[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The defendant claims to have acquired title in the plaintiff's cow, through his own act in seizing, selling and buying her, without judicial authority, and without the consent of the owner. She was in his door-yard; and there is no pretense of any warrant for her seizure, unless it can be justified under the provisions of the "act to prevent animals from running at large in the public highways." (Session Laws 1862, 844.)
The first section of that act declares that it shall not be lawful for any cattle, horses, sheep and swine to run at large in any public highway in this State.
The second section authorizes any person to take into his custody and possession: 1. Any animal which may be in any publichighway, opposite to his land, against the provisions of the first section. 2. Any animal which may be trespassing upon hislands.
The third section requires, that immediate notice of the seizure be given to some justice or commissioner of highways of the town, who shall post notices that the animal will be sold at a time and place to be specified, and who shall make such sale for cash. From the proceeds, in a case like this, he is to retain half a dollar for his fees, and pay half a dollar to the captor, with a reasonable compensation in addition for
keeping the animal. The surplus he is to pay to the owner, on demand and proof of title; whose claim is to be barred, unless made within one year, and the money, in that case, to be paid to the supervisor for the use of the town.
The fourth section authorizes the owner to reclaim possession of his property before sale, on making proof of title and paying the like sums to the captor and the officer, with an abatement of half the bonus, if paid three days or more before the day appointed for the sale.
The fifth section relieves him from the payment of any bonus, and entitles him to restitution on payment of compensation for keeping the animal, if the running at large or trespassing was caused by the willful act of a person other than the owner in order to effect the seizure; but it provides for no mode of ascertaining or proving the fact.
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. No such authority can be invoked in support of its provisions, so far as they relate to the seizure and confiscation of animals found on the premises of the captor, as a punishment for a private trespass.
The legislature transcends the limits of its authority, when it enacts that one citizen may take, hold and sell the property of another, without judicial process, and without notice to the owner, as a mere penalty for a supposed private injury. Such an enactment is within the terms and intent of the provision in the bill of rights, that no person shall be deprived of life, liberty or property, without due process of law. (Const., art. 1, § 6.) The import of these words is familiar to every student of constitutional law. It would scarcely be possible to find, in the records of our jurisprudence, a definition of this historic and memorable clause, in terms which do not carry with them a condemnation of the enactment under consideration.
"The words, `due process of law,' in this place," said Chief Justice BRONSON, "cannot mean less than a prosecution or
suit, instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property. It will be seen that the same measure of protection against legislative encroachment is extended to life, liberty and property; and if the latter can be taken without a forensic trial and judgment, there is no security for the others. If the legislature can take the property of A., and transfer it to B., they can take A. himself, and either shut him in prison or put him to death." In another portion of the same opinion he observes: "It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him. It cannot be done by mere legislation." (Taylor
v. Porter, 4 Hill, 146, 147.)
This court had occasion, in the case of Westervelt v.Gregg, to define the language of this provision of the Constitution. "Due process of law undoubtedly means in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights. Such an act as the legislature may, in the uncontrolled exercise of its power, think fit to pass, is in no sense the process of law designated by the Constitution." Judge DENIO, in the same case, said: "The provision was designed to protect the citizen against all mere acts of power, whether flowing from the legislative or executive branches of the government. It does not, of course, touch the right of the State to appropriate private property to public use upon making due compensation, which is fully recognized in another part of the Constitution; but no power in the State can legally confer upon one person or class of persons the property of another person or class, without their consent, whatever motives of policy may exist in favor of such transfer." (2 Kern., 209, 212.)
