(40 Sup.Ct.) The statute, thus indefinite if not ambigu- | 7 Sup. Ct. 413, 30 L. Ed. 559. During all the ous, called for construction by the depart- intervening 24 years this rule of the department and the regulation adapted to cases such as we have here, commends itself strongly to our judgment. It does not seem possible that Congress could have intended that two-thirds of the duty should be returned when one-quarter in value of the manufactured product should be exported; or that the exporter should retain 20 pounds of oil, estimated in the findings as worth about 71⁄2 cents a pound, derived from each bushel of seed, and recover two-thirds of the duty paid when he exported 36 pounds of seed cake, worth slightly more than 1 cent a pound, derived from the same bushel of seed. Such results-they must follow the acceptance of the appellant's contention-should be allowed only under compulsion of imperative language such as is not to be found in the section we are considering. We prefer the reasonable interpretation of the department, which results in a refund of one-quarter of the duty when one-quarter of the value of the product is exported. [2] From Edwards v. Darby, 12 Wheat. 206, 6 L. Ed. 603, to Jacobs v. Prichard, Trustee, 223 U. S. 200, 32 Sup. Ct. 289, 56 L. Ed. 405, it has been the settled law that, when uncertainty or ambiguity, such as we have here, is found in a statute, great weight will be given to the contemporaneous construction by department officials, who were called upon to act under the law and to carry its *146 pro*visions into effect, especially where such construction has been long continued, as it was in this case for almost 40 years before the petition was filed. United States v. Hill, 120 U. S. 169, 7 Sup. Ct. 510, 30 L. Ed. 627. To this we must add that the department's interpretation of the statute nas had such implied approval by Congress that it should not be disturbed, particularly as applied to linseed and its products. [3] The drawback provision, under which the construction complained of originated, ment with respect to drawbacks had been widely applied to many articles of much greater importance than linseed or its derivatives, and the practice was continued, linseed included after 1894, until the petition in this case was filed. The re-enacting of the drawback provision four times, without substantial change, while this method of determining what should be paid under it was being constantly employed, amounts to an implied legislative recognition and approval of the executive construction of the statute (United States v. Philbrick, supra; United States v. G. Falk & Brother, 204 U. S. 143, 152, 27 Sup. Ct. 191, 51 L. Ed. 411; United States v. Cerecedo *Hermanos y Compania, 209 U. S. 337, 28 Sup. Ct. 532, 52 L. Ed. 821), for Congress is presumed to have legislated with knowledge of such an established usage of an executive department of the government (United States v. Bailey, 9 Pet. 238, 256, 9 L. Ed. 113). *147 This case would not deserve even the limited discussion which we thus have given it, were it not for the extensive and long-continued application of the regulation of the department to imported and exported materials other than such as are here involved. This specific case is sufficiently ruled by the clear and satisfactory decision of the Circuit Court of Appeals for the Second Circuit, rendered 22 years ago, in United States v. Dean Linseed Oil Co., 87 Fed. 453, 31 C. C. A. 51, in which the Court of Claims found authority for dismissing the plaintiff's petition. The judgment of the Court of Claims is Affirmed. In re TIFFANY. (252 U. S. 32) (Argued Jan. 19, 1920. Decided March 1, 1920.) No. 26, Original. continued unchanged from 1861 until the 1. APPEAL AND ERROR 71(4)-ORDER DE revision of the statute in 1870, and the Court of Claims finds that the rule for determining the drawback on oil cake was applied during the whole of that period of almost ten years. The Tariff Act approved July 14, 1870 (16 Stat. 256, 265, c. 255), expressly provided, in the flaxseed or linseed paragraph, "that no drawback shall be allowed on oil cake made from imported seed," and this provision was continued in the Tariff Act of March 3, 1883 (22 Stat. 488, 513), and in the Act of October 1, 1890 (26 Stat. 567, 586). But in the Act of 1894 (28 Stat. 509, 523), the prohibition was eliminated, thus restoring the law on this subject as applied to this material to what it was in substance from 1861 to 1870. United States v. Philbrick, 120 U. S. 52, 59, NYING APPLICATION TO DIRECT RECEIVER TO TURN OVER PROPERTY APPEALABLE AS "FINAL DECISION." An order of the District Court, denying an application to require a receiver appointed by that court to turn over the property in his custody to a receiver appointed by a state court, was appealable to the Circuit Court of Appeals, under Judicial Code, § 128 (Comp. St. § 1120), as a "final decision." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Final Decision.] - 2. COURTS 405(3) "FINAL DECISION IN DISTRICT COURT," FROM WHICH APPEAL LIES, DEFINED. The words "final decision in the District Court," in Judicial Code, § 128 (Comp. St. § For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3(2) 3. MANDAMUS 4(3)-PROHIBITION TURN OVER PROPERTY. As an order denying an application to require a receiver appointed by the District Court to turn over property in his custody to the receiver appointed by a state court was appealable, the applicant could not resort to mandamus or prohibition. 1120), relative to appeals to the Circuit Court | ment of the federal receiver, creditors of Wilof Appeals, mean the same thing as "final liam Necker, Incorporated, filed a bill in the judgments and decrees," in former acts regu- Court of Chancery of New Jersey alleging lating appellate jurisdiction. the corporation's insolvency, praying that it be decreed to be insolvent, that an injunction issue restraining it from exercising its franchises, and that a receiver be appointed to dispose of the property, and distribute it among creditors and shareholders. A decree was entered in said cause adjudging the corporation insolvent, and appointing the petitioner, J. Raymond Tiffany, receiver. Thereupon Tiffany made application to the United States District Court asking that its injunction enjoining the corporation and all of its officers and all other persons from interfering with the possession of the federal receiv er be dissolved, that the federal receivership be vacated, and that the federal receiver turn over the assets of the company then in his hands, less administration expenses, to the chancery receiver for final distribution-the contention being that the appointment of the chancery receiver and the proceedings in the state court superseded the federal proceeding, and deprived the federal court of jurisdiction. Original application by J. Raymond Tiffany, as receiver appointed by the Court of Chancery of New Jersey of William Necker, Incorporated, for a writ of mandamus, or a writ of prohibition directed to J. Warren Davis, District Judge of the United States for the District of New Jersey. On order to show cause. Rule discharged. Mr. Merritt Lane, of Newark, N. J., for petitioner. Mr. Samuel Heyman, of Jersey City, N. J., for respondent. This is an application of J. Raymond Tiffany as receiver, appointed by the Court of Chancery of New Jersey, of William Necker, Incorporated, for a writ of mandamus, or in the alternative a writ of prohibition, the object of which is to require the District Judge and the District Court of the United States for the District of New Jersey to order the assets of the corporation, in the hands of a federal receiver, to be turned over to appli cant for administration by him as receiver appointed by the New Jersey Court of Chan cery. The federal receiver had made various reports and conducted the business of the cor poration up until the time of the application *36 in the Court of Chancery of New Jersey, in which the applicant was appointed receiver. It appears that the applicants in the state court also filed their verified claims with the federal receiver, and that no creditor or shareholder made objection to the exercise of the jurisdiction of the federal court until the application in the state court. The federal District Court permitted the chancery receiver to intervene, heard the parties, and delivered an opinion in which the matter was fully considered. As a result of entered in which it was recited that Tiffany, such hearing and consideration an order was An order to show cause why the prayer of the petition should not be granted was issued, a return was made by the District the state receiver, had made an application to Judge and the matter was argued and sub- the federal District Court for an order dimitted. The pertinent facts are: On Septem-recting it to