This court will, so far as it can, decide cases before it without reference to questions arising under the Federal Constitution. (Siler v. Louisville & Nash. R. R., 213 U. S., 175.)

[Shannon v. United States (C. C. A. Ninth Circuit), 160 Fed., 870.]

Where defendant drove large bands of cattle into a 320-acre pasture which was inclosed on three sides, but open on the side toward a public forest reserve, knowing that there was no water in the pasture, and that it was insufficient to sustain the cattle, and that they must of necessity drift onto the reserve for pasture and water, defendant could not claim freedom from responsibility for the cattle trespassing on the reserve because he at no time drove them there and because the reserve was not inclosed.

The creation of a forest reserve severs the reserved land from the public domain and appropriates it to public use, so that it is no longer subject to the implied license to pasture on public lands.

The rules promulgated by the Secretary of the Interior regulating the number of cattle and other live stock that may be pastured on a forest reserve, and the manner in which the owners may obtain permission to use the reservation for that purpose, are reasonable and within the power granted by act of Congress of June 4, 1897, chapter 2 (30 Stat., 34 U.S. Comp. St. 1901, p. 1542), giving the Secretary of the Interior power to make 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 from destruction.

The Federal Constitution delegates to Congress the general power, absolutely and without limitation, to dispose of and make all needful rules and regulations concerning the public domain independent of the locality of the land, whether situated in a State or Territory, the exercise of which power can not be restricted in any degree by State legislation.

Congress had no power to relinquish any of its jurisdiction over the public domain by a compact with the state of Montana on admission of the State into the Union, nor had the State any power to reserve any such control.

Public lands in the State of Montana were not subject to the stock and fence laws of the State, which were applicable only to lands subject to the State's dominion.

Where the United States brought suit to restrain the trespass of defendant's cattle on a forest reserve, the fact that in such suit it acted in its proprietary capacity and was subject to the ordinary rules of pleading, practice, and laws applicable to the case did not operate as a waiver of any of its sovereign rights to the land sought to be protected.

It was no defense to an injunction restraining defendant's use of a United States forest reserve as a pasture that its issuance would impose a grievous burden on him to restrain the cattle in his adjoining close, it also appearing that he could relieve himself of such burden by restoring a fence on one side thereof.

Substantially to the same effect as the foregoing was the earlier decision in Dastervignes v. United States, by the Circuit Court of Appeals for the Ninth Circuit (122 Fed., 30). The two following paragraphs of the syllabus of that case are of additional interest:

A bill filed by the United States to enjoin the pasturage of sheep in a forest reservation, in violation of the regulations prescribed by the Secretary of the Interior, alleged that the sheep pastured within the reservation were committing great and irreparable injury to the public lands therein and to the undergrowth, timber, and water supply. Affidavits filed in support of such allegations recited that the sheep of defendants destroyed undergrowth, young and growing trees and seedlings, and ate and destroyed the roots of the vegetation and grasses, leaving the ground bare and subject to disastrous washings by the rains, to the irreparable injury of the reservation, Held, that such allegation and showing constituted a sufficient ground for the granting of a preliminary injunction.

A bill by the United States against a number of defendants, to enjoin them from pasturing sheep in a forest reservation, is not subject to the

objection of misjoinder and multifariousness where it alleges that defendants are pasturing two bands of sheep in the reservation and contains no averments which show or indicate any separate or distinct rights or different interests as between the several defendants.

An action of trespass is not maintainable as against one grazing unpermitted stock on private land, the exclusive use of which has been waived by the owner, there being no authority in this department to administer other than National Forest land. (1 Sol. Op., 544.)

MISCELLANEOUS TRESPASSES AND OTHER OFFENSES AGAINST THE
UNITED STATES.

A homestead entryman does not have the right to remove sand and gravel from the land embraced in his unperfected entry for the purpose of sale. (Litch v. Scott, 40 L. D., 467.)

Persons obstructing either ingress or egress to a National Forest over trails constructed by the department, even over lands lying outside the National Forests, may be proceeded against in trespass and by proceedings for the removal of their fences and other obstructions. (1 Šol. Op., 482.)

