Robbins v. United States

• Decision Date: 02 October 1922
• Docket Number: 5705.
• Citation: 284 F. 39
• Parties: ROBBINS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

284 F. 39

ROBBINS v. UNITED STATES.

No. 5705.

United States Court of Appeals, Eighth Circuit.

October 2, 1922

Paul W Lee, of Ft. Collins, Colo., and Forrest C. Northcutt, of Denver, Colo. (George H. Shaw, of Ft. Collins, Colo., on the brief), for appellant.

Walter F. Daly, Asst. U.S. Atty., of Denver, Colo. (Harry B. Tedrow U.S. Atty., of Denver, Colo., on the brief), for the United States.

This is an appeal from a decree in favor of the United States, as plaintiff, enjoining the appellant, defendant below, and his agents, from transporting passengers for hire in the Rocky Mountain National Park, in Colorado, without written permission from the Director of the National Park Service.

The bill avers that the park was established by virtue of the Act of Congress of January 26, 1915 (38 Stat. 798 (Comp. St. Sec 5249a)), and that certain lands were added and held subject thereto by the Act of February 14, 1917 (39 Stat. 916 (Comp. St. 1918, Comp. St. Ann. Supp. 1918, Sec. 5249aal); that the National Park Service was established by the Act of August 25, 1916 (39 Stat. 535 (Comp. St. Sec. 787d)), whereby the said director had the supervision and control of the several national parks, under the direction of the Secretary of the Interior, and that certain regulations for the government of this park were established and published by the Secretary and in effect, on March 1, 1919, as follows:

The bill then charges that on July 2, 1920, Ranger McDaniel that, by engaging in the business of carrying passengers by automobiles notified the defendant for hire in the park without written permission from the director, he was violating regulation 6, but he engaged therein, whereupon he was from the park by the ranger; that he then informed the ranger he would ejected return to the park the next day, inviting arrest, and on July 14, 1920, he again engaged in said business in violation of regulations 6 and 18, and without permission, and has wrongfully persisted therein; that he threatens, as he has openly and privately declared, to disregard the regulations and engage in said acts, and thereby he interferes with the due administration of the Park Service and frustrates the plans and policy of its creation, for the redress of which there is no adequate remedy at law.

The prayer of the bill is for a temporary and final injunction against the without pursuit of such business by the defendant and his return to the park permission of the director or superintendent.

In answer, the defendant denies the authority of the superintendent ranger under the acts of Congress, the application to him of the and regulations, and any residence or conduct of business thereby prohibited upon government lands in the park. He admits the notice from the ranger and ejection the park, and his advice to the ranger he would return, asserting his from travel on the public roads in the park. He admits carrying passengers right to hire by automobile upon the Fall River road, denies he violated for or 18 of the regulations, and says that section 18 does not require sections 6 permission from the director or superintendent to operate automobiles over any public highway established prior to January 26, 1915, and that the highways over which he traveled were established under the laws of Colorado and the Congress of July 26, 1866 (14 Stat. 253). He admits he refused to Act of desist traveling on the state highways in the park and he intends to continue without permission, which he avers would be granted only to Rocky Mountain Transportation Company, whose permit is exclusive for 20 years. He disclaims interference with the administration of the park or the plans or policy of it.

The defendant further alleges that on and before January 26, 1915, when the park was created, there were public highways in the area, some of them for 40 years over the public domain, under the authority of the act of July 26, 1866, and no highways have been constructed in the park since it was created; that the highways therein are under the exclusive sovereignty and jurisdiction of the state of Colorado, for the use and benefit of the public, and are not affected by the Park Act, according to its terms, and that the state has not ceded or relinquished its jurisdiction over the highways; that nevertheless the Secretary of the Interior claims the regulations exclude defendant's business as a common carrier in operating automobiles for hire on the highways in the park; that the act does not confer such authority over them, and the United States is without title or interest therein, wherefore the defendant's acts are rightful, and the bill is without equity.

