UNiTED SrATl£SV. GARRETE?ON. t
(C:(rcuit Oourt, S.
The geMral public domain iBopen to ;private entry, and lands cannot be said to be reserVed for such entry; The lands reserved are those severed from the mass of publio lands, and appropriated: for governmental purposes.
SAME-OFFENSES AGAINST LAND LAWS-CUTTING TIMBER-!NDIOTMENT.
ATIONS-,'-LAND' SUBJEOT TO ENTRY·.
Tbe last of section .Rev·.St., forbids the cutting or.. removal of timber from lands ope;n to entry \iit1l the intent to use it for any other than United States naval purposes; but sUch intent mU$t be alleged in the information or indictment. . ..
Ris a "..en.I:Iral. ruIe in .. ..the c.on lil tnIction o. . .. that general preceded or foll,?wed by particular words. the same, or another. clause are qualified or restramed by them. . .· . .· ..'.' .. . 4. SAME-CUTTINGTIMBER""'-TuR'1>aNTINB' Bdiitm. · Rev. St. § 5888, makes thawanton destruction of timber on lands reserved for public uses acriml1, but does not coyer turpentine boxing or destruction of timber on lands open .for pre-emption,' homestead, and cash entries. Penal statutes cannot be extended beyond the obvious meaning of their terms on any plea of failure of and, if t'iieta is a fair doubt whether the act charged j:,ls embraceD. in·a.crimlnal, prohibition, that doubt is to be.resolved in favor of the accused.
At LaW. . On :demurrer to criminal information. The opinion covers points made on! original hearing and rehearing. L. H. Faith, for demurrant· .Y. D. lt1ckersham, Dist. Atty. ;, :for the United States. TOULMINIJ'. The first, second; and third counts in the information charge thedeftmdant with unUl.wftillyeutting, and procuring to be cut, timberon lands of the United Statei,"I\'hich, in pursuance of law, have been reserved for pre-emption,hotnestead, and cash entries; and the fOlli'th and fifth counts eharge hirtl'wi1:h wantonly destroying, and procuring to be 'wantonly destroyed;' timher on the same lands of the United States, with the 'same avel'mentthttt they were lands which, in pursuance of law, had been reserved /1(}r pre-emption, homestead; and cash entries. and that the cutting and wanton destruction of the timber was by boxing and chipping the same for turpentinepuTposes. The demurrers are, in substance, that the information fails to aver that the timber alleged to have been unlawfully cut and to have been walltonly destroyed was on lands of the United States which, in pursuance oflaw, had betn reserved or purchased for the use of the navy of the United States, or for military or other public purposes, and that it fails to aver the intent }Vith which the alleged cutting was done. It is conceded by the district attorney thai the information is not good under section 2461, Rev. St., under the latter clause of which it is necessary to aver the intent with which the cutting was done. But the contention is that the information is good under section 5388, Rev. S1., which provides, as
IReported by P. J. Hamilton, Esq., of the Mobile, Ala., bar.
'l'imended by act of June 4, 1888,'that "every person who unlawfully cuts * * * or wantbnly destroys * * * any timber standing upon the land of the United Stales which, in pursuance of law, may be reserved or purchased for military or other purposes, or upon any In-,dian reservation, * .!I' * shall pay a fine of" etc. "May be reserved)) here means "have been or shall be reserved," which are the 'words used ill the original act. See 11 S1. at Large. 408. Now ,can the information be maintained under this section, 5388, Rev. Elt.? This inquiry suggests two questions: First. What lands of the United States was this section d'esigned to protect? All the lands, . or certain lands, of the United States? Becondly. If certain lands, viz., lands reserved for particular purposes, do they include lands that are subject to pre-emption, homestead, and cash entries? It is a general rule, in the construction of statutes, that general words preceded or followed by particular words in the same or a subsequent clause, are qualified and restraiqed by the particular words. ,Or, to state it somewhat differentfy; "When general words follow, in a statute, words of particu-lar and special meaning, if there be' nota clear manifestation of adifferent legislative intent.. they are construed as applicable to persons or things,or cases oflike kind, as are designated by the·,particular words." Bish. St. Crimes, §§ 245; 246; Dwar; St. 69,79; Ch(l,pman v. Forsyth, 2 How; 202; Wool.seyv. Chde, 54 Ala. 885; Amos v.State, 73 Ala. 501. The mote general words "or other purposes," .following the more specific Ol'particnlar words "for military," upon a settled rule of construetion,larger legislative iIltention not being clearly expressed, must be construedas extending only, to purposl'-s ej'U8dem gerterw with military