concurring in dissenting opinion: It seemed to me at first that the plaintiff must fail in his action, as the seizure of the nets for the purpose of removing the obstruction to the free passage of fish and thereby abating a nuisance, was lawful, and the cost and expense of making the removal being therefore a just charge against him, the officer could hold and sell the property and apply the proceeds to their payment, even though he could not retain the surplus for the purpose of being turned into the school fund as directed by the Act of 1905, chapter 292, section 9, the Legislature not having provided for a judicial determination of the fact of forfeiture. This would be so, and I would still be of the same opinion, if the defendant had offered to surrender the nets to the plaintiff upon his paying the reasonable cost and expenses of removing them. Hellen v. Noe, 25 N. C., 493. The record shows, however, that this he did not do, but, on the contrary, when the plaintiff demanded possession of the nets, he refused to give them up and insisted on his right to hold and sell them, not only for the necessary cost and expense of their removal from the water, but also in order to apply the surplus to the purpose indicated in the statute. Plaintiff did not tender the costs and charges of such removal, it is true, but the defendant’s refusal to comply with his demand for the reason he gave and his virtual denial that plaintiff had any right whatever in the property because it had been forfeited, dispensed with the necessity of any formal *264tender by tbe latter of the amount of the cost and expense incurred by the officer in seizing and removing the nets (28 Am. & Eng. Enc. (2nd Ed.), page 7). The question is then presented, whether the officer had the right to refuse compliance with the plaintiff’s demand, for the reason that he was justified by the statute in holding the nets and selling the same, not only to pay the cost and expense of seizure, but to apply the surplus to the school fund. If he claimed too much, his plea of justification cannot be sustained. After the most careful consideration of the question thus raised and an examination of the authorities, my opinion is that the Legisj lature could not decree a forfeiture of the nets by virtue of its own enactment nor without some hind of procedure to determine the guilt of the plaintiff or the liability of his property to forfeiture. There must be some inquiry, having at least the form or semblance of judicial investigation. I therefore concur in the dissenting opinion of Justice Connor to this extent and in the conclusion he has reached, that we cannot hold the Act of 1905 to be valid throughout without denying to the plaintiff the right to be heard in defense of his property, which is clearly guaranteed by the Constitution, and without depriving him of that property contrary to the law of the land. Const., Article I., section 17. Forfeitures of rights and property cannot be adjudged by legislative acts, and confiscation without judicial hearing after due notice, is voidj as not being due process of law. Lowry v. Rainwater, 70 Mo., 152. Broad as is the police power, it is, like every other, subject to the restrictions of the organic law, State and Federal. It is paramount when the particular case falls within its scope, but the Legislature cannot conclusively establish that such is the nature of the case, and the decision of that body may, where there is a plain excess or usurpation, be reversed by the judiciary or rather nullified. This results from the constitutional provision that no man shall be deprived of his life, liberty or property without due process of *265law, wbicb would be an idle declaration of right and nugatory, if a bald recital iu an act of Assembly could oust the jurisdiction of the courts. 2 Hare’s Am. Con. Law., 772. It is the plain duty of the courts to see that the Legislature, in the exercise of its police power, keeps within established constitutional limitations. Tiedman Law of Police Power, section 135. Its power over subjects of police regulation is not unlimited or arbitrary, and it should go no farther in the destruction or confiscation of the rights and property of the citizen, while exercising this power, than is required for the attainment of the end in view. An unnecessary invasion of the rights of the citizen in such a case is an excessive exercise of the power and is unwarranted.
The question is not merely whether the nets were placed in the prohibited waters in violation of the statute, but whether the method by which the title of the plaintiff to his property was attempted to be divested and transferred to another, was without constitutional sanction. Varden v. Mount, 78 Ky., 86. It seems clear to me, that the solution of the question we have in hand, cannot be made to depend upon the bare necessity or exigency of the case arising out of the peculiar nature of the property and the facility with which it can be returned to the place in the water from which it was taken, if it should be restored to the possession of the owner. This argument could be applied to most any species of movable property and would practically nullify the provisions of the Constitution which afford protection to the citizen in the possession, use and enjoyment of his property. Besides, the premise upon which the argument is based, ignores the fact that the plaintiff, if so minded, could procure other property of a like kind and continue the obstruction of the stream, but on the contrary, it is assumed that' the confiscation of the nets and their sale will effectually abate the alleged nuisance. The sale of the nets does not necessarily put them beyond the owner’s reach. The reasoning *266will, as well, and with as much force, apply to other kinds of property as to fish nets. They cannot be replaced in the water and again be employed in their unlawful use with any more ease, or any less secrecy, than can the master return his vessel, which has been used in unlawfully taking oysters from their beds, to the place of its former depredations and continue in his illegal business, and it must be conceded that the vessel cannot be destroyed or forfeited, unless absolutely necessary to suppress the wrong. Boggs v. Com., 76 Va., 989; Colon v. Fisk, 158 N. Y., 188. The vessel is a larger object and can be better seen at its work, but if the nets are used for catching fish, which must at stated periods be taken from them, the publicity is just as great in the one case as in the other. The argument is founded upon a principle of preventive, rather than upon one of retributive or punitive justice. But if the nuisance can be abated, or the obstruction, which constitutes the nuisance, can be removed from the waters, has the State any more power to take property to prevent a repetition of the offense, without due process of law, than it has to punish the offender for the act already done? Whatever view we take of the matter, we are constantly confronted by this limitation on the power of the State, that it can exercise none which deprives the owner of his property, except to protect or promote the public interests and then only after due process, unless there is urgent necessity for the immediate destruction of the property. This necessity is not presented when the State merely seeks to prevent the repetition of an offense, except in very rare and exceptional cases not embracing this one, or when she undertakes to declare a forfeiture, for the same purpose and with the same intent as she imposes a penalty or inflicts punishment. It is to be doubted, if it should not be strenuously denied, that the Legislature can even go to the extent of authorizing the destruction of the nets, in which case the argument might be stronger and more effective, without giving the owner an *267opportunity to be heard as to the unlawful use of his property, where the necessity to destroy it does not exist. I take it that the right to summarily destroy the property of the citizen for the purpose of abating a nuisance, or in the exercise of any other police power, is confined to cases where the destruction is necessary to effect the abatement or to the full exercise of the police power, and that it does not exist, when, for instance, the nuisance can be thoroughly abated and at the same time the property unlawfully used to create it be restored to the citizen, the right itself being one which arises out of and is commensurate with the necessity and is limited by its demands.
