The charge against defendants is that of grazing sheep, without permission, in the Sierra Forest Reserve.

By act of Congress, approved June 4, 1897, entitled “An act making appropriations for sundry civil expenses of the government for the fiscal year 1897, and for other purposes” (Act June 4, 1897, c. 2, § 1, 30 Stat. 35 [U. S. Comp. St. 1901, p. 1540]), it is provided, among other things, that:

The jurisdiction of the Secretary of the Interior over forest reserves was subsequently transferred to the Secretary of Agriculture, and, thereafter, on June 12, 1906, the latter official promulgated the following:

A demurrer to the indictment has been interposed on the grounds that the act of Congress above mentioned, so far as it attaches a penalty to any violations of the rules and regulations thereafter to be made by the Secretary of the Interior, is void, because it does not completely or at all define the acts to be punished, and because it attempts a delegation of legislative power to an. executive officer. These two grounds will be considered in the order in which I have stated them.

The Supreme Court of the United States has often declared, in unmistakable terms, that there can be ho crime against the authority of the United States except where the forbidden act is defined and penalized by statute. U. S. v. Hudson, 7 Cranch, 32 , 3 L. Ed. 259 ; U. S. v. Coolidge, 1 Wheat. 415 , 4 L. Ed. 124 ; U. S. v. Britton, 108 U. S. 199, 206 , 2 Sup. Ct. 531, 27 L. Ed. 698 ; U. S. v. Eaton, 144 U. S. 677 , 12 Sup. Ct. 764, 36 L. Ed. 591 . And the Circuit Court of Appeals for this circuit has spoken in decided terms to the same effect. Peters v. United States, 94 Fed. 127, 131 , 36 C. C. A. 105 .

In United States v. Hudson, supra, where it is held that the courts of the United States have no common-law jurisdiction in criminal cases, the Supreme Court uses the following language:

In Peters v. United States, supra, the court says:

The same doctrine has been elsewhere declared as follows:

There can be no pretense that Congress itself has defined as a crime ihe act for which defendants are here indicted, namely, grazing sheep, without permission, in a forest reserve. The statute itself does not forbid or make any reference whatever to sheep grazing, nor in the remotest degree suggest that Congress had it at all in mind, and, according to the government’s own theory, it did not become a crime until nine years after the passage of the statute, which the government claims made it criminal, and then only because of the promulgation of an administrative rule which it contravenes. The mere statement of the theory, it seems to me, condemns it, and, after much reflection, I have now no hesitancy in holding that the statute, in so far as it affixes punishment to infractions of executive rules and regulations thereafter to be promulgated, is incomplete and wholly inadequate to form the basis of a criminal prosecution.

It must be borne in mind that part of a statute may be unconstitutional and void, and the residue constitutional and valid (28 Am. & Eng. Ency. of Law [2d Eel.] p. 570), and that there is no controversy here over the validity of” any part of the act of Congress in question except the provision specifically indicated. That provision was not before the court in Dastervignes v. United States, 122 Fed. 30 , 58 C. C. A. 346 , and although it is mentioned, by way of recital, in the syllabus, there is not the slightest reference to it in the opinion, nor anything whatever to show or suggest its pertinency. Indeed, the question could not have arisen there, because the case was not a criminal prosecution, involving, and which alone could involve, the matter of punishment, but simply a civil suit to enjoin grazing, and to which suit tlie penalty clause of the statute liad no possible relation or pertinency. The court specifically points out that part of the act which was before it, and held to be constitutional, as follows, underscoring mine:

■ The court nowhere holds, or intimates, that the statute is complete or valid in so far as it attempts to punish such acts as might thereafter be forbidden by the Secretary of the Interior; but it may be fairly inferred that the court would have held to the contrary, if the question had been presented, from the following expressions at page 34 of 122 Fed., at page 350 of 58 C. C. A., underscoring mine:

This declaration, clear and emphatic, that executive rules are not laws, taken in connection with the elementary principle, already adverted to, that nothing but a law can define or create a crime, absolutely determines the incompleteness and inadequacy of said act of Congress as a penal statute.

