The defendant attempted to justify the taking of the cow of the deceased under the provisions of the act of the legislature, entitled, "An act to prevent animals from running at large in the public highways." (Ch. 459, Laws of 1862, p. 844.) His answer states substantially that on or about the 17th day of May, 1864, the defendant took the cow in his custody and possession which was then running at large in the public highway opposite to land owned and occupied by him, contrary to the provisions of the said act; and that before the time advertised by the commissioner of highways for the sale, the cow was taken from his possession without his knowledge, in the night time, by some person unknown to him and without his assent or connivance, and that after diligent search he was unable to find her or to ascertain who took her away.
Upon the trial the defendant testified that the cow was in his door-yard when he took her up, and that she had been running in the highway opposite his land twice that day; that he first drove her into the highway and then into his barnyard. She was afterward kept in his stable, and taken away the 27th day of May. She was advertised to be sold on his premises on the 3d day of June, at which time the commissioner sold her at public auction to the plaintiff for one dollar and eighty-eight cents, the cow not being present at the time.
On the trial the defendant claimed that she was stolen from him on the 27th of May. He testified that he left her in the stanchions that night, but he could not state that the door was fastened. She was taken without his knowledge. He saw her tracks in the mud where she went out into the street. It does not appear in evidence that he followed her up, or made any efforts to find her. He could not state whether she was fastened up that night or not, although his son, who put her up, thought he fastened her up tight. *Page 312
The plaintiff recovered of the defendant the value of the cow before the justice. Upon appeal to the County Court, the judgment was reversed, upon the ground that the proof was satisfactory to show a justification for the taking, and that, while lawfully in the defendant's possession, she was stolen.
One of the questions raised before the justice, and discussed in the County Court as well as in the Supreme Court, related to the constitutionality of the act of 1862; and its validity was affirmed in both courts. It is, doubtless, on account of such a question, that the case has been certified to this court.
But, if the cow was not unlawfully in the highway when she was seized by the defendant, under the authority of the act of 1862, the defendant has not brought himself within the protection of the act, so far as it authorizes a seizure of cattle running at large on the public highways. This act, if constitutional, is in derogation of the rights of persons, as recognized by the common law, and must be strictly followed in all its minutest requirements. Thus, under the law of distress, to which the law of 1862 has some resemblance, it was held, at a very early day, that if a man, coming to distrain damage-feasant, sees the beasts on his soil, and the owner purposely chases them out before they are taken, he cannot distrain them. (2 Bac. Abr., title, "Distress," letter F.)
The first section of the act of 1862 makes it unlawful for cattle to run at large on the public highway. This, doubtless, must be interpreted to mean that it is unlawful for the owner to allow his cattle to be at large on the public roads. It was not the intention to punish the cattle, but the owner. The second section begins by authorizing the owner of the land to seize cattle "which may be in any public highway opposite to hisland, contrary to the provisions of the first section."
As the cow in question was not, at the time of the seizure, on the highway, but in the defendant's door-yard, he could not seize her under the foregoing authority. To use the liberal language of the first section, the cow was not committing an offense upon the highway when she was seized by the *Page 313 defendant, but a private damage to the defendant, so that, doubtless, he might have taken her damage-feasant, and kept her until his damages were apprised, under the provisions of the Revised Statutes.
Now, it nowhere appears that the owner permitted his cattle to run at large upon the public highways, contrary to the provisions of the first section. As the cow was not guilty of the offense, but the owner, it should appear, I think, that he suffered her to run at large, or was in some way remiss in not keeping her upon his own premises. It may often happen, without fault of the owner, that his cattle go upon the public road. If they are there without the owner's fault, he cannot be deemed guilty of the offense mentioned in the first section of the act. His fences may be down without his knowledge — may be broken down by the wind or taken down by strangers — and his cattle may temporarily stray out upon the public highway. Does the statute intend to punish this as an offense? I think not; for it ought to have a reasonable construction, so as to embrace only those cases where the owner is himself guilty of some fault or negligence. This being a penal statute, can the court assume, without proof, that an offense has been committed by the plaintiff merely from the circumstance that his cow is found in the highway? I think there should be some proof, at least, besides the mere fact that cattle are found in the highway, to justify a seizure. And, without doubt, whoever seizes cattle upon the highway under the act of 1862, without being able to show that they are there by the permission or negligence of the owner, seizes them without right. There may be some question whether the burden of proof is not cast upon the owner of the cattle to show that he is without fault in such a case.
