bitrarily to declare that to be a nuisance which is clearly not so, a good deal must be left to its discretion in that regard; and, if the object to be accomplished is conducive to the public interests, it may exercise a large liberty of choice in the means employed. Railway Co. v. Hunt, 50 N. J. Law, 308, 12 Atl. 697; Blazier v. Miller, 10 Hun, 435; Mouse's Case, 12 Coke, 63; Stone v. Mayor, 25 Wend. (N. Y.) 173; Print Works v. Lawrence, 21 N. J. Law, 248; Id., 23 N. J. Law, 590, 57 Am. Dec. 420. It is not easy to draw the line between cases where property iilegally used may be destroyed summarily and where judicial proceedings are necessary for its condemnation. If the property were of great value, as, for instance, if it were a vessel employed for smuggling or other illegal purposes, it would be putting a dangerous power in the hands of a custom officer to permit him to sell or destroy it as a public nuisance, and the owner would have good reason to complain of such act as depriving him of his property without due process of law. But where the property is of trifling value, and its destruction is necessary to effect the object of a certain statute, we think it is within the power of the Legislature to order its summary abatement. For instance, if the Legislature should prohibit the killing of fish by explosive shells, and should order the cartridges so used to be destroyed, it would seem like belittling the dignity of the judiciary to require such destruction to be preceded by a solemn condemnation in a court of justice. The same remark might be made of the cards, chips, and dice of a gambling room. The value of the nets in question was but $15 apiece. The cost of condemning one (and the use of one is as illegal as the use of a dozen) by judicial proceedings would largely exceed the value of the net, and doubtless the state would, in many cases, be deterred from executing the law by the expense. They could only be removed from the water with difficulty, and were liable to injury in the process of removal. The object of the law is undoubtedly a beneficent one, and the state. ought not to be hampered in its enforcement by the application of constitutional provisions which are intended for the protection of substantial rights of property. It is evident that the efficacy of this statute would be very seriously impaired by requiring every net illegally used to be carefully taken from the water, carried before a court or magistrate, notice of the seizure to be given by publication, and regular judicial proceedings to be instituted for its condemnation. There is not a state in the Union which has not a constitutional provision entitling persons charged with crime to a trial by jury, and yet from time immemorial the practice has been to try persons charged with petty offenses before a police magistrate, who not only passes upon the question of guilt, but metes out the proper punishment. This has never been treated as an infraction of the Constitution, though technically a person may in this way be deprived of his liberty without the intervention of a jury. Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223, and cases cited. So, the summary abatement of nuisances without judicial process or proceeding was well known to the common law long prior to the adoption of the constitution, and it has never been supposed that the constitutional provision in question in this case was intended to interfere with the established principles in that regard. Nor is a person whose property is seized under the act in question without his legal remedy. If, in fact, his property has been used in violation of the act, he has no just reason to complain; if not, he may replevy his nets from the officer seizing them, or, if they have been destroyed, may have his action for their value. In such cases the burden would be upon the defendant to prove a justification under the statute. As was said by the Supreme Court of New Jersey in a similar case (Print Works v. Lawrence, 21 N. J. Law, 248, 259): "The party is not, in point of fact, deprived of a trial by jury. The evidence necessary to sustain the defense is changed. Even if the party were deprived of a trial by jury, the statute is not, therefore, necessarily unconstitutional." Indeed, it is scarcely possible that any actual injustice could be done in the practical administration of the act. It is said, however, that the nets are not in themselves a nuisance, but are perfectly lawful acts of manufacture, and are ordinarily used for a lawful purpose. This is, however, by no means a conclusive answer. Many articles-such, for instance, as cards, dice, and other articles used for gambling purposes-are perfectly harmless in themselves, but may become nuisances by being put to an illegal use, and in such cases fall within the ban of the law, and may be summarily destroyed. It is true that this rule does not always follow from the illegal use of a harmless article. A house may not be torn down because it is put to an illegal use, since it may be as readily used for a lawful purpose (Ely v. Supervisors, 36 N. Y. 297); but, where minor articles of personal property are devoted to such use, the fact that they may be used for a lawful purpose would not deprive the Legislature of the power to destroy them. The power of the Legislature to declare that which is perfectly innocent in itself to be unlawful is beyond question (People v. West, 106 N. Y. 293, 12 N. E. 610, 60 Am. Rep. 452); and in such case the Legislature may annex to the prohibited act all the incidents of a criminal offense, including the destruction of property denounced by it as a public nuisance. In Weller v. Snover, 42 N. J. Law, 341, it was held that a fish warden for a county, appointed by the governor, had the right, under an act of the Legislature, to