United States v. Lonabaugh

• Decision Date: 19 July 1907
• Citation: 158 F. 314
• Parties: UNITED STATES v. LONABAUGH et al.
• Court: U.S. District Court — District of Wyoming

158 F. 314

UNITED STATES v. LONABAUGH et al.

United States District Court, D. Wyoming.

July 19, 1907

Sylvester R. Rush and Timothy F. Burke, U.S. Attys.

John W Lacey, Gibson Clark, and N. K. Griggs, for defendants.

RINER District Judge.

Numerous grounds are set out in the motion for a new trial and were argued by counsel with distinguished ability. I shall not attempt, in disposing of the motion, to discuss them separately. Two principal questions are presented: First whether the acts which the defendants are charged with conspiring to do, would amount to a fraud upon the government if carried out; and, second, if a conspiracy is established when was the offense complete? The first question may be disposed of in a word, for it was admitted at the argument as I understood counsel, that in order to bring the defendants within the meaning of section 5440, Rev. St. (U.S. Comp. St. 1901, p. 3676), the words 'conspiracy to defraud the United States' do not necessarily mean that there shall be pecuniary loss or damage to the government, resulting from false representations made to its officers in the performance of their duties, but that any false practice or trick set in motion for the purpose of inducing the government officials, in executing the laws of the United States in cases where they must act upon statements made by the parties interested, to act in a way which would be unlawful if the real truth were known, is a fraud upon the government. If any doubt heretofore existed upon that question, it has been forever set at rest by the decisions of the Supreme Court of the United States. The court in the case of Hyde v. Shine, 199 U.S. 62, 25 Sup.Ct. 760, 50 L.Ed. 90, said:

'Whatever may be the rule in equity as to the necessity of proving an actual loss or damage to the plaintiff, we think a case is made out under this statute by proof of a conspiracy to defraud and the commission of an overt act, notwithstanding the United States may have received a consideration for the lands and suffered no pecuniary loss.'

There are other cases where the Supreme Court has given expression to the same views, so that I think it may be said to be settled that, where the proof shows a conspiracy to defraud and the commission of an overt act, it matters not that the government was paid its price for the land. Whenever it is made to appear that the wrong disposition of the public lands was induced by fraudulent practices on the part of the party charged therewith, and done for the very purpose of circumventing the law and warping its due administration, the United States is defrauded. I think there can be no question in this case that there was such a conspiracy or unlawful agreement on the part of these defendants, and its very purpose was to induce the land department of the government, which is charged with the disposition of public lands, to dispose of the lands described in the indictment in a way not contemplated by the statute, and in violation of the statute. They knew that no individual could acquire more than 160 acres of land, and that an association or corporation could not acquire more than 320 acres, except in one case, for which the statute clearly provides, for such is the plain provision of the statute. But it was urged in argument that because the statute does not in express terms require an affidavit that the entryman is not taking the land for the benefit of another that, therefore, he may lawfully make a contract to sell or convey by deed, if not prior, certainly subsequent, to his making final proof. While it is undoubtedly true that penal laws are to be construed strictly, yet the intention of Congress must govern in their construction. If a case be within the intention it must be considered as within the letter of the statute. In other words, although penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of Congress, and this intention is to be collected from the words employed in the statute. Where there is no ambiguity in the words, there is no room for construction. A case would have to be a strong one indeed which would justify a court in departing from the plain meaning of words, especially in a penal act, in searching for an intention which the words themselves did not suggest. As was well stated by the Court of Appeals for this circuit in the case of Swarts v. Siegel, 117 F. 18, 54 C.C.A. 404:

'Attempted judicial construction of the unequivocal language of a statute or of a contract serves only to create doubt and to confuse the judgment. There is no safer or better settled canon of interpretation than that, when the language is clear and unambiguous, it must be held to mean what it plainly expresses, and no room is left for construction.' The coal land laws (section 2350 (U.S. Comp. St. 1901, p. 1441)) provide that only one entry shall be allowed to the same person or association of persons; and an association of persons, any member of which shall have taken the benefit of such sections of the statute (that is, the sections which contain the provisions allowing them to enter coal lands) either as an individual or as a member of any other association, is prohibited from entering or holding any other lands under the provisions of those sections. So that when these defendants attempted to secure the lands described in the indictment in the manner disclosed by the evidence in this case they knew that they were committing a fraud, because the very agreement itself provides for doing indirectly what they, as individuals or as members of an association or corporation, could not do directly.

In the determination of the second question, it is necessary to look to the object and design the parties had in mind when they entered into this unlawful agreement. What was the object and purpose of the agreement? Merely by false affidavits to get the government to convey the land described in the indictment to the different entrymen and stop there? I think no one will contend for a moment that they had any such purpose in mind. The purpose and design was not only to do that, but by the same methods to vest the title in this corporation, organized by them for the sole purpose of taking the title. But it was insisted, as I understood counsel, that upon final proof and the issuance to the entryman of a certificate of final payment by the receiver, regardless of the question of fraud in securing the entry, the final certificate conveyed as against the United States the apparent title and right of possession, that the entryman had a right to convey, and that the United States in order to reinvest the title in itself must institute judicial proceedings to set aside the apparent or defeasible title vested in the entryman or other grantees. I do not so understand the law. It would, it seems to me open wide the door for the perpetration of frauds of various kinds in the sale and disposition of public lands. The conveyance, it may be true, conveyed such title as the entryman had, but what title did he get? The proofs offered were false and fraudulently made, for the very purpose of misleading the government to part with its title to the lands described in the indictment. I have examined with care every case to which my attention was called during the oral argument. Most of them are civil cases, and I think in all of them (except one or two, where rights of bona fide purchasers without notice of the fraud were involved) the entries up to and including the final receipt were made in good faith and in strict conformity with the law, and in determining the question here presented the distinction between such cases and entries made in fraud of the law, although otherwise regular in form and procedure, must be kept constantly in mind. In the former cases vested rights may be said to accrue upon performance of the conditions required by law. In the latter, no vested rights can be acquired by the entryman however regular in form the proceedings may have been. It may well be conceded that in all cases where the entryman has acted in good faith and has fully complied with the provisions of the statute, has not been guilty of any fraud, and has done no act inconsistent with the law, he has acquired a right of which he cannot be deprived, because as was said by the Supreme Court in the preemption case of Myers v. Croft, 13 Wall. 291, 20 L.Ed. 562, 'The object of Congress was attained when the pre-emptor went with clean hands to the Land Office and proved up his right and paid the government for his land. ' But it would, it seems to me, be to violate every principle of interpretation to declare that such authorities support the views so earnestly contended for here. The rule is well stated by Judge Shiras of this circuit, in the case of United States v. Steenerson, 50 F. 504, 1 C.C.A. 552. After citing several decisions of the Supreme Court, which he said were called to his attention by counsel, in which it was held that when the right to a patent of lands has once become vested in a purchaser or pre-emptor, the same are segregated from the public domain, are no longer subject to entry, and the vested right to the patent thereto is equivalent to a patent actually...