we

may

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

concedes such power, and attacks it only as This action involves the validity, under it discriminates against the grazers of sheep. the Constitution of the United States, of the We speak only of the right to pasture, befollowing sections of the Revised Statutes cause plaintiff in error does not show that he of the state of Idaho:

is the owner of the land upon which his "Sec. 1210. It is not lawful for any per- sheep grazed, and what rights owners of land son owning or having charge of sheep to herd may have to attack the statute we put out of the same,or permit them to be herded, on the consideration. New York ex rel. Hatch land or possessory claims of other persons, v. Reardon, 204 U. S. 152, 51 L. ed. 415, or to herd the same or permit them to graze 27 Sup. Ct.

Ct. Rep.

Rep. 188. But within 2 miles of the dwelling house of the remark that the supreme court of Idaowner or owners of said possessory claim. ho said in Sweet v. Ballentyne, 8 Idaho,

“Sec. 1211. The owner or the agents of 431, 440, 69 Pac. 995: "These statutes [88 such owner of sheep violating the provisions 1210, 1211, quoted above) were not intended of the last section, on complaint of the party to prevent owners from grazing sheep upon or parties injured, before any justice of the their own lands, although situated within peace for the precinct where either of the 2 miles of the dwelling of another.” Is it interested parties may reside, is liable to true, therefore, even if it be conceded that the party injured for all damages sustained; there is right or license to pasture upon the and, if the trespass be repeated, is liable to public domain, that the state may not limit the party injured for the second and every or regulate the right or license ? Defendants subsequent offense in double the amount of in error have an equal right with plaintiff damages sustained."

in error, and the state has an interest in the Defendants in error, under the provisions accommodation of those rights. It may even of those sections, brought this action in the have an interest above such accommodation. justice's court of Little Camas precinct, El. The laws and policy of a state may be more county, state of Idaho, for the recov- framed and shaped to suit its conditions of ery of $100 damages, alleged to have accrued climate and soil. Illustrations of this power to them by the violation by plaintiff in error are afforded by recent decisions of this court. of the statutes, and obtained judgment for In Clark v. Nash, 198 U. S. 361, 49 L. ed. that sum. The judgment was successively 1085, 25 Sup. Ct. Rep. 670, a use of property affirmed by the district court for the county was declared to be public which, independent of Elmore, and the supreme court of the of the conditions existing in the state, might state. 81 Pac. 155. The case was then otherwise have been considered as private. brought here.

So also in Strickley v. Highland Boy Gold It was alleged in the complaint of defend. Min. Co. 200 U. S. 527, 50 L. ed. 581, 26 Sup. ants in error, who were plaintiffs in the trial ct. Rep. 301. In the first case there was a court, that plaintiff in error caused his recognition of the power of the state to deal sheep, about three thousand in number, to with and accommodate its laws to the condibe herded upon the public lands within 2 tions of an arid country and the necessity miles of the dwelling house of defendants in of irrigation to its development. The secerror. The answer set up that the complaint ond was the recognition of the power of the did “not state a cause of action other than state to work out from the conditions exist. the violation of SS 1210 and 1211 of the ing in a mining region the largest welfare of Revised Statutes of the state of Idaho," and its inhabitants. And again, in Offield v. that said sections were in violation of the New York, N. H. & H. R. Co. 203 U. S. 14th Amendment of the Constitution of the 372, 51 L. ed. 231, 27 Sup. Ct. Rep. 72, United States. The specifications of the the principle of those cases was affirmed grounds of the unconstitutionality of those and applied to conditions entirely dissimilar, sections were, in the courts below, and are, and it was declared that it was competent in this court, (1) that plaintiff in error has for a state to provide for the compulsory an equal right to pasture with other citizens transfer of shares of stock in a corporation, upon the public domain, and that, by impos- the ownership of which stood in the way ing damages on him for exercising that of the increase of means of transportaright, he is deprived of his property with- tion, and the public benefit which would reout due process of law; (2) that a discrimi- sult from that. Of pertinent significance nation is arbitrarily and unlawfully made is the case of Ohio Oil Co. v. Indiana, 177 by the statutes between citizens engaged | U. S. 190, 44 L. ed. 729, 20 Sup. Ct. Rep. in sheep grazing on the public domain and 576. There a statute of the state of Indi. citizens engaged in grazing other classes of ana was attacked, which regulated the sinkstock.

