Anderson v. George

233 S.E.2d 407, 160 W. Va. 76

• Court: West Virginia Supreme Court
• Decided: March 29, 1977
• Docket: CC898
• Status: Published

Opinions

Neely, Justice:

This certified question arises out of a detinue action which Frederick E. Anderson brought in the Circuit Court of Wood County to recover possession of approximately fifty head of his cattle seized and held by James George, Deputy Sheriff and designated Humane Officer of Wood County. James George filed a Motion to Dismiss in the trial court, claiming that W. Va. Code, 7-10-4 (1923)¹ entitled him to detain Anderson’s cattle until

Anderson paid the county’s expenses in caring and providing for the cattle. All parties concede that George acted in strict accordance with W. Va. Code, 7-10-4 (1923) in this matter. After hearing legal argument on George’s Motion to Dismiss, the Circuit Court of Wood County denied the motion, filed a memorandum opinion stating that the statute is unconstitutional, and, on its own motion, certified to this Court the question whether W. Va. Code, 7-10-4 (1923) violates due process guarantees in the Constitution of the United States and the Constitution of the State of West Virginia. We hold that W. Va. Code, 7-10-4 (1923) is unconstitutional.

This case calls into question the validity of West Virginia’s summary procedures which permit animals to be seized and detained when they are found abandoned, neglected, or cruelly treated. Since summary procedures often conflict with constitutional due process guarantees, and, in turn, often lead to litigation, there has developed an extensive body of precedent to which this Court may turn for guidance in deciding this case. Several propositions relevant here seem to be well-established by case authority. “[D]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Mathews v. Eldridge, 424 U.S. 319 at 334 (1976). See also, State v. Sponaugle, 45 W. Va. 415, 32 S.E. 283 (1898) and Walter Butler Building Company v. Soto, 142 W. Va. 616, 97 S.E.2d 275 (1957). The application of due process requirements to given situations may call for careful judicial balancing of equally valid competing interests. See, Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974).

Nonetheless, regardless of flexibility, before there can be any final adjudication of his property rights, a person deprived of property must be afforded notice and a reasonable opportunity to be heard. State v. Blevins, 131 W. Va. 350 at 361, 48 S.E.2d 174 at 182 (1948). Such hearing may be held before or after the seizure, depending on the circumstances, as mere postponement of the judicial inquiry is not a denial of due process in every situation. Phillips v. Commissioner, 283 U.S. 589, at 596-597 (1931); Ewing v. Mytinger & Casselberry, 339 U.S. 594 (1950); and Mitchell v. W. T. Grant Co. 416 U.S. 600 (1974).

It is clear that Code, 7-10-4 (1923) falls short of according even the most minimal elements of due process. Under Code, 7-10-4 (1923) a person’s livestock or other animals may be taken from him without prior notice. Such seizure occurs when the humane officer, who is a law enforcement officer, not an independent magistrate or judicial officer, determines in his sole and unfettered discretion that the animals are “abandoned, neglected, or cruelly treated.” Certainly public interest will justify seizure to prevent unnecessary cruelty to animals; yet, the line between acceptable and cruel treatment must be judicially determined in an expeditious manner.

The initial and continuing deprivation of the owner’s property interest in his animals is compounded further, because the owner becomes liable for the expenses of care and provisions for the animals while they are out of his custody. These expenses represent in themselves a significant deprivation of property, since, as any farmer can attest, a charge for keeping hungry animals fed is not always offset by the owner’s savings in having someone else provide the feed. When, for example, the farmer’s highest use of his pasture is to graze his own herd, it is not a simple matter for him to arrange a substitute use after the state impounds his herd under Code, 7-10-4 (1923). To secure payment of the expenses the statute creates a lien upon the animals. There is no provision for a pre-seizure or even an expeditious post-seizure hearing to contest the validity of the humane officer’s determination of abandonment, neglect, or cruel treatment or to contest the validity of the lien which arises perforce. This failure to provide the animals’ owner a reasonable opportunity to be heard at some stage in the proceedings is the most serious constitutional deficiency of Code, 7-10-4 (1923).

In conclusion, some comment is warranted concerning the interplay between Code, 7-10-4 (1923) and a corresponding criminal statute, W. Va. Code, 61-8-19 (1923). Code, 7-10-4 (1923) draws a distinction between owners who abandon, neglect, or cruelly treat animals and owners who willfully abandon, neglect, or cruelly treat animals. With respect to the latter group, provision is made for returning animals into their owner’s custody under bond and after boarding expenses are paid, if the owner is convicted of an offense relating to animal mistreatment; if, however, the owner is acquitted of a criminal charge relating to animal mistreatment, there is some ambiguity regarding whether the owner is liable for boarding expenses. With respect to the former group, liability for boarding expenses appears to be fixed, regardless of the outcome of any criminal prosecution; indeed, the statute apparently contemplates that there would be no criminal prosecution unless the animal mistreatment were willful.

Code, 61-8-19 (1923) adds to the confusion because will-fullness is an element of some, but not all, of the offenses enumerated therein. Thus it is possible for an owner to be charged and acquitted of a Code, 61-8-19 (1923) violation, without that acquittal’s releasing the owner from liability for boarding expenses as fixed in the first section of Code, 7-10-4 (1923), assuming the offense charged did not include the element of willfullness. It cannot be said, therefore, that a criminal prosecution affords an owner sufficient opportunity for a hearing, so as to save Code, 7-10-4 (1923) from constitutional infirmity. In any event, the link between Code, 7-10-4 (1923) and Code, 61-8-19 (1923) is a tenuous one at best, in view of the discretion vested in prosecutors to refrain from bringing criminal charges in every case.

In view of all of the foregoing this Court holds that the Circuit Court of Wood County acted properly in denying defendant George’s Motion to Dismiss, on the ground that the statute relied upon by George in his motion, Code, 7-10-4 (1923), is unconstitutional.²

Rulings on certified question affirmed.

1 Code, 7-10-4 (1923) reads as follows:

“Such officers shall take charge of any animal found abandoned, neglected, or cruelly treated, and shall thereupon give notice thereof to the owner, if known, and shall care and provide for such animal until the owner shall take charge of the same, and the expense of such care and provisions shall be a charge against the owner and a lien upon the animal, and such animal shall not be turned over to such owner until the same is paid: Provided, that if it shall appear to such officers that the owner of such animal has willfully abandoned, neglected or cruelly treated the same, such animal shall not be returned to him until he has been acquitted of the charge, or, if convicted thereof, until he has given bond as provided in the last preceding section [§7-10-3], and not then until he has fully paid all charges for the care and provisions for such animal during the time it shall have been in the possession of such humane officer.”

2 For a sample of other jurisdictions’ treatment of similar statutes, see, Jordan v. Gaines, 136 Me. 291, 8 A2d 585 (1939); Jenks v. Stump, 41 Colo. 281, 93 P. 17 (1907); and Loesch v. Koehler, 144 Ind. 278, 41 N.E. 236 (1895). For West Virginia’s response to related due process deficiencies in other portions of the Code, see, State ex rel. Payne v. Walden, 156 W. Va. 60, 190 S.E.2d 770 (1972); Shaffer v. Holbrook, 346 F. Supp. 762 (S.D. W. Va. 1972); and Straley v. Gassaway Motor Co., 359 F. Supp. 902 (S.D. W. Va. 1973).