United States v. Grimaud

• Citation: 170 F. 205
• Decision Date: 03 May 1909
• Docket Number: 2.
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. GRIMAUD et al.

170 F. 205

UNITED STATES v. GRIMAUD et al.

No. 2.

United States District Court, S.D. California, Northern Division.

May 3, 1909

A. I McCormick, U.S. Atty., and Frank Stewart, Asst. U.S. Atty.

W. W Kaye, for defendants.

WELLBORN District Judge.

The charge against defendants is that of grazing sheep, without permission, in the Sierra Forest Reserve.

By act of Congress, approved June 4, 1897, entitled 'An act making appropriations for sundry civil expenses of the government for the fiscal year 1897, and for other purposes' (Act June 4, 1897, c. 2, Sec. 1, 30 Stat. 35 (U.S. comp. St. 1901, p. 1540)), it is provided, among other things, that:

'The Secretary of the Interior shall make provisions for the protection against destruction by fire and depredations upon the public forests and forest reservations which may have been set aside or which may be hereafter set aside under the said act of March third, eighteen hundred and ninety-one, and which may be continued; 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 is provided for in the act of June fourth eighteen hundred and eighty-eight, amending section fifty-three hundred and eighty-eight of the Revised Statutes of the United States.'

The jurisdiction of the Secretary of the Interior over forest reserves was subsequently transferred to the Secretary of Agriculture, and, thereafter, on June 12, 1906, the latter official promulgated 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, the 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.'

A demurrer to the indictment has been interposed on the grounds that the act of Congress above mentioned, so far as it attaches a penalty to any violations of the rules and regulations thereafter to be made by the Secretary of the Interior, is void, because it does not completely or at all define the acts to be punished, and because it attempts a delegation of legislative power to an executive officer. These two grounds will be considered in the order in which I have stated them.

The Supreme Court of the United States has often declared, in unmistakable terms, that there can be no crime against the authority of the United States except where the forbidden act is defined and penalized by statute. U.S. v. Hudson, 7 Cranch, 32, 3 L.Ed. 259; U.S. v. Coolidge, 1 Wheat. 415, 4 L.Ed. 124; U.S. v. Britton, 108 U.S. 199, 206, 2 Sup.Ct. 531, 27 L.Ed. 698; U.S. v. Eaton, 144 U.S. 677, 12 Sup.Ct. 764, 36 L.Ed. 591. And the Circuit Court of Appeals for this circuit has spoken in decided terms to the same effect. Peters v. United States, 94 F. 127, 131, 36 C.C.A. 105.

In United States v. Hudson, supra, where it is held that the courts of the United States have no common-law jurisdiction in criminal cases, the Supreme Court uses the following language: 'The legislative authority of the Union must first make an act a crime affix a punishment to it, and declare the court that shall have jurisdiction of the offense.'

In Peters v. United States, supra, the court says:

'It must be borne in mind that the national courts do not resort to common law as a source of criminal jurisdiction. Crimes and offenses cognizable under the authority of the United States can only be such as are expressly designated by law. It devolves upon Congress to define what are crimes, to fix the proper punishment, and to confer jurisdiction for their trial. U.S. v. Walsh, 5 Dill. 60, Fed. Cas. No. 16,636; U.S. v. Martin, 4 Cliff. 156, Fed. Cas. No. 15,728; In re Greene (C.C.) 52 F. 104; Swift v. Railroad Co. (C.C.) 64 F. 59; U.S. v. Hudson, 7 Cranch, 32, 3 L.Ed. 259; U.S. v. Coolidge, 1 Wheat. 415, 4 L.Ed. 124; U.S. v. Britton, 108 U.S. 199, 2 Sup.Ct. 531, 27 L.Ed. 698.'

The same doctrine has been elsewhere declared as follows:

'In the consideration of this indictment it should be borne in mind that there are no common-law offenses against the United States; that the federal courts cannot resort to the common law as a source of criminal jurisdiction; that crimes and offenses, cognizable under the authority of the United States, are such, and only such, as are expressly designated by law; and that Congress must define these crimes, fix their punishment, and confer jurisdiction to try them. ' In re Greene (C.C.) 52 F. 104, 111.

