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necessary, even under the circumstances of this case, the question at once arises as to what is to be done with the food in the meantime. Is it to remain with the cold storage company, and, if so, under what security that it will not be removed? To be sure that it will not be removed during the time necessary for the hearing, which might frequently be indefinitely prolonged, some guard would probably have to be placed over the subject-matter of investigation, which would involve expense, and might not even then prove effectual. What is the emergency which would render a hearing unnecessary?

We think when the question is one regarding the destruction of food which is not fit for human use the emergency must be one which would fairly appeal to the reasonable discretion of the Legislature as to the necessity for a prior hearing, and in that case its decision would not be a subject for review by the courts. As the owner of the food or its

custodian is amply protected against the party seizing the food, who sugets subsegt

must, in a subsequent action against him, show as a fact that it was within the statute, we think that due process of law is not denied, the owner or custodian by the destruction of the food alleged to be unwholesome and unfit for human food without a preliminary hearing. The cases cited by the complainant do not run counter to those we have above referred to.

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Even if it be a fact that some value may remain for certain purposes In of value as in food that is unfit for human consumption, the right to destroy it is not, on that account, taken away. The small value that might remain in said food is a mere incident, and furnishes no defense to its destruction when it is plainly kept to be sold at some time as food. California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306-322, 26 Sup. Ct. 100, 50 L. Ed. 204-211; Gardner v. Michigan, 199 U. S. 325, 331, 26 Sup. Ct. 106, 50 L. Ed. 212, 216.

The decree of the court below is modified by striking out the ground for dismissal of the bill as being for want of jurisdiction, and, as modified, is affirmed.12

Mr. Justice BREWER dissents.

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12 See Pruden v. Love, 67 Ga. 190 (1881), notice required by statute. mayors council- this is due Notice in execution of tax distress warrants, see Cooley, Taxation, pp. 441

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(1876), quarantine; "Lovell v. Seeback,' 45 Minn. 465, 48 N. W. 23, 11 L. R. Fr. 271, 491

A. 667 (1891), removal of paupers; also 19 Opinions Attys. Gen. 706 (1890).
Collection of taxes by seizure of person, see Palmer v. McMahon, 133 U.

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S. 660, 10 Sup. Ct. 324 33 L. Ed. 772 (1890). Wpfuld as purely X process to callich Fax after the leaby of party was finally hot old establisht custom, resorted to only after other means have failed on a shong of property Quarantine in infect. dese are PolCode 2979 a. (1911). Ad may take poss" or control of the body of any living person of the corfose of any deceased person may direct stake such be deemed expedient to arrest or prevent the further spread of such 1. lipheld a breaky centerghs stand by force acluld sick with small box wo a ur.-Pol &rimaya under a resoluth ofcorincil & a statute requiry met ons if in wit of pub. safety to segregate.

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WILCOX v. HEMMING.

Sale for forud charges (Supreme Court of Wisconsin, 1883. 58 Wis. 144, 15 N. W. 435,

46 Am. Rep. 625.)

ORTON, J.13 This is an action of replevin, without claim of delivery, Hones imporuded for three horses, the property of the plaintiff, taken and detained by the for being allowed defendant. The defendant justifies such taking and detention by virtue to run at large. Of of his being master or keeper of the public pound of the city of Janessues for replevin

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ville, 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

of clanus it to keep
such owner to run or be at large in one of the streets of said city in
to sell for expenses violation of such ordinances.
prior adjudic" Some questions are raised on the evidence and charge of the court
under Charles rodes to the jury, which will be first disposed of before the consideration of
the important and principal question in the case, viz., the constitutionali-
Hree horses sold
ty of the ordinance in question by which the defendant claims justi-
fication, for the taking and detention of the property. * *

the same, on account of their having been permitted by the plaintiff as

Forgo
Olyn Stalunk fendant under pretended legal authority is that the ordinance under

5. The main and important objection to the justification of the de

which he received, held, and sold the horses of the plaintiff is uncon-
stitutional, 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 provi-
sion 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 pro-
ceeds 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 pro-
vision into execution, so that the act of the Legislature is amenable
to this objection of unconstitutionality, as well as the ordinance itself.

18 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 Police por 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 Justifie? street, without an adjudication of the offense in the courts, appears to necessity

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

in

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.

Forfeiture is limited, to costs

Can get a hearing ongns of liaby after the unpornofthe Grepleving. Stat

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

But the five cant be sustained, and that is that the pound-keeper may deduct the fine of a

be collected out of the proceeds

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the sale wo are

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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 them

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selves are cared for and disposed of after removing them from the, a separable part

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

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