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"The legislature cannot delegate its pow er to make a law, but it can make 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. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside of the halls of legislation." See also Caha v. United States, 152 U. S. 211, 38 L. ed. 415, 14 Sup. Ct. Rep. 513; United States v. Bailey, 9 Pet. 238, 9 L. ed. 113; Cosmos Exploration Co. v. Gray Eagle Oil Co. 190 U. S. 309, 47 L. ed. 1070, 23 Sup. Ct. Rep. 692; Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 333, 53 L. ed. 1019, 29 Sup. Ct. Rep. 671; Roughton v. Knight, 219 U. S. 537, 55 L. ed. 31 Sup. Ct. Rep. 297; Smith v. Whitney. 116 U. S. 167, 29 L. ed. 601, 6 Sup. Ct. Rep. 570; Ex parte Reed, 100 U. S. 22, 25 L. ed. 539; Gratiot v. United States, 4 How. 81, 11 L. ed. 885.

Eaton failed to keep the books required by And again he said in Marshall Field & the regulations. But there was no charge Co. v. Clark, 143 U. S. 694, 36 L. ed. 310, that he omitted "anything required by law," | 12 Sup. Ct. Rep. 495: unless it could be held that the books called for by the regulations were "required by law." The court construed the act as a whole, and proceeded on the theory that while a violation of the regulations might have been punished as an offense if Congress had so enacted, it had, in fact, made no such provision so far as concerned the particular charge then under consideration. Congress required the dealer to keep books rendering return of materials and products, but imposed no penalty for failing so to do. The commissioner went much further, and required the dealer to keep books showing oleomargarine received, from whom received, and to whom the same was sold. It was sought to punish the defendant for failing to keep the books required by the regulations. Manifestly this was putting the regulations above the statute. The court showed that when Congress enacted that a certain sort of book should be kept, the commissioner could not go further and require additional books; or, if he did make such regulation, there was no provision in the statute by which a failure to comply therewith could be punished. It said that, "if Congress intended to make it an offense for wholesale dealers to omit to keep books and render returns required by regulations of the commissioner, it would have done so distinctly,"-implying that if it had done so distinctly, the violation of the regula tions would have been an offense.

But the very thing which was omitted in the oleomargarine act has been distinctly done in the forest reserve act, which, in terms, provides that "any violation of the provisions of this act or such rules and regulations [of the Secretary] shall be punished" as prescribed in § 5388 of the Revised Statutes as amended.

In Union Bridge Co. v. United States, 204 U. S. 386, 51 L. ed. 533, 27 Sup. Ct. Rep. 367, Justice Harlan, speaking for the court, said:

"By the statute in question, Congress declared in effect* that navigation should be freed from unreasonable obstructions arising from bridges of insufficient height, width of span, or other defects. It stopped, however, with this declaration of a general rule, and imposed upon the Secretary of War the duty of ascertaining what particular cases came within the rule prescribed by Congress, as well as the duty of enforcing the rule in such cases. In performing that duty the Secretary of War will only execute the clearly expressed will of Congress, and will not, in any true sense, exert legislative or judicial power."

In Brodbine v. Revere, 182 Mass. 599, 66 N. E. 607, a boulevard and park board was given authority to make rules and regulations for the control and government of the roadways under its care. It was there held that the provision in the act that breaches of the rules thus made should be breaches of the peace, punishable in any court having jurisdiction, was not a delegation of legislative power which was unconstitutional. The court called attention to the fact that the punishment was not fixed by the board, saying that the making of the rules was administrative, while the substantive legislation was in the statute, which provided that they should be punished as breaches of the peace.

That "Congress cannot delegate legislative power is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." Marshall Field & Co. v. Clark, 143 U. S. 692, 36 L. ed. 309, 12 Sup. Ct. Rep. 495. But the authority to make administrative rules is not a delegation of legislative power, nor are such rules raised from an administrative to a legislative character because the violation thereof is punished as a public offense.

It is true that there is no act of Congress which, in express terms, declares that it shall be unlawful to graze sheep on a forest reserve. But the statutes from which we have quoted declare that the privilege of using reserves for "all proper and lawful purposes" is subject to the proviso that

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the person so using them shall comply "with; Ct. Rep. 163. As to those here involved, the rules and regulations covering said forest reservation." The same act makes it an offense to violate those regulations; that is, to use them otherwise than in accordance with the rules established by the Secretary. Thus the implied license under which the United States had suffered its public domain to be used as a pasture for sheep and cattle, mentioned in Buford v. Houtz, 133 U. S. 326, 33 L. ed. 620, 10 Sup. Ct. Rep. 805, was curtailed and qualified by Congress, to the extent that such privilege should not be exercised in contravention of the rules and regulations. Wilcox v. Jackson, 13 Pet. 513, 10 L. ed. 271.

