United States v. Grimaud, 220 U.S. 506 (1911)

United States v. Grimaud

Nos. 241

, 242

Argued February 28, 1910
Affirmed by divided Court March 14, 1910
Restored to docket for reargument April 18, 1910
Reargued March 3, 1911
Decided May 3, 1911
220 U.S. 506

ERROR TO THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Syllabus

Under the acts establishing forest reservations, their use for grazing or other lawful purposes is subject to rules and regulations established by the Secretary of Agriculture, and, it being impracticable for Congress to provide general regulations, that body acted within its constitutional power in conferring power on the Secretary to establish such rules; the power so conferred being administrative and not legislative, is not an unconstitutional delegation.

While it is difficult to define the line which separates legislative power to make laws and administrative authority to make regulations, Congress may delegate power to fill up details where it has indicated its will in the statute, and it may make violations of such regulations punishable as indicated in the statute, and so held that regulations made by the Secretary of Agriculture as to grazing sheep on forest reserves have the force of law, and that violations thereof are punishable, under Act of June 4, 1897, c. 2, 30 Stat. 35, as prescribed in § 5388, Rev.Stat.

Congress cannot delegate legislative power, Field v. Clark, 143 U.S. 692, but the authority to make administrative rules is not a delegation of legislative power, and such rules do not become legislation because violations thereof are punished as public offenses.

Even if there is no express act of Congress making it unlawful to graze sheep or cattle on a forest reserve, when Congress expressly provides that such reserves can only be used for lawful purposes subject to regulations and makes a violation of such regulations an offense, any existing implied license to graze is curtailed and qualified by Congress, and one violating the regulations when promulgated makes an unlawful use of the government’s property, and becomes subject to the penalty imposed.

A provision in an act of Congress as to the use made of moneys received from government property clearly indicates an authority to the executive officer authorized by statute to make regulations regarding the property to impose a charge for its use.

Where the penalty for violations of regulations to be made by an executive officer is prescribed by statute, the violation is not made a crime by such officer, but by Congress, and Congress, and not such officer, fixes the penalty, nor is the offense against such, officer but against the United States. 170 F. 205 reversed.

By the Act of March 3, 1891, 26 Stat. 1103, c. 561, the President was authorized from time to time to set apart and reserve, in any state or territory, public lands, wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public forest reservations. And by the Act of June 4, 1897, 30 Stat. 35, c. 2, the purposes of these reservations were declared to be

to improve and protect the forest within the reservation, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States. . . . All waters on such reservations may be used for domestic, mining, milling, or irrigation purposes under the laws of the state wherein such forest reservations are situated or under the laws of the United States, and the rules and regulations established thereunder.

30 Stat. 36.

It is also provided that nothing in the act should

be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of such reservations, . . . nor shall anything herein prohibit any person from entering upon such forest reservations for all proper and lawful purposes, . . . provided that such persons comply with the rules and regulations covering such forest reservations.

There were special provisions as to the sale of timber from any reserve (except those in the State of California, 30 Stat. 35, c. 2; 31 Stat. 661, c. 804), and a requirement that the proceeds thereof and from any other forest source should be covered into the Treasury, the Act of February 1, 1905, 33 Stat. 628, c. 288, § 5, providing that

all money received from the sale of any products or the use of any land or resources of said forest reserves shall be covered into the Treasury of the United States, and for a period of five years from the passage of this act shall constitute a special fund available, until expended, as the Secretary of Agriculture may direct, for the protection, administration, improvement, and extension of federal forest reserves.

The act of 1905, as to receipts arising from the sale of any products or the use of any land, was, in some respects, modified by the Act of March 4, 1907. It provided that all moneys received after July 1, 1907, by or on account of forest service timber, or from any other source of forest reservation revenue, shall be covered into the Treasury, provided

that ten percentum of all money received from each forest reserve during any fiscal year, including the year ending June 30th, 1906, shall be paid at the end thereof by the Secretary of the Treasury to the state or territory in which said reserve is situated, to be expended, as the state or territorial legislature may prescribe, for the benefit of the public schools and public roads of the county or counties in which the forest reserve is situated.

34 Stat. 1270, c. 2907.

The jurisdiction, both civil and criminal, over persons within such reservation, was not to be affected by the establishment thereof

except so far as the punishment of offenses against the United States therein is concerned; the intent and meaning of this provision being that the state . . . shall not, by reason of the establishment . . . [of the reserve] lose its jurisdiction, nor the inhabitants thereof their rights and privileges as citizens, or be absolved from their duties as citizens of the state.

30 Stat. 36, c. 2.

The original act provided that the management and regulation of these reserves should be by the Secretary of the Interior, but, in 1905, that power was conferred upon the Secretary of Agriculture (33 Stat. 628), and, by virtue of those various statutes, he was authorized to

make provisions for the protection against destruction by fire and depredations upon the public forests and forest reservations . . . , and he may make such rules and regulations and establish such service as will insure the objects of such reservations; namely, to regulate their occupancy and use, and to preserve the forests thereon from destruction, and any violation of the provisions of this act or such rules and regulations shall be punished,

as prescribed in Rev.Stat. 5388, which, as amended, provides for a fine of not more than $500 and imprisonment for not more than twelve months, or both at the discretion of the court. 26 Stat. 1103, c. 561; 30 Stat. 34, 35, c. 2; 31 Stat. 661, c. 804; 33 Stat. 36, c. 160; 7 Fed.Stat.Anno. 310-317, 296, Supp. 1909, p. 634.

Under these acts, the Secretary of Agriculture, on June 12, 1906, promulgated and established certain rules for the purpose of regulating the use and occupancy of the public forest reservations and preserving the forests thereon from destruction, and among those established was the following:

Regulation 45. All persons must secure permits before grazing any stock in a forest reserve, except the few head in actual use by prospectors, campers, and travelers, and milch or work animals, not exceeding a total of six head, owned by bona fide settlers residing in or near a forest reserve, which are excepted and require no permit.

The defendants were charged with driving and grazing sheep on a reserve without a permit. The grand jury in the District Court for the Southern District of California, at the November term, 1907, indicted Pierre Grimaud and J. P. Carajous, charging that, on April 26, 1907, after the Sierra Forest Reserve had been established, and after regulation 45 had been promulgated,

they did knowingly, willfully, and unlawfully pasture and graze, and cause and procure to be pastured and grazed, certain sheep (the exact number being to the grand jurors unknown) upon certain land within the limits of and a part of said Sierra Forest Reserve, without having theretofore or at any time secured or obtained a permit or any permission for said pasturing or grazing of said sheep or any part of them, as required by the said rules and regulations of the Secretary of Agriculture,

the said sheep not being within any of the excepted classes. The indictment concluded,

contrary to the form of the statutes of the United States in such case made and provided, and against the peace and dignity of the said United States.

The defendants demurred, upon the ground

(1) that the facts stated did not constitute a public offense, or a public offense against the United States, and (2) that the Acts of Congress making it an offense to violate rules and regulations made and promulgated by the Secretary of Agriculture are unconstitutional, in that they are an attempt by Congress to delegate its legislative power to an administrative officer.

The court sustained the demurrers (170 F. 205), and made a like ruling on the similar indictment in United States v. Inda, 216 U.S. 614. Both judgments were affirmed by a divided court. Afterwards, petitions for rehearing were granted.