Arizona republican., 1910-03-16
Sheep Grazing in Forest Reserves Not
 Crime.

cision of the lower court in the cele- brated california sheep case" is of such interest to Arizona that it seems worth while to give our readers the principal features of the case
 The case in question was crim- inal action by the United States vs. Grimaud ct al. tried in the United States district court for the southern district of California. before Judge Wellborn. and his decision was rem dered at Los Angeles in May last The affirmance 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 d crime to graze sheep on forest reserves in violation of departmental regulations. The at tempt of congress to make such act crime is void.
 The decision of Judge Wellborn was received with surprise by the bar and the public generally, inasmuch as the United States court decisions on sim liar cases previously had upheld the law-although the supreme court of Arizona had in fact. in another case. laid down the doctrine which Judge Wellborn announced.
 Judge Wellborn's decision is found in Volume 110 of the Federal Reporter. and the principles elaborated by him are stated in the syllabus:
 The provisions of the sundry civil appropriation act of June f. 1897, making it d criminal of fense to violate any rule or regulation which should thereafter be made by the secretary of the interior under the power therein conferred tsnce transferred tp the secretary of agri- culture) for the protection and preser- vation of forest reservations. is void for lack of any designation or defini- ton by congress of any act which shall constitute an offense. which is essential to the creation of q crime against the United States.
 Such provision is also unconstitu- tional and void as an attempted dele gation of legislative power to an ex- ecutive officer. in that it leaves it to the secretary to prescribe in his dis cretion what acts shall constitute crimes"
 It is no small compliment to the supreme court of Arizona that Judge Wellborn. in his lengthy reasoning i'm the Grimaud decision. predicated his conclusions largely upon the decision of the Arizona court in the case 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 cIearness congresses into d single paragraph it's unanswerable ar gument." and he quoted the para graph:
 We think the fatal defect of the act. so far as the question in the case at bar is concerned. is that unlimited power is given thereby to the secre- tary of the interior to determine what is and what is not crime under the act. It is left to his discretion to de- termine the acts or omissions which shall render all persons amenable to the criminal law. The act does not prohibit the grazing of sheep on for est reserves. and there is no statute which prohibits it. Whether or not in all cases the authority of the several heads of the departments of the fed eral government to make regulations for their respective departments is limited to the precise and literal terms of the acts of congress applicable thereto we think that in so far as by such regulation an act is defined to be crime which is not so defined by any public law, and which. with out such regulation. would not be a crime or punishable as such. it is an exercise of lawmaking power. vested [ by the constitution, not in such of ficial, but in congress alone, and as such is unconstitutional
 The decision from which the forego- ing paragraph is quoted with such warm approval by the United States court was written by MT Chief Jus tice Kent; and as already stated. it is a decided compliment to the supreme bench of Arizona that it was first to enunciate a doctrine in relation to forest reserves which has been adopt cd by the supreme court of the United States
 IL is much easier for lay reader to | understand the law, as laid down in ] the Grimaud and Dent cases. than it | is to progposticate the practical re- suits which must flow from the af- firmance of the doctrine by the court | of last resort. It is plain that con I gress enacted void provision in re- lation to forest reserves when 1t at tempted to make the violation of de 1 psrtmental regulations crime. and al the same time failed to define and | describe the acts which should he crimes.