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Show , t ; - L t- . U v J : Marshall Ilclds Unccnstitutl:n2l Act cf Cc cress Hcjardin? Forest Reserves. ' r J Marshall, Jufise. of the United ' 3 restrict court, this morning sus-1 sus-1 the flsmurrer of the defendant in ' se of the United States vs. Frank :'. .r.us, r,-ho waa arraisTied on the i e cf running a band of 2000 sheep t'.e Fish Lake forest reserve, in vlo-r- cf the rules .formulated for the Action of forest reserves by - the :ttary of the Interior. The court's throws four similar cases that ve been pending for some time out of .rrt. The decision is one of great import- :i to the sheepmen of Utah, who - ive been anxiously awaiting to see - :w thi3 case would be decided. This Is the first time a case of this Wnd has i :i tried in this district and as the r - s-tUutlonality of the law passed by or. cress empowering the Secretary of t Interior to make rules the violation ' f which would be a criminal act and I :r.ishable by a fine or imprisonment v. as involved, it has been of more than ;.isicg interest, , i Judpe Marshall this morning decided tv at Congress had exceeded its legislative legisla-tive power in impowerlng the Secre- ! tary of the Interior to make such rules j h:M reg-ulations and held that the law tive power in -empowering the Secrete Secre-te rior was unconstitutional. The only question arpued In the case was whether the failure of the defendant defend-ant to obey a regulation cf the Secretary Secre-tary of the Interior In respect to herding herd-ing sheep on a forest reserve did not constitute a crime.. The basis of the prosecution was the provision of the act of Congress of June 4, 1S97,, United 8tates compiled statutes 1540," which enacts that the Secretary of the Interior shall make provisions for -the. protection against destruction by fire and depredations depreda-tions upon the public forests and forest reservations which may have been set aside or which may. be hereafter set aside under the act of March 3, 1S9I, and which may be continued: and he may make such rules and regulations and establish such service as wlirin-sure wlirin-sure the objects of such reservations, namely to regulate their occupancy and use and preserve the forests thereon from destruction; and violation of the provisions of this act or such rules and regulation shall be punished -as is provided pro-vided for in the act -of June 4,- 1888, amending section C388 of the , revised statutes of the United States. In his decision. Judge Marshall said: "It is claimed by the defendant that this provision of the statute is an unconstitutional un-constitutional delegation of legislative power to the Secretary of the Interior, so far as It authorises him by rule to specify acts which shall constitute crimes. I think this contention must be sustained. ' ' ' " ' "It is elementary that by the Constitution Consti-tution legislative power is solely vested in Congress, and the subject here in question is not of such a local nature as to. fall within one of the recognized exceptions to the rule. It it be a delegation dele-gation of legislative power, admittedly it is obnoxious to the objection made. On an examination of the statute it Is seen that provided the regulations be in harmony with the general purpose of the act, namely, relating to the use and occupation of forest reserves, and tend to preserve the forests thereon from destruction, a complete discretion Is vested in the Secretary of the Interior In-terior to determine the acts or omissions omis-sions which shall render persons amenable to the criminal law. Such a discretion necessarily covers a wide range, as to which Congress has in nowise no-wise exercised its legislative discretion. discre-tion. . . "There is no statute which prohibits the knowingly graxing of sheep on forest for-est reserves, and before that act -can be held to constitute a crime there must be some putrtic law forbidding it" In deciding as he did Judge Marshall followed a precedent set by a District Judge, in the southern district of California. Cali-fornia. Judge Beatty of Idaho, sitting in a civil case in the northern district of California, decided in favor of the constitutionality con-stitutionality of the law and Judge Marshall in animadverting upon Judge Beatty's decision in that case pays the Judge a high compliment, but regrets his having to differ with him. Judge Marshall's decision Is also in opposition to an opinion of Sollcitof-Oeneral Richards, Rich-ards, rendered upon the question of the constitutionality of the law:. There Is no criminal statute now to. prevent sheepherders from taking their herds onto the forest reserves In this State, but the civil question of trespass tres-pass has not yet been passed -upon. |