ON REHEARING.
SULLIVAN, J.— A petition for a rehearing has been -filed in this case, and it is therein contended that as the raising of sheep is a legitimate and lawful industry, and not criminal in its nature, the legislature cannot, under the guise of police power, regulate and control it so as necessarily to interfere with its pursuit, unless such interference and control are absolutely essential to the peace and good order of the community. And it is conceded that the legislature may go to almost any extent in dealing with persons who are doing things which are nuisances per se, or pursuing avocations hurtful or criminal per se. And it is contended that the proof must be much stronger, the necessity much more clearly established, in the one case than in the other. Counsel also contends that there is nothing to disclose a necessity for controlling the sheep business, in any manner, by police regulations; that this attempt to regulate and control it — burden it by the law under consideration — is simply an effort on the part of the legislature to give a part of the public domain to settlers, or to other classes of stockmen, under the guise of police regulations.
We cannot agree with those contentions. That sheep-raising is a legitimate industry in this state is not questioned and it is well known that it is one of the great industries of the state.'1 From the information that we have, we think that there are at the present time 3,000,000 of sheep now feeding in this state. Blaine county alone has over 600,000 sheep assessed within its borders this year (1902). A large amount of capital is invested in that business, and the sheep owners of the state are thorl oughly organized, energetic, and very watchful of their interests in this state. But it is too well settled to require citation of authorities that, in every state of this Union, the keeping and management of livestock is under police regulation. (2 Tiedeman’s State and Federal Control of Persons and Property, 838.) That authority states, on page 838, as follows: “The *447dash, of interests between stoekraising and farming c-alls for the interference of the state by the institution of police regulations, and whether the regulations shall subordinate the stock-raising interest to that of farming, or vice versa, .... is a matter for the legislative discretion, and is not a judicial question.”
The history of this state for the past twenty-five years, shows that the encroachment of the sheep industry on that of the cattle industry has virtually driven the cattle industry, as it was conducted fifteen or twenty years ago, out of the state; that frequent conflicts occurred between sheep and cattle men, resulting in serious breaches of the peace, in which many human lives have been lost. Many of those occurred prior to the admission of Idaho to the Union of states, in 1890, since which time the population has more than doubled, and much of the public land within the state has been settled upon, and is now occupied by small farmers, each usually holding one hundred and sixty acres of land. And the clash now is between the sheep-men and the farmer, and, as stated by the authority above cited, the keeping of livestock is under police regulation, and when there is a clash of interests, as between stockmen and farmers, it is within the discretion of the legislature to subordinate the sheep industry to that of farming, as lias been done in this state. As to which one of the two industries shall he made subordinate is a matter of legislative discretion, and is not a judicial question. The legislature has virtually declared, in the sections of the statutes under consideration, chat the sheep industry shall be subordinate to that of farming, and, in case of hardship to that industry under the law, the legislature only has the power to remedy'the matter.
This court cannot set up its judgment, against that of the legislature, as to the wisdom of the enactment of said law. The legislature no doubt did, as it had a right to do, consider the peace, quiet, and comfort of the small farmers of the state, and legislate in their interest, as against the rights of sheep owners to graze and herd their large flocks of sheep in close proximity to the farmer’s habitation. The clouds of dust raised by large flocks of sheep in and about, one’s residence in this desert conn*448try are unquestionably offensive to the senses, and might be injurious to health. And as to the contention that the legislature cannot, under the guise of police power, regulate and control a legitimate industry unless it is absolutely essential to the peace and good order of the community, we would say that where there is an irreconcilable difference (conflicts all over the state) between two legitimate industries; where the peace and good order of the community has often been broken by clashes between representatives of such industries; and where the history of the state clearly shows that the comfort of many of the residents of the state is interfered with by herding and grazing flocks of sheep near their habitations — those facts are proof sufficient to show that it is absolutely essential to the peace, good order, and comfort of many of the residents of the state for the legislature to regulate such industry. That being true, then as to whether police regulations shall be passed is a matter for legislative discretion, and is not a judicial question.
