State v. Mavrikas

Decision Date29 August 1928
Docket Number21234.
Citation148 Wash. 651,269 P. 805
CourtWashington Supreme Court

Department 1.

Appeal from Superior Court, King County; Howard M. Findley, Judge.

Proceeding by the State against Stathis Mavrikas for the confiscation of a motorboat and its appliances, unlawfully used for fishing in Puget Sound. From a judgment for defendant, the State appeals. Reversed and remanded, with directions.

Ewing D. Colvin and R. L. Bartling, both of Seattle, for the state.

James E. Bradford, of Seattle, for respondent.


This proceeding was commenced in the superior court for King County by the petition of the supervisor of fisheries on behalf of the state, seeking a judgment confiscating to the state a motorboat and its appliances owned by the defendant Mavrikas, and unlawfully used by him in fishing in Puget Sound, in King county. Trial upon the merits in that court sitting without a jury, resulted in findings and judgment denying to the state the relief prayed for, from which it has appealed to this court.

As we view this case, the controlling facts are stated in the findings of the court and may be summarized as follows: On October 20, 1927, the motorboat Queen of the Seas, together with her tackle and appliances, including a large gill net and other fishing appliances, all owned by Mavrikas, was being used by him unlawfully for the purpose of fishing for salmon and other food fish in the waters of Puget Sound, in King county, he not then having a license to so fish, as required by the fishing code of this state. Mavrikas, then so fishing, caught about 15 fish. On that day the state supervisor of fisheries seized the boat and its appliances and thereupon petitioned the superior court for King county for a judgment of confiscation of the boat and appliances to the state. Following the making of findings showing the facts above summarized, the trial court concluded its findings as follows:

'That on or about the 20th day of October, 1927 defendant was arrested, and on October 28, 1927, was tried before the justice court in Seattle, said county and state, Judge Chester A. Batchelor presiding, and found guilty of the charge of illegal fishing, and was thereupon sentenced by said court to pay a fine of $100; that said fine has been paid and all the terms of said sentence performed; that said boat and other properties listed in said inventory includes all the properties which defendant now owns or has any interest in, and that he is over 55 years old, and has no employment or occupation whatsoever, other than that of fishing with such a boat; that the above is the first and only time defendant was ever arrested, and with that exception he has always been a law-abiding member of society; that in view of all the foregoing facts, and the circumstances surrounding said properties, it would be unfair, unjust, and inequitable for the court by its order to confiscate all of said properties to the state.'

In denying the relief prayed for by the state, the trial judge manifestly proceeded upon the theory that the matter of rendering a judgment of confiscation of the boat and appliances was within the discretion of the court, though the state had shown legal cause for such confiscation.

There were no exceptions taken by counsel for the state to any of the findings, and it is here contended by counsel for Mavrikas that therefore this court is bound by the concluding language of the above-quoted finding that:

'In view of all the foregoing facts, and the circumstances surrounding said properties, it would be unfair, unjust, and inequitable for the court by its order to confiscate all of said properties to the state.'

It seems to us that this quoted language is not a finding of fact, but a mere conclusion of law, which the trial court made from the facts found. Since we regard the case determinable from the facts as found, without any necessity of looking to the very short statement of facts proposed by counsel for the state and certified by the trial judge, it is of no consequence that there were no exceptions taken to the findings, or to this conclusion of the trial court. Hallidie Co. v. Washington Brick, etc., Co., 70 Wash. 80, 126 P. 96; Katterhagen v. Meister, 75 Wash. 112, 134 P. 673; Nichols v. Capen, 79 Wash. 120, 139 P. 868; Vansant v. Hartman, 88 Wash. 636, 153 P. 1062; Nishimoto v. Vernon, 107 Wash. 555, 182 P. 617.

Our problem, then, is as to what judgment the law requires from the facts so found by the trial court. The applicable provisions of our fisheries code, referring to sections of Remington's Compiled Statutes, are the following:

'Sec. 5692. 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

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8 cases
  • Hendry Co v. Moore
    • United States
    • U.S. Supreme Court
    • February 8, 1943
    ...Conn. 697, 66 A. 511; Ely v. Bugbee, 90 Conn. 584, 98 A. 121, L.R.A.1916F, 910; State v. Umaki, 103 Wash. 232, 174 P. 447; State v. Mavrikas, 148 Wash. 651, 269 P. 805; Osborn v. Charlevoix Circuit Judge, 114 Mich. 655, 663, 666, 72 N.W. It is noteworthy that ,Blackstone's Commentaries, mor......
  • Brown v. Hecht Co.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 22, 1943
    ...involved the mandatory death penalty statute; Lynn v. Lynn, 256 Pa. 563, 100 A. 975, involving an action of replevin; State v. Mavrikas, 148 Wash. 651, 269 P. 805, statutory confiscation of equipment used in illegal fishing. But with exceptions of this character the rule stated above is gen......
  • Crape v. Mount
    • United States
    • Washington Court of Appeals
    • July 16, 1982 numerous other circumstances. See State v. Nelson, 33 Wash.2d 816, 207 P.2d 667 (1949) (unregistered foodstuffs); State v. Mavrikas, 148 Wash. 651, 269 P. 805 (1928) (boat used in illegal fishing). See also Annot., Forfeiture of Auto Used in Narcotics Crime, 50 A.L.R.3d 172 (1973); Annot......
  • Jordan v. O'Brien
    • United States
    • Washington Supreme Court
    • June 24, 1971
    ...Shall is presumed to have been used in reference to that right or benefit, and it receives a mandatory interpretation. State v. Mavrikas, 148 Wash. 651, 269 P. 805 (1928); State ex rel. Nicomen Boom Co. v. North Shore Boom and Driving Co., 55 Wash. 1, 103 P. 426 (1909); Wheeler v. Chicago, ......
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