SECTION 32.-FORFEITURE BY ADMINISTRATIVE PROCESS WILCOX v. HEMMING. (Supreme Court of Wisconsin, 1883. 58 Wis. 144, 15 N. W. 435, ORTON, J.13 This is an action of replevin, without claim of delivery, for three horses, the property of the plaintiff, taken and detained by the defendant. The defendant justifies such taking and detention by virtue of his being master or keeper of the public pound of the city of Janesville, and having authority and right under the charter and ordinances of said city to receive and detain said horses in such pound, and to sell the same, on account of their having been permitted by the plaintiff as such owner to run or be at large in one of the streets of said city in violation of such ordinances. Some questions are raised on the evidence and charge of the court to the jury, which will be first disposed of before the consideration of the important and principal question in the case, viz., the constitutionality of the ordinance in question by which the defendant claims justification, for the taking and detention of the property. * * * 5. The main and important objection to the justification of the defendant under pretended legal authority is that the ordinance under which he received, held, and sold the horses of the plaintiff is unconstitutional, as authorizing the forfeiture, condemnation, or confiscation of property without due process of law, and without compensation, etc. It is contended that before the property is sold there should be provision for an adjudication in court of the facts which would make such property liable to be thus taken and sold. What disposition is to be made by the terms of the ordinance of the proceeds of such sale is unimportant in determining the constitutionality of those provisions which authorize the restraint and sale of such property. The mischief complained of ends with the sale, for the property of the owner in such animals is thereby taken away, and it would not cure the mischief and scarcely mitigate the wrong to offer the owner the remnant of the proceeds of the sale after deducting the expenses of keeping and sale, and the fine incurred, or even the proceeds without any such deduction. The provisions of the charter of the city above cited fully authorize the receiving, keeping, and sale of such animals running at large in the public streets, and the passing of an ordinance to carry such provision into execution, so that the act of the Legislature is amenable to this objection of unconstitutionality, as well as the ordinance itself. 13 Only a portion of the opinion of Orton, J., is printed. The provisions of the charter above referred to are that such animals may be "impounded and sold to discharge the penalty for the violation of the ordinance, and the expenses of impounding and sale." Here is found the authority for prescribing a fine for such offense, as well as the impounding and sale. The right of such legislation can be found and justified only by that police power of the state to provide summary and suitable methods and proceedings to protect the public health, peace, and tranquility, and the use of the highway, which transcends private rights and the constitutional provisions for their protection. [The opinion here cites and quotes from the following cases: Com. V. Alger, 7 Cush. (Mass.) 85; Pettit v. May, 34 Wis. 666; Miles v. Chamberlain, 17 Wis. 446; Rockwell v. Nearing, 35 N. Y. 302; Roberts v. Ogle, 30 Ill. 459, 83 Am. Dec. 201; Clark v., Lewis, 35 Ill. 417; Case v. Hall, 21 Ill. 632; Friday v. Floyd, 63 Ill. 50; Kennedy v. Sowden, 1 McMul. (S. C.) 323; Crosby v. Warren, 1 Rich. Law (S. C.) 385; Shaw v. Kennedy, 4 N. C. 591; Hellen v. Noe, 25 N. C. 495; Whitfield v. Longest, 28 N. C. 268; Spitler v. Young, 63 Mo. 42; Gilchrist v. Schmidling, 12 Kan. 263; White v. Tallman, 26 N. J. Law, 67; Varden v. Mount, 78 Ky. 86, 39 Am. Rep. 208; Cotter v. Doty, 5 Ohio, 393; McKee v. McKee, 8 B. Mon. (Ky.) 433; Hart v. Mayor of Albany, 9 Wend. (N. Y.) 571, 24 Am. Dec. 165.] There are many other cases which might be cited to sustain this power given in the charter to the common council to make ordinances to restrain animals from running at large in the public streets, and to impound and sell them to pay the expenses, etc. So far the ordinance itself has not been examined. There are some decisions, it must be admitted, which hold that such legislation, as well as ordinances under it, are void as being in conflict with the constitutional provisions for the protection of property; but it is observable that in such cases this police power, the exercise of which in a summary manner is absolutely necessary for the protection of the public in the use of its highways, is scarcely alluded to. The question is of great importance, and one not without difficulty. To seize and sell, upon necessarily short notice, animals, of great value, because permitted by the owner to run at large in the street, without an adjudication of the offense in the courts, appears to be a harsh remedy. But how this summary mode of proceeding can be avoided, without surrendering the whole police power to protect