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Haggin & Van Ness, (Paul W. Bennett and Jas. H. Budd, of counsel,) for appellant. W. L. Dudley and Baldwin & Campbell, for respondent.

PER CURIAM. The same principles announced by us in the case of Stockton Combined Harvester & Agricultural Works v. Glens Falls Ins. Co., 33 Pac. Rep. 633, (No. 14,685,) are applicable to the facts disclosed by this record, and upon the authority of that case the attempted appeal from the judgment or decree of December 1, 1890, will be dismissed, and the final judgment entered in the action on January 7, 1891, reversed. Judgment reversed, and ap peal from decree of December 19, 1890, dismissed.

(98 Cal. xviii)

STOCKTON COMBINED HARVESTER & AGRICULTURAL WORKS v. HAMBURGMADGEBURG FIRE INS. CO. (No. 14,

687.)

(Supreme Court of California. June 9, 1893.)

In bank. Appeal from superior court, San Joaquin county; J. G. Swinnerton, Judge.

Action by the Stockton Combined Harvester & Agricultural Works against the HamburgMadgeburg Fire Insurance Company. Judg ment for plaintiff. Defendant appeals. Reversed.

Haggin & Van Ness, (Paul W. Bennett and Jas. H. Budd, of counsel,) for appellant. W. L. Dudley and Baldwin & Campbell, for respondent.

PER CURIAM. All of the questions involved in this case were discussed at length in the opinion filed by us in Stockton Combined Harvester & Agricultural Works v. Glens Falls Ins. Co., 33 Pac. Rep. 633, (No. 14,685,) and upon the authority of that case the separate appeal from the so-called decree of December 19. 1890, will be dismissed, and the final judgment rendered in the action on January 7, 1891, will be reversed. Judgment reversed, and appeal from decree of December 19, 1890, dismissed.

(98 Cal. xviii)

STOCKTON COMBINED HARVESTER & AGRICULTURAL WORKS et al. v. AMERICAN FIRE INS. CO. OF PHILADEL PHIA. (No. 14,688.)

(Supreme Court of California. June 9, 1893.)

In bank. Appeal from superior court, San Joaquin county; J. G. Swinnerton, Judge.

Action by the Stockton Combined Harvester & Agricultural Works and others against the American Fire Insurance Company of Philadelphia. Judgment for plaintiffs. Defendant appeals. Reversed.

Haggin & Van Ness, (Paul W. Bennett and Jas. H. Budd, of counsel,) for appellant. W. L. Dudley and Baldwin & Campbell, for respondents.

PER CURIAM. Upon the authority of the case of Stockton Combined Harvester & Agricultural Works v. Glens Falls Ins. Co., 33 Pac. Rep. 633, (No. 14,685,) the attempted separate appeal from the judgment or decree of December 19, 1890, will be dismissed, and the final judgment in the action entered on January 7, 1891, reversed. Judgment reversed, and appeal from decree of December 19, 1890, dismissed.

(1 Okl. 396)

FINCH. UNITED STATES. (Supreme Court of Oklahoma. July 20, 1893.) PERJURY-WHAT CONSTITUTES-INDICTMENT-DE SCRIPTION OF OFFENSE-AUTHORITY OF OFFICEB TO ADMINISTER OATH.

1. An indictment for perjury alleged, inter alia, that "a certain land contest was pending, wherein one M. sought to have the homestead entry of one B.," for certain described land in Oklahoma territory, "canceled and forfeited to the United States,' and that defendant false ly testified that B. entered such territory prior to 12 o'clock noon on a certain day. Held that, if it was necessary for the indictment to allege that B. had an entry on the land described in the indictment, such fact sufficiently appeared.