In the case of Wynehamer v. The People, all the judges concurred in their views, as to the import of this restriction in the bill of rights. Judge COMSTOCK, after citing the earlier authorities on this subject, proceeded to say: "It is plain, therefore, both upon principle and authority, that these constitutional safeguards, in all cases, require a judicial
investigation, not to be governed by a law specially created to take away and destroy existing rights, but confined to the question whether, under the preëxisting rule of conduct, the right in controversy has been lawfully acquired and is lawfully possessed." Judge ALEX. S. JOHNSON, after citing this and the kindred clauses in the bill of rights, described by Chancellor KENT as "part of the muniments of freemen," added some observations of striking force, and peculiarly pertinent to the question now before us. "Many rights are plainly expressed, and intended to be fundamental and inviolable in all circumstances. A law enacting that a criminal should, as a punishment for his offense, forfeit the right of trial by jury, would contravene the Constitution, and a deprivation of this right could not be allowed in the form of a punishment. Any other right, thus secured as universal and inviolable, must equally prevail against the general power of the legislature to select and prescribe punishments. These rights are secured to all; to criminals as well as others; and a punishment consisting solely in the deprivation of such a right, would be an evident infringement of the Constitution." Judge SELDEN, in remarking upon the language of this provision, said: "It must be understood to mean that no person shall be deprived, by any form of governmental action, of either life, liberty or property, except as the consequence of some judicial proceeding, appropriately and legally conducted.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The defendant claims to have acquired title in the plaintiff's cow, through his own act in seizing, selling and buying her, without judicial authority, and without the consent of the owner. She was in his door-yard; and there is no pretense of any warrant for her seizure, unless it can be justified under the provisions of the "act to prevent animals from running at large in the public highways." (Session Laws 1862, 844.)
The first section of that act declares that it shall not be lawful for any cattle, horses, sheep and swine to run at large in any public highway in this State.
The second section authorizes any person to take into his custody and possession: 1. Any animal which may be in any publichighway, opposite to his land, against the provisions of the first section. 2. Any animal which may be trespassing upon hislands.
The third section requires, that immediate notice of the seizure be given to some justice or commissioner of highways of the town, who shall post notices that the animal will be sold at a time and place to be specified, and who shall make such sale for cash. From the proceeds, in a case like this, he is to retain half a dollar for his fees, and pay half a dollar to the captor, with a reasonable compensation in addition for
keeping the animal. The surplus he is to pay to the owner, on demand and proof of title; whose claim is to be barred, unless made within one year, and the money, in that case, to be paid to the supervisor for the use of the town.
The fourth section authorizes the owner to reclaim possession of his property before sale, on making proof of title and paying the like sums to the captor and the officer, with an abatement of half the bonus, if paid three days or more before the day appointed for the sale.
The fifth section relieves him from the payment of any bonus, and entitles him to restitution on payment of compensation for keeping the animal, if the running at large or trespassing was caused by the willful act of a person other than the owner in order to effect the seizure; but it provides for no mode of ascertaining or proving the fact.
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. No such authority can be invoked in support of its provisions, so far as they relate to the seizure and confiscation of animals found on the premises of the captor, as a punishment for a private trespass.
The legislature transcends the limits of its authority, when it enacts that one citizen may take, hold and sell the property of another, without judicial process, and without notice to the owner, as a mere penalty for a supposed private injury. Such an enactment is within the terms and intent of the provision in the bill of rights, that no person shall be deprived of life, liberty or property, without due process of law. (Const., art. 1, § 6.) The import of these words is familiar to every student of constitutional law. It would scarcely be possible to find, in the records of our jurisprudence, a definition of this historic and memorable clause, in terms which do not carry with them a condemnation of the enactment under consideration.
"The words, `due process of law,' in this place," said Chief Justice BRONSON, "cannot mean less than a prosecution or
suit, instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property. It will be seen that the same measure of protection against legislative encroachment is extended to life, liberty and property; and if the latter can be taken without a forensic trial and judgment, there is no security for the others. If the legislature can take the property of A., and transfer it to B., they can take A. himself, and either shut him in prison or put him to death." In another portion of the same opinion he observes: "It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him. It cannot be done by mere legislation." (Taylor
v. Porter, 4 Hill, 146, 147.)
