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jurisdiction to hear and determine such matter, and shall thereupon proceed in the same manner as in civil actions, except as specially changed by said act; and shall forthwith issue a summons, stating the fact of such seizure and complaint, and requiring the owner or any party interested in the property seized, to show cause, at a time and place specified, to be not less than ten nor more than twenty days from the date thereof, why the animals so seized should not be sold, and the proceeds applied as directed by the act. The summons to be served by a constable, or an elector duly appointed by the justice for that purpose; the service to be made by posting it in six different public places in the town. On the return day the complainant, and any person interested in the property, or his agent, may appear and join issue, by the claimant filing an answer, under oath, denying the matters alleged in the complaint. That the subsequent proceedings shall be as in civil actions, so far as they can be under the act. The issue is to be tried by a jury, if either party desires it. If no person appears as claimant, and files an answer, or if, on the trial, the justice or jury shall find against him, the justice shall issue a warrant for the sale of the property. The sale to be conducted as a constable's sale; the proceeds to be paid to the justice; after which he shall adjudge the costs of the proceedings, allowing the same fees as in civil actions, and allow the party seizing, a certain sum for each animal seized, together with the actual damages sustained by reason of the trespass, and a reasonable compensation for the care and keeping of such animals, to be estimated by the justice. The justice to be allowed one dollar for each animal sold. All to be paid by the justice, out of such proceeds, and the surplus to the owner.

By section 4, provision is made for the owner demanding and receiving a return of his animals, on the payment of certain sums. Section 6 provides for an appeal from

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the determination of the issue joined, to the county court of the county. Section 7 provides that on the determination of the issue against the complainant, the justice shall render a judgment for costs against him. If a justice or jury shall find the complaint to be malicious, and without probable cause, the justice or jury shall assess the damages sustained by the owner of the animals by reason of such seizure, and the justice shall render judgment for double the amount assessed, with costs.

The differences between the act as amended, and the original act, mainly are, that the amended act provides for a regular and orderly judicial proceeding, and judgment by virtue of which the property is sold. The original act does not. The amended act, also, provides for the person making the seizure recovering his damages by reason of the trespass, through the instrumentality of the proceeding. The original does not.

It has also been claimed that the act as amended is unconstitutional, on the same grounds as the original. The point has been distinctly made in a number of cases. In the case of Cook v. Gregg, tried at the Madison county circuit in October 1868, the point was distinctly made. That was a case of private trespass, where the property was seized while trespassing upon the lands of Gregg. The action of replevin" was not brought until after the adjudication by the justice of the peace. The justice at the circuit held the amended act to be constitutional as to private trespasses, and the seizure and sale justified. Cook appealed to the general term in the sixth judicial district, which decided the same way, Justice Parker writing the opinion. That decision was made in January 1870, having been argued in November 1869. The opinion of Justice Parker has never been reported.

In the case of Fox v. Dunckel, (38 How. 136,) decided in October, 1869, by the general term of the fourth district, Justice Potter writing the opinion, the same is held.

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In the case of Campbell v. Evans, (54 Barb. 566,) decided in the fifth district in June, 1869, Justice Bacon writing the opinion, the amended act was held to be constitutional as to animals running at large on a public highway. In his opinion, Justice Bacon clearly intimates his opinion, that it was also constitutional as to private trespasses. In the case of Mc Connell v. Van Aerman, (56 Barb. 534,) the general term of the fifth district held the amended act to be unconstitutional as to private trespasses. This case was decided in December, 1869, before the judges had seen the decision in the fourth district. In view of that fact, in the case of Leavitt v. Thompson, (56 Barb. 542,) the same general term reconsidered and reviewed the question, and reaffirmed the unconstitutionality of the amended act, as to private trespasses. Unfortunately the Court of Appeals has not passed upon the question. With the greatest respect for the opinion of the judges of the fifth judicial district, I think, duty in this matter requires me to follow the decision of the sixth district, more especially when another district has held the same. as the general term of the sixth district gave no reasons for its opinion, and it does not appear that it considered all the objections made to the law, it may be well, on this occasion, to state the reasons for sustaining it.

