Stewart Udall, Secretary of the Interior v. States of Wisconsin, Colorado and Minnesota, Stewart Udall, Secretary of the Interior v. State of Michigan

Secretary of the UDALL, Stewart Appellant, Interior,

v. WISCONSIN, COLORADO

STATES OF Appellees. MINNESOTA, AND UDALL,

Stewart Appellant, Interior, Appellee. MICHIGAN,

STATE OF 16669, 16670. Nos. Appeals Court

United States Circuit. Columbia District of

Argued April 28, 1962.

Decided June Rehearing Bane En for

Petition Sept. Denied En Banc Kathryn Miss Baldwin, H. Attorney, Department Justice, of the bar of the- Supreme of Wisconsin, Court pro hac

vice, special court, leave of appel- Atty. lant. Asst. Gen. William H. Or- rick, Jr. and Messrs. Morton Hollander MacGuineas, Donald B. Attorneys, Justice, were on the brief appellant. Laughlin, Mr. John G. Jr., Attorney, Department Justice, appearance also entered appellant. RoyMr. Tulane, G. Madison, Wis., of Supreme the bar of the Court of Wis- consin, pro vice, special hac leave of court, with whom Messrs. Newell A. Clapp, Washington, C.,D. and Frank E. Hickey, Deputy Atty. Colorado, Gen. of brief, appellees in No. Olds, Atty. Mr. Nicholas V. Asst. Gen. Michigan, Supreme of the bar of Michigan, pro vice, spe- hac Court court, cial leave with whom Messrs. Joseph Lund and Levin, Wendell B. Washington, C., brief, D. were on the for- appellee in No.