ing, maintenance, use, and operation of natThese grounds do not entirely depend upon ural gas and oil wells. The object of the the same considerations. The first denies to statute was to prevent the waste of gas. the state any power to limit or regulate the 'The defendants

defendants in the action asserted against the statute the ownership of the soils 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 problem which confronted the legislature beneath and the consequent privilege of min- and upon what considerations it was solved. ing to extract them. The principle was con. We think, therefore, that the statutes of ceded, but it was declared inapplicable, as ig- Idaho are not open to the objection that they noring the peculiar character of the sub- take the property of plaintiff in error withstances-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 sideration of the charge that they make an those substances, though situated beneath unconstitutional discrimination against the the surface, had no fixed situs, but had the sheep industry. 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 moral. reckless 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 “are the dangers to the public growing out of the power of the state, on account of the of this industry that do not apply with peculiar nature of the right and the objects equal force to the others ? Does the herding upon which it was exerted, for the purpose or grazing of sheep necessarily, and because of protecting all of the collective owners. of its unwarrantable character, work an

These cases make it unnecessary to con- injury to the public? And, if dangerous in sider the argument of counsel based upon any degree whatever, are the other classes what they deem to be the limits of the police which are omitted and in effect excepted enpower of a state, and their contention that tirely free from such danger, or do such exthe statute of Idaho transcends those limits. ceptions tend to reduce the general danger ?” It is enough to say that they have fallen into Contemplating the law in the aspect exthe error exposed in Chicago, B. & Q. R. Co. pressed in these questions, counsel are unv. Illinois, 200 U. S. 561, 592, 50 L. ed. 596, able to see in it anything but unreasonable 609, 26 Sup. Ct. Rep. 341. In that case we and arbitrary discrimination. This view of rejected the view that the police power can- the power of the state, however, is too narnot be exercised for the general well-being of row. That power is not confined, as we the community. That power, we said, em- have said, to the suppression of what is ofbraces regulations designed to promote the fensive, disorderly, or unsanitary. It expublic convenience or the general prosperity, tends to so dealing with the conditions as well as regulations designed to promote which exist in the state'as to bring out of the public health, the public morals, or the them the greatest welfare of its people. public safety. We do not enter, therefore, This is the principle of the cases which we into the discussion whether the sheep indus- have cited. try is legitimate, and not offensive. Nor But the statutes have justification on the need we make extended comment on the 2- grounds which plaintiff in error urges as demile limit. The selection of some limit is a terminative, and on those grounds they legislative power, and it is only against the were sustained by the supreme court of the abuse of the power, if at all, that the courts state. They were deliberate enactments, may interpose. But the abuse must be made necessary by and addressed to the shown. It is not shown by quoting the pro- conditions which existed. They first (1875) vision which expresses the limit. The mere had application only to three counties, while distance expressed shows nothing. It does Idaho was a territory. They were subsenot display the necessities of a settler upon quently extended to two other counties, and the public lands. It does not display what were made general in 1887. They were conprotection is needed, not from one sheep or tinued in force by the state Constitution. a few sheep, but from large flocks of sheep, Sweet v. Ballentyne, supra. The court said or the relation of the sheep industry to other in the latter case: industries. These may be the considerations "It is a matter of public history in this that induced the statutes, and we cannot state that conflicts between sheep owners pronounce them insufficient on surmise or and cattle men and settlers were of frequent on the barren letter of the statute. We may occurrence, resulting in violent breaches of refer to Sifers v. Johnson, 7 Idaho, 798, 54 the peace. It is also a matter of public hisL.R.A. 785, 97 Am. St. Rep. 271, 65 Pac. 709, tory of the state that sheep are not only

able to hold their own on the public ranges, CHARLES BOWN and Leander L. Ormsby, with other live stock, but will in the end

Plffs. in Err., drive other stock off the range, and that the herding of sheep upon certain territory

ENOS C. WALLING. is an appropriation of it almost as fully as if it was actually inclosed by fences, and This case is governed by the decision in this is especially true with reference to cat. Bacon v. Walker, ante, p. 289. tle. The legislature did not deem it necessary to prohibit the running at large of

[No. 81.] sheep altogether, recognizing the fact that there are in the state large areas of land un- Argued January 10, 1907. Decided February inhabited, where sheep can range without in

4, 1907. terfering with the health or subsistence of settlers or interrupting the public peace. The fact was also recognized by the legisla: I State of idaho to review a judgment

N to the Supreme ture that, in order to make the settlement of our small isolated valleys possible, it was which affirmed a judgment of the District necessary to provide some protection to the Court for Elmore County, in that state, settler against the innumerable bands of which had in turn affirmed a judgment of the sheep grazing in this state.”

Probate Court in and for that county for the And the court pointed out that it was not recovery of damages sustained by the violathe purpose or effect of the statutes to make tion of a statute prohibiting the grazing of discriminations between sheep owners and sheep on the public domain within 2 miles owners of other kinds of stock, but to secure of a dwelling house. Affirmed. equality of enjoyment and use of the public See same case below, 9 Idaho, 740, 76 Pac. domain to settlers and cattle owners with 318. sheep owners. To defeat the beneficent ob- The facts are stated in the opinion. jects of the statutes, it was said, by holding Messrs. S. M. Stockslager, W. E. Borah, their provisions unconstitutional, would Frank T. Wyman, and John C. Rice for make of the lands of the state "one immense plaintiffs in error. sheep pasture.” And further: "The owners

No counsel for defendant in error. of sheep do not permit them to roam at will, but they are under the immediate control Mr. Justice McKenna delivered the opinion of herders, who have shepherd dogs with of the court: them, and wherever they graze they take This action was brought in the probate full possession of the range as effectually as court in and for Elmore county, state of if the lands were fenced.

