71 P. 920 | Ariz. | 1903
On the twenty-fifth day of March, 1902, in the district court of the fourth judicial district of Arizona, a grand jury of the United States presented an indictment against the appellant, charging him. with the crime of “pasturing sheep on the public lands in a forest reservation.” To this indictment the defendant filed a general demurrgr, which was by the court overruled, and a plea onnot guilty entered. A verdict of guilty was found by the jury upon the trial, and judgment was entered imposing .a fine upon appellant. The appellant filed his motion for new trial and motion in arrest of judgment, each of which was by the court overruled. To all of said rulings appellant excepted, and has perfected and duly prosecuted his appeal to this court.
By the act of June 4, 1897, (30 Stats. 33, [U. S. Comp. Stats. 1901, p. 1540],) Congress provided that: “The secretary of the interior shall make provisions for the protection
The question raised by this appeal is whether the provision of the statute above quoted is an unconstitutional delegation of legislative power to the secretary of the 'interior in so far as it áuthórizes him by rule or regulation to specify acts the performance of which shall constitute crime. It is, of course, a well-settled principle of constitutional law that the lawmaking power cannot delegate to the executive the power to make laws; that Congress cannot delegate to any of the
In the case In re Kollock, 165 U. S. 526, 17 Sup. Ct. 444, 41 L. Ed. 813, an act of Congress (24 Stats. 209 [U. S. Comp. Stats. 1901, p. 2228]), was under consideration, which imposed a revenue tax upon oleomargarine, prohibiting its sale in other than unused packages, and conferred upon the commissioner of internal revenue the duty of prescribing the marks, stamps, and brands to be affixed to the packages, and
In the case of United States v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764, 36 L. Ed. 591, the defendant, a wholesale dealer in oleomargarine, was indicted under an act of Congress regulating the manufacture, sale, etc., of oleomargarine. That act contains several sections forbidding particular acts, and imposing in terms, in many of such sections, the penalties for violation of such acts. In section 5 [U. S. Comp. Stats. 1901, p. 2230], among other things, it was provided that every manufacturer of oleomargarine should keep such books and render such returns of material and products as the commissioner of internal revenue might require, but no penalty for a violation of or neglect to perform such acts was specifically contained in that section. There was no provision requiring such acts on the part of a wholesale dealer. Section 18 [U. S. Comp. Stats. 1901, p. 2234] provided that if any manufacturer- of oleomargarine or any dealer therein should omit or neglect to do any of the things required by law to be done in the carrying on of his business or by the act' prohibited, if there be no specific penalty or punishment imposed by any other section of the act for the neglect or omission, he should pay a certain penalty. Section 20 [U. S. Comp. Stats. 1901, p. 2234], provided that the commissioner might make all needful regulations for the carrying into effect of said act. The commissioner issued a regulation requiring a .certain book to be kept by wholesale dealers for monthly returns, and upon the .failure of the defendant to keep such book the indictment was based. That ease differed from the one at bar in that there was no requirement for the wholesale dealer to do the acts required by the regulations of the commissioner, and no penalty for the infraction thereof was provided, the question in that case being whether the wholesale dealer in oleomargarine who had omitted to keep the book prescribed by the regulation made under authority of section 20 of the
In the case of Payne v. United States, 30 Wash. Law Rep. 791, 20 App. Cas. D. C. 606, the court of appeals of the District of Columbia has recently held that a special regulation of the postmaster-general limiting the class of publications entitled under the act of Congress to second-class rates was an unauthorized exercise of power, the discretion to be exercised by that official being, in the opinion of. the court, limited to a question of identification merely of the publications included in the category prescribed by Congress, it not being competent for the postal department to impose additional requirements beyond those specified in the statute.
The precise question presented for our consideration has been passed upon in the federal district courts in the southern district of California, the northern district of California, the district of Washington, and the district of Utah; demurrers to similar indictments having been sustained in those four cases. In the case of United States v. Dastervignes, 118 Fed. 199, Judge Beatty, sitting in the circuit court for the northern district of California, held the regulation in question to be valid, and not a delegation to the secretary of a legislative power. It is to be noticed, however, that that case was a bill on the part of the government for 'an injunction restraining the defendants from pasturing their sheep on a reservation; and, while tbe learned judge in his opinion considers that a violation of the regulation would subject a defendant to punishment, the precise question here involved was not before the court for consideration, and it is conceived that in a civil action by the government for the protection of its property rights a different principle and different questions may be involved upon which the decision of that court may be sustained, and that the question discussed in the case may not have been necessarily involved.
