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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 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. 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

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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 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 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 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."

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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.

BOWN v. WALLING.

ERROR TO THE SUPREME COURT OF THE STATE OF IDAHO.

No. 81. Argued January 10, 1907.-Decided February 4, 1907.

Decided on authority of Bacon v. Walker, ante, p. 311.

9 Idaho, 740, 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. Rice were on the brief, for plaintiff in error.1

There was no appearance or brief filed for defendant in error.

MR. JUSTICE MCKENNA delivered the opinion of the court.

This action was brought in the Probate Court in and for Elmore County, State of Idaho, for the sum of two hundred dollars' damages sustained by defendant in error by the violation by plaintiffs in error of sections 1210, 1211 of the Revised Statutes of Idaho. The amended complaint alleged that the offense was committed by plaintiffs in error by wrongfully and negligently permitting and allowing their sheep to graze

1 For abstract of argument see ante, p. 312.

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within two miles of the dwelling house of defendant in error and upon the Government lands around his premises. The defense, set up by demurrer, was, as in Bacon v. Walker, ante, p. 311, that those sections were void under the due process and equality clauses of the Fourteenth Amendment of the Constitution of the United States. The trial court rendered judgment for the defendant in error, which was affirmed by the District Court for Elmore County and by the Supreme Court of the State. 9 Idaho, 740.

The case was argued with Bacon v. Walker et al., and on the authority of that case the judgment is

Affirmed.

MR. JUSTICE BREWER and MR, JUSTICE PECKHAM dissent.

CITY OF CHICAGO v. MILLS.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 286. Submitted December 21, 1906.-Decided February 4, 1907.

Although the certificate of the Circuit Court may not state exactly how the jurisdictional question certified arose, this court can ascertain it from the record together with the opinion of the court below made a part thereof.

The jurisdiction of the Circuit Court must be determined with reference to the attitude of the case at the date of the filing of the bill. When a citizen of one State has a cause of action against a citizen of another

State which he may lawfully prosecute in a Federal court, his motive in preferring a Federal tribunal, in the absence of fraud and collusion, is immaterial.

If it does not appear that there was any collusion within the meaning of the ninety-fourth rule in equity for the purpose of conferring jurisdiction, not otherwise existing, on the Circuit Court of the United States, that court does not lose its jurisdiction of a suit brought by a non-resident stockholder, after request to and refusal by the corporation, to enjoin VOL. CCIV-21

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the enforcement of an ordinance against the corporation, and of which the court would not have had jurisdiction had the corporation been complainant, because subsequent events make it to the interest of the corporation and its officers to make common cause with the complainant stockholder. An admission by complainant that he expected the action to be brought in the United States court does not necessarily show collusion to confer jurisdiction.

In this case held on the facts that no collusion between the stockholder bringing the suit and the corporation refusing to bring it was shown that deprived the Circuit Court of jurisdiction thereover.

143 Fed. Rep. 430 affirmed.

THE facts are stated in the opinion.

Mr. James Hamilton Lewis, Mr. Henry M. Ashton and Mr. David K. Tone for appellant:

The undisputed evidence, in this record shows that this suit was collusively brought by Mr. Mills at the instigation of and for the benefit of the People's Gas Light and Coke Company, for the purpose of conferring jurisdiction upon a Federal court in a case where such jurisdiction was otherwise wanting.

When it is sought to determine whether a suit is collusively brought for the purpose of conferring jurisdiction upon a Federal court, the question of motive becomes an important

one.

Here there was every motive for instituting a collusive suit, for the conduct of the People's Company, and its officers and directors, prior to the filing of the bill of complaint by Mills, clearly demonstrated that an unsuccessful effort had already been made by them to confer upon a Federal court jurisdiction of the litigation in question.

The fact that in a case where the question of conferring jurisdiction upon a Federal court by getting up a collusive controversy is involved, the burden of proof is upon the complainant, is established by the well-considered case of Lehigh Mining & Manufacturing Co. v. Kelly, 160 U. S. 337.

There is no force in the contention that there was a real controversy between Mr. Mills and the directors of the People's Company when the bill in the cause was filed.

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