The willful and malicious cutting of Forest Service telephone lines is punishable under section 60 of the Criminal Code of March 4, 1909, and regulation 81 of the Use Book of 1908. (1 Sol. Op., 283.)

Forest officers are authorized under the act of February 6, 1905, to make arrests for depredations on national monuments within National Forests. (2 Sol. Op., 670.)

Persons injuring or defacing the Oregon Caves, which have been reserved as a national monument, may be prosecuted under the criminal provisions of the national monument act. (2 Sol. Op., 670.)

An affidavit of settlement, made by an applicant to enter agricultural lands within a forest reserve, under the act of June 11, 1906, as required by the Commissioner of the General Land Office, was one taken in a case in which a law of the United States authorizes an oath to be administered, as provided by section 5392, Revised Statutes, and was therefore a proper subject for prosecution for perjury. (United States v. Nelson, 199 Fed., 464.)

FISCAL MANAGEMENT AND APPROPRIATIONS.

Agricultural appropriation act of May 26, 1910 (36 Stat., 416.)

Annual esti

[440] The Secretary of Agriculture for the fiscal year nineteen hundred and twelve, and annually thereafter, shall transmit to the Secre- mates, etc. tary of the Treasury for submission to Congress in the Book of Estimates detailed estimates for all executive officers, clerks and employees below the grade of clerk, indicating the salary or compensation of each, necessary to be employed by the various bureaus, offices, and divisions of the Department of Agriculture.

The agricultural appropriation act of March 4, 1911 (36 Stat., 1235, 1264) repeals the provision of the appropriation act of March 4, 1907 (34 Stat., 1256, 1270), requiring the submission to Congress of classified reports of the receipts and expenditures of the Forest Service.

Agricultural appropriation act of May 23, 1908 (34 Stat., 251).

and Territories.

[260] That hereafter twenty-five per centum of all money received 25 per cent of from each forest reserve during any fiscal year, including the year end-receipts to States ing June thirtieth, nineteen hundred and eight, 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: Provided, That when any forest reserve is in more than one State or Territory or county the distributive share to each from the proceeds of said reserve shall be proportional to its area therein.

constitute a special fund.

Agricultural appropriation act of June 30, 1906 (34 Stat., 669).

Cooperative [684]; * * * and hereafter all moneys received as contributions contributions to toward cooperative work in forest investigations shall be covered into the Treasury and shall constitute a special fund, which is hereby appropriated and made available until expended, as the Secretary of Agriculture may direct, for the payment of the expenses of said investiRefunds to con- gations by the Forest Service and for refunds to the contributors of amounts heretofore or hereafter paid in by them in excess of their share of the cost of said investigations.

tributors.

penses.

Agricultural appropriation act of May 23, 1908 (34 Stat., 251).

* * *

[259] and hereafter advances of money under any appropriation for the Forest Service may be made to the Forest Service and by authority of the Secretary of Agriculture to chiefs of field parties for fighting forest fires in emergency cases, who shall give bond under such rules and regulations and in such sum as the Secretary of Agriculture may direct, and detailed accounts arising under such advances shall be rendered through and by the Department of Agriculture to the Treasury Department.

Agricultural appropriation act of March 4, 1911 (36 Stat., 1235).

Traveling ex- [1265] That hereafter officers and employees of the Department of Agriculture transferred from one official station to another for permanent duty, when authorized by the Secretary of Agriculture, may be allowed actual traveling expenses, including charges for the transfer Transportation of their effects and personal property used in official work, under such rules and regulations as may be prescribed by the Secretary of Agriculture.

of effects.

Traveling penses.

Agricultural appropriation act of August 10, 1912 (37 Stat., 269).

ex- That hereafter, when officials and employees of the Department of Agriculture are traveling on official business in the United States, they may be allowed necessary railroad and steamboat fares, sleeping berth, and stateroom on steamboats, livery hire and stage fare, and other means of conveyance between points not accessible by railroad, but in lieu of subsistence and all other traveling expenses they may receive a per diem allowance, to be fixed by the Secretary in each case, in addition to their regular salaries, subject to such rules and regulations as the Secretary of Agriculture may prescribe.

