United States v. Biggs/Opinion of the Court
It is adequate to an understanding of the question which are here necessary to be decided in general terms to say that the indictment against the defendants in error charged them with conspiracy in violation of the 2d clause of § 5440, Rev. Stat. (U.S.C.omp. Stat. 1901, p. 3676), which makes it criminal to conspire to defraud the United States 'in any manner or for any purpose.' The means by which it was contemplated that the United States should be defrauded was charged in the indictment to have been the unlawful obtaining by purchase under the timber and stone act of public land of the United States in excess of the quantity authorized by law to be acquired. The timber and stone act, when originally enacted, in June, 1878, related solely to public lands within particular states. 20 Stat. at L. chap. 151, p. 89, U.S.C.omp. Stat. 1901, p. 1545. In 1892, however, that act was amended by striking out the designation of particular states, thus causing the act to apply to 'surveyed public lands of the United States within the public-land states.' 27 Stat. at L. 348, chap. 375, U.S.C.omp. Stat. 1901, p. 1545. As it is essential to have that act in mind we excerpt from the opinion of the court below a succinct but comprehensive and accurate statement of its provisions:

'This act in its 1st section specifies the qualifications of purchasers or entrymen thereunder, and limits the amount of land which each may acquire to 160 acres. The 2d section provides that the applicant, at the time of his application, shall file a written statement in duplicate under oath with the register, describing the land which he desires to purchase and its quality, that he has made no other application under this act, and that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit, and that he has not, directly or indirectly, made any agreement or contract in any way or manner, with any person or persons whatsoever, by which the title which he might acquire from the government of the United States should inure, in whole or in part, to the benefit of any person except himself. It then provides that, if he swears falsely, he shall be guilty of perjury and forfeit the money which he paid for said lands, and all right and title to the same, and any grant or conveyance which he may have made, except in the hands of bona fide purchasers, shall be null and void. The 3d section provides that, on the filing of the applicant's statement, the register shall post a notice of the application in his office for a period of sixty days, and that the applicant shall publish the same notice in a newspaper nearest the location of the premises for a like period of time, and after the expiration of said sixty days, if no adverse claim shall have been filed, the party desiring to purchase shall furnish to the register of the land office satisfactory evidence, 'first, that said notice of the application prepared by the register as aforesaid was duly published in a newspaper, as herein required; secondly, that the land is of the character contemplated in this act, unoccupied, and without improvements,' etc., 'and, upon payment to the proper officer of the purchase money of said land, together with the fees of the register and receiver,' etc., 'the applicant may be permitted to enter said land,' and a patent shall issue thereon. It further provides that any person having a valid claim to any portion of the land may object in writing to the issuance of the patent, and evidence shall be taken thereon as to the merits of said objection.' [157 Fed. 266.]

The indictment contained one count, supported by averments of fourteen overt acts.

The accused after moving to quash on the ground of the illegality of the organization of the grand jury, demurred to the indictment on a number of technical grounds, and upon the contentions that the facts stated in the indictment were insufficient to charge an offense within any statute of the United States, and that, as the indictment had not been found within three years of the commission of the acts therein alleged, the right to prosecute for the same was barred by the statute of limitations. The court held the indictment stated no offense against the United States, and, sustaining the demurrer upon that ground, discharged the accused without day. It was also held that, if the indictment was construed as embracing but one offense, the three years' bar of the statute of limitations was controlling; but that, if it were held that the indictment stated more than one offense, thus saving one of the offenses from the operation of the statute of limitations, the indictment would be void for duplicity.

The reasons which caused the court to reach the conclusions just stated were expounded in an opinion. Therein, in order to determine whether the indictment stated an offense against the United States, the court came first to construe it in the light of the provisions of the timber and stone act. In doing so the court said:

'We find that the indictment sets in where the 2d section of the timber and stone act leaves off. It charges that the purpose of the conspiracy was to 'hire and under agreements' with entrymen have them pay for the lands with moneys of the corporation and have them make entries. It does not charge the date on which such hiring and agreements to make entries were to be made, nor that the entrymen were hired to make applications, nor that said hiring and agreements were prior to any application. The indictment appears to attempt to challenge some acts done by the entrymen under the provisions of § 3 of said act, to wit: The hiring of and agreement with entrymen (who had made application before that under § 2 of the act) to make entries and pay for the lands with moneys furnished by the corporation. . . . But it is said the indictment charges a violation of § 1 of the act in the acquisition of more land by the corporation than there limited. When it comes to that, the indictment does not charge that the several entrymen were disqualified as such, nor that, when they made application, they had outstanding contracts to sell, or were then acting under agreements or hire for said defendants or said corporation. A compliance with the timber and stone act, by the entrymen, in both its spirit and letter, prior to and at time of application, is not challenged by the indictment.'

