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District Court of Appeal, First District, Division 2, California.


Civ. 10783

Decided: July 12, 1938

U.S. Webb, Atty. Gen., and Seibert L. Sefton, Deputy Atty. Gen., for the People. Alfred J. Hennessy, of San Francisco, for respondent.

From a judgment refusing to declare the above-mentioned automobile forfeited to the state, the plaintiff has appealed and has brought up the judgment roll only. The plaintiff makes the point that it is immaterial that the owner did not give permission to use her vehicle unlawfully and did not intend that it would be used unlawfully. Van Oster v. Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354, 47 A.L.R. 1044. The owner contends that the point made by the plaintiff is not involved and that the sole question presented by the judgment roll is whether the plaintiff pleaded a cause of action.

The controversy involves a construction of the State Narcotic Act, Statutes of 1929, chapter 216, page 380, and the several acts amendatory thereof. That statute enumerates in section 1, as amended by St.1935, p. 2204, cocaine, opium, morphine, codeine, heroin, alpha eucaine, beta eucaine, flowering tops or leaves of hemp or loco weed, Indian hemp, extracts, tinctures, or other preparations of hemp or loco weed or Indian hemp, or chloral hydrate, or any of the salts, derivatives, or compounds of the foregoing substances, or any preparation or compound containing any of the foregoing substances or their salts, tinctures, or compounds, and then provides for the regulation of the sale, transportation, and possession thereof. Furthermore, it provides penalties for the violation of the statute. Among other penalties it provides for the forfeiture of vehicles “used to conceal, convey, carry, or transport” any of said narcotics. In the instant case we are primarily concerned with those portions of the statute dealing with said forfeitures. The plaintiff's pleading is as follows:

“Notice of Seizure and Intended Forfeiture Proceedings To: Caroline Sarubbi, 28 Genoa Place, San Francisco, Calif., the registered owner of the above named vehicle and Albert Pelizzari, 1105 Union Street, San Francisco, Calif., who may have an interest in the above named vehicle.

“Notice is Hereby Given (pursuant to Section 15(b) of the State Narcotic Act), that (the above named vehicle, to wit:) One 1933 Plymouth Sedan De Luxe, bearing motor number PD165124, and bearing 1937 license plates number 7E6894, was seized by the Division of Narcotic Enforcement of the State of California on or about the 12th day of August, 1937, (while said vehicle was being used to unlawfully conceal, convey, carry or transport narcotics contrary to the force and effect of section 15 of the State Narcotic Act, as amended,) in the City of San Francisco, County of San Francisco, State of California.

“Notice is Hereby Further Given, That it is the intention of the People of the State of California to forfeit any right, title or interest that you or any of you may have in the above named vehicle.

“(Pursuant to section 15(b) of the said act you have twenty days from the date of the mailing of this notice within which to file a verified answer 1, to the fact of the use of said vehicle or 2, to establish your claim as provided in subdivision (e) of Section 15.

“By Section 15(b) no extension of time can be granted for the purpose of making this verified answer.)

“U.S. Webb, Attorney General of the State of California,

“By Seibert L. Sefton, Deputy Attorney General, Attorneys for Plaintiff.”

(All parentheses ours.)

Caroline Sarubbi filed a verified answer in which she alleged that she was the owner of said automobile; but denied that on August 12, 1937, the car was used to transport narcotics contrary to the provisions of the State Narcotic Act; and alleged that on August 12, 1937, said automobile was driven without her permission and alleged that said automobile was not used to transport any of the drugs mentioned in section 1 of said statute.

The trial court made findings that Caroline Sarubbi was the owner; that the car was used on August 12, 1937, to transport narcotics contrary to the provisions of section 15 of the State Narcotic Act, as amended by St.1935, p. 2210; and that the said Caroline Sarubbi consented to and gave permission to her son, William Sarubbi, to use said Plymouth sedan automobile on the 12th day of August, 1937, but that at said time she did not know that said automobile was to be used for the unlawful transportation of narcotics and did not give permission to her son, William Sarubbi, to use said automobile for said purpose, nor did she at the time that she gave permission to her son to use said car intend that it should be used to unlawfully transport narcotics.

In different places in her brief the owner claims there was no allegation in the charge that the “narcotics” transported were any of the drugs specified in section 1, that William Sarubbi did the transportation, or that the transportation was done by his authority, express or implied.

