43 N.Y.S. 364 | N.Y. App. Div. | 1897
The action is replevin and the allegations of' the complaint show that the plaintiffs are the owners of the oyster sloop Jessie, together with a large number of articles of personal property; that heretofore the defendants wrongfully and unlawfully took from the possession of the plaintiffs said sloop and other articles of personal property to the plaintiffs’ damage. The answer admits the ownership of the property and its taking, and for an affirmative defense it is averred that they are officers of the law, duly commissioned as such by the Fisheries, Game and Forest Commission of' the State; that as such officers they are charged with the duty of executing the fish and game laws of the State; that the said sloop Jessie was, prior to her seizure, used in violation of subdivision 1 of section 189 of the Fisheries, Game and Forest Law,.in that the said sloop was engaged in disturbing the oysters of one Peter Polworth, lawfully planted in the waters of Prince’s bay in the State of New York; that acting as such officers, and in their official capacity, they seized the sloop together with her tackle, apparel and furniture, in accordance with the terms of subdivision 2 of the aforementioned law.
The demurrer which is interposed is to the affirmative defense, and its grounds are stated to be that it is insufficient in law upon its face, and that it does not state facts sufficient to constitute a defense
“ 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.
“ 3. The justice of the peace, to whom such notice is given, as provided in subdivision two of this section, shall forthwith fix a time and place for trial, and give at least six days’ previous notice of the same to the person or persons in possession of said boat or vessel at the time of such seizure, and also to the owner thereof, if said persons entitled to such notice are known and are residents of the county within which the seizure is made. If any of the persons entitled to such notice are unknown, or are non-residents of the county where the seizure is made, then the said justice of the peace shall order that a notice directed' to such person or persons, if known, or if unknown, then generally to whom it may concern, be published once a week, for two successive weeks, in a newspaper published in the said county, which notice shall contain, as near as may be, a description of the boat, vessel or property seized, a concise statement of the grounds of seizure thereof and the time and place fixed by the said justice of the peace for trial, which túne shall not be less than six days from the day of the last publication of such notice.
By consent of parties, announced upon the argument, the answer is to be considered as in all respects sufficient as a justification of the seizure under the act, and the sole question presented for our determination is the constitutionality of the statute itself. The right of the State to exercise dominion and control over its territory extends to and embraces the lands which lie under the waters within its jurisdiction, and under its proprietary rights therein it may regulate and control the public right of fishery, and also protect private rights of property therein, so far as they may be properly recognized in connection with the public enjoyment. This right of the State to exercise control over that part of its territory which lies below high-water mark is subject only to the exception that its legislation in respect thereto shall not come in conflict with the laws of the United States in its admiralty jurisdiction or otherwise. (United States v. Bevans, 3 Wheat. 386.) So far as relates to the police power, the State has the same rights and possesses the same power to regulate the public enjoyment and protect private interests in this part of its domain as it has over other parts of its territory, and to this end it may enact such laws as will preserve from destruction the public right of fishery in its waters and forbid acts which interfere with the public right or private enjoyment therein. Such laws in nowise conflict with the authority of the United States in its admiralty jurisdiction or otherwise. (Smith v. State of Maryland, 18 How. [U. S.] 71.)
