interfering with the use of the water by the forest officer. The bill applying for the injunction was filed near the close of the year.

The district assistants to the Solicitor have cooperated fully with the United States attorneys in the preparation and prosecution of the above-stated cases.

At page 127 of this report will be found a table setting forth the details of cases designated as general litigation under the foregoing heading.

LEGISLATION.

As a result of the extensive forest fires in the Northwest during the first half of the fiscal year, large bodies of timber were killed, though still left in a merchantable state. Much of this timber stands on lands embraced within unperfected entries and locations under the public land laws, and within unapproved selections by States and railroads made in lieu of granted lands lost by reason of their inclusion in reservations. As the law exists there is no authority in these entrymen, locators, and selectors to cut the timber from the lands, nor has the department authority to sell the timber. Large quantities of timber standing on unreserved public lands was also killed by these forest fires, but the Interior Department felt that it had no authority to sell the timber. As this fire-killed timber would rapidly deteriorate it was the desire of both departments that authority be secured from Congress for early disposition of the timber. Accordingly, the Forester and the Solicitor of this department met with representatives of the Interior Department and jointly framed a bill intended to authorize the utilization of this fire-killed timber. The bill was introduced in the Senate and passed with some amendments and was afterwards amended and passed by the House, but the session ended without further action and the measure did not become a law.

It has been the complaint of individuals and corporations desiring to utilize lands in the National Forests and in the unreserved public domain, for the purpose of generating hydroelectric power, that the statutes of the United States regulating the use and occupation of such lands for this purpose were so unsatisfactory in the matter of tenure that it was practically impossible to secure loans which would make development practicable. It was objected that the permits issued both by the Interior department and this department were revocable in the discretion of the Government. In order to remedy this situation and make permits granted by the Government more stable in character, the Forester and Solicitor of this department had several conferences with representatives of the Interior Department in an effort to draft a bill which would adequately protect the Government and at the same time allow private enterprise sufficient security in the matter of tenure to encourage development of power possibilities on Government lands. A bill was prepared after much deliberation, and was introduced in Congress, but never came up for passage.

During the year several bills, either introduced in Congress or proposed to be introduced, were submitted to the Solicitor for examination and recommendation. These all received careful consideration and, wherever necessary, recommendations were made.

HYDROELECTRIC POWER PERMITS.

During the year there was submitted to the Solicitor, for examination, 45 applications for permits under the act of February 15, 1901, which provides that the Secretary of Agriculture may, in his discretion, allow the use of rights of way in the National Forests for the generation and utilization of hydroelectric power. A careful scrutiny of all these applications has been made by this office and reports submitted to you thereon. In addition to this there have been several contests between opposing applicants for rights of way over the same lands which have resulted in hearings before the Solicitor for report to you.

DECISIONS OF THE COURTS.

As of first importance under this heading should be mentioned the decisions of the Supreme Court of the United States handed down on May 1, 1911, in the cases known as the United States v. Fred Light and United States v. Grimaud, Carajous, and Inda. (220 U. S., 523; Id., 506.)

The case of United States v. Fred Light was an action by the United States to restrain Light from pasturing stock upon the Holy Cross National Forest, Colo., without a permit from the Secretary of Agriculture. Light defended on the ground that the laws of Colorado make it indispensable to the maintenance of such an action that the owner of land must fence it against trespassing stock, and that the act of June 4, 1897, is unconstitutional, because it delegates legislative authority to the Secretary of Agriculture to make and define a crime, and that the act of March 3, 1891, authorizing the President to set aside public lands as national forests, is also unconstitutional and can not authorize the creation of forests without the consent of the State in which the lands are situated. The substance of the decision of the Supreme Court is as follows:

1. The United States can prohibit absolutely or fix the terms on which its property may be used and can withhold or reserve the land indefinitely, and this, without the consent of the State in which it is situated.

2. The long-continued sufferance by the United States of the pasturing of cattle on the public lands did not confer upon anyone a vested right to the use of those lands for that purpose; nor could it deprive the United States of the power of recalling the implied license arising therefrom so to do.

3. The Government has, with respect to its own lands, the rights of an ordinary proprietor to maintain its possession and prosecute trespassers, and it may deal with such lands precisely as an ordinary individual may deal with his farming property. (United States v. Canfield, 167 U. S., 524.)

4. Section 24 of the act of March 3, 1891, authorizing the President of the United States to set apart and reserve public lands bearing forests as national forests, is constitutional.

5. The act of June 4, 1897, conferring upon the Secretary of Agriculture authority to make rules and regulations for the administration of the national forests, is constitutional, and the regulations of the Secretary of Agriculture, made and promulgated thereunder, requiring all persons to secure permits before grazing any stock in a national forest, is valid and enforceable. (United States v. Grimaud, decided same day.)

