*330

*331

bringing of any other suit to test the power | Ct. Rep. 427, and previous cases in this court, of the city. therein cited.

The corrected decree was brought before this court in the then pending appeal of the gas company. 194 U. S. 1, 48 L. ed. 851, 24 Sup. Ct. Rep. 520.

After the decision in this court, affirming the decree in the gas company suit, an amended bill was filed by complainant Mills, based solely upon the alleged want of power of the city council of Chicago to pass the ordinance in controversy, which resulted in the decree to which we have referred, enjoining the enforcement of the ordinance, for the reason that the city council of Chicago had no power to pass the same.

As we have said, we think the record establishes that complainant and his counsel honestly believed that such new suit was necessary to protect the stockholders' interests. There is an entire lack of testimony to show any collusive action at the time of the beginning of the suit.

It is true that subsequent events made it to the interest of the company to make common cause with Mills against the enforcement of the ordinance in question, but when he began his suit no proceedings were pending which involved the important question of the power of the city upon which the complainant ultimately prevailed.

It is true that an officer of the company,

who was the next largest stockholder to Mills, contributed to the expenses in this suit; but he testified, and there is nothing in the record to contradict him, that he paid this money from his own resources, without actual repayment, or any understanding with the company that he should be reimbursed.

It is true that Mills' counsel was retained in the suit in this court after the beginning of his suit in Chicago.

Upon the whole record we agree with the circuit court that the testimony does not disclose that the jurisdiction of the Federal court was collusively and fraudulently invoked, and the judgment below will be affirmed.

Dissenting: Mr. Chief Justice Fuller and Mr. Justice Harlan,

(204 U. S. 311) ORLANDO F. BACON, Plff. in Err.,

V.

PAUL H. WALKER et al.
WALKER
Constitutional law-due process of law-re-
strictions on sheep grazing.

1. An owner of sheep is not deprived of his property without due process of law by Idaho Rev. Stat. §§ 1210, 1211, under which damages may be recovered from him for lic domain within 2 miles of a dwelling permitting his sheep to graze on the pubhouse.*

Constitutional law-police power of statelimits.

2. The police power of a state is not confined to the suppression of what is offensive, disorderly, or unsanitary, but embraces regulations designed to promote the public convenience or the general prosperity.t Constitutional law-equal protection of the

laws-discrimination.

3. An arbitrary and unreasonable discrimination against the sheep industry, prohibited by the guaranty in U. S. Const. 14th Amend. of the equal protection of the laws, is not made by Idaho Rev. Stat. §§ 1210, 1211, under which damages may be recovered from one who permits his sheep to graze on the public domain within 2 miles of a dwelling house.

[No. 147.]

It is also true that, in answering to a question put in the language of the ninety- Argued January 10, 1907. Decided Febru

I

ary 4, 1907.

N ERROR to the Supreme Court of the State of Idaho to review a judgment which affirmed a judgment of the District Court for the County of Elmore, in that

fourth rule, as to whether the suit was brought to confer upon the circuit court of the United States jurisdiction in a case of which it would not otherwise have cognizance, complainant answered that he so understood it, but subsequently said that he did not understand the question. This ad-state, which had in turn affirmed a judgment mission, intentionally made, would not necessarily show collusion. But we think it was not the purpose of the complainant to say more than that he expected his action to be brought in the United States court. When a citizen of one state has a cause of action against a citizen of another state which he may prosecute lawfully in a Federal court, and when the suit is free from fraud or collusion, his motive in preferring a Federal tribunal is immaterial. Blair v. Chicago, 201 U. S. 400, 408, 50 L. ed. 801, 805, 26 Sup.

of the Justice's Court of Little Camas Precinct, in such county, for the recovery of damages sustained by the violation of a statute prohibiting the grazing of sheep on the public domain within 2 miles of a dwelling house. Affirmed.

See same case below (Idaho) 81 Pac. 155. The facts are stated in the opinion. Messrs. S. M. Stockslager, W. E. Borah, Frank T. Wyman, and John C. Rice for plaintiff in error.

No counsel for defendants in error.

Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 838. Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 148. ¡Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 688. 27 S. C.-19.

