In United States v. Harris, 177 U. S. 309, 20 Sup. Ct. 611, 44 L. Ed. 780, it is said:

"Giving all proper force to the contention of the counsel of the government that there has been some relaxation on the part of the courts in applying the rule of strict construction to such statutes, it still remains that the intention of a penal statute must be found in the language actually used, interpreted according to its fair and obvious meaning. It is not permitted to courts, in this class of cases, to attribute inadvertence or oversight to the Legislature when enumerating the classes of persons who are subjected to a penal enactment, nor to depart from the settled meaning of words or phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute."

Mr. Chief Justice Shiras, in delivering the opinion of the court in the above case, quotes the language of Mr. Chief Justice Marshall in United States v. Wiltberger, 5 Wheat. 76, 5 L. Ed. 37, as follows:

"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, and not in the judicial, department. It is the Legislature, not the court, which is to define a crime and ordain its punishment. It is said that, notwithstanding this rule, the intention of the lawmaker must govern in the construction of penal as well as other statutes. But this is not a new, independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this: That, though penal statutes are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the Legislature. The maxim is not to be applied so as to narrow the words of the statute to the exclusion of cases which those words in their ordinary acceptation, or in that sense in which the Legislature obviously used them, would comprehend. The intention of the Legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed which would justify a court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous indeed to carry the principle that a case which is within the reason or mischief of a statute is within its provisions so far as to punish a crime not enumerated in the statute, because it is of equal atrocity or of a kindred character with those which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in cases of considerable irritation, which it would be unsafe to consider as precedents forming a general rule in other cases."

In Lake County v. Rollins, 130 U. S. 670, 9 Sup. Ct. 652, 32 L. Ed. 1060, Mr. Justice Lamar said:

"To get at the thought or meaning expressed in a statute, a contract, or a constitution, the first resort in all cases is to the natural signification of the words in the order of grammatical arrangement in which the framers of the instrument have placed them. If the words convey a definite meaning, which involves no absurdity, nor any contradiction of other parts of the instrument, then that meaning apparent on the face of the instrument must be accepted, and neither the courts nor the Legislature have the right to add to it or take from it."

There are occasions when earlier statutes can be consulted. The Supreme Court has stated the rule. In United States v. Bowen, 100 U. S. 513, 25 L. Ed. 631, it is said:

"The Revised Statutes must be treated as the legislative declaration of the statute law on subjects which they embrace on the 1st day of December, 1873. When the meaning is plain, the courts cannot look to the statutes which have been revised to see if Congress erred in that revision."

This is approved in Vietor v. Arthur, 104 U. S. 498, 26 L. Ed. 633: "The decisive question is whether section 728 is to be construed as an inde pendent act, or whether the plaintiff is at liberty, by referring to the prior act from which it was taken, to show that it was the intention of Congress to limit it to the cases named in such prior act. The general rule is perfectly well settled that where a statute is of doubtful meaning, and susceptible upon its face of two constructions, the court may look into prior and contemporaneous acts, the reasons which induced the act in question, the mischiefs intended to be remedied, the extraneous circumstances, and the purpose intended to be accomplished by it, to determine its proper construction. But where the act is clear upon its face, and when standing alone it is fairly sus ceptible of but one construction, that construction must be given to it." Hamilton v. Rathbone, 175 U. S. 419, 20 Sup. Ct. 155, 44 L. Ed. 219.

The subordinate clause of the sentence in section 5424 relates to a"Person applying to be admitted a citizen, or appearing as a witness for any such person, who knowingly personates any other person than himself, or falsely appears in the name of a deceased person, or in an assumed or fictitious name, or falsely makes, forges, or counterfeits any oath, notice, affidavit, certificate, order, record, signature, or other instrument, paper, or proceeding required or authorized by any law relating to or providing for the naturalization of aliens."

