I concur in the views expressed by Judge Riley in his dissenting opinion, but as I feel that the rule of the commission, No. 248, which the majority sustains, violates the requirements of due process, I file this supplemental dissent. *Page 213
The majority concedes that the rule constitutes "a harsh" exercise of the police power and that it "admits the imposition of a penalty without fault". In my judgment a rule of that character, even though imposed by the exercise of the police power, should not be given judicial approval. It is not disputed that the evidence fails to show that the relator performed any act in connection with administering the drug, or even knew that it had been given to her horse, until that fact was subsequently determined by the analysis of its urine. The record does not disclose how or by whom the horse was drugged and there is no evidence of the guilt of the relator yet, by the application of the rule, her license is suspended and the horse is disqualified for a period of six months. On the face of this record she is merely an innocent victim and as such she is convicted of the misconduct condemned by the rule and under it she is dealt with and punished as if she were proved guilty of its violation. In its application to the facts and the circumstances of this case, it is not only harsh, as the majority opinion admits, but it is manifestly unfair and unjust. Even the police power of the State should be exercised fairly and justly and not as an instrument of oppression or injustice. As I understand it, due process is designed to guard against and prevent either or both and in my judgment a rule which deprives a person of the defense of innocence of the charge with which he is confronted is not due process but manifest injustice. No governmental authority, judicial, administrative or executive, should convict, or be permitted to convict, any person, whatever may be his character or his calling, in the absence of any proof of his guilt whether the charge against him be a civil wrong or a criminal offense, and no person may be so convicted of such guilt with my consent or approval. It will not do to say that the license of the relator is a privilege, not a right, and that in the exercise of the police power the Legislature may grant or withhold it as it may choose. Conceding all this, the privilege when once granted should not be arbitrarily, unfairly or unjustly withdrawn or revoked without cause based upon *Page 214 some showing that the licensee is guilty of misconduct which justifies such drastic action. I think injustice has resulted from the application of the challenged rule in the clearly established circumstances of this case and chiefly for that reason I record this dissent.