This court had occasion, in the case of Westervelt v.Gregg, to define the language of this provision of the Constitution. "Due process of law undoubtedly means in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights. Such an act as the legislature may, in the uncontrolled exercise of its power, think fit to pass, is in no sense the process of law designated by the Constitution." Judge DENIO, in the same case, said: "The provision was designed to protect the citizen against all mere acts of power, whether flowing from the legislative or executive branches of the government. It does not, of course, touch the right of the State to appropriate private property to public use upon making due compensation, which is fully recognized in another part of the Constitution; but no power in the State can legally confer upon one person or class of persons the property of another person or class, without their consent, whatever motives of policy may exist in favor of such transfer." (2 Kern., 209, 212.)
In the case of Wynehamer v. The People, all the judges concurred in their views, as to the import of this restriction in the bill of rights. Judge COMSTOCK, after citing the earlier authorities on this subject, proceeded to say: "It is plain, therefore, both upon principle and authority, that these constitutional safeguards, in all cases, require a judicial
investigation, not to be governed by a law specially created to take away and destroy existing rights, but confined to the question whether, under the preëxisting rule of conduct, the right in controversy has been lawfully acquired and is lawfully possessed." Judge ALEX. S. JOHNSON, after citing this and the kindred clauses in the bill of rights, described by Chancellor KENT as "part of the muniments of freemen," added some observations of striking force, and peculiarly pertinent to the question now before us. "Many rights are plainly expressed, and intended to be fundamental and inviolable in all circumstances. A law enacting that a criminal should, as a punishment for his offense, forfeit the right of trial by jury, would contravene the Constitution, and a deprivation of this right could not be allowed in the form of a punishment. Any other right, thus secured as universal and inviolable, must equally prevail against the general power of the legislature to select and prescribe punishments. These rights are secured to all; to criminals as well as others; and a punishment consisting solely in the deprivation of such a right, would be an evident infringement of the Constitution." Judge SELDEN, in remarking upon the language of this provision, said: "It must be understood to mean that no person shall be deprived, by any form of governmental action, of either life, liberty or property, except as the consequence of some judicial proceeding, appropriately and legally conducted. It follows that a law which, by its own inherent force, extinguishes rights of property, or compels their extinction, without any legal process whatever, comes directly in conflict with the Constitution." In the same case Judge THOMAS A. JOHNSON said, with equal directness and precision: "The constitutional provision referred to was intended to protect property from confiscation by legislative enactments, and from seizure, forfeiture and destruction, without a trial and conviction by the ordinary modes of judicial proceeding." (3 Kern., 395, 419, 434, 468.)
In view of the foregoing exposition by the courts of the design and effect of the constitutional restriction, the legislature has no authority either to deprive the citizen of his
property for other than public purposes, or to authorize its seizure, without process or warrant, by persons other than the owner, for the mere punishment of a private trespass. So far as the act in question relates to animals trespassing on the premises of the captor, the proceedings it authorizes have not even the mocking semblance of due process of law. The seizure may be privately made; the party making it is permitted to conceal the property on his own premises; he is protected, though the trespass was due to his own connivance or neglect; he is permitted to take what does not belong to him without notice to the owner, though that owner is near and known; he is allowed to sell, through the intervention of an officer, and without even the form of judicial proceedings, an animal in which he has no interest, by way either of title, mortgage, pledge or lien; and all to the end that he may receive compensation for detaining it without the consent of the owner, and a fee of fifty cents for his services as an informer. He levies without process, condemns without proof, and sells without execution.
It was affirmed in the court below that such a proceeding in the case of a private trespass was authorized by preëxisting laws, and that the act in question is, therefore, not within the condemnation of the Constitution. This view would be entirely correct if such had been the state of the law antecedent to the adoption of the bill of rights.
There are many examples of summary proceedings which were recognized as due process of law at the date of the Constitution, and to these the prohibition has no application; but none of them furnish any sanction to the enactment now under consideration. The process of distraining cattle damage-feasant is referred to, as an authority for the provisions embodied in this law; but it will be found, on examination, that the supposed analogy is unfounded and illusory. It is evident that the distinction between penal and remedial proceedings was overlooked in the court below, as applicable to cases of mere private trespass.