If there be hardship or injustice in the law, it must be relieved by legislative enactment. While, personally, I think the limit of two miles in each direction from an inhabited dwelling, as provided by said law, is greater than is absolutely necessary to protect the inhabitant, I cannot, for that reason, set my opinion against that of the legislature, and hold the law unconstitutional, as it is settled by competent authority that, in such a case, it is a matter of legislative discretion, and is not a judicial question.
As to said act being class or special legislation, I do not think there is anything in that contention. It is well settled that a law is not special in character “if all persons subject to it are treated alike, under similar circumstances and conditions, in respect both of the privileges conferred and liabilities imposed.” (Missouri Pac. Ry. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. Rep. 1161, 32 L. ed. 107.) It cannot be seriously contended that said law is class legislation because it does not include cattle and horses, as well as sheep, as the habits and nature of the animals, their effects on the land on which they graze, are not the same. However, the law under consideration treats *449all sheep-men alike, under similar circumstances and conditions, in respect both of the privileges conferred and the liabilities imposed, and. is, for that reason, not class legislation— no more than the law not requiring one to fence against hogs is. class legislation against the hog grower; nor does that deny him equal protection under the law. The statute in question affords the same protection to the sheep raiser as it does to other citizens. It protects him against the nuisance of having lands around his dwelling used as herding or grazing grounds for sheep. That statute is general in its terms, and affords protection for all and to all alike.
The giving of damages for the destruction of grasses on the public domain, by sheep within two miles of the dwelling of a settler, is not based upon the idea that the settler has a vested property right in such grasses. The settler is permitted, under the law, to recover such damages as a penalty against the petitioner, because the latter has done that which the law forbids and makes unlawful. The legislature saw fit, in its wisdom, to fix the amount of damages thus sustained as the measure of the penalty for such violation, and also gave the penalty to the party injured, instead of turning it to the general school fund, or otherwise applying it. Instead of fixing the penalty at any certain sum, as the legislature had a right to do, and might have done, the penalty was fixed at the actual damage sustained by the citizen, and such penalty was given to the injured party instead of turning it into the county or state treasury. It often happens that the informant in a penal or quasi penal action is given part or all of a certain sum assessed as penalty against the transgressor. For instance, we have a statute which makes it unlawful for a public officer to charge or collect illegal fees, and provides that the informant shall, on conviction of the officer, recover from the latter $500. And we have other statutes that provide, on conviction of the offender, the informant shall receive one-half of the fine imposed. Such laws are held valid, and not in conflict with any of the provisions of the fourteenth amendment of the federal constitution in any respect, and do not deprive one of propertv *450without due process of law, and do not deny to anyone the equal protection of the law.
Said statute was not framed on the idea that the settler has a vested right in the grasses growing on the public domain, but upon the theory that one who violated said law should pay as a penalty for his unlawful act all damges that a settler had sustained by reason of such violation. And if, by reason of such unlawful act, the settler was damaged by sheep eating the grass which the -farmer’s stock would have subsisted upon, that damage is a part of the penalty that the law assesses against the transgressor of the law. It is contended that said law is a mere guise to give the value of the grass on the public domain, or the value thereof, to the settler. We do not think so. While it does that very thing, we think, in the development of the state, it is more important that the state be settled by farmers seeking to secure-for themselves, and those dependent on them, homes, than it is that the state be turned over to a few large sheep owners. It is more important that the public lands of this state be settled upon, and held in small tracts, such as the land laws of Congress permit the settler to acquire title to, and which is being done, than to have said lands devoted exclusively to the grazing and herding of sheep owned by comparatively a few men. The rearing and education of good citizens is of more importance to the state than the raising of sheep.
Said law is a valid police regulation, and enacted for the purpose of preserving the peace — preventing conflicts — and tends to the good morals and comfort of the farmers of the state, its settlement, and the prosperity and happiness of a large majority of the citizens of the state, and was not enacted for the purpose only o,f giving the grass, or its value, to the settler, within the limit of two miles from his habitation, as contended by the petitioner. Cattle, horses, and other stock of sheep owners and others may consume the grass within that limit, and the settler has no remedy under the law. The sheep owner may sell his sheep, and purchase and graze his cattle to the very door of the settler, if such door is in the public domain, and the settler is remediless. But, in case the legislature saw fit to *451restrict such grazing of cattle, it may do so. So far as the public domain of the United' States, in this state, is concerned, it is under the police regulations of the state, and governed thereby, the same as the lands of the citizen, wherein such laws or regulations are not in conflict with the federal constitution, or the laws of Congress, and, until Congress provides by law that sheep shall not be restricted by state laws from grazing everywhere upon the public domain, the state, by proper legislation, may regulate and control that matter.
