Orlando Bacon v. Paul Walker

Decision Date04 February 1907
Docket NumberNo. 147,147
Citation51 L.Ed. 499,27 S.Ct. 289,204 U.S. 311
PartiesORLANDO F. BACON, Plff. in Err., v. PAUL H. WALKER et al
CourtU.S. Supreme Court

Messrs. S. M. Stockslager, W. E. Borah, Frank T. Wyman, and John C. Rice for plaintiff in error.

[Argument of Counsel from page 312 intentionally omitted] No counsel for defendants in error.

Mr. Justice McKenna delivered the opinion of the court:

This action involves the validity, under the Constitution of the United States, of the following sections of the Revised Statutes of the state of Idaho:

'Sec. 1210. It is not lawful for any person owning or having charge of sheep to herd the same, or permit them to be herded, on the land or possessory claims of other persons, or to herd the same or permit them to graze within 2 miles of the dwelling house of the owner or owners of said possessory claim.

'Sec. 1211. The owner or the agents of such owner of sheep violating the provisions of the last section, on complaint of the party or parties injured, before any justice of the peace for the precinct where either of the interested parties may reside, is liable to the party injured for all damages sustained; and, if the trespass be repeated, is liable to the party injured for the second and every subsequent offense in double the amount of damages sustained.'

Defendants in error, under the provisions of those sections, brought this action in the justice's court of Little Camas precinct, Elmore county, state of Idaho, for the recovery of $100 damages, alleged to have accrued to them by the violation by plaintiff in error of the statutes, and obtained judgment for that sum. The judgment was successively affirmed by the district court for the county of Elmore, and the supreme court of the state. 81 Pac. 155. The case was then brought here.

It was alleged in the complaint of defendants in error, who were plaintiffs in the trial court, that plaintiff in error caused his sheep, about three thousand in number, to be herded upon the public lands within 2 miles of the dwelling house of defendants in error. The answer set up that the complaint did 'not state a cause of action other than the violation of §§ 1210 and 1211 of the Revised Statutes of the state of Idaho,' and that said sections were in violation of the 14th Amendment of the Constitution of the United States. The specifications of the grounds of the unconstitutionality of those sections were, in the courts below, and are in this court, (1) that plaintiff in error has an equal right to pasture with other citizens upon the public domain, and that, by imposing damages on him for exercising that right, he is deprived of his property without due process of law; (2) that a discrimination is arbitrarily and unlawfully made by the statutes between citizens engaged in sheep grazing on the public domain and citizens engaged in grazing other classes of stock.

These grounds do not entirely depend upon the same considerations. The first denies to the state any power to limit or regulate the right of pasture asserted to exist; the other concedes such power, and attacks it only as it discriminates against the grazers of sheep. We speak only of the right to pasture, because plaintiff in error does not show that he is the owner of the land upon which his sheep grazed, and what rights owners of land may have to attack the statute we put out of consideration. New York ex rel. Hatch v. Reardon, 204 U. S. 152, 51 L. ed. 415, 27 Sup. Ct. Rep. 188. But we may remark that the supreme court of Idaho said in Sweet v. Ballentyne, 8 Idaho, 431, 440, 69 Pac. 995: 'These statutes [§§ 1210, 1211, quoted above] were not intended to prevent owners from grazing sheep upon their own lands, although situated within 2 miles of the dwelling of another.' Is it true, therefore, even if it be conceded that there is right or license to pasture upon the public domain, that the state may not limit or regulate the right or license? Defendants in error have an equal right with plaintiff in error, and the state has an interest in the accommodation of those rights. It may even have an interest above such accommodation. The laws and policy of a state may be framed and shaped to suit its conditions of climate and soil. Illustrations of this power are afforded by recent decisions of this court. In Clark v. Nash, 198 U. S. 361, 49 L. ed. 1085, 25 Sup. Ct. Rep. 676, a use of property was declared to be public which, independent of the conditions existing in the state, might otherwise have been considered as private. So also in Strickley v. Highland Boy Gold Min. Co. 200 U. S. 527, 50 L. ed. 581, 26 Sup. Ct. Rep. 301. In the first case there was a recognition of the power of the state to deal with and accommodate its laws to the conditions of an arid country and the necessity of irrigation to its development. The second was the recognition of the power of the state to work out from the conditions existing in a mining region the largest welfare of its inhabitants. And again, in Offield v. New York, N. H. & H. R. CO. 203 U. S. 372, 51 L. ed. 231, 27 Sup. Ct. Rep. 72, the principle of those cases was affirmed and applied to conditions entirely dissimilar, and it was declared that it was competent for a state to provide for the compulsory transfer of shares of stock in a corporation, the ownership of which stood in the way of the increase of means of transportation, and the public benefit which would result from that. Of pertinent significance is the case of Ohio Oil Co. v. Indiana, 177 U. S. 190, 44 L. ed. 729, 20 Sup. Ct. Rep. 576. There a statute of the state of Indiana was attacked, which regulated the sinking, maintenance, use, and operation of natural gas and oil wells. The object of the statute was to prevent the waste of gas. The defendants in the action asserted against the statute the ownership of the soil and the familiar principle that such ownership carried with it the right to the minerals beneath and the consequent privilege of mining to extract them. The principle was conceded, but it was declared inapplicable, as ignoring the peculiar character of the substances—oil and gas—with which the statute was concerned. It was pointed out that those substances, though situated beneath the surface, had no fixed situs, but had the power of self-transmission. No one owner, it was therefore said, could exercise his right to extract from the common reservoir, in which the supply was held without, to an extent, diminishing the source of supply to which all the other owners of the surface had to exercise their rights. The waste of one owner, it was further said, caused by a reckless enjoyment of his right, operated upon the other surface owners. The statute was sustained as a constitutional exercise of the power of the state, on account of the peculiar nature of the right and the...

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