Dissenting. — I cannot concur with mv associates in this case. This suit involves the constitutionality *442of section 1311 of the Revised Statutes of the state of Idaho. This statute has been upon the statute books of the state for a number of years, and has been practically a dead letter until within the last two years, seemingly conceded by bench and bar to be void. The only theory upon which it is assumed to sustain this exceptional statute is that it is a legitimate exercise of the police power of the state. It is assumed that it was passed as a police regulation. Within certain lines and limitations, the police power of the state may undoubtedly control the affairs within the state in the interests of the peace, morals, good order, and welfare of the citizens thereof. But it has Rover been held, and it would be not only a new, but a dangerous, precedent to hold, that, under the pretense of police regulation, you could give to one citizen an advantage over anothei . the mere matter of the use of the public domain, or in the mere matter of general privileges and advantages.
In the case of New Orleans Gaslight Co. v. Louisiana Light etc. Mfg. Co., 115 U. S. 650, 6 Sup. Ct. Rep. 353, 29 L. ed. 516, Mr. Justice Harlan, said: “The definition of police power must be taken subject to the conditions that the state cannot in its exercise, for any purpose whatever, encroach upon the powers of the general government, or rights granted or secured by the supreme law of the land.” ' Again, it is said in the case of Ex parte Whitwell, 98 Cal. 73, 35 Am. St. Rep. 152, 32 Pac. 871, 19 L. R. A: 737: “If a statute purporting to have been enacted to protect: the public health, public morals, or the public safety has no real or substantial relation to those things, or is a palpable invasion of rights secured by fundamental law, it is the -duty of the courts to so adjudge, and thereby give effect to the constitution.” Quoting again from the supreme court of the Hnited States, in Lawton v. Steele, 151 U. S. 133, 14 Sup. Ct. Rep. 499, 38 L. ed. 385, it said: “To justify the statute in thus interposing its authority in behalf of the public, it must appear that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonable, and necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under, *443the guise of protecting the public interest, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police power is not final or conclusive, but is subject to the supervision of the courts.”
It is apparent, therefore, that if this statute is in fact not an exercise of the police power of the state, but an attempt, under the guise of police power, to unnecessarily interfere with individual rights, and to give to certain individuals certain rights and privileges not allowed to others, it cannot be sustained. Or if, by reason of the statute, equal protection of the law is denied, then it is in violation of the fourteenth amendment of the constitution of the United States, and in the language of Justice Harlan, just quoted, “is a palpable invasion of the rights secured by the fundamental law.”
Is it because the morals of the community are imperiled that this law has been resurrected from its sleep of years, or is it because it is deemed an inconvenience to other industries to have sheep grazing upon certain parts of the public domain? Ts it an exercise of the police powers' of the state to say that, when the horses eat the grass upon the public domain, it has no value, and the resident cannot recover the value thereof, wdiile, if sheep eat it, it has a value, and the resident can recover the value of the same? Undoubtedly, residents can and should recover for trespasses upon their individual lands, but here is a statute which gives damages because of the eating of the grass upon the public domain, provided the eating is by sheep. Is this a police regulation, or an attempt to fence off by statute a certain portion of the public domain for the con-, venience of cattlemen, horsemen, or ranchers, or anyone except owners of certaiu kinds of herds?
The opinion of the majority of the court is to the effect that not only may you prohibit sheep from grazing within two miles of a residence, but the resident is entitled to the value of the grass which may be destroyed or eaten by sheep within two miles of a residence, although this grass be growing upon public domain. It is certainly clear to the unprejudiced mind that *444this grass does not belong to the resident, or to any other stock men. They have no property interest in it whatever. Yet here is a statute by which they may sue and recover the value of that which does not belong to them, and in which they have no interest. It belongs to the government, which, by license, all are permitted to enjoy; yet this statute, as now construed, permits parties to recover the value thereof (the grass), although it is' not his, and never was, and permits him to recover it, not from anyone who may take it, but from the sheep-men alone. Any other individual may graze it off, cut it off, burn it off, and the resident cannot complain; but, if a sheep owner takes it, it immediately has a value to the resident, and he is entitled to recover the full price thereof. I do not think that this is in any sense a police regulation, or equal protection under the law. It is the most vicious form of class legislation, and it will not do to call such apparent violation of the fundamental rules of right a legitimate exercise of the police power of the state. Classifications, when made, must be based upon some rule of substantial difference which of itself naturally makes the distinction.
In a very recent decision of the supreme court of the United States (Railroad Co. v. Ellis 165 U. S. 150, 17 Sup. Ct. Rep. 255, 41 L. ed. 666), it is said: “Classifications cannot be made arbitrarily. The statute cannot say that all white men shall be subject to the payment of attorney’s fees of parties successfully suing them, and all black men not. It must not say that all men of a certain age shall be alone thus subjected, or all men possessed of wealth. These are distinctions which do not furnish any proper basis for the attempted classification. That must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily, and without such basis. No duty rests more impressively upon the court than the enforcement of this constitutional provision intended to secure that equality of rights which is the foundation of our government.” To the same effect, see Cooley’s Constitutional Limitations, sec. 391; People v. Gillson, 109 N. Y. 389, 4 Am. St. Rep. 465, 17 N. E. 343.
*445Now, let us concede, for the sake of argument, and to meet one statement in the majority opinion, that the smell of sheep might be offensive to some people, and that it might be said that their grazing near a resident would for other reasons be offensive. All this may be granted; yet where is the distinction so far as the value of the grass is concerned? The legislature might say that, by reason of their smell, they should not come within a certain distance of a residence; but this statute goes further, and says that they cannot only not come there, but that if they eat the grass while there, the resident owner may recover the value thereof. Now, as a matter of police regulation, how can the value of the grass be fixed or taken away because of the offensive odor of the animal which eats it? We point to these things for the purpose of showing that this statute is not designed simply to protect those who might deem it offensive to have sheep near them, but is designed simply to give an advantage upon public domain. It is an effort at class legislation, and, if it can be established with reference to sheep-men, there is no reason why the legislature cannot proceed further, and proscribe any particular industry that it sees fit to proscribe. I am clearly of the opinion that such law is unconstitutional and void. I am further of the opinion that, in any view of the law, it was never the design of the legislature to provide, as an element of damages under this law, the value of the grass upon the public domain, and that such law does not permit the recovery, as an element of damages, of the value of the grass which belongs' to the government.
There is another feature of this case, which it is not necessary to discuss at length; but it clearly appears in the record that, prior to the time that the sheep of the defendant went upon the ground, other sheep had, the same season, and shortly before, crossed over the same ground. Witness for the plaintiff testified that, by reason of their passing over the ground, the grass is entirely destroyed; yet this plaintiff is permitted to recover, from the owner of the band of sheep which came after the destruction, for the value of the grass. In other words, this law, which is exceptional and unusual in itself, is so construed as to permit of the most pronounced injustice being done *446the sheep owner, as it permits the recovery of damages whether his herd did the damage or not, and for grass which does not belong to the man who is bringing the suit.