Vol. I, p. 378, sec. 254.

The statute leaves it to the discretion of the court to decide upon the presentation of the acknowledgment therein referred to whether prosecution shall be stayed and the charge dismissed. Noble v. United States, (C. C. A. 9th Cir. 1911) 190 Fed. 538.

Sufficiency of acknowledgment. - In Noble v. United States, (C. C. A. 9th Cir. 1911) 190 Fed. 538, it appeared that the prosecuting witness presented an affidavit, which was filed, in which he said: "I do hereby ask and petition the court to dismiss the

Vol. I, p. 380, sec. 270.

indorsement of names of witnesses. - In a prosecution by information it is not essential that the names of the witnesses be en

Vol. I, p. 412, sec. 472.

A civil action does not lie to recover a license fee in a case where a person is selling liquor without a license. United States v. Jourden, (C. C. A. 9th Cir. 1912) 193 Fed. 986, wherein the court said:

"Section 474 prescribes the method of procedure in prosecutions for violations of the act. It is the general rule, sustained by the authorities, without exception so far as we are advised, that where a statute provides for the payment of a license fee as the condition of doing any specified business, and also provides that a violator of the act shall, upon conviction, be punished by fine or imprisonment, the remedy by prosecution and punishment so prescribed by the statute is exclusive, unless there is some special provision of law which permits the prosecution of a civil action to recover the license fee." Sufficiency of information. As to the sufficiency of an information under this section,

the court in Booth v. United States, (C. C. A. 9th Cir. 1912) 197 Fed. 283, said: "It may be observed, first, that in describing the liquor sold it is generally sufficient to follow the language of the statute and that the information may describe the liquor as spirituous or intoxicating liquor without naming any particular liquor; second, an allegation as to the quantity sold is not necessary where the quantity of liquor sold is entirely immaterial to the particular offense charged; third, the allegation that liquor has been sold sufficiently imports the payment of a price therefor; fourth, it is the decided weight of authority than an indictment which is otherwise sufficiently certain will not be quashed merely because it fails to name the purchaser of the liquor, and fifth, it is not necessary to allege a scienter of a criminal intent."

taken as a homestead in Alaska, to subject unsurveyed lands to homestead settlement

and patent, and to require that the boundaries of a homestead claim be plainly marked on the ground. That was substantially all that was accomplished by the amendment. There is no ground for the contention that by virtue of the provision requiring a homestead settler to furnish proof under the procedure for obtaining patents to surveyed lands of the United States as provided for by section 10 of the Act of May 14, 1898, one who has a mining location in conflict with a homestead claim is required to bring a suit to quiet title before the decision of his adverse claim which is filed and pending in the land office. The amendment makes section 10 of the prior act applicable to proof of homesteads on unsurveyed lands as well as those on surveyed lands, and with that exception

Vol. X, p. 27, sec. 1.

"The single object of Congress in the Act of 1904 was to provide for the sale of coal lands which had not been surveyed. The provisions for the sale of such coal lands, in or out of Alaska, which had been surveyed, so that entries could be made 'by legal subdivision,' had already been covered by the general law which had been extended to Alaska. The conditions in Alaska were but temporary. When the coal land there should be brought under the system of surveys which prevailed in the better settled parts of the country, the Act of 1904 would cease to be

1909 Supp., p. 19, sec. 1.

No treaty rights are affected by this act, but if they were the act would not be void as the power of Congress to enact laws for subsequent observance is not restricted by prior treaties with foreign nations. The Tokai Maru, (C. C. A. 9th Cir. 1911) 190 Fed. 450, wherein the court said: "The remaining defensive argument is that by the first and second articles of the treaty between Japan and the United States, concluded November 24, 1894, proclaimed March, 1895 (29 Stat. 848), the officers and crew of this schooner are given the same rights in Alaskan waters, with reference to fishing, as are given to our own citizens [and] that statutes which discriminate against aliens, in violation of their treaty rights, are void. In re Ah Chong [C. C.] 2 Fed. 733; In re Tiburcio Parrott [C. C.] 1 Fed. 481; Yick Wo v. Hopkins, 118 U. S. 356 [6 Sup. Ct. 1064] (30 L. Ed. 220).

