Dissenting — I think the majority opinion is somewhat misleading both as to the law and the facts. In this case the trial court held that the defendant, who was the taker-up of the animals, had acquired absolute title to the property under the statute. It should also be remembered that he makes no pretense of having acquired that title under the provisions of sec. 1281. Sec. 1281 provides for the appointment of appraisers or arbitrators to fix the amount of the damage sustained by reason of the trespass, and it prescribes the procedure to be pursued for the collection of the amount thus assessed in the event the owner of the animals does not pay. Notice is given to the constable by the taker-up of the animals, and the constable thereupon levies upon the property *776and sells it at public sale in a manner very similar to that of sale on execution. But no pretense is made in this case that the respondent acquired title to these hogs through the procedure prescribed by sec. 1281. On the contrary, any title he acquired was acquired under the provisions of secs. 1279, 1280 and 1282, and those sections alone. Secs. 1279, 1280 and 1282 read as follows:
Sec. 1279: “If any hog is found trespassing, the occupant or proprietor of the premises may take up and safely keep, at the expense of the owner thereof, such hog, and hold the same until the payment of the expense and damages by the owner, and shall be allowed fifty cents per head additional for each animal so taken up.”
See. 1280: “Any person taking up a hog under this article, must immediately thereafter write out three notices in a plain, legible hand, giving a correct description thereof with the marks and brands, if any, on said hog, and the time and place of taking up, and at once post up said notices in a good and substantial manner in three conspicuous places in the precinct in which said hog was taken up.”
Sec. 1282: “If the owner or person entitled to the possession of such hog does not appear and substantiate his title thereto and pay the charges thereon within thirty days after the notice has been given, as above provided, the absolute ownership of such hog shall be vested in the person taking up such hog. Provided, he shall keep a copy of the notices posted, as prescribed by this article, which shall have indorsed thereon the date and manner of posting and the places where posted, which shall have the same force and effect as a bill of sale of such hog. ’ ’
Under the provisions- of sec. 1280, the taker-up of the animals confiscated in this case posted the following notices in three public places:
“NOTICE OF STRAY HOGS.
‘ ‘ October 4,1911.
“I have in my possession three (3) hogs, color black and white, no marks or brands visible.
*777‘ ‘ Owner please call within 30 days from date and pay damages and take hogs. T. E. WALTON.”
“County of Cassia,
State of Idaho.
“Oct. 15, 1911.
“To whom it may concern — NOTICE.
“Notice is hereby given that I, Thos. Walton, of Cassia County, Idaho, have this day taken up 36 hogs, described as follows: All black with white markings, ranging in size from sucking pigs, to full grown hogs, there are as far as I can discern, no brands or marks on the said hogs. The said hogs were taken up for trespass on the place occupied by me, known as the Tom Walton place, and for damage done to garden and stacked grain on the said place.
“The said hogs were taken up on the 15th day of October, about 4 o ’clock P. M. and the owners or owner is hereby notified that I hold the said hogs for damages they have done, as in the statutes of Idaho for such cases, made and provided.
“T. E. WALTON.”
“County of Cassia,
State of Idaho.
“Oct. 20, 1911.
“To whom it may concern — NOTICE.
“Notice is hereby given that I, Thos. Walton, of Cassia County, Idaho, have this day taken up 46 hogs, described as follows: All black with white markings, ranging in size from sucking pigs to full grown hogs, there are, as far as I can discern, no brands or marks on said hogs. The said hogs were taken up for trespass on the place occupied by me, known as the Tom Walton place, and for damage done to garden and stacked grain on the said place.
“The said hogs were taken up on the 20th day of October, about 10 o’clock A. M., and the owners or owner is hereby notified that I hold the said hogs for damages they have done as in the statutes of Idaho for such cases, made and provided. T. E. WALTON.”
*778The act from which section 1282 is taken was first adopted by the territorial legislature January 22, 1881 (1881 Sess. Laws, p. 434). Whoever drew that act, however, was evidently familiar with the provisions of the fourteenth amendment to the federal constitution and had some appreciation of its purpose and significance, and so he did not provide that the taker-up of a trespassing hog might write his own bill of sale for the hog and keep it. He evidently believed that a property right even in a trespassing hog was entitled to some semblance of protection. He provided that after a ten days’ notice the animal should be sold by the sheriff or constable of the county at public auction, and that from the proceeds of the sale he should pay the fees and expense of the sale and the charges due to the taker-up of the animal and turn the balance over to the county treasurer. It was further provided that the lawful owner of the animal might at any time within six months thereafter file his claim with the county commissioners for the proceeds paid in to the treasurer and that the same should thereupon be returned.