turn over to the chancery receiv ber 30, 1916, creditors and shareholders of er all of the assets of the corporation in the William Necker, Incorporated, a corporation of the state of New Jersey, filed a bill in the United States District Court of New Jersey *35 alleging the *insolvency of the corporation, praying for the appointment of a receiver, and a distribution of the corporate assets among the creditors and shareholders. The bill alleged diversity of citizenship as a ground for jurisdiction. The defendant corporation appeared and answered, admitting the allegations of the bill, and joined in the prayer that its assets be sold and distributed according to law. Upon consent the District Court appointed a receiver. The estate is insolvent, and the assets in the hands of the federal receiver are insufficient to pay credtors, and shareholders will receive nothing. On April 1, 1919, 21⁄2 years after the appoint possession of the federal receiver, and the District Court ordered, adjudged and decreed that the said application of J. Raymond Tiffany, receiver in chancery, "be and the same hereby is denied.' [1, 2] By Judicial Code, § 128 (Comp. St. § 1120), the Circuit Court of Appeals is given appellate jurisdiction to review by appeal or writ of error final decisions in the District Courts, with certain exceptions not necessary to be considered. It is clear that the order made in the District Court refusing to turn over the property to the chancery receiver was a final decision within the meaning of the section of the Judicial Code to which we have referred, and from which the chancery receiver had the right to appeal to the Circuit Court of Appeals. By the crder the right of the state receiver to possess and adminis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) ter the property of the corporation was finally denied. The words "final decision in the District Court" mean the same thing as "final judgments and decrees," as used in former acts regulating appellate jurisdiction. Love land on Appellate Jurisdiction of Federal Courts, § 39. This conclusion is amply sustained by the decisions of this court. Savannah v. Jesup, 106 U. S. 563, 1 Sup. Ct. 512, 27 L. Ed. 276; Gumbel v. Pitkin, 113 U. S. *37 545, 5 Sup. Ct. 616, 28 L. Ed. 1128; *Krippendorf v. Hyde, 110 U. S. 276, 287, 4 Sup. Ct. 27, 28 L. Ed. 145. See also a well-considered case in the Circuit Court of Appeals, Ninth Circuit-Dexter Horton National Bank v. Hawkins, 190 Fed. 924, 111 C. C. A. 514. [3] It is well settled that where a party has the right to a writ of error or appeal, resort may not be had to the extraordinary writ of mandamus or prohibition. In re Harding, 219 U. S. 363, 31 Sup. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392; Ex Parte Oklahoma, 220 U. S. 191, 31 Sup. Ct. 426, 55 L. Ed. 431. As the petitioner had the right of appeal to the Circuit Court of Appeals he could not resort to the writ of mandamus or prohibition. It results that an order must be made discharging the rule. Rule discharged. (252 U. S. 159) of the statute by courts and the Department of Justice for almost 50 years. [Ed. Note.-For other definitions, see Words and F'hrases, First and Second Series, Cattle.] 4. STATUTES 241(1)-RULE AS TO STRICT CONSTRUCTION OF PENAL STATUTES NOT VIOLATED BY GIVING FULL MEANING TO LANGUAGE. The rule that penal statutes are to be strictly construed is not violated by allowing their words to have full meaning, or even the more extended of two meanings, where such construction best harmonizes with the context and most fully promotes the policy and objects of the Legislature. 5. JUDGMENT 589(1)-DECREE FOR NOMINAL DAMAGES IN INJUNCTION SUIT NOT BAR TO ACTION FOR STATUTORY PENALTY. Where, in a suit to enjoin defendant from grazing sheep on Indian lands, the government prayed for the amount of the statutory penalty, which was denied, on the ground that equity would not aid the collection of penalties, and, there being no evidence of substantial damages, nominal damages only were allowed, the recovery thereof did not bar an action at law for the statutory penalty. Appeal from the United States Circuit Court of Appeals for the Ninth Circuit. In Error to the United States Circuit Court of Appeals for the Ninth Circuit. Suit in equity and action at law by the United States against the Ash Sheep Compa ASH SHEEP CO. v. UNITED STATES (two ny. A decree in the equity suit and a judg cases). ment in the action at law, each for the Unit (Argued Jan. 30, 1920. Decided March 1, 1920.) ed States, were affirmed by the Circuit Court Nos. 212, 285. 