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first exhaust the land to which the subsequent lien did not extend.-Smith's Exr. v. May, Ky., 70 S. W. Rep. 199.

112. MASTER AND SERVANT- Concurrent Negligence.The negligence of a fellow-servant does not relieve the master from liability for an injury which would not have happened had not the master been negligent. - Loveless v. Standard Gold Min. Co., Ga., 42 S. E. Rep. 741.

113. MASTER AND SERVANT- Railroad Employee. - In an action for death of railroad employee, boarding moving hand car, evidence held admissible showing custom to stop or slow up to permit persons to get aboard.-Galveston, H. & S. A. Ry. Co. v. Puente, Tex., 70 S. W. Rep. 362.

114. MECHANICS' LIENS - Liability of Owner. - Under Acts 1895, p. 225, § 18, an owner paying money to a con. tractor on his personal account before a materialman was paid in full is liable to the materialman for the sum so paid. Barton v. Grand Lodge I. O. O. F., Ark., 70 S. W. Rep. 305.

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116. MORTGAGES-Attachment.-The transfer of a debtor's right of redemption held to be the consideration for an obligation executed by the transferee to the debtor's wife, and being for the husband's benefit, subject to attachment by his creditors.-Potter v. Skiles, Ky., 70 S. W. Rep. 301.

117. MORTGAGES · Confirmation. - A confirmation of a note and deed of trust held to have rendered them valid, though they may originally have been forgeries or ob. tained while the maker was insane. - Harris v. Kiel, Tex., 70 8. W. Rep. 226.

118. MORTGAGES — Fixtures.- Where at the time of the execution of a mortgage it was understood that certain articles were not included in the mortgage, such agreement is controlling. — Richards v. Gilbert, Ga., 42 S. E. Rep. 715.

119. MORTGAGES- Homestead.-A receiver will not ordinarily be appointed to take possession of a mortgaged homestead pending foreclosure. Sanford v. Anderson, Neb., 92 N. W. Rep. 152.

120. MUNICIPAL CORPORATIONS-Assignment of Funds. -That a city had exceeded its debt limit held to preclude the payment of claims from funds appropriated by ordinance therefor, on the theory that the appropriation constituted an assignment of the fund. - Helena Waterworks Co. v. City of Helena, Mont., 70 Pac. Rep. 513.

121. MUNICIPAL CORPORATIONS Eminent Domain.When a city takes possession of property for street purposes, it cannot allege its own irregularities as a reason for not paying the damages awarded. — City of Omaha v. Clarke, Neb., 92 N. W. Rep. 146.

122. MUNICIPAL CORPORATIONS - -Street Assessments.In proceedings by a contractor to enforce an improvement lien, the city was not liable for interest or costs until the apportionment was corrected, whether the contract was made under Act April 1, 1886, or under Act July 1, 1898. - City of Louisville v. Selvage, Ky., 70 S. W. Rep. 276.

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123. MUNICIPAL CORPORATIONS-Welfare Clause of Ordinance. Under the welfare clause, a municipal corporation cannot prohibit one from carrying on a lawful avocation on Christmas. Watson v. Town of Thomson, Ga., 42 S. E. Rep. 747.

124. NAMES — Idem Sonans. On demurrer to a plea of misnomer in a criminal case, the court may decide that the names "Witt" and "Wid" are idem sonans. — Veul v. State, Ga., 42 S. E. Rep. 705.

125. NEGLIGENCE

Wrongful Death. -A charge given in an action for death of railroad employee held not bad as failing to limit investigations of jury to the specific acts of negligence alleged.-Galveston, H. & S. A. Ry. Co. v. Karrer, Tex., 70 S. W. Rep. 328.

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126. NEW TRIAL Time of Hearing. Motion for new trial, continued until the first week of court in another county, if not presented until a week thereafter, without any order of continuance taken, cannot be heard.Whelchel v. Poor, Ga., 42 8. E. Rep. 740.

127. OBSCENITY-Public Place.-To constitute a notorious act of public indecency, within the meaning of Pen. Code, § 390, it is essential that the act should have been committed where it could have been seen by more than one person.-Lockhart v. State, Ga., 42 8. E. Rep. 787.

