I cannot agree with defendant's position "that proof of a single instance of a prohibited use was not sufficient to justify a finding that the vehicle was a nuisance."
I feel that the conclusion reached by Mr. Justice CHANDLER has the effect of nullifying a proper legislative enactment which, as stated in his opinion, "is clear and unambiguous."
It should be remembered that we are reviewing a decree in chancery and this is a hearing de novo. Defendant was content to answer the bill of complaint and appear in court by his counsel without offering any testimony whatever in support of his denial that "he had any knowledge of any illegal use or unlawful purpose for which the said motor vehicle was being used," and his further denial that the vehicle "became a nuisance under the act." *Page 121
The statute under consideration, as pointed out by Mr. Justice CHANDLER, obviates the necessity of proof of knowledge, in section 9 thereof (2 Comp. Laws 1929, § 9101 [Stat. Ann. § 18.909]), and was invoked by the people as an aid to the suppression of gambling. It (Act No. 389, Pub. Acts 1925 [2 Comp. Laws 1929, § 9093 et seq. (Stat. Ann. § 18.901 et seq.)]) has been passed upon in a number of cases.
In People, ex rel. Attorney General, v. Holschuh, 235 Mich. 272, the court, speaking through Mr. Justice WIEST, discussed the manner in which the statute should be applied:
"Was the court bound, regardless of circumstances appealing to conscience, to order the premises locked for one year, and to decree that the furniture, regardless of whether connected with violation of the law, be seized and sold? Consideration of some fundamental principles relative to the powers of government will aid greatly in determining the issues before us. Intoxicating liquors are outlawed, traffic therein prohibited, possession thereof proscribed, sales or gifts thereof penalized, and no one, rich or poor, high or low, saint or sinner, may defy the law. The law, however, must observe constitutional limitations; but within such limitations the legislative power may command, the executive power must enforce, and the judicial power respond. The full power of the State may be summoned in aid of enforcement of the law, and to this end the criminal law may punish and the civil law lend its coercive power to prevent violations. In aid of enforcement of the prohibition law the legislature has invoked the aid of the court of equity, its processes and power of restraint, but has attempted to direct by mandate restrictions upon judicial action and commands of particular action wholly inconsistent with the inherent powers of the court. The *Page 122 inherent powers of the court of equity are safeguarded by the Constitution and are not subject to be brushed aside or rendered supine by legislative mandate. As an equal and co-ordinate branch of the government the judicial power must be permitted to function within its allotted sphere free from mandate of the legislative and executive powers, else be shorn at the will of mere equals. This is said to mark judicial independence, without which a constitutional court might be but an appanage of the legislative power, and not to sense a spirit of strife or lack of co-ordination between the powers. The court will enforce valid legislation and its powers will respond thereto, but when legislation seeks to control judicial action to the extent of dictating the substance of decrees and forbidding any lesser degree of restraint, regardless of equity and justice, there is a departure from legislative power and an unwarranted interference with judicial power."
Thus circumscribed in its application, the act has been used effectively for its purpose, namely, the abatement of nuisances and the forfeiture of property in certain cases.
In State, ex rel. Attorney General, v. Robinson, 250 Mich. 99, the court pointed out that it was not necessary to find a "nuisance use of the place at the time of the hearing or a continuing nuisance at the time the bill was filed," provided it was filed within 30 days after a violation.
The act unequivocally provides that any vehicle used for gambling is a nuisance, and when called upon to construe a statute similar to our own, the Kansas court in State v.Stephens, 109 Kan. 254 (198 P. 1087), approved the abatement of such a nuisance and held that proof of only one isolated instance of violation of the statute was sufficient. *Page 123
The trial judge in the instant case had no difficulty in determining from the proofs that gambling paraphernalia was found in a car being driven by a disorderly person in the illegal occupation of gambling, and stated that the driver's plea of guilty to a violation foreclosed discussion on this point. The court refused to adopt any specious interpretation of the words of the statute and pointed out that the particular gaming method disclosed by the proofs was complicated and protracted, and that the use of an automobile was an indispensable part in the consummation of the gambling transaction. The trial judge said:
"It would be a plain distortion of the clear meaning of this statute which specifically uses the word `vehicle,' to hold that the legislature did not intend an automobile used as in this case, in the direct furtherance of a gaming transaction, to be subject to the provisions of the act."
Consideration of the trial judge's opinion discloses that, although he did not cite People, ex rel. Attorney General, v.Holschuh, supra, he was mindful of, and acted within, the limitations imposed in that case.
The decree abating the nuisance and ordering the sale of the vehicle is affirmed, with costs to appellee.
NORTH, STARR, and BUTZEL, JJ., concurred with BUSHNELL, J. *Page 124