I do not deny that the forfeiture or the destruction of property may not be declared as a penalty or as a punishment annexed to the commission of the unlawful act which constitutes the nuisance, but in such a case it must be admitted that the citizen has a clear and unquestionable right to notice and an opportunity to be heard in his defense. This proposition is too plain for argument and does not call for the citation of authorities, though the latter are abundant. Ee-ferring to this question in Fisher v. McGirr, 1 Gray, 36, Shaw, C. J., says: “Such being the character of the prosecution, in a high degree penal in its operation and consequences, it should be surrounded with all the safeguards necessary to the security of the innocent. The party should have notice of the charge of guilty purpose upon which his property is declared to be unlawfully held and in danger of being forfeited and a time and opportunity to meet the witnesses against him face to face.” The same doctrine is strongly stated by Judge Story in Bradstreet v. Ins. Co., 3 Sumner, 601. “It is a rule,” says he, “founded on the first principles of justice, that a party shall have an opportunity of being heard in his defense before his property is condemned, and that charges on which the condemnation is sought shall be specific, determinate and clear.” In Windsor v. McVeigh, *26893 U. S., 279, the court says: “The jurisdiction acquired by the seizure of the property is not to pass upon the question of forfeiture absolutely, but to pass upon that question after opportunity has been afforded to its owner, and parties interested, to appear and be heard upon the charges. To this ond, some notification of the proceedings beyond that arising from the seizure, prescribing the time within which the appearance must be made, is essential. Such notification is usually given by monition, public proclamation or a publication in some other form. The manner of the notification is immaterial, but the notification is indispensable.” In McVeigh v. U. S., 78 U. S., 259, it was said that the right to declare a forfeiture of property must be exercised only in such way as to give the owner an opportunity to appear and defend, and that this right to be heard existed even in favor of a person then within the Confederate lines, whose property was sought to be condemned in a court of the United States. “It was alleged,” says Swayne, J., for the court, “that he was in the position of an alien enemy, and hence could have no locus standi in that forum. If assailed there he could defend there. The liability and the right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice.”
The property of the citizen cannot be seized except for a violation of the law, and whether he has been guilty of such violation cannot be left to police officers or oyster inspectors to determine. Darst v. People, 51 Ill., 286. There is no more legislative power to authorize ministerial officers to perform judicial acts of this character than there is to authorize them, at their discretion, to assess a fine upon a citizen and seize his property for its payment without inquiry before a court or an opportunity of being heard in his own defense. Ibid., 287. The right of the citizen in this respect *269is strikingly illustrated by the case of Boggs v. Commissioners, 76 Va., 989, in which is the following clear statement of the principle: “It is said that the proceedings under the liquor law may be so conducted consistently with its provisions as to secure to the person whose property is seized all his constitutional rights. If this is possible that is not enough. The law must afford to the accused the means of demanding and enforcing his constitutional rights and if it authorized, a course of procedure which would deprive him of this, it is void. It is not to be left to the discretion of prosecutor or magistrates to adopt a course of procedure which may or may not be in conformity rvith the requisitions of the Constitution as they may elect.”
