A reading of these sections makes it apparent that the act makes it a misdemeanor to assist or encourage the importation of contract laborers, and that violations thereof may be punished with forfeiture and payment of $1,000 for each offense, which, it is provided, may be sued for and recovered by the United States, or by any person bringing the action, as debts of like amounts are recovered in the courts of the United States; and it is made the duty of the district attorney of the proper district to prosecute every such suit when brought by the United States.

The contention of the defendants in error is that the action for a penalty is exclusive of all other means of enforcing the act, and that an indictment will not lie as for an alleged offense within the terms of the act. The general principle is invoked that where a statute creates a right and prescribes a particular remedy that remedy, and none other, can be resorted to. An illustration of this doctrine is found in Globe Newspaper Company v. Walker, 210 U. S. 356, in which it was held that in the copyright statutes then in force Congress had provided a system of rights and remedies complete and exclusive in their character. This was held because, after a review of the history of the legislation, such, it was concluded, was the intention of Congress.

The rule which excludes other remedies where a statute creates a right and provides a special remedy for its enforcement rests upon the presumed prohibition of all other remedies. If such prohibition is intended to reach the Government in the use of known rights and remedies, the language must be clear and specific to that effect. Dollar Savings Bank v. United States, 19 Wall. 227, 238, 239. In the present case, if it could be gathered from the terms of the statute, read in the light of the history of its enactment, that Congress has here provided an exclusive remedy intended to take from the Government the right to proceed by indictment, and leaving to it only an action for the penalty, civil in its nature, then no indictment will lie, and the court below was correct in its conclusion.

It is undoubtedly true that a penalty of this character, in the absence of statutory provisions to the contrary, may be enforced by criminal proceedings under an indictment. The doctrine was stated as early as Adams v. Woods, 2 Cranch, 336, 340, wherein Mr. Chief Justice Marshall said:

"Almost every fine or forfeiture under a penal statute, may be recovered by an action of debt as well as by information. In this particular case, the statute which creates the forfeiture does not prescribe the mode of demanding it; consequently, either debt or information would lie."

In Lees v. United States, 150 U. S. 476, 479, the doctrine was laid down that a penalty may be recovered by indictment or information in a criminal action, or by a civil action in the form of an action for debt. It is to be noted that this statute (§ 5 of the Immigration Act) does not in terms undertake to make an action for the penalty an exclusive means of enforcing it, and only provides that it may be thus sued for and recovered. There is nothing in the terms of the act specifically undertaking to restrict the Government to this method of enforcing the law. It is not to be presumed, in the absence of language clearly indicating the contrary intention, that it was the purpose of Congress to take from the Government the well-recognized method of enforcing such a statute by indictment and criminal proceedings.

When we look to the history of the act we think it becomes manifest that Congress did not so intend. The Immigration Act of March 3, 1903, c. 1012, 32 Stat. 1213, was amended by the act of February 20, 1907, c. 1134, 34 Stat. 898, now under consideration. The original act made it unlawful to assist or encourage the importation or migration of certain aliens into the United States. The amended act declares that such assistance, etc., shall be a misdemeanor. It is not to be presumed that this change is meaningless, and that Congress had no purpose in making it. Nor can we perceive any purpose in making the change except to manifest the intention of Con

gress to make it clear that the acts denounced should constitute a crime which would carry with it the right of the Government to prosecute as for a crime. This term "misdemeanor" has been generally understood to mean the lower grade of criminal offense as distinguished from a felony. It is true that the term has often been used in the statutes of the United States without strict regard to its commonlaw meaning, and sometimes to describe offenses of a high grade, which have been declared in the statutes to be misdemeanors. In the statutes of the States the term has generally been defined as embracing crimes not punishable by death or imprisonment in the penitentiary. And we may note that the new penal code of the United States which will go into effect on January 1, 1910 (§ 335, c. 321, 35 Stat. 1088), provides that all offenses which may be punished by death, or imprisonment for a term exceeding one year, shall be termed felonies; all other offenses shall be termed misdemeanors. But at all times a misdemeanor has been a crime. Commonwealth of Kentucky v. Dennison, 24 How. 66,

69.

