Carter v. Colby

The amended statute relating to cruelty to animals provides that "whenever an officer shall take any such animal into his possession, which appears by reason of age, injury, or other cause, to be disabled for use, said officer shall call upon three disinterested citizens, who, under oath, shall examine such animal, and if they shall find such animal to be disabled for use, said officer shall at once cause such animal to be killed." Laws 1897, c. 22, s. 1.

The defendant justifies under this statute, enacted by the legislature in the exercise of the police power of the state vested in them by the constitution; but, in our view, the justification cannot be sustained. On the contrary, we cannot but regard the statute, in its operation upon the present case, as an unauthorized exercise of the police power, and a palpable violation of the constitutional guaranty that no person shall be despoiled or deprived of his property without due process of law.

Whether the horse was liable to confiscation without compensation to the plaintiff, even after notice and an opportunity to be heard, it is not necessary now to determine. It is enough that he did not have either the notice or the opportunity; for in all judicial or quasi-judicial proceedings affecting the rights of the citizen it is fundamental rule of universal application that he shall have notice and an opportunity to be heard, before the rendition of any judgment, order, or decree against him. Brown v. Sceggell, 22 N.H. 548,552; East Kingston v. Towle, 48 N.H. 58, 61; Cahoon v. Coe, 57 N.H. 556,597.

Doubtless there are cases in which the legislature, in the legitimate use of the police power, may authorize the destruction of certain kinds of property without previous notice to the owner, and without granting him a hearing, as in the case of pulling down buildings to prevent the spreading of a conflagration (P. S., c. 115, s. 9) and other familiar examples; but this is so only from necessity, and affords no defence in cases like the present, where the statute itself requires judicial examination of the animal and a finding of its disability for use as conditions precedent to its lawful killing.

The defendants' justification failing, the action is maintainable.

Case discharged.

All concurred.