Stewart Udall, Secretary of the Interior v. States of Wisconsin, Colorado and Minnesota, Stewart Udall, Secretary of the Interior v. State of Michigan ( 1962 )


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  • *796WASHINGTON, Circuit Judge,

    concurring in the result):

    To me, this is not a case for mandamus. In my view, the Secretary’s task is not merely ministerial; moneys of the United States are involved; and the statute is ambiguous. There is also presented a question of federal-state relations more suitable, I think, for congressional than for judicial settlement. In these circumstances, I think that under the Supreme Court’s decision in Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 78 S.Ct. 752 (1958), we should order that the complaint be dismissed for lack of jurisdiction.

    However, since the other members of this panel consider that we do possess jurisdiction, and reach the merits, I will likewise reach the merits, so that the case may be disposed of. Cf. Screws v. United States, 325 U.S. 91, 134, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (opinion of Rutledge, J.). I think the Secretary’s present construction of the statute is a proper one, and will join Judge Wright in voting to reverse the judgment of the District Court, for the reasons given in Part II of his opinion.

    WILBUR K. MILLER, Chief Judge (concurring in part and dissenting in part). Judge Wright is correct, I think, in rejecting the Secretary’s contention that this is an unconsented suit against the United States. And I agree with his holding that

    “ * * * even in determining that number [of paid license holders in the several states], he [the Secretary] was not authorized to make his own computation, but was directed to accept the state certificates. No judgment, no discretion, is involved. The Secretary’s function, in this respect, is almost a purely mechanical one.”

    Accordingly, I concur in his conclusion that the District Court had jurisdiction to issue an order in the nature of mandamus requiring the Secretary of the Interior to allocate the wildlife restoration fund in accordance with the court’s construction of the Act.

    I dissent, however, from the action of the majority in vacating the order appealed from and in remanding to the District Court with directions to grant the Secretary’s motion for summary judgment and dismiss the suit on the merits. As the reason for their action, my colleagues rely on the statutory term “number of paid hunting-license holders,” which they say is unambiguous and plainly refers to number of individuals and not to number of licenses issued. Thus they rest their decision upon the statutory language alone, unaided by any extraneous explanatory matter and uninfluenced by the change in state licensing structures which they say has occurred since the Act was adopted.

    To be sure, it is ordinarily true that unambiguous statutory language which has rational significance should be given its literal meaning without resort to legislative history; that when the legislative intent is clearly expressed in the statute, there is no need for extrinsic evidence of that intent. Whether that principle may properly be applied here is doubtful, to say the least. The majority opinion notes that in 1937, when the statute was enacted, it was generally true that “the number of licenses and the number of individual license holders were the same.”1 That being so, there was at the time of enactment no occasion for Congress to disinguish between number of licenses and number of license holders, and its use of one of the terms cannot be said to have been the result of a deliberate choice of that term to the exclusion of the other. For that reason, I do not believe the statutory language, standing alone, shows Congress consciously and intentionally intended to prescribe the one and not the other as the basis for apportionment. Surely the development of multiple licensing after the statute’s enactment cannot justify attributing to Congress an intention in *7971937 to deal with a situation which did not then exist.

    Accordingly, I think it not only proper but necessary to examine the legislative history to ascertain the Congressional intent at the time of enactment, and also to consider whether administrative interpretation of the statute and subsequent legislative action with respect to it indicate what the intent was. The majority dismiss these considerations by saying the legislative history proves nothing, and that evidence of Congressional adoption of a different administrative interpretation is not convincing.

    I think the legislative history establishes beyond peradventure that Congress thought of “the number of paid hunting-license holders” as being the same thing as the number of licenses issued and, therefore, did not intend to prescribe the one and not the other as a basis for apportionment. In the circumstances at the time of enactment, there was a holder for each license and so the statutory use of the former word instead of the latter was entirely fortuitous; the word “license” was used during the committee hearings and on the floors of the House and Senate in describing that portion of the statutory scheme of apportionment.

    A few words as to the legislative history will illustrate this. The Act was introduced in the Congress as S. 2670 and H.R. 7681, 75th Congress, 1st Session, both bills having been prepared by the Conservation Committees of the House and Senate in collaboration with certain national wildlife associations and agencies. During the hearings, Carl D. Shoemaker, Secretary of the Senate Special Committee on Conservation of Wildlife Resources and Secretary of the General Wildlife Federation, made the following explanatory statement: 2

    “The manner in which the States will be allocated this money is based upon the area of the State and the total number of hunting licenses issued in the States. One-half of the fund will be allocated on the ratio that the area of the State bears to the total area of the United States. This will take care of the larger area States with small populations, and the other half will be allocated on the ratio that the total number of hunting licenses issued in the State bears to the total number issued in all the States.” (Emphasis added.)

    In explaining the legislation on the floor of the Senate, Senator Pittman, who had sponsored the bill, said: 3 “Area and hunting and fishing licenses are the bases for apportionment.” (Emphasis supplied.) The House of Representatives was informed by Representative Robertson, sponsor of the companion House bill, that the number of hunting licenses sold was to be the basis of the apportionment. He stated:4

    “* * * [T]he bill provides that there is authorized to be appropriated an amount equal to the excise tax of 10 percent on sporting guns and ammunition, to be allocated as grants-in-aid on the basis of one-half on area and one-half on the amount of hunting licenses that are sold in the several States of the Union. * * * ” (Emphasis supplied.)