1. INDIANS 37-LANDS CEDED TO GOVERNMENT REMAINED "INDIAN LANDS" WITHIN STATUTE AS TO DRIVING STOCK THEREON. Lands ceded to the United States by the Crow Indians by the agreement ratified by Act April 27, 1904, which agreement provided for the use of proceeds of sales for the benefit of the Indians, are "Indian lands," within Rev. St. § 2117 (Comp. St. § 4107), imposing a penalty for driving stock on the lands of Indians to range. 2. INDIANS 11-NATURE OF TITLE ACQUIRED BY CESSION TO GOVERNMENT DEPENDS ON TERMS OF AGREEMENT OR TREATY. Whether the government becomes a trustee for the Indians, or acquires an unrestricted title, by a cession of their lands, depends in each case upon the terms of the agreement or treaty by which the cession is made. 3. INDIANS 37-STATUTE IMPOSING PENALTY FOR DRIVING "CATTLE" TO RANGE ON INDIAN LANDS INCLUDES SHEEP. of Appeals, Ninth Circuit (250 Fed. 591, 162 C. C. A. 607; 250 Fed. 592, 162 C. C. A. 6087, and defendant appeals in the one case and brings error in the other. Affirmed. Messrs. Cornelius B. Nolan and William Scallon, both of Helena, Mont., for appellant and plaintiff in error. Mr. Assistant Attorney General Nebeker, for the United States. *163 *Mr. Justice CLARKE delivered the opinion of the Court. These two cases were argued and will be decided together. No. 212 is an appeal from a decree, entered in a suit in equity, in favor of the government granting a permanent injunction restraining the appellant from trespassing upon described lands in Montana by grazing sheep thereon and for nominal damages for such trespass. No. 285 is a proceeding in error, in which reversal is sought of a judgment rendered in an action at law against plaintiff in error, appellant in the equity suit, for a penalty for the same trespass. Rev. St. § 2117 (Comp. St. § 4107), imposing a penalty for driving any stock of horses, mules, or cattle to range on lands of Indians, includes sheep in the term "cattle," in view of the definition of that word by lexicographers The validity of the right asserted by the as including domestic quadrupeds other than government, in both cases, turns upon wheththose of the bovine family, and the construction er the lands involved were "Indian lands" For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes or "public lands." If they were the former, [ agreement or treaty by which the cession was the decree in the equity case should be af- made. Minnesota v. Hitchcock, 185 U. S. firmed, but in the law case there would re- 373, 394, 398, 22 Sup. Ct. 650, 46 L. Ed. 954; main the question as to whether "sheep" were United States v. Mille Lac Band of Chipwithin the terms of the act under which the pewa Indians, 229 U. S. 498, 509, 33 Sup. Ct. penalty was imposed. 811, 57 L. Ed. 1299. In both cases the government contends that the appellant violated section 2117 of the Revised Statutes of the United States (Comp. St. § 4107), which reads as follows: "Every person who drives or otherwise conveys any stock of horses, mules, or cattle, to range and feed on any land belonging to any Indian or Indian tribe, without the consent of such tribe, is liable to a penalty of one dollar for each animal of such stock." The agreement we have in this case is elaborate and, in consideration of the grant by the Indians of their possessory right, the government assumed many obligations with respect to the lands and the proceeds of them *165 not*ably, that it would sell the land to settlers, except sections 16 and 36, for not less than $4 per acre and would pay the proceeds to the Indians, under the direction of the Secretary of the Interior, in a manner prescribed. Thus, the government contracted to expend $90,000 of the proceeds of the land in the extension of the irrigation system on the reservation remaining, $295,000 in the purchase of The company admits that it pastured 5,000 sheep on the described lands without the consent of the Crow Tribe of Indians or of the United States, but denies that they were "In-stock to be placed on the reservation, with a dian lands" and contends that they were "public lands," upon which it was lawful for it to pasture its stock. [1] Whether the described lands were Indian or public lands depends upon the construction to be given the act of Congress, approved