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Mr. Justice McKenna delivered the opinion | right of pasture asserted to exist; the other of the court:

This action involves the validity, under the Constitution of the United States, of the following sections of the Revised Statutes of the state of Idaho:

"Sec. 1210. It is not lawful for any person owning or having charge of sheep to herd the same,or permit them to be herded, on the land or possessory claims of other persons, or to herd the same or permit them to graze within 2 miles of the dwelling house of the owner or owners of said possessory claim. "Sec. 1211. The owner or the agents of such owner of sheep violating the provisions of the last section, on complaint of the party or parties injured, before any justice of the peace for the precinct where either of the interested parties may reside, is liable to the party injured for all damages sustained; and, if the trespass be repeated, is liable to the party injured for the second and every subsequent offense in double the amount of damages sustained."

concedes such power, and attacks it only as
it discriminates against the grazers of sheep.
We speak only of the right to pasture, be-
cause plaintiff in error does not show that he
is the owner of the land upon which his
sheep grazed, and what rights owners of land
may have to attack the statute we put out of
ex rel. Hatch
consideration. New York
v. Reardon, 204 U. S. 152, 51 L. ed. 415,
we may
27 Sup. Ct. Rep. 188. But
remark that the supreme court of Ida-
ho said in Sweet v. Ballentyne, 8 Idaho,
"These statutes [§§
431, 440, 69 Pac. 995:
1210, 1211, quoted above] were not intended
to prevent owners from grazing sheep upon
their own lands, although situated within
2 miles of the dwelling of another." Is it
true, therefore, even if it be conceded that
there is right or license to pasture upon the
public domain, that the state may not limit
or regulate the right or license? Defendants
in error have an equal right with plaintiff
in error, and the state has an interest in the
accommodation of those rights. It may even
have an interest above such accommodation.
The laws and policy of a state may be

Defendants in error, under the provisions of those sections, brought this action in the justice's court of Little Camas precinct, Elmore county, state of Idaho, for the recov-framed and shaped to suit its conditions of ery of $100 damages, alleged to have accrued to them by the violation by plaintiff in error of the statutes, and obtained judgment for that sum. The judgment was successively affirmed by the district court for the county of Elmore, and the supreme court of the state. 81 Pac. 155. The case was then brought here.

It was alleged in the complaint of defendants in error, who were plaintiffs in the trial court, that plaintiff in error caused his sheep, about three thousand in number, to be herded upon the public lands within 2 miles of the dwelling house of defendants in error. The answer set up that the complaint did "not state a cause of action other than the violation of §§ 1210 and 1211 of the Revised Statutes of the state of Idaho," and that said sections were in violation of the 14th Amendment of the Constitution of the United States. The specifications of the grounds of the unconstitutionality of those sections were, in the courts below, and are, in this court, (1) that plaintiff in error has an equal right to pasture with other citizens upon the public domain, and that, by imposing damages on him for exercising that right, he is deprived of his property without due process of law; (2) that a discrimination is arbitrarily and unlawfully made by the statutes between citizens engaged in sheep grazing on the public domain and citizens engaged in grazing other classes of stock.

These grounds do not entirely depend upon the same considerations. The first denies to the state any power to limit or regulate the

climate and soil. Illustrations of this power
are afforded by recent decisions of this court. ·
In Clark v. Nash, 198 U. S. 361, 49 L. ed.
1085, 25 Sup. Ct. Rep. 676, a use of property
was declared to be public which, independent
of the conditions existing in the state, might
otherwise have been considered as private.
So also in Strickley v. Highland Boy Gold
Min. Co. 200 U. S. 527, 50 L. ed. 581, 26 Sup.
Ct. Rep. 301. In the first case there was a
recognition of the power of the state to deal
with and accommodate its laws to the condi-
tions of an arid country and the necessity
of irrigation to its development. The sec-
ond was the recognition of the power of the
state to work out from the conditions exist-
ing in a mining region the largest welfare of
its inhabitants. And again, in Offield v.
New York, N. H. & H. R. Co. 203 U. S.
372, 51 L. ed. 231, 27 Sup. Ct. Rep. 72,
was affirmed
the principle of those cases
and applied to conditions entirely dissimilar,
and it was declared that it was competent
for a state to provide for the compulsory
transfer of shares of stock in a corporation,
the ownership of which stood in the way
of the increase of means of transporta-
tion, and the public benefit which would re-
Of pertinent significance
sult from that.
is the case of Ohio Oil Co. v. Indiana, 177
U. S. 190. 44 L. ed. 729, 20 Sup. Ct. Rep.
576. There a statute of the state of Indi-
ana was attacked, which regulated the sink-
ing, maintenance, use, and operation of nat-
ural gas and oil wells. The object of the
statute was to prevent the waste of gas.
The defendants in the action asserted

