Randall v. Patch

• Citation: 108 A. 97
• Parties: RANDALL v. PATCH.
• Decision Date: 13 November 1919
• Court: Supreme Judicial Court of Maine (US)

108 A. 97

RANDALL

v. PATCH.

Supreme Judicial Court of Maine.

Nov. 13, 1919.

Report from Supreme Judicial Court, York County, at Law.

Trover by Harry Randall against Herbert C. Patch. On report upon an agreed statement of facts, with certain stipulations. Action to stand for trial.

Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ.

Elias Smith, of Limington, for plaintiff.

Emery, Waterhouse & Paquin, of Biddeford, for defendant.

DEASY, J. Trover for a horse taken from the plaintiff's possession against his objection and killed by the defendant. It is conceded that when the acts complained of were done the defendant was an officer or agent of the Society for the Prevention of Cruelty to Animals, and that he had complied with all the provisions of section 59 of chapter 126, R. S. The constitutionality of section 59 is challenged. The section is as follows:

"Any officer or agent of any society for the prevention of cruelty to animals may lawfully cause to be destroyed forthwith, any animal found abandoned or not properly cared for, appearing in the judgment of two reputable persons called by him to view the same in his presence, to be diseased or injured or in a condition from lack of food, water or shelter, past recovery for any useful purpose."

This section, when enacted as section 12 of chapter 183, Public Laws of 1883, related to abandoned animals only; the language being, "any animal found abandoned and not properly cared for."

By chapter 70 of the Public Laws of 1905 the word "and" was changed to "or." As thus amended, and otherwise by the same act slightly altered, it became section 59 as above quoted.

Neither in its original or amended form does it provide for compensation for, opportunity for hearing by, or notice to the owner.

The plaintiff claims that he has been deprived of his property without "due process of law" (Const. U. S. Amend. 14) and in contravention of "the law of the land" (Const. Me. art. 1, § 6). The quoted phrases are identical in meaning. State v. Knight, 43 Me. 122; Bennett v. Davis, 90 Me. 105, 37 Atl. 864.

Notice and opportunity for hearing are of the essence of due process of law. Bennett v. Davis, supra; Rusk v. Thompson. 170 Mo. App. 76, 156 S. W. 64; Smith v. State Board, 140 Iowa, 66, 117 N. W. 1117.

A hearing before a judicial tribunal is not essential, but there must be notice and a reasonable opportunity for a hearing before some tribunal. Bennett v. Davis, supra; People v. Apfelbaum, 251 Ill. 18, 95 N. E. 995.

An act that purports to authorize procedure depriving an owner of his property without opportunity for hearing and without notice violates both the federal and state Constitutions.

Section 60, chapter 126, Revised Statutes, in its present form, as amended in 1893 (Laws 1893, c. 165, § 4), provides for notice and hearing. For want of such provisions in its original form (Acts 1883, c. 183, § 13) it was held unconstitutional by King v. Hayes, 80 Me. 206, 13 Atl. 882. See, to same effect, Loesch v. Koehler, 144 Iud. 278, 41 N. E. 326, 43 N. E. 129, 35 L. R. A. 682; Miller v. Horton, 152 Mass. 544, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850; Brill v. Ohio Humane Society, 4 Ohio Civ. Ct. R. 358; Sahr v. Scholle, 89 Hun, 42, 35 N. Y. Supp. 97; Goodwin v. Toucey, 71 Conn. 262, 41 Atl. 806; Jenks v. Stump, 41 Colo. 281, 93 Pac. 17, 15 L. R. A. (N. S.) 558, 124 Am. St. Rep. 137, 14 Ann. Cas. 914.

But the defendant urges that a horse which has been decided by two reputable persons to be injured or diseased and past recovery for any useful purpose is no longer property. The word "property," he contends, does not include a "wreck of what was once a steed," having no utility and no value. This reasoning, however, begs the question. The plaintiff claims that his animal is not past recovery and that it has value. To conclusively determine this question against the plaintiff without notice or hearing would be to nullify the constitutional guaranty.

The defendant argues that the determination of the necessity or expediency of any legal enactment is within the exclusive province of the Legislature. This is true. The court cannot declare a law to be void for the reason that it is unnecessary or inexpedient; but it may be the duty of the court to pronounce invalid an act which violates an express mandate of the Constitution, even if the act is expedient and has been determined by the Legislature to be necessary.

Again, the defendant contends that section 59 is a valid exercise of the police power. No court has ever undertaken...