*458 ⚫457 *456 *455 Further, as in order to dispose of these, under oath required to be made by any regu objections it becomes necessary to consider not only the scope of the indictment, but, moreover, to construe the timber and stone act, and, it may be, to determine the validity of the regulation of the General Land Office heretofore referred to, the material portions of the act are in the margin,t as well as the regulation in question. lation of the Commissioner of the General Land Office, after the publication of the notice, and when the period had arrived for final action by the land office on the application to purchase. It seems to us clear that the indictment was thus restricted, since all the language in it speaks as of the time of the first statement, no reference is made to any regulation of the Commissioner supplementing the statute in any particular, and each of the nineteen overt acts charged to have been committed exclusively relates to the statement required by § 2, and to none other. We are of opinion that the elaborate argument made by the government concerning the use in the indictment of the words "declarations and depositions" can Contenting ourselves with referring to the quotation already made from the indictment, we are of opinion that the particular false swearing to which the indictment related was alone the verified written statement provided for in § 2 of the act, to be made on applying to purchase the land, and therefore the indictment did not embrace a charge concerning a statement or deposition tion as hereinbefore set forth, reading asing falsely that their applications were not follows: "But, as heretofore said, if he is made on speculation, but in good faith, to not in good faith, and has directly or in-appropriate the lands to the exclusive use directly made any agreement or contract in any way or manner with any persons by which the title he may acquire from the United States shall enure, in whole or in part, to the benefit of any persons except himself, then he commits perjury in making his sworn statement, and in making a deposition that he has not done those things; and any person who knowingly and wilfully procures and instigates the person to make such sworn statement or deposition is guilty of subornation of perjury," and especially to the words in said paragraph, "and in making a deposition that he has not done those things,"-upon the ground that the same is not the law, and misleading, and directs the attention of the jury to a matter not charged in the indictment. and benefit of the applicant or applicants, and that the applicant or applicants had not, directly or indirectly, made any agreement or contract in any way or manner by which the title to be acquired from the United States should enure, in whole or in part, to the benefit of any persons other than himself or herself?" and especially to the words therein, "or some of the persons," and also to the words, "or at the time of making their depositions or sworn statements when they made their final proofs before the United States commissioner," as misleading, and not the law, and applying to a matter not charged in the indictment, and variant from said indictment. †Timber and Stone Act. (Approved June 3, 1878, 20 Stat. at L. 89, U. S. Comp. Stat. 1901, p. 1545.) Chap. 151.-An Act for the Sale of Timber Defendants also except to the giving of the instruction hereinbefore set forth, which reads as follows: "The essential questions, then, for your determination, are, Does the evidence show, beyond a reasonable doubt, that Williamson, Gesner, and Biggs, or two of them, knowingly and intentionally entered into an agreement or combination to induce or procure persons to apply to purchase and enter the lands as alleged, or some part of Be it enacted by the Senate and House of the lands charged in the indictment, as lands Representatives of the United States of subject to entry under the timber and stone America in Congress assembled. That suract, after having first come to an agree- veyed public lands of the United States ment or understanding with such persons within the states of California, Oregon, and that they would convey the title which they Nevada, and in Washington Territory, not might acquire to Williamson and Gesner, or included within military, Indian, or other either of them? and, next, Does the evidence reservations of the United States, valuable satisfy you beyond a reasonable doubt that chiefly for timber, but unfit for cultivation, these defendants, so combining and agreeing, and which have not been offered at public intended that the persons, or some of the sale according to law, may be sold to citipersons, whom they might procure or induce zens of the United States, or persons who to make such entries, should wilfully and have declared their intentions to become deliberately, in making their sworn state- such, in quantities not exceeding one hunments or applications to purchase such landsdred and sixty acres to any one person or at the time of making the first paper called association of persons, at the minimum price a sworn statement, or at the time of mak- of two dollars and fifty cents per acre; and ing their depositions or sworn statements lands