THE GRAZING CASES DECIDED 



359 



Eaton. 144 U. S., 677, where the act au- 

 thorized the Commissioner to make rules 

 for carrying the statute into effect, but 

 imposed no penalty for failing to observe 

 his regulations. Another section (5) re- 

 quired that the dealer should keep books 

 showing certain facts, and providing that 

 he should conduct his business under such 

 surveillance of officers as the Commissioner 

 might by regulation require. Another sec- 

 tion declared that if any dealer should 

 knowingly omit to do any of the things 

 "required by law" he should pay a penalty 

 of a thousand dollars. Eaton failed to 

 keep the books required by the regulations. 

 But there was no charge that he omitted 

 "anything required by law," unless it could 

 be held that the books called for by the 

 regulations were "required by law." The 

 court construed the act as a whole and 

 proceeded on the theory that while a vio- 

 lation of the regulations might have been 

 punished as an offense if Congress had 

 so enacted, it had, in fact, made no such 

 provision so far as concerned the particular 

 charge then under consideration. Congress 

 required the dealer to keep books render- 

 ing return of materials and products, but 

 imposed no penalty for failing so to do. 

 The Commissioner went much further and 

 required the dealer to keep books showing 

 oleomargarine received, from whom re- 

 ceived and to whom the same was sold. 

 It was sought to punish the defendant for 

 failing to keep the books required by the 

 regulations. Manifestly this was putting 

 tne regulations above the statute. The 

 court showed that when Congress enacted 

 that a certain sort of book should be kept, 

 the Commissioner could not go further and 

 require additional books; or, if he did 

 make such regulation, there was no pro- 

 vision in the statute by which a failure to 

 comply therewith could be punished. It 

 said that, "If Congress intended to make 

 it an offense for wholesale dealers to omit 

 to keep books and render returns required 

 by regulations of the Commissioner, it 

 would have done so distinctly" implying 

 that if it had done so distinctly the viola- 

 tion of the regulations would have been 

 an offense. 



But the very thing which was omitted 

 in the oleomargarine act has been dis- 

 tinctly done in the Forest Reserve Act, 

 which, in terms, provides that "any viola- 

 tion of the provisions of this act or such 

 rules and regulations of the Secretary shall 

 be punished as prescribed in section 5388 

 of the Revised Statutes as amended." 



In Union Bridge Co. v. United States, 

 204 U. S., 386, justice Harlan, speaking 

 for the court, said: 



"By the statute in question Congress de- 

 clared in effect that navigation should be 

 freed from unreasonable obstructions aris- 

 ing from bridges of insuflBcient height. 



width of span or other defects. It stopped, 

 however, with the declaration of a general 

 rule and imposed upon the Secretary of 

 War the duty of ascertaining what particu- 

 lar cases came within the rule prescribed 

 by Congress, as well as the duty of en- 

 forcing the rule in such cases. In per- 

 forming that duty the Secretary of War 

 will only execute the clearly expressed 

 will of Congress, and will not, in any true 

 sense, exert legislative or judicial power." 



And again he said in Field v. Clark, 143 

 U. S., 694: 



"The legislature cannot delegate its 

 power to make law, but it can make a law 

 to delegate a power to determine some 

 fact or state of things upon which the 

 law makes or intends to make its own ac- 

 tion depend. To deny this would be to 

 stop the wheels of government. There are 

 many things upon which wise and useful 

 legislation must depend which cannot be 

 known to the lawmaking power and must 

 therefore be a subject of inquiry and de- 

 termination outside of the halls of legis- 

 lation." See also Coha v. United States, 

 152 U. S., 211; United States v. Bailey, 

 9 Pet., 238; Cosmos Co. v. Gray Eagle Co., 

 190 U. S., 309; Oceanic Navigation Co. v. 

 Stranahan. 214 U. S., 333; RougTiton v. 

 Knight, October Term, 1910; Smith v. 

 Whitney, 116 U. S., 167; ex parte Reed, 

 100 U. S., 22; Gratiot v. United States, 4 

 How., 81. 



In Brodhine v. Revere, 182 Mass., 599, a 

 boulevard and park board was given au- 

 thority to make rules and regulations for 

 the control and government of the road- 

 ways under its care. It was there held 

 that the provision in the act that breaches 

 of the rules thus made should be breaches 

 of the peace, punishable in any court hav- 

 ing jurisdiction, was not a delegation of 

 legislative power which was unconstitu- 

 tional. The court called attention to the 

 fact that the punishment was not fixed 

 by the board, saying that the making of 

 the rules was administrative, while the 

 substantive legislation was in the statute 

 which provided that they should be pun- 

 ished as breaches of the peace. 



That "Congress cannot delegate legisla- 

 tive power is a principle universally recog- 

 nized as vital to the integrity and main- 

 tenance of the system of government or- 

 dained by the Constitution." Field v. 

 Clark; 143 U. S., 692. But the authority 

 to make administrative rules is not a dele- 

 gation of legislative power, nor are such 

 rules raised from an administrative to a 

 legislative character because the violation 

 thereof is punished as a public offense. 



It is true that there is no act of Congress 

 which, in express terms, declares that it 

 shall be unlawful to graze sheep on a forest 

 reserve. But the statutes, from which we 

 have quoted, declare, that the privilege of 



