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. sel for the purpose of returning them to the Where the state of facts is such that rea- place from whence they came, shall neglect sonable minds may fairly differ upon the to detain them thereon, or neglect to return question as to whether there was negligence them. In this case the court found the deor not, its determination is a matter of fact fendants guilty as charged in the informafor the jury to decide. Grand Trunk R. Co. tion, in that they refused and neglected to v. Ives, 144 U. S. 408-417, 36 L. ed. 485, return to the port from whence they came 489, 12 Sup. Ct. Rep. 679; Baltimore & 0. the two Japanese immigrants. It is the conR. Co. v. Griffith, 159 U. S. 603-611, 40 L. tention of the government that this statute ed. 274–278, 16 Sup. Ct. Rep. 105; Texas & requires of persons situated as were the deP. R. Co. v. Gentry, 163 U. S. 353-368, 41 fendants the absolute duty of returning to L. ed. 186–193, 16 Sup. Ct. Rep. 1104; the place from whence they came immiWarner v. Baltimore & 0. R. Co. 168 U. S. grants unlawfully brought into the ports of 339, 42 L. ed. 491, 18 Sup. Ct. Rep. 68. the United States; and that the word “neg.

The evidentiary facts in the stipulation lect," as used in this statute, is equivalent upon which this case was tried are not very to the word “fail” or “omit," and the return fully set forth, and the government and the of the immigrants is required at all hazards, defendant were content to stipulate that the and the vessel owner will only be relieved method of escape through the portholes (as- when the default is the result of vis major, suming that it was by this means the im- or inevitable

inevitable accident. This contention migrants escaped) could not have been rea- finds support in the case of Warren v. sonably anticipated by those in charge of United States, 7 C. C. A. 368, 5 U. S. App. the Korea, and that the escape did not 656, 58 Fed. 559, decided in November, 1893, occur by reason of any negligence or lack in the circuit court of appeals for the first of proper care upon the part of the officers circuit, in which 10 of the act of March of the vessel or the defendant.

3, 1891, was directly under consideration. We think the parties were entitled to have We are cited to no other cases construing this case tried upon the assumption that this section, wherein it was directly inthese ultimate facts, stipulated into the volved, although in United States v. Spruth, record, were established, no less than the 71 Fed. 678, a case in the district court for specific facts recited.

the eastern district of Pennsylvania, involvWe come, then, to the important question | ing the 8th section of the same act, Judge in this case, as to the construction of the Butler criticized the decision in the war. statute under which the petitioner was con- ren Case, and expressed doubts as to the victed and fined. The conviction was under construction therein given to the language of § 10 of the act of March 3, 1891 (26 Stat. a criminal statute. The word "neglect,” as at L. 1084, chap. 551, U. S. Comp. Stat. sometimes used, imports an absence of care 1901, p. 1299), which is as follows: or attention in the doing or omission of a

“Sec. 10. That all aliens who may unlaw- given act, or it may be used in the sense of fully come to the United States shall, if an omission or failure to perform some act. practicable, be immediately sent back on the To “neglect” is not always synonymous vessel by which they were brought in. The with to “omit.” Whether the use of the term cost of their maintenance while on land, as is intended to express carelessness or lack well as the expense of the return of such of attention required by the circumstances, aliens, shall be borne by the owner or owners or to express merely a failure to do a given of the vesels on which such aliens came; thing, depends upon the connection in which and if any master, agent, consignee, or the term is used and on the meaning inowner of such vessel shall refuse to receive tended to be expressed. These meanings find back on board the vessel such aliens, or shall illustration in the lexical definition of the neglect to detain them thereon, or shall re-word, as well as the adjudicated cases in fuse or neglect to return them to the port which it has been construed when applied to from which they came, or to pay the cost of different subjects. In Webster's Dictionary their maintenance while on land, such mas- the verb "neglect” is defined as meaning ter, agent, consignee, or owner shall be “not to attend to with due care or attention; deemed guilty of a misdemeanor, and shall to forbear one's duty in regard to; to suffer be punished by a fine of not less than three to pass unimproved, unheeded, undone.” In hundred dollars for each and every offense; the Standard Dictionary the word is defined and any such vessel shall not have clearance as meaning “to fail to perform through carefrom any port of the United States while lessness.” And in the Century Dictionary: any such fine is unpaid.”

