which prohibit the extension by judicial | cise by a citizen of the right of alienation construction of statutory crimes which are by contract, where, for a consideration, dangerous to liberty. deemed satisfactory to himself, he extinguishes his own right. 4 Bl. Com. chap. VI.; United States v. Hirsch, 100 U. S. 33, 25 L. ed. 539; The Federalist, No. 43; 2 Curtis, History of U. S. Const. 384; 3 Coke, Inst. p. 23; Com. v. Hunt, 4 Met. 111, 38 Am. Dec. 346; Wright, History of Crim. Conspiracies, p. 68; 2 Wharton, Crim. Law, 10th ed. § 1338, a. b. The conspiracy must therefore be sufficiently charged irrespective of any averment of overt acts, which are merely to afford a locus pænitentiæ. United States v. Britton and Pettibone v. United States, supra; United States V. Taffe, 86 Fed. 113. As the United States cannot be defrauded by the exercise by a citizen's sale of his right of entry and purchase of coal lands when it has not been prohibited by statute, it is not necessary to consider the distinction between frauds at common law and the frauds cognizable in a court of equity, which latter, it is said, are incapable of definition. To say that constructive fraud, such as is cognizable only in a court of equity, can be the basis of a criminal prosecution for conspiracy, would, in effect, say that no man could tell whether he had committed a crime until the chancellor had passed judgment thereon. Thus, the word "fraud," as used in the bankruptcy act, has been held to mean positive fraud, involving moral turpitude. Neal v. Clark (Neal v. Scruggs) 95 U. S. 704, 24 L. ed. 586. See also Hennequin v. Clews, 111 U. S. 676, 28 L. ed. 565, 4 Sup. Ct. Rep. 576. It is impossible to define the equitable conception of fraud. Had Congress intended to prevent the exercise of this right, it would have said so. The specific acts of defendant must be shown to have been clearly forbidden by the statute. France v. United States, 164 U. S. 676, 41 L. ed. 595, 17 Sup. Ct. Rep. 219. The cases relied on by counsel (Curley v. United States, 64 C. C. A. 369, 130 Fed. 1, and United States v. Stone, 135 Fed. 393), are not in point, for the reason that, in those cases, the conspiracies relate directly to the exercise of governmental functions in public service, and in the protection of lives upon the high seas, and involved the invasion, not the violation, of specific statutes, and were acts in themselves mala in se, and not mala prohibita. There is no averment in either count of the indictment that any entryman did not possess the qualifications required by the statute, or that any entryman was disqualified by having already exhausted his right, or that there was any false personation or imposition, or that any statutory requirement was not performed; nor is there any charge that any lands were entered with any misrepresentations or concealment as to the character of the lands. Therefore the indictment in neither count states any crime under the laws of the United States. The second count of the indictment is specifically based upon U. S. Rev. Stat. § 4746, U. S. Comp. Stat. 1901, p. 3279, which is distinctly a pension statute, and not applicable to the case at bar. The court is at liberty to refer to the proceedings in Congress in order to deter2 Pom. Eq. Jur. 873; Stephen, History of mine the evil sought to be remedied by the Crim. Law, p. 121. United States v. Trinidad Coal & Coking Co. 137 U. S. 161, 34 L. ed. 640, 11 Sup. Ct. Rep. 57, relied upon by counsel in the court below, is clearly not in point, as this is a criminal action, and, even in civil cases, in view of the recent decision of the Supreme Court in the case of Adams v. Church, 193 U. S. 510, 48 L. ed. 769, 24 Sup. Ct. Rep. 512, must be limited to its special facts; and in this latter case the court distinctly upheld this inherent right of contract. Hafemann v. Gross, 199 U. S. 342, 50 L. ed. 220, 26 Sup. Ct. Rep. 80; Hartman v. Butterfield Lumber Co. 199 U. S. 335, 50 L. ed. 217, 26 Sup. Ct. Rep. 63; United States v. Budd, 144 U. S. 154, 36 L. ed. 384, 12 Sup. Ct. Rep. 575; Myers v. Croft, 13 Wall. 291, 20 L. ed. 562. enactments of the statute. Hepburn v. Griswold, 8 Wall. 603, 19 L. ed. 513; American Net & Twine Co. v. Worthington, 141 U. S. 468-473, 35 L. ed. 821-823, 12 Sup. Ct. Rep. 55; Church of the Holy Trinity v. United States, 143 U. S. 457, 36 L. ed. 226, 12 Sup. Ct. Rep. 511; Northern P. R. Co. v. United States, 36 Fed. 285; United States v. Union P. R. Co. 37 Fed. 551; Untermeyer v. Freund, 50 Fed. 80; United States v. Patterson, 4 Inters. Com. Rep. 775, 55 Fed. 641; United States v. Wilson, 58 Fed. 768; United States v. Hansee, 79 Fed. 303. This statute was construed as a pension statute in Pooler v. United States, 62 C. C. A. 307, 127 Fed. 509. See also Edgington v. United States, 164 U. S. 361, 41 L. ed. 467, 17 Sup. Ct. Rep. 72. The government of the United States, As the act under which this writ of error therefore, cannot be defrauded by the exer- is sued out in no wise limits the jurisdic tion of the court, it follows that the court | lands through pre-contract with the entryhas the duty, if necessary, of reviewing the men. whole case. Burton v. United States, 196 U. S. 283, 49 L. ed. 482, 25 Sup. Ct. Rep. 