I dissent.
The majority opinion sustains as valid a rule of the California Horse Racing Board which imposes liability without culpability—guilt without fault or knowledge that a wrong had been perpetrated or that the rule had been violated. Under this rule an innocent person may be condemned and punished without evidence that he did, or intended to do, or permitted to be done, any wrong whatsoever. In fact, this result could be obtained even if it were conclusively shown that such innocent person did everything possible to prevent the violation of such rule or was overpowered by a wrongdoer and rendered helpless while the unlawful act was being consummated. The exercise of vigilance, diligence, care, precaution and fidelity to duty honestly and faithfully performed is of no avail. The suspended axe falls and the innocent victim is decapitated. “Oh! [justice], what crimes are committed in thy name.”
In overruling the demnrrer interposed by the California Horse Racing Board to the petitioner’s petition in the trial court, the learned trial judge made the following comment: “Respondents, by this Rule 313, and through counsel on the hearing herein, contend that the Board has the absolute right to suspend a trainer’s license upon the proof of the presence of the narcotic in the horse after a race, on the basis of the *416Rule which proclaims the trainer handling that horse as the ‘absolute insurer ... of the condition of the horse ... regardless of the acts of third parties. ’
“This Rule as written deprives the licensee in question of any possible defense to an attempt or threat of the Board to suspend his license once the presence of the proscribed narcotic was established. To deprive the trainer of his license under such circumstances would not be founded upon ‘just cause, ’ and for that reason, the Rule as construed and applied by the Board in this case is arbitrary, unreasonable and capricious, and inconsistent with the provisions of the chapter on Horse Racing, particularly sections 19512 and 19513. That portion reading ‘shall be the absolute insurer regardless of the acts of third parties, ’ and basis for suspension is inconsistent with the authority of the Board to make reasonable rules and to limit suspension orders to cases where just cause is established. ’ ’
I am in full accord with the foregoing pronouncement. In my opinion rule 313, as here applied, violates every precept of justice as established by the Constitution and laws of the United States and this state. It is unconstitutional and out of harmony with the American system of justice, and may appropriately be labeled as “un-American.” It cannot stand in the face of the long line of decisions of the Supreme Court of the United States which denounce such strictures on justice as a violation of the due process provisions of the Fifth and Fourteenth Amendments to the Constitution of the United States. (Tot v. United States, 319 U.S. 463 [63 S.Ct. 1241, 87 L.Ed. 1519]; Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35 [31 S.Ct. 136, 55 L.Ed. 78]; Bailey v. Alabama, 219 U.S. 219 [31 S.Ct. 145, 55 L.Ed. 191]; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 [31 S.Ct. 337, 55 L.Ed. 369]; Luria v. United States, 231 U.S. 9 [34 S.Ct. 10, 58 L.Ed. 101]; McFarland v. American Sugar Ref. Co., 241 U.S. 79 [36 S.Ct. 498, 60 L.Ed. 899]; Manley v. Georgia, 279 U.S. 1 [49 S.Ct. 215, 73 L.Ed. 575]; Western & Atlantic R. R. Co. v. Henderson, 279 U.S. 639 [49 S.Ct. 445, 73 L.Ed. 884]; Morrison v. California, 291 U.S. 82 [54 S.Ct. 281, 78 L.Ed. 664].) But the majority argues that since the rule in question may not be considered as establishing a presumption it does not come within the rule announced in the above cited cases. Such argument is fallacious. No rational mind can deny that rule 313 goes farther than any of the statutes involved in the above cited cases in depriving the complaining party of due process *417of law. The presumption involved in each of the above cited cases was rebuttable, but it placed upon the defendant the burden of disproving the fact presumed. Can it be said that if the statutes in those cases had imposed liability without fault, that such statutes would not have been stricken down as violative of the due process provisions ? I do not think that the majority of this court will so contend. In every case where a statute imposing absolute liability was sustained, such liability was predicated upon proof that the party held liable was in control of the agency which caused the injury from which the damage resulted. The argument on behalf of the defendant in those cases was not that the injury or damage did not result from its operation, but that there was no proof of negligent conduct on its part. This is quite a different matter than holding a defendant liable without proof that it set in motion the agency which caused the injury or damage.
