284 F. 39 | 8th Cir. | 1922
(after stating the facts as above). A primary convention of the appellant is that Congress has not asserted any proprietary control over the highways in this park, therefore the regulations if applicable to him are without legislative authority. The original act (Act Jan. 26, 1915, 38 Stat. 798) reserves and dedicates a tract within certain boundaries as the Rocky Mountain National Park. Section 2 excepts:
“Any valid existing claim, location or entry under the land laws of the United States, whether for homestead, mineral, right of way, or any other purpose whatsoever, or shall alfect the rights of any such claimant, locator, or entryman to the full use and enjoyment of his land.”
Section 3 also excepts lands “held in private, municipal, or state ownership.” Section 4 vests the executive control of the park in the Secretary of the Interior, with a duty to make and publish such reasonable rules and regulations, not inconsistent with the laws of the United States, as he may deem “necessary or proper for the care, protection, management, and improvement of the same, * * * primarily aimed at the freest use of the said park for recreation purposes by the public and for the preservation of the natural conditions and scenic beauties thereof,” the regulations to include provisions for the use of automobiles therein.
The Act of August 25, 1916 (39 Stat. 535) creates the National Park Service in the Interior Department, under the charge of a director, appointed by the Secretary of the Interior. His duty is to make and publish regulations, and infractions of them are made punishable. By the Act of February 14, 1917 (39 Stat. 916) other lands were added to the park, and the provisions of the act of 1915 were made applicable to them.
The highways in the park fall within the physical boundaries of the lands from which it was created, and naturally became subject to federal control unless excluded by section 2 or 3 of the act of 1915, or by prior authority of the state of Colorado. Considering the necessity and utility of the highways for the use of the public in visiting the park, it seems obvious that control over them by the federal government was contemplated by Congress, and especially since section 4 requires the regulations to provide for the use of automobiles, and the exceptions contained in sections 2 and 3 of the act of 1915, apparently, from the terms employed, were not meant to refer to public highways.
But it is insisted that the intention to except them is shown by the reference to “a right of way under the land laws,” and by “lands held in municipal or state ownership”; that section 2477, Rev. Stat., enacted in 1866 (Comp. St. § 4919), granted the highways to the public; and that as a result the control of' them was vested in the state of Colorado. We may assume the state had such control, without so deciding, and the inquiry arises whether the government has acquired it from the state.
A state has jurisdiction over all the territory within its borders not reserved in the act of admission. Van Brocklin v. Anderson, 117 U. S. 151, 6 Sup. Ct. 670, 29 L. Ed. 845. But it may by legislative
It appears by the laws of Colorado, found in chapter 78, art. 2, § 5, Acts of 1917, the State Highway Commission was given power to make agreements in behalf of the state with the government, in any manner affecting the public highways of the state, and further by the Revised Statutes of Colorado 1908, §§ 6900, 6901, the consent of the state was given to the United States to acquire any land in the state for any purpose of the government. The state laws also authorized a board of county commissioners to lay out, alter, or discontinue any road running into or through any county, to represent the county and have care of the county property, and the management of its business and concerns. Rev. Stat. Colo. 1908, § 1204. The resolution of the State Highway Commission, sanctioned by the county board of Larimer county, was sufficient to cede or transfer through legislative agency, to the government, such jurisdiction and control as the state possessed over the highways in this park as therein described.
The noncompletion of the Fall River road is emphasized, as the resolutions withheld transfer of it meantime. The purpose was manifest that it should pass to the government except that temporarily the state was left free to improve it. However this may be, it seems but a mere incident that the appellant was found on this road, for, doubtless, in order to carry passengers there, the use of other roads by him was necessary, in every instance, and inseparable. To exclude him from other roads would practically bar his use of the Fall River road. It would not aid him or be of any consequence to except that road from the injunction.
But we are of the opinion that the power of the government to regulate the traffic on those highways, as it has done by congressional enactment and rules thereby authorized, rests on the secure footing that it is a valid exercise of control over the property of the government, even though it is of the nature of police power, and that it is sustained by section 3, art. 4, of the federal Constitution, which entitles the government to make all needful regulations respecting its territory and property.
Neither grants of rights of way on the public lands, accepted by user or statute, nor state ownership of highways derived from the government or otherwise effect any abdication of such constitutional authority. Both the power of Congress to grant easements in favor of the public for travel and transportation and its power to legislate concerning territory and property are and must be consistently exercised, and the latter is accomplished by regulations to the end of devoting the adjacent domain owned by the government to the lawful purposes and objects for which a national park is granted. We therefore hold that the regulations here involved cannot be successfully assailed because of interference with private right to use the highways in the Rocky Mountain National Park. Camfield v. U. S., 167 U. S. 518, 17 Sup. Ct. 864, 42 L. Ed. 260; U. S. v. Gettysburg, 160 U. S. 668,
It is claimed that the regulations do not apply to the defendant ■in the transportation of passengers. But we think this is a mistake and that sections 6 and 2, heretofore set forth, forbid the transportation by appellant of passengers for hire in the park, without permission or franchise.
Another contention of appellant is that the regulations are unreasonable and void, chiefly because they have been and will only'be utilized to confer a monopolistic permit on a certain company. The testimony offered to the effect that a permit would be denied appellant must be regarded as inadmissible, for the reason that no application was made for the purpose, and that he declined to recognize the regulations. Utah Power & Light Co. v. U. S., 243 U. S. 389, 37 Sup. Ct. 387, 61 L. Ed. 791. Certainly the duty was imposed upon the Secretary to regulate the traffic on the highway in a manner that would best promote the safety and accommodation of the public, and it was competent, if deemed necessary or prudent, to limit the franchise to one approved carrier. This might be called for by the conditions obtaining at the park. Before a regulation can be regarded as invalid, it must appear that the Secretary has exceeded his authority. But not so of such as are thought merely to be illiberal or not conducive to the best results. Utah Power & Light Co. v. U. S., supra. By this test, we hold the regulations complained of to be reasonable and valid.
Finally, it is urged that the bill of complaint is without equity because no property right is involved and the object of the suit is to obtain an injunction against a threatened offense. From what has been said it is clear the government has important property rights in this park, but in any event its national policy is involved of protecting the public in traveling within the park, and in such a case, injunction is the proper remedy. In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092.
Our conclusion is that the decree of the District Court is right, and it is accordingly affirmed.
