OCR Text |
Show MONDAY, SEPTEMBER 23, 1974 PAGE SIXTEEN INTERMOUNTAIN COMMERCIAL RECORD In The Supreme Court of The propriate to look to the intended purpose and to the means of State of Utah 70 Utah 441, 261 P. 9; Brackett v. Chamberlain, 115 Me. A. 98 v. Logan, 184 Ky. 711, 213 S.W. 181." Masich v. 933; Nichols 335, U. S. Smelting, supra, footnote 5; Rowley v. Pub. Serv. Comm., 112 Utah 116, 186 P. 2d 514 (1947). Pacific R. Co., accomplishing it by the proper application of the language used. , It appears obvious that the primary and sole purpoae 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 includ-in- g 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 . . . are forfeitable. except 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 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 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, 188 P. 2d 158 (1947); Miller v. Stuart, 69 Utah 250, 253 P. 900 (1927). 2, Utah Code Annotated 1953, seems to be apropos under the 2. Title v. County of Oakland, 356 Mich. facts of this case. See also: Spoon-Shack- et 13 Utah 2d 32, 368 P. 2d 261 (1962); 151, 97 N.W.2d 25 (1959); State v. Hunt, 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. SdjSec. 785, p. 227. See also: Tree v. White, 110 Utah 233, 171 P. 2d 398 ( 1546);. 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). dry-dock- ed 68-3-- 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: .' i 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 $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 M and is sustained. M WE CONCUR: 11 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. 5. 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 E. R. Callister, Jr. , Chief Justice R. L. Tuckett, Justice CROCKETT, Justice: (Dissenting) It is indisputably clear from the evidence that Donald Price, the owner of this Porsche sedan, was knowingly transporting in it considerable quantities of illicit drugs: marijuana and amphetamine pills; and that they were discovered and seized in connection with his lawful arrest. The Highway Patrol officers had followed this car, clocking its speed at 95 to 100 miles per hour. The arresting officer, William Pectol, testified that at the time of the arrest he observed in the car in an open sack plastic bags containing what appeared to be marijuana; and also observed different kinds of pills. The amounts of these substances is not expressly stated. But it is clear that the one ounce of marijuana which was tested had no relationship whatsoever to the total quantities of illicit drugs found in the car. Informative on this point are certain excerpts from the record. Officer Pectol said that after he had informed Mr. Price that he was under arrest and "read him his rights from the card i 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 7 This case is such a case, and it is suggested that application ridiculous. of an ounce of possession 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 old to school and happened to have a marijuana if he were taking his six-ye- ar 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. III. The exception to the statute devours it. Section 13(l)(e), Chapter Utah Code Annotated 1953), has 145, Laws of Utah 1971 (Title common three (i) excepts carriers, (ii) owners having no of contraband in his "conveyance," and (iii) excepts from forfeiture knowledge such any "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 loai 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 Neither would it be subject to forfeiture if he Hertz, or Avis, or 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. IV. sub-subsectio- ns: U-Ha- ul. 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 5. 113 Utah 101, 191 P. 2d 612 (1948). 6. State v. Salt Lake City Bd. of Ed. , 13 Utah 2d 56, 368 P. 2d 468 (1962); , 520 P. 2d 196 (1974); Parker v. Rampton, Utah 2d Crist v. Bishop, 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 What did you do then? Q. I laid all the stuff containing contents of the sack on the hood of the patrol car and asked him if he could identify it and asked him if the other two passengers knew what was in the vehicle. And he stated no, that the marijuana was his, and I asked him if he could identify the pills and he said they are amphetaA. mines. tell me what you did in getting the samples Q. Now from that A. We dumped all of the contents on the desk in the patrol ? office. Took a sample of marijuana and placed it in a plastic bag and taped it up, placed it inside of the yellow envelope. Wrote on the sample 1, my case number and what the sample was containing. Sealed mat envelope, taped it and initialed it, and we did this to each of the different colored pills. Q. That was sent in to the state toxicologist? A. Yes. Also pertinent to this point is a statement of the trial court with reference to the proffered evidence. In speaking of the officer's testimony he stated in part: ... he testified that there were a number- of plastic bags and I just can't assume that what is in that bag is marijuana - ' I mean I can infer from what you said I can make .... but I don't think it is established to reasonable a-- . ' ' inference, the point that I can receive it in evidence as marijuana. Without having been tested. When all he says is he suspects that it is. He took out some and they say that was marijuana, but I don't feel warranted in making an assumption to the point where I will admit it in evidence as marijuana upon merely his suspicion. I think I have got all of the mileage you can get out of it when he (Officer Pectol) says he took some out and proved to be marijuana and here is the report that is in evidence. Q. As I recall, there were two plastic bags? A. Yes, I believe there were two. Concerning the matter of forfeiture in his memorandum decision the trial court referred to the car as being of great value, $10, 000 which he regarded as greatly disproportionate to the penalty for the crime. (The main opinion speaks of a fine of $299. But there is also the more important penalty of up to six months in jail. ) Moreover, it is to be |