Having thus construed the indictment, it was then considered whether any offense was therein stated against the United States. In deciding that no offense was stated, it was held that, although it were conceded that the timber and stone act prohibited an entryman or applicant from making an application ostensibly in his own name, but in reality for and on behalf of another, that, if an applicant or entryman made an application in good faith, for his own exclusive use and benefit, the statute contained no prohibition, express or implied, against the right of the entryman, after his application, and before the final action thereon, to sell to another the claim to the land which had arisen from his application. It was therefore decided that such applicant was at liberty to contract with another to convey the land covered by the application and to perfect his entry for the purpose of fulfilling his contract to convey the land after patent. In reaching this conclusion the court was controlled by the decision in Adams v. Church, 193 U.S. 510, 48 L. ed. 769, 24 Sup. Ct. Rep. 512, giving a like construction to the timber culture act of June 14, 1878 (chap. 190, 20 Stat. at L. 113). Having thus decided that the indictment as construed charged the doing of no unlawful act, but simply the exercise of a lawful act, not in any way prohibited, but, on the contrary, impliedly sanctioned, by the statute, it was decided that, under no possible construction, could the acts charged constitute an unlawful conspiracy within the 2d clause of § 5440, Rev. Stat. And for additional reasons expressed in the opinion the conclusions of the court concerning the bar of the statute of limitations and the duplicity of the indictment, if it were so construed as to save it from the statute, were fully expressed.

This writ of error, direct from this court, is prosecuted by the United States under the authority of the act of March 2, 1907 (34 Stat. at L. 1246, chap. 2564, U.S.C.omp. Stat. Supp. 1907, p. 209).

Our right to review the decision below is questioned by the defendants in error on the ground, first, that the court below did not construe, but simply interpreted, § 5440, Rev. Stat., and the provisions of the timber and stone act; and, second, because, although it applied the bar of the statute of limitations, the court did not do so by way of sustaining a plea in bar, but simply incidentally passed upon that question in deciding the demurrer.

The want of merit in the first contention is established by United States v. Keitel, No. 286 of this term, 211 U.S. 370, 53 L. ed. --, 29 Sup. Ct. Rep. 123.

As therefore we have, in any event, jurisdiction to review the action of the trial court in construing the timber and stone act and in fixing the meaning of § 5440, Rev. Stat., in the light of that construction, we presently pass the consideration of the ruling made by the court in respect to the statute of limitations. We do this because, if it be found that the court below was right in its conclusions as to the construction of the timber and stone act and of § 5440, Rev. Stat., its judgment quashing the indictment will be sustained, and its action concerning the statute of limitations will become irrelevant, and will not require examination, unless it be our duty under the act of 1907, which we shall also hereafter consider, to pass upon that question, although its decision will have become wholly unnecessary.

It is also settled by United States v. Keitel, supra, that the right given to the United States to obtain a direct review from this court of the rulings of the lower court on the oubjects embraced within the statute of 1907 does not give authority to revise the action of the court below as to the mere construction of an indictment, and therefore, in the exercise of our power to review on this record, we must accept the construction of the indictment made by the lower court, and test its construction of the statute in that aspect.

While not questioning this general rule, the United States insists that the case here presented is an exception to that rule, because of the contention that the construction given by the court below to the indictment was but the necessary result of the misconstruction which the court applied to the timber and stone act, and hence that a review of the construction given to the indictment is necessarily involved in the determination of the correctness of the construction given by the court to the statute. Conceding the premise, for the sake of argument, the deduction by which it is sought to apply it to the case in hand is, we think, without foundation. It proceeds upon a subtle separation of particular words or phrases in the indictment from the context of that pleading, and the affixing to the words thus separated a penetrating, but, nevertheless, too narrow, significance for the purpose of establishing the proposition relied upon. On the contrary, we think the conclusion cannot be escaped that the construction given by the court below to the indictment was the result merely of the analysis which the court made of the indictment as an entirety, of its appreciation of the nature and character of the acts therein referred to, and of the overt acts alleged, the whole read in the light of the elementary canons of construction applicable to criminal pleadings, and elucidated, as the court expressly stated, by the entire absence of anything in the indictment tending to show that the pleader contemplated alleging the existence of any conspiracy to induce the making of applications to purchase.

