Bruce, CL J.
This is an appeal from an order dissolving a temporary restraining order, and from a judgment dismissing the action. The plaintiff sought to permanently restrain the State Live Stock Sanitary Board from destroying a certain mare, which the said board had determined to be “infected with a dangerous, contagious, and infectious disease known as dourine.”
The statutes [Comp. Laws 1913] under which the board acted are as follows:
“Section 2678: A board is hereby established to be known as the ‘State Live Stock Sanitary Board.’ This board shall consist of five members to be appointed by the governor. . . . Each member of said board shall be a qualified elector of the state of North Dakota. Three members of said board shall be persons who are financially interested in the breeding and maintenance of live stock in the state of North Dakota and the other two members of said board shall be competent veterinarians who are graduates of some regularly organized and recognized veterinary college or university.”
“Section 2686. Authority is hereby given to said State Live Stock Sanitary Board to take all steps it may deem necessary to control, suppress and eradicate any and all contagious and infectious diseases among any of the domestic animals of the state, and to that end said board is hereby empowered to quarantine any domestic animal which is infected with any such disease or which has been exposed to infection therefrom, and to kill any animal so infected; to regulate or prohibit the arrival in or departure from the state, or any portion of the state, of any such exposed or infected animal, and at the cost of the owner thereof to detain any domestic animal found in violation of any such regulation or prohibition.”
“Section 2687. Whenever a domestic animal has been adjudged to be affected with- a contagious or infectious disease and has been ordered killed by said State Live Stock Sanitary Board or by an accredited agent thereof, the owner or keeper of said animal shall be notified thereof, and within twenty-four hours thereafter its owner or keeper may file a protest against the killing thereof with said board or its accredited agent who has ordered such animal killed. Such notice shall state under oath that to the best of the knowledge and belief of the person making such protest, such animal is not infected [347]*347with any contagious or infectious disease; whereupon an examination of the animal involved shall be made .by three experts, one of said experts to be appointed by said State Live Stock Sanitary Board, one to be appointed by the person making such protest and the two thus appointed .to choose a third, but all experts shall be persons learned in veterinary medicine and surgery and graduates of a regularly organized and recognized veterinary college.”
“Section 2688. In case all three experts or any two of them declare that such animal is free from any contagious or infectious disease, then the expense of the consultation shall be paid by the State Live Stock Sanitary Board out of the funds appropriated for the carrying into effect of this act [§ 2696], and in case the three experts or any two of them declare the animal to be affected with a contagious or infectious disease then the expenses incurred in the consultation shall be paid by the person malting the protest, and said expenses may be collected the same as in case of appeal in civil action.”
The board also acted under the .following rules and regulations which had been regularly adopted by it.
“The State Live Stock Sanitary Board having determined that dourine existing in horses in this state can only be eradicated by adopting rigid measures, therefore by authority granted in §§ 2 and 9 of chapter 169, Sess. Laws 1907, the following regulations for the eradication of dourine are hereby established.
“Section 1. Any owner or person in charge of any mares, stallions, or jackasses, shall when ordered by an unauthorized agent of the Live Stock Sanitary Board, round up or gather and submit said animals to such inspection as the agent of the Live Stock Sanitary Board shall direct, or be subjected to arrest, as provided for in § 15, chapter 169, Sess. Laws 1907.
“Section 2. Whenever it has been determined by the application of the complement fixation test that any mare, stallion, jack or gelding is infected with dourine said infected animal shall be appraised by the agent of the Live Stock Sanitary Board as hereinafter provided, and said animal shall be immediately destroyed.
“Section 3. The value of any stallion, jack, mare or gelding, infected with dourine shall be determined by the actual market selling price, and the appraisement made accordingly.
[348]*348“Section 4. Owners will be indemnified for animals destroyed on account of being infected with dourine as hereinafter provided.
