The police power of a state embraces regulations designed to
promote the public convenience or the general prosperity as well as
those to promote public health, morals or safety; it is not
confined to the suppression of what is offensive, disorderly or
unsanitary, but extends to what is for the greatest welfare of the
state.
Page 204 U. S. 312
Fixing in a police regulation, otherwise valid, the distance
from habitations within which an occupation cannot be carried on is
a legislative act with which the courts can only interfere in a
case clearly of abuse of power.
A classification in grazing countries of sheep, as distinguished
from other cattle, is not unreasonable and arbitrary in a
regulation regarding the use of public lands within the meaning of
the equal protection clause of the Fourteenth Amendment.
Sections 1210, 1211, Revised Statutes of Idaho, prohibiting the
herding and grazing of sheep on or within two miles of land or
processory claims of persons other than the owner of the sheep,
having been construed by the highest court of that state as not
affecting the right of the owner of sheep to graze them on his own
lands but only on the public domain, is not unconstitutional as
depriving the owner of sheep of his property without due process of
law because he cannot pasture them on public domain, or as an
arbitrary and unreasonable discrimination against the owners of
sheep, as distinguished from other cattle, and is a proper and
reasonable exercise of the police power of the state.
81 P. 155 affirmed.
The facts are stated in the opinion.
Page 204 U. S. 313
MR. JUSTICE McKENNA delivered the opinion of the Court.
This action involves the validity, under the Constitution
Page 204 U. S. 314
of the United States, of the following sections of the Revised
Statutes of the State of Idaho:
"SEC. 1210. It is not lawful for any person owning or having
charge of sheep to herd the same, or permit them to be herded, on
the land or possessory claims of other persons, or to herd the same
or permit them to graze within two miles of the dwelling house of
the owner or owners of said possessory claim."
"SEC. 1211. The owner or the agents of such owner of sheep
violating the provisions of the last section, on complaint of the
party or parties injured, before any justice of the peace for the
precinct where either of the interested parties may reside, is
liable to the party injured for all damages sustained, and, if the
trespass be repeated, is liable to the party injured for the second
and every subsequent offense in double the amount of damages
sustained."
Defendants in error, under the provisions of those sections,
brought this action in the justice's court of Little Camas
Precinct, Elmore County, State of Idaho, for the recovery of $100
damages, alleged to have accrued to them by the violation by
plaintiff in error of the statutes, and obtained judgment for that
sum. The judgment was successively affirmed by the District Court
for the County of Elmore, and the supreme court of the state. 81 P.
155. The case was then brought here.
It was alleged in the complaint of defendants in error, who were
plaintiffs in the trial court, that plaintiff in error caused his
sheep, about three thousand in number, to be herded upon the public
lands within two miles of the dwelling house of defendants in
error. The answer set up that the complaint did "not state a cause
of action other than the violation of sections 1210 and 1211 of the
Revised Statutes of the State of Idaho," and that said sections
were in violation of the Fourteenth Amendment of the Constitution
of the United States. The specifications of the grounds of the
unconstitutionality of those sections were in the courts below, and
are,
Page 204 U. S. 315
in this Court (1) that plaintiff in error has an equal right to
pasture with other citizens upon the public domain, and that, by
imposing damages on him for exercising that right, he is deprived
of his property without due process of law; (2) that a
discrimination is arbitrarily and unlawfully made by the statutes
between citizens engaged in sheep grazing on the public domain and
citizens engaged in grazing other classes of stock.
These grounds do not entirely depend upon the same
considerations. The first denies to the state any power to limit or
regulate the right of pasture asserted to exist; the other concedes
such power, and attacks it only as it discriminates against the
grazers of sheep. We speak only of the right to pasture, because
plaintiff in error does not show that he is the owner of the land
upon which his sheep grazed, and what rights owners of land may
have to attack the statute we put out of consideration.
Hatch
v. Reardon, ante, p.
204 U. S. 152. But
we may remark that the Supreme Court of Idaho said in
Sweet v.