problem which confronted the legislature and upon what considerations it was solved. We think, therefore, that the statutes of Idaho are not open to the objection that they take the property of plaintiff in error with

sideration of the charge that they make an unconstitutional discrimination against the sheep industry.

against the statute the ownership of the soil | and Sweet v. Ballentyne, 8 Idaho, 431, 69 and the familiar principle that such owner- Pac. 995, for a statement of the practical ship carried with it the right to the minerals beneath and the consequent privilege of mining to extract them. The principle was conceded, but it was declared inapplicable, as ignoring the peculiar character of the substances-oil and gas-with which the stat-out due process of law, and pass to the con. ute was concerned. It was pointed out that those substances, though situated beneath the surface, had no fixed situs, but had the power of self-transmission. No one owner, Counsel extend to this contention the conit was therefore said, could exercise his right ception of the police power which we have to extract from the common reservoir, in just declared to be erroneous, and, enumeratwhich the supply was held without, to an ing the classes discriminated in favor of as extent, diminishing the source of supply to cattle, horses, hogs, and even poultry, puts which all the other owners of the surface to question whether, in herding or grazing had to exercise their rights. The waste of sheep, "there is more danger to the public one owner, it was further said, caused by a 'health, comfort, security, order, or moralreckless enjoyment of his right, operated up-ity,' than the classes of animals and fowls on the other surface owners. The statute aboye enumerated." "What," counsel asks, was sustained as a constitutional exercise of the power of the state, on account of the peculiar nature of the right and the objects upon which it was exerted, for the purpose of protecting all of the collective owners.

These cases make it unnecessary to consider the argument of counsel based upon what they deem to be the limits of the police power of a state, and their contention that the statute of Idaho transcends those limits. It is enough to say that they have fallen into the error exposed in Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 592, 50 L. ed. 596, 609, 26 Sup. Ct. Rep. 341. In that case we rejected the view that the police power cannot be exercised for the general well-being of the community. That power, we said, embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety. We do not enter, therefore, into the discussion whether the sheep industry is legitimate, and not offensive. Nor need we make extended comment on the 2mile limit. The selection of some limit is a legislative power, and it is only against the abuse of the power, if at all, that the courts may interpose. But the abuse must be shown. It is not shown by quoting the provision which expresses the limit. The mere distance expressed shows nothing. It does not display the necessities of a settler upon the public lands. It does not display what protection is needed, not from one sheep or a few sheep, but from large flocks of sheep, or the relation of the sheep industry to other industries. These may be the considerations that induced the statutes, and we cannot pronounce them insufficient on surmise or on the barren letter of the statute. We may refer to Sifers v. Johnson, 7 Idaho, 798, 54 L.R.A. 785, 97 Am. St. Rep. 271, 65 Pac. 709,

"are the dangers to the public growing out of this industry that do not apply with equal force to the others? Does the herding or grazing of sheep necessarily, and because of its unwarrantable character, work an injury to the public? And, if dangerous in any degree whatever, are the other classes which are omitted and in effect excepted entirely free from such danger, or do such exceptions tend to reduce the general danger?" Contemplating the law in the aspect expressed in these questions, counsel are unable to see in it anything but unreasonable and arbitrary discrimination. This view of the power of the state, however, is too narrow. That power is not confined, as we have said, to the suppression of what is offensive, disorderly, or unsanitary. It extends to so dealing with the conditions which exist in the state as to bring out of them the greatest welfare of its people. This is the principle or the cases which we have cited.

