Benewah County Cattlemen's Ass'n, Inc. v. Board of County Com'rs of Benewah County

• Decision Date: 26 May 1983
• Docket Number: No. 13516,13516
• Citation: 668 P.2d 85,105 Idaho 209
• Parties: BENEWAH COUNTY CATTLEMEN'S ASSOCIATION, INC., an Idaho corporation, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF BENEWAH COUNTY, Jack A. Buell, County Commissioner; Norman L. "Bud" McCall, County Commissioner; George Mills, Jr., County Commissioner; Robert M. Baltz, Sheriff of Benewah County, and Peter J. Hutchinson, Prosecutor for Benewah County, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 85

668 P.2d 85

105 Idaho 209

BENEWAH COUNTY CATTLEMEN'S ASSOCIATION, INC., an Idaho corporation, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF BENEWAH COUNTY, Jack A. Buell, County Commissioner; Norman L. "Bud" McCall, County Commissioner; George Mills, Jr., County Commissioner; Robert M. Baltz, Sheriff of Benewah County, and Peter J. Hutchinson, Prosecutor for Benewah County, Defendants-Respondents.

No. 13516.

Supreme Court of Idaho.

May 26, 1983.

Rehearing Denied Sept. 8, 1983.

Jerrold E. Park, St. Maries, William H. O'Riordan, Boise, for plaintiff-appellant.

Thomas C. Morris, St. Maries, for defendants-respondents.

SHEPARD, Justice.

This is an appeal from a judgment in an action brought in the nature of a declaratory judgment seeking to have declared invalid a county ordinance which prohibited livestock from running at large, from grazing on property other than that of the owner, and requiring the erection and maintenance of fences by owners of livestock. The magistrate court found the ordinance to be valid, which holding was affirmed on appeal to the district court. Likewise, we affirm.

The facts of this action are largely agreed upon and the only issues presented are questions of law. For at least 60 years, cattle and other livestock have freely roamed and grazed on unenclosed lands within Benewah County. At the initiation of this action there were some 57 cattle ranchers in Benewah County; many never fenced their lands and have allowed their cattle and livestock to freely graze and roam, although some ranchers have fenced their lands and allowed their livestock to graze only within their own fenced lands. Apparently, prior to the enactment of the ordinance in question, no ordinance prohibited livestock from running at large.

In 1976 and 1977, drought conditions and a large addition to the number of cattle within Benewah County combined to aggravate already existing problems of stock running at large. The lower court found:

"that livestock running at large in Benewah County create serious and persistent problems to the county and its inhabitants, including: (1) pollution of water sources, (2) damage or destruction of crops, hay, fences and gardens, (3) injury to persons and vehicles on roads and highways, (4) damage to cut banks, earthfills on timber harvest roads which have been closed and seeded to reduce soil erosion and damage, (5) damage to cleared planting lines where tree seed has been planted ...."

In August 1977, the Board of County Commissioners of Benewah County enacted the ordinance in question here (No. 13) entitled "Benewah County Livestock Control Ordinance," which applies throughout Benewah County. The ordinance essentially prohibits the running at large of livestock, requires fencing around property upon which livestock is grazed, and provides criminal sanctions for violations. The ordinance expressly leaves unaffected civil liability arising from trespassing livestock. On this appeal, no question is raised as to the procedural validity of the adoption of the ordinance.

Plaintiff-appellant Benewah County Cattlemen's Association instituted the action, seeking a declaratory judgment that the ordinance was invalid and seeking an injunction against its enforcement. The cause was assigned to Magistrate Richard McFadden; in a well-reasoned opinion he upheld the validity of the ordinance and entered judgment accordingly. That judgment was affirmed on appeal to the district court.

On appeal to this Court, appellant cattlemen assert that the county has no authority to prohibit "open range grazing" throughout the county, except and unless herd districts are created pursuant to I.C. §§ 25-2401 through 25-2409; that the area of control of free roaming livestock has been preempted by legislative enactments, hence the ordinance conflicts with the general law of the state in violation of Idaho Constitution, art. 12, § 2; that the ordinance is invalid as purporting to extend its effect beyond the geographic limits of the county, and finally, that the ordinance is unfair, arbitrary and unreasonable in its application to the cattlemen.

