People v. One 1941 Chevrolet Coupe

• Decision Date: 25 May 1951
• Citation: 37 Cal.2d 283,231 P.2d 832
• Court: California Supreme Court
• Parties: PEOPLE v. ONE 1941 CHEVROLET COUPE, etc., et al. L. A. 21780.

Page 832

231 P.2d 832

37 Cal.2d 283

PEOPLE v. ONE 1941 CHEVROLET COUPE, etc., et al.

L. A. 21780.

Supreme Court of California, in Bank.

May 25, 1951.

Macfarlane, Schaefer & Haun, William Gamble and E. J. Caldecott, all of Los Angeles, for appellant.

Sheppard, Mullin, Richter & Balthis, George R. Richter, Jr., and Roy Littlejohn, all of Los Angeles, amici curiae on behalf of appellant.

Fred N. Howser and Edmund G. Brown, Attys. Gen. and Dan Kaufmann, Deputy Atty. Gen., for respondent.

PER CURIAM.

This appeal is from a judgment ordering forfeiture of an automobile to the state. After decision by the District Court of Appeal, Second Appellate District, division Three, a hearing was granted by this court in order to give further consideration to the important question of law involved. We have concluded that the opinion of the District Court of Appeal, prepared by Mr. Justice Valle e, Cal.App., 222 P.2d 473, correctly discusses and decides this question. That opinion, with deletions and additions that have been made for the purpose of discussing certain contentions urged upon us by the Attorney-General, is adopted as the opinion of this court. As modified, the opinion is as follows:

The State instituted this proceeding by filing a 'Notice of Seizure and Intended Forfeiture Proceedings' as provided by sections 11612 and 11613 of the Health and Safety Code. The notice alleged that the automobile had been seized pursuant to section 11611 of that code and that it 'was used to unlawfully conceal, convey, carry or transport marihuana, and marihuana was unlawfully in the possession of an occupant.' The registered owner and the legal owner answered separately, denying the allegations of the notice. The legal owner alleged that, prior to the seizure, it loaned $886.52 to the registered owner and received a chattel mortgage which was duly filed for record and is a first lien on the automobile. It also alleged that, prior to making the loan, it made a 'reasonable investigation of the moral responsibility, character and reputation of the (registered owner) * * * and found the same to be good,' and that there was a balance due of $865.57, with interest.

'The court found that the automobile was used contrary to the provisions of section 11610 of the Health and Safety Code and that the legal owner did not, prior to the loan, make a reasonable investigation of the moral responsibility, character and reputation of the registered owner. The legal owner appeals from the judgment.

'Prior to the setting of the cause for trial, appellant filed a demand for trial by jury. Thereafter respondent filed objections to the demand and a notice of motion to set the cause for trial without a jury. The respondent's motion was granted. When the cause came on for trial appellant renewed its demand and moved the trial judge for a trial by jury. The motion was denied.

'Appellant contends it was denied its right to a trial by jury in violation of article I, section 7, of the Constitution of California.

'Health and Safety Code, section 11610, provides that a vehicle used to unlawfully transport any narcotic, or in which any narcotic is unlawfully kept, deposited or concealed, or is unlawfully possessed by an occupant thereof, shall be forfeited to the State. At the time of the seizure in 1948, section 11611, amended, Stats.1949, ch. 1475, § 22, provided that any peace officer upon making, or attempting to make, any arrest for violation of the narcotics provisions of the code, shall seize any vehicle so used unlawfully and hold it 'as evidence until a forfeiture has been declared or a release ordered.' Provision is made for notice to owners, answers, notice of hearing, hearing, and for judgment of forfeiture or release. Health & Saf. Code, §§ 11612-11622, both inc.

'There can be no forfeiture of property without notice to the owner and a hearing at which he can be heard, except in a few cases of necessity, i. e., property kept in violation of law which is incapable of lawful use. Where the property is what is sometimes termed innocent property, threatening no danger to the public welfare, the owner must be afforded a fair opportunity to be heard. This is true whether it be a common-law or judicial forfeiture (one which does not take effect until by a judgment the rights of the state have been established in a suit instituted for that purpose), or a statutory or legislative forfeiture (one where the forfeiture is effective on the commission of the offense). In either case the law requires proceedings to be instituted for the purpose of ascertaining the facts of the forfeiture. People v. Broad, 216 Cal. 1, 3-7, 12 P.2d 941. A statutory or legislative forfeiture is in rem against the property itself. A common-law or judicial forfeiture is in personam against a defendant, 37 C.J.S., Forfeitures, § 2, p. 5. The forfeiture prescribed by the Health and Safety Code is in rem. People v. Broad, 216 Cal. 1, 12 P.2d 941; 37 C.J.S., Forfeitures, § 2, p. 5. The effect of such a forfeiture is to transfer the title to the vehicle from the owner to the State.