Nor is the case of Union Bridge Co. v. United States, 204 U. S. 364 , 27 Sup. Ct. 367, 51 L. Ed. 523 , applicable here. The statute there involved declares the maintenance, after notice from the Secretary of War, of any bridge which unreasonably obstructs free navigation, to be a misdemeanor, punishable by a fine not exceeding $5,000, and, furthermore, in substance and effect, though not in terms, makes the final order of the Secretary, for which it provides, conclusive evidence as to the fact of unreasonableness. Act March 3, 1899, c. 425, § 18, 30 Stat. 1153 (U. S. Comp, St. 1901, p. 3545).

This statute, it will be seen, fully defines the crime and affixes the punishment, and is, therefore, complete within itself. Its only peculiarity is that, as I have already indicated, it impliedly establishes in that class of cases a special rule of evidence. This, however, is clearly within the scope of legislative power, and not unfrequently done, either by implication, as above shown, or in express terms, as appears from the instance below cited. Thus, section 16 of the act of Congress approved August 6, 1846 (chapter 90, 9 Stat. 63 [U. S. Comp. St. 1901, p. 3706]), entitled “An act to provide for the better. *209 organization of tlie treasury,” etc., contains a provision, subsequently embodied in section 5491 of tlie Revised Statutes, which reads as follows:

Examples to the same effect might be multiplied, but the one just referred to sufficiently illustrates the exercise of legislative power in the matter of special procedure.

While the conclusion which T have above announced as to the incompleteness of the statute here in question disposes of this case favorably to the defendants, yet, inasmuch as the other ground of the demurrer is the one most largely, if not wholly, discussed in the briefs, and touches closely a principle of high moment, I shall give it hurried consideration. There is no feature of our government more distinctive or beneficent than the division of its powers into separate departments, and, therefore, the rule which confines the making of laws to Congress is at once elementary and inflexible. Concerning this rule, the Supreme Court of the United States has made the following declaration:

There can be no controversy whatever about the principle itself; the only room for dispute lies in its application. In the case at bar, the statute does not declare the grazing of sheep, without permission, to be a crime, nor does it make the slightest reference to that matter, but declares that whatever the Secretary of the Interior may thereafter prohibit shall be a misdemeanor. Congress merely prescribes a penalty, and then leaves it to the Secretary of the Interior to determine what acts shall be so punishable. Thus it will be seen that the very essence of the alleged crime, namely, what act shall constitute it, is not fixed by Congress, but wholly confided to the discretion of an administrative officer. If this does not necessarily involve a delegation of legislative power, it is difficult to conceive of a statute chal-lengeable on that ground.

While arguments ab inconvenient! of themselves are rarely conclusive, yet in many cases they are entitled to much weight, and this is one of the cases; for, if the contentions which tlie government here urges were to prevail, Congress, so far as any legal difficulties are concerned, could easily, abdicate in favor of the executive department practically all its powers. To illustrate: Among the large number of crimes relating to the postal service is the use of tlie mails for immoral and fraudulent purposes. Congress could repeal existing legislation on this subject, and, by a new law, authorize and require 1 lie Postmaster General to protect the mails against immoral and fraudu *210 lent uses by suitable rules and regulations, and further provide that any violations of such rules and regulations should be punished in a specified manner, and, under this grant of authority, said officer could occupy with regulations, springing from his own discretion and will, but enforceable through penal sanctions, the large field now covered by the criminal laws on that subject, and in this way it would be possible to confer upon the administrative branches of the government powers whose full exercise would substitute with penalized rules well-nigh the whole volume of federal criminal law. It is needless to add that no reasonable interpretation of the Constitution will admit of such a startling result.

This precise question has been under review and ably discussed in another jurisdiction, as follows:

See, also. United States v. Maid (D. C.) 13 6 Fed. 650 , and United States v. Blasingame (D. C.) 116 Fed. 651 .

In the former of said cases, at page 653, it is said:

In the latter of said cases, United States v. Blasingame (D. C.) 116 Fed. 651 , the opinion is brief, and as follows:

I have given to the extract quoted in plaintiffs’ brief from an opinion by former Attorney General Griggs that respectful attention which ■the high character and distinguished ability of its writer, as well as the great office he then held, demands, and can but think that the quotation rests upon a superficial view of the subject. (For the full quotation see footnote at bottom of page.) It starts out with an assumption, which, to my mind, is manifestly erroneous, namely, that:

The statute — and I refer, of course, only to that provision now under consideration — so far from proclaiming the punishment for an offense which in general terms is defined by law, does not even pur *213 port to punish a transgression of law, but the prescribed penalty is affixed to the violation of such rules as the Secretary in his discretion might subsequently make, and which in fact, as 1 have already indicated,, were not made until nine years after the statute was enacted. Again, the quotation:

The answer to this question must be in the affirmative, because, in the case supposed, the statute is complete within itself. The legislative power has been duly exercised in prescribing the act which constitutes the crime; but, when the quotation goes on to add, “The present statute does no more,” another erroneous postulate, as it seems to me, is assumed. Congress has nowhere declared that the grazing of sheep in a forest reservation without permission of the Secretary is a misdemeanor, but the alleged crime results only from the joint operation of the statute and a rule subsequently made by the Secretary. Without the rule there is nothing to which the penalty can attach, and, in order to charge the so-called crime, it is necessary, as has been done here, to allege the promulgation and infraction of the rule, without which the statute is wholly devoid of force or effect.

The cases mainly relied on by the government are Dastervignes v. United States and Union Bridge Company v. United States, supra. In the former, as I have already shown, the penalty clause of the statute was not before the court, and, besides, there are views expressed in the opinion utterly incompatible with the constitutionality of said clause, and that case, therefore, so far as applicable at all, is against, rather than favorable to, the government’s claim. In the other case, Union Bridge Company v. United States, the crime was fully defined, and the punishment fixed by the statute, and the duties devolved upon the Secretary of War were only administrative acts in aid of the execution of the statute. In its opinion (at page 382 of 204 U. S., at page 372 of 27 Sup. Ct. [51 U. Bd. 523]), the court quotes approvingly from a prior decision, Field v. Clark, as follows:

Again (at page 385 of 204 U. S., at page 374 of 27 Sup. Ct. [ 51 L. Ed. 523 ]) the court says:

There the crime was created — that is, it was defined and the punishment affixed by the statute itself — and, as above stated, the duties which the statute devolved upon the Secretary of War were only in aid of its enforcement.

If I am correct in the views which I have expressed of the Daster-vignes Case, then two of the other cases relied on by the government, United States v. DeGuierre (D. C.) 152 Fed. 568 , and Dent v. United States, 8 Ariz. 413 , 76 Pac. 455 , are unfavorable to its contention, because, in each, a contrary decision was overruled, solely on the authority and under a mistaken apprehension of the Dastervignes Case, indicating that both of said courts, if uncontrolled by the Dastervignes Case, would hold the statute void. On the first hearing in the latter case, Dent v. United States, 8 Ariz. 138, 146 , 71 Pac. 920, 922 , the opinion is elaborate, able, and convincing, and, with uncommon force and clearness, compresses into a single paragraph its unanswerable argument, as follows:

In most, if not all, of the cases relied upon by the government, the authority delegated was limited to the ascertainment of facts in particular cases, and these were held to be administrative acts. In the case at bar, however, there is no pretense that the Secretary of Agriculture has been charged with the duty, or has acted in the ascertainment of the facts of particular cases, but what he has undertaken to *215 do is to determine and define a crime, which, according to all the authorities, is a matter oí legislative discretion.

In United States v. Shannon (C. C.) 151 Fed. 868, 865 , the court-says :

From this it appears that the court, in the last case, was careful to avoid any expression which might be applied to the question here under consideration.

Plaintiff, in its brief, advances the proposition that “The government, in dealing with forest reservations, is acting not only in its sovereign capacity, but as a lauded proprietor,” and seeks to draw therefrom the inference, that trespasses upon such reservations become crimes without legislation to that effect. This inference, to my mind, is obviously a non sequitur. The fact that the government may be endeavoring to protect its own lands in no way affects the vital principle of our Constitution, as it is distinctively called by the Supreme Court, which forbids the delegation of legislative power.

In the clause quoted in plaintiff’s brief with emphasis from Camfield v. United States, 167 U. S. 518, 525 , 17 Sup. Ct. 864, 867, 42 L. Ed. 260 , “If the act be construed as applying only to fences actually erected upon public lands, it is manifestly unnecessary, since the government as an ordinary proprietor would, have the right to -prosecute for such a trespass,” the words “prosecute for such a trespass” manifestly refer to civil suits, áuch as the one then before the court.

The government’s contention on this branch of the case is fully met by the numerous Supreme Court decisions hereinbefore cited to the effect that, under the federal system, there can be no crimes except such as are created — that is expressly defined and penalized — by an act of Congress.

The demurrer to the indictment will be sustained.