896

FEDERAL REPORTER.'

And under peculiar circumstances other structures' or uses of material may be "necessary" in the construction of a road. A ferry-boat is a floating bridge, and a snow shed ill a tunnel through a temporary but periodic snow-bank. The one is :as'much a part of the track as a stationary bridge, and the other as a tunnel through It permanent bank of earth or stone. Both may be necessary in the construction of a road, and without which it could notbe successfully operated. Under any circumstances, it would be a narrow construction of such a license to limit it to the material necessary' for theconstl'uction of the mere track; but when we'consider how much the construction of this road has benefited the Ullited States. that it has opened the country through which it passes· to settlement, and greatly enhanced the value of the adjacent lands, ,such cOllstruction savors of downright meanness. This material appears to have been taken from certain townships through which the road runs, and no question is made but that such lands are "adjacent" to the line of the road. What is "adjacent" land, within the meaning of the statute, must depend on the circumstances of eachpatticular case. Where' the "adjacent" ends and the non-adjacent begins may be difficult to determine. On the theory that the material is taken on account of the benefit resulting to the land from th9 construction of the road, my impressionis that the term "adjacent"ought not to be construed to include any land save such as by its proximity to tge line of the road is directly and materially benefited by its construction. The demurrer is sustained.

, UNITED STATES 'V. BENSON

and others.

(Circuit Oourt,

J).

Oalifornia. July 25. 1887.)

t.

DISTRICT OF CALIFORNIA-AcT 01'1886 CONSTRUED.

Section 11 of the act of 1886. creating the Southern district of California. (St. 1886, p; 810,) continues the district of California in existence for the trial and punishment of all offenses committed prior to the passage of the act.

t.

GRAND JUROR-CHALLENGE-SETTING AsIDE INDICTMENT.

Under the statutes of California. the absence of the name of a citizen from the last preceding assessment roll of the county from which he is summoned, is not a ground 'of challenge to a grand juror, or, one for which an indictment can be set aside.
,

V.

STATUTORY CONSTRUCTION.

Several statutes in pari materia must be construed together, and, where there is an apparent conflict, the special provisions app'licable to a particular subject following general provisions on that subject wIll be held to repeal or modify the latter.

t.

SAME-STATE PRACTICE.

Notwithstanding the federal courts require for their jurors similar qualifications with those of jurors in the state courts. and enforce like objections and challenges to them, they have the power, and it is their duty to exercise it, to enforce any other objection to jurors which from their nature. if well founded, would unfit them to act.

UNITED, STATES V. BENSON. . ,

,

5.

SAME.

A plea in abatement to anindietment that the names some of the gran.d jurors who found the indictment were not on the last assessment roll of then-{ respective counties. without any averment that the (ic!endr.n't wasprejudicell thereby. is insufficient. The defect in such case is cured under section 1025' of the Revised Statutes. '

"

