The river press. [volume] (Fort Benton, Mont.) 1880-current, 1907-08-14
CONCERNING ESTRAYS.

60 ma
The unconstitutional ity of the estray
law was announced by the supreme
court just previous to its recent ad.
iournment. In a stock.raising state
the efficacy of an estray law is a mat
ter of considerable concern, and yet
we appear to be without one. AS is
usual, this law comes to grief princi.
pally because of the ineficiency of the
person who drafted the bill and the
other persons-legtslators by courtesy
who passed it aud presumed to make
it a law. 1t attempts the almost i'm
possible in legislative liter AZURE. The
grouping of two subjects under one
title. At least that is what the 81.
preme court finds fault with in this
case, and there is q bit OF fne.spun
logic m%arshaled in support of the
opinion, which We are not prepared to
fout.
The opinion states that the estray
law by its title assumes to define the
word 'estray," and then provides q
penalty for the taking up, using, or
disposing of "estrays" upon the pub
lie domain. Attention is invited to
''the public domain for thereto
hangs a sequence of much import.
The opinion then goes on to say that
the idea Of "public domain pre-.
cludes the idea OF private ownership,
hence the Inconsistency of the act with
reference to the constitutional provi.
sion referred to. That is what we call
''ine-spun' but at the same time we
do not undertake to say that it is not
sound reasoning The fault of com
bining two subjects under one title is
not quite clear to US: that may be the
fault OF the court reporter who ''di.
gested' the opinion for the newspa.
pers, but there is a possible ground
for contention on the proposition that
private property cannot exist on ''the
public domain" The public domain
is everybody's domain and under one
school of equity it ought to follow
that everything in the nature of prop.
erty found there is ~everybody's prop.
erty. Perhaps that is not what the
supreme court means, but as it admits
a ray of light on an opinion that is
otherwise obscure, we assume it to be
the meat of the opinion.
The practice of branding range ami.
mails whereby only can the ownership
OF estrays be established, is borrowed
from the numbering industry which
certainly followed the practice OF
"marking' the logs cast into the
'drive,' long before the range indus
try begun. With the lumberman the
waterways that float his "cut' to
market correspond to the ''public do
main of the western ranges, and it is
the belief Of this newspaper that there
would be a red-headed uprising
against any supreme court-say in
Minnesota, for iustance-that declared
as a matter of law hat a lumberman
parted with the right to reclaim his
logs, marked with his mark, when he
rolled them into the water. And yet
hat is practically the drift of estray
law decision. But no, not that eX act.
sy. The decision probably declares
that there is no estray law, because
the leui atOra attampta1 tn monkev
with estrays aud the public domain at
one and the sam time.
The last estray law, the one that is
now knocked out, was framed to meet
the cases of certain half-honest per.
sons who would not dare to steal a
range animal-horse particularly
but would find him to be ''estray' I'M
der peculiar circumstances, and in a
friendly way take him up and work,
or ride, the davlights out of him while
''holding' him for an owner. The
law question made it expensive and
even disagreeable for any one to do
this, and the effect of it has been APP
parent in the large number of estray
horses that are now advertised in
comparison to what there used to be.
1t was a good law and will undoubted
ly continue to be observed by the
shameless ones who pay no attention
to the dictum Of the supreme court
Yellowstone Journal.