“Section 5. The United States Department of Agriculture will pay one half the indemnity on mares, grade stallions, jacks and geldings destroyed for dourine, and the state will assume the payment of one half the indemnity subject to an appropriation being created by the next legislature to provide for said indemnity provided in no instance shall the full indemnity to be paid on said animals exceed $100. Provided in the instance of pure bred registered stallions and mares as determined by pedigree of registration in a recognized horse registry association, the maximum indemnity shall be $150. The state shall assume the payment of one half of said maximum indemnity as hereinbefore provided and the United States Department of Agriculture will pay the balance.”
The trial court found the following facts:
1. Plaintiff is the owner of a certain mare which the defendant board has ordered destroyed on account of being infected, as the defendant board claims, with dourine.^
2. The defendants acted and arc acting pursuant to rules-adopted by the State Live Stock Board, which provide that animals infected with dourine shall be destroyed.
3. In the administration of the law, the defendant board has elected that its agents shall base their diagnosis, as to dourine, upon the complement fixation test, that is to say, even if an animal exhibits symptoms of dourine they do not destroy it unless it reacts positively to this test. On the other hand, if it has no symptoms of dourine at all they, nevertheless, order it destroyed if it shows a positive reaction to this test.
4. The defendant board and its agents have in all things acted in strict compliance with rules regularly adopted by the State Live Stock Sanitary Board.
5. Dourine is an infectious disease caused by a miscrosopic germ which exists in the blood of the diseased animals.
6. The complement fixation test is a blood test conducted by sending blood from the animal to be tested, to the Bureau of Animal Industry of the Department of Agriculture at Washington, where the test is performed by a man in the employ of the United States govern[349]*349ment. It is not a bacteriological test, but is a chemical test. That is to say, the experts do not examine the blood under a microscope to discover the germ .which causes dourine, which is very difficult to find, but subject it to a chemical test which is extremely technical, so technical that it is impossible for a layman to understand it and the ordinary veterinarian makes no pretense of understanding it. It was not shown to have been performed by more than one man in the United States.
7. The blood is taken from the animal to be tested, and prepared by the field veterinarians before it is sent to Washington. If the Bureau at Washington reports a positive reaction, the animal is ordered killed.
8. The disease of dourine has been known to the veterinary profession for many years, but the Complement Fixation Test is a new device which has not been used in the United States until the present campaign of eradication was begun in 1914 and 1915'. It is also used in Canada.
9. The animals thus slaughtered frequently show no symptoms of the disease either while alive or upon post mortem examination.
10. Dourine is primarily a disease of the genital organs. It is not extremely contagious, being communicated only by actual contact and only through the act of breeding. Even breeding does not always result in communicating the disease. It is not hereditary.
11. After being infected, an animal usually develops symptoms of the disease in from three weeks to six months, the disease usually terminating fatally in from six months to two years. The disease is incurable.
12. The symptoms, when they develop, are to the physician plainly discernible to the naked eye. There are eruptions and ulcerations of the affected membranes, followed, as the disease progresses, by a constitutional breakdown, the animal becoming emaciated and the hind legs paralyzed, this condition being followed by death.
13. The mare in question is a valuable work animal worth about $250. So far as can be discerned by an examination by a veterinary surgeon, she is entirely sound and free from disease. This has been her condition at all' times since she was ordered destroyed in the spring or summer of 1915. The blood test was made in the spring or [350]*350summer of 1915, at which time the Bureau at Washington reported a-positive reaction. She has not been bred since the spring of 1915, and, so far as can be learned, she has- never been bred to a diseased stallion. She, nevertheless, was apparently entirely sound in the win* ter of 1917.
14. The plaintiff did not avail himself of the statute providing for examination by a board of three experts.
15. The owner is a farmer and is keeping the mare under farm-conditions, where he has complete control of her, and not permitting her to run with other horses, as would be the case under range conditions.
1G. Former outbreaks of the disease in other parts of the United States have been readily stamped out under farm conditions without the slaughtering of animals not showing clinical symptoms of the disease.
17. In the opinion of the trial court, in view of the apparent hoalthfulness of the mare so long after the test was made, and in view of the fact that symptoms ordinarily develop soon after infection, it is very doubtful whether the mare in question is infected with dourine or ever has been, and the court therefore neither finds that the mare is or is not infected with dourine.
