The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1918-05-15
Supreme Court
Decisions g.
From Mckenzie County.

From Mckenzie County
A. M. Neer. plaintiff and appellant,
VS.. state livestock sanitary board, de-
PENDANT and respondent.
Syllabus:
1. The court cannot snjoin the car
rying out OF an order Of the livestock
| sanitary board for the killing of a
mare under the provisions OF section
| 1855 Of the compiled laws of 1913,
ito quarantine any domestic animal
which is infected with any such (con-.
tagious and infectionl disease or
which has been exposed to infection
therefrom. and to kill any animal so
infected. where no appeal has been
| taken or review of the decision of the
board demanded under the provisions
of section 1856 of the compiled laws
OF 1913, which provides that, within
90 hours thereafter (the notification
from the board) it's owner or keeper
may file q. protest = whereupon
an examination of the animal involved
shall be made by three experts, etc"
2. The fifth and 14th amendments
of the federal constitution and their
counterparts in the constitutions of
the several states gave no new rights,
but merely guaranteed the perma-
nence Of those already existing.
8. What is and what is not due
process of law depends upon the cir
| cumstances and the constitutional
provisions which provides for pre-
held to have no application to statutes
which are passed in the exercise of
the so-called police power of the state.
4. Sometimes summary proceedings
are necessary. and the summary. abate-
ment of nuisances without judicial
procedure was we'll known to the
the state and federal constitutions.
5. There Is no property right in
that which is a nuisance and no right
of liberty in that which Is harmful to
the public veal,
6. The state may interfere with
private industry whenever the public
Welfare demands and in this parttcu-
lar large measure of discretion is
to determine not only what the inter
ests of the public require but what
measures are necessary for the pro-
lection Of these interests.
Z. The state may delegate to an ad-|
ministrative board the power to adopt
reasonable regulations and to adopt
what tests it deems necessary in order
to ascertain the existence Of a disease.
power. 1t merely relates to q proceed
ure in the laws execution.
8. The finding or adjudication Of a
board of health cannot generally. be
the fact and existence of the nuisance.
or that 1t comes within the terms of
the statute prohibiting it, SO as to
deny the owner the right TO a trial by
the property 80 destroyed is not, in
fact, a nuisance, or does not. in fact,
come within the terms Of the statute.
Summary PROCEEDINGS, however, may
against the thing declared to be,
nuisance, and such property may be
destroyed without a hearing before
jury provided that the right to the
action for damages remains. Due
process of law is not violated by SUCH
q procedure. -. .= a
the destruction Of infected animals In
board, but provides that before such
destruction the owner may appeal to
"a board of experts. and the owner
TO 5@ke any SuGh apPea
to restrain the destruction Of the
stock, question the determination OF
the board as to the fact and existence
of the disease.
10. Where a statute authorizes a.
public board to quarantine or kill dis
ease infected animals. the determine
ton Of which of the two remedies
shall be adopted lies within the dis
erection Of the board and cannot in the
absence of fraud be controlled by the
courts. In all of such matters the
only question in which the courts or
the, juries are concerned is the plti3
mate question whether the animal
was diseased or not, or came within
the provisions of the statute
II. The so-called Complementary
alton test for the detection of the
disease known as dourine appears to
meet with the approval Of the scien--
lists of both the United States and
Canada, and the courts will not inter
fere with the discretion of the live
stock sanitary board in adopting the
same, and in ordering horses to be.
killed, which react thereto. even
though 1t Is a chemical test merely
and the horses show no physical
SYMPTOMS OF the disease
laws of 1918, leaves it to the discre--
tion of the livestock sanitary board
whether horses which are infected
with the disease known as dourine
shall be killed or isolated. and the
courts will not interfere with or seek
to control such discretion.
13. The fact that the disease known
as dourine can only be communicated
| In the act of breeding and that the
| late the same and give bonds that
they shall not be bred does not pre-
vent the livestock sanitary board from
ordering their destruction.
Action to restrain the killing OF q,
diseased horse.
Appeal from the district court of
Mckenzie county; Hon. Frank Fisk
Judgment for defendant.
Plaintiff appeals.
Affirned.
Opinion of the court by Bruce, CHI
j.; Ciristianson, u, cpncurring Epe-
cially; Robinson and Grace, JJ., dis
Burdick q Converse, Willigton. att
Istorneys for appellant; William Lang
/ er, attorney general, Y! ana Edward q: