State v. Barker 8 Ohio St. 3d 39

*40Locher, J.

I

Two issues are before this court for review. The first is whether R.C. 1531.20, construed in pari materia with R.C. 1533.161, contemplates the forfeiture of an automobile under the general language of “or other device.” We hold it does. The second issue is whether such forfeiture complies with the constraints of due process under the state and federal Constitutions. We hold the forfeiture to be in compliance with due process of law.

This is a case of statutory interpretation. The parties concede that R.C. 1531.201 and 1533.1612 must be construed in pari materia. The locus of contention is the terminology in R.C. 1531.20 which allows for the forfeiture of “[a]ny boat, net, seine, trap, ferret, gun, or other device used in the unlawful taking of wild animals * * *.” (Emphasis added.) More specifically, the concern herein is whether the phrase “or other device” includes motor vehicles.

*41The court of appeals below interpreted the “or other device” language through the doctrine of ejusdem generis.3 While the use of the doctrine was correct, the result was incorrect. The classifications of “net, seine, trap, ferret, [and] gun” are not relevant to motor vehicles. The classification of “boat” is, however, determinative4 within the narrow context of R.C. 1533.161. A boat, unlike a net, seine, trap, ferret or gun, is a means of transporting both hunter and hunted. A boat facilitates the capture of the animal and, in many instances, makes possible the activity barred by statute. Most importantly, forfeiture of a boat represents a substantial deterrent to the reoccurrence of the proscribed activity.

Similarly an automobile, under R.C. 1533.161, not only is a means of transporting both hunter and hunted, but also makes the activity barred by statute possible. Thus, such forfeiture is entirely consistent with the rationale of deterrence. Of particular importance in our analysis is the use of the term “any vehicle” as an integral part of the proscribed offense. In reviewing the statute, the offense cannot be committed unless the light is “throw[n] or cast” from “any vehicle.”

*42The legislature has made no distinction between the owner and the user of a device subject to forfeit. A boat, a gun, or ferret, if used illegally under R.C. 1531.20, may be forfeited. A similar result is presupposed in respect to an “other device.” Within the confines of the jacklighting statute, an automobile is an “other device.” Thus, it too is forfeited if used for an illegal purpose.

Barker had already been warned of a potential forfeiture (this is the second time he has been caught violating the jacklighting statute). He had been warned of possible forfeiture proceedings if he were to be caught again. Further, it is evident from the trial court proceedings that the automobile had a greater role in the proscribed activity than merely providing transportation. Because the issue is not before us we decline to address the question of what would happen had the car been stolen, nor will we discuss appellee Joe Holland Chevrolet, Inc.’s potential remedies against appellee Barker for his unauthorized use of the car.

Accordingly, we hold a motor vehicle is an “other device” within the meaning of R.C. 1531.20 when construed in pari materia with R.C. 1533.161.

II

The second issue is whether a forfeiture as described violates due process of law. The appellate court’s determination that forfeiture of property cannot be effected because the property was used for criminal purposes without the owner’s knowledge and consent is incorrect.

The leading Ohio case on the question of forfeiture is Lindsay v. Cincinnati (1961), 172 Ohio St. 137 [15 O.O.2d 278], which holds:

“A municipal ordinance, which provides for the seizure and forfeiture of an automobile which has been illegally used in violation of an ordinance of the municipality, is within the police power of the municipality and is constitutional, even though the owner of the automobile had no knowledge of the illegal use by the driver and did not lend the automobile to be used for any illegal purpose.”

Appellees seek to distinguish Lindsay by suggesting the forfeiture in the case at bar lacks specific statutory authorization. Since we have made a contrary determination, Lindsay is both relevant and controlling. Having found a “motor vehicle” to be an “other device,” pursuant to R.C. 1531.20, the forfeiture complies with due process as a valid legislative exercise of state police powers. State v. Lilliock (1982), 70 Ohio St. 2d 23 [24 O.O.3d 64]. (“* * * In order for a property disposition statute to be constitutional in its application it must be rationally related to a legitimate state concern, such as deterring criminal activity.” Id. at 28.) Accordingly, we find no merit in appellees’ argument that forfeiture of a motor vehicle violates due process of law under the Ohio Constitution.

Similarly, the United States Supreme Court held in Calero-Toledo v. Pearson Yacht Leasing Co. (1974), 416 U.S. 663, that a statutory forfeiture scheme is not rendered unconstitutional simply because the owner of the *43seized property is innocent. Id. at 683. Justice Brennan, in the majority opinion, cited Van Oster v. Kansas (1926), 272 U.S. 465, for the proposition that state lawmakers “in the exercise of the police power, were free to determine that certain uses of property were undesirable * * Calero-Toledo, supra, at 686. The power of state legislators to enact statutes for deterrent, as well as punitive, purposes is unquestionably a legitimate exercise of state power. We thus find appellees’ argument, that the forfeiture of a motor vehicle belonging to a third party is an unjust taking of property in violation of the due process provisions of the Ohio and United States Constitutions, to be without merit. Accordingly, we hold that a forfeiture, pursuant to R.C. 1531.20, of a motor vehicle used in violation of R.C. 1533.161, does not offend due process of law under the Constitutions of the United States and the state of Ohio.

