US SUPREME COURT DECISIONS

A law of Idaho (Rev.Codes, 1908, § 6872), applicable to the public domain, provides that any person having charge of sheep who allows them to graze on any range previously occupied by cattle is guilty of a misdemeanor, and that priority of possessory right between cattle and sheep owners to any range is to be determined by the priority in the usual and customary use of it, as a cattle or sheep range. Experience, inducing this and similar laws, had, says the supreme court of the state, shown that use of a range by sheep unfits it for cattle, but not vice versa, and that segregation is essential to protect the cattle industry and prevent serious breaches of the peace between cattlemen and sheepmen.

Held:

(1) That the police power of the state extends over the federal public domain at least where there is no legislation by Congress on the subject.

(2) That, in segregating sheep from cattle, the Idaho law was primarily designed to preserve the peace, and is not an unreasonable or arbitrary exercise of the police power.

(3) That it does not discriminate arbitrarily and deny equal protection in giving preference to cattle owners in prior occupancy without giving a like preference to sheep owners in prior occupancy.

(4) That, as a criminal law, it is not wanting in due process, in failing to provide for the ascertainment of the boundaries of a "range" and for determining what length of time is necessary to constitute a prior occupation a "usual" one within its meaning.

(5) That it is not in conflict with the clause in § 1 of the "act to prevent unlawful occupancy of the public lands," c. 149, 23 Stat. 321, which prohibits the assertion of a right to the exclusive use and occupancy of any part of the public lands without claim or color of title made or acquired in good faith, etc., since that clause, as is shown by an examination of the entire act and its history, prohibits merely the assertion of an exclusive right to use or occupation by force, intimidation, or by what would be equivalent in effect to an enclosure, whereas the state statute makes no grant, and, insofar as this exclusion of sheep from certain ranges approaches a grant, chanrobles.com-red

Page 246 U. S. 344

the result is incidental only, and it operates in favor of horse owners as well as cattle owners.

(6) That the exclusion of sheep owners under certain circumstances does not interfere with any rights of a citizen of the United States, Congress not having conferred on citizens the right to graze stock on the public lands, their use for that purpose being merely by sufferance.

27 Idaho 797 affirmed.

The case is stated in the opinion.