We think the fatal defect of the act, so far as the question in the case at bar is concerned, is that unlimited power is
It is strongly urged by counsel for the government that by setting apart this portion of the public lands as a forest reserve it is no longer open for public use; that any implied license for grazing that may have existed was thereby revoked, and that any entry upon the land is a trespass, except as it may be specifically authorized by the secretary; that the government may maintain an action to prevent a threatened trespass, or to recover damages for an accomplished trespass; that, this being so, and inasmuch as a civil remedy was not a sufficient protection for such forest reservation, Congress passed the act in question; that the act throughout proceeds in recognition of the fact that no person has a lawful right on a forest reservation, and modifies the then existing law to the extent that certain uses of the forest reservations may be had subject to the rules and regulations prescribed by the secretary of the interior, and further provides that any other use or an infraction of those rules shall be punished criminally as provided in section 5388 of the Revised Statutes; that the secretary does not prohibit the use of the forest reserve, for that use is already prohibited by the creation of the reserve; he merely declares the existing law in that respect when he prohibits the pasturing of sheep in the forest reserve; and that, as the act itself prescribes that a violation of the act or of such rules shall be punished, any use of the reservation not expressly granted by the secretary is a violation of the
In the case of United States v. Ormsbee, supra, the defendant was indicted for violating rules prescribed" by the secretary of war in relation to the use of public waters and canals, and a motion to quash the indictment on the grounds here urged was denied. But in that case it appears that Congress had by enactment specifically prohibited any use such as the one in question, “unless approved and authorized by the secretary of war,” and had made it the duty of the secretary to establish rules and regulations for the use, and had provided that any infraction of such rules should be a misdemeanor, punishable as in the act provided. The distinction between that case and the one at bar is therefore apparent', and it is the difference between the rightful and wrongful exercise of the legislative function. There the act of Congress made any use illegal except ' as authorized Jiy the secretary by his rules, and made any infraction of the rules punishable. Here the act merely provides that the secretary may make rules for the use of the reservation, and makes any infraction of the rules punishable. The vital element is lacking, since the act does not prevent the use. In the one case, the use being made illegal by statute, the secretary’s power is an exercise of administrative function; in the other, the use not being made illegal by statute, the secretary’s functions are legislative, if an infraction of his rules constitutes a crime. It is not enough that the government may have the ownership of the reserve, and that its unauthorized use for sheep grazing be a trespass. There being no offenses against the government at common law, special statutory enactment making the use an offense must be had before a regulation of a department officer can make such use a criminal act; and such statutory enactment is not to be found in a statute which gives such official the right to make regulations for use, and
In the case of United States v. Breen (C. C.), 40 Fed. 402, by act Aug. 11, 1888 (25 Stat. 424), the secretary of war was authorized to make such regulations as should seem to him necessary to prevent any obstruction or injury to a certain channel in the Mississippi River, and the act provided that any violation of the regulation so. made should be punished as therein provided. This was an act of a local nature, and the secretary’s authority was clearly limited to promulgating regulations to carry into effect the prevention of the acts prohibited; and the court held that a regulation limiting the speed of vessels was valid, and upheld an indictment founded thereon. 1
The distinction between these cases and the case at bar is the distinction in a case often cited upon questions of this character,—Locke’s Appeal, 72 Pa. 491, 13 Am. Rep. 716. “The legislature cannot delegate its power to make the law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend.” The same distinction is to be found in the eases arising under the statute relating to the cutting of timber on” the public domain, so often before the courts in this part of the country. The use is specifically allowed by the act; the regulation of use merely is given to the department; hence, as was said in United States v. Williams, 6 Mont. 379, 12 Pac. 856, “The making of rules and regulations for the protection of timber ... on the public lands does not trench upon the domain of the legislative department of the government.” It is to be noted, further, that in the act under consideration not only is there no direct prohibition of use of the reservations, but their use for all proper and lawful purposes is specifically granted, subject Only to the regulations of the secretary covering such reservation. It may be that Congress intended by this act to allow the secretary, in his discretion, to exercise such latitude by his regulations as to say that this or that man, in his discretion, should or should not pasture his sheep on the reservation, on the theory that such regulation, far-reaching though it might be in its effect, was within the general purpose of the
The demurrer to the indictment should have been sustained, and the judgment is therefore reversed and the case remanded to the district court, with directions to enter judgment for the defendant.
Davis, J., and Doan, J., concur.