Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1902-07-19
NOTED IDAHO SHEEP CASE.
Justice Stcckslager Of State Supreme Court
Holds Law Unconstitutional.
Says Two VILE Limit Law IN Class
LegisIat on aud Therefore
Void,

Justice Stockslager, Of the Idaho su-
preme bench, has filed his dissenting
opinion In the famous two-mile limit
case OF Sweet VS. Ballantyne When
The Majority opinion was filed in this
celebrated sheep case, the fact was
noted that Justice stocksager dis
scented from the conclusions reached,
but his dissenting opinion was not
then written. The dissenting justice Is
vigorous In expressing his dis
agreement with the majority opinion.
lie says In part;
u cannot concur with my associates
In this case, This suit involves the
constitutionality Of section 1921 of the
revised statutes OF the state OF Idaho.
This statute has been upon the statute
books Of the state for number OF
years, and has been practically a dead
letter until within the last two years,
seemingly conceded by bench and bar
TO be void.
Is 1t because the morals Of the COM
munlty are imported that this law
has been resurrected from its sleep Of
years or is it because 1t is deemed an
inconvenience TO other industries to
have sheep grazing upon certain
parts Of the public domain? Is It an
exercise OF the police powers OF the
state 10 say that when the horses eat
grass upon the public domain that IL
has no value and the resident cannot
recover the value thereof, while II
sheep eat It, 1t has a value and the
resident can recover the value of
the same? Undoubtedly residents can
and should recover for trespasses upon
their individual lands, but here is a
statute which gives damages because OF
the eating Of the grass upon the pub
lie domain, provided the eating Is by
sheep Is this a police regulation or
an attempt TO fence off by statute
certain portion Of the public domain
for the convenience of cattle men,
horse men or ranchers, or anyone, ex-
cept owners Of certain kinds OF herds?
The opinion Of the majority OF the
court Is TO the effect that not only may
you prohibit sheep from grazing within
two miles Of residence, but the resi-
dent is entitled TO the value of the grass
which may be destroyed or eaten by
sheep within two miles OF a residence
this grass be growing upon
public domain. II is certainly clear TO
the unparalleled mind that this grass
does not belong TO the resident or to
any other stockmen They have no
property interest in Il whatever. Yet
here Is q statute by which they may
sue and recover the value OF that
which does not belong TO them and in
which they have no interest II be-
ongs TO the government which by H.
'ense all are permitted 10 enjoy; yet
his statute, as now construed per-
nlts parties Ia recover the value there
IF (the grass) although II is not his
md never was, and permits him to re-
over IT, not from any one who may
axe H. but from the sheepmen alone
Any other individual may Craze Il Off,
ut II Off, burn Il off and the resilient
'annot complain, but II n sheep owner
axes Il, Il Immediately has value to
he resident and he Is entitled to re-
over the full price thereof, / do not |
hink that this is In any sense a police |
equation or equal protection under |
he law. II Is the most vicious form OF |
lass legislation and II will not do to |
all such apparent violation OF the |
fundamental rules Of right, legitimate |
Xercisc Of the police power of the |
tate. Classification when made must |
ie based upon some rule of substantial |
Inference which Of themselves natural
y make the distinction.
Il is apparent therefore that II this
tatute is in fact not an exercise Of the
,ollce power OF the state. but an at
empt under the guise Of police power
o unnecessarily interfere with indi-
.idual rights and TO give 10 certain in
iyiduals certain rights and privileges
lot allowed 20 others. Il cannot he sus-
aimed. OR, II by reason OF the statute
quail protection OF the law Is denied
hen It is in violation OF the fourteenth
mendment OF the constitution OF the
United States ami in the language Of
ustice Harlan as just quoted. lis a
alpable invasion OF the rights secured
y the fundamental law"