(concurring specially). In 1884 Congress created the Bureau of Animal Industry. 23 Stat. at L. 31, chap. 60, Comp. Stat. § 850, 1 Fed. Stat. Anno. 2d ed. p. 406. “Three distinct subjects are embraced by that act. One is the ascertainment through the Agricultural Department of the condition of the domestic animals of the United States, the causes of contagious, infectious or communicable diseases affecting them, the best methods for treating, transport*361ing and earing for animals, the means to be adopted for the suppression and extirpation of such diseases, . . . and to collect such information on those subjects as will be valuable to the agricultural and commercial interests of the country.” Reid v. Colorado, 187 U. S. 137, 47 L. ed. 108, 23 Sup. Ct. Rep. 92, 12 Am. Crim. Rep. 506. The act made it the duty of the Commissioner of Agriculture (this was subsequently made to apply to the Secretary of Agriculture) to prepare such rules and regulations as he might “deem necessary for the speedy and effectual suppression and extirpation of said diseases, and to certify such rules and regulations to the executive authority of each state and territory, and invite said authorities to co-operate in the execution and enforcement of the act.” The act further authorized the Commissioner of Agriculture, on the acceptance of his plans and methods 'for the suppression and extirpation of such contagious, infectious, or communicable diseases by any state or territory wherein any such disease was declared to exist, or on the acceptance by him of plans adopted by any such state or territory, to expend so much of the moneys appropriated by the act as might be necessary to prevent the spread of the disease from one state or territory into another. Congress has consistently adhered to the .legislative policy announced in and put into effect by the act referred to. And during the course of timo it has recognized the importance of the work performed by the Bureau of Animal Industry. In 1902 Congress authorized the Secretary of the Interior to establish a laboratory for the Bureau of Animal Industry, and appropriated the necessary moneys for the purpose. See Agricultural Appropriations, June 3, 1902, chap. 985, 32 Stat. at L. 290.
Following the example set by Congress, the different states and territories enacted legislation relating to the subject. The legislature of the territory of Dakota in 1887 enacted a law entitled “An Act to Suppress and Prevent the Spread of Contagious and Infectious Diseases in Animals.” Laws 1887, chap. 32. The act authorized the appointment by the governor of an officer to be known as the “veterinary surgeon,” and made it the duty of such state veterinary surgeon to investigate any and all cases of contagious or infectious diseases, among the animals of the territory, of which he had knowledge or which was brought to his attention; to establish quarantine of infected *362premises, and in case of epidemic diseases to order the slaughter of any and all diseased animals upon the premises and of all animals that had been exposed to contagion or infection.
This legislation was in force when our state Constitution was framed and adopted. Some of the members of the legislative body which enacted it were also members of the constitutional convention and of the -first legislative assembly of the state, which legislative assembly enacted legislation quite similar to the territorial enactment. Laws 1890, chap. 185. And while the matter has been considered by many of the subsequent legislative assemblies, the main purpose announced in the original enactment has been constantly and consistently adhered to. In 1907 the North Dakota legislature created the Live Stock Sanitary Board and thereby abolished the former statutes relating to district veterinarians. The statutory provisions relative to the Live Stock Sanitary Board are fully set forth in the opinion written by Chief Justice Bruce. See Laws 1907, chap. 169.
I am not informed as to what time dourine became recognized by the Bureau of Animal Industry as a disease requiring suppression or extirpation. But by the rules and regulations adopted (to become operative April 15, 1907), the bureau specifically provided for the condemnation and destruction of all horses and asses affected with the disease, and offered a reward of $25 for authentic information leading to ownership and location of a female animal affected with the disease. (See Regulations Nos. 38 to 41 inc., B. A. I., Order No. 143, issued by the Secretary of Agriculture.) In Regulation 39 it is provided that if stallions or jacks are allowed to run at large in an area quarantined by the Secretary of Agriculture for dourine, or if there is any breeding of horses or asses in a herd in an area quarantined by the Secretary of Agriculture for dourine in which there is a horse or ass which has been exposed to the infection of dourine within eighteen months after said exposure, a rule will be issued forbidding absolutely the interstate movement of any horses or asses from said area. B. A. I. Order No. 210, issued by the Secretary of Agriculture on June 18, 1914, provides that “when it is necessary in order to prevent the spread of the disease and to aid in its extermination, and an appropriation is available therefor, the Department of Agriculture *363will co-operate with the various states in the purchase of diseased animals in the following manner:
“(a) The fact of infection with this disease shall be determined by the Complement Fixation Test applied in the laboratory of the Bureau of Animal Industry.
“(b) The animal shall be appraised at its actual value by an inspector of the Bureau of Animal Industry and the state veterinarian or an assistant state veterinarian of the state in which the animal is located, or, when provided by state law, assessed value as shown by the assessor’s books will be accepted in lieu of appraisal.
“(c) The department will pay one half the appraised or assessed value, provided such share shall in no case exceed $100 and the owner signs an agreement to accept such sum as compensation in full for the discharge of all claims he may have against the United States Department of Agriculture on account of the destruction of the animal in question.” See § 3, Regulation 6, B. A. I. Order 210. These regulations speak for themselves.