7Q1 Secretary approves it, Chief if the the allocated Before Wilbur Miller, K. WRIGHT, moneys ultimately paid ap- Judge, and the are to and WASHINGTON Judges. matching plicant 16 a Circuit state on basis.4 U.S.C.A. 669d-669f. §§ Judge. WRIGHT, Circuit are the We here concerned apportionment. initial The issue on sole dispute over out of a cases arise These the merits is alloca whether the tentative allocating proper funds to the method of tion of of “Federal second half the the Pittman- under the the states several fund,” aid to into wildlife-restoration Fed Act.1 Also known as the Robertson moneys deposited, which tax the are Act, that Restoration Aid to Wildlife eral should be num made on basis the among provides distribution statute by par of ber sold a licenses states, approved wildlife the use state, irrespective ticular of fact that the n conservation receipts projects, of from may two or sold more have been licenses firearms, shells on tax the federal excise rather, or, the the person, to same on cartridges. 1939,2 the Secre .and Since of in basis of different charged tary Interior has been holding state, dividuals from licenses He Act. administration with the irrespective of the some of fact initially, apportion the required, to may them hold than license. more one 3 states, among receipts the several net Secretary Ac The takes latter view. n one-half remaining basis, an area on cordingly, states, appellee when the Wis the number portion ratio which “in the consin, Colorado, Michi and Minnesota n of hunting-license paid holders of each gan, certify declined to the number of year, preceding as fiscal State holding persons licenses, them he refused n certifiedto by and fish State [him] states, the full maintain allocation.5 The .game departments, total bears to the ing apportionment be made should hunting-license paid holders issued, on the basis total 16 669c. U.S.C.A. § of all States.” brought compel mandamus6 the Sec to Upon amount set aside notice tary respective to their accounts credit use, participating state must each its challenged Secretary this basis.7 The and, project, of wildlife details its .submit 7. prayer complaints, to each of the September 2, 1937, 50 Stat. 1. Act of declaratory asking judg- addition to seq. et § 669 16 U.S.C.A. ment “license holders” means total Secretary Agriculture Originally the issued, and for an order direct- But function the Act. administered Secretary ap- ing the to make his initial was transferred basis, portionment re- on that further Reorganization Plan No. Interior quests prepare “to that he be ordered 1433-1434, II, 4(f). Stat. § appropriate agencies file with the note. 133t § U.S.C.A. ap- government of the United States papers propriate expenses certificates and to cause deduction incurred 3. After payment of the said funds administering his Act. plaintiff states.” Insofar as this last (cid:127) defray itself a minimum must The state prayer make asks project. per the cost of the cent of of 25 pay- final certification which leads § 669e. 16 U.S.C.A. Treasury, clearly prema- ment it is ture, respective since, under their scheme 5. He credited accounts Act, payment any money appor- equivalent “no with a sum their share * * * clearly any non-duplicating based on the fund tioned shall be made on project and held a substantial detailed] balance ultimately until such [full they in the event should reserve comply. [wildlife-restoration] statement specifications, plans, project thereof shall have been submit- estimates Wisconsin, joined Colorado Minnesota approved to and ted single complaint, Michigan in a while Interior,” all of which after separate occurs brought But action. two apportionment. involving suits, question, initial U.S.C.A. the identical 669f, also, id., § which 669e. See consolidated below. We likewise § consider normally together. payment fol- them that actual dicates jurisdiction applicable Court proceeding District to this because it action, “disposition also answered sovereign entertain the but involves being dispute property.” There the merits. The second is the rule that facts, material both sides filed courts will compel not “intrude” to dis- summary judgment, sup cretionary action, ground motions for invoked on the ported by Secretary’s duty affi documents and numerous act “turns highly davits. court below denied the Sec matters The doubtful or de- retary’s large awarded batable several motions inference from or loose 9 summary plaintiff states, statutory judgment But, Judge to the terms.” Miller declaring interpretation matter,10 and I view their both obstacles Secretary ordering finding are that, Act overcome correct as to accordingly. suit, Secretary to act matters in of the Interior had no discretion. I case, County, we In this we At the threshold of follow Clackamas by jurisdictional problem. McKay, v. U.S.App.D.C. 108, are met The Ore. 94 a 219 effect, Secretary is, put F.2d insists this 479.11 We to one side all the against boundary “pri talk about an unconsented suit the United between any States, event, that, deeds,12 man vate” and and adds “official” the more circum subtle merely damus will not lie under difference between “tor him tious” acts (or stances. thus seeks to insulate and “ultra vires” He acts acts pursuant committed self behind two distinct lines of defense. to “unconstitutional sovereign authority”),13 baffling The first im is the doctrine and the distinction munity suit, “nega which is between from said be “affirmative” action and completion project. judgment. Judge Miller, concurring More lows of the while only likely, however, I, the demand is in Part dissents on the merits. Secretary of In- certification Judgment moot, 909, 11. vacated as 349 U.S. Secretary Treasury of the terior 599, 75 S.Ct. 99 1244. L.Ed. required apportionment, the initial under See, g., Judge Georgia e. Governor U.S.C.A. 669d. District Ma § 16 v. drazo, (1 123, it, and, Pet.) 110, apparently court, 26 U.S. so 7 L.Ed. viewed 73; least, say parte Young, appellees they 123, 151, Ex 209 at all U.S. 28 441, 52 S.Ct. L.Ed. want. Safety ‘Citing principally Appliances Bowdoin, 643, 8 Mine 13. Malone v. 369 U.S. Forrestal, 371, 980, 168, Supreme Co. 326 U.S. 66 S.Ct. 8 L.Ed.2d S.Ct. 140, 219, 90 L.Ed. and Larson v. Do Court reiterated the rule Larson v. Do Foreign Corp., 682, Foreign supra, Corp., & mestic 337 U.S. mestic & that a suit 1457, Appellees specific S.Ct. L.Ed. 1628. re relief can be maintained spond, alia, involved, against sovereign only inter the funds an officer of if having illegal” been dedicated to the states his action is “so as not longer Congress, property are no