The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-03-28

Tor renearlng is overruled.
Opinion by Brown, ].
Armstrong VS.. Traylor ct al; certified
questions from the First district
Suit brought by the appellant, Arm
strong, against the appellee to recover of
them certain hog or its value, alleged
to have been wrongfully withheld from
his possession by the defendants. De
PENDANTS claimed the hog under sale
OF the same by virtue of the law to pre-
vent certain animals from running at
large, as provided in chapter 4, title S3,
revised statutes. 1t was alleged that
the law cited had been in all respects
complied with. Plaintiffs demurrer to
the answer was overruled and judgment
upon proof of the facts alleged in the
answer.
Question lis the remedy provided by
damages done by the animal due pro-
cess of law?
mo citizen of this state shall be de-
'priyed of his property
except by due course of the law of the
land"
(Article /, section 10, state constitution.)
The law in question does not have in
view the protection of the public, but
protects the private citizen in the enjoy
ment OF his property. The private cit
izen whose rights have been invaded can
alone act in the premises. The fees
are given to him and he takes the prop
erty into his own custody without bond
or any security to the owner. No pen
atty is given for q wrong to the public.
The question of the trespass is to be
determined alone by the party complain
ing; and no other person or officer has
power to enquire into it. The very
seizure of the property is it's condem-
nation. The complaining party must
also select the freeholders who are to
assess his damages. When selected, the
freeholders are not required to hear evil
dence as to the trespass, or the amount
of the damages. The owner of the
property seized has no voice in the selec-
ton of the freeholders, he has no right
to appear before them, he has no right
of appeal, he has in fact no right at all
except to pay the costs incurred and the
damages assessed or give up his stock
| There is no hearing, no inquiry and
no trial before judgment; no officer to sell
the property, no process under which the
sale is to be made, nothing that bears
the faintest resemblance to judicial pro-
ceeding. Such a statute does not pro-
vide "a due process of law" nor is the
~ oOlu ny luC uuc COuIS0 VI luc
law of the land" These articles are
therefore void, viz, 1904, 1905, 1905 and
1907. The court erred in overruling the
demurrer to the answer Cooley on
Con. Linn, p. AT; 80 N. H., 302; SO Tex,
354.)
Under our constitution the legislature
might accomplish all the purposes sought
by law which would afford proper pro-
lection to the owner of the stock. as n.
Y, 1856; 26 Mich, 476; 80 Mich, 451.)
Question 2-Had the legislature the
power to submit the adoption of the
law to division of the territory designa-
ted by the persons signing the application
for the election. and not by the legisla-
ture itself?
To this question we answer that the
Legislature had this power. The policy
of such course was a proper matter
for consideration and will not be re-
viewed by this court
Question 3-Had the legislature the
power to limit the right to vote upon
this question to freeholders only?
We are of the opinion that the con-
stitution gives them this right. article
16, section %, state constitution)
! Opinion by Brown, j.