If, after the passage of the act and the promulgation of the rule, the defendants drove and grazed their sheep upon the reserve, in violation of the regulations, they were making an unlawful use of the government's property. In doing so they thereby made themselves liable to the penalty imposed by Congress.

In

It was argued that, even if the Secretary could establish regulations under which a permit was required, there was nothing in the act to indicate that Congress had intended or authorized him to charge for the privilege of grazing sheep on the reserve. These fees were fixed to prevent excessive grazing, and thereby protect the young growth and native grasses from destruction, and to make a slight income with which to meet the expenses of management. addition to the general power in the act of 1897, already quoted, the act of February 1st, 1905 [33 Stat. at L. 628, chap. 288, § 5, U. S. Comp. Stat. Supp. 1909, p. 577], clearly indicates that the Secretary was authorized to make charges out of which a revenue from forest resources was expected to arise. For it declares 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, and be applied toward the payment of forest expenses. This act was passed before the promulgation of regulation 45, set out in the indictment.

Subsequent acts also provide that money received from "any source of forest reservation revenue" should be covered into the Treasury, and a part thereof was to be turned over to the Treasurers of the respective states, to be expended for the benefit of the public schools and public roads in the counties in which the forest reserves are situated. (34 Stat. at L. 684, chap. 3913, 1270, chap. 2907.)

The Secretary of Agriculture could not make rules and regulations for any and Williamson every purpose. United States, 207 U. S. 462, 52 L. ed. 297, 28 Sup.

V.

For other cases see same topic & § NUMBER in

they all relate to matters clearly indicated and authorized by Congress. The subjects as to which the Secretary can regulate are defined. The lands are set apart as a forest reserve. He is required to make provision to protect them from depredations and from harmful uses. He is authorized "to regulate the occupancy and use and to preserve the forests from destruction." A violation of reasonable rules regulating the use and occupancy of the property is made a crime, not by the Secretary, but by Congress. The statute, not the Secretary, fixes the penalty.

The indictment charges, and the demurrer, admits that rule 45 was promulgated for the purpose of regulating the occupancy and use of the public forest reservation and preserving the forest. The Secretary did not exercise the legislative power of declaring the penalty or fixing the punishment for grazing sheep without a permit, but the punishment is imposed by the act itself. The offense is not against the Secretary, but, as the indictment properly concludes, "contrary to the laws of the United States and the peace and dignity thereof." The demurrers should have been overruled. The affirmances by a divided court heretofore entered are set aside and the judgments in both cases reversed.

(220 U. S. 523.) FRED LIGHT, Appt.,

V.

UNITED STATES. CONSTITUTIONAL LAW (§ 62*) — 'DelegaTION OF POWER.

1. Legislative power was not unconstitutionally delegated to the Secretary of Agriculture by the provisions of the forest reserve acts of June 4, 1897 (30 Stat. at L. 35, chap. 2, U. S. Comp. Stat. 1901, p. 1539), and February 1, 1905 (33 Stat. at L. 628, chap. 288, U. S. Comp. Stat. Supp. 1909, p. 577), making criminal the violation of the rules and regulations covering forest reservations, made and promulgated by him under authority of those statutes.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 94-102; Dec. Dig. § 62.*] WOODS AND FORESTS (8 8*)-POWER OF CONGRESS-ESTABLISHING FOREST RESER

VATIONS.

trol of the property of the United States, 2. Congress, in the exercise of its conunder U. S. Const. art. 4, § 3, could constitutionally enact the act of March 3, 1891 (26 Stat. at L. 1103, chap. 561, U. S. Comp. Stat. 1901, p. 1537), under which public forest reservations may be established on the public domain without the consent of the state where the land lies.

[Ed. Note.-For other cases, see Woods and

Forests, Dec. Dig. § 8.*]

Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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PUBLIC LANDS (§ 17*)-GRAZING ON FOR- | east, and 5 miles to the north, of the resEST RESERVATIONS-FENCES.

3. The United States is entitled to in

junctive relief where a cattle owner who has not secured the requisite stock-grazing permit from the Secretary of Agriculture turns out his cattle under circumstances

which show that he expected and intended that they would graze on a forest reservation, although the government may not have complied with the local fence laws, even assuming that such laws can apply to the United States.

[Ed. Note.-For other cases, see Public Lands, Cent. Dig. § 23; Dec. Dig. § 17.*]

[No. 360.]

ervation. This herd was turned out to range during the spring and summer, and the ranch then used as a place on which to raise hay for their sustenance.

