FEDERAL REPORTER I
vol. 49.
"Q'NITED STA'l'ES 'D. BEDGOOD.J
(Dl.atrt.ct OWn, So D · ..AZabama. July 28, 1891.) L Puw,IO IN "FINAL" PROOF· . Under Rev. St. 52262, the proof required of a pre-emptitmist is original, anll he cannot be convicted of perjury on indictment alleging iperjury in making "final" proof. .' . ' ; B. PJiillJURY7WIlA'I' CONS'1.'ITUTES. " . . . ' Perjury consists of a false' oath to a material point, administered by one baving the legal authority, in' a proceeding valid and ,regular ill, law. 8. PROBATJii JUDGE-AtlTHORITYTO ADMINISTER OATH. , In Alabamatbe probate judge 18 not the clerk of the Ilrobate court, and he is the .principal jUdge and· not thEl' Clerk of the court of county commissioners, (Code Ala. ,.,;1886, *5 789, 11m, 819, 82.7;) and so innelthe,r ('. .pacity is he clerk of a court of record, , authorized to administer the oath in pre-emption cases, within the purview of Rev. 2262, as amended June 9, 11l8O. f, STATUTES,-REPEll OJ' EARLIER ST.tTUTES. ' "Wh.en a portion ,of an earlier statute Is incorporated in the Revised Statutes, the remamder of the enactment not 80 embraced is repealed; 5. CSJ1,IBs-REPEll OJ' AOT JW.ROJI 8, 1867. . . ' , The lWt of March 8,1857, C11oSt. at Large, p.2Il0,) as to crimes, Is repealed by the Statutes. BabCOCk v. U.· S., 84 Fed., Rep. 878, distil,lguished. 6. Pn-BMPTION-RuLES OJ' BlI:oRETUtY OJ' INTlauoR. ' The seoretary interior, and not thE! commissioner oUhe generalland.oftloe, is authorized to designate tl:.e in relation to pre-emption entries. Rev. Bt.
,St..
52268,
"
,,'
T.
EVJDJtlOlCB-J'UDIOJAL NOTIOE-REGULATIONS OJ'LAND-OJ'l'iCB.
of the land.oftloe, Whether prescribed by secretary: of the interior or by the commissioner, are not knOWn judicially, and must be pleaded.
S;' LAND-OPPIOIC REIHlLA.TJONs-NO'1' LAW.
Congl'llss cannot confer powllr on the secretary of the interior or the commissioner of the They may prescribe rules and regulations ,'1"1' the better transaction of'buslne811, butcllnnot make a rule which shall have the force of Jaw, and whose be punishedKs a cJ'ime.
9. PICRlliRY-PRIC-EMPTION OJ' LANDS, . , , .' The statutes as to pre-empttonelltries p,.escribe that false oaths, knowingly and wllltullymade,1n cases arising !under the land-oftloe rules, constitute perjury.
,
,The materiality of the matter I!>worn to must appear in the indictment for perjury. Buch matters as are not required bi law ar,e,n:ot material ';
OJ' EV\DICYOB.,
' .· .'
·
."
.'
At Law. Prosecution of'Frances F.O:Oedgoodfor'perjury. murrer to the indictment; 'Demurrer sustained.: ,: . indictment was in theiJol1owing' words:
On de-
"Thl"granl! jurors of the United States of Rnd sworn within and for the southern district of AlaLama, in the name and by the authority of United !::ltates of America, upon their oaths do find and present that }'olllces F. Bedgood, whose other lIame to tllis grand jury is unknown. late of the district aforesaid. heretofore, to-wit, on or about the thirDecember, A. D. eighteen hundred and eighty-nine, and before tieth day the finding of this indictment. and within the said southern district of Alabama, in giVing her testimony and making &nal proof of Iwr pre-emption entry No. 1,397, for the south-eai:lt qlIarter of section ten, in township 1wo north, of rauge nine east, in Escambia counLy, within saill southern district of Alabama, was duly sworn by, and took his corporal oath Lefore, N. R. LEIGI1, judge and ex officiO clerk of the probate court of said county, (he, t.he said N. R. LEIGH, judge and ex ojficio clerk as aforesaid, then and there I
Reported by Peter J. Hamilton, Esq., ot the Mobile bar.
