or of such rules and regulations, shall be punished as is provided for in the act of June fourth, eighteen hundred and eighty-eight." Said last act provides as follows: * * "Every person who unlawfully cuts, or aids or is employed in unlawfully cutting, or wantonly destroys, or procures to be wantonly destroyed, any timber standing upon the land of the United States shall pay a fine of not more than five hundred dollars or be imprisoned no more than twelve months, or both, in the discretion of the court." By reason of such statutes the Secretary promulgated certain rules and regulations, a part of No. 72 of which, is that: "The following acts are hereby forbidden and declared to constitute trespass, punishable by fine and imprisonment: (a) Grazing upon or driving across a forest reserve any live stock without a permit, except as otherwise allowed by regulation. The defendants claim that the Secretary is not authorized by Congress to make the above rule, and that, if it intended to grant such authority, it was an attempt to delegate legislative power, which is ultra vires. It is too well settled to admit any doubt that Congress cannot delegate to any other body or person any authority to legislate; but it is also as well settled that it may authorize an executive officer to formulate rules and regulations for the full and explicit enforcement of the law enacted, and according to its full intent and spirit. To discuss either of these questions would be a wasteful use of time. Very many of the acts of Congress contain such delegation of authority. Had it not the power to do so, many of its statutes would be largely nugatory; for it is impossible for it to anticipate the various questions that may arise. in the enforcement of its laws and to provide for them. The objection 'made in this case to the rule is the same that is usually made to other like rules. The solution of the question must in each case be reached by determining whether the rule is an attempt to create a law, or simply a regulation or means of enforcing a law already enacted. If the former, it is void; if the latter, it is as valid as the law itself. There is no doubt as to the rule of decision; but in some instances the question is so close that it is difficult to conclude how the rule should be construed. In this instance the statute says that the Secretary "may make such rules and regulations and establish such service as will insure the objects of such reservation." But it does not leave him to determine what such objects are. It states them: First, "to regulate their occupancy and use"; and, second, "to preserve the forests thereon from destruction." Clearly Congress contemplated that these reserves should be occupied and used, but in what manner, by whom, and for what purposes it leaves the Secretary to regulate by rules. Rules to prevent any occupation or use would be contrary to the statute, but those simply to regulate such occupation and use are what the statute expressly authorizes, and are valid. While the provision of the statute for the preservation of the forests from destruction probably refers to the wanton destruction of the timber, yet the occupancy has an important effect upon such preservation. If the occupation by animals or otherwise is such as to destroy the growing, tender trees, the final deterioration and destruction of the forest must follow. My conclusion is that, in so far as this regulation 72 forbids any grazing or driving of live stock upon on or across the reservation without a permit, it is not legislation, but is only a rule, within the authority of Congress to regulate the occupation and use, and is valid. But the rule goes further, and directs a fine and imprisonment for such unpermitted acts. It must be doubted that the Secretary can direct any punishment that is not directly provided for or distinctly implied by the act. The most that can be held against this portion of the regulation is that it is surplusage, but which does not invalidate the balance of the rule. If no punishment were provided by the act, he could not direct any; if the act does provide a punishment, he cannot modify it. The act does, however, provide a punishment by applying to the offenses in this act-the penalty provided for offenses named in the act of June 4, 1888. By this latter act a punishment of not over $500 fine, or imprisonment of not over 12 months, or both, is provided. But the regulation, in directing fine and imprisonment, is obnoxious to the statute, which provides for fine or imprisonment. This statute of 1897 distinctly defines the penalty as the same prescribed by the statute of 1888. But defendants' counsel argues that as the penalty provided by the act of 1888 is for the cutting of timber and other offenses therein named, and does not provide for the offense charged in this indictment, it follows that there is no penalty provided for this offense. Careful examination of the statute cannot lead to such conclusion. Itthe act of 1897-says that "any violation of the provisions of this act, or such rules and regulations, shall be punished as provided for in the act of June 4, 1888." This is not a statement that the