United States v. Ormsbee, 74 F. 207

United States v. Ormsbee

74 F. 207 | E.D. Wis. | 1896

SEAMAN, District Judge

(after stating tbe facts as above). In support of tbe motion to quash tbe indictment tbe contention is that the regulations of tbe secretary of war, of which violation is alleged, depend for their validity upon section 4 of tbe act of August 17, 1894; that there is no exercise of tbe will or discretion of congress ■in the- act, no prohibition of distinct acts or course of conduct, but ■that it expressly delegates to tbe secretary of war all of tbe law making contemplated bjr. tbe act, and simply prescribes in advance •the punishment for offenses which may be so established; that an offense created solely through such delegation cannot be made indict-*209atole. The sovereign power to make national laws is vested in congress, and it is a settled, maxim in constitutional law that this power cannot be delegated; that “the power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted .cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved.” Cooley, Const. Lim. 137. This rule, however, applies only to powers which are strictly and exclusively legislative, and there is a wide range of subjects, which may be regulated by direct legislation, but: for which general provision may be made, and “power given io those who are to act under such general provisions, to fill up the details” for. as remarked by Chief Justice Marshall, “congress may certainly delegate to others powers which the legislature may rightfully exercise itself.” Wayman v. Southard, 10 Wheat. 1, 43. Therefore the provision of the judiciary act which empowered the courts to adopt rules of practice and forms of procedure is a valid delegation, although the discretion conferred was quasi legislative. Id.; Snth. St. Const. § 08. So the power* of the secretary of war to prescribe rules and regulations for the government of the army, and like authority in the secretary of the navy over his department, have been sustained, and within their sphere of action the regulations have the “force* of law.” U. S. v. Eliason. 16 Pet. 291; Gratiot v. U. S., 4 How. 80; Smith v. Whitney, 110 U. S. 167, 6 Sup. Ct. 570. The examples of valid delegations to executive departments of like effect are numerous, but I deem it unnecessary to multiply citations, and mention only for their clear exposition of the rule and the exception which may apply here the following: Tilley v. Railroad Co., 5 Fed. 641; Railway Co. v. Dey, 35 Fed. 866; In re Griner, 16 Wis. 423. If either this act of congress which directs that “rules and regulations for the use, administration, and navigation” of the canals and works of navigation “owned, operated, or maintained by the United States” be prescribed by the secretary of war, or the regulations referred lo as adopted thereupon imposed the requirement or restraint of action or conduct which would be lawful but for the attempted legislation, there would be occasion for the inquiry whether tin* legislative will had been distinctly exercised and pronounced, in some general provision at least, either in this or some cognate enactment; and it; would then become necessary to consider the distinctions as to delegation of power, for which the defendant contends, as pointed out in Field v. Clark, 143 U. S. 649, 693, 12 Sup. Ct. 495, and the authorities there approved, namely, that “the legislature cannot delegate its power to make the law, but it can main* 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.” Locke’s Appeal, 72 Pa. Bf. 491. Here, however, the indictment alleges an offense committed by “knowingly and willfully drawing- water” from a canal “then and there owned, operated, and main rained by the said United Brutes.” and thereby lowering the water surface below the crest of the dam, — an interference with the property and proprietary rights of the government. Presumptively, compensation lias been rendered *210to all riparian owners, and all rights in and control of the waters of the canal are Tested in the United States, and no persons can have use, either of water or works, except under permission, and subject to any regulations which may be imposed. Without such permission the use would constitute a trespass. In this case congress provides that permission may be granted through rules and regulations to be adopted by the executive ■ department having charge of the works. It is true that congress might prescribe the rules, either in general terms or in detail, but they are,clearly of administrative, rather than legislative, nature, and may be relegated entirely to any executive agency, either with or without direct provisions by congress. The discretion which is conferred, having regard to the use and care of the property of thé United States, seems to appertain to the executive department, and to be of the class defined in U. S. v. Eliason, 16 Pet. 291, 301. The regulations so made constitute the only permission for using the water, and without permission there can be no claim of right to use, I presume, even without declaration by congress to that effect; but section 7 of the act of September 19,1890, as amended by the act of July 13, 1892, clearly prohibits any use ‘‘unless approved and authorized by the secretary of war.” I am of opinion that regulations for the purpose stated in the indictment may be established by the secretary of war, and that they have tin* “force of law” within those purposes when adopted and promulgated as directed by the act. Gratiot v. U. S., 4 How. 80, 117. Therefore the motion to quash the.indictment will be overruled.