That between the ranch and the reservation was other public and unoccupied land of the United States; but, owing to the fact that only a limited number of cattle were allowed on the reservation, the grazing there was better than on this public land. For this reason, and because of the superior water facilities and the tendency of the cattle to follow the trails and stream leading from the ranch to the reservation, they naturally went direct to the reservation.

Argued February 27 and 28, 1911. Decided The bill charged that the defendant, when

A

May 1, 1911.

PPEAL from the Circuit Court of the United States for the District of Colorado to review a decree enjoining the grazing of stock on a public forest reservation without a permit. Affirmed.

Statement by Mr. Justice Lamar: *The Holy Cross Forest Reserve was established under the provisions of the Act of March 3, 1891. By that and subsequent statutes the Secretary of Agriculture was authorized to make provisions for the protection against destruction by fire and depredations of the public forest and forest reservations, and to "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." 26 Stat. at L. 1103, chap. 561, U. S. Comp. Stat. 1901, p. 1537; 30 Stat. at L. 35, chap. 2, U. S. Comp. Stat. 1901, p. 1540; act of Congress February 1, 1905 [33 Stat. at L. 628, chap. 288, U. S. Comp. Stat. Supp. 1909, p. 577]; 7 Fed. Stat. Anno. 310, 312; and Fed. Stat. Anno. Supp. 1909, page 663. In pursuance of these statutes, regulations were adopted establishing grazing districts on which only a limited number of cattle were al lowed. The regulations provided that a few head of cattle of prospectors, campers, and ⚫ not more than ten* belonging to a settler residing near the forest, might be admitted without permit; but, saving these exceptions, the general rule was that "all persons must secure permits before grazing any stock in a national forest."

On April 7, 1908, the United States, through the district attorney, filed a bill in the circuit court for the district of Colorado, reciting the matters above outlined, and alleging that the defendant, Fred Light, owned a herd of about 500 cattle and a ranch of 540 acres, located 24 miles to the

turning them loose, knew and expected that they would go upon the reservation, and took no action to prevent them from trespassing. That by thus knowingly and wrongfully permitting them to enter on the reservation he intentionally caused his cattle to make a trespass, in breach of the United States property and administrative rights, and has openly and privately stated his purpose to disregard the regulations, and without permit to allow, and, in the manner stated, to cause, his cattle to enter, feed, and graze thereon.

The bill prayed for an injunction. The defendant's general demurrer was overruled. His answer denied that the topography of the country around his ranch or the water and grazing conditions were* such as to cause his cattle to go on the reservation; he denied that many of them did go thereon, though admitting that some had grazed on the reservation. He admitted that he had liberated his cattle without having secured or intending to apply for permit, but denied that he wilfully or intentionally caused them to go on the reservation, submitting that he was not required to obtain any such permit. He admits that it is his intention hereafter, as heretofore, to turn his cattle out on the unreserved public land of the United States adjoining his ranch to the northeast thereof, without securing or applying for any permit for the cattle to graze upon the socalled Holy Cross Reserve; denies that any damage will be done if they do go upon the reserve; and contends that if, because of their straying proclivities, they shall go on the reserve, the complainant is without remedy against the defendant, at law or in equity, so long as complainant fails to fence the reserve, as required by the laws of Colorado. He claims the benefit of the Colorado statute requiring the owner of land to erect and maintain a fence of given height and strength, in default of which the owner is not entitled to recover for damage

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

⚫526

989.

289.

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occasioned by cattle or other animals going good water and fine pasturage. When notithereon. fied to remove the cattle, he declined to do Evidence was taken, and after hearing, so, and threatened to resist if they should the circuit court found for the government, be driven off by a forest officer. He justiand entered a decree enjoining the defend-fied this position on the ground that the ant from in any manner causing, or per- statute of Colorado provided that a landmitting, his stock to go, stray upon, or owner could not recover damages for tresremain within the said forest or any por- pass by animals unless the property was intion thereof. closed with a fence of designated size and material. Regardless of any conflict in the testimony, the defendant claims that unless the government put a fence around the reserve, it had no remedy, either at law or in equity, nor could he be required to prevent his cattle straying upon the reserve from the open public land on which he had a right to turn them loose.