The absence of the allegations just mentioned are or are not material depending on the construction of the statute. The State Narcotic Act is a statute which clearly creates a new right and provides a remedy for the enforcement thereof. That remedy is exclusive. County of Alameda v. Freitas, 8 Cal.App.2d 653, 655, 48 P.2d 165. The statute provides no pleading on behalf of the plaintiff except the notice hereinabove mentioned. Section 15, subd. (b), as amended by St.1935, p. 2210. It does not provide in express terms the contents of said notice. The recital is “notice of seizure and intended forfeiture proceeding shall be filed with the county clerk *.” If that recital could be held to be the full requirement of the contents of the notice it is clear that said document complied therewith. That is so because the recital just mentioned is set forth and numerous other recitals and conclusions are set forth. The latter we have indicated by the parenthesis we inserted in the notice. But the question arises, did the legislature mean that the full contents of the notice would be confined to a recital that a seizure had been had and forfeiture proceedings were intended? We think not. In the first division of subdivision (b) of section 15, it is provided that a notice should be served on all persons “having any right, title or interest”, and such persons are later designated as “the owners”. In the third division of subdivision (b) it is provided, “* owners * may make a verified answer to the fact of the use *.” In no proper sense can it be said that an answer will be made to something not alleged. That requirement then is a clear intimation that the plaintiff's pleading should contain an allegation “to the fact of the use”. Subdivision (c) provides that if no answer is filed the court will hear evidence “upon the fact of the unlawful use *” and render judgment of forfeiture. In the absence of clear language it cannot be assumed that the legislature either authorized or required a court to hear evidence upon an issue that was not presented by a pleading. Under subdivision (e) the answers of those who claim any “lien, mortgage, or conditional sales contract” on the automobile may set forth the facts showing their investigation of the character of the owner of the car and that they had no knowledge that the car was used “for the purpose charged”. Charged by whom? Manifestly by the plaintiff. These intimations are slight but nevertheless we think each indicates that the legislative intention was that the pleadings called “notice” should contain a statement of such facts as would “enable the claimant to traverse them, and the court to see that, if true, a violation of the statute exists”.

Counsel have not called to our attention and we have found no line of authorities to the effect that in a proceeding brought by the state to forfeit the property of a citizen, the state may do less than file a pleading stating fully its claims to forfeit such property. Whether such pleading is called a declaration, complaint, information, or notice, would seem to be quite immaterial. A complaint in a civil case under ordinary rules should contain a statement of the facts constituting the cause of action in ordinary and concise language. Code Civ.Proc., § 426. A complaint to forfeit property is ordinarily called an information. 25 C.J. 1174. The rules governing the framing of such a pleading came before the Supreme Court of the United States many times during the early part of the last century. In the case entitled The Hoppet v. United States, 7 Cranch 389, 3 L.Ed. 380, there were two informations—one against the vessel and one against the cargo. Under a federal statute innocent property, a part of the cargo, could under certain circumstances be forfeited. Commencing on page 393 the court said: “The first question made for the consideration of the Court is this: Will this information support a sentence of condemnation pronounced against the vessel and the innocent part of the cargo? That the information states a case by which no forfeiture of the ship or the innocent part of the cargo has been incurred, unless its defectiveness be cured by the allegation that the act was done contrary to, and in violation of the provisions of the statute, has been already fully shown. It is not controverted that in all proceedings in Courts of common law, either against the person or the thing for penalties or forfeitures, the allegations that the act charged was committed in violation of law, or of the provisions of a particular statute will not justify condemnation, unless, independent of this allegation, a case be stated which shows that the law has been violated. The reference to the statute may direct the attention of the Court, and of the accused, to the particular statute by which the prosecution is to be sustained, but forms no part of the description of the offence. The importance of this principle to a fair administration of justice, to that certainty introduced and demanded by the free genius of our institutions in all prosecutions for offences against the laws, is too apparent to require elucidation, and the principle itself is too familiar not to suggest itself to every gentleman of the profession.” In the case entitled United States v. Three Hundred and Ninety–Six Barrels Distilled Spirits, 1866, 28 Fed.Cas. p. 121, No.16,503, the federal court for the eastern district of Missouri cited many of the earlier cases and analyzed them. In doing so it stated (page 122): “Informations in rem on the exchequer side are not criminal proceedings. They are civiliter, non criminaliter. * There are no substantial distinctions between the proper structure of, and rules governing, libels of information and informations for municipal forfeitures. * Although the technical precision of an indictment is not necessary, yet the allegations must be sufficiently specific to enable the claimant to traverse them, and the court to see that, if true, a violation of the statute exists. The violation may be charged in the words of the statute, but a general averment that the statute has been violated is not sufficient.” In United States v. Mann, 1877, 95 U.S. 580, 24 L.Ed. 531, the court had under consideration an information to forfeit $500 under the provisions of Revised Statutes, § 3177, 26 U.S.C.A. § 1501. Bank checks were required to be stamped. Under the statute the officers of the internal revenue department were authorized to enter and examine “objects subject to tax”. Mann had in his possession a quantity of paid checks. The information alleged that he refused to allow the officers to examine his checks, but did not allege that the checks were not stamped. Mann demurred to the information on the ground that it did not state facts sufficient. The demurrer was sustained and the United States appealed. Commencing on page 585, Mr. Justice Clifford, speaking for the court, said:

“Penal offences created by statute, whether to be prosecuted by indictment or information, must be accurately and clearly described in the pleadings for the recovery of the penalty; and if the offence cannot be so described without expanding the allegations beyond the mere words of the statute, then it is clear that the allegations of the accusation must be expanded to that extent, as it is universally true that no pleading in such a case can be sufficient which does not accurately and clearly allege all the ingredients of which the charge is composed, so as to bring the accused within the true intent and meaning of the statute defining the accusation.

“In general, says Chief Justice Marshall, it is sufficient in a libel of information to charge the offence in the very words which direct the forfeiture; but the proposition, we think, is not universally true. If the words which describe the subject-matter of the prohibition are general, including a whole class, * we think the charge in the libel ought to conform to the true sense and meaning of the words as used by the legislature. The Mary Ann, 8 Wheat. 380, [5 L.Ed. 641]; The Schooner Hoppet and Cargo v. United States, 7 Cranch, 389, [3 L.Ed. 380]; 2 Pars.Ship & Adm. 386.”

See, also, 21 Standard Encyclopedia of Procedure, 273; 25 C.J. 1174.

The foregoing comments are reinforced by the primary proposition that no one can be deprived of his property without due process of law, nor can a court take property from his possession without a hearing and compel him to prove title to regain it. Havemeyer v. Superior Court, 84 Cal. 327, 400, 401, 24 P. 121, 10 L.R.A. 627, 18 Am.St.Rep. 192; Stuparich Mfg. Co. v. Superior Court, 123 Cal. 290, 55 P. 985; Modern Loan Co. v. Police Court, 12 Cal.App. 582, 587, 108 P. 56; People v. Broad, 216 Cal. 1, 12 P.2d 941. It is further reinforced by the fundamental law that every intendment and presumption is against the person seeking to enforce a forfeiture provided for by statute. Savings & Loan Society v. McKoon, 120 Cal. 177, 52 P. 305.

The notice contains references to statutory provisions and also makes use of the word “unlawfully”. As averments of material facts those statements are not helpful. That the law required the notice provided by the statute should describe the automobile in an appropriate manner, that it had been seized by the division of narcotic enforcement of the state of California, and that it was so seized in the city and county of San Francisco, state of California, on the 12th day of August, 1937, may be assumed from the fact that the plaintiff alleged such facts and the defendant has not questioned the propriety thereof. We think it is obvious that under the foregoing rules it should also have alleged the name of the individual operating the automobile in such terms as the facts would warrant, the nature of his authority, whether a permittee, agent, or employee of the registered and legal owner of the automobile, and that he had in his possession one or more of the drugs enumerated in section 1 of the State Narcotic Act, giving the names of such drugs and the approximate quantity. If in truth and in fact the automobile was used to transport one or more of the drugs mentioned in section 1 of the State Narcotic Act, and if it was so used by a bailee of the owner, with or without her knowledge, said automobile was subject to forfeiture. Van Oster v. Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354, 47 A.L.R. 1044; People v. One Ford V8 Tudor Sedan, 12 Cal.App.2d 517, 522, 55 P.2d 908. But the plaintiff did not allege the automobile was used to transport a prohibited drug or that it was so used with the permission of the owner, express or implied.

The judgment is affirmed.


We concur: NOURSE, P.J.; SPENCE, J.

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