dissenting: In my opinion K. S. A. 21-1212 is unconstitutional because it is a criminal statute which forbids the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application. It therefore lacks the first essential of due process of law.
A condition set forth in this statute which has not been mentioned in the court’s opinion is the fact that it applies only beyond *214the fire limits of a city. In other words, it has application only to the rural areas of this state.
The expression in the statute “closer than twenty-five feet to the dwelling house of another” is misleading in this case because it has no application whatever. The pertinent provisions of the statute here applicable read:
“That any person who shall, as owner, . . . maintain any . . . pen . . . where horses . . . are kept, . . . who shall permit the same to remain unclean to the annoyance of any citizens of this state, shall upon conviction be adjudged guilty of a misdemeanor . . . Provided, That this act does not apply within the fire limits of any city.” (Emphasis added.)
This case is important because it applies not only to horses but to cattle, hogs or other animals commonly raised by those engaged in agricultural pursuits in this state.
It is common knowledge among those who are familiar with agriculture, the primary industry of this state, that livestock is maintained in the rural areas in large numbers. There are periods of the year when the weather is inclement and the fields are muddy, so that frequently during three or four months of the year farmers cannot get into their fields to spread manure.
Of necessity, therefore, the pens where livestock is kept and fed are unclean. Even where an attempt is made to clean the pens, the manure must be piled in close proximity to the pen or within the pen before weather conditions permit its removal and spreading upon the fields.
It seems to me the emphasis placed upon this statute by the court, which centers upon the word “unclean,” is somewhat misdirected. The statute does not make it an offense to maintain an unclean pen. The offense is committed only when any citizen of this state is annoyed by an unclean pen.
How is one engaged in the livestock industry in a rural area of this state to know when a citizen will be annoyed? Those citizens who live in the cities are very sensitive to the odors of the farmyard, and one traveling on the highway past a feedlot may be annoyed. How is the farmer to know when he is committing a criminal offense, and when he is not, where the question of annoyance is a matter for subjective determination.
If this statute is to be upheld the plaintiffs who brought the action in Dill v. Excel Packing Co., 183 Kan. 513, 331 P. 2d 539, could force a criminal prosecution and conviction against the defendant in that case, even though they failed by their evidence to *215establish the existence of a nuisance as a matter of law. There some citizens of this state were annoyed tremendously. Their property values had depreciated and they testified as to the existence of terrible odors. Yet, because they chose the rural area in which to live, the conduct of the Excel Packing Company in maintaining a cattle feedlot was said not to be a nuisance as a matter of law under all of the facts and circumstances there presented. A reading of the Dill case is commended to the reader in support of my dissent herein.
The standards of certainty in a statute punishing for a criminal offense are higher than those depending primarily upon civil sanctions for enforcement. (State v. Hill, 189 Kan. 403, 411, 369 P. 2d 365, 91 A. L. R. 2d 750.)
Nowhere does the court in the opinion speak of any objective standard by which a farmer can ascertain in advance whether or not he is committing a criminal offense under the provisions of 21-1212, supra. Whether a farmer commits an offense under this statute is entirely dependent upon the caprice a citizen of this state who claims to be annoyed. Nearly all city dwellers are annoyed by livestock odors.
It is respectfully submitted K. S. A. 21-1212 is unconstitutional in that it offends the due process requirement of the Fourteenth Amendment to the Federal Constitution and Section 18 of the Kansas Bill of Rights, and the judgment of the lower court should be reversed.