POLICE POWER 27 



to law. Thus, a building erected contrary to law 

 may be pulled down; ^ but the material of whicli 

 it was constructed must be saved for the owner, 

 according to some decisions, for it was presumably 

 honestly acquired. Game unlawfully killed may 

 be destroyed. 



17. Due Process of Law. By the Fifth and 

 Fifteenth Amendments to the national Constitu- 

 tion, it is provided that property or liberty shall 

 not be interfered with without due process of law. 

 Essentially this means that the party interested 

 shall be notiiied, and have an opportunity for hear- 

 ing and defense. If this hearing shall not have 

 occurred before the thing has been taken, the own- 

 er has his opportunity to be heard afterward. The 

 burden then falls upon the officer who has taken 

 the property to show that his taking of it, and 

 perhaps his destruction of it, was lawful and 

 necessary. If he cannot so prove, he will be con- 

 sidered as having acted unlawfully. Since the 

 laws presume that officers always act lawfully, it 

 is considered that though he may hold an office, 

 in that case he acted as a private wrongdoer, and 

 so is personally liable for his misdeed.^ Thus, 

 when a board of health in Massachusetts ordered 

 the killing of a horse for glanders, and the court 

 decided that the evidence did not show that the 

 horse was in fact suffering from that disease, the 

 members of the board were forced to respond in 

 damages.'^ It is very evident that it would be 



BEichenlaub v. St. Joseph, e Public Health, 273, 364- 



113 Mo. 395, 18 L. E. A. 590; 366. 



King V. Davenport, 98 111. 305 ; 7 Miller v. Horton, 152 Mass. 



Hine v. New Haven, 40 Conn. 540. 



478. 



