Hackney, J.
Action and recovery by the appellee against the appellants for causing the death of two of. his horses. The case comes to this court on reserved questions of law under section 630, R. S. 1881 (section 642, R. S. 1894). The appellee denies the sufficiency of the record bécause of the general character of the notice given to the lower court of the intention of the appellants to so reserve and present such questions. The character and the sufficiency of the notice are, as a general rule, questions for the trial court, the object of the notice being to enable that court to prepare the special bill of exceptions so as to disclose, briefly and distinctly, such part of the record or proceeding as will present to the court of review the particular question involved. No doubt the character and the sufficiency of such notice may become questions for the court of review, as when the lower court has deemed the notice insufficient to comprehend all of the rulings sought to be presented, but where, as in the present case, the lower court has, pursuant to the notice, fully and correctly prepared the special bill of exceptions so as to present briefly and distinctly each question urged for reversal, there is, properly, no question as to the sufficiency of the notice. The ease of Shugart v. Miles, 125 Ind. 445, instead of supporting the appellee’s view of this question, sanctions the rule we have stated.
[280]*280The appellants sought to justify the killing by the provisions of section 334, Elliott Supp. (section 2202, R. S. 1894), which are as follows: “Any sheriff, constable, marshal, policeman or agent of any society for the prevention of cruelty to animals, may kill or cause to be killed any animal found neglected or abandoned, and which, in the opinion of three reputable citizens, is injured or diseased past recovery, or, by age, has become useless.” The court instructed the jury that the justification was not complete unless it was shown that the appellee had notice of the “seizure and the investigation,” and unless “said horses were in truth and in fact so diseased or injured as to be past recovery, or, by reason of age, were useless.” The evidence showed that the horses were in charge of a youth who was engaged in hauling brick with them for the appellee; that the appellants were officers and agents of the “Port Wayne Humane Society for the Prevention of Cruelty to Animals and Children,” and that the appellants, without notice to the appellee, procured the opinion of three reputable citizens that said horses had been neglected and abused and were injured and diseased past recovery, and had, because of their age, become useless; that with no malice and acting upon such opinion they caused said animals to be killed. As to whether said horses had been injured or diseased beyond recovery or were, by age, useless, the evidence was in conflict, and we may assume that if this was a proper issue the jury found the weight of the evidence in favor of the appellee.
It will be observed that the requirements of the instruction above quoted a.re not within the letter of the statute urged in justification of the acts complained of, and it is asserted by counsel for appellants and conceded by the counsel for the appellee, that it was the theory of the trial court that without such notice to [281]*281the owner, said statute would be unconstitutional. Argument has been made also as to whether the legislature did not intend that the statute should apply only to animals running at large and abandoned or neglected, and not as permitting one’s team to be unhitched from the wagon, where he may have left it for the moment, and,by summary proceeding, have it killed. We take it that it can matter little which interpretation is found to be correct, since upon either view the destruction of the animals is provided for without notice, actual or constructive, to the owner. By the fundamental law it is provided that no person shall be deprived of his property without due process of law. Does the statute under consideration violate this guaranty to the citizen?
The confiscation and destruction of the animals cannot be justified as a penalty for the violation of the law against cruelty to animals, as under the statutes of some states, where it is provided that, as a part of the penalty, the property employed in an unlawful trade or illegal act. may be seized and destroyed. Such statutes are those authorizing the destruction of gambling devices, intoxicating liquors, fish nets, traps, etc. In that class of cases it is not only a part of the prescribed penalty, but it is held to be a necessary element of and to rest upon a judgment of guilt and of forfeiture. Ieck v. Anderson, 57 Cal. 251; Lowry v. Rainwater, 70 Mo. 152; Greene v. James, 2 Curt. 187; State v. Robbins, 124 Ind. 308 (8 L. R. A. 488). See also State v. Miller, 48 Me. 576; State v. Snow, 3 R. I. 54; Weller v. Snover, 42 N. J. L. (13 Vroom) 341.
Though the police power may uphold statutes of that nature, the statute before us does not rest upon the exercise of that power. It does not extend the right as an element of punishment to the owner of the [282]*282animals killed and wholly omits the essential element of notice, included in the class of cases to which we have referred.
Nor can it be maintained that, as an exercise of the police power, it is a method of quarantine, since it does not make the destruction depend upon the existence of infectious or contagious disease, or other conditions affecting public health or comfort.
The forfeiture and destruction authorized by the statute is not a part of the penalty for the offense of cruelly using the animals, but it is permitted simply because the animals may be injured or diseased past recovery, or, from age, may be useless, and where the owner may have neglected or abandoned them.
