THE GRAZING CASES DECIDED 



357 



from destruction; and any violation of the 

 provisions of this act or such rules and 

 regulations shall be punished as prescribed 

 in Rev. Stat., 538S," which, as amended, 

 provides for a fine of not more than five 

 hundred dollars and imprisonment for not 

 more than twelve months, or both, at the 

 discretion of lue court. 26 Stat, 1103; 30 

 Stat., 34; 30 Stat, 35; 31 Stat, 661; 33 

 Stat., 36; 7 Fed. Stat. Anno., 310-317, 296, 

 Supp. 1909, p. 634. 



Under these acts the Secretary of Agri- 

 culture, on June 12, 1906, promulgated and 

 established certain rules for the purpose of 

 regulating the use and occupancy of the 

 public forest reservations and preserving 

 the forests thereon from destruction, and 

 among those established was the following: 



"Regulation 45. All persons must se- 

 cure permits before grazing any stock in 

 a forest reserve, except the few head in 

 actual use by prospectors, campers and 

 travelers and milch or work animals, not 

 exceeding a total of six head, owned by 

 hona fide settlers residing in or near a for- 

 est reserve, which are excepted and re- 

 quire no permit." 



The defendants were charged with driv- 

 ing and grazing sheep on a resrve, without 

 a permit. The grand jury in the District 

 Court for the Southern District of Cali- 

 fornia, at the November term, 1907, in- 

 dicted Pierre Grimaud and J. P. Cara- 

 jous, charging that on April 26, 1907, after 

 the Sierra Forest Reserve had been es- 

 tablished, and after regulation 45 had been 

 promulgated, "they did knowingly, wil- 

 fully and unlawfully pasture and graze 

 and cause and procure to be pastured and 

 grazed certain sheep (the exact number be- 

 ing to the grand jurors unknown) upon 

 certain land within the limits of and a 

 part of said Sierra Forest Reserve, with- 

 out having theretofore or at any time se- 

 cured or obtained a permit or any per- 

 mission for said pasturing or grazing of 

 said sheep or any part of them, as required 

 by the said rules and regulations of the 

 Secretary of Agriculture," the said sheep 

 not being within any of the excepted 

 classes. The indictment concluded, "con- 

 trary to the form of the statutes of the 

 United States in such case made and pro- 

 vided, and against the peace and dignity 

 of the said United States." 



The defendants demurred, upon the 

 ground (1) that the facts stated did not 

 constitute a public offense, or a public of- 

 fense against the United States, and (2) 

 that the acts of Congress making It an 

 offense to violate rules and regulations 

 made and promulgated by the Secretary of 

 Agriculture are unconstitutional, in that 

 they are an attempt by Congress to dele- 

 gate its legislative power to an adminis- 

 trative officer." The court sustained the 

 demurrers (170 Fed., 205), and made a 

 like ruling on the similar indictments in 



U. S. V. Inda. 216 U. S., 614. Both judg- 

 ments were affirmed by a divided court. 

 Afterwards petitions for rehearing were 

 granted. 



Mr. Justice Lamar, after making the 

 foregoing statements, delivered the opin- 

 ion of the Court. 



The defendants were indicted for grazing 

 sheep on the Sierra Forest Reserve with- 

 out having obtained the permission re- 

 quired by the regulations adopted by the 

 Secretary of Agriculture. They demurred 

 TTn the ground that the Forest Reserve Act 

 of 1891 was unconstitutional, in so far as 

 it delegated to the Secretary of Agriculture 

 power to make rules and regulations and 

 made a violation thereof a penal offense. 

 Their several demurrers were sustained. 

 The Government brought the case here 

 under that clause of the Criminal Appeals 

 Act (34 Stat, 1246), which allows a writ 

 of error where the "decision complained 

 of was based upon the invalidity of the 

 statute." 



The Federal courts have been divided on 

 the question as to whether violations of 

 those regulations of the Secretary of Agri- 

 culture constitute a crime. The rules were 

 held to be valid for civil purposes in 

 Dastervignes v. United States, 122 Fed., 30; 

 United States v. Dastervignes, 118 Fed., 

 199; United States v. Shannon, 151 Fed., 

 863; Ibid. 160 Fed., 870. They were also 

 sustained in criminal prosecutions in 

 United States v. Deguirro, 152 Fed., 568; 

 United States v. Domingo, 152 Fed., 566; 

 United States v. Bale, 156 Fed., 687; 

 United States v. Rizzinelli, 182 Fed., 675. 

 But the regulations were held to be invalid 

 in United States v. Blasingame, 116 Fed., 

 654; United States v. Mattheios, 146 Fed., 

 306; United States v. Dent, 8 Ariz., 138. 



From the various acts relating to the 

 establishment and management of forest 

 reservations it appears that they were in- 

 tended "to improve and protect the forest 

 and to secure favorable conditions of water 

 flows." It was declared that the acts 

 should not be "construed to prohibit the 

 egress and ingress of actual settlers" re- 

 siding therein nor "to prohibit any person 

 from entering the reservation for all proper 

 and lawful purposes, including prospecting, 

 and locating and developing mineral re- 

 sources; provided that such persons comply 

 with the rules and regulations covering 

 such forest reservation." (Act of 1897, 30 

 Stat., 36.) It was also declared that the 

 Secretary "may make such rules and regu- 

 lations and establish such service as will 

 insure the objects of such reservation, 

 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 pro- 

 vided in Sec. 53SS of the Revised Statutes, 

 as amended. 



