1. An indictment founded on a general statutory provision
defining the offense need not negative the matter of an exception
made by a proviso or other distinct clause, whether in the same
section or elsewhere. P. 260 U. S.
2. The third section of the Act of February 25, 1885, c. 149, 23
Stat. 321, providing that
"no person, by force, threat, intimidation or by any fencing or
enclosing, or any other unlawful mean, . . . shall prevent or
obstruct free passage or transit over or through the public
applies to transient acts of force and intimidation as well a
continuing obstacles such as a fence or the maintenance of an armed
patrol. P. 260 U. S.
3. Punishment for offenses defined by the above act is not
confined by the fourth section to persons acting as "owner, part
owner or agent." P. 260 U. S.
4. Congress has power to punish intentional obstruction to free
passage over the public lands within a state accomplished by acts
of violence, and its exercise works no interference with the power
of the state to punish the acts of violence as such. P.
260 U. S.
273 F. 410 affirmed.
Certiorari to a judgment of the circuit court of appeals
affirming a conviction in the district court under an indictment
for unlawful prevention and obstruction of free passage over the
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
The five petitioners were indicted, tried, and convicted in the
District Court of the United States for the District
Page 260 U. S. 354
of Idaho upon a charge of unlawfully preventing and obstructing,
by means of force, threats, and intimidation, free passage over and
through certain unoccupied public lands of the United States by
designated persons, they being the three employees hereinafter
mentioned. The circuit court of appeals affirmed the judgment. 273
F. 410. A writ of certiorari brings the case here.
The record purports to contain the substance of the evidence in
chief presented by the United States, but not the evidence produced
by the defendants nor that of the United States in rebuttal. That
which it does contain tends strongly to establish the following
In August, 1919, the owners of a band of sheep then about 30
miles northwest of Mackay, Idaho, committed to three employees the
task of driving the sheep to a range on the other side of Mackay. A
part of the route lay over unoccupied public lands of the United
States in relative proximity to a stream called Lost River. In that
vicinity, there were two well known trails. One, recently
passed on the
east side of the river, and the other, theretofore used by the
owners of the sheep, passed on the west side. The employees took
the latter trail, and, while following it in the usual way of
driving sheep, were met by some of the defendants, who insisted
that the lands thereabouts were used as a cattle range, and
demanded that the sheep be not driven along that trail, but taken
to the trail on the other side of the river, four or five miles
away. This occurred about eleven o'clock in the forenoon of August
25th, when it was very warm. One of the employees answered that the
sheep should be permitted to rest until it became cooler, and that
they could not be taken across the river without an order from one
of the owners. Such of the defendants as were present then pointed
out a place where the sheep could be held
Page 260 U. S. 355
in the shade, and went away. About four o'clock in the
afternoon, some of the defendants returned and demanded that the
sheep be moved to the other side of the river right away. To this
the answer was made that instructions had been received, presumably
by telephone, from one of the owners to await his coming, which
would be later in the day. One of the defendants then requested his
comrades to line up with their rifles, which they did, whereupon he
proceeded to make a hostile demonstration against one of the
employees and to chase him about, obviously as a matter of
intimidation. These defendants then went away. That evening, one of
the owners arrived and directed that the driving be continued along
the trail on which the employees were proceeding, it being "the
trail we always used," and "about 3 miles wide." Early the next
morning, before the employees started the sheep again, one of the
defendants returned and inquired what was going to be done, and, on
learning what the owner had directed, said: "You can't go through
there." "Something will happen to you this morning." "Are you
willing to take the consequences?" This defendant then rode away,
and a little later others of them rode up on a gallop, ordered the
employees to put up their hands, which was done, and then began
shooting. They shot and seriously injured one of the employees,
threatened to finish him, and did other things calculated to put
all three in terror. The defendants then moved two of the employees
and the sheep to the other side of the river and took the wounded
employee to a hospital. While some of the defendants were present
at one time, and some at another, the circumstances were such that
what was done was the act of all. The lands through which this
trail extended and over which the employees intended to drive the
sheep were unoccupied public lands of the United States. The
purpose of the defendants in all that they
Page 260 U. S. 356
did was to prevent the employees from proceeding with the sheep
over those lands. The lands were comprised in two townships, each
six miles square, and within these townships were several small
tracts -- a minor part of the whole -- which were claimed and held
by individuals under the public land laws; but the trail did not
pass over these small tracts, nor were the employees driving or
intending to drive the sheep over them.
The indictment was founded on §§ 3 and 4 of the Act of February
25, 1885, c. 149, 23 Stat. 321 which read as follows:
"Sec. 3. That no person, by force, threats, intimidation, or by
any fencing or enclosing, or any other unlawful means, shall
prevent or obstruct, or shall combine and confederate with others
to prevent or obstruct, any person from peaceably entering upon or
establishing a settlement or residence on any tract of public land
subject to settlement or entry under the public land laws of the
United States, or shall prevent or obstruct free passage or transit
over or through the public lands: Provided,
shall not be held to affect the right or title of persons who have
gone upon, improved, or occupied said lands under the land laws of
the United States, claiming title thereto in good faith."
"Sec. 4. That any person violating any of the provisions hereof,
whether as owner, part owner, or agent, or who shall aid, abet,
counsel, advise, or assist in any violation hereof, shall be deemed
guilty of a misdemeanor and fined in a sum not exceeding one
thousand dollars or be imprisoned not exceeding one year, or both,
for each offense."
The indictment was challenged on several grounds by a demurrer
and a motion in arrest of judgment, both of which were overruled,
and error is assigned on these rulings.
