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as to the facts or the inference to be drawn | who, having received them on board the vesfrom them, the question becomes one of law. Where the state of facts is such that reasonable minds may fairly differ upon the question as to whether there was negligence or not, its determination is a matter of fact for the jury to decide. Grand Trunk R. Co. v. Ives, 144 U. S. 408-417, 36 L. ed. 485489, 12 Sup. Ct. Rep. 679; Baltimore & O. R. Co. v. Griffith, 159 U. S. 603-611, 40 L. ed. 274-278, 16 Sup. Ct. Rep. 105; Texas & P. R. Co. v. Gentry, 163 U. S. 353-368, 41 L. ed. 186-193, 16 Sup. Ct. Rep. 1104; Warner v. Baltimore & O. R. Co. 168 U. S. 339, 42 L. ed. 491, 18 Sup. Ct. Rep. 68.
The evidentiary facts in the stipulation upon which this case was tried are not very fully set forth, and the government and the defendant were content to stipulate that the method of escape through the portholes (assuming that it was by this means the immigrants escaped) could not have been reasonably anticipated by those in charge of the Korea, and that the escape did not occur by reason of any negligence or lack of proper care upon the part of the officers of the vessel or the defendant.
We think the parties were entitled to have this case tried upon the assumption that these ultimate facts, stipulated into the record, were established, no less than the specific facts recited.
sel for the purpose of returning them to the place from whence they came, shall neglect to detain them thereon, or neglect to return them. In this case the court found the defendants guilty as charged in the information, in that they refused and neglected to return to the port from whence they came the two Japanese immigrants. It is the contention of the government that this statute requires of persons situated as were the defendants the absolute duty of returning to the place from whence they came immigrants unlawfully brought into the ports of the United States; and that the word "neglect," as used in this statute, is equivalent to the word "fail" or "omit," and the return of the immigrants is required at all hazards, and the vessel owner will only be relieved when the default is the result of vis major, or inevitable accident. This contention finds support in the case of Warren v. United States, 7 C. C. A. 368, 5 U. S. App. 656, 58 Fed. 559, decided in November, 1893, in the circuit court of appeals for the first circuit, in which § 10 of the act of March 3, 1891, was directly under consideration. We are cited to no other cases construing this section, wherein it was directly involved, although in United States v. Spruth, 71 Fed. 678, a case in the district court for the eastern district of Pennsylvania, involv
We come, then, to the important questioning the 8th section of the same act, Judge in this case, as to the construction of the statute under which the petitioner was convicted and fined. The conviction was under 10 of the act of March 3, 1891 (26 Stat. at L. 1084, chap. 551, U. S. Comp. Stat. 1901, p. 1299), which is as follows:
"Sec. 10. That all aliens who may unlawfully come to the United States shall, if practicable, be immediately sent back on the vessel by which they were brought in. The cost of their maintenance while on land, as well as the expense of the return of such aliens, shall be borne by the owner or owners of the vesesls on which such aliens came; and if any master, agent, consignee, or owner of such vessel shall refuse to receive back on board the vessel such aliens, or shall neglect to detain them thereon, or shall refuse or neglect to return them to the port from which they came, or to pay the cost of their maintenance while on land, such master, agent, consignee, or owner shall be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than three hundred dollars for each and every offense; and any such vessel shall not have clearance from any port of the United States while any such fine is unpaid."
The question is as to the effect of this requirement upon shipowners who have wrongfully brought aliens into this country, and
Butler criticized the decision in the War-
3. To omit to do or perform; let slip; leave | meaning of this statute, remembering that undone; fail through heedlessness to do or in doing (something)."
As defined in the penal statutes of several of the states, the word "neglect" is said to import "a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns." Words and Phrases Judicially Defined, vol. 5, p. 4740.
it undertakes to define an offense which is not to be broadened by judicial construction so as to include acts not intended by Congress. The statute imposes upon one who has brought immigrants into the United States not permitted to land here the duty of returning them to the place from whence they came, with a penalty by fine in case the duty is neglected. If by this requirement it was intended to make the shipowner or master an insurer of the absolute return of the immigrant, at all hazards, except when excused by vis major, or inevitable accident, it would seem that Congress would have chosen terms more clearly indicative of such intention, and, instead of using a
While the term may be used as indicative of carelessness, it may also merely mean an omission or failure to do or perform a given act. This meaning finds illustration in the case of Rosenplaenter v. Roessle, 54 N. Y. 262, 266, in which a guest at a hotel who failed to deposit his valuables for safe-keep-word of uncertain meaning, would have afing, as required by the statute, was held to have "neglected" to deposit within the meaning of the law, for, having the opportunity so to do, he omitted to avail himself of this means of safe-keeping. An illustration of the meaning of the term when indicative of a want of care is found in Watson v. Hall, 46 Conn. 204, 206, in which case it was held that in a statute by which a grand juror is made subject to prosecution when he shall neglect to make seasonable complaint of a crime, the word "neglect" was construed to be used in the sense of omission from carelessness to do something that can be done and that ought to be done, and the grand juror was held not to have neglected the complaint when, after investigation, he had become convinced that the offense should not be prosecuted.
In which sense is the term used in this statute? This is a highly penal statute, and we think the well-known rule, as laid down by Mr. Chief Justice Marshall in the case of United States v. Wiltberger, 5 Wheat. 76, 95, 5 L. ed. 37, 42, is applicable here:
"The rule that penal laws are to be construed strictly is, perhaps, not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislative, not in the judicial, department. It is the legislature, not the court, which is to define a crime and ordain its punishment."
It is true that in the construction of penal statutes, as well as others, the object and purpose is to ascertain the correct meaning of the act, with a view to carrying out the expressed intent of the legislature, and penal statutes are not to be construed so strictly as to defeat the obvious intention of the legislature. United States v. Lacher, 134 U. S. 624, 33 L. ed. 1080, 10 Sup. Ct. Rep. 625. We are to search for the true
fixed the penalty in cases wherein the owner
It is urged by the government that in view of the re-enactment of § 10 as § 19 of the act of 1903 (32 Stat. at L. 1213, chap. 1012), it is to receive a construction in harmony with the judicial interpretation given to the act before the revision. While recognizing the rule that doubtful terms which have acquired through judicial interpretation a well-understood legislative meaning are presumed to be used by the legislature in the sense determined by authoritative decisons- The Abbotsford (The Abbotsford v. Johnson), 98 U. S. 440, 25 L. ed. 168-we do not think the rule applies to this case. So far as we know, there has been but one decision, in the Warren Case, 7 C. C. A. 368, 5 U. S. App. 656, 58 Fed. 559, which was doubted in the Spruth Case, 71 Fed. 678. In 1900 the construction of this act was under consideration by the Attorney General of the United States upon a question submitted by the Secretary of the Treasury, involving the remission of fines to which the owner or master of a vessel was supposed to be liable under the 1 U. S. Comp. St. Supp. 1903, p. 179.
terms of the act now under consideration. | hazards, but to require good faith and full In construing § 10 of the act the Attorney General said:
"But while I assume nothing relative to the facts in this case, with which it is your duty to deal, and not mine, I am clearly of the opinion that in a case where every precaution to detain in safe custody and prevent escape has been rigidly taken, and yet in some real and unforeseen emergency an escape has occurred, there is no such neglect as the act contemplates. If the question were regarded otherwise, the act would rather have said, 'if any such alien shall escape from such vessel, such master shall be deemed guilty of a misdemeanor, and sha'l be punished.'" 23 Ops. Atty. Gen. p. 277.
In this state of judicial and official opinion we do not think this act can be said to have received such judicial interpretation as should control its legislative meaning. We think the Attorney General, in the case cited, laid down the true rule, which does not make the shipowner the insurer, at all hazards, of the safe return of the immigrant, but does require every precaution to detain him and prevent his escape.
diligence to carry him back to the port from whence he came. It follows that the judgment of the Circuit Court of Appeals must be reversed, and the cause remanded to the District Court, with instructions to discharge the petitioner.
(197 U. S. 304)
WALTER S. McMICHAEL, Lillian M.
SAMUEL MURPHY, Louisa Murphy, His
Public lands-effect of uncanceled prima facie valid entry.
A homestead entry on land in Oklahoma territory, which is valid upon its face, although made by one in fact personally disqualified to make a valid entry, prevents the initiation of homestead rights by another while it remains uncanceled of record by some direct action of the Land Office or by relinquishment.
[No. 166.] Submitted March 7, 1905. 3, 1905.
preme Court of the Territory of Oklahoma to review a judgment which affirmed the dismissal on demurrer in the District Court of Oklahoma County of a petition to have the patentee of public lands declared to hold the legal title in trust for plaintiffs' use and benefit. Affirmed.
See lower court report, 12 Okla. 155, 70 Pac. 189.
The facts are stated in the opinion. Messrs. Joseph K. McCammon, James H. Hayden, and Frank Clark for plaintiffs in error and appellants.
Mr. J. H. Everest for defendants in error and appellees.
It is further urged by the government that, if the burden of proof in cases under this act is placed upon the prosecution, itN ERROR to and Appeal from the Suwill be impossible to convict, as the facts and circumstances under which the escape took place are within the knowledge of the defendants alone. We are not dealing with the question of burden of proof in this case, for here it is expressly stipulated that the defendants could not have anticipated the escape by the method employed, and were not guilty of any want of care in the premises. Undoubtedly, the act of Congress should be given a reasonable interpretation, with a view to effect its purpose to prevent the introduction into this country of classes of persons excluded by the immigration laws. If this act should be construed as requiring the return, at all hazards, of the immigrants, those who are required to perform its mandate will doubtless claim the right to use all the force necessary to avoid the penalty of the law in delivering the immigrant to the country or place from whence he came. What would be the result of such power it is easy to imagine. It is difficult to see how a shipowner could insure the return of such immigrants without such confinement or imprisonment as may result in great hardship to that class of individuals who may themselves have had no intention to violate any law of this country. We think this statute was intended to secure, not the delivery of the immigrant at all
Mr. Justice Harlan delivered the opinion of the court:
The facts in this case may be summarized as follows:
On April 23d, April 24th, and May 1st, 1889, White, Blanchard, and Cook, respectively and in the order named, applied, at the United States land office in Guthrie, Oklahoma territory, to make a homestead entry on certain lands, being part of the southwest of section 27, township 12, north of range 3 west. The applications of Blanchard and Cook were each rejected, as being in conflict with White's entry. On April the 27th, 1889, Blanchard filed his affidavit of contest, charging that White en
tered the territory prior to 12 o'clock noon | entitled to make entry. The case, as beof April the 22d, 1889, in violation of the act of Congress approved March 2d, 1889 (25 Stat. at L. 1004, chap. 412), and the President's proclamation issued under that act. 26 Stat. at L. 1544. On May 1st, 1889, Cook also filed an affidavit of contest against White, alleging the latter's disqualification, as above stated, to enter the land, and also that Blanchard was also disqualified upon the same grounds as those alleged in reference to White.
tween McMichael and Murphy, having been heard on February 15th, 1892, a decision was rendered in favor of the latter. Thereupon McMichael appealed to the General Land Office, which, on January 18th, 1893, affirmed the decision of the local office. He then appealed to the Secretary of the Interior, and that officer, on February 25th, 1895, affirmed the decision of the Land Office. McMichael v. Murphy, 20 Land Dec.
The contest having been tried before the A patent was issued to Murphy for the local land office,-each party charging that land; whereupon the present action was the other two had entered the territory brought in the district court of Oklahoma prior to noon of April 22d, 1889, the reg-county by McMichael against Murphy and ister and receiver recommended the cancel- his grantees, the relief asked being a deation of White's entry, and dismissed the contest of both Blanchard and Cook. From this decision all parties appealed to the Commissioner of the General Land Office, and on March 7th, 1890, the decision of the local office was affirmed. An appeal was then taken to the Secretary of the Interior. While the case was pending before that officer, namely, on November 29th, 1890, White relinquished of record his entry, and Murphy, the defendant, on the same day, entered the land. The Secretary of the Interior, July 21st, 1891, affirmed the decision of the Commissioner of the General Land Office. Blanchard v. White, 13 Land Dec. 66.
On or about June 3d, 1889, White's homestead entry being still intact, of record, McMichael entered upon the land with a view of establishing his residence thereon and initiating a homestead right to it; and on July 21st, 1889, he made application to the local office to enter the land, tendering the required fees; but his application was rejected by the local office as being in conflict with White's entry. From that order no appeal was taken.
cree declaring the legal title to be held in trust for the use and benefit of McMichael. Murphy demurred on the ground that the petition did not state facts sufficient to constitute a cause of action; McMichael's claim being that the Secretary of the Interior had misconstrued and misapplied the law. The demurrer was sustained, and, the plaintiff having elected to stand on his petition, the court dismissed the case. From that decree the plaintiff brings the case here for review.
After the cause was entered in the supreme court of the territory McMichael died, and the cause was revived in the name of his heirs.
The particular question involved in this case is whether a settlement or entry on public land already covered of record by another entry, valid upon its face, gives the second entryman any right in the land, notwithstanding the first entry may subsequently be relinquished or be ascertained to be invalid by reason of facts dehors the record of such entry.