* Mr. Justice McKenna delivered the opinion | right of pasture asserted to exist; the other of the court:

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 recov-framed and shaped to suit its conditions of ery 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 Pac. 155. The case was then brought here.

against the statute the ownership of the soil | and Sweet v. Ballentyne, 8 Idaho, 431, 69 and the familiar principle that such owner- Pac. 995, for a statement of the practical ship carried with it the right to the minerals problem which confronted the legislature beneath and the consequent privilege of min- and upon what considerations it was solved. ing to extract them. The principle was con- We think, therefore, that the statutes of ceded, but it was declared inapplicable, as ig- Idaho are not open to the objection that they noring the peculiar character of the sub-take the property of plaintiff in error withstances-oil and gas-with which the stat-out due process of law, and pass to the con. ute was concerned. It was pointed out that sideration of the charge that they make an those substances, though situated beneath unconstitutional discrimination against the the surface, had no fixed situs, but had the sheep industry. power of self-transmission. No one owner, Counsel extend to this contention the conit was therefore said, could exercise his right ception of the police power which we have to extract from the common reservoir, in just declared to be erroneous, and, enumeratwhich the supply was held without, to an ing the classes discriminated in favor of as extent, diminishing the source of supply to cattle, horses, hogs, and even poultry, puts which all the other owners of the surface to question whether, in herding or grazing had to exercise their rights. The waste of sheep, "there is more danger to the public one owner, it was further said, caused by a health, comfort, security, order, or moralreckless enjoyment of his right, operated up-ity,' than the classes of animals and fowls on the other surface owners. The statute above enumerated." "What," counsel asks, was sustained as a constitutional exercise "are the dangers to the public growing out of the power of the state, on account of the of this industry that do not apply with peculiar nature of the right and the objects equal force to the others? Does the herding upon which it was exerted, for the purpose or grazing of sheep necessarily, and because of protecting all of the collective owners. of its unwarrantable character, work an These cases make it unnecessary to con-injury to the public? And, if dangerous in sider the argument of counsel based upon any degree whatever, are the other classes what they deem to be the limits of the police which are omitted and in effect excepted enpower of a state, and their contention that tirely free from such danger, or do such exthe statute of Idaho transcends those limits. ceptions tend to reduce the general danger?" It is enough to say that they have fallen into Contemplating the law in the aspect exthe error exposed in Chicago, B. & Q. R. Co. pressed in these questions, counsel are unv. Illinois, 200 U. S. 561, 592, 50 L. ed. 596, able to see in it anything but unreasonable 609, 26 Sup. Ct. Rep. 341. In that case we and arbitrary discrimination. This view of rejected the view that the police power can- the power of the state, however, is too narnot be exercised for the general well-being of row. That power is not confined, as we the community. That power, we said, em- have said, to the suppression of what is of braces regulations designed to promote the fensive, disorderly, or unsanitary. It expublic convenience or the general prosperity, tends to so dealing with the conditions as well as regulations designed to promote which exist in the state as to bring out of the public health, the public morals, or the them the greatest welfare of its people. public safety. We do not enter, therefore, This is the principle of the cases which we into the discussion whether the sheep indus- have cited. try is legitimate, and not offensive. Nor need we make extended comment on the 2mile 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, 54 LR.A. 785, 97 Am. St. Rep. 271, 65 Pac. 709,

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

*320

*319

Plffs. in Err.,

V.

(204 U. S. 320)

ENOS C. WALLING.

This case is governed by the decision in Bacon v. Walker, ante, p. 289. [No. 81.]

able to hold their own on the public ranges CHARLES BOWN and Leander L. Ormsby, with other live stock, 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 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 in- Argued January 10, 1907. Decided February terfering with the health or subsistence of settlers or interrupting the public peace. The fact was also recognized by the legisla-State of Idaho to review a judgment ERROR to the Supreme Court of the

ture 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.

4, 1907.

which affirmed a judgment of the District Court for Elmore County, in that state, which had in turn affirmed a judgment of the Probate Court in and for that county for the recovery of damages sustained by the violation of a statute prohibiting the grazing of sheep on the public domain within 2 miles of a dwelling house. Affirmed.

See same case below, 9 Idaho, 740, 76 Pac. 318.

The facts are stated in the opinion. Messrs. S. M. Stockslager, W. E. Borah, Frank T. Wyman, and John C. Rice for plaintiffs in error.

No counsel 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 $200 damages sustained by defendant in error by the viola tion by plaintiffs in error of §§ 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 within 2 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, 204 U. S. 311, 51 L. ed. 499, 27 Sup. Ct. Rep. 289, that those sections were void under the due process and equality clauses of the 14th Amendment of the Constitution of the United States. The trial court rendered judgment for the defend. ant in error, which was affirmed by the district court for Elmore county and by the supreme court of the state. 9 Idaho, 740, 76 Pac. 318.