April 27, 1904 (33 Stat. 352, c. 1624), *164 further contingent purchase in contemplation of $200,000, $40,000 in fencing, $100,000 for schools, and $10,000 for a hospital for the Indians, for the maintenance of which $50,000 additional was to be held in trust. It was further provided that, to the extent that feasible irrigation prospects could be found, parts of the released lands should be with en titled "An act to ratify and amend an agreement with the Indians of the Crow Res-drawn under the Reclamation Act and be diservation in Montana, and making appropriations to carry the same into effect." The agreement embodied in this act of Congress provided for a division of the Crow In dian Reservation in Montana on boundary lines which were described, and the lands in volved in this case were within the part of the reservation as to which the Indians, in terms, "ceded, granted and relinquished" to the United States all of their "right, title and interest." The argument of the Sheep Company is that the United States being owner of the fee of the land before the agreement, the effect of this grant and release of their possessory right by the Indians was to vest the complete and perfect title in the government, and thereby make the territory a part of the public lands with the interest of the Indians transferred to the proceeds to be derived from them. For this conclusion the following cases are cited: United States v. Choctaw Nation and Chickasaw Nation, 179 U. S. 494, 21 Sup. Ct. 149, 45 L. Ed. 291; Bean v. Morris, 159 Fed. 651, 86 C. C. A. 519; Id., 221 U. S. 485, 31 Sup. Ct. 703, 55 L. Ed. 821. But in the first of these cases the Indians parted with their possessory rights for a cash payment by the United States (179 U. S. 527, 21 Sup. Ct. 149, 45 L. Ed. 291), and in the second the character of the agreement under which the Indian title was said, incidentally, to have terminated, does not appear. [2] Whether or not the government became trustee for the Indians or acquired an unrestricted title by the cession of their lands, depends in each case upon the terms of the posed of within five years, but not for less than $4 an acre. There were many other like provisions, all intended to secure to the Indians the fullest possible value for what are referred to in the agreement as "their lands" and to make use of the proceeds for their benefit. should be made by the Secretary of the InIt was provided that semiannual reports terior to the Indians, showing the amounts expended from time to time and the amounts remaining in each of the several funds. It is obvious that the relation thus established by the act between the government and the tribe of Indians was essentially that of trustee and beneficiary and that the agree ment contained many features appropriate to the proceeds to the interests of the cestui que a trust agreement to sell lands and devote trust. Minnesota v. Hitchcock, 185 U. S. 373, 394, 398, 22 Sup. Ct. 650, 46 L. Ed. 954. And Congress regarded the whole transaction, is that this was precisely the light in which the clear from the terms of the concluding seetion, the eighth: *166 "That nothing in this act contained shall in any manner bind the United States to purchase any portion of the land *herein described, except sections sixteen and thirty-six or the equivalent in each township, or to dispose of said land except as provided herein, or to guarantee to find purchasers for said lands or any portion thereof, it being the intention of this act that the United States shall act as trustee for said Indians to dispose of said lands and to expend and pay over the proceeds received from the sale thereof only as received, as herein provided." 33 Stat. pp. 352, 361, c. 1624. (40 Sup.Ct.) In 1834 it was given its Taking all of the provisions of the agree-2 Stat. 139, 141. ment together, we cannot doubt that, while present form, which was carried into the Rethe Indians by the agreement released their vised Statutes, without change in the wordpossessory right to the government, the own- ing we are considering. R. S. § 2117. er of the fee, so that, as their trustee, it could make perfect title to purchasers, nevertheless, until sales should be made, any benefits which might be derived from the use of the lands would belong to the beneficiaries and not to the trustee, and that they did not become "public lands" in the sense of being subject to sale, or other disposition, under