*369On Petition for Rehearing.
Per Curiam :Plaintiff has filed a petition for rehearing. On such petition he presents two propositions:
(1) He first contends that the legislature may not, even in the exercise of the police power, authorize the destruction of any animal, even though infected with dourine, unless such destruction is essential to protect the health or promote the collective welfare of the public.
(2) He next contends that the mare involved in this action is not, in fact, infected with dourine, but is wholly free therefrom, and that the defendant board had no authority to order her destruction.
We will consider the proposition in the order stated.
(1) “The police power” is the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals, and general welfare of society. Such power, as pointed out by Mr. Justice Holmes, speaking for the Supreme Court of the United States, in Noble State Bank v. Haskell, 219 U. S. 104, 55 L. ed. 112, 32 L.R.A.(N.S.) 1062, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487, may be said, in a general way, to extend to all the great public needs, and “it may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality, or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.” As applied to the powers of one of the states of the Union, the term “police power” is also used to denote those inherent governmental powers which, under the system established by the Constitution of the United States, are reserved to the several states. 12 C. J. 905. Of course, there is no such thing as a police power which is above the Constitution, or which justifies any violation of express or manifestly implied constitutional prohibitions. State ex rel. Milwaukee Medical College v. Chittenden, 127 Wis. 468, 107 N. W. 500. And, “however broad the scope of the police power, it is always subject to the rule that the legislature may not exercise any power that is expressly or impliedly forbidden to it by the state Constitution.” 12 C. J. 929. But where a subject is within the police power, it is for the legislature to say what the remedy shall be, and a police enactment will be upheld unless it contravenes some constitutional restriction. American Lin*370seed Oil Co. v. Wheaton, 25 S. D. 60, 41 L.R.A.(N.S.) 149, 125 N. W. 127.
That a state legislature may, in the exercise of the police power, provide for the quarantine of diseased or suspected animals and for the destruction of animals infected with contagious or infectious diseases, is no longer an open question. Legislative enactments making such provisions have been almost universally upheld. And in enacting such regulatory measures the legislature may require precautions within the whole range of possible danger. But the regulations adopted must have some reasonable or probable connection with the public object sought to be accomplished. In other words, the legislature itself cannot, nor can any board created by it, adopt such means or prescribe such methods as are clearly unreasonable and arbitrary. This is especially true where it is sought to destroy property, as such extreme measures are only justified within the limits of necessity. Herlihy v. Donohue, 52 Mont. 601, L.R.A.1917B, 702, 161 Pac. 164, 166, Ann. Cas. 1917C, 29, 14 N. C. C. A. 1022; Freund, Pol. Power, § 521. And it will be noted that the statute under consideration authorizes the destruction only of animals which are actually infected with a contagious or infectious disease. Hence, leaving constitutional considerations on one side, it is clear that under the statute the defendant board has no power or jurisdiction to order the destruction of animals which are free from such diseases. Asbell v. Edwards, 63 Kan. 610, 66 Pac. 641; Crane v. State, 6 Okla. Crim. Rep. 560, 115 Pac. 622; see also State v. Speyer, 67 Vt. 502, 29 L.R.A. 573, 48 Am. St. Rep. 832, 32 Atl. 476.
The legislature created the Live Stock Sanitary Board and conferred upon it authority “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 may have been exposed to infection therefrom and to hill any animal so infected. Comp. Laws, § 2686.
Hnder the statute the defendant board adopted a rule providing for the destruction of all animals infected with dourine. In adopting such rule the defendant' board merely put into operation the practice *371established and followed by the Bureau of Animal Industry and by similar boards in the Dominion of Canada and several states of the Union. Upon the first proposition presented on the petition for rehearing a majority of this court are still of the opinion:
1. That the legislature, in order to suppress or eradicate contagious or infectious diseases among domestic animals, may provide for the destruction of infected animals in all cases where such destruction is reasonably necessary, and to that end had the power to create and confer upon the State Live Stock Sanitary Commission authority to execute the law and adopt such regulations as are reasonably necessary to accomplish the desired end.
2. That under our statute it is for the Live Stock Sanitary Board to determine whether it is necessary to kill an animal infected with dourine in order to suppress or eradicate. the disease, or whether a quarantine of the infected animal or animals would be sufficient.
3. That the Live Stock Sanitary Board did not exceed its authority in adopting the regulation providing for the destruction of all animals infected with dourine.
(2) Upon the second proposition plaintiff has filed several affidavits with respect to the present condition of health of the mare involved in this litigation, accompanied by photographs of the mare. And it appears that though this litigation has continued for more than three years, the mare is still in apparent good health and has manifested no clinical symptoms of dourine. This condition is totally at variance with what the reports of the Bureau of Animal Industry and other literature on the subject of dourine would lead one to expect would have been true if the mare had actually been infected with dourine at the time of the commencement of this action. In fact, the showing made, while unusual and not altogether proper upon a petition for rehearing, is nevertheless such as to indicate a strong possibility, and almost a probability, that some error must have been made in the application of the Complement Fixation Test, or that the blood taken from the mare involved in this action might have become confused with that taken from some other animal. And this, of course, is not altogether impossible, or even improbable, when we consider the large number of specimens of blood taken and sent to Washington for examination. .
*372The efficiency of many police regulations depends upon their'prompt and summary execution. Delay until a judicial determination could be had often would defeat the very purpose for which the regulation was enacted. In such cases it is indeed very proper for the courts to refuse to interfere with the carrying out of the order of the boards or officers intrusted with executing the law. The present action, however, has been pending for more than three years. The reason for the rule requiring judicial noninterference can hardly be said to exist. The parties to the litigation are here, and all the matters in controversy ought to be determined, if possible. This court should not send the parties out of court and compel either of them to come in by another door. Star Land Co. v. Olson, — Iowa, —, 168 N. W. 111. If the mare in question is, in fact, infected with the disease of dourine, it is within the power of the defendant board either to cause her to be destroyed or placed in quarantine, and their judgment upon this matter is not subject to review by the courts. But if the mare is not, in fact, infected with dourine, but is free from such contagious or infectious disease, the board has no power or jurisdiction to order the mare destroyed.
The evidence in the case was not transmitted to this court, and the district court expressly refrained from making any findings upon the question of whether the mare was, in fact, infected with dourine. Under all the circumstances, we do not feel justified in affirming the judgment unconditionally, as this might result in irreparable injury, but deem that the course most consonant with the principles of right and justice is to give the parties an opportunity to submit further evidence upon the question whether the mare is, in fact, infected with the disease of dourine. The case is, therefore, remanded for a new trial in accordance with this opinion, and the trial court directed to take evidence and make findings, upon the qioeslion of whether the mare is, in fad, infected with the disease of doumne.
In the foregoing per curiam denying the petition for rehearing all pf the judges. concur.
In that portion, however, remanding the cause with directions, Chief Justice Bruce and Judge Birdzell do not concur. While it is their opinion that it is proper under the state of facts presented to attempt to guard against a mistake passing beyond the bounds of remedy, they *373fee! that the remittitur should be held in this court for a period of sixty days to enable the Live Stock Sanitary Board to again apply the Complement Fixation Test and report the results thereof to this court. In their judgment this procedure, while unusual, would be more consistent with the main opinion than that which is ordered in this remittitur, and they see no reason to recede from the position taken in the original opinion.