2. St. Okla. art. 2, c. 21, (in effect December 2, 1890,) provides for the taking of testimony of witnesses by deposition before a probate judge in cases pending before United States land officers. Act Cong. March 3, 1891, (Supp. Rev. St. U. S. c. 543, § 17, cl. 3.) provides that, "in addition to the jurisdiction granted to the probate courts and judges thereof in Oklahoma territory by legislative enactments, which enactments are hereby ratified, the probate judges of said territory are hereby granted such jurisdiction in town-site matters, and under such regulations as are provided by the laws of the state of Kansas." Held, that congress intended to give to the act of the legislature (article 2, c. 21) the same force and effect as if originally passed by the former, and that, if the legislature had no power to pass it, the ratifying act gave it perfect vitality.

3. In an indictment for perjury committed by swearing falsely in a land contest, it is not necessary that it appear that such contest has been finally determined.

4. Rev. St. U. S. c. 15, § 800, provides that jurors to serve in the United States courts, "in each state respectively," shall have the same qualifications as jurors in the highest court in such state, and be drawn in the mode practiced therein, and such courts may "conform the designation and impaneling of juries" to the laws and usages relating to jurors in state courts, etc. Held, that such statute applied to territories as well as states, and that a judge of a United States court in Oklahoma territory could lawfully administer an oath to a juror on his voir dire, though there was no statute of the United States expressly authorizing him to administer it.

5. Even in the absence of section 800, the court had authority, under its implied power to do all things incident to the proper conduct of a jury trial, to administer an oath to and examine such juror on his voir dire, and the giving of false testimony by the latter, touching his qualifications to sit as a juror, was perjury.

Appeal from district court, Logan county E. B. Green, Judge.

Walter L. Finch was convicted of perjury and appeals. Affirmed.

H. R. Thurston, for appellant. Horace Speed, U. S. Atty.

DALE, J. This is an appeal from the United States district court, sitting in Loga: county. The action in that court was brought by the United States against Walter 1. Finch, under section 5392 of the Revised Statutes of the United States, charging th defendant with the crime of perjury. Th action was prosecuted on two counts, ashown by the indictment filed in the cause.

The case was tried, and defendant convicted on both counts of the indictment, at the September term, 1892. Upon such conviction, said defendant was by the court sentenced to imprisonment in the penitentiary for a term of two years on the first, and for four years on the second, count. Appeal was duly perfected, and defendant brings this case here, and asks a reversal of the judgment of the lower court, upon the following grounds: First, because the first count of the indictment has no allegation that John Backes had an entry on the land described in the indictment; second, the facts are insufficient, as stated in the first count of the indictment, to constitute any public offense against the laws of the United States; third, because the contest out of which arose the assignment of perjury in the first count of the indictment is yet undetermined by the officers of the land department; fourth, the facts stated in the second count of the indictment do not state facts sufficient to constitute any public offense known to the laws of the United States; fifth, the court erred in overruling the application made by the defendant for a con tinuance.

The first count in the indictment charges the defendant with having testified falsely before one John S. Calhoun, probate judge of Logan county, Okla.; that a land contest was pending before the United States land office at Guthrie, in said Logan county, wherein one Willard P. Mitchell sought to have the homestead entry of one John Backes canceled; that a commission to take the deposition of the defendant, Finch, was duly issued by the register of the land office, which commission was directed to the probate judge of Logan county; that the defendant, Finch, appeared before said probate judge, was duly sworn, and testified that John Backes, defendant in the land contest, entered the territory of Oklahoma prior to 12 o'clock noon on April 22, 1889. It is also alleged in the indictment that the question as to whether or not Backes entered the territory of Oklahoma prior to 12 o'clock noon of April 22, 1889, was material to the issue involved in the trial of the land contest, and it charges the defendant with having sworn falsely with reference to such material issue. The second count charges the defendant with having, upon his examination touching his qualifications to sit as a juror in the case of United States vs. Charles W. Quisenberry, sworn falsely with reference to his knowledge of the facts and parties to said cause; that said cause was pending in the United States district court, sitting in Logan county, Okla.; that said defendant, when examined on his voir dire, testified that he knew nothing whatever about the case pending, that he had no prejudices or feeling in the case, that he had not formed or expressed any opinion as to the guilt or innocence of said Quisenberry, etc. It is

alleged, further, in the indictment, that all the statements so sworn to were false.