18. The - plaintiff offers to observe quarantine regulations if imposed, and agrees to furnish a satisfactory bond conditioned that the mare in question -shall not be bred.
19. In the opinion of the trial court, the public can effectively be protected' by suitable quarantine regulations, and the court therefore finds that, until the mare in question develops clinical symptoms of dourine, it is not necessary, for the protection of the public, that she be slaughtered, and her slaughter would therefore constitute an unnecessary- and unwarranted invasion of plaintiff’s property rights.
In spite of the finding, however, that in his opinion the public could be effectively protected by suitable quarantine regulations, and that the mare in question had shown no clinical symptoms of the disease, the learned trial judge dissolved the injunction on the grounds that:
“1. The legislature has. invested the State Live Stock Sanitary Board with full power to determine what infectious diseases are sucb [351]*351as to require that animals affected with such disease shall be destroyed in order to protect the public.
“2. The legislature has invested the State Live Stock Sanitary Board with full power to determine what test shall be applied in determining whether a particular animal is infected with an infectious disease.”
“3. The courts have no power to interfei’e with the discretion which the legislature has conferred upon the State Live Stock Sanitary Board.”
He also held that the only provision for a review of the board’s determination is to be found in § 2687 of the Compiled Laws of 1913, which provides for a protest and an examination by three experts, and that since plaintiff had not demanded such a review he was controlled by the determination of the board, and could not afterwards dispute it.
The plaintiff, on the other hand, contends that, since the mares are now, from all appearances, in a healthy and sound condition, and the disease can only be communicated by breeding, to permit their destruction would be taking property without due process of law, and in conflict with the 14th Amendment to the Constitution of the United States, and also in conflict with the following provisions of article 1 of the Declaration of Rights:
Sec. 14, art. 1 of Declaration of Rights: “Private property shall not be taken or damaged for public use without just compensation having first been made to or paid into court.”
•Sec. 22, art. 1: “All courts shall be open, and every man for any injury done him in his lands, goods, person, or reputation shall have remedy by due process of law and right, etc.”
On the first proposition he contends that §§ 2687 and 2688, which provide for an appeal to a board of experts, do not establish a tribunal the proceedings of which can be classed as due process of law. ITo contends that the three experts provided for are not elective officers nor are they appointive officers provided for by the Constitution. One of them, he states, is chosen by the two already selected. He cites Ruling Case Law to the effect that “the general rule that due process of law implies a hearing before condemnation or the reaching of a judgment through what is ordinarily understood to be judicial process, [352]*352is subject to an exception only in extreme cases or emergencies, as when the preservation and repose of society or the protection of the property rights of a large class of the community absolutely require a departure from the usual course of procedure.” See 6 R. C. L. 457.
We think there is no merit in either of counsel’s contentions; We have no particular fault to find with his statement of general legal principles, unless the word “absolute” is too comprehensive. The question, however, is whether or not the rights of the community reasonably require a departure from the usual course of procedure, and who is to be the judge as to the necessity of that departure. The question also may be considered, though the matter would not strictly be involved if the failure to appeal to the board of experts is controlling, whether the adoption of the so-called Complement Fixation Test was a purely arbitrary and unreasonable procedure on the part of the board so that such test cannot be made conclusive and generally applicable.
What is, and what is not, due process, depends upon the circumstances; and the constitutional provisions which provide for a preliminary court procedure are often held to have no application to statutes which are passed in the exercise of the so-called police power of the state. Sometimes summary proceedings are necessary, and the summary abatement of nuisances without judicial procedure was well known to the common law prior to the adoption of the state and Federal Constitutions. It has been repeatedly stated and held that neither the 5th nor 14th Amendments to the Federal Constitution, nor their counterparts in the constitutions of the several states, gave any new rights, but that they merely guaranteed the permanence of those already existing. It cannot, therefore, be supposed that the provisions referred to -were intended to prevent the summary destruction of property which was a -nuisance or liable to become a nuisance.
