For these reasons, the literal, and as we think the true construction of § 13, seems to us the only safe one to adopt, and accordingly we are of opinion that the authority and jurisdiction of the commissioners to condemn the plaintiff's horse under § 13 was conditional upon its actually having the glanders. . . . Exceptions sustained. DEVENS, J. I am unable to concur in the opinion of the majority of the Court in the narrow and limited construction which they give to § 13 of chapter 252 of the Acts of 1887, or in the view expressed of its constitutionality if otherwise construed. . . . The constitutionality of the act must, therefore, be discussed. The distinction between the exercise of the right of eminent domain and the power to make police regulations, by virtue of which the uses of property may be limited and controlled to the pecuniary disadvantage of the owner, or even property itself destroyed, is well recognized. Where property is appropriated to the public use, provision must be made for compensation to the owner. Declaration of Rights, Article X. But laws passed in the lawful exercise of the police power are not made unconstitutional because no provision is made for compensation to the individual whose property may be affected thereby. They are passed for the protection of the community against the ravages of fire, the spreading of pestilence, and the prevention of other serious calamities; and such property is not taken for any use by the public, within the meaning of the Constitution. The regulations in regard to quarantine, health, fire, and the laws for the abatement of existing and preservation of threatened nuisances, are instances of the exercise of this power. Bancroft v. Cambridge, 126 Mass. 438, and authorities cited. Their validity rests upon the necessity of providing for the public safety, and the individual is presumed to be compensated by the benefit which such regulations confer upon the community of which he is a member, or by which his property is protected. It is for the Legislature ordinarily to determine how, when, and through whom this police power is to be exercised, and all rights of property are held subject to such reasonable control as it may deem necessary for the prevention of injury to the rights of others, or for the protection of the public health and welfare. . . It was for the Legislature to determine a particular disease to be such that the existence of the animal would be dangerous to public health; and the authorities are numerous and decisive, that for injuries to or diminution of value of property by reason of the operation of a police regulation the owner is not entitled to demand compensation. Baker v. Boston, 12 Pick. 184. Belcher v. Farrar, 8 Allen, 325. Bergin v. Hayward, 102 Mass. 414. Salem v. Eastern Railroad, 98 Mass. 431. Taunton v. Taylor, 116 Mass. 254. In regard to the plaintiff's second contention . . . as I am of opinion that the decision of the commissioners is conclusive, and can lawfully be made conclusive by the Legislature, it would be preferable to state briefly the reasons for this view. The most frequent application of the ... police power is in the abatement of nuisances by the intervention of boards of health and similar tribunals. . . . Powers to determine whether these objects should be removed or destroyed are undoubtedly very high powers, and they must of necessity be confided to boards of administration in order that the public safety may be guarded. Although of a quasi judicial nature, they must be exercised often without the delays which necessarily attend formal notices and formal trials; and where adjudications are fairly and honestly made, even if mistakes may sometimes occur, they should be held conclusive, so far as the res with which they deal is concerned. Certainly no one would voluntarily undertake the heavy responsibilities of a board of health, or, as in the case at bar, of the cattle commissioners, if they were to be made responsible in damages for errors of judgment which they might commit. "Their determination," says Mr. Justice WELLS, in speaking of the proceedings of boards of health, "of questions of discretion and judgment in the discharge of their duties is undoubtedly in the nature of a judicial decision; and, within the scope of the power conferred, and for the purposes for which the determination is required to be made, it is conclusive. It is not to be impeached or set aside for error or mistake of judgment; nor to be reviewed in the light of new or additional facts. The officer or board to whom such determination is confided, and all those employed to carry it into effect, or who may have occasion to act upon it, are protected by it, and may safely rely upon its validity for their defence. It is in this sense that such adjudications are often said to be conclusive against all the world; and they are so, so far as the res is concerned. The statute and the public exigency are sufficient to justify the omission of previous notice, hearing, and appeal." Salem v. Eastern Railroad, 98 Mass. 431, 449. . . Applying these principles to the case at bar, they are decisive. The Legislature has decided that a horse infected with glanders is so dangerous to the public health, whether of other valuable domestic animals or of man, that it should be destroyed on account of its dangerous character, and should cease to be entitled to the usual protection of property. It is not an objection to this law that it has failed to provide compensation to the owner, as the animal is itself, in its view, a nuisance of serious danger to the community. It has empowered a respectable. tribunal, with powers similar to those of a board of health, to determine whether an animal is of the class described in the statute. The exigency of the case does not permit (at least, in the opinion of the Legislature) of notice, appeal, or other mode of reviewing the decision of such a tribunal. This appears to me a lawful exercise of the police power, and the decision should be held conclusive, in order that the community may be protected, and that those entrusted with the execution of the law may safely assume the responsibilities imposed upon them. . . . I am authorized to say that Mr. Justice CHARLES ALLEN and Mr. Justice KNOWLTON concur in this opinion. ... 