“1. To treat carelessly or heedlessly; for. The question is as to the effect of this re- bear to attend to or treat with respect; be quirement upon shipowners who have wrong- remiss in attention or duty toward; fully brought aliens into this country, and '2. To overlook or omit; disregard.

3. To omit to do or perform; let slip; leave meaning of this statute, remembering that undone; fail through heedlessness to do or it undertakes to define an offense which is in doing (something)."

not to be broadened by judicial construction As defined in the penal statutes of several so as to include acts not intended by Conof the states, the word "neglect” is said to gress. The statute imposes upon one who import "a want of such attention to the has brought immigrants into the United nature or probable consequences of the act States not permitted to land here the duty or omission as a prudent man ordinarily of returning them to the place from whence bestows in acting in his own concerns.” they came, with a penalty by fine in case Words and Phrases Judicially Defined, vol. the duty is neglected. If by this require5, p. 4740.

ment it was intended to make the shipowner While the term may be used as indicative or master an insurer of the absolute return of carelessness, it may also merely mean an of the immigrant, at all hazards, except omission or failure to do or perform a given when excused by vis major, or inevitable act. This meaning finds illustration in the accident, it would seem that Congress would case of Rosenplaenter v. Roessle, 54 N. Y. have chosen terms more clearly indicative 262, 266, in which a guest at a hotel who of such intention, and, instead of using a failed to deposit his valuables for safe-keep-word of uncertain meaning, would have afing, as required by the statute, was held to fixed the penalty in cases wherein the owner have "neglected” to deposit within the or master omitted or failed to safely return meaning of the law, for, having the oppor- the immigrant illegally brought here, or tunity so to do, he omitted to avail himself provided some punishment for the person of this means of safe-keeping. An illustra- who had so far complied with the terms tion of the meaning of the term when in of the statute as to receive the immigrant dicative of a want of care is found in Wat- on board his vessel, but had permitted the son v. Hall, 46 Conn. 204, 206, in which case escape, either with or without fault upon it was held that in a statute by which a his part. Where the statute permits of a grand juror is made subject to prosecution construction which does not require this abwhen he shall neglect to make seasonable solute insurance of the return of the imcomplaint of a crime, the word “neglect” migrant, but holds the shipowner to the was construed to be used in the sense of care and diligence required by the circumomission from carelessness to do something stances, we do not feel inclined to adopt that can be done and that ought to be done, the construction least favorable to the acand the grand juror was held not to have cused. This statute imports a duty, and, neglected the complaint when, after inves- in the absence of a requirement that it tigation, he had become convinced that the shall be performed at all hazards, we think offense should not be prosecuted.

no more ought to be required than a faithIn which sense is the term used in this ful and careful effort to carry out the duty statute ?

This is a highly penal statute, imposed. and we think the well-known rule, as laid It is urged by the government that in down by Mr. Chief Justice Marshall in the view of the re-enactment of § 10 as § 19 of case of United States v. Wiltberger, 5 the act of 1903 (32 Stat. at L. 1213, chap. Wheat. 76, 95, 5 L. ed. 37, 42, is applicable 1012), it is to receive a construction in here:

harmony with the judicial interpretation “The rule that penal laws are to be con- given to the act before the revision. While strued strictly is, perhaps, not much less old recognizing the rule that doubtful terms than construction itself. It is founded on which have acquired through judicial inthe tenderness of the law for the rights of terpretation a well-understood legislative individuals, and on the plain principle that meaning are presumed to be used by the the power of punishment is vested in the legislature in the sense determined by aulegislative, not in the judicial, department. thoritative decisons- The Abbotsford (The It is the legislature, not the court, which Abbotsford v. Johnson), 98 U. S. 440, 25 is to define a crime and ordain its punish- L. ed. 168—we do not think the rule apment."

plies to this case. So far as we know, there It is true that in the construction of penal has been but one decision, in the Warren statutes, as well as others, the object and case, 7 C. C. A. 368, 5 U. S. App. 656, 58 purpose is to ascertain the correct meaning Fed. 559, which was doubted in the Spruth of the act, with a view to carrying out the case, 71 Fed. 678.

Case, 71 Fed. 678. In 1900 the construcexpressed intent of the legislature, and tion of this act was under consideration by penal statutes are not to be construed so the Attorney General of the United States strictly as to defeat the obvious intention upon a question submitted by the Secretary of the legislature. United States v. Lacher, of the Treasury, involving the remission of 134 U. S. 624, 33 L. ed. 1080, 10 Sup. Ct. fines to which the owner or master of a Rep. 625. We are to search for the true' vessel was supposed to be liable under the

IU. S. Comp. St. Supp. 1903, p. 179.

p. 277.

terms of the act now under consideration. hazards, but to require good faith and full In construing § 10 of the act the Attor- diligence to carry him back to the port ney General said:

from whence he came. It follows that the “But while I assume nothing relative to judgment of the Circuit Court of Appeals the facts in this case, with which it is your must be reversed, and the cause remanded duty to deal, and not mine, I am clearly to the District Court, with instructions to of the opinion that in a case where every discharge the petitioner. precaution to detain in safe custody and prevent escape has been rigidly taken, and

(197 U. S. 304) yet in some real and unforeseen emergency WALTER S. McMICHAEL, Lillian M. an escape has occurred, there is no such

Harris, Lulu F. McGee, et al., Plffs. in neglect as the act contemplates. If the

Err. and Appts., question were regarded otherwise, the act

v. would rather have said, 'if any such alien shall escape from such vessel, such master SAMUEL MURPHY, Louisa Murphy, His shall be deemed guilty of a misdemeanor,

Wife, Ferdinand Batchelder, et al. and sha 'l be punished.”” 23 Ops. Atty. Gen. " '

Public lands-effect of uncanceled prima In this state of judicial and official opin

facie valid entry. ion we do not think this act can be said

A homestead entry on land in Oklahoma terri. to have received such judicial interpreta

tory, which is valid upon its face, although tion as should control its legislative mean- made by one in fact personally disqualified ing. We think the Attorney General, in to make a valid entry, prevents the initiation the case cited, laid down the true rule, of homestead rights by another while it rewhich does not make the shipowner the in

mains uncanceled of record by some direct ac

tion of the Land Office or by relinquishment. surer, at all hazards, of the safe return of the immigrant, but does require every

[No. 166.] precaution to detain him and prevent his escape.

Submitted March 7, 1905. Decided April It is further urged by the government

3, 1905. that, if the burden of proof in cases under this act is placed upon the prosecution, it

IN

N ERROR to and Appeal from the Suwill be impossible to convict, as the facts preme Court of the Territory of Oklaand circumstances under which the escape homa to review a judgment which affirmed took place are within the knowledge of the the dismissal on demurrer in the District defendants alone. We are not dealing with Court of Oklahoma County of a petition the question of burden of proof in this to have the patentee of public lands decase, for here it is expressly stipulated that clared to hold the legal title in trust for the defendants could not have anticipated plaintiffs' use and benefit. Affirmed. the escape by the method employed, and See lower court report, 12 Okla. 155, 70 were not guilty of any want of care in the Pac. 189. premises. Undoubtedly, the act of Con- The facts are stated in the opinion. gress should be given a reasonable inter- Messrs. Joseph K. McCammon, James pretation, with a view to effect its pur- H. Hayden, and Frank Clark for plainpose to prevent the introduction into this tiffs in error and appellants. country of classes of persons excluded by Mr. J. H. Everest for defendants in erthe immigration laws. If this act should ror and appellees. . be construed as requiring the return, at all hazards, of the immigrants, those who Mr. Justice Harlan delivered the opinare required to perform its mandate will ion of the court: doubtless claim the right to use all the The facts in this case may be summarized force necessary to avoid the penalty of the as follows: : law in delivering the immigrant to the On April 230,- April 24th, and May 1st, country or place from whence he came. 1889, White, Blanchard, and Cook, respecWhat would be the result of such power it tively and in the order named, applied, at is easy to imagine. It is difficult to see the United States land office in Guthrie, how a shipowner could insure the return Oklahoma territory, to make a homestead of such immigrants without such confine- entry on certain lands, being part of the ment or imprisonment as may result in southwest 1 of section 27, township 12, great hardship to that class of individuals north of range 3 west. The applications of who may themselves have had no intention Blanchard and Cook were each rejected, as to violate any law of this country. We being in conflict with White's entry. On think this statute was intended to secure, April the 27th, 1889, Blanchard filed his not the delivery of the immigrant at all'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 tween McMichael and Murphy, having been act of Congress approved March 2d, 1-889 heard on February 15th, 1892, a decision (25 Stat. at L. 1004, chap. 412), and the was rendered in favor of the latter. TherePresident's proclamation issued under that upon McMichael appealed to the General act. 26 Stat. at L. 1544. On May 1st, 1889, Land Office, which, on January 18th, 1893, Cook also filed an affidavit of