powers or, “within the officer’s sovereign, Secretary, powers, only and that pow as a if within those if the temporary ers, moneys, particular custodian mere or their exercise in the proprietary case, constitutionally U.S., has no interest therein. More are void.” 369 they over, point 647, 983, out that this quoting a U.S., not suit at at 82 S.Ct. money judgment, merely 702, princi but at 69 S.Ct. 1467. But this apportionment. ple application 7, tentative See no Note has in mandamus ac rely supra. arguments. compel We do these tions to “executive Government of comply with ficials to gress directives of the Con Citing Line, Panama Canal Co. v. Grace specific impose where a directive [s] Inc., 318-319, 356 U.S. 78 S.Ct. duty a ministerial devoid of the exercise of 2 L.Ed.2d 788. judgment or discretion.” Clackamas Judge Washington does not County, McKay, supra, concur in U.S.App. Ore. v. opinion. But, Part of this because a D.C. at 219 F.2d at and cases majority panel holds that Marbury the dis- there cited Note 29. v. Madi jurisdiction had son, trict court (1 Cranch) 137, entertain 5 U.S. has not been suit, discarded; he reaches merits con- it still controls suits of this opinion II curs Part of this and in the character. rehearsing though holders,” and, all made some effort is Without tive” action.14 meanings apparently have to read two into such cases under which theories whether, expression, inquire pretends clear simply decided, no one we been Congress thought ambiguous In premises, it or in delegated to tended the to construe it as he discretion exercises terior Congress Obviously, saw fit. merely performs a ministerial him, meant or thing by one elaborated reasons the term. For the In view function. controversy construction, act Judge Prettyman Clackamas, if the over its true sover court must “involve what it decide was intended. does ministerial enjoys implies But that eign power” and the discretion in the ad respect to immunity ministrator of with the Act. from suit Nor does it mat no 122-123, ter, jurisdictional 219 U.S.App.D.C. purposes, Id., it 94 if can at it. course, case, be question shown that And, a of in such was “much 479. F.2d perform compel may Secretary’s office, mooted” within issue or mandamus that, Madison, supra. applying Marbury in statute, formerly v. he ance. gave phrase a different construction In- clearly, Here, from For, that here found correct. exec given discretion no terior was utive bootstraps officers “cannot man the wildlife-res- apportionment of initial ufactured them lift themselves out of expressly told He was fund.15 toration jurisdiction courts,” Clackamas acreage basis an half of it on allocate County, McKay, Ore v. supra, at 94 U.S. among and the participating states App.D.C. 124, 479, 219 F.2d and a mis proportion to the half other application of the statute which results hunting-license each from holders (cid:127)of law,” from a “mistake of rather than determining that And, even state. delegated discretion, exercise does make number, authorized to was not he judicial not bar relief. See Panama Ca computation, directed but his own Line, nal Inc., Co. v. Grace supra, 318, at judg- No accept state certificates. 78 757. S.Ct. at We conclude that the discretion, ment, is involved. no jurisdiction District Court had to enter respect, function, Secretary’s is in this and, grant tain the appropriate, action if purely mechanical one. almost a against mandamus legisla- vague however, said, that is It Interior. language area doubt re- creates an tive of administrative quiring exercise II But, merits of whatever the discretion. merits, however, On the we can circumstances,16 in different doctrine that judgment Judge not sustain the below. apply There to this case. does not it Washington think17 the term statutory “large no or loose are here “hunting-license per holders” refers to Line, Co.v. Grace Panama Canal terms.” sons, permits. Otherwise, not 318, supra, word Inc., at 78 S.Ct. at 757. The “hunting-license dispute entirely superfluous.18 only is term in is “holders” It rejection g., For See, v. & Larson Domestic 16. For a of the that doctrine stat e. 1462, supra, 691, utory eign Corp., at 69 at is an S.Ct. construction exercise of ad County, judgment discretion, But Clackamas or Note 11. see ministrative see ff., McKay, supra, Peckham, at 219 the admonition of Mr. Justice Ore. v. writing Court, 479, ir for a statement F.2d Roberts United 221, 231, States, proceedings distinction U.S. 20 S.Ct. relevance quoted type. approval 44 L.Ed. with of this Hoglund, 174, 182, Lane v. U.S. 37 S. say not This Ct. 61 L.Ed. stages no exercises discretion later may process. well It the administrative supra. Judge 17. See Note Miller does instance, approval disap- be, or portion opinion. concur this of the project proval of a sub- conservation 669e, state, a month mitted a Within after issuance of a for- § U.S.C.A. holding by judgment opinion so an administrative which mal volves the Solicitor judicially mandamus. is not reviewable the Interior licensees, individuals contrast between licenses and different counted, significance holding we cannot read into few that must of licenses shreds tendered us. Nor total number is the evidence rather than the supporting Congressional Language adoption clearer. cannot be issued. plain is interpretation what different told that seems administrative Yet we are convincing. For, again, apparently follow plain, should we legislative analysing merely uninformed pre- current fashion Committee was interpreta- history description sented with appor- and administrative language ignoring tion, the clear tionment formula in terms of “licenses” gambit suggestion possible But even text. dif- ference between fails. that measure and the Certainly, one set forth in the statute. legislative history, Indeed, such repeated use of the word “licenses” nothing. are, is, proves it There it appearances Secretary’s in the computation on true, a few references representatives Congressional before “licenses,” but basis of committees cannot be read as more than betrays assumption common bureaucratic shorthand the more of and the number of licenses “paid cumbersome term hunt- holders were the same.20 dividual license ing-license a evidence of conscious In the absence of holders.” 