Coming to consider the construction given by the court to the timber and stone act as applied to the allegations of the indictment, as interpreted by the court, the correctness of the construction given by the court below to the statute is established beyond controversy by the decision in Williamson v. United States, 207 U.S. 425, 52 L. ed. 278, 28 Sup. Ct. Rep. 163, announced since the decision below was rendered.

The Williamson Case was a prosecution for a conspiracy in violation of § 5440, Rev. Stat., to procure the commission of the crime of subornation of perjury by causing certain affidavits to be made for the purpose of acquiring land under the timber and stone act. At the trial, over exceptions, affidavits as to the bona fides of a number of applicants and of the purpose of each, in making his application, to acquire only for himself, were offered in evidence, and like affidavits which were required by the rules and regulations of the Land Department at the time of the final entry were also offered in evidence. The government insisted that the papers were admissible because the indictment charged a conspiracy to suborn perjury, not only at the time of the application to purchase, but also in the subsequent stage of making the final entry; and that, even if this were not the case, the affidavits made after application were admissible for the purpose of showing the motive which existed at the time the application was made. It was decided that the indictment only charged subornation of perjury at the time of the application. Passing on the alleged contention as to motive, it was held that, in view of the requirements as to an affidavit exacted by the statute to be made at the time of the application, as to the bona fides of the applicant and his intention to buy for himself alone, and the absence of any such requirement in the statute as to the final entry, that the prohibition of the statute applied only to the condition of things existing at the time of the application to purchase, and did not restrict an entryman, after said application was made, from agreeing to convey to another, and perfecting his entry for the purpose, after patent, of transferring the land in order to perform his contract. It was, therefore, held, that the affidavits made at the final stage of the transaction were not admissible to show motive at the time of the applications to purchase, and that any requirements contained in the rules and regulations of the Land Department making an affidavit essential to show bona fides, etc., at the final stage, were ultra vires and void. In passing upon the subject the ruling to the like effect concerning the timber culture act, made in Adams v. Church, supra, was reiterated and approved, and declared to be applicable to the timber and stone act, despite immaterial differences in the phraseology of the two acts. The court, after approvingly referring to Adams v. Church, and after reviewing the timber and stone act, and calling attention to the entire omission of all requirement that statement as to the purpose and intention of the entryman should be made at the date of the final step in the acquisition of the land, said (p. 460): 'Indeed, we cannot perceive how, under the statute, if an applicant has, in good faith, complied with the requirements of the 2d section of the act, and, pending the publication of notice, has contracted to convey, after patent, his rights in the land, his so doing could operate to forfeit his right.'

It is insisted by the government that, however conclusive may be this ruling as to the power of the applicant to sell after application and to perfect his entry for the purpose of enabling him to perform such contract, that such ruling does not conclude the contention that a conspiracy formed to induce an entryman who has made his application to purchase subsequently to agree to convey his interest in the land would be a violation of the statute. But we are constrained to say that this is a mere distinction without a difference. The effect of the ruling in the Williamson Case was to hold that the prohibition of the statute only applied to the period of original application, and ceased to restrain the power of the entryman to sell to another and perfect his entry for the purpose of transferring the title after patent. This being concluded by the decision in the Williamson Case, the distinction now sought to be made comes to this,-that it is unlawful under the statute to conspire to have that done which the statute did not prohibit, and, on the contrary, by implication recognized could be lawfully done without prejudice or injury to the United States in any manner whatever. This also serves to demonstrate that no error was committed by the court below in holding that, under § 5440, Rev. Stat., the acts charged in the indictment could not possibly have constituted a defrauding of the United States in any manner or for any purpose within the intendment of that section.

It remains only to notice the ruling of the court below as to the bar of the statute of limitations. While the act of 1907 gives authority to come directly here to obtain a review of the construction of a statute under the circumstances which the act enumerates, and also authorizes us to review a 'decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy,' we consider that the power given is coincident with the purpose for which it was conferred; that is, to have determined, in a case within the statute, the question whether or not the government is entitled to further prosecute the case, and therefore does not, of course, call upon us to decide every question of the character referred to in the statute, when, by the decision of one of such questions, the case is completely disposed of and the other questions have become so irrelevant as to cause it to be, in our opinion, unnecessary to consider and determine them. Of course, under these circumstances, we intimate no opinion whatever concerning the correctness of the construction adopted by the court below in respect to the statute of limitations.

Affirmed. 

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