Opinion
Rehearing Denied Oct. 11, 1944.
Hearing Granted Nov. 16, 1944.
Appeal from Superior Court, Los Angeles County; Carl A. Stutsman, Judge.
Proceeding by the People of the State of California for the forfeiture of one 1941 Ford 8 Stake Truck, Engine No. 99T370053, License No. P8410, on the ground that the truck had been used unlawfully to transport narcotics wherein Consolidated Produce Company, Limited, intervened as the legal and registered owner. From an adverse judgment, intervener appeals.
Affirmed.
COUNSEL
Richard J. O. Culver and Felix H. McGinnis, both of Los Angeles, for appellant.
Robert W. Kenny, Atty. Gen., and Bayard Rhone, Deputy Atty. Gen., for respondent.
OPINION
FOX, Justice pro tem.
Consolidated Produce Company, Ltd., has appealed from an adverse judgment, rendered in a proceeding brought under section 11610 et seq. of the Health and Safety Code, St.1939, p. 767 et seq., as amended, for the purpose of forfeiting the interests of all who claim an interest in a certain 1941 Ford truck on the ground that the truck had been used to unlawfully transport narcotics.
Appellant is engaged in the wholesale fruit and vegetable business in the City of Los Angeles. On July 10, 1943, appellant’s truck dispatcher, Mike Donata, directed one of appellant’s other employees, Irving Schiller, to take one of the company’s Ford trucks and made a delivery of cucumbers to the California Vegetable Concentrates, Inc., in Huntington Park. At that time Schiller asked Donata for permission to take the truck on a personal errand. Donata refused the request and told Schiller to return the truck to the company’s place of business upon making the delivery. This he promised to do. However, Schiller violated these instructions and after delivering the cucumbers went to Wilshire Boulevard and Vermont Avenue in the City of Los Angeles, where he secured some marijuana. This point is four or five miles west of any reasonable route he might have traveled in returning from making the delivery. As he was returning to his place of employment the truck, which appellant owned, was seized, and this forfeiture proceeding later initiated. Appellant had no knowledge of the illegal use of the truck.
Appellant’s position may be summarized thus: that the truck was turned over to Schiller to make a specific delivery and with instructions to return it immediately; that upon completing the delivery he departed from the company’s business and went on an unauthorized errand of his own and in so doing departed from any reasonable return route; that while he was on this departure he was driving the truck without appellant’s consent; and that therefore the truck is not subject to forfeiture since it was during such departure that he came into possession of the marijuana.
Section 11610 of the Health and Safety Code, St.1940, 1st Ex.Sess., p. 23, reads as follows: "A vehicle used to unlawfully transport any narcotic, or in which any narcotic is unlawfully kept, deposited or concealed, or in which any narcotic is unlawfully possessed by an occupant thereof, shall be forfeited to the State."
Sections 11620 and 11622 of said Code St. 1939, p. 768 provide for the protection of the interest of the legal owner or mortgagee or lienholder, provided that such person has complied with those sections. Section 11621 also provides protection for a person claiming a mechanic’s lien on the vehicle. Section 11629 exempts a common carrier.
At the outset it is proper to observe, as was pointed out in People v. One 1933 Plymouth Auto, 1939, 13 Cal.2d 565, 568, 90 P.2d 799, 801, that: "It has long been the settled law that the owner of a vehicle who has given consent to its operation by another, is not deprived of any constitutional right by the forfeiture of his property on account of the operator’s violation of a statute such as is here involved, even though such owner is without knowledge of or has failed to acquiesce in its illegal use."
In Van Oster v. State of Kansas, 1926, 272 U.S. 465, 47 S.Ct. 133, 134, 71 L.Ed. 354, 47 A.L.R. 1044, we find the following applicable language: "It is not unknown, or indeed uncommon, for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has intrusted it. Much of the jurisdiction in admiralty, so much of the statute and common law of liens as enables a mere bailee to subject the bailed property to a lien, the power of a vendor of chattels in possession to sell and convey good title to a stranger, are familiar examples. * * * They suggest that certain uses of property may be regarded so undesirable that the owner surrenders his control at his peril. The law thus builds a secondary defense against a forbidden use and precludes evasions by dispensing with the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged innocent owner. So here the legislature, to effect a purpose clearly within its power, has adopted a device consonant with recognized principles and therefore within the limits of due process."