The distinguishing feature, however, between sec. 4 of that act and sec. 1282 here under consideration is that the act of 1881 provided for a public sale by an officer of the law, and that public notice of such sale shall be given by such officer. The act of January 22, 1881, was amended by act of February 7, 1889, and was thereby reduced to the present arbitrary, confiscatory and unconstitutional condition in which see. 1282, Rev. Codes, is now found, providing for the unceremonious forfeiture of a man’s title to property simply because it happens to stray upon another man’s possession, and that man sees fit to post a notice prepared by himself at such place as he may select and at the expiration of thirty days write himself a bill of sale. The man who drew the amendment of February 7, 1889, made swine an exception in the laws of Idaho from all other kinds of trespassing animals. So now, when that cloven-footed quadruped of ancient notoriety goes foraging beyond the protecting care of the swineherd, he at once loses his character as a domestic animal and becomes an animal ferae naturae, subject to capture by anyone on whose *779possession he may at any indiscreet moment find himself. Of course, the hog doesn’t care much about his character, — he would ordinarily just as soon be treated as a wild animal as to be treated as if he had been domesticated for centuries. His fate is generally about the same either way, but it makes a difference with his owner, and while the hog may not see the “notices posted in three public places in the precinct,” and may not know or care whether he has been dealt with by “due process of law,” still his owner and master grieves to part with him in such an informal and primitive manner. Sees. 1291 to 1301, inclusive, Rev. Codes, deal with estrays and trespassing animals generally, but those statutes provide for notice and sale by an officer and a return of such sale, but the despised hog is made an exception to this statute, and he is not accorded either a private or public sale. He is just confiscated as contraband of war.
No objection is urged against the validity of the provisions of secs. 1279 and 1280. These sections clearly authorize the occupant of the premises to take up and safely keep any trespassing hogs and give the taker-up a lien upon such animals for his damages and costs. Sec. 1280 provides a notice to be given of the taking up of such animals, and see. 1281 provides a method of appraisement or arbitration and the procedure for the collection of the amount found due. This statute only provides for the appointment of two appraisers, one to be appointed by the owner and the other by the taker-up of the animal. That procedure was pursued in this case, but the thing happened with these arbitrators that might be expected to happen with only two men comprising such a board or body, — they disagreed. After hearing the evidence, the arbitrators executed and delivered to the parties a statement, of which the following is a copy:
“Bonanza Bar, Nov. 9, 1911.'
“At a meeting for the purpose of arbitrating the question of damages claimed by T. E. Walton on hogs taken up by him, we the arbitrators are unable to fix the amount of damages. “Signed — FRED SCHIENE,
“WM. CAMPBELL.”
*780This left the parties where they started in the matter of arbitration, and the taker-up of the stock now relies for title on the provisions of sec. 1282. The latter section, which is really the objectionable section, purports to afford an alternative remedy which the taker-up may pursue in the event no appraisement or arbitration is had. This section undertakes without ceremony to vest the absolute and unqualified ownership of the property in the person taking up the same, provided no appraisement or arbitration has been had and the owner of the animals fails to pay the charges thereon within thirty days after the notice has been given, as provided by sec. 1280. It further provides that he may write his own bill of sale to the property by simply indorsing on a copy of the notice “the date and manner of posting and the places where posted. ’ ’ This statute authorizes a man who takes up another man’s property to post his notice for thirty days and thereafter write a bill of sale in favor of himself, vesting title in himself to some other man’s property. It is really difficult for me to understand why this section does not amount to taking a man’s property without due process of law and in violation of see. 12, art. 1 of the state constitution, and also in violation of the fourteenth amendment to the federal constitution. This statute, sec. 1282, makes no, pretense at giving the owner of the property a hearing, nor does it prescribe any procedure of a judicial or q-iicm-judicial nature whatever for the sale of the property or the vesting of title in the taker-up of the propertju The taker-up is allowed to assess his own damages and the owner of the trespassing animal has no remedy or method of hearing unless he gets notice in time to arbitrate. No sale is provided for, no method is prescribed for fixing the amount of damages, no hearing is given and no procedure whatever is had except that the taker-up of the property writes out three notices, each as above indicated, and posts them in three places within the precinct, and he has the selection of the places himself, and finally writes his own bill of sale to another man’s property.
*781The serious objection to these statutes is not directed against sections 1279,1280, and 1281, as taking property without due process of law, but the fatal objection is directed against sec. 1282. That is the section that divests a man of his property without due or any process of law, and in my judgment is violative of both sec. 13, art. 1 of the state constitution and of the fourteenth amendment to the federal constitution.
I have been unable to find any decision which deals with a statute such as ours that arbitrarily vests the title to a trespassing animal in the captor without any notice and sale or judicial proceeding of any kind. I 'take it that no other statute has ever attempted to authorize such a thing. The authorities, however, are abundant that deal with the constitutionality of legislative acts relating to trespassing animals and which attempt to provide some procedure for the sale of the property and the payment of damage and costs.
