I concur in the conclusion reached by Mr. Justice BUFORD that a writ of prohibition absolute should issue in this case, but not for the same reasons, or on the same view of the law that he has expressed.

My view is that the following portion of Section 5512 R. G. S., 7670 C. G. L., is complete in itself and must be considered as separated from the latter portion of the same statute: *Page 52

"All sums of money and every valuable thing * * * and all property to be disposed of, or offered to be disposed of by chance or device under any lawful pretext * * * 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, 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, etc."

The remaining portion of the statute provides for a "recovery" 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 of or on behalf of the State and relates to a means for "recovery" of the amount of any sum of money or valuable thing, and not a "forfeiture" of the thing itself through seizure and confiscation of what is seized. In other words, the proceedings last mentioned are to be resorted to only when "recovery" of the amount of any "forfeited" gambling or lottery stake is sought from him who has it, or who has received it, while a "forfeiture" of the thing itself is accomplished under Section 7665 C. G. L., 5507 R. G. S., in a different way. The latter Section does not require the same proceedings as for a "recovery" under Section 7670 C. G. L., supra.

Section 7665 C. G. L., 5507 R. G. S., which provides for the "disposition" of forfeited gambling paraphernalia, reads as follows:

"The sheriff or any peace or police officer, when any of the implements, devices or apparatus commonly used for gambling purposes are found in any house, room, booth or other place, used for the purpose of gambling, shall seize the same and hold them subject to the discretion of the *Page 53 court, to be used as evidence, and afterwards the same shall be publicly destroyed in the presence of witnesses under order of the court to that effect."

Money found in mechanism of seized gambling or lottery devices may under Section 7665 C. G. L., supra, be considered dealt with and disposed of as a part of the unlawful devices seized, that is, may be regarded as having been "forfeited" eoinstanti the time of seizure, whether the persons criminally liable were apprehended or not. Dorrell v. Clark, 90 Mont. 585,4 P.2d 712, 79 A. L. R. 1000. But the "forfeiture" ordained by the statute, while not so directly expressed in the law, is necessarily to the State in the first instance. But insofar as money is concerned, it is ultimately for the use and benefit of the county wherein the seizure has been made. See Section 9 of Article XVI which provides that all fines and "forfeitures" collected shall be paid into the county treasuries of the respective counties.

So the statutes mean, as I construe them, that gambling devices and moneys which are a part thereof may both be disposed of as having been "forfeited" to the State in the first instance. Thereupon, the State having acquired title to same by "forfeiture" when seized flagrante delicto, directs by law that the machines be destroyed as provided by Section 7665 C. G. L., supra, and leaves it to the Constitution to direct what shall be done with the forfeited money, which is to pay it into the fine and forfeiture fund, an order of court made under authority of Section 7665 C. G. L. supra, being required for that purpose and it must be done directly by the seizing officer himself.

But the "forfeiture" authorized is strictly in rem and the "forfeiture" of money is only authorized as an incident *Page 54 to the destruction of the unlawful machine from which the money is taken and must take place at the time of the order for the machine's disposition.

Jurisdiction to summarily forfeit by a proceeding in rem either money or property seized flagrante delicto in violation of a law providing that same may be summarily ordered forfeited by seizure while being used in the act of committing crime, depends upon (1) actual seizure, (2) continued retention of possession in custodia legis, (3) strict adherence to statutory steps required to be taken in disposing of what is seized, either by destroying it, or by paying it or its proceeds into the public treasury.

While it has long been settled that judicial proceedings are not necessary to constitute due process of law under a statute authorizing forfeiture of either property or money seized while being used to violate the law, the proceedings being in rem and jurisdiction to entertain it being acquired by the actual seizure in the guilty act. (Lawton v. Steele, 152 U.S. 133, 14 Sup. Ct. Rep. 499, 38 L. Ed. 3850.) Yet in every case, due process of law contemplates strict compliance with the statutes where under the law an officer making seizure of forfeited property innocuous per se is required to pursue a certain course to complete what the law requires to be done to make its forfeiture perfect.

In the instant case, there is an attempt to conduct in the Circuit Court a separate judicial proceeding for forfeiture of moneys which, if a separate judicial proceeding is authorized at all to adjudge a forfeiture as claimed, should be in the court having jurisdiction of the amount involved. This is not the Circuit Court.

Therefore I think that it is sufficient in the present case to say as has Mr. Justice BUFORD that the attempted exercise of jurisdiction to adjudicate a forfeiture in the Circuit Court *Page 55 is unauthorized on any theory so a writ of prohibition absolute should issue.

But the money now in court is subject to the court's temporary disposition by an order directing that it be paid over to the fine and forfeiture fund of Dade County without any preliminary adjudication of its ownership. In that case any lawful claimant of such money would thereafter have his right under the law to subsequently sue for such moneys in an action against the county for money had and received by it for claimant's use. Such suits would appear to be maintainable under the same circumstances that taxes and other moneys compulsorily required to be paid into a public treasury without the owner's consent can be sued for and recovered when paid in under protest.