dissenting.
The Court today engages in an impermissible rewriting of I.C. § 37-2744. I can agree with neither the reasoning nor most of the rationale of the majority. In addition, the result achieved in this case is manifestly unfair to the bank and therefore, I dissent.
I.
The majority sets the stage to reach its desired result wherein it states that “[t]he central issue in this case is one of statutory construction.” Ante at 433, 732 P.2d at 671. The opinion conveniently omits the first question in any judicial analysis of a statute — is the statute ambiguous? The Court may engage in construction of the statute only if the answer is “yes.” This well-settled principle was enunciated by Chief Justice Donaldson just the other day:
“This Court has consistently adhered to the primary cannon of statutory construction that where the language of the statute is unambiguous, the clear expressed intent of the legislature must be given effect and there is no occasion for construction.” Worley Highway District v. Kootenai County, 98 Idaho 925, 928, 576 P.2d 206, 209 (1978). Ottesen v. Board of Commissioners of Madison County, 107 Idaho 1099, 1100, 695 P.2d 1238, 1239 (1985).
The statute in question, I.C. § 37-2744, provides that materials used to violate Idaho’s Uniform Controlled Substances Act are subject to forfeiture to the state. The statute in effect at the time of trial made a clear distinction between the drugs themselves and vehicles used in the crime:
(d) Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the director subject only to the orders and decrees of the district court, or magistrate’s division thereof, having jurisdiction over the forfeiture proceedings. Forfeiture proceedings shall be civil actions against the property subject to forfeiture and the standard of proof shall be preponderance of the evidence.
(1) All property described in paragraph (1) [controlled substances] of subsection (a) hereof shall be deemed contraband and shall be summarily forfeited to the state. Controlled substances which are seized or come into possession of the state, the owners of which are unknown, shall be deemed contraband and shall be summarily forfeited to the state.
(2) When property described in paragraph (2), (3), (4) [vehicles], (5) and (6) of subsection (a) hereof is seized pursuant to this section, forfeiture proceedings shall be filed in the office of the clerk of the district court for the county wherein such property is seized. The procedure governing such proceedings shall be the same as that prescribed for civil proceedings by the Idaho Rules of Civil Procedure. The court shall order the property forfeited to the director if he determines that such property was used, or intended for use, in violation of this act. I.C. § 37-2744(d)(l)(2) (emphasis added).
*438Thus, the statute makes plain and unambiguous that drugs are forfeited summarily at the time of seizure while the forfeiture of vehicles requires and follows only after an adjudication. The statute twice provides further that following an adjudication of forfeiture, the state’s interest in the vehicle remains subject to that of innocent lien holders:
(D) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if he neither had knowledge of or reason to know nor consented to the act or omission. I.C. § 37-2744(a)(4)(D).
(IV) An owner, co-owner or claimant of any right, title, or interest in the conveyance may prove that his right, title, or interest, whether under a lien, mortgage, conditional sales contract or otherwise, was created without any knowledge or reason to believe that the conveyance was being or was intended to be used, for the purpose charged; ____ I.C. § 37-24774(d)(3)(D)(IV).
Thus, the legislature had this distinction clearly in mind: drugs are forfeited when seized; vehicles not so; a court determination is a condition precedent. With the statute containing no language capable of being read that vehicles are forfeited upon seizure, the thoughtful analysis engaged in by Justice Bakes, although it commands a majority, has no supporting initial predicate upon which to build.
Federal case law is given discussion as though it is somehow entitled to great weight on this issue. Conspicuously absent are any quotations of the statutes at issue in those federal cases. Unless the statutes are substantially similar to our I.C. § 37-2744, the cases are entitled to little, if any, weight.
The parallel federal provision is 21 U.S.C. § 881. On the crucial points, it is dissimilar to our I.C. § 37-2744. The statute begins with the words “The following shall be subject to forfeiture to the United States and no property right shall exist in them ____” (Emphasis added.) Congress granted no rights to vehicle lienholders. There are no provisions similar to I.C. § 37-2744(a)(4)(D) or (d)(3)(l)(IV).