One of the oldest, best considered and most extensively cited cases on the subject in this country is Rockwell v. Nearing, 35 N. Y. 302. In that case a trespassing cow had been seized and sold under a trespass statute of New York adopted in 1862. The statute, among other things, authorized any person to take into his custody “any animal which may be trespassing upon his lands.” The captor of the animal was required to immediately give notice to some justice of the peace or- commissioner of highways, who was in turn required to post notices that the animal would be sold at public sale. The officer was thereupon required to sell the animal, retaining a dollar for his fees and paying half a dollar to the captor for taking up the animal together with a “reasonable compensation for keeping the animal.” The surplus was required to be paid to the owner of the animal. The supreme court of New York held that this statute did not afford due process of law, and for that reason was in conflict with the constitution. The opinion reviews the authorities at great length and treats this subject in a very interesting way. Among other things, the court says:
“In view of the foregoing exposition by the courts of the design and effect of the constitutional restriction, the legis*782lature 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.”
One of the late cases on the subject is that of Greer v. Downey, decided in 1903 by the supreme court of Arizona and reported in 8 Ariz. 164, 71 Pac. 900, 61 L. R. A. 408. This case cites and approves Rockwell v. Nearing, supra. The legislature of Arizona provided that the constable of each precinct should be the poundmaster of that precinct, and that anyone might take up a trespassing animal and deliver it to the. poundmaster, who might thereupon post notices containing a description of the animals and the amount of damages claimed and at the time fixed for the sale might sell the property, retaining his fees and paying the damage and expenses over to the captor of the trespassing animal, and that any •proceeds remaining in his hands should be paid to the county treasurer and that the same might be claimed by the owner of the animal within six months.
The supreme court of Arizona cites a large number of authorities on this question and holds the act violative of the constitution of the United States, in that it deprives the owner *783of his property without due process of law. The court concludes its consideration of the question as follows:
“The objectionable feature of the act is that, independent of any proceeding contemplated by section 3, the pound-keeper is authorized by subsequent sections of the act, without any judicial proceedings for the purpose of ascertaining either the amount of the damages or whether the animal was in fact running at large within the meaning of the act, to sell to satisfy the private claim of the land owner for damages for the trespass.
“We have no doubt that the portion of the act which authorizes a seizure and sale and a payment of damages claimed for the trespass without judicial process or proceedings other than as provided for in the act is a deprivation of property without due process of law, and as such is repugnant to the constitution. ’ ’
Between the rendition of the decision of the supreme court of New York in Rockwell v. Nearing, in 1866, and that of the supreme court of Arizona in Greer v. Downey in 1903, a great many various decisions have been announced in the several states on similar and kindred statutes. Among this multitude of authority, not a single, solitary decision can be found upholding such a statute as sec. 1282 of our Rev. Codes. In this list of authorities, and announcing views as to the unconstitutionality of such statutes much stronger and more pronounced than above expressed, are to be found Varden v. Mount, 78 Ky. 86, 39 Am. Rep. 208; Poppen v. Holmes, 44 Ill. 362, 92 Am. Dec. 186; Armstrong v. Traylor, 87 Tex. 598, 30 S. W. 440; East Kingston v. Towle, 48 N. H. 57, 97 Am. Dec. 575, 2 Am. Rep. 175; St. Louis I. M. & S. R. Co. v. Wynne, 224 U. S. 354, 32 Sup. Ct. 493, 56 L. ed. 799, 42 L. R. A., N. S., 102.
Some reliance seems to be placed on Rood v. McCargar, 49 Cal. 117, and Wigmore v. Buell, 122 Cal. 144, 54 Pac. 600, and other authorities, along the same line and to the same effect. I take it no fault may be found with the rule of law announced by these authorities. The whole difficulty lies in this.: that neither the facts nor the law considered in either *784of the California eases even approach a parallel with this case. In Rood v. McCargar, the statute was practically the same as our statute was when first enacted in 1881. It provided for a sale by the constable of the precinct at public auction after five days’ notice, and that the amount of damages should be assessed either by arbitrators appointed by the owner and taker-up of the animals, or, in case of their failure to do so, then by three disinterested persons to be appointed by the constable. It will therefore be seen at once that the statute discussed in Rood v. McCargar provided for assessing the damages by a disinterested tribunal, for notice and sale by a public officer, and all the procedure and safeguards usually understood as going to constitute due process of law.
In Wigmore v. Buell, the court was considering an act of March 7, 1878 (Stats, of 1878, p. 176). An examination of that act will disclose at once that it provided judicial procedure for assessing the damages and penalties and for attaching and levying upon the property and its sale to compensate the taker-up for such damage and costs. The court held that when these things were done the owner of the property had been accorded his day in court, and that his property had been taken by due process of law. The failure of our statute to provide a like or similar remedy is the very objection I find to it, and is the very reason which to my mind renders it obnoxious to both the state and the federal constitution.
For the foregoing reasons, I dissent from the opinion of my associates.
(November 20, 1913.)