A charge of crime against the United States must have clear
legislative basis.
A charge of perjury may be based on § 125, Criminal Code, for
knowingly swearing falsely to an affidavit required either
expressly by Act of Congress or by an authorized regulation of the
Land Department.
Page 236 U. S. 406
When, by valid regulation, the Land Department requires an
affidavit to be made before an otherwise competent officer, that
officer is authorized to administer the oath under §, 125, Criminal
Code, and the false swearing is made a crime and the penalty is
fixed therefor by Congress, and not by the Department.
In regard to affidavits required by the Land Department, § 125,
Criminal Code, must be read in the light of § 2246, Rev.Stat.,
authorizing and making it the duty of the specified officer of the
Land Department to administer oaths.
The departmental rule requiring an applicant for homestead entry
under § 2289, Rev.Stat., to state under oath whether or not he has
made a former entry under the homestead law is one addressed to the
enforcement of the laws, the administration whereof is confided to
the Land Department, and is not inconsistent with any specific
statutory provision, and the oath required is therefore one
administered by authority of law as provided in § 125, Criminal
Code.
The facts, which involve the construction and application of
Rev.Stat., § 2289, and the validity of an indictment for perjury
for violation thereof, are stated in the opinion.
Page 236 U. S. 408
MR. JUSTICE HUGHES delivered the opinion of the Court.
This is an indictment for perjury. It is charged that Luther
Jerome Smull, the defendant in error, in making application for a
homestead entry under § 2289 of the Revised Statutes (Comp.Stat.
1913, § 4530), swore falsely, before the receiver of the Land
Office, that he had not theretofore "made any entry under the
homestead laws," whereas in fact as he well knew, he had previously
made a homestead entry upon which he had obtained patent. The
defendant demurred upon the ground that the indictment did not
state a crime. The district court sustained the demurrer, ruling
that the affidavit was not within the statute defining perjury.
Criminal Code, § 125. The government brings the case here under the
Criminal Appeals Act.
The charge of crime must have clear legislative basis.
Williamson v. United States, 207 U.
S. 425;
United States v. Grimaud, 220 U.
S. 506;
United States v. George, 228 U. S.
14;
United States v. Birdsall, 233 U.
S. 223. The Criminal Code, § 125, provides:
"Whoever, 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, . . . shall willfully, and
contrary to such oath, state or subscribe any material matter which
he does not believe to be true, is guilty of perjury. . . ."
This statute takes the place of the similar provision of § 5392
of the Revised Statutes, which in turn was a substitute for a
number of statutes in regard to perjury, and was phrased so as to
embrace all cases of false swearing, whether in a court of justice
or before administrative officers acting within their powers
(
see revisors' report, Vol. 2, pp. 2582, 2583).
* It cannot be
Page 236 U. S. 409
doubted that a charge of perjury may be based upon § 125 of the
Criminal Code where the affidavit is required, either expressly by
an act of Congress, or by an authorized regulation of the General
Land Office, and is known by the affiant to be false in a material
statement. That is, the Land Department has authority to make
regulations which are not inconsistent with law and are appropriate
to the performance of its duties (Revised Statutes, §§ 161, 441,
453, 2478), and when, by a valid regulation, the Department
requires that an affidavit shall be made before an officer
otherwise competent, that officer is authorized to administer the
oath within the meaning of § 125. The false swearing is made a
crime not by the Department, but by Congress; the statute, not the
Department, fixes the penalty.
United States v. Grimaud,
220 U.S. p.
220 U. S. 522.
Section 125 of the Criminal Code must be read in the light of §
2246 of the Revised Statutes, which is explicit:
"The register or receiver is authorized, and it shall
Page 236 U. S. 410
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."
As it is apparent that the departmental rule makes it necessary
for the applicant to state under oath whether or not he has made a
former entry under the homestead laws, the sole question in the
present case is whether this requirement was one which the
Department could impose. This inquiry is naturally divided into two
branches: (1) was the regulation addressed to the enforcement of
the laws the administration of which was confided to the
Department, and (2) was it inconsistent with any specific provision
of the statutes?
As to the former, it is sufficient to say that the homestead
laws contain an express prohibition with respect to the amount of
land which any one person may secure under their provisions, and
the Commissioner of the General Land Office is entrusted with the
duty of promulgating appropriate rules to make this prohibition
effective. Thus, by the Act of May 20, 1862, c. 75, § 6 (12 Stat.