243; Williamson v. United States, 207 U. S. 425, 52 L. ed. 278, 28 Sup. Ct. Rep. 163; United States v. Bitty, 208 U. S. 393, 52 L. ed. 543, 28 Sup. Ct. Rep. 396; United States v. Macdonald, 207 U. S. 120, 52 L. ed. 130, 28 Sup. Ct. Rep. 53. As this case is brought before this court under the statute of 1907, it is before the court for all purposes, both as to the crime under the statute and the sufficiency of the indictment in all respects. Ledbetter v. United States, 170 U. S. 613, 42 L. ed. 1164, 18 Sup. Ct. Rep. 774. Messrs. Frederick N. Judson and Edwin H. Park also filed a reply brief for defend ants in error: One of two alternatives we must here ac cept. We must, with the old English judges, look upon all voluntary combinations as suspicious, and an object of judicial suppression; or we must declare that only such combinations are penally cognizable as are here declared beforehand to be unlawful. Wharton, Crim. Law, § 2288. The courts have uniformly declared that the right of alienation is incident to every property right which is capable of possession in any sense. Whatever a man owns he can transfer, unless there is some statute prohibiting the exercise of that right. St. Louis Min. & Mill. Co. v. Montana Min. Co. 171 U. S. 650, 43 L. ed. 320, 19 Sup. Ct. Rep. 61; Mullen v. Wine, 26 Fed. 206; Pourier v. Barnes, 57 Fed. 956, 12 C. C. A. 9, 27 U. S. App. 500, 64 Fed. 14; Webster v. Luther, 163 U. S. 331, 41 L. ed. 179, 16 Sup. Ct. Rep. 963. Under the mining law, assignments of placer claims have been sustained. This principle of the assignability of property rights is illustrated in the rulings of the courts upon the assignability of claims un der the mining laws of the United States, as in the case of "grub-stake" contracts, which have been held assignable, though oral, and wherever capable of proof. St. Louis Smelting & Ref. Co. v. Kemp, 104 U. S. 636, 654, 26 L. ed. 875, 881. In the absence of actual fraud, perjury, and dummy entrymen, there is no criminal conspiracy in the corporations securing coal Pereles v. Weil, 157 Fed. 419. Mr. Justice White delivered the opinion of the court: The United States prosecutes this writ of error upon the assumption that the decision of the district court was based upon an erroneous construction of the statutes upon which the indictment was founded, and therefore, by virtue of the act of March 2, 1907, chap. 2564, 34 Stat. at L. 1246, U. S. Comp. Stat. Supp. 1907, p. 209, the right obtained to review the decision by [380 writ of error direct from this court. The indictment contained two counts. Without quoting them fully, it suffices to say, for the purposes of the questions which we are called upon to decide, if we have authority to decide them, that the first count charged that the eleven defendants Rev. Stat. (U. S. Comp. Stat. 1901, p. 3676), illegally conspired, in violation of § 5440, with certain named persons and others unknown, to illegally obtain the title of certain coal lands belonging to the United States. The conspiracy was to be effected by procuring various persons as agents to enter coal lands in their own name, ostensibly for their own benefit, but in reality for the use and benefit of the accused and a named organization; the purchases being made by the agents as above stated, not with their own money, but with money of the accused or the corporation, and under agreements to convey the title, when acquired, to the accused or to the corporation, thus enabling the accused and the corporation to obtain coal lands belonging to the United States in excess of the quantity which they were allowed by law to enter. Copious averments were made in the count as to the use of alleged false, fictitious, and fraudulent papers in making the entries in question, which papers, as filed and entries made, had for their object and purpose to deceive the land officers of the United States, so as thereby to cause them to allow the entries in the name of the agents on the supposition that the entries were for the benefit of the entrymen, and which entries they would not have had the power to allow under the law, and would not have allowed, had the truth been disclosed. The second count charged an illegal conspiracy to do acts made criminal by § 4746, Rev. Stat. (U. S. Comp. Stat. 1901, p. 3279), in making and presenting, and causing to be made and presented, in connection with the entries of coal land, certain false, forged, fictitious, etc., affidavits and papers. To clear the approach to the issues to be decided we bring into view the statutes which must be passed on. Section 5440, relating to conspiracies, was amended May 17, 1879 [21 Stat. at L. 4, chap. 8, U. S. Comp. Stat. 381]1901, p. 3676], by changing *the penal- | ties imposed by the section as primarily en acted. As amended this section is as fol lows: the commencement of improvements on the land, by the filing of a declaratory statement therefor; but when the township plat is not on file at the date of such improvement, filing must be made within sixty days from the receipt of such plat at the district office; and where the improvement shall have been made prior to the expiration of three months from the third day of March, eighteen hundred and seventy-three, sixty days from the expiration of such three months shall be allowed for the filing of a declaratory statement, and no sale under the provisions of this section shall be allowed until "Sec. 5440. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten the expiration of six months from the third thousand dollars, or to imprisonment for day of March, eighteen hundred and seventynot more than two years, or to both fine three. and imprisonment, in the discretion of the court." The text of §§ 2347, 2348, 2349, and 2350 (U. S. Comp. Stat. 1901, pp. 1440, 1441), which provide for the sale of coal lands belonging to the United States, is as follows: "Sec. 2347. Every person above the age of twenty-one years, who is a citizen of the United States, or who has declared his intention to become such, or any association of persons severally qualified as above, shall, upon application to the register or the proper land office, have the right to enter, by legal subdivisions, any quantity of vacant coal lands of the United States not otherwise appropriated or reserved by competent authority, not exceeding one hundred and sixty acres to such individual person, or three hundred and twenty acres to such association, upon payment to the receiver of not less than ten dollars per acre for such lands, where the same shall be situated more than fifteen miles from any completed railroad, and not less than twenty dollars per acre for such lands as shall be within fifteen miles of such road. "Sec. 2348. Any person or association of persons severally qualified, as above provided, who have opened and improved, or shall hereafter open and improve, any coal mine or mines upon the public lands, and shall be in actual possession of the same, shall be entitled to a preference right of entry, under the preceding section, of the mines so opened and improved: Provided, That when any association of not less than four persons, severally qualified as above provided, shall have expended not less than five thousand dollars in working and im382]proving any such mine or mines, such association may enter not exceeding six hundred and forty acres, including such mining improvements. "Sec. 2349. All claims under the preceding section must be presented to the register of the proper land district within sixty days after the date of actual possession and "Sec. 2350. The three preceding sections shall be held to authorize only one entry by the same person or association of persons; and no association of persons any member of which shall have taken the benefit of such sections, either as an individual or as a member of any other association, shall enter or hold any other lands under the provisions thereof, and no member of any association which shall have taken the benefit of such sections shall enter or hold any other lands under their provisions; and all persons claiming under section twentythree hundred and forty-eight shall be required to prove their respective rights and pay for the lands filed upon within one year from the time prescribed for filing their respective claims; and upon failure to file the proper notice, or to pay for the land within the required period, the same shall be subject to entry by any other qualified applicant." Section 2351 provides for conflicting claims in designated cases, and thus concludes: "The Commissioner of the General Land Office is authorized to issue all need-[383 ful rules and regulations for carrying into effect the provisions of this and the four preceding sections." Section 4746 of the Revised Statutes, embraced in the title "Pensions," was amended by the act of July 7, 1898 (30 Stat. at L. 718, chap. 578, U. S. Comp. Stat. 1901, p. 3279). The section, as amended, is as follows, the amendments which the law of 1898 enacted being printed in italics: "That every person who knowingly or wilfully makes or aids, or assists in the making, or in any wise procures the making or presentation of any false or fraudulent affidavit, declaration, certificate, voucher, or paper, or writing purporting to be such, concerning any claim for pension or payment thereof, or pertaining to any other matter within the jurisdiction of the Commissioner of Pensions or of the Secretary of the Interior, or who knowingly or wilfully person, and made the entry under an oblimakes or causes to be made, or aids or gation, on the completion of the purchase assists in the making, or presents or causes from the United States, to transfer the land to be presented at any pension agency any to such disqualified person. power of attorney or other paper required as a voucher in drawing a pension, which paper bears a date subsequent to that upon which it was actually signed or acknowledged by the pensioner, and every person before whom any declaration, affidavit, voucher, or other paper or writing to be used in aid of the prosecution of any claim for pension or bounty land or payment thereof purports to have been executed who shall knowingly certify that the declarant, affiant, or witness named in such declaration, affidavit, voucher, or other paper or writing personally appeared before him and was sworn thereto or acknowledged the execution thereof, when, in fact, such declarant, affiant, or witness did not personally appear before him or was not sworn thereto or did not acknowledge the execution thereof, shall be punished by a fine not exceeding five hundred dollars or by imprisonment for a term of not more than five years." 