Under the acts establishing forest reservations, their use for
grazing or other lawful purposes is subject to rules and
regulations established by the Secretary of Agriculture, and, it
being impracticable for Congress to provide general regulations,
that body acted within its constitutional power in conferring power
on the Secretary to establish such rules; the power so conferred
being administrative and not legislative, is not an
unconstitutional delegation.
While it is difficult to define the line which separates
legislative power to make laws and administrative authority to make
regulations, Congress may delegate power to fill up details where
it has indicated its will in the statute, and it may make
violations of such regulations punishable as indicated in the
statute, and so
held that regulations made by the
Secretary of Agriculture as to grazing sheep on forest reserves
have the force of law, and that violations thereof are punishable,
under Act of June 4, 1897, c. 2, 30 Stat. 35, as prescribed in
§ 5388, Rev.Stat.
Congress cannot delegate legislative power, Field v. Clark,
143 U. S. 692,
but the authority to make administrative rules is not a delegation
of legislative power, and such rules do not become legislation
because violations thereof are punished as public offenses.
Even if there is no express act of Congress making it unlawful
to graze sheep or cattle on a forest reserve, when Congress
expressly provides that such reserves can only be used for lawful
purposes subject to regulations and makes a violation of such
regulations an offense, any existing implied license to graze is
curtailed and qualified by Congress, and one violating the
regulations when promulgated makes an unlawful use of the
government's property, and becomes subject to the penalty
imposed.
Page 220 U. S. 507
A provision in an act of Congress as to the use made of moneys
received from government property clearly indicates an authority to
the executive officer authorized by statute to make regulations
regarding the property to impose a charge for its use.
Where the penalty for violations of regulations to be made by an
executive officer is prescribed by statute, the violation is not
made a crime by such officer, but by Congress, and Congress, and
not such officer, fixes the penalty, nor is the offense against
such, officer but against the United States. 170 F. 205
reversed.
By the Act of March 3, 1891, 26 Stat. 1103, c. 561, the
President was authorized from time to time to set apart and
reserve, in any state or territory, public lands, wholly or in part
covered with timber or undergrowth, whether of commercial value or
not, as public forest reservations. And by the Act of June 4, 1897,
30 Stat. 35, c. 2, the purposes of these reservations were declared
to be
"to improve and protect the forest within the reservation, or
for the purpose of securing favorable conditions of water flows,
and to furnish a continuous supply of timber for the use and
necessities of citizens of the United States. . . . All waters on
such reservations may be used for domestic, mining, milling, or
irrigation purposes under the laws of the state wherein such forest
reservations are situated or under the laws of the United States,
and the rules and regulations established thereunder."
30 Stat. 36.
It is also provided that nothing in the act should
"be construed as prohibiting the egress or ingress of actual
settlers residing within the boundaries of such reservations, . . .
nor shall anything herein prohibit any person from entering upon
such forest reservations for all proper and lawful purposes, . . .
provided that such persons comply with the rules and regulations
covering such forest reservations."
There were special provisions as to the sale of timber from any
reserve (except those in the State of California, 30 Stat. 35, c.
2; 31 Stat. 661, c. 804), and a requirement
Page 220 U. S. 508
that the proceeds thereof and from any other forest source
should be covered into the Treasury, the Act of February 1, 1905,
33 Stat. 628, c. 288, § 5, providing that
"all money received from the sale of any products or the use of
any land or resources of said forest reserves shall be covered into
the Treasury of the United States, and for a period of five years
from the passage of this act shall constitute a special fund
available, until expended, as the Secretary of Agriculture may
direct, for the protection, administration, improvement, and
extension of federal forest reserves."
The act of 1905, as to receipts arising from the sale of any
products or the use of any land, was, in some respects, modified by
the Act of March 4, 1907. It provided that all moneys received
after July 1, 1907, by or on account of forest service timber, or
from any other source of forest reservation revenue, shall be
covered into the Treasury, provided
"that ten percentum of all money received from each forest
reserve during any fiscal year, including the year ending June
30th, 1906, shall be paid at the end thereof by the Secretary of
the Treasury to the state or territory in which said reserve is
situated, to be expended, as the state or territorial legislature
may prescribe, for the benefit of the public schools and public
roads of the county or counties in which the forest reserve is
situated."
