dissenting: It is conceded that no person has a several right of fishery in the public navigable waters of the State. Collins v. Banbury, 25 N. C., 271; Skinner v. Hettrick, 73 N. C., 53. The Legislature has the right to prescribe regulations regarding the time, manner and means of fishing, etc., in such waters, including the power to prohibit the placing of nets, traps, etc., in such portion thereof as it may deem proper for the protection of the rights of the public ;■ it may declare such nets, etc., as are prohibited, or all . nets at certain places or fixed periods, public nuisances, and provide for the summary abatement, by removal thereof. Hettrick v. Page, 82 N. C., 63. It is needless to discuss the limitations upon this power because the plaintiff does not question the validity of those provisions of the statute by which it is asserted. I fully concur in the opinion of the Chief Justice in this respect. I also concur in his approval of the policy upon which the statute is based, and the end sought to be attained. I dissent from the conclusion that section 9, conferring upon the Oyster Commissioner the power to seize the nets and sell the same at public auction without notice to the owner, either personal or constructive, or any judgment of condemnation by any judicial tribunal after a hearing' or any opportunity to the owner to be heard, and the disposition of the proceeds as directed, is valid. The right to pass acts of this character is derived from the police power, which is an essential attribute of all government. Without undertaking to define this somewhat elastic term or fix its somewhat elusive limits, it is sufficient, for the purpose of this discussion, to say that it must be exercised within, and subject to, the constitutional limitations by which the life, liberty and property of the citizen is secured. In a government deriving its powers from the consent of the governed, moving within and bounded by the clearly expressed grants of a written constitution, no germ of arbitrary power is to be found or can have any existence. Each department *237of the government must find its power to act in the charter by which.it is created and by which all powers, not delegated, are reserved to the people. ' The argument that the act is valid because no provision is found in the Constitution prohibiting its passage is, I submit with great deference, but equal confidence, based upon a misconception of the nature of our government and the fundamental principle upon which it is founded. Reade, J., in Nichols v. McKee, 68 N. C., 430, says: “The theory of our State government is that all political power is vested in and derived from the people. The Constitution is their grant of powers and it is the only grant which they have made. ‘And all powers not therein delegated remain with the people.’ Article 1, section 37. This last clause will not be found in the former constitution of the State * * * It follows that it is not true, as contended for upon the argument, that the Legislature is supreme except in so far as it is expressly restrained. However that may be in other governments, or however it may have heretofore been in this State, it is plain that since the adoption of our present Constitution the Legislature, just like each of the other departments, acts under a grant of powers and cannot exceed them.” While the legislative authority is vested in the General Assembly, no judicial power is there granted. On the contrary, it is expressly prohibited to that department and vested in the judicial department. This is fundamental and never for a moment or upon any consideration to be lost sight of. Among the clearly expressed limitations upon each department of the government we find it declared: “That no person ought to be taken, imprisoned or disseized of his freehold, liberties or privileges, or outlawed or exiled or in any manner deprived of his life, liberty or property but by the law of the land.” Const., Art. I., section 17. These words, in substance, come to us from Magna Charta; of them Blaekstone says: “They protected every individual in the nation in the full enjoyment of his *238life, his liberty and his property, unless declared forfeited by the judgment of his peers or the law of the land.” Com., vol. IV., page 24. Creasy says: “The ultimate effect of this chapter was to give and to guarantee full protection for person and property to every human being that breathes English air.” Eng. Const., 151.'
The latest commentator on Magna Oharta says: “Three aspects of this prohibition may be emphasized: “(1). Judgment must precede execution,” etc. McKechnie, Magna Charta, 438. Many definitions of the term “law of the land” have been formulated. Judge Cooley is of the opinion that none are more accurate or more often quoted than that of Mr. Webster in his great argument in the Dartmouth College case. “By the law of the land is most clearly intended the general law which hears before it condemns;, which proceeds upon inquiry and reaches judgment only after trial.” This court has adopted, with approval, this definition. Parish v. Cedar Co., 133 N. C., 478. Mr. Justice Douglas in that case notes that Mr. Webster in enumerating legislative acts which fall within the condemnation of this provision, includes “acts of confiscation” and “legislative forfeitures” among the intolerable evils to be avoided. The term has been construed to be synonymous with “due process of law,” of which it is said “the essential elements are notice and opportunity to defend.” Simon v. Craft, 182 U. S., 427. While conceding these elementary principles, there appears to have been made, upon some minds, an impression that in the exercise of the police power, especially when applied to the abatement of nuisances, the Legislature is not to be controlled by them. They appear to hold that in respect to this essential and yet easily abused power, the public welfare is paramount, to the security of the citizen, which must be sacrificed upon the slightest suggestion that the public welfare demands it. It is undoubtedly true that the public welfare or “the good of the whole” is paramount, but experience has *239brought men'to see the truth that the public welfare is preserved only, when limitations are placed upon the government and those who make, declare and execute the law. The public welfare demands the punishment of crime as a means of prevention, but the same public welfare demands that trial by due process of law and conviction shall precede punishment. When such limitations are not imposed it is found that “the grim tradition” is true. .
“1 oft have heard of Lydford law,
How in the mom they hang and draw,
And sit in judgment after.”