The Idaho Constitution, art. 12, § 2 provides, in pertinent part: "Any county ... may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws." The legislature in I.C. § 31-714 has elaborated on the constitutional grant of police power to counties, stating:

"[t]he board of county commissioners may pass all ordinances ... not repugnant to law ... such as are necessary or proper to provide for the safety, promote the health and prosperity, improve the morals, peace and good order, comfort and convenience of the county and the inhabitants thereof, and for the protection of property therein, and may enforce obedience to such ordinances with such fines or penalties as the board may deem proper ...."

This Court, in interpreting the broad statutory and constitutional powers granted to county commissioners to enact ordinances in furtherance of police powers, stated in State v. Clark, 88 Idaho 365, 399 P.2d 955 (1965), that:

"there are three general restrictions which apply to legislation under the authority conferred by [ID. CONST. art. XII, § 2]: (1) the ordinance or regulation must be confined to the limits of the governmental body enacting the same, (2) it must not be in conflict with other general laws of the state, and (3) it must not be an unreasonable or arbitrary enactment."

As noted above, appellant cattlemen argue that the ordinance in question is invalid under the language of State v. Clark, id., in that it purports to extend application of the ordinance beyond the geographical limits of the county. We disagree. The ordinance does not purport to, nor can it affect or regulate matters occurring outside Benewah County. Should livestock from outside the county wander into lands within the county, they would then come under the jurisdiction of Benewah County and be subject to its valid ordinances. The fact that their owners may reside outside the county will not alter the result. ¹ Although the appellant cattlemen argue that a county must comply with herd district statute I.C. § 25-2402 by enclosing itself with fences before enacting an ordinance such as the one at issue here, we disagree for the reasons stated below in our discussion relating to the non-application of the herd district statutes.

Appellant cattlemen argue that since the ordinance does not expressly exempt the areas of incorporated cities within the boundaries of the county and does mention city police officers as officials charged with the enforcement of the ordinance, it constitutes an attempt by the county to exercise authority over lands located within incorporated cities and is thus void. We agree with appellants to the extent that the ordinance is without force and effect within the limits of the incorporated municipalities located in Benewah County. However, as noted in this Court's recent decision in Hobbs v. Abrams, 104 Idaho 205, 657 P.2d 1073 (1983), such does not invalidate the ordinance nor make it ineffective in the balance of the county. See also Clyde Hess Distributing Co. v. Bonneville County, 69 Idaho 505, 210 P.2d 798 (1949). We turn now to appellant's assertion that the ordinance is invalid in that it conflicts with the general laws of the state. The principal argument is that the legislature, by the enactment of herd district statutes, I.C. §§ 25-2401 through 25-2409, has preempted the field of control of free roaming livestock. Hence the county is prohibited from attempting to legislate on the same subject matter. At bottom appellant's position is that since livestock have for many years freely ranged and roamed within Benewah County regardless of the ownership or nature of the lands, the county may not protect its citizens and their lands and property against such livestock through the exercise of the police power. We emphatically disagree. We hold first that the legislature has not preempted the field of livestock control as asserted by the appellants; secondly, even assuming some legislative exercise of livestock control, we hold that extension or amplification of that control by county ordinance is not prohibited in the absence of constitutional or statutory provisions clearly evidencing intent on a statewide basis to permit livestock to freely roam and graze regardless of the ownership or the character of lands. We are cited to and find no such specific constitutional or legislative intent. We refrain from speculating upon the constitutional problems which might arise from the enactment of such legislation and a claim that it unconstitutionally deprived an owner of his property in violation of the due process clause.

Appellants' contention that the ordinance conflicts with the general laws of the state, particularly the herd district statutes, I.C. §§ 25-2401 through 25-2409, is largely answered by the recent opinion of this Court in Maguire v. Yanke, 99 Idaho 829, 590 P.2d 85 (1978). In Yanke, this Court exhaustively examined the law relating to herd districts and held that since 1963 the herd district statutes have not applied to "open range," i.e., "all uninclosed lands outside cities and villages upon which by custom, license or otherwise, livestock, excepting swine, are grazed or permitted to roam." I.C. § 25-2402. The Court in Yanke stated:

"Prior to 1963, I.C. § 25-2402 contained no definition of 'open range.' Herd districts were allowed to be created in any part of this state .... In 1963, as was previously discussed, the legislature inserted a definition of 'open range' in I.C. § 25-2402 and stated that herd districts could not be created in such area .... It is clear the amendment of I.C. § 25-2402 by the inserting of a definition of 'open range' was designed to protect the rights of livestock owners by prohibiting herd districts in...