Ballentyne, 8 Idaho, 431, 440:
"These statutes [sections 1210, 1211, quoted above] were not
intended to prevent owners from grazing sheep upon their own lands,
although situated within two miles of the dwelling of another."
Is it true, therefore, even if it be conceded that there is
right or license to pasture upon the public domain, that the state
may not limit or regulate the right or license? Defendants in error
have an equal right with plaintiff in error, and the state has an
interest in the accommodation of those rights. It may even have an
interest above such accommodation. The laws and policy of a state
may be framed and shaped to suit its conditions of climate and
soil. Illustrations of this power are afforded by recent decisions
of this Court. In
Clark v. Nash, 198 U.
S. 361, a use of property was declared to be public
which, independent of the conditions existing in the state, might
otherwise have been considered as private. So also in
Strickley
v. Highland Boy Gold Mining Company, 200 U.
S. 527. In the first case, there was a recognition of
the power of the state to deal with and accommodate its laws to
the
Page 204 U. S. 316
conditions of an arid country and the necessity of irrigation to
its development. The second was the recognition of the power of the
state to work out from the conditions existing in a mining region
the largest welfare of its inhabitants. And again, in
Offield
v. New York, New Haven & Hartford Railroad Company,
203 U. S. 372, the
principle of those cases was affirmed and applied to conditions
entirely dissimilar, and it was declared that it was competent for
a state to provide for the compulsory transfer of shares of stock
in a corporation, the ownership of which stood in the way of the
increase of means of transportation, and the public benefit which
would result from that. Of pertinent significance is the case of
Ohio Oil Company v. Indiana, 177 U.
S. 190. There, a statute of the State of Indiana was
attacked which regulated the sinking, maintenance, use, and
operation of natural gas and oil wells. The object of the statute
was to prevent the waste of gas. The defendants in the action
asserted against the statute the ownership of the soil and the
familiar principle that such ownership carried with it the right to
the minerals beneath and the consequent privilege of mining to
extract them. The principle was conceded, but it was declared
inapplicable as ignoring the peculiar character of the substances
-- oil and gas -- with which the statute was concerned. It was
pointed out that those substances, though situated beneath the
surface, had no fixed situs, but had the power of
self-transmission. No one owner, it was therefore said, could
exercise his right to extract from the common reservoir in which
the supply was held without to an extent diminishing the source of
supply to which all the other owners of the surface had to exercise
their rights. The waste of one owner, it was further said, caused
by a reckless enjoyment of his right, operated upon the other
surface owners. The statute was sustained as a constitutional
exercise of the power of the state, on account of the peculiar
nature of the right and the objects upon which it was exerted, for
the purpose of protecting all of the collective owners.
Page 204 U. S. 317
These cases make it unnecessary to consider the argument of
counsel based upon what they deem to be the limits of the police
power of a state, and their contention that the statute of Idaho
transcends those limits. It is enough to say that they have fallen
into the error exposed in
Chicago, Burlington & Quincy
Railway Company v. Illinois, 200 U. S. 561,
200 U. S. 592.
In that case, we rejected the view that the police power cannot be
exercised for the general wellbeing of the community. That power,
we said, embraces regulations designed to promote the public
convenience or the general prosperity, as well as regulations
designed to promote the public health, the public morals, or the
public safety. We do not enter therefore into the discussion
whether the sheep industry is legitimate and not offensive. Nor
need we make extended comment on the two-mile limit. The selection
of some limit is a legislative power, and it is only against the
abuse of the power, if at all, that the courts may interpose. But
the abuse must be shown. It is not shown by quoting the provision
which expresses the limit. The mere distance expressed shows
nothing. It does not display the necessities of a settler upon the
public lands. It does not display what protection is needed not
from one sheep or a few sheep, but from large flocks of sheep, or
the relation of the sheep industry to other industries. These may
be the considerations that induced the statutes, and we cannot
pronounce them insufficient on surmise or on the barren letter of
the statute. We may refer to
Sifers v. Johnson, 7 Idaho
798, and
Sweet v. Ballentyne, 8 Idaho 431, for a statement
of the practical problem which confronted the legislature and upon
what considerations it was solved. We think, therefore, that the
statutes of Idaho are not open to the objection that they take the
property of plaintiff in error without due process of law, and pass
to the consideration of the charge that they make an
unconstitutional discrimination against the sheep industry.
