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is empowered to refund if he finds that the exaction was illegally, improperly, or excessively imposed, and a standing appropriation for this purpose is made. .
This is obviously an important as well as a doubtful question, in view of the general principle that for legal payment of moneys out of the Treasury due appropriation by Congress is requisite. It may, indeed, he that the fine, equal to the duty exacted in this case and paid under protest, would be covered by the phrase, “or other moneys paid under protest," in section 3689 as quoted, supra, which carries a permanent appropriation, while it must be remembered that the general principle to which I referred above rests upon the provision of the Constitution (Art. I, sec. 9, cl. 7) that “no money shall be drawn from the Treasury but in consequence of appropriations made by law."
On full consideration, however, and while indicating that an appeal of this nature to you to refund money wrongfully collected may not only be strong equitably but strong as well on the legal principles entitling the claimant to a right, but that, nevertheless, the right can not be effectively asserted by way of refund unless statutory provisions clearly give you a corresponding authority, I do not mean to decide these questions, for the following reasons:
The same question as to moneys paid as duties was referred to the Comptroller of the Treasury by you on June 24 last, the only difference being that in the former case there was a protest and here there was not. On July 10 you referred the same question to me for my opinion, and on July 20 I advised you that in view of section 8 of the act of July 31, 1894, and of certain opinions of my predecessors, it seemed to me that the determination of the question presented fell specially within the functions of the Comptroller of the Treasury; that it was neither necessary nor proper for me to express my own views upon the subject. I therefore declined to comply with that request for an opinion, and for the same reasons I must decline to comply with your present request. Very respectfully,
P. C. KNOX The SECRETARY OF THE TREASURY.
PROHIBITION OF HUNTING UPON FOREST RESERVES.
The Secretary of the Interior can not, without express authority of law,
prescribe rules and regulations by which the national forest reserves may be made refuges for game, or by which the hunting, killing, or
capture of game thereon may be forbidden. Neither the act of June 4, 1897 (30 Stat., 11, 34), nor the act of March
3, 1899 (30 Stat., 1095), nor any other provision of law, confers upon the Secretary of the Interior this power.
DEPARTMENT OF JUSTICE,
Normber 29, 1901. Sir: In response to your request expressed in the note of your secretary, dated November 13, 1901, I have the honor to transmit to you my official opinion upon the matters there referred to, viz:
"Mr. Gifford Pinchot, of the Bureau of Forestry, in his letter to you accompanying the above note, requests the submission to the Attorney-General of the question, in substance, whether for the preservation of the big game of the West the Secretary of the Interior has power to prohibit, by rules and regulations, the killing of such game within the national forest reserves- in other words, whether he can make such reserves the refuges for game, in order to its preservation and he suggests the inquiry whether the act of June 4, 1897 (30 Stat., 11, 3+), confers this power, as it does the power to make rules and regulations in many other respects; and also whether the right does not exist as incident to the governmental ownership of the lands.”
The question is not free from difficulty. It will conduce to a better understanding of the whole to consider these two constituent questions in the reverse order of their statement.
It is true that the United States has the absolute title to and ownership of all the public domain, including the forest reservations; and equally true that this title and ownership carry with them the right of either absolute or partial exclusion from such lands, and the right to permit intrusion thereon for such purposes and upon such terms as the owner may prescribe. And I have no doubt that, as incident to such ownership, Congress has the power, if it so choose, to absolutely prohibit the intrusion of the public into any of the public lands, or to prohibit it for certain purposes, as for cultivation, mining, cutting timber, hunting, fishing, etc. Such right of control and exclusion is incident to ownership, and is a part of that which the owner owns with the land. But it does not follow from this that the Secretary of the Interior may exercise this right of control which resides in the Government and may be exercised by Congress. The powers of the head of a department are limited, and are to be exercised, generally, only for the accomplishment of some end or purpose prescribed by law or usage.
And, it is to be borne in mind that this title and ownership of the United States are not absolute for its own benefit, as in the case of a private individual who holds his land and the title thereto solely for his own benefit and purpose. On the contrary, the National Government, while having the absolute title to the public lands, yet holds it with the lands, to a great extent, for the ultimate benefit of the people in ways prescribed by law.
