I dissent.
I cannot agree with the construction placed by the majority on the sections of the ordinance in question or that the notice provisions contained in those sections are sufficient to afford due process of law. Subsection (b) of section 53.11 provides that an owner must be notified within one day after a dog is impounded and that the animal may be sold thereafter if notice of sale is posted for two days; under subsection (h) it is provided that no dog may be surrendered to a certified institution for experimental purposes unless it has been impounded for at least five days. The majority of this court indulges in some legerdemain in the field of judicial legisla*284tion and comes np with the startling result that these two sections must be read together: that the one day notice provision in subsection (b) applies to subsection (h). By reading them together, the majority rewrites the ordinance so that it provides that an owner has five days after receipt of actual notice in which to reclaim his dog before it is surrendered for experimental purposes. This is done, we are informed, “for the purpose of avoiding any question of invalidity arising from the lack of a specific notice requirement in subsection (h).” Using reasoning such as this, any statute could be “interpreted” in such a way as to render it constitutional.
The only notice provision applies to dogs about to be sold. There is no notice provision in the subsection providing for surrender of such dogs for experimental purposes. The sale of a dog and its surrender for experimental purposes are two entirely different things and there is no basis in logic for the statement of the majority that these two subsections must be read together and that the notice provision of the sale subsection applies to the surrender subsection. Subsection (b) deals specifically and exclusively with the sale of impounded dogs; subsection (h) deals only with the surrender of unclaimed, impounded animals' for experimental purposes. The only provision of subsection (h) of section 53.11 which could possibly be construed as providing for any notice is that which reads: “In order to give the owners of impounded animals time within which to reclaim the same, no animal shall be surrendered for such uses until it has been impounded for a period of at least five days.” But we are informed by the majority that subsection (b) which provides that the owner of the animal, if known, shall be notified within a period of one day, applies “regardless of the proposed method of disposing of the animal.” We are told that this means “actual notice” but that “We need not speculate as ■ to the possible methods by which actual notice may be given to a known owner, since we may assume that the city will proceed in a manner sufficient to meet all requirements of law.” The subsection provides that the Department of Animal Regulation “shall hold such animal for a period of one (1) day after the impounding of such animal, (hiring which time the owner of said animal, if known, shall be notified, after which time said animal may be sold. . . .” (Emphasis added.)
*285■ The notice provision in subsection (b) which is to be read into subsection (h) does not take into consideration the fact that even if the name of the registered owner appears on the license tag, that one day’s mailed notice in the city of Los Angeles is unreasonable and insufficient. It is pointed out in the briefs, that due to the present condition of the mail delivery service, it usually takes two days for ordinary mail to reach its addressee who resides within the city limits. It does not take into consideration the fact that the owner of the dog may not have a telephone; that the owner of the dog might be out of town. It does not take into consideration the length of time it might take an employee of the particular pound in question to ascertain, from the Department of Animal Regulation, the full name, address, telephone number, etc. of the owner of the dog. And, it should not be overlooked that the majority, in construing the notice required to be actual notice received by the owner, has overlooked the provision of the subsection which provides, by the use of mandatory language, that the animal shall be held for one day, during which time the owner shall be notified, and that after that time, the animal may be sold after posting notice of sale for two days. This section provides for a three day period at the most before an impounded animal may be sold. It should be noted, in this respect, that the posted notices are to be placed at (1) the public pound; (2) the city hall; (3) the central police station. There are five public pounds in Los Angeles. At which one is the notice to be posted?
I cannot understand how the one day provision in subsection (b) can possibly be construed to mean that the owner of the dog must be given actual notice which must be received and that he thereafter (subsection (h)) has five days within which to reclaim his dog. However, by such reasoning, a majority of this court, has now placed the constitutional stamp of approval upon the ordinance. In my opinion the notice provisions are insufficient to afford due process of law.
