
    Fox vs. Dunckel.
    The act of the legislature, of May 9,1867, amending the act of April 23, 1862, “to prevent animals from running at large in the highways,” and creating a short bar to actions arising under the act amended, is not in violation of section 6, art. 1, of the constitution of the State, which declares that no person shall be deprived of life, liberty, or property, without due process of law.
    
    The act of 1862, which, in Rockwell v. Nearing, (36 N. Y. Rep. 302,) was held to be unconstitutional, so far as it authorized the seizure and sale of property without judicial process, for a private trespass, is, in that respect, distinguishable from the act of 1867 amending the same.
    ACTION for the taking and detention of twenty-one cows claimed to belong to the plaintiff.
    The action was referred to a referee, who found, as facts, that on the 5th day of August, 1867, the plaintiff owned the cows in question, and that on that day they entered and trespassed upon the lands of the defendant, in the town of Palatine, Montgomery county. That while the said cows were so trespassing, the defendant seized and took them into his custody. That on the next day, the 6th of August, he made complaint in writing, under oath, stating the facts, to L. Marcellüs, a justice of the peace of the said town, of Palatine. That the said justice forthwith issued a summons under his hand, stating the facts of such seizure and complaint, and requiring the owner of such cows, or any party having an interest in the same, to appear before the said justic'e, at his office in the said town, on the 17th day of August, then next, at eleven o’clock a. m., to show cause why said cows should not be sold, and the proceeds applied according to .the provisions of “ An act to amend an act, entitled an act to prevent animals from running at large in the public highway.” That the said summons was delivered to a constable of the said town, who, on the same day, served the same, as required by the said act, by posting copies thereof in six public and conspicuous places in said town. That while the defendant was retaining the said cows, under the act aforesaid, and after he had kept the same five days, and before the 17th day of August, the plaintiff commenced this action, and the sheriff took the cows and delivered the same to the plaintiff, who has ever since had the same. That during the said five days, while the cows were in the defendant’s possession, he milked and had the milk of the same. That the cows were worth at least $1000. .
    And the referee found as a conclusion of law, and decided, that the defendant had the right, under the statute .above mentioned, to seize the said cows, and take them into'custody, and that he was in the lawful possession of the same at the time of the commencement of this action; that the plaintiff had no right to the possession of them without a compliance on his part with the provisions of the said act. And he further decided, upon the whole case, that the defendant was, at the time of the commencement of this action, entitled to the possession of the said cows; and he ordered judgment in favor of the defendant, against the plaintiff, in accordance with the above conclusion, with- costs. From the judgment entered upon this report, the plaintiff appealed.
    
      J. Grenter, for the appellant.
    
      J. D. Wendell, for the respondent.
   By the Court, Potter, J.

The only question discussed, in this case, is the constitutional validity of the act of the legislature entitled “ An act to amend an act to prevent animals from running at large in the highways, and to create a short bar to actions under said act.” (Laws of 1867, ch. 814.) The second section of this act declares “it shall be lawful for any person to seize and take into his custody, and retain until disposed of according to law, any animal which may be trespassing upon premises owned or occupied by him.” The third section authorizes and makes it the duty of any person who shall have seized and taken into his possession any animal, under the authority of the preceding section, to make immediate complaint in writing, under oath, stating the facts, to a justice of the peace of the town in which such seizure occurred. Such justice ' is thereby given jurisdiction to hear and determine such matter, and is directed to proceed in the same manner as in civil actions, except as specially charged in that act; and is directed forthwith to issue a summons, under his hand, stating the fact of such seizure and complaint, and requiring the owner of the animal, or any party having an interest in the same, to show cause before such justice, at a time and place to be specified in such summons, why said animal should not be sold, and the proceeds applied as directed in said act. The time to show cause is fixed, in the act, to be not less than ten nor more than twenty days from the issuing of the summons; any constable of the town, or any elector thereof, authorized to do so by the justice in writing thereon, is authorized to serve the summons; such service is required to be made by posting the same in at least six public and conspicuous places in said town, one of which places is required to be the nearest district school-house. At the time and place appointed for the return of the summons, the complainant and any person interested in such animal, or his agents, are allowed to appear in the proceedings, and on filing an oath subscribed by him, denying any or all of the facts alleged in the complaint, shall be deemed to have joined an issue in the proceedings, and the subsequent proceedings are directed to be as in civil actions, so far as they can be; unless otherwise provided in the act. The section further provides for the return of the summons, the appearance of parties interested, a trial by jury &c. by the justice, and if no sufficient cause be shown, that a warrant be issued by the justice, directed to a constable of the town, commanding him'to sell the animals at public auction, in the usual manner of constables’ sales, for the best price he can obtain, and then return the proceeds of sale; and the justice shall then adjudge the costs of the proceedings, according to the rates specified in the act, and the damages sustained by-the complainant by reason of the trespass ; the surplus moneys to be paid to the owner or party entitled to the same, in the manner therein prescribed, and if not demanded within a year, to be paid to the owner or party entitled to the same, in the manner therein prescribed; and if not demanded within a year, to be paid by the justice to the overseers of the town, &e.

