Dent v. United States

• Decision Date: 26 March 1904
• Docket Number: Criminal 165
• Citation: 8 Ariz. 413,76 P. 455
• Parties: JOSEPH DENT, Defendant and Appellant, v. UNITED STATES OF AMERICA, Plaintiff and Respondent
• Court: Arizona Supreme Court

76 P. 455

8 Ariz. 413

JOSEPH DENT, Defendant and Appellant, v. UNITED STATES OF AMERICA, Plaintiff and Respondent

Criminal No. 165

Supreme Court of Arizona

March 26, 1904

APPEAL from a judgment of the District Court of the Fourth Judicial District. R. E. Sloan, Judge. Affirmed. On Rehearing.

E. M Doe, and E. S. Clark, for Appellant.

F. S Nave, United States Attorney, and J. H. Campbell, Assistant United States Attorney, for Respondent.

The appellant was convicted of the crime of pasturing sheep upon the public lands in a forest reservation in violation of the rules of the secretary of the interior, promulgated under authority of the act of Congress of June 4, 1897 (30 Stats L. 35); which act provides that any violation of such rules shall be punished by fine or imprisonment. The former opinion of the court will be found on page 138, ante, 71 P. 920.

OPINION

KENT, C.J.

-- A rehearing having been granted at this term of court, this case has been again argued by counsel. Since we rendered our decision at a former term, the case of Dastervignes v United States, 122 F. 30, 58 C.C.A. 346, has been reported. In that case the circuit court of appeals for the ninth circuit has held that the act in question did not delegate legislative power to the secretary, and was not unconstitutional. Inasmuch as under the act creating the circuit courts of appeal, such court exercises appellate jurisdiction over this court in criminal cases such as the one at bar, we feel that a decision of that court, although made in a civil and not a criminal case, expressly holding that the act in question is constitutional and a valid delegation of power, is binding upon us in this case; and if it be true that the sole question involved in this case is the constitutionality of the act, and an appeal will not lie in this case from our decision to the circuit court of appeals, -- a question which it is not proper for us to determine, -- we still feel that the determination of the circuit court of appeals is binding upon us. An appeal does not lie from our decision in this case to the supreme court of the United States, and yet, if such court had determined the question of the constitutionality of the act, such determination would be binding upon us. Inasmuch as the circuit court of appeals is a court exercising appellate jurisdiction over us in criminal cases of this character, we are in like manner bound by its determination upon this question, although the record may prevent an appeal being taken to such a court in the particular case before us. Indeed, if it be true that no appeal lies to any court from our decision in capital cases, or in criminal cases where the constitutionality of a federal statute is the sole question involved, but the right of review of our decisions in criminal cases is confined to the appellate jurisdiction of the circuit court of appeals in minor criminal cases, and when less important questions are involved, this somewhat anomalous condition of the law should not prevent our recognizing the binding force of a determination of such circuit court of appeals upon such constitutional question, since, if...