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ant, his heirs at law, or his representatives, within the period of five years next succeeding the expiration of the eight year period, was a matter of right. (3) The rights of the claimant or his heirs at law were not absolutely cut off and barred by the expiration of these two periods, aggregating 13 years from the date of the entry, but the lawful claimant under the entry might, on the presentation of proper proofs and a sufficient showing why his proofs were not presented within due time, as provided by the rules above quoted, still be allowed to make final proofs and secure patent to the land on the theory that by his compliance with the provisions of the act as to planting and cultivating trees he had acquired an equitable claim to the land. (4) This equitable claim could not be cut off or canceled after the expiration of the 13 years, except upon notice to him either at the suit of an adverse claimant to the land or by the officers of the Land Department of the government themselves. (5) Under the rules of procedure in force in the Land Department of the government, when no adverse claimant intervened, and the statutory period for making final proofs had expired, the claimant presented to the officers of the local land office his required proofs, together with his showing made, in excuse of his delay in submitting final proofs. If his proofs were deemed sufficient, such proofs and showing were forwarded to the Commissioner of the General Land Office and the sufficiency of his showing in excuse of his delay to make final proofs was presented to and determined by the equitable board under rules promulgated by the Commissioner of the General Land Office in conjunction with the Secretary of the Interior and the Attorney General constituting such equitable board.
In re William Johnson, 4 Land Dec. Dep. Int. 397; Drew v. Comisky, 22 Land Dec. Dep. Int. 174; Southern Pacific R. R. Co. v. Stillman, 14 Land Dec. Dep. Int. 111; McGowan et al. v. Alps Consolidated Mining Co., 23 Land Dec. Dep. Int. 113; In re Morris Collar, 13 Land Dec. Dep. Int. 339; Pattin v. Smith, 21 Land Dec. Dep. Int. 315; Timpson v. Longnecker, 22 Land Dec. Dep. Int. 59; Carter v. Davidson, 24 Land Dec. Dep. Int. 288; Milne v. Thompson, 25 Land Dec. Dep. Int. 501; Wright v. Diggs, 29 Land Dec. Dep. Int. 174. While the above land decisions are not binding upon this court, yet, as said by the Supreme Court in United States v. Healey, 160 U. S. 136, 16 Sup. Ct. 247, 40 L. Ed. 369:
"When the practice in a department in interpreting a statute is uniform, and the meaning of the statute upon examination, is found to be doubtful or obscure, this court will accept the interpretation by the department as the true one."
And, as said by the court in Railroad v. Whitney, 132 U. S. 366, 10 Sup. Ct. 115, 33 L. Ed. 363:
"It is true that the decisions of the Land Department on matters of law are not binding upon this court in any sense. But on questions similar to the one involved in this case they are entitled to great respect at the hands of any court."
In United States v. Moore, 95 U. S. 760, 24 L. Ed. 588, the court says:
"The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not
to be overruled without cogent reasons. The officers concerned are usually able men, and masters of the subject. Not unfrequently they are the draftsmen of the laws they are afterward called upon to interpret."
It has been held, in principle, this court will take judicial notice of the rules of the Land Department of the government promulgated in accordance with lawful authority. Caha v. United States, 152 U. S. 211, 14 Sup. Ct. 513, 38 L. Ed. 415.
As has been seen, this is a prosecution for a criminal conspiracy to defraud the government out of its title to the land in question, and this conspiracy is sufficiently charged. To make out the completed offense it is necessary to charge the doing by one or both of the defendants of some one or more overt act or acts in furtherance of the common unlawful combination or agreement, and, as has been seen, such acts are charged. It is not necessary to charge all the overt acts done or necessary to be done to render the object of the unlawful conspiracy effective, or to charge the unlawful conspiracy proceeded to a successful termination as designed by defendants. It is enough, if, under any circumstances, unless interrupted, the conspiracy might have accomplished its unlawful purpose. As was said in United States v. Cassidy et al. (D. C.) 67 Fed. 698:
"It is not necessary, however, to a verdict of guilty that the jury should find that each and every of the overt acts charged in the indictment was in fact committed; but it is sufficient to show that one or more of the acts was committed, and that it was done in furtherance of the conspiracy."
