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ropolitan board may not have a right to give redress for that which was done under the provisions of the statute. I think the appeal clause would evidently indicate that many exercises of the power of a district board would be in the nature of judicial proceedings, because, certainly when they are appealed from, the appellant and the respondent are to be heard as parties, and the matter is to be decided at least according to judicial forms. I take that to be a principle of very wide application, and applicable to the present case; and I think this board was not justified under the statute, because they have not qualified themselves for the exercise of their power by hearing the party to be affected by their decision.

* There is anoth

WILLES, J. I am of the same opinion. er remark to be made with reference to these parties' proceedings. The board are not only to do the work of demolishing the house, if they think proper, or modifying it, but they are to charge the expenses on the person who has erred against the act. His property is affected and his purse is further affected. What happens upon that? and how is the money to be got? That is a proceeding under the 225th section, which is a section giving jurisdiction to the justices before whom the costs are to be ascertained and recovered; and it is clear that under that section the justices could not proceed without having before them the person against whom the expenses are to be adjudged. And it does seem an absurdity to say that in determining the amount of expenses the party shall be heard, but that in determining whether proceedings should be taken his mouth should be closed. I cannot help thinking that a board exercising this large power should follow the ordinary rule, that the party sought to be affected should be heard; and I think that the verdict for the plaintiff ought to stand.

BYLES, J. I am of the same opinion. This is a case in which the Wandsworth district board have taken upon themselves to pull down a house, and to saddle the owner with the expenses of demolition, without notice of any sort. There are two sorts of notice which may possibly be required, and neither of them has been given-one, a notice of a hearing, that the party may be heard if he has anything to say against the demolition; the other is a notice of the order, that he may consider whether he can mitigate the wrath of the board, or in any way modify the execution of the order. Here they have given him neither opportunity. It seems to me that that board are wrong, whether they acted judicially or ministerially. I conceive they acted judicially, because they had to determine the offense, and they had to apportion the punishment as well as the remedy. This being so, a long course of decisions, beginning with Dr. Bentley's Case, Rex v. Chancellor, etc., of Cambridge, 1 St. 557, 2 Ld. Raym. 1334, 8 Mod. 148, Fortescue, 202, and ending with some very recent cases, establish that, although there are no positive words in a statute requiring

Only a portion of the opinions of Willes and Byles, JJ., are printed.

that the party shall be heard, yet the justice of the common law will supply the omission of the Legislature.

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*

Rule discharged.10

NORTH AMERICAN COLD STORAGE CO. v. CITY OF

CHICAGO.

(Supreme Court of United States, 1908. 211 U. S. 306, 29 Sup. Ct. 101, 53 L. Ed. 195.)

The case involved the question of the validity of section 1161 of the Revised Municipal Code of the City of Chicago for 1905, which reads as follows:

"Every person being the owner, lessee, or occupant of any room, stall, freight house, cold storage house, or other place, other than a private dwelling, where any meat, fish, poultry, game, vegetables, fruit, or other perishable article adapted or designed to be used for human food shall be stored or kept, whether temporarily or otherwise, and every person having charge of, or being interested or engaged, whether as principal or agent, in the care of or in respect to the custody or sale of any such article of food supply, shall put, preserve, and keep such article of food supply in a clean and wholesome condition, and shall not allow the same, nor any part thereof, to become putrid, decayed, poisoned, infected, or in any other manner rendered or made unsafe or unwholesome for human food; and it shall be the duty of the meat and food inspectors and other duly authorized employés of the health department of the city to enter any and all such premises above specified at any time of any day, and to forthwith seize, condemn, and destroy any such putrid, decayed, poisoned, and infected food, which any such inspector may find in and upon said premises.' PECKHAM, J.11 * * * Complainant, however, contends that there was no emergency requiring speedy action for the destruction of the poultry in order to protect the public health from danger resulting from consumption of such poultry. It is said that the food was in cold storage, and that it would continue in the same condition it then was for three months, if properly stored, and that therefore the defendants had ample time in which to give notice to complainant or the owner and have a hearing of the question as to the condition of the poultry; and, as the ordinance provided for no hearing, it was void. But we think this is not required. The power of the Legislature to enact laws in relation to the public health being conceded, as it must be, it is to a great extent within legislative discretion as to whether any hearing need be given before the destruction of unwholesome food which is unfit for human consumption. If a hearing were to be always

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10 Approved by Court of Appeal, Hopkins v. Smethwick Local Board of Health, 24 Q. B. D. 712 (1890).

