— This is an action brought to recover damages for herding and grazing sheep within two miles of the dwelling of the plaintiff under the provisions of sections 1210 and 1211 of the Revised Statutes. To the complaint the defendant interposed an answer not denying any of the allegations of the complaint, but set up as a defense the unconstitutionality of the provisions of said sections. Counsel for the respondent thereupon moved for judgment on the pleadings, which motion was granted by the court and judgment was entered against the appellant for the sum of $100 and costs of suit, from which judgment this appeal is taken.
This appeal involves the constitutionality of the provisions of said sections of our Revised Statutes, and on the decisions of this court in the cases of Sifers v. Johnson, 7 Idaho, 798, 97 Am. St. Rep. 271, 65 Pac. 709, 54 L. R. A. 785, Sweet v. Ballentyne, 8 Idaho, 431, 69 Pac. 995; Walling v. Bown, 9 Idaho, 184, 72 Pac. 960, Phipps v. Gover, 9 Idaho, 415, 75 Pac. 64, Walling v. Bown, 9 Idaho, 740, 76 Pac. 318, and Spencer v. Morgan, 10 Idaho, 542, 79 Pac. 459. The judgment of the court must be affirmed, and it is so ordered. The costs of this appeal are awarded to the respondents.
Ailshie, J., concurs. Stockslager, C. J., dissents. (June 20, 1905.)