This аppeal 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 Vallée, 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 mating 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 reаsonable 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 de
“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 Stаte. 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 truе 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. (Peo
ple
v.
Broad,
“‘ 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
“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
“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,
“. . . [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 ease,
C. J. Hendry Co.
v.
Moore,
“ ‘ Separate courts exercising the jurisdiction of the Court of Exchequer were never established in the American Colonies. Instead, that jurisdiction was absorbed by the common law courts which entertained suits for the forfeiture of рroperty under English or local statutes authorizing its condemnation. Long before the adoption of the Constitution the common law courts in the Colonies — and later in the states during the period of Confederation — were exercising jurisdiction in rem in the enforcement of forfeiture statutes. Like the Exchequer, in eases of seizure on navigable waters they exercised a jurisdiction concurrently with the courts of admiralty. . . . By that time [about 1700], the jurisdiction of common law courts to condemn ships and cargoes for violation of the Navigation Acts had been firmly established, apparently without question, and was regularly exercised throughout the Colonies. In general the suits were brought against the vessel or article to be condemned, were tried by jury, closely followed the procedure in Exchequer, and if successful resulted in judgments of forfeiture or condemnation with a provision for sale. [Italics added.]
“ ‘The rise of the vice-admiralty courts — prompted in part by the Crown’s desire to have access to a forum not controlled by the obstinate resistance of American juries — did not divest the colonial common law courts of their jurisdiction to proceed in rem in cases of forfeiture and condemnation. . . .[p. 674.]
“ ‘It is noteworthy that Blackstone’s Commentaries, more read in America before the Revolution than any other law book, referred to the information in rem in the Court of
“ ‘. . . In all this we perceive a common understanding of judges, lawyers and text writers, both before and after the adoption of the .Constitution, of the common law nature of the procedure and judgment in rem in forfeiture cases and of its use in such proceedings in the Exchequer and in the American common law courts.
“ ‘We conclude that the common law as received in this country at the time of the adoption of the Constitution gave a remedy in rem in cases of forfeiture, and that it is a “common law remedy”. . .’
“There is evidence that at a very early date (1236 and 1299) in the history of the Court of Exchequer the trial of common law actions was by jury. 7 Apparently during that period the jury consisted of twelve witnesses gathered from the neighborhood to decide disputed questions of fact upon their previous knowledge. 8
“As early as 1301, a case involving forfeiture of a ship and goods for piracy was tried by a jury.
9
In 1457 on an information in the Exchequer for the King’s goods which were stolen, the Exchequer Chamber said, ‘the jurors are the judges of the fact.’
10
In 1662 a statute was enacted providing for a
“A case decided in 1766,
Mitchell,
who prosecutes for the King and Himself, v.
Torup,
— Exchequer—Parker, 227, 145 Eng.Rep. 764, was an information of seizure. It alleged that the plaintiff seized a ship and goods therein for unlawfully bringing the goods into Britain. The prayer was that the ship and goods remain forfeited. Issue was joined. The cause was tried by a jury. In the course of the opinion the court said: ‘it is objected, that the penalty or forfeiture, imposed by the fourth clause of the act, is only applicable to cases wherе there is some crime or guilt; but no crime or guilt can be imputed to the master, mate or owners, without their privity, the mariners being the only criminal or guilty persons, and therefore they ought to be the only sufferers. To which I answer, that though penalty or forfeiture, generally speaking, is the consequences of some crime or guilt, yet neither penalty nor forfeiture necessarily imply the one or the other, though punishment always does. To show this, several instances were mentioned upon the arguments: as where a murder is committed with the sword of an innocent man, the sword is forfeited; the like of all deodands. So, by the 4th of William and Mary, c. 8, the horses of innocent owners, upon which robberies are committed, are forfeited. And by the 8th of Anne, c. 7, s. 17, the vessels, boats, horses and other cattle, and carriages, made use of in the landing or removing, carriage or conveyance of any uncustomed or prohibited goods, are forfeited. And there are several other acts to the same purpose, which I shall barely refer to 13 & 14 Car. 2, c. 11, s. 7. 1 W. & M. c. 32, s. 2. 7 &
“Many of the English statutes provided for forfeiture of the conveyance used in carrying articles in violation of law, together with all goods therein. 13
" There are reports of many cases in the Court of Exchequer in which articles used in violation of law were forfeited to the Crown pursuant to statute, in all of which the cause was tried by a jury. 14
“The common-law courts in the Colonies and in the states during the period of Confederation exercised jurisdiction in rem in the enforcement of forfeiture statutes. In general the actions were brought against the article to be condemned, were tried by jury, closely followed the procedure in the Court of Exchequer, 17 and, if successful, resulted in judgments of fоrfeiture or condemnation with a provision for sale. 18
“In exhaustive opinions the Court of Appeals of New York in
Colon
v.
