UNITED STATES V. DOWDELL.
881
UNITED STATES 'V. DOWDELL.-
(District (Jourt, D. Indiana. October 21, 1881.) L UNITED STATES PENSION LAWS-INDICTMENT UNDER REv. ST. § TO QUASH. ' The act of June 20, 1878, (20 St. 243,) entitled "An act relating to claim
agents and attorneys in pension cases,"does not impliedly repeal the provisions of Rev. St. § 5485, relatmg to the offence of demanding, receiving, etc., unlawful fees by claim agents in pension cases, Rnd th9se provisions of Rev. St. , 5485, obtain and apply to violations of the act of June 20,
Motion to Quash. A. C. Ha,ms and W. H. Calkin8, for defendant. Cha8. L. Holstein, U. S. Dist. Atty., and Cha8. H. McCarer, Asst. U. S. Atty., for the United States. D. J. The charge is that on the first day of January, 1880, the defendant demanded and received from Keziah A. Davis, for prosecuting her claim for a pension, a greater sum thanWllis allowed by law. The indictment is based upon section 5485 of the Revised Statutes, which reads: .. Sec. 5485. Any agent or attorney, or any other person instrumental in prosecuting any claim for pension or bounty land, who shall, directly or indio rectly, contract for, demand, or receive, or retain any greater compensation for his services or instrumentality ill prosecuting a claim for p.ension or bQunty land than is provided in the title pertaining to pensions, or who shall vnongfully withhold from a pensioner or claimant the whole or any part· of the pension or claim allowed and due such pensioner or claimant, or the landwarrant issued to any such claimant, shall be deemed guilty of a high misdemeanor. * . . ..."
Section 4785 declares that no agent, attorney, or other person shall demand or receive any other compensation for his services in prosecuting a claim for lli pension or bounty than such as the commissioner of pensions shall direct to be paid, not exceeding $25. The act of June 20, 1878,(20 St. at Large, 243,) declares that it shall be unlawful for any agent, attorney, or other person to receive for his services in a pension case a greater sum than $10, and expressly repeals section 4785. It is declared in section 5485 that no greater compensatiQn shall be retained or received for prosecuting a claim for pension "than is provided in the title pertaining to pensions," and the defQndant moves to quash the indictment on the ground that the only compensationwhich is found in the title pertaining to pensions is that. in .Reported by Chas.L. Holstein, United States Attorney.
v.8,no.12- 56
889
.FEDERAL' REPORTER.
section 4785, which has been repealed, and that it is no longer a criminal offence to demand or receive illegal fees for prosecuting pension claims. . . Section 4785 simply authorized the commissioner of pensions to allow a fee of not exceeding $25 for prosecuting a claim.. Not satisfied with this provision for the of pensioners, congress, by the act of 1878, declared that it ·should be unlawful for any agent or attorney to charge for his services in a single case more than $10, and repealed section 4785. It can hardly be doubted that it. was the desire of this statute to protect pensioners rather than claim agents and attorneys, and to give effect to this design the statute must be enforced asa substitute for section 4785. Why did congress by this act declare that it should be unlawful for the agent or attorney to demand or receive more than $10 for his services in any one case, and affix. no penalty for its violation ? Clearly, I think, because it was understood that the punishment provided in section 5485 was iniforce and applicable. Hit had been the intention of congress, while thus .legislating in the interest of' pensioners, to relieve agents and attorneys from criminal liability for demanding or receiving compensation in violation of law, that intention would have been manifested by an express repeal of section 5485, or that portion of it which prescribed punishment for demanding or receiving fees in. violation ohaw, :;Ls well as section 4785.' ! . , .It is true th!l-tsection 5485 ,declares that the agent or attorney shall not demand or receive a greater compensation "than is vided in the title pertaining to pensions;" but the fair meaning of that is, I think, that no greater compensation shall be demanded or received than is provided by 1aw. . In the general appropriation act, approved March 8, 1881, the following was inserted =-" And the provision df section 5485 of the Revised Statutes shan be applicable to any person who shall violate the provisions of an act entitled ·An act relating to chiitn: agents and attorneys in peusion cases,' al?proved June 20, 1878."i 'After the passogeof the act of 187S'conflicting views were entertained 'as to 1thenheJ: there was anypeiIaltyfor demanding or receiving compensation in violation ··of .law for prosecuting pension claims, and the clause just quoted 'was inserted in the appropriation Ret to remove that uncertainty. . I am aware that the learned circuit judge of the sixth circuit, whose judgment I have great respect,h!t&held, in the case of U. s. v. jl{ason, reported in 8 FED. REP. 412, that the repeal of section
VNITED STATESV. PAYNE.
883
4785 relieved claim agents and attorneys from crimina.lliability for demanding or receiving illegal fees. I have been slow to differ from a judge of such known ability, 'but, after careful considera.tion, my mind leads me tOll. different' concfusion. Motion to qua.sh overruled. V£de U. 8. v. Connelly,1 FED. REP. 779.
UNITED, STATES 'D. PAYNE.
(Di8trict Court, W. D. ArkanBas. L'FoRPBITUBES A1(D
1881.)
PBIULTIEll-HoMESTEAD
A1(D
PRE-EMPTIONLAwa.
The fact that the title to land may be in the United States does not nec_arily make it that part of the public domain which is subject to settlement by citizens of the United States under the homestead and pre-emption laws. 2. GoVERNMENT A'NCE OIl'TITLE.
The treaty-making power has a right to convey title to the lands of theUnited States without an act of congress, and if a treaty acts directly on the subject of the grant, it is equivalent to an act of congress, and the grantee has a good title. S. BAME-REsERv4TION.
The treaty-making power can reserve a part of the public domain for a specific lawful ptu-pose. :because thil! is but the exercise of a lessbigher power than that which conveys title. ' 4. BAME-SAlIE. The president of the United states, can, by proclamation or executive order, reserve a part ofthe public domain for a specific lawful purpose.
5. 'SAME-SAME.
Congress can, by law, reserve a part of the public domain for suoh purpose. BE SET AsIDE.
6. How A RESERVATION
No set form of words or phrases need be used to set aside a reservation.' It is enough if there are sufficient words to indicate the purpose of the power that acts to show that it intended to act in a given. case.
7.
INDIAN COUNTRy-,-RlGHTS 011' FnEEDMEN.
Colored persons who were never held as slaves in the. Indian country, but who may have been slaves elsewhere, "re like other citizens of the United States, and have no more rights in the Indian country than other citizens of the United States. g, TREATlEll-HowCONSTRUED, " .
A treaty, like an ordinary"contract or a statute, must be construed to give it effect, if possible, and courts always adhere to this rule, In construing a treaty. we have a right to take into consideration the situation of the p:arties to it at the time it was made, the property which is the of 'the treaty, and the intention and purposes of the parties in making the treaty. To get at the purposes and intention of the parties we have a righHocdlisider the con" struction the parties to the treaty, and who were· to be affectedby'i1:, have given. it, and what has-heen their action under it, '