In judging what is due process of law, the sufficiency of the notice must be determined in each case from the particular circumstances of the case in hand, respect being had to the cause and object of the taking (Wulzen v. Board of Supervisors, 101 Cal. 15 [35 P. 353, 40 Am.St.Rep. 17] ; Imperial Water Co. v. Board of Supervisors, 162 Cal. 14 [120 P. 780]). While it is impossible to define with precision “due process of law” it means, broadly speaking, that before a man’s *286property may be taken by the state, he must be given notice of the proceedings which may terminate in the taking, and be given an opportunity to be heard. It means further that the notice shall be a real and reasonable one, and the hearing, such as is ordinarily, or at least reasonably, given in similar cases (Beck v. Ransome-Crummey Co., 42 Cal.App. 74 [184 P. 431]). Particularly applicable here is the statement found in People v. Broad,'216 Cal. 1 [12 P.2d 941], where this court said . . the essential validity of the law was to be tested not by what has been done under it, but what may by its authority be done; and where a statute makes no provision for hearing or notice, either actual or constructive, such defect is not supplied by the voluntary adoption by public officers of rules covering the situation.” In Roller v. Holly, 176 U.S. 398, 409 [20 S.Ct. 410, 44 L.Ed. 520], it-was said “That a man is entitled to some notice before he can be deprived of his liberty or property, is an axiom of the law to which no citation of authority would give additional weight; but upon the question of the length of such notice there is a singular dearth of judicial decision. It is manifest that the requirement of notice would be of no value whatever, unless such notice were reasonable and adequate for the purpose (Davidson v. New Orleans, 96 U.S. 97 [24 L.Ed. 616] ; Hagar v. Reclamation District, 111 U.S. 701-712 [4 S.Ct. 663, 28 L.Ed. 569]).” In that case, it was held (413) that “Without undertaking to determine what is a reasonable notice to nonresidents, we are of opinion, under the circumstances of this ease, and considering the distance between the place of service and the place of return, that five days was not. a reasonable notice, or due process of law. ...” The Roller case was followed in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 [70 S.Ct. 652, 94 L.Ed. 865], where it was said “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections, Milliken v. Meyer, 311 U.S. 457 [61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357] ; Grannis v. Ordean, 234 U.S. 385 [34 S.Ct. 779, 58 L.Ed. 1363] ; Priest v. Las Vegas, 232 U.S. 604 [34 S.Ct. 443, 58 L.Ed. 751] ; Roller v. Holly, 176 U.S. 398 [20 S.Ct. 410, 44 L.Ed. 520], The notice must be of such nature as reasonably to convey the required information, Grannis v. Ordean, supra, and it must afford a *287reasonable time for those interested to make their appearance. . . . But when notice is a person’s due, process which is a mere gesture is not due process. ’ ’ And in Griffin v. Griffin, 327 U.S. 220, 228 [66 S.Ct. 556, 90 L.Ed. 635], it was said “It is plain in any ease that a judgment in personam directing execution to issue against petitioner, and thus purporting to cut off all available defenses, could not be rendered on any theory of the State’s power over him, without some form of notice by personal or substituted service. Wuchter v. Pizzutti, 276 U.S. 13, 18-20 [48 S.Ct. 259, 72 L.Ed. 446]; Restatement of Conflict of Law, § 75; and compare Milliken v. Meyer, 311 U.S. 457 [61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357], Such notice cannot be dispensed with even in the case of judgments in rem with respect to property within the jurisdiction of the court rendering the judgment. Roller v. Holly, 176 U.S. 398, 409 [20 S.Ct. 410, 44 L.Ed. 520].” (Emphasis added.)
If the dog is not wearing a license tag, the majority says that “its owner will not have any ground to complain of a failure to receive notice, because the ordinance places upon him the duty to make sure that the dog wears its license tag at all times except when it is indoors or in an enclosed yard or pen. ’ ’ Apparently we now forget about the one day notice, actual and received, and the dog is held for the prescribed (subsection (h)) period of five days before being surrendered to a hospital or institution for experimental purposes. Under reasoning of the type indulged in by the majority, we can read the ordinance as circumstances warrant. So now, no notice being practicable, we just look to the five day provision. This period of time is unreasonable. It does not take into consideration the fact that duly licensed dogs may lose their tags after straying; that they may, and do, break their collars thereby losing their tags; that strangers may remove either collar or tag; that dogs may escape from enclosed pens, or get out of the houses of their owners (where they are not required to wear tags) and wander far afield. It does not take into consideration the not-unusual eases of theft of valuable, registered dogs. It does not take into consideration the size of the city of Los Angeles with its five pounds, and four private shelters, and 19 pounds and animal shelters in Los Angeles County, or the fact that the owner of the dog might be out of the city when his dog escapes from his home and the person caring for it, or from a kennel where he has left it to be cared for.
*288The majority, in placing its approval upon this five day period, has failed to consider that when a dog is missing, the owner assumes, often correctly, that the dog will come home the next day and therefore does nothing for a one day period; that the dog may be a “wanderer” who has always returned from his prior wanderings; and that dogs do not seek the nearest pound, or shelter, upon running away. No consideration is given to the obvious fact that the owner of the dog may advertise for his lost pet, that he may for the first few days of the dog’s absence call at the pounds and shelters with no success, only to have the dog picked up later when he has started to advertise for its return. In my opinion, due process of law requires that the ordinance provide for some type of notice in cases where the dog is not wearing a license tag. That notice could be by newspaper advertisement, giving the description of the dogs impounded, or by radio announcement, or by posting descriptions in various places throughout the city.
The ordinance here involved is, in my opinion, unconstitutional in that it constitutes a taking o'f property without due process of law as.the courts have defined that guarantee in both the Constitution of the United States and of California.
I would therefore reverse the judgment.
Appellants’ petition for a rehearing was denied March 19, 1953. Carter, J., was of the opinion that the petition should be granted.