penalty prescribed by the former act can be applied only to the class of offenses therein named, but it is a direction that such penalty shall be applied also to the offenses described in the later act. Congress very often, in defining an offense, applies to it the same penalty provided for some other offense, described in some other act. Clearly that is all that is done in this case. My conclusion, then, is that the Secretary in making the rule referred to was duly authorized, and that the statute itself has prescribed the penalty for its violation. The demurrer is overruled. NOTE. Since preparing the above, counsel have called attention to the telegraphic report of a decision by the appellate court, which may determine the questions here involved. The authority to modify this is reserved, should it later be found that it is not in harmony with such appellate court decision. UNITED STATES v. DEGUIRRO et al. (District Court, N. D. California. October 2, 1906.) WOODS AND FORESTS-FOREST RESERVATIONS-VIOLATION OF REGULATIONS. The violation of the rule of the Secretary of the Interior forbidding the pasturing of live stock on a forest reservation without a permit is punIshable criminally, under Act June 4, 1897, 30 Stat. 35 [U. S. Comp. St. 1901, p. 1540], which authorizes the making of such regulations and prescribes the punishment for their violation. On Motion in Arrest of Judgment. This action was begun upon an indictment filed February 2, 1906, charging the defendants with unlawfully pasturing sheep over the Stanislaus forest reserve without having secured permit. A motion in arrest of judgment was interposed. The motion was denied by the court on October 2, 1906, and each of the defendants was fined the sum of $20. The motion in arrest of judgment was made upon the ground that the violation of the regulation in question was not a crime, and that it was beyond the authority of Congress and the Secretary of the Interior to make violation of the said regulation punishable. DE HAVEN, District Judge. The general reasoning found in the opinion of the Circuit Court of Appeals for this circuit in the case of Dastervignes v. United States, 122 Fed. 30, 58 C. C. A. 346, has created in my mind such doubt of the correctness of my prior decision in the case of United States v. Peter Camou, filed June 24, 1902 (not reported), that I deem it proper at this time to overrule the motion to defendants for an arrest of judgment; and if dissatisfied with this ruling, the defendants have the right to bring the question involved before the Circuit Court of Appeals for decision. The motion in arrest of judgment will be denied, and each of the defendants fined in the sum of $20. CITY OF NEW CASTLE v. WESTERN UNION TELEGRAPH CO. No. 4. REMOVAL OF CAUSES-MOTION TO REMAND-BURDEN OF PROOF. On a motion to remand a cause to the state court where the amount in controversy in the suit is put in issue, the burden of proving that it is sufficient to give the federal court jurisdiction rests on the defendant, and the mere allegation of such fact in the petition for removal is not sufficient as against a sworn denial by the plaintiff. [Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 230.] In Equity. On motion to remand to state court. Jas. A. Gardner, for complainant. J. S. & E. G. Ferguson, for respondent. EWING, District Judge. On May 21, 1906, the plaintiff filed its bill in equity in the court of common pleas of Lawrence county, Pa., against the defendant, setting forth that the plaintiff is a city of the third class of Pennsylvania, having full police power and the regulation and control of its streets and highways, and that, in pursuance 'of such power, it has constructed and established through a small part of its territory, being the closely built-up portions of said city, and that part on which the poles and wires most numerously exist and where the public travel is greatest, a certain underground conduit system, and has, by ordinance duly enacted, required the placing therein of electric wires and cables which heretofore have been suspended on poles along the said streets and highways; that the defendant company has certain lines of poles and wires occupying a portion of the streets of said city in which the conduit system has been established, and after due notice from the authorities to place the said wires within said conduits has refused to do so, and asking that the defendant be required to remove its said line of poles and wires and place said wires in said conduit, and be restrained from maintaining its said aerial line or system on and along the streets and highways where said conduit system has been established. The bill was duly served on the 22d of May, and on the 4th of June the defendant presented its petition to said court, setting forth that the plaintiff is a citizen and resident of the state of Pennsylvania and the defendant a citizen and resident of the state of New York, that the matter in dispute exceeds the sum of $2,000, exclusive of interest and costs, and presenting its bond conditioned for the filing of the record of said case in the Circuit Court of the United States for the Western District of