the highways from such an encroachment, which destroys their use by the public for the time being, we fail to perceive. The owner will not restrain his own animals from running upon the streets. The city authorities must do so, and at once. Then such animals must be fed and cared for and kept until the owner shall pay the expenses and take them away. If he fails or refuses to do so, they must be sold. But we have already taken this view of the case, and will proceed no further with the argument in this opinion, already too long. The first section of the ordinance prohibits cattle, horses, etc., from running or being at large in any street, highway, etc. The second sec tion provides a forfeiture and fine of one dollar against the owner of the animal. The third authorizes any person so finding animals running at large to drive them to the pound, and allows 25 cents for such service for each animal. The fourth makes it the duty of the poundmaster to receive them, to pay such 25 cents to the person driving them, and to provide suitable sustenance for the animals in the pound, and allows the pound-master his costs and charges, and 50 per cent. additional to the costs. The fifth authorizes the owner to take them away on payment of the fine and charges. The sixth provides for notice of two days, to be once published in a daily or weekly newspaper, and posted at three public places in the city, of the sale to be made, after six days from the impounding, at public vendue at the pound, provided they are not released by the owner taking them away, "or [they are] taken thereout by proceedings at law." For want of bidders the sale may be adjourned by proclamation at the time, or, if they will not sell for sufficient to pay the charges and expenses, it may be again adjourned. The seventh section provides for the disposition of the proceeds of sale as follows: The pound-keeper deducts therefrom his charges of subsistence, money paid for driving, expenses of sale, and "one-half of the penalty," and the balance thereof shall be paid to the treasurer of the city. These are all of the provisions which need be noticed as being material to the main question. These regulations would seem to be reasonable and proper to effect the object sought, and are really necessary to protect the public, and, so far as possible, the rights of the owner. There is nothing in the evidence itself or the charter which forfeits or confiscates the proceeds of the sale of the property beyond the payment of the legal charges thereon. The overplus belongs to the owner, and he may obtain it at any time he chooses to do so. It cannot be presumed that it is placed in the city treasury as belonging to the city, but only for safe-keeping. It will be observed that, according to the sixth section, the owner may, at any time before the sale, take the animals away by proceedings at law, which would include the action of replevin, an action which would not lie at common law against a pound-keeper, and try in court the question of their liability to be impounded; and there is ample notice of the sale elsewhere provided, so that, although no adjudication is provided before restraint and impounding, the owner's day in court upon the question of his liability to pay the fine, and the animal's liability to be restrained, are not lost or foreclosed. There is one provision of the ordinance, however, which cannot be sustained, and that is that the pound-keeper may deduct the fine of one dollar imposed, out of the proceeds of the sale, or exact such fine before surrendering the property before sale. This is made a fine and forfeiture, and it must be enforced by action in court, as well as other fines and forfeitures under the general statute, or under sections 11 and 12 of the charter, which provides for their collection. The adjudication of this matter cannot be taken away, for it is the punishment of the owner for permitting his animals to go at large on the streets in violation of the charter and of the ordinance. But this is a very insignificant and unimportant part of the ordinance and of the provision of the charter. This is a matter in personam and a personal liability, and as punishment in some measure for the violation of the ordinance, to deter him and others from like offending, and is distinct from the main provisions of the ordinance in accordance with which the animals themselves are cared for and disposed of after removing them from the streets. We cannot think that the matter of the fine was deemed important by the Legislature to the validity of the other main provisions, or that such provisions would not have been adopted if the fine had been omitted as a deduction from the proceeds of the sale and as a charge upon the property. To that extent only the charter relating to the subject and the ordinance thereunder should be held void for unconstitutionality. In Gosselink v. Campbell, 4 Iowa, 296, the general ordinance and the charter were very similar to this in every respect, including the fine, and the court held the general ordinance valid, and that part relating to the deduction of the