fectious 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, 5 Okl. Cr. 560, 115 Pac. 622. See, also, State v. Speyer, 67 Vt. 502, 32 Atl. 476, 29 L. R. A. 573, 48 Am. St. Rep. 832.

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 kill any animals so infected." Section 2686, C. L.

Under 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 established 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

were

to be dipped, and that such inspection
should disclose the presence of ticks
and the necessity for dipping; that
as to any quarantine of such county,
district, or area ordered, inspection or
investigation by the commission, or
those working under its direction was
a prerequisite; that plaintiff's petition
showed on its face sufficient grounds
for injunctive relief; that while
the allegations of the answer
not as definite as they might properly
be, yet they supported the judgment,
and in the absence of any special ex-
ceptions directed thereto, they would
be held to aver that the sanitary com-
mission, after an investigation and in-
spection by defendant and its other
agents, had quarantined the county
and had declared all the cattle and
premises therein to be unclean, and

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 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

been

sanitary commissioner, providing that
no cattle to be used for dairy purposes,
or pure bred or registered cattle to be
used
for breeding purposes, shall be
admitted into the state, unless accom-
panied by a certificate of satisfactory
tuberculin test showing them to be
free from tuberculosis, applied within
30 days prior to their movement, by
a veterinarian of the bureau of animal
industry, or by a veterinarian whose
competency and reliability are certi-
fied to by the authorities charged with
the control of diseases of domestic ani-
mals in the state where the cattle orig-
inated. A statute provided, among other
things, that the right of indemnity

for

animals killed by order of the live stock sanitary commissioner, pursuant to his duty to protect the health of domestic animals of the state,

18 N. C. C. A.-4

should not extend to animals brought into the state from a district of another state infected with the disease, on account of which the animals were killed, or brought into the state in disregard of any rule, regulation, or order of the live stock sanitary commissioner. It was also required that one copy of the certificate issued by the veterinarian should be given to the owner or person in charge of the stock, one sent to the live stock sanitary stock commissioner, and one to the common carrier to be attached to the waybill. The statute also provided that when cattle were ordered killed by the live stock sanitary commissioner, it should be his duty, acting in conjunction with the chairman of the board of county commissioners of the county in which the animals

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.

The 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 non

interference 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

are located, and the owner, to appraise them at their value at the time of the appraisement, and that when an animal so condemned and appraised was delivered to the live stock sanitary commissioner for slaughter, he should give to the owner an order on the board of county commissioners for an amount equal to 50 per cent of the appraised value of the animal, which the board of commissioners was required to accept and pay. The county commissioners refused to accept and pay an order for one-half the appraised value of the animals, and plaintiff applied for a writ of mandamus to compel them to do so. The court, in allowing the writ as to one of the cattle, and denying it as to the others, held that it was not sufficient that the tuberculin test

was applied by a veterinarian whose license to practice his profession was issued by the board charged with the control of diseases of domestic animals in the state where the cattle originated; that the test must be made by a veterinarian whose competency and reliability are certified to by such board, or by the veterinary inspector of the bureau of animal industry, and a copy of the certificate must be sent to the live stock sanitary commissioner of this state, before the right of indemnity attached; that plaintiff was not entitled to indemnity for cattle brought into the state in violation of rule 10; that the appraisement might be made by a deputy employed for the purpose by the live stock commissioner; that if the chairman of the board of county commissioners re

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 question of whether the mare is in fact infected with the disease of dourine.

In the foregoing per curiam denying the petition for rehearing all of 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 feel that the remittitur should be held in this court for a period of 60 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.

fused to act, the appointment might be made by the live stock sanitary commissioner, or his deputy, and the

owner;

that in making the appraise

ment, the statutory rule governs, but that it does not contemplate that a condemned animal shall necessarily be appraised at the value of the carcass, because diseased, and because it must be slaughtered at once; that the order is conclusive on the board of county commissioners, in the absence of fraud, collusion, or similar misconduct, and that in the action of mandamus to compel payment of such

an order, it is not open to the board of county commissioners to show that the animal came from an infected district of another state, or was admitted in violation of rule 10, or that the appraisement was excessive. Cory v. Graybill, 96 Kan. 20, 149 Pac. 417 (1915).

See also Lowe v. Conroy, I, C, 3, ante.

2. Injunctive relief to prevent. See Durand v. Dyson, V, C, ante. D. W. C.

MacGILL-ALLEN v. NEW YORK, NEW HAVEN & HARTFORD R. CO.

[Supreme Judicial Court of Massachusetts, January 7, 1918.]

229 Mass. 162, 118 N. E. 248.

1. Carriers of passengers-Injury to passenger preparing to alight-Defect in door jamb-Sufficiency of showing to take case to jury.

In an action by a passenger for injury to her hand by being caught in the jamb of the car door as she was going upon the platform preparatory to alight. ing, no negligence warranting submission of the case to the jury was shown