The majority opinion states: “Rule 313 may not be deemed to establish a conclusive presumption to the effect that evidence . of the presence of a drug in a horse is proof that the trainer drugged the horse. By express language the rule imposes strict liability for the condition of the horse. Fault in the sense of actual administration of the drug or negligent care by the trainer is neither the basis nor an element of liability. It may not be injected into the case by way of subtle hypothesis. Whether the trainer drugged the horse or knew that it was drugged, or was negligent in not properly seeing that the horse was not drugged are not elements of liability. Since Rule 313 may not be considered as establishing a presumption it is not within the scope of the limitations imposed either by sections 1837 and 1978, Code of Civil Procedure, or by Schlesinger v. Wisconsin, 270 U.S. 230 [46 S.Ct. 260, 70 L.Ed. 557]; Heiner v. Donnan, 285 U.S. 312 [52 S.Ct. 358, 76 L.Ed. 772]; or Tot v. United States, 319 U.S. 463 [63 S.Ct. 1241, 87 L.Ed. 1519].”
The foregoing argument is based upon specious reasoning. | It is a veiled denial of the obvious—a smoke screen which at- | tempts to obscure the patent objective of the rule. Let us \ analyze this argument. It states: “Rule 313 may not be deemed to establish a conclusive presumption to the effect that evidence of the presence of a drug in a horse is proof that the trainer drugged the horse.” But what does rule 313 say? “The trainer shall be the absolute insurer of and responsible for the condition of the horses entered in a race, regardless of *418the acts of third parties.” Does this rule not say in effect: “If a horse is found to have been drugged it will be conclusively presumed that the trainer was responsible therefor?” Certainly there can be no difference in legal effect between absolute liability and a conclusive presumption of liability. The majority opinion calls it “strict responsibility.” With this I agree. But this does not render it immune to the due process provisions of the Constitution. Certainly, if a statute which purports to create liability by mere fiat is violative of the due process provisions, a rule of an administrative agency which comes within that category, would likewise fall in the face of those provisions.
It has been said that governments are instituted for the purpose of protecting and advancing the rights and ideals of the people, and that ours is a government “of the people— by the people—for the people.” Such concepts contemplate protection of individual and personal rights to the extent at least that all persons under the protecting arm of our govern- ' ment may have the opportunity to enjoy life, liberty and the pursuit of happiness. As a fortress for the protection of these rights our judicial system was established. Out of this system has developed what is commonly termed the American system of justice which contemplates that before a person can be deprived of life, liberty or property he must be accorded due process of law. While the term due process of law has been the subject of various interpretations by the judicial tribunals of this country, I think it can be said that there has been no departure from the basic concept that in order to fulfil the requirements of the due process provisions there must be a charge sufficient to inform the person against whom it is directed, of its nature; such charge must be presented to a legally constituted tribunal having jurisdiction to determine the issues raised thereby; that notice of such charge must be given to the person against whom it is directed and a hearing had, at which evidence must be produced sufficient to sustain the charge. It may be conceded that all of the requirements of due process except the last mentioned (evidence to sustain the charge) have been met in this case. But instead of producing evidence the state relies upon rule 313 adopted and promulgated by the California State Horse Racing Board which purports to substitute for evidence of guilt a mere fiat, namely, that the administering of a drug to a horse entered in a race is chargeable to the trainer without regard to his knowledge of the fact or ability to prevent it. It is my posi*419tion that the application of snch a rule in the case at bar constituted a denial to petitioner of due process of law guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States.
This position finds ample support in the authorities. In Manley v. Georgia, supra, at page 6, the court said: ‘ ‘A statute creating a presumption that is arbitrary or that operates to deny a fair opportunity to repel it violates the due process clause of the Fourteenth Amendment. Bailey v. Alabama, 219 U.S. 219, 233 [31 S.Ct. 145, 55 L.Ed. 191], et seq. Mere legislative fiat may not take the place of fact in the determination of issues involving life, liberty or property. '... it is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime. ’ McFarland v. American Sugar [Ref.] Co., 241 U.S. 79, 86 [36 S.Ct. 498, 60 L.Ed. 899].” This holding was reaffirmed in Tot v. United States, supra, where the Court said at pages 466 and 467. “An indictment charges the defendant with action or failure to act contrary to the law’s command. It does not constitute proof of the commission of the offense. Proof of some sort on the part of the prosecutor is requisite to a finding of guilt; it may consist of testimony of those who witnessed the defendant’s conduct. Although the Government may be unable to produce testimony of eye witnesses to the conduct on which guilt depends, this does not mean that it cannot produce proof sufficient to support a verdict. The jury is permitted to infer from one fact the existence of another essential to guilt, if reason and experience support the inference. In many circumstances courts hold that proof of the first fact furnishes a basis for inference of the existence of the second.