But the statutes have justification on the grounds which plaintiff in error urges as determinative, and on those grounds they were sustained by the supreme court of the state. They were deliberate enactments, made necessary by and addressed to the conditions which existed. They first (1875) had application only to three counties, while Idaho was a territory. They were subsequently extended to two other counties, and were made general in 1887. They were continued in force by the state Constitution. Sweet v. Ballentyne, supra. The court said in the latter case:

"It is a matter of public history in this state that conflicts between sheep owners and cattle men and settlers were of frequent occurrence, resulting in violent breaches of the peace. It is also a matter of public history of the state that sheep are not only

Plffs. in Err.,

V.

ENOS C. WALLING.

able to hold their own on the public ranges, CHARLES BOWN and Leander L. Ormsby, with other live stock, but will in the end drive other stock off the range, and that the herding of sheep upon certain territory is an appropriation of it almost as fully as if it was actually inclosed by fences, and this is especially true with reference to cattle. The legislature did not deem it necessary to prohibit the running at large of sheep altogether, recognizing the fact that there are in the state large areas of land un

This case is governed by the decision in Bacon v. Walker, ante, p. 289.

[No. 81.]

4, 1907.

inhabited, where sheep can range without in- Argued January 10, 1907. Decided February terfering with the health or subsistence of settlers or interrupting the public peace. The fact was also recognized by the legisla-IN ERROR to the Supreme Court of the a State of Idaho to review a judgment

ture that, in order to make the settlement of our small isolated valleys possible, it was necessary to provide some protection to the settler against the innumerable bands of sheep grazing in this state."

And the court pointed out that it was not the purpose or effect of the statutes to make discriminations between sheep owners and owners of other kinds of stock, but to secure equality of enjoyment and use of the public domain to settlers and cattle owners with sheep owners. To defeat the beneficent objects of the statutes, it was said, by holding their provisions unconstitutional, would make of the lands of the state "one immense sheep pasture." And further: "The owners of sheep do not permit them to roam at will, but they are under the immediate control of herders, who have shepherd dogs with them, and wherever they graze they take full possession of the range as effectually as if the lands were fenced. . It is a matter of common observation and experience that sheep eat the herbage closer to the ground than cattle or horses do, and, their hoofs being sharp, they devastate and kill the growing vegetation wherever they graze for any considerable time. In the language of one of the witnesses in this case: 'Just as soon as a band of sheep passes over, everything disappears, the same as if fire passing over it.' 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."

These remarks require no addition. They exhibit the conditions which existed in the state, the cause and purpose of the statutes which are assailed, and vindicate them from the accusation of being an arbitrary and unreasonable discrimination against the sheep industry.

Judgment affirmed.

Mr. Justice Brewer and Mr. Justice Peckham dissent.

which affirmed a judgment of the District Court for Elmore County, in that state, which had in turn affirmed a judgment of the Probate Court in and for that county for the recovery of damages sustained by the violation of a statute prohibiting the grazing of sheep on the public domain within 2 miles of a dwelling house. Affirmed.

See same case below, 9 Idaho, 740, 76 Pac. 318.

The facts are stated in the opinion. Messrs. S. M. Stockslager, W. E. Borah, Frank T. Wyman, and John C. Rice for plaintiffs in error.

No counsel for defendant in error.

Mr. Justice McKenna delivered the opinion of the court:

This action was brought in the probate court in and for Elmore county, state of Idaho, for the sum of $200 damages sustained by defendant in error by the violation by plaintiffs in error of §§ 1210, 1211, of the Revised Statutes of Idaho. The amended complaint alleged that the offense was committed by plaintiffs in error by wrongfully and negligently permitting and allowing their sheep to graze within 2 miles of the dwelling house of defendant in error and upon the government lands around his premises. The defense, set up by demurrer, was, as in Bacon v. Walker, 204 U. S. 311, 51 L. ed. 499, 27 Sup. Ct. Rep. 289, that those sections were void under the due process and equality clauses of the 14th Amendment of the Constitution of the United States. The trial court rendered judgment for the defendant in error, which was affirmed by the district court for Elmore county and by the supreme court of the state. 9 Idaho, 740,

76 Pac. 318.

The case was argued with Bacon v. Walker, and, on the authority of that case, the judgment is affirmed.

