State v. Catlin , 33 Idaho 437 ( 1921 )

DUNN, J.

The defendant was tried in the district- court of Ada county on the charge of unlawfully allowing cattle owned by him- to run at large within a lawfully created herd district in said county. He was convicted and judgment entered requiring him to pay a fine of $100, with costs of prosecution. From this judgment the defendant has appealed.

Appellant has specified numerous errors, but the examination of one-will be sufficient to dispose of this case.

Under the complaint on which appellant was tried it was necessary for the state to prove that the herd district in which the offense was alleged to have been committed was lawfully created. This the state failed to do. The law required that there should be posted within the proposed district three notices of the hearing, which must be held before said district could be created. The testimony offered by the state shows conclusively that no' such notices were posted. Without these the board of commissioners had no authority to act on the petition for the creation of a herd district, and no lawful district was created. Consequently the offense charged against appellant could not have been committed by him.

Judgment reversed and the cause remanded to the district court with instructions to dismiss the action.

Rice, C. J., and McCarthy and Lee, JJ., concur. Budge, J., did not hear the argument nor take part in the decision of this case.