State v. Omaechevviaria

• Decision Date: 05 October 1915
• Citation: 152 P. 280,27 Idaho 797
• Parties: STATE, Respondent, v. SECUNDINO OMAECHEVVIARIA, Appellant
• Court: Idaho Supreme Court

152 P. 280

27 Idaho 797

STATE, Respondent, v. SECUNDINO OMAECHEVVIARIA, Appellant

Supreme Court of Idaho

October 5, 1915

PENAL STATUTES-DEFINITENESS OF TERMS-LANGUAGE OF SEC. 6872, REV CODES, SUFFICIENTLY DEFINITE AND CERTAIN.

1. This is a companion case to that of State v. Horn et al., ante, p 782, and the conclusions reached by this court in that case are decisive of all but one of the questions raised in the case at bar, viz., the uncertainty of sec. 6872, Rev. Codes and consequently its unconstitutionality as a criminal statute.

2. Where a statute has been in force for many years, receiving a practical interpretation and accepted in all its terms, the most careful consideration should be given questions involved in its interpretation if it then be attacked as conflicting with the constitution; as, unless its language is so obscure and doubtful as to entitle it to no weight or consideration the long-accepted, practical interpretation is more likely to be right than a newly discovered one suggested by the exigencies of current litigation.

3. Held, that sec 6872, Rev. Codes, which was enacted by the 12th session of the territorial legislature in 1883, re-enacted as sec. 6872; Rev. Stat. of 1887, and continued in force by sec. 2 of the schedule and ordinance contained in article 21 of the state constitution, approved by the federal government at the time Idaho was admitted to the Union, is couched in sufficiently definite language to meet the object sought to be attained.

4. Where there are two constructions that may be fairly given a legislative act designed to effect a great public purpose, one of which will carry out the intent and purpose and the other will defeat the intent and purpose of the act, the former construction should be applied.

5. Laws are enacted to be read and obeyed by the people, and in order to reach a reasonable and sensible construction thereof, words that are in common use among the people should be given the same meaning in the statute as they have among the great mass of the people who are expected to read, obey and uphold them.

6. A cattle range in this state has a well-defined meaning, and so has a sheep range; and this meaning is fully recognized by persons engaged in the two industries.

7. Sec. 6872, Rev. Codes, is a police regulation and must necessarily be construed with and as a part of sec. 6314, Rev. Codes, which provides: "In every crime or public offense there must exist a union, or joint operation, of act and intent, or criminal negligence." In other words, there must be an intent to violate sec. 6872, Rev. Codes, supra, as well as the act of driving or herding sheep upon a cattle range, in order to warrant a conviction of the defendant.

APPEAL from the District Court of the Third Judicial District for Owyhee County. Hon. Carl A. Davis, Judge.

Criminal prosecution for herding, grazing and pasturing sheep upon a cattle range, in violation of sec. 6872, Rev. Codes. Judgment for plaintiff. Affirmed.

Judgment affirmed. Petition for rehearing denied.

Oppenheim & Hodgin, for Appellant.

The statute is arbitrary in that it leaves the determination of the facts to the arbitrary action of the person claiming adversely to the defendant. (Black's Constitutional Law, 2d ed., p. 377 (citing Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220); 6 Ruling Case Law, 194; Miller v. Horton, 152 Mass. 540, 23 Am. St. 850, 26 N.E. 100, 10 L. R. A. 116; First Nat. Bank v. Sarlles, 129 Ind. 201, 28 Am. St. 185, 28 N.E. 434, 13 L. R. A. 481; Pearson v. Zehr, 138 Ill. 48, 32 Am. St. 113, 29 N.E. 854.)

"The legislature has no authority to pronounce the performance of an innocent act criminal when the public health, safety, comfort, or welfare is not interfered with." ( Gillespie v. People, 188 Ill. 176, 80 Am. St. 176, 58 N.E. 1007, 52 L. R. A. 283.)

The act made criminal by this statute is per se an innocent act; that is to say, there is no offense, neither does it affect the general welfare, when sheep are herded or grazed upon the public domain. (Buford v. Houtz, 133 U.S. 320, 10 S.Ct. 305, 33 L.Ed. 618; State v. Dalton, 22 R. I. 77, 84 Am. St. 818, 46 A. 234, 48 L. R. A. 775; Stearns v. City of Barre, 73 Vt. 281, 87 Am. St. 721, 50 A. 1086, 58 L. R. A. 240; City of Laurens v. Anderson, 75 S.C. 62, 117 Am. St. 885, 55 S.E. 136, 9 Ann. Cas. 1003.)

Under the statute we are considering, it is impossible for a sheep-grower to know even approximately when he is about to violate the statute or has violated the same. (State v. Conlon, 65 Conn. 478, 48 Am. St. 227, 33 A. 519, 31 L. R. A. 55.)