pur. poses; that is, governmental or publiCi purposes. A military purpose is apublic purpose. Public land to be reserved for use as smilitary post is not liable to entry under a pre-emption claim because appropriated for a public purpose. Wilcox v. Jackson, 13 Pet. 496; Leavenworth Rauroad Co. v. U. S., 92U. S. 742. "Land lawfully appropriated to any purpose becomes thereafter severed from the mass of public lands." Kansas Pac. Ry. Co. v. Atchison R. Co.. 112 U. S. 414, 5 Sup. Ct. Rep. 208; Railroad Co. v. Whitney, 132 U. S. 357, 8 Fed. Rep. 10 Sup. Ct. Rep. 112; U. S. v. Payne, 2 McCrary, 883. That is to say, land consigned to or set apart for any particular purpose,whether by reservation or purchase, becomes thereafter severed from the: mass of public lands.' Lands are appropriated by reservation for the establishment of trading houses, for1ortifications or military posts,' for light-houses, for cemeteries, for the use of schools, and the .like; and, when thus appropriated; they become thereafter severed from the mass of pnblic lands. See authorities. supra. "Legislation which reserved it [land] for any purpose exoluded it from disposal as the publiclands are usually disposed of." Le,avenworth Railroad Co. v. U. S., 92 U. S. 742, 748. And the court say that "every tract of land set apart· for special uses is reserved to the government. * *- There is no, difference * * *, whetherit be appropriated for Indian or for :other;
Now, if congress had intended by this section (5388) to protect the timber on all lands of the United States, and to provide for the punishment of depredators thereon, then why ,enumerate specially lands reserved for military purposes, Indian reservations, etc.? I think it is clear that congress intended by this provision of law to protect the timber on certain lands of the United States.-lands reserved for special purposes. This, however, is virtually conceded by the prosecution; for it is averred in the information that the lands on which the alleged depredation is said to have been committed were lands reserved for preemption, homestead, and cash entries. Now, do the reserved lands referredto in section 5388 include lands subject to pre-emption, homestead,and cash entries,? Are there any lands of the United States reserved for any such purposes? Sections 2257 and 2258 of the Revised Statutes provide that all lands belonging to the United States are subject to the right of pre-emption, except "lands included in any reservation, by any treaty, law, or proclamation of the president, for any purpose;" and section 2289, Rev. St., provides that lands subject to homestead entries are such "unappropriated public lands" as may be subject to preemption. In the case of Wilcox v. 13 Pet. 498, the court say that 'Hands which may have been appropriated for any purpose whatsoever are exempt from liability to the right of pre-emption," and that "all lands are exempt from pre-emption which are reserved from sale, pursuant to law, for any purpol'le." When lands reserved to the United States for any public purpose are again put in the market so as to become subject to entry at private sale, they lose their character as reserved lands, and become subjept to pre-emption. Clement8v. Warner, 24 How. 394. In the case of Clements v. Warner, 8upra, the court say that, whenever lands I'become llubject to entry at private sale, they lose their character as reserved lands, and will then be subject to the privileges of preemption in favor of settlers." In Newhall v. Sanger, 92 U. S. 761, the court say that "the words' public lands' are habitually used in our legislation to describe such as are to sale or other disposal under generallaws. * * * To them alone could the order withdrawing lands from pre"emption, private entry, and sale apply." The court in this case, as in all the other cases cited on the subject, clearly draw a distinction between .lands reserved and lands to which a pre-emption or homestead claim may attach. See, also, Aurrec.oechea v. Bangs, 114 U. S. 381, 5 Sup. Ct. Rep. 892. There is no doubt that the government can disposaof the public land by grant for public purposes, or reserve it from sale for such purposes; and, from the time this is done, such land is not subject to pre-emption entry. U. S. v; Yoder, 18 Fed. Rep. 372; U. S. v. Brandestein, 32 Fed. Rep. 738; Atherton v. Fowler, 96 U. S. 513; RaiLroad Ce. v. supra· . It is severed from the mass of public lands to which alone a pre-emption or homestead claim could attach, or on which such entry could be made. From the authoritie$ referred to, and under sections 2257-2289, Rev. St., it seems very clear to me that lands subject to homestead, pre-emption, and cash entries cannot be said to be lands reserved for any purpose. Such lands comprise the general
UNITED STATES V. GARRETSON.
