103 Wash. 232 | Wash. | 1918
— Hisakachi Umaki, I. Tabato, C. Ikemiza and T. Ikemiza were apprehended in Whatcom county for violation of the “Fisheries Code of Washington,” and certain of them were tried and convicted in the superior court. At the time of the arrest, two boats and the articles used and found therein — which are the cause of this controversy — were seized. A return was made and filed by L. H. Darwin, state fish commissioner, of the seizure, to and in the superior court of said county, demanding that all the property should be forfeited to the state.' The British Columbia Packers’ Association, of British Columbia, intervened in the cause, alleging it was the owner and holder of
We are immediately interested in § 40 and a part of § 41 of the fisheries code (ch. 31, Laws of 1915, p. 81, §§5150-40 and 5150-41, Bern. Code), as follows:
“Sec. 40. Any fishing appliance or part thereof found in the waters of this state wherein the same are prohibited, the same being placed therein for the purpose of illegal fishing is hereby declared a public nuisance and shall be subject to abatement as a public nuisance, and it shall be the duty of the commissioner to enforce the provisions of this section; and any and all appliances used in violation of any of the provi
“Sec. 41. The presence in any of the waters of this state of any craft of any nature whatever equipped with any of the appliances required to be licensed by the laws of this state for the taking of fish, or of any fishing appliance for which licenses are required shall be prima facie evidence that the owners thereof are engaged in fishing.
“Any person who shall engage in fishing with any appliance whatsoever without having first obtained a license or made lawful application therefor shall be deemed guilty of a misdemeanor and the commissioner is hereby authorized to seize said appliance and the same shall be confiscated to the state.”
The owners and the mortgagee of the property defend the judgment of the trial court on account of decisions of other courts on this subject and also because of the language of the sections of the fisheries code.
First, is the case of United States v. Two Barrels of Whisky, 96 Fed. 479, in which the court, after a painstaking review of the cases, some deciding for and others against forfeiture, refused judgment of confiscation of that portion of the property covered by the statute, in possession of the wrongdoer at the time of the commission of the criminal act, which belonged to another person, but upon the expressed grounds: “In the case at bar it is admitted that this property was in possession of the wrongdoer ‘without the consent and knowledge of the claimant.’ ” The opinion refers to the sayings of judges in other similar cases as follows: “It is expected that the owner of property will see to the uses made of it at his peril”; and: “The court is also of opinion that the removal for
The case of The Calypso, 230 Fed. 962, is relied on. The case involves an application of section 10, of the act of Congress of May 6,1882, c. 126 (22 Stat. 61), entitled “An act to execute certain treaty stipulations relating to China” as amended by the act of July 5, 1884, c. 220, 23 Stat. 115 (Comp. St. 1913, § 4297), said section being as follows:
“That every vessel whose master shall knowingly violate any of the provisions of this act shall be deemed forfeited to the United States, and shall be liable to seizure and condemnation in any district of the United States into which such vessel may enter or in which she may be found.”
The Calypso was a gasoline launch seized by the Federal authorities and attempted by them to be forfeited. The circuit court of appeals, in an opinion written by Judge Rudkin, clearly states the inquiry as follows:
“In the early part of 1914 Pettenger, accompanied by three companions and a Chinaman named Lee, took the launch on a trip to Mexico, returning to Monterey Bay with a load of contraband Chinese and contraband opium, which were surreptitiously landed on the 16th day of January. The launch was there seized by government officers, and is clearly liable to condemnation so far as the interest of Pettenger is concerned, and also so far as the interest of Sassaman is concerned, if Pettenger was the master of the launch within the meaning of the law. The court below decreed a forfeiture as to the interest of Pettenger, but denied a forfeiture as to the interest of Sassaman, and from the latter branch of the decree this appeal is prosecuted. ’ ’
And then, after discussing the proof in the case, the court finds that Pettenger was not the master of the
Next is the case of United States v. Two Gallons of Whisky, 213 Fed. 986. Section 2140, Rev. St. [U. S. Comp. St. 1916, §4141], provides that, if any white person or Indian is suspected of introducing intoxicating liquor into the Indian country, “the boats, stores, packages, wagons, sleds, and places of deposit of such person” may be searched; “and if any .such liquor is found therein, the same, together with the boats, teams, wagons, and sleds used in conveying the same, and also the goods, packages, and peltries of such person” shall be forfeited. In violation of this law, whisky was introduced into the Indian country, and, together with the team, harness and wagon used to transport it, was seized. The whisky belonged to one who employed or induced another to carry it, which other did not own the team, harness or wagon, but had borrowed them for a proper purpose. In the forfeiture proceeding, the owners of the team, harness and wagon intervened, denying the right of forfeiture. The court, construing and applying the law, said:
“Noting that it forfeits the liquor introduced and found, regardless of ownership and introducer, the statute directs search of the introducer’s conveyances, if he is a white person or Indian, and seizure, libel, and forfeiture of the introducer’s conveyances and goods. This restrictive language, in view of its absence in the matter of the liquor, and in view of the nature of the statute and in view of the language of analogous statutes, is significant of congressional intent to limit the forfeiture to the property owned by him who is guilty of the prohibited act.”