valuable chiefly for stone may be sold when they made their final proofs before the on the same terms as timber lands: ProUnited States commissioner applying to pur- vided, That nothing herein contained shall chase such lands, commit perjury by swear-defeat or impair any bona fide claim under serve only to suggest ambiguity in the in-, dictment, and possible doubt as to the meaning of the pleader. But, as of course, in a criminal case, doubt must be resolved in favor of the accused, we hold that the indictment does not charge a conspiracy to suborn perjury in respect of the making of the final proofs, and therefore that there was prejudicial error committed in the instructions to the jury on that subject which | were excepted to. application, we proceed to consider that subject. To do so it becomes necessary to determine whether the statute requires an applicant, after he has made his preliminary sworn statement concerning the bona fides of his application and the absence of any contract or agreement in respect to the title, to additionally swear to such facts after notice of his application has been published and the time has arrived for final action on the application. And this, of course, involves deciding whether the regulation of the Commissioner exacting such additional statement at the time of final hearing is valid. The inquiry concerns only the *2d and 3d sections of the act. Turning to the 2d section, it will be seen that it requires the applicant to make a sworn state As, however, the question which we have hitherto passed over, concerning the admissibility of the final proof to show motive in making the original application, may arise at a future trial, even although it be that the indictment charges only a conspiracy to suborn perjury as to the original any law of the United States, or authorize | benefit of any person except himself, which the sale of any mining claim, or the im- statement must be verified by the oath of provements of any bona fide settler, or the applicant before the register or the relands containing gold, silver, cinnabar, cop.ceiver of the land office within the district per, or coal, or lands selected by the said states under any law of the United States donating lands for internal improvements, education, or other purposes: And provided further, That none of the rights conferred by the act approved July twentysixth, eighteen hundred and sixty-six, entitled "An Act Granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for Other Purposes" [14 Stat. at L. 251, chap. 262], shall be abrogated by this act; and all patents granted shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under and by the provisions of said act; and such rights shall be expressly reserved in any patent is sued under this act. Sec. 2. That any person desiring to avail himself of the provisions of this act shall file with the register of the proper district a written statement in duplicate, one of which is to be transmitted to the General Land Office, designating by legal subdivisions the particular tract of land he desires to purchase, setting forth that the same is unfit for cultivation and valuable chiefly for its timber or stone; that it is uninhabited; contains no mining or other improvements, except for ditch or canal purposes, where any such do exist, save such as were made by or belonged to the applicant, nor, as deponent verily believes, any deposit of gold, silver, cinnabar, copper, or coal; that deponent has made no other application under this act; that he does not apply to purchase the same on speculation, but in good faith, to appropriate it to his own exclusive use and benefit; and that he has not, directly or indirectly, made any agreement or contract in any way or manner with any person or persons whatsoever, by which the title which he might acquire from the government of the United States should enure, in whole or in part, to the where the land is situated; and if any person taking such oath shall swear falsely in the premises, he shall be subject to all the pains and penalties of perjury, and shall forfeit the money which he may have paid for said lands, and all right and title to the same, and any grant or conveyance which he may have made, except in the hands of bona fide purchasers, shall be null and void. Sec. 3. That upon the filing of said statement, as provided in the second section of this act, the register of the land office shall post a notice of such application embracing a description of the land by legal subdivisions, in his office, for a period of sixty days, and shall furnish the applicant a copy of the same for publication, at the expense of such applicant, in a newspaper published nearest the location of the premises, for a like period of time; and after the expiration of said sixty days, if no adverse claim shall have been filed, the person desiring to purchase shall furnish to the register of the land office satisfactory evidence, first, that said notice of the application prepared by the register as aforesaid was duly pub. lished in a newspaper as herein required; secondly, that the land is of the character contemplated in this act, unoccupied, and without improvements, other than those excepted, either