128. PARENT AND CHILD — Necessaries. — Arrangement with third person held not to excuse parent from liability for necessaries furnished to child by person ignorant of the arrangement.-Hazard v. Taylor, 78 N. Y. Supp. 828. 129. PARTITION - Missing Heir. A missing heir, not shown to have died intestate, without issue, and unmarried, held a necessary party to a suit for partition, under Rev. St. 1999, § 4376.- Johnson v. Johnson, Mo., 70 S. W. Rep. 241.

130. PARTNERSHIP - Breach by One Partner.-Partners may agree that, if one wilfully fails to perform his agreed part, allowance should be made to the other therefor.Miller v. Hale, Mo., 70 S. W. Rep. 258.

131. PARTNERSHIP-Compensation for Winding up Affairs. Neither partner of a dissolved firm is entitled to compensation for winding up partnership affairs, unless it is expressly agreed otherwise or can be fairly implied from the circumstances. - Lamb v. Wilson, Neb., 92 N. W. Rep. 167.

132. PARTNERSHIP -Law Firm. - Member of firm for practice of law held bound by act of other member in indorsing note with firm name. - Mechanics' & Traders' Bank v. . Oppenheim, 78 N. Y. Supp. 825. 133. POSSESSORY WARRANT-Recovery of Personalty.One who intrusts personal property to an agent, with authority to use it, may, on refusal to return it, maintain proceedings by possessory warrant to recover possession under Civ. Code, § 4799 et seq. Sheriff v. Thompson, Ga., 42 S. E. Rep. 738.

134. PRINCIPAL AND AGENT · Knowledge of Agent.Where the agent of a creditor knows that the debtor is insolvent when he executes a mortgage to the agent's principal, the latter is affected with the knowledge of the agent.-Babbitt v. Kelly, Mo., 70 S. W. Rep. 384.

135. PUBLIC LANDS-Proof of Occupancy.-An applicant for the purchase of school land cannot question the sufficiency of the proof of occupancy of a prior pnrchaser thereof after the commissioner has issued his certificate. -Harper v. Dodd, Tex., 70 S. W. Rep. 223.

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136. RAILROADS - Flying Switches. The practice of making "flying switches" held not to constitute negligence as to employees. Carr v. St. Clair Tunnel Co., Mich., 92 N. W. Rep. 110.

137. RECEIVERS - Right to Sue.-A receiver of a foreign corporation, appointed by the courts of the state of the corporation's domicile, held entitled to sue to recover a debt due the corporation by a resident of Kentucky in the Kentucky courts. Hallain v. Ashford, Ky., 70 8. W. Rep. 197.

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139. RELEASE -Construction of Contract.-Payment by defendant to plaintiffs of a liquidated sum unconditionally due is not a sufficient consideration to support a release of any claim for unliquidated damages. — Harrison v. Iron Works Co., Mo., 70 8. W. Rep. 261. 140. REMOVAL OF CAUSES - Separable Controversy.For purpose of removal to federal court, in suit to fore. close, there being parties against whom personal judg. ments were asked, held, that there was not a separable controversy between plaintiff and the owner of the land. -United States Mortg. Co. v. McClure, Oreg., 70 Pac. Rep. 543.

141. REPLEVIN-Exempt Property.-Under the express provisions of Code, § 4163, property cannot be replevied from an officer holding it under execution, unless exempt.-Young v. Evans, Iowa, 92 N. W. Rep. 111.

142. REPLEVIN-Stolen Property. The rules of law with reference to the presumption arising from the recent possession of stolen property held to apply in a certain civil suit to recover possession of the property.Cotner v. McCullough, Tex., 70 S. W. Rep. 344.

143. SALES-Breach of Warranty.- Where a vendee retains the property sold and sues for breach of warranty, he cannot recover the entire price, unless the article is worthless.-Small v. Bartlett, Mo., 70 S. W. Rep. 393.

144. SALES-Breach of Warranty.- Where an electrical motor was sold on a warranty of quality, and was wholly worthless, the purchaser was entitled to recover its entire value. - Westinghouse Electric & Mfg. Co. v. Troell, Tex., 70 S. W. Rep. 324.

145. SALES Fraud. Where goods are sold upon a credit obtained by material fraudulent representations of the vendee, the vendor may rescind the sale and replevy the goods within a reasonable time after the discovery of the fraud.-Pekin Plow Co. v. Wilson, Neb., 92 N. W. Rep. 176.

