796 ANNUAL REPORTS OP DEPARTMENT OF AGRICULTURE. 



Agriculture, which required all persons to secure a permit before grazing stock on a 

 forest reserve. The defendants demurred to the indictments on the ground that the 

 act of June 4, 1897, is unconstitutional in that it attempts to delegate to the Secretary 

 of Agriculture legislative power. The district court sustained the demurrers, and 

 the United States prosecuted a writ of error direct to the Supreme Court. The sub- 

 stance of the derision is as follows: 



1. The act of June 4, 1897 (30 Stat., 11). authorizing the Secretary of Agriculture 

 to make such rules and regulations and establish such service as will insure the objecta 

 of the national forests, namely, to regulate their occupancy and use and to preserve 

 the forests thereon from destruction, and prescribing punishment for any violation 

 of such rules and regulations, does not confer upon the Secretary of Agriculture legis- 

 lative power, but merely authorizes him to exerci.se administrative functions in the 

 management of the national forests, which, because of the various and varying details 

 of such management, can not be provided in general regulations enacted by Congress, 

 and the act is constitutional. 



2. The authority to make administrative rules is not a delegation of legislative 

 power, nor are such rules raised from an administrative to a legislative character 

 because the violation thereof is punishable as a public offense. 



3. Although there is no act of Congress which in express terms declares that it shall 

 be unlawful to graze sheep on a national forest, and although the act of June 4, 1897, 

 provides that nothing therein shall prohibit any person from entering such reserva- 

 tions for all proper and lawful purposes, such entry and use of the reserves is subject 

 to the proviso, also contained in the act, that such persons comply with the rules 

 and regulations covering such reservations; and as the act, not the Secretary of 

 Agriculture, makes it an offense to violate such regulations, the grazing of sheep on 

 the reservations without complying with the regulations of the Secretary of Agri- 

 culture, which require that a permit be obtained before grazing sheep on the 

 jeservations, is unlawful and an indictable offense. 



4. The regulation promulgated by the Secretary of Agriculture on June 12, 1906, 

 providing that "all persons must secure permits before grazing any stock in a forest 

 reserve, except the few head in actul use by prospectors, campers, and travelers, 

 and 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," 

 is valid and enforceable, and a person who drives and grazes sheep upon a national 

 forest in violation of such regulations is making unlawful use of the Government 

 property and renders himself liable to the penalty imposed by Congress. 



5. The Secretary of Agriculture has the power to impose a charge for the privilege 

 of grazing on the national forests. In addition to the general power conferred by 

 the act of June 4, 1897, the act of February 1, 1905, which declares "that all money 

 received from the sale of any products or the use of any land or resources of said forest 

 reserves shall be covered into the Treasury of the United States and for a period of 

 five years from the passage of this act shall constitute a special fund available, until 

 expended, as the Secretary of Agriculture may direct, for the protection, adminis- 

 tration, improvement, and extension of Federal forest reserves," and also subsequent 

 acts providing that money received from any source of forest-reserve revenues shall 

 be covered into the Treasury, and a part thereof turned over to the States and Terri- 

 tories in which the national forests are located, to be expended for public schools 

 and roads, clearly indicate that Congress intended that the Secretary of Agriculture 

 might make charges out of which a revenue from forest reserves was expected to arise. 



During the latter part of the fiscal year the Forester was advised 

 by telegram that two forest rangers in New Mexico had been arrested 

 and were then in custody of the Territorial authorities on the charge 

 of murder. It appeared from the telegram that these officers, while- 

 attempting to apprehend a man for alleged violation of the stock law 

 of New Mexico, were forced to Idll the offender in order to defend 

 themselves. As soon as the matter was brought to the attention of 

 the Solicitor a full report was required, and upon its receipt and 

 examination a letter was prepared for your signature to the Attorney 

 General requesting that ne instruct the United St-^tes attorney to 

 apply for a writ of habeas corpus to release the rangers. A petition 

 for the writ was prepared by the district assistant to the Solicitor 

 and the United States attorney, was promptly filed, and after argu- 

 ment the writ was granted by the court and the rangers released from 

 custody. 



