concurring specially.
The judgment of the trial court should be affirmed for the reasons given by that tribunal, in sustaining the demurrer, namely, that the law under which the defendant was being prosecuted is unconstitutional. The legislature cannot delegate its authority in the manner attempted to a board of stock commissioners, to make rules and regulations, the violation of which would be a misdemeanor. Had the legislature provided that a failure on the part of a stock owner to observe prescribed sanitary and quarantine regulations should be an offense, it might have delegated the power to the board to determine, as a fact, under rules jvhich it was authorized to prescribe, what would constitute a violation of such regulations, or when they should be enforced, but no further; or, as held in effect, in some of the cases on the subject in defining the line beyond which the legislature may not go in delegating its power, the legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which tlie law makes, or intends to make, its own action depend. That is as far as the best considered cases on the subject of delegation of authority by a legislative body go.
In the case at bar it will be observed that the statute doeg not prescribe any rules or regulations, or that a violation of any substantive offense which it *433defines, or of any regulations which, it provides, shall constitute an offense; but leaves the whole matter of making rules and regulations touching the manner of inspection of brands, and affecting quarantine and sanitary conditions to the hoard, thus leaving to that body the power to make rules having the force and effect of law, the violation of which is declared to he a misdemeanor. In short, the legislature has not defined any offense, or made any act penal, hut has delegated this authority to the hoard. This, it is submitted, the legislature cannot do.
The act of 1905 does not repeal the act of 1903. The earlier act was intended to provide for a prosecution against one who violated rules and regulations prescribed by the hoard. The later act does not attempt in any way to modify or supplant this provision, hut merely provides under what conditions the board may cause infected animals to he treated, so as to prevent the spread of disease. Both stand independent, and are merely supplementary to each other.