The defendant further alleges that the regulations, if applicable to him, are unreasonable and void, and are an unconstitutional interference with his right as a member of the public to travel on the public roads, violative of the Fifth Amendment, would deprive him of his liberty and property without due process or compensation, and that no property of the plaintiff is interfered with, and the bill seeks to enjoin a threatened offense.

The cause was heard upon the application for a temporary injunction. Counsel for plaintiff asked to amend the bill by adding regulation 2, effective March 1, 1920, which provides as follows:

The plaintiff introduced two resolutions, one of date August 13, 1919, of the Colorado State Highway Commission, and the other of date August 7, 1919, of the board of county commissioners of Larimer county, Colo., as follows:

'Be it resolved that the State Highway Commission of the state of Colorado does hereby relinquish, release, and transfer unto the United States government, and to the department thereof having control of the National Park and the highways therein, the control, management, maintenance, and supervision now exercised by said Highway Commission of the public highways located and situated within the boundaries of Rocky Mountain National Park, in the state of Colorado, with the exception, however, of what is known and designated as the Fall River road, which is now in process of construction, and shall be completed by said State Highway Commission; and upon completion thereof, the maintenance, control and supervision of said excepted road shall pass to the United States government, as in this resolution provided.

'State Highway Commission of the State of

Colorado,

'By (Signed) E. E. Sommers, Chairman,

'(Signed) N. A. Ballou, Secretary.

'Approved: (Signed) Oliver H. Shoup, Governor.

'Attest: (Signed) James R. Noland, Secretary of State. (State Seal.)'

'Dated August 7, 1919.

'Be it resolved that the board of county commissioners of Larimer county, state of Colorado, do hereby release, relinquish, and transfer unto the United States government and to the department thereof having control of the national parks and highways therein, the control, management, maintenance, and supervision, now exercised by said board, of the public highways located and situated within the boundaries of the Rocky Mountain National Park in the state of Colorado, with the exception, however, of what is known and designated as the Fall River road, which is now in process of construction, and upon the completion thereof it shall pass to the United States government as in this respect provided.

'The Board of County Commissioners of Larimer

County,

'By Harris Akin, Chairman.'

Objections were made to the above and they were also overruled.

The witness McDaniels, a park ranger, testified that prior to July 13, 1920, he had seen defendant Robbins transporting passengers by automobile for hire within the park, and on that date found him engaged therein on the Fall River road, and then and there notified him that it was contrary to the rules and regulations governing the park to do so without a permit, and ordered him to leave the park and not return in such business until he had a permit; that the defendant then stated that he would return as soon as he obtained a load of passengers and without a permit, and did so return the following day.

The witness L. C. Way, superintendent of the park, testified that since the establishment of the park, the United States had done some work on the roads in the park, made some repairs, and built some extensions of the existing roads and trails, that the Fall River road is about 15 miles long, and with the exception of about 1 1/2 miles has been built since January 26, 1915, and (on information and belief) that the roads approaching that road and connecting it with the village of Estes Park had been constructed and in operation as established highways about 40 years. He also testified that prior to July 13, 1920, he had notified the defendant several times that by carrying passengers for when first stopped on July 13, 1920, he was told by the ranger, McDaniels, not to return with passengers for hire without a permit, that Robbins then told McDaniels he would return as soon as he obtained a load and did so return the next day.

There was a stipulation that the Fall River road was laid out and established by resolution of the board of commissioners of Larimer county, Colo., declaring it to be a public highway on October 9, 1913; that the road traversed the lands of three private proprietors and the remainder was upon the public domain, that the road lacked three miles of completion, and that the outlay therefor of more than $100,000 had been furnished and expended by Larimer county and the state of Colorado, except about $3,600 expended by the government, in about 1916; that the line of the road is shown on the map (Exhibit A), and the two roads shown thereon connecting the village of Estes Park therewith were then referred to as 'Highline Drive,' that the...