It may be conceded that when the necessity of the case, by reason of the situation of the property and the peculiar circumstances, requires its destruction in order to abate a nuisance, the property may be destroyed, and yet it would not justify this defendant, for no such necessity existed here, as the nuisance was fully and completely abated by the removal of the nets from the w'ater and the sale or other disposition of them afterwards by the officer could not therefore make its abatement more effectual or complete. The property of the citizen then was taken from him without notice or hearing, in a case where there was no necessity for doing so in order to accomplish the main purpose of the legislative act. In this connection the language of the court in Varden v. Mount, 78 Ky., 86, with reference to a kindred question is peculiarly appropriate: “The right to forfeit without citation and without hearing can only exist from necessity. That right in this instance should not be extended beyond impounding the hogs. • When that is done, the necessity for summary and precipitate action ceases, and judicial proceedings looking to forfeiture may then properly begin. If the ordinance had been violated; appellant may be compelled to pay the fees for impounding and keeping the hogs, but *270their payment cannot be enforced by forfeiture without judicial determination.”
The police power therefore should be exercised with due regard for private rights and the constitutional safeguards thrown around the rights of property are not to be demolished for any less reason than that the public interests imperatively demand it and no time or opportunity is afforded for their due observance. It is desirable that a way should be left open for the free passage of fish in the sounds, but the benefits to be derived therefrom must be regarded as inconsiderable in comparison with the value of the guaranties of the Constitution, which secure to the citizen his liberty and his property. A full recognition of the right of the State to adopt and vigorously enforce measures for the suppression of nuisances does not ordinarily require any sacrifice of the rights or property of the citizen, and they should, when possible, be made to harmonize with constitutional provisions, and inconsiderate legislation which disregards them should not be upheld. Summary and extreme measures should not be resorted to if, without serious detriment to the public interests, the purpose can otherwise be accomplished. Lowry v. Rainwater, supra.
This court was among the first to assert this right of the citizen to be protected in the use and enjoyment of his property, and not to be unreasonably deprived thereof. Bayard v. Singleton, 1 N. C., 5. And this case was followed in quick succession by others equally as pronounced in their assertion and vindication of the right of property to protection under the Constitution against forfeiture or any sort of condemnation, contrary to the law of the land or, what is the same thing, without due process of law. Hamilton v. Adams, 6 N. C., 161; Robinson v. Barfield, 6 N. C., 391; Hoke v. Henderson, 15 N. C., 15. In Shaw v. Kennedy, 4 N. C., 591, discussing the identical question we are now considering, the court, by Seawell, J., (in words which cannot be too often *271repeated) says: “The laws of the laud, or, in other words, those laws which do operate over the whole country without being directed to any place or particular individual, allow to every person the opportunity of defending his property before it is condemned; and in no case leave 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, therefore, on that account, was unauthorized and consequently void.” This case has been cited with approval. Sellen v. Noe, 25 N. C., 493. I am unable to perceive any substantial difference between Shaw v. Kennedy, and the ease now under review. In the former case a migratory hog had strayed into a town and was seized and held as forfeited, under the provision of an ordinance condemning him, as a nuisance, to he sold, and directing the proceeds to be applied to the payment of the cost of impounding him, and the balance to the joint use of the constable- and the town, without giving the owner any opportunity to be heard.’ This was held to be a clear violation of his constitutional right! There was no reason in that case why the hog should not have been forfeited, which does not with equal force apply to the facts of this case. One was an animate and the other is an inanimate thing, but both are property and under the protection of the same law against wrongful invasion.
If the value of the property can be considered in determining whether there is due process of law in the particular case, it should not have any weight with us in the decision of this ease, as it does not appear that the value of the nets is less than the cost and expense of removal. Indeed, the inference, if it can be drawn from what does appear, should be that it is not. But I do not think the value of the property has anything to do with the question or that it should affect the application of the principle in the least. The right of the owner is to have it judicially determined that his property has been forfeited, and this determination must necessarily *272precede condemnation for any purpose. It can be destroyed to abate the nuisance when the exigency of the situation requires it, because of the paramount right of the State to do so in promotion of the public good, and the interest of the individual will not be permitted to stand in the way. (Pri-vatum incommodum publico bono pensatúr). This is upon the ground of public policy based upon the maxim that regard is to be had to the public welfare, as the highest law, there being an implied assent on the part of every member of society that his own. individual welfare shall, in cases of necessity, yield to that of the community; and that his property shall under certain circumstances be placed in jeopardy or even sacrificed for the public good. Broom’s Legal Maxims (8th Ed.), 1. But the emergency must exist before the right can accrue to the State, and if it does not exist the owner-is not required to submit to the destruction of his property and it cannot be condemned for any purpose without a hearing. The right of the State depends upon the existence of the necessity for destruction or other summary proceeding, and not upon the value of the property, and surely the State cannot merely condemn the property by forfeiture to its own use or to any public use without a hearing, as there is no necessity for such action. The fisherman’s net may be of little intrinsic value, but if it is forfeited the loss to the owner may be far beyond its inherent worth. Whether of great or little value, it is his and cannot be taken from him even by the most powerful, or by sovereignty itself, except in accordance with the law of the land. That is the shield of the humblest as well as of the most exalted citizen. What is said by the court in Coleman v. Railroad, 138 N. C., 357, aptly and forcibly expresses this thought: “The plaintiff may be an humble individual and the damages may or may not turn out to -be slight. But in the history of English law, many important rights have been declared in similar instances of obscure complainants, and where the wrong was not of great note by reason of its effect in that particular case.”