Foule & Roper v. Mann

• Decision Date: 17 December 1879
• Citation: Foule & Roper v. Mann, 53 Iowa 42, 3 N. W. 814 (Iowa 1879)
• Parties: FOULE & ROPER v. MANN
• Court: Iowa Supreme Court

3 N.W. 814

53 Iowa 42

FOULE & ROPER v. MANN

Supreme Court of Iowa, Des Moines

December 17, 1879

Appeal from Harrison District Court.

ACTION to recover specific personal property, which, it was stated in the petition, the defendant as constable, under and by virtue of an execution, had levied upon and taken from plaintiffs' possession.

The answer, among other things, stated "defendant states that after the levy (mentioned in plaintiffs' petition) on the property therein mentioned by this defendant as constable, an indemnifying bond was given to him with good and sufficient sureties approved by said officer as provided by law, which bond was duly returned to the court that issued the execution mentioned in plaintiffs' petition and filed by said court with the execution in the case of the Milburn Wagon Co. v. W. T. Nash and E. H. McBride, which is a bar to this action"

To this portion of the answer a demurrer was interposed on the ground that the statute on which it is based is unconstitutional.The demurrer was overruled and the plaintiffs appeal.

REVERSED.

Cochran & Bailey, for appellants.

F. M Dance, for appellee.

SEEVERSJ. ADAMS, J., dissenting.

OPINION

SEEVERS, J.

I.

The Code, section 3055, provides that an officer, if he has received the notice therein contemplated, may refuse to levy or release the levy made unless an indemnifying bond is given him, and section 3058 is as follows: "The claimant or purchaser of any property, for the seizure or sale of which an indemnifying bond has been taken and returned by the officer, shall be barred of any action against the officer levying on the property if the surety on the bond was good when it was taken.Any such claimant or purchaser may maintain an action upon the bond and recover damages as he may be entitled to."

Under this statute the defense was pleaded and the effect of the decision below is to compel the plaintiffs to accept the money value of the property, and damages for the unlawful taking, in lieu of the property, and the question is whether this statute is constitutional.

The constitution of this State provides that "no person shall be deprived of life, liberty or property without due process of law."Article 1, section 9, Code, 770.And the same provision is contained in the constitution of the United States.

The plaintiffs claim to be the owner of a portion of the property in question, and for the purposes of this case such property must be regarded as belonging to them.As the defendant relied on the statute as a defense to the whole action, and the defense was so pleaded, the demurrer should have been sustained if the same constituted a partial defense only.

"Due process of law" has been variously defined, but it "undoubtedly means in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights."EDWARDS, J., Westervelt v. Gregg, 2 Kernan 209; and it was intended thereby "to secure the individual from the arbitrary exercise of the powers of government unrestrained by the established principles of private rights and distributive justice."Bank of Columbia v. Okely, 17 U.S. 235, 4 Wheat. 235, 4 L.Ed. 559.Under the pretence that the property in question belonged to the defendants in execution, the officer levied upon and took possession of the property of the plaintiffs.The latter are thereby deprived of such property without a trial, "without having had their day in court," without a pretence that the forms and proceedings known to the law of the land have been complied with, and in effect the plaintiffs are compelled to sell their property on the market whether they so desire or not.The process in the defendant's hands did not authorize him to take the plaintiffs' property, and, therefore, for the purposes of this case, it cannot be regarded as due process of law.

There is no rule or principle known to our system under which private property can be taken from one man and transferred to another for the private use and benefit of such other person, whether by general laws or by special enactment.Cooley on Constitutional Limitations, 357.

If the plaintiffs cannot recover the specific property taken, they are deprived thereof without their consent under and by virtue of a general statute.If this had been done directly that is, if the statute had so provided in terms, no one would claim it was constitutional.In effect this precise thing has been done, and the plaintiffs' property has been transferred to another unless they can have their day in court, and their right to the specific property adjudicated.The...