UNITE!) STATES 11. LAESCKI.
699
UNITED STATE!! 17. LAESCKI.
(DiBtriet (Jourt, No D. [lUMia.
February 2, 1887.)
COUNTERFEITING-GOVERNMENT BOND-NATIONAL BARK NOTE-RECOVERY 011' PENALTY--.QUI TAM ACTION-INDICTMENT.
Under Rev. St. U. S. 5188. 3708, the penalties provided for the making and uttering business cards in the likeness of a government bond or national banknote is only recoverable by a qui tam action, brought by an informer, and cannot be recovered bV indictment at the instance of the government.
Indictment for Counterfeiting. Wm. G. Bwi:/'lg, U. S. Dist. Atty., for the United StatesJesse .A. Baldwin. for defendant. BLODGETT,J., (OTaJ),y.) A motion is made to quash the indictment in this case, which is framed on sections 5188 and 3708 of the Revised Statutes. It will be sufficient to read the first-named section, as the offense is substantially the same in both: "Sec. 5188. It shall not be lawful to design, engrave, print, or in any man-
nar make or execute. or to utter, issue. distribute, circulate, or use, any business or professional card, notice, plaoard, circular, hand-bill or advertisement. in the likeness or similitude of any circulating note, or other obligation or security, of any banking association organized or acting under the laws of the United States, which has been or may be issued under this title, or any act of congress, or to write, print, or otherwise impress upon any such note, obligation, or security. any business or professional card, notice, or advertisement, or any notice or advertisement of any matter or thing whatever. Every person who violates this section shall be liable to a penalty of one bundred dollars, recoverable, one-half to the use of the informer,"
The motion to quash is based upon the ground that an indictment will not lie tp recover the penalties given by these statutes, but that the offender can only be punished by an action qui tam, in the name and for the use of an informer. It is claimed on the part of the prosecution that inasmuch as both these sections declare the act to be unlawful, therefore the government is not bound to await the prosecution by an informer, but, as a penalty of $100 is provided for each offense, therefore an action of debt will lie to recover the penalty, or the offender may be proceeded against by information or indictment, while it is contended on the part of the defendant that the penalty can only be enforced by a. suit brought by an informer. It is well settled that when a statute makes it unlawful to do an act, and a penalty is given for doing such act, and no special mode of enforcing the penalty is provided, such penalty may be recovered in an action of debt, or by indictment or information; but when the statute creates the offense, prescribes the penalty, and the mode of enforcing it, it would seem that the penalty can only be enforced in the mode provided by the statute. In U. S. v. Howard, 17 Fed. Rep. 638, it is said by Judge DEADY:
700
FEDERAL REPORTER.
"The rule is well settled that when a statute prohibits an act theretofore lawful, and imposes a penalty upon a party committing it, 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 prescribes a particular mode of proceeding to enforce 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. Crimes, 49; 1 BiBh. Crim, Law, 277, 278; 1 Whart. Crim, Law, 24-26: Rex v. Wright, 1 Burr. 543." In PenUarge v. Kirby, 19 Fed. Rep. 501, Judge BROWN, ofthe Southern district <if New York, says: "Where the offense is new, and the remedy prescribed, the general rule has long been that the remedy must be Bought in the precise mode, and sUbject to the precise limitations, provided by the act which creates the offense. The rule is founded upon the presumed intent of the legislative authority in connecting the new offense with the particular remedy prescribed to exclude all other remedies. II In Millar v. Taylor, 4 Burr. 2323, WILLES, J., says: bition be new, no remedy or mode of prosecution can be pursued except what is directed by the act. ... ... ... If the act has prescribed t:tte remedy for the party grieved, and the mode of prosecution, all other remedies and modes are excluded. .... ... ... If the same act which creates the right limits the time within which prosecutions for violations of it shall be commenced, that limitation cannot be dispensed with. II In DonalfsrIn v. Beckett, 2 Brown, ParI. Cas. 129, it was held in such cases that there can be no remedy, except on the foundation of the statute, and on the terms and conditions prescribed tllereby. In the case of Dudleyv. Mayhew,3 N, Y.9, STRONG, J., says, (page 15:) "It is very clear that when a party is confined to a statutory remedy, he must take it as it is conferred, and that where the enfo:rcing tribunal is specified the designation forms a part of the remedy, and all others are excluded." And the same principle is sustained in U. S. v. Simms, 1 Cranch. 252; 1 Brock. Marshall's Dec. 520; U. S. v. WiUetts, 5 Ben. 220; and Colburn v. Swett, 1 Mete. 232. So in Rex v. Wright, 1 Burr. 543, Lord MANSFIELD said: "Where new-created offenses are only prohibited by the general prohibitory clause of an act of parliament, an indictment will lie; but where there is a prohibitory particular clause, specifying only particular remedies, there such particular remedy must be pursued, II And in the same case Mr. Justice WILMOT said it had been settled in "If the offense, and consequently the right, which arises from the prohi-
Rex v. Mallard, 1 Barnard. 108, "that an indictment will not lie where an act of parliament makes a new offense, and prescribes a particular method of proceeding." In Rex v. Robinson, 2 Burr. 800, it was said by Lord MANSFIELD: "The true rule of distinction seems to be that, where the offense intended to be guarded against by a statute was punishable before the making of such statute prescribing a particular method of punishing it, there such particular remedy is cumulative, and does not take away the former remedy: but where
,UNITED STllTEStI. LAESCKI.
