Board of Com'rs of Kiowa County v. Dunn

• Decision Date: 06 May 1895
• Citation: 21 Colo. 185,40 P. 357
• Parties: BOARD OF COM'RS OF KIOWA COUNTY v. DUNN et al.
• Court: Colorado Supreme Court

40 P. 357

21 Colo. 185

BOARD OF COM'RS OF KIOWA COUNTY v. DUNN et al.

Supreme Court of Colorado

May 6, 1895

Appeal from district court, Kiowa county.

Action by the board of county commissioners of Kiowa county against Dewey Dunn and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

The board of county commissioners of Kiowa county, on the 26th day of September, 1891, filed their complaint in the district court of Kiowa county against the defendants in error wherein they in substance allege that the defendants in error (defendants below) are nonresidents of the state of Colorado that they are the owners of 1,904 head of cattle; that about the month of July they brought said cattle into Kiowa county Colo., and have since said time kept and herded the same in said county for grazing purposes; that, by virtue of the provisions of an act entitled 'An act to protect the grazing lands of Colorado from the stock of nonresidents,' they were required to pay to the county treasurer of said county the sum of 50 cents per head, and to make, acknowledge, and file with the county clerk of said county a certificate showing the number of animals so grazed and the brands of same, before bringing said animals into said county and state; that defendants neglected and refused to pay said 50 cents per head, and failed to cause said certificate to be executed and filed; that as provided in said act, by reason of such neglect and refusal to pay as above set forth, they were required to pay for each head so herded and grazed the sum of $2; prays judgment for the amount of $3,808, for costs, etc. To this complaint defendants demurred, because said complaint does not state facts sufficient to constitute a cause of action, because the law under which plaintiff claims its cause of action arises is unconstitutional and void. The court below sustained the demurrer, and dismissed the case, at plaintiffs' costs. To reverse this judgment, this writ of error is prosecuted.

Slade & Torbit, for appellants.

GODDARD J. (after stating the facts).

The only question presented upon this record is the constitutionality of the act approved February 1, 1879, entitled 'An act to protect the grazing lands of Colorado from the stock of non-residents.' So much of the act as is necessary to be considered in determining this question reads as follows:

'Section 1. Any person or persons being non-residents of this state may keep and herd, for grazing purposes, cattle, horses, mares, geldings, mules, asses, or sheep in any county in this state, for the period of one year thereafter, by first paying to the treasurer of the county wherein the said stock may be kept and herded, the sum of fifty cents for each and every animal so kept and herded in said

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