State v. Horn

• Decision Date: 05 October 1915
• Citation: 27 Idaho 782,152 P. 275
• Parties: STATE, Appellant, v. S. F. HORN, JOHN EILER and JOHN CALVIN, Respondents
• Court: Idaho Supreme Court

152 P. 275

27 Idaho 782

STATE, Appellant, v. S. F. HORN, JOHN EILER and JOHN CALVIN, Respondents

Supreme Court of Idaho

October 5, 1915

CONSTITUTIONALITY OF SEC. 6872, REV. CODES, AFFIRMED-EXERCISE OF POLICE POWER OF STATE ON PUBLIC DOMAIN WITHIN STATE-REGULATION OF SHEEP AND CATTLE INDUSTRIES-LEGISLATIVE PREROGATIVE TO EXERCISE POLICE POWER OF STATE.

1. The owners of sheep, equally with all other citizens of the state, are entitled to the use of the public domain within the jurisdiction of the state, subject to the right of the state in the exercise of its police power to control and regulate such use.

2. The control and regulation of the various industries of the state under a proper exercise of the police power rests with the legislative department of the state government, and it is only against a palpable abuse of the power that the courts may interpose. If, in the judgment of the legislature, and in order to protect the public health, public morals or public safety, or to enhance the general prosperity of the citizens any particular industry requires protection or regulation upon the public domain within the state, such protection or regulation may be afforded by a proper legislative enactment.

3. It is within the constitutional prerogative of the legislature in the exercise of the police power of the state, to minimize the opportunities for conflict between the sheep and cattle industries, to the extent of prohibiting sheep from running "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," as provided in sec. 6872, Rev. Codes.

4. The lands constituting the public domain of the United States within the jurisdiction of this state are subject to the police regulations of the state, as expressed in legislative enactments, the same as the lands of any citizen of the state, so far as such laws and regulations are not in conflict with the federal constitution or statutes and until Congress provides by law that sheep shall not be restricted by state laws from grazing anywhere upon the public domain, the state, by proper legislation, may regulate and control that matter.

5. Individuals engaged in the sheep industry are not entitled to claim that the same legislative restrictions and privileges be applied to that industry as to rival industries, such as the horse or cattle industry. The habits and nature of these animals being different, as well as the results which follow from their use of land for grazing purposes, it is competent for the legislature to take these differences into consideration and to provide for them by regulations designed to meet existing conditions in each particular industry. When the law under consideration treats all individuals of the class of sheep-men alike under similar circumstances and conditions, both as regards the privileges conferred and the liabilities imposed, it is not class or special legislation and is not obnoxious to the provisions of sec. 1, art. 1 of the state constitution which enumerates, among the inalienable rights of the citizen, the "acquiring, possession and protecting property."

6. The equality clause of the federal constitution, as embodied in the 14th amendment, is not necessarily infringed by legislative classification of persons or things. This clause only requires that the same means and methods be applied impartially to all the constituents of a class, so that the law may operate equally and uniformly upon all persons in similar circumstances.

APPEAL from the District Court of the Sixth Judicial District for Custer County. Honorable J. M. Stevens, Judge.

Criminal prosecution for herding and grazing sheep on cattle range in violation of sec. 6872, Rev. Codes. Judgment for defendant. Reversed.

Reversed.

J. H. Peterson, Atty. Genl., T. C. Coffin, J. J. Guheen and E. G. Davis, Assts., A. J. Higgins and W. W. Adamson, for Appellant.

"It is a part of the public history of this state that the industry of raising cattle has been largely destroyed by the encroachments of innumerable bands of sheep. Cattle will not graze, and will not thrive, upon lands where sheep are grazed to any great extent." (Sweet v. Ballentyne, 8 Idaho 431, 437, 69 P. 995.)

In the exercise of its police power a state may absolutely or unconditionally restrain any and all livestock from running at large, and this without any reasons or grounds other than that of expediency, as determined by the legislative will. (Kimmish v. Ball, 129 U.S. 217, 9 S.Ct. 277, 32 L.Ed. 695; 1 Tiedeman on State and Federal Control of Persons and Property, p. 838.)