of

Joh,n T. Carey, U. S. Atty., and H. a. McPike, Asst. U. S. the United States. , !( T. L Bergin, W. H. L. Barnes, John H. Dickin8()n. PhUf,p Teare, al}.p" A. IJ,VanDuzer, for ;..'Ii FIELD, circuit justice; SAWYER, circuit judge; district judge. 'f l-:
FIELD, Justice. The defendants were indicted in the distrjct'court for the district of California, at the December term, 1886, for an conspiracy to defraud the United States of $,4,952 by the of fictitious /Lnd fraudulent claims, knowing them to be such, tended su.rveys of public lands. To this indictment three of the ants appeared,-Benson, Perrin, Rall,-and each in abatement, the substal1ce of which is this: That the grand jury, which found the indictment was an illegal and incompetent body,haw ing no authority or jurisdiction to find or present it, or to fipd or present any indictment, for the reason that some of the persons who 00111:: posed the jury-and their names are stated-;-werenot at the payets in Calif:lrnia, nor 'Yere they assessed for taxes on any properfy\ on the assessment rollof the counties, from which they were iV-ely summoned; and also for the further reason that no such as that of California was in existence at the tiIUe the. grand jurors impaneled and sworn; that district, as alleged, having been byact'pf congress on the fifth of August, 1886. ,The defendantsl there; fore contend that the indictment is illegal and void, and should beaba.ted and quashed; and that they are at liberty to nrge these objections at this time, as i:J;leYJvere not in or on bail when the indictment found. to this plea the United States demur, and the district :r{loves tnat the defendants be required to answer to .the indictment; hot:': withstanding the allegations of the plea. Subsequently the was remitted to the circuit court, it appearing to the district court that difficuJt and important questions of law were involved in the case. ,The indictment brought with it, of course, the accompanying pleas and questions raised by them. We will consider these objections in the, reverse order of that jp whicr. they were presented, and first dispose of the one to the alleged existence of the district of California. The importance of this objection is found in article six of the amendments to the constitution, which declares that (tin all criminal prosecutions the accused shall enjoy the right toa speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shaU have been previously (lscertained by law."" The offense described in the indictment charged to have been committed 011 April 15, 1885. At that time tl;Le v.31F.no.14-57 ·.

':Fli:DERAL REPORTER.

constituted one district. On the fiftho,fAugust, 1886, all,act',ofoongress was passed, by which nine of the southern counties of thest#M were detached from ,this district, and ma4e'aseparate judicial district, and called the" Southern District ofCalifqrnia. " It declares that the district of California shall thereafter consist of the counties "Northern District of California." "The organization o,f the original district was not changed. Its officera'Wer heontirmed in'offibe liS "before, and were charged with the and they the custody of 'its records., Its territorial same jurisdietiun'alonewas was reduced by the detachment of the counties named, except as to past offenses. In the prosecution and otrenises, ,district continued in full extent. Fdrtlmtporpose theMW' act IS to be treated as thlit"nll otfenses heretofore'committed in Calif?rniit .s,hall, 'determined in thestWl,e,;effect, to aU purposes, as if had>trpt passed.'" 'have been dIfficult for congress t() express In cl,ehrer language itS,'pdrpose, that for the prosecution and trial of past pffenses the 4is,trict should continue in existence. to the indictment do the ground district has ceased t9((&rst is' therefore, not tenable. " . ThesMond obJectlon to 'the grlitidjury, from thefltct that some of its niembe'rbve're not titx-payers of the state, norassesse({ on any property on the llist rollol thec0111'lties from which they were respectively$unitI'lbned; 'requires for. its s91\1tion ail' examination of provisions of both theCivllandPel'1al C6d'es Qrthe state. Section 800 of the Revised jorors to sbr\'e inthe courts of the United States, in each state shall have the same qualificati6hs as jurors of the llighest"'tlourts of law in such state: at the time. We turn" therefore, to the law of the state;' , ' , Section 190, Code Civil Proe., the, terrn "jurYi" and section 191 that'luries are Of three kinds,-grand juries/ trial juries, arid' juries ' Section 198 prescribes, in gelleral terms, the who tnay act, on anyone of them. It declares that "aper$ori is competent to act' as ajuror if he be-,-First, a citiien of the United. States, an e1ectol'of the county, and a resident oUhe townshirFat least three monfhsbllf6re being selected and returned; second, in possession of his natural facu:lties, and not decrepit; third, possessed of the language in which the proceedings of the of sufficient ?0'1lrt are on theJl1st ass.essment of his county, on property.- beloogrng to hIm." 'And sectIOn 199 adds that" a person is not co'lIl to act as a )llror..L..First, who does not possess the qualifications prescribed by the preceding section; second, who has been ofa ormisdeineandr involving moral turpitude." 'These ate,not thec:mly provisions on the subject of the qualifications provisions designate when the abllence of any of the of jurors. qualifications mentioned may be urged as anobjectiori to a juror, and to that extent they restrain and limit the qualifications themselves. The

