Thompson v. Tobacco Root Co-op. State Grazing Dist.

• Decision Date: 15 May 1948
• Docket Number: 8805.
• Citation: 193 P.2d 811,121 Mont. 445
• Parties: THOMPSON et al. v. TOBACCO ROOT CO-OP. STATE GRAZING DIST. et al.
• Court: Montana Supreme Court

193 P.2d 811

121 Mont. 445

THOMPSON et al. v. TOBACCO ROOT CO-OP. STATE GRAZING DIST. et al.

No. 8805.

Supreme Court of Montana

May 15, 1948

Rehearing Denied June 5, 1948.

Appeal from District Court, Fifth Judicial District, Madison County Lyman H. Bennett, Judge.

Action by H. O. Thompson and others against Tobacco Root Cooperative State Grazing District and another wherein the plaintiffs challenged the validity of the Grass Conservation Act. From a judgment for plaintiffs after defendants' demurrer to the complaint was overruled and they declined to plead further the defendants appeal.

Judgment reversed and cause remanded with directions to sustain demurrer to the complaint.

Frank E. Blair, of Virginia City, for appellants.

Rockwood Brown & Horace S. Davis, of Billings, Lyman H. Bennett, Jr. of Virginia City and Marion B. Porter and Norman Hanson, both of Billings, for respondents.

P. F. Leonard, of Miles City, Thomas Dignan, of Glasgow, Ralph J. Anderson, of Helena, E. E. Fenton, of Hysham, Burns & Thomas, of Chinook, R. V. Bottomly, Atty. Gen. and Clarence Hanley, Asst. Atty. Gen., amici curiae.

ANGSTMAN Justice.

This is an appeal from a judgment entered in favor of plaintiffs after defendants' demurrer to the complaint was overruled and they declined to plead further.

The judgment specifically finds that Chapter 208, Laws of 1939 and Chapter 199, Laws of 1945, are both unconstitutional and void.

The complaint attacks these statutes upon several grounds and since the trial court's judgment is general it must be sustained if any one of the grounds contended for has merit.

In considering the several contentions we keep in mind that it is our duty to resolve all doubts in favor of the validity of the Act. Likewise, we keep in mind that it is the power of the legislature and not policy with which we are concerned.

Chapter 208 of the Laws of 1939 is what is commonly called the Grass Conservation Act. It provides for the creation of cooperative non-profit grazing districts and empowers them to cooperate with the federal government to the end that there may be unified control of grazing land. Chapter 199, Laws of 1945, amends Chapter 208 in several particulars.

The first contention made by plaintiffs is that section 26 of Chapter 208, as amended by Chapter 199 is unconstitutional.

That section, so far as material, provides:

'(1) No owner or person in control of livestock shall permit the same to run at large, or under herd, within the exterior boundaries of any state district, unless the owner or person in control of such livestock shall first obtain a grazing permit for same from such state district; and the owner or person in control of such livestock running at large, or under herd, within a state district, without a permit from the district, or in excess of such permit, shall be liable for all damages sustained thereby by any member. * * *

'(2) The state district or its duly authorized agent controlling the land upon which such wrongful entry is made by trespassing livestock, may take into its possession such livestock and shall reasonably care for same while in its possession and may retain possession of said livestock and have a lien and claim thereon as security for payment of such damages and reasonable charges for the care of said livestock while in its possession and may retain possession of said livestock and have a lien and claim thereon as security for payment of such damages and reasonable charges for the care of said livestock while in its possession. The state district taking up such livestock shall, within seventy-two (72) hours after taking possession thereof, notify said owner, owners, or person in charge thereof, by a notice in writing, describing said livestock by number of animals and brands thereon, if any, the amount of damages claimed to date, and the charge per animal unit per day for caring for and feeding the same thereafter, such damages and charges not to exceed fifty cents (50¢) per animal unit per day, and describing by general description, the location of the premises upon which said livestock is held, and requiring such owner or owners, within ten (10) days after receiving said notice, to take said livestock away after making full payment of all damages and costs of said livestock. In case the parties do not agree as to the amount of damages, the state district taking up such livestock, may, at the expense of the owner, retain a sufficient amount of such livestock to cover the amount of damages claimed by the state district. Provided, however, that the owner may, upon furnishing a good and sufficient bond, conditioned for the payment to the state district of all sums, including costs that may be recovered by said state district in a civil action of foreclose its lien, have returned to him of all livestock held as aforesaid, and said state district shall be liable to such owner for any loss or injury to said livestock accruing through the state district's lack of reasonable care. If the state district taking up livestock shall fail to recover in a civil action a sum equal to that offered to the state district by the owner of the livestock, the former shall bear the expense of keeping and feeding same while in its possession. * * * Upon demand, the state district or its authorized agent controlling the land, or party in charge of such livestock, shall release and deliver possession of such livestock to the owner or person entitled thereto, upon payment of damages and charges; but said payment of damages and charges shall not act as a bar to the prosecution of said person, owner or persons in control of such livestock, as hereinbefore provided. If the amount of damages or costs demanded by the party taking up such livestock is in excess of the actual damage and actual costs, the owner or person in charge of such livestock, may pay same under protest and thereafter sue to recover the amount paid in excess of the actual damages and reasonable costs, provided suit to recover same is filed in the district court within sixty (60) days after payment.'

