Sperry Hutchinson Company v. Aida Rhodes 128

• Decision Date: 01 May 1911
• Citation: 55 L.Ed. 561,31 S.Ct. 490,220 U.S. 502
• Parties: SPERRY & HUTCHINSON COMPANY, Plff. in Err., v. AIDA T. RHODES. N. 128
• Court: U.S. Supreme Court

220 U.S. 502

31 S.Ct. 490

55 L.Ed. 561

SPERRY & HUTCHINSON COMPANY, Plff. in Err.,

v AIDA T. RHODES. N. 128. Argued April 19 and 20, 1911. Decided May 1, 1911. Mr. John Hall Jones for plaintiff in error. [Argument of Counsel from pages 502-504 intentionally omitted]

[504]

The court declined to hear Mr. Thomas E. O'Brien for defendant in error. djQ Mr. Justice Holmes delivered the opinion of the court: This is an action brought by the defendant in error for

[505]

using her photographed portrait for advertising purposes without her written consent first obtained. The facts were found against the defendant (the plaintiff in error), an injunction was issued, and damages were awarded; 120 App. Div. 467, 104 N. Y. Supp. 1102; the judgment was affirmed by the court of appeals (193 N. Y. 223,—L.R.A.(N.S.) ——, 127 Am St. Rep. 945, 85 N. E. 1097), and thereupon final judgment was entered in the supreme court. The suit was based upon chapter 132 of the New York Statutes of 1903, which makes such use of the name, portrait, or picture of any living person a misdemeanor, and gives this action. The case comes here on the single question of the constitutionality of the act. It is argued that as before the statute a person could not prevent the use of her portrait by one who took and owned it (Roberson v. Rochester Folding Box Co. 171 N. Y. 538, 59 L.R.A. 478, 89 Am. St. Rep. 828, 64 N. E. 442), to deny that use now is to deprive the owner of his property without due process of law. The court of appeals held that the statute applied only to photographs taken after it went into effect, as was the photograph of the plaintiff that the defendant used. The property was brought into existence under a law that limited the uses to be made of it, and if otherwise there could have been any question, in such a case there is none. Some comment was made in argument on the distinction between photographs taken before and after the date in 1903, as inconsistent with the 14th Amendment. But the 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time. Judgment affirmed. U S v. Grimaud [31SCt480,220US506,55LEd563] 31 S.Ct. 480 220 U.S. 506 55 L.Ed. 563 UNITED STATES, Plff. in Err., v. PIERRE GRIMAUD and J. P. Carajous. NO 241. UNITED STATES, Plff. in Err., v. ANTONIO INDA. NO 242.

Nos. 241, 242.

Argued February 28, 1910.

Affirmed by equally divided court March 14, 1910.

Rehearing granted April 18, 1910.

Reargued March 3, 1911.

Decided May 1, 1911.

Solicitor general bowers for plaintiff in error on original argument.

No counsel for defendant in error.

By the act of March 3, 1891 (26 Stat. at L. 1103, chap. 561, U. S. Comp. Stat. 1901, p.1537), 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. at L. 35, chap. 2, U. S. Comp. Stat. 1901, p. 1539), 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. at L. 36, chap. 2, U. S. Comp. Stat. 1901, p. 1542.)

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. at L. 35, chap. 2; 31 Stat. at L. 661, chap. 804), and a requirement that the proceeds thereof and from any other forest source should be covered into the Treasury, the act of February 1st, 1905 (33 Stat. at L. 628, chap. 288, § 5, U. S. Comp. Stat. Supp. 1909, p. 577), 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 per centum 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. at L. 1270, chap. 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. at L. 36, chap. 2, U. S. Comp. Stat. 1901, p. 1542.]

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. at L. 628, chap. 288, U. S. Comp. Stat. Supp. 1909, p. 576), 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, U. S. Comp. Stat. 1901, p. 3649,—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. at L. 1103, chap. 561, U. S. Comp. Stat. 1901, p. 1537; 30 Stat. at L. 34, 35, chap. 2, U. S. Comp. Stat. 1901, p. 1538; 31 Stat. at L. 661, chap. 804; 33 Stat. at L. 36, chap. 160; 7 Fed. Stat. Anno. 310-317, 296, Fed. Stat. Anno. Supp. 1909, p. 664.

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 estab- lished, and after regulation 45 had been promulgated, 'they did knowingly, wilfully, 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 Fed. 205), and made a like ruling on the similar indictment in United States v. Inda, 216 U. S. 614, 54 L. ed. 639, 30 Sup. Ct. Rep. 576....