1909 Supp., p. 19, sec. 2.

The ship's "company" includes the captain and crew, and the section authorizes the imposition of a single fine against the com

leaves its purport and meaning unchanged. In brief, the law under the amendment is what it was before, so far as it directs that a suit be brought to quiet title. If a person, association, or corporation in the occupation of land for the purpose of trade, manufacture, or productive industry claims by right of occupation land whether surveyed or unsurveyed which is included in a homestead settlement, he must at the appropriate time bring a suit to determine in a court the questions on which his right of occupation depends. The jurisdiction of the land office to determine contests between locators of mining claims and homestead settlers remains as it was before." Nelson v. Brownell, (C. C. A. 9th Cir. 1912) 193 Fed. 641.

operative, having nothing to which it could apply. The legislation, read in the light of the situation and of the uniform policy which had so long prevailed of prohibiting more than one entry to one person, makes it plain that Congress did not intend to except the unsurveyed coal lands of Alaska from the operation of the restrictions which attached to the sale of the surveyed coal lands in Alaska and elsewhere." United States v. Munday, (1911) 222 U. S. 175, 32 S. Ct. 53, 56 U. S. (L. ed.) 149.

The authorities here cited do no more than affirm the fundamental principle that state laws and municipal ordinances may not override national treaties; and they give no sanction to an argument questioning the validity of a national law. The power of Congress to enact laws for subsequent observance is not restricted by prior treaties with foreign nations. The Chinese Exclusion Case, 130 U. S. 581, 9 Sup. Ct. 623, 32 L. Ed. 1068. Moreover, the articles of the treaty referred to contain no allusion to fishing privileges, and do not purport to grant any right to sea rovers to resort to American fishing grounds for the purpose of taking fish for their own consumption or for any purpose whatever."

Fishing by aliens to supply their personal need for food is prohibited by this section. The Tokai Maru, (C. C. A. 9th Cir. 1911) 190 Fed. 450.

pany in addition to the fine imposed against the vessel as a distinct entity. The Tokai Maru, (C. C. A. 9th Cir. 1911) 190 Fed. 450.

1909 Supp., p. 25, sec. 1.

ex

Where provisions of this Act are irreconcilable with section 2324 of the Revised Statutes (see 5 Fed. Stat. Annot. 19), which was made applicable to Alaska by an Act passed June 6, 1900, 31 Stat. L. 321, sec. 26 (see 1 Fed. Stat. Annot. 32), section 2324 is necessarily repealed by implication. Thatcher v. Brown, (C. C. A. 9th Cir. 1911) 190 Fed. 708, wherein the court said: "It will be seen that by both the acts [R. S. 2324 and this section] the annual assessment work is required to be done 'during' the year. But by the former act a failure to complete such work within the year, while rendering the ground open to relocation, was not declared to work a forfeiture of the locator's rights; on the contrary, he, together with his heirs, assigns, or legal representatives, was pressly given the right to resume work upon the claim after such failure to complete it, provided no other location be made in the meantime. By its Act of March 2, 1907, however, Congress, while conferring upon locators in Alaska a privilege not given by section 2324 of the Revised Statutes, to wit, a provision permitting Alaskan locators to file for record an affidavit showing the performance of the required annual assessment work, which affidavit should be prima facie evidence of such performance, expressly declared that, upon the failure of the locator or owner of any such claim in Alaska to comply with the provisions of the act as to the performance of work and improvements, 'such claim shall become forfeited and open to location by others as if no location of the same had ever been made.'

"It is true that the Act of March 2, 1907, contains no express repeal of any previous provision of the statutes, and it is also true

1909 Supp., p. 36, sec. 2.

Effect of amendment. · "The Alaskan Code (June 6, 1900, 31 Stat. 321, 322, §§ 4 and 5, c. 786) created one District Court with three judges having general civil and criminal jurisdiction over the entire district, and authority to hold regular terms at Juneau, St. Michael's and Eagle City, and special terms at such times and places in the district as they or any of them might deem expedient. The Act of March 3, 1909 (35 Stat. 838, 839, c. 269), in providing for a fourth division did not contemplate an interruption of the functions of the judge throughout the entire district, nor did it destroy the unity of the District Court. But while preserving unimpaired the power of the court and judges, it fixed a new place, at which the same District Court must be held. It did not create a new tribunal, with new

that implied repeals are not favored. Still the courts are not at liberty to ignore a purpose to repeal clearly indicated by irreconcilable provisions. Here we have an old mining statute, made applicable to Alaska by the Act of June 6, 1900, expressly providing that while a failure on the part of the locator to complete the required annual assessment work would render the ground covered by the location open to relocation, yet such work might be resumed by the locator or his legal representatives, provided no other location had intervened, and then a later act to amend the law upon the subject in so far as mining claims in Alaska are concerned, which in terms declares that upon the failure of the locator to perform the required amount of work upon the claim within the year 'such claim shall become forfeited and open to location by others as if no location of the same had ever been made.'