in

899
the posaeseiOb Qf.his natural and i.:p, whiph'the i proceedings before him are to what is done andsllJd. Other qualifications i.nsure thQse requisites., rily; .and the law may well provide that the wantoHbem, if objected to, may in certain instances, and not in others, be urged against'the juror, or tohia action. It is a matterfQr the determine, when such objections may be tak;en and ,when they shall not. avail. , ," . . . ' .' The plea in abatementh8$:the effectofa motion to set asidl;ltor quash the and sectioll995 of the Penal Oode ofthe state provides that an indiptment maybe se.t aside, on motion, in ather of the following cas.es: ' . ',' . "First, w4ere it is not fo'und indorsed, and presented as prescribed in thid' Code;, selJona, when the Illlomesof ,the witnesses eXli\oPlined before ,the grand jury, or whose depositions may been read them, are not inserted at the foot of the indictment, 01' indorsed t.herf;lon; thiid, permiLted to be present during the session of the grand jury, and when 'the charge embraced in the indictment is under consideration, except as provided in section 925; fourth, when. the defendant had not been held to answer be-fore tile finding of the indictment, on any ground which would have \)een good ground for challenge, either to the panel, or to any ,i,ndividual. grand juror." In this enumeration there is no grouhd stated wQich can apply on this motionl· ;unJ,ess it is ill the fourth subdivision. Turning to .the challeJ;lgeto the panel or to an individual g;randjUJ:,or may be interposed, we find none which embraces taken by provisions relatip,g. to these declare that they shall be made'only for the causes there stated. Oode. §§895, 896. Had this indictment been found ina state court,it co1114, ,not, therefore, have been set aside on the gro\lnd undercons!deration. The onlyinstance where, by the laws of the state, the fact that a juror has not been assessed on the last assessment ro:ij of his county for property belonging to him is made ground of chllllenge, is when he. sumn;lOned aall. petit juror; that is, for the trial of cases civil.or criminal. The result of thls legislation is to limit the provisions of the Code ofOivil requiring jurors to be selected froI;ll tho13e assessed on the last r()llof their ;respective counties to suclt8.!lare summQued for the trial of civil or criminal Gases. As. to other jurors, their names as tax-payers upop such assessment roll is not·allowed to disqualify them. That cannot be a qualifiication for the duty, the absence of which does not disqualify from acting, The clause of the Penal Oode with respect to challenges ,to grand jurors, and to setting aside of indictments, read in connection with the clauses of sections 198 and 199 of the Oode of Oivil Procedure, must be held to modify and limit the extent of the latter. It is a recognized canon of construction that different statutes relating to the same subject must be so construed, if practicable, as to give effect to all their provisions; and, if that be not practicable, the special provision applicable to a particular subject will

900

FEDERAL REPORTER.