I cannot assent to the validity of any legislative enactment depriving the citizen of his life, liberty or property, which, will not stand the test of the standard fixed by the Constitution. Discussing the limitations upon the police power, the author of the latest work on the subject says: “There has never been a civilized government which has not recognized, and practically acted upon the existence of limitations of the nature here indicated. For all governments profess to apply or make law, and the nature of law implies the idea of restraint according to intelligible principles of reason. The peculiarity of American jurisprudence and government lies in the possibility of subjecting legislation to judicial control with a view of enforcing these principles and limitations.” Freund on Police Power, page 15.
It will be observed that the value of the plaintiffs net is $60. It is a matter of which we may take notice that a large number of the people in the section of the State in which the plaintiff lives are dependent upon fishing for the support of themselves and their families. There is no suggestion that the net is, in its construction or use, otherwise than is prohibited by the statute, vicious or unlawful. It is difficult to see in what respect it is more offensive to the law or injurious to the public welfare than the mule of a farmer which is tied *240to a shade tree, or driven in a manner or at a speed prohibited by some town ordinance. While in such case the owner should not use his property in a manner prohibited by law, it is equally true that he should not, -for doing so, be deprived of it otherwise than by the law of the land. The power of the Legislature to prescribe regulations for the use of the public waters is in no respect different from its power to regulate the use of the public highway. The power in both cases comes from the same source and is subject to the same limitations. I would deem it sufficient to state the proposition and be content to rest my opinion in respect to its validity, but for the fact that a majority of my learned associates differ from me. A respectful regard for their opinion, expressed with his usual clearness and force by the Chief Justice, imposes upon me the duty of examining the reasons upon which the conclusion is based and the authorities cited to sustain them. I prefer to rest my opinion upon the provisions of the State Constitution rather than the Fourteenth Amendment. As early as 1787, and among the earliest opinions ever filed by our judges, it was held in Bayard v. Singleton, 1 N. C., 5, “That by the Constitution every citizen had undoubtedly a right to a decision of his property by a trial jury. For that if the Legislature could take away this right and require him to stand condemned in his property without a triál, it might with as much authority require his life to be taken away without the formality of any trial at all.'” In Hamilton v. Adams, 6 N. C., 161, Hall, J., says: “It is a principle never to be lost sight of, that no person should be deprived of his property or rights without notice and an opportunity of defending them. This right is guaranteed by the Constitution. Hence it is that no court will give judgment against any person unless’ such person have opportunity of showing cause against it. A judgment entered up otherwise would be a nullity.”
Daniel, J., in Robinson v. Barfield, 6 N. C., 391 (420), *241says: “The transfer of property to one individual, who is the owner, to another individual, is a judicial and not a legislative act. When the Legislature presumes to touch private property for any other than public purposes, and then only in case of necessity and rendering full compensation, it will behoove the judiciary to check its eccentric course by refusing to give any effect to such acts * * Our oath forbids us to execute them as they infringe the principles of the Constitution.”
Ruffin, C. J., in Hoke v. Henderson, 15 N. C., 1, said: “But to inflict punishments after finding the default, is to adjudge; and to do it without default is equally so, and still more indefensible. The Legislature cannot act in that character, and therefore, although this act has the forms of law, it is not one of those laws of the land by which alone a freeman can be deprived of his property. Those terms “law of the land,” do not mean merely an act of the General Assembly. If they did, every restriction upon the legislative authority would be at once abrogated * * * In reference to the infliction of punishments and divesting of the rights of property, 'it has been repeatedly held in this State, and it is believed, in every other State of the Union, that there are limitations upon the legislative power, notwithstanding those words; and that the clause itself means that such legislative acts, as profess in themselves directly to punish persons or to deprive the citizen of his property, without trial before the judicial tribunals, and a decision of the matter of right, as determined by the laws under which it is vested, according to the course made and usages of the common law as derived from our forefathers are not effectually “law’s of the land” for those purposes.
While the opinions filed do not seriously controvert these elementary principles, they hold that the plaintiff has no right to invoke them in this case and can claim no protection by virtue of them. That as to him they are pure abstractions, *242for that be and bis nets are outlawed by legislative enactment. This bolding is based upon tbe following propositions:
1. That tbe Legislature in tbe exercise of tbe police power may authorize tbe summary abatement of a public nuisance, and, if necessary to that end, direct tbe destruction of the offending property.
2. That tbe right to destroy includes tbe right to condemn and sell by summary action, without notice, or judgment of forfeiture and condemnation.
3. That such summary forfeiture and condemnation may be enforced by a ministerial officer, because it is directed to and operates upon tbe property and not as a punishment or penalty imposed upon tbe owner for violating tbe law.
4. That if tbe owner is entitled to a bearing and judicial determination of his rights, be may obtain it by resorting to tbe courts in any appropriate action, and that be is not entitled to demand that due process be provided in tbe statute.
E propose to discuss these propositions in tbe order in which they are stated. Before proceeding to do so, it will bo well to state some elementary principles which always control courts in passing upon tbe constitutionality of statutes. “We can declare an act of tbe Assembly void when it violates tbe Constitution clearly, palpably and jdainly and in such manner as to leave no doubt or hesitation on our minds.” Sharpless v. Mayor, 21 Pa. St., 147. “Tbe words of the Constitution furnish the only test to determine tbe validity of tbe statute and all arguments based on general principles outside the Constitution must be addressed to tbe people and not to us.” Ibid. While courts may not declare an act void because in their opinions it is unwise, so, on tbe contrary, they may not' strain tbe words of the grant to sustain an act because they deem it wise. While we are to keep a. watchful eye, clear mind and firm band 'upon every threatened invasion of tbe constitutional guaranties of the citizen, *243we are to accord to the several departments of the government, and those who may administer to them, the same jealous regard in that respect which we ourselves exercise. State v. Barrett, 128 N. C., 630. When an unusual or extraordinary power is asserted by the government, or unusual and extraordinary method, contrary to the procedure and course of the common law, is prescribed by which the right of the citizen, either in respect to his person or property, is invaded, every reasonable doubt must be construed against the asserted power and mode of procedure and in favor of the right of the citizen to demand that he be tried by due course of law. As in England, all language in grants are to be construed most strongly in favor of the King, so in North Carolina all such language must be construed most strongly in favor of the people — the sovereigns. With these rules for guidance, I proceed to discuss the propositions and ascertain how far they may be sustained and applied to the facts in this record.
