dissenting.
The Court holds that when the state takes possession of private property for investigatory purposes and possible use as evidence, the state owes no compensation for the owner’s loss when it fails to return the property or returns it in substantially destroyed, damaged, or valueless condition. I dissent, because the statutes that recognize the state’s obligation to return or restore such property to its rightful owner obviously do not mean only whatever is left of the property when the state gets through with it.
A correct interpretation of the statutes is that private property is to be returned or restored to its rightful owner in substantially the same condition in which the state took possession of it. We deal here with lawfully owned private property of substantial value, not with contraband. If the state needs to disassemble, destroy, or substantially damage such property in the course of its investigation, the state either *768must reassemble, repair, or replace the property or bear the owner’s costs in having this done.
This was the perfectly sensible result reached by the circuit court. In a letter opinion, Judge Pihl wrote that “the Legislature has clearly spoken to the point that unless otherwise prohibited or restricted the property shall be returned to the person from whom seized.” He understood this legislation to mandate that “the property shall be returned in substantially the same condition as it was seized for to say otherwise would amount to a ‘taking’ of property to the extent of damage by the state without just compensation * *
Whether or not constitutional rights were implicated, the circuit court was entirely right not to reach those implications when the legislature by statute had acknowledged the state’s obligation toward the rightful owner of property that comes into the state’s possession in administering the laws.
Unfortunately this sensible holding got lost in the course of the litigation. Plaintiffs, understandably wishing to cover alternative theories of recovery, coupled the statutory claim with theories based on bailment and on the constitutional law of taking property for public use. The Court of Appeals chose to consider the constitutional theory first, contrary to the long-established rule that there is no occasion to decide whether the state’s law violates the constitution until it is determined that the state’s law in fact denies the claimed right. See, e.g., Planned Parenthood Association, Inc. v. Department of Human Resources of the State of Oregon, 297 Or 562, 687 P2d 785 (1984); State v. Spada, 286 Or 305, 309, 594 P2d 815 (1979); State v. Scurlock, 286 Or 277, 281, 593 P2d 1159 (1979). This led the Court of Appeals into the labyrinth of “police power” doctrine and the conditions under which damage or destruction of private property for public purposes may become a compensable “taking.” Eventually it affirmed the circuit court on constitutional grounds.
Faced with this holding, the majority in this court in turn needlessly pronounces some very questionable constitutional law. Those pronouncements are questionable because the state doubtless would have to pay compensation if it used plaintiffs’ pickup truck for some other public purpose, for instance for transportation, and the compensation would take into account any diminution in value from wear and tear or *769damage during the state’s use. The majority’s conclusion that failure to return or restore property used as evidence in unharmed condition does not require compensation, hangs entirely on an analogy with decisions holding that private persons have no constitutional claim to be compensated for serving as witnesses or jurors.
An argument indeed can be made that the temporary deprivation of an owner’s possession of property is analogous to such service, that it is a public duty toward the administration of justice which was not meant to be turned into an economic transaction by the taking clauses of Article I, section 18 or the Fifth Amendment. See, e.g., Hurtado v. United States, 410 US 578, 93 S Ct 1157, 35 L Ed 2d 508 (1973) (no Fifth Amendment claim for just compensation for confinement as a material witness), United States v. Friedman, 532 F2d 928, 935 (3rd Cir 1976) (no Fifth Amendment claim to be paid for costs of furnishing copies of bank records pursuant to summonses); Daly v. Multnomah County, 14 Or 20, 12 P 11 (1886) (no claim for witness fees under Oregon Constitution Article I, section 18). There also are possible counterarguments, equally based on historic understandings of the difference between demanding a man’s services and the use of his property. During much of this country’s history, for instance, men were legally obliged to work a stated number of days on the public roads without pay, but this civic obligation was held not to include furnishing one’s property to the state for the same project. See Toone v. Alabama, 178 Ala 70, 59 So 665 (1912).1 But there is no need to pursue these analogies, for plaintiffs have made no claim to be compensated for the state’s temporary taking of their pickup truck, and without such a claim the state understandably has not invoked any analogy to the public duty to testify or serve as a juror.
The majority’s constitutional law also is questionable because it has no principled limits. First, it is by no means *770limited to the present facts. Property used for evidence may belong to anyone, to a bystander, a landlord, or a business that happens to have the requisite item. The majority’s holding would be the same if the vehicle cut up in the state’s investigation belonged to Hertz or Avis. The holding would apply if the dismantled property was a Greyhound bus or someone’s motor home, an expensive camera or a fine watch. It would be the same if the vehicle belonged to the victim of the crime or had been stolen from some third person. Under the majority’s theory, all that these victims would be entitled to have returned or restored to them are the pieces left after the state destroyed the vehicle in its investigation.