1132. RAYMOND v. FISH. (1883. 51 Conn. 80, 97; Action for oyster beds destroyed by order of the defendant board of health, to prevent a scarlet fever epidemic; a statute gave the board power to act, but the necessity of this specific act of destruction was disputed.) PARK, C. J. . . . It would seem to be absolutely necessary to confer upon some constituted body the power to decide the matter conclusively, and to do it summarily, in order to accomplish the object the statute has in view. We think this has been done. We think the board of health of the town of Groton had the power to decide conclusively, in the apparent necessities of the case, that the brush in Pequonock River was a nuisance, endangering the life and health of the inhabitants of the village. . .. By the common law a party has the right to defend himself from any assailant even to the taking of life when necessary, and even to the taking of life when not necessary in fact, but apparently so. If life may be protected by destroying life, when apparently necessary but not so in fact, may not life be protected by destroying property when apparently necessary, though afterwards discovered not so in fact? But it may be said that this right of self-defence comes when the assailed party seems to be driven to the last extremity: So here, the justification of the board of health in the destruction of property must come in seemingly extreme cases, where there is reasonable ground to believe that immediate action is necessary for the preservation of the life and health of the inhabitants, and where there is reasonable ground to believe the supposed nuisance to be one in fact. . . . It is expressly found in the case that the board acted in good faith throughout these transactions. . . The case coming nearest to the present one in its facts and in the principles involved, is that of City of Salem v. Eastern Railway Co., 98 Mass. 431, in which the Court remarks as follows: " . . . There are many cases in which powers of determination and action, of a quasi-judicial character, are given to officers entrusted with duties of local or municipal administration, by which not only the property but the lives of individuals may be affected, and which, from their nature, must be exercised, finally and conclusively, without a hearing, or even notice to the parties who may be affected. Of this class are the authority of fire-wardens or other officers to direct buildings to be demolished to prevent the spreading of fires; of magistrates to require aid, and to use force, armed or otherwise, to suppress tumults; of the mayor or other officers to call out the military force for the like purpose. .. We think these principles apply to the proceedings of a board of health. Their determination of questions of discretion and judgment in the discharge of their duties is undoubtedly in the nature of a judicial decision; and within the scope of the powers conferred, and for the purpose for which the determination is required to be made, it is conclusive. It is not to be impeached or set aside for errors or mistake of judgment; nor to be viewed in the light of new or additional facts. The officers or board to whom such determination is confided, and all those employed to carry it into effect, or who may have occasion to act upon it, are protected by it, and may safely rely upon its validity for their defence.” 1133. PEARSON v. ZEHR. (1891. 138 Ill. 48, 51; action against a board of live stock commissioners for destroying the plaintiff's horses as having glanders; the fact of the horses' disease was disputed.) BAKER, J. . . . It is to be borne in mind that the Act of 1885 makes no provision for compensation for animals killed by mistake, and which are not diseased with a contagious or infectious disease, or for paying the value of animals slaughtered upon an errone ous supposition that they had been exposed to such disease; and also makes no provision for a suit or proceeding wherein, after proper notice to the owner of domestic animals supposed to be stricken with a contagious or infectious malady and an opportunity afforded him to be heard and to introduce his witnesses, there can be a judicial ascertainment of the fact of the existence or non-existence of such disease or of exposure thereto; and that there is no pretence here of any such ascertainment of the fact or facts. To permit the commissioners to determine, ex parte, that some of the horses had the glanders and that the others had been exposed thereto, and to hold that determination a justification for slaughtering the horses, without imposing upon appellants the burden of establishing affirmatively the actual existence of such disease and such exposure, would not be a valid exercise of the police power of the State, but would be a palpable violation of the constitutional provision that no person shall be deprived of property without due process of law. In the late case of Miller v. Horton et al., 152 Mass. 540 [supra, No. 1131], it was held by the Supreme Judicial Court of Massachusetts that under a statute of that State providing that "in all cases of farcy or glanders, the commissioners, having condemned the animal infected therewith, shall cause such animal to be killed, without appraisement," the order of the commissioners affords no defence to an action by the owner, for compensation, against those who executed it, unless the animal killed is in fact infected with farcy or glanders. We think there was no error in sustaining the demurrer to the additional plea. 1134. VALENTINE v. ENGLEWOOD. (1908. 