United States v. Morehead/Opinion of the Court
Morehead was indicted under § 37 of the Criminal Code [35 Stat. at L. 1096, chap. 321, Comp. Stat. 1913, § 10,20] for conspiring with others to commit an offense against the United States. The offense contemplated by the conspirators is subornation of perjury (Criminal Code, § 126) in connection with soldiers' declaratory statements, to be filed by defendant as agent, covering public lands under the Homestead Law. The perjury set forth in the indictment consists in false swearing before notaries public and clerks of state courts to declaratory statements. The parts of the statement alleged to be false are those which declare:

(1) That the claim is made for his [the applicant's] exclusive use and benefit, for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person.

(2) That the agent has no right or interest, direct or indirect, in the filing of such declaratory statement.

The district court sustained a demurrer on the ground that the indictment did not charge a crime, holding that there was no law which required affidavits to soldiers' declaratory statements; that the Land Department was not authorized to exact them; that consequently no law 'authorizes an oath to be administered' to such affidavits; and, as perjury is possible only when an oath is authorized to be administered, the procuring of these false oaths could not be subornation of perjury, nor an agreement to secure them a conspiracy to suborn perjury. The case comes here on writ of error under the Criminal Appeals Act (March 2, 1907, chap 2564, 34 Stat. at L. 1246, Comp. Stat. 1913, § 1704).

The Homestead Law (Rev. Stat. §§ 2304-2309, Comp. Stat. 1913, § 4592-4594, 4602, 4603, 4605, embodying Act of June 8, 1872, chap. 338, 17 Stat. at L. 333) does not prescribe whether or not an affidavit shall accompany a soldier's declaratory statement. The affidavit is prescribed by a regulation of the Commissioner of the General Land Office, promulgated with the approval of the Secretary of the Interior.  It is clear that a charge of perjury may be based upon a valid regulation of the General Land Office requiring an affidavit if the oath be taken 'before a competent tribunal, officer, or person.' United States v. Smull, 236 U.S. 405, 59 L. ed. 641, 35 Sup. Ct. Rep. 349. The question obviously arising here is whether the law authorized the oath to be administered. Another question-whether it was administered by a competent tribunal, officer, or person-was treated by both parties as requiring decision. Assuming without specially determining the occasion for passing upon the second question, we proceed to consider both.

1. Whether an affidavit may be required to a soldiers' homestead declaratory statement.

The Homestead Law  gives to every soldier who served in the Army of the United States during the War of the Rebellion for ninety days, was honorably discharged and remained loyal to the government, the right, upon certain conditions, to enter upon 160 acres of the public land as a homestead and receive a patent therefor. To comply with these conditions the applicant must make actual entry,  settlement, and improvement; and he must, on applying to enter the land, make and file the affidavit, as provided in Rev. Stat. § 2290, Comp. Stat. 1913, § 4531, that such application is honestly and in good faith made for the purpose of actual settlement and cultivation, and not for the benefit of any other person. Furthermore, in order to obtain a certificate or patent, he must, under Rev. Stat. § 2291, Comp. Stat. 1913, § 4532, make proof of his residence for the full period, and an affidavit 'that no part of such land has been alienated.' The filing of a declaratory statement is not a necessary step in acquiring title to land. It relates to a privilege, akin to pre-emption, by which he may secure, prior to the entry under § 2290, Comp. Stat. 1913, § 4531, a preferential right to acquire, under the homestead law, the particular tract located on. The privilege is exercised by filing the declaratory statement with the register; and if exercised, lapses unless, within six months thereafter, the soldier makes entry and actually commences settlement and improvement. See Re Hotaling, 3 Land Dec. 17, 20; Stephens v. Rey, 5 Land Dec. 133, 134. To render this privilege readily available to soldiers living at a distance, authority is given (Rev. Stat. § 2309, Comp. Stat. 1913, § 4605)  to 'enter upon the homestead by filing a declaratory statement,' 'as well by an agent as in person.' Thus the soldier can be assured of the selection of an advantageous homestead before perfecting his plan for removing to his new home.

It is a matter of common knowledge that this special privilege, granted to facilitate the acquisition by soldiers of homesteads in grateful recognition of patriotic service, was soon perverted into an instrument of fraud. Soldiers' declaratory statements, acquired by so-called agents in large numbers, became the subject of extensive speculation. They were used as a means of preempting choice lands for a period of six months with a view merely to selling relinquishments of locations to persons desiring to acquire public lands under the preemption or general homestead laws. (See Re Gardner, 1 Land Dec. 79.) To stay this abuse the General Land Office issued, on December 15, 1882, the circular concerning 'Soldiers' Homestead Declaratory Statements' (1 Land Dec. 648),  prescribing requirements which have since remained in force and are embodied in substance in the regulation of October 11, 1910.

