State v. Richards

301 S.W.2d 597, 157 Tex. 166, 1957 Tex. LEXIS 536

• Court: Texas Supreme Court
• Decided: April 24, 1957
• Docket: A-6145
• Status: Published

Opinions

Mr. Justice Walker

delivered the opinion of the Court.

This case, which presents questions of the construction and constitutionality of Art. 725d, Vernon’s Ann. Texas Penal Code, is before us on the following certificate from the Court of Civil Appeals at Fort Worth:

“In this case, the State of Texas appeals from a judgment of the District Court denying its application to confiscate and forfeit a motor vehicle owned by appellee Richards and which had been used by Dean Portwood in the unlawful transportation of narcotics, to wit, two dolophine pills.

“The following are the undisputed facts in the case:

“The vehicle in question is a pickup truck. It was parked at Richards’ place of business in Fort Worth. The possession of the vehicle on the occasion in question was secured by Port-wood by his repersentation to Richards that he wanted to borrow the vehicle for thirty or forty minutes in order to drive from Richards’ place of business, where Portwood was a customer, to his brother’s apartment in another part of the city, for the purpose of changing clothes. Portwood was arrested a few minutes after he left the apartment. He had the pills in his shirt pocket. He had them on his person when he drove the vehicle from Richards’ place of business to the apartment. The lending of the vehicle by Richards was gratuitous. He did not know or suspect that Portwood possessed any narcotics, and did not know that Portwood had ever used narcotics. Port-wood’s transportation of the narcotics by means of the vehicle was without Richards’ consent or knowledge.

“The suit for confiscation and forfeiture was brought under Article 725d, Vernon’s Penal Code, which became effective May 21, 1955. The trial court held that if the Legislature intended by that Article to authorize the confiscation and forfeiture of a motor vehicle, the owner of which is innocent of knowledge or complicity in any offense defined by the Act, to that extent the Article was not within the power of the Legislature as limited by the Bill of Rights, as set forth in Article 1 of the State Constitution, and denied the relief sought by the State.

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“There is a lack of uniformity among the authorities as to whether such an act, or a similar one, contemplates the forfeiture of the property interest in a vehicle of one who is without complicity in or knowledge of its use in the commission of an illegal act; and, if so, whether the due process clauses or other provisions of the various constitutions inhibit such legislation.

“In view of that lack of uniformity in the holdings, and the eminence of the courts pronouncing on either side of the questions involved, we deem it advisable to present to Your Honors, under Rule 461, T. R. C. P., the following questions for adjudication:

“First: Did the Legislature intend that the property of an innocent owner of any such vehicle used by another in the violation of the Article should be forfeited?

“Second:' If such was the intention of the Legislature, does the Article in that respect contravene the due process clause or any other provision of the State Constitution?”

We answer the first question in the affirmative. Section 1 of the statute makes it unlawful to transport or possess any contraband narcotics in a vessel, vehicle or aircraft. The initial clause of the succeeding section provides that any vessel, vehicle or aircraft used in violation of Section 1 shall be seized and forfeited to the Texas Department of Public Safety, but certain property and interests are exempted by other provisions of the Act. A vehicle used by a common carrier may not be confiscated unless it appears that the owner or person in charge consented to or knew of the illegal act. It is also provided that no vehicle shall be forfeited where it is shown that the illegal act was committed by a person other than the owner while the vehicle was in the possession of one who acquired or retained same in violation of law. The rights of a bona fide mortgagee are protected by the provisions of Sections 6 and 7, which require that the vehicle be released to such lienholder if its value is less than the amount of the lien and that in the event of a sale the proceeds be paid to mortgagee as his interest may appear.

It is a familiar rule of statutory construction that an exception makes plain the intent that the statute should apply in all cases not excepted. Gulf C. & S. F. Ry. Co. v. Temple Grain & Hay Co., 122 Texas 288, 58 S.W. 2d 47; Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Texas 21, 52 S.W. 2d 56; Broughton v. Humble Oil & Refining Co., Texas Civ. App., 105 S.W. 2d 480, wr. ref. The Legislature has here provided for the forfeiture of any vehicle used in violation of the statute and has then spelled out certain exceptions. The nature of these excptions makes it clear that the lawmakers regarded the language of the first clause of Section 2 as sufficiently broad and comprehensive to require the forfeiture of the property rights of all persons interested in the vehicle regardless of their complicity vel non, and intended that it should be given that effect. When provision is made for the protection of the innocent common carrier, bona fide lienholder, and owner whose automobile is unlawfully taken by the wrongdoer, we cannot believe that the possibility that a vehicle lawfully entrusted by an innocent owner to another might be used by the latter to transport narcotics was entirely overlooked. Nowhere in the Act can be found the slightest intimation that a vehicle would be exempt from forfeiture in the last mentioned situation, and it is our opinion that the Legislature did not intend that it should be.