In State v. Robbins, supra, this court said: “It is fundamental that no person can be deprived of any article, which is recognized by the law as property, without a judicial hearing, after due notice. No degree of misconduct, or wrong, can justify the forfeiture of the property of a citizen, except in pursuance of some judicial procedure, of which the owner shall have an opportunity to contest the ground upon which the forfeiture is claimed.” In Kuntz v. Sumption, 117 Ind. 1 (2 L. R. A. 655), it was said: “That notice is required in all cases where, indi vidual property rights are involved, and the matter is not one of pure discretion, has been again and again decided by our own and other courts. Strasser v. City of Ft. Wayne, 100 Ind. 443; Troyer v. Dyar, 102 Ind. 396 ; Jackson v. State, 103 Ind. 250; Johnson v. Lewis, 115 Ind. 490 ; Board, etc., v. Gruver, 115 Ind. 224, and cases cited.”
In Lowry v. Rainwater, supra, it is said: “Forfeitures of rights and property cannot be adjudged by legislative acts, and confiscation without a judicial [283]*283hearing after due notice would be void as not being due process of law.”
In King v. Hayes, 13 Atl. Rep. (N. C.) 882, a case involving the exact question before us, it was said: “We are of opinion that so much of the provisions of Rev. Stat. Oh.
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Hackney, J.
Action and recovery by the appellee against the appellants for causing the death of two of. his horses. The case comes to this court on reserved questions of law under section 630, R. S. 1881 (section 642, R. S. 1894). The appellee denies the sufficiency of the record bécause of the general character of the notice given to the lower court of the intention of the appellants to so reserve and present such questions. The character and the sufficiency of the notice are, as a general rule, questions for the trial court, the object of the notice being to enable that court to prepare the special bill of exceptions so as to disclose, briefly and distinctly, such part of the record or proceeding as will present to the court of review the particular question involved. No doubt the character and the sufficiency of such notice may become questions for the court of review, as when the lower court has deemed the notice insufficient to comprehend all of the rulings sought to be presented, but where, as in the present case, the lower court has, pursuant to the notice, fully and correctly prepared the special bill of exceptions so as to present briefly and distinctly each question urged for reversal, there is, properly, no question as to the sufficiency of the notice. The ease of Shugart v. Miles, 125 Ind. 445, instead of supporting the appellee’s view of this question, sanctions the rule we have stated.
[280]*280The appellants sought to justify the killing by the provisions of section 334, Elliott Supp. (section 2202, R. S. 1894), which are as follows: “Any sheriff, constable, marshal, policeman or agent of any society for the prevention of cruelty to animals, may kill or cause to be killed any animal found neglected or abandoned, and which, in the opinion of three reputable citizens, is injured or diseased past recovery, or, by age, has become useless.” The court instructed the jury that the justification was not complete unless it was shown that the appellee had notice of the “seizure and the investigation,” and unless “said horses were in truth and in fact so diseased or injured as to be past recovery, or, by reason of age, were useless.” The evidence showed that the horses were in charge of a youth who was engaged in hauling brick with them for the appellee; that the appellants were officers and agents of the “Port Wayne Humane Society for the Prevention of Cruelty to Animals and Children,” and that the appellants, without notice to the appellee, procured the opinion of three reputable citizens that said horses had been neglected and abused and were injured and diseased past recovery, and had, because of their age, become useless; that with no malice and acting upon such opinion they caused said animals to be killed. As to whether said horses had been injured or diseased beyond recovery or were, by age, useless, the evidence was in conflict, and we may assume that if this was a proper issue the jury found the weight of the evidence in favor of the appellee.
It will be observed that the requirements of the instruction above quoted a.re not within the letter of the statute urged in justification of the acts complained of, and it is asserted by counsel for appellants and conceded by the counsel for the appellee, that it was the theory of the trial court that without such notice to [281]*281the owner, said statute would be unconstitutional. Argument has been made also as to whether the legislature did not intend that the statute should apply only to animals running at large and abandoned or neglected, and not as permitting one’s team to be unhitched from the wagon, where he may have left it for the moment, and,by summary proceeding, have it killed. We take it that it can matter little which interpretation is found to be correct, since upon either view the destruction of the animals is provided for without notice, actual or constructive, to the owner. By the fundamental law it is provided that no person shall be deprived of his property without due process of law. Does the statute under consideration violate this guaranty to the citizen?
