Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1890-03-27
THE NEW ESTR4Y LAW.


IN our issue Of yesterday we pub
iished the estray law passed at the
late session Of the Legislature. As
many Of our readers are aware, the
former statute upon the same sub
ject had, by the courts, been de-
clared invalid in several of its vital
provisions, and the territory was
virtually without legislation in re-
gard to estrays and trespassing ami
mals. There was urgent demand
for a law upon the subject, and the
Governor referred in his message to
this great need. Early in the ses-
sion n bill was introduced into and
passed by the Council, intended to
supply the want but the House re-
jected it with the understanding
that certain OF its members would
draw q better one. The matter was
deferred until the last day Of the
session, when the bill which became
the present law was intr- dueed and
passed.
The aim OF this statute Is In the
direction ot justice, and hence, 10
that exteRt, It is a commendable
measure. What il is intended to
accomplish ought to he done, and
while We are reluctant TO raise OBJ
jections TO q law the design Of
which is beHefcent, We deem It
proper 10 call attention TO some pro-
visions contained in this one which
are Of doubtful validity. We re-
produce sections 2aud 8:
''Sec. . All horses, mules and neat
cattle, regardless Of age, excep, suck
ing calves and colts. found running
at large. on which there is no brand.
and all such animals branded, the
owner Of which. after reasonable
search, cannot be found. and which
have been running at large on any
range N this Territory for one year or
more, and any hogs running at large
on the premises Of any person not the
'wner, are hereby declared to be es-
trays"
''Sec. 3. Il is hereby made the duty
Of the constable OF any precinc. to
take up any estrays in said precinct
and aiier advertising them giving
therein general descripnon) for ten
days, he shall sell the same at public
auction TO the highest bidder for cash.
and after dedneting costs and expenses
OF keeping ard sale shall deposit the
balance Of the proceeds OF sale with
The Justice OF the peace. 10 be by him
disposed OF as in case OF the sale OF
animals for damages, as hereinafter
provided
These two sections are Of q very |
sweeping nature. They define what
are estrays, and make 1t the duty Of
the constable to round up, advertise
aud sell, unless sooner claimed. all
estrays in his precinct If an animal
has been running on the range for |
one year, and its owner, after reason
able search, cannot he found, 1t Is
an estray. How is II 10 be determined |
whether given animal has run on |
The range one year? How lie it 10 be
lscertained that the owner cannot be
Iound? Who lie required to search
or him? On whose, or en- what
ihowing Is the conclusion to be
cached that the facts exist which
make an estray of any given ami
nal? If those facts exist, the con-
table is, under section 8, derelict in
lis duty if he fails to take charge Of
mi advertise the animal. Ifthose
acts 10 not exist he is guilty of a
-iolation OF law should he take
barge of and sell an animal, sup
osing 1t to be an estray, and is liable
Or damages.
These questions Of fact can be de-
ernined only by judicial officer {
I'D a judicial proceeding. A con-
able is nota Judicial officer, has no
Ight to exercise judicial functions,
or pass upon questions Of law and (
let in a manner or proceeding in /
diving the ownership Of property.