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duty of the assessor to list such property and value the same according to his best judgment and information and add twenty per cent. thereto on account of such failure, refusal or neglect.” It is reasonable to presume that if it had been the intention of the legislature, in making the amendments, to leave it optional with the private individuals to avoid the payment of any tax by simply refusing to make a list, section 18 would also have been amended so as to make it apply only to cases provided for in section 6, viz. to the assessment of the property of corporations. The reading of the entire act as amended implies, in the absence of any direct provision to the contrary, that it is the duty of the assessor to make the list in the event that the taxpayer fails to do so from any cause. All the property within the county, not exempted by the statute, “is subject to taxation," and "shall be listed and assessed.” Sections 3, 4. It is unnecessary to cite other sections. It is well settled that “what is implied in a statute is as much a part of it as what is expressed.” U. S. v. Hodson, 10 Wall. 395, 406; Potter, Dwar. St. 145, rule 14. No authorities have been cited which go to the extent claimed by defendant, that the assessor could not make a valid assessment because no property was listed by the taxpayer, and after a somewhat diligent search none have been found. In Kentucky the right of the assessor to list property for taxation is denied by the courts; but the reason for such denial is based upon the ground that the statute of that state makes it the duty of other officers to act in making the assessment in cases where the taxpayer fails to furnish the list. Louisville & N. R. Co. v. Com., 85 Ky. 199, 3 S. W. 139; Clark v. Belknap (Ky.) 13 S. W. 212. But, under the statute of Montana, the right to assess all property situate within his county, subject to taxation, is vested in the assessor. As before stated, it is made the positive duty of the taxpayer to make out the list, and, as was said by the supreme court of California in City and County of San Francisco v. Flood, 64 Cal. 509, 2 Pac. 264: "If he fails to do so, and any loss should result to him in consequence of such failure, his complaints on such score should meet with no favor in a court of justice." It is a self-evident proposition that the defendant cannot take any advantage of his direct violation of the provisions of the statute, and by his own wrong avoid the payment of taxes justly due under the law. It is also evident, from a careful reading of the entire act, that the legislature did not intend that the performance of the taxpayer's duty to the government should be left merely to his willingness or caprice. We are of opinion that the complaint is sufficient to show that a legal assessment of the defendant's property has been made. The demurrer thereto, in so far as it affects that question, should have been overruled. The judgment of the circuit court is reversed, and the cause remanded for further proceedings, in accordance with the views expressed in this opinion.
BRODERICK V. BROWN.
(Circuit Court, s. D. California. May 13, 1895.)
UNITED STATES MARSHALS-MANNER OF EXECUTING WRITS-CONTROL BY COURT.
Where the marshal levies an attachment on a tin box and contents, but is unable to return an inventory of its contents, because defendant refuses to unlock the box, the marshal will not be ordered to open the box and return an inventory of its contents, as the responsibility of lawfully executing the attachment rests on him, and he must be permitted to determine for himself the manner of discharging his duty.
Attachment by William J. Broderick, receiver of the First National Bank of San Bernardino, against Joseph Brown. Plaintiff moved for an order to compel the marshal to return an inventory of a box on which he had levied the writ.
Curtis, Oster & Curtis, for complainant.
WELLBORN, District Judge. In this case, the marshal, in his return upon a writ of attachment issued herein, states, among other things, that the attachment was levied on one tin box and contents, and that he requested the defendant to unlock the same, which defendant refused to do, claiming the property to be exempt from execution, and that, therefore, he (the marshal) is unable to return an inventory of the contents of said box. Plaintiff now moves ex parte for an order directing the marshal to open the box, and return an inventory of its contents. I have not been able to find any authority or precedent for such an order. The responsibility of lawfully executing an attachment, including its return, unquestionably rests upon the marshal, and it seems logical and right that he should be permitted to determine for himself the manner of discharging a duty, for the neglect or improper performance of which he would be answerable to any party injured thereby.