“The rules of evidence, however, are established not alone by the courts but by the legislature. The Congress has power to prescribe what evidence is to be received in the courts of the United States. The section under consideration is such legislation. But the due process clauses of the Fifth and Fourteenth Amendments set limits upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated. The question is whether, in this instance, the Act transgresses those limits.
“The Government seems to argue that there are two alternative tests of the validity of a presumption created by statute. The first is that there be a rational connection between the *420facts proved and the fact presumed; the second that of comparative convenience of producing evidence of the ultimate fact. We are of opinion that these are not independent tests but that the first is controlling and the second but a corollary. ’ ’ [Emphasis added.]
And again at page 469: “Nor can the fact that the defendant, has the better means of information, standing alone, justify the creation of such a presumption. In every criminal ease the defendant has at least an equal familiarity with the facts and in most a greater familiarity with them than the prosecution. It might, therefore, be argued that to place upon all defendants in criminal cases the burden of going forward with the evidence would be proper. But the argument proves too much. If it were sound, the legislature might validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt. This is not permissible.
“Whether the statute in question be treated as expressing the normal balance of probability, or as laying down a rule of comparative convenience in the production of evidence, it leaves the jury free to act on the presumption alone once the specified facts are proved, unless the defendant comes forward with opposing evidence. And this we think enough to vitiate the statutory provision.”
The majority opinion argues: “That the imposition of strict liability whether by statute or judicial decision does not of itself contravene the due process clauses of the federal or state Constitutions may not be disputed.” In support of this statement several cases are cited. An examination of these eases discloses that in none of them was a statute or rule involved which created absolute liability without proof that the defendant or his agent or employee was in control of the agency which caused the injury or damage, and none of the cases there cited involve a statute or rule of an administrative agency which purports to create liability without such proof.
The majority opinion also argues that: “The state, in the exercise of its police power, may regulate public race tracks and places of public amusement.” And that: “When the state sees fit to regulate upon a matter which is within its police power, its authority over the subject is plenary and can be reviewed by the courts only to the extent of determining whether the regulation is reasonable.”
*421I do not disagree with the legal propositions above announced, but their applicability to the ease at bar is rather obscure. There is no question but that the state may regulate and even prohibit gambling and this feature of the horse racing enterprise clearly comes within the purview of the police power of the state. However, when it comes to the matter of training horses and racing them independent of the gambling feature of the enterprise, I doubt if the state has any power to place restrictions thereon. It is obvious that only because people desire to wager upon the outcome of horse races the state has any power to control the handling or treatment of horses so long as such treatment is humane. But conceding that the entire horse racing enterprise because of its gambling features is now within the purview of the police power of the state, it does not follow that the state may violate the due process provisions of the federal and state Constitutions under the guise of exercising its police power. It may be said that all criminal cases come within the purview of the police power. Yet it is well settled that: “A law which would practically shut out the evidence for the accused and thus deny him the opportunity for a trial would substantially deprive him of due process of law, and be invalid; a law which makes an act prima facie evidence of a crime over which the party charged had no control, and with which he had no connection, is clearly invalid. Similarly, an ordinance which throws upon the defendant the burden of proving his innocence of a crime is void.
“It is also well settled that the legislature may not arbitrarily create a conclusive presumption of guilt against the accused, as to any element of the crime charged, by giving artificial and evidential force to certain facts which otherwise would be wholly irrelevant and inconclusive.” (20 Am.Jur. 42.)
The majority opinion argues that: “Rule 313 is designed to afford the wagering public a maximum of protection against race horses being stimulated or depressed by making the trainer the insurer of the horse’s condition, ’ ’ and that ‘ ‘ Should responsibility be imposed only for actual guilty participation or culpable negligence, as petitioner contends, there would exist a possible field of activity beyond the affirmative protection thereby afforded to patrons of the pari-mutuel system. . . . The closer the supervision to which the trainer is held, the more difficult it becomes for anyone to administer a drug or *422chemical to the horse. The exaction of the ultimate in that regard is justified by the peril to be avoided.” [Emphasis added.]
