dissenting.
I dissent from the majority opinion because I believe the Oregon Constitution requires the state to compensate plaintiffs for the destruction of their pickup truck. I agree with the majority that the statutory terms “return” and “restore” have the same meaning. I disagree, however, that compliance *773with either term can be achieved by the empty gesture of giving a person back the damaged pieces of his or her property.
When the legislature directed the state to “return the things seized” it must certainly have contemplated that, despite temporary seizure, “things” would retain some value to which the owner was entitled. What happens when the property that should be returned is rendered valueless by the state? The majority opinion, as I read it, concludes that the statute provides no answer and though the constitution presents an answer, it does not apply. I disagree. I would hold, for the reasons developed below, that article I, section 18 of the Oregon Constitution requires the state to make just compensation when it appropriates property to be used as evidence in a criminal investigation and alters or damages it so extensively that the property is no longer useable by the owner. I would interpret ORS 133.633 consistently with this constitutional mandate.
The majority sets a precedent of very dangerous breadth when it holds that the state may seize the property of individuals and alter, mutilate, or destroy it without being responsible to the owner in any way. The majority forecloses recovery by any property owner, including crime victims and third persons who may have no connection at all to the investigation. This case involves seizure of property pursuant to a search warrant issued for a criminal investigation. However, many state agencies have subpoena power by which they temporarily can demand property. Were such an agency to destroy the property in the pursuit of some legitimate regulatory function, the majority’s constitutional analysis presents no distinction why it too could not avoid its constitutional obligation to compensate the property owner.
The majority concludes that there is no taking within the constitutional meaning when the state destroys property in its development of evidence, and that ORS 133.623 through 16T3.663 has failed to provide for compensation in these instances. Since that is the prevailing opinion of this court, it would appear that if Oregon citizens are to be compensated for the state’s destruction of their property it is up to the legislature to act to insure that protection.
Article I, section 18 requires the state to make compensation when it deprives persons of their private property. *774The majority’s analysis may support the conclusion that the temporary use by the state of private property is, like a trial-related personal service, noncompensable. It is not enough to conclude, however, that because one has an historic public duty to participate temporarily as a witness or juror at trial without compensation, one’s private property may be taken without compensation toward the same end, and used, tested and substantially damaged in a manner that results in a permanent deprivation.
The majority states: “We can see no reason to make a distinction between the giving of oral testimony and the furnishing of physical evidence.” Slip op. at 12. In fact, there are two reasons to make such a distinction. The first is the historically different treatment courts have afforded the constitutional requirement of compensation for “particular services” as distinguished from that given compensation for “private property.” The second reason lies in the nature of the deprivation at issue in this case. The deprivation that attends witness or jury service, though potentially lengthy, nonetheless remains temporary. The deprivation that results when the state substantially destroys private property in the development of evidence is permanent.
Article I, section 18 provides:
“Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation. * * *”
Neither the federal constitution nor any other state constitution with the exception of Indiana and Tennessee contains the requirement that government pay for the particular services it may demand.1 The language in our constitution is similar to language in the Indiana Constitution of 1851:
“No man’s particular services shall be demanded, without just compensation. No man’s property shall be taken by law, without just compensation; nor, except in the case of the State, without such compensation first assessed and tendered.”2 Article I, section 21, Ind Const.
*775Indiana and Tennessee cases, many of which were in existence at the time our constitution was drafted, developed an analysis for the terms “particular services” independently from their analysis for taking of “property.” For example, in Israel v. The State, 8 Ind 467 (1857), the Indiana court distinguished between “general” and “particular” services, and determined that the services of a witness in a criminal trial was “general,” so as to be outside the coverage of the compensation requirement. In Falkenburgh v. Jones, 5 Ind 296 (1854), the court distinguished “official” from “particular” services, holding that the state could require a clerk of the court to provide a free transcript to a pauper. The court stated that although services of attorneys cannot be required free of charge, see Blythe v. The State, 4 Ind 525 (1853) and Webb v. Baird, 6 Ind 13 (1854), officers entitled to fees or salaries fixed by law are at liberty to resign, and do not perform “particular” services within the meaning of the Indiana Constitution.
A Tennessee case reflects a similar analysis. In Henley v. State, 98 Tenn 665, 41 SW 352 (1897), the court upheld a law under which states and counties were not liable for fees of witnesses, clerks of the court, sheriffs and magistrates, and costs in many criminal prosecutions. The court explained that “[particular services must mean peculiar services; limited services; not ordinary or general services of an individual.” 98 Tenn at 684.
As the majority notes, this court has also recognized a class of exceptions from the requirement that the government compensate mandated services. In Daly v. Multnomah County, 14 Or 20, 12 P 11 (1886), when faced with the question whether article I, section 18 required compensation of witnesses compelled to testify in criminal cases, the court cited Israel v. State, supra, and denied the existence of such a right. *776Article I, section 18 required compensation only of “particular services” and not “general services.” 14 Or at 22. Morin v. Multnomah County, 18 Or 163, 22 P 490 (1889), used the same distinction to withhold compensation from a witness who was detained in jail until trial because he was unable to produce the security necessary to guarantee his appearance at trial.
Thus, the three states which share the constitutional requirement that compensation be made for the “particular services” demanded have adopted a similar analytical framework for answering whether a given legal duty gives rise to a cause of action for inverse condemnation. The inquiry has historically involved a determination of whether a compelled service is “official,” “general,” or “particular,” terms which do not have meaning beyond the context of the provision of human labor. Therefore, I cannot agree with the majority that Oregon cases utilizing this analysis, which in turn rely on cases from other jurisdictions interpreting identical clauses, are definitive in interpreting a separate clause involving “property.”
The difference in analysis between demanding services without compensation and taking property without compensation is well illustrated in two cases addressing the requirement, developed in England and imported to the American colonies, that able-bodied men must work without compensation to construct and maintain public roads. An act of the General Assembly of the Northwest Territory describes the duty:
“ ‘That all male persons of the age of twenty-one years, and not exceeding fifty, who have resided thirty days in any township of any county within this territory, who are not a township charge, shall over and above the rate of assessment hereinafter mentioned, be liable, yearly and every year, to do and perform two days work on the public roads, under the direction of the supervisor within whose limits they shall be respectively residents.’ (Sec. 10, Chapter 28 of Northwest Territory Acts, 1799).” (Quoted in Butler v. Perry, 240 US 328, 332, 36 S Ct 258, 60 L Ed 672 (1916).
The requirement for uncompensated road labor was held not to violate the federal thirteenth amendment’s proscription against slavery and involuntary servitude, on the theory that road maintenance work was one of the traditional duties an individual owes to the state “such as services in the *777army, militia, on the jury, etc.” Butler v. Perry, 240 US 328, 333, 36 S Ct 258, 60 L Ed 672 (1916).3
Some states also required road workers to provide use of their teams and wagons, as well as feed for their horses. Challenges arose to the state’s appropriation of this private property. Toone v. The State, 178 Ala 70, 59 So 665 (1912), considered the propriety of the state’s demanding labor and use of teams, wagons and tools for road work. The court found that the requirement to labor on the roads without compensation was a duty “like unto that enjoined upon citizens to serve in person in the militia, etc., and seems to be a mere personal obligation due from the subject, and does not entail upon him the duty of furnishing his property in connection with his personal service. * * *” 178 Ala at 74. However, the obligation to furnish personal property for use in the endeavor did not follow from the duty to provide services. The court stated:
“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. Section 23 of the [Alabama] Constitution, among other things, says: ‘But private property shall not be taken for or applied to public use, unless just compensation be first made therefor.’ It may be true, that the taking of the property under the act would be for only a few days; but this would nevertheless, be a taking or a compulsion to produce under penalty for a default.” 178 Ala at 74.
The Supreme Court of Tennessee was faced with the same issues in Galoway v. State, 139 Tenn 484, 202 SW 76 (1917). By statute in Tennessee a person not otherwise exempt was required to furnish, in addition to his own labor, a wagon and team, if he owned one, for road work for a fixed number of days per year. The person was also required to furnish feed for his team. The court considered Toone v. The *778State and its prohibition on using animals and implements for road work without compensation and was not satisfied. The court found a quote from Blackstone which indicated that the traditional road work duty included the requirement that persons obliged to work bring their teams with them.4 The court concluded from this that “[t]here was * * * from early times laws requiring the use of teams along with the personal services of the one subject to labor.” 139 Tenn at 488. The court’s analysis is as follows:
“[W]e are of opinion that the taking of property, such as wagons and teams, along with the labor of individuals, for such use for five days each year, being one that had been recognized from the dawn period of our law, and through many generations prior to and after the organization of our State, should not be deemed to be a ‘taking’ within the meaning of article 1, section 21, providing that no man’s property shall be taken or applied to public use, without just compensation being made therefor. It is not a substantial or serious interference with private personal property materially lessening its value, but it is an impressment of the same for temporary service in an exigency which the legislature thought sufficient to bring it into requisition, the age-long legislative recognition of which, prior to the adoption of the Constitution, argues against an intent to abrogate on the part of the makers of the fundamental law.” 139 Tenn at 493-94.
But furnishing feed required an independent analysis:
“We are of opinion that a different result must be declared in respect to the attempt to require the owner to furnish feed for his teams while in service on public roads.
“Personal property equally with realty is subject to be taken under the power of eminent domain for a public use.
“The purpose of the act was not to press the feed into a temporary use, but to work its absolute appropriation. That appropriation must result, the articles being necessarily consumable in the use. * * * There remains nothing to be returned *779to the owner. The argument of the Alabama court in the Noone Case is sound when applied to this feature of the statute.
“Appropriation of timber for the construction of bridges, or of gravel or stone for the roadbed, may not be made without compensation, as under the law of eminent domain.” (Citations omitted.) 139 Tenn at 494.5
It is no accident that both courts maintained a discrete analysis for services on the one hand and property on the other. Alabama found an historical exception to the compensation requirement for road work services but not for use of private property. Tennessee relied on an historical exception for both road work services and temporary use of private property in furtherance of this public duty. However, the existence of a public duty to provide certain services to the state without compensation provided no justification for an uncompensated permanent appropriation of property.
