"It is immaterial whether the fire * * * originated on private land if it was set willfully and if in the course of nature and in view of all the surroundings the said fire would reasonably be expected to be communicated to the public domain. A man has no lawful right to set fire to his own property if he has reason to believe or intends that such fire will be communicated to the property of others and destroy it." In an action by the United States against a railroad company to recover for loss of timber alleged to have been burned through defendant's negligence in permitting inflammable material to accumulate on its right of way, in which fire was started from an engine and spread into the timber on a forest reservation, a letter written by a forest inspector to the secretary of defendant some time before the fire, inclosing a report from a ranger as to the dangerous condition of the right of way, and asking that it be remedied, was not inadmissible as a self-serving declaration, but was properly admitted to show actual notice to defendant of the condition referred to therein, the fact being otherwise proved. (Corvallis & E. R. Co. v. United States, 191 Fed. Rept., 310.)

On an issue as to the condition of a locomotive alleged to have caused a fire on defendant's right of way because of its defective condition which permitted the escape of fire and sparks, the admission in evidence of the testimony of the fireman of defendant's machine shop as to the condition of the engine, both before the fire and after its return from the trip on which the fire occurred, the purpose being to show its condition before and at the time of the fire, was not prejudicial error. (Same.)

(Liability of railroads for injuries by fire as affected by management of locomotives, see note to Woodward v. Chicago, M. & Št. P. Ry. Co., 75 C. A. C., 598.)

Injunction will lie to prevent the accumulation of inflammable material upon a railroad right of way within the National Forests when such accumulation is shown to be dangerous to the forests. (1 Sol. Op., 300, 526.)

There is no authority in the department to make settlement with the Great Northern Railway Co. of a fire trespass, by which the company shall pay at once for all timber destroyed or damaged, with an agreement that any money received from the sale of damaged timber to a third party, less costs of the sale, shall be paid over to the company. (1 Sol. Op., 496.)

It is not the duty of forest officers to directly prosecute in a State court a person accused of violating a State statute by setting out a fire which spread to National Forest lands. In such case they would perform their full duty by calling the attention of the proper State officers to the alleged criminal offense, suggesting action and offering to aid in all proper ways. (2 Sol. Op., 693.)

The acquittal of a fire trespasser in a State court is no bar to his prosecution in a United States court for a violation of the Federal laws arising out of the same acts. (Solicitor to his Assistant at Denver, Sept. 10, 1912.)

The Government is entitled to recover for damage to reproduction (United States v. Corvallis & Eastern R. R. Co., 191 Fed., 310; United States v. N. P. R. R. Co., Dec. 2, 1911, in United States District Court, Western District of Washington, and case of United States v. C. O. Bailey, receiver for Mo. Pac. Ry. Co. and Title Guarantee Surety Co., in United States District Court for South Dakota, Sept. 7, 1910), the verdicts in which cases include such damage.

GRAZING TRESPASSES.

[United States v. Grimaud et al., 220 U. S., 506, syllabus.]

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, chapter 2 (30 Stat., 35), as prescribed in section 5388, Revised Statutes.

Congress can not 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 Congess 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 regulacions 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.

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. (Same.)

[Light v. United States, 220 U. S., 523, syllabus.]

Congress may authorize an executive officer to make rules and regulations as to the use, occupancy, and preservation of forests and such authority so granted is not unconstitutional as a delegation of legislative power. (Following United States v. Grimaud, 220 U. S., 506.)

At common law the owner was responsible for damage done by his live stock on land of third parties, but the United States has tacitly suffered its public domain to be used for cattle so long as such tacit consent was not canceled, but no vested rights have been conferred on any person, nor has the United States been deprived of the power of recalling such implied license.

While the full scope of section 3, Article IV, of the Constitution has never been definitely settled it is primarily a grant of power to the United States of control over its property (Kansas v. Čolorado, 206 U. S., 89); this control is exercised by Congress to the same extent that an individual can control his property.

It is for Congress and not for the courts to determine how the public lands shall be administered.

Congress has power to set apart. portions of the public domain and establish them as forest reserves and to prohibit the grazing of cattle thereon or permit it subject to rules and regulations.

Fence laws may condone trespasses by straying cattle where the laws have not been complied with, but they do not authorize wanton or willful trespass, nor do they afford immunity to those willfully turning cattle loose under circumstances showing that they were intended to graze upon the lands of another.

Where cattle are turned loose under circumstances showing that the owner expects and intends that they shall go upon a reserve to graze thereon, for which he has no permit and he declines to apply for one, and threatens to resist efforts to have the cattle removed and contends that he has a right to have his cattle go on the reservation, equity has jurisdiction, and such owner can be enjoined at the instance of the Government, whether the land has been fenced or not.

Quaere, and not decided, whether the United States is required to fence property under laws of the State in which the property is located.

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 Sol. 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

[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).

esti.

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 spe

*

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 cial fund. 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.

Advances

to

[259] *

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

* *

and hereafter advances of money under any appropriafield parties for tion for the Forest Service may be made to the Forest Service and by fighting fires. 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.

Traveling expenses.

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

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).

[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