, l!'EDEIUJ.. REPOI\TER.··
by ·certificates isr<l1ed by the Chinese government, which, among other things, shall state the "jimncr and present occupation or profession, and place of residence in China, (If the person to whom the certificate is issued." These provisions, as well as many others that
might be cited to the same effect, show conclusively that the act was passed to carry into effect the right acquired under the last treaty to exclude Chinese laborers who were subjects of the Chinese government. The same view is taken of the statute by the learned judges of the ninth circuit. In the case of The Chinese Jferchant, ubi supra, it is said by Mr. Justice FIELD that "the act of May 6, 1882, was framed in supposed conformity with the provisions of this supplementary treaty. In the inhibitions which it imposes upon the immigration of Chinese, there is no purpose expressed in terms to go beyond the limitations prescribed by the treaty." In the Case of George1\follcan, 14 FED. REP. 44, it is said by Judge DEADY that "this act was passed in pursuance of the treaty with China of November, 1880, supplementary to that of July 28, 1868," and that "it is not to be presumed that congress in the passage of this act intended to trench upon the treaty of 1868, as modified by that of 1880." See, also, In re A h Sing, 13 FED. REP. 286; In re AlL Tie, Id, 291; In re Ho King, 14 FED. REP. 724. The term "Chinese laborers," as used in the act, must, therefore, have the same signification as when used in the treaty, and must be held to mean the subjects of the government of China, to which the pr0visions of the treaty relate. For these reasons, we are of opinion that the inhibitions of the act are not to be construed as applying to perso:1s of the Chinese race who are not and never were subjects of or residents within the Chinese empire. As Ah Shong is a person of this description, it follow8 that the defendant cannot be guilty of a violation of section.2 of the act, and is therefore entitled to be discharged.
UNITED STATES V. HOWARD.
(Circuit (Jourf, D. Oregon.
August 15, 1883.) 2148
OF TIIE REVISED. STAT-
1:3ection 2148 of the Revised Statute" section 2 of the act of August 18, 1856, (11 St, 80,) is in legal effect a prolllbition ag:ain,t any person who has moved from the Indian country returning thereto, and the penalty therem provided for its violation may be enforced by indictment or information. 2, REMEDY EY 2124 OF TIlE REVISED ST.\,TUTES, Section 2124 of the Revised Statutes ought to be construed as only applicable to penalties imposed by the act of June 30, 1834, (4 Bt. 729,) of which it is a part; but if considered applical;le at all to section 2148, supra, as lJeing,included
UNITED STATES V. HOWARD.
in title 28 of the Revised Stntutes, the remedy therein provided for the enforcement of the penalty for returning to an Indian reservation is not of the common-law remedy by indictment or information, but only cumulative.
Information for Returning to tbe Siletz Reservation, contrary to section 2148 of the Revised Statutes. James F. Watson, for plaintiff. II. Y. Thompson and Geo. II. Durham, for defendant. DEADY, J. On October 31, 1882, the district attorney filed an information in the district court charging Joseph Howard with the crime of returning to the Indian country, to-wit, the Siletz Indian reservation, after being removed therefrom by the Indian agent then in charge thereof. The case was afterwards transferred to this court, where the defendant was arraigned and tried upon a plea of not guilty, and a verdict found against him. Thereupon he filed a motion in arrest of judgment and for a new trial on various grounds, only one of which was insisted on at the argument of the motion, and that is: "The punishment sought to be inflicted upon the defendant cannot be inflicted in the course of a criminal prosecution, but the penalty only can be recovered in a civil action therefor." The information is brought under section 2148 of the Revised Statntes, the same being taken froro. section 2 of the Indian appropriation act of August 18, 1856, (11 St. 80,) and reads as follows: "If any person who has been removed from the Indian country shall thereafter return or be found within the Indian country, he shall be . liable to a penalty of $1,000." By section 10 of the act of June 30, 1834, (4 St. 733; section 2147, Rev. St.,) Indian agents were authorized to remove from the Indian country "all persons found therein contrary to law," but no punishment was then provided in case of the return- of any such person. Section 2 of the former act referred to section 10 of the latter one, and declared that if any person who had been removed under said section 10 from "the Indian country," should thereafter return to or be found therein, "such offender shall forfeit and pay the sum of $1,000." _ _ These two sections of the Revised Statutes occur in Chapter 4 of title 28 thereof; and in chapter 3 of said title occurs section 2124:,the same being section 27 of the act of June 30, supra,-which provides:
"All penalties which shall acc;:ue under this title shall be sued for and recovered in an actic.ll, in the r.att:re of an action of debt, in the name of the United States, before any court having jurisdiction of the same, in any state or territory in which the defendant shall be an;ested or found; o:;Je-half to the use cf the informer, and the other half to the use of the Unitecl ";tates. except When the prosecution shall be first instituted on behalf of the Unite<l :3tates, -in which case the whole shall be to their use."-