,UNITED STATES V. BEDGOOD.
55
having sufficient and ,competent, power and authority to ai:1mlnister an oath to the said Frances F ·. Bepgood in that behlllf,} whereupon it then and there the .said final proof for her pre.emption entry became material in ftS8UlStllltft [Sill] as whetller the same was made fOl' the Interest aud benefit of the said Frances F. Bedgood, and not for the interest' and benefit of any other person or persons -whomsoever, and also 'Whether he had made actual settlement and Cl1JIUvatlol'l thereon, and'also whether·the said F'rances F. Bedgood :had resided continuously on the· said land, and whether he had made and the sa,id Frances F. Bedgood, being thel;1, and there sworn as aforesaid. and willful,ly <lid, SUbstantially depose and say. amcimg other things. (which sajd oath and In ,thl!-t made, was used and ftled in tbe local landoffice 'of the United ,States at Mohtgomery. Alabama. and was subsequently -filed in tbe general land-office of the United t:itates at Washington, D., C·· ) ,that she made the pre-emptiop rBic]entryasafo.resaid for ber interand benellt, and n.otforthe interest ana of any.other personqr persons and ,that Imd made actual settlement and cultivation thereon; J\nd that she, the said Frances F. Bedgood, has resided C0\1tiouou811 on .t,lifi said ,lIlDd since February, 1889, up to December SO, 1&:19; and tbatshe had'made a'qJonafide improvement and s!'ttlement thereon; ahd thatiJaid improvements' were of the value: of .fifty-four dollarB.Wllllreas. in truth and in Fral'!l168 F. did not make the.. "aidpre-e:mption [sic] entry. for her own Interest and benefit;. and whereas. in truth and in fact,the said Frances t.Bedgood ,did make said the interest andbeneftt of other persons, wb'ose nam.es to this grand jury are,urikriown; and whereas, in truthal1d in fact, the said Frances F; Bedgooddid' not' make actuaillettlement and cultivation thereon; and whereas,in truth aodln fact. the. said; ll'l'8oces F ·. Bedgood .harl not resided on. the:said' land 'continuously since Fel!ruRry. 1889. up to December SO. 1889; and whereas, introtllan!l in tact, the: said Frances F.. Be4good had not then a bona.;fldP improvtlmep.t and the said [sic] entry; and thl!-t the value <If her ilrtprovements was dollars; as stated In 'her said testimony aforesaid. All which statements then and there' miule.,t eto. 14. JXW'icker8ham, P'. S. Atty:. , for the United States. M. 4 ·. Rabb and W. D. McI(inBtry, for defendant. I.' ",J!
'
\.'.,
·.,TOULMIN,District The defendant is charged in this indictment withfalse swearing in making5nal proofof her prEl-emption entry. The affidavitallegedlo have been made by her is set out substantially in the indictment;,and it is averred that she made oath to the affidavit before N. R. LEIGH, judge and ex officio clerk afthe probate court of Escambia. county, There is no such thing as final proof required by the statute in pre-emption entries. The proof is primary or original, and the proof required, .and therefore material, is as to settlement and improvement. Sections 2259-2263, Rev. St. This is lobe made agreeably to rules prescribed by the secretary. of the interior. Section 2262 prescribes the oath to betakeJ,lby the pre-emptionistas a prerequisite to entitle him to the benefit of the law in such cases. The defendant was the pre-emptionist ifthe:procedurewas that Of,a pre-emption entry; The false affidavit and, Qatha11eged in the indictment to have ,been made by him in no respect conform to the statute; Section 2262, ·. It. does not contain what 1s1teq\li:red by that statute to be ,sworn to, but contaibs statements oi fact
56
FEDERAL REPORTER,
that,! so {aras it provides, are wholly The statute makes 'the existence of certain facts, and requires certain declarations to be made, and oath thereof by the applicant to securing the rights of a pre-emptionist; arid <;lath of othel;' facts made by him in .not required by law, however false.· is not perjury. The oath must be administered .in a ,proceeding that, is;Yalid and regular. It must be authorized by law. The, false testimony must be material, and the oath must be administered' by one having legal a\jthority to admini.ster it. 2 Bish. Crim. Law,§§ 982, 984',' 991 j Suver ,v. State, 17 Ohio, 368; 'Whitey. SUite, 1 Smedes & M. 156; Gi9S00 v."State, 44 Ala. Hood v., State, ld'dB1 j Jacobs V. State, 61 Ala: 44,8, 454; Colli'lUJ v.State, 78 Ala. 434jU. S. V. Howard" 37 Fed. Rep. 666; U. S. V. Manion, 44 Fed. Rep. 800j' U. S.v. Nickerson; 1 Spr. 232j U. S. V. Curtis, 107 U.S. 672, 2 Sup, at. Rep; 507j p. S. y. Hall, 131 U.;S. 50, 9 Sup. 663; State v; Lloyd, 46 N. W. Rep. 898, where the supreme ,.court.of Wisconsin "the' principle is elementary th!lt the statute lX!Ui>t be strictly pursued, or the affidavit is unknown to ,the law. What he[the defendant] hlis stated in the affidavit in place of what was requited to be stated by ,the, statute is as immaterial"as if, he had stated pothing. The perjury being assigned on 'what the statrite does not require to be stated in the inqiqlment states no crime." 