APPEAL from the Circuit Court of Cook County; the Hon. JAMES
A. ZAFIRATOS, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
This appeal is taken from a judgment of the circuit court of Cook County ordering the forfeiture and sale of appellant's automobile pursuant to the Illinois vehicle forfeiture statute. (Ill. Rev. Stat. 1969, ch. 38, par. 36-1 et seq.) Appellant, Woodie Robinson, now attacks the constitutionality of this statute.
A complaint was filed on July 30, 1970, stating that a 1965 Oldsmobile, serial No. 2366575X125066, was used by appellant in an armed robbery (Ill. Rev. Stat. 1969, ch. 38, par. 18-2) and requesting that such vehicle be declared forfeited and sold at public auction. The complaint further stated that notice of the impending forfeiture proceeding was sent to appellant at 6819 S. Green Street, Chicago at which address appellant was noted as the registrant of the vehicle in the records of the office of the Secretary of State.
A default hearing on the forfeiture question was held on August 19, 1970. Officer E. Butz testified that two men had "stuck up" a food store on West 69th Street on June 16, 1970; that the manager of the store, Mr. Pipik, scuffled with one of the robbers whom he later identified as appellant; that the appellant got into a car with the other man and drove off. He further testified that the manager, pursuing in his own vehicle, stopped a police officer and, after explaining what had transpired, both followed the fleeing automobile to 6707 South Peoria where it was abandoned. About ten minutes later appellant and another man approached the vehicle and appellant was identified as one of the holdup men and arrested.
Sergeant Roy Peters testified that he checked with the office of the Secretary of State in Springfield, and ascertained that the automobile in question was registered in the name of appellant whose address was 6819 S. Green St., Chicago. Peters then sent a certified letter to appellant at that address. At the conclusion of this hearing, the trial court found that the vehicle described in the complaint was used in the commission of an armed robbery while in appellant's control and possession; that the vehicle was lawfully seized by the Chicago police; and "[t]hat each and all of the persons entitled to notice of the seizure and forfeiture were properly notified according to the statute made and provided." The court then ordered that appellant's vehicle be forfeited and sold at public auction.
On November 24, 1970, a "Motion for Re-Hearing," with appellant's affidavit, was filed requesting that the order of forfeiture of the automobile be vacated because: (1) appellant did not receive notice of the seizure or forfeiture of the vehicle since he was incarcerated in the Cook County jail from June 16 (the date of his arrest) until October 7, 1970 (the date of his trial for armed robbery); (2) he had not been tried on the armed robbery charge when the forfeiture proceeding was held and, consequently, it had not been shown that the vehicle had been used in the commission of the offense; and (3) appellant had reported the theft of his automobile on June 14, 1970, two days before he was arrested for armed robbery. Thus he asserted that he had been deprived of his property without due process of law.
Section 36-1 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 36-1 provides in part: "Any * * * vehicle * * * used with the knowledge and consent of the owner in the commission of an offense prohibited by (a) Section * * * 18-2 * * * of this Code * * * may be seized and delivered forthwith to the sheriff of the county of seizure. Within 10 days after such delivery, the sheriff shall give notice of seizure to each person according to the following method: Upon each such person whose right, title or interest is of record in the office of the Secretary of State * * * by mailing a copy of the notice by certified mail to the address as given upon the records of the Secretary of State * * *. Within that 10 day period the sheriff shall also notify the State's Attorney of the county of seizure about the seizure."
Section 36-2(a) (Ill. Rev. Stat. 1969, ch. 38, par. 36-2(a)) further provides: "The State's Attorney * * * if he finds that such forfeiture was incurred without willful negligence or without any intention on the part of the owner * * * to violate the law, or finds the existence of such mitigating circumstances as to justify remission of the forfeiture, may cause the sheriff to remit the same * * *. The State's Attorney shall exercise his discretion * * * promptly after notice is given in accordance with Section 36-1. If the State's Attorney does not cause the forfeiture to be remitted he shall forthwith bring an action for forfeiture in the Circuit Court within whose jurisdiction the seizure and confiscation has taken place. The State's Attorney shall give notice of the forfeiture proceeding by mailing a copy of the Complaint in the forfeiture proceeding to the persons, and upon the manner set forth in Section 36-1. * * * The State shall show at such hearing by a preponderance of the evidence that such * * * vehicle * * * was used in the commission of an offense described in Section 36-1."
Appellant now argues that the forfeiture statute is unconstitutionally vague because it fails to define the meaning of "commission of an offense," in that no standards are established for the determination of whether the offender must be convicted prior to confiscation of his property, or the procedures available if the offender is tried and acquitted or not tried at all.
Appellant fails to recognize the traditional application of a forfeiture proceeding. It has been held that such a proceeding is a civil action in rem against an item which was used in the commission of an offense. (People v. Moore (1951), 410 Ill. 241; State v. One 1960 Mercury Station Wagon (1968), 5 Conn. Cir. 1, 240 A.2d 99.) "In this country, however, forfeiture exists only by virtue of statute; and it is generally recognized that where a statute merely provides for a proceeding in rem for the forfeiture of illicit goods or property used in connection therewith or in connection with a statutory violation, and the forfeiture statute does not expressly or impliedly provide for a prior conviction of the individual offender, such a conviction is not a prerequisite to the forfeiture." (3 A.L.R.2d 738, 740; see also Various Items of Personal Property v. United States (1931), 282 U.S. 577, 580, 75 L.Ed. 558, 560, 51 S.Ct. 282.) An examination of the Illinois statute does not demonstrate an intent to provide the necessity of a conviction prior to forfeiture.
Moreover, in People ex rel. Ward v. 1963 Cadillac Coupe (1967), 38 Ill.2d 344, we held that the failure of the State's Attorney to file a forfeiture action until 3-1/2 months after the seizure was violative of the statutory directive that action be promptly taken to determine if the vehicle be returned or proceedings instituted. To require that the forfeiture proceedings await the outcome of criminal action could result in an unreasonable delay, precluding the State's Attorney from promptly instituting a forfeiture action as required by law.
We need not consider the charge in the present case that the statute is vague because it does not provide guidelines to determine if forfeiture exists in a situation where a defendant is acquitted or not tried at all on the offense charged. In the pleadings filed by appellant herein he alleges only that he did not receive notice of the proceedings and that his car had been previously stolen; but no allegation is made that he was not involved in the armed robbery nor that the car was used without his consent or knowledge in the commission of the offense. Appellant's sworn affidavit indicates only that his trial on the charge of armed robbery was held on October 7, 1970. The record does not supply the factual context necessary for determination of these issues and this court will not render a decision involving abstract propositions merely to establish precedent. Siefferman v. Johnson (1950), 406 Ill. 392.
Appellant further argues that the forfeiture statute is constitutionally defective because it does not specify how the vehicle may be initially seized. We reject this contention, for the complaint asserts that the vehicle was taken by the police and delivered to the sheriff and the facts clearly demonstrate that probable cause existed to justify the police seizure of the vehicle. Furthermore, only after a judicial determination may the vehicle be ordered forfeited and sold, thereby safeguarding the rights of the owner.
It is also contended that the statute unconstitutionally grants lawmaking power to the State's Attorney charged with enforcement of the statute. Appellant bases this contention upon section 36-2 of the statute which grants the State's Attorney the authority to return the seized item prior to a hearing. This discretion must be exercised "promptly" after notice of the seizure is received from the sheriff. If the State's Attorney finds the forfeiture was incurred without willful negligence or intent to violate the law by the owner, or if he "finds the existence of such mitigating circumstances as to justify remission of the forfeiture," he can order the sheriff to return the property. This is accomplished ...