be. held to repeal or modify the more general provision. The objections urged by the plea in abatement lll'enot, therefore, tenable· It is true that in considering objections to grand jurors, or to their action, the federal courts are not restricted to such as are specifically designatedin the of'tli:testate. The provisions of the statute to bring offenders against the laws to trial are not to be so as to defeat their purpose. The various proceedings prescribed are the,imeans designed I not merbly to protect the accused, but also to protect the public; and are to be enforced, on the one hand, so as to secure to tlleaccused Ii. full and fair trial, and, on the other hand, so as not t§.'preventthe punishment of crime. Notwithstanding, therefore, the federal courts require for theirjurors similar qualifications: With those of jurors in the state courts, and enforce like objections and challenges to they still have the poweri and it is their duty, 'to exercise it either 9u,their own motion, or on that ofcounsel, to enfofc'eany other objecto jy.rors which, from their if well founded, would necessarily unfit, them to act; SUlfh would be the case if men insane, or ig. lJ,orant oithe langua,ge in which the proceedings were conducted, should either designedly or inadvertently, on the panel,or the grand jurorssheuld act under the influence of a mob or a riotous assemblage. The power of the courts to prevent their process and proceedings from being perverted to instruments of oppression and injustice would suffice for· any such p u r p o s e . ' " , The ca.saof Oscanyan v. ArtnBOo., 103 U. S. 261, furnishes an illuBof the inherent power of th,e court to prevent' an -abuse of its authority. IFhere a Turkish consul, residing in the United States, had 8,gteed with a manufacturing 'company to use his influence to induce an oithe Turkish'govemrtient, sent to the United States to purchase R'tInS, to make a purchase of a large quantity of that company, on conditioq that he should be allowed by the company a percentage on the amount of the purchase. The arms being delivered, and the price paid. the company' refused to allow the consul the per<lentage agreed, I1ndhe. brought an action for the'amount. The circuit court of New York, on the opening statement at the trial, ordered. the case to be dismissed"on. the ground that the' contract of the consul for a commissioIion purohases made for his governrr::ent byits agent. through his influence 'Upon suoh agent was immoral and illegaL The case being appealedtt>:!tlle supreme court, it was there contended under the hi\vs of New';York,the illegality ofthe contract could not be set up unpleaded; 1;>ut the court, not agreeing in that respect as to the laws dfNew York, held that, if it the result would riot be changed, fhat official influence was not a vendible commodity in the community. lind that, in. the interest of public justice, the court would not sanction ahaction for the price of the article. Whatever might be the rules of pleading, the court would never allow its records to 'be soiled by giving Siinction 'to 'such, an immoral and illegal transaction. So, too, in all ci'iulinal proceedings, the federal coutts will so exercise their inherent pow'ers that So far as it is possible, notwithstanding the forms of pro<.:ed· <

mll:

'D.

BALL

ENGINE CO.

901

ure prescribed, the rights of the accused will not be impaired, nor the ends of justice defeated. The apprehensions, therefore, of one of the learned counsel as to the fearful consequences which may follow in other cases if the indictment be 8ustained in this case in the face of his objections, may be considered with composure, and dismissed. In this case the objectiollfl to some of the grand jurors, that their names were not among the list of tax-payers on the last assessment roll of their respective counties, is technical only. There is no allegation in the plea that the jurors were not in all respects, as to ability and knowledge, fully qualified for the duties imposed upon them, or that the defendants were in any respect prejudiced by the absence of their names from the assessment rolL In these circumsta:'wes, the objection must fall under. the general rule of the federal courts, that omissions which do not impair any substantial right or prejudice the defense of the accused must be disregarded, unless otherwise required by posItive statute. Section 1025, Rev. St., declares that "no indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." In U. S. v. Tuska it was held by Judge BLATCHFORD, then district Judge, now a justice of the supreme court, that where there is no averment in a plea in abatement of injury or prejudice to the defendant, irregularities in the finding of an indictment, consisting, among other things, of some of the grand jurors not possessing the proper property qualific!J,tion, .became matters of mere form, to be disregarded under the above statute. 14 Blatchf. 5. Without accepting this conclusion in full, the spirit which it expresses undoubtedly governs the action of the federal courts, that omissions or defects in such cases which do not prejudice the accused shall not avail to set aside an indictment or other proceeding. The demurrer to the plea is sustained, and the defendants must plead to the indictment, and it is so ordered. The same order will be entered ;n all the cases.

IDE 'D.

BALL

ENGINE

Co. and others.

(Oircuit Court. 8. D. Illinois. August 17.1887.)
PATENTS FOR INVENTIONS-SUIT FOR INFRINGEMENT-RESTRAINING THE BRINGING 01' OTHER SUITS.

I., having brought suit for infringement of a patent. B., one of the defendants, before answering, filed an intervening petition, in which it was alleged B. had a good defense to the suit; that he was able and competent to par any damages that might be assessed against him; that I, had t.b.reatencd to sue purchasers of the defendaut for the same infringement; and praying that plaintiff be restrained from bringing such tbreatelled suits pending the de-