34 Stat. 1270, c. 2907.
The jurisdiction, both civil and criminal, over persons within
such reservation, was not to be affected by the establishment
thereof
"except so far as the punishment of offenses against the United
States therein is concerned; the intent and meaning of this
provision being that the state . . . shall not, by reason of the
establishment . . . [of the reserve] lose its jurisdiction, nor the
inhabitants thereof their rights and privileges as citizens, or be
absolved from their duties as citizens of the state."
30 Stat. 36, c. 2.
The original act provided that the management and regulation of
these reserves should be by the Secretary
Page 220 U. S. 509
of the Interior, but, in 1905, that power was conferred upon the
Secretary of Agriculture (33 Stat. 628), and, by virtue of those
various statutes, he was authorized to
"make provisions for the protection against destruction by fire
and depredations upon the public forests and forest reservations .
. . , and he may make such rules and regulations and establish such
service as will insure the objects of such reservations; 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 prescribed in Rev.Stat. 5388, which, as amended, provides for
a fine of not more than $500 and imprisonment for not more than
twelve months, or both at the discretion of the court. 26 Stat.
1103, c. 561; 30 Stat. 34, 35, c. 2; 31 Stat. 661, c. 804; 33 Stat.
36, c. 160; 7 Fed.Stat.Anno. 310-317, 296, Supp. 1909, p. 634.
Under these acts, the Secretary of Agriculture, 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 secure 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
bona fide settlers
residing in or near a forest reserve, which are excepted and
require no permit."
The defendants were charged with driving and grazing sheep on a
reserve without a permit. The grand jury in the District Court for
the Southern District of California, at the November term, 1907,
indicted Pierre Grimaud and J. P. Carajous, charging that, on April
26, 1907, after the Sierra Forest Reserve had been established,
Page 220 U. S. 510
and after regulation 45 had been promulgated,
"they did knowingly, willfully, and unlawfully pasture and
graze, and cause and procure to be pastured and grazed, certain
sheep (the exact number being to the grand jurors unknown) upon
certain land within the limits of and a part of said Sierra Forest
Reserve, without having theretofore or at any time secured or
obtained a permit or any permission 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,
"contrary to the form of the statutes of the United States in
such case made and provided, 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 offense 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
delegate its legislative power to an administrative officer."
The court sustained the demurrers (170 F. 205), and made a like
ruling on the similar indictment in
United States v. Inda,
216 U. S. 614.
Both judgments were affirmed by a divided court. Afterwards,
petitions for rehearing were granted.
Page 220 U. S. 514
MR. JUSTICE LAMAR, after making the foregoing statement,
delivered the opinion of the Court.
The defendants were indicted for grazing sheep on the Sierra
Forest Reserve without having obtained the permission required by
the regulations adopted by the Secretary of Agriculture. They
demurred on the ground that the Forest Reserve Act of 1897 was
unconstitutional insofar 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 the clause of
the Criminal Appeals Act (March 2, 1907, 34 Stat. 1246, c. 2564)
which allows a writ of error where the "decision complained of was
based upon the invalidity of the statute."
Page 220 U. S. 515
The federal courts have been divided on the question as to
whether violations of those regulations of the Secretary of
Agriculture constitute a crime. The rules were held to be valid for
civil purposes in
Dastervignes v. United States, 122 F.
30;
United States v. Dastervignes, 118 Fed.199;
United
States v. Shannon, 151 F. 863;
ibid., 160 F. 870.
They were also sustained in criminal prosecutions in
United
States v. Deguirro, 152 F. 568;
United States v.
Domingo, 152 F. 566;
United States v. Bale, 156 F.
687;
United States v. Rizzinelli, 182 F. 675. But the
regulations were held to be invalid in
United States v.
Blasingame, 116 F. 654;
United States v. Matthews,
146 F. 306;
Dent v. United States, 8 Ariz. 138.
From the various acts relating to the establishment and
management of forest reservations, it appears that they were
intended "to improve and protect the forest and to secure favorable
conditions of water flows." It was declared that the act should not
be "construed to prohibit the egress and ingress of actual
settlers" residing therein, nor to
"prohibit any person from entering upon such forest reservations
for all proper and lawful purposes, including that of prosecuting,
locating, and developing mineral resources thereof: provided that
such persons comply with the rules and regulations covering such
forest reservations."