"Both acts expressly require $100 worth of work or improvements to be done or made on or for the benefit of each claim during each year. But the consequences of a failure to complete such work or improvements within the year are differently declared, and such differences are irreconcilable. In the earlier act such failure is not declared to end the locator's right; but he is thereby given the right to resume the work after the expiration of the year, provided there has been no other location meanwhile. By the later act no such permission is accorded, and there is therein an express declaration that such failure works a forfeiture of the claim. To that extent the prior law, so far as it affects claims in Alaska, was necessarily repealed by the later one."

officers, to be organized in a new political division, but it continued the jurisdiction and power of the judge to be exercised anywhere in Alaska. It did not revoke his authority to summon jurors to attend at any session of the District Court, whether permitted to be held at Fairbanks under the Act of 1900 or required there to be held after July 1, under the Act of 1909. The principle involved is, in some of its aspects, like that considered in Rosencrans V. United States, (1897) 165 U. S. 257, 17 S. Ct. 302, 41 U. S. (L. ed.) 708, where it was said that 'jurisdiction is co-extensive with district and no mere multiplication of places at which courts are to be held or mere creation of division nullifies it."" Matheson v. United States, (1913) 227 U. S. 540, 33 S. Ct. 355, 57 U. S. (L. ed.) 631.

Vol. I, p. 444, sec. 4386.

Providing facilities for watering, feeding, and rest. It is the duty of a railroad company in carrying on interstate shipment of animals, not only to unload the same within the periods mentioned in the statutes, but to provide facilities reasonably sufficient and suitable for watering and feeding the animals and for allowing them an opportunity for rest. St. Louis & S. F. R. Co. v. Piburn, (1911) 30 Okla. 262, 120 Pac. 923, wherein the court said: "And it has been held that, even where the owner or custodian undertakes the attention of the animals, yet, that if he, for any cause, neglects or fails to care for them as required by the statute, it is the duty of the carrier to do so, and collect all charges and expense therefor in the manner authorized in the statutes. There have been various reasons men

tioned by different courts for the passage of this law. Some think it was passed for reasons of humanity; others that it was in aid of a healthful food supply for the nation, but, whatever the reason given, practically all unite in declaring it a wise and meritorious enactment."

a railroad company, in transporting an interstate shipment of animals, to comply with the duties imposed on it by this section, where the proof shows that the railroad was in possession of the animals about forty hours, and actually unloaded them within the period named in the statute, but unloaded them in pens so small that the animals were crowded and jammed in the pens as close together as in the cars, and could not lie down or move about, and where no troughs or other facilities were provided for watering or feeding them, and no water was provided, the proof justifies a finding that the railroad had not performed the duty required of it by the statute. St. Louis & S. F. R. Co. v. Piburn, (1911) 30 Okla. 262, 120 Pac. 923.

Measure of damages. — In a suit for damages to an interstate shipment of sheep, against a railroad company, based on its negligence in failing to unload the animals for water, food, and rest, the measure of damages is the difference, if any, in the fair market value of the sheep at the point of destination in the condition in which they were delivered and what it would have been at such point of destination if they had been properly unloaded and provided with food, water, and rest as required by statute. St. Louis & S. F. R. Co. v. Piburn, (1911) 30 Okla. 262, 120 Pac. 923.

A connecting carrier which receives live stock outside of the limits of a quarantined state is not liable under this section. United States v. Baltimore & O. R. Co., (1911) 222 U. S. 8, 32 S. Ct. 6, 56 U. S. (L. Ed.) 68.

In this case the quarantined state was Kentucky and the stock was received in Ohio. The court said: "The government urges an answer in the affirmative and contends that not only an initial carrier, but a connecting carrier, though it receive the stock in a state other than the quarantined state (in case at bar, Ohio) transports, within the meaning of the statute, stock from' one state 'into' another. The argument is that necessarily such connecting carrier is instrumental in the transportation of the stock from the place of shipment to its ultimate destination, and therefore within the reason and purpose of the law. "The contention is untenable. To receive a thing in Ohio is not receiving it in Kentucky, nor is transporting it in Ohio trans

porting it from Kentucky into Ohio. To sustain the indictment, therefore, we must disregard the plain and only direct signification of the words of the statute. Such extreme liberty with the words of a penal statute may not be taken. We are not unmindful that our function is to seek the intention of the lawmaker and that illustrations may be found where the literal meaning of words has been extended beyond their absolute sense. But the general rule is that penal statutes must be strictly construed. It is a familiar rule and need not be illustrated. The words of the statute, certainly when they have a sensible meaning and a definite and unmistakable signification, as the words of the statute under review have, mark its extent. We do not mean to say that ambiguity in words may not be resolved by the clear purpose of the statute.