There can be no pretense that Congress itself has defined as a crime the act for which defendants are here indicted, namely, grazing sheep, without permission, in a forest reserve. The statute itself does not forbid or make any reference whatever to sheep grazing, nor in the remotest degree suggest that Congress had it at all in mind, and, according to the government's own theory, it did not become a crime until nine years after the passage of the statute, which the government claims made it criminal, and then only because of the promulgation of an administrative rule which it contravenes. The mere statement of the theory, it seems to me, condemns it, and, after much reflection, I have now no hesitancy in holding that the statute, in so far as it affixes punishment to infractions of executive rules and regulations thereafter to be promulgated, is incomplete and wholly inadequate to form the basis of a criminal prosecution.

It must be borne in mind that part of a statute may be unconstitutional and void, and the residue constitutional and valid (28 Am. & Eng. Ency. of Law (2d Ed.) p. 570), and that there is no controversy here over the validity of any part of the act of Congress in question except the provision specifically indicated. That provision was not before the court in Dastervignes v. United States, 122 F. 30, 58 C.C.A. 346, and although it is mentioned, by way of recital, in the syllabus, there is not the slightest reference to it in the opinion, nor anything whatever to show or suggest its pertinency. Indeed, the question could not have arisen there, because the case was not a criminal prosecution, involving, and which alone could involve, the matter of punishment, but simply a civil suit to enjoin grazing, and to which suit the penalty clause of the statute had no possible relation or pertinency. The court specifically points out that part of the act which was before it, and held to be constitutional, as follows, underscoring mine: 'It must be admitted that the legislative authority of the United States is vested in Congress, and that Congress has no authority to delegate legislative power to the Secretary of the Interior, or to any administrative officer the authority to make laws; and if the act of Congress approved June 4, 1897 (chapter 2, Sec. 1, 30 Stat. 35, U.S. Comp. St. 1901, p. 1540), is legally susceptible of the construction contended for by appellants, it would clearly be unconstitutional. By that act the Secretary of the Interior was authorized 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.' Does this language delegate any power to the Secretary of the Interior to make a law, or does it simply confer upon the Secretary an authority to adopt such rules and regulations as to him may seem fit and proper in order to secure the objects for which the reservation was created, and such acts to be exercised under and in pursuance of the law enacted by Congress? Let us see. Congress cannot delegate its power to make a law; but it can make a law to delegate a power to an administrative officer to determine a fact or condition of affairs in regard to which the law makes its own action depend.'

The court nowhere holds, or intimates, that the statute is complete or valid in so far as it attempts to punish such acts as might thereafter be forbidden by the Secretary of the Interior; but it may be fairly inferred that the court would have held to the contrary, if the question had been presented, from the following expressions at page 34 of 122 Fed., at page 350 of 58 C.C.A., underscoring mine:

'The Secretary, by adopting this rule, acted simply as the arm that carries out the legislative will. He did not invade any of the functions of Congress. He did not make any law, but he exercised the authority given to him, and made rules to preserve the forests on the reservation from destruction. Such rules, within constitutional limits, have the force and effect of law, and it is the duty of courts to protect and enforce them in order to uphold the law as enacted by Congress.'

This declaration, clear and emphatic, that executive rules are not laws, taken in connection with the elementary principle, already adverted to, that nothing but a law can define or create a crime, absolutely determines the incompleteness and inadequacy of said act of Congress as a penal statute.

Nor is the case of Union Bridge Co. v. United States, 204 U.S. 364, 27 Sup.Ct. 367, 51 L.Ed. 523, applicable here. The statute there involved declares the maintenance, after notice from the Secretary of War, of any bridge which unreasonably obstructs free navigation, to be a misdemeanor, punishable by a fine not exceeding $5,000, and, furthermore, in substance and effect, though not in terms, makes the final order of the Secretary, for which it provides, conclusive evidence as to the fact of...