Considering the assignments of error as they are presented, we find that the first ground of error, as alleged, is not well taken. It is claimed that the indictment has no allegation that John Backes had an entry on the land described in such indictment. Even if this were essential to the validity of the indictment, an examination of such instrument shows that such an allegation appears with sufficient certainty to apprise the defendant of that fact. Examining the first count of the indictment, the following language will be found: "A certain land contest was pending, wherein one Willard P. Mitchell sought to have the homestead entry of one John Backes, for the northeast quarter of section twenty-one, etc., canceled and forfeited to the United States." Here is an express allegation to the effect that the land contest was instituted for the purpose of having the entry of John Backes canceled. The entry is described as having been made upon a certain tract of land, and, in our opinion, if it were necessary to set forth the fact that Backes had an entry on the land described in the indictment, the same sufficiently appears therein.

The second ground of error, as alleged, calls into question the validity of article 2, c. 21, of the Statutes of Oklahoma, and the subsequent act of congress, found in section 17, c. 543, ratifying the same. The legislature of Oklahoma passed a law, which took effect December 2, 1890, and which, among other things, provided for issuing commissions from the different land offices in this territory to take the depositions of witnesses; such commission to be directed to a district judge, or commissioner of depositions in the district court, or to the judge of a county or probate court. The act further provides that the officer to whom the commission is directed shall have power to compel the attendance of witnesses, and to compel them to testify, and shall have power to administer an oath to the witnesses, and further provides for reducing the testimony to writing, and the transmission of the same to the land office from whence the commission issued. Clause 3, § 17, c. 543, found in the supplement to the Revised Statutes of the United States, which act was passed and took effect March 3, 1891, reads as follows: "Provided, that in addition to the jurisdiction granted to the probate courts and judges thereof in Oklahoma territory by legislative enactments, which enactments are hereby ratified, the probate judges of said territory are hereby granted such jurisdiction in town-site matters, and under such regulations as are provided by the laws of the state of Kansas." By the passage of this ratifying act, congress clearly intended to give to the act of the legislature the same force and effect as if passed originally by congress. If, as contended by

appellant, the legislature of Oklahoma had no power to pass the law in question, the act of congress ratifying the same gave to it all the vitality it would have had if it had first found expression in congress. Beyond | question, the lawmaking power may pass a statute giving the force of law to an instrument, previous statute, or document, without setting it forth at length. It is sufficient if it can be made certain. 7 Lawson, Rights & Rem. § 3758, and authorities there cited. This has frequently been done by congress, and no further example need be cited than section 11 of our organic act. This being true, it will be seen that the statute of Oklahoma which makes provisions for the taking of testimony of witnesses before a probate judge in cases pending before United States land officers is not alone a law of Oklahoma, but such statute is a law of congress; and it further follows that false swearing by the defendant, as set out in the indictment, is clearly within section 5392,the law under which the indictment was framed.

The third ground upon which a reversal is asked may be dismissed by stating that it is not necessary that the land contest should have been determined by the land department before a prosecution for the crime of perjury may be instituted. The crime is complete when the act is done, and has no relation whatever to the result of the contest for the land.

The fourth ground for the reversal, as stated, raises the question as to whether or not the crime of perjury will lie against a person who, on his voir dire, testifies falsely. Under the laws of congress, there is no express provision prescribing an oath for jurors. Section 800, c. 15, Rev. St. U. S., provides that "jurors to serve in the courts of the United States, in each state respectively, shall have the same qualifications * as jurors of the highest court of law in such states may have at the time when such jurors for services in Courts of the United States are summoned: and they shall be designated by ballot, lot, or otherwise, according to the mode of forming such juries then practiced in such state court, so far as such mode may be practicable by the courts of the United States, or the