It is contended that, prior to the time the sheep of appellant passed over the land referred to, other sheep had grazed over the same, and that it is clearly apparent from the evidence that the appellant, who was defendant in the court below, was made to pay the entire damage done for the entire season. It certainly would be unjust to compel the appellant to pay damages done by other people’s sheep. The law only requires the owner to pay the damages done by his own sheep. The evidence shows that the appellant established his sheep camp on the fourth day of April, 1901, on the west fork of Soldier creek, about three-fourths of a mile above respondent’s residence; that said creek ran near said residence, and that appellant kept his camp there until tire 17th of May following, when he moved his sheep four or five miles away. The respondent testified that during that time he did not think said sheep ranged farther than a mile and a half away from his land, and that they bedded about three-fourths of a mile above his house* at said camp; that he supposed there were about 2,500 of said sheep. The herder, however, testified that he only took between 700 and 800 sheep there, and the appellant testified to the same effect The evidence shows that said sheep remained there from April 4th to May 17th, and that, on October 4th following, the appellant returned there with between 2,000 and 3,000 sheep, and respondent estimates his damage in October to be twenty-five dollars, and .for the grass eaten from his individual land at sixty dollars, and fifty dollars for appellant grazing his sheep on the public domain, outside of his individual land prior to October, making a total of $135. The respondent had about twenty head of cattle and some horses. It is shown that other sheep *452passed over said land. Bespondent testified as follows: “I do not mean to say that there were no other bands of sheep running through there this year. There were other sheep upon my land about the same time. They were Newman’s. I went and notified him, and he got out.” And Frank Manville testified that in 1901 he ranged his sheep around in the vicinity of respondent’s ranch. From all of the evidence, it appears that [Manville had sheep in the vicinity of respondent’s ranch on the opposite side from where appellant’s camp was located; that on or about the 25th of April he had a conversation with respondent, and there is a conflict in the evidence as to what was said in that conversation. It appears that Manville was intending to move his camp to within a half a mile of respondent’s west line, and about a mile below the camp then occupied by appellant. The result was that Manville, on the 15th of May, moved his camp to within a half a mile of respondent’s west line, and below his house, and two days later, on May 17th, appellant moved his camp four or five miles from respondent’s ranch. Manville remained at his camp, so established, until the 9th of June. I gather, from all of the evidence, that Manville and appellant did not occupy the same range at the same time. At least, up to May 15th, Manville’s sheep had ranged on the easterly side of respondent’s ranch, and appellant’s on the westerly side thereof. While Manville’s ranged to some extent, at least, within two miles of respondent’s dwelling-house, the evidence clearly shows that appellant’s sheep ranged on, in, and around respondent’s ranch, on the westerly side, from April 4, to May 17, 1901, and returned there October 4th, following, and remained there until this suit was brought on October 18, 1901. Considering all of the evidence, and the number of cattle and horses that the respondent had, and the ranging and grazing of appellant’s sheep on and about respondent’s land from April 4th to May 17th, we can but conclude that the evidence sustains the verdict of the jury, and that he suffered damages in the sum of $100 from the grazing of appellant’s sheep on respondent’s land, and within two miles of his dwelling.
*453When the penalty for the violation of said law is sought to be increased by reason of the destruction of grasses on the public domain, it must be shown to a reasonable probability, at least, that the settler’s stock would have gotten the benefit of such grass, or he cannot recover therefor, and one sheep owner cannot be held for damages done by the sheep of another.
But in the ease at bar, I think, from all of the evidence, the verdict of the jury is fully supported by it, and the petition for a rehearing is denied.
' Quarles, C. J., concurs. Stoekslager, J., dissents.