The act, however, provides no tribunal before which this question of right can be determined, and, in this respect, its constitutionality has been questioned.
If, however, the act is to be considered with reference to other statutes, it is not subject to this objection. The owner may have an action of trespass, trover or replevin; and, in *Page 314 the latter action, he is provided with a remedy entirely suitable to the exigencies of the case, and in conformity to the long-established rules of the common law in cases of distress. Our statutes provide that, whenever any goods or chattels shall have been wrongfully distrained or otherwise wrongfully taken, or wrongfully detained, an action of replevin may be brought for the recovery thereof, or for the recovery of damages. (2 R.S. at Large, 540, § 1.)
It is also said that the owner of the cattle may not get notice, and that the act of 1862 is invalid, because it does not provide for giving the owner notice of the seizure and sale. The notice, however, is as public as it could well be made, and there is really no danger that it will not come to the knowledge of the owner in time to give him an opportunity to replevy his cattle or retake them before sale, on proof of ownership and payment of the statutory fees and compensation. It is substantially the same notice provided in case of Strays (1 Statutes at Large, 324, §§ 24, 25), and by the act of 1849, chap. 226, to enforce the responsibility of stockholders in banking corporations and associations. Judge DENIO observes, in relation to the provisions of the act, authorizing notice by advertisement to stockholders: "It may be admitted that a statute which authorized any debt or damages to be adjudged against a person upon purely an ex parte proceeding, without pretense of notice or any provision for defending, would be a violation of the Constitution and void; but, when the legislature has provided a kind of notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to defend, I am of the opinion the courts have not the power to pronounce the proceedings illegal." (In thematter of the Empire City Bank, 18 N.Y., 200.)
If, therefore, the statutes of this State give to the owner of cattle, seized under the authority of the act of 1862 for unlawfully running at large upon the public highways of this State, an action of replevin, as in case of an illegal distress, by which the right of seizure may be tried according to the forms of law, and if the notice provided by the act is reasonably certain *Page 315 to give the owner of the cattle knowledge of the seizure, I do not think we can pronounce the act unconstitutional upon either of the above objections.
Another question arises, as to the power of the legislature to authorize the seizure of cattle for unlawfully running at large upon the public highways. The property of the individual, in such a case, is not taken, in the strict sense of the term, for public use. If it was, the law would allow to the owner a just compensation. It is not, therefore, taken by right ofeminent domain. It may properly be called the police power of the legislature, which they are authorized to exercise for the public benefit. This power, as was said by SHAW, Ch. J., inCommonwealth v. Alger (7 Cush., 53), is "vested in the legislature by the Constitution, to make, ordain and establish all manner of wholesome statutes, ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same." (See Sedg. on Statutory and Constitutional Law, 505, c.)
The legislature of this State has been in the constant practice of regulating the manner in which the highways of this State shall be made, altered, improved and protected. They are used by all our citizens to pass and repass at their pleasure, and any obstructions to this common right may be dealt with and denounced by the legislature. Upon the ground, therefore, that it is an injury to the public for cattle to be running at large upon the highways of the State, the legislature may punish the owner for permitting it. The effect of the act of 1862 is to subject the owner of cattle, who allows them to run at large upon the public highways, to the payment of a fine and to the forfeiture of his property, if he neglects to redeem it in the mode pointed out by the act.
Thus far, I see no ground upon which the act of 1862 can be pronounced unconstitutional.
But, as I have already observed, the defendant did not seize the cow while she was in the highway, contrary to the provisions of section 1 of the said act, but while she was trespassing upon his own premises. *Page 316
He could not drive her into the highway and then seize her because she had been running on the highway previous to that time, for that would be contrary to the terms of the act.
I am of the opinion, therefore, that the defendant did not justify the seizure upon the ground assumed in his answer, viz.: that the cow was "then running at large in the highway oppositeto land owned and occupied by him."
It may, however, be claimed, that, notwithstanding the defendant's answer, he made out a case under the last clause of section two of the act in question. It may be said that if the cow was not at the time upon the highway, she was trespassing upon his own lands contrary to the provisions of section two, the last clause of which is as follows: "And it shall be lawful for any person to take into his possession or custody any animal which may be trespassing upon premises owned or occupied by him."
It is very apparent that this clause of section two is not germain to the subject matter, and may be rejected without doing violence to the general policy of the act in question. From its position, I think it must have been interpolated, without reflection; for the title of the act relates to quite a different subject, and one clearly within the general authority of the legislature.