The keeping of livestock is under the police regulations of the state, and such police regulations extend over the public lands of the United States within the state. (Spencer v. Morgan, 10 Idaho 542, 79 P. 459; Swanson v. Groat, 12 Idaho 148, 85 P. 384; Risse v. Collins, 12 Idaho 689, 87 P. 1006.)

As to sec. 6872 being class or special legislation, if all persons subject to it are treated alike under similar circumstances and conditions in respect to both privileges conferred and liabilities imposed, it is not special. (Missouri P. R. Co. v. Mackey, 127 U.S. 205, 8 S.Ct. 1161, 32 L.Ed. 107.)

J. M. Stevens and C. R. Clute, for Respondents.

The common law of England that every man must restrain his own stock is not applicable to the sparsely settled portions of the west. (Buford v. Houtz, 133 U.S. 320, 10 S.Ct. 305, 33 L.Ed. 618.)

"If a statute purporting to have been enacted to protect the public health, public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution." (Ex parte Whitwell, 98 Cal. 73, 35 Am. St. 152, 32 P. 870, 19 L. R. A. 727; Smiley v. McDonald, 42 Neb. 5, 47 Am. St. 684, 60 N.W. 355, 27 L. R. A. 540; In re Hong Wa, 82 F. 623; Frorer v. People, 141 Ill. 171, 31 N.E. 395, 16 L. R. A. 492; Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 33 L. R. A. 589; State v. Walsh, 136 Mo. 400, 37 S.W. 1112, 35 L. R. A. 231; State v. Speyer, 67 Vt. 502, 48 Am. St. 832, 32 A. 476, 29 L. R. A. 573; New Orleans Gaslight Co. v. Louisiana Light etc. Mfg. Co., 115 U.S. 650, 6 S.Ct. 252, 29 L.Ed. 516; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385.)

The mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the fourteenth amendment, and in all cases it must appear, not only that the classification has been made, but also that it is one based upon some reasonable ground, some difference which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection. (Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct. 431, 46 L.Ed. 679; Cooley on Const. Lim., pp. 556-575; Wagner v. Milwaukee County, 112 Wis. 601, 88 N.W. 577; Nichols v. Walter, 37 Minn. 264, 33 N.W. 800; Murray v. Board of Commrs., 81 Minn. 359, 83 Am. St. 379, 84 N.W. 103, 51 L. R. A. 828; People v. Gillson, 109 N.Y. 389, 4 Am St. 465, 17 N.E. 343; Gulf C. & S. F. Ry. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666.)

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

The defendants in this case were informed against in the justice court of Challis precinct, Custer county, and charged with herding and grazing about 2,000 sheep on a cattle range previously occupied as a spring and fall range belonging to divers persons; such persons, by the usual and customary use of such range as a cattle range, having possessory right thereto as against sheep.

This action was prosecuted under sec. 6872, Rev. Codes, which provides that "Any person owning or having charge of sheep, 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 possessory right between cattle and sheep owners to any range, is determined by the priority in the usual and customary use of such range, either as a cattle or sheep range."

The defendants were tried before a jury in the justice court and found guilty, and sentenced to pay a fine. From such conviction and judgment they appealed to the district court of the sixth judicial district. In due time said cause came on regularly for trial before the court and jury.

At the conclusion of the evidence offered on behalf of the state, the following motion was interposed by the attorneys for the defendants:

"We move that a peremptory instruction be given to the jury to discharge the defendants or to return a verdict of not guilty and that the defendants be discharged, for the reasons given in our first objection to any testimony being given in this case whatever, namely:

"That the complaint does not state facts sufficient to constitute a criminal offense against the laws of the state of Idaho.

"That the section of the statute upon which this prosecution is attempted is unconstitutional as an improper attempt by the legislature to control or give preference rights in and to portions of the public domain of the United States within the jurisdiction of this state.

"That it is class legislation and that the legislature has no power or control over the public domain, as the jurisdiction and control of the same rests entirely within the Congress of the United States, and this action is not prosecuted under any law of the United States."

The trial court granted said motion, and dismissed...