211 U.S. 370
UNITED STATES, Piff. in Err.,
F. W. KEITEL, Arie Keitel, Frank P. Fay, et al.
Argued October 22, 23, 26, 1908.
Decided December 14, 1908.
[211 U.S. 370, 372] Solicitor General Hoyt, Attorney General Bonaparte, and Messrs. Edwin W. Lawrence and Ernest Knaebel for plaintiff in error.
[211 U.S. 370, 375] Messrs. Edwin H. Park, Frederick N. Judson, Tyson S. Dines, and John F. Green for defendants in error.
Mr. Justice White delivered the opinion of the court:
The United States prosecutes this writ of error upon the assumption that the decision of the district court was based upon an erroneous construction of the statutes upon which the indictment was founded, and therefore, by virtue of the act of March 2, 1907, chap. 2564, 34 Stat. at L. 1246, U. S. Comp. Stat. Supp. 1907, p. 209, the right ob- [211 U.S. 370, 380] tained to review the decision by writ of error direct from this court.
The indictment contained two counts. Without quoting them fully, it suffices to say, for the purposes of the questions which we are called upon to decide, if we have authority to decide them, that the first count charged that the eleven defendants illegally conspired, in violation of 5440, Rev. Stat. (U. S. Comp. Stat. 1901, p. 3676), with certain named persons and others unknown, to illegally obtain the title of certain coal lands belonging to the United States. The conspiracy was to be effected by procuring various persons as agents to enter coal lands in their own name, ostensibly for their own benefit, but in reality for the use and benefit of the accused and a named organization; the purchases being made by the agents as above stated, not with their own money, but with money of the accused or the corporation, and under agreements to convey the title, when acquired, to the accused or to the corporation, thus enabling the accused and the corporation to obtain coal lands belonging to the United States in excess of the quantity which they were allowed by law to enter. Copious averments were made in the count as to the use of alleged false, fictitious, and fraudulent papers in making the entries in question, which papers, as filed and entries made, had for their object and purpose to deceive the land officers of the United States, so as thereby to cause them to allow the entries in the name of the agents on the supposition that the entries were for the benefit of the entrymen, and which entries they would not have had the power to allow under the law, and would not have allowed, had the truth been disclosed. The second count charged an illegal conspiracy to do acts made criminal by 4746, Rev. Stat. (U. S. Comp. Stat. 1901, p. 3279), in making and presenting, and causing to be made and presented, in connection with the entries of coal land, certain false, forged, fictitious, etc., affidavits and papers.
To clear the approach to the issues to be decided we bring into view the statutes which must be passed on. Section 5440, relating to conspiracies, was amended May 17, 1879 [21 Stat. at L. 4, chap. 8, U. S. Comp. Stat. 1901, p. 3676], by chang- [211 U.S. 370, 381] ing the penalties imposed by the section as primarily enacted. As amended this section is as follows:
The text of 2347, 2348, 2349, and 2350 (U. S. Comp. Stat. 1901, pp. 1440, 1441), which provide for the sale of coal lands belonging to the United States, is as follows:
Section 2351 provides for conflicting claims in designated cases, and thus concludes:
Section 4746 of the Revised Statutes, embraced in the title 'Pensions,' was amended by the act of July 7, 1898 (30 Stat. at L. 718, chap. 578, U. S. Comp. Stat. 1901, p. 3279). The section, as amended, is as follows, the amendments which the law of 1898 enacted being printed in italics:
On behalf of the various defendants motions to quash the indictment were filed, which the court granted. The grounds of demurrer were substantially the same, many being addressed to technical attacks upon the sufficiency of the indictment; but in each of the motions the validity of the indict- [211 U.S. 370, 384] ment was assailed upon the ground that neither count stated an offense within the statutes when properly understood.
The court, in the reasons given by it for granting the motions to quash, substantially held as follows:
1st. That the first count related exclusively to cash entries of coal lands under 2347, Rev. Stat. That under this section no affidavits or papers were required other than the application to purchase, and therefore that all the allegations of the count respecting false and fictitious affidavits, papers, etc., related to documents required solely by the rules and regulations of the Land Department, which, not being expressly authorized by the statute, could not form the basis of a criminal conspiracy. The papers were therefore put out of view.