mining or agricultural, and that it apparently contains no valuable deposits of gold, silver, cinnabar, copper, or coal; and upon payment to the proper officer of the purchase money of said land, together with the fees of the register and the receiver, as provided for in case of mining claims in the twelfth section of the act ap proved May tenth, eighteen hundred and seventy-two [17 Stat. at L. 95, chap. 152], the applicant may be permitted to enter said tract, and, on the transmission to the General Land Office of the papers and testimony in the case, a patent shall issue thereon; Provided, That any person having a ment, giving many particulars concerning | for himself alone. When the context of the the land, its unfitness for cultivation; its statute is thus brought into view, we are being uninhabited; the absence of mineral, of the opinion that it cannot possibly be etc., etc.,-followed by the requirement that held, without making by judicial legislation the applicant shall declare that he makes a new law, that the statute exacts from the the application, not for the purpose of specu- applicant a reiteration, at the final hearing, lation, but in good faith, and that he in- of the declaration concerning his purpose in tends to appropriate the land to his own acquiring title to the land, since to do so exclusive use and benefit, and that no agree would be to construe the statute as inment has been made, directly or indirectly, cluding in the final hearing that which the with any person or persons whatsoever by very terms of the statute manifest was which the title to be acquired from the gov- intended to be excluded therefrom. We say ernment shall enure, in whole or in part, this, because, as the 3d section re-exacts in to any person except the applicant. And the final application a reiteration of some the section concludes by causing any false of the requirements concerning the character statement made in the sworn application to of the land made necessary in the first apconstitute the crime of perjury. Examin- plication, and omits the requirement as to ing the 3d section, it will be seen that it the bona fides, etc., of the applicant, it folprovides that upon the filing of said state- lows, under the elementary rule that the ment, as provided in the 2d section, it shall inclusion of one is the exclusion of the other, be the duty of the local land officer to post that the re-exacting of a portion only of a notice of the application in his office for the requirements was equivalent to an exsixty days, to furnish the applicant with a press declaration by Congress that the recopy of such notice for publication, at the maining requirements should not be exacted expense of the applicant, in the nearest at the final proof. And this becomes parnewspaper for sixty days, and when such ticularly cogent when the briefness of the period has expired, on proof of the publica- act is considered, when the propinquity of tion and of certain facts which the statute the two provisions is borne in mind,-a expressly enumerates, the applicant shall, propinquity which excludes the conception upon payment of the requisite charge, in that the legislative mind could possibly have the absence of a contest, be entitled to a overlooked in one section the provisions of patent for the land. Examining the items a section immediately preceding,-especialwhich the statute requires the applicant to ly when in the last section some of the remake proof of after showing publication, it quirements of the prior section are re-exis apparent that while some of the things repressed and made applicable to the final ferred to in the prior section, and which are required to be stated in the preliminary proof, are reiterated, all requirement is omitted of any statement regarding a speculative purpose on the part of the applicant, his bona fides, and his intention to acquire valid claim to any portion of the land may, object, in writing, to the issuance of a patent to lands so held by him, stating the nature of his claim thereto; and evidence shall be taken, and the merits of said objection shall be determined by the officers of the land office, subject to appeal, as in other land cases. Effect shall be given to the foregoing provisions of this act by regulations to be prescribed by the Commissioner of the General Land Office. Circular from the General Land Office Showing the Manner of Proceeding to Obtain Title to Public Lands under the Homestead, Desert Land, and Other Laws, issued July 11, 1899, p. 46: 11. The evidence to be furnished to the satisfaction of the register and receiver at time of entry, as required by the third section of the act, must be taken before the register and receiver, and will consist of the testimony of claimant, corroborated by the testimony of two disinterested witnesses. statement. Indeed, we cannot perceive how, under the statute, if an applicant has in good faith complied with the requirements of the 2d section of the act, and, pending the publication of notice, has contracted to convey, after patent, his rights in the land, The testimony will be reduced to writing by the register and receiver upon the blanks provided for the purpose, after verbally propounding the questions