'Tpe .false alleged to made must have been made ,in a proceeding valid and regularj that is, in,a proceeding or procedure authorized by law. The averments in theindictmenton this snbjectare somewhat ambiguous. .The word "final" precedes the word" proof," and the word "homestead". J41mediately follows the word"proof." The word lIhomestead" is immediately by the word and . a.black rpark drawn.through the word "homestead," .as if to,strike it out of the indictment.. is commonly known, and, therefore, judicially known, by the court,that there isi'finlll proof" (as it is called) made in homestead entries, but not in 'Pre-emption entries; From an inspection of the indictment, the court cannot say whether the word "final" was rlnadverteJiUy inserted .in the indictment, or whether the word "homestead" was inadvertently stricken. out, and the word H pre-emption" inserted instead. Reasonable certainty is required as to the proceeding showing the occasion for the oath,as was said by the court in Jacobs V. State, supra. The indictment in this respect is at least uncertain. But, eonllidering the procedure as that of a pre-emption entry, I think either of the other points raised by the demurrer is fatal tathe indictment: (1) That the oath set out therein, is extrajudicial, not 'authorized by law, and will not sustain an indictment for perjury; and (2) that the oath was uot administered by one having legal authority to administer it. See authorities cited, and section 2262, Rev. St., and Supp. Rev. St. 542· . But it is claimed that the judge of probate is ex afficioderk of the probate court, and is therefore clerk of a court of record. . The judge of the probate court is not,clerk of that court. His prescribed by 'the statute, (Code Ala. §789j) and, among other duties; he is required
UNITED STATES 'V. BEDGOOD.
57
to record the proceedings of the court. He cim employ a clerk. Code Ala.§ 795. But is nowhere made or designated as such clerk.· It is further contended that he is the clerk of the court of county missioners. This is refuted by the express language of the statute, which says that he is the principal judge of that court, (Code Ala. § 819;) and the duty of recording its proceedings is expressly required of hiIn as judge, {Code Ala. § 827;) He cannot make himself clerk by affixing the words "ex qfficio" to his signature as judge. Adding these words gives no greater authority to the officer or virtue to his acts. Coleman v. State, 63 Ala. 93. If the act of congress of March 3, 1857, (11 St. at Large, p. 250,) is repealed, as is contended by the defendant's counsel, the judge of probate had no authority to' administer the oath or take the affidavit required' by law of the defendant in her pre-emption entry. If that act is still in force. he had such authority.' Is said act repealed? To determine this question, we must consider the purpose and effect of the act of June 20, 1874, and the act of Maroh 2, 1877. They are found on pages 1085, 1092, Rev. St. Section: 5596, Rev. St., being a part of the act of June 20, 1874. provides that "all acts ·of congress passed prior to the first of December, 1873, any portion of which is embraced in any section of said l'evision',are hereby repealed, and the section applicable thereto shall be in force in lieu thereof." The act of March 3, 1857, is entitled"An act in addition to an act more effectually to provide for. the punishment of certain crimes against the United States;' and for other purposes." It is not special in its operation, nor temporary nor local in its application. It provides for the punishment of certain crimes, etc., and is.a and permanent law, as shown by its, provisions. If any. portion Of .this act is embraced in any section of the revision of the statutes under the act of June 20, 1874, then said act of March 3, 1857, is repealed. At least three sections of the ac.lt of 1857 are in express words embraced in said' revision. See sections 5341-5343"Rev. St. The fifth section of the act, and which