DISSENTING OPINION.
1. "When the Sheriff is in possession of property by virtue of a seizure under execution, he must he considered as a rightful possessor holding for the benefit of the plaintiff in writ, until and unless a third person opposing the execution clearly shows that he owns or has a privilege on the property seized.
2. When a statute in terms denounces a forfeiture of property as the penalty for a violation of law, without alternative of value, or other qualifications or provisions, or language showing a different intent, such a forfeiture takes place absolutely and instantaneously on the commission of the offense, at such other time and upon such other conditions or occurrences as the statute may name.
S.In cases of construction of statutes for forfeiture, the'rules of the common law are dispensed with, and the will of the legislature alone need be ascertained by judicial interpretation of the statute.
4. Act 12 of 1870 provides that all moneys, etc., that may be seized and brought before the municipal police and that may have been used in keeping a banking house or playing a banking game, shall on conviction of the offending parties, be forfeited for the use of the parish in which the offense is committed.
5. There is, in that statute, no alternative, no condition, no language susceptible of any construction other than that the property vests in the City as the direct and immediate result of conviction, There is no condemnation of the property required, and no obligation to include a decree of forfeiture in the sentence imposed upon the convicted offender.
6. The issue presented is one of ownership of money in the hands of the Civil Sheriff, and the effect on property of a criminal statute is a collateral matter and a mere incident which the Civil Courts may deal with in. pronouncing upon the question of ownership.
7. The mere fact that a matter is connected with a criminal pro*222ceeding is not the test of jurisdiction, wliicfi is conferred by the Constitution and the law.
8. The money used .in the hanking game was brought before the public officers, .the parties running the banking game at the time ■ were convicted, and forfeiture followed under the statute without further proceedings. The City, as beneficiary, is entitled to the fund.
DUFOUR, J.The plaintiff, a judgment creditor of Arthur Behan and one Duffy, sued for garnishment process against the Clerk of the Criminal Court, and by' order of the Civil District Court acquiesced in by the Criminal District Court, the sum of $825, was transferred to the custody of the Civil Sheriff, subject to such claims of ownership as might be asserted by the possible parties in interest.
This fund found its way into the hands of the police authorities as the result of a raid made on a gambling house, and it was turned over to the Criminal Court to be used as evidence in the prosecution of certain parties who had been charged with keeping, and aiding or assisting bn keeping a banking game.
Three parties now claim this fund.
First. The seizing creditor who asserts that his seizure must stand unless some claimant establishes his title to the property seized.
Second. One Busha; who claims that the money belongs to him, and had been by him entrusted to Richard Behan for safe keeping. ••
Third. The City of New Orleans, which asserts title on the ground that, under Act No. 12 of 1870, upon the conviction which was had of the parties accused of violating that statute, the money was ipso facto forfeited to the City.
The -two claimants last named object that the fund seized does not belong to the plaintiff’s judgment debtor, and that its seizure is therefore without legal effect.
Considering that, under a writ of fieri facias with cumulative garnishment directed to the Clerk of the Criminal Court and the judicial order thereon rendered, the money was turned over to the Civil Sheriff and further considering that opponents are now asserting their rights to the same, they cannot be heard *223to say that there was no seizure in point either of law or of fact. Tf the property in dispute belongs to them, proof of ownership will restore it to them; if it be not theirs, they are without interest to 'question the seizure or to inquire whether or not the property belongs to the Judgment debtor. Their sole right is to attack the seizure as illegal, if it be levied on their property to satisfy another’s judgment debt.
8 M. S. 661,-1 R. 41,-15 An. 136.
2
Busha’s claim of ownership is not born out by evidence of a convincing nature. ....
He testifies that he frequently entrusted money to Behan for safe keeping, and that he gave the money now in controversy to Behan to keep in his safe, between 2 and 3 o’clock on the morning of July 18th, 1903. He adds that he does not know that the money seized is the same that he gave to Behan.
Behan testifies that on July 18th, 1903, he put in his safe $825, handed him by Busha;he had been drinking for a. week, and yet he says that, although he- did not count the money, he knew it amounted to $825. He admits that, through his attorney, acting under his instructions, a demand for the money was made on the district attorney, in-his own name, and in his own behalf. He refused to say any one else knew the combination of his safe, and a considerable portion of his testimony consists of refusals to answer questions on the ground that he might incriminate himself.