Counsel extend to this contention the conception of the police
power which we have just declared to be erroneous, and
Page 204 U. S. 318
enumerating the classes discriminated in favor of as cattle,
horses, hogs, and even poultry puts to question whether, in herding
or grazing sheep, "there is more danger to the public
health,
comfort, security, order, or morality' than the classes of animals
and fowls above enumerated." "What," counsel asks,
"are the dangers to the public growing out of this industry that
do not apply with equal force to the others? Does the herding or
grazing of sheep necessarily, and because of its unwarrantable
character, work an injury to the public? And, if dangerous in any
degree whatever, are the other classes which are omitted and in
effect excepted entirely free from such danger, or do such
exceptions tend to reduce the general danger?"
Contemplating the law in the aspect expressed in these
questions, counsel are unable to see in it anything but
unreasonable and arbitrary discrimination. This view of the power
of the state, however, is too narrow. That power is not confined,
as we have said, to the suppression of what is offensive,
disorderly, or unsanitary. It extends to so dealing with the
conditions which exist in the state as to bring out of them the
greatest welfare of its people. This is the principle of the cases
which we have cited.
But the statutes have justification on the grounds which
plaintiff in error urges as determinative, and on those grounds
they were sustained by the supreme court of the state. They were
deliberate enactments, made necessary by and addressed to the
conditions which existed. They first (1875) had application only to
three counties, while Idaho was a territory. They were subsequently
extended to two other counties, and were made general in 1887. They
were continued in force by the state constitution.
Sweet v.
Ballentyne, supra. The court said in the latter case:
"It is a matter of public history in this state that conflicts
between sheep owners and cattle men and settlers were of frequent
occurrence, resulting in violent breaches of the peace. It is also
a matter of public history of the state that sheep are not only
able to hold their own on the public ranges with other
Page 204 U. S. 319
livestock, but will in the end drive other stock off the range,
and that the herding of sheep upon certain territory is an
appropriation of it almost as fully as if it was actually enclosed
by fences, and this is especially true with reference to cattle.
The legislature did not deem it necessary to prohibit the running
at large of sheep altogether, recognizing the fact that there are
in the state large areas of land uninhabited, where sheep can range
without interfering with the health or subsistence of settlers or
interrupting the public peace. The fact was also recognized by the
legislature that, in order to make the settlement of our small
isolated valleys possible, it was necessary to provide some
protection to the settler against the innumerable bands of sheep
grazing in this state."
And the court pointed out that it was not the purpose or effect
of the statutes to make discriminations between sheep owners and
owners of other kinds of stock, but to secure equality of enjoyment
and use of the public domain to settlers and cattle owners with
sheep owners. To defeat the beneficent objects of the statutes, it
was said, by holding their provisions unconstitutional would make
of the lands of the state "one immense sheep pasture." And
further:
"The owners of sheep do not permit them to roam at will, but
they are under the immediate control of herders, who have shepherd
dogs with them, and wherever they graze, they take full possession
of the range as effectually as if the lands were fenced. . . . It
is a matter of common observation and experience that sheep eat the
herbage closer to the ground than cattle or horses do, and, their
hoofs being sharp, they devastate and kill the growing vegetation
wherever they graze for any considerable time. In the language of
one of the witnesses in this case: 'Just as soon as a band of sheep
passes over, everything disappears, the same as if fire passing
over it.' It is a part of the public history of this state that the
industry of raising cattle has been largely destroyed by the
encroachments of innumerable bands of sheep. Cattle will not graze,
and will not thrive, upon lands where sheep are grazed to any great
extent."
These remarks require no addition. They exhibit the conditions
which existed in the state, the cause and purpose of the statutes
which are assailed, and vindicate them from the accusation of being
an arbitrary and unreasonable discrimination against the sheep
industry.
Judgment affirmed.
MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissent. dissent.