The right to distrain property damage-feasant was one which existed at common law; and it was recognized and
regulated by statute, as well in this State as in England. The proceeding was always purely remedial. The party distraining was authorized to detain the property in pledge for the payment of his damages. By seizing it at the time and on the premises where the injury was committed, he was enabled to secure redress for an actual wrong against an unknown or irresponsible owner. If the animal escaped from his premises, though he was in fresh pursuit, his right of distress was gone. The party making the seizure was required to have the damages promptly appraised by the fence-viewers, upon a view of the premises and the examination of competent witnesses. They were bound to certify the amount of damages to which he was entitled, and he was required, within twenty-four hours thereafter, to put them in the nearest pound; where the owner could find and replevy them, or reclaim them on payment of his damages and the fees of the fence-viewers and pound-master. The party distraining was bound to give notice to the owner, if known, to enable him to replevy or redeem the property before the sale. The remedy by distress was cumulative, and satisfaction obtained in this mode was a bar to an action for damages. (3 Wooddeson, 226; 3 Bac. Abr., title, Distress, F; 3 Black. Com., 6; 2 Wait's Law and Pr., 778; 2 R.S., 517; Colden
v. Eldred, 15 Johns., 789.)
The law applicable to strays is also invoked as an authority for summary confiscation, as a punishment for a private trespass. It will be found on examination that the proceedings in that class of cases are remedial in their nature, in respect to the party instituting them, as well as the owner of the property. The duties of each are defined, and the rights of each are secured by specific and appropriate safeguards. A specific description of the property, with the name and residence of the party, is required to be entered in the office of the town clerk. Ample provision is made to give time and opportunity to the owner to reclaim the property, and the compensation to be paid, if the parties disagree, is to be determined by award of the fence-viewers; and it is only in case of a failure of reimbursement by the
owner, for a service lawfully performed for his benefit, that a sale of the property is permitted. (2 R.S., 351.)
It follows from these views that the seizure and sale of the defendant's property was unlawful, and that the judgment of the court below should be reversed. We should have no difficulty in arriving at the same result if we were at liberty to assume the validity of the act of 1862, in respect to private trespasses. The party who resorts to a severe and summary remedy, unknown to the common law, is held to the duty of strict compliance with the statute. Even in the case of a distress authorized by the common law, any subsequent abuse of the power conferred renders the party liable as a trespasser ab initio. (The Six Carpenters'Case, 8 Coke, 290; Sackrider v. McDonald, 10 Johns., 253;Dumont v. Smith, 4 Denio, 320.) The defendant knew that the property he seized belonged to the plaintiff, who resided within a mile of him in the same town. Ordinary good faith required him to notify the owner that the lost cow was in his stable; and though the act of 1862 is silent in respect to such notice, it may well be questioned under the authorities whether the obligation to give it is not implied in a case where the owner is known. (Commissioners of Highways of Kinderhook v. Claw, 15 Johns., 537; Peters v. Newkirk, 6 Cow., 103; Elmendorf v.Harris, 23 Wend., 632, 633; Doubleday v. Newton, 9 How., 71.) But the defendant, by his subsequent acts, rendered himself clearly liable as a trespasser from the beginning. He procured a sale of the property by the commissioner at public auction, against the protest of the plaintiff, when the animal was not present, and without any description to the bidders of the cow they were invited to buy. Under these circumstances he was enabled to become the purchaser at a merely nominal price. The act was plainly illegal. It was a palpable abuse of authority, even if the law had been valid; and it operated by relation to render the original seizure unlawful. (Sheldon v. Loper, 15 Johns., 352; Cresson v. Stout, 17 id., 116; Hopkins v.Hopkins, 10 id., 369; Connah v. Hale, 23 Wend., 462, 470.)
The judgment of the Supreme Court and the County Court should be reversed, and that of the justice should be affirmed, with costs.