Hazas v. State
| Decision Date | 15 October 1923 |
| Docket Number | Criminal 556 |
| Parties | GREGARIO HAZAS, Appellant, v. STATE, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Yavapai. John J. Sweeney, Judge. Affirmed.
Mr. F W. Perkins and Messrs. Morrison & Morrison, for Appellant.
Mr John W. Murphy, Attorney General, Mr. Robert McMurchie County Attorney, and Mr. A. H. Favour, of Counsel, for the State.
The defendant appeals from a conviction of violating the statute against herding sheep on a cattle range. The statute is section 641 of the Penal Code of 1913, chapter 39, Session Laws of 1921, and reads as follows:
"Any person owning or having charge of sheep or goats who herds, grazes or pastures the same or permits or suffers the same to be herded, grazed or pastured on any cattle range previously occupied by cattle or upon any range usually occupied by any cattle grower either as a spring, summer or winter range for his cattle, is guilty of a misdemeanor; but the priority of right between cattle and sheep owners to any range is determined by priority in the usual and customary use of such range either as a cattle or sheep range."
The defendant was prosecuted by information, and his first complaint is that the information did not state a public offense. It is practically in the language of the statute, and since the offense is purely a creature of the statute, we take it that if the legislature had the power to declare the commission of the acts alleged to constitute a crime, the information is sufficient. From the slight attention paid by counsel for defendant in their briefs and arguments to this feature of the case, we conclude their chief dependence for reversal is not that the facts set forth as constituting the offense are not well pleaded, but rather that in no view of them do they or could they by legislative act be made constitutionally to constitute a public offense.
The defense may be said to be twofold: (1) The unconstitutionality of the statute, and (2) on the merits of the case the evidence was insufficient to convict, it appearing therefrom that the range in question had been jointly used by cattle and sheep men so long a time as to constitute a mixed range and not an exclusive cattle range.
The constitutional provisions the statute is alleged to offend are that part of section 1, article 14, of the amendments of the federal Constitution reading as follows:
" . . . Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Sections 4 and 13 of article 2 of the state Constitution, reading as follows:
And that part of section 19, part 2, article 4, reading as follows:
Section 641, as amended, is the same as the Idaho statute, except the change caused by the added words (in first line) "or goats" and the omitted word "possessory." So far as the question we are considering is concerned, the changes are wholly immaterial. The Idaho courts, as well as the federal Supreme Court, have had presented to them, and have passed on, all the pertinent questions that defendant has asked us to pass upon, and adversely to defendant's contention. State v. Horn, 27 Idaho 782, 152 P. 275; State v. Omaechevviaria, 27 Idaho 797, 152 P. 280, affirmed Omaechevarria v. State of Idaho, 246 U.S. 343, 62 L.Ed. 763, 38 S.Ct. 323. The federal Supreme Court held (quoting from the syllabus):
In the Horn case the court sets forth the contention of the defendant as follows:
"Counsel for respondent insist that this section is unconstitutional for the following reasons: First, that it is in direct contravention of section 1, article 1, of the Constitution of Idaho; second, that it is an encroachment upon the powers of the general government in that it attempts to give the state control over the public domain and the natural products thereof; third, it is not a proper police regulation, in that it has no real or substantial relation to the public health, public morals or public safety, arbitrarily interferes with a private business, and imposes unusual and unnecessary restrictions upon a lawful business; fourth, it is in direct violation of the fourteenth amendment of the Constitution of the United States, in that it is class legislation of the most vicious character, denying to the respondent equality of rights."
In the opinion following, the court resolved all of the above propositions against the defendant, stating:
"We have therefore reached the conclusion that section 6872, Revised Codes, is not in contravention of section 1, article 1, of the Constitution of this state; that it is not an encroachment upon the powers of the general government; that it is a proper police regulation enacted by the legislature for the express purpose of protecting the public peace, public safety and promoting the general welfare of the citizens, and does not arbitrarily interfere with a private business or impose upon such business unusual and unnecessary restrictions; and that it is not in direct violation of the Fourteenth Amendment to the Constitution of the United States."
We will content ourselves by merely giving the conclusions of the above courts on the questions decided and leave it to those who desire the reasons for such conclusions to go to such courts' opinions.
But it is contended by the learned counsel for defendant that neither of the above cases involved the question of the statute being violate of a constitutional provision like our subdivision 13 of section 19, part 2, article 4, of the Constitution, quoted above. We do not think this provision of the Constitution has anything to do with the question involved. It is not in conflict with the statute in question. The law is general in its terms and application, conferring the same rights and privileges upon all persons in the state engaged in the same business and dependent upon the public ranges for grazing for their herds, and it acts restrictively upon all such in the same manner. Laws operating uniformly upon all of a class, when the classification has a basis founded in reason, are not obnoxious to any constitutional provision with which we are familiar. Legislation of the kind is common and often necessary. The legislative judgment in all such matters, unless palpably arbitrary, is controlling upon the courts. Coggins v. Ely, 23 Ariz. 155, 202 P. 391; International Harvester Co. v. Missouri, 234 U.S. 199, 52 L.R.A. (N.S.) 525, 58 L.Ed. 1276, 34 S.Ct. 859.
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