Jordan v. Gaines

• Decision Date: 07 October 1939
• Citation: 8 A.2d 585
• Parties: JORDAN v. GAINES.
• Court: Maine Supreme Court

8 A.2d 585

JORDAN

v. GAINES.

Supreme Judicial Court of Maine.

Oct. 7, 1939.

[Copyrighted material omitted.] Exceptions from Superior Court, Cumberland County.

Trover by Robert R. Jordan against Leila C. Gaines to recover damages for alleged conversion of six cows. The presiding justice, on motion, directed a verdict for defendant, and plaintiff brings exceptions.

Exceptions sustained.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Nunzi F. Napolitano, of Portland, for plaintiff.

Richard S. Chapman, of Portland, for defendant.

HUDSON, Justice.

Trover to recover damages for the alleged conversion of six cows. The defendant, a State humane agent and an agent of the Pine Tree Humane Society, pleaded the general issue and, by way of brief statement, that "she was justified in taking the chattels * * * by virtue of the Revised Statutes of the State of Maine and acts amendatory thereto."

Involved are Sections 63 and 67 of Chapter 135, R.S. 1930, the latter as amended by Chapter 114 of the Public Laws of 1931. The presiding Justice adjudged them constitutional and on motion directed a verdict for the defendant, to which ruling the exceptions now before us were taken.

The exceptions clearly show that the only question brought up is the constitutionality of these statutes and preclude our consideration and determination of other matters argued both by the plaintiff's and the defendant's counsel. "We cannot travel out of the bill of exceptions * * *." State v. Intoxicating Liquors, 102 Me. 385, 390, 67 A. 312, 314, 120 Am. St.Rep. 504; McKown v. Powers, 86 Me. 291, 29 A. 1079; Verona v. Bridges, 98 Me. 491, 57 A. 797; Lenfest v. Robbins, 101 Me. 176, 63 A. 729; Mencher v. Waterman, 125 Me. 178, 132 A. 132; Frost, Adm'r v. C. W. Cone Taxi & Livery Company, 126 Me. 409, 139 A. 227; Hamilton v. Wilcox et al., 126 Me. 529, 140 A. 201.

Section 67 as amended reads as follows:

"Any person may take charge of an animal whose owner has cruelly abandoned it, or cruelly fails to take care of and provide for it, and may furnish the same with proper shelter, nourishment, and care at the owner's expense, and have a lien thereon for the same; and may enforce said lien in the manner provided for in section sixty-three of this chapter * * *."

Section 63 reads:

"Persons or corporations having such lien, may sell such animals at public auction, in the town or city where they were found or are detained, after three days' written notice to the party claiming or owning the same; or if such party cannot be found, by publishing notice of the time and place of sale for three successive days in any daily, or once in any weekly newspaper printed in the county where such animals were found or are detained, and from the proceeds of such sale, may deduct all costs, charges, and expenses, and a reasonable compensation for trouble, and shall hold the balance, if any, for, and pay over the same, on demand, to the parties owning said animals, or to the legal representatives of such parties."

The plaintiff contends that these statutes contravene the Fourteenth Amendment of the Federal Constitution U.S.C.A. and Article I, Section 6 of the State of Maine Constitution. The Fourteenth Amendment in part provides that no state shall "deprive any person of life, liberty, or property, without due process of law * * *," while Section 6 of Article I of our State Constitution protects the accused against deprivation "of his life, liberty, property or privileges, but by judgment of his peers, or by the law of the land."

The phrases "due process of law" and "the law of the land" are identical in meaning. Randall v. Patch, 118 Me. 303, 305, 108 A. 97, 8 A.L.R. 65; Bennett v. Davis, 90 Me. 102, 105, 37 A. 864; Eames v. Savage, 77 Me. 212, 220, 52 Am. Rep. 751; State of Maine v. Doherty, 60 Me. 504, 509; State v. Knight, 43 Me. 11, 122. They are of equivalent import and interchangeable. In re John M. Stanley, 133 Me. 91, 95, 174 A. 93.

The question then is whether or not these sections of the statute when complied with effect deprivation of one's property without due process of law.