In that case it was held, under a statute of the State of Maryland, • in many respects similar to the one we are now considering, that
It is the established doctrine of these cases that it is no objection to such legislation that the property forfeited is innocent and harmless of itself, or that the owner may not have consented to its use for the unlawful purpose. The right exists in the Legislature to declare it a nuisance and, in some cases, direct its summary destruction without judicial process. The power to declare the property forfeited and provide for a judicial determination so adjudging it, for an offense such as this law creates, is clearly upheld, and the discussion in the cases above cited covers every view of the question touching the power to declare the property forfeitable. It is not necessary, therefore, that we further pursue the discussion upon this branch of the case. What facts will constitute a defense to an action brought to forfeit property violating the act presents a question which may become difficult of solution. If the property was used to violate the act, in direct opposition to the wishes and commands of the owner, of if it should'be stolen and so used by those guilty of the larceny, a strong equitable case would be presented, to say the least, in favor of the owner. But would it constitute a defense to a decree of forfeiture? It is intimated in Boggs v. Commonwealth (76 Va. 989, 997) that such conditions might constitute a defense. It may be that in such event the vessel would be considered as being out-side of the statute, which would be held not to apply to such a case. But we may now make two answers to this consideration. It is hot necessary to a disposition of this case for us to decide the question ■—-consequently, we express no opinion thereon. Assuming it to be a fact that an innocent owner may suffer, does not necessarily render such a. statute unconstitutional. (U. S. v. Brig Malek Adhel, 2 How. [U. S.] 233; Bertholf v. O'Reilly, 74 N. Y. 525.)
Does this act meet this requirement ? ' So far as the vessel is concerned, the proceeding for forfeiture, although in the nature of a penalty, is a proceeding in rem against the thing itself. The cause of forfeiture is a trespass upon public or individual rights. The personal trespass committed by the individual is made a misdemeanor and a penalty is attached thereto. The article by means of which the trespass was committed is declared liable to seizure and forfeiture. The act authorizes the seizure of the vessel without complaint made to, or process issued by, any. court or judicial officer. In principle, the case is not different from the act authorizing a seizure of animals found trespassing or running at large. To some .extent the necessity for such seizure grows out of the character of the property which is the subject of the forfeiture. Unless immediate seizure was permitted of the animals trespassing, before process could be obtained they might travel off and get beyond reach, or they might continue to inflict damage. In the case of the vessel it can sail away beyond the jurisdiction of the court and may never be found to be subjected to the just demands of the statute it has offended, unless immediate seizure be permitted. But, however this may be, or whether there be in fact any necessity for authorizing seizure without process, it is settled law that a temporary seizure of property without process, to be held to await subsequent judicial action in respect thereto, violates no provision of the Constitution. (Cook v. Gregg, 46 N. Y. 439; Corfield v. Coryell, 4 Wash. C. C. 371.)
After seizure the act provides for a judicial proceeding, which may or may not lead to a judgment of forfeiture of the thing seized. It provides, first, for a personal notice to the person.or persons in
It was said in that case: “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 best 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.” The same doctrine is also announced in Happy v. Mosher (48 N. Y. 313). There is, therefore, no difficulty in supporting the act in this respect.
By the provisions of this statute it is made the duty of sheriffs, deputy sheriffs and constables,- to seize any boat or vessel violating the act, and any other person may make the seizure. Yessels of the largest tonnage and of immense worth are thus made liable to seizure, there being no limit in the act as to size, character or value. A justice of the peace is given jurisdiction to decree forfeiture and direct sale after hearing the evidence. No provision for a trial by jury is given and no right of appeal is provided.- The right which the Constitution secures to the person whose property is sought to be taken is a trial by jury as such right formerly existed. If the right to it did not formerly exist then he is. not how entitled to have it preserved or provided. (Sheppard v. Steele, 43 N. Y. 52; People ex rel. Witherbee v. Supervisors, 70 id. 228-234; Cooley Const. Lim. 504, 505.)