Pennsylvania, and for paying all costs that may be awarded by said court, etc., and praying that the petition and bond be accepted and approved and said cause removed to said Circuit Court, which request was granted by the court, and the record of said cause was thereupon removed into this court. On September 7, 1906, the plaintiff moved to have the case remanded to the court of common pleas of Lawrence county, Pa., because, inter alia, the matter in dispute between the parties does not exceed the sum of $2,000, exclusive of interest and costs, and because the matter in controversy is not capable of being valued in money, and therefore this court has no jurisdiction. Upon this petition a rule was granted by this court, to which the defendant answered on November 21, 1906, alleging, inter alia, "that the right of this defendent to maintain its poles and wires, and operate the same within the said district of said city of New Castle, is of the value of not less than two thousand dollars," and that "the cost and expense of removing its said poles and wires, and placing the same in the said municipal conduits or subways of said city of New Castle, would exceed the sum of two thousand dollars." Both the motion to remand and the answer to the rule granted thereon are verified by affidavit. The defendant has filed no answer to the bill. It thus appears that the question before the court is one of jurisdiction, viz., whether the matter in controversy exceeds in value the sum of $2,000, exclusive of interest and costs, or whether it is capable of being valued in money. The petition for removal of the cause having alleged that the matter in controversy does exceed said sum, that the plaintiff and defendant are citizens of different states, and having been made in time, accompanied by proper bond, the court of common pleas of Lawrence county could not do otherwise than accept said petition and approve said bond. But that was a proceeding wholly ex parte. Now, by the motion made here to remand the cause and the reasons assigned in support of that motion, the question of the amount in controversy in this case is put at issue, and the disposition of this rule depends upon whether or not the defendant has here shown that that amount does exceed the sum of $2,000, exclusive of interest and costs. Under the authorities the burden of showing this jurisdictional fact rests upon the defendant, and it has offered no proof in support of its allegation of the amount in controversy here, but relies wholly upon the statement in its petition for removal, which statement is nothing more than the simple allegation necessary to obtain that order, when there was no controversy as to the amount involved in the case. The statement in its answer to this rule, that its right to maintain ana operate its pole line of wires "is of the value of not less than two thousand dollars," is insufficient, even if proved. The question here is really as to the right of the defendant company to maintain its aerial line of poles and wires in the portions of the city of New Castle now occupied by it in which the conduit system has been established, and consequently the amount in controversy is to be determined by the value of that right. The plaintiff is seeking no recovery against the defendant, has no demand against it for either money or property, but simply asks that it change the character of its telegraph line from that of poles and wires to the conduit system, and thus does not seek to deprive the defendant of any of its franchise rights in said city, but merely to change and control the manner of the exercise of its rights. If this is a correct statement of the question involved in this proceeding and of the manner in which the amount in dispute is to be ascertained, it is evidently incorrect to determine that amount, as the defendant has endeavored to do in one statement of its answer, by a calculation of the cost to the defendant company of making the change from one system to the other. Indeed, it may be that the conduit system will prove more valuable and less expensive to the defendant company than its present one, as is alleged by the plaintiff in the reasons assigned in the motion to remand. But, in any event, the burden of showing the jurisdictional facts is upon the defendant, and it has failed to do more than make the allegation in its petition aforesaid. Moon on the Removal of Causes, § 201; Carson v. Dunham, 121 U. S. 421, 7 Sup. Ct. 1030, 30 L. Ed. 992. As the matter thus appears, there is considerable doubt as to whether the amount in dispute here is sufficient to give this court jurisdiction, and, indeed, whether the amount is capable of anything like correct estimate or ascertainment, and therefore the cause should be remanded and this rule made absolute. Hutchenson v. Bigbee (C. C.) 56 Fed. 329; Fitzgerald v. Railway Company (C. C.) 45 Fed. 812; Winnemans v. Edgington (C. C.) 27 Fed. 324; Huntingdon v. Saunders, 163 U. S. 318, 16 Sup. Ct. 1120, 41 L. Ed. 174. Other matters set out in the petition and answer do not appear pertinent to this inquiry, and therefore are not commented upon. The rule is made absolute, and the cause remanded. |