public domain,-unappropriated lands,-lands not held back or reserved for any special governmental or public purpose. U. S. v. Payne, supra; Turner v. Union, 5 McLean, 344. But the district attorney contends that section 5388 should be ally construed, that is to say, so construed as to cover the unlawful cutting and wanton destruction oftimber iii any manner on all the lands of the United States; otherwise, this public mischief could not be preYented. The rule is .that the evident intention of the legislature ought not to be defeated by a forced and overstrict construction, but it has been long and well settled that penal statutes must be construed strictly; that the courts will not extend them beyond the obvious meaning of their words. U. S. v. Morris, 14 Pet. 464. Penal statutes cannot be extended beyond the obvious meaning of their terms on any plea of failure of justice. Sedg. St. & Const. Law, 279; Remmington v. State, lOr. 281; U. S. v. Reese,5 Dill. 405,414. If there is a fair doubt whether the act charged in the indictment is embraced in a criminal prohibition, that doubt is to be resolved in favor of the accused. U. S. v. Reese, U. S. v. Whittier, 5 Dill. 35; U. S. v. Clayton, 2 Dill. 219; U. S. v. Sheldon, 2 Wheat. 119; U. S. v. Wiltberger, 5 Wheat. 76. And I think we have seen that the obvious meaning of the words" reserved for other purposes" in the statute, construed in connection with the context, is reserved for other special public purposes. That this was the intention of congress, I have no doubt; and it is still clearer, I think, that land subject to pre-emption, homestead, and cash entries are the "public lan9s" of the United States,-those not reserved for any purpose. But section 2461, Rev. St., was designed for the protllction and preservation of these lands as a part of the public domain, and prescribes penalties for the cutting or removal of timber on or from the same. As was said by the court in the case of U. S. v. Schuler, 6 McLean, 28: "Section 2461 constitutes part of the land law of the United States, and was designed for the protection and the preservation of * * * the national domain. * * * The term' other land' in the statute has reference to its sUl'Veyed divisions, and contemplates the lands known and described in the pnblic surveys as distinct from those for naval purposes." And in Leatherbury v. U. S., 32 Fed. Rep. 780, Judge PARDEE says: "The object of the section [2461 Rev. St.,] was and is to preserve the timber on all the puhlic lands, where the lands have not been reserved," etc. . And he says that" trespasses other than the cutting or removing of the trees or timber, with the intent to export, dispose of, etc., were not contemplated nor provided for." HencE'! the contention that, unless it is held that the cutting of timber by boxing it for turpentine purposes, and the wanton destruction of timber, on all public lands, can be prosecuted under section 5388, Rev. St., such public mischiefs cannot be suppressed, and there would be a failure of justice. The answer is, it is the business of the courts to expound, not to make, the law; and, if congress has not thought proper to make the cutting of timber by boxing it for turpentine purposes, and the wanton destruction of timber on all lllndsof
t'he United States, indictable, I have no discretion. but am bound to declare the}fj.was I understand it, let the consequences be what they may. In my opinion, the demurrers to the information are well taken, and they
EMMONS 'V. UNITED STATES.
(Ollrcwl.t Oourt, D. Oregon. April 18, 1890.)
AQtlonsare in th3 national courts, against the government of theUnited States,.to recover the ,purchase prlue paid upon void entries of public land, under ·the ,1ll'Qvisions of the act ,of congress of March 8" 18!l7, ,authorizing suits ,againstthe UtJited Sta1'es.
',' su'ch actlOqs cannot be .maintained by ,assignees of the parties who made the , void entries; assignments of all,claiins the government being declared bIsection 3477,'Rev. St.; unless made with prescribed formalities, after issuance· ,'0 WlUTlj,J;ltiI W pay the claiJIls. . " .A petition to recover the purchase money paid to' the United States for land, , wbicli'showB,an allowance of the proposElcfentry by the register and receiver of the ,:1>roper distric,t land·office" and the issuance of a certificate to the entry man, and .failS to allege a surrender of such certificate, or to accoUnt' therefor, or to allege a: :: ,relinquishment,of all claims to the land under sucb entry, is insufficient.
, ," " .
b1i the Oourt.)
for plaintiff.,., . U. S. DiBt. 4tty.May, fpr the United States.
IIANFORD, J. has been a,rg1;led and submittednpona demurrer to the petition, based upon two grounds, appearing, it is alleged, upon the face of the petition, viz." insufficiency of the facts to jllstify theaction,and want ofjurisdiction in the court oithe sUbject-matter of the action; TheaUegtitions 'of the petition, in brief, are to the effect tll,atthree persons, each 9( whom wasent,itled to the benefits of the provisions of the act of congress providing for the sale of timber lands in the stat,es ?f 9alifornia, Oregon', and in the territory of Washington, approved June 3, 1878, in good faith, and in due conformity to the requirements of said act; 'and the rules and regulations of the departmentof the interior, made'their respective applications to purchase 160 acres of timber land in Oregon, and made' the required payments therefor; including fees amo'l1utihg to sum in each of the three cases of$41O; tha,t the said'applicaticms were allowed' by, the register and receiver of the proper district land-office, and final, certificates of purchase were .issued by the reCeiver; that afterwards the commissioner of the'general land-office; claiming that the lands were not timber lands subject to entry under saidadt arbitrarilyC8.nceled the several entries so made, and directed such (lalicellationto be entered in the records of the district