Mr. Justice Brewer and Mr. Justice Peckham dissent.

W. A. WALKER, Executor of the Estate of | court of appeals (70 C. C. A. 534, 138 Fed. W. H. Ansley, Deceased, Appt.,

V.

J. W. McLOUD, Trustee, and Francis I.
Gowen, Receiver of the Choctaw Coal &
Railway Company.

Judicial sale to enforce forfeiture-validity
-who may question.

394) affirming a decree of the United States court for the central district of Indian territory, dismissing the appellant's bill on the merits. 5 Ind. Terr. 563, 82 S. W. 908.

The appellant describes this action "as in the nature of ejectment on the equity docket, instituted for the purpose of securing pos1. A railway company and its receiver session of certain buildings and the right to did not, by building outside its right of the occupancy of the land on which they way through the Indian territory, lose the were erected, and to quiet plaintiff in his right to assert that a sheriff's sale to en- title and possession of the same, and to reforce a forfeiture to the Choctaw Nation, so move the cloud from the title." The appelincurred, was invalid because made on cred-lant is the executor of the will of W. H. it, in clear violation of the Choctaw law of Ansley, who was the purchaser of the buildOctober 30, 1888, under which the sheriff as- ings, hereinafter referred to, at the sheriff's

sumed to sell.

Evidence-conclusion.

[blocks in formation]

sale.

The facts necessary to state in considering the question decided are as follows: The defendant McLoud is a trustee under a deed of trust, which need not now be more particularly stated, and defendant Gowen is the receiver of the Choctaw Coal & Railway Company, which was a corporation created

under the laws of the state of Minnesota.

3. Ratification by the general council of the Choctaw Nation of a sheriff's sale to By the 2d section of the act of Congress of enforce a forfeiture incurred by a railway February 18, 1888 (25 Stat. at L. 35, chap. company by reason of its erection of build-13), it was granted the right to take and ings outside its right of way through the Indian territory, which sale, because made on credit, was a clear violation of the law under which the sheriff assumed to sell, was not accomplished by subsequent legislation which appropriates money to defend the Nation in all suits "in any manner relative to the full and complete execution of the laws of the Choctaw Nation by the sheriffs of each and every county in the confiscation of the property of noncitizens who are now occupying lands or buildings, or who may hereafter occupy, not in conformity to the laws of the Choctaw Nation."

[No. 140.]

Argued and submitted January 8, 1907. cided February 4, 1907.

use for all purposes of a railway, but for no other purposes, a right of way 100 feet in width through the Indian territory for its main line and branch. The 10th section of the act provided that the company should accept this right of way upon the express condition that it would neither aid, advise, nor assist in any effort looking towards the changing or extinguishing of the present tenure of the Indians in their land, and would not attempt to secure from the Indian nations any further grant of land or its occupancy than was provided in the act; and that any violation of the condition mentioned should operate as a forfeiture of all the rights and privileges of the comDe-pany under the act.

The Choctaw Nation, on October 30, 1888, passed an act, the 1st section of which reads as follows:

"All noncitizens not in the employ of a citizen of the Choctaw Nation, and not author

PPEAL from the United States Circuit Court of Appeals for the Eighth Circuit to review a decree which affirmed a decree of the United States Court for the Centralized to live in the Choctaw Nation under the District of Indian Territory, dismissing, on the merits, a bill to quiet title to property judicially sold to enforce a forfeiture to the Choctaw Nation incurred by the erection by a railroad company of buildings outside its right of way through the Indian territory. Affirmed.

provisions of existing treaty stipulations, who have made or bought improvements in said Nation, are hereby notified that they are allowed to sell their so-called improvements to citizens, and if such noncitizens fail to comply with this section, then it shall be the duty of the sheriffs of the coun

See same case below, 70 C. C. A. 534, 138 ties in which such improvements may be loFed. 394.

cated to advertise the same for sale in thirty days, and sell the same at the appointed Statement by Mr. Justice Peckham: time to the highest Choctaw citizen bidder The appellant, who was plaintiff below, for cash; one half of which shall be paid inappeals from the judgment of the circuit to their respective treasuries, and the other

*Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, § 2150.

half into the national treasury. Provided, however, that, if any such noncitizen fail or refuse to deliver the possession of such an improvement, he shall be reported by the sheriff of that county to the principal chief, and by said chief to the United States Indian agent, to take proper steps for the removal and prosecution of such offender under § 2118 of the Revised Statutes of the United States. Provided, further, that a notice of sale shall be posted by the sheriff in three public places in his county, which shall be legal notice to all persons against whom this law may operate."