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officers thereof. And for this purpose the said courts may, by rule or order, conform the designation and impaneling of ju ries, in substance, to the laws and usages relating to jurors in state courts, from time 10 time in force in such state." In the foregoing we find an express direction by congress, to the United States courts throughout the territory of this government, to impanel juries according to laws and usages of the locality where the case is tried. That the section above referred to applies as well to territories as states cannot be questioned. It is clearly intended to apply to the impaneling and selection of ju

ries in all United States courts. For the purpose of trying United States cases, or crimes against the laws of the United States, the court sitting in the case where the perjury is alleged to have been committed was a United States court, made such by the organic act of this territory. Under section 800, supra, it was the duty of such court to comply with the laws and usages of the statutes of Oklahoma in impaneling the jury, in so far as such laws and usages do not conflict with United States statutes. In the case of U. S. v. Bailey, 9 Pet. 238, the supreme court had under consideration a question as to whether or not perjury could be assigned upon a false affidavit taken before a state magistrate, authorized to administer oaths in pursuance of a regulation, or in conformity to the usage, of the treasury department. In that case it was admitted that there was no statute of the United States which expressly authorized any justice of the peace of a state, or any officer of the national government, judicial or otherwise, to administer the oath. But it was shown that the secretary of the treasury had established a regulation authorizing afhdavits made before any justice of the peace of a state to be considered in proof of claims; and in discussing the provisions of an act similar to section 5392, under consideration, the court says: "And we think that such an oath, auministered under such circumstances, would clearly be within the provisions of the act of 1823. That act does not create or punish the crime of perjury, technically considered, but it creates a new and substantive offense, of false swearing, and punishes it in the same manner as perjury. The oath, therefore, need not be administered in a judicial proceeding, or in a case of which the state magistrate, under the state laws, had judicial jurisdiction, so as to make the false swearing perjury. It will be sufficient that it might be lawfully administered by the magistrate, and was not in violation of his official duty." It will be seen from the foregoing quotation that the section under consideration has a broader significance than that usually accorded to it; that a prosecution under the same may be had when the oath is lawfully administered by an officer who does not act in violation of his official duty. No express authority having been given by any law of the United States for administering the oath in the case under consideration, the question presented is, did the court have an implied power to require the defendant to take an oath when examined upon his voir dire? If such power exists in the court, it must follow that if the defendant swore falsely he could be prose cuted under section 5392. In the case of U. S. v. Bailey, supra, in discussing the implied power of officers to administer oaths, the court says: "It is a general principle of law, in the construction of all powers of this

sort, that where the end is required the appropriate means are given." In the case under consideration the court was clothed with the power to try the issue joined. Necessarily incident to a proper trial of the cause was the impaneling of the jury, the examination touching their qualifications to sit as jurors to try such cause, and all steps usually taken to preserve to the defendant a trial by a jury of fair and imparial men. The impartiality of the jurors must be determined as an incident to an impartial trial, to the accomplishment of which end the court is bound. In order to more certainly determine who the proper men were to sit as jurors in the case, it became necessary for the court to exercise the power of compelling the jurors to truthfully answer questions touching their interest in the result of the cause. For that purpose the oath was lawfully administered, under the direction of the court, to the defendant, in this case. But we do not rest our judgment entirely upon the case of U. S. v. Bailey, supra. In the case of U. S. v. Nickerson, 17 How. 204, and in Territory v. Weller, 2 N. M. 470, the same principle is affirmed. We therefore find that both by the language of section 800, Rev. St. U. S., as well as by a power incident to the court which tried the cause, the oath upon which the perjury is assigned was lawfully administered, and that the giving of false testimony in his examination touching his qualifications to sit as a juror is an indictable offense, under the law.

The last-mentioned ground for reversal is not urged in the brief of the plaintiff in error, and we have no means of determining in what particular counsel assumed that the court erred in refusing to grant a continuance upon the application of the defendant. An examination of the transcript fails to disclose material error upon the part of the court, and we must conclude, therefore, that the objection urged is not well taken.

The judgment of the district court is afArmed.

(24 Or. 392)

MING YUE et al. v. COOS BAY, R. & E. R. & NAV. CO.

(Supreme Court of Oregon. July 10, 1893.)

MECHANICS' LIENS-LAW AND EQUITY.