While other grounds of unconstitutionality are relied upon by the plaintiff, only one needs consideration, viz.: Failure of provision for notice of the taking and opportunity for hearing. "Notice and opportunity for hearing are of the essence of due process of law." Randall v. Patch, supra, 118 Me. on page 305, 108 A. on page 98, 8 A.L.R. 65; In re John M. Stanley, supra, 133 Me. on page 95, 174 A. 93; York Harbor Village Corporation v. Fred H. Libby et al., 126 Me. 537, 539, 140 A. 382. The taking of property without notice and opportunity for hearing violates both the Fourteenth Amendment and Section 6 of Article I of the Constitution of Maine, unless the taking constitutes a valid exercise of the police power.

The due process clause does not prevent proper exercise of the police power of the State. Boston & Maine R. R. Co. v. County Commissioners, 79 Me. 386, 10 A. 113; State v. Rogers, 95 Me. 94, 49 A. 564, 85 Am.St.Rep. 395; State v. Robb, 100 Me. 180, 60 A. 874, 4 Ann.Cas. 275; State v. Frederickson, 101 Me. 37, 63 A. 535, 6 L.R.A., N.S., 186, 115 Am.St.Rep. 295, 8 Ann.Cas. 48; Opinions of Justices, 103 Me. 506, 69 A. 627, 19 L.R.A., N.S., 422, 13 Ann.Cas. 745; State v. Mayo, 106 Me. 62, 75 A. 295, 26 L.R.A., N.S., 502, 20 Ann.Cas. 512; State v. Phillips, 107 Me. 249, 78 A. 283; State of Maine v. King, 135 Me. 5, 188 A. 775.

Speaking of the police power, this Court said in York Harbor Village Corporation v. Libby et al., supra, 126 Me. on page 540, 140 A. on page 385:

"It is not the offspring of constitutions. It is older than any written constitution. It is the power which the states have not surrendered to the nation, and which by the Tenth Amendment were expressly reserved 'to the states, respectively, or to the people.'

"Limitations expressed or necessarily implied in the Federal Constitution are the frontiers which the police power cannot pass. Within those frontiers its authority is recognized and respected by the Constitution and given effect by all courts."

Also, as stated in the last cited case, "private property is held subject to the implied condition that it shall not be used for any purpose that injures or impairs the public health, morals, safety, order, or welfare." One may use his private property in a way so detrimental to the rights of the public with relation to "public health, morals, safety, order, or welfare" as to permit legislative deprivation of such property without compensation. In cases of extreme and urgent necessity, as in conflagrations or epidemics, such property may be destroyed under authority of the police power without notice or hearing. Randall v. Patch, supra.

"If the use is actually and substantially an injury or impairment of the public interest in any of its aspects above enumerated, a regulating or restraining statute or ordinance conforming thereto, if itself reasonable and not merely arbitrary, and not violative of any constitutional limitation, is valid. It is not a deprivation of property which the Constitution forbids, but an enforcement of a condition subject to which property is held." Village Corporation v. Libby et al., supra, 126 Me. pages 540 and 541, 140 A. page 386.

Whether a particular statute has validity as a proper exercise of the police power depends on whether or not it "extends only to such measures as are reasonable," but then the police regulation "must be reasonable under all circumstances. Too much significance cannot be given to the word 'reasonable' in considering the scope of the police power in a constitutional sense, for the test used to determine the constitutionality of the means employed by the legislature is to inquire whether the restrictions it imposes on rights secured to individuals by the Bill of Rights are unreasonable, and not whether it imposes any restrictions on such rights. * * * The validity of a police regulation therefore primarily depends on whether under all the existing circumstances the regulation is reasonable or arbitrary and whether it is really designed to accomplish a purpose properly falling within the scope of the police power." 11 Am.Jur., Section 302, pages 1073, 1074, and 1075.

In Loesch v. Koehler, 144 Ind. 278, 41 N.E. 326, 43 N.E. 129, 35 L.R.A. 682, cited with approval in Randall v. Patch, supra, it was held that a statute authorizing certain officers to kill any animal neglected or abandoned and which, in the opinion of three reputable citizens, is injured or diseased past recovery or by...