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

Mr. Justice Brewer and Mr. Justice Peckham dissent.

(204 U. S. 302)

W. A. WALKER, Executor of the Estate of | court of appeals (70 C. C. A. 534, 138 Fed. W. H. Ansley, Deceased, Appt.,

V.

J. W. MCLOUD, Trustee, and Francis I.
Gowen, Receiver of the Choctaw Coal &
Railway Company.

Judicial sale to enforce forfeiture-validity
-who may question.

394) affirming a decree of the United States court for the central district of Indian terri. tory, dismissing the appellant's bill on the merits. 5 Ind. Terr. 563, 82 S. W. 908.

The appellant describes this action "as in the nature of ejectment on the equity dock. et, instituted for the purpose of securing pos1. A railway company and its receiver session of certain buildings and the right to did not, by building outside its right of the occupancy of the land on which they s way through the Indian territory, lose the were erected, and to quiet plaintiff in his right to assert that a sheriff's sale to en- title and possession of the same, and to reforce a forfeiture to the Choctaw Nation, so move the cloud from the title." The appelincurred, was invalid because made on cred-lant is the executor of the will of W. H. it, in clear violation of the Choctaw law of Ansley, who was the purchaser of the buildOctober 30, 1888, under which the sheriff asings, hereinafter referred to, at the sheriff's sumed to sell. sale.

Evidence-conclusion.

The facts necessary to state in considering the question decided are as follows: The defendant McLoud is a trustee under a deed of trust, which need not now be more particularly stated, and defendant Gowen is the receiver of the Choctaw Coal & Railway Company, which was a corporation created under the laws of the state of Minnesota.

3. Ratification by the general council of the Choctaw Nation of a sheriff's sale to By the 2d section of the act of Congress of enforce a forfeiture incurred by a railway February 18, 1888 (25 Stat. at L. 35, chap. company by reason of its erection of build-13), it was granted the right to take and ings outside its right of way through the Indian territory, which sale, because made on credit, was a clear violation of the law under which the sheriff assumed to sell, was not accomplished by subsequent legislation which appropriates money to defend the Nation in all suits "in any manner relative to the full and complete execution of the laws of the Choctaw Nation by the sheriffs of each and every county in the confiscation of the property of noncitizens who are now Occupying lands or buildings, or who may hereafter occupy, not in conformity to the laws of the Choctaw Nation."

[No. 140.]

Argued and submitted January 8, 1907. cided February 4, 1907.

AF

use for all purposes of a railway, but for no other purposes, a right of way 100 feet in width through the Indian territory for its main line and branch. The 10th section of the act provided that the company should accept this right of way upon the express condition that it would neither aid, advise, nor assist in any effort looking towards the changing or extinguishing of the present tenure of the Indians in their land, and would not attempt to secure from the Indian nations any further grant of land or its occupancy than was provided in the act; and that any violation of the condition mentioned should operate as a forfeiture of all the rights and privileges of the comDe-pany under the act.

The Choctaw Nation, on October 30, 1888, passed an act, the 1st section of which reads as follows:

"All noncitizens not in the employ of a citizen of the Choctaw Nation, and not author

PPEAL from the United States Circuit Court of Appeals for the Eighth Circuit to review a decree which affirmed a decree of the United States Court for the Centralized to live in the Choctaw Nation under the District of Indian Territory, dismissing, on the merits, a bill to quiet title to property judicially sold to enforce a forfeiture to the Choctaw Nation incurred by the erection by a railroad company of buildings outside its right of way through the Indian territory. Affirmed.

provisions of existing treaty stipulations, who have made or bought improvements in said Nation, are hereby notified that they are allowed to sell their so-called improvements to citizens, and if such noncitizens fail to comply with this section, then it shall be the duty of the sheriffs of the coun

See same case below, 70 C. C. A. 534, 138 ties in which such improvements may be loFed. 394.

cated to advertise the same for sale in thirty days, and sell the same at the appointed Statement by Mr. Justice Peckham: time to the highest Choctaw citizen bidder, The appellant, who was plaintiff below, for cash; one half of which shall be paid inappeals from the judgment of the circuit' to their respective treasuries, and the other Ed. Note.-For cases in point, seo vol. 20, Cent, Dig. Evidence, § 2150.