The Complement Fixation Test has been utilized by the Bureau of Animal Industry and the defendant board in diagnosis of dourine for some years. It has also been adopted and utilized for some time by the Department of Agriculture of the Dominion of Canada. See Report of the Veterinary Director General of Canada for 1914. That this test is deemed the best, and in fact an infallible, method of diagnosis by these different boards and by veterinarians in general, is not denied. That the mare involved in this litigation was properly subjected' to this test and found thereby to be affected with dourine is undisputed. That dourine is an incurable disease is conceded.
The authority of the legislature to enact laws for the protection of domestic animals, and to prevent the spread of infectious or contagious diseases among them, is everywhere recognized as a valid exercise of the police power of the state. 3 C. J. p. 50, § 145. It is well settled that under such police power the state may confer authority on designated officers or specially created commissions to destroy animals affected with contagious or infectious diseases (3 C. J. p. 54, § 151), and also confer upon such officers or commissions authority to execute the law and to adopt reasonable needful regulations to that end, 3 C. J. p. 51, § 147.
*364Whether the judgment of the officers or boards as to the diseased condition of a condemned animal is conclusive, is a question upon which the courts have differed. Some courts hold that such judgment is conclusive. 3 C. J. p. 54. Other courts have held that the ex parte decisions of such officers or boards for the destruction of an animal is not conclusive upon the question that the animal was diseased. Miller v. Horton, 152 Mass. 540, 10 L.R.A. 116, 23 Am. St. Rep. 850, 26 N. E. 100; Pearson v. Zehr, 138 Ill. 48, 32 Am. St. Rep. 113, 29 N. E. 854; Asbell v. Edwards, 63 Kan. 610, 66 Pac. 641; Crane v. State, 5 Okla. Grim. Rep. 560, 115 Pac. 622; Richter v. State, 16 Wyo. 437, 95 Pac. 51.
These latter cases are based upon the theory that, while the legislature has the power to declare domestic animals affected with certain contagious or infectious diseases to be nuisances and order their summary destruction, even without compensation, it has no power to declare all domestic animals, those free from disease as well as those diseased or exposed, to be nuisances and order their summary destruction without compensation to the owners. It is therefore concluded that inasmuch as the legislatixx*e cannot itself ox’der the destruction of domestic animals unless they are actually affected with, or have been exposed to, a contagious or infectious disease so as to constitute an actual or potential xnenaee to the health of other domestic animals or to human beings, it cannot authorize officers or commissions to do so; that the jurisdiction and power of such officers or boards to destroy is limited to animals of the latter class: and that whexx they order the destruction of animals fx*ee from, or not carriers of, disease, they exceed their powex*s and act outside of their jurisdiction.
The question referred to is one of great importance. But in my opinion it is not necessarily involved in this case, and I therefore express no opinion thereon. Neither do I express any opinion as to whether the members of the defendant board- would be liable personally for damages resulting from an ex*ror of judgment on their part in condemning and destroying animals free froxxx disease. Eor even though the findings of the board are not conclusive, they are nevertheless presumed to be correct and must be so accepted, unless it is shown that they ax’e erroneous or fraudulent or collusive, or that the board acted outside, or iix excess, of the power conferred upon it by the statute.
*365It is undisputed that the defendant board proceeded in all things in accordance with the rules and regulations established by it under the statute, and in accordance with the regulations and practices of the Bureau of Animal Industry. The findings that the mare is affected with dourine was based primarily upon the blood test — the Complement Fixation Test — made in the laboratory of the Bureau of Animal Industry at Washington. The test, as already stated, is the one adopted by that bureau and by a similar board in the Dominion of Canada for the diagnosis of dourine. The test is recognized by these governmental agencies and by veterinarians in general as the surest and most infallible method of diagnosis. It has not been shown in this case that the diagnosis was erroneous, or that the findings of the defendant board were incorrect. While it appears that the mare was in an apparently healthy condition and exhibited no clinical symptoms of the disease, this does not necessarily prove that she was free from dourine. Apparently, the disease may exist in an animal which has all appearance of being in perfect health. It would appear from the rules of the Bureau of Animal Industry hereinabove set forth, that an animal may be affected with the disease for a' considerable length of time before any clinical symptoms appear. It is possible that in this •case a quarantine regulation might have been established and the owner permitted to use the animal for some time. This was, however, primarily a question for the defendant board; and even conceding that power exists in the courts to review the findings and determinations of the board, both as to the diseased condition of animals ordered to bo ■destroyed and the necessity for their destruction, clearly the board’s ■determination should not be interfered with, unless shown to be erroneous or unreasonable. And in view of the conceded incurable and Adrulent character of the disease, and the necessity to destroy the animals affected thereAvith, as recognized by the Federal and Canadian authorities, T am not prepared to say that the order of the defendant board was so unreasonable or arbitrary as to justify judicial interference, even conceding that the courts have the poAver to review the findings and determinations of the board. On the contrary, the action of the defendant board seems to be in harmony with the regulations adopted and the practices established by the Federal Bureau of Ani*366mal Industry and the Canadian authorities in dealing with, and in attempting to extirpate and suppress, dourine.