Anderson v. George

• Decision Date: 01 March 1977
• Docket Number: No. CC898,CC898
• Citation: 160 W.Va. 76,233 S.E.2d 407
• Court: West Virginia Supreme Court
• Parties: Frederick E. ANDERSON v. James GEORGE.

Page 407

233 S.E.2d 407

160 W.Va. 76

Frederick E. ANDERSON v. James GEORGE.

No. CC898.

Supreme Court of Appeals of West Virginia.

March 1, 1977.

Concurring Opinion March 29, 1977.

Syllabus by the Court

W.Va.Code, 7-10-4 (1923) is unconstitutional because it fails to provide a pre-seizure hearing or an expeditious post-seizure hearing for judicially determining the validity of a designated humane officer's exercise of his statutory powers to seize abandoned, neglected, or cruelly treated animals.

Orville L. Hardman, Parkersburg, for plaintiff.

Harry G. Deitzler, Parkersburg, for defendant.

NEELY, Justice:

This certified question arises out of a detinue action which Frederick E. Anderson brought in the Circuit court of Wood County to recover possession of approximately fifty head of his cattle seized and held by James George, Deputy Sheriff and designated Humane Officer of Wood County. James George filed a Motion to Dismiss in the trial court, claiming that W.Va.Code 7-10-4 (1923) ¹ entitled him to detain Anderson's cattle until Anderson paid the county's expenses in caring and providing for the cattle. All parties concede that George acted in strict accordance with Code, 7-10-4 (1923) in this matter. After hearing legal argument on George's Motion to Dismiss, the Circuit Court of Wood County denied the motion, filed a memorandum opinion stating that the statute is unconstitutional, and, on its own motion, certified to this Court the question whether Code, 7-10-4 (1923) violates due process guarantees in the Constitution of the United States and the Constitution of the State of West Virginia. We hold that Code, 7-10-4 (1923) is unconstitutional.

This case calls into question the validity of West Virginia's summary procedures which permit animals to be seized and detained when they are found abandoned, neglected, or cruelly treated. Since summary procedures often conflict with constitutional due process guarantees, and, in turn, often lead to litigation, there has developed an extensive body of precedent to which this Court may turn for guidance in deciding this case. Several propositions relevant here seem to be well-established by case authority. " '(D)ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.' " Mathews v. Eldridge, 424 U.S. 319 at 334, 96 S.Ct. 893, at 902, 47 L.Ed.2d 18 (1976). See also State v. Sponaugle, 45 W.Va. 415, 32 S.E. 283 (1898) and Walter Butler Building Company v. Soto, 142 W.Va. 616, 97 S.E.2d 275 (1957). The application of due process requirements to given situations may call for careful judicial balancing of equally valid competing interests. See Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).

Nonetheless, regardless of flexibility, before there can be any final adjudication of his property rights, a person deprived of property must be afforded notice and a reasonable opportunity to be heard. State v. Blevins, 131 W.Va. 350 at 361, 48 S.E.2d 174 at 182 (1948). Such hearing may be held before or after the seizure, depending on the circumstances, as mere postponement of the judicial inquiry is not a denial of due process in every situation. Phillips v. Commissioner, 283 U.S. 589, at 596-597, 51 S.Ct. 608, 75 L.Ed. 1289 (1931); Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); and Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).

It is clear that Code, 7-10-4 (1923) falls short of according even the most minimal elements of due process. Under Code, 7-10-4 (1923) a person's livestock or other animals may be taken from him without prior notice. Such seizure occurs when the humane officer, who is a law enforcement officer, not an independent magistrate or judicial officer, determines in his sole and unfettered discretion that the animals are "abandoned, neglected, or cruelly treated." Certainly public interest will justify seizure to prevent unnecessary cruelty to animals; yet, the line between acceptable and cruel treatment must be judicially determined in an expeditious manner.

