United States v. Luther Jerome Smull

• Decision Date: 23 February 1915
• Docket Number: No. 598,598
• Citation: 59 L.Ed. 641,35 S.Ct. 349,236 U.S. 405
• Parties: UNITED STATES, Plff. in Err., v. LUTHER JEROME SMULL
• Court: U.S. Supreme Court

236 U.S. 405

35 S.Ct. 349

59 L.Ed. 641

UNITED STATES, Plff. in Err.,

v LUTHER JEROME SMULL.

No. 598.

Argued January 7, 1915.

Decided February 23, 1915.

Assistant Attorney General Knaebel and Mr. S. W. Williams for plaintiff in error.

[Argument of Counsel from page 406 intentionally omitted] No appearance for defendant in error.

[Argument of Counsel from page 407 intentionally omitted] Mr. Justice Hughes delivered the opinion of the court:

This is an indictment for perjury. It is charged that Luther Jerome Smull, the defendant in error, in making application for a homestead entry under § 2289 of the Revised Statutes (Comp. Stat. 1913, § 4530), swore falsely, before the receiver of the land office, that he had not theretofore 'made any entry under the homestead laws,' whereas in fact, as he well knew, he had previously made a homestead entry upon which he had obtained patent. The defendant demurred upon the ground that the indictment did not state a crime. The district court sustained the demurrer, ruling that the affidavit was not within the statute defining perjury. Criminal Code, § 125 [35 Stat. at L. 1111, chap. 321, Comp. Stat. 1913, § 10295]. The government brings the case here under the criminal appeals act.

The charge of crime must have clear legislative basis. Williamson v. United States, 207 U. S. 425, 52 L. ed. 278, 28 Sup. Ct. Rep. 163; United States v. Grimaud, 220 U. S. 506, 55 L. ed. 563, 31 Sup. Ct. Rep. 480; United States v. George, 228 U. S. 14, 57 L. ed. 712, 33 Sup. Ct. Rep. 412; United States v. Birdsall, 233 U. S. 223, 58 L. ed. 930, 34 Sup. Ct. Rep. 512. The Criminal Code, § 125, provides: 'Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, . . . shall wilfully, and contrary to such oath, state or subscribe any material matter which he does not believe to be true, is guilty of perjury. . . .' This statute takes the place of the similar provision of § 5392 of the Revised Statutes, which in turn was a substitute for a number of statutes in regard to perjury, and was phrased so as to embrace all cases of false swearing, whether in a court of justice or before administrative officers acting within their powers (see revisors' report, vol. 2, pp. 2582, 2583.)¹ It cannot be doubted that a charge of perjury may be based upon § 125 of the Criminal Code where the affidavit is required, either expressly by an act of Congress, or by an authorized regulation of the General Land Office, and is known by the affiant to be false in a material statement. That is, the Land Department has authority to make regulations which are not inconsistent with law, and are appropriate to the performance of its duties (Revised Statutes, §§ 161, 441, 453, 2478, Comp. Stat. 1913, §§ 235, 681, 699, 5120), and when, by a valid regulation, the Department requires that an affidavit shall be made before an officer otherwise competent, that officer is authorized to administer the oath within the meaning of § 125. The false swearing is made a crime, not by the Department, but by Congress; the statute, not the Department, fixes the penalty. United States v. Grimaud, 220 U. S. p. 522, 55 L. ed. 569, 31 Sup. Ct. Rep. 480. Section 125 of the Criminal Code must be read in the light of § 2246 of the Revised Statutes (Comp. Stat. 1913, § 4494), which is explicit:

'The register or receiver is authorized, and it shall be their duty, to administer any oath required by law or the instructions of the General Land Office, in connection with the entry or purchase of any tract of the public lands.'

As it is apparent that the departmental rule makes it necessary for the applicant to state under oath whether or not he has made a former entry under the homestead laws, the sole question in the present case is whether this requirement was one which the Department could impose. This inquiry is naturally divided into two branches: (1) Was the regulation addressed to the enforcement of the laws, the administration of which was confided to the Department, and (2) Was it inconsistent with any specific provision of the statutes?

As to the former, it is sufficient to say that the homestead laws contain an express prohibition with respect to the amount of land which any one person may secure under their provisions, and the Commissioner of the General Land Office is intrusted with the duty of promulgating appropriate rules to make this prohibition effective. Thus, by the act of May 20, 1862, chap. 75, § 6 (12 Stat. at L. 393, Comp. Stat. 1913, § 4557), it was provided: 'That no individual shall be permitted to acquire title to more than one quarter section under the provisions of this act; and that the Commissioner of the General Land Office is hereby required to prepare and issue such rules and regulations, consistent with this act, as shall be necessary and proper to carry its provisions into effect.' The prohibition was carried forward into the Revised Statutes (§§ 2289, 2298; act of March 3, 1891, chap. 561, § 5, 26 Stat. at L. 1098, Comp. Stat. 1913, §§ 4530, 4557) and the authority of the Department to enforce it was continued, and not diminished (§ 2478, Comp. Stat. 1913, § 5120). It would seem to be plain that a rule requiring an affidavit from the applicant, stating whether or not he had made other entries, was suitably addressed to the execution of the law. United States v. Bailey, 9 Pet. 238, 9 L. ed. 115; Caha v. United States, 152 U. S. 211, 38 L. ed. 415, 14 Sup. Ct. Rep. 513; United States v. Grimaud, supra; United States v. Birdsall, 233 U. S. 223, 58 L. ed. 930, 34 Sup. Ct. Rep. 512; Leonard v. Lennox, 104 C. C. A. 296, 181 Fed. 760, 766, 767.

There remains the question whether the regulation is inconsistent with the terms of the statute; that is, as there is no suggestion of inconsistency otherwise, whether it is repugnant to the specific requirements of § 2290 of the Revised Statutes, as amended by the act of March 3, 1891, chap. 561, supra, in relation to the affidavit to be made by the applicant for a homestead entry. We do not think that it is. Section 2290, it is true, does not provide that the affidavit of the applicant shall set forth whether there has been a previous entry. Neither does it provide that the applicant shall state that he is a citizen, or has filed his declaration of intention to become such Yet, under § 2289, he cannot make entry unless this qualification exists. We are concerned with positive requirements of the law, which...