Walling v. Bown

AILSHIE, J.

This case was here for consideration once before (Walling v. Bown, ante, p. 184, 72 Pac. 960), and was remanded for further proceedings in accordance with the views there expressed. After the remittitw was sent down the plaintiff was allowed to file an amended complaint, to which the defendant demurred. The demurrer was overruled and defendant failed to answer or make any further appearance, and such further proceedings were had on the part of the plaintiff, that, thereafter, a judgment was duly entered in favor of plaintiff. Defendant has appealed from the judgment which brings up the judgment-roll alone for our consideration. The transcript ¡apparently contains a history'of the case from its inception-in the justice’s court, but the only matters properly here for our •consideration are the amended complaint, demurrer, order overruling demurrer and judgment. (Bev. Stats., see. 4456.) The record contains no certificate under sections 4819 and 4821, •showing that any other papers were used on the hearing in the trial court. The question raised by the appeal is the constitutionality of sections 1210 and 1211 of the Revised Statutes, commonly known in this state as the “two-mile limit law.”

Appellant in his brief says: “That the facts of the case were fully understood and admitted by all the parties to the record, 'There never has been at any time any dispute as to what the evidence shows. The question has always been exclusively one ■of law.....It will be seen that the admitted facts bring this .action strictly within the terms of the statute.”

" Respondent refers to this statement contained in appellant’s brief and affirms and reiterates it, and, in answer to the questions raised, cites Sifers v. Johnson, 7 Idaho, 798, 97 Am. St. Rep. 271, 65 Pac. 709, 54 L. R. A. 785, and Sweet v. Ballentine, 8 Idaho, 431, 69 Pac. 995, both from this court, contending that these decisions have become the law of the state on the •subject matter treated therein..

The issues, therefore, discussed by the respective parties on this appeal are these: Appellant urges the unconstitutionality ■of the two sections of the statute. Respondent relies on the doctrine of stare decisis. The latter proposition demands our attention first, and if applicable here, precludes our consideration of the former.

It is well enough to say here and now that while the personnel •of this court has changed since the decisions above cited were announced, the principles of law have not changed, and we ■shall endeavor to apply them as they appear to us.

Now, to our first inquiry: The doctrine of stare decisis is •founded largely upon expediency and sound principles of public policy. (23 Am. & Eng. Ency. of Law, 1st ed., 24.) It seems to be generally conceded that where the beneficial results to be obtained by a departure from the construction and interpretation placed by a court of last resort upon a constitutional or ■statutory provision will not greatly exceed the disastrous, and evil «'effects likely to flow therefrom, courts should refuse to reopen such questions. This is the position -which was taken by our supreme court in People v. Alturas County, 6 Idaho, 418, 55 Pac. 1067, 44 L. R. A. 122, where it was said in reference to a former decision holding a legislative act' valid: “No good would be accomplished by overruling that decision, but much evil and confusion would result therefrom. Whether that decision was right or not, public policy and sound legal principle demand that we now adhere to it, and regard that question as a sealed book which is no longer open to public scrutiny.”

The reasons for this rule are illustrated in a practical way by the supreme court of Wisconsin in Fisher v. Horicon etc. Mfg.. Co., 10 Wis. 355, where it is said: “It is the duty of this branch of the government to pass finally upon the construction of a law, and determine whether the legislature in its action has transcended its constitutional limps, and the community has a right to expect, with confidence, we will adhere to decisions made after full argument and upm due consideration. The-members of the court may change rotally every six years, and if each change in the organization produces a change in the decisions, and a different construction of laws, under which important rights and interests have .become vested, it is easy to see-that the consequences will be most pernicious.”

Following these reasons for invoking the rule here, let us examine the conditions now confronting us and determine whether, under the recognized and established rules of law, we would be justified in opening the question as to the constitutionality of these statutes for an original investigation and determination.

Sections 1210 and 1211 have been on the statute books of the-territory and state of Idaho since 1875. In Juné, 1901, they were construed and held constitutional by this court in Sifers v. Johnson, supra. In June, 1902, they were again considered and held valid and enforceable by the same court in Sweet v. Ballentine. In August, 1902, both political parties of the state-met in conventions and each officially declared in favor of the-law as construed by the court, and pledged themselves to maintain the same on the statute books. Notwithstanding the declaration of both parties, the fight was carried into the campaign of the autumn of 1902, each party accusing the other of insincerity and juggling with the question. It became the burning and paramount issue of that campaign. The legislature met in January, 1903, and remained in session sixty days, but no attempt was made to repeal or modify this law. On the other hand, bills were introduced, but never enacted, making it a penal offense to-violate the existing law on the subject. These facts are a part of the public history of this state. During this period of more than two years and a half the various and respective interests and rights of settlers on the one hand and sheep owners on the other, as between themselves, have become fixed and settled, and conflicts and violence have ceased among them. To disturb this condition would be to invite recurrent strife, dangerous conflicts and endless confusion and discord among our citizens and alarm large industrial interests of the state without a single, apparent, good or beneficial result. The constitutional questions raised in this case were fully and ably presented in each of the former cases, and seem to have been elaborately considered by the court in the opinions. The issue made by appellant in this case is fully and clearly covered by those eases.

The writer of this opinion is of the belief that, whatever might be our judgment now, we would be wholly unjustified in opening these questions for further consideration by this court. If this subject is to again become the bone of contention in Idaho, it will have to come through either the legislature or a higher judicial tribunal than this.

Judgment affirmed, with costs to respondent.

Sullivan, C. J., concurs.