Further, he alternately swears that he did not turn over the money to any one, that he did not know if any one else knew the safe combination, but, he thinks” that the money “left his safe” on the morning of the 18th.
.. If neither Behan, nor any one else knowing the combination, removed the money from the safe, it should still be there, as there is not a particle of proof in the record to show that it ever found its way to the gambling drawer.
I have, after a careful examination of the testimony, reached the conclusion that Basha’s claim is the result of a clumsy col- • lusive attempt to secure the fund and that the amount fixed upon *224by Beban and himself as the proper and precise sum to claim was based upon their ascertainment of the-amount in the hands of the authorities.
3-
Act No. 12 of 1870 upon which the City rests its claim reads as follows:
Sec. 4. Be it further enacted, etc., That it sha.ll be the duty of the superintendents, and other officers of police, or any public officer, to arrest and take into custody any person keeping any banking game, or aiding or assisting in keeping the same, together with all the tables, money, or representatives of money, implements, and other paraphernalia which may be used in keeping such banking houses, or in playing such banking game, and take; or cause them to be taken, before any committing magistrate, who shall commit such persons for trial, if, upon a hearing, there be sufficient cause thereof. It shall be the duty of the officers committing such offenders, to take an inventory of all money, or its representatives, tables or other implements or paraphernalia that may be seized and brought before him, all of which shall, on conviction, be forfeited for the use of the parish in which the offense is committed.” P- 38-
The objection urged by the seizing creditor to the City’s claim is that this statute “is a penal statute and the penalty of forfeiture can only be imposed after conviction and is part oí the sentence, and not having been imposed by the Court which tried the case and which alone had jurisdiction, cannot be enforced in a civil suit.”
The objection of Busha’s counsel is that “under the statute of 1870, the City is only beneficiary when there has been a forfeiture, that the preliminary act involves the seizure by an officer of the government, that the judgment should be one not only of conviction against the party charged with .violating the law, but the fund itself, the thing itself, should be by the decree condemned, and that it does not lie within the power of the City of New Orleans to have a forfeiture decreed, and it is not with*225in 'the jurisdiction of. Civil Courts to decree a forfeiture for a criminal offence.”
The question presented is a new one in this State, but it has been considered in other jurisdictions notably by the Supreme Court of the United States in matters arising under the federal revenue laws.
An able text writer epitomizes the law on this subject as follows:
“Property is often forfeited by illegal acts. This sometimes results from the rules of the common law, and sometimes from the provisions of statutes. But there is a marked difference in the two cases. A forfeiture at common law does not operate to change the property until some legal step has been taken by the government for the assertion of its rights; but where a forfeiture is given by statute, the rules of the common law are dispensed with, and the thing forfeited may either vest immediately or upon the performance of some future act, according to the will of the Legislature; and if no future time or future act is pointed out, then where, by the words of a statute, a forfeiture is attached to the commission of an offense, its immediate operation is to divest wholly the title of the owner, so as to deprive him of the right of maintaining any action or defense to which, as owner, he would otherwise be entitled. So, where the English navigation act had been violated, it was held that the forfeiture, though there had been no previous condemnation. So, where an act of the Congress of the United States, declaring that whatever certain articles’ should be imported into the United States after the 20th day of May next, all such articles shall be forfeited to the United States, “it was held that an absolute and instantaneous forfeiture was created by the mere act of importation, that no seizure was necessary to vest the’ title in the government, and that even a bona fide purchaser acquired no title. So, again, where a statute in New York, in relation to lotteries, provided that “all properties offered for sale, distribution, or disposition against the provision of law shall be forfeited to the people of the State, it was held that the mere offer for *226sale worked an immediate change and transfer of the title.” (Italics - ours.)
In the Am’s Eng. Encyc. of Law, vol. 13, p. p . 58 and 59, is found the folowing text based on decisions cited in the notes:
“While a forfeiture at common law does not operate to divest the title of the owner until by a proper judgment is a suit instituted for that purpose the rights of the State have been established, it is otherwise where a statute in terms denounces a forfeiture of property as the penalty for a violation of law, without alternative of value, or other qualifications or provisions, or language showing a different intent; for in such case the forfeiture takes place absolutely and instantaneously on the commission of the offense, or at such time and upon such conditions as the statute may name.” (Italics ours.)
