Colon v. Lisk

• Decision Date: 08 June 1897
• Citation: 153 N.Y. 188,47 N.E. 302
• Parties: COLON et al. v. LISK et al.
• Court: New York Court of Appeals Court of Appeals

153 N.Y. 188

47 N.E. 302

COLON et al.

v.LISK et al.

Court of Appeals of New York.

June 8, 1897.

Appeal from supreme court, appellate division, Second department.

Replevin by Thomas Colon and others against John W. Lisk and others. From a judgment of the appellate division (43 N. Y. Supp. 364) reversing an interlocutory judgment, entered on order overruling a demurrer to the answer, defendants appeal. Affirmed.

The action was replevin. The plaintiffs are in possession of the sloop Jessie, her furniture and apparel, under a writ issued in this action. They claim to be the owners of the property in question, and entitled to the possession thereof by virtue of their ownership. In the complaint, their title and right of possession of the property are alleged, and that the defendants wrongfully took possession thereof. The defendants, by their answer, admit the plaintiffs' title, but deny that they are entitled to the possession of it. They then admit the taking, but deny that it was wrongful or unlawful. As a further and separate defense, they allege that they were, at the time, fish and game protectors and foresters, and that they were charged by the laws of the state with the enforcement of the fish and game law. They then allege, upon information and belief, that on the 9th day of July, 1896, the sloop Jessie was used in violation of subdivision 1 of section 189 of the ‘Fisheries, Game, and Forest Law,’ as amended by chapter 383 of the Laws of 1896, in that it was used in destroying the oysters of Peter Poleworth, lawfully planted in the waters of Prince's Bay, in the state of New York; and that, acting in their official capacity as officers of the law, on the 14th of July, 1896, they seized the sloop with her tackle, apparel, and furniture, in accordance with the provisions of such statute. To this portion of the defendants' answer the plaintiffs demurred, upon the ground that it was insufficient in law upon the face thereof, and that it did not state facts sufficient to constitute a defense to the cause of action set up in the complaint. Subdivision 1 of this statute, so far as material to the question under consideration, is as follows: (1) ‘No person shall in any wise interfere with, take, disturb or carry away the oysters of another lawfully planted or cultivated in any of the waters of the state, or remove any stakes or buoys or any boundary marks of any planted or cultivated beds. * * * Whoever shall violate or attempt to violate the provisions of this subdivision shall be guilty of a misdemeanor, and, in addition thereto, shall be liable to a penalty of one hundred dollars for each violation thereof. (2) All sheriffs, deputy sheriffs and constables shall, and any other person may, seize any boat or vessel used by any person or persons in violation of subdivision one of this section, together with the tackle, apparel and furniture of said boat or vessel wherever found, within one year after such violation, and shall forthwith give notice thereof to any justice of the peace of the county where the seizure was made.’ Subdivision 3 declares that the justice to whom the notice is given shall forthwith fix a time and place for trial, and give at least six days' notice of the same to the person or persons in possession of the boat at the time of such seizure, and also to the owner, if known and a resident of the county within which the seizure was made. If the persons entitled to such notice are unknown or not residents of the county, then notice is to be published once a week for two weeks in a newspaper published in the county, describing the boat, stating the grounds of seizure, and the time and place fixed for trial. Subdivision 4 provides that, at the time fixed, or at any time to which it may be adjourned, the justice of the peace shall determine by the evidence taken by him whether the boat was used in interfering with oysters or other shell fish, in violation of the provisions of subdivision one; and, if he shall determine that it was so used, he shall order the same, with its furniture, tackle, and apparel, to be sold, direct the manner of sale, and, from the avails of the sale, deduct the amount of charges and expenses, and pay the remainder to the commissioners of fisheries, game, and forest.

Elmer G. Sammis, for appellants.

Benjamin Patterson, for respondents.

MARTIN, J. (after stating the facts).

The correctness of the judgment of the court below is dependent upon the power of the legislature to enact the statute under which the defendants seek to justify their seizure of the property in question. It is practically conceded that, if the statute is valid, it justified the acts of the defendants, and the allegations of their answer are sufficient to constitute a defense. The validity of this statute is challenged, and the general question arises whether it falls within the inhibition of any of the provisions of either the federal or state constitution. The constitutional limitations applicable to this question are contained in the provisions of the constitution of this state, which declare that ‘trial by jury in all cases in which it has been heretofore used shall remain inviolate forever,’ and the provisions of the federal and state constitutions which provide that no person shall be deprived of life, liberty, and property without due process of law. Const. N. Y. art. 1, §§ 2, 6; Const. U. S. Amend. 14. The statute under consideration makes any interference by one person with oysters or other shell fish belonging to another a misdemeanor, and adds to the ordinary punishment for such an offense a further penalty of $100 for each violation thereof. It then provides that certain officers named shall, and any other person may, summarily, without process or other authority, seize any boat or vessel used in violation of the act, and that upon a six days' notice to the person in possession and to the owner, if known, a justice of the peace shall proceed to take evidence whether the vessel was used in violation of the statute, and, if he shall determine it was, he must order the same to be sold, and the avails, after deducting the charges and expenses, must be paid to the commissioners of fisheries, game, and forest. No provision for a trial by jury is found in any portion of the act, nor is such a trial permissible under it. The learned appellate division held that this statute was in contravention of the constitutional provision which insures a trial by jury in all cases in which it has been heretofore used, and upon that ground alone reversed the decision of the special term, and sustained the plaintiffs' demurrer to the answer. This question was so ably discussed by the learned justice who delivered the opinion of that court that we should deem it wholly unnecessary to do more than concur in the conclusion reached, and upon the grounds so well and ably stated, except for the fact that we cannot agree with the conclusion that the statute is not in conflict with other constitutional provisions. Therefore, while we agree in the result, yet we think the statute violative of other constitutional limitations which render it invalid.

In considering this case, we deem any extended discussion of the question of the invalidity of the statute, because it deprived persons affected by it of the right to a trial by jury, unnecessary, in view of its exhaustive and satisfactory examination by the court below. Section 2 of article 1 of the constitution, which insures a trial by jury in all cases in which it has heretofore been used, was under consideration by this court in the case of Wynehamer v. People, 13 N. Y. 378, 426. It was there said that that provision does not limit the right to mere instances in which it has been used, but extends it to such new and like cases as may afterwards arise. That principle was also recognized in People v. Dutcher, 83 N. Y. 240, 242. The doctrine that the jury trial referred to in that provision means a trial by a common-law jury of 12 men was also asserted in the latter case, and Hill v. People, 20 N. Y. 363, and the Wynehamer Case were referred to as sustaining it. Therefore, if the right to a trial by jury existed in similar cases at the time of the adoption of the constitution, then, clearly, this statute was invalid, for the reason that it in no way provided for such a trial, either in the trial court or upon appeal. That the forfeiture of property used in violation of this statute is in effect a penalty, we have no doubt. We regard it equally clear that suits to enforce forfeitures or penalties have been generally tried by a jury. Consequently, as the statute under consideration makes no provision for such a trial, but provides another exclusive method, it is in conflict with...