(Act of 1897, 30 Stat. 36, c. 2.) It was also declared that the
Secretary
"may make such rules and regulations and establish such service
as will insure the objects of such reservations; 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 provided in § 5388 of the Revised Statutes, as
amended."
Under these acts, therefore, any use of the reservation for
grazing or other lawful purpose was required to be
Page 220 U. S. 516
subject to the rules and regulations established by the
Secretary of Agriculture. To pasture sheep and cattle on the
reservation at will and without restraint might interfere seriously
with the accomplishment of the purposes for which they were
established. But a limited and regulated use for pasturage might
not be inconsistent with the object sought to be attained by the
statute. The determination of such questions, however, was a matter
of administrative detail. What might be harmless in one forest
might be harmful to another. What might be injurious at one stage
of timber growth, or at one season of the year, might not be so at
another.
In the nature of things, it was impracticable for Congress to
provide general regulations for these various and varying details
of management. Each reservation had its peculiar and special
features, and, in authorizing the Secretary of Agriculture to meet
these local conditions, Congress was merely conferring
administrative functions upon an agent, and not delegating to him
legislative power. The authority actually given was much less than
what has been granted to municipalities by virtue of which they
make bylaws, ordinances, and regulations for the government of
towns and cities. Such ordinances do not declare general rules with
reference to rights of persons and property, nor do they create or
regulate obligations and liabilities, nor declare what shall be
crimes, nor fix penalties therefor.
By whatever name they are called, they refer to matters of local
management and local police.
Brodbine v. Revere, 182 Mass.
599. They are
"not of a legislative character in the highest sense of the
term, and as an owner may delegate to his principal agent the right
to employ subordinates, giving to them a limited discretion, so it
would seem that Congress might rightfully entrust to the local
legislature [authorities] the determination of minor matters."
Butte City Water Co. v. Baker, 196
U. S. 126.
Page 220 U. S. 517
It must be admitted that it is difficult to define the line
which separates legislative power to make laws from administrative
authority to make regulations. This difficulty has often been
recognized, and was referred to by Chief Justice Marshall in
Wayman v.
Southard, 10 Wheat. 42, where he was considering
the authority of courts to make rules. He there said:
"It will not be contended that Congress can delegate to the
courts, or to any other tribunals, powers which are strictly and
exclusively legislative. But Congress may certainly delegate to
others powers which the legislature may rightfully exercise
itself."
What were these nonlegislative powers which Congress could
exercise, but which might also be delegated to others was not
determined, for he said:
"The line has not been exactly drawn which separates those
important subjects which must be entirely regulated by the
legislature itself from those of less interest in which a general
provision may be made and power given to those who are to act under
such general provisions to fill up the details."
From the beginning of the government, various acts have been
passed conferring upon executive officers power to make rules and
regulations -- not for the government of their departments, but for
administering the laws which did govern. None of these statutes
could confer legislative power. But when Congress had legislated
and indicated its will, it could give to those who were to act
under such general provisions "power to fill up the details" by the
establishment of administrative rules and regulations, the
violation of which could be punished by fine or imprisonment fixed
by Congress, or by penalties fixed by Congress, or measured by the
injury done.
Thus, it is unlawful to charge unreasonable rates or to
discriminate between shippers, and the Interstate Commerce
Commission has been given authority to make reasonable rates and to
administer the law against discrimination.
Int. Com. Comm. v.
Illinois Cent. R. Co., 215 U. S. 452;
Page 220 U. S. 518
Int. Com. Comm. v. Chicago, Rock Island &c. R. Co.,
218 U. S. 88.
Congress provided that, after a given date, only cars with drawbars
of uniform height should be used in interstate commerce, and then
constitutionally left to the Commission the administrative duty of
fixing a uniform standard.
St. Louis & Iron Mountain R. Co.
v. Taylor, 210 U. S. 287.
In
Union Bridge Co. v. United States, 204 U.
S. 364;
In re Kollock, 165 U.
S. 526;
Buttfield v. Stranahan, 192 U.
S. 470, it appeared from the statutes involved that
Congress had either expressly or by necessary implication made it
unlawful, if not criminal, to obstruct navigable streams, to sell
unbranded oleomargarine, or to import unwholesome teas. With this
unlawfulness as a predicate, the executive officers were authorized
to make rules and regulations appropriate to the several matters
covered by the various acts. A violation of these rules was then
made an offense punishable as prescribed by Congress. But, in
making these regulations, the officers did not legislate. They did
not go outside of the circle of that which the act itself had
affirmatively required to be done or treated as unlawful if done.