is here invoked by the United States attorney, is not in express terms embraced in the revision; but section 5392, Rev. St., is applicable thereto,-is applicable to the crime defined and made punish. able by_ said section 5 of the ad of 1857. In Babcock v. U. S., 34 Fed. Rep. 873, the court says that "section 5392, Rev. St., is general in its terms, applying to all cases. in' which a false oath or false testimony 'is taken or given before any competent tribunal, officer, or person." If,as we have seen, the greater portion of the act of 1857 is embraced in the revision of 1874, and there are sections in the revision applicable to every portion of the said act, and shall be in force in lieu thereof, then, it seems to me, the repeal of the act cannot be questioned. And when we consider the fourth section of the act of March 2, 1877, as amended by the act of March 9,1878, on page 1092, Rev. St., all doubt on the subject must be removed. In the Babcock Case, supra, the contention of defendant's counsel was that the act of 1857 repealed section 5392, Rev. St., "being of later date as passed by congress, and being special in its provisions as to Cases before..the land-
58
office."' On this proposition the COU1Jt says "that section 5392, though one of long standing, was reaffirmed in the revision of 1874, and for all questions of validity and extent may be taken as of later date than the act of 1857;" and declares that section 5392, Rev. St., is general in its terms, applying to all cases in which aJalse oath or false testimony is taken or. given before any competent tribunal,officer, or person. The court was not called on to decide whether the act. of 1857 was repealed, either impliedly by the reafIirmationof section 5392 in the revision of 1874, or expressly by the act of June 20, 1874. Indeed, the attention of the court was not called to the latter act, and there was no occasion for the court to consider it. :There were 16 <lotmts in the indictment then being considered, and the court saiQ that 8 of them were good under section 5392, Rev. St., and that anyone-good count was sufficient to sustain the verdict. It is true that the CQurt also said section 5392 and the act of 1857 may stand and be considered together, unless there is a manifest repugnancy between their provisions, or it. can be said that obviously one was intended 8S.a substitute pro tanto for the other, and, conllidered together, the other eightcount.e would be good under the two statutes. It will be remembered, however,that the point then before the court was on the contention of counsel that the act of 1857 repealed section 5392, Rev. St. No reference being made to the operation and effect of the acts of 1874 and 1877, they evidently were not considered by the court. ' But it is contended by the United States attorney that, if said act of 1857 is repealed, the commissioner oithe general land-office has authority to designate by regulations before or by what officers such an oath may, be taken, and, I understand, contends that the commissioner is authorized to designate the character()f the oath and the matters to be sworn to. Under the authorities alre'idy cited, we have seen that per. ,jury cannot be assigned .on, any such oath. The commissioner of the generalland.office, under the 'direction of the. secretary of the interior, is authorized to enforce and carry into execution, by appropriate regulations, the provisions of the law relating,tQthe public lands, not otherwise specially provided for. Rey. St. § 247'8.· But section 2263, Rev. St., specially provides for the rules, to be prescribed by the secretary of the interior himself in relation to pre-emption entries. But, whether the commissioner or the secretary has the authority or ndtin these ca$es, there is no averment in the indictment ·of the existence of such regulations, or what .theyare. The court does not judi. ciaIly know what such reg-ulatioDsare, or of any usage under them, and ,cannot know them, or decide what the effect of them is, until they are .:shown by proof, and such proof. cannot be ta.ken or ,considered on a demurrer to the indictment. If such regulations have the force of ,law, (which, however, is not admitted,) some reference averment of them should have been made in theindictmen,t.j, But,: in my opinno rule or regulation can become or have the force of law. Congress cannot, if it would/confer lam;making power on the commissioner or secretary. Congress -baving expressly declared what officers are au·
uNiTED STATES V.BEIiGOOD.
