918
FEDERAL REPORTER.
authofizedto act for them, under oath, that they were entitled' to enter the animals free. While the statute was doubtless enacted in the interest of breeders, and for the purpose of improving the stock of the try, and thus increasing its wealth, it will not bear the construction conthe claimants. It does not say that all tended for by the animals, male or female l fit for llreeding, or capable of breeding, may be entered free. If that had been the intention of congress, why use the words, "'animals specially imported for breeding purposes?" It would bealil'upfair to the government to give:it the construction .claimed as it wOIilld be toimporters to say that, having once in good faith entered anim:als free by making the required proOf, they may not thereafter sell them.' The statute is satisfied when the owner in good faith imports anifor breeding; and he is thereafter at liberty to change mals his mind, and sell them, or use t,llem as if they had never been imported. United States v. One Hwndred and Ninety-m:.c Mares, 29 Fed. Rep. 139. If the, charges in the information are true, the claimants caused a false affidavit to be made and presented to the collector, and succeeded in having their. animals entered free as the property of oth'ers, when they were subject to duty, and thereby defrauded the government of its just revenue. , .The judgment of the district court is reversed, with instructions to overrule the :exceptions to the information· . HARLAN i
J' l concurs.
UNITED STATES
SOULE
and others.
(OVrcuit Oourt,]). Kanaa8. 1887.) COURT OJ' MURDER. . 'KANSAS-"CllJj:ltOXEE OUTLET". .
The .. Clietoltee 'Outlet" is within that portion of· th$ ·Indian territory . placed wiUlin ·the jurisdiction .of the United States district court of Kansas by the act .of congress of January 6, 1883, (22 St. U. S. 400,) and jurisdiction of a murder committed there is in that court, and not in the district court for the Western district of Arka.nsas:
Indictment for Murder. On plea to the jurisdiction. Certified. W. Perry, U.,8. Dist. Atty" for plai,ntiff. Henry T. Sumner and D. W. a. Dwnean, for defendants. BREWER,J.' The defendants were,indicted in the district court of the district of Kansas for murder. They filed a plea challenging the jurisdiction of that court. That plea has been certified to this court' for decision. The question presented is whethel'the district court had jUrisdiction of tile place at which the offense is charged to have been committed. The place is described in the indictment as "within thnt part of the Indian
UNITED STATES V. SOULE.
919
territory lying north6f the Canadian river, and east of Texas and the one hundredth meridian, 'Dot set apart and occupied by the Cherokee, Creek,'and Seminole Indian tribes, and at that part of the territory known as the "Cherokee Outlet." Prior to January 6, 1883, unquestionably the entire Indian territory was within the jurisdiction of the district court of the Western district of Arkansas. On that day an act was passed (22 St. U. S. 400) providing for one term of the United States district court for the district of Kansas to be held at Wichita, a place near the southern boundary of the state of Kansas. Section two ofthat act provides as ,follows: "That a11that part of the Indian territory lying north of the Canadian river. and east of Texas and the one hundredth meridian, not set apart and occupied by the Cherokee, Creek; and Seminole Indiantribes, shall, from and afterthe passage of this act. be annexed to and cortstitute a part of the U l!ited 8tates jUdicial district, of Kansas, and the United States district courts at Wiehita and Fort Scott. in the district of Kansas, shall have exclusive inaljurisdictionof alloffens6s Committed within the limits of the territory hereby annexed to said district of Kansas against any of the' laws. of the United States now or that may hereafter be operative therein." Unquestionably by this section a portion of the Indian territory was placed within the jurisdiction of the district court of Kan8aS, and the question is whether the Cherokee outlet is within this portion. As significant of the intent of congress, the third section isimportant. Hreads as follows: "That all that part of the Indian territory not annexed to the district of Kansas by this act, and not set apart and occupied by the Cherokee, Creek, Choctaw. Chickasaw,and Seminole Indian tribes, sball, from and after the to and ,apart of the States passage ,o-fthis act, be judicial district known as the Northern district of Texas. and the Untted court at Graham, in said Northern district of Texas shall have exclusIve original jurisdiction of all offenses comtnrtted within the, limits of the territory hereby annexed to said Northern district of Texas,against any of the laws of the United States now or that may hereafter be operative therein." , It will be seen from these two sections, taken'in conjunction with the prior statutes vesting jnrisdictionover the entire territory in the district court of the Western district of Arkansas, that the intent of congress was to apportion the territory between the three courts; and we should naturally expect, in the absence of cogent reasons for the contrary, that the entire portion of the territory contiguous to the place of holding court in each district, respectively; would be assigned to that district. It is unquestionable that theelltire south-western portioR goes to the Texas district court,and the entire eastern portion to the Arkansas court, and thereto find assigned to fore the entire north-western portion we should the Kahsas court. The intent :of the law-maker, of course, controls in the interpretation of a statutejand the geographical argument as to that intent is in this case most potent. The convenience and economy of business require that the territory subject to the jurisdiction of a court should be as near as possible to theiplace where the court is held, and the very distribution of the territory is evidence that congress had this matter of
920
FEDE&ALREPORTER.