The right to abate a private nuisance, or a public nuisance, when specially injurious to a private person is of course conceded. The extent to which a person may go in doing so, is fixed by the necessity of the occasion, taking into consideration the character of the nuisance, the means by which it is created or maintained, the imminence of the danger, 'the character and extent of the injury, etc. This right a person has in a state of nature, entirely independent of municipal law, and when he enters into \ the social-or political state, this right is not surrendered but recognized and regulated by the principles of the common law. The Legislature may, upon the same principle, authorize ministerial officers to abate public nuisances and may authorize the destruction of the offending property when necessary for the public welfare or safety. The power is based upon the same reason and controlled by the same limitations- — necessity. It is difficult and not necessary in this discussion to define or attempt to mark the limits of this power. It is sufficient to say that it is not *244arbitrary, but is within judicial control. The latest work on the police power thus states the law: “When the condition of a thing is such that it is imminently dangerous to the safety, or offensive to the morals of the community, and is incapable of being put to any lawful use by the owner, it may be treated as a nuisance per se. Actual physical destruction is in such cases not only legitimate, but sometimes the only legitimate course to be pursued. Rotten or decayed food or meat, infected bedding or clothing, mad dogs, animals affected with contagious diseases, obscene publications, counterfeit coin and imminently dangerous structures are the most conspicuous instances of nuisances per se.” Ereund on Police Power, sec. 520. There are many cases in our reports, restricting this power, not necessary to be noticed here for the double reason that the statute under discussion does not direct the destruction of the nets — nor does it declare them to be public nuisances either per se or when used in violation of its provisions. There is not the slightest suggestion that the nets are, either of themselves, or when put into the prohibited waters, public nuisances. I attach no great importance to this fact, except to show, as I shall undertake to do., that in the cases relied upon to sustain the opinion of the court, the property was, by its illegal use, declared by the statute to be a public nuisance.
The right to direct the removal of nets used in violation of law is sustained in Hettrick v. Page, 82 N. C., 65, in which Smith, C. Jsays that no unnecessary damages must be done to the property removed. Rea v. Hampton, 101 N. C., 51. No case can be found in our reports authorizing the destruction of nets. I might safely concede the right of the Legislature to direct their destruction by way of abating the nuisance, but I do not find any evidence in the record that such destruction was reasonably necessary. It is claimed that the right to destroy has been settled by the courts and from this right the power to sell without due process of law is said to *245follow. In Weller v. Snover, 42 N. J. L., 341, it was beld that a statute authorizing the destruction of a fish-basket placed in a stream prohibited by law was valid. In the statute it was expressly required that the fish warden shall first give notice in two newspapers, and the owner is given ten days within which to remove the baskets which are declared to be common nuisances. In Am. Print Works v. Lawrence, 21 N. J., 248, cited in the opinion, no question of police power or of nuisance was involved or passed upon. The plaintiff sued the defendant, Mayor of New York, charging that he caused its storehouse and the goods therein to be blown up with gun powder and destroyed. The defendant justified by alleging that a fire was raging and it became necessary to destroy plaintiff’s property to prevent its spreading, etc. The court, after defining the right of eminent domain, said: “But the right to destroy property to prevent the spread of a conflagration, rests upon other and very different grounds. It appertains to individuals, not to the State. It has no necessary connection with or dependence upon the sovereign power. It is a natural right existing independent of civil government.” The weight to be given this case as an authority is lessened by the fact that the decision was reversed by the court of Errors and Appeals, 21 N. J., 714. There were several cases growing out of a disastrous fire in New York. It will be found that the judgment of reversal was in Hale v. Lawrence, See Rep., note page 716. Without going into the facts and the able discussion of the law by the court upon the very interesting question presented, it is sufficient to say that the case does not involve or decide the principles presented in our case. In Bittenhaus v. Johnson (Wis.), 32 L. R. A., 380, the statute declared the nets in prohibited waters a public nuisance and directed their destruction. The act was upheld, relying upon Lawton v. Steele, which will be noticed later. Burroughs v. Eastman, 101 Mich., 428, was an action for an assault committed in the *246arrest of tbe plaintiff and has no bearing upon this case. The cases cited, with, the exception of Lawton v. Steele, 119 N. Y., 226, are the only ones in which the right to destroy fish nets has been sustained. In that ease nets found in the public waters are declared to be public nuisances, and their destruction authorized. Andrews, J., says: “We regard the case as very near the border line, but we think the legislation may be fairly sustained on the ground that the destruction of the nets so placed is a reasonable incident of the power of the abatement of the nuisance. The owner of the nets is deprived of his property * * * as incident' to the abatement of the nuisance * * * But the general rule undoubtedly is that the abatement must be limited by necessity, and no wanton or unnecessary injury must be committed. 