Under the provisions of the Code retaining the distinction between suits in equity and actions at law, though abolishing the distinc tion in the forms of action, where the complaint in a suit to enforce a mechanic's lien fails to state a cause of suit, it cannot be retained and treated as an action for the money.

Appeal from circuit court, Coos county; M. L. Pipes, Judge.

Suit by Ming Yue and others against the Coos Bay, Roseburg & Eastern Railroad & Navigation Company. Complaint was dismissed, and plaintiffs appeal. Affirmed.

33P.no.13-41

J. M. Siglin and Bull & Cleary, for appellants. J. A. Gray and J. W. Hamilton, for respondent.

LORD, C. J. This is a sult in equity to foreclose a mechanic's lien for labor furnished and performed in the construction of the defendant's railroad. The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of suit, which demurrer the court sustained, and, the plaintiffs refusing to further plead, the court rendered judgment dismissing the complaint, from which judgment this appeal is taken.

The contention for the plaintiffs is that, even if the complaint fails to set out a case for equitable cognizance, it is sufficient, for the recovery of the money due for labor performed, as a cause of action, and hence that the court erred in dismissing the suit. In the practice codes of nearly all the states, not only the old forms of action, but the distinction between actions at law and suits in equity has been abolished. In this state the distinction heretofore existing between forms of actions at law is abolished, (Hill's Ann. Code, § 1,) but proceedings in equity are still kept distinct from actions at law, (Id. c. 5, tit. "Suits in Equity.") In this respect, our code system differs from the code system of many other states. In our practice, a suit is in equity, and relates to something of equitable, as distinct from legal, cognizance. Section 380, Hill's Ann. Code, provides that "the enforcement or protection of a private right, or the prevention of or redress for an injury thereto, shall be obtained by a suit in equity in all cases where there is not a plain, adequate, and complete remedy at law," etc. "The absence of a plain, adequate remedy at law," Swayne, J., said, "affords the only test of equitable jurisdiction, and the application of this principle to a particular case must depend altogether upon the character of the case, as disclosed in the pleadings." Watson v. Sutherland, 5 Wall. 79. The jurisdiction in equity and law is distinct and independent. Where, therefore, there is a plain, adequate, and complete remedy at law, a court of equity is without jurisdiction to grant relief. If the cause of action involves a purely legal right, it can only be prosecuted, and tried at law. In Phipps v. Kelly, 12 Or. 216, 6 Pac. Rep. 707, it is said: "A strictly legal right, unaffected by any equitable incident, for which there is a legal remedy, adequate and speedy, for its enforcement or protection, is not properly a subject-matter within the legitimate province of equity, and of which equity could take cognizance without depriving the defendant of his constitutional rights to a trial by jury." The distinction be tween actions and suits is not abolished by our Code. In Beacannon v. Liebe, 11 Or. 446, 5 Pac. Rep. 273, it was claimed that our Code had so blended law and equity that if the facts alleged in the complaint showed a

cause cognizable in equity, although it was brought as an action at law, the court ought not to dismiss it, but retain and try it as a suit; but the court refused to accede to this view, Thayer, J., saying: "Our Code, I think, preserves the forms of actions and suits as distinct from each other. There may be no very good reason why the distinction has been retained, but it is too strongly indicated in the Code to be ignored by the courts; and any change made in the practice in that particular must be effected by the legislative branch of the government. Litigants, in my opinion, will be compelled at their peril to elect as to which of the two jurisdictions they will resort to for relief, so long as the present line of partition between them is kept up." When, therefore, the plaintiffs, being in equity, failed to state in their complaint a cause of suit, notwithstanding they may have stated a cause of action, the court had no jurisdiction to retain and try such action, but was bound to dismiss the suit, and leave the plaintiffs to prosecute their action, if they have one, at law. There was no error, and the decree must be affirmed.

