United States v. Ormsbee
| Decision Date | 09 May 1896 |
| Citation | 74 F. 207 |
| Parties | UNITED STATES v. ORMSBEE. |
| Court | U.S. District Court — Eastern District of Wisconsin |
The offense charged in the indictment is that the defendant knowingly and willfully violated 'the rules and regulations prescribed by the secretary of war of the said United States for the use, administration, and navigation of any or all canals and similar works of navigation owned operated, or maintained by the United States, entitled 'United States regulations for the navigation and use of locks and canals on the Fox River, Wisconsin,' approved February 15, 1895, by then and there knowingly and willfully drawing water from the canal, to wit, the Fox River canal, at the said city of Kaukauna, then and there owned, operated and maintained by the said United States, to such an extent as to lower the water surface at the dam next below the place where such draft is affected below the crest of the dam ' The regulations of the secretary of war referred to in the indictment are founded on the provision of the river and harbor act of August 17, 1894 (chapter 299, 2d Sess. 53d Cong.), which reads as follows: ' The district attorney cites, as further applicable thereto, sections 9 and 10 of the act of congress approved September 19, 1890 (26 Stat. 426), prohibiting interference with government works in navigable waters, or 'the creation of any obstruction not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction'; and section 7, chapter 158 of the act approved July 13, 1892 (27 Stat. 88), by which it is prohibited 'to excavate or fill, or in any manner to alter or modify the course, location, condition or capacity of any port, roadstead, haven, harbor, harbor of refuge, or enclosure within the limits of any breakwater, or of the canal of any navigable water of the United States, unless approved and authorized by the secretary of war.'
J. H. M. Wigman, U.S. Atty.
Quarles, Spence & Quarles, for defendant.
SEAMAN District Judge (after stating the facts as above).
In support of the motion to quash the indictment the contention is that the regulations of the secretary of war, of which violation is alleged, depend for their validity upon section 4 of the act of August 17, 1894; that there is no exercise of the will or discretion of congress in the act, no prohibition of distinct acts or course of conduct, but that it expressly delegates to the secretary of war all of the law making contemplated by the act; and simply prescribes in advance the punishment for offenses which may be so established; that an offense created solely through such delegation cannot be made indictable.
The sovereign power to make national laws is vested in congress and it is a settled maxim in constitutional law that this power cannot be delegated; that 'the power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be...
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