Case 21 — Action by James Griffith Against E. T. Gross to Recover Personal Property —

March 29.

#### Griffith v. Gross.

APPEAL FROM PAYETTE CIRCUIT COURT.

Judgment for Defendant and Plaintiff Appeals.

Affirmed.

Lien for Grazing Cattle — Constitutionality of Statute — Notice.

Held: 1. Sections 2500 and 2601, Kentucky Statutes, which gives persons a lien *on*cattle for their reasonable charges lor grazing them, and authorizing a warrant to he sued out and levied on such cattle for such charges are not unconstitutional.

2. Notice is not required to be. given before sale of the property, where one has actual notice that his property has been seized under such warrant.

L. J. MOORE, Attorney for appellant.

1. No judge or justice can issue an execution against the property of another, without summoning him to appea'r in court, and giving him an opportunity to show whether or not he owes ihe debt.

2. This case differs from a distress warrant issued under landlord’s lien law, against his tenant, because in that case the cattle are in the tenant’s possession, and he has actual notice when they are taken.

3. Sections 2500, 2501, and 2502 of the Kentucky Statutes, under which this proceeding was had, are in violation of both the State and Federal Constitution, because they attempt to provide for the taking of the property of another without “due process of law.”

CITATIONS.

Ky. Stats., secs. 2600, 2501, 2502 and 4149.

Clark v. Mitchell, 64 Mo., -5'64.

Taylor v. Porter, 4 Hill, N. Y.

W. P. KIMBALL for appellee.

1. The collection of rent by the ancient summary process of distress has never been held to be a taking of property “without due process of law.”

*161>2 The statute in. this case provides an ample remedy for any abuse of the summary process, and this is, “due process of law.”

Opinion op the court by

JUDGE HOBSON

Affirming.

Section 2500 of the Kentucky Statutes gives all persons feeding or grazing cattle for compensation a lien upon the cattle for their reasonable charges for feeding or grazing them, subject to the limitations and restrictions provided in the case of a landlord’s lien for rent. Section 2501 authorizes a warrant to be sued out, directing the proper officer to levy upon and seize the cattle for the amount due, wijh interest and cost; and section 2502 requires the proceedings under the warrant to be in all respects the same as in cases of distress for rent. Under these provisions R. L. Evans sued out a warrant for thir-. ty-four dollars and fifteen cents for feeding and grazing fifteen hogs, the property of appellant. The warrant was levied by the sheriff on the hogs, and thereupon appellant brought this action to recover them from appellee, the sheriff, on the ground that the statutes above referred to are unconstitutional.

The statute only gives a lien on cattle put out by the owner to be fed. The creation of such a lien is a valid exercise of legislative power, and, when appellant put his hogs out to be fed he did so with notice that he thereby created a lien on them for their feeding. Such a lien stands on the same plane as a mechanic’s lien, or the common law lien of an artisan on things left with him for repair. The landlord’s lien and right to distrain for it are as old as the common law. The constitutionality of our statute on distress for rent was upheld by this court in Burket v. Boude, 3 Dana, 209, and Garnett v. Jennings, (Ky.), 44 S. W., 382. See Blanchard v. Raines, 20 Fla., *162467, for a full discussion of the subject. The lien of the farmer for his grass eaten by the stock placed with him to be grazed is, in substance, only a lien for the use of his land, and is sustained by the same reasons of public policy as the landlord’s lien for rent. Our statutory proceeding in case of distress is less rigorous than the common law mode. The lawmaking power, which created tue lien in favor of the farmer on the cattle grazed by him, had clearly the right to prescribe how this lien might be enforced. At common law all such liens were enforced hy the party in whose favor they existed, without any legal process; and while it is true that by statute in this 'State liens are now required ordinarily to be foreclosed' hy judicial proceedings, this statute, like all others, is ¡subject to the will of the Legislature, and in creating the lien for grazing stock it had to determine what was the hest way to enforce it. Ordinary judicial foreclosure, would have been attended with too much cost and delay, .and some summary process was necessary. By section 2310, Kentucky Statutes, the defendant in the warrant may replevy the debt for three months, or by section 653 of the Code of Civil Practice he may give a bond securing the payment of the amount due, and thereby discharge the levy. We fail to see that these provisions do not fully protect the rights of the owner, or that any unconstitutional guaranty is thereby denied him, for the reason that, when he put his stock out to be grazed, he did so with full knowledge, not only that a lien was thereby created on them, but that it might be enforced as provided in the statute. If a pledge is not redeemed, the pledgee may sell it; and it .has never been supposed that this procedure violates any constitutional right of the pledgor. We are unable to see any solid distinction *163between this and the statutory lien in the case before us, when enforced in the manner pointed out by the statute, with reference to which both the parties contracted when the stock were put out to be grazed. See Pennoyer v. Neff, 95 U. S., 714, (24 L. Ed., 565.) Appellant, however, having actual notice that his stock had been seized, is not really in a position to raise the question argued by his counsel as to the necessity of notice to him of the proceeding before a sale of his property. Judgment affirmed.

Judges White, DuRelle and Guffy dissenting.

Petition for rehearing filed by appellant and overruled.