Sections 17-2301 and 17-2304, I. C. A., provide:
Every person who deals, plays or carries on, opens or causes to be opened, or who conducts, either as owner, employee, or lessee, whether for hire or not, any game of faro, monte, roulette, lansquenet, rouge et noir, rondo, Indian stick game, or any game played with cards, dice, or any other device, for money, checks, credit or any other representative of values, is guilty of a misdemeanor and is punishable by fine not less than $200, or imprisonment in the county jail not less than four months.
Whenever any judge or justice of the peace shall have knowledge or shall receive satisfactory information, that there is any gambling table or gambling device, adopted or devised and designed for the purpose of playing any of the games of chance prohibited in section 17-2301, within his district or county, it shall be his duty to forthwith issue his warrant, directed to the sheriff or constable, to seize and bring before him such gambling table or other device, and cause the same to be publicly destroyed, by burning or otherwise.
The majority opinion holds the money found in the seized gambling devices must be paid to the State Treasurer, who, in turn, must add it to the "Permanent School Fund," which works a complete confiscation of such money. Whether such money can be confiscated depends upon the provisions of Section 17-2304, supra. If that section authorizes the confiscation of such money, then, of course, it can be confiscated; otherwise not. The authority given by Section 17-2301, supra, is (1) to seize gambling tables and other gambling devices and (2) *Page 106 "cause the same to be publicly destroyed, by burning or otherwise." When that is done all authority under the statute is exhausted. The fact that a gambling device contains money could not, of course, prevent the seizure of the device, because that would defeat the purpose of the statute; but the power to seize and to destroy gaming devices does not confer power to confiscate money found in the devices. If the legislature had intended to confer power to confiscate money found in seized gambling devices it would have so provided, as it did in legislating against lotteries, that all moneys, as well as property, used in the operation of a lottery "are forfeited to the state" (Section 17-2409, I. C. A.) It will be conceded that the sole purpose of the enactment of legislation against the operation of slot machines was "to prohibit gambling, not to minimize or encourage it," but it must likewise be conceded that the sole purpose of the enactment of legislation against the operation of lotteries was "to prohibit gambling, not to minimize or encourage it." Hence, the purpose of the legislature in enacting these statutes was necessarily identical. Nevertheless, the legislature in legislating against the operation of slot machines did not include a provision either expressly or impliedly authorizing the confiscation or forfeiture of any moneys used in the operation of the machines, whereas in the enactment of the legislation against the operation of lotteries the legislature did expressly authorize a forfeiture. The majority opinion, however, in effect, legislates the absent provision into Section 17-2304, supra. There would be just as much reason for legislating into the statute the provision authorizing the destruction of gambling devices, if the legislature had failed to include that provision, as there is to legislate a provision into the statute authorizing the confiscation of money found in the devices.
Furthermore, we are dealing in this case with a highly penal statute in that the confiscation and destruction of the device used in the commission of the crime is one of the consequences of conviction. It does not, however, provide either directly or indirectly, as above pointed *Page 107 out, for the confiscation of money. In 23 Am. Jur. 601, Section 5, it is said:
"Statutes imposing forfeitures by way of punishment are subject to the general rules governing the interpretation and construction of penal statutes. Hence, statutes authorizing the forfeiting of property ordinarily used for a legal purpose [as money is] are to be strictly construed, since they are very drastic in their operation. . . ."
On page 631 of the same volume, Section 37, it is further stated:
"It is a general rule of statutory construction that penal statutes are to be strictly construed. Statutes imposing penalties are subject to this rule of strict construction. They will not be construed to include anything beyond their letter, even though within their spirit. The rule that penal laws are to be construed strictly is perhaps not much younger than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. . . ."
In 25 Rawle C. L. 1081, Section 301, the rule is stated thus:
"It has long been the well settled general rule that penal statutes are subject to the rule of strict construction. They will not be construed to include anything beyond their letter even though within their spirit, and nothing can be added to them by inference or intendment. More correctly it may be said that such laws are to be expounded strictly against an offender and liberally in his favor. This can be accomplished only by giving to them a literal construction so far as they operate penally, or at most, by deducing the intention of the legislature from the words of the act. In extension of the letter of the law nothing may be assumed by implication, nor may the mischief intended to be prevented or redressed, as against the offender, be regarded in its construction. . . ."
The rule of strict construction of statutes providing for the forfeiture of property has been recognized and applied by this court in Independent School Dist. v. *Page 108 Collins, 15 Idaho 535, 98 P. 857, and Holt v. Mickelson,41 Idaho 694, 242 P. 977. This rule is clearly violated by the majority opinion in this case.
For the above stated reasons I dissent.
I am authorized by Mr. Justice MORGAN to say he joins in the dissent.