Campbell v. Evans

54 Barb. 566, 1869 N.Y. App. Div. LEXIS 71

Opinion

By the Court,

Bacon, P. J.

The questions presented for adjudication in this case involve, among others, the constitutionality of the act of 1867, amending the act of 1862, entitled “An act to prevent animals from running at large in the public highways.” The case presented the following facts:. The action is replevin by the plaintiff as the owner of three horses. • The defendant was overseer of highways for district Ho. 8 in Elbridge, and the horses were found by him running at large opposite his premises within the said district. As overseer he seized the horses, and immediately made complaint in writing before a justice of the town, who thereupon issued a summons, as required by the act, and placed it in the hands of a constable of the town, by whom it was duly served pursuant to the directions of the act. On the return day of the summons, the plaintiff appeared for the purpose only, as the case states, of objecting to the jurisdiction of the justice, and particularly on the ground that the complaint was insufficient, which objections were overruled, and the plaintiff then withdrew from the court. The defendant then made proof of the facts which authorized the seizure, and the penalties provided by the statute were adjudged by the justice, who subsequently issued his warrant for the sale, as provided by the act, previous to the execution of which the plaintiff replevied the property and took it into his possession, where it has ever since remained.

On the trial the proceedings were all given in evidence under objections at every stage, and the general objection was taken that' the provisions of the act under which the proceedings were had were unconstitutional and void. This proposition is the last one discussed upon the points of the appellant’s counsel. If well taken it is fatal to the "defense, and will render unnecessary the examination of any other objection, and it should therefore be first disposed of. This objection professes to be founded on the decision of the Court of Appeals in Rockwell v. Nearing, (35 N. Y. Rep. 302.) That decision was wholly in reference to the act of 1862, and arose in a case where animals were seized while trespassing upon the premises of the defendant, and not while they were running at large in the highway. It' was in reference to that case that the court held the act unconstitutional, because it authorized the seizure and sale without any appropriate process, of animals found trespassing within a private inclosure. If this were just such a case, it would still be necessary for us to examine the act of 1867, and see whether the amendments, introduced into that enactment do not (as they undoubtedly were intended) obviate the defects which existed in the act of 1862, and provide' the necessary legal machinery for effectuating the object the legislature had in view, to wit, abating the nuisance of animals running at large to the annoyance of the public, and to the injury of private rights. •

But it is not expedient to anticipate such a case, which may hereafter arise, and render the examination necessary. In this case the animals were running at 'large upon the highway, and Were seized by the defendant in the strict performance of the duty enjoined upon him by the act as overseer of highways, in the district where the animals were found. Such a case is not only not within the principle decided in Rockwell v. Nearing, but is expressly excepted from it in the opinions of both the judges rendered in that case. Thus Judge Porter says: “The question whether the act is valid, so far as it relates to the seizure and sale of animals running at large in a public highway, is not involved in the present appeal. That issue might well be controlled by considerations connected with the police powers of the government.” On this point also Judge Morgan says, with equal explicitness, when speaking of the power of the legislature to authorize the seizing of -cattle running at large on the highway, that “it may properly be called the police power of the legislature which they are authorized to exercise for the 'public good;” and he adds, “that, upon the. ground that it is an injury to the public for cattle to be running at large upon the highways, the legislature may punish the owner for permitting it.” Whatever opinion, therefore, we may entertain as to the remedy provided by the statute in relation to private trespasses—concerning which I have a pretty clear conviction that the act -in its amended- form is not obnoxious to judicial condemnation—I think it beyond question that as applied to the case of animals at large in the highways, as were these of the plaintiff in this case, the provisions of the act of 1867 are clearly within the legislative' authority, as a just and beneficent exercise of the police power of the government.

