State v. One (1) Porsche 2-Door, I.D. No. 911211026, Title No. PP10026F Bearing Kansas License Plate No. JOR 1652

526 P.2d 917, 1974 Utah LEXIS 597

• Court: Utah Supreme Court
• Decided: September 18, 1974
• Docket: 13495
• Status: Published

Opinions

HENRIOD, Justice:

One Price, owner of a Porsche automobile, valued at $10,000, was stopped and arrested for speeding, possession of a controlled substance and driving while under the influence of alcohol. He was charged with possession. There is nothing in the record to indicate what disposition was made of that charge.

Nonetheless, after the arrest and apparently before the charge was filed, the car was turned over to the State for forfeiture.

The section of the statute under which this forfeiture was accomplished, Title 58-37-13(1) (e), Utah Code Annotated 1953, either is invalid or inapplicable under the facts of this case for the following reasons :

The section mentioned reads as follows:

(e) All conveyances including aircraft, vehicles or vessels used or intended for use, to transport, or in any manner facilitate the transportation, sale, receipt, possession, or concealment of property described in (l)(a) or (l)(b) of this section, except that:

(iii) Any forfeiture of a conveyance subject to a bona fide security interest shall be subject to the interest of the secured party upon the party’s showing he could not have known in the exercise of reasonable diligence that a violation would take place in the use of the conveyance.

I.The section, as applied to this case leads to an unusually harsh result, constitutes an additional fine or penalty in connection with a misdemeanor — that of possession of marijuana. It is conceded that basis of the charge is that one ounce of marijuana was being carried by Price, who was a university student in Lawrence, Kansas. But it is undisputed that his sole purpose for being in Utah was to visit the Arches National Monument, — not to transport a controlled substance. It appears that the thrust of the section mentioned above is to deter the transportation of a controlled substance from one place to another and has nothing to do with a situation where the controlled substance, — one ounce of marijuana in this case, — simply in a car but possessed by a person incident to a vacation and only incident and collateral to transportation and obviously for personal consumption, is involved. It seems unthinkable that one would package up an ounce of marijuana for the primary purpose of transporting it five hundred to a thousand miles for sale, receipt, possession or concealment.

This whole case leads to an unconscionable forfeiture, and that the trial court was correct in concluding that the enormity of the forfeiture hardly could fit the $299 misdemeanor.

That forfeitures are frowned upon needs citation of but few authorities since the cases supporting such an elementary principle are legion. In Moran v. Knights of Columbus,¹ our court had this to say as to forfeitures:

It matters not . . . whether the action is one in equity or one at law; the rules of equity . . . must prevail.²

It is no answer for appellant to urge that the court’s interpretation of the statute was erroneous, — if the decision of the court is supported by good and sufficient reason or reasons.³

II. The statute must be examined in the light of its purpose and/or intent of the legislature.

In State Land Board v. State Department of Fish and Game,⁴ we said:

with respect to the meaning of statutes, it is appropriate to look to the intended purpose and to the means of accomplishing it by the proper application of the language used.

It appears obvious that the primary and sole purpose of the statute and the intent of the legislature were directed exclusively toward the transportation of a controlled substance for distribution according to erstwhile law merchant principles, and not for personal possession and consumption.

Let’s look at the statute which points strictly to transportation, not mere possession. It says: “All conveyances [connoting transportation] including aircraft, vehicles or vessels [connoting transportation] used or intended for use, to transport [connoting transportation], or in any manner facilitate the transportation, sale, receipt, possession, or concealment of property . except . . . ” are forfeitable. [Emphasis added.]