3 Bl. Com., 6. It is conceivable that nets illegally set could, with the use of care, be removed without destroying them. But in view of their position, the difficulty attending their removal, the liability to injury in the process, their comparatively small value, we think the Legislature could adjudge their destruction as a reasonable means of abating the nuisance.” There is here a clear recognition of the only principle upon which the right can be sustained — necessity. incident to the abatement of the nuisance. This case was carried by writ of error, to the Supreme Court of the United States, and is reported in vol. 152, U. S. R., 133. It is claimed that the question raised by the plaintiff is settled by that decision. It is also said that plaintiff’s contention is based upon the Fourteenth Amendment, and that the* construction put upon its language by the Supreme Court of the United States, controls this court. If the premise be correct, I admit the conclusion. I am at a loss to see why it is necessary for a citizen of this State to resort to the Federal Constitution to protect him in the right to demand that his property be taken from him only by the law of the land or due process of law. I am not willing to make such concession. This right is *247guaranteed bim as a citizen of tbe State, and it is in respect to bis status as sucb and right secured to bim by the Constitution of tbe State that be prosecutes this action. Certainly any decision of tbe Supreme Court of tbe United States construing language found in both tbe State and Federal Constitutions, is entitled to tbe most weighty consideration. The Supreme Court of Ohio, in Edson v. Crangle, did not hesitate to follow its own conclusion upon this identical question, although Lawton v. Steele was pressed upon their attention. The value, therefore, of that case as an authority is dependent upon the reasoning of the opinion and the unanimity of the judges. After laying down the general principles applying to such cases, the court proceeds to say that many articles, such as dice, cards and other articles used for gambling purposes, may become nuisances by being put to illegal purposes, concluding: “It is true that this rule does not always follow from the illegal use of a harmless article.” After further discussion it is said: “It is true there aTe several cases of a contrary purport. Some of these eases, however, may be explained upon the' ground that the property seized was of considerable value.” A careful reading of the opinion impresses my mind with the conviction that the decision is to a very large extent based upon the last suggestion — the value of the property. The nets were worth $15 each. The Chief Justice wrote a strong dissenting opinion in which Justices Brewer and Field concurred. He said: “Fishing nets are in themselves articles of property entitled to the protection of the law, and I am unwilling to concede to the Legislature of a State, the power to declare them public nuisances, even when put to a use in a manner forbidden by the statute, and on that ground to justify their abatement by seizure and destruction without process, notice or the observance of any judicial form * * * It is not doubted that the abatement of a nuisance must be limited to the necessity of the occasion, and, as the illegal use of fishing *248nets would be terminated by their withdrawal from the water and the public be fully protected by their detention, the lack of necessity for the arbitrary proceedings prescribed seems to me too obvious to be ignored. Nor do I perceive that the difficulty which may attend their removal, the liability to injury in the process, and their comparatively small value, ordinarily affect the principle or tend to show their summary destruction to be reasonably essential to the suppression of their illegal use. Indeed I think the argument is to be depreciated as weakening the importance of the preservation, without impairment, in ever so slight a degree, of constitutional guaranties.” Mr. Ereund well says: “The principles which govern the forfeiture of property were departed from in the decision of the New York Court of Appeals, and the Supreme Court of the United States in the case of Lawton v. Steele * * * The chief argument relied upon was the trifling value of the property taken and the disproportionate cost of condemnation proceeding, is an inadmissible argument when constitutional rights are involved.” Without conceding that the value of the property should be considered in the decision of the case, I should not hesitate to say that if considered, it would not weigh against the plaintiff. To a fisherman on our coast, a net worth sixty dollars is not of so inconsiderable value that a court should dismiss his controversy as beneath its dignity. We know from observation that thousands of our people are dependent upon the use of property of no more value for their support — the value of the average mule is but little, if any larger, and the tools and implements of many mechanics with which they earn the support of their families, is much below sixty dollars. It is proper to say that no such suggestion found any favor with any member of this court. I notice it only because I concur with 'Mr. Ereund that it was the “chief argument relied upon” and with the Chief Justice that it weakens the preservation of constitutional guaranties. In a very able brief *249Sled in Edson v. Crangle, supra, the decision is referred to as “remarkable” and as “absolutely inconsistent with earlier decisions rendered by former judges of that court.” When I say that neither the reasoning nor the authorities cited in this ease are convincing to my mind, I am sustained by the strongly expressed dissent of the Chief Justiee and two of his associates. The right to abate nuisances, by summary destruction of the offending property, is founded upon necessity, and is confined either to those things which are nuisances per se, or in the continued existence of which the danger to the public is imminent, or which endangers public morals and is limited, as said by Chief Justice Fuller, “to the necessity of the occasion.” When destroyed pursuant to law, it is an assertion and exercise by the State of a right which the citizen has by the law of self protection. The language quoted by Mr. Justice Holce from Bishop, 1 Grim. Law, applies solely to abatement by destruction. Tie says: “If a man so uses his property that it becomes a nuisance, the nuisance is liable to be abated to the destruction, if necessary, of the property.” This is consonant with the authorities. There is not a word or suggestion to be found in the statute tending to show that, in the opinion of the Legislature, destruction of the nets was necessary as an incident to the abatement of a nuisance. The contrary is manifest from the direction to the officer to sell them. This removes them far beyond the domain upon which, alone, their destruction could be justified. Certainly if I am correct in saying that they may not be destroyed, it will be conceded that there is no possible justification for selling them without due process of law. I earnestly contend that if they come within the power of the officer to destroy, it would not follow that they eould be sold as directed by the statute.