The leading case on the questions here presented is Goldsmith, Jr.-Grant Co. v. United States, 1921, 254 U.S. 505, 41 S.Ct. 189, 190, 65 L.Ed. 376. In that case a taxicab driver and a newspaper reporter used the taxicab in violation of the liquor laws, without the knowledge of the conditional vendor of the vehicle. The taxicab was forfeited. It was contended by the conditional vendor that the law was not to be construed to forfeit the title of a third party entirely innocent of any wrong-doing, and that the proper construction of the statute was that it contemplated forfeiting only the interest of the wrongdoer. In holding against the conditional vendor on this proposition the court said:
"If the case were the first of its kind, it and its apparent paradoxes might compel a lengthy discussion to harmonize the section [Revised Statutes, section 3450, 26 U.S.C.A. Int.Rev.Code, § 2809(d)] with the accepted tests of human conduct. Its words taken literally forfeit property illicitly used though the owner of it did not participate in or have knowledge of the illicit use. There is strength, therefore, in the contention that if such be the inevitable meaning of the section, it seems to violate that justice which should be the foundation of the due process of law required by the Constitution. It is, hence, plausibly urged that such could not have been the intention of Congress; that Congress necessarily had in mind the facts and practices of the world and that in the conveniences of business and of life, property is often and sometimes necessarily put into the possession of another than its owner. And it follows, is the contention, that Congress only intended to condemn the interest the possessor of the property might have to punish his guilt, and not to forfeit the title of the owner who was without guilt.
"Regarded in this abstraction the argument is formidable, but there are other and militating considerations. Congress must have taken into account the necessities of the government, its revenues and policies, and was faced with the necessity of making provision against their violation or evasion and the ways and means of violation or evasion. In breaches of revenue provisions, some forms of property are facilities, and therefore it may be said, that Congress interposes the care and responsibility of their owners in aid of the prohibitions of the law and its punitive provisions, by ascribing to the property a certain personality, a power of complicity and guilt in the wrong."
To apply the reasoning of the Supreme Court to the instant case, it may be said that the legislature must have taken into account the necessities of the State and the policies that should be adopted for the protection of its citizens, and was faced with the necessity of making provisions against not only the violation and evasion of the laws, but the ways and means of violation and evasion. In violations of police provisions of the law, some forms of property are facilities, and therefore it may be said that the legislature interposes the care and responsibility of the owners in aid of the prohibitions of the law by ascribing to the property a certain personality--a power of complicity and guilt in the wrong. Certain uses of property may be regarded as so undesirable that the owner surrenders the control of such property at his peril. The law thus builds a secondary defense against a forbidden use, and precludes evasion of the law by dispensing with the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged innocent owner. So here, the legislature, to effect a purpose clearly within its power, has adopted a device consonant with recognized principles.
The Federal statute (Revised Statutes, sec. 3450) under consideration in the Goldsmith case, supra, was far more severe than the cited provisions of the Health and Safety Code in that the Federal statute provided no relief to a legal owner, mortgagor, conditional vendor or person who held a mechanic’s lien. Innumerable cases have arisen under the Federal statute where the vehicle was in the possession of a registered owner or a mortgagee and where the Federal Court forfeited the interest of an innocent mortgagor, conditional vendor or person who held a lien on the vehicle.
The Supreme Court stated, however, in the Goldsmith case, supra, that "* * * we * * * reserve opinion as to whether the section can be extended to property stolen from the owner or otherwise taken from him without his privity or consent." (Emphasis added.) The opinion thus reserved has apparently not yet been expressed by the United States Supreme Court. The question, however, has been passed upon by the appellate courts of this state. In People v. One 1937 Plymouth 6, etc., 1940, 37 Cal.App.2d 65, 70, 98 P.2d 750, 753, it was held that "property of an owner taken from him without his permission or consent and used by the taker for an unlawful purpose proscribed by the [Narcotic] act cannot be declared forfeited to the state * * *." (Emphasis added.) This decision is sound for it is rooted in the constitutional principle of due process. This case was followed in People v. One 1939 LaSalle 8 Touring Sedan, 1941, 45 Cal.App.2d 709, 115 P.2d 39.