Defendant contends that this regulation, which has been enforced continuously for nearly thirty-five years, is invalid. Since the Land Department is expressly charged with the duty of enforcing the public land laws by appropriate regulations,  and the regulation in question was duly promulgated, the assertion of its invalidity must be predicated either upon its being inconsistent with the statutes or upon its being in itself unreasonable or inappropriate. That the requirement of the soldier's affidavit to the fact essential to the existence of any right of the applicant under the law is both reasonable and appropriate can scarcely be doubted. United States v. Smull, 236 U.S. 405, 411, 59 L. ed. 641, 643, 35 Sup. Ct. Rep. 349; United States v. Bailey, 9 Pet. 238, 255, 9 L. ed. 113, 120. But defendant urges that the regulation is inconsistent with the statute, in that it adds to the requirements of the statute still another condition to be performed before the soldier can acquire his homestead; and hence is legislation, not regulation. But the regulation does not add a new requirement in exacting the affidavit, as in Williamson v. United States, 207 U.S. 425, 458-462, 52 l. ed. 278, 294-297, 28 Sup. Ct. Rep. 163. It merely demands appropriate evidence that the proceeding is initiated-as the statute requires it must be throughout conducted-in good faith, for the single purpose of acquiring a homestead.

Great stress is laid upon the reference to 'pre-emption cases' in Rev. Stat. § 2309, Comp. Stat. 1913, § 4605, which provides that the soldier 'may as well by an agent as in person enter upon such homestead by filing a declaratory statement as in pre-emption cases.' In proceedings under the pre-emption laws (Rev. Stat. §§ 2275, 2276, 2286, 2288, Comp. Stat. 1913, §§ 4860, 4861, 4869, 4535, repealed by Act of March 3, 1891, chap. 561, 26 Stat. at L. 1095, Comp. Stat. 1913, § 5116), an affidavit was not required either by the statute or by regulation (see 10 Land Dec. 687); and it is said that it cannot, therefore, be required under the provisions for soldiers in the Homestead Law. But the reference in the latter statute carries no such implication. It was inserted for a different purpose. The general homestead law does not give the privilege of securing, in advance of formal entry, a preferential right to a particular location. That is, it gives no right to prior selection; and none accrues from prior occupation save such as is given by § 3 of the Act of May 14, 1880, chap. 89, 21 Stat. at L. 140, Comp. Stat. 1913, § 4538. Nor does the pre-emption law give a privilege to acquire, merely by selection, a preferential right to a particular parcel of land. But under it, the person who actually 'settles and improves' land may, in advance of entry under Rev. Stat. § 2262, acquire a preferential right over others, to the particular parcel, by filing with the register within thirty days thereafter (Rev. Stat. § 2264) 'a written statement describing the land settled upon.' To that 'written statement' the 'declaratory statement' provided for by the provision for soldiers in the Homestead Law may be likened; but the conditions under which it is filed are very dissimilar. The pre-emptioner must personally, before 'filing,' have actually entered upon the land, must have commenced settlement and improvement,-acts which, in themselves, furnish evidence that the proceeding has been initiated in good faith. The soldier homesteader, on the other hand, need do nothing whatever to obtain a six months' preferential right save file the declaratory statement, and that may be done by an agent,-a situation calling for extrinsic evidence by affidavit of the applicant's good faith. Good reasons thus exist for a difference in requirements in the two classes of cases; but the power of the Land Department to require an affidavit to the declaratory statement even in pre-emption cases, as it did to declaratory statements under the Coal Land Law, seems not to have been questioned. (Rev. Stat. §§ 2348, 2349, Comp. Stat. 1913, §§ 4660, 4661; 1 Land Dec. 687, &Par;28,33.) The regulation calling for an affidavit to a soldier's declaratory statement under the Homestead Law, unlike that considered in United States v. George, 228 U.S. 14, 57 L. ed. 712, 33 Sup. Ct. Rep. 412, is thus a regulation entirely consistent with the statutory provisions; and being also appropriate, is valid.

2. Whether state officers are authorized to administer the oath.

The purpose of Congress in allowing filings to be made by an agent was to facilitate the acquisition of homesteads by soldiers living at a distance from the land to be settled on. To their declaratory statements the several statutes  which provide for the administering of oaths by registers and receivers, or by the clerks of courts or United States commissioners in the district wherein the land is situated, are obviously not exclusively applicable, if applicable at all. And plainly the provision of Rev. Stat. § 2293, Comp. Stat. 1913, § 4545, relating to affidavits before the commanding officers of soldiers actually engaged in service, is inapplicable. The requirement of an affidavit to the declaratory statement, to be made by soldiers living elsewehere than in the land district, can be complied with only if an oath before some officer other than those specifically named in those statutes is recognized as being within the authority of law. It follows that, to carry out the duties imposed by law, the Land Department was called upon to make appropriate provision for the administering of oaths in such cases; and the provision that soldiers' declaratory statements, when filed by agent, 'may be executed before any officer having a seal and authorized to administer oaths generally,' is both appropriate and 'not inconsistent with law.' Ever since the decision in United States v. Bailey, 9 Pet. 238, 255, 9 L. ed. 113, 120, it has been held that an oath administered by a state magistrate, in pursuance of a valid regulation of one of the departments of the Federal government, though without express authority from Congress, subjects the affiant to the penalties of the Federal statute against false swearing. See Caha v. United States, 152 U.S. 211, 218, 38 L. ed. 415, 417, 14 Sup. Ct. Rep. 513.

The indictment charges a crime under the laws of the United States. Judgment of the District Court is reversed and the case is remanded for further proceedings in conformity with this opinion.

It is so ordered. 

Notes