UNITED STATES t1. SABLE.

191

UNITED STATEs

t1.

SULE.

(Oircuit Oourt. D. Rhode IsZand. Jannary 27,1891.)
OENSUs-REFUSAL TO ANSWER-MISDEMEANORS-PROPERTY STATISTICS.

25'U. 8. St. at Large, p.765, § 15, proVides that every member of a family above , the age of 20 years who shall'refuse to render to the oensus enumerator a true lIOcount "of every person belonging, to suoh family in the particulars requil'ed by law"shall be guilty of a misdemeanor. HeW, that it is within the offense hereby created to refuse to furnish the particulars required by Rev. St.§ 2206, in regard to a farm belonging to one's wife.

At

indictm!"nt under 25 U. S. St. atLarge,p. 765, § in the following words: "That Oliver P. Sarle, of: WarWick, in saiddi,strict Of Rhode Island, on, to-wit, the ,third day of July,.in the year of our Lord one thQusand eight hundred and ninety, at said Warwick"wit4in said district of Rhode Island. being then anI! there a person m()re yelus of age, ,and then and therJ' belonging. to a to-wit, the family of himself, said Oliver P. siding in a certain eUl\w.eration district and subdivision of the state of Riiode ],sland, created and, establ\sb,ed under the authority of the 'congress oftha United States of America, entitled'An act ,to. provide for taking the elev!,!nth and subsequent censuses, ' approved March 1. A. D. 1889, which said ell).1meration district and subdivision was thElD and there designated as 'En urner": ation 177 A,' and wife of said' ,Oliver P. Sarle being then arid the 0\Vner of a farm situate 'in said enumeration by John 'Wright. then 'and tbere.a of the United States of America,duly employed, appolntpd, com,miSsloned, and' sworn to take the census of said enumeration district, under'the authority and in accordance with the provisions of Said act; to render Ii true account, to the best of hill knOWledge, ola person to of the said wife of said Oliver P. Sarte, .in cer,tain of the particulars then and there required J;ly law, to-wit, in the particulars of his said wife's said farm, and being sO're,; quested, did then and there willfully and maliciously refuse to render such account, and did then and there willfully and maliciously refuse to answer certain questions relating to· saidfarm,tben .and there put to him by said census enumerator. in accordance with the provisions of said act, to·.wjt,a question as to the total number of acresin said farm; a question as to the number of acres in said farm which were tilled; a question as to the number of acres in said farm consisting of· perrnanentmeadow or pasture, cultivated forests, orchar.<fs, vineyards. nurseries, and market gardens; a question as to the estimated value of all the productions of said farm· for the year A. D. 1889; and a question as to the total amount of milk produced on said farm in the year A. D. 1889,-against the peace," etc. a demurrer, and the question argued was whether the inquiries authorized by law, relating to a farm owned by a member of a person'afamily are covered by, thelanguage of the statute, which makes it incumbent upon all persons to 'render an account "of every person belonging to such family in the various particulars required by law;" other words, whether an Mcount of a person's farm is an Count of thafperson in any particular. Dexter B. p,otter, for the defendant.

Law.

ac-

192

FEDERAL REPORTER,

vol. 45.

This indictment charges no offense punishable under the law. The de,account of every person belonging to his fendant was bound to remJet family, in the various particulars required by law. In order to ascertain what those particulars are we are by 17 of the statute to Rev. St. § 2206, and to an act to provide for taking the'tenth and subsequent censuses, (20 st. at Large, 473.) ,An ex<\minativn of these statutes shows that the auschedules contain inquiries as to persons and their statns and condition,including descent and other analogous particulars, and, also as to the estates' a,nd property of those persons. The section of the statute which reqUires all persons to make answer to the enumeratorsrefera in terms only to such of these inquiries as relate to the persons, as distinguished from their property; and it cannot be extended to cover the acts charged in this indictment without reading into the act, by construction, words importing property as well as persons. , For such construction of a penal stat)lte there is'no necessity'in the nature of the enactment under consideration,' and such construction is therefore inadmissible. Rathbone Gardner, Dist. Atty., for the United States. ' The statllt,e intends to cover questions relating to the property, of a person as wellasqnestions J:elating more directly to his person or physiCai organism: Particulars relating to the property ora person are particlllarsrelating to that person as truly as are tile partiCUlars of his bodily health. They are all equally gl'oupe4 him, and are properly collected by tHe census enumerator in connection and by reference to him. If this be not true; then there is no pro: Vision of which makes 'it incumbentonany person to furnish the inforIllatron by the farm schedule. This section should be so interpreted as to uph()ld. rather than to defeat, the putpose of the statute. Even a penal statute is,no,t to be construed so strictly as to defeat the obvious interest of the legisfattlte. U. S. v.8m·twell, 6Wi\1I. 385; U. S. v.Winn.3 Sum. 209; U.S. v. Buchanan, 9 Fed. Rep. 689; U. S. v. Wiltbetger, 5 Wheat. 76; U.S. v. Morris, 14 Pet. 465; The, Industry, 1 Gall. 114; ,U. s, v. F'1'eeman,3 How. 556; U. 8. v. White, 27 Fed. Itep. 200; The statute ll!)der '''hich this indictment is drawn requires oilly a true account according to the best of the kn?wledge of the person interrogated. 'fherequirement is not, as to suggest or require that it be interpreted with the therefore, so greatest stricttiiiss. "