2d. That the coal-land statutes did not prohibit one who was qualified to enter coal lands from making a cash entry of such lands in his own name, ostensibly for himself, but really for the benefit of another, who was disqualified to directly make the entry, even although the ostensible entryman, in making the purchase in his own name, was really acting as the agent of the disqualified person, paid the price of the land with the money of such disqualified person, and made the entry under an obligation, on the completion of the purchase from the United States, to transfer the land to such disqualified person.
3d. From the import of the coal-land statutes thus announced it was decided that a conspiracy to acquire coal lands from the United States by the means stated was not a violation of 5440, as the acts alleged did not constitute a defrauding of the United States within the meaning of the word 'defraud' as used in the second clause of the section, because that word must be interpreted in a restricted sense, and be given only its assumed common-law significance, and could not be used so as to embrace acts not expressly forbidden by law, upon the theory that their performance was contrary to a public policy which it might be assumed caused the enactment of the statutes. [211 U.S. 370, 385] 4th. It was directly held that the conclusions just stated were not in conflict with a previous adjudication of this court, construing the coal-land laws, as the decision had been rendered in a civil controversy, and could not be extended and carried over so as to control the construction of the statute in a criminal prosecution, thus 'spelling out' a crime where none was expressly declared in the statute.
5th. As to the second count, it was decided that 4746 embraced only affidavits, etc., relating to pension and bounty land claims, and the charge of a conspiracy to commit a crime in violation of the section in question could not be based upon allegations of the use of false and fictitious papers, etc., in connection with entries of coal lands.
At the threshold our jurisdiction is questioned because it is asserted the case does not come within the act of March 2, 1907. The grounds of this contention are as follows:
First. That the court below merely held that the facts charged in the indictment were not within the statute, and therefore the indictment, and not the statute, was interpreted or construed.
Second. Because, in any event, the court below did not construe, but merely interpreted, the statutes.
As to the first ground, we dispose of it simply by saying that the analysis which we have hitherto made of the decision of the court below demonstrates that the contention is devoid of all merit.
In support of the second ground, it is insisted that the construction of a statute is one thing and its interpretation another and different thing. That abstractly there may be a difference between the two terms is no denied in argument by the United States, and finds support in works of respectable authority.
But, conceding the abstract distinction, and granting, for the sake of the argument only, that the conclusion of the [211 U.S. 370, 386] court below might properly be classed, abstractly speaking, as an interpretation, and not a construction, of the statute, we think the contention without merit. It may not be doubted that, in common usage, interpretation and construction are usually understood as having the same significance. This was aptly pointed out in Cooley's Constitutional Limitations, 6th edition, where, after stating the theoretical difference, it is observed (p. 52): 'In common use, however, the word 'construction' is generally employed in the law in a sense embracing all that is properly covered by both, when each is used in a sense strictly and technically correct.' We think, when the context of the act of March 2, 1907, is taken into view, and the remedial character of the act is given due weight, it becomes apparent that the word 'construction' is employed in the statute in its common signification, and hence includes both construction and interpretation, although there may be an abstract difference between them. This being so, it follows that we have jurisdiction to review the action of the court in quashing the indictment.
Putting aside for the moment technical objections to the sufficiency of the indictment, it is conceded by both sides that if the statutes which the court below construed be given the meaning which the United States, by the assignments of error, assert is the correct one, an offense against the United States was stated in both counts of the indictment. The construction of the statutes, therefore, is the real question for decision. We propose to examine the statutes applicable to each count separately; and, in doing so, to weigh the conflicting contentions urged in argument bearing on the question of the true construction. We reserve, however, for final consideration various contentions relating merely to the construction of the indictment as a pleading, by which the United States contends that the court below was wrong, even if, for the sake of argument, it be assumed that its construction of the statutes was right, and by which the defendants in error contend that the order quashing the indictment was right, even if the court was [211 U.S. 370, 387] wrong in its view of the law, because of defects in the indictment.
