262 THE USE BOOK. 



determining whether the rule is an attempt to create a law or 

 simply a regulation or means of enforcing a law already en- 

 acted. If the former, it is void ; if the latter, it is as valid as the 

 law itself. There is no doubt as to the rule of decision, but in 

 some instances the question is so close that it is difficult to con- 

 clude how the rule should be construed. In this instance the 

 statute says that the Secretary " may make such rules and 

 regulations and establish such service as will insure the ob- 

 jects of such reservation." But it does not leave him to deter- 

 mine what such objects are ; it states them : First, " to regulate 

 their occupancy and use;", and, second, "to preserve the forests 

 thereon from destruction." Clearly Congress contemplated that 

 these reserves should be occupied and used, but in what manner, 

 by whom, and for what purposes, it leaves the Secretary to reg- 

 ulate by rules. Rules to prevent any occupation or use would 

 be contrary to the statute, but those simply to regulate such 

 occupation and use are what the statute expressly authorizes, 

 and are valid. 



While the provisions of the statute for the preservation of the 

 forests from destruction probably refers to the wanton destruc- 

 tion of the timber, yet the occupancy has an important effect 

 upon such preservation. If the occupation by animals or other- 

 wise is such as to destroy the growing, tender trees, the final 

 deterioration and destruction of the forest must follow. 



My conclusion is, that in so far as this regulation 72 forbids 

 any [568] grazing or driving of live stock upon on or across the 

 reservation without a permit, it is not legislation, but is only a 

 rule within the authority of Congress to regulate the occupation 

 and use and is valid. But the rule goes further and directs a 

 fine and imprisonment for such unpermitted acts. It must be 

 doubted that the Secretary can direct any punishment that is 

 not directly provided for, or distinctly implied by the act. The 

 most that can be held against this portion of the regulation is 

 that it is surplusage, but which does not invalidate the balance 

 of the rule. If no punishment were provided by the act, he 

 could not direct any ; if the act does provide a punishment, he 

 can not modify it. The act does, however, provide a punish- 

 ment by applying to the offenses in this act, the penalty pro- 

 vided for offenses named in the act of June 4, 1888. By this 

 latter act a punishment of not over $500 fine, or imprisonment 

 of not over twelve months, or both, is provided. But the regu- 

 lation in directing fine and imprisonment is obnoxious to the 

 statute which provides for fine or imprisonment. This statute of 

 1897 distinctly defines the penalty as the same prescribed by the 

 statute of 1888. But defendants' counsel argues that as the 

 penalty provided by the act of 1888 is for the cutting of timber 



