Schmidt v. United States

• Decision Date: 24 October 1904
• Docket Number: 1,053.
• Citation: Schmidt v. United States, 133 F. 257 (9th Cir. 1904)
• Parties: SCHMIDT v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

133 F. 257

SCHMIDT v. UNITED STATES.

No. 1,053.

United States Court of Appeals, Ninth Circuit.

October 24, 1904

John L Sharpstein, for plaintiff in error.

Jesse A. Frye, U.S. Atty., and Edward E. Cushman, Asst. U.S. Atty.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The plaintiff in error was indicted and prosecuted in the United States Circuit Court for the District of Washington upon an indictment containing ten counts, in each of which he was charged with swearing falsely in certain naturalization proceedings pending in the superior court of the state of Washington for Walla Walla county. The ten counts in the indictment were all in the same form, except as to the name of the person applying to be naturalized; and it was charged in each thereof that the plaintiff in error did willfully falsely, corruptly, feloniously, and contrary to his oath swear, testify, depose, and make affidavit before the said court; and then followed the specification of the false testimony so given. The plaintiff in error was tried before a jury upon this indictment, and was convicted.

The principal question presented on the writ of error is whether one who swears falsely in a naturalization proceeding in a court of a state may be indicted and punished in a court of the United States, under the provisions of section 39 of the act of March 3, 1903, c. 1012, 32 Stat. 1222 (U.S. Comp. St Supp. 1903, p. 191), which, among other provisions, denounces a penalty against any person 'who in any naturalization proceeding knowingly procures or gives false testimony as to any material fact. ' This act may be deemed an amendment to section 5395 of the Revised Statutes (U.S. Comp. St. 1901, p. 3654), in that it increases the penalty provided for in that section. Section 5395 reads as follows:

'In all cases where oath or affidavit is made or taken under or by virtue of any law relating to the naturalization of aliens, or in any proceeding under such laws, any person taking or making such oath or affidavit who knowingly swears falsely, shall be punished by Imprisonment not more than five years nor less than one year, and by fine of not less than one thousand dollars.'

This statute would seem to be sufficiently comprehensive to include all cases of false swearing in naturalization proceedings, committed in whatever court. That such is its intention is shown by the prior legislation on the same subject. The section is taken from the act of Congress of July 14, 1870, c. 254, 16 Stat. 254, Entitled, 'an act to amend the naturalization laws, and to punish crimes against the same, and for other purposes. ' The first four sections of the act relate specifically to offenses against the naturalization laws. Section 1 provides for the punishment of perjury in all cases--

'Where any oath, affirmation, or affidavit shall be made or taken under or by virtue of any act or law relating to the naturalization of aliens, or in any proceedings under such acts or laws.'

Section 4 (Act July 14, 1870, c. 254, 16 Stat. 255) enacts that:

'The provisions of this act shall apply to all proceedings had or taken or attempted to be had or taken before any court in which any proceeding for naturalization shall be commenced, had, or taken, or attempted to be commenced, and the courts of the United States shall have jurisdiction of all offenses under the provisions of this act, in or before whatsoever court or tribunal the same shall have been committed.'

These words are clear, and leave no room to doubt that jurisdiction was thereby given to the United States courts of offenses committed against the naturalization laws in any court, whether state or federal.

The act of 1870 was an amendment to the naturalization laws. Those laws contained a provision conferring on state courts jurisdiction in naturalization proceedings. The amendment applied to all the naturalization laws, and its intent was to make punishable in the courts of the United States all crimes committed against those laws. Being an amendment to all of those laws, it is its fair construction that section 1 was intended to include offense against the naturalization laws committed by false swearing in the state courts, and to confer jurisdiction on the federal courts to deal therewith. If so, section 4 of the amendment was not necessary to make effective that intent, and may be deemed surplusage. When the act of 1870 was carried into the Revised Statutes, section 1 thereof was severed from its connection with the other three sections referred to, and was placed in chapter 4, tit. 70, which deals with 'crimes against justice.' Section 2, 3, and 4 were placed in chapter 5, under the title 'Crimes Against the Operation of the Government,' and are therein numbered 5424-5429, inclusive (U.S. Comp. St. 1901, pp. 3668-3670). Section 5429 reads as follows:

'The provisions of the five preceding sections shall apply to all proceedings had or taken, or attempted to be had or taken, before any court in which any proceeding for naturalization shall be commenced or attempted to be commenced.'

