Quaere whether the Criminal Appeals Act of March 2,
1907, does not require an explicit declaration of the law upon
which the indictment is based and a ruling on its validity and
construction, and whether, on an appeal taken under that act. the
government can seek to sustain the indictment as valid under other
statutes than those relied upon in the trial court.
An indictment for perjury under § 5392, Rev.Stat., cannot be
based on an affidavit not authorized or required by any law of the
United States.
Sections 161, 441, 453, 2246 and 2478, Rev.Stat., confer
administrative power only on the Secretary of the Interior and the
officers of the Land Department. They do not confer legislative
power.
There is a distinction between legislative and administrative
functions, and under a statutory power to make regulations, an
administrative officer cannot abridge or enlarge the conditions
imposed by statute.
Section 2291, Rev.Stat., prescribes what a homestead claimant
and the witnesses are required to make oath to and the Secretary of
the Interior has no power to enlarge these requirements.
A charge of crime against the United States must have clear
legislative basis.
A homestead claimant making an affidavit not required by § 2291,
Rev.Stat., is not guilty of perjury under § 5392, Rev.Stat.,
although the affidavit was demanded by the Land Office in pursuance
of a regulation made by the Secretary of the Interior.
The facts, which involve the construction of § 5392, Rev.Stat.,
and the validity of an indictment thereunder for perjury, are
stated in the opinion.
Page 228 U. S. 16
MR. JUSTICE McKENNA delivered the opinion of the Court.
Indictment for perjury [
Footnote
1] by which defendant in error (herein referred to as
defendant) is charged with falsely and corruptly taking his solemn
oath in a proceeding wherein a law of the United States authorized
an oath to be administered before the register of the United States
land office at North Platte, Nebraska, the proceeding being the
making of proof and final entry of a homestead claim of certain
described lands.
The indictment charges that defendant took an oath and
subscribed the same, and deposed thereby that he built a house and
other improvements on the land, which he described and stated their
value to be $300, and established his residence thereon in April,
1901. The dimensions of the house and other improvements were
stated. He further deposed that he had continuously
Page 228 U. S. 17
resided on the land after he had established his residence
thereon, and his family, after his marriage, in 1902, with the
exception of certain absences which were stated.
These facts, it is alleged in the indictment, were matters of
material inquiry of the good faith of the defendant in perfecting
his homestead entry. The indictment explicitly negatived the facts
so deposed by defendant, and charged that he
"was not acting in good faith in making said entry and final
proof as a home for himself, but in fact to defraud the United
States out of the use, title, and possession of said land."
Defendant demurred to the indictment and stated as grounds
thereof (1) that it failed to state or charge any crime under the
laws of the United States; (2) that there was no law of the United
States which required defendant, as claimant, in making his
homestead proof, to testify with reference to the matters and
things set forth in the indictment, the law of the United States
requiring that the facts be proved by two credible witnesses other
than the claimant, and did not authorize the claimant to testify in
his own behalf with reference thereto.
The demurrer was sustained, and the case was them brought here
under the Criminal Appeals Act.
It will be observed that the indictment charges that the oath
was taken in a proceeding wherein a law of the United States
authorized an oath to be administered. Whether it was is the
question in the case, and we are brought to the inquiry as to what
law of the United States authorized the oath. To this inquiry the
record discloses divergent answers on the part of the government.
In the district court, it was the view and contention of the
government that the indictment was founded on § 5392 of the Revised
Statutes and § 2291, as amended by the Act of March 3, 1877, 19
Stat. 403, c. 122. The record not disclosing this, and that it
might appear, a bill of exceptions was tendered to and
authenticated by the district judge.
Page 228 U. S. 18
The bill of exceptions recites that the court, in sustaining the
demurrer, based its decision upon those sections as the law upon
which the indictment was founded,
"and held that there is no law of the United States which
required the defendant, as claimant, in making his homestead proof,
to testify with reference to the matters and things set forth in
the indictment, the law of the United States requiring that said
facts be proved by two credible witnesses other than the claimant,
and not authorizing the claimant to testify in his own behalf with
reference thereto."