146. SALES-Ignoring Issues.-Where,in an action for the price, counterclaims for deceit and breach of warranty were separately pleaded, an instruction withdrawing the issue of deceit held erroneous.-Swink v. Anthony, Mo., 70 S. W. Rep. 272.

147. SHIPPING-Contributory Negligence.-In an action for injuries caused by the breaking of the fender rope, as defendant's steamer was approaching the dock, plaint. iff's contributory negligence held, under the evidence, a question for the jury.-Butterfield v. Arnold, Mich., 92 N. W. Rep. 97.

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149. STATES-Claim Against State. Where a claim against the state is allowed in part, and the claimant accepts a warrant therefor, it is a waiver of the right to appeal.-Weston v. Falk, Neb., 92 N. W. Rep. 204.

150. STATUTES-Implied Repeal. A general law will not be construed to repeal an existing law, unless it is manifest from the terms of the general law that such was the intention of the law-making body. — Davis v. Dougherty County, Ga., 42 S. E. Rep. 764.

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151. STREET RAILROADS Liability of Contractor. Contractor, under a rapid transit act, must pay the cost of constructing in the subways ducts for electricity. People v. Grout. 78 N. Y. SUDD. 758.

152. SUBSCRIPTION-Parol Evidence-An instruct on, in an action on a subscription, that plaintiff must establish his claim by a preponderance of evidence, and, if he does so, he can recover on the subscription, is proper. — Mef. ford v. Sell, Neb., 92 N. W. Rep. 148.

153. TAXATION-Enforcement- Where the statute provides a remedy for the collection of taxes under given circumstances, that remedy is exclusive of all others.Chamberlain v. Woolsey, Neb., 92 N. W. Rep. 181.

154. TAXATION-Growing Crops.-Alfalfa held not exempt from taxation "as growing crop," under Pol. Code, § 3607.-Miller v. Kern County, Cal., 70 Pac. Rep. 549.

155. TAXATION- Illegal Purpose. - Tax levied for an illegal purpose, paid under protest, may be recovered.Chicago, B. & Q. R. Co. v. Lincoln County, Neb., 92 N. W. Rep. 208.

156. TAXATION - Unknown Heirs. - A judgment for taxes against the "unknown heirs" of a former owner is void as to the owner under grant from the deceased, and who had no notice of the suit. - Green v. Robertson, Tex., 70 S. W. Rep. 345.

157. TAXATION-Void Assessment.-On the death of the owner of real estate, it descends to his heirs, and the assessment of the real estate in the name of the deceased

person is void.-Stewart v. Board of Com'rs of Bernalillo County, N. Mex., 70 Pac. Rep. 574.

158. TELEGRAPHS AND TELEPHONES-Delivery of Telegram. A telegraph company, delivering a message to an agent of the corporation in whose care it was directed, held not required to inform such agent of its contents.Lefler v. Western Union Tel. Co., N. Car., 42 S. E. Rep. 819.

159. TENANCY IN COMMON-Mutual Rights.- Co-tenants refusing to join in defense of suit against one of their number for cutting timber on the land, held not entitled to share in the benefits resulting from a compromise of the suit by the defendant.-Asher v. Howard, Ky., 70 S. W. Rep. 277.

160. TRIAL-Burden of Proof. In an action for goods alleged to have been sold and delivered to a partnership, held not erroneous as casting the burden of proof on defendant.-Lindell v. Deere Wells, Co., Neb., 92 N. W. Rep. 164.

161. TRIAL-Expurgation of Testimony.-The remedy of a party desiring the expurgation of certain testimony is by a request for an instruction that the jury disregard it, and not by motion to strike it out. - McCoy v. Munro, 78 N. Y. Supp. 849.

162. TROVER AND CONVERSION-Value of Property.Where, in conversion, there is no evidence as to the value of the goods to sustain the verdict, judgment based thereon will be reversed. - Liebman v. Abramson, 78 N. Y. Supp. 881.

163. USURY Notes.-A note binding the maker to pay $235 for a loan of $200 held to be a contract stipulating for usurious interest, within Rev. St. art. 3104, defining usurious contract. Rosetti v. Lozano, Tex., 70 S. W. Rep. 204.

164. VENDOR AND PURCHASER-Bona Fide Holder.There is no presumption that a second grantee of land previously conveyed to another, who failed to record his deed, was a bona fide purchaser.-Green v. Robertson, Tex., 70 S. W. Rep. 345.