By virtue of the authority vested in him by acts of Congress, particularly by the Indian appropriation act of March 2d, 1889 On August 31st, 1889, McMichael again (25 Stat. at L. 1004, chap. 412), the Presitendered his application to the local of- dent by proclamation dated March 23d, fice, with the required fees. That applicaThat applica- 1889, declared that certain lands theretotion was received, but it was suspended fore obtained from Indians (among which pending the contest of White, Blanchard and were those in dispute) would "at and after Cook. On the day last named McMichael filed the hour of 12 o'clock, noon, of the twentya contest or protest, alleging that he had second day of April, next, and not before, be made settlement on the land on June 3d, open for settlement, under the terms of, 1889, had lived there in a tent with his and subject to, all the conditions, limitafamily until August 2d, 1889, when, at tions, and restrictions" contained in the the instance of White, he was forcibly re- above act and in the laws of the United moved therefrom by the military authori-States applicable thereto. 26 Stat. at L. ties; that his rights were superior to those of White, Blanchard, and Cook, all of whom, he alleged, were disqualified by reason of having entered the territory during the period prohibited by law; that his application of June 3d was rejected because it conflicted with White's interests, although he was the only qualified settler on the tract
1544. That proclamation contains the following clause: "Warning is hereby again expressly given, that no person entering upon and occupying said lands before said hour of 12 o'clock, noon, of the twentysecond day of April, a. D. eighteen hundred and eighty-nine, hereinbefore fixed, will ever be permitted to enter any of said lands or
acquire any rights thereto; and that the officers of the United States will be required to strictly enforce the provision of the act of Congress to the above effect." 26 Stat. at L. 1544-1546.
It may be assumed, for the purpose of this case, that White entered the territory and occupied the land before noon of April 22d, 1889, in violation of the act of Congress and the proclamation of the President. But his entry did not, on its face or in the papers connected therewith, disclose the fact of his personal disqualification to make a valid entry. While the entry remained uncanceled of record by any direct action of the Land Office or by relinquishment, could another person, by making an entry, acquire a right in the land upon which a patent could be based? If not, then McMichael acquired no right by his entry or application to enter.
The supreme court of the territory held that White's homestead entry was prima facie valid, and that, so long as White's entry remained uncanceled of record, it segregated the tract of land from the mass of the public domain, and precluded McMichael from acquiring an inceptive right thereto by virtue of his alleged settlement.
public domain, and beyond the reach of
Following the adjudged cases, we hold that White's original entry was prima facie valid, that is, valid on the face of the record, and McMichael's entry, having been made at a time when White's entry remained uncanceled, or not relinquished, of record, conferred no right upon him, for the reason that White's entry, so long as it remained undisturbed of record, had the effect to segregate the lands from the public domain and make them not subject to entry. Upon White's relinquishment they again became public lands, subject to the entry made by Murphy.
In addition, it may be observed that the action of the Land Department under the statutes relating to the public lands has been in iine with the above views. This apWe are of opinion that there was no er- pears from the decision in Hodges v. Colror in this ruling. It is supported by the cord, and from the opinion of the Secreadjudged cases. Kansas P. R. Co. v. Dun-tary of the Interior in McMichael v. Murmeyer, 113 U. S. 629, 28 L. ed. 1122, 5 Sup. Ct. Rep. 566; Hastings & D. R. Co. v. Whitney, 132 U. S. 357, 361, 362, 33 L. ed. 363, 365, 366, 10 Sup. Ct. Rep. 112; Sioux City & I. F. Town Lot & Land Co. v. Griffey, 143 U. S. 32, 38, 36 L. ed. 64, 65, 12 Sup. Ct. Rep. 362; Whitney v. Taylor, 158 U. S. 85, 91-94, 39 L. ed. 906, 908, 909, 15 Sup. Ct. Rep. 796; Northern P. R. Co. v. Sanders, 166 U. S. 620, 631, 632, 41 L. ed. 1139, 1143, 17 Sup. Ct. Rep. 671; Northern P. R. Co. v. De Lacey, 174 U. S. 622, 634, 635, 43 L. ed. 1111, 1115, 1116, 19 Sup. Ct. Rep. 791; and Hodges v. Colcord, 193 U. S. 192, 194-196, 48 L. ed. 677-679, 24 Sup. Ct. Rep. 433.
phy, 20 Land Dec. 147. It is our duty not
(197 U. S. 394) MIDDLETOWN NATIONAL BANK
TOLEDO, ANN ARBOR, & NORTHERN MICHIGAN RAILWAY COMPANY et al.
In the last-named case the question now before us was directly presented and decided. It was there alleged that one Gayman, who had made a homestead entry, was disqualified by reason of his having entered the territory of Oklahoma in violation of the above act of Congress and the proclamation of the President. The court said: "Gayman's homestead entry was Corporations-right to enforce stockholder's prima facie valid. There was nothing on liability outside of state of incorporathe face of the record to show that he had tion. entered the territory prior to the time fixed. for the opening thereof for settlement, or that he had in any manner violated the statute or the proclamation of the President. This prima facie valid entry removed the land, temporarily at least, out of the
A stockholder's liability in an Ohio corporation cannot be enforced outside of the jurisdiction of that state, on the theory that Ohio Const. art. 13, § 3, is, for that purpose, self-executing, when it provides for the individual liability of the stockholders, where an action