And, so far as the assignment of errors is specific, it states §
2291 as the applicable law, and assails its construction.
This view of the applicable law of the indictment is now
abandoned. Indeed, it is distinctly rejected. The government, in
its brief here, says:
"The present indictment was not based on § 2291, for it seems
probable that the 'two credible witnesses' there provided for mean
two persons other than the claimant himself. Therefore, we must
seek elsewhere for the authority in law for the claimant to make
the oath as to his residence on, and cultivation of, the land he
seeks to homestead."
And, going elsewhere, the government finds the law, as it
contends, in certain regulations made by the Interior
Department.
There is ground for a contention that, if this Court should be
put to a choice between these views of the applicable law of the
indictment, we should have to select that urged and passed upon by
the trial court, and a query might then occur -- has this Court
jurisdiction under the Criminal Appeals Act? That act allows a
direct appeal to this Court
"from a decision or judgment . . . sustaining a demurrer to any
indictment . . . where such decision or judgment is based upon the
invalidity or construction of the statute upon which the indictment
is founded."
34 Stat. 1246, c. 2564.
Page 228 U. S. 19
This statute seems to require an explicit declaration of the law
upon which an indictment is based, and a ruling on its validity or
construction. To contend for one law as applicable in the trial
court and another law in the appellate court would seem not only to
be opposed to the requirement of the statute, but to be
inconsistent with orderly procedure, and to confound the relation
of trial and appellate tribunals.
But, accepting the case as properly here, we pass to the
consideration of the present contention of the government. Section
2291 is certainly a necessary, if not a determinative, element in
that consideration. It provides as follows:
". . . If . . . the person making such entry . . . proves by two
credible witnesses that he, she, or they have resided upon or
cultivated the same for the term of five years . . . and makes
affidavit that no part of such land has been alienated . . . and
that he, she, or they will bear true allegiance to the government
of the United States, then, in such case, he, she, or they . . .
shall be entitled to a patent."
It will be observed that the facts required to be proved are
stated, by what means proved, and the manner of proof and its
quantum. The facts to be proved are (1) cultivation of and
residence upon the land and (2) nonalienation and allegiance; the
means of proof of the first being two credible witnesses, of the
second, affidavit of the claimant. In other words, the section is
not only explicit as to what is to be proved, but in what manner
proved and what is required of the claimant himself, to-wit, an
affidavit, is distinguished from what he must establish by others,
to-wit, two credible witnesses. Such, then, are the conditions
seemingly legislatively made the exact measure of the obligation of
the homestead claimant. It certainly will not be asserted that they
can be detracted from. It is asserted that they may be added to,
and have been added to by virtue of certain sections of the
Revised
Page 228 U. S. 20
Statutes. We insert the sections in the margin. [
Footnote 2] It will be seen that they confer
administrative power only. This is indubitably so as to §§ 161,
441, 453, and 2478, and certainly, under the guise of regulation,
legislation cannot be exercised.
United States v. United Verde
Copper Co., 196 U. S. 207.
Especial stress, however, is put upon § 2246. By that section, the
register or receiver is authorized and it is made his "duty to
administer any oath required by law or the instructions of the
General Land Office in connection with the entry or purchase of any
tract of land." These sections, it is contended, as we have seen,
were the law of the indictment.
Acting under the authority presumed to be given by § 2246 and
the other sections, a regulation was promulgated which prescribed
forms of taking preemption and
Page 228 U. S. 21
final homestead proof by questions and answers, and provided
that "the claimant will be required to testify, as a witness, in
his own behalf, in the same manner." It was testimony exacted in
pursuance of this regulation and in the manner directed by it which
constitutes the charge of the indictment. It will be observed,
therefore, that the claimant was required to testify as other
witnesses. In other words, three witnesses were required; § 2291
requires two only, and, as we have said, points out what proof, in
addition, the claimant himself shall give. It is manifest that the
regulation adds a requirement which that section does not, and
which is not justified by § 2246. To so construe the latter section
is to make it confer unbounded legislative powers. What, indeed, is
its limitation? If the Secretary of the Interior may add by
regulation one condition, may he not add another? If he may require
a witness or witnesses in addition to what § 2291 requires, why not
other conditions, and the disposition of the public lands thus be
taken from the legislative branch of the government and given to
the discretion of the Land Department? It is not an adequate answer
to say that the regulation must be reasonable. The power to make it
is expressed in general terms. If given at all, it is as broad as
its subject, and may vary with the occupant of the office. This is
to make conditions of title, not to regulate those constituted by
the statute.