Dexter B. ,Potter, in reply·

The statute is not to be stretched to accommodate the supposed necessary purpose:ofthe census enumeration. It·is true that,on Qur theory of the law, there is no provision for enforcing answers to the questions 'as to property; but it may well have been the intent of the legislature to leave the answers to those questions to the voluntary action of those who should be interrogated. The knowledge necessary to make these, answers cannot be assumed to be in the minds of all the members of a family,' inclUding women and servants; and therefore it might well be considered'by congress that such persons ought not to be subjected to complaint and indictment for non-,compliance with the statute, Whereby they would be put to exculpate themselves by shOWing that they had not the requisite information to enable them to make answer. An adequate- intent for the statute is found, even if the provision requiring answers shlill be taken to apply only to those questions which call for strictly personal particulars. The census act formerly in force (Rev. St. § 2191 lis broader in this respect than the present statute, since it prescribes a penalty not only for neglect to "render a true account to the best of his knowledge of every person belonging to such family in the various particqlars required herein," but also for "to answer either of the'inquiries authorized by law." The present statute does not contain these last words, or their

UNITED STATES V. SARLE.,

193

equivalent; and this omission should be taken to evidence a legislative intent to leave the answers to the questions 8S to property to the voluntary action of the citizen.
CARPEN'rER, J. The words of this statute should receive an interpretation sufficiently broad to carry out the purpose for which it was enacted. This is, of course, the general principle of decision in questions of this kind, though subject to modification and limitation from a variety of considerations. The various particulars of information required by the statute to be collected must be assumed to be important and necessary for the public service; and the statute cannot be effectual to collect them · unless the penalty for refusal to answer shall be applied to all the questions authorized to be propounded to citizens and residents. The learned counsel for the prisoner, however, argues-First, that the words of the st.-tute, read in the strict sense in which penal statutes are to be read, will not bear the interpretation for which the government contends; and, 8econdly, that such an interpretation is negatived by the obvious and necessary hardship which it would import into the administration ofthe law. It is true that this statute is not drawn with very much art, and it is equally true that the apparent intent of the legislature might have been much more clearly expressed without apparently very much additional study.and labor; but I think it is possible clearly to see, in the words of the section under consideration, the meaning for which the government contends. The particulars of the property of a person are certainly a part of a "true account" of that person, in the sense of a census law, since they relate to him in an especial and individual sense. The account which is required is limited by the statute to accounts of the persons belonging to the family of the person who is interrogated.' This. limitation, in my view, is introduced in the act, not to limit the inquiries to personal partiqulars, as distinguished from particulars of property, but rather to exclude from the required information in each particular case questions relating to persons not members of the family. TJ;1e former ,statute, if the words are to be quite literally taken, appears to denounce a penalty against those who refuse to answer any question whatever which is authorized to be asked. by the enumerator in theit district. The present statute 1 think attempts to be more accurate, and to define the general range of the inquiries to be addressed to each person. As to the hardship of the statute, I cannot see that it is increased by this interpretation. The requirement is that answer shall be made according to the best knowledge of the person interrogated. Such an answer is, of course, within the power of every person. The danger that an innocent person may be put to the trouble and disgrace of a trial arises under this statute equally on either interpretation, and I suppose also arises in the case of all penal statutes. It is supposable that a person, on being interrogated, might honestly say that he does not know in what country he was born, and it is possible that he might thereupon be indicted under this section, put to trial, and acquitted. Demurrer overruled. v.45F.no.3-13

194

:fEDERAL REPORTER J

vol·· 45.

(Dtstrlct Court, W. D. Michigan, S. D. December, 1890.)
POSTAL LAWs-OBJECTIONA:BLE MATTII'R ON W1U.PPER.

Act Congo Sept. 26, 1888, prohibiting the mailing of matter on the outside cover or wrapper containin!l' ranguage "calculated by its terms It' It It and obviously intended to reflect inJuriously upon the character or conduct of another, II does not to a printed paper containing such language, which is not inclosed in a wrapper, but which is merely folded, and the postage stamps placed on the paper itself.

At Law. Lewia G. Palmer, U. S. Atty., and P. W. StevenS, Asst. U. S. Atty. H. P. Stewart and H. J. Felker,for defendant. SEVERENS, J. Defendant was indicted for a violation of the act of congress of September 26, 1888, (25 St. at Large, p. 496, amended section 3,) which prohibits the mailing of matter upon the outside cover or wrapper of which is language "calculated by its terms * * * and obviously intended to reflect injuriously upon the character or conduct of another." The evidence introduced on the part of the government at the trial of the case showed that the defendant caused to be deposited in the post-office at Centreville, Mich., for mailing and delivery, a IMge number of four-page printed circulars, about the size of a sheet of note paper, upon all four pages of which was printed maUer,-:'-being an account of certain dealings between defendant and another; that these circulars, as deposited forIPailing, had no separate wrapper or cover over them, but were folded twice oblong shape, and the postage stamps placed upon the circulars themselves. 'Upon the outside pages of the circulars, as so folded and mailed, was language claimed to be "calculated by its tElrms * * * and obviously intended to reflectinjuriously upon the character and conduct of another." Defendant's counsel moved the court (SEVERENS, J.)to directa verdict of not guilty, for the reason that the objectionable language was not upon the outSIde cover or wrapper of the matter mailed, there being no such cover or wrapper; and that, consequently, the case' was not within the s,tatute referred to. The motion was granted, and the jury directed accordingly, the court holding tbat this section of the statute applies only to matter exhibited upon an inclosing wrapper or cover, and not to matter which is contained in the body of the thing mailed; that, the statute being one constituting it criminal offense, it cannot be extended by constrnction to cases where there is no wrapper Of cover at all, even though such cases may be within the reason and policy of the enactment.