1. The first count.
This count requires us to consider only the conspiracy provision, 5440, and the coal-land provisions, 2347, 2348, 2349, and 2350. As the applicability of 5440 to the facts charged largely depends upon whether those acts were forbidden by the sections last mentioned, we proceed first to their consideration. Under these sections the question is, Do they prohibit a person who is disqualified from acquiring additional coal lands from the United States, because he has already purchased the full quantity permitted by law, from employing one who would be qualified if he made any entry of coal land in his own behalf, to make such entry ostensibly for himself, but really as agent for the disqualified principal, to pay for the land with money of such principal under the obligation, when the title has been obtained by purchasing from the United States, to turn over the land purchased to the concealed and disqualified principal? That the statute does expressly prohibit such a transaction we think is foreclosed by a previous decision of this court. Before coming to so demonstrate, however, in view of the contrary conclusion reached by the court below and the earnestness with which the correctness of that conclusion has been pressed at bar, we shall briefly consider the subject upon the hypothesis that it is open, and not foreclosed. Beyond question, by 2347, Rev. Stat ., everyone possessing the qualifications of age and citizenship therein stipulated is entitled, upon application and on payment of the price fixed by law, to purchase in his own behalf 160 acres of coal land, and every association of persons possessing the qualifications therein mentioned is entitled to purchase 320 acres of such land. This right, however, to thus purchase, is not uncontrolled, since it is limited by the 2350, saying:
The express command that the preceding sections shall be held to authorize only one entry by the same person or association of persons causes the grant to purchase not to embrace more than one entry by the same person; and as the right to purchase the coal land did not exist except by the authority conferred by the statute, it follows that the express provision excluding the right to do a particular act is, both in form and substance, a prohibition against the doing of such act. To hold that this prohibition does not exclude the existence in a disqualified person of a power to employ an agent to make a second entry, to furnish him with the money to pay for the land, under an obligation, when he has bought from the United States, to transfer the land to the disqualified person, would require us to say that the power was given to do that which the statute, in express terms, declares shall not be done. In other words, it would compel us to decide that an act done for a disqualified person by an agent acting for him and for his exclusive benefit was not the act of the disqualified principal. But this would be to nullify the prohibition upon the inconceivable hypothesis that the act of a duly authorized agent was not the act of his principal. To escape this impossible result it is insisted in argument that where a person qualified to purchase buys in his own name, without disclosing that he is a mere agent for a disqualified person, as he, the agent, thereby exhausts his individual right, the purchase must be treated as his, and not that of the undisclosed principal. This, however, does not change the situation, but simply seeks to avoid it by the statement of a distinction without a difference, since it again but reads the prohibition out of the statute by [211 U.S. 370, 389] causing it to be inoperative if the disqualified person elects to do by another, his agent, that which the statute forbids him to do. True, the statute imposes no limitation on the right of a purchaser who has acquired coal land from the United States to sell the same after he has become the owner of the land. The absence, however, of a limitation on the power to sell after acquisition affords no ground for saying that the express prohibition of the statute against more than one entry by the same person should not be enforced according to its plain meaning. This clearly follows, since the right to sell that which one has lawfully acquired neither directly nor indirectly implies the authority to unlawfully acquire in violation of an express prohibition.
It is elaborately argued that the laws as to the sale of coal lands were originally embraced in the general statutes regulating the disposition of mineral lands, in which there were no limitations whatever as to the number of entries that a single entryman might make. With this genesis in mind it is urged that the sole purpose of the prohibition forbidding more than one entry by the same person, inserted in the coal- land laws when that subject came to be separately dealt with, was to secure to every citizen the right, if he chose, to make one entry; in other words, to prevent the monopolization by one person by means of many entries of the whole or a vast part of the coal fields belonging to the United States. From this it is insisted the prohibition forbidding more than one entry by the same person should not be held to embrace an entry made by a qualified person for the benefit and as the agent of a disqualified one when the qualified person did not disclose the fact that he was acting as an agent. Conceding, for the sake of argument, the premise, we do not perceive its relevancy. That is to say, we do not comprehend how such concession lends support to the proposition that the prohibition against more than one entry by the same person should be disregarded by allowing more than one entry by the same person, if only that person chose, after making one entry in his own name, [211 U.S. 370, 390] to cause other and subsequent entries ad libitum to be made for his benefit by his agent, with his money, and for his exclusive account.