Again, as said in United States v. Howell (D. C.) 56 Fed. 21:
"Where the evidence shows a continuous agreement or intention to secure such underrate, proof of a single overt act in furtherance of it is sufficient to make out the offense; and proof of separate overt acts will not show more than one offense where the agreement or combination is one and continuous." Again, it is said in United States v. Greene et al. (D. C.) 115 Fed. 343:
"A count in an indictment for conspiracy to defraud the United States, which charges as an overt act done in pursuance of the conspiracy the knowing and willful presentation and payment of false and fraudulent claims against the United States, is not insufficient, because it does not specify the particulars in which such claims were fraudulent; the only purpose of such count being to show that the unlawful agreement was carried into actual operation."
It has also been held that persons themselves incapable of committing the substantive offense may be guilty of conspiring to commit the offense. United States v. Stevens et al. (D. C.) 44 Fed. 132; Chadwick v. United States, 141 Fed. 225, 72 C. C. A. 343. Therefore I am of the opinion, while it might have been necessary for defendants to have presented to the officers of the Land Department of the government other proofs in addition to those set forth and charged in the indictment in the making of final proofs of compliance with the law by Huey under which he made entry before the widow could secure an interest in the land at the time proofs were submitted by defendants to the local land office, yet, as proofs of the nature set forth and charged in the indictment were required, and as such proofs would tend to support the actual, existing, uncanceled, though suspended, claim of Huey to the
land, I am of the opinion the demurrer will not lie, but must be overruled.
I am further of the opinion the case of Northern Pacific Railway v. De Lacey, supra, cited and so strongly relied upon by counsel for the defendant, is not in point, and for this reason: That was a pre-emption claim, and, as said by Mr. Justice Peckham in delivering the opinion of the court in construing the statutes relating to pre-emption claims: "We thus find that since 1871 all claimants of pre-emption rights lose those rights by operation of law, unless within 30 months after the date prescribed for filing their declaratory notices they made proper proof and payment for the lands claimed. The filing of their declaratory statement, and the record made in pursuance of the filing became without legal value if within the time prescribed by the statute proper proof and payment were not made. Whether such proof and payment were made would be matter of record, and, if they were not so made, the original claim was canceled by operation of law, and required no cancellation on the records of the Land Office to carry the forfeiture into effect. The law forfeited the right and canceled the entry just as effectually as if the fact were evidenced by an entry upon the record. The mere entry would not cause the forfeiture or cancellation. It is the provision of law which makes the forfeiture, and the entries on the record are a mere acknowledgment of the law, and have in and of themselves, if not authorized by the law, no effect. The law does not provide for such a cancellation before it is to take effect. The expiration of time is a most effective cancellation. In such a case as this, where the forfeiture occurs by the expiration of the 30 months within which to make proof and payment, the record shows that the claim has expired, that it no longer exists for any purpose, and therefore it cannot be necessary in order that the law shall have its full operation that an acknowledgment of the fact should be made by an officer of the Land Office. The law is not thus subject to the act or omission to act of that officer."
As has been seen in the case at bar, by the rules promulgated by the Commissioner of the General Land Office in conjunction with the Secretary of the Interior and the Attorney General of the United States, in accordance with authority conferred by the act of 1878, under which Huey made his entry, if final proofs were not made within the period of five years next succeeding the expiration of eight years after the entry was made, the entry was not forfeited and canceled, but merely suspended, and upon proper proofs and showing might ripen into a valid certificate and patent. No such provision is found in the law under which the De Lacey Case, relied upon by counsel for defendants, was ruled.
It follows the demurrer must be overruled. It is so ordered.
UNITED STATES v. CAMDEN IRON WORKS.
(District Court, E. D. Pennsylvania. January 24, 1907.)
1. INDICTMENT AND INFORMATION NECESSITY OF INDICTMENT CRIMES.
Offenses against the United States punishable by a fine or by imprisonment not in a state prison or penitentiary are not infamous, within the meaning of the fifth constitutional amendment, and any such offense may be prosecuted by information.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 9-23.]
2. CARRIERS-INTERSTATE COMMERCE-INFORMATION FOR RECEIVING REBATE. An information for receiving rebates in violation of Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599], on an interstate or foreign shipment made partly by railroad and partly by water, need not expressly aver that the connecting carriers are used under a common control, management, or arrangement for a continuous service, etc., so as to bring them within the terms of Interstate Commerce Law Feb. 4, 1887, c. 104, § 1, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154], where it sets out facts which show that such was the case in respect to the shipment in question.