set forth in the printed forms. The accuracy of affiant's information and the bona fides of the entry must be tested by close and sufficient oral examination. The register and receiver will especially direct such examination to ascertain whether the entry is made in good faith, for the appropriation of the land to the entryman's own use, and not for sale or speculation, and whether he has conveyed the land or his right thereto, or agreed to make any such conveyance, or whether he has directly or indirectly entered into any contract or agreement in any manner with any person or persons whomsoever by which the title that may be acquired by the entry shall enure, in whole or in part, to the benefit of any person or persons except himself. They will certify to the fact of such oral examination, its sufficiency, and his satisfaction therewith. is borne in mind that the timber and stone act and the timber culture act were enacted by the same Congress and with only a few days' interval between the two. his so doing could operate to forfeit his | of the argument becomes apparent when it right. These conclusions are directly sus tained by a recent ruling in Adams v. Church, 193 U. S. 510, 48 L. ed. 769, 24 Sup. Ct. Rep. 512, construing the timber culture act. Under that law an applicant for entry was obliged, among other things, in making his application to swear to his good faith and to the absence of speculative purpose, in the exact words of the statute now under consideration. But in the timber culture act, as in the timber and stone act, the requirement was not reimposed in respect to the final proof. In the cited case the entrymen, who had complied with the statute in making his application, had, between the date of the application and the making of final proof, disposed of his right, and the question was whether by so doing he had forfeited his claim. In deciding adversely to the contention that he had, the court said (p. 516): "But as the law does not require affidavit before final certificate that no interest in the land has been sold, we perceive no reason why such contract as was found to exist by the supreme court of Oregon would vitiate the agreement to convey after the certificate is granted and the patent is sued. If the entryman has complied with the statute and made the entry in good faith, in accordance with the terms of the law and the oath required of him upon making such entry, and has done nothing inconsistent with the terms of the law, we find nothing in the fact that, during his term of occupancy, he has agreed to convey an interest to be conveyed after patent issued, which will defeat his claim and forfeit the right acquired by planting the trees and complying with the terms of the law. Had Congress intended such result to follow from the alienation of an interest after entry in good faith, it would have so declared in the law. Myers v. Croft, 13 Wall. 291, 20 L. ed. 562." It is elaborately insisted on behalf of the government that there is a difference between the timber culture act and the timber and stone act, resulting from the fact that in the one case in the interim between the entry and the final proof a long time must elapse and much is required to be done by the applicant, while in the other a short time intervenes and substantially nothing is required to be done. But this reasoning, in effect, assails the wisdom of Congress in omitting the requirement in the act under consideration, and affords no ground for inserting in the act requirements which Congress has, by express intendment, excluded therefrom. Besides, the weakness 28 S. C.-12. It remains only to consider whether it was within the power of the Commissioner of the General Land Office to enact rules and regulations by which an entryman would be compelled to do that at the final hearing* which the act of Congress must be considered as having expressly excluded, in order thereby to deprive the entryman of a right which the act by necessary implication conferred upon him. To state the question is to answer it. As observed in Adams v. Church (p. 517): "To sustain the contentions would be to incorporate interest in the lands, not found in the stata prohibition against the alienation of an ute or required by the policy of the law upon the subject." True it is that in the concluding portion of § 3 of the timber and stone act it is provided that "effect shall be given to the foregoing provisions of this act by regulations to be prescribed by the Commissioner of the General Land Office." But this power must, in the nature of things, be construed as authorizing the Commissioner of the General Land Office to adopt rules and regulations for the enforcement of the statute, and cannot be held to have authorized him, by such an exercise of power, to virtually adopt rules and regulations destructive of rights which Congress had conferred. As, then, there was no requirement concerning the making in the final proof of an affidavit as to the particulars referred to, and as the entryman who had complied with the preliminary requirements was under no obligation to make such an affidavit, and had full power to dispose ad interim of his claim upon the final issue of patent, we think the motive