SMITH v. KELLY, Sheriff, et al. (Supreme Court of Oregon. July 10, 1893.) TAXATION-STATE BOARD OF EQUALIZATION-REAL PROPERTY - CLASSIFICATION MORTGAGES-INSTATUTES CREASE OF ASSESSED VALUATION REPEAL-SAVING CLAUSE IN SUBSEQUENT ACT. 1. Laws 1891, p. 182. §§ 7, 8, relating to the state board of equalization, provide that in equalizing the valuation of property as assessed in the different counties it shall consider real estate, including town and city lots, and personal property, separately; and that the board shall add to or subtract from the "aggregate valuation" of the real and several classes of personal property of every county, which they believe to be valued below or above its true value in money, such per centum in each case as will bring it to such true value. Section 3 provides that each member of the board shall take an oath that he will equalize all the property, both real and personal, as enumerated on the equalized assessment rolls of the several counties. By Code, §§ 2770, 2771, 2773, real estate is divided into three classes: (1) City, village, and town property, which, if divided into lots and blocks, shall be separately described on the assessment roll; (2) mortgages, deeds of trust, contracts, or obligations whereby land situated in more than one county is made security for payment of a debt; and (3) all other real property. Held, that real property, for the purposes of taxation, constitutes more than one class of property; and the authority of the state board of equalization to increase assessments is not limited to the aggregate valuation of real property, but it may increase the assessed valuation of mortgages separately as found on the assessment roll.

2. The real and personal property of M. county were assessed at 50 per cent. of their true cash value, according to the judgment of the assessor. The state board of equalization increased the assessments on lands and city and town lots 15 per cent., and on mortgages 100 per cent., of such assessed valuation. Held, that the statutes authorizing such increase were not in contravention of Const. art. 9, § 1, which provides for a just and uniform valuation of all property for the purposes of taxation.

3. In an action to enjoin the collection of taxes on a mortgage at such increased valuation, it appeared that the state board of equalization adopted a resolution to equalize real property at its fair value in money, and that the members of the board visited several counties, and endeavored to so equalize it. Held that, in the absence of evidence showing any willful intent or arbitrary act on the part of the board in making such increase to discriminate against the holders of mortgages, an injunction should not be granted.

as to

4. Hill's Code, §§ 2730, 2735-2737, 27532757, known as the "Mortgage Tax Law," were repealed by Act Feb. 10, 1893, (Laws 1893, without p. 6,) any saving clause taxes then due on mortgages. Act Feb. 21. 1893, (Laws 1893, p. 85,) provided that the taxes for the year 1892 should be collected in the same manner that they were collected prior to the meeting of the legislature. Each act had an emergency clause, and went into immediate effect. Held, that the two acts should be construed together, and as if constituting one act, and that the remedy for collecting such taxes was not destroyed by reason of the absence of the saving clause from the repealing act.

Appeal from circuit court, Multnomah county; L. B. Stearns, Judge.

Action by J. E. Smith against Penumbra Kelly, as sheriff, and Multnomah county, to enjoin the collection of certain taxes. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by MOORE, J.:

This is a suit against Multnomah county and its sheriff to perpetually enjoin the collection of a tax levied upon a mortgage taken by plaintiff as security for the payment of $9,000 upon real property. The complaint alleges that all real and personal property in said county was assessed at 50 per cent. of its true cash value, and that the assessment roll was examined and approved by the county board of equalization at such valuation, but that the state board arbitrarily increased the assessment upon the real property, including city and town lots, to 65 per cent., and upon mortgages to 100 per cent., of such true cash value; that the county clerk, in making the tax roll of said county, inserted the value so increased, extended the tax thereon, attached a warrant thereto, and placed it in the hands of the sheriff for collection; that plaintiff's mortgage, by said increase in the valuation, was taxed at $175.50, but should have been no more than $104.07, which sum he tendered the sheriff in full satisfaction of the tax thereon, but that said officer refused to accept the tender; and that the tax creates a cloud upon the plaintiff's mortgage. To prevent the collection of this alleged overcharge he prayed the injunction. The answer denied these material allegations, and the case, being at issue, was tried by the court, and a decree rendered dismissing the complaint, from which the plaintiff appeals.

He contends-First, that the state board of equalization had no authority to classify mortgages for taxation separate from real estate; second, that if such power were given, it would be in contravention of sec

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