165. VENDOR AND PURCHASER-Specific Performance.— Where not otherwise expressed, it is to be presumed that land is to be conveyed within a reasonable time, and that the conveyance and payment are concurrent.-Coleridge Creamery Co. v. Jenkins, Neb., 92 N. W. Rep. 123.

166. WAREHOUSEMEN-Action by Bailor.-A warehouseman, sued for the value of goods deposited, cannot defend by merely showing that the goods were replevied.— Glass v. Hauser, 78 N. Y. Supp. 830.

167. WATERS AND WATER COURSES-Right to Maintain Dam. It is error for the court to charge that, in order to acquire prescriptive title to the right to maintain a dam, it must have been kept at a certain place and height for over 20 years.-Welchel v. Gainesville & D. Electric Ry. Co, Ga., 42 S. E. Rep. 776.

168. WEAPONS-Accidental Shooting.-Where a boy 13 years of age pointed a pistol at plaintiff, in violation of Sanb. & B. Ann. St. §§ 4391, 4297, and the pistol was accidently discharged, defendant was liable for compensatory damages therefor.-Horton v. Wylie, Wis., 92 N. W Rep. 245.

169. WITNESSES-Impeachment.-A single witness may be introduced to impeach another witness.-Bradshaw v. State, Tex, 70 S. W. Rep. 215.

170. WITNESSES-Impeachment.-Cross-examination of accused for purposes of impeachment, as to matters not testified to by him in chief, held erroneous.-State v. Deal, Oreg., 70 Pac. Rep. 534.

171. WITNESSES-Impeachment.-On impeachment of a witness by contradictory statements, his attention must be called to the conversation, and also to the time, place, and person to whom he is supposed to have made such statements.-Dunafon v. Barber, Neb., 92 N. W. Rep. 198. 172. WITNESSES-Injury to Employee.-One testifying only in regard to the machine at which the accident occurred cannot be asked on cross-examination whether there had been other accidents in the mill.-Duntley v. Inman Houlsen & Co., Oreg., 70 Pac. Rep. 529.

Central Law Journal.

ST. LOUIS, MO. MARCH 20, 1903.

CIVIL LIABILITY OF UNINCORPORATED LABOR UNIONS AND THE MEMBERS THEREOF.

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A question of law of growing interest and importance is involved in the recent case of Taff Vale Railway Company v. The Amalgamated Society of Railway Servants, in which case a verdict of £27,000 has just been rendered against an unincorporated labor union. The House of Lords (1901), A. C. 426, had reversed the ruling of the Court of Appeal that no such action would lie and held that a trade union could be sued for an actionable wrong by its registered name, whether incorporated or not. Lord MacNaghten intimated that it did not even have to be registered. He said: "Suppose there were a manufactory belonging to a co-operative society, unregistered and composed of a great number of persons, and suppose such a manufactory were poisoning a stream, or fouling the atmosphere to the injury of its neighbors, might it do so with impunity? It seems to me that this is a reduction to absurdity. I should be sorry to think that the law was so powerless; and, therefore, it seems to me that there would be no difficulty in suing a trade union in a proper case if it be sued in a representative action by persons who fairly and properly represent it."

Farewell, J., whose opinion in this case is adopted by the house of lords, said that counsel were unable to cite any reported case in which this question had ever been argued or decided. Speaking to the merits of the case Justice Farwell says: "If the contention of the defendant society were well founded, the legislature has authorized the creation of numerous bodies of men capable of owning great wealth and of acting by agents with absolutely no responsibility for the wrongs that they may do to other persons by the use of that wealth and the employment of these agents. They would be at liberty to disseminate libels broadcast, or to hire men to reproduce the rattening methods that disgraced Sheffield thirty or forty years ago, and their victims would have nothing to look to for damages, but the pockets of the individuals, usually men of small means, who acted

as their agents. If, therefore, I am right in concluding that the society is liable in tort, the action must be against them in their registered name. The acts complained of are the acts of the association. They are acts done by their agents in the course of the management and direction of a strike; the undertaking such management and direction is one of the main objects of the society, and is perfectly lawful; but the society, in undertaking such management and direction, undertook also the responsibility for the manner in which the strike was carried out. The fact that no action could be brought at law or in equity to compel the society to refrain from interfering in the strike is immaterial; it is not a question of the rights of members of the society, but of the wrong done to persons outside the society. For such wrongs, arising as they do from the wrongful conduct of the society in the course of managing a strike which is a lawful object of the society, the defendant society is, in my opinion, liable."