economy Rnd convenience in mind. Now, if the. Oherokee outlet remains to the district. of Arkansas for jurisdictional purposes l there is along strip of territory, far removed from the place of holding that court, into which its process ·must run; and, further; this same strip stands interihediate between that, portion assigned to the Kansas court and the .place at which that court is held. With this potent geographical fact before us, we pass to an examinationof the language of the section, and the significant words are these: "That part of the Indian territory.lying north," etc., "not set apart and occupied by the Cherokee, Creek, and Sp.minole tribes." ,; Beyond the mere'mattet of geography, there is a: double description in, this definition M territory. (,This is indicated by the two terms, "setiapart" and "occupied:" . .Thesr are joined by the copulative, and not disjunctive, these words mUEjt ,exist to exclude the territo;ry rrOnl.itlie jurisaicWni of the;({aJ;l.sas court. ". ,It will not 1?e assumed that eithElr term was"suMrfluous, or that !Wrnedistinctive fact was.notin the) mind of .congress in the use of each. A tract occupied, but not set apart,. would not be' excluded. SOjalso"as to a tract set apart,bnt not, occupied. What were the facts evideJ;lC'E;1d by these respective terms? ':Wego back to the treaty of 1828, (7,U. S. St. at Large, 311.) :r:bepreamble of that treaty recites: '!Whereas, it being the anxious, ililsire of the gover:LHuent of the United States to secure to the Cherokee nation of Indians a permanent home," etc. Article 2 then reads: "The United $tates agree tp possess the Cherokee nation, and to guaranty. it to 'them forever, !lnd that guaranty is, hereby solemnly pledged of seven' millions' of acres of land, to be bGunded as follows:" Then follows by Iiletesand bounds of the tract above indicated , of7tOOb,OOO of acres: Then, in the are these to the seven niiJlions of prpvided for and words: "lIt bounded, the United States further guarauty to the Cherokee nation a perpetual outlet-west, and a free and unmolested use of all the country lying west of the western boundary of the above-described limit, and as far west as the sovereignty of the United States and their right of soil extends." The treaty of February 14 1 1833, (7 U.S. St. at Large, 414,) reiterates ·the. ·same grants ; attaches to the, provision quoted for au tlet, etc. ,a.. pro\(iso, "If the saline or salt plain on the great western prairi.eshall fal}withinsaid limits. tho right is res,erv:ed to the United States. to permit other tribes of Red Men to get salt on said plain fn common with the Cherokees;" and also that letters patent shall be issued as soon as practicable for. the land so guarantied. Subsequent treaties have reduced the" boundaries of this, JjODO.,OOO tract, and also provided for cessions of someportion·of the territory west to other. trib.es. In pursuance of.this treaty, patent ,for aU the .I andl\, including the outlet \vest. ..No distinction was maQe in the granting clause bet-n een the ;7 tra.ctand the outlet west. Now, is this outlet, within the meaning of the act of1883, "set apart and occupiEld l'rb¥ the Cherokee nation? :That it was set apart to that nation is evident; but was it occupied? Doubtless, in a certain sense,
921 it was occupied, because the Cherokee nation had a title and J;ight to possess iti but, if congress had meant by this act 'to include all land , owned by the Cheroke'es, the w6rds"set apart" would have been ample, and the word "occupied" was superfluous. Obviously, some distinctive matter was intet'ldidto be expressed by the use (])f that word.' The significance of it is evident, from the language of the proviso in article 2, heretofore quoted.; Manifestly congress set apart ,that 7 ,000,000 acres as a home, and that was thereafter to be regarded as Bet apart and occupied, "becatlse.,"as expressed in the preamble ofthe treaty, "congress was intent upon' securing a permanent home.", Beyond that, the guaranty was ofan outlet,.,-notterritory for residence, but for' passage ground over which the Oherokees,might pass to all the unoccupieddomaius west. But whiletheexclnsive right to this. outlet was guarantied, while patent was issued conveying this outlet, it was described lind; intended obvibusly as an outlet, and not as a home. So, whatever rights. of property the Cherokees may have in this outlet, it was not territory set apart for a home, and is not territory, within the language of the act of 1883, "set apart and tribe. I think,therefore, that the. district court of K'a)1sashad jurislliction over the territory in which this' offense is charged to have' been committed. I am aware that in 'the case of U. S. v. Rogers,: 23 Fed. Rep. 658, ,a difJudge PARKER of. the Western district of Arkanslts ;has ferent conclusion, and has ,held that the jurisdiction over this outlet still remains in the district court fot the Western district of Arkansas. I have given his carefUl and elaborate opinion thOrough studYi and while, according to thatopiriidn, the consideration which itscareflil preparation, and which the distinguished ability of that learned judge, compels, I am unable to yield to the force of his reasoning. Both the geographicalargument and the double description in the act ofiS83 lead me too. different conclusion, and to hold' that the jurisdiction over the outlet is vested in the district court· of Kansas. The plea to the jurisdiction of the districtcourtwiU therefore be overruled, and the case certified bacK to that courtfor·trlal. '
CLUETT
and others v. CLAFLIN and others.
(Oircuit Oourt, S. D. New York. June 7, 1887.) PATENTS FOR WV:/£NTlONS-NOVELTy-!MPROVED SHmT-BosOMS. The claims of letters patent No. 156,880, of November 17, 1874, to Robert Cluett, for an improvement in shirt-bosoms, do not cover a bosom of any designated color, size. or shape, or a binding of any particular variety, or the machinery or processes employed in the construction of the shirt. They are simply for the combination of a shirt·bosom, bound on the outer edge with a. folded and stitched binding, attached to the shirt-body by a separate line of stitching through binding. This, in view of all that was known to the art in 1874, is not invention, and the patent is void for want of patentable novelty. . '.