nuisances; diseased and dead animals. 351 



tends equally to diseased animals.^^° It has been held, how- 

 ever, that the action of the municipality through its officers 

 in ordering the destruction of an animal as suffering from a 

 particular disease, as a horse from glanders, is not conclusive 

 on the rights of the owner of the animal. He may introduce 

 evidence to show that the animal was not in fact so diseased 

 and that the act of the commissioners was therefore illegal.^^" 

 In a commentary on Miller v. Horton it was said : "Review- 

 ing the arguments and authorities upon both sides of this 

 question, the conclusion of the majority of the court seems 

 best warranted: first, because a construction of the statute 

 giving express or implied power to the commissioners to kill 

 healthy animals would render it unconstitutional ; second, not 

 having such power, the commissioners are liable for the re- 

 sult of their acts, which in one point of view may be said to be 

 without their statutory jurisdiction and which in any point of 

 view takes private property from the owner without due 

 process of law." ^^^ But where sound cattle have been de- 

 stroyed by order of the commission, no action lies against the 

 State for this tortious act of its officers : the remedy is against 

 them individually.^^® 



The exclusion by the sanitary commission of cattle of an- 

 other State, as affected with a contagious disease, will be pre- 

 sumed to be a proper exercise of their judgment.^^^ And an 

 order issued by a sanitary commission has been held to be a 

 sufficient prima facie justification of a sheriff's refusal to re- 



"^ Chambas v. Gilbert (Tex. Civ. App.), 42 S. W. Rep. 630. 



'"Miller v. Horton, 152 Mass. 540; Newark & S. O. H. C. R. Co. v. 

 Hunt, so N. J. L. 308; Pearson v. Zehr, supra. 



See, as to contagious and infectious diseases, Wirth v. State, 63 Wis. 

 SI, where it was held that influenza was not such a disease as would war- 

 rant a conviction. 



'" 32 Cent. L. Jour. 249 n. 



™Shipraan v. State Live-Stock Sanitary Comn. (Mich.), 73 N. W. 

 Rep. 817; Houston v. State, 98 Wis. 481. 



"" St. Louis S. W. R. Co. V. Smith (Tex. Civ. App.), 49 S. W. Rep. 627. 