The case is not one of taking property for a public use, but of destroying a nuisance or of preventing one from using his personal and property rights in a manner injurious to the public welfare.
There is no property right in that which is a nuisance, and there is no right of liberty in that which is harmful to the public weal.
Neither the 14th Amendment to the Federal Constitution nor any provision of the Constitution of North Dakota “was designed to interfere with the power of the state, sometimes termed its police power, to [353]*353prescribe regulations to promote tbe health, peace, morals, education, and good order of the peoplé, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.” Barbier v. Connolly, 118 U. S. 31, 28 L. ed. 924, 5 Sup. Ct. Rep. 357; Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273; Bittenhaus v. Johnston, 92 Wis. 596, 32 L.R.A. 380, 66 N. W. 805; Kidd v. Pearson, 128 U. S. 1, 32 L. ed. 346, 2 Inters. Com. Rep. 232, 9 Sup. Ct. Rep. 6.
It is everywhere conceded that the state may interfere with private industry wherever the public welfare demands, and that in this particular a large discretion is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of those interests. Lawton v. Steele, 152 U. S. 133, 136, 38 L. ed. 385, 388, 14 Sup. Ct. Rep. 499; Bittenhaus v. Johnston, 92 Wis. 596, 32 L.R.A. 380, 66 N. W. 805; State ex rel. Gaulke v. Turner, 37 N. D. 635, 164 N. W. 924.
There can be no question that the disease of dourine is one which needs to be guarded against. At any rate, there can be no question that the legislative provisions in relation thereto were adopted for the purpose of protecting and promoting the industries of the state.
Nor can there be any question that the legislature had the power to delegate to the Live Stock Sanitary Board the power to adopt reasonable regulations and to adopt what tests it deemed necessary. This is not a delegation of legislative power. It merely commits “to a body of learned and scientific experts the duty of preparing such rules and prescribing such tests as may from time to time in the enforcement of the law be found necessary. ... It merely relates to a procedure in the law’s execution.” Thornton, Pure Food & Drugs, § 13; Isenhour v. State, 157 Ind. 517, 87 Am. St. Rep. 228, 62 N. E. 40; State ex rel. Gaulke v. Turner, supra.
Nor was there a denial of due process of law. Due process of law, as we have before pointed out, does not everywhere involve a trial by jury nor in a regularly established court. There was an opportunity to be heard before the Sanitary Board and before the board of experts provided for by §§ 2687 and 2688.
“While under ordinary circumstances the constitutional guaranty as to duo process of law implies a formal judicial proceeding, it is [354]*354nevertheless well settled that this does not invariably require such a proceeding, and accordingly questions may arise which may be best determined otherwise than by ordinary process of judicial investigation without violating the constitutional provision as to due process of law.” 6 R. C. L. § 454; Deems v. Baltimore, 80 Md. 164, 26 L.R.A. 541, 45 Am. St. Rep. 339, 30 Atl. 648; People ex rel. Lieberman v. Vandecarr, 175 N. Y. 440, 108 Am. St. Rep. 781, 67 N. E. 913, affirmed in 199 U. S. 552, 50 L. ed. 305, 26 Sup. Ct. Rep. 144; State ex rel. Dakota Trust Co. v. Stutsman, 24 N. D. 80, 139 N. W. 83, Ann. Cas. 1914D, 776.
It would be absurd, too, to contend that this power was vested in persons ignorant or uninterested in the stock raising industry. The statute expressly provides that three members of the Sanitary Board shall be persons who are financially interested in the breeding and maintenance of live stock, and that the other two shall be competent veterinarians; and as far as the board of experts is concerned, the statute also provides that they “shall be persons learned in veterinary, medicine, and surgery,” one of whom “shall bo appointed by petitioner, one by the Sanitary Board, and the other shall be elected by the two already chosen.”