"If, however, there be no ambiguity, the words of the statute are the measure of its meaning. If there be ambiguity, the char

acter of the statute determines for a strict or liberal construction. A criminal statute is strictly construed. Courts are not inclined to make 'constructive crimes.' We therefore might have to decide against the indictment, even if there were more ambiguity in the statute under review than we find in it. It manifests care and a studied purpose to define the extent of the quarantine and of what shall constitute violations of it. Within its limits there shall be no delivery of stock for transportation beyond them into any other state or territory' by public or private conveyance or by driving. There is no obscurity whatever. A sensible, definite meaning is expressed. There must be a delivery for or a receiving for transportation 'from the quarantined portion of any state or territory into any other state or territory That reception and that transportation are the elements of the crime and must exist to constitute it. None of these elements are charged against the defendant. It did not receive the sheep for transportation in Kentucky or transport them from' Kentucky 'into' Ohio. It received them in Ohio and transported them in Ohio, and the statute thus construed adapts the remedy to the mischief. In other words, if the breaking of quarantine is prevented, the purpose of the statute is fulfilled without subjecting to criminal accusation and penalties distant carriers who, it may be, are

1909 Supp., p. 43, sec. 1.

-

Carrier as an insurer. If the pens provided by the carrier are properly equipped, so that the sheep may be properly fed, watered, and rested, he has discharged his full duty, unless it is made to appear that the surrounding conditions were such that the carrier should have anticipated that the sheep would probable be molested, and thus not afforded proper rest. If such is not the law, then the carrier is made an absolute insurer of the safety of the sheep while unloaded for food, rest, and water, regardless of the fact that by the exercise of reasonable diligence he did not know, and could not have discovered, the threatened danger to which the sheep might be exposed. Beckman v. Southern Pac. Co. (1911) 39 Utah 472, 118 Pac. 118.

Part of period elapsing in foreign country. The law is applicable to a shipment originating in one state and ending in another, when the deprivation of food, water and rest for the statutory period is shown, even though part of such period elapsed while the animals were in a foreign country. Grand Trunk Ry. Co. of Canada v. United States, (C. C. A. 2d Cir. 1911) 191 Fed. 803.

ignorant of the existence of the quarantine; and ignorant they may be, for the statute (sec. 1) requires the Secretary of Agriculture to give notice of the establishment of quarantine only to the 'transportation companies doing business in or through' the quarantined state. It would be strange indeed if the statute intends to confound unwillful with willful acts by uniting in criminality and penalties the companies to which no notice of quarantine is required to be given with those to which notice is required.

"We do not, of course, mean to say that the movement of sheep in Ohio did not tend to spread contagion, but it is certain there could have been no movement of them in Ohio if they had not been transported 'from' Kentucky into' Ohio.

"In United States v. El Paso & N. E. Railroad Co. 178 Fed. Rep. 846, and in United States v. Chicago, Burlington & Quincy R. R., 181 Fed. Rep. 882, the same construction was given to the statute that we have given it. Also by the Circuit Court of Appeals for the Eighth Circuit in St. Louis. St. Louis Merchants' Bridge Terminal Ry. Co. v. United States, 188 Fed. Rep. 191. In United States v. Southern Railway Co. (Circuit Court Dist. S. C.), 187 Fed. Rep. 209, a contrary ruling was made, and a connecting carrier which received stock outside of the limits of the quarantined states was held to be liable."

foresight which condition the anticipation and avoidance of the other accidental or unavoidable causes described in this law is that degree of diligence and foresight which reasonably prudent and careful men ordinarily exercise under similar circumstances. Chicago, B. & Q. R. Co. v. United States, (C. C. A. 8th Cir. 1912) 194 Fed. 342.

Waiver of statutory provisions by control or otherwise. The statute imposes upon the carrier the primary duty of seeing that the stock is not confined in cars longer than the prescribed period, for the command of the statute is, "Thou shalt not" fail to do the thing required; and, while the carrier may arrange with the shipper or the person in charge for unloading, the company cannot thereby shift the burden, and the responsibility for unloading in time still rests with it. Oregon-Washington R. & Nav. Co. v. United States, (C. C. A. 9th Cir. 1913) 205 Fed. 337.

This law positively prohibits the confinement of animals for a period longer than 28 consecutive hours, save only that by special agreement and written request of the owner the time of confinement may be extended to 36 hours. The extreme limit, therefore, to which the wishes of the owner become relevant, is 36 hours. An agreement, therefore, for a confinement beyond that time, is a contract to do that which the law says may not be done, and is void and nonenforceable a defense to the action for damages to

as