State Ex Rel. Padgett v. Circuit Court of the Eleventh Judicial Circuit

Bufoed, J. The record in this case shows that certain slot machines were brought under subpoena duces tecum before the Grand Jury of Dade County; that the machines were operated by or in the presence of the Grand Jury and $2731.26 was taken from them. By order of the grand jury, the machines and the money were delivered to the Clerk of the Circuit Court with directions to the Clerk of the Circuit Court to keep and retain the same in the registry of the Circuit Court, subject to the order of the said court. Padgett, Mahoney, Saxon, Bowen and Walston claimed to be the owners of the machines and the money. They assigned the money to Giblin and Gordon. They were indicted for the crime of conducting a lottery by use of such machines. The indictment was certified to the Criminal Court of Record of Dade County where they were informed against by the County Solicitor and were in the latter court convicted. While it appears immaterial, the record shows that Messrs. Gibson and Gordon filed a petition praying an order of the Circuit Court for the delivery of the money to them as assignees of the owners. The petition was denied. The States Attorney, Honorable Vernon Hawthorne, filed a petition in the Circuit Court amongst other things pray *48 ing that the money be adjudged forfeited to the State and that it be transferred to and deposited in the Fine and Forfeiture Fund of Dade County. In this petition it was prayed that the rule nisi be issued to Messrs. Giblin and Gordon to show cause why the said money should not be adjudged forfeited and be transferred to and deposited in the Fine and Forfeiture Fund of Dade County. Messrs. Giblin and Gordon appeared and demurred to the petition. The demurrer was overruled and order was made in accordance with the prayer of the petition. The petitioners herein then filed suggestion for writ of prohibition to issue whereupon rule nisi was issued to á Judge of the Circuit Court of Dade County requiring him to show cause why he should not be prohibited by order of this Court from exercising jurisdiction under such a petition. The sole question presented here is whether or not the Circuit Court had jurisdiction to adjudge a forfeiture of the money delivered to the Clerk of the Circuit Coürt by the grand jury in the sum of $2731.26, which was alleged by the grand jury presentment to the Circuit Court to have been extracted from the above mentioned slot machines. The record does not show that there has ever been any adjudication of forfeiture of the money by a court of competent jurisdiction. Circuit Courts under Section 11 of Article V of the Constitution have exclusive original jurisdiction in all cases in equity and also in all cases at law not cognizable by inferior courts and in all cases involving the legality of any tax, assessment or toll; of all actions in ejectment and of all actions involving titles or boundaries of - real estate, etc.” The Civil Court of Record of Dade County has exclusive *49 original jurisdiction in all cases at law including writs of attachment and garnishment where the matter in controversy does not exceed, exclusive of interest and costs, the sum or value of $5,000, etc. Section 1, Chapter 11357, Acts 1925, Extra Session; Sec. 5156 Comp. Gen. Laws. Now it is clear that the matter in controversy here does not exceed $5000.00. The matter in controversy is the sum of money in the sum of $2731.26. It is the contention of the respondent through the States Attorney that the Circuit Court, being in possession of the fund, is authorized to declare it forfeited and to order it transferred to the Fine and Forfeiture Fund of the county under the provisions of Section 5512 R. G. S., 7670 C. G. L. The Circuit Court did not have jurisdiction of the offense for the purpose of a trial and conviction of which the defendants were convicted and concerning which the slot machines were originally seized as evidence. The particular statute under which the Circuit Judge purports to be acting is Section 5512 R. G. S., supra, and is as follows: “All sums of money, and every other valuable thing drawn and won as a, prize, or as a share of a prize, in any lottery, and all property to be disposed of, or offered to be disposed of, by chance or device under any lawful pretext by any person being an inhabitant or resident within this State, and all sums of money or other thing of value received by such person by reason of his being the owner or holder of any ticket or share of a ticket in a lottery, or pretended lottery, or a share of right in any such schemes of chance or such device contrary to the provisions of this Article, shall be forfeited, and may be recovered by civil proceedings, filed, or by an action for money had and received, to be brought by the Attorney General or any State Attorney, or other prosecuting officer; in the name and on *50 behalf of the State; the same to be applied when collected as all other penal forfeitures are disposed of.” Our view is that this section of the statutes clearly contemplated that there should be an adjudication of forfeiture in a court of competent jurisdiction. That it is the purpose of the statute to limit the power of the courts to declare forfeitures in cases to which the statute is applicable so that in such cases private property may not be taken without due process of law. The reason for such statute is obvious for the protection of individual rights. In this case for instance there is no record of any evidence taken before any court that the money found in the slot machines was put there in a gambling or lottery operation. Non constat, the money may have been put in the machines by the owners of the machines. It appears that the officers have assumed what may be quite true, that the money was placed in the machines as the same were used in conducting a lottery, but before private property is forfeited to the State there must be evidence before a court of competent jurisdiction of the existence of the right of forfeiture. A person found with gambling devices in his possession may be convicted and a part of the judgment of conviction may be the forfeiture of the gambling devices but that is not this case. In this case the indictment charged certain defendants with using slot machines in the operation of a lottery. That indictment was returned in a circuit court which did not have jurisdiction to try the cause. The indictment was then transferred to the Criminal Court of Record and that court proceeded in an orderly manner to try the cause on information filed therein and a conviction was had. But we find in the record no evidence of the judgment of forfeiture of this money along with that judgment of conviction. *51 Our construction of the statute is that there must be a judicial determination of the right of forfeiture in such cases as the one before us; that adjudication must be by a court of competent jurisdiction; that in this case the Circuit Court of Dade County is without jurisdiction because the amount involved is less than $5000.00. The State claims this amount as being subject to forfeiture. The record shows that others, the petitioners, here, claimed the legal right to the ownership and possession of the fund. The Civil Court of Record of Dade County is the proper tribunal in which their differences should be adjudicated. The rule in prohibition- should be made absolute and perpetual insofar as the same prohibits the Circuit Court from enforcing its order of forfeiture heretofore referred to, and it is so ordered. This should not be construed to mean, however, that the Circuit Court may not order, direct and require the fund to be transferred to and deposited in the registry of the Civil Court of Record of Dade County, there to remain until lawfully disposed of by the orders and judgments of that court. Whitfield, P. J., and BrowN, J., concur. Davis, C. J., concurs specially. Ellis, J., concurs in the opinion and judgment. TekRell, J., concurs in the .conclusion.