170 UNITED STATES FOREST POLICY 



It would be unfair to ignore the element of justice in the attitude 

 of the sheepmen toward government regulation of their business. 

 Like other western men, they were much imbued with the idea of indi- 

 vidual liberty, and were impatient of restraint. They had herded their 

 sheep over some of these grounds for many years — for so long that 

 they came almost to feel a certain proprietary interest in them. Now 

 comes the forest reserve, and with it a troop of officials and "scientific 

 gentlemen" — for whom the western men usually had scant respect, 

 anyhow. These new officials began to lay down rules and regulations, 

 some of which, although wise and necessary, increased the difficulties 

 under which sheep raising was carried on. As an old sheepman in 

 Wyoming once expressed it : "Of course anyone can raise sheep, even 

 according to the rules laid down by the forest officers ; but raising 

 sheep as a business man must — so as to make a profit — that is a 

 different proposition." It is rather difficult for anyone not thoroughly 

 familiar with western conditions to appreciate the attitude of some 

 of the sheepmen in this matter. 



In November, 1898, the Department of Justice advised the Depart- 

 ment of the Interior that a criminal prosecution could be maintained 

 against any person who herded sheep in a forest reserve, in viola- 

 tion of the rules and regulations provided; but two years later a 

 United States District Court in California held that the act of 1897, 

 in so far as it declared to be a crime any violation of the rules and 

 regulations thereafter to be made by the Secretary of the Interior, 

 was a delegation of legislative power to an administrative office, and 

 therefore unconstitutional. The Attorney-General adhered to his 

 opinion in spite of this decision, and suggested that other prosecu- 

 tions be instituted, with a view to getting a case before an appellate 

 court. Similar suits were therefore brought in northern California, 

 Arizona, Utah, and Washington, but in each case the decision of the 

 first court, although certainly erroneous, was sustained.^* 



The government had no right of appeal from these decisions, and 



^*OpinionSj Atty.-Gen., 22, 266: U. S. vs. Blasingame; 116 Fed. Rep. 654: 

 Dastervignes vs. U. S.; 122 Fed. Rep., 34: U. S. vs. Deguirro; 152 Fed. Rep., 568: 

 U. S. vs. Domingo; 152 Fed. Rep., 566: U. S. vs. Bale; 156 Fed. Rep., 687: U. S. 

 vs. Rizzinelli; 182 Fed. Rep., 675: U. S. vs. Grimaud; 220 U. S., 506: Light vs. 

 U. S.; 220 U. S., 523: Report, Sec. of Int., 1903, 324. See also Dent vs. U. S.; 8 

 Arizona, 138. 



