Messrs. S. M. Atockslager, 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 violation 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 [204 U.S. 320, 321] 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 defendant 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.