of the applicant at the time of the final proof was irrelevant, even under the broad rule which we have previ ously in this case applied, and therefore that error was committed not alone in instructing the jury that the indictment covered or could cover the procurement of perjury in connection with the final proof, and that the jury might base a conviction thereon, but in admitting the final proof as evidence tending to show the alleged illegal purpose in the primary application for the purchase of the lands. Reversed and remanded. Mr. Justice Harlan is of opinion that no substantial error was committed, and the judgment should be affirmed. (207 U. S. 541) V. duction before a grand jury of material books and papers called for by a notice limited to such books or papers as relate STATE OF VERMONT, by Clarke C. Fitts, to or concern any dealings or business beAttorney General. tween January 1, 1904, and the date of the notice, October 10, 1906, with the parties review-named therein, who were cattle commissioners of the state, to be used relative to the matter of a complaint pending, and then and there to be investigated by the grand jury, in which the persons named in the notice were charged with having unlawfully sold diseased meat for food purposes at Burlington, Vermont, the notice also giving in detail the dates and amounts of checks and vouchers which the company was required to produce. 1. Whether the notice to a corporation to produce books and papers before a grand jury is broader than that provided for by Vermont act of October 9, 1906, is a question of the construction of the statute and of the notice, on which the decision of the state court is final, and not reviewable by the Federal Supreme Court on writ of error. Constitutional law-due process of law-hearing. 2. An opportunity for hearing, sufficient to satisfy any requirement of U. S. Const., 14th Amend., respecting due process of law, is afforded by the provisions of Vermont act of October 9, 1906, for the compulsory production of the books and papers of a corporation before a court or grand jury, where the corporation has full opportunity to show cause before the court why it does not produce such books and papers, and, by objection to the production before the grand jury, can raise the question before that body, and is entitled to be heard upon that question before the court to which it is the grand jury's duty to report the question for its action. Contempt disobeying order to produce Constitutional law-due process of law 8. Want of due process of law cannot be urged against proceedings taken pursuant to Vermont act of October 9, 1906, to compel Constitutional law — due process of law. a foreign corporation doing business in the 3. Due process of law is not denied a for-state to produce books and papers before the eign corporation doing business in the state by Vermont act of October 9, 1906, under which it may be compelled, under penalty of fine in case of refusal, to produce before a court or grand jury material evidence in the shape of books or papers kept by it in the state, and which are in its custody and control, although at the time outside the borders of the state. 4. There is nothing in the Federal Constitution which directly or impliedly forbids a state to confer judicial functions upon nonjudicial bodies. Witnesses-privilege. grand jury, on the theory that no compensation is provided for the time, trouble, and expense incurred in collecting documents outside the state and sending them into the state, and that private property is thus taken for public use without compensation, where the highest state court has held that the general law of the state in reference to the compensation of witnesses applies. Constitutional law — equal protection of the laws. 9. Corporations are not denied the equal protection of the laws secured by U. S Const., 14th Amend., by the provisions of Vermont act of October 9, 1906, under which corporations alone may be compelled to produce before a court or grand jury material books and papers in their custody or control. [No. 364.] 5. The objection that incriminating books and papers were required to be produced before a grand jury under Vermont act of October 9, 1906, without extending immunity from criminal prosecution, is not available to a corporation which has been fined for Argued December 3, 4, 1907. Decided Jancontempt in failing and absolutely refusing to produce any of the books and papers called for, with some unimportant excep Searches and seizures uary 6, 1908. tions, and has thus prevented the court from IN ERROR to the Supreme Court of the inquiring into the validity of the objection. compulsory production of books and papers. 6. An unreasonable search and seizure of the private books and documents of a corporation doing business in the state is not made by the proceedings under Vermont act of October 9, 1906, to compel the pro State of Vermont to review a judgment which affirmed a judgment of the County Court of the County of Chittenden, in that state, adjudging a corporation to be in contempt and fining it for its refusal to produce certain books and papers called for before a grand jury. Affirmed. See same case below (Vt.) 66 Atl. 790. |