United States v. Matthews

• Decision Date: 07 May 1906
• Citation: 146 F. 306
• Parties: UNITED STATES v. MATTHEWS.
• Court: U.S. Court of Appeals — Ninth Circuit

146 F. 306

UNITED STATES v. MATTHEWS.

United States District Court, E.D. Washington, Southern Division.

May 7, 1906

A.G Avery, U.S. Atty.

H. J Snively, for defendant.

WHITSON District Judge.

The defendant was indicted for having on the 11th day of September, 1905, 'wrongfully, unlawfully, and without the permit required by law and the regulations made by the Secretary of Agriculture,' grazed sheep on the Mount Rainier Forest Reserve. The indictment was framed under the act approved June 4, 1897, entitled 'An act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1898, and for other purposes ' (Chapter 2, 30 Stat. 11 (U.S. Comp. St. 1901 p. 3768)), and the act approved February 1, 1905, entitled 'An act providing for the transfer of forest reserves from the Department of the Interior to the Department of Agriculture' (chapter 288, 33 Stat.pt. 1, p. 628 (U.S Comp. St. Supp. 1905, p. 343)). The latter act simply transfers from the Secretary of the Interior to the Secretary of Agriculture the authority to execute or cause to be executed all laws affecting public lands theretofore or thereafter reserved under the provisions of section 24 of the act approved March 3, 1891 (chapter 561, 26 Stat. 1103 (U.S. Comp. St. 1901, p. 1537)), entitled 'An act to repeal the timber culture laws and for other purposes,' while we must look to the former for a definition of the crime. That part of the act under which it is sought to sustain the indictment reads:

'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. ' Act June 4, 1897, c. 2, 30 Stat. 34 (U.S. Comp. St. 1901, p. 1540).

The Secretary of Agriculture has made rules and regulations which apply to the 'occupancy and use' of the Mount Rainier Forest Reserve, and those alleged to have been violated are set out in full in the indictment, as follows:

'Reg. 9. 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 cows and work animals not exceeding a total of six head owned by bona fide settlers, which are excepted and require no permit. An person responsible for grazing stock without a permit is liable to punishment for violation of the law.'

'Reg. 11. The Secretary of Agriculture will determine the number of stock to be allowed in a reserve for any year. The period during which grazing will be allowed is determined by the forester. The supervisor is authorized to issue grazing permits in accordance with the instruction of the forester.'

'Reg. 14. Permits will be granted only to the actual owners of stock and for their exclusive use and benefit, and will be forfeited if sold or transferred in any manner or for any consideration without the written consent of the forester.'

The sufficiency of the indictment has been challenged by demurrer, upon the ground that the provision above quoted, making it an offense to violate rules and regulations made by the Secretary of Agriculture, is an attempt by Congress to delegate its legislative power. The United States Attorney relies upon the case of Dastervignes v. United States (Ninth Circuit) 122 F. 30, 58 C.C.A. 346, to sustain the indictment, and he has called attention to Dent v. United States (decided by the Supreme Court of Arizona) 76 P. 455, as fortifying his position that the Circuit Court of Appeals had in view criminal offenses as well as civil actions when the decision was made. That case will therefore be first examined to ascertain whether the rule has been so declared in this circuit. To avoid confusion it is necessary to bear in mind the subject-matter of the suit. It arose out of a controversy between the government and certain persons who were herding and grazing sheep on the Stanislaus forest reservation in the Northern district of California, the complainant praying for an injunction. The holding was that the right to make rules, expressly granted by Congress, to regulate the occupancy and use of forest reservations, 'and to preserve the forests thereon from destruction,' did not involve the delegation of legislative power as applied to the property of the government, but, on the contrary, that the making of such rules was a proper exercise of administrative authority delegated for the control of that portion of the public domain embraced within the provisions of the act. Undoubtedly it was in that sense, and with that thought in view, that the language of Chief Justice Marshall, in Wayman v. Southard, 10 Wheat. 1-43, 6 L.Ed. 253, was quoted, namely: 'Congress may certainly delegate to others powers which the Legislature might rightfully exercise itself'-- for those words are immediately preceded by the following: 'It will not be contended that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative.'

The recent decision of the same court in Stratton v. Oceanic Steamship Company (C.C.A.) 140 F. 829, makes the matter, if possible, all the more apparent. In addition to the cases already noted the following have been cited as upholding the indictment: Van Lear v. Eisele (C.C.) 126 F. 823; United States v. Slater (D.C.) 123 F. 115; E.A. Chatfield Company et al. v. City of New Haven et al. (C.C.) 110 F. 788; United States v. Breen (C.C.) 40 F. 402; United States v. Ormsbee (D.C.) 74 F. 207; United States v. Williams (Mont.) 12 P. 851; In re Huttman (D.C.) 70 F. 699; United States v. City of Moline (D.C.) 82 F. 592; Buttfield v. Stranahan, 192 U.S. 470, 24 Sup.Ct. 349, 48 L.Ed. 525; Butte City Water Co. v. Baker (Mont.) 72 P. 617; Id., 196 U.S. 119, 25 Sup.Ct. 211, 49 L.Ed. 409; Field v. Clark, 143 U.S. 649, 12 Sup.Ct. 495, 36 L.Ed. 294; United States v. Reder (D.C.) 69 F. 965; United States v. Price Trading Co., 109 F. 239, 48 C.C.A. 331. It is claimed that these cases, either directly or by analogy of reasoning, sustain the contention of the government. Without undertaking to review them at length, or to discuss the applicability of each particular case, it may be remarked with assurance that they do not do so.

It is fundamental that the citizen has the right to rely upon the statutes of the United States for the ascertainment of the acts which constitute an infraction of its laws. This principle was expressed by the Supreme Court in Re Kollock, 165 U.S. 533, 17 Sup.Ct. 444, 41 L.Ed. 813, as follows:

'We agree that the courts of the United States, in determining what constitutes an offense against the United States, must resort to the statutes of the United States, enacted in pursuance of the Constitution.'

A citizen desiring to obey the laws would search the acts of Congress in vain to find that grazing sheep upon a forest reserve without the permit of the Secretary of Agriculture is a criminal offense. It has been suggested that the acts under which the indictment is drawn give notice that the Secretary may make rules and regulations, and that the search would not be complete and the inquiry concluded until it be ascertained whether he has made such rules and regulations, the violation of which it is expressly declared shall be a criminal offense. But here we are led back...