
    ROBINSON v. INCHES.
    1. Searches and Seizures — Money Seized as Evidence to be Returned When No Complaint Made.
    While police officers had a right, under 3 Comp. Laws 1915, §§ 15880-15883, to seize money to be used as evidence in a prosecution for gambling, it was their duty to return it when complaint was neither made nor contemplated.
    2. Mandamus — Will Lie to Compel Doing of Ministerial Act.
    Mandamus will lie to compel police officials to return money seized to be used as evidence in a prosecution for gambling, where no complaint was made or is contemplated; the return of the identical money taken, to which plaintiff is entitled, being a ministerial act.
    On the Question of right of officer, in executing criminal process, to take possession of evidentiary articles, see notes in 18 L. R. A. (N. S.) 253; L. R. A. 19160, 1017.
    Certiorari to Wayne; Dingeman (Harry J.), J.
    Submitted October 10, 1922.
    (Calendar No. 30,310.)
    Decided November 2, 1922.
    Mandamus by Philo B. Robinson to compel James W. Inches, commissioner of police of Detroit, and another, to return certain moneys. From an order granting the writ, defendants bring certiorari.
    Affirmed.
    
      James B. Walsh (Clarence E. Wilcox, of counsel), for appellants.
    
      Thomas L. Dalton (Fred P. Hempel, of counsel), for appellee.
   Clark, J.

On August 5, 1921, police officers of the Metropolitan Police department of Detroit entered plaintiff’s cigar store. It is- claimed that gambling was there in progress, and that a man standing at the counter was then in the act of making out a betting slip and. that he handed it with $2 to a clerk in the store. The officers interfered. The clerk took from his pocket, as the officers say, or from the cash register as he says, $426 and dropped it into a waste basket. The officers took such money. It is now held by defendants. Plaintiff has demanded a return of the money and has been refused. January.27r 1922, he brought mandamus to compel such return. There was return to the order to show cause which was traversed. Testimony was taken. On April 21, 1922, plaintiff had judgment. For review defendants bring certiorari. It is established that the money belongs to plaintiff. It was found by the trial judge, correctly, we think, that no complaint was ever made against the clerk or against plaintiff and that none is contemplated. The only meritorious question presented is whether mandamus is the proper remedy.

Citing Newberry v. Carpenter, 107 Mich. 573 (31 L. R. A. 163, 61 Am. St. Rep. 346); Taylor v. Isabella Circuit Judge, 209 Mich. 101, and sections 15880-15883, 3 Comp. Laws 1915, Judge Dingeman properly held that while the officers had a right to seize the money to be used as evidence, it was their plain duty to return it when complaint was neither made nor contemplated.

Counsel say:

“Mandamus is an extraordinary remedy granted only in cases where the usual modes of procedure and forms of remedy are powerless to afford relief. It cannot be said that the usual modes of procedure and forms of remedy are powerless to afford relief. If this money was taken from the relator illegally, he has his action and to this action it is the contention of these respondents that he must resort.”

To what action must plaintiff resort? Surely one situated as plaintiff need not seek a money judgment against officers and take the hazard of collecting such judgment. Nor should he be relegated to an action of replevin, nor to equity. Taylor v. Isabella Circuit Judge, supra; LaGrange v. State Treasurer, 24 Mich. 468. Nor need we speculate that if there were a pending cause before a court of competent jurisdiction in which such money was held as evidence the court in disposing of the cause might make an order relative to such evidence, for no such cause is pending. Though the money may be retained illegally it is nevertheless retained officially. LaGrange v. State Treasurer, supra.

Practically speaking, the judgment entered may be satisfied by the payment of money, but, strictly speaking, plaintiff is entitled to the return of the identical money taken. It being established that plaintiff is entitled to the money, that defendants have no right to keep it, and that they retain it in their official capacities, there remains to be done by defendants a single, official, ministerial act — returning the money. This act may be compelled by mandamus. It is said in 2 Abbott’s Cyclopedia of Michigan Practice (2d Ed.), p. 1200:

“It may be affirmed as a general rule, sanctioned by the best authorities, that when a plain and imperative duty is specifically imposed by law upon public officers, so that in its performance they act merely in a ministerial capacity, without being called upon to exercise their own judgment as to whether the duty shall or shall not be performed, mandamus is the only adequate remedy to set them in motion, and the writ is freely granted in such cases, the ordinary remedies at law being unavailing. The same rule applies where the duty is imposed by statute and where it exists independent of statute.”

See 26 Cyc. p. 163; High’s Extraordinary Legal Remedies (3d Ed.), p. 312, and Gowan v. Smith, 157 Mich. 443.

And for a case similar as to facts in which the question is fully considered, see LaGrange v. State Treasurer, supra.

The judgment is affirmed.

Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.  