Weekly journal-miner., 1910-03-23

| reeelVeQ In JnlS section, IS Lne IOl
 lowing from the Phoenix Republican
 The news printed in yesterday
 Republican, Go the effect that thu
 Supreme Court of the United Statei
 by dividing equally had affirmed thu
 decision of the lower court in thu
 celebrated "Cailfornia sheep ease,'
 is of such interest to Arizona that il
 seems worth while to give our read
 CTS the principal features of tho
 case.
 The case in question was a criminal
 action by the United States vs. Gri
 maud ct al, tried in the United
 Staes District Court for the south,
 ern district of California, before
 Judge Wellborn, and his decision was
 rendered at Los Angeles in May last
 The afirmance of the decision by the Supreme Court of the United States makes it the law on the question.
 In brief, this decision establishes the fact that it is not a crime to graze sheep on forest reserves in vio- lation of departmental regulations. The attempt of Congress to make such an act crime is void.
 The decision of Judge wellborn was received with surprise by the bar and the public generally, inasmueh as the United States Court decisions on similar cases previously had up- held the law-although the Supreme Court of Arizona had, in fact, in an other case, laid down the doctrine which Judge wellborn announced.
 Judge Wellborn's decision is found in Volume ITO of the Federal Re porter, and the principles elabor- ated by him are state din the sylla- bus:
 "The provisions of the sundry civil appropriation act of June 4, 1897, making it a criminal of fense to violate any rule or regula- tion which should thereafter be made by the Secretary of the Interior un- der the power therein conferred (sinee tranferred to the Secretary of Agrieulture) for the protection and preservation of forest reservations, is void for lack of any designation or definition by Congress of any act which shall constitute an offense, which is essential to the creation of a crime against the United States.
 "Sueh provision is also unconsti- tutional and void as an attempted delegation of legislative power to an executive officer, in that it leaves it to the Secretary to prescribe in his discretion what acts shall eonsti- ute crimes"
 It is no small compliment to the Supreme Court of Arizona that Judge Wellborn, in his lengthy reasoning in the Grimaud decision, predieated his conclusions largely upon the de- cision of the Arizona court in the ease of Dent vs. the United States, Speaking of the decision on the first hearing in the latter case, Judge Wellborn said that the "opinion is elaborate, able, and convincing, and with uncommon force and clearness congresses into a single paragraph it's unanswerable argument" and he qnOted the paragraph:
 "We think the fatal defect of the act, so far as the question in the case at bar is concerned, is that un- limited power is given thereby to the of the Interior to determ- inc what is and what is not a crime under the act. It is left to his des- cretion to determine the acts or om- issions which shall render all per sons amenable to the criminal law. The act does not prohibit the grazing of sheep on forest reservies, and there is no statute which prohibits it. Whether or not in all cases the au- thority of the several heads of the of the Federal govern ment to make regulations for their departments is limited to the precise and literal terms of the acts of Congress applicable thereto, 1 we think that, in so far as by such an act is defined to be a crime which is not so defined by any public law, and which, without such would not be a crime or punishable as such, it is an exercise of lawmaking power, vested by the not in such official, but | in Congress alone, and as such is uneonstitutional."
 The decision from which the fore going paragraph is quoted with such | warm approval by the United States Court twas written by MT. Chief Jus