FEDERAL REPORTER I
UNITED STATES V. MANION.
Oowrt, D. Washington, N. D. December 10, 1890.)
1.. PERJURy-RULES AND REGULATIONS OF LA.ND·OFFICE. Rules and regulations issued by the commissioner of the generalland-office, pursl1ant to section 2351, Rev. St., do not have force as laws of the United States, within the meaning of section 5392, Rev. St., relating to perjury. 2. BAMlll-OATH BEFORE NOTARY PUBLIC. . Notaries public are not authorized by any law of the United States to administer oaths to affidavits required by the rules and regulations prescribed by the commissioner of the general land-office. a.'SAME. Perjury cannot be assigned upon an affidavit made before a notary public by a person In support of his claim to a preference right to purchase coal land under sections 2848, :t349, Rev. 8t.
(SyU,abu8lYy tM Court.)
Indictment for Perjury. P.: Sullivan, Asst. U. S. Atty. James Hamilton Lewis, for defendant.
HANFORD, J. This indictment is founded upon section 5392, Rev. St. U.S., which reads QS follows: "Every person who, having taken· an oath before a' competent tribunal, officer"Q1' ,peJ;son, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, OJ; certify truly, or that any written testimony, declaration, deposition, or certificate by him suoscribed is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punishable by a fine of not more than two thousand dollars, and by imprisonment at hard labor not more than five years; and shall, moreover, incapable of testimony in any conrto! the VniFed States until time as the jUdgment against him is reversed.» The peIjury alleged to have been committed by the defendant is assigned upon an affidavit made by him before Paul D'Heirry, a notary public, ill: support of his claim as a pre-emptorof coal land, under sections 2348'and 2349, Rev. St. U. S. 'A demurrer 'be'en interposed, raising the question whether such an affidavit is authorized or required bY,aQY law9fthe United States, and whether a notary public is competent ,to administer an oath to such affidavit. Section 2347 et seq., Rev. St. ,relating to sale of coal lands, does not in terms prescribe or authorize such an 'affidavit as the one now under consideration, nor confer any authority upon notaries public; and no act of congress has been called to my attention which does authorize the oath, or vest in such officer the power to administer it, and according to my understanding of the decisions of the supreme court of the United States in the cases of U. S. v. Curtis, 107 U. S. 671,2 Sup. Ct. Rep. 507; U. S. v. Hall, 131 U. S. 50, 9 Sup. Ct. Rep. 663; U. S. v. Perrin, 131 U. S. 55, 9 Sup. Ct. Rep. 681 j and U. S. v. Reilly, 131 U. S. 58, 9 Sup. Ct. Rep. 664, for want of statutory provisions covering these points, the case is not within section 5392. Section 2335 only provides, in effect, that any affidavit required
UNITED STATES'll. MANION.
by an)T provision of the chapter of the Revised Statutes relating to the sale and disposal of mineral lands, into which the coal-land act has been incorporated, may be sworn to before any officer authorized to administer oaths. By its terms it expressly limits the general authority so given to the particular affidavits required or authorized by the chapter, and it can have no bearing upon this case, for the reason that the affidavit in question is not one that is so required or authorized. The United States attorney has contended that,· pursuant to section 2351, Rev. St., the commissioner of the general land-office has issued rules and regulations which have the force of law, supplying omissions in the acts of congress in the particulars stated; and in support of the indictment he cites U. S. v. Bailey, 9 Pet. 238. I have found, upon examination, that the regulations and first promulgated by Commissioner Drummond, under authority of this section, seem to require the party claiming a preference right under the coal-land law to appear in person, and swear to an affidavit in a prescribed form before the register or receiver of the laud-office, and do not confer any authority upon notaries public. If any different rules or regulations upon the subject have been subsequently issued, they have not been brought to my attention, although time was given the United States attorney for the purpose of obtaining copies of all rules and regulations bearing upon the question. I think, however, that the decision in U. S. v. Bailey, as it has been explained in the opinion of the supreme court by Mr. Justice HARLAN in U. S. v. Curtis, does not support the district attorney in the position which he has taken. Perjury can only be assigned upon an oath authorized by a law of the United States. "Law," aCGording to the most familiar definition of that term, is a rule prescribed by the supreme power in the nation. Now the commissioner of the general land-office is not the supreme power in the United States. He does not create the laws of the United States, and he cannot be endowed with power to do so while the present constitution is upheld. He may exact from all who transact business in his bureau and in the district land-offices compliance with the rules and regulations which he is authorized to make, but he cannot prescribe a rule which can have the force of a law of the United States, and the violation of which can be punished as a felony. I conclude, therefore, that the demurrer to this indictment must be sustained. v.44F.no.1l-51
UNITED STATES. t1. BETHEA..
(Di8trict Oourt, D. South. Oarol'£na. January 8, 1S9L)
Poe'!'-OJTICIi-ROBBERY FROM MAILS-DECOY l;'AClUGES.
A postal-car employe who takes from the mail under his charge' a package .containing things of value, although placed in the mail as 'decoy, and addreBBed to a perSOn no existence, is punishable under Rev. St. U. S. §S 8891,5467, denouncing a penalty against any postal employe who takes any letter or packet "intruilted to him, * *. * and which was intended to be conveyed by maiL * * * n :Following U. S. v. Wight, 88 Fed. Rep. 100; U. S. v. Darsey, 4Q Fed. Rep. 752; and fT. S. v. WhUtWr, 5DilL85. Refusing to follow U. S. v. Demicke, 85 Fed. Rep. 407, and U. S. v. MattheWs, 85 Fed. Rep. 890.
At Law. Indictment for robbing the mails. Rev. St. U. S. § 3891,'provides that" .A.t:ty person employed in any department of the postal service, who shall unlawfully detain, delay, or open any letter, packet, bag, or mail letters intrusted to him, or which has come into his possession, and which was intended to be conveyed by mail, or carried or dellve.red by any mail-carrier, mail-messenger, letter-carder. or other person employed in any department postal service, or forwarded through or deliveredfrom any post-office or bra.nch post-office established by authority of the postmaster-general, or who shall secrete, embezzle, or destroy any such letter, bag, or mail of letters, although it does not contain any security for, or assurance relating to, moriey or other thing of value, shall be punishable by a fine of not more than five hundred dollars, or by imprisonment for not more than one year, or by both." Section 5467: declares, among other things, the punishment of any postal employe who shall secrete, embezzle, or destroy any letter, packet, etc., "intrusted to him," etc., for the purposes described in section 3891. Abicl Lathrop, Dist. Atty. J. M. Joh'll8O'n and Charle8 A. Woods, for defendant. SIMONTON, J. The defendant is indicted, under sections 8891 and 5467 of the Revised Statutes, for taking from the mail in his posse&sion a package, and stealing its contents, which had value. He was a postalcar employe between Wilmington, N. C., and Jacksonville, Fla. The evidenoe on the part of the government was that among the contents of a mail-bag distributed by defendant on the train was a box containing a stud and a dollar bill; that defendant opened the box, and appropriated its contents, throwing the box away; that the box was really a decoy package, addressed to W. H. Tatum, Orange Park, Fla. There is no such person as Tatum. The inspector who caused the decoy package to be put in the mail intended to intercept it before or when it reached Orange Park post-office. At the close ofthe evidence by the prosecution, the defendant moved the court to instruct the jury to find him not guilty, upon the ground that a decoy package addressed to a person not existing, and not intended to be delivered to the addressee, is not within sections 3891 and 5467, Rev. St. He quotes and relies upon U. S. v. Demicke, 35 Fed. Rep. 407; U. S. v. MaUMws, 35 Fed. Rep. 890. The