dissenting:
This case originated with a criminal warrant charging that the defendant, Jim Laing, did on the named date “unlawfully possess one sheep killing dog.” Convicted in the county court, Laing appealed to the circuit court where he moved to quash the proceeding on the ground among others, that “the warrant is bad” in that it charged him with the commission of an act “which is neither prohibited nor unlawful.” The circuit court overruled the motion to quash, heard the evidence,, and without disposing of the criminal charge against the defendant, entered an order finding that the dog was a “livestock killer” and directing that it be “killed immediately.”
The majority opinion, after finding that the criminal warrant against Laing was void and should have been dismissed, nevertheless holds that the order directing the destruction of the dog is valid, because, the opinion says, the defendant owner was given a hearing as required by Code, § 29-197, as amended, providing for the confiscation of such an animal. I do not agree.
The pertinent portion of this statute reads as follows: “Any warden or other person who has reason to believe that any dog is killing livestock, or committing any of the depredations mentioned in this *686section, shall apply to a-justice, of the peace of the-county, city or town wherein such dog may be, who shall issue a warrant requiring the owner or custodian, if known, to appear before the trial justice at a time and place named therein, at which time evidence shall be heard, and if it shall appear that such a dog is a livestock killer, or has committed any of the depredations mentioned in this section,, the dog shall be ordered killed immediately, * * * .”
Thus, this statute provides an orderly procedure for the confiscation and destruction of a sheep-killing dog after due notice to its owner. In the present proceeding, without such notice to the owner,, the lower court has entered an order depriving him of the ownership of the dog and directing its destruction because the owner happened to be in court on that occasion in defense of a criminal charge against him. In effect, the court, without notice or process, converted a criminal proceeding against the owner of the dog into a civil proceeding for its forfeiture. This may be a short cut to the desired result, but, in my opinion, it does violence to the elementary requirement of due process of law.
It will not do to say that the same result would have followed had the provisions of the statute been complied with. We frequently reverse cases where the requirements of due process have not been met, although we know full well that an orderly proceeding will produce the same result. In French v. Pobst, 203 Va. 704, 127 S. E. 2d 137, this day decided, we are reversing a decree because of improper procedure although such improper procedure produced the same' result as can be accomplished by approved procedure.
' Traditionally, a sheep-killing dog is the most despicable of all animals. But if the requirement of due process may be disregarded in the case of the dog’s owner, why should it be respected in other instances?
. In .this case, when the lower court found, as it evidently did, that the criminal warrant was void, it should have sustained the defendant’s-motion'to dismiss that proceeding. If it then appeared to the court that probably the dog should be confiscated and destroyed, it should have directed the institution of a proceeding for that purpose in the manner required by the statute.
Justices Spratley and Whittle join in this dissent.