Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1897-07-15
OF INrEgGsT ro SHEEP MEN.



Decision Given In Morgan com =
Case.
Judge KolnDp Of tho Second judicial
district has rendered decision In the
case OF w. ii. Spnckmsn, r, I'D super.
visor OF the Peterson precinct, Morga n
county, We the Deseret Live Stock
company, which VIII pr0vs OF Interest
TO Every sheep man in the State, and
possibly states adjacent. The quea.
ton involved was, has road super.
visor the right TO enforce the pBy ment
OF damages for damage doue by driv-
log herd Of sheep or cattle over q
public highway constructed On hill
size, by rolling rocks upon the uigL-
way aud breaking down Its banks.
Judge II IIapp Jecidts That the ros1
supervisor has no such authority.
This case ~ OF peculiar interest In
view OF the Tact that IA similar case
which arose In Summit county some
years since, VIE: Bnm vs. Jones,
was taken to tue supreme court Of the
U nitei States and uecided last Fcbru.
AIRY agslnst the eheepmen. In that
case, however, the only question
raised ana decided was the c0nstitu-
tionsliEy OF the Jaw, tho court boiling
1t to be cOnstltu lonal.
The defendants in this case admitted
the validity OF the law, out deuieu TIE
right OF the supervisor TO bring the
action, claiming that the statute DID
not authorizes u supervisor to bring the
action.
The court In rendering lite decision
says 1t Ia admitted that the road in
question lie a public highway, and that
plaintiff was tho supervisor OF the dis.
trio, In which the road Is situated; anu
that the DEFENDANT drove u herd Of
sheep over the road, which was con.
etrucled on the hillside anu damaged
the same in the amount OF sl400, by
destroying its bank anu rolling rocks
in anu upon the highway.
The defendaut c0ntended that the
amount recoverable 10 not pen atty,
and that therefore the plaintiff cannot
recover, and is not auth urized 10 bring
the action.
The provisions OF the statute under
which the action Ia brought arc rs
follows: section 20SS, which reads os
follows: "fhai any person W o drives
herd OF sheep over the public high
way where such highway is con-
structed on the hillside, shall be liable
for all damages dome by such animals
In, destroying the banks or rolling
rocks into or upon such highway"
Sec. 2092 rsads, "All penalties and
forieitures under this act and not
otherwise provided Tor must be- recov-
cred by the supervisor OF the rsspec.
tive road dlstriote."
The question then TO determine was,
does the damages provided Tor osnsti-
lutte penalty such ss authorized the
rosd supervisIr under section 2092 to
recover? The language OF the stat.
ute IL that the defendant "ahall be
liable Tor all damages done by saii
snimals," Damages are defined 10 he
the indemnity recoverable by the
person who is Injured IN his properly
from the act or default OF another,
Tho term penalty involves the idea OF
punishment which the law inf els for
Its violation, = peeuuiary mulct or fine
not necessarily measured by the
amount OF damages done.
"ln order TO constitute q penalty
there must be something more
than mere compensatory damages
for the iujury actually inf lctsd."
The court says further, II find cases
where simple compensation was held
10 DO o penalty, unless II Involve
Way VI Iuulbu-
ment. In our highway act the words
damage done,' damages sustsine1'
and damages suffered' are used re-
peatedly, out II woulu hardly be con-
tended ss liability to private owners
that tho provisions are penal.
"Stc. 2087 must be read as though It
said damages done TO the owner OF the
property injured, and that In my opin-
ion does not express any penal pTovi.
sion, end as the supervisor is only au.
thotlZsd TO recover penalties, l am
compelled to hold that he cannot
maiDtain this sction, and that 1t musl
therefore be dismissed"
County Attorney Williams and A.
J. Weber appeared for the plaintiff and
Moyle, Zane & Costigan for the de-
fendsnt company.
Court Notes.
Ray Richardson filed a suit for di.
vorce sgslnst her husband Jerry NJ,
thu 0rbtri .ilaNrs,K