Per diem fixed by Secretary.

Street-car fares.

Forest revenues covered

Treasury.

Refunds.

ment.

into

That hereafter officials and employees of the Department of Agriculture may, when authorized by the Secretary of Agriculture, receive reimbursement for moneys expended for street-car fares at their official headquarters when expended in the transaction of official business.

Agricultural appropriation act of March 4, 1907 (34 Stat., 1256).

[1270] That all money received after July first, nineteen hundred and seven, by or on account of the Forest Service for timber, or from any other source of forest reservation revenue, shall be covered into the Treasury of the United States as a miscellaneous receipt and there is hereby appropriated and made available as the Secretary of Agriculture may direct out of any funds in the Treasury not otherwise appropriated, so much as may be necessary to make refunds to depositors of money heretofore or hereafter deposited by them to secure the purchase price on the sale of any products or for the use of any land or resources of the national forests in excess of amounts found actually due from them to the United States.

Agricultural appropriation act of March 4, 1911 (36 Stat., 1235).

Refund amend [1253] That so much of an act entitled "An act making appropriations for the Department of Agriculture for the fiscal year ending June thirtieth, nineteen hundred and eight," approved March fourth, nineteen hundred and seven (Thirty-fourth Statutes at Large, pages twelve hundred and fifty-six and twelve hundred and seventy), which provides for refunds by the Secretary of Agriculture to depositors of moneys

to secure the purchase price of timber or the use of lands or resources of the National Forests such sums as may be found to be in excess of the amounts found actually due the United States, be, and is hereby, amended hereafter to appropriate and to include so much as may be necessary to refund or pay over to the rightful claimants such sums as may be found by the Secretary of Agriculture to have been erroneously collected for the use of any lands, or for timber or other resources sold from lands located within, but not a part of, the national forests, or for alleged illegal acts done upon such lands, which acts are subsequently found to have been proper and legal; and the Secretary of Agriculture shall make annual report to Congress of the amounts refunded hereunder.

UNITED STATES REVISED STATUTES.

claims.

SEC. 3469. Upon a report by a district attorney, or any special Compromise of attorney or agent having charge of any claim in favor of the United States, showing in detail the condition of such claim, and the terms upon which the same may be compromised, and recommending that it be compromised upon the terms so offered, and upon the recommendation of the Solicitor of the Treasury, the Secretary of the Treasury is authorized to compromise such claim accordingly. But the provisions of this section shall not apply to any claim arising under the postal laws.

Agricultural appropriation act of August 10, 1912 (37 Stat., 269).

GENERAL EXPENSES, FOREST SERVICE: To enable the Secretary of Agriculture to experiment and to make and continue investigations and report on forestry, National Forests, forest fires, and lumbering, but no part of this appropriation shall be used for any experiment or test made outside the jurisdiction of the United States; to advise the owners of woodlands as to the proper care of the same; to investigate and test American timber and timber trees and their uses, and methods for the preservative treatment of timber; to seek, through investigations and the planting of native and foreign species, suitable trees for the treeless regions; to erect necessary buildings: Provided, That the cost of any building erected shall not exceed six hundred and fifty dollars: And provided further, That no part of the appropriation made by this act shall be used for the construction, repair, maintenance or use of buildings or improvements made for forest-ranger stations within the inclosed fields of bona fide homestead settlers who have established residence upon their homestead lands prior to the date of the establishment of the forest reservation in which the homestead lands are situated, without the consent of the homesteader; to pay all expenses necessary to protect, administer, and improve the National Forests; to ascertain the natural conditions upon and utilize the National Forests; and the Secretary of Agriculture may, in his discretion, permit timber and other forest products cut or removed from the National Forests, except the Black Hills and Harney National Forests in South Dakota, to be exported from the State, Territory, or the District of Alaska in which said forests are respectively situated: Provided, That the exportation of dead and insect-infested timber only from said Black Hills and Harney National Forests shall be allowed until such time as the Forester shall certify that the ravages of the destructive insects in said forests are practically checked, but in no case after July first, nineteen hundred and fourteen; to transport and care for fish and game supplied to stock the National Forests or the waters therein; to employ agents, clerks, assistants, and other labor required in practical forestry and in the administration of National Forests, in the city of Washington and elsewhere; to collate, digest, report, and illustrate the results of experiments and investigations made by the Forest Service; to purchase law books, to an amount not exceeding five hundred dollars, necessary supplies, apparatus, and office fixtures, and technical books and technical journals for officers of the Forest Service stationed outside of Washington; to pay freight, express, telephone, and telegraph charges; for electric light and power, fuel, gas, ice, washing towels, and official traveling and other necessary expenses, including traveling expenses