The position taken by the American authorities on this question, while no case has yet appeared involving the identical question just discussed, strongly points in the same direction. Thus in Carew v. Rutherford, 106 Mass. 1, the plaintiff, a contractor, sued a stonemason's union for a recovery of five hundred dollars which said union had compelled him to pay for sending part of his stone work to be cut by non-union laborers. The president of the association told him he would call all the stonemasons out unless he paid the fine. On the contractor's refusal to pay, he did call them out. The contractor, however, not being able to procure sufficient men to complete his contract on time was obliged to pay the fine in order to complete his undertaking under the contract. In an action to recover the sum thus paid a judgment was rendered for the plaintiff and sustained by the supreme court. The opinion of Chapman, J., in this case is very strong and should be published throughout the length and breadth of the land. He says:

"We have no doubt that a conspiracy against a mechanic, who is under the necessity of employing workmen in order to carry on his business, to obtain a sum of money from him, which he is under no legal liability to pay, by inducing his workmen to leave him, and by deterring others from entering into his

employment, or by the threatening to do this, so that he is induced to pay the money demanded, under a reasonable apprehension that he cannot carry on his business without yielding to the illegal demand, is an illegal, if not criminal, conspiracy; that the acts done under it are illegal; and that the money thus obtained may be recovered back, and, if the parties succeed in injuring his business, they are liable to pay all the damages thus done to him. It is a species of annoyance and extortion which the common-law has never tolerated."

How clear and unequivocal is this language, and yet how few courts apparently have the courage to apply the law as thus declared. We have known trial judges to almost whimper on the bench when such a case came before them. Some judges, however, put on a bold and blustering front and deny that a labor union violates any law by calling its men out of a certain employment unless the employer in such case complies with certain demands made upon him. They argue that to deny a labor union such right would be an infringement of the liberty of the men composing the association. Listen again to the clear answer of Chapman, J., to this argument.

"Freedom," say, Justice Chapman, "is the policy of this country. But freedom does not imply a right in one person, either alone or in combination with others, to disturb or annoy another, either directly or indirectly, in his lawful business or occupation, or to threaten him with annoyances or injury, for the sake of compelling him to buy his peace. The acts alleged and proved in this case are peculiarly offensive to the free principles which prevail in this country; and if such practices could enjoy impunity, they would tend to establish a tyranny of irresponsible persons over labor and mechanical business which would be extremely injurious to both."

Other authorities in this country are rapidly evidencing an appreciation of the vast importance of this question, and gradually awakening to the fact that to permit certain classes of voluntary unincorporated and irresponsible associations to exercise such power as will enable them to hold every business man or contractor by the throat, and, if he refuses to meet their demands, be they just or exorbitant, to hold the whole country by the throat until the influence of public opin

ion also shall be brought to bear upon the refractory contractors, would be a calamity that could not be tolerated in a free country. Trusts and labor unions are both institutions that are contrary to all principles of law and liberty, especially when they combine to crush or injure the man who opposes them. Thus, in the recent case of Moores v. Bricklayers' Union, 23 Cinc. L. Bul. 48, 10 Ohio Dec. 665, the plaintiffs, dealers in lime, sued the defendants for issuing an order to contractors that they would not let their men work on any job where lime was used which had been purchased from plaintiff, because the latter had sold lime to certain non-union contractors against their orders. The court held that an action would lie against the members of the union for thus illegally and maliciously conspiring to injure the trade of plaintiff. In Lueke v. Clothing Cutters' Assembly, 77 Md. 396, 39 Am. St. Rep. 421, the court held that where a non-union employee is discharged in consequence of a threat from a labor organization that in case he is retained in the service it will be compelled to notify all the labor organizations of the city that the business house of the employer is a non-union one, and thus subject him to great loss, an action will lie by the non-union employee for the damage he has sustained in consequence of such discharge. Just the opposite conclusion was reached by the appellate division of the New York Supreme Court in the case of National Protective Association v. Cummings, 53 N. Y. (App. Div.) 227. This case, however, is evidently overruled by the case of Curran v. Galen, 152 N. Y. 33, 46 N. E. Rep. 297, 37 L. R. A. 802, where the court sustained the right of an employee to sue a labor union for procuring his discharge. In Massachusetts, also, the courts hold with the Maryland case that an employee has a right of action against a labor union for maliciously procuring his discharge. In England, however, after much controversy among the judges, the question may be considered settled for the present as opposed to the right of recovery by the employee in such case. Allen v. Flood (1898), A. C. 1.