But, confining themselves within the field covered by the statute,
they could adopt regulations of the nature they had thus been
generally authorized to make in order to administer the law and
carry the statute into effect.
The defendants rely on
United States v. Eaton,
144 U. S. 677,
where the act authorized the Commissioner to make rules for
carrying the statute into effect, but imposed no penalty for
failing to observe his regulations. Another section (5) required
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 section 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
Page 220 U. S. 519
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 violation 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 rendering
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
received, 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 the 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 provision 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 violation of
the regulations would have been an offense.
But the very thing which was omitted in the Oleomargarine Act
has been distinctly done in the Forest Reserve Act, which, in
terms, provides that "any violation of the provisions of this act
or such rules and regulations [of the Secretary] shall be punished"
as prescribed in § 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 declared in effect
Page 220 U. S. 520
that navigation should be freed from unreasonable obstructions
arising from bridges of insufficient height, width of span, or
other defects. It stopped, however, with this declaration of a
general rule, and imposed upon the Secretary of War the duty of
ascertaining what particular cases came within the rule prescribed
by Congress, as well as the duty of enforcing the rule in such
cases. In performing 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
Marshall Field & Co. v.
Clark, 143 U. S.
694:
"The legislature cannot delegate its power to make a 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
action 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 determination
outside of the halls of legislation."
See also Caha v. United States, 152 U.
S. 211;
United States v.
Bailey, 9 Pet. 238;
Cosmos Exploration Co. v.
Gray Eagle Oil Co., 190 U. S. 309;
Oceanic Steam Nav. Co. v. Stranahan, 214
U. S. 333;
Roughton v. Knight, 219 U.
S. 537;
Smith v. Whitney, 116 U.
S. 167;
Ex Parte Reed, 100 U.
S. 22;
Gratiot v. United
States, 4 How. 81.
In
Brodbine v. Revere, 182 Mass. 599, a boulevard and
park board was given authority to make rules and regulations for
the control and government of the roadways 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
having jurisdiction, was not a delegation of legislative power
which was unconstitutional. 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
Page 220 U. S. 521
the substantive legislation was in the statute, which provided
that they should be punished as breaches of the peace.
That
"Congress cannot delegate legislative power is a principle
universally recognized as vital to the integrity and maintenance of
the system of government ordained by the Constitution."
Marshall Field & Co. v. Clark, 143
U. S. 692. But the authority to make administrative
rules is not a delegation 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 using reserves 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 reserve
in violation of the regulations, they were making an unlawful use
of the government's property. In doing so, they thereby 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
Page 220 U. S. 522
nothing in the act to indicate that Congress had intended or
authorized him to charge for the privilege of grazing sheep on the
reserve. These fees were fixed to prevent excessive 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 management. In addition to the general power in the Act
of 1897, already quoted, the Act of February first, 1905, 33 Stat.
628, c. 288, § 5, clearly indicates that the Secretary was
authorized to make charges out of which a revenue from forest
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 reserves" shall be covered into the
Treasury, and be applied toward the payment of forest expenses.
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 reservation revenue" should be covered into the
Treasury, and a part thereof was to be turned over to the
Treasurers of the respective states, to be expended for the benefit
of the public schools and public roads in the counties in which the
forest reserves are situated. 34 Stat. 684, c. 3913, 1270, c.
2907.
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 involved, they all relate to matters clearly
indicated and authorized by Congress. The subjects as to which the
Secretary can regulate are defined. The lands are set apart as a
forest reserve. He is required to make provision to protect them
from depredations and from harmful uses. He is authorized "to
regulate the occupancy and use and to preserve the forests from
destruction." A violation of reasonable rules regulating the use
and occupancy of the property is made a crime not by the Secretary,
but by Congress. The statute, not the Secretary, fixes the
penalty.
Page 220 U. S. 523
The indictment charges, and the demurrer admits, that Rule 45
was promulgated for the purpose of regulating the occupancy and use
of the public forest reservation 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
properly concludes, "contrary to the laws of the United States and
the peace and dignity thereof." The demurrers should have been
overruled. The affirmances by a divided court heretofore entered
are set aside, and the judgments in both cases
Reversed.