Lisk
(1897),
“The right of trial by jury did not exist at common law in a suit to abate a public nuisance.
(People
v.
McCaddon,
“Automobiles, carriages, wagons, horses, and mules, that are ordinarily used for lawful purposes, cannot be classified with narcotics, gambling paraphernalia, counterfeit coins, diseased cattle, obscene books and pictures, decayed fruit and fish, unwholesome meat, infected clothing, or other contra
“It is argued that this proceeding for the forfeiture of property used in violation of law is a special proceeding, equitable in nature. . . . The right to a trial by jury сannot be avoided by merely calling an action a special proceeding or equitable in nature. If that could be done, the Legislature, by providing new remedies and new judgments and decrees in form equitable, could in all cases dispense with jury trials, and thus entirely defeat the provision of the Constitution. The Legislature cannot convert a legal right into an equitable one so as to infringe upon the right of trial by jury. 26 The provision of the Constitution does not permit the Legislature to confer on the courts the power of trying according to the course of chancery any question which has always been triable according to the course of the common law by a jury. If the action has to deal with ordinary common-law rights cognizable in courts of law, it is to that extent an action at law. 27 In determining whether the action was one triable by a jury at common law, the .court is not bound by the form of the action but rather by the naturе of the rights involved and the facts of the particular case — the gist of the action. A jury trial must be granted where the gist of the action is legal, where the action is in reality cognizable at law.
“It is suggested that the statute was enacted since
“ fhere were petty offenses against statutes or municipal. ordinances which were not triable by jury at the time the Constitution was adopted. As to them, the right of trial by jury has never existed; and, since they were triable without a jury when the Constitution was adopted, they are now triable without a jury. Blackstone gives a number of illustrations. 30 In none of the illustrations given by Blackstone was the power sanctioned or upheld to enforce, in a summary proceeding, without a jury, the forfeiture of property which may be, and ordinarily is, used for lawful purposes. . . .
“ We conclude that this forfeiture proceeding by the State is the type of action which was cognizable in a common-law court, and triable by a jury in the Court of Exchequer, according to the course of the common law; that trial by jury was recognized as a right in the trial of actions for the forfeiture of property seized because used in violation of law at common lаw at the time of the adoption of the Constitution of California, and that appellant had a constitutional right to a trial by jury of the issues of fact in this case.
“ The denial of a trial by jury to one constitutionally entitled thereto constitutes a miscarriage of justice and requires a reversal of the judgment.
(Cowlin
v.
Pringle,
The attorney general contends: (1) that this conclu
(1) It is true that a number of states have denied the right to a jury trial in forfeiture proceedings. An examination of the cases cited by the attorney general, however, shows that in none of them was the problem adequately discussed in terms of the common law practice in England and the United States before 1850.
(2) In determining questions of forfeiture on the high seas, the federal courts sit as courts of admiralty and, in accordance with historic admiralty practice, there is no right to a jury trial. In cases of forfeiture arising on land, however, there is a right to a jury trial.
(Union Insurance Co.
v.
United States,
The attorney general has cited two federal decisions under the National Prohibition Act that apparently hold that, whatever the rights of the party in possession of the vehicle, a lienholder has no right to a jury trial.
(Missouri Investment Corp.
v.
United States,
Two theories appear to underlie the conclusion that a lien-holder in a forfeiture action is merely a petitioner in equity.
