I dissent. I agree with all that is said in the opinion of my associates portraying the pernicious character of the slot-machine as a contrivance by means of which money is taken from the gullible, and that the judgment of the trial court is in conformity with good morals and what public policy ought to be. But the question of the public policy of the state is a legislative one where the legislature has legislated on the subject (Spaulding v. Maillet, 57 Mont. 318, 188 P. 377; Stateex rel. Rankin v. Harrington, 68 Mont. 1, 217 P. 681), and not one for the courts, and whether the judgment conforms to the public policy of the state depends upon what the legislature has said on the subject.
The precise question before us is to determine what consequences the legislature has prescribed shall flow from the violation of the gambling law. Determination of this question depends entirely upon what the law is, as declared by the legislature, rather than what the court thinks it ought *Page 593 to be. The legislature has prohibited the use or possession of slot-machines, eo nomine. (Secs. 11159, 11160, Rev. Codes 1921.) It must be assumed that the legislature, when enacting these sections of our statute, knew what a slot-machine was and that usually one in use contains money. A forfeiture of that money can be had only when expressly imposed by law. (Sec. 11605, Id.) If the legislature desired to confiscate or declare forfeited the money found in the machine, it could easily have done so. Instead of doing so, it prescribed a penalty of not less than $100 nor more than $1,000 and imprisonment not less than three months nor more than one year, or both fine and imprisonment. (Sec. 11159, Id.) It also provided for the destruction of the "machine, apparatus, or instrument." (Sec. 11167, Id.)
These penalties, I think, were intended to be exclusive, and that the legislature contemplated that money won by the use of such machines belongs to the operator, subject only to the right of the loser to recover it by action within sixty days (sec. 11173, Id.), or upon his failure to do so, then to the right of his dependents to do so within one year (sec. 11174, Id.). None of these parties asserted any right to the money prior to the entry of the judgment here appealed from, or since so far as we know, and the time for so doing has now expired. If such action is commenced in any case, it must be brought against "any person having any interest, direct or contingent, in the game, as owner, backer, or otherwise," and all of such persons may be joined in the one action. (Sec. 11173, Id.)
There is no provision whereby the losers of the money may bring an action against the clerk of the court or any other third person having possession of the money lost, who had no connection with the game. Of course, the court might have fixed the amount of the fine on plaintiff's plea of guilty, in such sum, not exceeding $1,000, as would have accomplished the forfeiture of the money in the machine as a part of the fine, but the record does not disclose that this was done. The statute contemplates that the order for the destruction of the *Page 594 machine shall be made after disposition of the criminal prosecution (sec. 11167, Id.), and I assume this is what was done. The order directing the deposit of the money with the clerk of the court is a part of the order for the public destruction of the machines, and hence must have been made after disposition of the criminal prosecution and not as a part of it.
It is worthy of note that if any action be brought by the loser or his dependents to recover the money lost, exemplary damages are allowed in case of recovery, which shall not be less than $50 nor more than $500. (Secs. 11173 and 11174, Id.) The exemplary damages are not the same as the fine that may be imposed, but both the minimum and maximum which may be awarded as exemplary damages are but one-half of the fine prescribed.
Section 11176 then provides that if the money lost is repaid and the exemplary damages are paid, the one guilty of violating the law "shall be acquitted and discharged from any further or other forfeiture, punishment, penalty, or prosecution he or they may have incurred for so winning such money or thing, discovered and repaid." This language seems to me clear. It proclaims a legislative policy in unmistakable terms that the operator of the machine shall not be subjected to the penalty prescribed as for a misdemeanor and at the same time be compelled to surrender the money in the machine. The fact that the exemplary damages, both minimum and maximum, are fixed at one-half the minimum and maximum fine that may be imposed is persuasive, at least, that the legislature took into consideration that in the one case the guilty party would be required to repay the money won by him, in addition to exemplary damages, while in the other he would not.
The conclusion in the majority opinion that the money in the machines belongs to those who put it in, is, I think, unwarranted. If that is the case, why did the legislature speak of the one party as losing money and the other as winning, as it did in sections 11173, 11174, 11175, 11176? If the money in the machines belongs to those who put it there, then they have *Page 595 in fact lost nothing. And if the guilty operator does not own it, then why is he characterized as one winning money?