59
thorized to take the; atlldavits and administeTthe oaths required by law inpte-etnption entries, and having expressly prescribed what stateJOents the affidavit of the pre-emptionist shall contain, neither the commissioner'nor the secretary has the legal authority to designateotht'r officers before whom such oaths may be taken, or to prescribe oaths to the existence of other facts than those required by the statute. The law makes the existence of certain facts and oath thereof the only prerequisites to demanding a particular right, and oath of other facts in connection therewith, however false, is not perjury. See authorities cited 8tipra. If the department of the interior requires anything more to be done,or the existence of any other facts to be shown, it is only for the <satisfaction of the department. It may exact from those who transact business with it compliance with the rules and regulations which it is authorized to make, but it cannot prescribe a rule which can: have the force of law, and the violation of which can be punished as a (}rime. Authorities 8upra, especially U. S. v. Manion, 44 Fed. Rep. 800. But, as I have said, such rules or regulations and usage thereunder as have been invoked in the argument in this case, not having been pleaded, the court cannot take of or consider on demurrer to the indictment. If, however, the court is in error as to t.his, and it should take judicial knowledge of such rules and regulations, then what has been said as to the authority of the commissioner of the general land-office to make them, and as to their effect when malle, is pertinent. Again, if the court is in error in the opinion that the act of March 3, 1857, is repealed, then, while under that act the judge of probate has authority to administer the oath prescribed in pre-emption entries, the act does not confer on any officer of the government of the United States authority to prescribe the particular oath or affidavit. Neither does it provide that, for the willful and false taking of any oath or affidavit prescribed by any such officer, the person so taking the same shall be guilty of perjury. What it does do, as I understand it, is to declare generally by and before what officers or persons oaths, affidavits, and affirmations may be taken or made; and then provides that any such oaths, affidavits, and affirmations taken, used, or filed in any of the land-offices, as well in cases arising under any orders, regulations, or instructions issued by the commissioner of the general land-office, or other proper officer of the government of the United States, as in cases arising under the laws of the United States, if knowingly, willfully, and falsely made, shall be perjury. It will be observed that this act does not say that the knowing, willful, and false taking of any oath that may be prescribed or required by any orders, regulations, or instructions of the commissioner of the general land-office, or other proper officer, shall be perjury; but it says that any oath taken, used, or filed in cases arising under any orders, regulations, etc., of that officer, etc. The orders, regulations, and instructions mentioned relate to cases, and not to oaths or affidavits. That is to say, all oaths on which perjury can be assigned must be
, 60
taken or used in some proceeding or procedure that is, valid and regular. To make such procedure or proceeding valid, it must be recognized by the law as such. It must be one"authorized bylaw. Now, the statute did expressly provide what .the procedure was for entering land 'under the pre-emption, homestead, mineral lands, and timber-culture acts, and prescribed the prerequisites for demanding ahd securing rights ,under these acts. But it did not provide for or prescrib(} the mode;ofprocedure or proceeding in cases of contested entries, of conflicting,entries, of transferring entries, in cases for the issue of new warrants in lieu of lost warrants, and the like. Congress recognized the fact that' such cases would arise, and it conferred on the land department of the government the authority to enforce and carry into execution, by appropriate regulations, the provisions of the law relating to the public lands not otherwise specially provided for. Rflv. St. § 2478. Ona charge of perjury the materiality of the n1atter sworn to is deterniinedbythe character of the proceeding in which the oath is taken and the point of inquiry involved in it, and the question of materiality is for the 'court to decide, in view of the law as applicable to the particular proceeding, and it must appear by the indictment. The object and effect of the fifth section of the act of March 3, 1857, as I construe and understand it, is to declare who are authorized to administer oaths and take affidavits in the particular matters therein referred tOj to declare that cases arising under the orders, regulations, or instructions of the land department of the government of the United States are valid and regular proceedingsjand to provide that any willfully false oaths or affidavits made or used in such proceedings, if material to the issue involved therein, shall be perjury. The indictmentllnder consideration sets up matters, on which theperjuryisassigned, that are not required not mateby law tone sworn to, and, so far as the court is rial as,prereqaisites to claiming a entrYjand it avers that the oath thereto was administered by one who, in the opinion of the court,did not have the authority to administer it. The indictment, therefore, charges no crimej and the demurrer to· it must be
DUDLEY E. JONES CO. t1. MUNGER IMPROVED C. MACH. MANUF'G 00.