The only other objection which seems to me to have much force or pertinency is, that no jurisdiction was given to the justice, by the proceedings, to hear and entertain the case. The cattle were found running at large in the highway, and the duty of the defendant, by virtue of his office, was to seize them. He is then by the act to make complaint in writing, stating the facts, to a justice of the town, who is by section 3d thereupon clothed with jurisdiction to hear and determine the "matter. If the complaint is sufficient, jurisdiction is conferred, and if any irregularities subsequently occur, they aré, I suppose, to be corrected by an appeal, for which ample provision is made by the 6th section of the act. In what respect did the complaint fail to give jurisdiction to the justice ? On the trial before the justice, the objection was merely that the complaint was insufficient, and on the trial at the circuit, that the complaint was not in accordance with the statute, and failed to confer jurisdiction, without in either case specifying any particular in which it was insufficient, or failed to comply with the statute. On the argument, the only plausible objection made is that the complaint does not state that the animals were running at large “by the sufferance or permission of the owner,” in which event, only, can the penalty provided by the act be imposed. The conclusive answer to this is, in my opinion, that the question whether the escape has been suffered or permitted by the owner, is not a jurisdictional fact. The first section of the act makes it unlawful for. animals to run at large on the highway, and imposes upon overseers the duty of seizing and taking such cattle into their possession. And this is the only fact necessary to be shown to justify the officer in making the seizure; and if the connplaint shows this, it gives the justice jurisdiction, in the very words of the statute, to hear and determine the matter. The section then goes on to provide further for'the infliction of a penalty upon the person who shall suffer or permit any animal to thus run at large; and this inquiry is one to he made on the trial. The officer cannot be supposed to know, nor is he bound to inquire, how the fact is, in the first instance. He finds the animals at large, and his duty is performed in making the seizure, irrespective of the question how they came to be at large. If it is accidental or involuntary, or was brought about by the willful act of any other person, the facts may be proved by the owner, to defeat the claim for the-penalty, and in the latter case, a remedy over against the person committing the willful act is given by the statute, as an ample penalty to be recovered by the owner. In the case of Rockwell v. Nearing, a doubt is suggested by Judge Morgan whether' the seizure Of cattle on the highway, under the act of 1862, would be lawful without showing that they were there by the negligence or permission of the owner; but he takes occasion to add that, “ there may be some question whether the burden of proof is not cast upon the owner of the cattle to show that he is without faultfin such a case.” If this was a reasonable construction of the act of 1862, as I think it was, it is entirely applicable to the act of 1867, which gives the justice- unquestionable jurisdiction upon the facts stated as they were in the complaint made to him by the 'defendant.

The return of the officer serving the summons was objected to on several grounds. One was that it did not appear by the return that Ashley, who served it, was constable, and the act provides that the service may be made by a constable, or by an elector authorized by the justice in writing to make the service. The proof of service was by the affidavit of Ashle.y, and it was proved on the trial that Ashley was a constable of the town of Elbridge. The act provides no form in which a return shall be made, and the sworn return in this case, with the proof that the same person making the service was a constable, was sufficient to authorize the justice to proceed with the case.

It was also objected to the return that it did not show that the service of the summons was in conformity with the statute. The act provides that the service of the summons shall be made by posting the same in at least six public and conspicuous places in the town, and one of said places “ shall be the nearest district school-house.” The question raised by the appellant’s counsel is, whether the statute means nearest the justice’s office, or nearest the place where the seizure was made. In respect to the return of the officer, he insists that if it means any thing, it means nearest to.road district number eight in Elbridge. And he claims that the term “nearest” in the act should be construed to refer to the justice’s office.

I think he. is wrong in both respects. The return of the officer is in the very words of the statute, and is of course to be interpreted by it. The words of the act are not as full and specific as they might have been made. The expression is elliptical; but it obviously means the district school-house nearest the place Where the seizure was made. It would be quite uncertain where the magistrate would live, or have his place of business. It might be in a remote part of the town quite distant from the residence of the owner, who, it would be most natural to infer, would not ordinarily live far from the spot where his animals would be found; and as the object of the law was to afford the means best calculated to give him.notice, that object would be more likely to be effected by a copy posted on the school-house nearest the point of seizure, than one as suggested, nearest the justice; Such, in my opinion, is the obvious meaning of the language of the act, and the return is to be understood as having conformed to it, and was therefore sufficient.

[Onondaga General Term, June 29, 1869.

It is insisted by the appellant’s counsel that the whole proceedings were void for want of a personal service .of notice,- or of some kind of process by which the plaintiff whose property was taken, could have had the opportunity to appear and contest the right to dispose in any way of his effects. It might be a sufficient answer in this case to say that the plaintiff can with no grace make that complaint, for he did get notice, and he did appear and objected to the proceedings, just as far as he elected to do so, and then voluntarily abandoned his case. But a better answer perhaps can be given in' the words of Judge Denio, in the matter of the Empire Bank, (18 N. Y. Rep. 216:) “If we hold, as we must, that the constitution does not positively require personal notice in order to constitute a legal proceeding due process of law, then it belongs to the legislature to determine in the particular instance whether the case calls for this kind of exceptional legislation, and what manner of constructive notice shall be sufficient to reasonably apprise the party proceeded against of the legal steps which were taken against him.” This the legislature have done in the act of 1867, and I see, as yet, no ground fairly to challenge their right to do so.

I think the judgment should be affirmed.

Judgment accordingly.

Bacon, Mullin, Foster and Morgan, Justices.]