The second question is more difficult, but we have concluded that it must be answered in the negative. According to the ancient common law doctrine of deodand, any personal chattel which was the immediate instrument causing the death of a human being was forfeited to the king for sale. This doctrine, which was finally discarded in England by statute, was so repugnant to the American concept of justice that it was not included as part of the common law of this country. See 26A C.J.S., Deodand, p. 185; 23 Am. Jur., Forfeitures & Penalties, p. 601, Sec. 4. In the present case, however, we have a statutory forfeiture prescribed by the Legislature in the exercise of the police power of the State. The right of the State, in the rasonable exercise of such power, to declare a forfeiture of the property of private individuals has long been recognized. Pharris v. Kimbrough, Texas Civ. App., 118 S.W. 2d 661, wr. ref.; Skipper-Bivens Oil Co. v. State, Texas Civ. App., 115 S.W. 2d 1016, wr. ref.

Police regulations are not unconstitutional merely because they operate as a restraint upon private rights of person or property or will result in loss to individuals. Damage to or loss of property resulting from a proper exercise of such power does not constitute a taking of property under the right of eminent domain, and compensation is not required to be made therefor. See Houston & T. C. Ry. Co. v. City of Dallas, 98 Texas 396, 84 S.W. 648; 70 L.R.A. 850; Lombardo v. City of Dallas 124 Texas 1, 73 S.W. 2d 475. And a statute providing for the forfeiture of property used in the commission of a penal offense does not violate the constitutional guaranty that conviction of crime shall not work a forfeiture of estate. Pharris v. Kimbrough, supra.

Appellee argues that since the property rights of innocent common carriers and lien claimants are exempt from forfeiture under the statute, the equal rights clause of our Constitution should assure the same exemption to the innocent owner. We do not agree. It is well settled that Art. 1, Sec. 3, of the Constitution does not forbid the classification of subjects and persons for the purpose of regulatory legislation. The classification must be based on a real and substantial difference having relation to the subject of the particular enactment, but if there is a reasonable ground therefor and the law operates equally on all within the same class, it will be held valid. Friedman v. American Surety Co., 137 Texas 149, 151 S.W. 570. The holder of a mortgage usually has no control over the vehicle that is security for his lien, while a common carrier is generally bound to receive for carriage all proper persons who desire and offer to become passengers if the accommodations are sufficient. The owner of an automobile, however, may deny others the right to use the same, and his rights are protected by the statute unless he does entrust it to another. It is our opinion that the classifications and exceptions made by the statute are reasonable and do not contravene the constitutional guaranty of equal rights.

Although the second question does not specify all of the constitutional provisions that should be considered, it appears to us that the foregoing discussion disposes of all except Art. 1, Sec. 19, which provides that no person shall be deprived of property except by due course of law. The automobile involved in this suit is registered under our motor vehicle registration law and had a Texas license at the time of its seizure. Such a vehicle may be forfeited under the statute only by judment of a court of competent jurisdiction after the owner and lienholders of record, as well as the person in possession, have been served with notice of the seizure and intended forfeiture and given an opportunity to be heard. As applied in this action, therefore, the statute clearly satisfies the constitutional requirement of due process in its procedural aspect.

On the question of substantive due process, appellee cites General Motors Acceptance Corporation v. State, 118 Texas 189, 12 S.W. 2d 968, which involved a proceeding under the now repealed provisions of Art. 5112, Texas Rev. Civ. Stat. 1925, to condemn an automobile unlawfully used to transport intoxicating liquor. It was held that a sale under this statute would not prejudice the rights of an innocent lienholder, the Court reasoning that the forfeiture was provided as a penalty for the commission of crime and that the Legislature did not intend that a person innocent of complicity in the offense should be so punished. Among the reasons given for the latter conclusion, it was said that “* * * our Bill of Rights, including due process as an indispensable requisite, opposes insuperable obstacles to that species of fiat, and it cannot be supposed that the Legislature intended to do what it was powerless to do.” Despite the broad language of the opinion, we do not regard this decision as controlling here. The present statute makes express provisions for the protection of the interest of an innocent mortgagee. And as pointed out above, the position of the owner of a vehicle is quite different from that of one who merely holds a lien thereon. Appellee also cites Lorance v. State, Texas Civ. App., 172 S.W. 2d 386, wr. ref., but the case is not in point here. The statute which was there considered expressly recognizes the right of an innocent owner to intervene and show good cause why his property should not be sold.

