the fruit of the illegal transaction and which was deposited by one of them for the account of the other.” (See cases collected 50 A.L.R. 293.) Here, the state was not a party to the unlawful game and it can make no claim to the money through the participants. It is in no different position than a thief who seized the money from the table, and, as said in 29 California Law Review 422, in commenting on the Schur and Asher eases, supra: “It is difficult to see how the state’s wrongful collection of taxes can in any way be said to make the state claim through the tango proprietors. The state would be just as much a stranger to the illegal business as would a thief, or as was the bank in the case put by the court, supra, note 18. The court’s refusal to aid the parties to recover their money seems to be no more than a judicially created and imposed penalty for carrying on the unlawful business.” As we have seen, the Legislature has fixed the penalty for gambling, and stated that there could be no forfeiture. This court, therefore, has no authority to increase it or impose a forfeiture. To do so is to usurp the power of the Legislature in violation of the Constitution (art. Ill, § 1).
Closely related to the last discussed proposition is the majority’s conclusion that plaintiffs could not recover if they [508]had to rely upon the illegal gambling transaction to prevail. It is conceded that if they do not so have to place their reliance on such transaction they may prevail, and that is the law. (Guerin v. Kirst, 33 Cal.2d 402, 410 [202 P.2d 10, 7 A.L.R.2d 922].) All they would need to show is that it was their money that was on the table and the sheriff seized it and that he or one of the defendants still retains it. For what purpose the money was there or what use was being made of it would be wholly immaterial. It is no different than the illustration given in Kyne v. Kyne, 16 Cal.2d 436, 440, supra, of the bank holding funds involved in an illegal transaction in which it was not a participant.
The majority opinion speaks of public policy as the basis for its conclusion. The question arises: Who is supreme in that field, the Legislature or the courts ? The Legislature, by failing to provide for a forfeiture, and further stating, that when it does not so provide, there shall be none (Pen. Code, §2604, supra), has unequivocally announced the policy that persons engaged in gambling shall not be penalized by losing the money used. The majority opinion nullifies this policy, for it will not permit the owners of the money to recover it. To say that that does not amount to a forfeiture is to deny the obvious. It cannot be denied that by such a holding the owners lose their property. The state has it and intends to keep it. It cannot obtain title to it by forfeiture proceedings, but no doubt it will eventually make use of it. It cannot be left in limbo. It was said by Judge Augustus N. Hand, that recovery of property involved in an illegal transaction will not be barred “where the res sought to be recovered is held in escrow under what is in effect an order of interpleader so that a refusal to act in favor of the complainant will amount to affirmative action in favor of the other party.” (Judson v. Buckley, 130 F.2d 174, 180.) That is precisely the situation here. The state does not have title and cannot have it declared forfeited. It thus has mere possession, such as in escrow, and to deny recovery by the owners amounts to an “affirmative action in favor” of the state, that is, forfeiture. No one can prevent the state from, using-it as the only interested parties are the owners and they can do nothing. Hence it follows that the state may and will appropriate it to its own use with impunity and a forfeiture is effected in violation of the express statutory provision to the contrary — another legal paradox.
I would therefore reverse the judgment.