Although the suit by the state is nominally
in rem
against the vehicle itself, in reality it is directed against those who have property interests in the vehicle. The automobile is not itself an offender but has merely been usеd in the commission of an offense. The statute operates to transfer property rights in the automobile to the state, as a penalty against the owners for this misuse. In
People
v.
Broad, supra,
It is true that the forfeiture does not apply to innocent lienholders. It does not follow, however, that lienholders are not partiеs to the forfeiture. One of the purposes of the forfeiture proceeding is to determine whether or not the lien-holder is in fact “innocent.” With respect to the issue of reasonable investigation of the registered owner (Health & Saf. Code, § 11620), as well as the issue of the narcotics offense (Health & Saf. Code, § 11619), the appellant is vitally concerned, for unless there is an adverse decision on both of these issues, appellant’s interest in the vehicle is not forfeited to the state. It is therefore a misconception to regard appellant as interested only in the establishment and foreclosure of its lien — it is also interested in protecting that lien from the claim against it that is being asserted by the st'ate.
A second theory underlying the federal cases cited by the attorney general is that a lienholder is an intervener and that, since, intervention was not allowed at common law, his
(3) In
Traffic Truck Sales Co.
v.
Justice’s Court,
(4) Contrary to the contention of the attorney general, a number of the forfeitures cited herein did involve exercise of the police power. (See, for example, Jenkinson, Select Cases in the Exchequer of Pleas, 48 Selden Society Publications, p. 168, No. 215 [piracy, robbery, and homicide]; 4 W. & M., c. 8, § 6 [robbery]; 1 James I, c. 22 [trade regulation]; 42 Geo. III, c. 38, § 20 [unhealthful adulterated beer]. See, also, Mitchell v. Torup, 145 Eng.Rep. 764, 767.)
The judgment is reversed.
— The question here presented for dеcision concerns only the right of the corporate mortgagee of the seized automobile to a trial by jury. In effect, by an affirmative defense, the corporation is seeking to establish and to foreclose a lien upon the vehicle.
The decision was cited and followed in
C. I. T. Corp
v.
United States,
37- F.2d 890. There the claimant was the assignee of a conditional sales contract of an automobile ordered forfeited under the Volstead Act. The court found that the contract was a chattel mortgage and held: “. . . the intervention is equitable in character, being designed to enforce a lien. ...” (
True, there are cases which appear to hold to the contrary, but in not one of them was the court’s attention directed to the distinction between the position of an owner of property and a mortgagee. The applicant in
United States
v.
Yamoto,
That conclusion was based upon
Kennedy
v.
United States,
For these reasons, I would hold that a mortgagee seeking to establish and to foreclose lien upon seized property is not entitled to a trial by jury upon those issues.
Notes
"1The right has always been regarded as saered and has been jealously guarded by the courts.
(People
v.
Peete,
"2[1381] 5 Rich. II, stat. 1, ch. 2, act respecting transfer of gold and silver; [1400] 2 Hen. IV, eh. 5, act to prevent gold and silver from being carried out of realm; [1604] 1 James I, ch. 2, § 43, act re tanners, curriers, shoemakers, etc.; [1660] 12 Chas. II, ch. 4, § 5, act providing duties; [1660] 12 Chas. II, ch. 18, § 2, act to encourage shipping— Navigation Act; [1662] 13 & 14 Chas. II, ch. 11, §§ 14, 17, 22, 23, 26, 31, aсt for preventing frauds; [1662] 14 Chas. II, cap. 7, act to restrain exportation of leather and raw hides; [1663] 14 Chas. II, eh. 11, § 1, act to prevent frauds of brewers and other persons; [1663] 15 Chas. II, eh. 7, §§ 6, 8, act to encourage trade; [1688] 1 W. & M. eh. 32, § 2, act to prevent exportation of wool; [1692] 4 & 5 W. & M. cap. 5, § 8, act to prevent frauds in importation of spirits; [1700] 11 & 12 Will. Ill, ch. 10, § 2, act to encourage manufacturers and affecting importations; [1709] 8 Anne, eh. 7, §17, act relating to imports; [1718] 5 Geo. I, ch. 11, §§ 1, 2, 3, 4, 6, 8, 15, 21, act relating to smuggling; [1721] 8 Geo. I, eh. 18, act to prevent clandestine running of goods and infection thereby; [1724] 11 Geo. I, eh. 30, §16, act to prevent frauds and abuses in public revenues; [1725] 12 Geo. .1, ch. 28 §§ 13, 14, act
“3For the distinction between Queen’s Bench, Common Pleas and Exchequer, see The Attorney-General v. Hallett, 15 M. & W. 97, 153 Eng. Rep. 777, 781.”
