The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1918-05-08

and then put in a dark cell for Ia
days on bread and water.
visions of Section 1856 of the Compil
ed laws of 1913, which gives to thai
board the power "to quarantine any
domestic animal which is infected
with any such Contagious and infec-
tion) disease or which has been ex-
posed 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 1918, which
provides that, within twenty-four
hours thereafter (the notification from
the board) its owner or keeper, may
file a protest-whereupon an examin-
alton of the animal involved shall be
made by three experts, ETC."
(2.) The 5th and 14th amendments
of the Federal Constitution and their
counterparts in the Constitution OF
the several states gave no new rights
but merely guaranteed the perman-
ence of these already existing.
! (3.) What is and what is not due
process of law depends upon the cir
cumstances and the constitutional pro-
visions which provides for a prelilnin-
ary court procedure are often held
to have no application to statutes
which are passed in the exercise of
the so-called police power of the state.
a. Sometimes summary proceed
ings are necessary and the summary
abatement Of nuisances without judic-
| ial procedure was we'll known to the
common law prior to the adoption of
the State and Federal Constitutions.
o. There is no property right IN
that which is 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 particular
4 large measure of discretion is neces-
sarily vested in the legislature to de-
termine not only what the interests
Of the public require but what mea-
sures are necessary for the protection
of these interests.
(7.) The state may delegate to an
administrative board the power to adj
ont reasonable, regulations and to ad-
opt what tests it deems necessary IN
order to ascertain the existence of q
disease. This is not delegation of
legislative power. It merely relates
to a procedure in the laws execution.
(S.) The finding or adjudication of
Board of health cannot generally be
made conclusive upon the owner as to
the fact and existence of the nuisance,
,r that it comes within the terms of
the statute prohibiting it, so as to deny
the owner the right to trial by jury
and the recovery of damages, if the
property SO destroyed is not, in fact, a
nuisance, or does not, in fact, come
within the terms Of the statute. Sum-
nary proceedings, however, may be
authorized by the legislature against
the thing declared to be nuisance,
md such property may be destroyed
without ahearing before a jury pro-
yided that the right to the acton for
damages remains. Due process OF
law is not violated by such proceed
ure. ..
(9.) Where the statute provides
for the destruction of infected ami
mails in the discretion of a stock SAM
tary board, but provides that before
such destruction the owner may appeal
to a board of experts, and the owner
neglects to taken any such appeal he
cannot in an injunctional proceeding
to restrain the destruction of the
stock, question the determination OF
the board as to the fact and existence
of the disease. -
(1O.) Where a statute authorizes
public board to quarantine or kill
disease infected animals, the determ-
shall be adopted lies within the dis
nation of which of the two remedies
erection of the board and cannot in the
absence Of fraud be controlled by the
courts. In all Of such matters the on
" question in which the courts or the
iuries are concerned is the ultimate
question whether the animal was de-
ceased or not, or came within the pro-
visions of the statute. =,
s11.) The so-called complement
tixation test for the detection OF the
disease known as dourire appears to
meet with the approval Of the scient..
lists of both the United States and
Canada, and the courts will not inter-
fere With the discretion of the Live
Stock Eanitary Board in adopting the
same, and in ordering horses to be
killed. which react thereto, even
though it is chemical test merely
and the horses show no physical symp-
toms of the disease.
u2.) Section 1856 of the Compiled
Laws of 1913, leaves it to the discrc--
ton of the Live Stock Sanitary Board
whether horses which are infected
with the disease known as dourlne
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 COM