In the case before us, dismantling petitioner’s vehicle, subjecting it to ballistics tests and returning it in pieces exceeded a temporary use. The truck was “necessarily consumed]” in the process of testing, 139 Tenn at 494, and for this the constitution requires compensation. I have no doubt that had the state taken private property and used it up completely, as might occur, for example, were the state to appropriate chemicals it thought necessary for testing items of evidence, ORS 133.633, which is expressive of the foregoing constitutional principles, would compel the return or restoration of the chemicals, or compensation in lieu of statutory *780compliance. This statute negates the majority’s notion that the legislature expects an owner to part permanently with property without compensation, because the state needs it as evidence. Rather, the statute reflects an analysis similar to the Tennessee court’s, that when the state’s use of private property “work[s] its absolute appropriation” so that “[t]here remains nothing to be returned to the owner,” a taking has occurred for which compensation is due.
Our own cases addressing compensable takings develop this theme more fully. In Morrison v. Clackamas County, 141 Or 564, 569, 18 P2d 814 (1933), we recognized that it was “not necessary that the owner of property be actually dispossessed or that the property be completely destroyed in order to constitute a taking within the meaning of the constitutional provisions.” Two cases, Moeller v. Multnomah County, 218 Or 413, 345 P2d 813 (1959), and Tomasek v. Oregon Highway Com’n, 196 Or 120, 248 P2d 703 (1952), consider when property damage becomes so substantial as to constitute a taking of constitutional proportion. In Moeller we summarized our cases on this issue as follows: “Most of [the Oregon cases] have involved flooding and erosion, but the ‘taking’ has deprived the owner of a substantial part of his property as well as the use thereof, and usually permanently.” 218 Or at 427.
In summary, I am in agreement with the Court of Appeals that a motor vehicle is unquestionably “property” under article I, section 18. And petitioner’s property was “taken” in the constitutional sense when it was “damaged to the extent that it require[d] over $2000 in repairs * * 64 Or App 429, 435, 668 P2d 484 (1983). I would hold that when the state appropriates property as evidence in a criminal trial not for temporary use but for a “consumable” purpose which would result in altering or damaging the property so extensively that it is rendered valueless to the owner, the state must make compensation.
None of the original Declarations of Rights or early constitutions contained such a provision. This includes the Delaware, Pennsylvania, and Massachusetts Declarations of Rights, which have virtually identical provisions, as well as those of Virginia, Maryland, Carolina, Connecticut, Georgia, New York, and Vermont.
As for its antecedent, Indiana had such a provision in its original Constitution of 1816. The phrase appears in the Northwest Ordinance of 1787, which provided:
*775“No man shall be deprived of his liberty or property but by the Judgment of his peers or the law of the land, and should the public exigencies make it necessary for the common preservation to take any persons property or to demand his particular services, full compensation shall be made therefor * *
Northwest Ordinance of 1787, Article 2 (Emphasis added). Although Ohio, Illinois, Michigan, and Wisconsin, the other states carved out of the Northwest Territories did not adopt this constitutional provision, their neighbor to the south, Tennessee, did so in 1796.
Challenges to road maintenance duty arose in the state courts as well. The prevailing view seems to have been that the state can demand these services without compensation because road maintenance, like jury service, was an historic public duty for which no compensation was due. 1 Elliott, A Treatise on the Law of Roads and Streets, § 480 (3d ed 1911) and cases cited therein at notes 86 and 87.
“[The roads supervisors] are to call together all inhabitants and occupiers of lands, tenements and hereditaments within the parish, six days in every year to labor in fetching materials, or repairing the highways; all persons keeping draughts (of three horses, etc.), or occupying lands, being obliged to send a team for every draught, etc.” Blackstone, page 358, quoted in Galoway v. State, 139 Tenn 484, 488, 202 SW 76 (1917).
Under Oregon laws in effect both before and at the time of the enactment of the state constitution, “every male between twenty-one and fifty years of age, except persons who are a public charge, or too infirm to perform labor” was required to donate two days work to road maintenance or suffer a fine. General Laws of Oregon §§ 22-24 (Deady & Lane 1874). The supervisor of roads was empowered to order the laborers to furnish their teams, wagons and implements for the road work but the supervisor was required to allow a reasonable compensation for the use of such property:
“[The] supervisor may, if he deem it necessary, order any person (owning the same) to furnish a team of horses, mules or oxen, and wagon, cart, scraper or plow, to be employed or used on the roads under the direction of such supervisor, who shall allow such person a reasonable compensation for the use of such team, wagon, cart, scraper or plow, in discharge of any labor due from such person.” General Laws of Oregon § 26 (Deady & Lane 1874).
In this regard the Oregon statutes reflect a position close to Alabama’s that even a temporary use of private property for road work must be compensated.