It has been said by the judges, in several cases, that the legislative power is not omnipotent. There have been several reported in this State, in which it has been said that the legislature cannot take the property of A. and give it to B. except in the exercise of some acknowledged delegation of power.
We have seen that the property of the deceased was not taken by right of eminent domain; nor was it taken under the police power; or as a security or pledge to satisfy any debt or demand of the defendant, by way of damages on account of the trespass. Notwithstanding the seizure and sale of the property under the act of 1862, the deceased was still liable to an action for the damages. In this respect it differs essentially from the remedy by distress, in which the distrainer seizes the cattle trespassing upon his premises and *Page 317 holds them as a pledge to satisfy his damages. When impounded, the goods were formerly only in the nature of a pledge or security to compel the performance of satisfaction; and at the common law, they must remain impounded till the owner makes satisfaction or contests the right of distraining by replevying the chattels. (Blackstone Com., 4th book, p. 14.) At common law, if the owner remained obstinate, it was no remedy at all; but a statute authorizing the sale of the pledge, which (says the same author) is in the nature of an execution, effectuated and completed the remedy.
The supposed analogy between the remedy by distress and the seizure of cattle under the law of 1862, while in the act of committing a private trespass, entirely fails.
The seizure of cattle, under the last clause of section 2 of the act of 1862, is no remedy at all, but simply an annoyance to the owner. It is not a case of public concern, if my cattle get into my neighbor's inclosure; and it cannot be punished as such by fines and penalties, and forfeiture of property.
As a necessary result of the constitutional provision, prohibiting the taking of private property without due processof law, the legislature cannot authorize the seizure of any man's property, except for some legitimate object, or in the exercise of some power confessedly within the range of legislation.
To return to the last clause of the second section of the act of 1862: What was the design of the legislature, in authorizing the plaintiff to seize and sell his neighbor's cattle, because they were trespassing on his land? It was not to protect the public highways. It was not to provide any remedy for the damages; it was not to devote them to the public use. Then, what was the object, except to punish a man for committing a private wrong, in which the public had no interest whatever, except as spectators ?
Without going at further length into the cases which may be cited in support of the proposition, I am of the opinion that the last clause of the second section of the act of 1862 is in violation of the Constitution of this State, which denies *Page 318 to the legislature authority to deprive a man of his property without due process of law.
By reference to that clause in section two of the act in question, it will be seen that it has no necessary connection with the public highways. The cattle may be trespassing upon another's premises without going upon the public highway at all; and the authority given to the owner of the premises to seize and sell them under the provision of the subsequent sections, is not for any object connected with the administration of the laws, either for private redress or public purposes. The seizure and sale, authorized by that clause, neither benefits the owner of the land nor corrects a public wrong.
Unless, therefore, the act in question authorizes the seizure of cattle, not unlawfully trespassing, at the time of seizure, upon the public highways, contrary to the provisions of the first section, the defendant's justification entirely fails. They must be taken while they are running at large in the highway or not at all, if I am right in holding that they cannot be taken under the last clause of section 2; for without that clause there would be no pretense of justification for the seizure in this case.
In my opinion, there is great difficulty growing out of another branch of the case. If the seizure of the cow by the defendant had been lawful in the first instance, he was responsible for losing her out of his possession, unless he was able to show that it occurred without his fault. It may, perhaps, be assumed that, in point of law, the defendant would not be liable for a larceny of the cow. But does the evidence show, beyond a doubt, that she was stolen? It does not appear whether the judgment of the justice was predicated upon the unconstitutionality of the law of 1862, or upon the hypothesis that the defendant failed to show, to his satisfaction, that the cow was stolen. The answer of the defendant claims that he made diligent efforts to find her, but he offered no evidence to maintain this part of his answer.
It may be said, upon the evidence, that there was no larceny of the cow proved against anybody; nor can it be *Page 319 assumed, I think, that the defendant could not have recovered her if he had used proper efforts to do so — such efforts as a man would use to recover his own property.
I confess I am not satisfied that the cow was stolen; nor do I believe that the defendant was entitled to the benefit of such a defense without furnishing further proof upon that point. He should have followed up her tracks, and should have made diligent efforts to recover her, such as the owner himself would ordinarily make to recover his own property. In my opinion, he was guilty of laches in not following up the loss by suitable efforts to recover the property.
But, independently of this question, I think the judgment of the Supreme Court, as well as that of the County Court, should be reversed, with costs in both courts, and that of the justice affirmed.
All the judges concurring,
Judgment accordingly. *Page 320