I will discuss the second and third propositions together. The right to declare the property used in violation of law forfeited, and to sell the same, is based upon an entirely *250different principle from tbe right to destroy. Mr. Ereund says: “The power of summary abatement does not extend to property in itself harmless, but which is put to unlawful use or is otherwise kept in a condition contrary to law * * * The unlawful use may, however, be punished and the punish- ' ment may include a forfeiture of the property used to commit the unlawful act. While in many cases this would be an extreme measure, it is subject to no express constitutional restraint, except where the Constitution- provides that every penalty must be proportionate to the offense * * * Such forfeiture is not an exercise of the police power but of the judicial power, i. e., the taking of the property does not strictly subserve the public welfare, but is intended as a punishment for an unlawful act. Hence, forfeiture requires judicial proceedings, either personal notice to the owner or at least a proceeding in rem with notice by publication. Secs. 525-526. Mr. Tiederman (State & Fed. Con., 825,) says that forfeiture may be declared “as a penalty for the infraction of the law * * * But in all of these cases, the seizure and the destruction must rest upon a judgment of forfeiture procured at the close of the ordinary trial in which the owner of the property has had full opportunity to be heard in defense of his property.” In Colon v. Lisk, 153 N. Y., 188 (60 Am. St. Rep., 609), discussing a statute having a provision somewhat similar to ours, the court said: “That the forfeiture used in violation of this statute, is in effect a penalty, we have no doubt.” The power to declare a forfeiture and sell property used in violation of a statute, without notice or an opportunity to be heard or judgment of condemnation was denied by this court as early as 1816.
In Shaw v. Kennedy, 4 N. C., 591, an ordinance of the town of Eayetteville authorizing the town constable to “take up and sell all hogs found running at large in any of the streets of the town and paying one-half of the. proceeds to the town treasurer and the other half to apply to his own use” was *251held unconstitutional. Tho court, by Beawell, J., said: “The law of the land * * * allows to every person the opportunity of defending his property before it is condemned; and in no case leaves it to the mercy of a mere ministerial officer to seize it at will; which seizure is to be lawful or not, according to his own will and pleasure. The ordinance ivas therefore, on that account, unauthorized and consequently void.” That was an action of trespass against the town constable for taking up the plaintiff’s hogs. Judgment was for the plaintiff, although it appeared that the hogs were running at large in violation of the ordinance.
In Hellen v. Noe, 25 N. C., 493, the case is cited, approved and distinguished, Daniel J., saying: “But in this case the ordinance does not attempt to deprive the owner of his property ; provides for his having notice, and secures to him every right which he can claim, not inconsistent with the object of the ordinance, the prevention of mischief to the community.” In that case the officer was required to give public notice and the owner was entitled to come forward and take his property and pay the officer’s charges only, or if a sale took place the purchase money, after deducting the costs, was to be held for the owner. The same ordinance was before the court in Whitfield v. Longest, 28 N. C., 268, the only question then decided being that it applied to non-resident owners of hogs. In Rose v. Hardie, 98 N. C., 44, cited by the court, the ordinance required notice to be given by the constable “at the court house door, in the best maimer he can,” giving the ear marks, or other distinguishing marks, and if the owner called for the same within three days, prove his or her property, pay for each hog or goat the sum of one dollar as a penalty for suffering it to run at large, and also fifty cents for the marshal’s fee for impounding, and ten cents a day for keeping, he shall have his property, etc. In Broadfoot v. Fayette-ville, 121 N. C., 421, the same ordinance was before the court upon the question of its application to non-resident *252owners. Sections 2811, 2815, 2817, of The Code provide that where the stock law prevails, it shall be unlawful for any person to permit any liye stock to run at large. That any person may take up and impound any live stock running at large, etc., and demand the amount fixed by the statute for impounding and keeping such stock. Before any sales shall be made, if the owner of said stock be known to such im-pounder, he shall immediately inform such owner where his stock is impounded and he shall have two days within which to redeem his property and upon failure to do so, such im-pounder shall give twenty days’ notice of sale and shall from the proceeds pay the expenses and the balance he shall turn over to the owner, if known, and if not known to the school fund, in which case the owner shall have six months within which to call for the money.
