1902. 



FORESTRY AND IRRIGATION. 



329 



tion of the legislation which created the 

 offense. ' 



"Your question, therefore, is an- 

 swered in the affirmative." 



Many sheep trespasses occurred in 

 the Sierra Reserve, and many arrests 

 were made. Of certain arrests made, 

 nineteen of the parties pleaded guilty, 

 and fourteen were fined $5 each, four 

 were fined $25 each, and one was fined 

 $50. These nominal fines encouraged 

 a violation of the rules, because the 

 grazing of a band of sheep at a cost of 

 but $5 made cheap grazing. Some of 

 the parties so fined were the herders of 

 rich sheep-owners, men who have taken 

 very means possible to defy the rules 

 and regulations, and whose actions have 

 been sustained by the courts in Califor- 

 nia. On several occasions these people 

 have taken sheep into the reserve in 

 violation of orders. On one occasion 

 one of the parties took five herds of 

 sheep into the reserve, and when two 

 of the forest rangers tried to drive out 

 one herd, the owner and his herders, 

 with threats and show of firearms, took 

 the sheep away from the rangers and 

 defied orders to remove the sheep. They 

 were arrested and held to answer. When 

 the time came for trial before Judge 

 Wellborn, of the southern district of 

 California, 35 cases were pending. A 

 demurrer to the criminal information 

 was filed by the defendants, and Judge 

 Wellborn sustained the demurrer, hold- 

 ing that the act under which the rule 

 prohibiting grazing was made, in so far 

 as it declares to be a crime a violation 

 of the rules, was unconstitutional, in 

 that it delegated legislative power to an 

 administrative officer. As a result of 

 this decision all criminal prosecutions 

 in Judge Wellborn 's jurisdiction were 

 discontinued. 



Commenting upon this decision, the 

 Attorney General said (see his Annual 

 Report for 1900, page 40): 



"Under the present procedure it is 

 impossible for the government to have 

 the decision of the district court re- 

 viewed, although it is the opinion of 

 the district attorney having charge of 

 the case, and of the Attorney General, 

 that the decision was erroneous and 

 ought to be reversed." 



Several arrests for sheep trespass in 

 the forest reserves of Arizona were sub- 

 sequently made, and on March 25, 1902, 

 in the district court of the fourth judi- 

 cial district of Arizona, nine indictments 

 were presented against parties charged 

 with the crime of pasturing sheep on the 

 public lands in a forest reser\-ation . The 

 defendants filed a demurrer, as in the 

 California case, which the court over- 

 ruled, and a verdict of guilty was found 

 and fines were imposed. In these cases 

 one, as a test case, was appealed by 

 the defendant to the supreme court of 

 the territory and is now pending. 



Civil suits for damage were also 

 brought against the defendants in the 

 California cases for the trespass on 

 which the criminal proceedings were 

 based, and they entered demurrers to 

 the complaints on two grounds : first, 

 that the state law gave stockmen the 

 right to graze on the public domain un- 

 less fenced ; and, second, that the priv- 

 ilege of grazing on the public lands had 

 been so long conceded that it had become 

 a right. Judge Wellborn, on May 7, 

 1 90 1, overruled the demurrers and re- 

 quired the defendants to answer the 

 complaints. Within a few days there- 

 after four parties again took sheep into 

 the reserve, and injunctions were asked 

 for on the part of the government. At 

 the hearing the defendants alleged that 

 they were going to private land holdings 

 wathin the reserve with their sheep, and 

 had the right of ingress and egress, and 

 the right to pasture on the reserve be- 

 cause no injury would result therefrom. 

 The court, however, on July 31, 1901. 

 enjoined them from driving, pasturing, 

 herding, or grazing sheep upon the 

 reserve lands, or in anj^ way doing in- 

 jury thereto : Provided, That in the use 

 of the private lands situated within the 

 said reserve in the pasturing and graz- 

 ing of sheep thereon (said land amount- 

 ing to 9,240 acres, and which is re- 

 ferred to and described in the affidavits 

 filed in other actions) they desist from 

 unnecessar}' and wrongful delay in go- 

 ing from one tract to another of such 

 private holdings, and also in leaving 

 the reserve at the end of the summer 

 season. 



This was all that these people re- 



