United States v. Rizzinelli

• Decision Date: 24 August 1910
• Parties: UNITED STATES v. RIZZINELLI et al.
• Court: U.S. Court of Appeals — Ninth Circuit

182 F. 675

UNITED STATES v. RIZZINELLI et al.

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

August 24, 1910

C. H Lingenfelter, U.S. Atty., and Wm. M. Aiken, for the United states.

Featherstone & Fox, for defendants.

DIETRICH District Judge.

The defendants are charged with the maintenance of saloons upon mining claims within the limits of the Coeur d'Alene National Forest without a permit, and in violation of the rules and regulations of the Secretary of Agriculture. The claims were duly located, subsequent to the creation of the forest reserve, and they are possessory only, no application for patent ever having been made. The technical sufficiency of the indictment is not called into question, but it is urged: First, that the provision of the statute upon which the rules referred to are founded is unconstitutional, and the rules, therefore, void, because the statute itself does not sufficiently define the acts to be punished, and because it attempts to delegate to an executive officer legislative power; and, second, that, even if the statute be held to be valid, it cannot properly be construed as conferring authority upon the Secretary of Agriculture to make rules applicable to the lands embraced in valid mining claims, whether the same were located before or after the creation of the forest reserve.

The Act of June 4, 1897 (chapter 2, 30 Stat. 34 (U.S. Comp. St. 1901 p. 1538)), to which the charge is primarily referred, and the validity of which the defendants attack, provides for the setting apart and maintenance of forest reservations for the purpose of protecting the forests, and securing favorable conditions of water flow, and to furnish a continual supply of timber for the use and necessities of citizens of the United States. It is declared 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.'

And it is further provided as follows:

'Nothing herein shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of such reservations, or from crossing the same to and from their property or homes; and such wagon roads and other improvements may be constructed thereon as may be necessary to reach their homes and to utilize their property under such rules and regulations as may be prescribed by the Secretary of the Interior. Nor shall anything herein prohibit any person from entering upon such forest reservations for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof: Provided, that such persons comply with the rules and regulations covering such forest reservations.'

And further, as follows:

'Upon the recommendation of the Secretary of the Interior, with the approval of the President, after sixty days' notice thereof, published in two papers of general circulation in the state or territory wherein any forest reservation is situated, and near the said reservation, any public lands embraced within the limits of any forest reservation which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain. And any mineral lands in any forest reservation which have been, or which may be shown to be such, and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding any provisions herein contained.'

Subsequently, jurisdiction over forest reserves was transferred to the Secretary of Agriculture, who formulated an elaborate set of regulations, published in what is known as the 'Use Book.' The particular rules alleged to have been ignored by the defendants (Use Book, pp. 54, 67) are as follows:

'Reg. 6. Permits are necessary for all occupancy, uses, operations or enterprises of any kind within national forests, whether begun before or after the national forest was established, except: (a) Upon patented lands (b) upon valid claims for purposes necessary to their actual development and consistent with their character; (c) upon rights of way amounting to easements for the purposes named in the grants; (d) prospecting for minerals, transient camping, hunting, fishing, and surveying for lawful projects.'

'Reg. 19. The following acts within national forests are hereby forbidden: * * * (c) Erecting or conducting telephone, telegraph, or power lines, hotels, stores, sawmills, power plants, or other structures, or manufacturing or business enterprises, or carrying on any kind of work, except as allowed by law and national forest regulations, and except upon patented lands or upon a valid claim for the actual development of such claim, consistent with the purposes for which it was initiated.'

Although, in its general aspect, it is highly interesting and of the deepest concern, the constitutional question should, I think, be disposed of here, without extended discussion. It is one about which the trial courts are at variance. (United States v. Domingo (C.C.) 152 F. 566; United States v. Deguirro (D.C.) 152 F. 568; United States v. Bale (D.C.) 156 F. 687; United States v. Matthews (D.C.) 146 F. 306; United States v. Grimaud (D.C.) 170 F. 205), and upon which, when recently presented, the court of last resort was equally divided (United States v. Grimaud, 216 U.S. 614, 30 Sup.Ct. 576, 54 L.Ed. . . . ). The Circuit Court of Appeals of this circuit has unequivocally held the provision valid in its relation to civil rights. Shannon v. United States, 160 F. 870, 88 C.C.A. 52. And while it is true that sometimes an administrative regulation may be given effect in the prosecution of a civil suit, and at the same time be rejected as a definition of a criminal offense, the principle of such distinction is, in the present case, not readily discernible. However that may be, in view of the existing diversity of judicial decision, and having respect for the familiar rule that all intendments are in favor of the validity of an act, and that it should not be adjudged to be unconstitutional unless its repugnance to the Constitution clearly appears (Buttfield v. Stranahan, 192 U.S. 470, 24 Sup.Ct. 349, 48 L.Ed. 525), I am of the opinion that, under the principle of stare decisis, the question should be deemed to be ruled by United States v. Domingo, supra, decided by this court (Judge Beatty presiding) in March, 1907, adversely to the contention of the defendants. It is highly important to the orderly administration of justice that in the same jurisdiction there be uniformity of decision; well-considered precedents should be cast aside only for the most cogent reasons. The general rule which forbids judges sitting in the same court from ignoring, for light reasons, the decisions of each other, does not have its origin merely in motives of personal courtesy, but, as experience amply proves, rests upon considerations of a wise public policy. Any other course would tend to unseemly struggle in the courts, and would ultimately result in a weakening of public confidence in the soundness and finality of judicial decisions. Reynolds v. Iron Silver Mining Co. (C.C.) 33 F. 354; Shreve v. Cheesman, 69 F. 785, 16 C.C.A. 413; Taylor v. Decatur, M. & L.C.O. (C.C.) 112 F. 449; Plattner Implement Co. v. International Harvester Co., 133 F. 376, 66 C.C.A. 438. While, in these cases, rules of property and of practice are especially referred to, the reasons here presented for uniformity of decision are equally, if not more, persuasive. True, there is directly involved only a comparatively unimportant right or privilege; but to yield to the defendants' contention is not only to render nugatory the expressed will of the legislative department relative to government policies of general application and of great interest, but also to withdraw from the executive department sanctions deemed to be important in the enforcement of regulations formulated for the protection and conservation of the public forests, however reasonable and necessary the same may be. Upon the whole, I think it is clear that, whatever conclusion I might reach upon a mature and independent consideration, the question should here be regarded as ruled by the Domingo Case, and, this being true, in view of the able discussions already to be found in the published decisions from the lower courts, and of the division of opinion in the Supreme Court, an elaborate consideration of the general question, as if it were of first impression in this jurisdiction, if not presumptuous, could, I am sure, be of no substantial service, and I therefore pass to the other branch of the case.

Concretely stated, the second question is whether or not, assuming that the maintenance of a saloon upon public lands within a national forest to which no previous claim of any kind has attached constitutes a...