A charge of perjury may be based upon a valid regulation of the
Land Department requiring an affidavit if the oath be taken "before
a competent tribunal, officer or person."
United States v.
Smull, 236 U. S. 405.
The Land Department being expressly charged with the duty of
enforcing the public land laws by appropriate regulations, its
regulations in that regard, when duly promulgated, must be deemed
valid if they are not unreasonable, inappropriate, or inconsistent
with the acts of Congress.
A regulation of the Land Department requiring applicants for
soldiers'
Page 243 U. S. 608
homesteads under Rev.Stats. § 2304
et seq., to make
oath in their declaratory statements that their claims are for
their exclusive use and benefit, for the purpose of actual
settlement and cultivation, and not either directly or indirectly
for the use or benefit of any other person, and that agents filing
such statements have no right or interest, direct or indirect, in
the filing thereof, is a valid regulation not adding to the
conditions of the statute, but serving to effectuate its
purpose.
The regulation of the Department providing that soldiers'
declaratory statements, when filed by agent, may be executed before
any officer having a seal and authorized to administer oaths
generally, is appropriate and valid, and an oath to such a
statement taken before a state notary or clerk of court pursuant to
such regulation violates the federal perjury statute, if the
statement is material and false.
The case is stated in the opinion.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
Morehead was indicted under § 37 of the Criminal Code [35 Stat.
1096, chap. 321, Comp.Stat. 1913, § 10,20] for conspiring with
others to commit an offense against the United States. The offense
contemplated by the conspirators is subornation of perjury
(Criminal Code, § 126) in connection with soldiers' declaratory
statements, to be filed by defendant as agent, covering public
lands under the Homestead Law. The perjury set forth in the
indictment consists in false swearing before notaries public and
clerks of state courts to declaratory statements. The parts of the
statement alleged to be false are those which declare:
(1) That the claim is made for his [the applicant's] exclusive
use and benefit, for the purpose of actual settlement
Page 243 U. S. 609
and cultivation, and not either directly or indirectly for the
use or benefit of any other person.
(2) That the agent has no right or interest, direct or indirect,
in the filing of such declaratory statement.
The district court sustained a demurrer on the ground that the
indictment did not charge a crime, holding that there was no law
which required affidavits to soldiers' declaratory statements; that
the Land Department was not authorized to exact them; that
consequently no law "authorizes an oath to be administered" to such
affidavits; and, as perjury is possible only when an oath is
authorized to be administered, the procuring of these false oaths
could not be subornation of perjury, nor an agreement to secure
them a conspiracy to suborn perjury. The case comes here on writ of
error under the Criminal Appeals Act (March 2, 1907, c. 2564, 34
Stat. 1246).
The Homestead Law (Rev.Stats. §§ 2304-2309, embodying Act of
June 8, 1872, c. 338, 17 Stat. 333) does not prescribe whether or
not an affidavit shall accompany a soldier's declaratory statement.
The affidavit is prescribed by a regulation of the Commissioner of
the General Land Office, promulgated with the approval of the
Secretary of the Interior. [
Footnote 1] It is clear that a charge of perjury
Page 243 U. S. 610
may be based upon a valid regulation of the General Land Office
requiring an affidavit if the oath be taken "before a competent
tribunal, officer, or person."
United States v. Smull,
236 U. S. 405. The
question obviously arising here is whether the law authorized the
oath to be administered. Another question -- whether it was
administered by a competent tribunal, officer, or person -- was
treated by both parties as requiring decision. Assuming without
specially determining the occasion for passing upon the second
question, we proceed to consider both.
1.
Whether an affidavit may be required to a soldiers'
homestead declaratory statement.
The Homestead Law [
Footnote
2] gives to every soldier who served
Page 243 U. S. 611
in the Army of the United States during the War of the Rebellion
for ninety days, was honorably discharged and remained loyal to the
government, the right, upon certain conditions, to enter upon 160
acres of the public land as a homestead and receive a patent
therefor. To comply with these conditions, the applicant must make
actual entry, [
Footnote 3]
settlement, and improvement, and he must, on applying to enter the
land, make and file the affidavit, as provided in Rev.Stats. §
2290, that such application is honestly and in good faith made for
the purpose of actual settlement and cultivation, and not for the
benefit of any other person. Furthermore, in order to obtain a
certificate or patent, he must, under Rev.Stats. § 2291, make proof
of his residence for the full period, and an affidavit "that no
part of such land has been alienated." The filing of a declaratory
statement is not a necessary step in acquiring title to land. It
relates to a privilege, akin to preemption, by which he may secure,
prior to the entry under § 2290, a preferential right to acquire,
under the homestead law, the particular tract located on. The
privilege is exercised by filing the declaratory statement with the
register, and if exercised, lapses unless, within six months
thereafter, the soldier makes entry and actually commences
settlement and improvement.
