I concur. While at first thought the rule which we uphold appears to be a harsh one I am persuaded *414that upon reflection its seeming harshness largely disappears and its justice becomes manifest. The effect of the decision simply is that a trainer is held penally responsible on his warranty that a horse entered by him in a race has not been ‘ ‘ doped. ’ ’
That the public are entitled to protection against the practice of drugging race horses is not disputed; that the trainer who has charge of a horse, who undertakes to condition it for a race and who actually enters it in the race and permits it to compete shall be charged with absolute responsibility for its condition seems within the bounds of moral reason and legislative power. Contrary to the suggestion which has been made in argument the trainer is not defenselessly liable to punishment for the act of another person; he is liable only for his own act or omission; i. e., causing or permitting a horse warranted by him to be free from drugs to participate in a race while drugged.
The trainer can protect himself by protecting the horse and by cheeking its condition at the last reasonably possible moment before the race. If he finds that despite his earlier care the horse has been drugged he must, of course, withdraw it from the contest; from the time of the last condition check until the race it is not unreasonable that the trainer shall be held to the responsibility of either so guarding the animal as to preclude its being drugged, or of withdrawing it from the race.
EDMONDS, J.In my opinion, there is no sound legal basis for the decision upholding rule 313 of the Horse Racing Board. All of the cases relied upon for that conclusion are based upon evidence tending to prove the connection of the defendant with the prohibited act. In each of them, the defendant was found guilty because of his own conduct, or that of his agent, or upon evidence tending to show, his negligence. But the horse trainer may be held responsible for the acts of third persons over whom he had no control and against which he may have taken every precaution. The rule in effect declares, “No matter who drugged the horse, or under what circumstances it was done, the trainer must pay the penalty, with no right to show any facts negating his connection with the prohibited act.”
Unquestionably, as stated in the opinión, “the recognized interest of the wagering patrons is sought to be safeguarded by Rule 313.” But not everything done “in the interest of the *415public” is valid, for that reason. (McFarland v. American Sugar Ref. Co., 241 U.S. 79 [36 S.Ct. 498, 60 L.Ed. 899].) In cases of alleged violation of due process, it is the invasion of the right of the individual citizen which determines the validity or invalidity of a rule or a statute and not the rights of the public generally.
It may be conceded that Sandstrom’s suspension is not upheld upon the ground of a conclusive presumption that he administered a narcotic or other stimulant. But for the same reason that such a presumption would be invalid, the rule, which “operates to deny a fair opportunity” to the trainer to show facts negating his responsibility, should likewise be held void. The situation here is not unlike that in Manley v. Georgia, 279 U.S. 1, 7 [49 S.Ct. 215, 73 L.Ed. 575], where, in reversing a judgment of conviction, the court said: “The proof which makes a prima facie case points to no specific transaction, matter or thing as the cause ... or to any act or omission of the accused tending to show his responsibility.”
For these reasons, I would affirm the judgment.