In
United States v. United Verde Copper Co. supra, this
Court considered the power of the Secretary of the Interior under
an act of Congress giving the right to cut timber from the public
lands for certain purposes, which were enumerated, "or domestic
purposes," and making the right subject to such rules and
regulations as the Secretary of the Interior might prescribe "for
the protection of the timber and of the undergrowth growing on such
lands, and
for other purposes." (Italics ours.) The
Secretary made a regulation which provided, among other things,
that no
Page 228 U. S. 22
timber should be "permitted to be used for smelting purposes,
smelting being a separate and distinct industry from that of
mining." The justification urged for the regulation was that the
word "domestic" meant household. This Court rejected the
contention, and decided that the regulation transcended the power
of the Secretary. We said:
"If rule 7 (the regulation involved) is valid, the Secretary of
the Interior has power to abridge or enlarge the statute at will.
If he can define one term, he can another. If he can abridge, he
can enlarge. Such power is not regulation; it is legislation."
In that case, the power of the Secretary of the Interior was
directly associated with the right conferred. Yet it was held that
such power could not qualify of limit the right. In other words, a
distinction between the legislative and administrative function was
recognized and enforced. And, similarly, this distinction must be
recognized and enforced in the case at bar. The distinction is
fundamental. Where the charge is of crime, it must have clear
legislative basis. In illustration, we may cite
Williamson v.
United States, 207 U. S. 425;
United States v. Keitel, 211 U. S. 370;
United States v. Eaton, 144 U. S. 677;
Morrill v. Jones, 106 U. S. 466;
United States v. Biggs, 211 U. S. 507;
Dwyer v. United States, 170 F. 161.
Judgment affirmed.
[
Footnote 1]
*
"Sec. 5392. Every person who, having taken an oath before a
competent tribunal, officer, or person, in any case in which a law
of the United States authorizes an oath to be administered, that he
will testify, declare, depose, or certify truly, or that any
written testimony, declaration, deposition, or certificate by him
subscribed is true, willfully and contrary to such oath states or
subscribes any material matter which he does not believe to be
true, is guilty of perjury, and shall be punished,"
etc.
[
Footnote 2]
"Sec. 161. The head of each department is authorized to
prescribe regulations, not inconsistent with law, for the
government of his department, the conduct of its officers and
clerks, the distribution and performance of its business, and the
custody, use, and preservation of the records, papers, and property
appertaining to it."
"Sec. 441. The Secretary of the Interior is charged with the
supervision of public business relating to the following
subjects:"
"
* * * *"
"Second. The public lands . . ."
"Sec. 453. The Commissioner of the General Land Office shall
perform, under the direction of the Secretary of the Interior, all
executive duties appertaining to the surveying and sale of the
public lands of the United States, or in any wise respecting such
public lands, and also such as relate to private claims of land and
the issuing of patents for all . . . [grants] of land under the
authority of the government."
"Sec. 2246. The register of receiver is authorized, and it shall
be their duty, to administer any oath required by law or the
instructions of the General Land Office in connection with the
entry or purchase of any tract of the public lands, but he shall
not charge or receive, directly or indirectly, any compensation for
administering such oath."
"Sec. 2478. The Commissioner of the General Land Office, under
the direction of the Secretary of the Interior, is authorized to
enforce and carry into execution, by appropriate regulations, every
part of the provisions of this title not otherwise specially
provided for."