76 N. J. L. 509, 517.) Swayze, J. . . . The exemption of officers from liability extends only to matters in which they have jurisdiction under the statutes; and it may be said that the board of health has no jurisdiction unless a cause of disease actually exists. This view is too narrow. The principle which was adopted by this court, and vindicated in an able opinion of Chief Justice BEASLEY in Grove v. Van Duyn, 15 Vroom, 654, is applicable. It is enough if the matter is colorably, though not really, within their jurisdiction. A different view has been expressed in Massachusetts. Miller v. Horton, 152 Mass. 540 [supra, No. 1131], which was followed in Pearson v. Zehr, 138 Ill. 48 [supra, No. 1133], and in Lowe v. Conroy, 120 Wis. 151. The reasons are well stated by Mr. Justice HOLMES, but are combated with equal force by Justice DEVENS, and the case is weakened as an authority by the fact that it was decided by a bare majority of the Court. Upon principle, we cannot distinguish the case from those above cited, where administrative officers were held exempt when called upon to act judicially. If a postmaster-general, or a postmaster or a collector of a port, or an assessor of taxes, are to be immune when their error in judgment causes the loss of another's liberty or property, we think a board of health is entitled to a like immunity. A justice of the peace is immune if he acts in a matter colorably within his jurisdiction. The underlying reason is not the judicial character of the officer, but the judicial character of the act, and the public necessity that public agents, engaged in the performance of a public duty in obedience to the command of a statute, should not suffer personally for an error of judgment which the wisest and most circumspect cannot avoid. ... The case may, however, be looked at in another light. The board of health is acting for the public in the exercise of the police power of the State. For an error in the exercise of that power, no doubt the State ought to answer. Just as in an action for malicious prosecution, the principal who instigates the prosecution may be held, although the justice and the constable are immune, so in a case of an error in judgment by the board of health, it is the State which ought to answer for the default of its agent acting in obedience to its statutory command. The State does not, it is true, answer in an ordinary action at law in this or any other case, but there is the same remedy in all cases an appeal to the justice of the State. Topic 2. Military Officers 1136. WALL v. MCNAMARA NISI PRIUS. 1779 1 T. R. 537, note AN action brought by the plaintiff, as Captain in the African corps, against the defendant, as Lieutenant-Governor of Senegambia, for imprisoning him for nine months at Gambia in Africa. The defendant pleaded the general issue, intending to justify the imprisonment under the mutiny act for disobedience of orders. At the trial it appeared that the imprisonment, which at first was legal, namely, for leaving his post without leave from his superior officer, though in a bad state of health, was aggravated with many circumstances of cruelty. Lord MANSFIELD, in summing up to the jury, said, "In trying the legality of acts done by military officers in the exercise of their duty, particularly beyond the seas, where cases may occur without the possibility of application for proper advice, great latitude ought to be allowed, and they ought not to suffer for a slip of form, if their intention appears by the evidence to have been upright. It is the same as when complaints are brought against inferior civil magistrates, such as justices of the peace, for acts done by them in the exercise of their civil duty. There the principal inquiry to be made, by a court of justice, is, how the heart stood? And if there appears to be nothing wrong there, great latitude will be allowed for misapprehension or mistake. But on the other hand, if the heart is wrong, if cruelty, malice, and oppression, appear to have occasioned or aggravated the imprisonment or other injury complained of, they shall not cover themselves with the thin veil of legal forms, nor escape, under the cover of a justification the most technically regular, from that punishment which it is your province and your duty to inflict on so scandalous an abuse of public trust. "It is admitted that the plaintiff was to blame in leaving his post. But there was no enemy no mutiny no danger - His health was declining, and he trusted to the benevolence of the defendant to consider the circumstances under which he acted. But supposing it to have been the defendant's duty to call him to a military account for his misconduct, what apology is there for denying him the use of the common air in a sultry climate, and shutting him up in a gloomy prison, where there was no possibility of bringing him to a trial for several |