61 00. '
DUDLEY
E.
JONES CO. t1. MUNGER IMPROVED CO'rl'ON MACH. MANUF'G
iCi'rcuAt Court of Appeals, F4,j'th OIircuU. December 7, 1891.} L PATBNTs !'OR I1n"BNTIONS-NOVBLTY-C01lrnINA'tION.
t.
Letter!> patent No. 808,790; issued December 2,1884, to R. B. Munger, are for all. apparatus designed to take loose cotton from the wagon or store-house into the ginhouse, cleaD it of dust and dirt, and ffled it directly to th$ gin. The second olaim, which substantially covers. the whole device, is for the "combination with a cottongin of a pIl.eumatic conveyer for the cotton, a soreen arranged in the conveyer, and exhaust chamber inolosing the screen, means for delivering the cotton from thil oonveyer to the gin, and an exhaust fan for creating an air current through the conveyer, substantially as described." Held, that this is only a combiftation of well-known elements, 'but, as it appears to have produced a new Bnd useful result, the pateJit i8 valid as to the specific device, taken as a whole.
SAME·.
Claim 4 is as follows: "In all. apparatus for handling seed cotton, the combination of a pneurr:.,tic conveyer, of a telescopic drop-pipe communicating therewith by a . flexible joint, a valve placed in said pipe, substantially as described." Held. that this drop-pipe is merely the equivalent of an extension of the pneumatio conveyer, with a flexible joint, aDd is not a patentable novelty. A cap used in defendant's machine to fit over the end of the pneumatic tube i. merely the equivalent of the valves of the patent, which are located within the tube.
.. BAlIfE-EQUIVALENTS.
.. SAME-CONSTRUCTION.
The patent, being for a oombination of old elements, must be limited to the specific devices used or suggested, and, although the claims sued on describe one /;liement as "means of conveying cotton to the gin, substantially as described," the court may refer to other claims and to the specifications for a description of the specific means used or suggested for that purpose, and must limit the claim thereto.
I.
SAME.
The designs filed by the patentee with his application show that the means used 'by him for conveying the cotton·from the cotton chamber downward to the gin consists of.a vaive chamber with a valve shaft, upon which are mounted valves or buckets offiexible material, each closely fitting the walls of the chamber, so as to prevent the upward passage of air by reason of the suction of the fan. The means l.lsed in defendant's machine is a square box, with two stUf- sides and two flexible or collapsible ones, the same being fastened at its upper end to the cotton chamber. When the fan is in operation the lower end is drawn together by the suction, making a· wedge-shaped cavity into which the cotton falls; the cotton being delivered therefrOm to the gin by meanSQf a valve in the pneumatio tube between the cotton ohamber and tne fan, Which, being periodically closed, stops the suction, and allows , the stiff sides of the box to drop apart. Held, that this device. is not the equivQolent of the valve ohamMr, shaft, and buckets, and hence defendant's machine does not bIfringe the patent. ' The fact that the box, with collapsible sidllS, was used J;lrior to the the patent, for the purpose of delivering grain from a pneumatic tu affect the question of infringement, it appearing that its lower en, opened by the weight of grain, whereas, by reason I ness of the cotton, it was necessary to check the air current by means tional device of the periodioally acting valve. ,.
.. SAME.
granting of )e, does not was there f the light)f the addi-
Appeal from the Circuit Court for t.he Northern District of I 'exas. Suit by th,e Munger Improved Cotton Machine Manufactl: ring Company against the Dudley E. Jones Company for infringement of. a patent. pecree for complainant. Defendant appt.als. Reversed. M. L. Crawford, for appellant. L. L. Band and J. R. Beckwith, for appellee. Before PJ\.RDEE, Circuit ,J'udge, and LoCKE and BRUCE, District Judges. LoCKE,
Judge. This is a bill in equity fi#ld in the circuit the .norther,ll district of Texas charging infringement of certain