Section 4 is thus specifically repeated in the Revised Statutes, and therein made to refer to the five preceding sections only, and it does not in terms refer to section 5395. It is argued from this that it was the intention of Congress, by the revision, to exclude section 5395 from the operation of section 5429, and thereby to remove from the jurisdiction conferred by the former section the offenses therein described against the naturalization laws committed in state court proceedings. Was such the intention of Congress in adopting the Revised Statutes? Did Congress by the revision make or intend to make any change in the existing law?

It is not to be inferred that Congress by the revision intended to change the existing statute so as to distinguish between two classes of offenses against the naturalization laws, and to make offenses of one class committed in state court proceedings punishable in the federal courts, and exclude another class of such offenses, unless the intention so to do has been clearly expressed. The act under which the statutes were revised (Act June 27, 1866, c. 140, 14 Stat. 75 (U.S. Comp. St. 1901, p. 3755)), in section 2, provides that:

'The commissioners shall bring together all statutes and parts of statutes which, from similarity of subject, ought to be brought together, omitting redundant or obsolete enactments, and making such alterations as may be necessary to reconcile the contradictions, supply the omissions, and amend the imperfections of the original text.'

Section 5600 of the Revised Statutes (U.C. Comp. 1901, p. 3751) provides that:

'The arrangement and classification of the several sections of the revision have been made for the purpose of a more convenient and orderly arrangement of the same, and therefore no inference or presumption of a legislative construction is to be drawn by reason of the title, under which any particular section is placed.'

The Supreme Court, in construing the Revised Statutes, has repeatedly affirmed the settled rule that a change of phraseology in a revision will not be regarded as altering the law, where it had been well settled by plain language in the statutes, unless it was clear that such was the intent. Said the court in McDonald v. Hovey, 110 U.S. 619, 629, 4 Sup.Ct. 142, 146, 28 L.Ed. 269:

'So upon a revision of statutes a different interpretation is not to be given to them without some substantial change of phraseology-- some change other than what may have been necessary to abbreviate the form of the law.'

And the court cited with approval In re Murphy, 23 N.J.Law, 180, where, in construing several statutes which had been consolidated, a proviso in one of them of broad enough in its terms to affect the whole consolidated law was held to affect only those sections with which it had been originally connected. In United States v. Ryder, 110 U.S. 729, 740, 4 Sup.Ct. 196, 201, 28 L.Ed. 308, the court said:

'It will not be inferred that the Legislature, in revising and consolidating the laws, intended to change their policy, unless such intention be clearly expressed.'

To the same effect is Logan v. United States, 144 U.S. 263, 302, 12 Sup.Ct. 617, 36 L.Ed. 429. A case in point is Doyle v. Wisconsin, 94 U.S. 50, 24 L.Ed. 64, in which it was held that section 1007 of the Revised Statutes (U.S. Comp. St. 1901, p. 714), which provides that, where a writ of error may operate as a writ of supersedeas, execution shall not issue until ten days after the rendition of the judgment, has reference only to the courts of the United States. This conclusion was reached upon a consideration of the statutes as they stood before the revision. The court, by Chief Justice Waite, said, 'The Revised Statutes are a revision and consolidation of the old statutes, rather than an enactment of new;' and, after quoting section 5600 (page 3751), he added, 'This makes it proper that we should look to the original act to ascertain the legislative intent in cases of doubt. ' In the recent case of United States v. Severino (C.C.) 125 F. 949, Thomas, District Judge, in a carefully considered opinion, held that, notwithstanding the changes in revision, section 5395 still conferred on the federal courts jurisdiction of a perjury committed in naturalization proceedings in a state court in the procedure prescribed by Congress.

Again it is an established canon of construction that, in finding the meaning of an ambiguous statute in the revision, the courts are permitted to refer to the original statute from which the section was taken, to ascertain from its language and context to what class of cases the provision was intended to apply. The Con...