11 Only a portion of the opinion of Peckham, J., is printed.

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necessary, even under the circumstances of this case, the question at once arises as to what is to be done with the food in the meantime. Is it to remain with the cold storage company, and, if so, under what security that it will not be removed? To be sure that it will not be removed during the time necessary for the hearing, which might frequently be indefinitely prolonged, some guard would probably have to be placed over the subject-matter of investigation, which would involve expense, and might not even then prove effectual. What is the emergency which would render a hearing unnecessary?

We think when the question is one regarding the destruction of food which is not fit for human use the emergency must be one which would fairly appeal to the reasonable discretion of the Legislature as to the necessity for a prior hearing, and in that case its decision would not be a subject for review by the courts. As the owner of the food or its custodian is amply protected against the party seizing the food, who must, in a subsequent action against him, show as a fact that it was within the statute, we think that due process of law is not denied, the owner or custodian by the destruction of the food alleged to be unwholesome and unfit for human food without a preliminary hearing. The cases cited by the complainant do not run counter to those we have above referred to.

Even if it be a fact that some value may remain for certain purposes in food that is unfit for human consumption, the right to destroy it is not, on that account, taken away. The small value that might remain in said food is a mere incident, and furnishes no defense to its destruction when it is plainly kept to be sold at some time as food. California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306–322, 26 Sup. Ct. 100, 50 L. Ed. 204-211; Gardner v. Michigan, 199 U. S. 325, 331, 26 Sup. Ct. 106, 50 L. Ed. 212, 216.

The decree of the court below is modified by striking out the ground for dismissal of the bill as being for want of jurisdiction, and, as modified, is affirmed.12

Mr. Justice BREWER dissents.

12 See Pruden v. Love, 67 Ga. 190 (1881), notice required by statute. Notice in execution of tax distress warrants, see Cooley, Taxation, pp. 441–. 443.

As to summary action against persons, see Haverty v. Bass, 66 Me. 71 (1876), quarantine; Lovell v. Seeback, 45 Minn. 465, 48 N. W. 23, 11 L. R. A. 667 (1891), removal of paupers; also 19 Opinions Attys. Gen. 706 (1890). Collection of taxes by seizure of person, see Palmer v. McMahon, 133 U. S. 660, 10 Sup. Ct. 324, 33 L. Ed. 772 (1890).

FR.ADM.LAW —17

SECTION 32.-FORFEITURE BY ADMINISTRATIVE

PROCESS

WILCOX v. HEMMING.

(Supreme Court of Wisconsin, 1883. 58 Wis. 144, 15 N. W. 435,
46 Am. Rep. 625.)

ORTON, J.13 This is an action of replevin, without claim of delivery, for three horses, the property of the plaintiff, taken and detained by the defendant. The defendant justifies such taking and detention by virtue of his being master or keeper of the public pound of the city of Janesville, and having authority and right under the charter and ordinances of said city to receive and detain said horses in such pound, and to sell the same, on account of their having been permitted by the plaintiff as such owner to run or be at large in one of the streets of said city in violation of such ordinances.

