Dissenting.
I cannot concur in the conclusion reached by my associates. The horse in question is alleged to have been stolen on the twentieth day of June, 1905. The stock brand law referred to in the opinion of my associates became a law on March 7, 1905, section 6 of which is as follows: ‘1 Sec. 6. On or before the first day of June, 1905, after the passage of this act, every stock-grower owning sheep, and on or before the first day of October, 1905, the owners of all other livestock using any recorded brand, shall forward to the state recorder a copy of such recorded brand, duly certified to by the county recorder of the county in which such brand is recorded. Such person shall pay the recorder a fee of twenty-five cents, and shall forward with the brand so certified a fee of fifty cents to the state recorder to pay for the recording of the same.” Section 7 of the same act is as follows: “Sec. 7. Upon receipt of such certificate and fee *18the state recorder shall record the same: Provided, such brand is not contrary to the provisions of this act: And, provided further, that in case of a conflict of recorded brands, the one first recorded with the county recorder as heretofore required by law shall take precedence, and the other shall be null and void. All brands recorded at the time of the passage of this act which shall not be recorded within the said stated time with the state recorder shall be null and void.” Section 8 of the same act provides as follows: “Any stock-grower whose brand is not recorded desiring to use any brand on any stock shall make and sign a certificate setting forth a fac-simile and description of the brand which he desires to use, and shall file the same with the state recorder, which recorder shall record the same in a book kept by him for that purpose, and from and after the filing of such certificate the stock-grower filing the same shall have the exclusive right to use such brand within the state. Such stock-grower, upon filing such brand, shall pay to the state recorder for recording the same a fee of one dollar: Provided, that the state recorder shall not file or record such brand if the same has already been filed or recorded by him in favor of some other stock-grower. If the brand is to be used on sheep, such brand shall not be filed for recorded until after June first, 1905; and if it is to> be used on other stock not to be filed until after October first, 1905.”
Section 6 refers to recorded brands or brands that have been recorded in the office of the county recorder of some county of the state. Section 8 provides for the recording of brands that have not been recorded in the office of the county recorder of any county of the state. It will be observed from the provisions of said section 6 that stock-growers other than those owning sheep who had recorded their brand in some county should forward to the state recorder a copy of such brand duly certified, on or before the first day of October, 1905. Section 7 of said act provides, among other things, that upon receipt of the certificate of the county recorder of the brands provided for in section 6 and of the proper fee, *19the state recorder shall record the same; provided, in case of conflict of recorded brands, the one first recorded with the county recorder shall take precedence, and the other shall be null and void, and section 8 provides that any stock-grower whose brand has not been recorded in the office of some county recorder, desiring to use any brand on stock other than sheep, should make and sign a certificate setting forth a fac-simile and description of the brand which he desires to use, and shall file the same with the state recorder, and it is provided that the state recorder shall not record such brand “if the same has already been filed or recorded in favor of some other stock-grower, and that such brand shall not be filed until after the first day of October, 1905.
Keeping these provisions of said law in mind, we will apply them to the facts of case at bar. The complaining witness purchased the horse in question on May 2, 1905, from one John Carter. Carter had sometime theretofore purchased said horse from said E. E. or “Mickey” Morton, who had raised him and had placed his brand upon him, which brand was testified to on the trial of this ease. It does not appear from the evidence whether said Morton had recorded said brand with any county recorder. He had parted with the horse long before said brand law required the stock-raiser to have his brand recorded by the state recorder. The horse is alleged to have been stolen on June 20, 1905, and in case Morton had theretofore recorded his brand with the county recorder under the provisions of said section 6, he'was required to record said brand with the state recorder on or before the first day of October, 1905, and if he had not recorded his said brand with the county recorder, by the provisions of section 8, he was prohibited from recording said brand with the state recorder until after October 1, 1905. Carter had perhaps purchased this horse from Morton prior to the passage of said brand law, and Neilson had purchased him from Carter long before Morton was required to record his brand with the state recorder. Supposing Morton had died or gone out of the stock business, or had neglected and refused to record said brand, *20is it reasonable to suppose that the legislature intended, in the passage of that act under said state of facts, to prohibit the receiving of any testimony of the Morton brand on that horse in a case in court? Neilson had no power to compel Morton to record his brand. The law itself did not require him to do so until subsequent to the time that Neilson had purchased said horse and months after the horse is alleged to have been stolen. And supposing, under the provisions of said section 6, some other person had filed the same brand with the county recorder and had proceeded under law to have such brand recorded with the state recorder, unless Morton had recorded his brand with the county recorder prior to the recording of the brand last referred to, the state recorder is prohibited from filing the Morton brand; and supposing Morton had not recorded his brand with the county recorder and had offered his brand for record in the office of the state recorder on the afternoon of the first day of October, 1905. that being the first day such brands could be recorded under said law, and some one had recorded a similar brand on the forenoon of that day, under the provisions of said section 8, the state recorder is prohibited from recording the Morton brand. And still under the construction placed upon this law by my associates, Morton’s brand or mark on this horse cannot be proven, when under such facts Morton eould not have recorded his brand. I do not claim that the proof that Morton’s brand was on said horse was prima facie evidence of ownership in Neilson, but that it was competent to go to the jury as tending to prove ownership in him.