22, infra, Report 1959, 1572, Cong., see note less June House No. 75th 1st 4, Sess., p. in were introduced Con- than nine bills change apportion- gress seeking to generally 20. This was true in 1937 when by deleting formula the crucial word legislation. ment multiplica- the statute was enacted. The None became See “holders.” hunting large- tion of «limited is licenses Cong., 7741, Sess., 86th 1st H.R. ly phenomenon. Nevertheless, a recent as 10881; 7788, 11150; Cong.Rec. H.R. id. plaintiff pains show, states were 7824-7828, 7834, 11336; id. H.R. H.R. possible duplication there was some 11679; 11337; H.R. id. id. S. the same holder from the be- 2220, 2223, also, 6449. See H.R. id. ginning, speakers and while the floor Cong., Sess., Cong.Rec. 87th 1st Congress may the bill not have known it, did not think mentioning, or it worth instance, Representative 19. For Robert- clear it is the Fish and Wildlife Service son, sponsors bill, one of officials, probably who were the true broadly operation described the Act, problem draftsmen of the realized the proposed enactment as follows: Thus, very from the first. “ first « * * provides the bill there guide Manual issued in as a appropriated is authorized be qualifies administration the Act equal amount tax the excise of 10 broad rule that the state certificate should percent guns sporting on and ammuni- include “all hunting licenses defined as li- grants-in-aid tion, to be allocated as on censes State laws” with the caveat that of one-half the basis area and one- “[s]peeial only gen- licenses issued after a half the amount of purchased eral license has been should not sold in the that are several States of the counted, requires be as the ” law the num- * * * Cong.Rec., Union. 75th ber of license holders and not the num- p. Cong., Sess., 1st ber of individual licenses.” It is there- And Senator Pittman made similar that, though fore reasonable to conclude “hunting to, fishing reference li- many Congressmen who voted for appor- as one of censes” the bases for probably appreciate bill difference, did not then Id., p. tionment the fund. 850G. But pur- the word “holder” was utterances, these are not careful mean- posefully apportionment added in the ingfully distinguishing between licenses formula. anything signifi- Nor can licensees. Report Primary cant be read into placed the Committee reliance on the tes- which, summarizing timony bill who, after officials un- apportionment 1950, appeared briefly year scheme the same terms til once a statute, “paid hunting-license Congressional before committee in con- holders,” gives computa- appropriations an illustrative with nection wild- apparently Typical tion appearances based on total fund. of these life issued, presumably following colloquy because those were here only figures reproduced then in full available. See insofar as it bears on Yet, Congres- practice, it sooner. administrative the absence of As to the twenty years, approval, appear that, sional ac- his for some does disinterested23 quiescence apportioned practice in an of the Act erroneous can- the administrators change the clear letter the law.24 on the basis the total fund state, elimi- issued each of licenses it We hold that the Act means what nating is- obviously only multiple licenses says In- that the plain person. But it is sued to same correctly late, terior, applied albeit has required they always law knew that the Accordingly, the order below must it.25 all elimination be vacated and the cases remanded to duplications,22 computations indulged erroneous in the the District Court with directions figures summary only grant appellant’s total license (cid:127)because motions for judgment and dismiss the suits on the them. The furnished having charged may with Interior merits.26 correcting error So ordered. remiss been Secretary is, only apportioning sense, fund: 23. The in a the method Gurney. principle, Mr. Gabrielson man between. the whole “Senator among Fish and Wild- of Interior’s fund distributed the several [Director fairly money states, Service], deducting is this ad- how life argu- among expenses. (cid:127)apportioned the States? The real ministrative ment, then, itself di- is between those with law states “Mr. Gabrielson. apportioning licensing systems fragmented it. method and those rects upon apportioned relatively simple it is license half of structures. One to the total the State of area basis inherently is, course, nothing States, 24. There other United area apportioning more about percentage reasonable of license sales half on the than basis of total licenses rather li- So that to total sold. in the State you get contrary, appel- cense holders. On the of a balance between sort some encourage interpretation population. would lees’ and of a State area system particularized licenses for Gurney. of each That seems to be “Senator type game of in what fair. unseemly grab rightly labels “an for fed- fairly it is I think “Mr. Gabrielson. Congress funds,” which eral cannot be satisfactory; least, none of the States at to have intended. assumed complain about it.” Depart- (Interior Hearings 4590 on H.R. department, how- 25. “A custom of 1942), Appropriation for Bill 77th ment by long officers, continued successive ever p. Cong., Sess., 1st yield language positive to the of the must supra, already noted, Houghton Payne, Note 20 194 22. As v. statute.” 88, U.S. expressly recognized 100, 590, Manual L.Ed. 24 S.Ct. 48 requires paid the number of law “the argument and not of of the dissent number 26. The holders license language proof more That was was that there were licenses.” “there individual ap- succeeding four editions than licensees of retained period through 1958, during pellate and in- at least States Manual Regulatory underlying repeated contradicts as- in the Announce- volved” Indeed, sumption of these cases. of the Fish Wildlife Service ments controversy predicated is on the 1941 and 1957. fact between whole issued difference, ais substantial there at Solicitor plaintiff States, opinion emphati- a formal between the issued least Interior holding apportioning cally “in the number Fed- total Appellees pur- for license holders. funds wildlife restoration individual eral acknowledged clearly they poses much the act as when under section the Sec- retary protested the form of the Interior should certificate re- include Secretáry quired of each State’ all the Interior holders ‘license accept his total to whom a State has issued one refusal license dividuals prose- licenses; figures And thereof. their he should not in lieu or more include proceedings, when, specifically these issued a State un- cution of all licenses obtaining law, a declaration more than State one license aimed der single may “paid license holders” issued to a individual.” means be Opinion 4, issued, import- M-36560, shows the June total Solicitor’s 1959, issue them. 66 I.D. ance Judge, WASHINGTON, con- terior allocate the wildlife restoration Circuit result): curring