8 Mont. 85 | Mont. | 1888
This is an action brought fbr the purpose of recovering the value of twenty-eight thousand cords of wood, cut on the public domain during the years of 1884 and 1885. It was brought under the Laws of the 45th Congress, Second Session, chapter 150 (Act June 3, 1878), which provides that “ all citizens of the United States and other persons, bona fide residents .... of Montana, shall be and are hereby authorized and permitted to fell and remove, for building, agricultural, mining, or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, .... subject to such rules and regulations as the secretary of the interior may prescribe for the protection of the undergrowth growing upon such lands, and for other purposes.” Under the provisions of the above act of Congress, the secretary of the interior prescribed certain rules and regulations, on the first day of June, 1883, which, among other things, for
1. We do not deem it necessary to notice the criticism made by counsel for the respondents, thatthe proposition of the district attorney was not broad enough to include everything necessary to make out his case. We think that a fair construction of the language used in the transcript, denoting what was proposed to be proved, will embrace all that was necessary to make out the case under the complaint. Besides, we prefer to rest the determination of this case upon the more meritorious ground, whether
2. The consideration of this question involves the further question, whether the repeal of the regulation forbidding the cutting of timber under eight inches in diameter is a bar to the right of action of the plaintiff. This case was before us at the January term, 1887. (See 6 Mont. 397.) It was then held that the act under consideration, wherein authority was conferred upon the secretary of the interior to prescribe rules and regulations in regard to the cutting of timber, is constitutional. The court, in that case, in commenting upon this question, uses the following language, to wit: “ Such a restriction was not a delegation of legislative powers, and cannot by any fair process of reasoning be so considered. The rules and regulations of the secretary of the interior made under this statute are not in this sense laws, and cannot be so considered.....The principle of constitutional law, forbidding the delegation of legislative powers, was never intended to have any such effect. It would be impossible for Congress to prescribe every detail governing the administration and management of every department of the government; and if it were possible, it would not be wise.” It will be seen from the above extract of the opinion of the court that it held that the rules and regulations of the secretary of the interior made under this statute are not “ in this sense laws.” While they are not put upon an equal footing of dignity with the enactments of Congress, still the act of itself provided for the enjoyment of the privileges granted, under and subject to such rules and regulations as may be prescribed by the secretary of the interior for the protection of the undergrowth upon such land, and for other purposes, and, these rules and regulations having been upheld as constitutional by this court, they necessarily become a part of the act of Congress under which they were made, and have the same binding effect upon all persons seeking to take advantage of the license granted by said act, as if they had been contained in the act itself. Precisely what the court meant, when it said they were not laws in the particular sense indicated, is not very clear. Certainly, if they are to be upheld at all, it cannot be doubted that they have all the effect
It should be further born in mind that, with the rules and regulations of the secretary of the interior, superadded to the act of Congress itself, the defendant had no more right to cut the timber off the public domain, under eight inches in diameter, than if such licensing act had never been passed at all. The statute gives a sweeping license to cut timber, limited only by the uses to which the timber is to be applied, and subject to such rules and regulations as the secretary of the interior may prescribe. Just as soon as these regulations were made, forbidding the cutting of timber under eight inches in diameter, the license granted by the act of Congress was revoked to that extent, and the defendant, if guilty as charged in the complaint, which is assumed for the purposes of this decision, was as much guilty of a trespass as if there had never been such an act passed. The question then arises, what were the rights of the United States in relation to this timber, under the conditions alleged in the complaint, and offered to be proven by the excluded testimony? The timber had been unlawfully cut and converted, and the right of the United States to receive compensation for its property completely vested. What effect, then, did the subsequent revocation of these rules and regulations, touching the cutting of such timber, have upon this right? We take it that the modification of the rule is analogous to the repeal of the statute, and that its effect must be determined by the rules of law, governing the repeal of the statute under which the alleged right had arisen, and which was being prosecuted in the courts, but still had not been reduced to a judgment. It would be instructive
Judgment reversed.