Opinion
No. 45412.
March 20, 1961.
APPEAL FROM TWENTY-FIFTH JUDICIAL DISTRICT COURT, PARISH OF ST. BERNARD, STATE OF LOUISIANA, HONORABLE BRUCE NUNEZ, J.
Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., L. H. Perez, Jr., Dist. Atty., Ellis C. Irwin, New Orleans, for appellant.
Billy Bellande in pro. per.
The court below sentenced the defendant, Billy Bellande, on his plea of guilty to a charge of trawling in inside waters in violation of R.S. 56:497 to pay a fine of $500 and costs or to serve 15 days in the Parish jail, and ordered the trawl nets and other paraphernalia used in connection with the violation forfeited in conformity to the mandatory provisions of R.S. 56:507. Immediately after imposition of the foregoing sentence testimony was heard to the effect that the activities, constituting the violation for which defendant was convicted, were conducted without the permission and contrary to the instructions of the owners of the equipment used; whereupon the trial judge directed the forfeited nets returned to their owners. The State, through the Wild Life and Fisheries Commission, appealed.
R.S. 56:497 provides: "No person shall take, have in possession, sell or offer for sale any salt water shrimp taken from inside waters between December twenty-first and April thirtieth, both inclusive, and between July first to the third Monday in August of any year. The remaining portions of the year are the open seasons, during which time salt water shrimp may be taken from inside waters, sold, or had in possession by any authorized person, subject to the conditions stipulated in this Sub-part. * * *" (As amended Acts 1954, No. 348, Sec. 1; Acts 1958, No. 53, Sec. 4.)
R.S. 56:507 provides: "Whoever violates any provisions of this Sub-part * * * shall be mandatorily fined not less than two hundred dollars nor more than five hundred dollars or sentenced to serve not less than fifteen nor more than five hundred dollars or sentenced to serve not less than fifteen nor more than thirty days in jail, or both, for the first offense; * * * In addition thereto, and in the same proceedings, the seines, trawls, other devices or equipment, tackle, etc. used in the violation shall be forfeited by order of the court imposing the fine and sentence to the Louisiana Wild Life and Fisheries Commission for such disposition as in its discretion it may see fit to make." (As amended Acts 1958, No. 53, Sec. 9.)
Under the clear provisions of the penalty clause of the statute [the pertinent portion of which is quoted in footnote 2] the trial judge was without authority to issue the order directing the return of the trawl nets to the owners thereof, the right to dispose of such forfeited equipment being vested by the statute in the Wild Life and Fisheries Commission.
For the reasons assigned the order of the trial judge directing that the trawl nets seized and forfeited be returned to their owners is annulled and set aside.