affidavit of contest aflirmed the decision of the local office. He against White, alleging the latter's disqual- then appealed to the Secretary of the Inification, as above stated, to enter the land, terior, and that officer, on February 25th, and also that Blanchard was also disquali-1895, affirmed the decision of the Land Offied upon the same grounds as those alleged fice. McMichael v. Murphy, 20 Land Dec. in reference to White.

147. 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 cree declaring the legal title to be held in contest of both Blanchard and Cook. From trust for the use and benefit of McMichael. this decision all parties appealed to the Murphy demurred on the ground that the Commissioner of the General Land Office, petition did not state facts sufficient to conand on March 7th, 1890, the decision of stitute a cause of action; McMichael's claim the local office was affirmed. An appeal was being that the Secretary of the Interior had then taken to the Secretary of the Interior. misconstrued and misapplied the law. The While the case was pending before that of demurrer was sustained, and, the plaintiff ficer, namely, on November 29th, 1890, having elected to stand on his petition, the White relinquished of record his entry, and

of record his entry, and court dismissed the case. rom that decree Murphy, the defendant, on the same day, the plaintiff brings the case here for review. entered the land. The Secretary of the In- After the cause was entered in the suterior, July 21st, 1891, affirmed the de-preme court of the territory McMichael cision of the Commissioner of the General died, and the cause was revived in the name Land Office. Blanchard v. White, 13 Land of his heirs. Dec. 66.

The particular question involved in this On or about June 30, 1889, White's home- case is whether a settlement or entry on stead entry being still intact, of record, Mc- public land already covered of record by Michael entered upon the land with a view another entry, valid upon its face, gives the

, of establishing his residence thereon and second entryman any right in the land, notinitiating a homestead right to it; and on withstanding the first entry may subseJuly 21st, 1889, he made application to quently be relinquished or be ascertained the local office to enter the land, tendering to be invalid by reason of facts dehors the the required fees; but his application was record of such entry. rejected by the local office as being in con- By virtue of the authority vested in him flict with White's entry. From that order by acts of Congress, particularly by the no appeal was taken.

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 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.

States applicable thereto. 26 Stat. at L. ties; that his rights were superior to those 1544. That proclamation contains the folof White, Blanchard, and Cook, all of whom, lowing clause: "Warning is hereby again he alleged, were disqualified by reason of expressly given, that no person entering having entered the territory during the upon and occupying said lands before said period prohibited by law; that his applica- hour of 12 o'clock, noon, of the twentytion of June 3d was rejected because it con- second day of April, A. D. eighteen hundred flicted with White's interests, although he and eighty-nine, hereinbefore fixed, will ever was the only qualified settler on the tract' be permitted to enter any of said lands or

.

.

acquire any rights thereto; and that the public domain, and beyond the reach of officers of the United States will be re-other homestead entries.