the General Land Laws. Union Pacific R. R. Co. v. Harris, 215 U. S. 386, 3SS, 30 Sup. Ct. 138, 54 L. Ed. 246. They were subject to sale by the government, to be sure, but in the manner and for the purposes provided for in the special agreement with the Indians, which was embodied in Act April 27, 1904 (33 Stat. 352), and as to this point the case is ruled by the Hitchcock and Chippewa Cases, supra. Thus we conclude that the lands described in the bill were "Indian lands" when the company pastured its sheep upon them, in violation of section 2117 of Revised Statutes, and the decree in No. 212 must be affirmed. [3] There remains the question as to the construction of R. S. § 2117. In 1871 suit was brought in the United States District Court for the District of Oregon, claiming that penalties under the section had been incurred by pasturing "sheep," as in this case, on Indian lands without the consent of the tribe. In a carefully prepared and clearly reasoned opinion Judge Deady overruled a demurrer to the complaint, and held that "sheep" were clearly within the mischief to be remedied and fairly withnot been overruled or modified by any later in the language of the act. *This case has decision. *168 The court quotes definitions of the word "cattle" from several dictionaries, emphasizing especially, this from the 1837 edition of Webster: "In its primary sense, the word includes, camels, horses, asses, all the varieties of domestiof all kinds and goats, and perhaps swine. cated horned beasts of the bovine genus, sheep *** Cattle in the United States, in common usage, signifies only beasts of the bovine genus." Upon this authority, and applying the In the law case it is admitted in the bill rule that in determining the legislative inof exceptions that the Sheep Company, with- tent the mischief to be prevented should be out the permission of the Crow Tribe of In-looked to, and saying that "it will not be dians or of the United States, drove, ranged, denied that sheep are as much within the and grazed 5,000 head of sheep on the land mischief to be remedied as horses or oxen," described in the complaint, and that at the the court concludes: *167 time no settlement or entries thereon had been authorized under acts of Congress. The judgment against the company was for $5,000-$1 for each sheep pastured on the land. The company contends that the judgment should be reversed for the reason that R. S. § 2117, imposes the penalty prescribed, only, for ranging and feeding on the lands of an Indian tribe without permission "any stock of horses, mules, or cattle," and that "sheep" are not within its terms. If this were a recent statute, and if we were giving it a first interpretation, we might hesitate to say that by the use of the word "cattle" Congress intended to include "sheep." But the statute is an old one, which has been interpreted in published reports of the courts for almost 50 years, and in an opinion by the Attorney General of the United States, rendered in 1884, as fairly comprehending "sheep" within the meaning of the word "cattle" as used in it. The statute first appears as section 2 of an "Act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers," enacted in 1796 and was then applicable only to "any stock of horses or cattle," etc. 1 Stat. 469, 470. The sec "I have no hesitation in coming to the conclusion that the word cattle, as used in the Indian Intercourse Act of 1834 [Comp. St. § 4107] includes, and was intended to include, sheep, as well as cows and oxen." United States v. Mattock, 2 Sawy. 148, Fed. Cas. No. 15,744. Twelve years later, in 1884, the Attorney General of the United States, in an opinion to the Secretary of War, regarded the question as so little doubtful that he disposed of it in this single sentence: der the head of cattle, and it would seem to be. In 1874, in Decatur Bank v. St. Louis Bank, 21 Wall. 294, 22 L. Ed. 560, this court held that the word "cattle," in a letter of credit guaranteeing "drafts on shipments of cattle," was comprehensive enough to justify the giving of credit on shipments of "hogs." This pertinent paragraph is from the opinion: "That stock of some kind formed part of the guarantee is quite plain, but is the word 'cattle' in this connection to be confined to neat cattle alone; that is, cattle of the bovine genus? It 169 tion was re-enacted without change in 1802. is often so applied, but it is [quoting *from Wor |
