'ditions upon the performance of which the government of the nation, acting within Its <;onstltutionalauthorlty,and through the proper departments, has determined that his continuing. to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property without due process of law; ami the provisions of the constitution securing the right of trial by jury, and prohibiting unreasonable searches and seizures and cruel and unusual punishments, have no application."
The inquiry before the commissioner was confined to the simple fact as to whether or not the petitioner, Tsu Tse Mee, was lawfully within the United States. That, for the purpose of ascertaining and adjudging upon his status in this respect, he was not entitled to a jury trial,is well established. Nishimura Ekiu v. U. 8., 142 U. 8. 657, l2 Sup. Ot. 336; Fong Yue Ting v. U. 8., supra; in re Chow GooPooi, 25 Fed. 77; U. 8. v. Wong Sing, 51 Fed. 79; U. S. v. Ring Quong Chow, 53 Fed. 234. The power to pass upon the right of aliens to enter or remain in this country may, constitutionally, even be vested in executive. officers. See cases cited above, particularly Nishimura 'Ekiu v. U. S., 142 U. S. 657, 660, 12 Sup. Ct. 336. The mere fact that he entered a plea of not guilty is immateriaL It did not alter the real character of the proceedings before the commissioner, nor did it invest the petitioner with the privilege of a jury trial. At best, it can be considered but a mere irregularity, and simply tended to raise the issue to be heard and determined by the commissioner. The proceedings before him were, it is true, a trial; but they were not, and the law did not intend that they should be, a jury trial. I have carefully read the authorities cited by counsel for the petitioner, and find nothing inconsistent with the views herein announced. For these reasons, briefly stated, therefore, the exceptions to the report and recommendation of the special referee . will be overruled, the report and recommendation adopted and confirmed, in so far as it overrules the demurrer to the return to the writ. As I understand that the petitioner desires to traverse the return to the writ, I will give him five days in which to do so, and let the matter be re-referred to the special examiner for further action thereon.
UNITED STATES v. GLASENER. (District Court, S. D. California. May 10, 1897.) No. 953.
FORGERy-NOTARY PUBLIC-FALSE JURAT TO AFFIDAVIT.
The making by a notary public of a jurat or certificate, containing false statements, to an affidavit in support of a pension claim, does not constitute an offense under Rev. St. § 5421, providing for the punishment of "every person who falsely makes, alters, forges or counterfeits * * * any deed, power of attorney, order, certificate, receipt or other writing for the purpose of obtaining or receiving, or enabling any other person, directly or indirectly, to obtain or receive from the United States, or any of their officers or agents, any sum of money * * *"; the offense defined by sald section being the false making or forgery of the writings enumerated. An affidaVit, within the meaning of Rev. 81. § 4746, which prOVides for the punishment of "every person who knowingly or wilfully in any wise proDAVIT.
2. CRIMINAl, LAW-FALSE AFFIDAVIT FOR PENSION-,\VHAT CONSTITUTES AFFI-
UNITED ST.ATES V. G,LASENER,
cures the making or presentation of any false or fraudulent affidavit concerning a claim for pension, · · ." Includes only the statements or declarations Which purport to have been made uIider oath, and subscribed by the affiant; and the fact that the jurat of the notary attached contaiua false statements does not render it a "false affidavit."
George J. Denis, U. S. Atty. M. W. Conkling, for defendant. WELLBORN, District Judge. The indictment contains two counts. The first count alleges that the defendant, as a notary public, falsely made a certain jurat and certificate to a certain affidavit, to the effect that the affiant, one Henry Brechtel, had sworn and subscribed said affidavit before him, the defendant, as such notary public, and that he had read said affidavit to said Brechtel, and made him acquainted with the eontents thereof, before its execution, and that said jurat and eertificate were false, in this: that the said Brechtel never did personally appear before the defendant, and swear or subscribe to said pretended affidavit, and that defendant never did read said pretended affidavit to said Brechtel, or make him acquainted with the contents thereof, and that said affidavit or writing was made in support of a certain claim of one Francis Geis, for a pension, then pending before the commissioner of pensions. Said count is framed under section 5421 of the Revised Statutes of the United States, which, so far as is material here, provides that:
"Every person who falsely makes, alters, forges or counterfeits, or causes or procures to be falsely made, altered. forged or counterfeited, * * · any deed, power of attorney. order, certificate, receipt, or other writing, tOT the purpose, ot obtaining or receiving, or enabling any other person, either directly 01' Indirectly, to obtain or receive from the United States, or any of their officers or agents, any sum of money, * * ." shall be punished as prescribed in the section,
The cases, so far as my investigation extends, with one exception,U. S. v. Hartman, 65 Fed. 490,-uniformly hold that the first part (which I have quoted) of section 5421 refers only to the false making-that is, forgery-of the writings therein enumerated. The cases so holding are numerously cited in U. S. v. Moore, 60 Fed. 738, which is the latest decision in line with the general current of authorities. To what is there said I may add that in California the forgery statute (section 470, Pen. Code) uses, in defining the offense, precisely the same words as those employed in section 5421, Rev. St. U. S., namely, that "every person who * * * falsely makes, alters, farges or coun· terfeits," etc.; while the making of an official certificate containing statements known to be untrue is made a distinct offense by section 167 of said Penal Code, which is as follows: "Every public officer authorized by law to make or give any certificate or other writing, who makes and delivers as true any such eertificate or writing containing statements which he knows to be false, is guilty of a misdemeanor." Counsel for defendant states. in his brief, that the same is true in Wisconsin, Iowa., Alabama, Illinois, Mississippi, Missouri, and Texas. While I have not bad an opportunity, by personal ex· amination, to verify this statement, I am satisfied it is correct. In the case at bar, forgery is not predicated of the notarial certifi-