See Charles Hotaling, 3 L.D.
17, 20; Stephens v. Rey, 5 L.D. 133, 134. To render this privilege
readily available to soldiers living at a distance, authority is
given (Rev.Stats. § 2309,) [
Footnote 4] to "enter upon
Page 243 U. S. 612
the homestead by filing a declaratory statement," "as well by an
agent as in person." Thus, the soldier can be assured of the
selection of an advantageous homestead before perfecting his plan
for removing to his new home.
It is a matter of common knowledge that this special privilege,
granted to facilitate the acquisition by soldiers of homesteads in
grateful recognition of patriotic service, was soon perverted into
an instrument of fraud. Soldiers' declaratory statements, acquired
by so-called agents in large numbers, became the subject of
extensive speculation. They were used as a means of preempting
choice lands for a period of six months with a view merely to
selling relinquishments of locations to persons desiring to acquire
public lands under the preemption or general homestead laws.
(
See 1 L.D. 79.) To stay this abuse, the General Land
Office issued, on December 15, 1882, the circular concerning
"Soldiers' Homestead Declaratory statements" (1 L.D. 648),
[
Footnote 5] prescribing
requirements
Page 243 U. S. 613
which have since remained in force and are embodied in substance
in the regulation of October 11, 1910.
Defendant contends that this regulation, which has been enforced
continuously for nearly thirty-five years, is invalid. Since the
Land Department is expressly charged with the duty of enforcing the
public land laws by appropriate regulations, [
Footnote 6] and the regulation in question was
Page 243 U. S. 614
duly promulgated, the assertion of its invalidity must be
predicated either upon its being inconsistent with the statutes or
upon its being, in itself, unreasonable or inappropriate. That the
requirement of the soldier's affidavit to the fact essential to the
existence of any right of the applicant under the law is both
reasonable and appropriate can scarcely be doubted.
United
States v. Smull, 236 U. S. 405,
236 U. S. 411;
United States v.
Bailey, 9 Pet. 238. But defendant urges that the
regulation is inconsistent with the statute, in that it adds to the
requirements of the statute still another condition to be performed
before the soldier can acquire his homestead, and hence is
legislation, not regulation. But the regulation does not add a new
requirement in exacting the affidavit, as in
Williamson v.
United States, 207 U. S. 425,
207 U. S.
458-462. It merely demands appropriate evidence that the
proceeding is initiated -- as the statute requires it must be
throughout conducted -- in good faith, for the single purpose of
acquiring a homestead.
Great stress is laid upon the reference to "preemption cases" in
Rev.Stats. § 2309, which provides that the soldier "may as well by
an agent as in person enter upon such homestead by filing a
declaratory statement as in preemption cases." In proceedings under
the preemption laws (Rev.Stats. §§ 2257-2288, repealed by Act
Page 243 U. S. 615
of March 3, 1891, c. 561, 26 Stat. 1095), an affidavit was not
required either by the statute or by regulation (
see 10
L.D. 687), and it is said that it cannot therefore be required
under the provisions for soldiers in the Homestead Law. But the
reference in the latter statute carries no such implication. It was
inserted for a different purpose. The general homestead law does
not give the privilege of securing, in advance of formal entry, a
preferential right to a particular location. That is, it gives no
right to prior selection, and none accrues from prior occupation
save such as is given by § 3 of the Act of May 14, 1880, c. 89, 21
Stat. 140. Nor does the preemption law give a privilege to acquire,
merely by selection, a preferential right to a particular
parcel of land. But under it, the person who actually "settles and
improves" land may, in advance of entry under Rev.Stats. § 2262,
acquire a preferential right over others, to the particular parcel,
by filing with the register within thirty days thereafter
(Rev.Stats. § 2264) "a written statement describing the land
settled upon." To that "written statement" the "declaratory
statement" provided for by the provision for soldiers in the
Homestead Law may be likened, but the conditions under which it is
filed are very dissimilar. The preemptioner must personally, before
"filing," have actually entered upon the land, must have commenced
settlement and improvement -- acts which, in themselves, furnish
evidence that the proceeding has been initiated in good faith. The
soldier homesteader, on the other hand, need do nothing whatever to
obtain a six months' preferential right save file the declaratory
statement, and that may be done by an agent -- a situation calling
for extrinsic evidence by affidavit of the applicant's good faith.
