Hey Sing Ieck v. Anderson

McKee, J.: This was an action of claim and delivery for one net, three boats, and fishing tackle alleged to have been taken and wrongfully detained from the plaintiff.

It appears that the property belonged to the plaintiff, who had rented it to certain Chinese fishermen, for the purpose of fishing in the tide-waters of the State. In December, 1878, these men, who had possession of the property, were catching fish in what is known as Montezuma Cut-off Slough, within the jurisdiction of Solano County, by casting and extending their nets more than one-third the way across the slough. That contrivance for catching fish was prohibited by § 636, chapter i, [252]title xv, of the Penal Code, which declared that “ every person who shall cast, extend, or set any seine or net of any kind, for the catching of fish in any river, stream, or slough of this State, which shall extend more than one-third across the width of said river, stream, or slough, at the time and place of such fishing, is guilty of a misdemeanor,” punishable by fine or imprisonment, or both. Further, it declared that “ all nets, seines, fishing tackle, boats, or other implements used in catching or taking fish in violation of the provisions of this chapter shall be forfeited, and may be seized by the peace officer of the county, or his assistant, and may be by him destroyed or sold at public auction, upon notice posted in the county for five days.”

At the time of the fishing, the defendant was an acting constable of Suisun township. In that capacity, he arrested the men for a violation of the law, and seized their nets, boats, and fishing tackle. The seizure was followed by the prosecution of the offenders, and they were severally convicted and sentenced to pay a fine. No fault is found with the proceedings against them ¡personally. But no proceedings of any kind were taken against the property which had been seized.

The Court below found, as a fact, that the plaintiff knew nothing of the unlawful use of his property by those to whom he had hired it, and did not “ connive at or encourage ” such use ; and it would seem to be harsh justice, to say the least, to deprive him of his property for no guilty act of his own. It may be conceded, that the innocence of the plaintiff would not exempt his property from the punishment of a statute, the provisions of which it had been used to violate, if the statute itself had provided for enforcing the punishment by some judicial proceedings against it. Under such circumstances, property used to commit the aggression might be treated as an offender —as the guilty instrument or thing to which the forfeiture denounced by the statute attached—without reference to the character or conduct of the owner. But the statute under consideration contained no provisions whatever for determining whether the property was liable to condemnation for the forfeiture denounced against it for the criminal acts of those who had it in their possession. It merely authorized a peace officer to seize the property without warrant or process, to condemn it