    In addition to the legislative history, the administrative interpretation is significant. For more than twenty years after the passage of the statute in 1937, the Departments successively in charge of apportioning payments thereunder computed them on the basis of the number of licenses issued, rather than the number of persons to whom licenses had been issued. This was not disputed by the Secretary, and was admitted by his attorney in the District Court in a colloquy with the trial judge.5 The prac*798tice was authorized by official manuals issued by the supervising Departments: in 1988, the manual of instructions said, " * * # [E]ach State’s share must be based in part on the number of licenses sold during the fiscal year” and that “In ■certifying the number of paid hunting licenses to the Department, there should be included all licenses defined as hunting licenses by State laws.” Successive revisions of the manual of instructions, including that of 1957, contained in sub.stance the same provision.

    The administrative interpretation of the statute was not disturbed by subsequent implementing legislation. From 1937 until 1950, Congress made annual appropriations for the Federal Aid to Wildlife Restoration Fund.6 In none of these years did Congress express dissatisfaction with the administrative use of the number of licenses as the basis for .apportionment, although it knew the number of licenses issued was the basis used by the Department. The proposition that long-continued acquiescence by ■Congress gives administrative interpretation the authority of law is so well understood it is unnecessary to cite authority to support it.

    In addition, there was no proof that there were more licenses than licensees in the four appellee States during the period involved. The Secretary merely assumed that the number of licenses exceeded the number of individual holders; lie admitted as much when he said: 7

    “ * * * Statistics as to the number of hunters who purchased more than one license were not maintained by the Plaintiff States. These certifications did not, however, show affirmatively that they contained duplications of individual license holders. It might be that no individual in the state had purchased both a big game and a small game license.” (Emphasis added.)

    Thus, on the basis of an assumption which he admitted had no evidentiary foundation and might hot be correct, the Secretary refused to apportion the funds according to the four States’ certifications. So, the last sentence in the foregoing quotation, which I have italicized, seems to me to be a concession by the Secretary that he acted arbitrarily in concluding the number of issued licenses exceeded the number of holders.

    The statute says the Secretary “shall apportion” one half of the revenues in the fund among the several states “in the ratio which the number of paid hunting-license holders of each State * * * as certified to said Secretary by the State fish and game departments, bears to the total number of paid hunting-license holders of all the States.” (Emphasis supplied.) It was affirmatively stated by the Secretary in his proposed findings of fact that “Wisconsin, Minnesota, Colorado, and Michigan * * * submitted certifications of the number of ‘paid hunting license holders.’ ” It is, therefore, apparent that the Secretary did not obey the plain direction of the statute that he act on the certificates of the states; he refused to apportion on those certifications, although it was his duty to do so, as the majority state. Instead he attempted to justify his disobedience by saying:

    “ * * * These [certificates] showed on their face * * * that *799the number of ‘license holders’ certified was actually the total number of hunting licenses sold, rather than the number of individuals to whom one or more licenses had been sold * * •»

    Yet he admitted, as I have said, that he only surmised there were more licenses than holders. This was a plain attempt by the Secretary to exercise discretion in an area in which the majority hold— and I agree—he has “No judgment, no discretion.”

    One final comment. The Secretary’s suggestion that, under the District Court’s ruling, the states might multiply their hunting licenses in order to obtain a larger portion of federal funds imputes venality to them without any real reason for doing so. I am unwilling to believe, without convincing proof, that the legislatures of sovereign states would enlarge the number of their hunting licenses from such an unworthy motive.

    I think the trial judge was clearly right, and I would affirm his judgment.

    . “The multiplication of limited hunting licenses,” say the majority, “is largely a recent phenomenon.”

    . Hearing Before the House Special Committee on Conservation of Wildlife Resources, 75th Cong., 1st Sess., p. 40 (1937).

    . 81 Cong.Rec. 8506 (1937).

    . 81 Cong.Rec. 9351 (1937).

    . “The Coubt: At that time, the licenses were broken down and itemized and that *798ilióse licenses were the number of licenses issued.

    “Mr. MacGuineas : That is right..
    “The Court: Not number of persons?
    “Mr. MacGuineas: That is right.
    “The Court: Now that policy then was followed by the Department of Interior from the time of the passage of "the Act up until, what 1959?
    “Mb. MacGuineas: Well until this new opinion [of the Department’s Solicitor] came out, that was 1959.”

    . The statute of 1950 (64 Stat. 693) made annual appropriations unnecessary thereafter.

    . I quote this from numbered paragraph 6 of the proposed amended findings of fact submitted by the Secretary to the District Court. The last two sentences are repeated in his brief.

Document Info

Docket Number: 16670_1

Judges: Miller, Washington, Wright

Filed Date: 6/28/1962

Precedential Status: Precedential

Modified Date: 11/4/2024