(concurring specially).
While I agree with the result reached by the opinion written by the Chief Justice, I cannot condone the judicial rewrite of the statute involved to either accommodate the construction given to the statute by the office of the attorney general or the making retroactive of Section 42-19 of Chapter 158 of the Session Laws of 1976 which does not become effective until April 1, 1977 (See § 43-8, Ch. 158, S.L.1976)
It is too well established to be open to question that this court
“will pass on the constitutionality of a law only when necessary to the determination upon the merits of a cause under consideration (citations omitted) and will first ascertain whether a construction of the statute is fairly possible by which the constitutional question may be avoided. Wright v. Vinton Branch of Mountain Trust Bank, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736, 112 A.L.R. 1455; Goetsch et al. v. Home Owners’ Loan Corporation, 67 S.D. 194, 291 N.W. 575.” Haas v. Ind. School Dist., 1943, 69 S.D. 303, 9 N.W.2d 707, 710.
However, “it is no part of our duty to determine what ought to be. We must construe the law as we find it.” Harris v. School District, 1913, 32 S.D. 544, 143 N.W. 898. Whatever construction may have been given to the statute by the attorney general, if we were to determine whether or not the law was constitutional, we must look “not to what has actually been done under the law, but what the law authorizes to be done under its provisions.” Beveridge v. Baer, 1932, 59 S.D. 563, 241 N.W. 727.
The constitutional issues need not be reached if this court were to hold that the attorney general was without authority in law to proceed as was done in the instant case. The authority to proceed is not vested in the attorney general but is vested ex*463clusively in the state’s attorney under SDCL 21-28-20.1
The provisions of SDCL 21-28-20, while authorizing an action, do not contain post-seizure procedure to accomplish due process for various interests involved in a forfeiture as did the language that was embodied in Section 5 of Chapter 95 of the Session Laws of 1968. These procedural and substantive rights were codified in the supplements to the South Dakota Compiled Laws in the 1968-69 cumulative pocket parts as SDCL 39-17-25 through 39-17-29 which read as follows:
“39-17-25. The following may be seized without warrant by a duly authorized agent of the division of criminal investigation whenever he has reasonable grounds to believe they are:
(1) A depressant, stimulant or hallucinogenic drug with respect to which a prohibited act within the meaning of § 39-17-22 has occurred;
(2) A drug that is a counterfeit;
(3) A container of such depressant, stimulant or hallucinogenic drug or of a counterfeit drug;
(4) Equipment used in manufacturing, compounding, or processing a depressant, stimulant or hallucinogenic drug with respect to which drug a prohibited act within the meaning of § 39-17-22 has occurred;
(5) Any punch, die, plate, stone, labeling, container or other thing used or designed for use in making a counterfeit drug or drugs; and
*464(6) Any conveyance being used to transport, carry or hold a depressant, stimulant or hallucinogenic drug with respect to which a prohibited act within the meaning of § 39-17-22 has occurred; or any conveyance being used to transport, carry or hold a counterfeit drug in violation of § 39-17-32. As used in this subdivision the term ‘conveyance’ includes every description of vehicle, vessel, aircraft, or other contrivance used, or capable of being used as a means of transportation on land, in water, or through the air.
“39-17-26. When an article, equipment, conveyance, or other thing is seized under § 39-17-25, the chief agent shall, within five days thereafter, cause to be filed in the circuit court in whose jurisdiction the merchandise is seized or detained a complaint for condemnation of such merchandise as herein provided. The proceedings shall be brought in the name of the state by the prosecuting attorney of the county in which the article was seized, and the complaint shall be verified by a duly authorized agent of the state in a manner required by the law of this state. The complaint shall describe the merchandise, state its location, state the name of the person, firm or corporation in actual possession, state the name of the owner, if known to the duly authorized agent of the state, allege the essential elements of the violation which is claimed to exist, and shall conclude with a prayer of due process to enforce the forfeiture. Upon the filing of such a complaint, the court shall promptly cause process to issue to the sheriff or other state law enforcement officer, commanding him to seize the goods described in the complaint and to hold the same for further order of the court. The sheriff or other state law enforcement officer shall at the time of seizure, serve a copy of said process upon the owner of said merchandise. Such service may be made personally, by mail, or by publication according to the rules governing the service of civil process in this state. At the expiration of twenty days after such seizure, if no claimant has appeared to defend said complaint, the court shall order *465the sheriff to dispose of said seized merchandise.