Good reasons thus exist for a difference in requirements in the two
classes of cases; but the power of the Land Department to require
an affidavit to the declaratory statement even in preemption cases,
as it did to declaratory statements
Page 243 U. S. 616
under the Coal Land Law, seems not to have been questioned.
(Rev.Stats. §§ 2348, 2349; 1 L.D. 687, paragraphs 28, 33.) The
regulation calling for an affidavit to a soldier's declaratory
statement under the Homestead Law, unlike that considered in
United States v. George, 228 U. S. 14, is
thus a regulation entirely consistent with the statutory
provisions, and being also appropriate, is valid.
2.
Whether state officers are authorized to administer the
oath.
The purpose of Congress in allowing filings to be made by an
agent was to facilitate the acquisition of homesteads by soldiers
living at a distance from the land to be settled on. To their
declaratory statements the several statutes [
Footnote 7] which provide for the administering of
oaths by registers and receivers, or by the clerks of courts or
United States commissioners in the district wherein the land is
situated, are obviously not exclusively applicable, if applicable
at all. And plainly the provision of Rev.Stats. § 2293 relating to
affidavits before the commanding officers of soldiers actually
engaged in service is inapplicable. The requirement of an affidavit
to the declaratory statement, to be made by soldiers living
elsewhere than in the land district, can be complied with only if
an oath before some officer other than those specifically named in
those statutes is recognized as being within the authority of law.
It follows that, to carry out the duties imposed by law, the Land
Department was called upon to make appropriate provision for the
administering of oaths in such cases, and the provision that
soldiers' declaratory statements, when filed by agent, "may be
executed before any officer having a seal and authorized to
administer oaths generally," is both appropriate and "not
inconsistent
Page 243 U. S. 617
with law." Ever since the decision in
United
States v. Bailey, 9 Pet. 238,
34 U. S. 255,
it has been held that an oath administered by a state magistrate,
in pursuance of a valid regulation of one of the departments of the
federal government, though without express authority from Congress,
subjects the affiant to the penalties of the federal statute
against false swearing.
See Caha v. United States,
152 U. S. 211,
152 U. S.
218.
The indictment charges a crime under the laws of the United
States. Judgment of the district court is reversed, and the case is
remanded for further proceedings in conformity with this
opinion.
It is so ordered.
[
Footnote 1]
The material part of the Regulation of October 11, 1910 (39 L.D.
291, 294, 295), is as follows:
"The soldier's declaratory statement, if filed in person, must
be accompanied by the prescribed evidence of military service and
the oath of the person filing the same, stating his residence and
post office address, and setting forth that the claim is made for
his exclusive use and benefit for the purpose of actual settlement
and cultivation, and not, either directly or indirectly, for the
use or benefit of any other person; . . ."
"In case of filing a soldier's declaratory statement by agent,
the oath must further declare the name and authority of the agent
and the date of the power of attorney, or other instrument creating
the agency, adding that the name of the agent was inserted therein
before its execution. It should also state in terms that the agent
has no right or interest, direct or indirect, in the filing of such
declaratory statement."
"The agent must file (in addition to his power of attorney) his
own oath to the effect that he has no interest, either present or
prospective, direct or indirect, in the claim; that the same is
filed for the sole benefit of the soldier, and that no arrangement
has been made whereby said agent has been empowered at any future
time to sell or relinquish such claim, either as agent or by filing
an original relinquishment of the claimant."
"Where a soldier's declaratory statement is filed in person, the
affidavit of the soldier or sailor must be sworn to before either
the register or the receiver, or before a United States
commissioner, or a United States court commissioner, or judge, or
clerk of a court of record in the county or land district in which
the land sought is situated. Where a declaratory statement is filed
by an agent, the agent's affidavit must be executed before one of
the officers above mentioned, but the soldier's affidavit may be
executed before any officer having a seal and authorized to
administer oaths generally, and not necessarily within the land
district in which the land is situated."