However, in 1984 the statute was amended to provide relief for innocent lienholders with regard to real property, 21 U.S.C. § 881(a)(7), but not vehicles. At all times the federal law has provided for remission or mitigation of forfeitures within the discretion of the Attorney General. 21 U.S.C. § 881(d).
Significantly, a new section was added in 1984 which provides that: “All right, title, and interest in property described in subsection (a) shall vest in the United States upon commission of the act giving rise to forfeiture under this section.” 21 U.S.C. § 881(h). Essentially, this is a codification of the Stowell rule. Thus, it is apparent that the federal statute is so dissimilar to Idaho’s provision that the federal cases provide little guidance.
The cite to the Crampton case, ante at 435, 732 P.2d at 673, provides little persuasion. The precedential value of a plurality position by a three-member panel of the Oregon Court of Appeals even in Oregon is not of great strength.
While we do not disagree with the majority that a salutory purpose of the statute is the prevention of criminals from profiting in criminal conduct, this laudable rationale is inapplicable to this case. The car was transferred from Stephenson, the one arrested for selling cocaine, to Thompson five weeks before Stephenson was arrested. The state’s forfeiture complaint never once mentioned Thompson’s name. Thus, no criminal will profit if the Bank’s lien on Thompson’s car is recognized. On the contrary, the majority’s infliction of a penalty upon the Bank has not the slightest deterrent value on illegal drug trafficking. The purpose of forfeiture statutes is to impose a penalty only upon those who are significantly involved in a criminal enterprise. United States v. One 1967 Porsche, 492 F.2d 893, 894 (9th Cir.1974), citing United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). In United States Coin & Currency, the Court stated that a statute that *439allows property of an innocent to be forfeited might raise serious Fifth Amendment questions. 401 U.S. 715, 721-22, 91 S.Ct. at 1044-45.
The majority’s attempted rationalization is that: “We do not believe that the legislature intended to allow a third party to get an interest (post-seizure) that is stronger than the state’s interest.” Ante at 436, 732 P.2d at 674. Such is pure whimsical fancy as to how the majority would have written the legislature’s law, and how the statute can be misread to come up with the “better” result, which is simply: Bank loses; State wins.
II.
Although the majority opinion gives it no specific recognition, it is apparently influenced by Part III of the state’s opening brief which is predicated upon the principle that where one of two innocent parties must suffer, the loss must be borne by the one whose act caused the loss. This is somewhat disconcerting in view of Hunsaker v. Rhodehouse, 77 Idaho 119, 289 P.2d 319 (1955), wherein the principle was discussed at length. That case contained what might be considered a more explicit, more complete statement of the principle by which the state contends we should be guided: “wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it.” Hunsaker, supra, 77 Idaho at 125, 289 P.2d at 323.
Borrowing from the language of the Utah Supreme Court, this Court stated the principle in slightly different language:
Where one of two innocent parties must suffer from wrongful act of third person, loss should fall on one who by his conduct, created circumstances which enabled third party to perpetrate wrong and cause loss. Id.
The circumstances of this case simply do not present an occasion for the application of the principle. As is made quite clear from our own Idaho cases, and by the text, 27 Am.Jur.2d §§ 146, 147 (to which we are cited in the state’s brief): “This principle does not apply where there are no contending equities between the parties.” 27 Am. Jur.2d, p. 683. The principle applies most usually where the conflicting claims arise where both losing parties have dealt with and trusted the same miscreant — often an agent for both, as in the Hunsaker case, and more recently in Blankenship v. Myers, 97 Idaho 356, 544 P.2d 314 (1975), where the Blankenships and Myers dealt through an agent who converted assets of one of the parties to a real estate transaction, and the agent could respond to neither, having been for other activity awarded a life sentence in a federal penitentiary.