The defendant appealed and assigned that the decree against him was erroneous; that the public lands are held in trust for the people of the several states, and the proclamation creating the reserve without the consent of the state of Colorado is contrary to and in violation of said trust; that the decree is void because it, in effect, holds that the United States is exempt from At common law the owner was required the municipal laws of the state of Colorado, to confine his live stock, or else was held relating to fences; that the statute* con- liable for any damage done by them upon ferring upon the said Secretary of Agricul- the land of third persons. That law was not ture the power to make rules and regula- adapted to the situation of those states tions was an unconstitutional delegation where there were great plains and vast of authority to him, and the rules and reg- tracts of uninclosed land, suitable for pasulations therefore void; and that the rules ture. And so, without passing a statute, mentioned in the bill are unreasonable, do or taking any affirmative action on the subnot tend to insure the object of forest res-ject, the United States suffered its public ervation, and constitute an unconstitutional domain to be used for such purposes. There interference by the government of the United States with fence and other statutes of the state of Colorado, enacted through the exercise of the police power of the state. Messrs. James H. Teller, John T. Bar-U. nett, Henry M. Teller, C. S. Thomas, E. C. Stimson, Milton Smith, H. A Hicks, and Ralph McCrillis for appellant.

Mr. Ernest Knaebel for appellee.

Mr. Justice Lamar, after making the foregoing statement, delivered the opinion of the court:

thus grew up a sort of implied license that these lands, thus left open, might be used so long as the government did not cancel its tacit consent. Buford v. Hout, 133 S.

326, 33 L. ed. 620, 10 Sup. Ct. Rep. 305. Its failure to object, however, did not confer any vested right on the complainant, nor did it deprive the United States of the power of recalling any implied license under which the land had been used for private purposes. Steele v. United States, 113 U. S. 130, 28 L. ed. 952, 5 Sup. Ct. Rep. 396; Wilcox v. Jackson, 13 Pet. 513, 10 L. ed. 271.

The defendant was enjoined from pasturing his cattle on the Holy Cross Forest It is contended, however, that Congress Reserve, because he had refused to comply cannot constitutionally withdraw large bodwith the regulations adopted by the Secre-ies of land from settlement without the contary of Agriculture, under the authority sent of the state where it is located; and it conferred by the act of June 4, 1897 (30 is then argued that the act of 1891 [26 Stat. 35, chap. 2), to make rules and reg. Stat. at L. 1103, chap. 561, U. S. Comp. ulations as to the use, occupancy, and pres- Stat. 1901, p. 1537], providing for the eservation of forests. The validity of the tablishment of reservations, was void, so rule is attacked on the ground that Con- that what is nominally a reserve is, in law, gress could not delegate to the Secretary to be treated as open and uninclosed land, legislative power. We need not discuss as to which there still exists the implied lithat question, in view of the opinion in cense that it may be used for grazing purUnited States v. Grimaud (just decided), poses. But "the nation is an owner, and 220 U. S. 506, 55 L. ed. 31 Sup. Ct. has made Congress the principal agent to Rep. 480. dispose of its property. . Congress is the body to which is given the power to determine the conditions upon which the public lands shall be disposed of." Butte City Water Co. v. Baker, 196 U. S. 126, 49 L. ed. 412, 25 Sup. Ct. Rep. 211. "The government has, with respect to its own lands, the rights of an ordinary proprietor

*The bill alleged, and there was evidence to support the finding, that the defendant, with the expectation and intention that they would do so, turned his cattle out at a time and place which made it certain that they would leave the open public lands and go at once to the reserve, where there was

to maintain its possession and to prosecute inclosed with a fence of the size and matrespassers. It may deal with such lands terial required, do not give permission to precisely as a private individual may deal the owner of cattle to use his neighbor's with his farming property. It may sell or land as a pasture. They are intended to withhold them from sale." Canfield v. condone trespasses by straying cattle; they United States, 167 U. S. 524, 42 L. ed. 262, have no application to cases where they are 17 Sup. Ct. Rep. 864. And if it may with- driven upon unfenced land in order that hold from sale and settlement, it may also, they may feed there. Lazarus v. Phelps, 152 as an owner, object to its property being U. S. 81, 38 L. ed. 363, 14 Sup. Ct. Rep. used for grazing purposes, for "the govern- 477; Monroe v. Cannon, 24 Mont. 324, 81 ment is charged with the duty and clothed Am. St. Rep. 439, 61 Pac. 863; St. Louis with the power to protect the public domain | Cattle Co. v. Vaught, 1 Tex. Civ. App. 388, from trespass and unlawful appropriation." 20 S. W. 855; Union P. R. Co. v. Rollins, United States v. Beebe, 127 U. S. 342, 32 5 Kan. 176. L. ed. 123, 8 Sup. Ct. Rep. 1083.

1. A Mexican land grant will not support an action in ejectment where the evidence

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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