If the owner of the livestock cannot be found or if found and he refuses to pay the amount of damages and costs or to furnish a bond, the statute authorizes a sale of the livestock by the sheriff or constable at public auction and the proceeds applied first for damages and costs and the excess paid to the owner of the livestock if known.

The complaint alleges that the defendant Tobacco Root Co-operative State Grazing District impounded 30 head of horses and mules belonging to plaintiffs and intends to cause defendant Brook, as sheriff of Madison county, to sell them pursuant to the above statuteat public auction in foreclosure of an alleged lien claimed by the grazing district. It is contended by plaintiff that the statute is unconstitutional because it requires no adjudication to establish the alleged lien sought to be foreclosed and hence is a denial of due process under both the state and federal constitutions. Const.Mont. art. 3,§ 27; Const.U.S.Amend. 14.

It is well settled that notice and opportunity to be heard are essential elements of due process. Chicago M. & St. Paul Ry. Co. v. Board of R. R. Com'rs, 76 Mont. 305, 247 P. 162; Mitchell v. Bank Corporation of Montana, 94 Mont. 183, 22 P.2d 155; Johnson v. Johnson, 92 Mont. 512, 15 P.2d 842; Application of O'Sullivan, 117 Mont. 295, 158 P.2d 306, 161 A.L.R. 487; State ex rel. Ryan v. Norby, Mont., 165 P.2d 302.

Plaintiff contends that section 26 denies due process of law to: first, those livestock owners who do not respond to the notice sent them by the district; second, those owners who cannot be found or the ownership of whose livestock cannot be discovered; and third, those owners who refuse to pay the amount of the damages or charges claimed or to furnish bond therefor.

As to the second class above referred to it is sufficient to say that these plaintiffs cannot raise the question of the validity of the statute as to those because they do not fall in that class. Bonnett v. Brown, 155 Miss. 833, 125 So. 427. It is well settled that only those adversely affected by the operation of a statute will be heard to question its validity. State ex rel. Brooks v. Cook, 84 Mont. 478, 276 P. 958; Rider v. Cooney, 94 Mont. 295, 23 P.2d 261; State v. Andre, 101 Mont. 366, 54 P.2d 566; State ex rel. Riley v. District Court, 103 Mont. 576, 64 P. 115.

Is the statute valid as to those in class one and class three above referred to? In considering this question we must analyze the statute and ascertain the purpose of the legislation. Under the statute the district has a lien on the livestock taken into possession and may retain possession thereof as security for the damages and charges for their care.

The purpose of the bond is that it may stand as security for the damages and costs in lieu of the livestock seized. By providing for the giving of a bond a method is provided whereby the owner of the livestock may regain possession thereof and thus stop the further expense of providing for their care by the district during the time necessary for an adjudication of the amount of damages and costs. The statute provides a maximum sum of 50¢ per animal unit per day as damages and charges. It also gives the owner the right to pay under protest the amount of damages and costs demanded and sue to recover the excess if the owner considers the demand excessive.

Our attention has not been called to any case treating of a statute exactly like ours. The following cases, however, and perhaps others, have condemned statutes permitting the sale of trespassing animals to recover damages or penalty incurred without prior judicial determination thereof. Greer v Downey, 8 Ariz. 164, 71...