Opinion of the Court.

ing said sheep from the western boundary of the State of Wyoming to Pine Bluffs station, in Laramie County, was from six to eight weeks and by the route followed the distance travelled was about 500 miles."

It thus appears that the only purpose found for which this herd of sheep was being driven across the State was for shipment, and the agreed statement wholly fails to show that they were detained at any place within the State for the purpose of grazing or otherwise. As they consumed from six to eight weeks in travelling about 500 miles, or, as the Supreme Court found, at the rate of about nine miles per day, it does not even appear that they loitered unnecessarily on the way. As they required sustenance on the journey, and could obtain it only by grazing, it would appear, though there is no testimony upon that point, that they could hardly have been driven more rapidly without a loss of flesh during the transit. The only evidence as to the manner in which such grazing was conducted is contained in the fourth stipulation: "In driving said sheep in such manner it was the practice of the person in charge to permit them to spread out at times in the neighborhood of a quarter of a mile, and while being so driven the sheep were permitted to graze over land of that width. They were driven, in some instances, through large pastures; in other instances through the public domain, and in other instances through pastures enclosed by fences." Considering that the herd numbered about 10,000 sheep, and were moved eastward at the rate of nine miles a day, it does not seem as though the fact that they were permitted to graze over a width of a quarter of a mile was evidence of any unnecessary delay; and while the owner would undoubtedly be liable for any damage done to pasturage en route, there is no evidence at all that the transit of the sheep was delayed for the purpose of grazing while going through the State. Bearing in mind that the weight of all the previous cases in this court has been laid upon the fact of an indefinite delay, awaiting transportation at the commencement of the journey, or awaiting sale or delivery at its termination, the facts of this case fail completely to bring it within those authorities. The fact that the sheep may not

Opinion of the Court.

have lost flesh, or may even have gained flesh, during their transit through the State, is impertinent, unless the primary purpose of their being driven there was for grazing.

It is true that the sheep might have been transported by rail from Utah to Pine Bluffs, but the statement fails to show whether that course would have been more or less expensive than the one adopted. It is clear that the owner had the right to avail himself of such means of transportation as he preferred, and in estimating the probable cost he was at liberty to consider the fact that he was licensed to make use of the public lands of the United States without charge for the sustenance of his sheep. Buford v. Houtz, 133 U. S. 320. Why he shipped them by rail from Pine Bluffs is not explained, but it seems quite probable that it was due to the fact that the public lands in Nebraska had been so far taken up that the sheep would not be able to obtain sufficient nourishment if they were driven through that State. We do not deny that it may have been plaintiff's intention not only to graze but to fatten his sheep while en route through Wyoming. Indeed, we may suspect it, but there is nothing in the agreed statement of facts to justify that inference. While the fifteenth finding states that for the purpose of shipping said sheep it was not necessary that they should be driven into the State of Wyoming and that they might have been shipped on the railroad much farther west than Pine Bluffs station, that finding really resolves itself back to the proposition already stated, that the owner or his shepherd was at liberty to choose his own method of transportation, and as he took a direct route through the State, deviating neither to the right nor to the left, and travelled as rapidly as a due regard for the condition of his flock permitted, we think there could be no fair inference from these facts that the sheep were introduced into the State for the purpose of grazing.

There is another consideration worthy of attention, and that is that the right which the State of Wyoming had to tax this property might have been exercised in every State through which the sheep were driven. In this particular case it would appear that they were shipped at Pine Bluffs, but they might with equal propriety have been driven through Nebraska and

Statement of the Case.

Iowa before reaching their final destination. Indeed, section 3 of the act, which provides "it shall be the duty of the assessors in the several counties to levy and immediately collect taxes as provided for in this act, as soon as live stock is brought into their counties to graze," leaves it an open question whether these taxes may not have been assessed in every county through which these sheep were driven.

The judgment of the Supreme Court of Wyoming is therefore

Reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion.

WEBER v. ROGAN.

ERROR TO THE SUPREME COURT OF THE STATE OF TEXAS.

No. 107. Submitted December 1, 1902.-Decided January 19, 1903.