The power of Congress to declare the forfeiture of property rights of innocent persons in chattels used in the commission of crime has been repeatedly recognized by the federal courts. Most states which have legislated in this field make provision for the protection of both innocent owners and innocent lien claimants, but in some jurisdictions such protection is afforded to one interest or the other or to neither. We are not cited and have not found a decision from any of these states holding that a statute of the latter type is unconstitutional. In most of the cases upholding- such legislation, however, the attack upon the statute appears to have been based on the due process clause of the Constitution of the United States. See Van Oster v. Kansas, 272 U.S. 465, 47 Sup. Ct. 133, 71 L. Ed. 354, 47 A.L.R. 1044; H. A. White Auto Co. v. Collins, 136 Ark. 81, 206 S.W. 748; 2 A.L.R. 1594; People v. One 1941 Ford 8 Stake Truck, 26 Cal. 2d 503, 159 Pac. 2d 641; Lindsley v. Werner, 86 Colo. 545, 283 Pac. 534; State v. Peterson, 107 Kans. 641, 193 Pac. 342, E. J. Fitzwilliam Co. Inc. v. Commonwealth, 258 Mass. 103, 154 N.E. 570; Robinson Cadillac Motor Car Co. v. Ratekin, 104 Neb. 369, 177 N.W. 337; Commonwealth v. Bowers, 304 Pac. 253, 155 Atl. 605.

The line where the police power of the state encounters the barrier of substantive due process is not susceptible of exact definition. As a general rule the power is commensurate with, but does not exceed, the duty to provide for the real needs of the people in their health, safety, comfort and convenience as consistently as may be with private property rights. The guarantee of due process does not deprive the state of the right to take private property by thei exercise of such power in a proper and lawful manner, but it is essential that the power be used for the purpose of accomplishing, and in a manner appropriate to the accomplishment of, the purposes for which it exists. A large discretion is necessarily vested in the Legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests. If there is room for a fair difference of opinion as to the necessity and reasonableness of a legislative enactment on a subject which lies within the domain of the police power, the courts will not hold it void. See Houston & T. C. Ry. Co. v. City of Dallas, supra; Lombardo v. City of Dallas, supra; City of Coleman v. Rhone, Texas Civ. App., 222 S.W. 2d 646, wr. ref., Cooley, Constitutional Limitations, 8th ed. 1927, Vol. 2, p. 1231.

Article 725d is a measure enacted by the Legislature to curb the illegal transportation of narcotics, and thus clearly falls within the orbit of the police power. We cannot accept the idea that the forfeiture provisions were adopted simply to impose a penalty for the commission of crime. If. that were the only purpose to be accomplished, no argument would be needed to show that the penalty should not be imposed upon one innocent of any offense. When the illegal act is committed by the owner of the vehicle, its forfeiture undoubtedly constitutes additional punishment for the offense, but the lawmakers were entitled to conclude that the statute would have another important effect. It is reasonable to suppose that owners will be more circumspect in permitting the use of their automobiles by others when the illegal act of the latter may bring about a forfeiture of the property. Those engaged in the drug traffic will thus find it more difficult to borrow or rent vehicles with which to carry on their business.

Although the statute produces a harsh result in the present case, drastic measures are necessary to suppress the illicit traffic in narcotics with its disastrous effects upon many members of society. The Legislature evidently decided that any provision for the protection of the property rights of innocent owners would afford an easy means of evading the law. If an automobile used in violation of the statute could be protected from forfeiture simply by proving that the legal title is in someone not connected with the offense, it is safe to assume that drugs would usually be transported in vehicles belonging to others. The difficulty of enforcing the law would thus be greatly increased and the forfeiture of the vehicle almost always evaded.

The enforcement of a law prohibiting the transportation of contraband is difficult at best, because of the ease with which automobiles may be used for that purpose without detection. Forfeiture of the property of innocent owners is a method deemed by the Legislature necessary to restrain the commission of the offense and to aid in its prevention. As pointed out in Commonwealth v. Certain Motor Vehicle, 261 Mass., 504, 159 N.E. 613, 61 A.L.R. 548, a person who permits another to use his property voluntarily accepts the obligation of the latter to return the same. The claim may be of little or no value, but it was at one time recognized by the owner as an adequate equivalent for the property or the risk of losing it. And he is left with that claim when, through the illegal act of another, the return of the property is pervented. We cannot say that the statute under consideration is so palpably unnecessary or unreasonable as to justify our holding it void.

It should be noted that the second certified question involves only the constitutionality of Art. 725d as applied to the property rights of an innocent owner who entrusts his vehicle to another. We do not, therefore, decide whether the statute is valid in other situations.

Opinion delivered April 24, 1957.