With a single exception, I have been unable to find any statute in our Code which confers the power upon a ministerial officer to destroy the property of the citizen without due process. Section 1049-1050. Section 2500 of The Code, authorizing the killing of dogs that kill sheep, provides that the owner shall have notice and satisfactory evidence of the charge be produced before a justice of the peace. It is true that statutes and town ordinances have been sustained, empowering the destruction of dogs without a collar, and upon which the tax has not been paid. These cases are put upon the ground that they are a menace to the public safety. Some ' of the judges have also sustained the power because they were not property. The tax imposed is not a property tax, but a license for the privilege of keeping them. Sentell v. N. O. R. R., 166 U. S., 698; Mowery v. Salisbury, 82 N. C., 175. We held in Parish v. Cedar Co., 133 N. C., 478, that an act which provided that when the owner of swamp land failed to pay the taxes assessed thereon such land should be forfeited to and vested in the State without any judicial proceeding, was unconstitutional. Mr. Justice Douglas said that *253the decision was based exclusively upon the provisions of the State constitution. Bill of Rights, section 17. This case was approved in Lumber Co. v. Lumber Co., 135 N. C., 742. I am at a loss to see how the decision of this case can be reconciled with Shaw v. Kennedy, supra. An exhaustive examination of the decisions of other courts fails to disclose a single case in which the power of the Legislature to declare a forfeiture and direct a sale of property without due process is sustained. On the contrary, the decisions are uniform in the denial of any such right or power. Time and space permit the notice of only a few of the many cases in which the power is denied. In Ieck v. Anderson, 57 Cal., 251, McKee, J., said: “But the statute under consideration contained no provision whatever for determining whether the property was liable to condemnation for the forfeiture denounced against it for the criminal acts of those who had it in their possession. It merely authorized a peace officer to seize the property without warrant or process, to condemn it without proof, or the observance of any judicial forms and to destroy it without notice of any kind, or sell it upon notice posted anywhere in the county for five days. Such an enactment cannot be harmonized with those constitutional guaranties which are supposed to secure every one within the State in his rights of liberty and property.” After citing authorities, he concludes: “It follows that so much of the statute under consideration as authorized defendant to arbitrarily seize and destroy or sell the property of the plaintiff for alleged forfeiture, without judicial proceeding for its condemnation or monition or notice actual or constructive to its owner * * was unconstitutional and void.” State v. Robbins, 124 Ind., 308. In Edson v. Grangle, 62 Ohio St., 49, a statute prohibiting the placing of nets in certain public waters was under discussion. In regard'to a section substantially like section 9 of our act, Burkett, J., for the court, said: “While the seizure may be made in the first instance by *254an officer of the law doing no unnecessary damage, the confiscation must be made by the judgment of a court having-jurisdiction of the subject matter. This section gives the right of confiscation, but fails to provide a legal proceeding by which the confiscation may be adjudged, and there being-no other statute providing in like cases, it attempts to take and sell private property and place the proceeds in the public treasury without any process of law.” The statute was held unconstitutional, the opinion concluding, “Proper legal proceedings are always necessary to adjudge a forfeiture or confiscation and to permit officers to seize, sell and appropriate private property without legal proceedings under a claim of confiscation, would be inconsistent with the principles of constitutional government and would soon lead to fraud, corruption, oppression and extortion.” This case is strikingly like the one before us. The action aves by the owner for the possession of his net detained by the officer. The court held that he was entitled to recover. The case was argued upon full briefs by the- Attorney-General and other eminent counsel. The Supreme Court of Maine, in Dunn v. Burleigh, 62 Me., 24, in passing upon a statute prohibiting trespassing upon public lands and empoAvering a land agent to seize the team of the trespasser and sell the same by giving notice in neAVS-papers, etc., said: “Will any one contend that it is competent for the Legislature to jpass an act authorizing the land agent to seize the person of a trespasser upon the public lands and hang him, or imprison him for life without any other trial of his guilt than the ex parte determination of the land agent himself, and no other authority than his own personal command? Of course not. No more is it competent for the Legislature to pass an act authorizing the land agent to deprive a person of his property in such a summary mode; for what is due process of law in the one case must be equally so in the other. In the Constitution, life, liberty and property are all grouped together, and the same protection Avhieh is *255secured to one is secured to all.” Lowry v. Rainwater, 70 Mo., 152; King v. Hayes, 80 Me., 206. Osborn v. Charlevoix, 114 Mich., 655, cited in the opinion fully sustains my view and notes the very distinction for which I am contending. Montgomery, on page 668, says: “It is clear that this act permits the seizure of nets and apparatus, but only when the same are found in actual use. It 'is also plain that the warden has no right to destroy the same until ordered by the court before whom the offense is tried, and by this we understand is meant the court before whom the person offending is tried for the unlawful use for which the apparatus is seized; and it is implied that the disposition of the property ■is to be determined in that proceeding to which the offender is a necessary party and in which he has a right toNe heard.” The entire opinion is based upon this distinction — the officer may seize and remove the net, but he cannot destroy'or sell until some judicial proceeding is had or at least an opportunity be given the owner of the property to be heard.' The question involved underwent an exhaustive examination by the Supreme Court of Massachusetts in Fisher v. McGill, 11 Gray (67 Mass.), 1, in which Eufus Choate, then Attorney-General, was of counsel, and Chief Justice Shaw wrote the opinion for a unanimous court of exceptional ability. Certainly from this source we may draw sound doctrine. The Legislature for the purpose of suppressing the liquor traffic enacted a statute, containing provisions 'similar, but not so barren of. protection to the citizen as ours. The right to regulate or to prohibit the traffic was fully conceded. The only question involved was the mode of procedure, leading to condemnation of property. It is thus stated by the Chief Justice: “The question is whether the measures directed and authorized by the statute in question are so far inconsistent with the principles of justice and the established maxims of jurisprudence, intended for the security of public and private rights,' and so repugnant to the provisions of the Dee-*256laration of Rights and Constitution of the Commonwealth, that it was not within the power of the Legislature to give them the force of law and that they must therefore be held unconstitutional and void; and the court are all of the opim ion that they' are.” After noting other objections to the statute he says: “Then the property may be confiscated and destroyed without any opportunity given the true owner to be heard. But suppose the officer happens to be right, and the owner has notice, the notice is to appear forthwith. No day in court is given, no allowance made for the contingency of the owner’s absence or sickness or engagements * * * These measures seem wholly inconsistent with the right of defending one’s property and of finding a safe remedy in the laws * * Now, we can perceive no provision for the trial and proof of this offense of keeping liquors with illegal intent in any sense in which a judicial trial is understood, in which a party charged with an offense, for which his property may be taken from him and confiscated, may stand on his defense and have the presumption of innocence until proofs are adduced against him to establish the crime or misdemeanor, with which he is charged. Such a trial alone can satisfy the express provisions of the Declaration of Rights, which declares that no subject shall be * * * but by the judgment of his peers or the law of the land. These expressions have been understood from Magna Charta to the present time to mean a trial by jury in a regular course of legal and judicial proceeding.”