393), it was provided:
"That no individual shall be permitted to acquire title to more
than one quarter section under the provisions of this act, and that
the Commissioner of the General Land Office is hereby required to
prepare and issue such rules and regulations, consistent with this
act, as shall be necessary and proper to carry its provisions into
effect."
The prohibition was carried forward into the Revised Statutes
(§§ 2289, 2298; Act of March 3, 1891, c. 561, § 5, 26 Stat. 1098),
and the authority of the Department to enforce it was continued,
and not diminished (§ 2478). It would seem to be plain that a rule
requiring an affidavit from the applicant, stating whether or not
he had made other entries was suitably addressed to the execution
of the law.
United States v.
Bailey, 9 Pet. 238;
Caha v.
United States, 152
Page 236 U. S. 411
U.S. 211;
United States v. Grimaud, supra; United States v.
Birdsall, supra; Leonard v. Lennox,181 F. 760, 766-767.
There remains the question whether the regulation is
inconsistent with the terms of the statute -- that is, as there is
no suggestion of inconsistency otherwise, whether it is repugnant
to the specific requirements of § 2290 of the Revised Statutes, as
amended by the Act of March 3, 1891, c. 561,
supra, in
relation to the affidavit to be made by the applicant for a
homestead entry. We do not think that it is. Section 2290, it is
true, does not provide that the affidavit of the applicant shall
set forth whether there has been a previous entry. Neither does it
provide that the applicant shall state that he is a citizen, or has
filed his declaration of intention to become such. Yet, under §
2289, he cannot make entry unless this qualification exists. We are
concerned with positive requirements of the law, which are to be
enforced by the Department. They are not superadded by an
unauthorized departmental caution. And, this being true, the fact
that § 2290 is specific as to certain matters which the applicant's
affidavit must contain cannot be regarded as destroying the
authority of the Department to exact proof as to other facts which
are also essential conditions of the right of entry, and as to the
existence of which the Department must be satisfied.
It is not a case where the statute points out the character of
the proof to be required as to the particular fact, and thus
impliedly denies authority to exact proof of a different sort.
Thus, with respect to final proof of residence and cultivation, §
2291 of the Revised Statutes requires the proof to be made by "two
credible witnesses," not by the claimant; accordingly it was held
that Congress had provided the "exact measure" of the claimant's
obligation, and that the Department could neither add to nor
detract from it.
United States v. George, 228 U. S.
14. But
Page 236 U. S. 412
here, the statute is silent as to the mode of proving the
particular fact. Still it is an essential fact; Congress made it
the duty of the Department to enforce the condition prescribed,
and, in the absence either of inhibition or of a requirement of
some other procedure, we are unable to find any ground for saying
that Congress debarred the Department from availing itself of the
natural and appropriate course in examining the applicant. It has
been the long established departmental practice to insist upon a
verified statement by him, whether or not he has made an earlier
entry, and we are of the opinion that the practice is authorized.
The oath in such cases is administered by authority of law as
provided in § 125 of the Criminal Code.
The judgment of the district court is reversed, and the case is
remanded for further proceedings in conformity with this
opinion.
It is so ordered.
MR. JUSTICE McREYNOLDS took no part in the consideration and
decision of this case.
* Among these statutes was the Act of March 3, 1857, c. 116, § 5
(11 Stat. 250), which provided:
"That in all cases where any oath, affirmation, or affidavit
shall be made or taken before any register or receiver, or either
or both of them, of any local Land Office in the United States or
any territory thereof, or where any oath, affirmation, or affidavit
shall be made or taken before any person authorized by the laws of
any state or territory of the United States to administer oaths or
affirmations, or take affidavits, and such oaths, affirmations, or
affidavits are made, used, or filed in any of said local Land
Offices, or in the General Land Office, as well in cases arising
under any or either of the orders, regulations, or instructions
concerning any of the public lands of the United States issued by
the Commissioner of the General Land Office or other proper officer
of the government of the United States, as under the laws of the
United States, in any wise relating to or affecting any right,
claim, or title, or any contest therefor, to any of the public
lands of the United States, and any person or persons shall, taking
such oath, affirmation, or affidavit, knowingly, willfully, or
corruptly swear or affirm falsely, the same shall be deemed and
taken to be perjury, and the person or persons guilty thereof
shall, upon conviction, be liable to the punishment prescribed for
that offense by the laws of the United States."
See also Acts of May 20, 1862, c. 75, § 7, 12 Stat.
393; March 3, 1873, c. 277, § 7, 17 Stat. 606; March 13, 1874, c.
55, § 7, 18 Stat. 22; June 14, 1878, c. 190, § 6, 20 Stat. 114.