81 FEDERAL RlllPORl'ER.
cate made by the defendant,but it is simply charged that said eertiiicate c.ontains false statements. The making of such a certificate is not, in my opinion, within the provisions of said section 5421. The second count alleges that the defendant knowingly and willfully procured the presentation to the United States commissioner of pensions of a certain false, forged, and counterfeited affidavit, in support of and concerning a claim of one Francis Geis for a pension from States. The affidavit and its alleged falsity, which are the set forth in full in said count, are the same as described in the first count. The second count is drawn under section 4746 of the Revised Statutes of the United States, which provides, among other things, that "every person who knowingly or wilfully in any wise procures the making or presentation of any false or fraudulent affidavit concerning a claim for pension, or payment thereof, or pertaining to any other matter within the jurisdiction of the commissioner of pensions, ' * shall be punished" as prescribed in the section. It will be observed that the words employed in this section to designate the instrument denounced are very different from those used, for the same purpose, in section 5421, which, ag I have hereinbefore held, applies only to forged instruments, the phraseology of the latter section being, "Every person who falsely makes, alters, forges, counterfeits," etc. Of this latter statute it Wag said, in U. So v. Moore, supra, "It punishes one who falsely makes an affidavit, and not one who makes a false affidavit." Pursuing the same line of thought, the court, in U. S. v. Oameron (Dak.) 13 N. W. 565, say:
"To falsely make an affidavit is one thing: to make a false affidavit is another. A perSon !hay falsely make an affidavit every sentence of which may be true in fact: or he may actually make an affidavit every sentence of which shall be false. It is the false making which the statute makes an offense, and this is forgery, as described in all the elementary books."
Section 4746 refers, not to the falsely making of an affidavit, but to the making of a false affidavit, and would seem, therefore, to punish subornation of perjury, or, the presentation of an affidavit in which perjury was committed. See U. S. v. Kuentsler, 74 Fed. 220. "Affidavit" is defined by Webster to be "a sworn statement in writing." 'l'echnically considered, the word is, doubtless, broad enough to include the jurat or certificate of the officer before whom the oath is taken. In common acceptation, however, as indicated by the above definition, it has a more restricted meaning, and refers to those statements sworn to and subscribed by the affiant, but does not include the notarial certificate. In the cage at bar, the certificate made by the defendant, as a notary pu.blic, furnishes a fair illustration of what is ordinariI:r meant by "an affidavit,"and-is as follows: "Sworn to and subscribed before'me this daY,by tbe above-named affiants; and I certify that I read said affidavit to said affiant," etc. ' Here "affidavit" manifestly refers to the declarations or statements which purport to have been made under oath, and subscribed by the affiant. Such, I think, is the meaning of the word in said section 4746; I am confirmed in this opinion by an examination of the statute in which were originally enacted the provisions of said section. This was the act of congress, entitled "An act to revise, consolidate, and amend the laws
BOWERS V. PACIFIC COAS'r DREDGING &: RECLAMATION CO.
relating to pensions," approved March 3, 1873 (17 Stat. 567). Said of said act of congress. The preceding sec· section 4746 is section tion (32) of said act provides, among other things, that the attorney of pensioner, before receiving the pension money, shall take and sub· scribe an oath that he has no interest in said money, and does not believe that the pensioner has disposed of the same to any other person, and that any person who shall falsely take said oath shall be guilty of perjury. Then follow, in section 33, the provisions of section, 4746, Rev. St., denouncing it as a crime to procure the making or presentation of any false affidavit. In other words, section 32 is a perjury statute, and punishes the person who makes the false affidavit de· scribed, while section 33 punishes the suborner who procures the false affidavit to be made or presented. Another objection urged to the second count, is its failure to allege that said affidavit. was presented in support of a claim then pending. This objection also seems to be well taken. U. S. v. Kessel, 62 Fed. 59. Demurrer sustained.
BOWERS v. PACIFIC COAST DREDGING & RECLAMATION 00. eta!. (Circuit Court, N. D. OaUfornia. June 7, 1897.)
PATENTB-PREI,IMINARY INJUNCTION-PRIOR ADJUDICATION.
A preliminary injunction will be granted upon a patent which has been repeatedly sustained, after long, arduous, and expensive litigation, if infringement is shown, unless defendants produce new evidence of invalidity of such a conclusive character that, if introduced in the former cases, it would probably have led to a different conclusion. The burden of establishing this rests on the defendant, and every reasonable doubt will be rae;plved against him. The Bowers pl\tent, No. 318,859, for a dredging machine, held valid and infringed, on motion for preliminary injunction.
This was a bill in equity for infringement of letters patent No. 318" 859 and No. 318,860. Motion for a preliminary injunction. John H. },filler, for complainant. R. Percy Wright, for defendants. MORROW, Circuit Judge. This is a bill in equity brought by A. B. Bowers against the Pacific Coast Dredging & Reclamation Company and John Hackett, to restrain the defendants, their agents and employes, from infringing United States letters patent No. 318,859 and No. 318,860, granted in 1885 to the complainant, Alphonzo B. Bowers, for certain inventions, respectively, in a dredging maChine, and in the art of dredging. It is objected on the part O'f the defendants that complainant's patents, alleged to have been infringed, have been anticipated by prior devices, and evidence in support of that conten· tion has been introduced. The motion is directed chiefly to letters patent No. 318,859, which will be found fully and clearly described in the opinion of Judge McKenna in the case of Bowers v. Von Schmidt, 63 Fed. 572. The complainant, in his affidavit for a preliminary injunction, deposes, among other things, that a certain dredging ma-