6. Statutes providing that no recovery can be had for damages done by trespassing animals unless the land had been inclosed with a fence of the size and material required by State law do not give permission to the owner of cattle to use another's unfenced land as a pasture, and, therefore, if the statute of Colorado requiring owners to fence their land against straying stock is at all enforceable against the United States such a statute does not afford immunity to one who intentionally and willfully pastures and allows his stock to graze in the national forests.

The cases of United States v. Grimaud, Carajous, and Inda, consolidated for consideration by the Supreme Court, were criminal prosecutions for pasturing stock on the Sierra National Forest, Cal., in violation of the regulations of the Secretary of

Agriculture, which required all persons to secure a permit before grazing stock on a forest reserve. The defendants demurred to the indictments on the ground that the act of June 4, 1897, is unconstitutional in that it attempts to delegate to the Secretary of Agriculture legislative power. The district court sustained the demurrers, and the United States prosecuted a writ of error direct to the Supreme Court. The substance of the decision is as follows:

1. The act of June 4, 1897 (30 Stat., 11), authorizing the Secretary of Agriculture to make such rules and regulations and establish such service as will insure the objects of the national forests, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction, and prescribing punishment for any violation of such rules and regulations, does not confer upon the Secretary of Agriculture legislative power, but merely authorizes him to exercise administrative functions in the management of the national forests, which, because of the various and varying details of such management, can not be provided in general regulations enacted by Congress, and the act is constitutional.

2. The authority to make administrative rules is not a delegation of legislative power, nor are such rules raised from an administrative to a legislative character because the violation thereof is punishable as a public offense.

3. Although there is no act of Congress which in express terms declares that it shall be unlawful to graze sheep on a national forest, and although the act of June 4, 1897, provides that nothing therein shall prohibit any person from entering such reservations for all proper and lawful purposes, such entry and use of the reserves is subject to the proviso, also contained in the act, that such persons comply with the rules and regulations covering such reservations; and as the act, not the Secretary of Agriculture, makes it an offense to violate such regulations, the grazing of sheep on the reservations without complying with the regulations of the Secretary of Agriculture, which require that a permit be obtained before grazing sheep on the Jeservations, is unlawful and an indictable offense.

4. The regulation promulgated by the Secretary of Agriculture on June 12, 1906, providing that "all persons must secure permits before grazing any stock in a forest reserve, except the few head in actul use by prospectors, campers, and travelers, and milch or work animals, not exceeding a total of six head, owned by bona fide settlers residing in or near a forest reserve, which are excepted and require no permit," is valid and enforceable, and a person who drives and grazes sheep upon a national forest in violation of such regulations is making unlawful use of the Government property and renders himself liable to the penalty imposed by Congress.

5. The Secretary of Agriculture has the power to impose a charge for the privilege of grazing on the national forests. In addition to the general power conferred by the act of June 4, 1897, the act of February 1, 1905, which declares "that all money received from the sale of any products or the use of any land or resources of said forest reserves shall be covered into the Treasury of the United States and for a period of five years from the passage of this act shall constitute a special fund available, until expended, as the Secretary of Agriculture may direct, for the protection, administration, improvement, and extension of Federal forest reserves," and also subsequent acts providing that money received from any source of forest-reserve revenues shall be covered into the Treasury, and a part thereof turned over to the States and Territories in which the national forests are located, to be expended for public schools and roads, clearly indicate that Congress intended that the Secretary of Agriculture might make charges out of which a revenue from forest reserves was expected to arise.

During the latter part of the fiscal year the Forester was advised by telegram that two forest rangers in New Mexico had been arrested and were then in custody of the Territorial authorities on the charge of murder. It appeared from the telegram that these officers, while attempting to apprehend a man for alleged violation of the stock law of New Mexico, were forced to kill the offender in order to defend themselves. As soon as the matter was brought to the attention of the Solicitor a full report was required, and upon its receipt and examination a letter was prepared for your signature to the Attorney General requesting that he instruct the United States attorney to apply for a writ of habeas corpus to release the rangers. A petition for the writ was prepared by the district assistant to the Solicitor and the United States attorney, was promptly filed, and after argument the writ was granted by the court and the rangers released from custody.

As a result of the disturbed conditions on the Alamo National Forest arising out of the stubborn and determined efforts on the part, of certain stockmen to graze their stock thereon in violation of the regulations of this department, the supervisor of the Forest and six of his assistants were indicted by the New Mexico Territorial grand jury on the charge of larceny, the charge being based upon the removal by the officers from the Forest of certain cattle grazing in trespass thereon. Several of the indicted officers were arrested and placed under bond. At this juncture the department requested the Department of Justice to intervene. The United States attorney filed a demurrer to the indictments, which, after argument, was sustained, and the cases closed. The decision of the court in this matter was not published, and therefore is available only to those who inspect the record in the court.