701
the statute only enacts c that the doing any act not punishable before shall, for the future, be punishable in such and such aparticuIar manner,' there it is necessary that such particular method, by such act prescribed, must be specifically pursued, and not the common-law method of an indictment." The statutes now under consideration create the offense, declare the penalty, and make it recoverable, one-half to the use of the informer. No provision is made for proceeding by indictment, information, or action of debt in the name of the United States. An act which before the enactment of these statutes was entirely lawful, is made unlawful, and the penalty of $100 is declared to be recoverable in a specific manner. It seems to me that the legislative intent deducible from the statute itself is that the remedy or mode of euforcement fixed by the statute is to be exclusive; that there is no room for the election of other remedies; and that it would be just as reasonable to say that another penalty c'an be enforced as that another mode of enforcing the penalty can be adopted. These statutes, in effect, say to all persons: "If you print or stamp upon a United States note or bond, or a national bank-note, any business card or advertisement, you are liable to a penalty of one hundred dollars, recoverable at the suit of an do not say that the offender can be indicted by a grand jury, and tried as a criminal. The dil:ltrict attorney relies upon the case of U. S. v. Bougher, 6 McLain, 277. That was an action brought in the Southern district of Ohio to recover a penalty given by section 10 of the act of 1852, regulating the management of vessels, propelled in whole or in part by steam, for employing an unlicensed pilot. This statute prescribes a great many penalties for violations of its differel)t provisions, and in many of the sections the mode of enforcing the penalties is specifically declared. Section 41 also provides that all penalties provided for in this act may be recovered in a qui tam action, one-half to the use of the informer; and the court held that the penalty against the owner of a steam-boat for employing an unlicensed pilot might be enforced by an action of debt in the name,of the United States; it being contended on the part of the defendant !ibat such penalty could only be enforced by a suit brought by an informer. But the obvious distinction between that statute and those now under consideration is that it was manifest, from the whole tenor of statute, that congress intended that the right to sue by an informer was only a permissive, and not an exclusive remedy; while my construction of the statutes under which this indictment is found is that the remedy it gives is exclusive of all others. The motion to quash is therefore sustained.
102
FEDERAL REIl'ORTEB.
UNlTEDS1'ATES 1.
t1.
WOOTTEN and others.
(Diatrict Oourt, B. D. &uth Oarolina, January 18, 1887.) Conspiracy is when two or more persons agree together to do an unlawful act, or to do some lawful act in' an unlawful manner, and the crime fs com· plete when such combination is formed, and an act is done to further it. t. POST'OFFICE-USING 1rluL TO, DEFRAUD-ELEMENTS OF OFFENSJII-REv. ST. U. S. § 5480. The elements in the ojl'ense of using the mail for the purpose of defrauding, created by Rev. St. U. S.§ 5480, are (f) the devising, or intending to devise, a scheme or artifice to defraud; (2) the opening, or intending to open, corre· spondence or communication wIth some other person, or inciting such person to open correspondence, byIDeans of"the post-office department. with the one deVIsing the scheme; and, (8) in pursuance of the scheme, putting a letter or packet in the mail, or taking one out. 8. BAME-INTENT NOT TO PAY,FOR GOODS. In order to constitute the offense of using the mail for the purpose of de· frauding, under Rev. St. U. S. § 5480, the intent not to pay for the goods must exist before credit sought,-must precede an order for goods;-and it is not fraudulent, within the meaning of the statute, if one, not in solvent circumstances, should seek credit or order goods without the present means of pay· ing for them; nor would it come within the meaning of the statute if onehSd ordered goods, and afterwards devised a purpose of escaping from paying for them. CoN8PIlU.CY-DBFINITION.
Indictment under Rev. St. § 5440. L. F. Youmans,Dist. Atty., and a. M. FUrman, Asst. Dist. Atty., Cor the United States. Buist &: Buist and W. E. Klein, for defendants. SIMQNTON, J., (charging j-ury.) The three defendants stand charged before you, in an indictment under section 5440 of the Revised Statutes, for conspiring to commit the offense against the United 1::itates forbidden in section 5480, Rev. St. Remember to keep this before you. The question for you to decide is, are they guilty of having formed such a conspiracy? The thing to be punished is the unlawful conspiracy, not the particular acts alleged to have been done in consequence of it. Each of them-some of them-may have violated the provisions of section 5480. The evidence must satisfy you that two or more of them conspired together to commit the offense created in section 5480, Rev. St., and that so they have violated section 5440, which forbids two or more persons from forming a conspiracy to commit an offense against the United States. The statutes of the United States contain many prohibitions, define many offenses, against the United States. You have had before you, during this term, several of these cases, and have been instructed with regard to them. Anyone convicted of violating any of these sections is guilty of a crime, and will receive the punishment specially provided therefor. If two or more persons conspire to commit anyone or more of such offenses, and one or more of them act thereon, they are guilty of another and wholly distinct crime.-that of conspiracy.