We realize that it seems to be generally held by the courts that the question whether the property sought to be destroyed is infected with the disease, and therefore comes within the provision of the law providing for its destruction, is ultimately a question of fact, and that due process of law requires the ultimate submission of this question of fact to a jury. See 1 R. C. L. 1159; note in 26 L.R.A. 638; Miller v. Horton, 152 Mass. 540, 10 L.R.A. 116, 23 Am. St. Rep. 850, 26 N. E. 100; Newark & S. O. Horse Car R. Co. v. Hunt, 50 N. J. L. 308, 12 Atl. 697; Parker & W. Public Health & Safety, § 167, p. 183; Hutton v. Camden, 39 N. J. L. 122, 23 Am. Rep. 103; note in 43 L.R.A.(N.S.) p. 1076.
All that the Constitutions provide, however, is that no person shall be deprived of life, liberty, or property without due process of law, and that no property shall be taken for a public use without compensation. It is clear that, if the property is in fact a nuisance, it is not taken for a public use and to that extent it is not property at all. It is also clear that in the case of contagious diseases, which may be dis[355]*355astrous in their consequences if not summarily rooted out, due process of law is afforded, if there is an ultimate appeal to the courts on the question of damages and if the property, in fact, is not a nuisance. There is a wide difference, however, between the right to summarily destroy and the right to destroy without liability to damages in case the property does not come within the prohibition of the statute. There is a wide distinction between a suit for an injunction to restrain the; destruction of an animal for being diseased, and a suit for damages; and, even if the defendants are entitled to a jury or other trial before their right to damages can be taken away, it must certainly be the law that they must first take the steps necessary thereto, and must in the case at bar have submitted the controversy to the board of experts, which was provided by law.
Much more must this be the case where an injunction is sought to prevent the destruction. The legislature evidently realized that, in the ease of dourine, summary action was often necessary. This was evidenced by.the fact that they not only gave to the board the power to destroy, but gave a limited time in which an appeal could be taken to the board of experts. There can be no question of the power of the legislature to pass such statutes and to summarily order the destruction of nuisances, in the discretion of the Sanitary Board after a hearing and an appeal to the board of experts, if demanded, and though leaving to the owner the right to damages and to a resort to the courts for relief, if in fact the property is not a nuisance and its destruction is not necessary, to leave this as his only method of relief and to condition it on first appearing before the board of experts.
Any other rule would render all health and sanitary laws absolutely inoperative, and leave all boards of health powerless to prevent the spread of contagious diseases.
In the case of New Orleans v. Charouleau, 121 La. 890, 18 L.R.A.(N.S.) 368, 126 Am. St. Rep. 332, 46 So. 911, 15 Ann. Cas. 46, the court said: “Defendant next argues that he must be afforded a judicial hearing before his property can be condemned. Here, again, the question is more one of fact than of law. Would it be practical in a large city to institute a judicial inquiiy in the case of every diseased cow in every dairy ? Impure food, decayed fish, meats, and vegetables, are subjected to the doom of the inspector, without appeal. We see no [356]*356reason why, in a large city, the same should not be done with dairy cows which, by a test recognized to be practically infallible, are found to be a serious menace to the public health.”
In the case of United States v. Ju Toy, 198 U. S. 258, 49 L. ed. 1042, 25 Sup. Ct. Rep. 644, the court held that “due process of law’ is not infringed by the provision of the Act of August 18, 1894 (28 Stat. at L. 372, 390, chap. 301, Comp. Stat. § 4325), § 1, making the decision of the appropriate department on the right of a person of Chinese descent to enter the United States conclusive on the Federal courts in habeas corpus proceedings in the absence of any abuse of authority, even where citizenship is the ground on which the right of entry is claimed.” In § 167 of Parker & Worthington on Public Health and Safety, we also find the following: “The finding or adjudication of any municipal authorities or local board of health will be no protection, if made ex parte, without notice to the party charged with the nuisance, and opportunity afforded him to be heard; and if the statute attempts to make such finding or adjudication final and conclusive against the party, it will be unconstitutional, unless it has secured to him such right of appeal, or such right to a hearing before judgment passes against him, or such right to a revision of the findings by a jury in the ordinary judicial tribunals, as will constitute what is recognized as ‘due process of law.’ Put it can never be necessary to construe the statute in a Avay that will render it unconstitutional for denying the right to a hearing or to a trial by jury; if it authorizes summary proceedings, without notice, against the thing declared to be a nuisance, the hearing and the trial, upon all the facts, may be had in an action subsequently brought by the oAvner for alleged trespass.”