It is a Idaho, for the sum of $200 damages sus. matter of common observation and expe- tained by defendant in error by the violarience that sheep eat the herbage closer to tion by plaintiffs in error of $$ 1210, 1211, the ground than cattle or horses do, and, of the Revised Statutes of Idaho. The their hoofs being sharp, they devastate and amended complaint alleged that the offense kill the growing vegetation wherever they was committed by plaintiffs in error by graze for any considerable time. In the wrongfully and negligently permitting and language of one of the witnesses in this case: allowing their sheep to graze within 2 miles 'Just as soon as a band of sheep passes over, of the dwelling house of defendant in error everything disappears, the same as if fire and upon the government lands around his passing over it. It is a part of the public premises. The defense, set up by demurrer, history of this state that the industry of was, as in Bacon v. Walker, 204 U. S. 311, raising cattle has been largely destroyed by 51 L. ed. 499, 27 Sup. Ct. Rep. 289, that those the encroachments of innumerable bands of sections were void under the due process and sheep. Cattle will not graze, and will not equality clauses of the 14th Amendment of thrive, upon lands where sheep are grazed to the Constitution of the United States. The any great extent."

trial court rendered judgment for the defend. These remarks require no addition. They ant in error, which was affirmed by the disexhibit the conditions which existed in the trict court for Elmore county and by the state, the cause and purpose of the statutes

supreme court of the state. 9 Idaho, 740, which are assailed, and vindicate them from 76 Pac. 318.

. the accusation of being an arbitrary and un

The case was argued with Bacon v. Walkreasonable discrimination against the sheep

er, and, on the authority of that case, the industry.

judgment is affirmed. Judgment affirmed.

Mr. Justice Brewer and Mr. Justice Peckham dissent.

Mr. Justice Brewer and Mr. Justice Peckham dissent.

v.

W. A. WALKER, Executor of the Estate of court of appeals (70 C. C. A. 534, 138 Fed. W. H. Ansley, Deceased, Appt., 394) affirming a decree of the United States

court for the central district of Indian terriJ. W. MCLOUD, Trustee, and Francis I. tory, dismissing the appellant's bill on the

Gowen, Receiver of the Choctaw Coal & merits. 5 Ind. Terr. 563, 82 S. W. 908.
Railway Company.

The appellant describes this action "as in Judicial sale-to enforce forfeiture—validity

the nature of ejectment on the equity dock-who may question.

et, 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 assumed to sell.

ings, hereinafter referred to, at the sheriff's

sale. Evidence conclusion. 2. A statement that the principal chief

The facts necessary to state in considering of the Choctaw Nation ratified an illegal the question decided are as follows: The desheriff's sale, giving no facts upon which fendant McLoud is a trustee under a deed the alleged ratification was based, is a con- of trust, which need not now be more parclusion of law, and as such is inadmissible ticularly stated, and defendant Gowen is the in evidence.*

receiver of the Choctaw Coal & Railway Judicial sale—to enforce forfeiture—validity Company, which was a corporation created -ratification.

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 use for all purposes of a railway, but for Indian territory, which sale, because made no other purposes, a right of way 100 feet on credit, was a clear violation of the law in width through the Indian territory for its under which the sheriff assumed to sell, was main line and branch. The 10th section of not accomplished by subsequent legislation the act provided that the company should which appropriates money to defend the Nation in all suits "in any manner relative accept this right of way upon the express to the full and complete execution of the condition that it would neither aid, advise, laws of the Choctaw Nation by the sheriffs nor assist in any effort looking towards the of each and every county in the confiscation changing or extinguishing of the present of the property of noncitizens who are now tenure of the Indians in their land, and occupying lands or buildings, or who may would not attempt to secure from the Inhereafter occupy, not in conformity to the dian nations any further grant of land or laws of the Choctaw Nation."

its occupancy than was provided in the

act; and that any violation of the condition [No. 140.]

mentioned should operate as a forfeiture

of all the rights and privileges of the comArgued and submitted January 8, 1907. De- pany under the act. cided February 4, 1907.