The judgment of the court of appeals is reversed.

Judgment reversed.

Celebrezze, C.J., W. Brown, C. Brown and J. P. Celebrezze, JJ., concur.

Holmes, J., dissents in part.

Sweeney, J., dissents.

Holmes, J.,

dissenting in part. Although I concur that a motor vehicle may be considered as an “other device” within the meaning of R.C. 1531.20, and therefore would be subject to forfeiture in a given case, I must dissent from that portion of the syllabus and opinion which grants forfeiture of such a vehicle where the owner had no knowledge of, nor consented to, the use of the vehicle by the offender. The denial of an appropriate hearing to the owner of such a vehicle in order to avoid forfeiture would violate the owner’s due process rights.

I am aware that, historically, the law has permitted the forfeiture of inanimate objects which have been instrumental to, or used in, the violation of the law. It is also conceded that generally the innocence of the owner of the property subject to forfeiture as to any unlawful purpose for which his property is to be used, provides little by way of defense. Calero-Toledo v. Pearson Yacht Leasing Co. (1974), 416 U.S. 663. It would seem that this principle has prevailed in order to alert owners of property not to be negligent in the loaning, leasing or bailing of their property. See Dobbins’s Distillery v. United States (1878), 96 U.S. 395; Goldsmith-Grant Co. v. United States (1921), 254 U.S. 505. As stated in Pearson, supra, at pages 687-688:

¡¡* * * p0 the extent that such forfeiture provisions are applied to lessors, bailors, or secured creditors who are innocent of any wrongdoing, confiscation may have the desirable effect of inducing them to exercise greater care *44in transferring possession of their property. Cf. United States v. One Ford Coach, 307 U.S. 219, 238-241 (1939) * * *.”

The court, in Pearson, although permitting the forfeiture of the leased yacht used for the transportation of marijuana, felt that in certain instances it would not be lawful or equitable to retain the property of an innocent party who was unaware of the use of his property. Accordingly, the court stated, at pages 688-690, that:

“This is not to say, however, that the ‘broad sweep’ of forfeiture statutes remarked in [United States v. United States] Coin & Currency [(1971), 401 U.S. 715] could not, in other circumstances, give rise to serious constitutional questions. Mr. Chief Justice Marshall intimated as much over a century and a half ago in observing that ‘a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed.’ Peisch v. Ware, [8 U.S.] 4 Cranch 347, 363 (1808). It therefore has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. See, id., at 364; Goldsmith-Grant Co. v. United States, 254 U.S., at 512; United States v. One Ford Coupe Automobile, 272 U.S., at 333; Van Oster v. Kansas, 272 U.S., at 467. Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property; for, in that circumstance, it would be difficult to conclude that forfeiture served legitimate purposes and was not unduly oppressive. Cf. Armstrong v. United States, 364 U.S. 40, 49 (1960).”

In Lindsay v. Cincinnati (1961), 172 Ohio St. 137 [15 O.O.2d 278], this court did approve of the seizure of an automobile used in a violation of a municipal ordinance; however, in that case the facts show that the owner did lend the automobile to the individual who had violated the law. That case did not involve the use of an automobile which had been taken without the permission of the owner. Judge O’Neill stated, at page 139, that:

“* * * A different question would be presented in this case had the automobile here in question been stolen. However, that question is not presented in this case since the automobile with which we are here concerned was lent by the owner to the driver, although it was lent for a legal purpose, and, according to the record, the owner had no knowledge that it was to be used as a ‘bootleg cab’ or for any other illegal purpose.”

Here we are faced with facts which would show that the defendant-employee had not obtained permission from the owner to use the automobile. Further, there are no facts presented which would show that the owner had previously allowed the employee to use automobiles for any such purpose. Additionally, there are no facts which would show any automobiles of the owner car dealership were outfitted with spotlights which could have been used by this employee or any other employee. In fact, contrary to the facts set forth within the majority opinion here, the spotlight used by this offend*45ing employee was his own portable spotlight which he had brought from home, and was not attached to the automobile.

For these and other reasons, I would hold that a due process hearing should have been afforded the owner on the forfeiture proceeding in order to present evidence of the unauthorized use of the automobile, its innocence of the intended and actual use of such automobile, and its attendant rights for the repossession of such vehicle.