United States v. Domingo

• Decision Date: 14 March 1907
• Docket Number: 443.
• Citation: 152 F. 566
• Parties: UNITED STATES v. DOMINGO et al.
• Court: U.S. District Court — District of Idaho

152 F. 566

UNITED STATES v. DOMINGO et al.

No. 443.

United States District Court, D. Idaho, Central Division.

March 14, 1907

N. M Ruick, U.S. Dist. Atty.

Edgar Wilson, for defendants.

BEATTY District Judge.

The indictment is for trespass upon a forest reserve by driving and grazing sheep thereon without a permit. To this indictment the defendants have demurred. By Act June 4, 1897 c. 2, Sec. 1, 30 Stat. 34-36 (U.S. Comp. St. 1901, p. 1543) in modification of a prior act for the creation of forest reserves, it is, among other provisions, enacted, that:

'The Secretary of the Interior * * * 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 violations of the provisions of this act, or of such rules and regulations, shall be punished as is provided for in the act of June fourth, eighteen hundred and eighty-eight.'

Said last act provides as follows:

'Every person who unlawfully cuts, or aids or is employed in unlawfully cutting, or wantonly destroys, or procures to be wantonly destroyed, any timber standing upon the land of the United States * * * shall pay a fine of not more than five hundred dollars or be imprisoned no more than twelve months, or both, in the discretion of the court.'

By reason of such statutes the Secretary promulgated certain rules and regulations, a part of No. 72 of which, is that:

'The following acts are hereby forbidden and declared to constitute trespass, punishable by fine and imprisonment: (a) Grazing upon or driving across a forest reserve any live stock without a permit, except as otherwise allowed by regulation. * * * '

The defendants claim that the Secretary is not authorized by Congress to make the above rule, and that, if it intended to grant such authority, it was an attempt to delegate legislative power, which is ultra vires. It is too well settled to admit any doubt that Congress cannot delegate to any other body or person any authority to legislate; but it is also as well settled that it may authorize an executive officer to formulate rules and regulations for the full and explicit enforcement of the law enacted, and according to its full intent and spirit. To discuss either of these questions would be a wasteful use of time. Very many of the acts of Congress contain such delegation of authority. Had it not the power to do so, many of its statues would be largely nugatory; for it is impossible for it to anticipate the various questions that may arise in the enforcement of its laws and to provide for them. The objection made in this case to the rule is the same that is usually made to other like rules. The solution of the question must in each case be reached by determining whether the rule is an attempt to create a law, or simply a regulation or means of enforcing a law already enacted. If the former, it is void; if the latter, it is as valid as the law itself.

There is no doubt as to the rule of decision; but in some instances the question is so close that it is difficult to conclude how the rule should be construed. In this instance the...