To a limited extent the power exists in the Legislature exercising its authority to protect and preserve the public interests from destruction, to restrain the unlawful depredation of individuals in
The question, of constitutional right to a trial by jury, in the -exercise of power which we are now considering, was much considered in the case of Wynehamer v. The People (13 N. Y. 426). It was there said that the provision of the Constitution, preserving- the right to a jury trial, where it had previously existed, did not “ limit the right to the mere instances in which it had been used, but extends it to such new and like cases as might afterwards arise.” In People ex rel. Comaford v. Dutcher (83 N. Y. 240) it was held that the offense of petty larceny was within the constitutional provision requiring a jury trial, .were it not for the fact that by amendment of section 23 of article 6 of the Constitution, jurisdiction of offenses of the grade of misdemeanor was conferred upon Courts of Special Sessions.' These cases are authority, therefore, for the proposition that where the right to trial by jury existed at the time of the ad op
It cannot be doubted that a forfeiture of property for a prohibited act is a penalty for committing the act. It is so denominated by lexicographers, and is so treated in judicial decisions. (Lawton v. Steele, 152 U. S. 138.) It was said by Judge Strong, in Wood v. City of Brooklyn (14 Barb. 432): “ It is a matter of public notoriety that suits for penalties * * * have generally been tried before a jury. If there have been exceptions they have not been sufficiently numerous to affect the general usage. The introduction of a new subject into a class renders it amenable to its general rules, not to its exceptions, unless there is something peculiar calling for their application. To allow the Legislature to except from the operation of a constitutional provision, by direct enactment, a matter clearly falling within its meaning, would sanction a fraud npon the organic law and might in the end destroy its obligation.” (Warren v. People, 3 Park. Crim. Rep. 544.)
. We think this quotation a correct exposition of the law upon the subject to which it relates. In Fire Department of N. Y. v. Harrison (2 Hilt. 455) it was held that an action to recover a statutory penalty was triable by jury, and that it was beyond the power of the Legislature to confer such authority upon a court of equity. A diligent search will show that in nearly all, if not all, of the statutes of this State, where a penalty has been imposed which may be enforced against the property of the individual, the remedy is uniformly by action, where the party has the right to a trial by jury, except in those cases and some others to be hereafter noted, where, as we have seen, summary destruction of property is permissible. (Bennett v. Ward 3 Caines, 259.) In this respect the rule is different as regards the person. Acts are prohibited and penalties are attached to their commission, which when incurred maybe and are enforced against the person
But whatever may be the state of the law upon this subject at the present time, it is sufficient for us to say that, admitting the right to exist to enforce a fine of any character by execution, the present
The provisions of the present law fail to provide for a trial and determination of the issues which may be presented by a jury, and, therefore, work a change in the general usage which has heretofore prevailed in such cases. As we have before observed, the act makes no provision for an appeal, and, therefore, presents no opportunity for a trial by jury in any appellate tribunal, a provision which was held to answer the requirement of the Constitution in The People ex rel. Murray v. Justices (74 N. Y. 406).
.We are, therefore, of opinion that this act, so far as it provides for a determination of the question of forfeiture by the justice without the intervention of a jury, is within the prohibition of the Constitution, and repugnant thereto as authorizing the divestiture of property of the individual without due process of law, and in violation of his right to a trial by jury. We are cited to the case of Haney v. Compton (7 Vroom [N. J.], 507) as holding a doctrine contrary to the conclusion at which we have arrived. It must be admitted that this case decides what is claimed for it. . The statute; which was the subject of consideration.-in that case in this - respect; is quite similar in its provisions to the one now before us. The discussion of the present question, however, is quite meagre, and the holding is made to rest upon the authority of McGear v. Woodruff (4 Vroom, 213), and, while the opinion states that the question considered in the latter case is analogous to the one determined in the 'former, jet an examination, as we conceive, shows it to have been quite different. In' the McGear case the question arose in an action to recover a penalty for á violation of a municipal ordinance, to which the penalty attached was a fine of not exceeding twenty dollars, or imprisonment for a term not exceeding seven days.' The decision was rested upon the ground that, as to actions and-proceedings for petty offenses, the constitutional right to a trial by jury had not
It follows that the interlocutory judgment should be reversed and judgment ordered in plaintiffs’ favor upon the demurrer, with costs.
All concurred.
Interlocutory judgment overruling demurrer reversed and demurrer sustained, with costs of demurrer and of this appeal, with leave to defendants to amend then* answer within twenty days, on- payment of such costs.