Counsel for the defendant maintains that this section applies to a penalty inclirred under section 2148, and excludes any other mode of
proceeding against the party incurring it than a civil action, as for a debt. The rule is well settled that when a statute prohibits an act theretofore lawful, and imposes a penalty upon a party committing but prescribes no mode of proceeding to enforce it, such party may be prosecuted by indictment or information, and this mode of proceeding is not excluded by a subsequent statute prescribing another remedy. But if that portion of the statute containing the prohibition and penalty also preseribes a mode of proceeding to enfor:le the same, as a civil action to recover the penalty, as a debt, such proceeding is the only one that can be maintained. 1 Russ. Cr. 49; 1 Bish. Crim. Law, 277,278; 1 Whart. Law, §§ 24-26; Rex v. Wright, 1 Burr. 543. Under this rule a party committing the act prohibited by section 2 of the act of 1856, 8UpTa, might have been prosecuted therefor criminally. There was DO other mode of proceeding pl"Ovided in the act. Has the subsequent collation of this section in the Revised Statutes, into the same title with section 27 of the act of 1834, changed its character in this respect and restricted the means of its enforcement to the remedy presaibed by said section? Upon the face of the Revision, section 2148 is within the purview of section 2124, because it is in the same title; but I do not think that congress intended, in the enactment of this collation of these two statutes, to limit the mode of rroceeding under section 2148 to the remedy pre· scribed in section 2124. In U. S. v. BOll:en, 100 U. S. 508, it is held that "when there is a substantial doubt as to the meaning of the language used in the Revision, the old law is a valuable source of information." But, when the meaning is pbin, the courts cannot look to the statutes which h9.ve been revised to see if congress erred in that Revision, but may do so when necessary to construe doubtful language used in express· ing the meaning of congress. And by section &600 of the Revision itself, it is declared that "tha arrangement and classification of the several selections of the frovision have been made for the purpose of a more convenient and orderly arrargement uf the same, aud therefore no inference or presumption of a legislati,e construction is to be drawn by reason of the title under which any particular section is placed." But, admitting that section 21-18 is a contemporaneous enactment with section 2124, and a part of one and the same statute, the remedy provided in the latter section is not exclusive. T,he rule seems to be that where a particular remedy is given for the commission or omission of an act prohibited Dr enjoined by statute, it is not exclusive, unless it is found in juxtaposition, or immediate connection, with the prohibitory or mandatory clause. Rex v. Wright, supra; Russ, Cr., supra; 1 Bish. Cdm. Law, § 279. And the
section imposing the _penalty contains no provision for its enforcement, and the general direction to proceed in s11ch cases by a civil achon is given in another section, in a title of the Revised Statutes, consisting of a collation of several distinct statutes on cognate subjects. Here a penalty is imposed on a person who returns to a reservation after being removed therefrom. Under the circumstances, this amounts to a prohibition against the act of returning. Therefore such act is illegal and criminal. It is committed in violation of a public law forbidding it. 4 Black, 5; In re Pittock, 2 Sawy. 421. In the case of U. S. v. Sturgeon, 6 Sawy. 29, the defendants were proceeded against criminally in the district court of Nevada, under this section, 2148, for returning to the Pyramid lake reservation and tftking fish there, and convicted; and the judgment was afterwards affirmed in the circuit court by Judge SAWYER. -,., The case appears to have turned, however, upon the questions, whether the resexvation was "Indian country," and, if so, whether the defendants were there "contrary to law," without any objection being made to the mode of proceeding. On the whole, my conclusion is that section 2124 ought to be COIl.strued as only applicable to the penalties imposed by the act of June 30, U;36, (4 St. 729,) of which it is a part, but if allowed to apply at all to section 2148, as being a part of title 28 of the Revised Statutes, still, it being a separate and distinct provision from section 2184, the remedy therein provided for a violation of this latter section is not exclusive of the one given by the common law, but only cumulative. And therefore this section, 2148, being in legal effect a prohibition against the defendant's returning to t.he Siletz reservation, as he did, the penalty to which he is thereby made liable for so doing may be enforced against him by indictment or information. The motion 113 denied, and the defendant ordered to appear for sentence.
(Oircuit Oourt, S. D. New York.
PATEXTS-LICEXSEE XOT READL';"O LICEKSE.
"'here a party signs a license to use a patented maehine without it, he is bound bv \he terms thereof, unless he lack.s capacity to comprehend properly what 'he is doing. "'here a party is enjoined from infringing a patent, and instead of contest. ing the validity'of the 'patent and moving for a dissolution of the injunction, renews a license to U1'e the said patent, Which had been canceled by reason of a. b;reach thereof, such renewal will not be considered as made under duress, and will be hinding on him.
SAME-RENEWAL OF LICENSE-DU'RESS-IN.nrnCTIO:S.