fund in accordance with the con- court’s struction of the Act. me, mandamus. for To this is not case dissent, Secretary’s however, I view, is my task from action In merely majority vacating ministerial; moneys ap- the order United pealed remanding involved; statute from and in and the are States grant ambiguous. presented a District There is also Court directions to Secretary’s summary more the judgment motion question relations of federal-state congressional think, suitable, than on the I dismiss suit action, judicial circum- merits. As the settlement. In these reason for their my colleagues Supreme rely statutory stances, I that under on the term think paid hunting-license holders,” Panama Co. “number of decision in Canal Court’s they say unambiguous Line, Inc., 78 S.Ct. which 356 U.S. Grace plainly (1958), order that refers to we should number of individuals juris- complaint and not for lack be dismissed licenses issued. they upon Thus rest diction. their decision statutory language any alone, unaided However, other members since the explanatory extraneous matter and un- possess panel we do consider that this jurisdiction, change influenced censing in state li- merits, I will and reach the they say structures which has merits, reach the so likewise adopted. occurred since the Act was may disposed of. Cf. Screws v. case States, 134, 65 S.Ct. 325 U.S. sure, United ordinarily To be it is true that (1945) (opinion unambiguous L.Ed. 1495 language which Secretary’s J.). Rutledge, significance think the given has rational should be present is a construction the statute meaning leg- its literal without resort join Judge Wright proper one, and will history; legisla- islative that when the voting judgment to reverse clearly expressed tive intent statute, in the given Court, the reasons District there is no need for extrinsic evi- opinion. Part II his dence of prin- that intent. Whether that ciple may properly applied here is Judge MILLER, WILBUR K. Chief doubtful, say majority to the least. The dissenting (concurring part and in in opinion notes that in when the Wright Judge part). correct, think, is I enacted, generally statute was it was true Secretary’s rejecting the contention that “the number of licenses and the against an that this unconsented suit number individual license holders agree I United States. And the with his being the same.”1 so, That there was holding that at the of enactment no time occasion “ * * * determining even in Congress disinguish to between number paid license [of holders and of licenses holders, number of license states], he [the the several Secre- and its one use of the terms cannot tary] was not authorized to make to have be said been the result aof de- computation, his own but was di- liberate choice of that term to the exclu- accept rected to the state certificates. sion of the other. For reason, I judgment, discretion, No statutory do not language, believe Secretary’s function, volved. The standing alone, Congress shows con- respect, purely is almost a me- sciously intentionally and pre- intended to chanical one.” one and scribe the not the other as the Accordingly, I apportionment. Surely concur in his basis conclusion the de- jurisdiction multiple velopment licensing the District Court had after the issue order to nature of enactment justify cannot manda- statute’s at- requiring tributing Congress mus of the In- an intention multiplication hunting licenses,” say majority, largely 1. “The of limited “is a recent phenomenon.” upon did area of the and which State a situation to deal with hunting total number licenses is- then exist. not only proper sued States. it One-half Accordingly, think legislative fund will be the ratio necessary allocated on to examine but Congressional that the area of the history State bears to to ascertain enactment, also the total area of and United States. at the time of intent larger This inter- will take care of area administrative consider whether subsequent populations, States with small and pretation of the statute indi- legislative respect it other half will be on the allocated action majority ratio that the total hunt- intent was. what the cate saying ing licenses issued in State bears these considerations dismiss nothing, history proves legislative total number all the issued in Congressional adop- (Emphasis added.) States.” and that evidence explaining legislation inter- on the floor administrative of a different tion convincing. Senate, Pittman, of sponsored Senator who had pretation is not bill, said: “Area and history legislative estab- I think the hunting fishing licenses are the bases beyond peradventure Con- lishes apportionment.” (Emphasis sup- paid thought gress “the number plied.) Representatives The House of being hunting-license holders” by Representative was informed Robert- thing is- of licenses as the number same sponsor son, bill, companion House and, therefore, did not intend sued prescribe hunting that the number of licenses sold as a other the one apportionment. was to be the basis of the apportionment. In the circum- basis He stated:4 enactment, there time stances “* * * provides so the each license and a holder for bill [T]he statutory appro- instead former word use there authorized to be fortuitous; entirely priated equal an amount ex- the latter was during percent sporting com- was used cise tax of 10 “license” on word guns hearings ammunition, floors to be allocat- mittee por- describing grants-in-aid ed as and Senate on the basis of House apportion- scheme of one-half area and on the tion one-half amount licenses that are ment. sold in the several States legislative words as to his- A few ”*** (Emphasis sup- Union. tory this. The Act was will illustrate plied.) Congress in the as S. introduced Congress, 1st 75th Ses- and H.R. legislative history, In addition to having by prepared sion, been both bills sig interpretation administrative Committees Conservation twenty years nificant. For more than in and Senate collaboration House passage in after the of the statute wildlife and national associations certain charge Departments successively in During agencies. hearings, Carl D. payments apportioning thereunder Secretary Shoemaker, Spe- Senate computed on the them num basis on Conservation Wild- Committee cial issued, rather than licenses ber Secretary of the Gen- life Resources persons to whom licenses had Federation, fol- Wildlife made the eral disputed by This been issued. was lowing explanatory statement: by Secretary, and admitted the attorney was his “The manner in which the States in the District Court a col money judge.5 allocated is based loquy prac