Sections 787 and 788 of the Revised Statutes prescribe the duties and powers of marshals, and the latter section enacts that marshals shall have in each state the same powers in executing the laws of the United States as the sheriffs and their deputies in such state have by law in executing the laws thereof. It has been decided by the supreme court of California that a court has no power to order a sheriff to enforce an execution by levying on a particular piece of property. Fraser v. Thrift, 50 Cal. 476. In that case the court said:
“On motion of the plaintiff in execution, the court ordered the sheriff holding the writ to levy it upon a particular tract of land, claimed by the defendant in the writ to be exempt from forced sale on the ground that it was his homestead. The sheriff having refused to levy the execution on the land for this reason, the court, finding that the land was not exempt as a homestead, made an order directing the sheriff to proceed with the levy, from which order the sheriff appeals. Counsel bare failed to produce any precedent for such an order, and it is easy to see that, if such practice prevailed, it might in many cases result in serious perplexities. If so great an innovation in practice is to be introduced, it should be done by the legislature, and not by the courts."
The ground of said decision, although not expressly stated therein, must be the principle I have already enunciated, -that, where responsibility grows out of an official duty, the manner and measure of performance must be left to the determination of the officer upon whom the responsibility rests. Therefore, while the court, under suitable circumstances, may allow the amendment of a return, it cannot in any case direct what the return shall be. Motion denied.
UNITED STATES V. HARRIS et al.
(District Court, S. D. California. Nov. 30, 1894.)
USING THE MAILS TO DEFRAUD-INDICTMENT.
An indictment under Rev. St. $ 5480, for using the mails as a means to defraud, must directly allege that the fraudulent scheme itself included the intended use of the United States mail in its execution. Emil Harris and C. D. Platt were indicted for using the mails as a means to defraud. The court directed a verdict of not guilty, for defects in the indictment.
George J. Denis, U. S. Atty.
ROSS, District Judge. One of the constituent elements of the offense denounced by the statute upon which the indictment in this case is based is the intended use of the United States mail in aid or furtherance of the fraudulent scheme. It is therefore essential that the indictment allege directly, and not inferentially or by way of recital, that the scheme included the intended use of the mail. U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. 571; Brand v. U. S., 4 Fed. 394; U. S. v. Flemming, 18 Fed. 908; U. S. v. Wootten, 29 Fed. 703; U. S. v. Finney, 45 Fed. 42; U. S. v. Smith, 45 Fed. 562; Weeber v. U. S., 62 Fed. 740. From a careful examination of the indictment, I am unable to find any direct allegation that the fraudulent scheme that the defendants are therein alleged to have devised included the use of the post office of the United States in its aid or furtherance. It is alleged in more than one place in the indictment that, in pursuance of the alleged scheme to defraud, the defendants placed and caused to be placed in the United States post office at Los Angeles the letter set out in the indictment, and also that the letter so deposited was to further and effect the object of the conspiracy, which is alleged to be “to misuse the post-office establishment of the United States by devising a scheme to defraud.” In all of this there is no allegation that the fraudulent scheme itself included the intended use of the United States mail, which element, as has been said, is an essential constituent of the statutory offense. For this reason the court is obliged to instruct the jury to render a verdict of not guilty.
UNITED STATES v. LONG.
(District Court, S. D. California. May 20, 1895.)
USING MAILS TO DEFRAUD-INDICTMENT.
An indictment under Rev. St. 5480, alleging that defendant devised a fraudulent scheme “to be effected by opening correspondence *
George J. Denis, U. S. Atty.