Neither am I able to follow the specious reasoning in the majority opinion, implying that a different result might follow if the operator had reduced the money to possession prior to the time the machines were seized by the sheriff. I think the money was in the possession of the operator of the machines under the circumstances here. He admittedly was in control of the machines in his place of business. He pleaded guilty of that charge. Had he concealed intoxicating liquor or opium in the machines instead of money, he could have been prosecuted for having unlawful possession thereof. (State v. Jacobson, 77 Mont. 57,249 P. 571.)
Of course, I concede that the sheriff had the right to seize the machines, and the fact that they contained money did not prevent him from so doing. But when the money was found, I think since the legislature has not otherwise provided, it should be returned to the party whom the legislature recognizes had won it. Upon refusal to do so, I think he has the right to maintain an action for its recovery. He is not seeking recovery on an illegal contract. The gambling transaction was a closed incident when the money was placed in the machines and the lever operated. Let us suppose that the operator of a machine lent money to A, which he took from a slot machine in A's presence, as the winnings of its unlawful operation. A, like the defendants here, came rightfully into the possession of the money. Is it possible that A can defend the action to recover on the loan on the ground that the money originally came from an unlawful enterprise? The cases are legion that he cannot. This court has so held in Owens v.Davenport, 39 Mont. 555, 28 L.R.A. (n.s.) 996, 104 P. 682. Many others to the same effect are collected in the dissenting opinion in the case of McManus v. Fulton, 85 Mont. 170, 67 A.L.R. 690, 278 P. 126, commencing on page 207 of 85 Mont. (278 P. 134). I was of the opinion that those cases had no application to the facts of that case, but I think they have application here and that this case *Page 596 presents a striking illustration of the exception alluded to in the case of Morrison v. Bennett, 20 Mont. 560, 40 L.R.A. 158, 52 P. 553. I concede that defendant may, in a proper case, plead the illegal contract to defeat recovery (McManus v.Fulton, supra), yet, I think, after the illegal contract has been fully executed and the money gained by an illegal manner comes into possession of a third person, though rightfully, the latter will not be permitted to retain it, when otherwise not entitled to it, on the sole ground that the person seeking possession originally obtained it from an illegal source. That is precisely the position of the defendants here. They are the ones who have pleaded the illegal source of the money.
I agree with the majority opinion wherein it states that the Minnesota case of State v. Falgren, 176 Minn. 346,223 N.W. 455, 456, is "undoubtedly correct," but in so far as the majority opinion then proceeds to arrive at an opposite conclusion than did the Minnesota supreme court, I disagree with it. The supreme court of Minnesota in that case said: "2. The court directed that the slot-machines, after their destruction as gambling devices, be sold as upon execution and the proceeds turned into the county treasury. There was in the four slot-machines the sum of $106.90, the proceeds of gambling. The court directed this sum to be turned into the county treasury. The purpose of the statute is to destroy gambling devices so that they cannot be used. It is not its purpose to get for the county the proceeds of gambling nor the junk value of the gambling devices. It seeks to stop gambling, not to take for the county money which has been lost at gambling or the value of the gambling devices after they are rendered useless for gambling. The state adroitly suggests that the money was a part of the gambling devices since the slot-machines could be used only with money; and, that the money found in them was money used in the slot-machines, substantially a part of them, and subject to disposition as a part of the gambling devices. We do not take this view. We have examinedState v. Powell, 170 Minn. 239, 212 N.W. 169, cited by both parties, and see no necessity *Page 597 of commenting upon it. So far as is apparent the court on motion can correct the error by striking out a portion of the conclusions of law and directing judgment in accordance with the view we have expressed. Reversed."
Now, just what did the court mean in the concluding paragraph of that opinion? Did the court not in effect order the lower court to return the money to the guilty operator? It was the guilty operator who complained of the lower court's action. It was on his appeal that the judgment was ordered modified. Is it to be supposed that the lower court, on modification of the judgment, ordered the money to be deposited with the clerk of the court or to be held by the county, not in its treasury, but as "treasure trove"? I think the only reasonable conclusion to be drawn from the opinion, read in its entirety, is that the person complaining, the guilty operator, obtained the relief demanded by him to the extent indicated by the court.
I think the Minnesota supreme court reached the correct conclusion and that the judgment here should be reversed.