In substance, this same argument may be made in support of every other unreasonable, arbitrary and capricious statute or rule which was ever enacted or adopted. It is a matter of weighing expediency against injustice, or, putting it in another way, does the benefit to that portion of the public who desire to engage in the “sport of kings” outweigh the injustice to an individual whose right to earn his livelihood in his chosen profession is lost because it is impossible for him to prevent a violation of the rule? Having had some experience in the care and training of horses (not of the racing type) I take judicial notice of the fact that a trainer does not sleep with his horse, nor is he with him during all his waking hours. I also think it is reasonable to assume that notwithstanding the utmost vigilance is practiced by the trainer, there is nevertheless a possibility that stealthy culprits may be able to administer a drug to a horse without the trainer’s knowledge. Whether the fact could be ascertained by the trainer before he permitted the horse to enter the race, is problematical. The opinion prepared by Mr. Justice Shenk states that: “Detection of the condition may not be possible until long after the race has been run and the pari-mutuel winners paid off. ’ ’ But in the concurring opinion of Mr. Justice Schauer he states that: “The trainer can protect himself by protecting the horse and by checking 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.” As I have had no experience in the technic of testing horses to determine whether or not they have been drugged, and the record fails to disclose whether such a test would be of any value if made before a horse was entered in a race, I do not know which, if either, of the above quoted statements is correct. It seems, however, that the test applied in this case (urine) would probably not be possible to apply before the horse was entered in the race. Moreover, it would also seem that if any reliable test could be made before the race, such test would be made under the supervision of the racing board to protect the wagering public against fraud. Be that as it may, such considerations are of little value in *423testing the validity of rule 313 in the light of the requirements necessary to satisfy the due process provisions of the federal and state Constitutions. As hereinbefore stated, the rule establishes a conclusive presumption of guilt when a test discloses that a horse entered in a race has been drugged. Such a rule is far more unreasonable and arbitrary than any of the statutes creating rebuttable presumptions which were held invalid as violative of the due process provisions by the United States Supreme Court in the decisions hereinbefore cited.
As stated by Mr. Justice Cardozo in Morrison v. California, 291 U.S. 82 [54 S.Ct. 281, 78 L.Ed. 664] at 672 [78 L.Ed.] (invalidating section 9(a) of the California Alien Land Law) : “There is no practical necessity in such circumstances for shifting the burden of the defendant. Not only is there no necessity; there is only a faint promotion of procedural convenience. The triers of the facts will look upon the defendant sitting in the court room and will draw their own conclusions. If more than this is necessary, the People may call witnesses familiar with the characteristics of the race, who will state his racial origin. The only situation in which the shifting of the burden can be of any substantial profit to the state is where the defendant is of mixed blood, the white or the African so preponderating that there will be no external evidence of another. But in such circumstances the promotion of convenience from the point of view of the prosecution will be outweighed by the probability of injustice to the accused. One whose racial origins are so blended as to be not discoverable at sight will often be unaware of them. If he can state nothing but his ignorance, he has not sustained the burden of proving eligibility, and must stand condemned of crime. ’ ’
The case of Heiner v. Donnan, 285 U.S. 312 [52 S.Ct. 358, 76 L.Ed. 772], involved the constitutionality of a provision of the death transfer tax law creating a conclusive presumption that gifts made within two years prior to the donor’s death were made in contemplation of death. The government argued that under a prima facie presumption originally in force there had been a loss of revenue. The court says (at p. 780 [76 L.Ed.]) : “This is very near to saying that the individual, innocent of evasion, may be stripped of his constitutional rights in order to further a more thorough enforcement of the tax against the guilty, a new and startling doctrine, condemned by its mere statement and distinctly repudiated by this court in Schlesinger’s case (270 U.S. 240) and Hoeper’s case *424(284 U.S. [206] 217 [52 S.Ct. 120, 76 L.Ed. 248]), cases involved similar situations.”