enter upon land and destroy a fish basket constructed in violation of the statute, together with the materials of which it was composed, so that it might not again be used. It was stated in that case that, "after a statute has declared an invasion of a public right to be a nuisance, it may be abated by the destruction of the object used to effect it. The person who, with actual or construc tive notice of the law, sets up such nuisance, cannot sue the officer whose duty it has been made, by the statute, to execute its provisions." So, in Williams v. Blackwall, 2 Hurl. & C. 33, the right to take possession of or destroy any engine placed or used for catching salmon in contravention of law was held to extend to all persons, and was not limited to conservators or officers appointed under the act. It is true there are several cases of a contrary purport. Some of these cases, however, may be explained upon the ground that the property seized was of considerable value. Ieck v. Anderson, 57 Cal. 251, 40 Am. Rep. 115, boats as well as nets; Dunn v. Burleigh, 62 Me. 24, teams and supplies in lumbering; King v. Hayes, 80 Me. 206, 13 Atl. 882, a horse. In others the court seems to have taken a more technical view of the law than the necessities of the case or an adequate protection of the owner required. Lowry v. Rainwater, 70 Mo. 152, 35 Am. Rep. 420; State v. Robbins, 124 Ind. 308, 24 N. E. 978, 8 L. R. A. 438; Ridgeway v. West, 60 Ind. 371.16 Upon the whole, we agree with the Court of Appeals in holding this act to be constitutional, and the judgment of the Supreme Court is therefore affirmed. Mr. Chief Justice FULLER (dissenting). In my opinion the legislation in question, so far as it authorizes the summary destruction of fishing nets and prohibits any action for damages on account of such destruction, is unconstitutional. Fishing nets are in themselves articles of property entitled to the protection of the law, and I am unwilling to concede to the Legislature of a state the power to declare them public nuisances, even when put to use in a manner forbidden by statute, and on that ground to justify their abatement by seizure and destruction without process, notice, or the observance of any judicial form. The police power rests upon necessity and the right of self-protection, but private property cannot be arbitrarily invaded under the mere guise of police regulation, nor forfeited for the alleged violation of law by its owner, nor destroyed by way of penalty inflicted upon him, without opportunity to be heard. It is not doubted that the abatement of a nuisance must be limited to the necessity of the occasion, and, as the illegal use of fishing nets. would be terminated by their withdrawal from the water and the public be fully protected by their detention, the lack of necessity for the arbitrary proceedings prescribed seems to me too obvious to be ignored. Nor do I perceive that the difficulty which may attend their removal, the liability to injury in the process, and their comparatively small value ordinarily, affect the principle, or tend to show their summary destruction to be reasonably essential to the suppression of the illegal use. Indeed, I think that that argument is to be deprecated 16 See, also, Edson v. Crangle, 62 Ohio St. 49, 56 N. E. 647 (1900); Dunn v. Burleigh, 62 Me. 24 (1873). as weakening the importance of the preservation, without impairment in ever so slight a degree, of constitutional guaranties. I am, therefore, constrained to withhold my assent to the judgment just announced, and am authorized to say that Mr. Justice FIELD and Mr. Justice BREWER concur in this dissent.17. 17 Compare Colon v. Lisk, 153 N. Y. 188, 47 N. E. 302, 60 Am. St. Rep. 609 (1897). See, also, Fisher v. McGirr. 1 Gray (Mass.) 1, 61 Am. Dec. 381 (1854); Lincoln v. Smith, 27 Vt. 328 (1855); Bridge Street, etc., Co. v. Hogadone, 150 Mich. 638, 114 N. W. 917 (1908); Freund, Police Powers, §§ 525-527. PART II RELIEF AGAINST ADMINISTRATIVE ACTION CHAPTER VII ACTIONS TO RECOVER DAMAGES OR MONEY SECTION 33.-AGAINST OFFICERS-JUDGES LANGE v. BENEDICT. (Court of Appeals of New York, 1878. 73 N. Y. 12, 29 Am. Rep. 80.) FOLGER, J. The plaintiff has brought an action against the defendant for false imprisonment, and detention in prison. He alleges that it was wrongful and willful, without just cause or provocation. He does not allege that it was malicious or corrupt. The complaint in the action sets out the facts in extenso upon which the plaintiff relies. To this the defendant has demurred, stating three causes of demurrer; but the one cause relied upon is that the complaint does not state facts sufficient to constitute a cause of action. It is well, therefore, to state with some particularity the facts which are alleged, or are conceded. In October, 1873, the defendant was judge of the District Court for the United States of the Eastern District of New York. As such, by virtue of an act of Congress, he presided at and held the Circuit Court of the United States for the Southern District of New York for the October term of that year. The plaintiff was at that term arraigned upon an indictment of twelve counts, the general purport of which was that he had stolen, embezzled, or appropriated to his own use, certain mail-bags, the property of the United States, of the value of twenty-five dollars. He was tried upon the indictment. The verdict of the jury was, generally, that the plaintiff was guilty, and that the value of the mail-bags was less than twenty-five dollars. He was indicted under an act of Congress, which declared the offense and affixed the punishment. By that act, if the value of the mail-bags taken was found to be less than twenty-five dollars, the punishment for the offense was a fine of $200 or im1 Only a portion of this case is printed. (269) |