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the case is whether a constable having reasonable cause to suspect that a person has committed a felony may detain such a person until he can be brought before a justice of the peace to have his conduct investigated. There is this distinction between a private individual and a constable: In order to justify the former in causing the imprisonment of a person, he must not only make out a reasonable ground of suspicion, but he must prove that a felony has actually been committed; whereas a constable having reasonable ground to suspect that a felony has been committed is authorized to detain the party suspected until inquiry can be made by the proper authorities.
The cases are all in accord with these general doctrines. It will be too hard for the officer if there be not some mitigation in his position. So harsh a rule of law had to give way somewhat to an administrative rule for his protection based upon that policy. The law of the land which protects the individual is in logic as much violated in one case as in the other. In a similar way from a similar policy officers who institute prosecution are protected even if it prove in the outcome that the party prosecuted was innocent, if at the time the officer acted upon probable cause. And upon the same basis, whatever acts an officer does in reasonable compliance with process fair upon its face may be justified by him. All these are true rules of administrative law of the foreign sort. In our domestic law these are exceptions.72
72 ARREST.-Beckwith v. Philby, 6 B. & C. 635; Howard v. Clarke, 20 Q. B. D. 558; Kurtz v. Moffitt, 115 U. S. 487; Knot v. Gay, 1 Root, 66; Long v. State, 12 Ga. 293; Kindred v. Stitt, 51 Ill. 401; Scircle v. Neeves, 47 Ind. 289; Leddy v. Crossman, 108 Mass. 237; Burroughs v. Eastman, 101 Mich. 426; Wahl v. Walton, 30 Minn. 506; Angle v. Runyon, 9 Vroom. 403; Boyleston v. Kerr, 2 Daly, 220; Yount v. Carney, 91 Ia. 559; McCarthy v. De Armit, 99 Pa. 63; Eanes v. State, 6 Humph. 53; Johnston v. Moorman, 80 Va. 131.
$ 92. Seizure.
The summary power of the administration is seen in the Bolina, 1 Gall. 75 (1812). An information of seizure was filed against the Bolina and her cargo for not unlading her cargo. The Collector of Customs upon her refusal had directed the Surveyor to take possession of the schooner as forfeited; which he accordingly did, and gave information of the seizure on the evening of the same day to the claimant, the owner. A variety of grounds of defense was presented. Most of these exceptions related to the course of proceedings followed by the Collector; indeed, the validity of the principal statute was admitted.
The opinion was by Mr. Justice STORY: It is further contended that the Collector had no authority to make a seizure in this case, it not being within the express purview of any statute giving him authority that he shall have power to seize. At common law any officer might seize uncustomed goods to the use of the King. This doctrine is supported by Lord IIale and better authority could not be. On general principles, therefore, the objection would be without foundation. The conclusion is that the seizure was lawfully made. Since there is im. plied authority in officers of the customs to pursue by seizure the powers which the law intrusts to them, it is of importance that the Executive should have this power in the enforcement of the law.
One noteworthy case along this line of discussion is
Lawton v. Steele, 152 U. S. 133 (1894). This case involved the constitutionality of an act of the Legislature of the State of New York which forbade the taking of fish in Lake Ontario by any device other than a hook and line; providing that any net or pound maintained or found within those waters should be held a public nuisance; directing that it should be the duty of each and every game constable to seize and forthwith destroy the same; enacting that no action of damages should lie or be maintained for or on account of any such seizure or destruction. The facts in this case were undisputed. Certain nets had been set by the plaintiff, a fisherman, within the prohibited waters, which had been destroyed by the defendant, a fish warden.
Mr. Justice Brown delivered the opinion, which follows: The extent and limits of what is known as the police power has been a fruitful subject of discussion in the Appellate Court of every state in the Union. It is universally conceded to justify the destruction or abatement by summary proceedings of what may be regarded as a public nuisance. It is not easy to draw the line between the cases where the property illegally used may be destroyed summarily, and where judicial proceedings are necessary for its condemnation. If the property were of great value, as for instance, if it were a vessel employed for smuggling, it would be putting a dangerous power in the hands of a customs officer to permit him to sell or destroy it as a public nuisance, and the owner would have good cause to complain of such act as depriving him of his property without due process of law.
But where the property is of trifling value and its destruction is necessary to effect the object of a certain statute, we
think it is within the power of the Legislature to order its summary abatement. The value of the nets in question was but $15 apiece. Upon the whole, we agree in holding this act constitutional.73
These cases give a large conception of what due process of law is, and what is not due process of law. Much force may be used in administration and yet all that is done be due process. So that whether it is due process or not depends, it would seem, in a practical case, upon what has been the practice in government. Proprieties and improprieties in government are for the most part matters of usages and conventions.
The leading case on this whole question is Murray's Lessee v. Hoboken Company, 18 How. 272 (1855). The lands in question in this case had first been levied upon by virtue of what is denominated a distress warrant issued by the Solicitor of the Treasury upon his own motion. The Collector was in default to the Government in this case and his lands had been levied upon in accordance with an act of Congress, which authorized this warrant. The question certified was whether the effect of the proceeding authorized by the act in question was to deprive the party against whom the warrant issued from the Treasury Department of his liberty and property without due process of law.
73 SEIZURE.—Lawton v. Steele, 152 U. S. 133; The Bolina, 1 Gall. 75; People v. Simon, 176 Ill. 171; Colon v. Lisk, 153 N. Y. 1964 Kellar v. Savage, 20 M. E. 199; Osborn v. Charlevoix Cir. Judge, 114 Mich. 665; Hines v. Chambers, 29 Minn. Tellefsen v. Fee, 168 Mass. 188; Ela v. Shepard, 32 N. H. 277; Ex parte Keeler, 45 S. C. 544; Martin v. Snowden, 18 Grat. 142; State v. Sponangle, 45 W. Va. 430; Houston y. State, 98 Wis. 486.
The court, by Mr. Justice CURTIS, held that the law was constitutional: It is due process of law. It was a settled usage and order of proceedings of the common statutory law of England that summary process should be used for the recovery of debts to the crown, especially those due from receivers of revenue. The power to collect and disburse revenue and to make all laws which will be necessary and proper for carrying that power into effect includes all known appropriate means of effectually collecting and disbursing that revenue unless some such means should be forbidden by the Constitution. The recovery of public duties by this summary process of distress issued by some public officer authorized by the law is an instance of redress of a particular kind of public wrong by a special process. The action of the executive power upon matters committed to its determination by constitutional law is conclusive.
This point is worth repetition- Weimer v. Bunbury, 30 Mich. 201 (1874), is a like case. City Treasurer was in default to a County Treasurer for taxes given over to him to collect for the county. Thereupon the County Treasurer, under a statute, issued a warrant directed to the Sheriff to levy upon all properties of the City Treasurer. The Sheriff seized, advertised and sold certain property as directed in the statute. This was the trespass charged in the declaration.
The opinion was by Mr. Justice COOLEY ; it is one of the best discussions upon the law governing administration that there is in our books: It is claimed that such summary process as gives the party whose property is seized no opportunity to contest the claim set up against him cannot be due process of law. There is