I concur with my Brother Swainson, principally because appellees concede that the perch were undersized.
I would answer, even if by way of dicta, the Attorney General’s request for clarification of the responsibilities of the state to initiate proceedings pursuant to 1948 CL 300.14; MSA 13.1224, in cases of confiscation of illegally obtained and possessed game.
The procedure mandated in MCLA 300.12, 300.13 and 300.14; MSA 13.1222, 13.1223 and 13.1224, must be followed in every case of fish or wildlife confiscation.
The rationale advanced by the Department — that since the fish don’t belong to the fisherman, no legal proceedings are necessary to take them away from him — simply begs the question.
It is not for the Department ex parte, to make the final decision upon the illegality of the catch, anymore than it is for a prosecutor to decide guilt of an accused. It is for the court to stand between *504government and citizen and decide the right of the matter.
The language of the statute is explicitly mandatory.
“ * * # All wild birds, wild animals, or fish, or nets, or boats, or fishing or hunting appliances or apparatus, or automobiles, or other property, of any kind seized by any of said officers shall be turned over to the director of conservation to be held by him subject to the order of the court as hereinafter provided. * * * ” MOLA 300.12; MSA 13.1222. (Emphasis added.)
“When the property seized shall not exceed $300.00 in value as appraised by the officer, the officer making the seizure shall make a complaint before any justice of the peace of the county, which complaint shall be under oath and shall contain a description of the property seized, the time and place of seizure and the reason or reasons for such seizure. Upon the filing of said complaint the justice with whom the same is filed shall issue an order to the owner of such property, if known, to show cause, if any, why the property mentioned in said complaint should not be condemned and confiscated, and the substance of the complaint shall be stated in the order. Such order to show cause shall have a date fixed therein for the hearing thereof, which date shall not be less than 5 days from the date of its issuance, and shall be served by delivering a true copy thereof to said owner at any time riot less than 1 full day before the date of hearing, or if the owner is not known or cannot be located, said order shall be served by posting a true copy thereof in 1 or more public places in the county in which such seizure was made, or publishing á true copy thereof in any newspaper published in such county, or by sending a true copy thereof by registered mail to the last known address of said owner. Such posting or publication of said order shall be had at least 5 days before the date of hear*505ing fixed in said order. Upon the hearing, if the justice shall determine that any of the property mentioned in the complaint was caught, killed, possessed, shipped, or used contrary to law, either by the owner or any person lawfully in possession of the same under an agreement with the owner, an order may be made confiscating by and forfeiting to the state such property and directing its sale or other disposal by the director of conservation, the proceeds from any such sale to be paid into the state treasury and credited to the game protection fund: Provided, That in case the owner or person lawfully in possession of such goods or things seised signs a property release, forfeiting said property to the state of Michigan, no court proceedings shall he necessary. If upon such hearing, the justice should determine that said property was not caught, killed, possessed, shipped, or used contrary to law, he shall make an order directing the director of conservation to forthwith return said property to its owner.” MCLA 300.13; MSA 13.1223. (Emphasis added.)
MCLA 300.14; MSÁ 13.1224, is to like effect as to property exceeding $300 in value.
Black, J., concurred with T. E, Brennan, J.