(dissenting). This case relates to the right and power of the Sanitary Board to kill two splendid work horses on a mere suspicion that the animals are affected with the disease of dourine. It also relates to the right and duty of the courts to protect personal property against needless destruction. To sustain the killing and deny the right of the courts to interfere, a long opinion has been written. It is said: “The courts cannot review the discretion of the Live Stock Sanitary Board in ordering the mares to be killed under the provisions of the statute.” If that is true then the board may order the killing of every horse in the state, and the courts are powerless to restrain them.' If the courts may not review the orders of a sanitary board in ordering a horse to be killed, then the board must have absolute power to order the killing of all the horses in the state.
It is said: “There is no property in that which is a nuisance.” If that is true, still a party may not be deprived of his property by calling it a nuisance. The proof that it is a nuisance must be clear and satisfactory. It is said the board has adopted a test of dourine which is approved by scientific men in the United States and in Canada. But that is not true. The test adopted is new and it is not known to science. If it were known and approved by such scientific men as Professor Ladd it would not be necessary to doctor the blood of the animals and to send it to a bureau in Washington for a supposed chemical test known to only one man in the United States.
There is only a mere suspicion that the mares are affected with any disease and there is good reason to believe that the suspicion is ill founded. Indeed the chances are ten to one against the disease. The appeal record contains not a word of evidence. It presents only the findings and conclusions of the trial court. The court finds: Each maro is a valuable work horse and may be worth about $250. She is entirely free from disease so far as can be discerned by an examination of a veterinary, surgeon. This has been her condition since she was ordered destroyed in the summer of 1915. So far as can be ascertained she has never been bred to a diseased stallion. Hence, the court finds that it is not necessary for the protection of the public, that the *367mares should be slaughtered, and that the slaughter would constitute an unnecessary and unwarranted, invasion of plaintiff’s property rights. The court finds that the board and its agents base their diagnosis of dourine on a blood test conducted by sending the blood from the animal to the Bureau of Animal Industry at Washington. The experts do not examine the blood under a miscroscope, but subject it to a chemical test which is so extremely technical that it is impossible for any layman to understand it, and the ordinary veterinarian makes no pretense to understand it. It was not shown to have been performed by more than one man in the United States.”
“The blood is taken from the animal to be tested and prepared by the field veterinarian before it is sent to Washington. If the bureau at Washington, reports a reaction, the animal is ordered killed. The test is a new device which was not used in the United States until 1914. Animals slaughtered frequently show no symptoms of the disease either while alive or on post mortem examination. It is a disease of the genital organs, and is communicated, only by actual contact in the act of breeding. After infection an animal usually developed symptoms of the disease in from three weeks to six months, and the disease usually terminates fatally in from six months to two years.”
Such are the findings. From the official reports of the board it appears that during the four years commencing with 1914, 31,406 horses were bled for the fixing test and there was a killing of 700 horses. Regardless of any protest every animal is killed on a mere report that its blood yields to the new fixing test. Of course, in such reports there are chances of error or mistake. Indeed, the chances are that most of the horses killed, showing no symptoms of disease, were perfectly sound and healthy. And surely it should not be necessary for a board of scientists to show its zeal or skill by bleeding 31,406 horses to kill 700. For all this there must be some motive besides pure patriotism. There must be some money in the business. The killing of animals has prevailed quite extensively, and, as I think, there is good reason to believe that many sound and healthy animals have, been killed. The result is a great loss to those whose good animals are killed and loss to those who bear the expense and pay the taxes. And yet it profits the board and the agents who do the killing. In 1917, this amount was paid the board manager, his clerk, and agents $11,845.17; in 1916, $12,934; *368and for animals killed there was paid $36,466. I wish it were so that every man in all the world had to live or die by his own honest toil.
Under the statute when an oi’der is made for the killing of an animal within twenty-four hours, the owner may protest by making and serving an affidavit that he verily believes the animal is free from any disease. Then to determine the question the board or its agents appoint a veterinarian. The animal owner appoints one, and the two appoint a third, but the proceeding is a mere farce and a mockery. The board or its field agent secures a killing decree every time. That is shown by its own reports. It is shown that numerous protests have been made and that no killing has ever been prevented only by an injunction; and yet it is contended that such a hasty mock appeal to bleeders and killers does constitute due process of law, and that the courts are powerless to protect a person against the destruction of his sound and healthy animals. But the Constitution is that the courts shall be open, and that every man for any injury done him in his person or property shall have a romedy by due process of law, and right and justice administered without sale, denial, or delay. Now this due process of law means the law as administered by the courts in the regular course of judicial procedure. In a country of law every person has a right to an appeal to the courts, and, except in cases of the most imperative .and manifest necessity, no man can be legally deprived of life or property except pursuant to the judgment of a court of competent jurisdiction.
In this case the trial jxxdge has found that the animals are not a xxuisance, axxd that to kill them would unjustly deprive the owner of his property. On the findings of fact it is clear that the court was taken in its conclusions of law, but that is no reason for this court to do likewise. On such facts and findings there is no justification, either in law or in morals, for the killing of two splendid work horses. The judgment should be reversed.