for legal and fiscal officers while performing Forest Service work; and for rent outside of the District of Columbia, as follows:

For salaries and field and station expenses, including the maintenance of nurseries, collecting seed, and planting, necessary for the use, maintenance, improvement, and protection of the National Forests named below:

Absaroka National Forest, Montana, eight thousand two hundred and thirteen dollars;

Here follows an enumeration of all the National Forests, with the amounts appropriated for each; also certain provisions in the nature of permanent legislation, which will be found under the appropriate headings.

For fighting forest fires and for other unforeseen emergencies, one hundred and fifty thousand dollars.

For the purchase and maintenance of necessary field, office, and laboratory supplies, instruments and equipment, one hundred and fiftyfive thousand dollars;

For investigations of methods for wood distillation and for the preservative treatment of timber, for timber testing and the testing of such woods as may require test to ascertain if they be suitable for making paper, and for other investigations and experiments to promote economy in the use of forest products, one hundred and seventy thousand dollars, and the Secretary of Agriculture shall investigate the best methods of distillation of Douglas fir and other northwestern species of fir and timber, and ascertain the yield of distillates of various species, and the refining and commercial use of the distillates;

For experiments and investigations of range conditions within national forests, and of methods for improving the range by reseeding, regulation of grazing, and other means, twenty thousand one hundred and eighty dollars;

For the purchase of tree seed, cones, and nursery stock, for seeding and tree planting within National Forests, and for experiments and investigations necessary for such seeding and tree planting, one hundred and sixty-five thousand six hundred and forty dollars: Provided, That the Secretary of Agriculture may procure such seed, cones, and nursery stock by open purchase without advertisements for proposals, whenever in his discretion such method is most economical and in the public interest, and when the cost thereof will not exceed five hundred dollars;

For silvicultural, dendrological, and other experiments and investigations independently or in cooperation with other branches of the Federal Government, with States and with individuals, to determine the best methods for the conservative management of forests and forest lands, eighty-three thousand seven hundred and twenty-eight dollars;

For market and other miscellaneous forest investigations, and for collating, digesting, recording, illustrating, and distributing the results of the experiments and investigations herein provided for, thirty-one thousand three hundred and sixty dollars;

For the construction and maintenance of roads, trails, bridges, fire lanes, telephone lines, cabins, fences, and other improvements necessary for the proper and economical administration, protection, and development of the National Forests, four hundred thousand dollars; Provided, That no part of the money herein appropriated shall be used to pay the transportation or traveling expenses of any forest officer or agent except he be traveling on business directly connected with the Forest Service and in furtherance of the works, aims, and objects specified and authorized in and by this appropriation: Provided further, That no part of this appropriation shall be paid or used for the purpose of paying for, in whole or in part, the preparation or publication of any newspaper or magazine article, but this shall not prevent the giving out to all persons without discrimination, including newspaper and magazine writers and publishers, of any facts or official information of value to the public.

That an additional ten per centum of all moneys received from the National Forests during the fiscal year ending June thirtieth, nineteen hundred and twelve, shall be available at the end thereof to be expended