Appellant would have us create a further exception with respect to narcotic forfeitures by incorporating the provisions of law relating to imputed negligence. Under such a theory the test would no longer be whether the property had been "stolen from the owner or otherwise taken from him without his privity or consent." Under this imputed negligence theory the owner could entrust his motor vehicle to another and qualify his permission by specifying that the vehicle was to be used for a limited time, for a particular purpose or in a particular locality and if such limitations were substantially violated then it could be said that the vehicle was being operated without the owner’s consent. Gordoy v. Flaherty, 1937, 9 Cal.2d 716, 72 P.2d 538; Henrietta v. Evans, 1938, 10 Cal.2d 526, 75 P.2d 1051. Hence, if, during such period of operation, the narcotic law were violated there could be no forfeiture of the vehicle. No constitutional principle is suggested which requires the making of such an exception. In fact, the quotations herein from the Van Oster and Goldsmith cases demonstrate that no constitutional right of the owner is violated by requiring a forfeiture where the person to whom he has entrusted the vehicle exceeds the authority given for its use and during such unauthorized use violates the narcotic law.
In United States v. One Lincoln Touring Car, D.C. 1925, 11 F.2d 551, 552, the court ordered a vehicle forfeited which had been loaned by the owner to his daughter and by her loaned, without his knowledge or consent, to a person unknown to him and who used the vehicle for smuggling liquor into the country. With respect to the reservation of opinion in the Goldsmith case this Federal Court said: "The court reserved expression of opinion only in case of property ‘stolen from the owner or otherwise taken from him without his privity or consent.’ ‘Otherwise taken’ would include vehicles taken by mistake for the taker’s own vehicle, or delivered by mistake by a vendor or a bailee such as a garage keeper or repair man. The court’s reservation would include any taking, criminal, tortious, mistaken, or other, which was without the privity or consent of the owner, but it was not intended to include vehicles taken with the privity or consent of the owner, and thereafter used without the privity or consent of such owner either by the taker or by one obtaining it from the taker * * *." In United States v. One Dodge Truck, D.C. 1934, 9 F.Supp. 157, the facts were substantially the same as in the last cited case. In decreeing a forfeiture of the motor vehicle the court said (9 F.Supp. on page 160) that in order to avoid a forfeiture, "it must affirmatively appear that the offending property must have passed out of the individual hands of the owner without any voluntary action on his part and without his consent * * *." See, also, United States v. One Ford, D.C. 1927, 21 F.2d 628; State v. Goyette, 1934, 140 Kan. 732, 37 P.2d 1001; United States v. One Saxon Automobile, 4 Cir., 1919, 257 F. 251; United States v. One Buick Roadster, D.C., 280 F. 517.
Finally, the provisions of the Health and Safety Code for the protection of the interests of conditional vendors, mortgagees, and lienholders, secs. 11620, 11621, and the exception of common carriers from the forfeiture provisions, sec. 11629, should be noted. These provisions make applicable the maxim expressio unius est exclusio alterius. Under this principle it is said in 23 Cal.Jur. sec. 118, p. 741, that: "If a statute specifies one exception to a general rule, or assumes to specify the effects of a certain provision, other exceptions or effects are excluded. And where a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others." Applied to the provisions of the Health and Safety Code here under consideration the conclusion inevitably follows that other classes of persons claiming an interest in a motor vehicle which has been seized for unlawful transportation of narcotics are not protected against the forfeiture provisions unless the vehicle was "stolen from the owner or otherwise taken from him without his privity or consent." We can find no language in the provisions of the Health and Safety Code indicating a legislative intention to protect from forfeiture the interest of a motor vehicle owner who voluntarily parts with his possession and entrusts his vehicle to another who uses it for the unlawful transportation of narcotics. This conclusion is fortified by a consideration of the language used in section 11610. It is very comprehensive. It provides for the forfeiture of a vehicle not only when used to unlawfully transport any narcotic but also when "any narcotic is unlawfully kept, deposited or concealed" therein or when "any narcotic is unlawfully possessed by an occupant" of such vehicle. This indicates a legislative intention to prevent evasion of the law and to make the forfeiture provisions applicable to all cases except those specifically exempted.
The judgment is affirmed.
DESMOND, P.J., and SHINN, J., concur.