Some questions are raised on the evidence and charge of the court to the jury, which will be first disposed of before the consideration of the important and principal question in the case, viz., the constitutionality of the ordinance in question by which the defendant claims justification, for the taking and detention of the property. * *

5. The main and important objection to the justification of the defendant under pretended legal authority is that the ordinance under which he received, held, and sold the horses of the plaintiff is unconstitutional, as authorizing the forfeiture, condemnation, or confiscation of property without due process of law, and without compensation, etc. It is contended that before the property is sold there should be provision for an adjudication in court of the facts which would make such property liable to be thus taken and sold. What disposition is to be made by the terms of the ordinance of the proceeds of such sale is unimportant in determining the constitutionality of those provisions which authorize the restraint and sale of such property. The mischief complained of ends with the sale, for the property of the owner in such animals is thereby taken away, and it would not cure the mischief and scarcely mitigate the wrong to offer the owner the remnant of the proceeds of the sale after deducting the expenses of keeping and sale, and the fine incurred, or even the proceeds without any such deduction.

The provisions of the charter of the city above cited fully authorize the receiving, keeping, and sale of such animals running at large in the public streets, and the passing of an ordinance to carry such provision into execution, so that the act of the Legislature is amenable to this objection of unconstitutionality, as well as the ordinance itself.

13 Only a portion of the opinion of Orton, J., is printed.

The provisions of the charter above referred to are that such animals. may be "impounded and sold to discharge the penalty for the violation of the ordinance, and the expenses of impounding and sale." Here is found the authority for prescribing a fine for such offense, as well as the impounding and sale. The right of such legislation can be found and justified only by that police power of the state to provide summary and suitable methods and proceedings to protect the public health, peace, and tranquility, and the use of the highway, which transcends private rights and the constitutional provisions for their protection.

[The opinion here cites and quotes from the following cases: Com. v. Alger, 7 Cush. (Mass.) 85; Pettit v. May, 34 Wis. 666; Miles v. Chamberlain, 17 Wis. 446; Rockwell v. Nearing, 35 N. Y. 302; Roberts v. Ogle, 30 Ill. 459, 83 Am. Dec. 201; Clark v., Lewis, 35 Ill. 417; Case v. Hall, 21 Ill. 632; Friday v. Floyd, 63 Ill. 50; Kennedy v. Sowden, 1 McMul. (S. C.) 323; Crosby v. Warren, 1 Rich. Law (S. C.) 385; Shaw v. Kennedy, 4 N. C. 591; Hellen v. Noe, 25 N. C. 495; Whitfield v. Longest, 28 N. C. 268; Spitler v. Young, 63 Mo. 42; Gilchrist v. Schmidling, 12 Kan. 263; White v. Tallman, 26 N. J. Law, 67; Varden v. Mount, 78 Ky. 86, 39 Am. Rep. 208; Cotter v. Doty, 5 Ohio, 393; McKee v. McKee, 8 B. Mon. (Ky.) 433; Hart v. Mayor of Albany, 9 Wend. (N. Y.) 571, 24 Am. Dec. 165.]

There are many other cases which might be cited to sustain this power given in the charter to the common council to make ordinances to restrain animals from running at large in the public streets, and to impound and sell them to pay the expenses, etc. So far the ordinance itself has not been examined. There are some decisions, it must be admitted, which hold that such legislation, as well as ordinances under it, are void as being in conflict with the constitutional provisions for the protection of property; but it is observable that in such cases this police. power, the exercise of which in a summary manner is absolutely necessary for the protection of the public in the use of its highways, is scarcely alluded to. The question is of great importance, and one not without difficulty. To seize and sell, upon necessarily short notice, animals. of great value, because permitted by the owner to run at large in the street, without an adjudication of the offense in the courts, appears to be a harsh remedy. But how this summary mode of proceeding can be avoided, without surrendering the whole police power to protect the highways from such an encroachment, which destroys their use by the public for the time being, we fail to perceive. The owner will not restrain his own animals from running upon the streets. The city authorities must do so, and at once. Then such animals must be fed and cared for and kept until the owner shall pay the expenses and take them away. If he fails or refuses to do so, they must be sold. But we have already taken this view of the case, and will proceed no further with the argument in this opinion, already too long.

The first section of the ordinance prohibits cattle, horses, etc., from running or being at large in any street, highway, etc. The second sec

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