fine from the proceeds of the sale as a charge upon the property as invalid; and we adopt the language of that court, so well considered and especially appropriate, and as expressing a correct rule of constitutional law in such cases: "Proceedings for the abatement of the nuisance are of a more summary nature than actions, from the necessity of the case. The ordinance does not, strictly speaking, create a forfeiture; for, after paying the expenses and fine, the remainder of the proceeds of sale are paid to the owner. It is then, in effect, but the abatement of the nuisance, and as such is regular. It is sufficient for the abatement of the nuisance and the payment of the charges, but not for the enforcement of the fine." In Willis v. Legris, 45 Ill. 289, the ordinance placed the fine for the violation of the ordinance with the charges and expenses of impounding and sale, and the court said: "This provision is void as contravening that constitutional right every man has to an investigation in court when charged with an offense punishable by fine. * * * The city marshal had no right to detain the horses for the reason the penalty was not paid." We hold, therefore, that the provisions of the charter authorizing the ordinance to restrain, impound, and sell animals running at large in the streets, and the ordinance itself, so far as they relate to the taking up, impounding, and selling such animals, are valid, and that part of both the charter and the ordinance making the fine of one dollar a charge upon the property, to be paid by the owner before he can take them away, and to be deducted from the proceeds of the sale, void. It may be said incidentally, before closing this subject, that such legislation and municipal regulations providing for summary proceedings without trial, for the abatement of nuisances of a public character, involving the destruction or forfeiture of things inanimate, are not as well supported by necessity or emergency as those involving the keeping, impounding, and selling of animals requiring immediate and constant care, subsistence, and expense, and in respect to which long delay is inadmissible. Cases are numerous of the former class, in which summary proceedings, without ordinary trial for abatement, have been allowed, without a thought of any infringement of a constitutional right. * * * The judgment of the circuit court is affirmed.1 14 LAWTON et al. v. STEELE. (Supreme Court of United States, 1894. 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385.) In Error to the Supreme Court of the State of New York. This was an action at law instituted in the Supreme Court for the county of Jefferson, by the plaintiffs in error against the defendant in error, together with Edward L. Sargent and Richard U. Sherman, for the conversion of 15 hoop and fyke nets, of the alleged value of $525. Defendants Steele and Sargent interposed a general denial. Defendant Sherman pleaded that he, with three others, constituted the commissioners of fisheries of the state of New York, with power to give directions to game and fish protectors with regard to the enforcement of the game law; that defendant Steele was a game and fish protector duly appointed by the Governor of the state of New York; and that the nets sued for were taken possession of by said Steele, as such game and fish protector, upon the ground that they were maintained upon the waters of the state in violation of existing statutes for the protection of fish and game, and thereby became a public nuisance. The facts were undisputed. The nets were the property of the plaintiffs, and were taken away by the defendant Steele, and destroyed. At 14 Compare Greer v. Downey, 8 Ariz. 164, 71 Pac. 900, 61 L. R. A. 408 (1903), case of a private claim. "It remains only to consider the contention that the provision of the statute commanding the destruction of teas not exported within six months after their final rejection was unconstitutional. The importer was charged with notice of the provisions of the law, and the conditions upon which teas might be brought from abroad, with a view to their introduction into the United States for consumption. Failing to establish the right to import, because of the inferior quality of the merchandise as compared with the standard, the duty was imposed upon the importer to perform certain requirements, and to take the goods from the custody of the authorities within a period of time fixed by the statute, which was ample in duration. He was notified of the happening of the various contingencies requiring positive action on his part. The duty to take such action was enjoined upon him, and if he failed to exercise it the collector was under the obligation after the expiration of the time limit to destroy the goods. That plaintiff in error had knowledge of the various steps taken with respect to the tea, including the final rejection by the board of general appraisers, is conceded. We think the provision of the statute complained of was not wanting in due process of law." Buttfield v. Stranahan, 192 U. S. 470, 497, 24 Sup. Ct. 349, 356, 48 L. Ed. 525 (1904). |