It is quite evident from these authorities that a new question is agitating the country, -the right of courts and legislatures to restrain the growing and dangerous power exercised by what are known as labor unions,

and the responsibility of such organizations, whether incorporated or not, to a suit for damages. In New York the Code authorizes an action against an unincorporated labor union or other association by service on its president or treasurer. But in any case, the right to sue a labor union for any actionable wrong committed by it, is now completely recognized. While we sympathize with the merchant and with the laboring man who, together, are striving to develop the industries of the country, we cannot too severely deprecate the attempts of either of them to exercise a tyranny over the other, and by unfair combination and conspiracy to coerce the other, against his will, to comply with any demands the former may see fit to make. The law must certainly look with disfavor upon all attempts of that character and must follow them with its severest penalities.

NOTES OF IMPORTANT DECISIONS.

CONSTITUTIONAL LAW-RIGHT TO PROHIBIT

THE

GRAZING OF SHEEP ON THE PUBLIC DOMAIN.-The police power is evidently the most convenient reason upon which to justify a violation of the constitution by the legislature. From the wide extent to which this power has been stretched by the courts it would appear that not even the most sacred provisions of our constitutions, either state or federal are safe from this insidious destroyer. In the recent case, for instance, of Sweet v. Ballentine, 69 Pac. Rep. 995, the Supreme Court of Idaho upheld the validity of a state statute prohibiting the grazing and herding of sheep on the public domain within two miles of inhabited dwellings. This was in affirmance of its former decision in the case of Sifers v. Johnson, 65 Pac. Rep. 709, 54 L. R. A. 785. While we doubt the constitutionality of such legislation, at least as far as the federal constitution is concerned, we recognize the plausible reasons assigned by the trial court for the expediency of such legislation. The court says:

"It is a matter of public history in this state that conflicts between sheep owners and cattlemen 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 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 forbid the running at large of sheep altogether, recognizing the fact that there are in the state large areas of land un

inhabited, 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. Settlers need the use of the range in their immediate

vicinity for their domestic animals. Families

living on small farms must of necessity keep some live stock. A milch cow is a necessity to the isolated family living on a small farm miles from market. Recognizing that, if sheep were permitted to graze at will in the settled portions of the state, settlers could not go into the small valleys and build up homes, the legislature passed the statutes in question in order to encourage the settlement of wild lands in this state. Moreover, the said statutes were passed to promote good order, and preserve the public peace, and to prevent those recurring conflicts between settlers and the owners and herders of sheep so common in the past. Viewed as a measure to preserve good order and peace, to prevent conflicts which violate the peace, to protect the health and comfort of citizens of the state, and to promote and encourage the settlement and development of the state, the said statutes are wise and beneficient, and must be so recognized by all persons who are acquainted with the conditions in this state, past and present. Nullify the statutes in question, or emasculate their provisions by holding that they are unconstitutional, or that a settler cannot recover damages by reason of sheep destroying all the forage grasses around him, and the beneficient objects of the statutes are defeated; and the result will be, in the end, that isolated settlements must be abandoned, and the land in the state become one immense sheep pasture, to the detriment of the farming and mining interests; and settlement of the public lands will be retarded; the building up of homes on the public domain will almost stop."

While the argument of the court thus stated shows the practical expediency of such legislation to some extent it does not justify it under the provisions of the United States constitution. That instrument guarantees to every one the equal protection of the law, and that neither his liberty nor his property shall be taken away without a due process of law. It would be a mockery and legal travesty to say that a state, in the face of the fourteenth amendment, could deny to sheep raisers the right to graze their stock on the public domain of the United States while raisers of other kinds of cattle were not so denied. Sheep raising is as much a legitimate business as cattle raising, and the public domain of the United States is open to both of them without restriction, and neither of them can possibly obtain a superior right therein without violating the constitutional right of the other. Stockslager, J., dissenting in this case, thus vigorously expresses himself:

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