This is an appeal by the people from a decree dismissing a bill of complaint filed against defendant, Edward R. Tate, under Act No. 389, Pub. Acts 1925 (2 Comp. Laws 1929, § 9093 et seq. [Stat. Ann. § 18.901 et seq.]). In their bill of complaint the people sought to confiscate a motor vehicle which was used in connection with gambling, similar to that described in People v. Elliott, 74 Mich. 264 (3 L.R.A. 403, 16 Am. St. Rep. 640).
The people produced a police officer who, while testifying as to the arrest of the occupant of the car and the finding of gambling paraphernalia therein, was interrupted by the court who asked the prosecutor if he had any proof of guilty knowledge on the part of defendant, it having appeared the car was not at the time being used by the owner. When informed that such proof was neither available nor required, the court indicated that it was not necessary to proceed with the case. The prosecutor, however, insisted upon his right to present testimony.
After the close of the testimony, the trial judge said in part:
"In this case, this defendant has been deprived of the use of his car from September 19, 1942, to *Page 669 February 17, 1943. It seems to me that is punishment enough. I think it would be entirely unreasonable and improper for this court now to order the sale of the car and the proceeds turned over to the State of Michigan. * * *
"In the case at bar a decree may be entered impounding the car of the defendant for the period from September 19, 1942, to February 17, 1943, at 12:06 p.m., and also an injunction may be issued against the defendant restraining him from hereafter loaning his car to Barber Thomas."
The principal question presented by this appeal is whether that portion of Act No. 389, Pub. Acts 1925, which provides for the forfeiture of any vehicle used for gambling is mandatory or permissive. Although the court divided in People, ex rel. WayneProsecuting Attorney, v. Bitonti, ante, 115, a recent case involving the same act, the court was in agreement that the statute obviates the necessity of proof of knowledge. Notwithstanding our holding in the Bitonti Case, we must conclude, in the light of People, ex rel. Attorney General, v.Holschuh, 235 Mich. 272, that the trial judge did not commit error in exercising his judicial discretion and in refusing to direct a confiscation and sale of the vehicle.
Mr. Justice BOYLES has written for reversal and decreeing that the nuisance use of defendant's automobile be abated by its sale. We are in accord that there was a nuisance use of defendant's automobile; and the circuit judge so held. We differ only on this issue: Does the record show that the trial judge did not properly abate the nuisance use of the automobile?
It is possible that if the trial court had ordered sale of the automobile and confiscation of the proceeds, this court might have affirmed such a decree. *Page 670 But it does not follow that because the trial court decreed abatement by means other than a sale, reversible error was committed. In the judgment of the trial court the impounding of defendant's car for several months, supplemented by the court's injunction preventing defendant "from hereafter loaning his car to Barber Thomas" constituted an effective abatement of the nuisance use of the automobile. This record does not disclose that in so doing the trial judge abused his discretion or did not dispose of the issue of abatement within the terms of the statute which (when properly construed — see People, ex rel. AttorneyGeneral, v. Holschuh, 235 Mich. 272) does not command sale of an automobile when used as in the instant case. Instead, the court, if reasonably essential to abatement, may order sale of such vehicle. We find no good reason for disturbing that portion of the trial judge's decree by which he abated the nuisance use of the automobile in the instant case.
The decree is affirmed, but without costs.
NORTH and WIEST, JJ., concurred with BUSHNELL, J. CHANDLER, BUTZEL, and SHARPE, JJ., concurred in the result.