The Forest Service proposes to use the tools—obey the law—made by the representatives of the people. But the law cannot give specific directions in advance to meet every need and detail of administration. The law cannot make brains nor supply conscience. Therefore, the Forest Service proposes also to serve the people by the intelligent and purposeful use of the law and every lawful means at its command for the public good. And for that intention it makes no apology.
Fortunately for the Forest Service, the point of view which it worked out for itself under the pressure of its responsibilities was found to be that of the Supreme Court. In the case of the U.S. vs. Macdaniel (7 Pet., 13-14), involving the administrative powers of the head of a Department, the Supreme Court of the United States said:
"He is limited in the exercise of his
powers by the law; but it does not
follow that he must show statutory
provision for everything he does. No
government could be administered on
such principles. To attempt to regulate,
by law, the minute movements
of every part of the complicated machinery
of government, would evince a
most unpardonable ignorance on the
subject. Whilst the great outlines of
its movements may be marked out,
and limitations imposed on the exercise
of its powers, there are numberless
things which must be done, that can
neither be anticipated nor defined, and
which are essential to the proper action
of the government."
Congress has given to the Secretary of Agriculture, acting through the Forest Service, the specific task of administering the National Forests, with full power to perform it, and has provided that he "may make such rules and regulations and establish such service as will ensure the objects of said reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction." Every exercise of the powers granted to the Secretary of Agriculture by statute has been in accordance with the principles laid down by Chief Justice Marshall ninety years ago in the case of McCulloch vs. Maryland (4 Wheat., 421), when he said as to powers delegated by the Federal Constitution to Congress:
"Let the end be legitimate, let it be
within the scope of the Constitution,
and all means which are appropriate,
which are plainly adapted to that end,
which are not prohibited, but consist
with the letter and spirit of the Constitution,
are constitutional."
After the transfer of the National Forests from the Interior Department to the Forest Service in 1905, some things were done that had never been done before, such as initiating Government control over water-power monopoly in the National Forests, giving preference to the public over commercial corporations in the use of the Forests, and trying to help the small man make a living rather than the big man make a profit (but always with the effort to be just to both). Always and everywhere we have set the public welfare above the advantage of the special interests.
Because it did these things the Forest Service has made enemies, of some of whom it is justly proud. It has been easy for these enemies to raise the cry of illegality, novelty, and excess of zeal. But in every instance the Service has been fortified either by express statutes, or by decisions of the Supreme Court and other courts, of the Secretary of the Interior, of the Comptroller, or the Attorney-General, or by general principles of law which are beyond dispute. If there is novelty, it consists simply in the way these statutes, decisions, and principles have been used to protect the public. The law officers of the Forest Service have had the Nation for their client, and they are proud to work as zealously for the public as they would in private practice for a fee.
So I think the ghost of illegality in the Forest Service may fairly be laid at rest. But it is not the only one which is clouding the issues of conservation in the public mind. Another misconception is that the friends of conservation are trying to prevent the development of water power by private capital. Nothing could be farther from the truth. The friends of conservation were the first to call public attention to the enormous saving to the Nation which follows the substitution of the power of falling water, which is constantly renewed, for our coal, which can never be renewed. They favor development by private capital and not by the Government, but they also favor attaching such reasonable conditions to the right to develop as will protect the public and control water-power monopoly in the public interest, while at the same time giving to enterprising capital its just and full reward. They believe that to grant rights to water power in perpetuity is a wrongful mortgage of the welfare of our descendants, and to grant them without insisting on some return for value received is to rob ourselves.
I believe in dividends for the people as well as taxes. Fifty years is long enough for the certainty of profitable investment in water power, and to fix on the amount of return that will be fair to the public and the corporation is not impossible. What city does not regret some ill-considered franchise? And why should not the Nation profit by the experience of its citizens?
There is no reason why the water-power interests should be given the people's property freely and forever except that they would like to have it that way. I suspect that the mere wishes of the special interests, although they have been the mainspring of much public action for many years, have begun to lose their compelling power. A good way to begin to regulate corporations would be to stop them from regulating us.