Gilson v. Munson
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Opinion of the Court
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Grant, J.
(after stating the facts). Counsel for respondent attacks the constitutionality of the law for two reasons:
1. It deprives a man of his property without due process of law.
2. The State has no power to tax except for public purposes.
The sole ground of attack under the first reason is that the statute does not provide for notice to be given of the meeting of the fence viewers to assess the cost of the fence. While it is true that the statute does not expressly provide for notice, yet it does so provide by implication. The decision of fence viewers under this and similar statutes is conclusive. McKeever v. Jenks, 59 Iowa, 300 ; Oxborough v. Boesser, 30 Minn. 1 . Courts will assume that the legislature did not intend to deprive parties of their day in court where they might appear to protect *674 their rights. The legislature undoubtedly understood that these officers would give necessary and reasonable notice of their meetings, and that it was unnecessary to provide for it in the act. The statutes of Maine and Massachusetts are similar in this respect to that of this State. They do not expressly provide for notice, and yet the courts of both States hold that they do by reasonable and necessary implication. Scott v. Dickinson, 14 Pick. 276 ; Harris v. Sturdivant, 29 Me. 366 . See, also, 7 Am. & Eng. Enc. Law, 903.
The second reason .is not sound. The statute makes the amount of the award a lien upon the land, and provides an inexpensive method to enforce the lien and collect the amount. Obviously, this is not a public tax, and other provisions might have been made for its enforcement. The authority of the legislature over this subject is an exercise of the police power inherent in the State. This method of collecting the award of the officers is authorized under the principle stated by Mr. Justice Cooley in his work on Taxation (p. 586, 2d Ed.):
“There are some cases in which levies are made and collected under the general designation of taxes, or under some term employed in revenue laws to indicate a particular class of taxes, where the imposition of the burden may fairly be referred to some other authority than to that branch of the sovereign power of the State under which the public revenues are apportioned and collected. The reason is that the imposition has not for its object the raising of revenue, but looks rather to the regulation of relative rights, privileges, and duties as between individuals, to the conservation of order in the political society, to the encouragement of industry, and the discouragement of pernicious employments. Legislation for these purposes it would seem proper to look upon as being made in the exercise of that authority which is inherent in every sovereignty to make all such rules and regulations as are needful to secure'and preserve the public order, and to protect each individual in the enjoyment of his own rights and privileges, by requiring the observance of rules of order, fairness, and good neighborhood by all around him.”
*675 The judgment is affirmed, and the respondent directed to proceed. Relator will recover the costs of both courts.
The other Justices concurred.
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