Thе act of 1867 (chap. 814), under which the defendant seized the plaintiff’s horses, was passed to avoid the objections which this court, at the preceding March term, had held fatаl to the act of 1862 (chap. 459), so far as the same authorized the seizure and sale of animals trespassing on the lands of others. The vice of that act was that it did not prоvide for a notice to the owner, or a judicial condemnation of the property, or an adjudication of the right to sell, but permitted a sale without giving a hearing to the owner, and without process or warrant. It is true that the court
*358
did not decide that the same provisions for the seizure and sale of animals found running at large in public highways, streets аnd parks, would be subject to the same condemnation, but, in terms, left that question undecided.
(Rockwell
v.
Nearing,
It must be regarded as within the legitimate power of legislative action to protect, by proper laws and under suitable penalties, the public highways of the State, and sеcure to the people the free and unimpeded use of them. The subject-matter of the act was within the general powers vested in the legislature to pass such acts as, in their judgment, will conduce to the welfare of the citizens and the public good ; and in its general scope and terms, its purpose and object, it is not repugnant to оr forbidden by the Constitution.
(Rockwell
v.
Nearing, supra; Commonwealth
v.
Alger,
The only question on this branch of the case is, whether in the provision made for enforcing the law and giving it practical effect, the act does seсure to .the party whose property is seized that judicial investigation and determination to which he is entitled under the Constitution, before he can be deprived of his proрerty.
Property cannot be confiscated by act of the legislature, or taken from the rightful owner without a forensic trial and judgment, a trial by the ordinary modes of judicial prоceeding.
(Taylor
v.
Porter,
In Westervelt v. Gregg (2 Kern., 202), it was said that “ due process of law undoubtedly means, in the due course of *359 legal proceedings according to those rules and forms which have been established for the protection of private rights.” The law does provide for a judicial investigation and a final judgment as a prerequisite to the sale of the propеrty, and only authorizes a sale upon process issued by the magistrate on execution of the judgment.
It is no objection to the proceedings that personal notice to the owner or other claimant of the property is not made necessary by the act, or essential to the jurisdiction of the magistrate, or that the proceedings are, to some extent, summary. The proceedings are in the nature of proceedings in rem, the penalty or forfeiture attaching to and being a lien upon the offending animals. The owner may or may not be known; the animals are not in the actual possession and custody of any one, either as owner or otherwise; they are “ running at large.” In analogy to proceedings in other cases in rem, or for enforcing specific liens upon or forfeiture of property, the legislature has provided for notice, in such form and for such length of time as they thought reasonable, and bеst calculated to inform the owner of the proceedings, and give him an opportunity to be heard; and the mode and manner of giving the notice is neither untenable or illusory.
In admiralty and maritime proceedings, a citation by posting, as prescribed by the practice of the court, is a very usual way of acquiring jurisdiction; and, under the statutes of this Stаte, there are various proceedings, both in rem and in personam,, in which the party to be affected only has notice;- by a publication or posting, of the summons or notice. Judge Denio, in The Matter’ of the Empire City Bank (18 N. Y., 215), refers to severаl proceedings of this character; and other examples of the same kind might be cited. Judge Denio says, in the case cited, “ When the legislature has prescribed a kind оf notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded to defеnd, I am of opinion that the courts have not the power to pronounce the proceeding illegal.” The principle is the same when the *360 proceeding is against property. A person whose cattle have been seized will be very likely to learn the fact, and of the proceedings against them, if notices are posted in six conspicuous places in the town for ten days or more. But it was peculiarly within the province of the legislature to prescribe the notice, and direct the manner оf "service. •
The statute seems, by implication, if not directly, to require the summons to be posted for ten days.
The only object of requiring a given number of days between the issuing and return оf the process is, that it may be the more likely to come to the knowledge of the party to be affected by the proceeding. This purpose can only be aсcomplished by a service, as well as by an issue; and, although it need not be decided in this case, such will probably be the decision should the question ever arise. Such reasоnable construction should be given the act as to uphold it and carry out the intent of the legislature, rather than that which will render it void, or cause it to work an injustice, in opposition to the intent of its framers. The legislature had clearly the right to prohibit animals from running at large on the public highways ; to enforce the observance of the act by рenalties; to make the penalties a lien upon the cattle found running at large in violation of the act; and to authorize a distress and sale of the property for the payment of the penalties. In the act of 1867,they have exercised this power, and have, by the same act, carefully protected the right of the owner, and guarded against a sale by which he would be deprived of his property, except by the judgment of a court in the ordinary course of judicial proceedings, after an oрportunity to defend, and upon a warrant to a proper officer in execution of the judgment. The judge has found that the defendant was an overseer of highways; that the hоrses were found by him running at large within his district; and that he seized and took them, in the proper discharge of his duty; and, as conclusion of law, that the act under which he proceedеd was constitutional, and that he was entitled to judgment for a return of the property and damages for its detention.
*361 The other findings of fact and conclusions of law are surplusаge. The defendant justifies the seizure and detention of the property by virtue of his office under the statute, and not under the proceedings and judgment of the justice. His acts gavе jurisdiction to the justice, and his authority is derived from the statute, and not from the acts of the magistrate. There is no complaint that, by any unlawful act or omission of duty after the seizurе, he became a trespasser ab initio. The judge, in his findings of fact and conclusions of law, incorporated in the judgment-roll, finds that the defendant’s interest in the property was thirty dollars аnd fifty cents, and that he is entitled to judgment for a return of the property, or the value of his interest therein, to the amount named. Ho objection or exception was made or taken to this part of the finding, and it is not made a part of the case. The judge, had there been no judgment by the justice, might have assessed the penalty under the statute; but, in the рresent case, he probably has taken the judgment of the justice as evidence of the amount of the penalty lawfully chargeable upon the property. There was no question made upon the trial as to the amount of the lien, if the defendant was entitled to a judgment for a return. The main question intended to be presented by the contеst, to wit, the validity of the law, was fairly presented, and is before us upon this appeal. The questions touching the regularity of the proceedings before the justice were inсidentally presented, but the action was not brought to test them; and, as a decision of these, either way, would not affect the justification of the defendant, or deprive him of the shield of the statute under which he acted, they need not be considered.
The judgment must be affirmed.
Judgment affirmed.