State v. Butterfield

• Court: United States State Supreme Court of Idaho
• Writing for the Court: MCCARTHY, District Judge.
• Citation: 30 Idaho 415,165 P. 218
• Parties: STATE, Respondent, v. A. G. BUTTERFIELD, Appellant
• Decision Date: 05 May 1917

165 P. 218

30 Idaho 415

STATE, Respondent,
v.
A. G. BUTTERFIELD, Appellant

Supreme Court of Idaho

May 5, 1917

PUBLIC RANGE-CATTLE-SHEEP-CUSTOM AND USAGE.

1. Under sec. 6872, Rev. Codes, if the usual and customary use of a range has been for cattle, it is a cattle range.

2. If the usual and customary use of a range has been for both cattle and sheep, it is not a cattle range under said section, but a cattle and sheep range.

3. The exclusive right of cattlemen as against sheepmen to the use of certain range which has first been occupied by the cattlemen [30 Idaho 416] may be abandoned by their act in entirely ceasing to use said range, or by permitting the customary use of it for sheep in common with cattle, without protest, or asserting an exclusive right.

4. If cattlemen and sheepmen jointly use the range in the usual and customary manner of using it for a period of time long enough to create a custom, if the cattlemen know of such joint use and do not protest against it nor claim a prior and exclusive right to the same, then the herding or grazing of sheep upon such range is not unlawful, even though it be a fact that before such customary joint use for both sheep and cattle, the land was used exclusively for cattle.

5. The evidence in this case held insufficient to justify a verdict of guilty of grazing sheep upon a cattle range.

6. Proof of customary use of a range for both cattle and sheep in common is proper evidence to consider in determining whether such range has been abandoned as a cattle range, and an instruction to this effect, requested by defendant, should have been given by the trial court.

7. Held, that said sec. 6872, Rev. Codes, is not unconstitutional and void. State v. Horn, 27 Idaho 782, 152 P. 275, and State v. Omaechevviaria, 27 Idaho 797, 152 P. 280, approved and upheld.

[As to implied contract to pay rent for use of another's land for grazing cattle, see note in Ann.Cas. 1912C, 1147]

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.

Defendant was convicted of having violated sec. 6872, Rev. Codes, by herding, grazing and pasturing sheep upon a cattle range. Reversed.

Reversed and remanded, with direction.

Alfred A. Fraser and E. R. Coulter, for Appellant.

The statute is so ambiguous and uncertain as to render it void. ( Louisville & N. R. Co. v. Railroad Commission, 19 F. 679; Jannin v. State, 42 Tex. Cr. 631, 96 Am. St. 821, 51 S.W. 1126, 62 S.W. 419, 53 L. R. A. 349; Louisville & Nashville R. R. Co. v. Commonwealth, 99 Ky. 132, 59 Am. St. 457, 35 S.W. 129, 33 L. R. A. 209; Chicago & N.W. Ry. v. Dey, 35 F. 866, 1 L. R. A. 744; Ex parte Jackson, 45 Ark. 158.)

The police power of the state has its limitations, and in order to be valid, the law must be founded upon some reason recognized as coming within the police power. (Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385.)

Again, this statute is void for uncertainty, in that it fails to define a cattle range or fix the boundaries thereof. ( Holcomb v. Keliher, 5 S.D. 438, 59 N.W. 227.)

If the court should attempt to give a definition upon this question, and therefore aid out this indefinite statute, it would be judicial legislation, and the crime would then be defined by the court and not by the statute. (Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.)

Sec. 6872, Rev. Codes of Idaho, is in direct conflict with the act of Congress of Feb. 25, 1885, and therefore null and void. ( McGinnis v. Friedman, 2 Idaho 393, 17 P. 635; United States v. Douglas-Willan Sartoris Co., 3 Wyo. 287, 22 P. 92.)

T. A. Walters, Atty. Gen., and Lot L. Feltham, for Respondent.

The statute has been held constitutional, and has been enforced. (State v. Horn, 27 Idaho 782, 152 P. 275; State v. Omaechevviaria, 27 Idaho 797, 152 P. 280.)

MCCARTHY, District Judge. Morgan and Rice, JJ., concur.

OPINION

[30 Idaho 417] MCCARTHY, District Judge.

This case was commenced in the probate court of Washington county, upon a complaint charging the defendant with a violation of the provisions of sec. 6872, Rev. Codes. Upon the trial in said court the defendant was found guilty as charged in the complaint and an appeal was taken from the judgment to the district court for Washington county. Upon the trial in the district court the defendant was again found guilty and the court sentenced him to pay a fine of $ 25 and the costs of the action. The appeal herein is from said judgment of the district court.

The principal assignments of error relied upon by appellant, are:

First, that the court erred in refusing to give certain instructions which were requested by him;

Second, that the evidence is insufficient to justify the verdict; and,

[30 Idaho 418] Third, that the statute upon which the prosecution is based is unconstitutional and void.

The complaint alleges that the defendant herded, grazed and pastured, and permitted and suffered a band of sheep to be herded, grazed and pastured on the range in question, said range being then and...