The sheep-grower cannot know beforehand what he can and cannot do under this statute, because there is no provision in the law whereby it may be determined beforehand that a given section of the country is a cattle range. Neither does it provide any method of establishing or fixing the exact boundary lines of said range. The determination of these two facts is necessary before the sheep-grower can know or before anyone else can know whether or not the statute has been violated. The law is vague, indefinite and uncertain. (Louisville & N. R. Co. v. Commonwealth, 99 Ky. 132, 59 Am. St. 457, 35 S.W. 129, 33 L. R. A. 209; Tozer v. United States, 52 F. 917; Knight v. Trigg, 16 Idaho 256, 100 P. 1060; Anderson v. Great Northern R. Co., 25 Idaho 433, 138 P. 127; State v. Cudahy Packing Co., 33 Mont. 179, 114 Am. St. 804, 82 P. 833, 8 Ann. Cas. 717.)

J. H. Peterson, Atty. Genl., T. C. Coffin, Asst., R. G. Adams and William Healy, for Respondent.

"We cannot concede that the police power of the state does not extend over the public domain." (Sweet v. Ballentyne, 8 Idaho 431, 69 P. 995.)

The privileges which citizens have of grazing their stock upon the public domain are subject to regulation and control on the part of the state governments. (Buford v. Houtz, 133 U.S. 320, 10 S.Ct. 305, 33 L.Ed. 618; Bacon v. Walker, 204 U.S. 311, 27 S.Ct. 289, 51 L.Ed. 499.)

The provisions of the 14th amendment do not apply and were never intended to apply to police regulations enacted by the several states. (Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; Minneapolis & St. Louis R. Co. v. Beckwith, 129 U.S. 26, 29, 9 S.Ct. 207, 32 L.Ed. 585; Haigh v. Bell, 41 W.Va. 19, 23 S.E. 666, 31 L. R. A. 131.)

The necessity and desirability of police regulations are largely matters for the judgment of the legislature. (Minneapolis & St. Louis R. Co. v. Beckwith, supra; Bacon v. Walker, supra.)

The term "cattle range" has a well-defined popular meaning. "Words that are in common use among the people should be given the same meaning in the statute as they have among the great mass of the people who are expected to read, obey and uphold them." (Adams v. Lansdon, 18 Idaho 483, 110 P. 280; Ex parte Bossner, 18 Idaho 519, 110 P. 502; State v. Stuth, 11 Wash. 423, 39 P. 665.)

L. B. Green, Solon Orr, B. S. Crow and K. I. Perky, as Amici Curiae.

A state statute cannot create a possessory right in unoccupied government lands, or regulate the use of such lands. ( Douglas County Commrs. v. Union P. Ry. Co., 5 Kan. 615, 624; Oregon Short Line R. Co. v. Quigley, 10 Idaho 770, 781, 80 P. 401; City of Guthrie v. Beamer, 3 Okla. 652, 41 P. 647; United States v. Utah Power & Light Co., 209 F. 554, 126 C. C. A. 376.)

"The disposal of public lands within the state by act of Congress can in no way be limited by state statute." (United States v. Shannon, 151 F. 863, 866; David v. Rickabaugh, 32 Iowa 540; Farrington v. Wilson, 29 Wis. 383, 390.)

The privileges accorded by the United States for grazing upon public lands are subject alone to their control. (Buford v. Houtz, 133 U.S. 320, 10 S.Ct. 305, 33 L.Ed. 618; Irvine v. Marshall, 61 U.S. (20 How.) 558, 15 L.Ed. 994.)

No state legislature can interfere with this right or embarrass its exercise. (Gibson v. Chouteau, 80 U.S. 92, 20 L.Ed. 534; Wilcox v. Jackson, 38 U.S. 498, 516, 10 L.Ed. 264, 273.)

No person may acquire a prior right to pasture the public lands of the United States in the absence of such legislation by Congress. (McGinnis v. Friedman, 2 Idaho 393, 17 P. 635; Wilkinson Livestock Co. v. McIlquam, 14 Wyo. 209, 83 P. 364, 3 L. R. A., N. S., 733.)

The federal government alone may prescribe rules and regulations concerning the use of its public lands. (Forsythe v. United States, 3 Ind.Terr. 599, 64 S.W. 548; United States v. Mattock, 2 Sawy. 148, F. Cas. No. 15,744; United States v. Loving, 34 F. 715; United States v. Hunter, 4 Mackey (D. C.), 531.)

The federal constitution and the statutes under it recognize no distinction between the different kinds of stock, as creating any difference in right to the use of the public pasture lands. (Brannon's 14th Amendment, pp. 67, 322.)

"Any. . . . interruption or deprivation of the common, usual and ordinary use of property is . . . . a taking of one's property in violation of the constitutional guaranty." ( Knowles v. New Sweden Irr. Dist., 16 Idaho 235, 101 P. 87.)

Sec. 6872, Rev. Codes, usurps the judicial power of the courts of this state in that it adjudicates the question of whether appellant has the right to use the public pasture lands of the United States. (City of Janesville v. Carpenter, 77 Wis. 288, 20 Am. St. 123, 46 N.W. 128, 8 L. R. A. 808.)

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

OPINION

BUDGE, J.

This prosecution was brought in the probate court of Owyhee county, against the defendant, charging him with the commission of a misdemeanor, to wit, herding, grazing and pasturing sheep upon a cattle range in violation of sec. 6872, Rev. Codes.

The case was tried before the court without a jury, a jury trial having been waived, and judgment was pronounced against the...