GAME VIOLATIONS ‑- SEIZURE OF GUNS ‑- FORFEITURE.
RCW 77.12.100 authorizing a justice of the peace to forfeit a gun seized by a game protector while being unlawfully used or held with intent to unlawfully use does not require a conviction of the offender as a condition precedent to forfeiture.
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February 26, 1954
Honorable Maloy Sensney
Prosser, Washington Cite as: AGO 53-55 No. 216
This is in answer to your letters of January 5 and 21, 1954, posing certain questions arising out of the following situation:
Non-residents [[Nonresidents]]of the State of Washington were arrested by a game protector while hunting in a closed area within this state in violation of our game laws. Citations to appear before an appropriate justice of the peace were issued. Guns in possession of the offenders were seized and the parties released without bail. The offenders then failed to appear for trial.
Your question is: Does the justice of the peace have lawful authority in such cases to declare a forfeiture of the guns?
Our conclusions may be summarized as follows:
RCW 77.12.100 authorizing a justice of the peace to forfeit a gun seized by a game protector while being unlawfully used or held with intent to unlawfully [[Orig. Op. Page 2]] use does not require a conviction of the offender as a condition precedent to forfeiture.
RCW 77.12.100 provides in part:
"* * * all game protectors, * * * may seize without warrant * * * any * * * gun, * * * or other device unlawfully used in hunting, * * * or held with intent to use unlawfully in hunting, * * * The justice of the peace * * * shall have power and jurisdiction in any prosecution for unlawfully hunting, * * * in addition to any other penalty provided by law, to forfeit for the use of the commission, * * * any article * * * so seized and proved to have been unlawfully used or held with intent unlawfully to use. * * * In case it appears upon the sworn complaint of the officer making the seizure that any articles seized were not in the possession of any person, and that the owner thereof is unknown, the court shall have power and jurisdiction to forfeit such article so seized upon a hearing duly had after service of summons, describing the articles seized, upon the unknown owner by publication in the manner provided by law for the service of summons by publication in civil actions. * * *"
Your question arises because the offenders failed to appear for trial. Forfeiture statutes are usually in rem and civil in nature. Title of the thing forfeited does not vest until the event of divestiture declared by the legislature occurs. U. S. v. 1960 Bags of Coffee, 8 Cranch (U.S.) 398, 3 L.Ed. 602; Strong v. U.S. C.C.A. 1st 46 F. (2d) 257, 79 A.L.R. 150, Writ of Certiorari dismissed in 284 U.S. 691, 76 L.Ed. 583, 52 S.Ct. 27.
Nowhere does the statute expressly require a conviction of the offender as a condition of forfeiture. In fact, no crime is created by the act. It deals entirely with seizure and forfeiture of certain things including guns when used unlawfully or held with intent unlawfully to use. The statute when construed in [[Orig. Op. Page 3]] its entirety must be deemed to permit seizures and forfeitures by action in rem. This conclusion is supported by the express provisions regarding publication of service of summons when an owner of a seized article is unknown. It is analogous to forfeitures of a vessel in admiralty (The Palmyre (1827) 12 Wheat (U.S.) 1, 6 L.Ed. 531), under the revenue acts (Dobbins Distillery v. U.S. (1878) 96 U.S. 395, 24 L.Ed. 637) and under the fish and game laws (Dept. of Wild Life & Fisheries v. The Baltimore, (1948), 36 So. (2d) 1, 3 A.L.R. (2d) 733).
Under the facts given three conditions must be met; i.e., (1) the seizure must be lawful, (2) an arrest and a sworn complaint before a justice of the peace must be made, and (3) proof of the unlawful use or holding with intent to unlawfully use must be presented to the court. These conditions may be met even though the offender fails to plead to or appear for trial on the offenses charged in the sworn complaint. The justice of the peace may receive evidence of unlawful use or intent and then declare a forfeiture.
For these reasons it is concluded that if proof were submitted to the justice of the peace that the guns were being unlawfully used or were being held with intent to unlawfully use at the time of the seizure, the court has authority to declare a forfeiture.
Very truly yours,
E. ALBERT MORRISON
Assistant Attorney General