The rule, if rule it be, that members of a sanitary board or board of health are liable in damages if they destroy that which in fact is not a nuisance or that which in fact does not come within the terms of the statute, is exceedingly drastic, and if pushed to its limit would result in making such boards neglectful of their duty for fear of monetary consequences. Having such a possible responsibility and being subject to such a possible liability, a statute surely is not unreasonable or unconstitutional which provides in all cases for a speedy submission to a board of experts, so that the members of the Live Stock [357]*357Sanitary Board may have the speedy moans of determining the facts in the case, and may know if they may safely proceed. It surely affords an opportunity to the owner of the stock to be heard, and the contention of my brother Bobinson that such a hearing would be useless as the members of the board of experts, would be corrupt; and that there is only one person in Washington who is acquainted with the Complement Fixation Test is, of course, not merely unjudicial, but absurd. The only finding in the case by the trial judge is that it was not shown that anyone but the chemist in Washington was capable of making the test. We know, however, that it is a test which is generally used in Canada, and we do know that there are tens of thousands of capable chemists in the United States. The board of experts also could apply any test they chose, and were not even controlled by the Complement Fixation Test, which had been adopted merely by the board. They could have sent samples of the blood not merely to Washington, but to Canada, and to chemists throughout the United States. The fact that only a few men are in the business of making such tests does not in any way prove that there are not thousands of chemists who could make it. As we said before, the experts were not even bound by that test.
The statute which provides for the board of experts is surely a reasonable one. It furnishes a preliminary procedure for the protection of both parties, and surely no right of recovery should exist where the defendant choses not to resort to this remedy. The statute, indeed, is not different from those which require notice to a municipality before a suit of damages may be brought, or notice to a railroad company in the case of injury to stock which has been transported, so that a proper investigation may be had. These statutes have been everywhere upheld.
As far, too, as the efficacy of the Complement Fixation Test is concerned, we do not feel that this court has any right to interfere with the determination of the board. This determination was clearly not arbitrary. It is the test now generally recognized by the scientific world, and both in Canada and the United States; and, with our limited knowledge, we are not prepared to controvert the findings and conclusions of the scientific world. See “Diagnosis of Dourine by Complement Fixation,” by John E. Mohler, Adolph Ericbom, and John [358]*358M. Buck of the Pathological Division of the United States Bureau of Animal Industry, vol. 1, No. 2, Journal of Agriculture Research; Report of the Veterinary Director General of Canada for year ending March 31, 1914.
It may also be noticed that the finding’ of the trial court, though expressing the opinion that the slaughter of the horses was unnecessary and that quarantine would furnish a sufficient protection to the public, nowhere held that the horses were not, in fact, diseased. Whether destruction as opposed to quarantine was the proper remedy was, however, and subject to an appeal to the board of experts, left by the legislature to the Live Stock Sanitary Board to determine. Neither the trial court nor this court has any right to interfere with that discretion. As far, too, as the existence of the disease is concerned, it is well established that where one fails to appear before such a board, the judgment of the board will be conclusive upon it. It is also as equally clear that where an appeal to a board of experts is provided and ho refuses to take it, he waives the appeal and the right to question the judgment of the first board. Parker & W. Public Health & Safety, § 174.
Generally speaking, and in all of such matters, the only question in which the courts or the juries are concerned is the ultimate questiou whether the animal was diseased or not; that is to say, whether the board acted outside of its jurisdiction or outside of the statute. There are no such findings. We have no satisfactory proof that such is the case, and the board of experts has not been appealed to. The finding of the board, therefore, must be conclusive upon us. Parker & W. Public Health & Safety, § 168; Metropolitan Bd. of Health v. Heister, 37 N. Y. 661; Van Wormer v. Albany, 15 Wend. 262; 18 Wend. 169; Reynolds v. Schultz, 34 How. Pr. 147, 156.