In Varden v. Mount, 18 Ky., 86, an ordinance authorizing the marshal of a town to seize all hogs running at large and sell them was held void, for that no provision was made for giving notice to the owner, the court saying: “This is the general rule, and it is only in extreme cases, where the preservation and repose of society or the preservation of the property rights of a large class of the community absolutely require a departure that the courts recognize any exception. *257Tbe exception can only be sustained upon 'an overruling necessity.’ ” Tbe same was held in Donovan v. The Mayor, etc., 29 Miss., 247.
In Heis v. Town Council, 6 Rich., 404, it is said: "A man’s property cannot be seized except for violation of law, and whether he has been-guilty of such violation cannot be left to police officers or constables to determine.” In Bradstreet v. Neptune Ins. Co., 3 Summer, 601, Judge Story,-referring to a proceeding in rem in which no notice is given, says: “It amounts to little more in common sense and common honesty than the sentence of the tribunal, which first punishes and then hears the party.”
In Poppen v. Holmes, 44 Ill., 360, the plaintiff’s horse had been seized while running at large in the town in violation of the ordinance authorizing a sale by the pound master thereof, if the costs, etc., were not paid. Plaintiff brought replevin. Defendant justified under the ordinance. The ordinance was declared void because no provision was made for hearing. In McConnell v. McKillip (Neb.), 65 L. R. A., 610 (1904), the statute prohibited hunting or fishing without a permit, and declared that all guns, etc., in actual use by any person hunting or fishing without such permit should be forfeited to the State. The commissioner appointed to enforce the statute was authorized to seize and sell-such gun, etc., and pay the proceeds into the school fund. The plaintiff being engaged in hunting without a license, his gun was seized by the officer. lie brought an action to recover possession of his property, alleging that the statute in so far as it authorized the seizure and sale of his property without a hearing, was void. The court by an opinion concurred in unanimously, sustained his contention assigning the same grounds upon which this dissenting opinion is based — concluding: “There is a clear and marked distinction between that species of property which can only be used for an illegal purpose and which may therefore be declared a nuisance and *258summarily abated, and that wbicb is innocent in its ordinary and proper use, and which only becomes illegal when used for an unlawful purpose. We know of no principle of. law which justifies the seizure- if innocent in itself, its forfeiture and the transfer of the right of property in the same from one person to another as a punishment for crime without the right to a hearing upon the guilt or innocence of the person charged before the forfeiture takes effect. If the property seized by a game keeper or warden were a public nuisance, such as provided for in section 1, he had the right under the duties of his office at''common law to abate the same without judicial process or proceedings; and the great weight of authorities is to the effect that such common law rights have not been abrogated or set aside by the provisions of the Constitution; but if the property is of such a nature that though innocent in itself and susceptible of a beneficial use, it has been perverted to an unlawful use, and is subject to forfeiture to the- State as a penalty, no person has the right to deprive the owner of his property summarily without affording opportunity for a hearing and without due process of law. The usual course of proceeding in such case has been either as in admiralty or revenue proceedings to seize the property, libel the same in a court of competent jurisdiction and háve it condemned by that court or as in criminal matters to arrest the offender and to provide that upon his conviction the forfeiture of the property to which the offender’s guilt has been imputed and to which the penalty attaches should take place. These have been the methods of procedure for centuries.” This is the latest discussion and decision of the question involved. See also Boggs v. Comm., 76 Va., 989; Colon v. Lisk, supra.
Walker, J., in Dorman v. State, 34 Ala., 116, said: “If life, liberty and property could be taken away by the direct operation of a statute, the enjoyment of these rights would depend upon the will and caprice of the Legislature and the *259provision would be a mere nullity. Thus construed the Constitution would read ‘no person shall be deprived of his life, _ liberty or property unless the Legislature pass a law to do so.’ ” The doctrine is well stated by Judge Cooley (Const. Lim., 7 Ed., 518) : “Nor can a party by his conduct so forfeit a right that it may be taken from him without judicial proceedings in which the forfeiture shall be declared in due form. Forfeitures of right and property cannot be adjudged by legislative act, and confiscations without a judicial hearing after due notice, would be void as not being due process of law.” The authorities in addition to those cited are uniform and abundant to sustain these propositions.
1. That the right to destroy property which is a public nuisance, either per se, or made so by statute, or becoming so by the manner of its use, is restricted to the necessity of the occasion, or as an incident to the abatement.
2. That the power to declare property forfeited and subject it to sale by reason of its illegal use, is judicial and not legislative. That it can only be exercised as a penalty or punishment imposed upon the owner for violating the law, and, as a necessary conclusion, the forfeiture and condemnation can only be declared and enforced after a hearing or an opportunity to the owner to be heard.
