Sweet v. Ballentine

Decision Date02 June 1902
Citation8 Idaho 431,69 P. 995
CourtIdaho Supreme Court

CONSTITUTIONAL LAW-POLICE POWER OF THE STATE-REGULATION OF SHEEP GRAZING.-Sections 1210 and 1211 of the Revised Statutes of Idaho, prohibiting the grazing and herding of sheep within two miles of inhabited dwellings, is a valid exercise of the police power of the state. Affirming Sifers v. Johnson, 65 P 709.

SAME-DAMAGES.-Under said statutes, the owner or herder of sheep is only liable for the damages which are caused in the commission of a trespass by his own sheep.

SAME.-In estimating the damages caused to a settler by herding and grazing sheep within two miles of his dwelling, and on the public lands, the number of livestock which he has depending on pasturage upon said lands must be taken into consideration.

(Syllabus by Quarles, C. J.)

APPEAL from the District Court, Boise County.

Affirmed. Costs awarded to respondent.

J. J Blake and W. E. Borah, for Appellant.

It is practically impossible to find an authority directly in point upon this question, but the principles enunciated by many of the cases would seem to control. In the case below it was held that a party being compelled to sacrifice his property by sale is not an element of damage. (Savings Bank v Ashbury, 117 Cal. 96, 48 P. 1081.) So it has been held that the loss of a crop by reason of an employee quitting work is remote damages. (Macy v. Peach, 21 Kan. App. 575, 44 P. 687.) The measure of damages for destroying hay by fire is its market value, less the cost of marketing. (Watt v. Nev. Cent. R. Co., 23 Nev. 154, 62 Am. St. Rep. 772, 44 P. 423, 46 P. 52, 726; Hopkins v. Commercial Co., 16 Mont. 356, 40 P. 865; Shotwell v. Dodge, 8 Wash. 337, 36 P. 254; 3 Sedgwick on Damages, secs. 933-937; Hartshorn v. Chaddock, 135 N.Y. 116, 31 N.E. 997, 17 L. R. A. 426.) Damages caused by defendant's sheep grazing on the public land: "The ordinary and, in general, the only legal course is to lay such facts before the jury as have a bearing on the question of damages and leave them to fix the amount. They are impartial and capable of entering into these ordinary matters. Witnesses are in such cases unavoidably governed by their feelings and their prejudices gathered from many sources. (Norman v. Wells, 17 Wend. 136; Old v. Keener, 22 Colo. 6, 43 P. 127; A. T. & S. F. Co. v. Snedeger, 5 Kan. App. 700, 49 P. 103; Van Deusen v. Young, 29 N.Y. 10; Morehouse v. Mathews, 7 N.Y. 514; Tingley v. City, 8 R. I. 493; Clardy v. Calicoate, 24 Tex. 170; Thompkins v. Toland, 46 Tex. 584; Blair v. Railway Co., 20 Wis. 262; I. C. Ry. Co. v. Smith, 22 Ky. App. 1655, 61 S.W. 2; Jones v. I. C. Ry. Co., 14 Am. & Eng. Ry. Cas. 839; G. W. T. Co. v. Staton (Tex. Civ.), 49 S.W. 277; Largan v. C. R. Co., 40 Cal. 272; Graney v. S. T. L. Co., 157 Mo. 666, 57 S.W. 276, 50 L. R. A. 153.) Constitutionality of the law: No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of their government." (G. C. & S. F. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255.) The same authority quotes with approval the following language: "Whether a statute be public or private, general or special, in form, if it attempts to create distinctions and classifications between the citizens of this state, the basis of such classification must be natural and not arbitrary." (Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064.) Let us examine the law a moment. Section 1210 says: "It is unlawful for any person owning or having charge of sheep . . . . to herd the same, or to permit them to graze, within two miles of the dwelling-house of the owner or owners of such possessory claims." In the first place the ipsi dixit of the legislature purports to make the grazing of sheep a crime, unlawful at least, while the grazing of horses or of mules or of cattle is not so. Thus such owners of herds have free access to this range. It costs them nothing, and if their herds eat the grass no one can recover from them for it. 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 the 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. Rep. 152, 32 P. 871; State v. Speyer, 67 Vt. 502, 48 Am. St. Rep. 832, 32 A. 476, 29 L. R. A. 573; Dibrell v. Lanier, 89 Tenn. 497, 15 S.W. 87, 12 L. R. A. 70; State v. Walsh, 136 Mo. 400, 37 S.W. 1112, 35 L. R. A. 231; Ex parte Jentzsch, 112 Cal. 468, 44 P. 803, 32 L. R. A. 664; Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 33 L. R. A. 589; Frorer v. People, 141 Ill. 171, 31 N.E. 395, 16 L. R. A. 492; In re Hong Wah, 82 F. 623; In re Sam Ke, 31 F. 681; Smiley v. McDonald, 42 Neb. 5, 47 Am. St. Rep. 689, 60 N.W. 355.) The legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business or impose unusual or unnecessary restrictions upon lawful occupation. In other words, its determination as what is a proper exercise of its police power is not final or conclusive, but is subject to the supervision of the courts." (Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499; Cooley's Constitutional Limitations, 1st ed., 391; People v. Gillson, 109 N.Y. 389, 4 Am. St. Rep. 465, 17 N.E. 343; Health Department v. Rector, 145 N.Y. 32, 45 Am. St. Rep. 579, 39 N.E. 833.)