One ground of objection is that the indictment contains no
showing that the accused were not within the exception
Page 260 U. S. 357
made in the proviso to § 3. This is not a valid ground. By
repeated decisions, it has come to be a settled rule in this
jurisdiction that an indictment or other pleading founded on a
general provision defining the elements of an offense, or of a
right conferred, need not negative the matter of an exception made
by a proviso or other distinct clause, whether in the same section
or elsewhere, and that it is incumbent on one who relies on such an
exception to set it up and establish it. Schlemmer v. Buffalo,
Rochester & Pittsburg Ry. Co., 205 U. S.
, 205 U. S. 10
Javierre v. Central Altagracia, 217 U.
, 217 U. S. 508
and cases cited.
Another ground is that the words of § 3, "or shall prevent or
obstruct free passage or transit over or through the public lands,"
refer to a continuing obstacle to passage or transit in general,
such as a fence or the maintenance of an armed patrol, and not to a
transient obstacle to passage or transit by particular persons on a
particular occasion, such as is charged here. We think this ground
is not tenable. The words "by force, threats, intimidation, or by
any fencing or enclosing, or any other unlawful means" are as
comprehensive of transient means of obstruction as of continuing or
relatively permanent means. Besides, it is "free" passage or
transit that is to be unobstructed. Passage or transit is free in
the sense intended when it is open to all. When some withhold it
from others, whether permanently or temporarily, it is not
A third ground is that, under § 4, the only punishable offenses
are those wherein the offender acts as owner, part owner, or agent,
and that this indictment does not show that any of the defendants
were so acting. This ground is without merit. While § 4 is not
happily worded, there is no difficulty in getting at its meaning.
It is the penal section, and broadly fixes the punishment for the
several acts made unlawful by the other sections.
Page 260 U. S. 358
Some of the proscribed acts involve an assertion of a groundless
right to the exclusive use and occupancy of public lands, a right
which the offender might be asserting in his own behalf, or in
behalf of himself and another, or in behalf of others whom he
serves as agent. But in several of the proscribed acts there is no
such element. The offense charged here is of the latter class. With
this understanding of the acts made unlawful by the other sections,
it is apparent that the words "whether as owner, part owner, agent"
in § 4 are intended merely to make sure that offenders acting as
owners, part owners, or agents are brought within the penal
provision, and not to exclude other offenders therefrom or to
absolve them from punishment.
It also is contended that § 3, when construed as we construe it,
transcends the power of Congress and encroaches on the police power
of the states. This contention proceeds on the assumption that the
section, so construed, deals with acts of personal violence which
do not affect the public lands or the rights of the United States
in them. But this is a mistaken assumption. The section, in terms
and as we construe it, deals with the obstruction by unlawful means
of free passage over the public lands. It makes no attempt at
dealing with acts of personal violence as such. Only when and as
they are made the means -- resorted to for the purpose -- of
effecting the prohibited obstruction does it take any account of
them. The power of the state to deal with and punish them is not
affected. Such acts may be an ingredient of an offense against the
United States and also, in themselves, as an offense against the
state. The following excerpt from Moore v.
14 How. 13, 55 U. S. 20
"The same act may be an offense or transgression of the laws of
both. Thus, an assault upon the marshal of the United States, and
hindering him in the execution of legal process, is a high offense
against the United States,
Page 260 U. S. 359
for which the perpetrator is liable to punishment, and the same
act may be also a gross breach of the peace of the state, a riot,
assault, or a murder, and subject the same person to a punishment,
under the state laws, for a misdemeanor or felony. That either or
both may (if they see fit) punish such an offender cannot be
doubted. Yet it cannot be truly averred that the offender has been
twice punished for the same offense, but only that, by one act, he
has committed two offenses, for each of which he is justly
It is firmly settled that Congress may prescribe rules
respecting the use of the public lands. It may sanction some uses
and prohibit others, and may forbid interference with such as are
sanctioned. Camfield v. United States, 167 U.
, 167 U. S. 525
United States v. Grimaud, 220 U.
, 220 U. S. 521
Light v. United States, 220 U. S. 523
220 U. S. 536
Utah Power & Light Co. v. United States, 243 U.
, 243 U. S.
-405. The provision now before us is but an exertion
of that power. It does no more than to sanction free passage over
the public lands and to make the obstruction thereof by unlawful
means a punishable offense.
It also is settled that the states may prescribe police
regulations applicable to public land areas, so long as the
regulations are not arbitrary or inconsistent with applicable
congressional enactments. Among the regulations to which the state
power extends are quarantine rules and measures to prevent breaches
of the peace and unseemly clashes between persons privileged to go
upon or use such areas.
Two regulations of the latter type by the State of Idaho have
been sustained by this Court -- one making it unlawful to herd
sheep or permit them to graze within two miles of the dwelling
house of another having a possessory claim to the land whereon the
house stands, Bacon v. Walker, 204 U.
, and the other making it unlawful to herd sheep
or permit them to graze on a range which,
Page 260 U. S. 360
by prior usage, has come to be a cattle range, Omaechevarria
v. Idaho, 246 U. S. 343
construed by the supreme court of the state, these regulations are
not intended to cover the driving of sheep from one range to
another, nor such occasional grazing as is done by the sheep while
being driven or during temporary stops for needed rest or similar
purposes. In view of the instructions to the jury in this case, the
verdict must be taken as finding that there was no herding or
grazing here which was forbidden by these regulations.
Complaint is made of several rulings on the trial, but we think
all were right. As to some, the complaint is disposed of by what
has been said, and as to the others, it is so wanting in substance
that it does not call for special notice.
* Presumably under § 10 of the Act of December 29, 1916, c. 9,
39 Stat. 862.