specially concurring and dissenting.
I also would affirm the decision of the district court in this case except for the inclusion of the $1,400 in fourteen prerecorded hundred dollar bills which were identified as having been furnished by the City of Gillette as buy money. I am intrigued with Justice Urbigkit’s discussion of the appropriate treatment for that money, *70and he well may be right that it should be treated, in substance, as contraband per se. I have a more fundamental concern, however.
Section 35-7-1049, W.S.1977, in subsection (a), defines the property that is subject to forfeiture. Section 35-7-1049(b) provides that such property may be seized by a law enforcement officer under certain circumstances. Subsection (c) of the statute then requires the prompt institution of proceedings with respect to property that has been seized. Section 35-7-1049(d) then provides:
“ — Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the commissioner subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings.”
I note in passing that subsection (d) of the statute is remarkably vague with respect to those proceedings to be instituted under that subsection which are alluded to in subsection (c).
Be that as it may, I can find no category in the definitional section of the statute that would include the identified money belonging to the City of Gillette. I am satisfied that while the City parted with possession of this money for purposes of its criminal investigation, it never intended to, nor did it, part with title to the money. Under those circumstances, even conceding that there was no probable cause for the search pursuant to which the money was recovered, the City should not be foreclosed from exercising self help in recovering its own property. The victim of a mugger surely would be entitled to keep his property even though he might have recovered it by an armed robbery. The City should be afforded no lesser rights under the law.
Since the $1,400 is not subject to forfeiture because it does not fit any of the definitions, I cannot discern how the district court acquired jurisdiction over it in the forfeiture proceeding. I understand that this point was not raised by the parties, but we have often said that we have an independent responsibility with respect to jurisdiction. E.g., Parker v. Haller, 751 P.2d 372 (Wyo.1988); Kurpjuweit v. Northwestern Development Company, Inc., 708 P.2d 39 (Wyo.1985); Hayes v. State, 599 P.2d 569 (Wyo.1979); Gardner v. Walker, 373 P.2d 598 (Wyo.1962).
The status quo, as of the time of the initiation of these proceedings, was that police officers of the City of Gillette were in possession of the entire sum of $11,346 including the City’s $1,400 that it had recorded prior to furnishing it for the purpose of criminal investigation. I suppose it was a mistake for the City to include the prerecorded bills with the other money in the forfeiture proceeding. The money was no more subject to forfeiture pursuant to the statute than the automobile that the investigating officer was driving. The City of Gillette, however, could not invest the court with jurisdiction by this mistake and, consequently, the district court acquired no jurisdiction over the money. It is for that reason that I would reverse the judgment of the district court with respect to the $1,400.
I also must confess some consternation with respect to the apparent mixing of the remedy under Rule 40, W.R.Cr.P., and the forfeiture proceedings set forth in § 35-7-1049. In my judgment, the two proceedings should not be mixed, nor should there be any casual acceptance of the fact that they have been mixed. I think there are differences in burdens of proof in criminal proceedings, and even differences in issues, which make it unwise to suggest that a motion for the return of property pursuant to Rule 40(a) is an appropriate pleading in the context of the civil forfeiture proceeding.