But if the mind could bring itself, upon grounds of the supposed public policy of the statute, to disregard the prohibition which it expressly contains, the argument here advanced, instead of conducing to that result, leads directly to the contrary. The purpose of the prohibition being, as the argument insists, to keep open the opportunity to every citizen to make one entry for himself, thus discouraging monopoly, it is obvious that that public purpose would be frustrated by allowing a person to make one entry in his own name and thereafter as many as he chose through his agents and for his exclusive benefit. It is a misconception to assume that there is any real identity between a purchase made by a qualified person in his own name and for himself with a purchase made by such person ostensibly for himself but really as the agent of a disqualified person. In the one case the person securing coal land from the United States for himself is free to dispose of the land after acquisition as he may deem best for his interest and for the development of the property acquired. In the other case, the ostensible purchaser acquires with no dominion or control over the property, with no power to deal with it free from the control of the disqualified person for whose benefit the purchase was made.
And the legislation of Congress subsequent to the coal-land laws indicates that Congress contemplated, in enacting the prohibition against more than one entry, the distinction between an entry made by one for himself, with the full power of disposition after entry, and an entry made by one ostensibly for himself, but in reality for another. Thus, under the timber culture act of June 14, 1878, chap. 190, 20 Stat. at L. 113, which conferred authority upon citizens of the United States, or persons who had declared their intention to become such, to make one entry of not exceeding one quarter section of land for the cultivation of timber, the statute was sedulous to require [211 U.S. 370, 391] that the person desiring to hold and cultivate the land should, at the time of making his entry, swear in his application that his filing and entry was made for his own exclusive use and benefit.
And the public policy lying at the foundation of the prohibition against an entry of land for the conceded benefit of another, whilst leaving full power of disposition in one who acquired the land in compliance with the statute, was pointed out in United States v. Budd, U. S. 154, 36 L. ed. 384, 12 Sup. Ct. Rep. 575, where, in considering the timber and stone act of June 3, 1878, chap. 151, 20 Stat. at L. 89, U. S. Comp. Stat. 1901, p. 1545, it was said (p. 163):
We shall not further pursue the analysis, as we think it is patent that the whole argument rests upon a plain disregard of the prohibition which the statute contains, or seeks to render that prohibition nugatory by contradictory assumptions; that is to say, by assuming that things which are one and the same are wholly different; and, on the other hand, by asserting that things which are different are one and the same. This is said because such is the result of the contention that a purchase made by one through his agent is, in legal effect, a different thing from a purchase made by the principal; and, on the other hand, by the proposition that a purchase made by one for his own account is not different from a purchase made by the same person, not for his own account, but for another.
But, as we have hitherto observed, the review of the contentions as an original question was not essential, because their want of merit affirmatively appears from a prior adjudication of this court. The case referred to is United States v. Trinidad Coal & Coking Co. 137 U.S. 160 , 34 L. ed. 640, 11 Sup. Ct. Rep. 57. The United States sued to [211 U.S. 370, 392] annul certain patents to coal lands on the ground that the land had been purchased by officers and employees of a corporation when the corporation itself was disqualified, because it had already made one entry. The court below had sustained a demurrer to the bill. Its decree was reversed and it was expressly decided that the entries made both by the officers of the corporation and its employees were void. The contention was urged that the employees, having each a right to make an entry for his own account, it was not unlawful to do so for the benefit of the corporation. This was expressly negatived, the court saying (p. 167):
Because the statute was thus construed in a civil cause affords no reason for saying that the authoritative construction of the statute is not to be applied in a criminal case. It is true that, in the reasoning of the opinion, the public policy upon which the prohibition of the statute was founded was pointed out; but this does not justify the contention that the decision was rested, not upon the prohibition, but upon public policy alone.
The contention that the rules and regulations of the General Land Office or decisions made thereunder have recognized [211 U.S. 370, 393] the right of a qualified person to enter coal lands in his own name, ostensibly for himself, but really for a disqualified person, under the obligation to transfer the land after purchase to such person, we think finds no semblance of support, either in the rules and regulations or in the decisions of the Department.
