358 



AMERICAN FORESTRY 



Under these acts, therefore, any use of 

 the reservation for grazing or other lawful 

 purpose was required to be subject to the 

 rules and regulations established by the 

 Secretary of Agriculture. To pasture sheep 

 and cattle on the reservation, at will and 

 without restraint, might Interfere seriously 

 with the accomplishment of the purposes 

 for which they were established. But a 

 limited and regulated use for pasturage 

 might not be inconsistent with the object 

 sought to be attained by the statute. The 

 determination of such questions, however, 

 was a matter of administrative detail. 

 What might be harmless in one forest 

 might be harmful to another. What might 

 be injurious at one stage of timber growth, 

 or at one season of the year, might not 

 be so at another. 



In the nature of things it was Imprac- 

 ticable for Congress to provide general reg- 

 ulations for these various and varying 

 details of management. Each reservation 

 had Its peculiar and special features; and 

 In authorizing the Secretary of Agriculture 

 to meet these local conditions Congress 

 was merely conferring administrative 

 functions upon an agent, and not delegat- 

 ing to him legislative power. The author- 

 ity actually given was much less than what 

 has been granted to municipalities by vir- 

 tue of which they make by-laws, ordinances 

 and regulations for the government of 

 towns and cities. Such ordinances do not 

 declare general rules with reference to 

 rights of persons and property, nor do 

 they create or regulate obligations and 

 liabilities, nor declare what shall be crimes 

 nor fix penalties therefor. 



By whatever name they are called they 

 refer to matters of local management and 

 local police. BrodUne v. Revere, 182 Mass., 

 599. They are "not of legislative character 

 In the highest sense of that term; and as 

 an owner may delegate to his principal 

 agent the right to employ subordinates, 

 giving them a limited discretion, so it 

 would seem that Congress might rightfully 

 entrust to the local legislature (authori- 

 ties) the determinaiion of minor matters." 

 Butte City Water Go. v. Baker, 165 U. S., 

 126. 



It must be admitted that it is dlfScult to 

 define the line which separates legislative 

 power to make laws, from administrative 

 authority to make regulations. This diffi- 

 culty has often been recognized, and was 

 referred to by Chief Justice Marshall in 

 Wayman v. Southard, 10 Wheat., 42, where 

 he was considering the authority of courts 

 to make rules. He there said: "It will not 

 be contended that Congress can delegate 

 to the courts, or any other tribunal, powers 

 which are strictly and exclusively legis- 

 lative. But Congress may certainly dele- 

 gate to others, powers which the legislature 

 may rightfully exercise itself." What were 

 these non-legislative powers which Con- 



gress could exercise but which might also 

 be delegated to others, was not determined, 

 for he said: "The line has not been exactly 

 drawn which separates those important sub- 

 jects which must be entirely regulated by 

 the legislature itself, from those of less 

 interest, in which a general provision may 

 be made, and power given to those who are 

 to act under such general provision to fill 

 up the details." 



From the beginning of the Government 

 various acts have been passed conferring 

 upon executive officers power to make rules 

 and regulations — not for the government 

 of their departments, but for administering 

 the laws which did govern. None of these 

 statutes could confer legislative power. But 

 when Congress had legislated and indi- 

 cated its will, it could give to those who 

 were to act under such general provisions 

 "power to fill up the details" by the estab- 

 lishment of administrative rules and regu- 

 lations, the violation of which could be 

 punished by fine or imprisonment fixed by 

 Congress, or by penalties fixed by Congress 

 or measured by the injury done. 



Thus it is unlawful to charge unreason- 

 able rates or to discriminate between ship- 

 pers, and the Interstate Commerce' Com- 

 mission has been given authority to make 

 reasonable rates and to administer the law 

 against discrimination. Int. Com. Com. v. 

 in. Cent. R. R., 215 U. S., 452; Int. Com. 

 Com. V. Chicago, Rock Island, rf-c, R. R., 

 218 U. S., 88. Congress provided that after 

 a given date only cars with drawbars of 

 uniform height should be used in inter- 

 state commerce, and then constitutionally 

 left to the Commission the administrative 

 duty of fixing a uniform standard. Saint 

 Louis & Iron Mountain R. R. v. Taylor, 

 210 U. S., 287. In Union Bridge Co. v. 

 United States, 204 U. S., 364; In re Eollock, 

 165 U. S., 526; Butterfield v. Stranahan, 

 192 U. S., 470, it appeared from the stat- 

 utes involved that Congress had either ex- 

 pressly or by necessary implication made 

 it unlawful, if not criminal, to obstruct 

 navigable streams; to sell unbranded oleo- 

 margarine; or to import unwholesome teas. 

 With this unlawfulness as a predicate the 

 executive officers were authorized to make 

 rules and regulations appropriate to the 

 several matters covered by the various 

 acts. A violation of these rules was then 

 made an offense punishable as prescribed 

 by Congress. But in making these regula- 

 tions the officers did not legislate. They 

 did not go outside of the circle of that 

 which the act itself had affirmatively re- 

 quired to be done, or treated as unlawful 

 it done. But confining themselves within 

 the field covered by the statute they could 

 adopt regulations of the nature they had 

 thus been generally authorized to make, in 

 order to administer the law and carry the 

 statute into effect. 

 The defendants rely on United States v. 