Partly, at least, for this reason, it has never been the poliey of the Government to exclude the people, its citizens, from the public domain. On the contrary, from the beginning, it has been the policy to permit free access for any and all purposes not violative of law, and especiaily (except as otherwise provided in special cases) for the purpose of hunting, trapping, and fishing. Indeed, in early times and for many years, large portions of the great West could not have been then settled as they were without this permission. With the exception of certain exclusions, restrictions, and regulations applicable to certain specified portions of the public lands and waters, this policy has continued to the present time, and although, as I have said, Congress would have the power to adopt by law a policy of absolute exclusion, yet, at this day, this would be deemed arbitrary and harsh.
But, while Congress might exercise this incident of ownership, it is manifest that the Secretary of the Interior can not, without express authority of law, change this longsettled policy of the Government in favor of the people, by
rules or regulations forbidding that access to the public domain which this policy has so long permitted, or for purposes within that permission or not violative of any law.
And it is further manifest that, unless authorized by law, he can no more do this with reference to the forest reserves, than with reference to any other of the public lands; for this incident of ownership is applicable alike to all the lands held by the Government, and if the Secretary could exercise it as to any, he could equally as to all.
While the management and control of the public lands, except as otherwise provided by law, is committed to the Secretary of the Interior, this, even to the extent committed to him, is not absolute, but is a management and control subordinate to and for the purposes and objects intended, as expressed by law or settled usage or practice. He is but the agent of the Government for carrying out its purposes, and the rules and regulations which he makes can be such only as have relation to and subserve those purposes. He can not permit that which the law or the settled policy of the Government forbids, nor can be forbid what is thus permitted. And in view of what I have said of the long settled policy and practice of the Government, I am of opinion that the Secretary of the Interior can not, as the mere exercise of this incident of governmental ownership, exclude people from the forest reserves, whether there for hunting or other purposes, nor prohibit the hunting or kill
game on such reserves. I do not say that he can not do this at all-only that he can not do it in the exercise of that control which belongs to the governmental ownership of the lands, and that as long as or to the extent that Congress sees proper to continue its former policy of permission the Secretary can not interfere.
It remains to inquire whether, independently of this right of control incident to ownership, the law has conferred upon the Secretary of the Interior the power to prescribe rules and regulations for the preservation of game, or to prevent its being hunted and killed on the national forest reserves.
I have little doubt that, if unaffected by other legislative provisions and other considerations, the general and specific
powers conferred upon the Secretary would be sufficient for this purpose. But these must be read in the light of other legislative action and non-action, and of other considerations to which I shall refer. The various statutory provisions which may have a bearing upon the question are too numerous to permit here more than a very general reference to them.
I know of no provision expressly conferring upon the Secretary of the Interior the power to make rules or regulations for the preservation of game in our forest reserves generally, or for using such reserves as game refuges; and, if any such power exists, it must be by implication from the general powers conferred, or from those conferred for specific purposes.
But, in what I say upon this subject, 1 do not refer to particular localities, as the Yellowstone Park and perhaps some particular forest reservations as to which special provision is made for game preservation, or special power con
the Secretary for that purpose. I understand the question to refer generally to forest reserves and not to particular cases.
It must be borne in mind that the power conferred upon the Secretary of the Interior to make rules and regulations is for the accomplishment of certain objects and purposes of the Government, and that it can not be so construed as to authorize them for any other purpose; and, further, that such objects and purposes may be expressed either by legislative action, or by a long course of usage or practice.
Now, as already said, the settled policy and practice of the Government has been, from the beginning, to permit free access to the public lands for hunting, trapping, and fishing. The exceptions have been expressly made by Congress as to certain specified localities or reservations; and, unless so stated expressly and clearly, it can not be presumed that Congress intended to confer upon the Secretary a power of exclusion which, so far, it has appeared unwilling to itself exercise. Had Congress intended any further exclusion of the public from the public lands for hunting, etc., than it has itself ordained, it is fairly certain that in