
    BACON v. WALKER.
    ERROR TO THE SUPREME COURT OF- THE STATE OP IDAHO.
    No. 147.
    Argued January 10, 1907.
    Decided February 4, 1907.
    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 wliat is offensive,, disorderly or unsanitary, but extends to what is for tile greatest welfare of- the State.
    
      Fixing in á 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 aá 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 Pac. Rep. 155, affirmed.
    The facts are stated in the.opinion.
    
      Mr. S. M'. Stockslager, with whom 'Mr. W. E. Borah, Mr.' Frank' T. Wyman and Mr. John C. Bice were on'the briefs', for plaintiffs m error- in this case and in No. 81 argued simultaneously herewith:
    
    It is'the duty of the.courts.to prevent the exercise of arbitrary and unreasonable discriminations made under the-'color of the police power, though that power from its nature is not susceptible of any exact definition or limitation. It is well settled that the courts will interfere in proper cases. Gulf, Gol. & 3: F. By. v. Ellih, 165 U.'S: 150; Lawton v. Steele, 152. U. S. 133/
    The exercise of the police power must be confined to the imposition of those restrictions and burdens which ,are -necessary to promote the gfeneral welfare, that is, to prevent the infliction of any public -injury. Tiedman on State and Federal Control of Persons Property, 505. The restraint must not' be disproportionate 'to. the danger. Freund on- Police Power,- 13S; 482’ .705.
    
      . With these limitations of the police powqr in view, it will be seen that the-statute in question transcends, the. rightful exercise of that power. The legislature has discriminated .against a. long established and legitimate industry; and has .assumed the right to arbitrarily give to the owner of a dwelling house on ¿ possessory- claim the right to recover damages for herding or grazing sheep upon' the lands of the United States, in which he has no .claim whatever.
    As s’aid in Bedford v. Houtz, 133 Ü. S. 320, there is an. implied license, growing out of' long-established custom to use-the public lands of the United States for the- grazing of domestic animals. See KelXy v. Rhoades, 188 U. S. 1.
    When a calling is not dangerous, it cannot be subjected to any ,police regulation whatever which does not fall within the power of taxation. Freund on Police Power, supra. 'Herding .or grazing of sheep is not dangerous to the public, ^either di"rectly or indirectly
    There is no reason for the arbitraryv limit of two miles, and itfe imposition, is therefore unjust and unlawful. New 'York Sanitary. Utilization Co. v. New- York, 61 N. Y. App. 106r cited in 8 Cyc,j 1061. "
    There is no proper reason for the discrimination between the herding of sheep and the grazing 'or feeding oP cattle, • horses, hogs or.'poultry. This disdrimination is not based,on' any difference which would make the sheep industry amen-¿ble to any restrictions, -Under the police, power, not imposed upon the others named. Mcfiehee on Due Process, of Law, 306; Yick Wo. -v. Hopkins, 118 U.' S. 356.; Flessy v. Ferguson, 163 U.;S/550:-
    There was no" appearance • or brief for defendant in error in this'case or in No. 81.
    
      
       See p. 320, post.
      
    
   Mr. Justice McKenna

delivered the Opinion .of the court.

This action ’ involves the - validity, under the Constitution 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 the 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 agent 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 provision 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 allegéd to-have accrued to them by the violation by plaintiff in- error of the statutes, and obtained judgment for that sum. - Rhe judgment .was successively affirmed by the District Court, for the- county of Elmore and the Supreme Court of the State. 81 Pac. Rep. 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 defendant' 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 Fourteentli 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 in this- court: (1) .that'plaintiff in error has án equal right to. .pasture’with other citizens upon .the public domain,’and that by imposing damages on hiinTor exercising that right he is deprived of t his property^without due process of 'lawf (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. Tlie first denies to the .State any power to limit or regulate" the. right' of ’ pasture asserted to existp the other concedes such power, and attacks it, only as it discriminates against the grazers .of sheep. ..We "speak only of the right lo 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 but of 'consiheration. Hatch v. Reardon, ante, p. 152. But. we may: remark Jhat 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 ownérs from grazing sheep upon their own lands, although situated within two miles .of the dwelling of another.” Is it true, therefore-, even if if--be conceded that there is right or license to pasture-upon the public .domain, that the State may not.limit of regulate the right or licence?' Defendants in error háye-an equal,right with plaintiff in error, and the State has ah interest in the accommodation of those rights.' It may even have an interest above such accommodation. .T-helaws 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 inthe State, might otherwise have been considered as private. So also in Strickley v. Highland Boy Cold Mining Company, 200 U. S. 527. In the first "case there was’ a recognition of tlie-\power of the State to deal with and. accommodate its laws to the .conditions of an arid country and the necessity of irrigation to its development. The' second was the recogriition 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,tin Offield v. The 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 sitüated beneajdi the surface,, had no 'fixed situs, but liad the power of self-transmission. No one owner, it was therefore sáid,. 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' hkd to exercise ‘their rights., The wásté 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, fbr .the purpose of protecting all "of. the collective 'owners.

These cases make it unnecessary to consider the argutnent of counsel based upon what they deem to be the limits of the •police power of a State j and their contention that the statute of'Idaho transcends -thos,e limits. It-is enough to say that they have fallen into the error exposed in Chicago, Burlington & Quincy Railway Company v. Drainage Commissioners, 200 U. S. 561, 592. In that case we rejected the view that'the police power cannot be exercised for the general well-being of the community. That power, we said, embraces regulations designed to promote the public convenience or the gen-; eral 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 doés not display what .protection is needed, not-from one sheep or a few sheep, but fromlarge 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, 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 ask-, “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 arid 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 ünable 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 tire 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 historyof tire State that sheep are not only able to hold their own on the public ranges with other 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 inclosed by fences, and this is especially true with reference to cattle. The legislature did not deem it necessary to forbid the running at large of sheep altogether, recognizing the facf that there are in the State large areas of land uninhabited, where sheep can range \vithout 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 sñiall isolated valleys possible, it was necessary to provide some protectioip-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- discrimination 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, áre 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 inatter 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 whereyér 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 if.' It is a part of the public-history of this State that the industry- of raising cattle hás been largely destroyed by the encroachments of innumerable bands of sheep. Cattle will not graze, and will not thrive, upon lairds where.'sheep are grazed to any great extent.”

These remarks' require no -addition. They exhibit the con-v ditions' which existed in the State, the cause and purpose of the statutes ydiich are a'ssailed, and vindicate them from, the, • accusation- of being an. arbitrary and' unreasonable discrimination against the sheep industry.

' Judgment affirmed. -

Mr. Justice Brewer and Alit. Justice Peckham- dissent.  