The confiscation and destruction of the animals cannot be justified as a penalty for the violation of the law against cruelty to animals, as under the statutes of some states, where it is provided that, as a part of the penalty, the property employed in an unlawful trade or illegal act. may be seized and destroyed. Such statutes are those authorizing the destruction of gambling devices, intoxicating liquors, fish nets, traps, etc. In that class of cases it is not only a part of the prescribed penalty, but it is held to be a necessary element of and to rest upon a judgment of guilt and of forfeiture. Ieck v. Anderson, 57 Cal. 251; Lowry v. Rainwater, 70 Mo. 152; Greene v. James, 2 Curt. 187; State v. Robbins, 124 Ind. 308 (8 L. R. A. 488). See also State v. Miller, 48 Me. 576; State v. Snow, 3 R. I. 54; Weller v. Snover, 42 N. J. L. (13 Vroom) 341.
Though the police power may uphold statutes of that nature, the statute before us does not rest upon the exercise of that power. It does not extend the right as an element of punishment to the owner of the [282]*282animals killed and wholly omits the essential element of notice, included in the class of cases to which we have referred.
Nor can it be maintained that, as an exercise of the police power, it is a method of quarantine, since it does not make the destruction depend upon the existence of infectious or contagious disease, or other conditions affecting public health or comfort.
The forfeiture and destruction authorized by the statute is not a part of the penalty for the offense of cruelly using the animals, but it is permitted simply because the animals may be injured or diseased past recovery, or, from age, may be useless, and where the owner may have neglected or abandoned them.
In State v. Robbins, supra, this court said: “It is fundamental that no person can be deprived of any article, which is recognized by the law as property, without a judicial hearing, after due notice. No degree of misconduct, or wrong, can justify the forfeiture of the property of a citizen, except in pursuance of some judicial procedure, of which the owner shall have an opportunity to contest the ground upon which the forfeiture is claimed.” In Kuntz v. Sumption, 117 Ind. 1 (2 L. R. A. 655), it was said: “That notice is required in all cases where, indi vidual property rights are involved, and the matter is not one of pure discretion, has been again and again decided by our own and other courts. Strasser v. City of Ft. Wayne, 100 Ind. 443; Troyer v. Dyar, 102 Ind. 396 ; Jackson v. State, 103 Ind. 250; Johnson v. Lewis, 115 Ind. 490 ; Board, etc., v. Gruver, 115 Ind. 224, and cases cited.”
In Lowry v. Rainwater, supra, it is said: “Forfeitures of rights and property cannot be adjudged by legislative acts, and confiscation without a judicial [283]*283hearing after due notice would be void as not being due process of law.”
In King v. Hayes, 13 Atl. Rep. (N. C.) 882, a case involving the exact question before us, it was said: “We are of opinion that so much of the provisions of Rev. Stat. Oh. 124, section 42, as allowed the defendant to condemn, conclusively fix the value of, and destroy the defendant’s horse, without any notice, actual or constructive, to the owner, in order that he might be heard, is in violation of the fundamental law, which prohibits any person being deprived of his property without due process of law. Dunn v. Burleigh, 62 Me. 24. Such have been the adjudications even in the regard to the destruction of intoxicating liquors intended for unlawful sale. Fisher v. McGirr, 1 Gray, 1; Lincoln v. Gray, 27 Vt. 355.” See also Pearson v. Zehr, 138 Ill. 48, where it is held that the slaughter by a live stock commission of animals supposed to be suffering from contagious disease does not conclude the owner from recovering if it cannot be shown that such animals actually had such disease, and it was said: “To permit the commissioners to determine, ex parte, that some of the horses had the glanders and that the others had been exposed thereto, and to hold that determination a justification for slaughtering the horses, without imposing upon the appellants the burden of establishing affirmatively the actual existence of such disease and such exposure, would not be a valid exercise of the police power of the State, but would be a palpable violation of the constitutional provision that no person shall be deprived of property without due process of law.”
A like decision was rendered in Miller v. Horton, 152 Mass. 540 (10 L. R. A. 116), and it was there held that in the absence of disease constituting a nuisance the legislature could not extend the right to slaughter [284]*284without notice and an opportunity to the owners to be heard.
In holding that the statute is invalid in permitting the destruction of the property of a citizen without due process of law, we would not be understood as holding that the question as to the existence of the statutory cause for destruction must besubmitted to a court of justice, nor that a notice, such as is required in ordinary civil or criminal proceedings in such courts, is necessary, but some notice and a hearing before some tribunal must be provided. The action of the circuit court in adding to the terms of the statute, by instructing as to the necessity for notice, it is conceded, could not remedy the omission from the statute. The finding of the jury negatived, the existence of notice, and, under the instructions given, presents the .question as to the validity of the statute without notice.
The judgment is affirmed.
Filed September 18, 1895.