71 P. 900 | Ariz. | 1903
This action was brought by Mercedes Downey, the defendant in error, for the recovery of the value of a horse claimed by her, which had been impounded and sold to the plaintiff in error, the defendant in the action, by the poundkeeper of the justice precinct, under act No. 41, page 32 of the Laws of 1893. Judgment was entered in the court below in favor of the plaintiff upon an agreed statement of facts, and that judgment is brought to this court for review by writ of error.
The agreed statement of facts shows the compliance in every particular with the requirements of the act, and the regularity of the impounding and sale; and the only question to be determined in this court is whether or not the act is constitutional. The act in question provides that a majority of all the taxpayers residing in any justice precinct in the territory may petition the board of supervisors of the county in which such precinct is situated, expressing their desire that no fence shall be required around the lands in such precinct, and that, after the filing of such petition and due publication thereof, no fence shall be required around the lands in such precinct, and it shall be unlawful for any animal to run at large in such precinct thereafter: By section 2 of the act the constable of the precinct is made the poundkeeper of the precinct, and by section 3 it is provided, if any neat cattle, horses, etc., shall trespass or do any damage upon the premises of any person in such justice precinct, an action against the owner of the trespassing animals may be maintained. By section 4 and subsequent sections the act further provides that the owner of any property may detain all animals doing damage on such property and turn them over to the pound-keeper, who shall examine all marks or brands on them, and post notices containing a description of the animals, the amount of damages and costs for which they are detained, and the date and place at which they shall be sold, and such other information as the poundkeeper may deem advisable to bring the attention of the owner of the animals to the detention of the same. If the damages, costs, and expenses of keeping the animals are not paid and the animals claimed
It will be observed, however, that in these cases, and in all the cases we have examined on this subject, no court has held that a legislature has acted within the limits of its authority when it has attempted to authorize by such an act as is now in question, in the manner therein provided, a recovery or a recompense for damages suffered by an individual by reason of the trespass by animals at large upon his private property. We have not before us the question whether the legislature has the power to pass an act restricting the running at large of animals, and providing that they be impounded and sold by an officer upon such notice as may be proper, to meet the charges of impounding if not paid. Such control and the regulation of conflicting interests of stockmen and farmers, if deemed advisable, is a proper exercise of legislative authority, when confined thereto. Nor do we pass upon the question whether the legislature, in the act before us, has not properly provided by section 3 thereof for an action on the part of the farmer against the owner of animals trespassing upon his lands, and thereby has adopted and declared for this territory the common-law rule with respect thereto. Neither do we pass upon the validity of this section of the act. The objectionable feature of the act is that, independent of any pro
We have no doubt that the portion of the act which authorizes a seizure and sale and a payment of damages claimed for the trespass without judicial process or proceedings other than as provided for in the act is a deprivation of property without due process of law, and as such is repugnant to the constitution. Such is the logical deduction to be made from the reasoning of the courts in the eases cited above, with which we are in accord; and, in addition thereto, questions nearly identical have been so determined by the courts of last resort in New York and Texas. Rockwell v. Nearing, 35 N. Y. 302; Armstrong v. Traylor, 87 Tex. 598, 30 S. W. 440.
The decision of the trial court was right, and the judgment is affirmed.
Sloan, J., Davis, J., and Doan, J., concur.