The Supreme Court of the State of Texas having decided that the statute of that State, Acts of 1897, c. 129, providing that certain lands may be sold at a specified price under certain conditions by the Commissioner of the General Land Office was not mandatory, but that it was discretionary with the Commissioner whether to sell such lands or not, no Federal question arises which this court can consider in a proceeding brought to compel the Commissioner to convey certain lands under such act to a person offering to purchase the same at the price specified in the act. The constitutional inhibition against the impairment of contracts applies only to legislative enactments of the States and not to the judicial decisions or acts of the state tribunals or officers, under statutes in force at the time of the making of the contract, the obligation of which is alleged to have been impaired.

THIS was an original petition filed in the Supreme Court of Texas by the plaintiff in error, Weber, against Charles Rogan, Commissioner of the General Land Office of the State, praying for a writ of mandamus directing such Commissioner to award to the petitioner two isolated and detached sections of the public school lands, situated respectively in Polk and Jefferson Counties in the State of Texas.

Statement of the Case.

The petitioner alleged in substance that on August 11, 1899, being desirous of purchasing such lands, he applied to the Commissioner for the same at the price fixed by law, $1 per acre, and otherwise fully complied with the terms of sale offered by law authorizing him to become the purchaser; that the Commissioner refused and rejected his applications, for the reason that the two sections applied for had theretofore been classified the first as timber land, and the second as grazing land, to neither of which the law was applicable, and could not be purchased under the law in force at the date of the application for one dollar per acre, though such grazing and timber lands were isolated and detached from other public lands, and were situated in counties organized prior to January 1, 1875, and that there was no law under which the petitioner could have lawfully awarded to him the two said sections at one dollar per acre. Petitioner admitted that said two sections were classified by the Commissioner, one as timber land and the other as grazing land, but averred that such classification was of no force or effect because the provisions of the law requiring lands belonging to the public school fund to be classified did not relate or apply to isolated and detached sections, or fractions of sections of such lands, situated in counties organized prior to January 1, 1875, but that the price of said lands was at that time fixed by law at one dollar per acre, irrespective of any classification made of said lands either before or after the time they became isolated and detached. That by application to the Commissioner and depositing with the treasurer of the State the amount due therefor, he became the purchaser of said two sections, and the Commissioner was without authority to withhold from him said lands.

Upon this petition the case was submitted upon briefs and oral arguments to the Supreme Court, which awarded a mandamus, 94 Texas, 62, subsequently granted a rehearing, 94 Texas, 67, and upon such rehearing filed an opinion refusing the writ, 94 Texas, 67.

Whereupon petitioner applied for and was granted a writ of error from this court, and assigned as error that the State had offered to sell all isolated and detached sections, and fractions

Opinion of the Court.

of sections of public school lands situated in counties organized prior to January 1, 1875, at one dollar per acre; that this offer by the State was accepted by the petitioner, and that such acceptance constituted a contract between the State and the purchaser, and that by holding that the Commissioner of the Land Office might decline to award the petitioner the lands applied for, the court gave a construction to the statute which impaired the obligation of such contract.

Mr. F. Charles Hume for plaintiff in error. Mr. M. E. Kleberg was with him on the brief.

Mr. C. K. Bell, attorney general of the State of Texas, for defendant in error.

MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.

At the time the petitioner made his applications to the Commissioner of the Land Office for the purchase of these lands the following law was in force, 2 Batt's Rev. Stat. art. 4218 y:

"The Commissioner of the General Land Office may withhold from lease any agricultural lands necessary for the purpose of settlement, and no agricultural lands shall be leased, if, in the judgment of the Commissioner, they may be in immediate demand for settlement, but such lands shall be held for settlement and sold to the actual settlers only, under the provisions of this chapter; and all sections and fractions of sections, in all counties organized prior to the first day of January, 1875, except El Paso, Presidio and Pecos counties, which sections are isolated and detached from other public lands, may be sold to any purchaser, except to a corporation, without actual settlement, at one dollar per acre, upon the same terms as other public lands are sold under the provisions of this chapter." Acts of 1897, c. 129.

The Supreme Court held that the determination of the case depended upon the question whether it was made by this law the imperative duty of the Commissioner of the Land Office to sell all isolated and detached sections and parts of sections