“39-17-27. Any person, firm or corporation having an interest in the alleged article, equipment, or other thing proceeded against, or any person, firm or corporation against whom a civil or criminal liability would exist if said merchandise is in violation of § 39-17-22 may, within twenty days following the seizure, appear and file answer or demurrer to the complaint. The answer or demurrer shall allege the interest or liability of the party filing it. In all other respects the issue shall be made up as in other civil actions.
“39-17-28. Whenever in any proceedings under §§ 39-17-25 to 39-17-30, inclusive, the condemnation of any equipment or conveyance or other thing, other than a drug, is decreed, the court shall allow the claim of any claimant, to the extent of such claimant’s interest, for remission or mitigation of such forfeiture if such claimant proves to the satisfaction of the court:
(1) that he has not committed or caused to be committed any prohibited act referred to in § 39-17-25 and has no interest in any drug referred to therein,
(2) that he has an interest in such equipment, or other thing as owner or lienor or otherwise, acquired by him in good faith, and
(3) that he at no time had any knowledge or reason to believe that such equipment, or conveyance or other thing was being or would be used in, or to facilitate, the violation of the laws of this state relating to depressant, stimulant or hallucinogenic drugs or counterfeit drugs.
“39-17-29. When a decree of condemnation is entered against the article, equipment, conveyance or other thing, court costs and fees and storage and other proper expenses, shall be awarded against the person, if *466any, intervening as claimant of the article.”
These provisions closely parallel the provisions of the Utah Code cited as U.C.A. 1953, § 58-37-13, which the minority of the Utah Supreme Court in State v. One Porsche 2-Dr., I.D. No. 911211026, T. PP10026F, etc., 1974, Utah, 526 P.2d 917, found to be more fair than the Puerto Rico Laws Ann., Tit. 24, § 2512(a)(4), which the United States Supreme Court previously found as affording the due process in Calero-Toledo v. Pearson Yacht Leasing Co., 1974, 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452.2 Such provisions being absent from our statutes leaves serious doubt in my mind as to the constitutionality of the provisions of SDCL 39-17-129 to 39-17-137.
*467On the record before us, I would affirm the summary judgment on the basis of the state’s lack of standing.
. The statutory authority for a cause of action is found in SDCL 21-28-20 as follows:
“21-28-20. Whenever, by the provisions of law, any property, real or personal, shall be forfeited to the state, or to any officer for its use, an action for the recovery of such property, alleging the ground of the forfeiture, may be brought by the state’s attorney in the circuit court of the county where the property is situated.”
. It should be observed that the provision enacted in 1968 afforded a greater protection to a lienholder than do the provisions of Senate Bill 195 enacted by the 1976 South Dakota legislative session (Chapter 250, Session Laws of 1976), which provides as follows:
“CHAPTER 250
(S.B. 195)
EXEMPTING CERTAIN CONVEYANCES FROM
FORFEITURES FOR VIOLATIONS OF DRUG LAWS
An Act
ENTITLED, An Act to amend SDCL 39-17 by adding a new section, relating to conveyances exempt from forfeiture.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
That chapter 39-17 be amended by adding thereto a new section reading as follows:
Notwithstanding subdivision (4) of § 39-17-129, no conveyance shall be forfeited under the provisions of §§ 39-17-132 to 39-17-139, inclusive, by reason of any act committed by a person other than an owner of such conveyance unless the owner knew or in the exercise of ordinary care should have known that the conveyance was being used or was intended for use to transport, or in any manner facilitate the transportation, sale, receipt, possession or concealment of any property described in subdivisions (1) and (2) of § 39-17-129.
Conveyances, as described in subdivision (4) of § 39-17-129, which are subject to a bona fide perfected security interest at the time of seizure and forfeited under the provisions of §§ 39-17-132 to 39-17-139, inclusive, shall be taken by the chief agent subject to such security interest. The chief agent shall at his option within sixty days of the forfeiture of such a conveyance:
(1) Return the vehicle to the possession of the secured party;
(2) Satisfy fully all indebtedness to the secured party secured by such conveyance; or
(3) Return the conveyance to the possession of the secured party and require such secured party to sell within sixty days of receipt of the conveyance from the chief agent at public or private sale the conveyance from the chief agent at public or private sale the conveyance and retain all proceeds necessary to satisfy fully all indebtedness of the secured party secured by the conveyance together with all reasonable costs of the sale and remit to the chief agent all excess proceeds within thirty days of the sale.”