In the case which was presented to Judge Durtschi, the state of Idaho and the Bank had no dealings with each other, none directly, and none with Stephenson. Stephenson had no dealings with the state, other than to violate its laws. Thompson’s transaction with the Bank was a simple, ordinary loan transaction — the fourth which he had with the same bank. The Bank acquired a lien on the Green Porsche. The state of Idaho eventually obtained a decree of forfeiture — which all concede is valid against Stephenson’s interest in the vehicle.1
The state’s argument is in and of itself self-destructive, and runs contra to the majority’s novel hypothesis. At page 26 of its brief, it asserts: “Although the bank may have had no knowledge of the illegal use of the vehicle when the $8,000 loan was made to Thompson, it was within the bank’s power to determine that the vehicle was in the custody of the police and subject to forfeiture to the state.” To which it adds on page 27: “The bank’s failure to request a view of the collateral or even to attempt to determine where it was located contributed to the fraudulent activities of Thompson.” Yet, earlier in its brief, it candidly has first conceded the state of the law, generally and in Idaho:
*440However, in many jurisdictions statutory protection has been afforded to holders of innocent interests in property subject to forfeiture. Congress indicated an intent to protect “bona fide purchasers” throughout the above-cited congressional report on the 1984 amendments to the federal forfeiture statutes. [1984] U.S. Code & Ad.News at 3384.
The Idaho legislature has elected to protect the interests of holders of bona fide security interests in conveyances subject to forfeiture (aircraft, vehicles, or vessels) upon fulfillment of certain conditions, as shown by Idaho Code § 37-2744(a)(4)(D):
(D) A forfeiture of a convéyance encumbered by a bona fide security interest is subject to the interest of the secured party if he neither had knowledge of or reason to know nor consented to the act or omission.
Under this provision a bona fide security interest is protected under the following conditions:
a) if the subject conveyance was encumbered by such interest at the time of forfeiture;
b) if the holder of the interest had no knowledge or reason to know of the illegal activity;
c) if the holder of the interest did not consent to the act or omission.
There is no contention made here the First Security Bank in any way consented to or had knowledge of the illegal acts involving the Porsche Targa. However, because the vehicle was not encumbered by the bank’s interest when forfeiture occurred, and because the bank had reason to know that the vehicle had been forfeited when its lien interest was established, the bank’s interest fails to qualify for protection under the statute; thus, the district court erred in its ruling that the bank’s interest should prevail over the state’s forfeiture interest in the Porsche Targa. Appellant’s Brief, pp. 14-16 (italics original; bold emphasis added).
The portion of the excerpt from Appellant’s Brief which is italicized above is apparently thought to be sustained by the bare assertions from pages 26 and 27 of its brief, supra, p. 16.
The Bank innocently loaned money on the vehicle — and, were it to sustain a loss, would be an innocent party defrauded by Thompson. The state of Idaho did no business with Thompson and was not defrauded by him. By reason of Stephenson’s violations of law, the state had an expectancy to the windfall of acquiring the Green Porsche — which failed to materialize, perhaps by reason of its failure to circularize all local banks with a notice that the director was in possession of the vehicle and that forfeiture proceedings had been or would be instituted. Such a procedure may or may not be feasible in the eyes of the director.
The main point to be remembered, however, is that it is only the Bank which parted with any money in a standard business transaction, and stands to suffer a loss of it. The state stands to suffer the loss of a windfall — but there will be other windfalls, and criminal activity in drugs may be deterred.
Finally, one should keep in mind the state’s frank concession of legislative policy seeking to protect lending institutions— not punish them. The deterrent value of today’s majority opinion remains to be seen. The only class capable of being deterred by today’s opinion are the various lending agencies in Idaho, even though guiltless of crime or suspicion of crime. 0, tempore, o mores.
. Nothing in the record implicates Thompson in the commission of Stephenson’s drug offense.