The statute’s theme song has lyrics that require the sheet music to be prefaced by a title such as "Transportation!' It seems that the word “possession” mentioned in the section obviously must have an-end result from asportation, the gravamen of the legislation, as does the word “concealment.” Grammatically, hardly could it be said that knowingly - “possession” of an ounce of marijuana by the Captain on the deck of “Old Ironsides,” in Boston Harbor, would subject that vessel to forfeiture if the venerable warrior were dry-docked there or in a harbor operated by a ship museum buff at Great Salt Lake. The statute is transportation to accomplish possession, not simply transportation “with” possession, — where the obvious purpose of the statute is an interdiction against transportation for the accomplishment of distribution through pushers, pimps or pirates, — not to accomplish a forfeiture because one has a marijuana cigarette in his pocket or mouth, headed for Disneyland, — or Arches National Monument. The Title in Chapter 145, page 475, Laws of Utah 1971, seems to bear me out on this conclusion, as do the authorities. In Masich v. U. S. Smelting⁵ we said:

One of the cardinal principles of statutory construction is that the courts will look to the reason, spirit, and sense of the legislation, as indicated by the entire context and subject matter of the statute dealing with the subject.⁶

III. The statute obviously can lead to the most absurd results, — a reason this court consistently has pointed up as a valid reason for invalidation of a statute, or a refusal to apply it under particular facts making such application ridiculous.⁷ This case is such a case, and it is suggested that possession of an ounce of marijuana, the purpose of which is personal consumption, —with incidental transportation for such purpose, — is not trafficking in dope, which is the evil that the statute obviously is designed to eliminate. Under the legislation, Price would have to forfeit his $10,000 Porsche if he happened to be sitting in it in his driveway in silence and serenity, smoking a marijuana cigarette, and was approached by a gendarme, who took his car out from under him. Under this statute he could have his car taken from him if he were taking his six-year old to school and happened to have a marijuana cigarette in his pocket, — or under such circumstances he was rushing his pregnant wife to the hospital, — or if he were driving the Porsche out of a burning garage, — or trying to escape from a highwayman or a flood or anything else. All of these, if bases for forfeiture, in my opinion would give birth to a very serious constitutional question as to the statute’s application being offensive to the due process clause or equal protection clause.

IV. The exception to the statute devours it. Section 13(1) (e), Chapter 145, Laws of Utah 1971 (Title 58-37-13(1) (e) Utah Code Annotated 1953), has three sub-subsections: (i) excepts common carriers, (ii) owner having no knowledge of contraband in his “conveyance,” and (iii) excepts from forfeiture any such “conveyance” where the owner has a security interest in it, and did not know of any unlawful use thereof. This section might be dubbed the “finance” or “bank” or “loan shark” section. This is the section that makes the statute silly and amounts to inverse discrimination, — a discrimination in favor of a “mortgagee.” Such a mortgagee and the conveyance are protected. It seems that if Price had borrowed a bona fide $8,000 from a bank or finance company, the Porsche would not have been subject to forfeiture, Price could have retained possession, gone to Arches National Monument, smoked marijuana all the way, returned to Lawrence, Kansas, gone back to school, unfettered, in his Porsche, and paid off the loan at his leisure or according to the terms of his loan. If he were driving a leased car, as thousands of people do these days rather than to buy one, such conveyance could not be forfeited under this statute. Neither would it be so subject if he rented a car from Hertz, or .Avis, or U-Haul. Neither would it be subject to forfeiture if he borrowed the car from his brother or wife, or if he stole it, or temporarily converted it, or sold it the day he left Lawrence in exchange for a promissory note, with permission to drive to Utah.

The most that can be said for this statute’s efficacy or practical worth, much less its validity, was said in 1967, when the California legislature repealed its legislation on forfeiture of vehicles used in violation of narcotics laws. In California Statutes 1967, Chapter 280, Section 1, page 1437, “Urgency,” the legislature had this to say:

The Commission on California State Government Organization and Economy, in a report dated December 12, 1966, stated that the people of this state will save at least six hundred thousand dollars ($600,000) each year if the motor vehicle forfeiture provisions of the Health and Safety Code are abolished. The report further stated that such provisions have had No Deterrent Effect. In order to immediately effectuate the annual savings to the state of such a great sum of money, and in order to enable numerous personnel of the Bureau of Narcotic Enforcement to redirect their efforts toward the enforcement of laws which have real influence as deterrents to illegal narcotic activities, it is necessary that this act go into immediate effect.