will be trial with the The Hearing Special Cong.Rec. (1937). Com- Before House 3. 81 on mittee Conservation Wildlife Re- (1937). Cong.Rec. 9351 4. 81 sources, Cong., Sess., p. 75th 1st time, (1937). that At the licenses “The Coubt: and itemized and broken down firmatively dup- by they is manuals official contained authorized tice was Departments: supervising lications of by individual license hold- sued said, might It ers. no of instructions individual manual " purchased big * * # the state had both must be share State’s [E]ach game game small license.” part the number based in (Emphasis added.) during year” “In and that fiscal sold n certifying hunting Thus, paid assumption the basis the number evidentiary should which Department, there he admitted had no licenses to the might correct, hunt foundation defined as all licenses hot be be included Secretary ing by apportion laws.” Successive funds refused to State instructions, according manual of to the four certifica- revisions of the including States’ So, sub tions. contained last the fore- that of sentence in going italicized, provision. quotation, .stance the same which have by seems to me to be a concession interpretation of The administrative Secretary arbitrarily that he acted by not disturbed sub was statute concluding of issued licenses the number

sequent implementing legislation. From exceededthe number of holders. Congress annual 1937 until made appropriations Aid to for the Federal says Secretary The statute “shall none Wildlife Restoration Fund.6 In apportion” one half of the revenues Congress years express dissatis these did among the fund “in the several states use of faction with the administrative the ratio ing-license paid which number of hunt- * * * the number of licenses as basis holders of each State although .apportionment, it knew by to said the State certified basis number of licenses issued was the game departments, bears fish by Department. proposi used paid hunting-license total number of hold- long-continued acquiescence tion that ers of all (Emphasis sup- the States.” n Congressgives interpre administrative plied.) affirmatively It was stated authority tation the of law is well un so findings proposed in his of fact unnecessary derstood it is author cite “Wisconsin, Colorado, Minnesota, * * * ity support it. Michigan submitted certifi- ‘paid cations the number of addition, proof there ” is, therefore, ap- license holders.’ parent It there were than more licenses licensees obey that the did not appellee during pe- four States plain direction of the statute that he Secretary merely riod involved. The as- states; act on the certificates of the he sumed that number of ex- apportion refused on those certifica- holders; ceeded individual although tions, so, duty it was his to do lie admitted as much when he said: “ majority as the state. * * * Instead he at- Statistics as to the num- tempted justify his disobedience purchased ber of hunters who more saying: than one license were maintained “ ** * Plaintiff States. These cer- These [certificates] * * * not, however, did tifications af- show showed on their face ilióse licenses were the number li- Well until “Mb. MacGuineas: this opinion Department’s censes issued. [of new Solici- out, right.. “Mr. MacGuineas : That came tor] was 1959.” per- “The Court: Not number of (64 693) of 1950 Stat. The statute made sons? appropriations unnecessary annual there- right. “Mr. MacGuineas: That after. policy Now “The Court: then quote paragraph from numbered I followed In- findings proposed passage amended 6 of the terior from the time of the up until, fact submitted