The Choctaw Nation, on October 30, 1888,

passed an act, the lst section of which reads PPEAL from the United States Circuit as follows:

Court of Appeals for the Eighth Circuit "All noncitizens not in the employ of a citi. to review a decree which affirmed a decree zen of the Choctaw Nation, and not authorof the United States Court for the Centralized to live in the Choctaw Nation under the District of Indian Territory, dismissing, on provisions of existing treaty stipulations, the merits, a bill to quiet title to property who have made or bought improvements in judicially sold to enforce a forfeiture to the said Nation, are hereby notified that they Choctaw Nation incurred by the erection by are allowed to sell their so-called improvea railroad company of buildings outside its ments to citizens, and if such noncitizens right of way through the Indian territory. fail to comply with this section, then it Affirmed.

shall be the duty of the sheriffs of the counSee 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 half into the national treasury. Provided, the purchasers, and I at once employed athowever, that, if any such noncitizen fail or torneys to assist the plaintiff, W. H. Ansley, refuse to deliver the possession of such an in obtaining possession of the property sold improvement, he shall be reported by the by me as sheriff. Mosely & Smith, of Deni. sheriff of that county to the principal chief, son, Texas, a firm of lawyers, and Cole & and by said chief to the United States In- Redwine, attorneys at South McAlester, dian agent, to take proper steps for the re- were employed by the chief of the Choctaw moval and prosecution of such offender under Nation to assist the plaintiff in obtaining § 2118 of the Revised Statutes of the United possession of said property. In 1895 the States. Provided, further, that a notice of Choctaw council passed a special act, approsale shall be posted by the sheriff in three priating $1,500 to employ attorneys to reppublic places in his county, which shall be resent the Choctaw Nation and to assist the legal notice to all persons against whom plaintiff in obtaining possession of the propthis law may operate."

erty aforesaid. In 'the December following While the above acts were in force and contracts employing the aforesaid lawyers during the years from 1889 to 1893, both in- were signed by Jeff Gardner, chief of the clusive, it is charged that the company, Choctaw Nation, and all my acts as deputy through its officers and agents, built certain sheriff aforesaid as to the sale and payments buildings at the town of South McAlester, of the purchase price of the aforesaid propIndian territory, outside and beyond its erty were accepted and ratified by the Chocright of way, illegally and in violation of taw Nation.” such acts, and were using the same in be- All that portion of the deposition above half and in the interest of the company. quoted was objected to on the part of the

In 1895 William Ansley, who was a citi- defendants, and the objection was sustained, zen of the Choctaw Nation, and a deputy and that portion was stricken out under the sheriff of the county where the buildings exception of appellant. were erected, wrote to the governor of the The appellant also put in evidence the Choctaw Nation and subsequently made a act of the general council of the Choctaw report in regard to the buildings as being Nation, entitled “An Act Authorizing the erected by the company outside of its right Principal Chief to Employ Counsel," apof way, and that they were controlled by proved October 30, 1895, the 1st section of the company, and he was then directed by which reads as follows: the principal chief of the Choctaw Nation "Section 1. Be it enacted by the general to proceed according to law to sell and discouncil of the Choctaw Nation, assembled: pose of the buildings which had been built that the sum of two thousand dollars ($2,by the company outside its right of way. 000.00) is hereby appropriated out of any The sheriff proceeded to advertise the build money in the national treasury not other. ings for sale according to law, and in June, wise appropriated, and said sum to be placed 1895, sold some of them to the appellant's in-to the credit of the principal chief, and to be testate for $270; and the sheriff ac- by him used for and in behalf of the Choccepted his note as payment, conditioned taw Nation, in the employing of able and that the same should be paid as soon competent counsel to defend the interest of as the purchaser was put into or oth this nation in all suits now pending or that erwise obtained possession. This note has may hereafter come before the United States never been paid. The property purchased courts in any manner relative to the full was, as alleged, of the value of about and complete execution of the laws of the $60,000, and the purchaser was the son of the Choctaw Nation by the sheriffs of each and deputy sheriff who made the sale. The rea- every county in the confiscation of property son the money was not paid at the time of of noncitizens who are now occupying lands the bid, as stated by the bidder Ansley, was or buildings, or who may hereafter occupy, that the property was held by the company, not in conformity to the laws of the Chocand he was informed that it would take liti-taw Nation." gation to obtain possession. Immediately after the sale the sheriff who made it report- Messrs. W. N. Redwine, Chester Howe, ed his action to the chief of the Choctaw George R. Walker, Preslie B. Cole, and J. O. Nation.

Poole for appellant. The appellant, upon the trial, offered in Messrs. John W. McLoud and Charles B. evidence the deposition of the deputy sheriff Stuart for appellees. who made the sale, in relation to this matter, in which he swore that "the chief rati- Mr. Justice Peckham, after making the fied my action as to the sale and payments foregoing statement, delivered the opinion of said property, and instructed me to pro- of the court: ceed at once and employ attorneys to assist The circuit court of appeals decided but me in getting possession of the property for 'one question in this case, and that one relat.

9