Generalquired to strictly. enforce the provision of ly, a homestead entry while it remains unthe act of Congress to the above effect.” 26 canceled withdraws the land from subseStat. at L. 1544-1546.

quent entry. Such has been the ruling of It may be assumed, for the purpose of the Land Department.

The entry this case, that White entered the territory of Gayman, though ineffectual to vest any and occupied the land before noon of April rights in him, and therefore void as to him, 22d, 1889, in violation of the act of Con- was such an entry as prevented the acquisigress and the proclamation of the Presi- tion of homestead rights by another until dent. But his entry did not, on its face it had been set aside.” or in the papers connected therewith, dis- Following the adjudged cases, we hold close the fact of his personal disqualifica- that White's original entry was prima facie tion to make a valid entry. While the entry valid, that is, valid on the face of the recremained uncanceled of record by any di-ord, and McMichael's entry, having been rect action of the Land Office or by re- made at a time when White's entry relinquishment, could another person, by mained uncanceled, or not relinquished, of making an entry, acquire a right in the record, conferred no right upon him, for the land upon which a patent could be based ? reason that White's entry, so long as it reIf not, then McMichael acquired no right mained undisturbed of record, had the efby his entry or application to enter. fect to segregate the lands from the public

The supreme court of the territory held domain and make them not subject to entry. that White's homestead entry was prima Upon White's relinquishment they again facie valid, and that, so long as White's became public lands, subject to the entry entry remained uncanceled of record, it seg- made by Murphy. regated the tract of land from the mass of In addition, it may be observed that the the public domain, and precluded McMichael action of the Land Department under the from acquiring an inceptive right thereto statutes relating to the public lands has by virtue of his alleged settlement.

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. Hur. meyer, 113 U. S. 629, 28 L. ed. 1122, 5 Sup. phy, 20 Land Dec. 147. It is our duty not Ct. Rep. 566; Hastings & D. R. Co. v. Whit- to overrule the construction of a statute ney, 132 U. S. 357, 361, 362, 33 L. ed. 363, upon which the Land Department has uni365, 366, 10 Sup. Ct. Rep. 112; Sioux City formly proceeded in its administration of & I. F. Town Lot & Land Co. v. Griffey, 143 the public lands, except for cogent reasons. U. S. 32, 38, 36 L. ed. 64, 65, 12 Sup. Ct. United States v. Johnston, 124 U. S. 236, Rep. 362; Whitney v. Taylor, 158 U. S. 85, 31 L. ed. 389, 8 Sup. Ct. Rep. 446; United 91-94, 39 L. ed. 906, 908, 909, 15 Sup. Ct. States v. Alabama G. 8. R. Co. 142 U. S. Rep. 796; Northern P. R. Co. v. Sanders, 615, 35 L. ed. 1134, 12 Sup. Ct. Rep. 306; 166 U. S. 620, 631, 632, 41 L. ed. 1139, 1143, United States v. Philbrick, 120 U. S. 52, 17 Sup. Ct. Rep. 671; Northern P. R. Co. v. 30 L. ed. 559, 7 Sup. Ct. Rep. 413; United De Lacey, 174 U. S. 622, 634, 635, 43 L. ed. States v. Healey, 160 U. S. 138, 141, 40 L. 1111, 1115, 1116, 19 Sup. Ct. Rep. 791; and ed. 370, 371, 16 Sup. Ct. Rep. 247. Hodges v. Colcord, 193 U. S. 192, 194–196, The judgment is affirmed. 48 L. ed. 677-679, 24 Sup. Ct. Rep. 433. In the last-named case the question now

(197 U. S. 394) before us was directly presented and de

MIDDLETOWN NATIONAL BANK cided. It was there alleged that one Gayman, who had made a homestead entry, was disqualified by reason of his having en- TOLEDO, ANN ARBOR, & NORTHERN tered the territory of Oklahoma in viola

MICHIGAN RAILWAY COMPANY tion of the above act of Congress and the

et al. proclamation of the President. The court said: “Gayman's homestead entry

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 A stockholder's liability in an Ohio corporation that he had in any manner violated the

V.