WELLBORN, District Judge. There are three counts in the indictinent, but, so far as concerns the demurrer, they are alike, and may be considered together. The objections urged to the indictment are that the averment as to the devising of the fraudulent scheme alleged against the defendant is by way of recital, not direct statement, and that there is no charge whatever, unless it be by implication or inference, that the defendant intended, as a part of such scheme, to effect the same by opening correspondence through the postal establishment of the United States. The averment in question is as follows:
"That Benedict Long, late of the Southern district of California, heretofore, to wit, on the 1st day of January, in the year of our Lord one thousand eight hundred and ninety-five, having devised a scheme to defraud one J. W. Strickler, to be effected by opening correspondence and communication with said Strickler by means of the post-office establishment of the United States,
* in the furtherance and execution of said scheme, did knowingly, willfully, unlawfully, and feloniously place and cause to be placed in the post office of the United States at Vista, San Diego county, California, a certain letter," etc.
Section 5480 of the Revised Statutes provides as follows: “If any person, having devised any scheme or artifice to defraud to be effected by either opening or intending to open correspondence or communication with any person * * * by means of the post office establishment of the United States, shall, in and for executing such scheme or artifice, place or cause to be placed any letter * * * in any post office of the United States to be sent or delivered by the said post office establishment, or shall take or receive any such therefrom, such person so misusing the post office establishment shall, upon conviction, be punishable," etc.
Under this section the courts have repeatedly held that, to constitute the offense therein defined, three things are necessary: First, a scheme to defraud; second, as an essential part of the scheme, an intention to effect the same by opening correspondence through the mail; third, the depositing of a letter in the mail or taking one therefrom, in execution of such scheme. Stokes v. U. S., 15 Sup. Ct. 617; V. S. v. Smith, 45 Fed. 561; U. S. v. Wootten, 29 Fed. 702.
In the case of U. S. v. Harris, 15 Sup. Ct. 347, tried in this court last November, Judge Ross held that one of the elements of said offense was the intended use of the mail in furtherance or execution of the fraudulent scheme; and, because the indictment did not allege directly that the scheme included such intended use of the mail, he instructed the jury to return a verdict of acquittal. In the case of Weeber v. U. S., 62 Fed. 740, the precise point here involved was not discussed, or even referred to in terms, but the objections there urged seem to have been that, under the facts of that case, there was no likelihood that the use of the mail would effect the fraudulent purpose charged, and that such use was only one step in a series of acts intended to accomplish said purpose, and that, therefore, the indictment was bad. Against these objections the court held the indictment good. I do not, however, consider this last-named case as an authority in opposition to the rulings in the other cases above cited. Indeed, Judge Ross cites the Weeber Case, among other authorities, in support of his ruling in the Harris Case.
It is unnecessary, however, to further review this line of authorities, since the supreme court of the United States, in the late case of Stokes v. U. S., above cited, has authoritatively declared that:
"Three matters of fact must be charged in the indictment and established by the evidence: (1) That the persons charged must have devised a scheme or artifice to defraud; (2) that they must have intended to effect this scheme, by opening or intending to open correspondence with some other person through the post-office establishment, or by inciting such other person to open communication with them; (3) and that, in carrying out such scheme, such person must have either deposited a letter or packet in the post office, or taken or received one therefrom.”
The requirement is elementary that an indictment should allege with directness all the constituents of the crime it purports to charge. On this subject the supreme court of the United States has spoken in emphatic and unequivocal language, as shown by the following quotation:
“The general, and, with few exceptions, of which the present case is not one, the universal, rule on this subject, is that all the material facts and circumstances embraced in the definition of the offense must be stated, or the indictment will be defective. No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly, and not inferentially or by way of recital." U. S. v. Hess, 124 U. S. 486, 8 Sup. Ct. 571.
The averment here that the defendant, “having devised a scheme to defraud one J. W. Strickler, to be effected by opening correspondence and communication with said Strickler by means of the postoffice establishment of the United States," seems to be more in the nature of a recital than a positive allegation, and therefore, according to the authorities, is at least open to criticism. Assuming, however, without deciding, that this defect is one of form, and not fatal, the more serious objection remains that the indictment fails to allege that it was defendant's intention, as a part of his