Congress having declared the acts in question to constitute a misdemeanor, and having provided that an action for a penalty may be prosecuted, we think there is nothing in the terms of the statute which will cut down the right of the Government to prosecute by indictment if it shall choose to resort to that method of seeking to punish an alleged offender against the statute. Nor does this conclusion take away any of the substantial rights of the citizen. He is entitled to the constitutional protection which requires the Government to produce the witnesses against him, and no verdict against him can be directed, as might be the case in a civil action for the penalty. Hepner v. United States, 213 U. S. 103.

We therefore reach the conclusion that the court erred in sustaining the demurrer to the second count of the indictment, so far as that ruling is based upon the construction of the statute in question. The judgment is reversed and the case

Argument for the United States.

215 U.S.

remanded to the District Court of the United States for the District of Massachusetts for further proceedings in conformity with this opinion.

Reversed.

UNITED STATES v. STEVENSON (NO. 2).

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

No. 293. Argued October 14, 15, 1909.-Decided November 29, 1909. Where Congress has made an act a crime and indictable it follows that if two or more conspire to commit the act they conspire to commit an offense against the United States within the meaning of § 5440, Rev. Stat.; and so held in regard to conspiring to assist immigration of contract laborers in violation of § 4 of the Immigration Act of February 20, 1907, c. 1134, 34 Stat. 898.

It is within the power of Congress to regulate the punishment of crimes and it may make the punishment for conspiring to commit a crime greater than that for committing the crime itself.

THE facts are stated in the opinion.

The Solicitor General for the United States:

Even if indictment will not lie for a violation of § 4 of the Immigration Act of 1907, Congress has made that offense an express misdemeanor; and such statutory classification of the crime brings a conspiracy to commit it unmistakably within § 5440, Rev. Stat. Kentucky v. Dennison, 24 How. 66, 99; United States v. Van Schaick, 134 Fed. Rep. 592; Cohen v. United States, 157 Fed. Rep. 651; United States v. Tsokas, 163 Fed. Rep. 129.

It is enough in any case to make an "offense against the United States" within the meaning of § 5440, Rev. Stat., that the offense which the conspiracy contemplates is a crime, in the fundamental sense of a prohibited public wrong, visited with personal punishment. Neither the mode of prosecution nor the severity of the punishment for the offense is material.

215 U.S.

Argument for Defendant in Error.

Moore v. Illinois, 14 How. 13, 19; Lees v. United States, 150 U. S. 476; Boyd v. United States, 116 U. S. 616; United States v. Britton, 108 U. S. 199, distinguished.

As to the form of proceeding by which a violation of § 4 is to be prosecuted, it is enough to say that § 5440 looks solely to the nature of the act which the conspiracy contemplates, and not to the nature of the remedy given for that act. It is enough that the object of the conspiracy is an act criminal in its own quality. United States v. Chouteau, 102 U. S. 603.

The operation of § 5440 does not depend upon the amount or extent of punishment imposed for the "offense against the United States." Death, imprisonment, fine, forfeiture-each suffices, if the wrongful act is public in nature and therefore a crime. Clune v. United States, 159 U. S. 590.

For cases of conspiracy under § 5440 to commit offenses under the statutes regulating railroads, where only a money penalty attached to the offense, see Thomas v. United States, 156 Fed. Rep. 897; United States v. Clark, 164 Fed. Rep. 75; Evans v. United States, 153 U. S. 584, 587; Coffin v. United States, 156 U. S. 432, 448.

Assisting or encouraging the importation or migration of alien contract laborers is naturally and usually a course of action rather than a single act, and is therefore closely analogous to engaging in a business or occupation, which may be averred generally without details.

In an indictment for aiding and abetting a crime it is enough to say that the defendants aided and abetted, without particularizing the acts of aiding or abetting. Cases supra and United States v. Simmons, 96 U. S. 360, 363; United States v. Mills, 7 Pet. 138, 141.

Mr. Herbert Parker, Mr. Charles C. Milton and Mr. Henry H. Fuller, for defendant in error, submitted:

The demurrer to the second count was properly sustained. Section 4 of the Immigration Act of 1907 will not support an indictment for conspiracy under § 5440, Rev. Stat.