The moral of this story if this case should be reversed would be interesting mostly and primarily to the pusher, and to him who makes a business of trafficking in and transporting contraband. It then would be simple: If you buy a car in which you want to transport marijuana (or consume an ounce yourself on the way to the Arches), make sure the bank or loan company has your note and chattel mortgage, or just borrow a car, or lease one, or rent one, and you will have transportation throughout Utah free and clear of forfeiture and without any concern whatever that you will be prohibited either from owning or driving it.

The trial court’s judgment should be and is sustained.

CALLISTER,' C. J., and TUCKETT, J., concur.

1 . 46 Utah 397, 151 P. 353 (1915) ; Morgan v. Sorenson, 3 Utah 2d 428, 286 P.2d 229 (1955) ; Schlegel v. Hough, 182 Or. 441, 186 P.2d 516, 188 P.2d 158 (1947) ; Miller v. Stuart, 69 Utah 250, 253 P. 900 (1927).

2 . Title 68-3-2, Utah Code Annotated 1953, seems to be apropos under the facts of this case. See also: Spoon-Shacket v. County of Oakland, 356 Mich. 151, 97 N.W.2d 25 (1959) ; State v. Hunt, 13 Utah 2d 32, 368 P.2d 261 (1962) ; Stanton v. Davis, 9 Utah 2d 184, 341 P.2d 207 (1959).

3 . “The decision of the trial court should be affirmed if it is correct, although (it) . . . relied upon a wrong ground or gave a wrong reason.’’ 5 Am.Jur.2d, Sec. 785, p. 227. See also: Tree v. White, 110 Utah 233, 171 P.2d 398 (1946) ; Hague v. Nephi Irr. Co., 16 Utah 421, 52 P. 765; Piper v. Eakle, 78 Utah 342, 2 P.2d 909 (1931) ; Harris v. Butler, 91 Utah 11, 63 P.2d 286 (1936) ; Limb v. Fed. Milk Prod. Ass’n, 23 Utah 2d 222, 461 P.2d 290 (1969) ; In Re Love’s Estate, 75 Utah 342, 285 P. 299 (1930) ; Thomas v. Foulger, 71 Utah 274, 264 P. 975 (1928).

4 . 17 Utah 2d 237, 408 P.2d 707 (1965). See also: Andrus v. Allred, 17 Utah 2d 106, 404 P.2d 972 (1965) ; Snyder v. Clune, 15 Utah 2d 254, 390 P.2d 915 (1964) ; Young v. Barney, 20 Utah 2d 108, 433 P.2d 846 (1967).

5 . 113 Utah 101, 191 P.2d 612 (1948).

6 . State v. Salt Lake City Bel. of Ed., 13 Utah 2d 56, 368 P.2d 468 (1962) ; Crist v. Bishop, Utah, 520 P.2d 196 (1974) ; Parker v. Rampton, 28 Utah 2d 36, 497 P.2d 848 (1972) ; Howe v. Jackson, 18 Utah 2d 269, 421 P.2d 159 (1966).

7 . Johanson v. Cudahy, 107 Utah 114, 152 P.2d 98 (1944), where we said: “ . . . we are cognizant of the fact that we are not following the literal wording of the statute, but such is not required when to do so would defeat legislative intent and make the statute absurd. In this regard see Robinson v. Union Pacific R. Co., 70 Utah 441, 261 P. 9; Brackett v. Chamberlain, 115 Me. 335, 98 A. 933; Nichols v. Logan, 184 Ky. 711, 213 S.W. 181.” Masich v. U. S. Smelting, supra, footnote 5; Rowley v. Pub. Serv. Comm., 112 Utah 116, 186 P.2d 514 (1947).