360 



AMERICAN FORESTRY 



using reser\-es for "all proper and lawful 

 purposes" is subject to the proviso that the 

 person so using them shall comply ' with 

 the rules and regulations covering said 

 forest reservation." The same act makes 

 it an offense to violate those regulations, 

 that is. to use them otherwise than in 

 accordance with the rules established by 

 the Secretary. Thus the implied license 

 under which the United States had suffered 

 its public domain to be used as a pasture 

 for sheep and cattle, mentioned in Buford 

 V. Houtz, 133 U. S., 326, was curtailed and 

 qualified by Congress, to the extent that 

 such privilege should not be exercised in 

 contravention of the rules and regulations. 

 Wilcox V. Jackson, 13 Pet., 513. 



If, after the passage of the act and the 

 promulgation of the rule, the defendants 

 drove and grazed their sheep upon the re- 

 serve, in violation of the regulations, they 

 were making an unlawful use of the Gov- 

 ernment's property. In doing so they there- 

 by made themselves liable to the penalty 

 imposed by Congress. 



It was argued that, even if the Secretary 

 could establish regulations under which a 

 permit was required, there was nothing 

 in the act to indicate that Congress had 

 Intended or authorized him to charge for 

 the privilege of grazing sheep on the re- 

 serve. These fees were fixed to prevent ex- 

 cessive grazing and thereby protect the 

 young growth, and native grasses, from 

 destruction, and to make a slight income 

 with which to meet the expenses of man- 

 agement. In addition to the general power 

 in the act of 1897, already quoted, the 

 act of February 1st, 1905, clearly indicates 

 that the Secretary was authorized to make 

 charges out of which a revenue from for- 

 est resources was expected to arise. For 

 it declares that "all money received from 

 the sale of any products or the use of any 

 land or resources of said forest reserve" 

 shall be covered into the Treasury and be 

 applied toward the payment of forest ex- 

 penses. This act was passed before the 

 promulgation of regulation 45, set out in 

 the indictment. 



Subsequent acts also provide that money 

 received from "any source of forest reser- 

 vation revenue" should be covered into the 

 Treasury, and a part thereof was to be 

 turned over to the Treasurers of the re- 

 spective States to be expended for the bene- 

 fit of the public schools and public roads 

 in the counties in which the forest reserves 

 are situated. (34 Stat, 684, 1270.) 



The Secretary of Agriculture could not 

 make rules and regulations for any and 

 every purpose. Williamson v. United 

 States, 207 U. S., 462. As to those here in- 

 volved, they all relate to matters clearly 

 Indicated and authorized by Congress. The 

 subjects as to which the Secretary can regu- 

 late are defined. The lands are set apart 

 as a forest reserve. He is required to make 

 provision to protect them from depreda- 



tions and from harmful uses. He is au- 

 thorized "to regulate the occupancy and 

 use and to preserve the forests from de- 

 struction." A violation of reasonable rules 

 regulating the use and occupancy of the 

 property is made a crime, not by the Secre- 

 tary, but by Congress. The statute, not 

 the Secretary, fixes the penalty. 



The indictment charges, and the demur- 

 rer admits, that Rule 45 was promulgated 

 for the purpose of regulating the occu- 

 pancy and use of the public forest reser- 

 vation and preserving the forest. The 

 Secretary did not exercise the legislative 

 power of declaring the penalty or fixing 

 the punishment for grazing sheep without 

 a permit, but the punishment is imposed 

 by the act itself. The offense is not against 

 the Secretary, but, as the indictment prop- 

 erly concludes, "contrary to the laws of 

 the United States and the peace and dig- 

 nity thereof." The demurrers should have 

 been overruled. The affirmances by a di- 

 vided court heretofore entered are set aside 

 and the judgments in both cases reversed. 



LIGHT VERSUS THE UNITED STATES. 



This case, Fred Light, appellant, v. The 

 United States, was an appeal from the Cir- 

 cuit Court of the United States for the 

 District of Colorado. The following state- 

 ment was made by Mr. Justice Lamar: 



The Holy Cross Forest Reserve was es- 

 tablished under the provisions of the act 

 of March 3, 1891. By that and subsequent 

 statutes the Secretary of Agriculture was 

 authorized to make provisions for the pro- 

 tection against destruction by fire and dep- 

 redations of the public forest and forest 

 reservations and "to make such rules and 

 regulations and establish such service as 

 would insure the objects of such reserva- 

 tion, namely, to regulate their occupancy 

 and use, and to preserve the forests there- 

 on from destruction." 26 Stat, L. 1103; 

 30 Stat., L. 35, Act of Congress February 

 1, 1905; 7 Fed. Stat Ann., 310, 312, and 

 Supp. for 1909, page 663. In pursuance of 

 these statutes regulations were adopted es- 

 tablishing grazing districts on which only 

 a limited number of cattle were allowed. 

 The regulations provided that a few head 

 of cattle of prospectors, campers and not 

 more than ten belonging to a settler resid- 

 ing near the forest might be admitted with- 

 out permit, but saving these exceptions the 

 general rule was that "all persons must 

 secure permits before grazing any stock 

 in a national forest." 



On April 7, 1908, the United States, 

 through the district attorney, filed a 

 bill in the Circuit Court for the 

 District of Colorado reciting the mat- 

 ters above outlined, and alleging that 

 the defendant Fred Light owned a 

 herd of about 500 cattle and a ranch of 540 

 acres, located two and a half miles to the 

 east and five miles to the north of the 

 reservation. This herd was turned out to 