The meaning of the coal-land statutes being thus fixed, the consideration of the conspiracy statute, 5440, Rev. Stat., is free from difficulty. It will be observed that the section embraces two classes of conspiracies: the first, 'to commit any offense against the United States;' and the other, 'to defraud the United States in any manner or for any purpose.' The count we are now considering, it is not disputed, was framed upon the second clause. The proposition urged in argument that a charge of the commission of crime cannot constitutionally be predicated upon the averment of a conspiracy to defraud under the second clause, unless the acts charged were antecedently made criminal, is without merit, and is foreclosed by Hyde v. Shine, 199 U.S. 62 , 50 L. ed. 90, 25 Sup. Ct. Rep. 760, wherein it was expressly held that a prosecution would lie upon the charge of a conspiracy to obtain, by fraudulent practices, public lands of the United States. And, indeed, the ruling in that case was but the reiteration of the prior rulings in United States v. Hirsch, 100 U.S. 33 , 25 L. ed. 539, and Dealy v. United States, 152 U.S. 539 , 38 L. ed. 545, 14 Sup. Ct. Rep. 680.
The contention that the word 'defraud' must be confined to its common- law significance, and hence cannot embrace the acts here charged, is without merit, even if we concede, for the sake of argument, that the word has a common-law meaning, and that that meaning would be implied if the word stood alone in the statute. This follows because the argument rests upon the assumption that the word 'defraud' stands alone in the statute, and ignores the broader meaning which must result from the words 'in any manner or for any purpose,' by which the word 'defraud' is accompanied in the statute. Besides, the contention is foreclosed by United States v. Trinidad Coal & Coking Co., where transactions of the very [211 U.S. 370, 394] nature of those here charged were declared to be a fraudulent obtaining of the lands of the United States, and, indeed, transactions generally of a like character formed the subject-matter of the ruling in Hyde v. Shine.
The unsoundness of the argument that as when the prohibited entries were made the price of the lands was paid to the United States, therefore the United States could not have been defrauded, is refuted by its mere statement. If it were true, then in every case, however flagrant, where the lands of the United States were procured in violation of express prohibitions of law, the element of fraud would cease to exist by the mere payment of the price; that is to say, the successful operation of the fraud would deprive the transaction of its fraudulent character. But the inherent weakness of the contention need not be further pointed out, because its want of merit is conclusively established by the ruling in Hyde v. Shine, where a like contention was decided to be without foundation.
The attempt to distinguish this case from Hyde v. Shine, upon the theory that there the parties obtaining the land were disqualified, whilst in this they were not, rests upon the misconstruction of the coal-land statutes which we have already pointed out,-a misconstruction which we have seen led the court, in its ultimate conclusion, erroneously to say that the entrymen who acted as the agents of the disqualified persons or corporation were not forbidden by the statute to act as they did, because they might have made an entry for themselves.
Nor do we deem it necessary to do more than briefly refer to the elaborate statements at bar concerning constructive crimes and the fear which also found expression in the opinion below, that, if the words 'to defraud in any manner or for any purpose' receive a broad significance, charges of crime may be hereafter predicated upon acts not prohibited and innocuous in and of themselves, and which, when they were committed, might have been deemed by no one to afford the basis of a criminal prosecution. It will be time enough to [211 U.S. 370, 395] consider such forbodings when a case arises indicating that the dread is real, and not imaginary. That they are mere phantoms when applied to the case here presented results from the obvious consideration that the conspiracy charged had for its purpose the doing of acts which were in clear violation of the direct prohibition of the coal-land laws,-a prohibition whose meaning and effect had been unmistakably announced and applied by a decision of this court rendered many years before the formation of the conspiracy here charged. The cogency of these considerations becomes more pointedly manifest when it is borne in mind that the purpose and necessary effect of the conspiracy complained of was to obtain the lands of the United States by the suppression of facts which, had they been disclosed, would have rendered the acquisition impossible.
2. The second count.
The court below considered that the second count was framed solely upon the first clause of 5440; that is, it held that the count charged the formation of a conspiracy to commit an offense against the United States through a violation of 4746; and because of the construction given to that section, it was decided that the count stated no offense. In testing the count in this aspect, we must primarily fix the meaning of 4746; as violations of that section were charged to have been the subject of the alleged conspiracy.