In a case which arose under an act declaring that “there shall be a forfeiture of the ship” for false swearing on the part of certain parties, Chief Justice Marshall said “that where a forfeiture is given by a statute, the rules of the common law may he dispensed with, and the thing forfeited may either vest immediately, or on the performance of some particular act, as shall be the will of the legislature. This must depend upon the construction of the statute.”
U. S. vs. Gunly, 3 Cranch 336, 348, in U. S. vs. 1960 Bags of Coffee, the statute under consideration declared “that whenever any articles the importation of which is prohibited by this act, shall be imported into the United States, all such articles shall be forfeited.”
The views of the Court.were thus stated:
“We are of opinion that the question rests altogether on the wording of the Act of Congress by which it is expressly declared that the forfeiture shall take place upon the commission of the offense. If the phraseology were such as in the opinion of the majority of the Court, to admit of doubt it would then be proper to resort to analogy and the doctrine of forfeit*227ure at common law, to assist the mind in coming to a conclusion'.
But all assistance derivable from that quarter becomes unnecessary.”
8 Cranch.
In U. S. vs. Stewell, 133 Rp. S. 1, 16, 17, in which all the entire cases are referred to, the following language was used:
“By the settled doctrine of this Court whenever a statute enacts that upon the commission of a certain act, specific property used in or connected with that act shall be forfeited, the forfeiture takes effect immediately upon the commission of the act; the right to the property then vests in the United States, although their title is not.perfected until judicial condemnation; the forfeiture constitutes a statutory transfer of the right to the United States at the time the offense is committed; and the condemnation, when obtained, 'relates back to that time, and avoids all intermediate sales and alienations, even to purchase in good faith.”
In order to fully understand the distinction to be made in this matter, it must be borne in mind that the federal statutes establish a mode of procedure to perfect the title by condemnation. The offending thing declared by statute to be forfeited is tried and condemned, and the effect of the sentence relates to the time of the commission of the offense.
Thus, Section 3458, 3459 and 3453 U. S. R. S. provides for proceedings in rem to enforce forfeiture of things “which shall be forfeited,” under the revenue laws, and Section 3332 also provides for a judgment of forfeiture. Section 4305 provides that forfeitures incurred for offenses against the Navigation laws are to be sued for in the Courts of the United States.
In examining the Louisiana statute I do not find any special mode of procedure ordained in order to perfect the title to the thing forfeited. The Legislature, as it had the right to do, has declared that, upon conviction of the offenders, the property seized shall be forfeited for the use, of the parish. There is no alternative, no condition, no language susceptible of any con*228struction other than that the property vests in the City as the direct and immediate result of conviction.
No condemnation is required, and there is nothing in .the law which, directly or indirectly intimates that there is no legal forfeiture, unless the sentence imposed on the offender also includes a decree of forfeiture of the property seized.
I see no reason why the city could not have claimed the money immediately upon the affirmance of the sentence by the Supreme Court and its present proceedings is cognizable by a Civil Court, because the only issue presented is that of ownership. The interpretation of a criminal statute is in this instance a collateral matter and a mere incident which the Civil Court may deal with in pronouncing upon the question of ownership, I know of no law' which confers upon the Criminal Court jurisdiction of any cause for the collection of money or for the recovery of property in a case of this nature, and but for special legislation, that Court could not render judgment on bail bonds.
I may by way of analogy, refer to the decision “that a bail bond for the appearance of an accused at a preliminary examination before a recorder of the Parish of Orleans creates a lawful and binding obligation and such a bail bond may be sued upon by a Civil action, in the Civil District Court for the Parish of Orleans.”
The mere fact that a matter is connected with a criminal proceeding is not the text of jurisdiction; the Constitution and Statutes confer it.
If the foregoing views be correct, the plea of prescription of six months necessarily falls.
The money used in the banking game was brought before the public officers and kept by them, the parties running the game at the time were convicted, and forfeiture followed under the statute, without further proceedings. The City, as beneficiary is entitled to the fund. I think the Judgment should be affirmed, and therefore dissent.
Feby. 19th, 1906.