Ben Ali v. Towe

• Decision Date: 26 February 1954
• Docket Number: No. A--719,A--719
• Citation: 103 A.2d 158,30 N.J.Super. 19
• Parties: BEN ALI et al. v. TOWE, Deputy Atty. Gen. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 19

30 N.J.Super. 19

103 A.2d 158

BEN ALI et al. v. TOWE, Deputy Atty. Gen.

No. A--719.

Superior Court of New Jersey Appellate Division.

Argued Dec. 21, 1953.

Decided Feb. 26, 1954.

B. Franklyn Boggia, Hackensack, argued the cause for plaintiffs-appellants (Joseph H. Gaudielle, Hackensack, attorney).

Paul T. Huckin, Englewood, argued the cause for defendant-respondent.

Before Judges CLAPP, GOLDMANN and EWART.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

This appeal turns upon the question whether, by force of the statute, N.J.S.A. 24:18--38.1 to 24:18--38.3, the owners of a Cadillac automobile had forfeited their rights thereto.

Hence Green, while driving the car, was arrested for having in his clothes 30 packages of cocaine in violation of N.J.S.A. 24:18--4, a high misdemeanor (N.J.S.A. 24:18--47). The car was seized and delivered to the defendant, the Acting Prosecutor of Bergen County, and later Green was convicted and sent to State's Prison.

Shortly after his arrest, Green's mother and two married sisters, the owners of the car, instituted an action for the replevin of the car without (see R.R. 4:78--1 and 4:78--4(c); N.J.S. 2A:59--10, N.J.S.A.) issuing a writ of replevin. The judgment was for the defendant, and plaintiffs bring this appeal, citing Commercial Credit Corp. v. Congleton, 21 N.J.Super. 88, 90 A.2d 550 (Cty.Ct.1952).

The statute--see the two provisos in N.J.S.A. 24:18--38.3--contemplates an action such as this (cf. Farley v. Manning, 4 N.J. 571, 73 A.2d 551 (1950); cf. also Day v. Compton, 37 N.J.L. 514 (E. & A. 1874), even though the property is In custodia legis. Indeed, while such an action is pending, the statute stays the confiscation proceeding provided for by its terms. However, the replevin action itself may, in the discretion of the court in which it is brought, be stayed until after the trial of the narcotics violation--if that violation is to be tried; the prosecutor should not be required to try the crime first in the replevin action.

The prosecutor, to make out his defense in the action here for replevin, has the burden of establishing two matters: first, a violation of chapter 18 of Title 24 of the Revised Statutes, N.J.S.A.; and second, that the vehicle was (as stated in N.J.S.A. 24:18--38.1) 'used In, for or in connection with the violation.' The question here is as to the second matter and, more particularly, as to the significance to be put upon the italicized words.

According to an agreed statement of facts, Green at the time of his arrest 'was using said vehicle to transport himself.' But as to his purposes in that regard, we know nothing. It must therefore be taken from the record that there was no relation whatever between Green's use of the car and the possession of the drug--the violation here--save a coincidence in point of time; the relation was casual, not causal. Hence it could not be said that the car was 'used * * * for * * * the violation'; 'for,' here, means 'in order to effect,' Webster's New International Dictionary (2nd Ed.), and, as stated, the car was not used to effect the violation. The prosecutor's case must therefore depend on the words 'in connection with' and 'in.'

The word 'connection' may mean 'junction' or 'relationship' or, specifically, 'relationship by causality, mutual dependence, logical sequence or the like; relation of things when one of them is involved in another.' Webster', supra. 'The words 'in connection with' could imply a relationship either proximate or remote.' S. P. Dunham & Co. v. 26 E. State St. Realty Co., 134 N.J.Eq. 237, 245, 35 A.2d 40, 45 (Ch.1943). However one does not properly, or at any event ordinarily, speak of two matters as being 'connected' when they have nothing in common but a co-existence in point of time. The phrase 'in connection with' therefore will not aid the prosecutor's argument.

The word 'in,' however, is more troublesome. Among other things, it may signify 'close connection by way of * * * active participation' or--a very different matter here--'during the course of.' Webster's, supra; cf. Tutton v. State, 28 Ga.App. 152, 110 S.E. 455 (Ct.App.1922). It is agreed that the car was used 'during the course of' the violation.

There are two canons of construction that may be brought to bear upon the word 'in,' both supporting plaintiffs' argument. First, there is the canon, Noscitur a sociis, that a word is known by the company it keeps. But, it may be said, this is no hard and fast rule; the word may have a character of its own that will not be lost in such company. Russell Motor Car Co. v. United States, 261 U.S. 514, 43 S.Ct. 428, 67 L.Ed. 778 (1922).

The second canon is that by which we are called upon to construe forfeiture as well as penal statutes strictly. 37 C.J.S., Forfeitures, § 4, p. 8. But the injunction of this canon--assuming it applies with the same vigor to a matter of property as to a matter of life or liberty, its original concern, Maxwell, Interpretation of Statutes 8th Ed.), 230--does not end the discussion. We are still obligated to search for that interpretation of the statute which will most nearly comport with its intendment. State v. Meinken, 10 N.J. 348, 91 A.2d 721 (1952); United States v. Lacher, 134 U.S. 624, 10 S.Ct. 625, 33 L.Ed. 1080 (1889); cf. Pound, Common Law and Legislation, 21 Harv.L.Rev. 383, 386 (1908). We might notice, too, that we find it established in the Supreme Court that this canon is without force with respect to forfeitures having to do with the revenue law. United States v. Stowell, 133 U.S. 1, 12, 10 S.Ct. 244, 33 L.Ed. 555 (1889). We hardly suppose the policy supporting the revenue law to be of greater concern to the courts than that behind the narcotic law.

This all--the resolution of the matter by means of rigidifying canons--is an unsatisfactory way of answering a constructional problem. In every such matter there should be, rather, some avowed examination of the objects of the statute and, if need be, of the consequences of the solutions proposed. See Radin, Statutory Interpretation, 43 Harv.L.Rev. 863 (1930).

The designs of the statute here are fairly evident. Cf. United States v. One 1947 Oldsmobile Sedan, 104 F.Supp. 159 (D.C.N.J.1952); United States v. One 1941 Pontiac Sedan, 83 F.Supp. 999 (D.C.N.Y.1948); 49 U.S.C.A. §§ 781, 782; 26 U.S.C.A. § 3321; 19 U.S.C.A. § 483; N.J.S. 2A:152--7 to 2A:152--10, N.J.S.A., the act from which, with certain noteworthy changes, the statute here was doubtless taken. Cf. also N.J.S.A. 33:1--1(y) and 33:1--66 providing for the forfeiture of vehicles containing illicit liquor, as to which statutes it has been said, Patrick v. Driscoll, 132 N.J.L. 478, 41 A.2d 202, 204, (Sup.Ct.1945), that the matter is 'within the legislative province.' The forfeiture statute before us, dealing with narcotic violations, like a...