Another case, United States v. One Automobile, 237 Fed. 891, is the same kind of a case as the last one referred to, and the opinion was written by the same
Counsel further calls attention to the following portion of § 41 of the fisheries code:
“The presence in any of the waters of this state of any craft of any nature whatever equipped with any of the appliances required to be licensed by the laws' of this state for the taking of fish, or of any fishing appliance for which licenses are required shall be prima facie evidence that the owners thereof are engaged in fishing; ’ ’
and contends that “prima facie evidence” is always rebuttable, and when the legislature provided that the presence of these boats in the waters of the state was prima facie evidence that the owners thereof were engaged in fishing, which the owners would have the right to rebut, and because of the closing paragraph of § 41, as follows:
“Any person who shall engage in fishing with any appliance whatsoever without having first obtained a license or made lawful application therefor shall be deemed guilty of a misdemeanor and the commissioner is hereby authorized to seize said appliance and the same shall be confiscated to the state,” Rem. Code, §5150-41; '
that, therefore, the right of seizure and forfeiture is expressly limited to property owned by “any person who shall engage in fishing;” and because in this instance the owners were not engaged in fishing, the provision for confiscation has no application to them or their property. Snch argument is not convincing. The owners who appear in this forfeiture proceeding, and in whose behalf such argument is now made, have not been charged with fishing. We are not now concerned with the crime or proof of fishing, but the forfeiture of property. Again, to say, as is further contended by
Our statute takes no inventory of title to the property seized. There is ample authority and reason for the enforcement of such a law. In the case of United States v. Brig Malek Adhel, 2 How. (43 U. S.) 209, it was held that, under the act of Congress of March 3, 1819, any piratical aggression subjects the vessel to. forfeiture, although the owners are innocent and the vessel was armed for a lawful purpose and sailed on a lawful voyage. Mr. Justice Story, in delivering the opinion of the court, said: .
“The next question is, whether the innocence of the owners can withdraw the ship from the penalty of confiscation under the act of Congress. Here, again, it may be remarked that the act makes no exception whatsoever, whether the aggression be with or without the co-operation of the owners.”
To the same effect, see the following cases: United States v. Schooner Little Charles, Fed. Cas. No. 15,612; Smith v. State of Maryland, 18 How. (59 U. S.) 71; Fisher v. McGirr, 1 Gray (Mass.) 1, 61 Am. Dec. 381.
Another case which, on account of the similarity of the statute and the geographic conditions of the waters of the state is almost parallel with the case at bar, is Boggs v. Commonwealth, 76 Va. 989. The court in Virginia considered an act of the legislature which is as follows:
Of this statute the court said:
“The theory of the law in all this class of eases is, that the vessel or other property is unlawfully used by the owner himself, or by some other person with whom he has intrusted it; that it is so used in violation of law, and to the detriment of public and private interests, which can only be effectually protected by confiscating the property itself as the offender. And this is more especially true with reference to the fisheries and oyster beds of Virginia, which have been invaded and plundered time and time again by piratical vessels, fitted out in other states and manned by ignorant and irrepressible crews, whose punishment affords but little redress to the state or compensation to the citizens.”
It is plain that the case at bar is one in which the trespasser did not get possession of the boats by stealth, force or-fraud, but, rather, one in which the owner yielded possession. The statute makes no mention of the title to, or ownership of, the property which, for illegal fishing, may be seized by the commissioner and confiscated to the state. Possession, not ownership, is the guide. The fate of the property is linked to that of him who uses it for the evil purpose. The legislature, in protection of its vast property in the fish of its waters, and not unmindful of the avarice and daring of those, among others, who can look across a boundary line on Puget Sound into the fertile field of a fisherman’s dream, has declared a policy, as it
The judgment in this cause is reversed, with directions to the trial court to enter a judgment declaring the property forfeited to the state.
Main, C. J., Tolman, Fullerton, and Parker, JJ., concur.