In a prosecution under Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599], for receiving rebates from carriers on an interstate or foreign shipment of property over the lines of more than one carrier, any evidence tending to show that the shipment was made under a through bill of lading or upon a contract for continuous carriage by the several carriers is admissible for the purpose of proving that such carriers were used for the purpose of the shipment under a common control, management, or arrangement for a continuous carriage, and the schedules of rates filed with the Interstate Commerce Commission by the several carriers are admissible for the purpose of showing the lawful rate on such shipment.
In a prosecution under Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599], for receiving rebates on a shipment of property alleged to have been made from Philadelphia, as the initial point, to Winnipeg, in the province of Manitoba, it is immaterial that the shipment in fact originated in Camden, N. J., where the property was lightered across the river to Philadelphia and there delivered to the carriers named in the information.
5. SAME-SCHEDULE OF RATES FILED.
The provision of Act Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599], that in a prosecution of a carrier thereunder for giving a rebate any rate filed by it with the Interstate Commerce Commission, or in which it participates, "shall be conclusively deemed to be the legal rate" as against such carrier, its officers, or agents, merely prescribes the effect to be given such rate as evidence against the carrier, and does not affect its admissibility against a shipper who is being tried for receiving a rebate, and in such case it may properly be received as evidence that the carrier giving the alleged rebate was subject to the provisions of the act.
On Motion in Arrest of Judgment and for a New Trial.
HOLLAND, District Judge. This is a motion in arrest of judgment and for a new trial on an information charging the defendant with having received a rebate in violation of the provisions of the act of Congress approved February 4, 1887 (24 Stat. 379, c. 104 [U. S. Comp. St. 1901, p. 3154]), entitled "An act to regulate commerce," and the acts amendatory thereto.
First. The case was properly prosecuted by information. Rev. St. § 1022 [U. S. Comp. St. 1901, p. 720], provides:
"All crimes and offenses committed against the provisions of chapter seven, title 'Crimes,' which are not infamous, may be prosecuted either by indictment or by information filed by a district attorney."
This section does not preclude the prosecutions by information of other offenses not infamous (Ex parte Wilson, 114 Ú. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89), and infamous crimes referred to in the fifth amendment to the Constitution, in which a presentment or indictment of a grand jury must first be had, are such crimes as may be punished by imprisonment in a state prison or penitentiary. Other offenses, punishable only by fine or by imprisonment not in a state prison or penitentiary, are not infamous crimes, within the meaning of the Constitution and statutes of the United States. Ansbro v. United States, 159 U. S. 695, 16 Sup. Ct. 187, 40 L. Ed. 310; Fitzpatrick v. United States, 178 U. S. 304, 20 Sup. Ct. 944, 44 L. Ed. 1078.
Second. It is urged the information is defective because the Mutual Transit Company is described as a "common carrier by water route to the town of West Superior, in the state of Wisconsin"; but it is not alleged, as is necessary, that the Mutual Transit Company, being a water carrier, is "used under a common control, management, or arrangement for a continuous carriage," etc. While it is true the information does not aver the Mutual Transit Company is used under a common control, management, or arrangement in these words, it does set forth facts which show this water carrier is used under a common arrangement with the railroads, the other common carriers in the transportation of this property; and this is sufficient.
Third. It is incumbent upon the government to show that the Mutual Transit Company, being a water carrier, is a common carrier within the act as to the transportation of this property, and that it carried this property and carried it in accordance with an arrangement with the railroad companies; and in order to do so the prosecuting attorney was permitted to offer in evidence the Mutual Transit Company's station agent's abstract of through freight received from the Baltimore & Ohio Railway Company, those received from the Philadelphia & Reading Railway Company, the account sheets showing a settlement for this freight between the Mutual Transit Company and the railroads showing settlements in accordance with the tariff of rates filed by the railroads, and proofs of payment by the Mutual Transit Company to the railroad companies for the amount of their respective shares of this freight charged in accordance with the joint tariff rates publishedSome of these papers involved other accounts between the Mutual Transit Company and the railroad companies; but they were admitted for the purpose of showing the fact that the Mutual Transit Company shipped this freight, and in accordance with an arrangement with the railroad companies for a continuous carriage or shipment.
It has been determined by the Supreme Court that when goods are shipped under a through bill of lading from one point in one state to a point in another, and when such goods are received in transit by a state common carrier under a conventional division of charges, such carrier must be deemed to have subjected its road to an arrangement for a continuous carriage or shipment within the meaning of the act to regulate commerce; and any evidence which tended to prove these goods were shipped on a through bill of lading, or any other through document or writing, from any place in the United States to an ad