"the Act what 1959? last two District Court. The sentences repeated in his brief. are

799' certi- holders’ the number ‘license actually fied was total hunting sold, than rather whom

the number individuals sold been had

one or more licenses ” * * (cid:127)» said, he admitted,

Yet he as I have more plain surmised there were attempt

than This was holders. discretion exercise majority hold— area in which the agree—he judgment, no I “No has

discretion.” Secretary’s

One final comment.

suggestion District that, under might multiply ruling, the states Court’s obtain order their imputes larger portion funds of federal any

venality reason real without to them believe, unwilling doing am so. legis- convincing proof, that the without enlarge sovereign would states latures hunting licenses the number of their unworthy motive.

from such an clearly judge was I think trial

right, judgment. affirm his and I would al., Appellants,

Henry MORGAN et S. UDALL, Secretary the In L.

Stewart terior, al., Appellees. et

No. 16367. Appeals States Court

United of Columbia Circuit. District

Argued Feb. July

Decided Rehearing

Petition Denied Sept. 12, 1962. Sonosky, Washington, J.

Mr. Marvin C., appellants. D.

Case Details

Case Name: Stewart Udall, Secretary of the Interior v. States of Wisconsin, Colorado and Minnesota, Stewart Udall, Secretary of the Interior v. State of Michigan

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 28, 1962

Citation: 306 F.2d 790

Docket Number: 16670_1

Court Abbreviation: D.C. Cir.