The initial and continuing deprivation of the owner's property interest in his animals is compounded further, because the owner becomes liable for the expenses of care and provisions for the animals while they are out of his custody. These expenses represent in themselves a significant deprivation of property, since, as any farmer can attest, a charge for keeping hungry animals fed is not always offset by the owner's savings in having someone else provide the feed. When, for example, the farmer's highest use of his pasture is to graze his own herd, it is not a simple matter for him to arrange a substitute use after the state impounds his herd under Code, 7-10-4 (1923). To secure payment of the expenses the statute creates a lien upon the animals. There is no provision for a pre-seizure or even an expeditious post-seizure hearing to contest the validity of the humane officer's determination of abandonment, neglect, or cruel treatment or to contest the validity of the lien which arises perforce. This failure to provide the animals' owner a reasonable opportunity to be heard at some stage in the proceedings is the most serious constitutional deficiency of Code, 7-10-4 (1923).

In conclusion, some comment is warranted concerning the interplay between Code, 7-10-4 (1923) and a corresponding criminal statute, W.Va.Code, 61-8-19 (1923). Code, 7-10-4 (1923) draws a distinction between owners who abandon, neglect, or cruelly treat animals and owners who willfully abandon, neglect, or cruelly treat animals. With respect to the latter group, provision is made for returning animals into their owner's custody under bond and after boarding expenses are paid, if the owner is convicted of an offense relating to animal mistreatment; if, however, the owner is acquitted of a criminal charge relating to animal mistreatment, there is some ambiguity regarding whether the owner is liable for boarding expenses. With respect to the former group, liability for boarding expenses appears to be fixed, regardless of the outcome of any criminal prosecution; indeed, the statute apparently contemplates that there would be no criminal prosecution unless the animal mistreatment were willful.

Code, 61-8-19 (1923) adds to the confusion because willfulness is an element of some, but not all, of the offenses enumerated therein. Thus it is possible for an owner to be charged and acquitted of a Code, 61-8-19 (1923) violation, without that acquittal's releasing the owner from liability for boarding expenses as fixed in the first section of Code, 7-10-4 (1923), assuming the offense charged did not include the element of willfulness. It cannot be said, therefore, that a criminal prosecution affords an owner sufficient opportunity for a hearing, so as to save Code, 7-10-4 (1923) from constitutional infirmity. In any event, the link between Code, 7-10-4 (1923) and Code, 61-8-19 (1923) is a tenuous one at best, in view of the discretion vested in prosecutors to refrain from bringing criminal charges in every case.

In view of all of the foregoing this Court holds that the Circuit Court of Wood County acted properly in denying defendant George's Motion to Dismiss, on the ground that the statute relied upon by George in his motion, Code, 7-10-4 (1923), is unconstitutional. ²

Rulings on certified question affirmed.

MILLER, Justice, concurring:

While I agree that W.Va.Code, 7-10-4, violates due process principles and is therefore unconstitutional, the majority opinion does not adequately address the problem. Whenever this Court determines that a statute is unconstitutional, it has an obligation to delineate its reasons so that those who desire to have curative legislation enacted may have some guideline.

Furthermore, since this Court has in the past considered similar statutes and has held them not to violate due process standards, some passing reference should be made to those cases. Burdett v. Allen, 35 W.Va. 347, 13 S.E. 1012 (1891), involved a municipal ordinance authorizing the impoundment of domestic animals found running at large on public streets. This was followed by Haigh v. Bell, 41 W.Va. 19, 23 S.E. 666 (1895), which upheld a statute permitting double damages against the owner of hogs running at large, coupled with the right of the injured property owner to distrain the animals and sell them. Both of these cases upheld the right of the State through its police power to enact legislation to regulate stray animals.

It is a legitimate function of the State to control and protect animals which have been abandoned or subjected to inhumane treatment. Such right, however, is not completely unfettered and is ultimately circumscribed by due process. One must recognize that Burdett and Haigh were decided at a time when due...