"4See also Cox, Institutions of the English Government, 517. An information filed in the Court of Exchequer was the first judicial proceeding in rem towards the legal condemnation of goods seized as forfeited. The Attorney-General v. Jefferys, 13 Price, 545, Eng. Rep. 1077, 1078.
"5Eormer Dean School of Jurisprudence, University of California, now Professor of Law, University of Pennsylvania.
“636 Cal.L.Rev. 173.
“7Jenkinson, Select Cases in the Exchequer of Pleas, p. 1; idem. p. Ixxxii.
‘'8Jenkinsou, Select Cases in the Exchequer of Pleas, p. cxvi, p. 20 (58), p. 37 (88), p. 40 (94, 95), p. 56 (116), p. 66 (128), p. 88 (146), p. 103 (162), p. 116 (171), p. 121 (174), p. 131 (181), p. 133 (183), p. 140 (189), p. 146 (193), p. 150 (198), p. 168 (215), p. 172, (219A), p. 174 (221), p. 180 (227B), p. 183 (228), p. 196 (243), p. 198 (245)', p. 200 (246), p. 206 (251)); Case LXII (1457) Jenk. 83, 145 Eng. Rep. 59.
10Jenkinson, Select Cases in the Exchequer of Pleas, p. 168 (215).
"10Case LXII [1457] Jenk. 83, 145 Eng. Rep. 59.
“11 [1662] 13 & 14 Chas. II, ch. 11, § 21. See Roe v. Roe [1673]— Exchequer — Hardres, 185, 145 Eng. Eep. 443, where it was held that the issue of fact for the jury in an information for gelling and importing to be sold foreign woollen contrary to statute was whether such cloth was imported to be sold.
“13If certain goods were unlawfully imported the goods were forfeited ‘together with the vessels and boats, and all the horses, and other cattle and carriages whatsoever, made use of in the landing, removing, carriage, or conveyance of any of the aforesаid goods.’ (8 Anne, e. 7, s. 17 .[1709].) If glass was unlawfully imported into Great Britain from Ireland in addition to the forfeiture of glass the vessel in which it was imported was also forfeited with her tackle, apparel, and furniture. (9 Geo. II, e. 12, s. 19, 20, 21 [1746]; see also 33 Geo. Ill, e. 2, s. 4 [1793]; 39 Geo. Ill, e. 59, s. 14 [1798].) On the forfeiture of tea removed from the kingdom ‘the same, together with the canisters, bags and other package whatsoever, containing the same and the vessels and boats, and the horses, and other cattle and carriages employed in removing the same, shall be forfeited, and shall and may be seized by any officer or officers of excise.’ (21 Geo. Ill, e. 55, s. 20 [1781].) On a forfeiture of salt for failure to declare or pay duties the salt was forfeited ‘together with the packages containing the same, and the ships, boats and vessels, and all the horses, and other cattle and carriage whatsoever made use of in the removing, landing, carriage, or conveyancе of such salt, and the same respectively shall and may be seized by any officer or officers of the customs or excise.’ (38 Geo. Ill, e. 89, s. 8 [1797].) The statute of 3 & 4 Wm. IV, c. 53, s. 28 [1833] provided that if any goods liable for duties shall be unshipped ‘all such goods as aforesaid shall be forfeited together with all Horses and other animals, and all carriages and other things, made use of in the Removal of such Goods.’ The statute 5 & 6 Viet. c. 93, s. 8 [1842] provided that no person cut, colour or manufacture, or have in Ms possession, any leaves or other matters to imitate or to be mixed with tobacco or snuff subject to forfeiture of 200 lbs., and that the leaves and other matters, ‘together with all Machines, Tools, Materials, Vessels, and Utensils for cutting, grinding, pounding, colouring, staining, dyeing, manufacturing or preparing the same shall be forfeited. ’
“14Anonymous Case
LXX [1459], Jenk. 87, 145 Eng. Rep. 62, was for the forfeiture to the King of merchandise alleged to have been shipped with intent to transport it to an unlawful рlace. The manner
“15Isabell Fortescues Case
[1611], Lane, 91, 145 Eng. Rep. 324, was that a penalty be imposed upon her for recusancy (absence from church). An inquisition issued and the case was tried by a jury. In
The Protector
v.