"The right of trial by jury shall be secured to all, and remain inviolate'. Cal.Const., art. I, § 7; Cal.Const. of 1849, art. I, § 3. The right to trial by jury guaranteed by the Constitution is the right as it existed at common law at the time the Constitution was adopted. People v. Richardson, 138 Cal.App. 404, 408, 32 P.2d 433. The common law at the time the Constitution was adopted includes not only the lex non scripta but also the written statutes enacted by Parliament. Moore v. Purse Seine Net, 18 Cal.2d 835, 838, 118 P.2d 1. The common law respecting trial by jury as it existed in 1850 is the rule of decision in this state. Farrell v. City of Ontario, 39 Cal.App. 351, 356, 178 P. 740. Any act of the Legislature attempting to abridge the constitutional right is void. People v. Kelly, 203 Cal. 128, 133, 263 P. 226; People v. Bruneman, 4 Cal.App.2d 75, 79, 40 P.2d 891; Cassel v. Gregori, 28 Cal.App.2d Supp. 769, 774, 70 P.2d 721. ¹ It is the right to trial by jury as it existed at common law which is preserved; and what that right is, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact. The right is the historical right enjoyed at the time it was guaranteed by the Constitution. It is necessary, therefore, to ascertain what was the rule of the English common law upon this subject in 1850.

'Long before the adoption of the California Constitution there were numerous statutes in England providing for the seizure and forfeiture of property used in violation of law. ²

'At common law the trial of actions for forfeiture to the Crown of property used in violation of law was in the Court of Exchequer. 'The term 'Common Law' often refers to those principles of English Law which were evolved in the Common Law Courts, as opposed to the principles which were applied in the Courts of Chancery and Admiralty and the Ecclesiastical Courts. The Courts of Common Law before the passing of the Judicature Acts, 1873-5, where the three Royal Courts of King's Bench, Common Pleas or Common Bench, and Exchequer, which had emerged from the King's Council (Curia Regis) as separate Courts by the end of the thirteenth century.' Phillips, The Principles of English Law and the Constitution, 70. ³ The Court of Exchequer was not a criminal court; and all suits for penalties, though for the King, were considered as civil. Burns, Justice of the Peace (23d ed.) vol. I, p. 806. By the end of the thirteenth century there was a recognized distinction between the Exchequer of Account and Receipt, and the Court of Exchequer of 'Exchequer of Pleas.' Radcliffe & Cross, The English Legal System, p. 54. The proceedings of the Court of Exchequer were originally confined to bills by the Attorney General to recover money or property for the Crown. Idem. 160. It was originally, and continued to be, a common-law court. Idem. 166; Plucknett, a Concise History of the Common Law, 4th ed., 152. The Court of Exchequer was absorbed by the Supreme Court of Judicature in 1875. Idem. 201.

'Blackstone says: 'An information on behalf of the crown, filed in the exchequer by the king's attorney general, is a method of suit for recovering money or other chattels, * * *. It is grounded on no writ under seal, but merely on the intimation of the king's officer the attorney-general, who 'gives the court to understand and be informed of' the matter in question: upon which the party is put to answer, and trial is had, as in suits between subject and subject. The most usual informations are those * * * for any forfeiture due to the crown upon the breach of a penal statute.' 3 Bl.Com. (12th ed.) 261. ⁴

'In Moore v. Purse Seine Net, 18 Cal.2d 835, 118 P.2d 1, certiorari granted. C. J. Hendry Co. v. Moore, 316 U.S. 643, 62 S.Ct. 1036, 86 L.Ed. 1728, it was held that: a proceeding for forfeiture of a fish net used in violation of law is a type of action that was cognizable in a common-law court; 'an action in rem can be brought by the state in an ordinary common law court for the forfeiture of goods or articles used in violation of laws imposing such a penalty', 18 Cal.2d at page 839, 118 P.2d at page 4; '(s)uch forfeiture to the state of illegally used articles has continued as an accepted common law procedure', 18 Cal.2d at page 840, 118 P.2d at page 4; and 'the forfeiture of illegally used nets authorized by the California statute involves a traditional common law remedy cognizable in the state courts, even though the statute was enacted long subsequent to the Judiciary Act.' 18 Cal.2d at page 842, 118 P.2d at page 5.

'* * * (T)he conclusions of our Supreme Court in the Moore case were followed by the Supreme Court of the United States in the decision of the case, C. J. Hendry Co. v. Moore, 318 U.S. 133, 63 S.Ct Ct. 499, 87 L.Ed. 663. In what Dean Dickinson ⁵ has described as 'at once a...