East Kingston v. Towle. receive, is by the act made conclusive on the owner or keeper of the dog as to the amount of the damage done, and, consequently, as to the extent of his liability. The party suffering the damage has his election to take the order, or sue the owner or keeper of the dog for the penalty given by the first section of the act; but, having sued or taken the order, he is bound by his election and cannot have the other remedy. The amount of the order drawn by the selectmen is limited to their estimate of the actual damage done to the animals; and the amount thus fixed by the selectmen is the compensation to the owner of the animals if he takes the order, and he has no other remedy; and this by the statute is substituted for the ordinary remedy by action in the name of the party who has suffered the injury. The owner of the dog is therefore directly interested as the real party in the inquiry before the selectmen, and in the terms of the act is bound by their determination. The amount of the order and the extent of the dog-owner's liability is not limited by any thing, except the finding of the selectmen as to the amount of the damage, which may be trifling or large; for the injury may be to any class or any number of domestic animals, and the owner or keeper of any dog is made liable for all the damage that may be done by the largest pack, if his dog made use of them. The amount of the order in this case is not stated, and is not material to the legal questions raised. It is not shown or alleged that, in this case, the defendant actually appeared before the selectmen and was heard on the question of damages, or that he had opportunity to appear or had any notice of the application. Is this act, so far as it undertakes to make the owner of a dog absolutely liable for the amount of damage paid by the selectmen, without opportunity to be heard on the question, within the general scope of legislative authority delegated by the constitution to the general court? The general court is the legislative department of the state government, and has, under the constitution, an ample grant of legislative power; the extent of the power is, however, limited, not only by the express prohibitions of the constitution, but by the nature itself of the power granted; and to be valid and binding the act of the legislature must be within the general scope of legislative authority. The power delegated by the constitution "to make and ordain all manner of reasonable and wholesome orders, laws," etc., East Kingston v. Towle. confers no authority to make an order or law in plain violation of the fundamental principles of natural justice, though the act may not be prohibited by any express limitation in the constitution. For instance, I find nothing in the constitution which in terms prohibits the legislature from making a law to take private property for a public use without making provision for compensation to the owner; yet, because it is contrary to natural justice that property belonging to an individual should be taken from him by the public, or for the public, without paying him the value, to do this is beyond the scope of legislative authority; and an act that should undertake to do this would be unconstitutional and void. Piscataqua Bridge v. Portsmouth Bridge, 7 N. H. 35; Mason's Argument in the case of Dartmouth College, Farrar, 35, et seq. In the opinion of the judges (4 N. H. 566), this constitutional limitation of the legislative authority is stated and explained as follows: "The power granted is a power to make all manner of laws and statutes which are wholesome and reasonable, and not repugnant to the constitution. It is in its nature a limited, restricted power. It is an old maxim of the common law, that when an act of parliament is against common right and reason, the common law will control it and adjudge it void; and one object of this provision in our constitution was to adopt and confirm that maxim of the common law. An act of the legislature in order to have the force of a statute must, therefore, be neither repugnant to reason nor to the constitution." In the application of this principle the judges, in that opinion, held that the legislature had no constitutional right to grant a tax upon lands in a particular unincorporated place for the purpose of making and repairing roads in such place, because, after paying taxes under the general law, it would be unreasonable and contrary to natural justice that the lands in a particular place should be burdened with another additional tax. In England even, the legislative authority of parliament is practically, if not in theory, subject to this limitation, that no law shall be passed which is contrary to common right and natural justice. Lord COKE, in Dr. Bonham's Case, 8 Co. 1186, says: "It appears in our books that in many cases the common law will control acts of parliament and adjudge them to be utterly void; for when an act of parliament is against common right and reason, or repug. nant, or impossible to be performed, the common law will control it and adjuage such act to be void." In his life of Ccke, Lord CampVOL. II-23 East Kingston v. Towle. " bell, with characteristic flippancy, calls this "a foolish opinion; but the same doctrine is laid down in Day v. Savadge, Hob. 86, 87, where Hobart says: "Even an act of parliament made against natural equity, as to make a man judge in his own case, is void in itself, for jura naturæ sunt immutabilia, and they are leges legum." Whatever the theory may be in England, I take it to be quite clear, that, under the grant of authority to make and ordain all reasonable and wholesome orders and laws, the constitution of this state confers no power upon the general court to enact a law in conflict with natural equity and those elementary principles of justice which are everywhere recognized as fundamental in law and legislation. The Bill of Rights in article 15, declares that "no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities or privileges, or put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers or the law of the land." Similar provisions, borrowed in substance from magna charta, are found in the constitutions of other states, and have there been held to impose a limitation on the legislative power as well as on the other departments of the government. Thus, in Jones v. Robbins, 8 Gray 342, SHAW, C. J., speaking of the corresponding provision in the constitution of Massachusetts, says: "No man shall be arrested, imprisoned, exiled, or deprived of his life, liberty or estate, but by the judgment of his peers or the law of the land. These terms, we think, in this connection cannot be used in their most bold and literal sense to mean the law of the land at the time of the trial; because the laws may be shaped and altered by the legislature from time to time; and such a provision, intended to prohibit the making of any law infringing the ancient rights of the subject, under such a construction, be wholly nugatory and void." The same view was taken of a like provision in the constitution of New York, in Taylor v. Porter, 4 Hill, 140, 145. In Greene v. Briggs, 1 Curt. C. C. 311, it was held that such a provision in the constitution of Rhode Island meant by "the law of the land" due process of law, in which is included the right to contest the change. CURTIS, J., says: "Certainly this does not mean any act which the assembly may choose to pass. If it did, the legislature could inflict the forfeiture of life, liberty or property without a trial." So in Parsons v. Russell, 11 Mich. 113, it was held that "the law of the land" within the meaning of the term as used in the constitution of Michigan, " is a law, which hears before it con East Kingston v. Towle. But the demns, which proceeds upon inquiry, and renders judgment after trial." "If deprived of liberty or property, it shall be by impartial, judicial authority, after a trial and judgment." Per MARTIN, C. J. In this state it would seem to have been understood that the provisior of the bill of rights which prohibits all acts affecting life, liberty or property, except "by the law of the land," was not intended to limit the legislative power, but only to require that the proceedings should be according to the law for the time being. Mayo v. Wilton, 1 N. H. 57; Dart. College v. Woodman, id. 130. same limitation on the legislature has been by our courts placed on the ground that the general grant of authority to make reasonable and wholesome laws confers no power to enact a law in violation of the fundamental maxims of justice and equity; and the interpretation given to the term "law of the land" in the constitutions of other states, when applied as a limitation upon legislative authority, amounts in substance to the same thing; for, as interpreted there, the term "law of the land" is understood to embody in legal meaning the fundamental rules and maxims of justice which prevailed in the law at the time when the constitutions were adopted. Either way, whether these elementary principles of justice and equity are supposed to be embraced in the term "law of the land," or implied in the general nature of legislative authority, they equally limit the legislative power. It is a maxim of general jurisprudence, not confined to any code, but, so far as I am informed, recognized as fundamental in the law of every enlightened people, that no man's private rights shall be concluded by any judgment, decree or other adjudication, to which he was not so far a party that he had opportunity to be heard, and to adduce evidence on all points that affected his interests. Broom's Maxims, 735; 1 Greenl. Ev. § 522. Proceedings in rem are no exception to this elementary rule; for, in such proceedings, every party interested has the right to appear and be heard; and every owner of property is supposed to keep such oversight of it as to be duly informed of the proceedings by the notices which are required to be given. Any act passed in violation of this principle of natural justice would not be a "reasonable and wholesome law" under our constitution, nor within the general scope of legislative authority. This general principle, it is obvious, will apply in full force to proceedings instituted to determine the amount that shall be paid for an injury to property, or for the value of property taken from East Kingston v. Towle. the owner. An inquiry of damages involves the interest of the party adjudged to pay them as much and as directly as an issue on the question whether he is liable to pay any damages at all. The law is so on authority as well as in the reason of the thing. The king by his royal prerogative might establish a new highway, or discontinue an old one; and in either case his writ ad quod damnum issued to inquire of and determine the damage to individuals from laying out or discontinuing the way. This was an ex parte proceeding; and, therefore, though done under the king's writ, the return of the writ fixing the amount of damage was not binding on the parties interested, but was traversable; or the party might be heard on the question of damages before the chancellor, to whom the writ was returned. 2 Viner's Ab. 126, title Ad Quod Damnum, 2 Burn's J. 352. In this state we have several cases, in which the necessity, under the constitution, of notice and opportunity to be heard on a question of damages in order to make the assessment binding, has been recognized. By the Revised Statutes, chap. 59, sec. 5, " if any person shall place in any highway or street, any timber, lumber, stones, or any thing whatsoever to the incumbrance or obstruction thereof, he shall be liable to the town for all damages which said town shall be compelled to pay to any person who has sustained damage by reason of such incumbrance or obstruction." The statute makes no mention of notice to the party who is to be charged with the damages which the town has been compelled to pay. If the town made a full, strenuous and skillful defense to the action of the individual who sued for damage caused by the incumbrance, the town would be compelled to pay the damages awarded against them in that suit. Still, though the town were compelled to pay the damages, as expressed by the statute, the judgment against the town would not be evidence against the defendant who was sued by the town under the statute to recover the amount they had been compelled to pay, of the party who placed the incumbrance in the highway, unless he had notice of the suit against the town and opportunity to me in and defend. Littleton v. Richardson, 34 N. H. 179. In Webster v. Alton, 29 id. 369, one question was, whether a town, sought to be charged with part of the expense of a highway laid out in an adjoining town, should have notice of the hearing on the criginal applica tion for laying out the road. It was held that notice of the hearing on the matter of damages was sufficient; but the whole case goes on |