Other decisions of the courts are mentioned in this report under their appropriate headings.

MISCELLANEOUS CASES.

ASSAULTS ON DEPARTMENT INSPECTORS.

Three instances of apparent violations of section 62 of the Criminal Code of the United States (34 Stat., 1088, 1100), based upon assaults on inspectors of the Bureau of Animal Industry in connection with or on account of the performance of their duties, occurred during the period covered by this report. These cases were promptly reported to the Attorney General with requests that they be vigorously prosecuted. In one case the grand jury failed to return a true bill, and the other two cases were pending at the close of June 30, 1911. (Department of Agriculture Miscellaneous Cases Nos. 111, 115, and 116.)

IMPERSONATION OF AGENTS OF THE DEPARTMENT.

In December, 1910, Fred Worden was charged with an apparent violation of section 32 of the Criminal Code of the United States (34 Stat., 1088), in falsely representing himself to be an employee of the Department of Agriculture and securing money through that misrepresentation. Worden pleaded guilty and was sentenced to 18 months in the United States penitentiary at Atlanta, Ga. (Department of Agriculture Miscellaneous Case No. 113.)

There was also reported to the Department of Justice during the period covered by this report an apparent violation of section 32 of the Criminal Code of the United States on the part of a person who was selling mushroom spawn, falsely representing himself to be an agent of the department. This case was pending at the close of June 30, 1911. (Department of Agriculture Miscellaneous Case No. 114.)

FRAUDULENT INDORSEMENT OF A CHECK.

The department discovered in this case that a check drawn in favor of a contractor with the department had been fraudulently indorsed, and promptly reported the facts to the Attorney General for appropriate action. This case was pending at the close of June 30, 1911. (Department of Agriculture Miscellaneous Case No. 124.)

CASES IN THE COURT OF CLAIMS.

There has been no change in the status of Thomas H. Reeves v. The United States (Court of Claims, No. 30615) since the publication of the last annual report of this office. The suit involves a claim for salary alleged to be due to the petitioner from the department. The last docket entry was under date of February 27, 1909, when certain department records, called for by the petitioner, were filed.

Charles H. Sanborn v. The United States (Court of Claims No. 30347) was pending at the close of June 30, 1911, on a motion for appeal to the Supreme Court of the United States, filed by the claimant. The suit involved a claim for $4,275, on an alleged breach of contract on the part of the department in connection with a contract for the installation of the heating, ventilation, and special piping systems of two laboratory buildings for the Department of Agricul ture. On February 27, 1911, the court handed down a judgment in favor of the claimant in the sum of $700. A motion was filed by both claimant and defendants on March 9, 1911, for a new trial, which was granted. On March 27, 1911, the opinion of February 27, 1911, was withdrawn; the order granting a new trial and withdrawing the opinion of February 27, 1911, was later vacated, the opinion of February 27, 1911, being reinstated, thereby entering judgment against the United States for $700. On May 27, 1911, counsel for the claimant filed notice of a motion for an appeal to the Supreme Court of the United States.

John M. Beavers v. The United States (Court of Claims No. 30376) involved claim for rent of premises No. 1316 B Street SW. Petition was filed claiming $740; judgment was entered December 12, 1910, in favor of claimant for $125.

SUIT AGAINST DEPARTMENT INSPECTOR.

The case of Gutierrez v. Wiley was pending on appeal to the highest court of New Mexico at the close of June 30, 1911. As stated in the annual report of this office for the fiscal year 1910, this was a civil action for damages instituted against Inspector Wiley by the plaintiff, Gutierrez, on October 13, 1908, based on the alleged negligence of the inspector in dipping a flock of sheep, the property of the plaintiff. Inspector Wiley was acting in cooperation with the Territorial authorities in the enforcement of their regulations for the eradication of sheep scabies at the time the sheep of the plaintiff were dipped by him. Gutierrez claimed damages in the sum of $1,276. Judgment was entered in the court below for $764.75.

AGREEMENTS FOR THE SEVERAL BUREAUS, OFFICES, AND DIVISIONS.

BUREAU OF PLANT INDUSTRY.

There were 104 contracts, 36 renewals of contracts, 35 leases, 31 renewals of leases, 1 letter terminating a lease, 6 bonds for temporary special_disbursing agents, and 1 deed prepared for the Bureau of Plant Industry during the fiscal year 1911. This is an increase of 2 renewals of leases and 3 bonds, and a decrease of 2 contracts, 6 renewals of contracts, and 5 letters terminating leases over the fiscal year 1910.