Whelpley v. Grosvold

249 F. 812 | 9th Cir. | 1918

GILBERT, Circuit Judge

(after stating the facts as above).

The principal question on the appeal is whether or not the Department of Commerce and Labor had authority to execute the lease. On July 27, 1868 (Rev.Stat. § 1956), Congress gaye the Secretary of the Treasury power to authorize the killing of any fur-bearing animal except fur seals within the limits of Alaska Territory or in the waters thereof, “under such regulations as he may prescribe.” By the act of March 3, 1879 (20 Stat. 383 [40 U.S.C.A. § 303 and note]), power was given the Secretary of the Treasury at his discretion to lease, “for a period not exceeding five years, such unoccupied and unproductive property of the United States under his control, for the leasing of which there is no authority under existing law.” This act is similar in its scope to Act July 28, 1892, c. 316, 27 Stat. 321 (40 U.S.C.A. § 303 and note), authorizing the Secretary of War to lease property “under his control,” and the question arises whether the island in question was under the control of the Secretary of the Treasury. We are inclined to the view that it had been placed under his control by the act of July 27, 1868; but, however that may be, we think it clear that the act of May 14, 1898 (30 Stat. 409, 413), recognizes and ratifies executive authority through the Secretary of the Treasury to lease the island in question. It was thereby enacted that the homestead laws of the United States, and all rights incident thereto, be extended to the district of Alaska: “Provided, that the Annette, Pribilof Islands, and the islands leased or occupied for the propagation of foxes be excepted from the operation of this act.” 48 U.S.C.A. § 465.

It is contended, however, that, assuming that the Secretary of the Treasury had the power to lease, there has been no lawful transfer of that authority to the Department of Commerce and Labor. Section 7 of the act of February 14, 1903 (32 Stat. 825, 828 [16 U.S.C.A. § 631]), transfers to that department “the jurisdiction, supervision and control now possessed and exercised by the Department of the Treasury over the fur-seal, salmon and other fisheries of Alaska”; but there was no express transfer of the authority to lease unoccupied land. On February 2, 1904, an executive order was promulgated upon the recommendation of the Secretary of the Treasury and the Secretary of Commerce and Labor transferring to and vesting in the Secretary of Commerce and Labor the authority of the Secretary of the Treasury to “lease certain islands in Alaska for the propagation of foxes, and all duties and powers pertaining thereto.” The appellant asserts that the President had no power to make the order, and that he thereby assumed authority over the public domain which by the Constitution had been expressly vested in Congress.

But the power to make the leases, if it exists, is executive power. It has always been recognized that the President, as the head of the respective executive departments, in the absence of any inconsistent statutory provision, has authority to assign to the heads of the departments powers which are vested in the executive. In Act July 27, 1789, c. 4, § 1, 1 Stat. 28 (see 5 U.S.C.A. § 156 and note), creating the Department of State, it was provided that the Secretary of State shall perform such duties as shall from time to time be enjoined on and entrusted to him by the President, and he shall conduct the business of said department “in such manner as the President of the United States shall from time to time order or direct.” Similar provisions are found in the acts creating the Departments of War and the Navy, and the omission of such provisions from acts providing for departments that were later created should not be held to indicate legislative intention to withhold similar powers as to those departments. We hold, therefore, that, the executive authority to lease the island in question having been recognized and ratified by the act of May 14, 1898, it was within the power of the President to vest that authority in the Department of Commerce and Labor, as was done in this case. 7 Ops.Attys.Gen. 462, 469 ; 25 Ops.Attys.Gen. 497.

The appellant claims the protection of Act May 17, 1884, c. 53, 23 Stat. 24, providing a civil government for Alaska, wherein it was enacted that:

“The Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation, or now claimed by them.” 48 U.S.C.A. § 356 note.

But that act recognizes only the rights of “such Indians or other persons as were in possession of lands at the time of the passage of the act.” Russian-American Co. v. United States, 199 U.S. 570, 576, 26 S.Ct. 157, 50 L.Ed. 314. It does not appear that the appellant or any of his predecessors in interest was in possession of the island or claimed it in the year 1884.

It is assigned as error that the appellee was permitted to testify to a conversation had on March 18, 1914, with one Colwell, who represented the Fundy Fox Company, in which it was agreed that Colwell should be allowed until September 1, 1914, to take off personal property from the island, in consideration of which the property thereafter remaining should belong to the appellee. It was objected that no showing was made that Colwell was the agent of the appellant. In his answer to the complaint the appellant had pleaded that the Provincial Fox Company was the owner of all the property which he had purchased from Reid, and that he, the appellant, represented said company, and owned one-fifth of the capital stock thereof. At that time the appellant was also a member of the Fundy Fox Company, a limited partnership, which company was the agent of the Provincial Fox Company, and seems to have advanced the purchase money which was paid to Reid. Another member of the Fundy Fox Company was Williams, and he testified that Colwell was sent to take possession of Little Koniuji Island in the place and stead of the appellant, and that the Provincial Fox Company instructed Colwell to take charge of their interests on the island. The evidence was sufficient, therefore, to show, prima facie at least, that Colwell was the agent of both the Fundy Fox Company and the Provincial Fox Company.

The complaint alleges . trespasses, repeated and threatened to be repeated, the effect of which would be to destroy the value of the appellee’s leasehold interest, and for which damages were necessarily difficult of ascertainment and could be obtained, if at all, only by a multiplicity of suits. In such a case a suit in equity for an injunction is the permissible and the only adequate remedy. 22 Cyc. 826, 827; Joyce on Injunctions, § 1127; Nichols v. Jones (C.C.) 19 F. 855; United States Freehold, etc., Co. v. Gallegos, 89 F. 769, 32 C.C.A. 470. The facts entitling the appellee to an injunction were not, only sufficiently pleaded in the complaint, but were found by the court and are shown 'by the record, and although the trial court found that the appellant had removed from the island only his own foxes, and on that account denied the appellee damages, it was found as facts that the appellant threatened to continue the trespasses and continue to remove foxes, whereas he had removed all that belonged to him. Under, those circumstances, the injunction was properly issued.

The decree is affirmed.