[
Footnote 2]
Rev.Stats. § 2304:
"Every private soldier . . . who has served in the Army of the
United States during the recent rebellion . . . shall . . . be
entitled to enter upon and receive patents for a quantity of public
lands not exceeding one hundred and sixty acres . . . subject to
entry under the homestead laws of the United States; but such
homestead settler shall be allowed six months after locating his
homestead, and filing his declaratory statement, . . . to make his
entry and commence his settlement and improvement."
[
Footnote 3]
The term "entry" is used in the statutes, regulations, and
decisions in several senses, sometimes to designate the initiatory
proceeding whereby an inchoate right or privilege is acquired,
sometimes as referring to final entries or proof, sometimes as
referring to the proceeding as a whole.
Dealy v. United
States, 152 U. S. 539,
152 U. S. 545;
Stearns v. United States, 152 F. 900, 907;
United
States v. Northern Pacific Ry. Co., 204 F. 485.
[
Footnote 4]
Rev.Stats. § 2309:
"Every soldier, sailor, marine, officer, or other person coming
within the provisions of section twenty-three hundred and four,
may, as well by an agent as in person, enter upon such homestead by
filing a declaratory statement, as in preemption cases; but such
claimant in person shall within the time prescribed make his actual
entry, commence settlements and improvements on the same, and
thereafter fulfil all the requirements of law."
[
Footnote 5]
"
SOLDIERS' HOMESTEAD DECLARATORY STATEMENTS"
"
CIRCULAR"
"
Commissioner McFarland to registers and receivers, December
15, 1882:"
"In view of extensive frauds in the matter of declaratory
statements of homestead applicants under §§ 2304 and 2309 of the
Revised Statutes, the privilege conferred by the filing of such
claims having been made the occasion of barter and sale, without
attempt on the part of the soldier to comply with the statute by
making formal entry at the district office, and commencement of
settlement upon the land within the prescribed period of six
months, the following regulations are prescribed for the admission
of such filings:"
"1. Proof of qualification as an honorably discharged soldier
must be furnished in accordance with existing regulations in case
of entry by soldiers who make direct homestead application without
availing themselves of the preliminary filing. Oath of the soldier,
setting forth his residence and post office address, must accompany
the filing, to the effect that the claim is made for his exclusive
use and benefit, for the purpose of actual settlement and
cultivation, and not either directly or indirectly for the use or
benefit of any other person, and it must also be shown by such oath
that he has not theretofore either made a homestead entry or filed
a declaratory statement under the homestead law."
"2. Where the declaratory statement is offered for filing by an
agent under § 2309, the oath must further declare the name and
authority of such agent, giving the date of the power of attorney
or other instrument creating the agency, and also aver that the
name was inserted therein before execution. It will be observed
that, with the filing of the declaratory statement, the power of
the agent, under the law, is at an end. He has thereafter no right
or control with respect to the matter nor over the land selected,
and has no authority to relinquish the claim or do any other act in
the premises. The further declaration of the statute is express,
that"
"such claimant in person shall within the time prescribed make
his actual entry, commence settlements and improvements on the
same, and thereafter to fulfil all the requirements of law."
"Nevertheless, the oath of the soldier and the power of attorney
should show that such is the understanding of the matter, and he
should swear in terms that such agent has no right or interest
direct or indirect in the filing of such declaratory
statement."
[
Footnote 6]
Rev.Stats. § 441:
"The Secretary of the Interior is charged with the supervision
of public business relating to the following subject: . . . The
public lands, . . ."
Rev.Stats. § 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 anywise respecting such public lands. .
. ."
Rev.Stats. § 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."
Rev.Stats. § 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 [Title xxxii -- The Public
Lands] not otherwise specially provided for."
[
Footnote 7]
Rev.Stats. §§ 2246, 2290, 2294; Act of June 9, 1880, c. 164, 21
Stat. 169; Act of May 26, 1890, c. 355, 26 Stat. 121; Act of March
11, 1902, c. 182, 32 Stat. 63; Act of March 4, 1904, c. 394, 33
Stat. 59.