But

Courts should proceed to the consideration of a question, as to the constitutionality of an act of the legislature, with great caution. It is a responsible and delicate duty courts have to perform. It is to be presumed that the act under consideration was not passed without mature reflection, and a full consideration of the provisions contained in it, and of the constitutional principles relating thereto. It is presumed to be constitutional, yet, the courts have a right, and it is their duty in case they find the act to be in conflict with the constitution, to so declare it, and thus far hold it to be void and inoperative. (1 Kent's Com. 500, 9th ed.) But so careful have courts been.

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in the performance of this duty, that they have repeatedly held that to warrant them in setting aside a law as unconstitutional, the case must be so clear that no reasonable doubt can be said to exist. (Fletcher v. Peck, 6 Cranch, 128. United States v. Wheaton, 10 Wheat. 53. Parsons v. Bedford, 3 Peters, 433, 438. Ogden v. Saunders, 10 Wheat. 294. Sedgwick on Statute and Const. Law, 592. Roosevelt v. Godard, 52 Barb. 545.) Full legislative powers are vested in the legislature of the State. It performs its duties under the restraints of the constitutions of the State and of the United States. (1 Kent's Com. 500, 9th ed.)

The objection presented to the act under consideration is, that it is penal in its character, and so far as it authorizes the seizure of animals trespassing on a private inclosure, it deprives the owner of his property without due process of law, in violation of section 6, of article 1, of the constitution of the State. That section, among other things, provides that no person shall be deprived of life, liberty or property, without due process of law. Judge Porter, in the case of Rockwell v. Nearing, very forcibly, and correctly, states what is meant by the words "due process of law," as used in the constitution. The whole may be summed up in these words: no person shall be deprived of his life, liberty or property, by force of a legislative enactment, without the due course of a judicial proceeding. It is of kindred principle to the inhibition of bills of attainder, in the constitution of the United States. (Sub. 3, § 9, art. 1.) No law can be passed taking the property of one person and giving it to another, without the safeguard of a judicial proceeding. judicial proceeding. Legislative bodies cannot assume judicial powers and perform the duties of judges, in addition to their own legitimate functions. It can take the property of individuals for public improvements only on rendering a just compensation. It has the power to provide the ways and means by which the rights of persons may be protected, and their wrongs

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redressed, and to compel amends to be made to the party injured, from the property of the person in the wrong. But it must be made through the instrumentality of some judicial proceeding. The nature and character of the proceeding, the practice to be adopted therein, and the manner in which the parties shall be brought before the tribunal, to give it jurisdiction, are within the province and constitutional power of the legislature. The nature of the process to be issued, and the manner of service, and what circumstances may render it necessary to omit personal service, are proper subjects for legislative regulation. (Matter of the Empire City Bank, 18 N. Y. 214, 216. Jackson v. Babcock, 16 id. 246.)

The rules of evidence to govern the courts in their proceedings, and the competency of witnesses therein, are also subject to its control; also the manner of enforcing the judgments of the courts, the property that may be seized, and the manner of seizure for that purpose; when the seizure of property is necessary to secure the anticipated judgment of either of the parties to the proceeding; the manner of its seizure and detention; and under what circumstances, and on what evidence and authority; and through what instrumentalities; all are subjects of legislative regulation.

In applying these principles to the act in question, I cannot resist the conclusion, that by a due exercise of its legitimate and constitutional powers, the legislature has obviated the constitutional objection existing in the original act, by providing, in the amended act, for a regular judicial proceeding, so as to constitute a due proceeding at law. It is not an action, but a special proceeding. It requires a complaint to be made on oath before the justice, a summons to be issued and served. In view of the fact that, in many cases, the owner of the animal trespassing is unknown, personal service is not required, but service by posting in six public places of the town is substituted.