I have not found it possible, without further extending this opinion, already too long, to comment upon references in the opinion to Internal Eevenue Laws. They are not at the best a favorite field for the investigator of authorities to sustain personal or property rights. From the third proposition asserted by the court, I dissent. It is said, Why permit the plaintiff to raise the question of the validity of the statute ? He admits that he has violated its provisions: What difference does it make to him whether his net is sold according to law or in violation of law ? Assuming that the act is unconstitutional, as I have undertaken to show, the argument proves too much and destroys the right of the citizen *260in any case to demand that his life, liberty or property be taken only by “the law of the land.” It is said if he has not violated the law, he may show it — if he has, it is a matter of no concern to him that he is punished without due process of law. It is sometimes well to test the strength of a proposition by putting an extreme case. The Legislature fixes the punishment of murder, the Constitution provides that no man shall be put upon his trial for murder except by indictment by a grand jury, or convicted but by the unanimous verdict of a jury. The Legislature, deeming it a useless and expensive proceeding involving delay, etc., authorizes any sheriff or constable, upon being satisfied that a person has committed murder, to forthwith arrest and hang him. The citizen commits the crime, information is duly given, the sheriff proceeds to execute the legislative will; application is made to a judge for a writ of habeas corpus in which guilt is admitted. The sheriff finds that this court has decided that by admitting guilt, the petitioner waives or forfeits his right to be hanged, according to the expensive requirements of the law of the land, and so avers in his return to the writ. To the suggestion that the plaintiff may in this action litigate his constitutional rights, it is sufficient to say that the question is not whether in some way, but whether in the act itself or by some general law applicable to all such cases, provision is made for hearing before confiscation. In Stewart v. Palmer, 74 N. Y., 183, the same suggestion was made in regard to a revenue law- — a statute empowering a board of assessors to assess property for local improvements, without notice to the owner. Application was made for an injunction restraining the enforcement of an assessment upon the ground that no notice was required by the statute. The defendant answered that conceding plaintiff’s contention, he was not in a position to insist upon his rights because, in fact, the assessment was fair. Earle, J., said: “The constitutional validity of law is to be tested, not by what has been done *261under it, but by what may by its authority be done.” It is said in the opinion in chief, in response to the contention of the plaintiff, that before his nets are sold, he is entitled to have the fact determined by a court whether he has incurred the penalty, — “So he has, but it can be asserted in this very action * * * He has his full remedy, but it does not include a continuance of the nuisance,” etc. I am not quite sure that I comprehend the import of this language. The opinion maintains that he has no right to demand a hearing as a condition precedent to the sale of his nets — but it seems by the language quoted that such is not the conclusion reached by the court. Again it is assumed that the right of the Legislature to authorize “the prompt abatement of fishing nets at the inlets” is denied. On the contrary, I concede the right. I concede that the nets may be removed and if necessarily incident to the removal, they may be destroyed. Severe penalties by way of fine, and punishment by way of imprisonment, may be imposed. The only restriction on the power of the Legislature is that such punishment shall not be cruel and unusual. I concede further that as a part of the punishment' the nets may be sold, etc. The right to do any and all of these things otherwise than by the law of the land — due process of law, I deny. With all possible deference I must be permitted to say that my convictions in respect to the right of the citizen of this State under the Constitution are not shaken by referring to “the law as recognized even as far as India.” I have no doubt that in Turkey, Russia and many other jurisdictions in which the rights of the people come ex gratia from sovereigns ruling by some supposed Divine right, life, liberty, and property may be taken without any process othér than the edict of the sovereign. In the light of the uniform judicial expression to the contrary in this country, I must dissent from the proposition that “in the exercise of the police power the General Assembly is not restricted to indictment, but may proceed by summary process of abate-*262meat of the nuisance and imposing as a penalty tbe forfeiture or destruction (as it may deem best) of tbe article illegally used.” If tbis is tbe law, and as tbe majority of tbis court so bold it must be the law of tbis state, I am at a loss to see where tbe limitations upon tbe power of tbe Legislature have any place or virtue. If I am correct in tbis opinion, tbis case, marks an epoch in our jurisprudence and stands forth as a departure from tbe ancient landmarks made by tbe fathers for tbe protection of life, liberty and property. Tbe decision reverses not only adjudged cases in tbis court, but tbe entire conception of our system of government and rules of construction of our Constitution. I write with the utmost respect and deference, but with earnest convictions. Tbe question here is not whether tbe plaintiff shall be permitted to violate tbe law or whether the State has tbe power to prevent, by punishing him, nor is it whether a valuable resource of tbe State for feeding tbe people shall be sacrificed, but whether tbe plaintiff or any other citizen shall be deprived of bis property otherwise than by the law of tbe land. Without regard to tbe value of bis nets or tbe character of bis offense tbis question is paramount to all others. If tbe plaintiff may be deprived of bis property without due process of law, what guaranty is left that any and all other citizens may not suffer in like manner. It was only at tbe last term of tbis court that we found a corporation claiming sovereign power to destroy valuable property to meet a supposed public necessity. Brown v. Electric Co., 138 N. C., 533. At each term we are called upon to stay tbe band of power “in its eccentric course” and protect tbe citizen in bis rights. We may not safely listen to tbe suggestion that public necessity demands that we sustain doubtful power in either department of tbe government. It is not necessary to go beyond our own time or country or tbe records of tbis court to find painful reminders that, except for tbe protection of these safeguards, men would have been done to death, or imprisoned by executive *263and ministerial officers, in defiance of tbe law of the land. Sure, swift .and cheap methods of punishment appeal very strongly to a sometimes dominant sentiment. The protection of the shad fisheries of the Albemarle should be secured and the plaintiff should be compelled to obey the law, but it is neither necessary nor wise to accomplish these desirable results by “weakening the importance of the preservation in ever so slight a degree of constitutional guaranties.”