The majority opinion cites and analyzes, but refuses to follow, three recent cases decided by courts of other jurisdictions which have considered the problems here involved. Smith v. Cole, 270 App.Div. 675 [62 N.Y.S.2d 226]; Mahoney v. Byers, -Md.- [48 A.2d 600]; State v. Baldwin, -Fla.- [31 So.2d 627]. In my opinion the holding in all three of these eases is contrary to that of the majority of this court, and the attempt to distinguish them from the case at bar is based upon considerations more fanciful than real. The attempted distinction of the Mahoney case is based upon the fallacy that the Maryland rule substituted a rebuttable presumption for an essential fact. As I have heretofore pointed out, such a rule is much more favorable to the accused than the conclusive presumption provided for in rule 313 of the California Horse Racing Board. An attempt is made to distinguish the Baldwin case by the statement that the court which decided that case did not consider the power of a state to impose strict liability. Such a purported distinction is fallacious as the Supreme Court of Florida predicated its decision holding the rule invalid upon the obviously sound theory that the rule was so unreasonable, arbitrary and capricious that it constituted a violation of the due process provisions of the federal and state Constitutions. In my opinion the three cases above cited are in full accord with the settled rule announced by the Supreme Court of the United States in the eases which I have hereinbefore cited, and should be followed by this court.
Finally, it appears that the opinion prepared by Mr. Justice Shenlt is rested upon the grounds that under the rule of the horse racing board the trainer is properly made an insurer against the doping of a horse and that there is no unlawful delegation of legislative power in conferring upon the board authority to make such a rule. Accepting those two propositions, there still remains the question of whether the Legislatture did delegate such power. It is my opinion that the authority to adopt such a rule has not been granted by the Legislature to the board. The trainer, like others engaged in the activity of horse racing, must obtain a license from the board under the horse racing act. The act provides that such licenses may not “be revoked without just cause.” (Bus. & Prof. Code, § 19513.) It is true that the board is empowered to adopt rules and regulations for horse racing and a violation of a rule is *425ground for suspension or revocation of a license, but if a license cannot be revoked except for “just cause” then no rule is valid, the violation of which can result in the loss of such license, which does not have a just cause or basis. Otherwise the requirement that there must be “just cause” for revocation of a license would be wholly thwarted. The board could make a rule that no bald headed man could hold a license as a trainer and then proceed to revoke a licensee’s license because he lost his hair. Obviously the revocation of a license on that ground would not be for “ just cause.” The issue then becomes one to ascertain whether or not the rule in the instant case is founded upon “just cause.”
A “just cause” is fair and reasonable cause. (In re Municipal Garage in and for the City of Utica, 141 Misc. 15 [252 N.Y.S. 18]; Quick v. Southern Churchman Co., 171 Va. 403 [199 S.E. 489].) For illustration, when an officer may not be removed except for “cause,” the “Cause must be one which specially relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.” (46 C.J. 986.) (See, also, Good v. Common Council, 5 Cal.App. 265 [90 P. 44]; McQuillan, Muni. Corps. [2nd ed.], § 579.) And there must be some element of wilfulness present—some fault or blame attributable to the officer. “It is frequently urged by certain opinions that the law ‘providing for removal of unfaithful public officers was not designed as a pitfall into which an honest and sincere public officer might be plunged if he unintentionally erred in the discharge of his official duties . . . Wilful misconduct in office, wilful neglect of duty, are the vices for which the laws provide a summary removal. ’ ‘ The distinguishing characteristic of every official act must be genuine good faith,’ and the ‘law presumes that a public official thus conducts himself, ’ and the burden rests upon a complainant ‘to show the contrary to be true, by a preponderance of the evidence.’ ” (McQuillan, Muni. Corps. [2nd ed.], § 579.) Likewise with a trainer, the “just cause” must have some relation to his qualifications for protecting the public interest.
Applying the foregoing to the rule making the trainer an insurer against the doping of the horse, we find the rule is sufficiently broad, as stated in the opinion prepared by Mr. Justice Shenlc, to authorize the revocation or suspension of the trainer’s license for the criminal act of a third person over whom he had no control. He may have been rendered *426helpless by the third person to take any steps to prevent the doping. Although entirely faultless his license would be lost. It is difficult to understand how a trainer who is neither negligent nor intentionally a wrongdoer can be said to lack qualifications to be a trainer-—to be a danger to the public—-merely because he happened to be a trainer when a horse was doped through no fault of his or by some one over whom he had no control whatsoever. It must be admitted that the rule is a harsh one. Being such, it cannot qualify as “just cause”— the mandate laid down by the statute.
For the foregoing reasons the judgment should be affirmed.
Respondent’s petition for a rehearing was denied March 1, 1948. Carter, J., voted for a rehearing.