While the above acts were in force and during the years from 1889 to 1893, both inclusive, it is charged that the company, through its officers and agents, built certain buildings at the town of South McAlester, Indian territory, outside and beyond its right of way, illegally and in violation of such acts, and were using the same in behalf and in the interest of the company.

In 1895 William Ansley, who was a citizen of the Choctaw Nation, and a deputy sheriff of the county where the buildings were erected, wrote to the governor of the Choctaw Nation and subsequently made a report in regard to the buildings as being erected by the company outside of its right of way, and that they were controlled by the company, and he was then directed by the principal chief of the Choctaw Nation to proceed according to law to sell and dispose of the buildings which had been built by the company outside its right of way. The sheriff proceeded to advertise the buildings for sale according to law, and in June, 1895, sold some of them to the appellant's intestate for $270; and the sheriff accepted his note as payment, conditioned that the same should be paid as soon as the purchaser was put into or otherwise obtained possession. This note has never been paid. The property purchased was, as alleged, of the value of about $60,000, and the purchaser was the son of the deputy sheriff who made the sale. The reason the money was not paid at the time of the bid, as stated by the bidder Ansley, was that the property was held by the company, and he was informed that it would take litigation to obtain possession. Immediately after the sale the sheriff who made it reported his action to the chief of the Choctaw Nation.

The appellant, upon the trial, offered in evidence the deposition of the deputy sheriff who made the sale, in relation to this matter, in which he swore that "the chief ratified my action as to the sale and payments of said property, and instructed me to proceed at once and employ attorneys to assist me in getting possession of the property for

the purchasers, and I at once employed attorneys to assist the plaintiff, W. H. Ansley, in obtaining possession of the property sold by me as sheriff. Mosely & Smith, of Denison, Texas, a firm of lawyers, and Cole & Redwine, attorneys at South McAlester, were employed by the chief of the Choctaw Nation to assist the plaintiff in obtaining possession of said property. In 1895 the Choctaw council passed a special act, appropriating $1,500 to employ attorneys to represent the Choctaw Nation and to assist the plaintiff in obtaining possession of the property aforesaid. In the December following contracts employing the aforesaid lawyers were signed by Jeff Gardner, chief of the Choctaw Nation, and all my acts as deputy sheriff aforesaid as to the sale and payments of the purchase price of the aforesaid property were accepted and ratified by the Choctaw Nation."

All that portion of the deposition above quoted was objected to on the part of the defendants, and the objection was sustained, and that portion was stricken out under the exception of appellant.

The appellant also put in evidence the act of the general council of the Choctaw Nation, entitled "An Act Authorizing the Principal Chief to Employ Counsel," approved October 30, 1895, the 1st section of which reads as follows:

"Section 1. Be it enacted by the general council of the Choctaw Nation, assembled: That the sum of two thousand dollars ($2,000.00) is hereby appropriated out of any money in the national treasury not otherwise appropriated, and said sum to be placed to the credit of the principal chief, and to be by him used for and in behalf of the Choctaw Nation, in the employing of able and competent counsel to defend the interest of this nation in all suits now pending or that may hereafter come before the United States courts in any manner relative to the full and complete execution of the laws of the Choctaw Nation by the sheriffs of each and every county in the confiscation of property of noncitizens who are now occupying lands or buildings, or who may hereafter occupy, not in conformity to the laws of the Choctaw Nation."

Messrs. W. N. Redwine, Chester Howe, George R. Walker, Preslie B. Cole, and J. O. Poole for appellant.

Messrs. John W. McLoud and Charles B. Stuart for appellees.

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:

The circuit court of appeals decided but one question in this case, and that one relat.

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