Second, the state may and does empower its agencies to demand personal property for other than criminal investigations. If the state authorizes an administrative agency to take substantial private property from an individual or business for investigatory purposes, including administrative investigations unrelated to anything concerning the owner, the Court’s constitutional theory implies that the owner is not entitled to return of essentially the same property or equivalent compensation. If the court intends a distinction based on whether the agency obtains the property by subpoena, by lawful seizure with or without a warrant, or by temporary occupation and partial destruction of real property for investigatory purposes, the basis for such a distinction is neither apparent nor explained.2 Nor are there grounds to distinguish between evidence for investigations, for adjudications, or for rulemaking or government operations. Under the court’s opinion, everyone’s property is at risk to be used and not fully returned, without any compensation, so long as the intended public use of the property can be said to be “as evidence.”
To repeat, these constitutional doubts are unnecessary. Rather, there is good reason not to bring the state’s handling of private property seized for evidence prematurely into the complex constitutional formulas of taking and of just compensation, where it would be beyond legislative change, *771when there is in fact a legislative policy adequate to this case. ORS 133.623 to 133.663 provide for the return or restoration of seized property to the person whom the court finds to be entitled to its rightful possession. Assuming that a movant establishes a right to possession, the court may postpone execution of an order to return the property only “until such time as the things in question need no longer remain available for evidentiary use.” ORS 133.652.
The statutes leave no doubt that the State of Oregon intends to respect the property interests of persons whose property it needs for evidentiary use. They also leave no doubt that the legislature intended valuable items of lawfully owned property to be returned or restored to the “rightful” possession of their owners essentially in the same form or condition in which the state took them. The majority discusses at length that “restore” in the statutes means “give back” rather than “repair,” as if that disposed of the issue, but plaintiffs do not rest their claim on the meaning of “restore”: “This argument misses the point of the statutes, which is that the State must give back what it takes, when no longer needed as evidence.” The state would hardly argue that, if it took someone’s live animal for evidentiary use, the state would satisfy the statutes if it returned a dead carcass. Nor can the state reasonably argue that when it seizes an operating vehicle, it has satisfied the statutes if it returns the dismantled pieces of the vehicle without an engine, wheels, or in this case, without a roof, windshield and other parts.
The statutes do not expressly prescribe the remedy for failure to return or restore property to its rightful owner. But the implicit remedy is that which is appropriate to other failures to return another’s property. It does not arise from contract or tort. The question is not whether the legislature prescribed payment of “damages,” as the majority puts it. Payment is not a sanction for having done something wrong; it is simply the cost of setting things right, of putting the property owner as nearly as practicable into the same position as if the state had given back his or her property unharmed. The object of the statutes is to avoid loss to the owner, not to judge the lawfulness or reasonableness of the officers’ actions, which in this case are stipulated to have been reasonable.3 The *772statutory scheme for return of property was not meant to turn into another form of review of police action.
Whether compensation is due in a given case depends on whether the statutes have been followed. I suppose that if the owner knew enough in advance to be concerned about the potential destruction of property in the state’s hands, the statutes would entitle the owner to a protective order or perhaps a declaratory or injunctive order to assure that the property is maintained so that it can be returned or restored as the statutes prescribe. We are not dealing with minor scratches or depreciation while the property is held by the state, nor with evidentiary items whose value is de minimis. If the investigation requires that property must be dismantled, damaged, or consumed, such an order presumably would require that it be reassembled and repaired before being returned, or that it be replaced. If this has been done, there is no cause for compensation. In this case, the government could have reassembled or repaired the pickup truck, or it could have had the job done, presumably at the estimated cost of $2,290.90. It then could have complied with its statutory obligation to return or restore the vehicle to the person rightfully entitled to it. Because the government did neither and left those expenses to the owners, plaintiffs were entitled to recover them in this action.
Much concern is expressed these days about the rights of victims and bystanders in the administration of the laws. See Wells v. Paulus, 296 Or 338, 675 P2d 482 (1984). Looking beyond the present facts, the theory adopted by the majority deprives such persons along with all others of rights protected by Oregon law. The judgment of the circuit court should be affirmed.
Lent, J., joins in this dissenting opinion.The Alabama Supreme Court wrote:
“The books have been examined in vain for an authority which will authorize the exaction from a citizen of the contribution of his property for public service, under the theory that it is his duty as a citizen to so contribute. The state may exact the performance of this personal obligation, or provide a reasonable commutation for same by way of an assessment; but it cannot confiscate his property by devoting it to public use. * * *”
Destruction of property has been held not to be compensable when it is done to avert a danger of public importance, see, e.g. Miller v. Schoene, 276 US 272, 48 S Ct 246, 72 L Ed 568 (1928) and cases cited by the Court of Appeals, 64 Or App at 436, but that issue is not involved here. In this case we are not concerned with the destruction of property in order to render it harmless but with the use of otherwise harmless private property for a public purpose.
Compare Dickens v. DeBolt, 288 Or 3, 602 P2d 246 (1979), a tort action against an officer for conversion of evidence.