Hein v. Davidson

as upon the ground that they take away the private property of the citizen without due process of law. If the property of such person is seized by ah officer who holds no process against him, and who therefore is a pure trespasser without authority or jurisdiction for the act, the injured party has his right of action against the wrong-doer. That right is property. It has value ; it may be sold or assigned; it will pass to the personal representatives; not only that, but its existence as a right is essential to the idea of ownership in the property seized, for while there may be possession, there can be no real ownership as against one whom the law permits to seize the property with impunity. Against such a person the only possible title is that of force. When, therefore, it is argued the sheriff seizes the property of an individual without process against him, the officer disappears in the man; he. becomes liable personally, and any enactment which tabes away that liability deprives the citizen of his property without due process of law. There is force in the argument, but other considerations are to be stated and weighed. The -provisions of the Code do not take away the injured party’s right of action. That remains as such, unchanged in its inherent character, but confined for its enforcement to the. real and actual trespassers. The right of action survives the restriction; the ownership invaded is recognized and protected, hieither are taken away, but both are preserved under the sanctions of the law. The right of action is twofold ; it may aim at a return of the specific property, or damages for its conversion. Both remedies are left. If there are several trespassers they are liable jointly or severally," but if sued severally there can be but one satisfaction, since/there is but one loss and one-injury, though committed by several. If the legislature releases one, but leaves the rest liable, it may diminish the certainty of redress, but it does not take away the right of action nor destroy the ownership. The injured party still has his cause of action and can still enforce it; is still owner, with the remedies of an owner. When he sues the sheriff, who has acted on the

faith of a bond, the suit is really against the sureties, who stand behind the officer. When they are substituted and the officer released, the party bound to answer for the wrong is changed, but the wrong remains and the right of redress is not taken aWay. The remedy for the wrong is by possibility removed, but in no respect destroyed or made ineffectual. If the injured party sues in replevin it is of little consequence who may be the defendant, since the remedy aims at a recovery - .of the specific property. If the action is for damages the ; indemnitors whom the sheriff deemed sufficient for his own . safety are put in his place, and if the plaintiff doubts their ¡ responsibility the court is armed with power to require ample ,-security, which power it is to be assumed will be justly exercised. What the injured party loses and is deprived of is the responsibility of the sheriff and his bail, but only on the consideration that an adequate responsibility is put in its place. The plaintiff’s right to sue to recover his property, or damages for its conversion, continues with its normal force and characteristics, and is affected only by a change in the form of his remedy, which is nevertheless left substantial and effectual. What can be said with some appearance of correctness is that in case of a trespass the remedy of the injured party against the wrong-doer is a part of his right, an element of his property, and so a change of the remedy invades the right. That is true of a case like the present in a very general sense, and if given full scope and range might make unconstitutional the least interference with the remedy. A statute of limitations affects the remedy and through that may indirectly affect the right. It leaves it narrower than it found it, but nevertheless does not change its substantial character. An officer holding an execution valid on its face, but issued upon a judgment in fact void, and levying upon the defendant’s goods, is protected by his process, and the injured party is deprived of any remedy against the official trespasser and compelled to sue the real wrong-doer. Are we to say that such doctrine violates the constitution ? Is that “ due process of law ” which is abso

lately void as against the injured party? The man who committed the trespass goes free and the sole remedy is against those who set him in motion, but it has never yet been supposed that as á consequence the constitution was violated. Several cases decided in the courts of another state are commended to our attention (Fowler agt. Man, 53 Iowa, 42 ; Craig agt. Fowler, 58 Iowa, 200 ). The first of these cases arose on demurrer. The action was brought to recover specific personal property levied upon by a constable who had been indemnified and had filed the bond with the execution. The statute relied upon provided that in such case “the claimant shall be barred of any action against the officer, * * * if the surety on the bond was good when it was taken,” and gave only a right of action upon the bond for damages. The courts held that this provision took away utterly the right to recover the specific property, and so hair-looms and articles of personal value beyond their intrinsic worth were liable to be taken without the possibility of recovery. The last of the two cases, however, went further and held the substitution to be unconstitutional as applied to an action for damages merely, but its force is very much weakened by the- dissent of two members of the court; and, also, it should be- observed that the officer was to be released “ if the bond was. good when it was taken.” At the moment of the substitution the bond might be worthless, although good when first executed, and so in practical effect there would' have resulted in possible cases a denial of all remedy, which would' be the equivalent of a total destruction of the property right. The question arose again in the same state over the sections which released the officer and substituted the plaintiff in the process (Sunberg agt. Babcock, 16 N. Y., 716 ). But it was carefully pointed out that such plaintiff might be insolvent or non-resident, and was only required as a condition of substitution, to give security for the costs. It is not at all certain that if these statutes had preserved to the injured party his substantial rights and left him with a complete and adequate remedy that they would

have been held to be unconstitutional. We think that the right of the legislature to regulate the Code of Civil Procedure for the enforcement of rights is wide enough to permit it to say when an officer acting under the requirements of that procedure may be sued and when he may not be, provided only that he is not shielded so as to deprive the citizen of adequate remedy for any' trespass or wrong. The 'doctrine of the federal courts has gone so far as to hold that a tax may be assessed without notice to the property owners and collected, although illegal, and his possible remedy by an action in equity to restrain the collection of the tax was sufficient to save the' enactment complained of from the condemnation of the fundamental law (McMillen agt. Anderson, 95 U. S., 37 ). Here a wider and more abundant remedy exists, and we do not feel safe or' justified in saying that the right to sue a specific individual is a constitutional right which cannot be taken away, although adequate and complete protection to the fight of property is left.

For these reasons we think the order of the general term should be reversed and that of the special term affirmed, with costs.