Now, observe how the second clause (the one in question) specifically refers to the acts enumerated in the first clause. It proceeds "or who utters, sells, disposes of, or uses as true or genuine, or for any unlawful purpose, any false, forged, antedated, or counterfeit oath, notice, certificate, order, record, signature, instrument, paper, or proceeding above specified"; and the section continues, "or sells or disposes of to any person other than the person for whom it was originally issued any certificate of citizenship, or certificate showing any person to be admitted a citizen." The section is harmonious in its several parts. "Every person applying," etc., is forbidden to personate, to falsely appear in the name of another, or in a fictitious name, to falsely make, to forge, to counterfeit, any oath, notice, etc., or to utter, sell, dispose of, to use as true, any such papers, or to sell any certificate, etc. The intention is that a person applying, etc., shall not personate, nor make false naturalization papers; that he shall not utter, sell, or use the same, nor sell or dispose of any certificate. The section is free from all ambiguity. It is grammatically correct. Its provisions are consistent one with another. They are applicable to cases that might arise. They do not cover all classes of offenders included in the act of 1870. If it be admitted that they should cover such classes, yet they plainly do not. The revisers and Congress could not have read the section without observing the omission. They deliberately took out words from the earlier act that were palpably necessary to cover such offenses. This court is not permitted to interpolate words that the revisers and Congress rejected. The section is sensible. It is accurate. If the public welfare demands that it should be broader, the power rests alone with Congress to amplify it.

The court recognizes with what care the learned counsel for the government has marshaled and submitted the rules of construction and the sustaining authorities. But in the present case there is no occasion for resorting to rules of construction. Their aid is neither required nor justified, because the language of section 5424 is plain. There is no

doubt of its meaning. It is free from ambiguity. The Legislature means what it says, and its words declare its meaning. Why look beyond the words in such case? The government insists that the meaning is obscure. That is the vice of its argument. The meaning is unclouded.

It is finally urged that the section should be repunctuated to give the words a meaning that they do not now express. The proposition is to repunctuate a statute so as to include classes that are clearly excluded, when there is not the slightest evidence on the face of the statute of an intent to include them. The proposition is to punctuate the section so as to make it read as if it contained the very words that were in the old statute, which words the revisers and Congress have omitted. The situation is this: The earlier statute contained words that included various classes of offenders. The revisers and Congress omitted some of them. The proposal is that the section be repunctuated so that it will be equivalent to a statute with the omitted words present. That would be grave interference with legislative action. The extent to which counsel for the government asks the court to go in the matter of reconstruction of the statute is illustrated by the following extract from his argument:

"Every person, [comma inserted] applying to be admitted a citizen [comma omitted] or appearing as a witness for any such person, who knowingly personates any other person than himself, or falsely appears in the name of a deceased person, or in an assumed and fictitious name, or falsely makes, forges, or counterfeits any oath, notice, affidavit, certificate, order, record, signature, or other instrument, paper, or proceeding required or authorized by any law relating to or providing for the naturalization of aliens; or, [comma inserted] who utters, sells," etc.

The government advocates the change as follows:

"By thus transposing the comma in the first portion of this section, it would be clear that the first clause was intended to cover every person who applies to be admitted a citizen, or appears as a witness and knowingly personates, etc., and the second clause as thus punctuated ('or, who utters, sells,' etc.) would relate to the principal subject 'every person,' and would clearly mean 'or every person who utters, sells,' etc. The entire sentence, grammatically analyzed, is a simple, declarative sentence; the subject being 'person,' the predicate being 'punished,' and the object 'imprisonment'; the subject being qualified by the complex adjective clauses 'applying to be admitted a citizen' and knowingly personating,' etc., and the second of the complex qualifying clauses being 'who utters, sells,' etc."

It is at least doubtful whether this repunctuation would demand or even justify the construction urged by the government. In any case, it is considered that the plain reading of the section, and the intention of the Congress as gathered from it, should not be thwarted by such corruption of the text.

Counsel for the government has just now brought to the attention of the court the decision of Judge Butler upon the trial of an indictment against certain persons charged with conspiracy under section 5440 of the Revised Statutes [U. S. Comp. St. 1901, p. 3676], based upon section 5424 [page 3668] thereof; the charge being conspiracy to defraud the United States by uttering as true false certificates of naturalization. It appears that Lindsay, one of the defendants, was tried alone on this indictment; that he filed a demurrer upon the ground that none of the

three men named in the indictment was "a person applying to be admitted as a citizen, or appearing as a witness for such person"; that Judge Butler overruled the demurrer, and Lindsay was found guilty; that subsequently the same point was raised upon a motion in arrest of judgment, and that Judge Butler again passed upon the question and dismissed the motion; and that later Merrick, another of the defendants, pleaded guilty to the indictment. Judge Butler wrote no opinion, nor is the court advised of the ground of his decision, nor has the indictment or record been presented to the court. So far as appears, the question now raised may not have been presented by the indictment. In any case, it is the plain duty of the court to sustain the demurrer to the indictment in the action at bar.

KIRK v. UNITED STATES et al.

(Circuit Court, N. D. New York. June 21, 1904.)