The sixth section provides for an appeal to the county court from the trial before the justice.

Such are, substantially, all the provisions of the act in question which are important to be considered, in passing upon this case; and if the act is constitutional, the proceedings under it are regular, and the defendant, on the trial, established a perfect defense.

It is claimed to be in violation of that pa,rt of section 6 of the first article of the constitution of the State of Hew York, which declares that no person shall be deprived of life, liberty, or property, without due process of law. This appeal is based upon the authority of Rockwell v. Nearing, (35 N. Y. Rep. 302,) which gave judicial construction to the act of 1862, of which the act in question is an amendment. That act was held to be unconstitutional, so far as it authorized the seizure and sale of property without judicial process, for a private trespass. ■ In that respect the act of 1867 is clearly distinguishable from the act of 1862. The act of 1867 clearly furnishes a court upon which it confers jurisdiction, in express terms, to issue process, to allow an issue to be joined, to hear the parties upon the merits, to adjudge thereon, as in other civil cases, with the right to appeal to a higher court, for review and trial. Besides, the case of Rockwell v. Nearing clearly recognized as constitutional, and as being by due process of law, all such summary proceedings as were recognized by statute, or at common law, prior to the adoption of the “bill of rights.” The right to distrain cattle damage feasant is as old as American common law, and was recognized by our statutes prior to the adoption of our constitution, (2 R. S. 517; 5th ed., vol. 3, p. 841; 3 Black. Com. 6;) and proceedings under that system which provides forms of trial, and due precautions against oppression, were ever regarded as “by due process of law." “It was a proceeding,” says Blackstone, “ arising from the necessity of the thing itself, as it might otherwise be impossible at a future time, to ascertain whose cattle they were that committed the trespass or damage.” (3 Com. 6.) The learned commentator might have added, had he lived in our day, that it might be sometimes doubtful whether the owner of the cattle was sufficiently solvent, taking into consideration what the statute exempts from liability to execution, to pay the damages done by the trespass. This proceeding is no new, severe, unknown, extraordinary or oppressive proceeding; nor is the statute to be regarded as penal, but remedial. The party injured is provided with a summary remedy, it is true, but a remedy established by long usage, and rules of statute and common law, entirely suited to the exigencies of the case, giving the owner full protection against all excesses or abuses which may grow out of the law. How then is this law unconstitutional ? Surely the legislature is not prohibited from transferring the jurisdiction of assessing or appraising damages from fence viewers to justices of the peace. Eor can it be contended that justices are less qualified to appraise damages by sworn testimony, than fence viewers. Eor should the owner of beasts complain of a change of the law that gives him a jury of the vicinage to hear his defense, and to assess damages—nay, to add to his security by the right, of appeal to a higher tribunal. If, then, the act in question, which confers jurisdiction on justices, is not inhibited by the constitution, the provisions made to carry out the proceedings to final judgment must be incident to the necessary exercise" of the power conferred.

[Saratoga General Term,

November 1, 1869.

Eor can the court declare the act to be unconstitutional because of the possibility, or even probability, that the officers or parties with whom power is intrusted to carry out its provisions, may, or can, abuse that trust; or because a short statute of limitations is enacted, as to the right to the surplus arising from sales. The plaintiff is, I think, mistaken in his view of what the case of Rockwell v. Nearing decides. Some of the strong remarks of Judge Porter in that case, based upon the assumption of. the invalidity of the act of 1862, affording a summary remedy unknown to the common law, while appropriate in that case, do not apply to this. There it was held that there had been an abuse of power after the seizure of the cattle; here there had been none. That was not a seizure damage feasant; this is: that statute provided for seizure without judicial trial; this allows a trial, and a defense upon the merits. In this the proceeding was by due process of law; in that there was no such proceeding. The cases are dissimilar in principle.

I think the judgment should be affirmed.

Bockes, Potter and Rosekrans, Justices.]  