United States v. Maid

• Decision Date: 28 April 1902
• Docket Number: 35.
• Citation: 116 F. 650
• Parties: UNITED STATES v. MAID.
• Court: U.S. Court of Appeals — Ninth Circuit

116 F. 650

UNITED STATES v. MAID.

No. 35.

United States District Court, S.D. California, Northern Division.

April 28, 1902

L. H Valentine, U.S. Atty.

Hannah & Miller and W. D. Crichton, for defendants.

WELLBORN District Judge.

Indictment for perjury, under section 5392, Rev. St. U.S., which provides that 'every person, who, having taken an oath before a competent * * * officer, * * * in any case in which a law of the United States authorizes an oath to be administered, that * * * any material * * * declaration * * * by him subscribed is true, wilfully, and contrary to such oath * * * subscribes any material matter, which he does not believe to be true, is guilty of perjury, ' etc. The alleged crime is predicated of a nonmineral affidavit accompanying a homestead application. Among other objections to the indictment, the defendant urges that said affidavit was unauthorized by any law of the United States, and immaterial; citing U.S. v. Eaton, 144 U.S. 677, 12 Sup.Ct. 764, 36 L.Ed. 594; U.S. v Manion (D.C.) 44 F. 800; U.S. v. Bedgood (D.C.) 49 F. 54; and U.S. v. Howard (D.C.) 37 F. 666. Plaintiff concedes that there is no act of congress expressly requiring homestead applications to be accompanied by nonmineral affidavits, but quotes from circular of the general land office issued October 30, 1895, page 80, rule 24, as follows: 'In all entries of non-mineral lands in the states of * * * California, * * * a non-mineral affidavit is required,' and claims that said rule, promulgated by the land office, has the force of law; citing sections 441, subd. 2, 453, and 2478, Rev. St. U.S.; Caha v. U.S., 152 U.S. 211, 14 Sup.Ct. 513, 38 L.Ed. 415; U.S. v. Hearing (C.C.) 26 F. 747; Cosmos Exploration Co. v. Gray Eagle Oil Co. (C.C.) 104 F. 45; Id., 50 C.C.A. 79, 112 F. 4. A rule of a department, to be valid, must be consistent with the legislation of congress.

In Cosmos Exploration Co. v. Gray Eagle Oil Co., supra, on appeal, 50 C.C.A. 87, 112 F. 11, the court says:

'The commissioner of the general land office has authority to make regulations respecting the disposal of the public lands, and such regulations, when not repugnant to the acts of congress, have the same force and effect of laws.'

The circuit court of appeals for the Seventh circuit has said:

'We hesitate, of course, to interpret a statute contrary to the construction put upon it by the interior department, and to the rules and regulations adopted by the department to carry out its provisions; but when the construction of the department is clearly wrong, and its rules and regulations have the effect of distinctly changing rights created under the statute, amounting to a denial to the appellant of one of her rights, the occasion for hesitation ceases. Morrill v. Jones, 106 U.S. 466, 1 Sup.Ct. 423, 27 L.Ed. 267. ' Hoover v. Salling, 49 C.C.A. 30, 110 F. 47.

The supreme court has definitely settled the question as follows:

'The secretary of the treasury cannot, by his regulations, alter or amend a revenue law. All he can do is to regulate the mode of proceeding to carry into effect what congress has enacted. In the present case we are entirely satisfied the regulation acted upon by the collector was in excess of the power of the secretary. The statute clearly includes animals of all classes. The regulation seeks to confine its operation to animals of 'superior stock.' This is manifestly an attempt to put into the body of the statute a limitation which congress did not think it necessary to prescribe. Congress was willing to admit, duty free, all animals specially imported for breeding purposes. The secretary though this privilege should be confined to such animals as were adapted to the improvement of breeds already in the United States. In our opinion, the object of the secretary could only be accomplished by an amendment of the law. That is not the office of a treasury regulation. ' Morrill v. Jones, 106 U.S. 467, 1 Sup.Ct. 424, 27 L.Ed. 268.

In a later case occurs the following reference to the one last cited:

'It was said by this court in Morrill v. Jones, 106 U.S. 466, 467, 1 Sup.Ct. 423, 27 L.Ed. 267, 268, that the secretary of the treasury cannot, by his regulation, alter or amend a revenue law, and that all he can do is to regulate the mode of proceeding to carry into effect what congress has enacted. Accordingly, it was held in that case, under section 2505 of the Revised Statutes, which provided that live animals specially imported for breeding purposes from beyond the seas should be admitted free of duty upon proof thereof satisfactory to the secretary of the treasury, and under such regulations as he might prescribe, that he had no authority to prescribe a regulation requiring that, before admitting the animals free, the collector should be satisfied that they were of superior stock, adapted to improving the breed in the United States. Much more does this principle apply to a case where it is sought substantially to prescribe a criminal offense by the regulation of a department. It is a principle of criminal law that an offense which may be the subject of criminal procedure is an act committed or omitted 'in violation of a public law either forbidding or commanding it.' 4 Am. & Eng. Enc. Law, 642; 4 Bl. Comm. 5.' U.S. v. Eaton, supra.

Section 2290 of the Revised Statutes of the United States prescribes in clear and precise terms the requisites to a homestead entry, and is as follows:

'Sec. 2290. The person applying for the benefit of the preceding section shall, upon application to the register of the land-office in which he is about to make such entry, make affidavit before the register or receiver that he is the head of a family, or is twenty-one years or more of age, or has performed service in the army or navy of the United States, and that such application is made for his exclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person; and upon filing such affidavit with the register or receiver, on payment of five dollars when the entry is of not more than eighty acres, and on payment of ten dollars when the entry is for more than eighty acres, he shall thereupon be permitted to enter the amount of land specified.'

Rule 24 of the general land office, above quoted, although a valid regulation of selections in lieu of relinquished lands in forest reservations (Cosmos Exploration Co. v. Gray Eagle Oil Co., supra) in so far as it requires nonmineral affidavits in homestead entries, conflicts with the last clause of said section 2290, which declares that, upon filing the affidavit therein prescribed, which is wholly...