It was conceded by the United States in argument, and indeed it could not have been in reason denied, that the section in question, as originally embodied under the head of 'Pensions' in the Revised Statutes, related exclusively to pension or bounty land claims. No crime, therefore, could have been predicated under the original section upon the affidavits or other papers used in making the coal-land entries, as alleged in the indictment. The contention, therefore, as now made by the United States, to sustain the second count, rests upon the proposition that the amendment to 4746 by the act of July 7, 1898 (30 Stat. at L. 718, chap. 578, U. S. Comp. Stat. 1901, p. 3279), had the effect of bringing within that section sub- [211 U.S. 370, 396] jects to which, prior to the amendment, the section in no manner related. Turning to the text, which we have previously quoted, with the provisions incorporated by the amending act printed therein in italics, it will be observed that every enumeration or description of new acts or papers in addition to those embraced in the section prior to the amendment, alone concern pension or bounty land claims. The argument as to the broad scope of the statute in its present form rests therefore alone upon the proposition that because the amendatory statute, in repeating the original words, viz., 'concerning any claim for pension or payment thereof, or pertaining to any other matter within the jurisdiction of the Commissioner of Pensions,' adds to them the following, viz., 'or of the Secretary of the Interior,' therefore the statute now embraces not only acts done in connection with pension or bounty land claims, but all acts of the prohibited character as to any matter coming before the Secretary of the Interior, or subject to so come, entirely without reference to whether they were in pension or bounty land claims or proceedings. But to adopt this latitudinarian construction would cause the statute to create a multitude of new and substantive crimes, wholly disconnected with claims for pensions or bounty land, with which latter it was alone evidently the purpose of the original as well as the amendatory statute to deal. We think to state the proposition is in effect to answer it. When the original text and the amendments which were made are taken into view, the conclusion inevitably follows that the purpose of the amendment was but to more specifically define the pension or bounty land papers, etc., with which the statute was concerned, and to enlarge the operation of the statute in respect to such papers so as to cause it to be criminal to use the pension or bounty land papers, etc., to which the statute refers, as well before the Secretary of the Interior as before the Commissioner of Pensions. In other words, that the only purpose of the amendment was to more fully deal with the subjects with which the provision which was ammended [211 U.S. 370, 397] dealt, and not by way of the amendment to legislate concerning every conceivable subject coming within the jurisdiction of the Secretary of the Interior. To otherwise hold would not only violate the most elementary rules of construction, but would require the treating as superfluous the new words of enumeration concerning pension matters which the amendatory act expressed. This follows, because, if the adding by way of amendment of the words 'or of the Secretary of the Interior,' contemplated bringing within the criminal inhibitions of the statute every act of a like nature to those forbidden, done in connection with every subject within the jurisdiction of the Secretary of the Interior, then the new enumerations made in the amendment were wholly unnecessary, because, without enumeration, they would have been embraced in the statute as amended. Indeed, if the purpose intended to be accomplished by the amendment had been to embrace all acts of the prohibited nature as to every subject within the jurisdiction of the Secretary of the Interior, no reason can be suggested why the new legislation should have taken the form of mere anendment to the section of the statutes which was alone concerned with pension and bounty land claims. Construing the statute as relating only to the subject of pension and bounty land claims coming within the authority of the Commissioner of Pensions or the Secretary of the Interior, it follows that a violation of its provisions could not arise from the acts charged in the indictment concerning the coal-land entries.
Finally we come to the two contentions of the government which we have hitherto temporarily put aside, and to the various contentions on the part of the defendants in error, insisting either that the court below misconstrued the indictment, or that there were such defects in the indictment that it was rightly quashed, irrespective of the construction of the statutes which led the court below to do so. But we do not think we have jurisdiction on this writ of error to consider these questions. The right of the United States to come di- [211 U.S. 370, 398] rectly to this court because of the construction of the statutes by the court below, as we have previously said in considering the question of jurisdiction, is solely derived from the act of 1907, the text of which is printed in the margin. That act, we think, plainly shows that, in giving to the United States the right to invoke the authority of this court by direct writ of error in the cases for which it provides, it contemplates vesting this court with jurisdiction only to review the particular question decided by the court below for which the statute provides. In other words, that the purpose of the statute was to give the United States the right to seek a review of decisions of the lower court concerning the subjects embraced within the clauses of the statute, and not to open here the whole case.
Chap. 2564.-An Act Providing for Writs of Error in Certain Instances in Criminal Cases.