Hawley & Puckett, for Respondent.

In a case of this character damage may occur in many different ways, as is shown by the evidence in this case; as, for instance, destroying the grass, causing plaintiff's stock to stray away, thereby making it necessary to spend time and money to gather them, and also making it necessary to feed stock where otherwise they would live off the grass, but they all spring from the violation of the law, to wit, herding or permitting sheep to be herded on the land or possessory claim of another, or to graze or permit them to graze within two miles of the dwelling-house of the owner of such possessory claim. (Sifers v. Johnson, 7 Idaho 798, 97 Am. St. Rep. 271, 65 P. 709.)

QUARLES C. J., SULLIVAN, J. Sullivan, J., Quarles, C. J., concurring. STOCKSLAGER, J., Dissenting.



The appellant was sued in the justice's court of Lower Squaw Creek precinct, in and for Boise county, for damages alleged to have been sustained by the respondent by reason of appellant having herded and grazed his sheep upon the lands of the respondent, and within two miles of the residence of the respondent; the damages being alleged to be the sum of $ 200. On a trial in said justice's court, respondent recovered judgment, and appellant appealed to the district court, and upon a trial in said district court the respondent recovered a verdict and judgment in the sum of $ 100 and costs. The appellant moved for a new trial in the court below, which was denied, and has appealed to this court from the order denying a new trial, and from the judgment.

The grounds upon which the appellant moved for a new trial, and upon which we are asked to reverse the judgment, are, in brief, that the judgment is contrary to law, and against the evidence.

Upon the first ground named above the appellant attacks the constitutionality of sections 1210, 1211 of the Revised Statutes of 1887. It is contended by appellant that the said sections violate the fourteenth amendment of the federal constitution; that "it denies to the defendant, and those who come under the statute, equal protection under the law, and deprives them of property without due process of law." The able counsel for appellant argues that the said statutes are dealing with an industry regarded as legitimate, and that sheep-raising and sheep-grazing are "not yet criminal per se, and are industries which are recognized as a rightful and important industry of the state, constituting a basis for legitimate wealth within the state." This argument has so often been made, and so often rejected by the courts, notably in cases growing out of laws prohibiting the sale of intoxicating liquors, that it is hardly necessary to pursue it here. In Sifers v Johnson, 7 Idaho 798, 97 Am. St. Rep. 271, 65 P. 709, 54 L. R. A. 785, we held said statutes to be constitutional and a valid exercise of the police power of the state. We are now asked to overrule that decision. Public interests require that statutory and constitutional construction should be uniform, and not vacillating. Having held said statute valid, nothing but the most serious considerations, such as having unquestionably enunciated a rule which is contrary to authority and reason, will justify the court in reversing its former ruling and laying down a different construction. As said in Sifers v. Johnson, supra, "the police power of the state is very great." It has also been said by another authority: "The police power includes all measures for the protection of the life, the health, the property, and the welfare of the inhabitants, and for the promotion of good order and public morals." (See "The Police Powers of the State," pages 98 and 99, by Mr. Russell, and authorities cited by him in the notes.) The statutes in question were enacted for the protection of the health, the property, and welfare of the inhabitants of this state, and to promote good order. The statutes cited make it unlawful to herd or graze sheep on the lands of another, or within two miles of the dwelling of another. This is not a new, but an old, statutory regulation in this state. These statutes, identical with their present reading, were enacted while Idaho was a territory, and first in 1875, when th...

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22 cases
  • State v. Dingman
    • United States
    • Idaho Supreme Court
    • May 30, 1923
    ...1259; State v. Horn, 27 Idaho 782; Sifers v. Johnson, 7 Idaho 798, 97 Am. St. 271, 65 P. 709, 79 P. 459, 54 L. R. A. 785; Sweet v. Ballentyne, 8 Idaho 431, 69 P. 995; Spencer v. Morgan, 10 Idaho 542; State Fraternal Knights & Ladies, 35 Wash. 338, 77 P. 500; Olson v. Idora Hill Mining Co., ......
  • State v. Horn
    • United States
    • Idaho Supreme Court
    • October 5, 1915
    ...of the general government by exercising control over the public domain and the natural products thereof. In the case of Sweet v. Ballentine, 8 Idaho 431, 69 P. 995, (on rehearing, 8 Idaho 451, 69 P. 995), this court held "So far as the public domain of the United States, in this state, is c......
  • State v. Omaechevviaria
    • United States
    • Idaho Supreme Court
    • October 5, 1915
    ... ... "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 ... ...
  • Walker v. Bacon
    • United States
    • Idaho Supreme Court
    • June 1, 1905
    ...that question to be now stare decisis. (Sifers v. Johnson, 7 Idaho 798, 97 Am. St. Rep. 271, 65 P. 709, 54 L. R. A. 785; Sweet v. Ballentyne, 8 Idaho 431, 69 P. 995; v. Bown, 9 Idaho 740, 76 P. 318.) SULLIVAN, J., AILSHIE, J. Ailshie, J., Sullivan, J., concurring. Stockslager, C. J., dissen......
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