In the case of State v. Nelson, 66 Minn. 166, 34 L.R.A. 318, 61 Am. St. Rep. 399, 68 N. W. 1066, in upholding an ordinance requiring a license to sell milk within the city, and fixing as a condition precedent to obtaining a license that the cattle from which milk is obtained must be inspected by the city veterinarian, and providing that, “for the purpose of detecting . . . tuberculosis or any other contagious or infectious disease . . . the said veterinarian . . . in making such inspection, is hereby authorized to use what is known [359]*359as the 'tuberculin test’ as a diagnostic agency for the detection of tuberculosis in such animal,” the court said: "The objection is urged that the ordinance is oppressive and unreasonable in that it requires every dairy herd whose milk is desired to be sold within the city to be subjected to the 'tuberculin test,’ which it is claimed is uncertain in its results and deleterious to the health of the animals. At the present stage of scientific research on this subject, it may be a debatable question whether this test has been fully proven, or how far it is as yet merely experimental. There is ample evidence in this case that it is now the generally accepted theory that the presence of consumption or tuberculosis in animals can be detected by this test, also that this is what is called a 'germ disease,’ which may be contracted by eating the flesh or drinking the milk of a tuberculous animal. Upon the evidence we could not say that this provision of the ordinance is oppressive or that it has not a reasonable tendency to prevent the sale of unwholesome milk within the city.”
Nor do we feel authorized to interfere with the discretion of the board in requiring all horses which react to the chemical Complement Fixation Test to be destroyed even though they exhibit no physical symptoms of the disease. In the first place an appeal to a board of experts was provided by the statute, and no appeal was taken; in the second, the opinion of the scientific world appears to be that such a course is necessary, and the statute expressly gives to the board the power "to take all steps it may deem necessary to control, suppress, and eradicate any and all contagious and infectious diseases among any of the domestic animals of the state, and to that end said board is hereby empowered to quarantine any domestic animal which is infected with any such disease, or which has been exposed to infection therefrom, and to hill any animal so infected
This statute clearly left it to the discretion of the board subject to appeal to the board of experts on the question of the existence of the disease, to determine whether the animals should be killed or quarantined, and that killing was contemplated in the case of dourine is also clearly evidenced by the appropriations made by chapter 29 of the Laws of 1915 for the "glandered horse and dourine fund,” and by §§ 2, 3, and 5 of chapter 164 of the Laws of 1915, which provide that:
2. "All moneys now in or hereafter deposited in the glandered horse [360]*360fund shall be placed in the glanders and dourine horse fund and shall be preserved inviolate for the payment of claims for indemnity allowed for animals destroyed for either glanders or dourine.
3. “Whenever the State Live Stock Sanitary Board, or its authorized agent shall deem the slaughter of a stallion, gelding, mare or jackass necessary for being infected with dourine, the value of such animals shall be determined by the actual market selling-price and the appraisement made accordingly by an agent of the State Live Stock Sanitary Board. Provided, that the maximum appraisement for any grade stallion, gelding, mare or jackass shall bo one hundred ($100) dollars, and the maximum appraisement for any purebred registered stallion, mare or jackass shall be one hundred fifty ($150) dollars. Provided, that the indemnity paid by the state shall be a sum equal t.o the indemnity paid in each case by the Federal government.”
5. “When the animal or animals at the time of their destruction have been in the state less than six months.”
Nor is there any merit in the contention that horses so infected may be quarantined or isolated and a bond given that they shall not be used in breeding; and that, since breeding is the only means of communicating the disease, the destruction of the animal is unnecessary. This method would leave the prevention of the spread of the disease largely to the care and honesty of the owners, and the straying and misuse of the horses and their sale or exchange to others, who were ignorant of their condition or careless and dishonest, could only be prevented by the employment of a large force of inspectors.
The disease, indeed, spreads so rapidly and is so disastrous in its consequences that the experience of the past has shown that the most drastic measures must be taken.
The judgment of the District Court is affirmed.