Sir Thomas Ashfield
[1656], Hardres, 62, 145 Eng. Rep. 381, two parts of Ashfield’s land were seized for recusancy. He pleaded conformity. The court held that before the lands could be forfeited to the King conformity must be tried by the common law.
Stevens
v.
Duckworth
[1775 or 1776], Hardres, 338, 145 Eng. Rep. 486, was an information ‘tarn quam’ for forfeiture of five pounds a
“16‘Actions qui tam are such as are given by acts of parliament, which, impose a penalty, and create a forfeiture for the neglect of some duty, or commission of some crime, to be recovered by action or information, at the suit of him who prosecutes as well in the king’s name as in his own.’ (Bacon’s Abridgement, 5th ed. col. 1, p. 61.) Bacon says that most penal statutes directed that the penalty might be recovered by action or information, and ‘a new trial may be had after a verdict for the defendant. Wilson v. Rastall, 4 Term. Rep. 753,’ (idem, italics added), and ‘Such information may demand what is due to the informer, without mentioning what is due to the king; also, if the quantum depend on what shall be found by the jury, a blank may be left for the sum,’ (idem. 63. Italics added) and ‘Also where a statute limits suits by an informer qui tam to other courts, yet any one may, by construction of law, exhibit an information in the Exchequer for the whole penalty, for the use of the king,’ (idem. 65) and ‘If the jury find a general verdict with one penalty for the plaintiff, and he apply it to one count, he shall not be permitted afterwards to apply it to another count. . . .’ (idem. 69.) 3 Bl. Com. 258, 259; Kent’s Commentaries, 13th ed. vol. I, pp. 375-378.
“17The procedure under the common law in the Court of Exchequer for the forfeiture of property used in violation of law was similar to that prescribed by the Health and Safety Code. Attorney General v. Lade [1745], Parker, 57, 145 Eng. Rep. 712; Malden v. Bartlett [1750], Parker, 105, 145 Eng. Rep. 727; 13 & 14 Chas. II, c. 11, s. 28; 31 Eliz. c. 5, s. 5; 3 Geo. III, c. 22, s. 1, 6; 6 Geo. III, c. 19, s. 3, 4, 6, 10; 21 Geo. III, c. 37, s. 6, 7, 8, 9; 26 Geo. III, c. 77, s. 13; 45 Geo. III, c. 121, s. 13, 14.
“18Footnotes 4, 5, and 6 to the opinion in
C. J. Hendry Co.
v.
Moore,
“10See also
Garnhart
v.
U. S.,
16 Wall (U.S.) 162 [
“20See same case below
Colon
v.
Lisk,
“21The charge was using an automobile to transport liquor in violation of law. The Oklahoma statute expressly provided that the hearing be ‘without a jury.’
“22The statute provided that the return of seizure should be tried without a jury. The lower court forfeited the automobile of the appellant because her husband drove it with a pint of whiskey in his pocket. She did not know that her husband carried the whiskey in the car.
“23See also
Lorance
v.
State,
(Tex. Civ. App.)
"24See
State
v.
Intoxicating Liquor, 55
Vt. 82;
State
v.
Certain Intoxicating Liquors,
“25See
Moore
v.
Brett,
"26Norris’s Appeal,
“27Donahue
v.
Meister,
“28Colon
v.
Lisk,
“29Wood
v.
City of Brooklyn,
. "304 Bl. Com, (12th ed.), ch. 20, 281 et seq.