1. FEDERAL COURTS-BAIL-SCIRE FACIAS JURISDICTION.

Under Rev. St. U. S. § 716 [U. S. Comp. St. 1901, p. 580], providing that the Supreme, Circuit, and District Courts shall have power to issue writs of scire facias agreeable to the usages and principles of law, the District Court has jurisdiction to issue such writ to enforce a forfeited recognizance or bail bond.

2. SAME-PRACTICE.

Since the federal statutes do not expressly indicate the practice to be followed on scire facias on a forfeited recognizance or bail bond, resort must be had to the procedure which obtained at common law.

3. SAME-EXECUTION.

Where scire facias is issued against bail, an execution cannot be awarded against the defendant who has not been personally served with process until there have been two returns of nihil to the writ.

4. SAME.

Scire facias on a forfeited recognizance being in the nature of an original action, unless the surety has voluntarily submitted himself to the Jurisdiction of the court out of which the writ issued, he must be personally served in the district of the court issuing the writ

5. SAME SUCCESSIVE RETURNS OF NIHIL.

In scire facias on a forfeited recognizance two returns nihil on successive writs are equivalent to personal service on the defendant only where the defendant in scire facias is domiciled or found within the jurisdiction of the court where the writ issues.

& SAME-BREACH OF BOND-BAIL TO APPEAR.

A bail bond bound the principal to appear at a certain term of court to be held on a date specified, and from day to day and from term to term to which the case should be continued, and then and there to answer such matters as should be objected against him, and to abide and perform the orders of the court, and not to depart without leave. An indictment having been returned at such term, to which defendant pleaded not guilty, the case was set for trial on March 17, 1902, defendant however being informed that another indictment would probably be returned against him. Such indictment having been presented, defendant was directed to appear to answer the same on March 6th, and, failing to appear, his recognizance was duly forfeited on the succeeding day, and, he again failing to appear on March 17th, the former forfeiture was confirmed. Held

13. See Bail, vol. 5, Cent. Dig. §§ 376, 416.

that, all of such dates being within the same term, it was the duty of defendant's surety to produce him, as ordered by the court, on March 6th, notwithstanding a later date had been fixed for the trial on the indictment first presented, and hence the confirmation of the forfeiture on March 17th was proper.

7. SAME JUDGMENT-ENTRY.

A surety on a bail bond obligating the defendant to appear from day to day during a particular term and from term to term cannot object that a forfeiture of such recognizance was not entered on the precise day of the term when the principal was obliged to appear.

8. SAME-ACTIONS AGAINST THE UNITED STATES.

Since the United States cannot be sued by an individual except as permitted by the acts of Congress, a bill was not maintainable jointly against the United States and the United States marshal to restrain the seizure of complainant's property on a judgment in favor of the United States on a forfeited recognizance.

See 124 Fed. 324.

George B. Curtiss, U. S. Atty., and Taylor L. Arms, for the United States.

Kellogg & Rose, for defendant.

HAZEL, District Judge. This suit is for an injunction to restrain and enjoin the United States and C. D. McDougall, as United States marshal for the Northern District of New York, from seizing the property of the complainant pursuant to an execution in favor of the United States issued out of the United States District Court for the Eastern Division of the Southern District of Georgia. The writ of execution was dated January 12, 1903. It was issued in a scire facias proceeding instituted on March 17, 1902. It is essential to a complete understanding of the controversy that the salient facts be briefly stated. They are substantially as follows: On January 20, 1902, in New York City, the complainant became surety upon a recognizance for the appearance of one John F. Gaynor, who had been there arrested upon a warrant issued by United States Commissioner Shields, and who admitted the accused to bail to appear before the Georgia court in conformity to section 1014 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 716]. The information before the commissioner was based on an indictment by the grand jury of the Georgia district charging said Gaynor and others with the crime of conspiracy, in violation of section 5440 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3676]. Proceedings were had for the removal of the accused before a commissioner in the territorial district where the defendants

were found. Pending the execution of the commissioner's order of removal, Gaynor made application for a writ of habeas corpus. This was denied by the Circuit Court for the Southern District of New York. An appeal to the Supreme Court of the United States resulted in affirming this decision. The recognizance which is the basis of this suit was filed in the office of the clerk for the Eastern Division, Southern District of Georgia, on January 22, 1902, and recites that Gaynor and others were charged with conspiracy to defraud the United States of large sums of money by devising a fraudulent scheme to present false accounts to an officer of the United States; that the prohibited offense was committed on January 1, 1897, within the Eastern Division of the