3d. From the import of the coal-land statutes thus announced it was decided that a conspiracy to acquire coal lands from the United States by the means stated was not a violation of § 5440, as the acts alleged did not constitute a defrauding of the United States within the meaning of the word “defraud” as used in the second clause of the section, because that word must be interpreted in a restricted sense, and be given only its assumed common-law significance, and could not be used so as to embrace acts not expressly forbidden by law, upon the theory that their performance was contrary to a public policy which it might be assumed caused the enactment of the statutes. On behalf of the various defendants motions to quash the indictment were filed, which the court granted. The grounds of demurrer were substantially the same, many being addressed to technical attacks upon the sufficiency of the indictment; but in each of the motions the validity of the in384]dictment was assailed upon the ground that neither count stated an offense within the statutes when properly understood. The court, in the reasons given by it for granting the motions to quash, substantially held as follows: 1st. That the first count related exclusively to cash entries of coal lands under § 2347, Rev. Stat. That under this section no affidavits or papers were required other than the application to purchase, and therefore that all the allegations of the count respecting false and fictitious affidavits, papers, etc., related to documents required solely by the rules and regulations of the Land Department, which, not being expressly authorized by the statute, could not form the basis of a criminal conspiracy. The papers were therefore put out of view. 2d. That the coal-land statutes did not prohibit one who was qualified to enter coal lands from making a cash entry of such lands in his own name, ostensibly for himself, but really for the benefit of another, who was disqualified to directly make the entry, even although the ostensible entry man, in making the purchase in his own name, was really acting as the agent of the disqualified person, paid the price of the land with the money of such disqualified *4th. It was directly held that the [385 conclusions just stated were not in conflict with a previous adjudication of this court, construing the coal-land laws, as the decision had been rendered in a civil controversy, and could not be extended and carried over so as to control the construction of the statute in a criminal prosecution, thus "spelling out" a crime where none was expressly declared in the statute. 5th. As to the second count, it was decided that § 4746 embraced only affidavits, etc., relating to pension and bounty land claims, and the charge of a conspiracy to commit a crime in violation of the section in question could not be based upon allegations of the use of false and fictitious papers, etc., in connection with entries of coal lands. At the threshold our jurisdiction is questioned because it is asserted the case does not come within the act of March 2, 1907. The grounds of this contention are as follows: First. That the court below merely held that the facts charged in the indictment were not within the statute, and therefore the indictment, and not the statute, was interpreted or construed. Second. Because, in any event, the court below did not construe, but merely interpreted, the statutes. As to the first ground, we dispose of it simply by saying that the analysis which we have hitherto made of the decision of the court below demonstrates that the contention is devoid of all merit. In support of the second ground, it is insisted that the construction of a statute is one thing and its interpretation another and different thing. That abstractly there may be a difference between the two terms is not denied in argument by the United States, and finds support in works of re- to the facts charged largely depends upon spectable authority. whether those acts were forbidden by the sections last mentioned, we proceed first to their consideration. Under these sections the question is, Do they prohibit a person who is disqualified from acquiring additional coal lands from the United States, because he has already purchased the full quantity But, conceding the abstract distinction, and granting, for the sake of the argument only. 386]that the conclusion of the *court below might properly be classed, abstractly speak ing, as an interpretation, and not a construction, of the statute, we think the contention without merit. It may not be doubt-permitted by law, from employing one who ed that, in common usage, interpretation and construction are usually understood as having the same significance. This was aptly pointed out in Cooley's Constitutional Limitations, 6th edition, where, after stating the theoretical difference, it is observed (p. 52): "In common use, however, the word 'construction' is generally employed in the law in a sense embracing all that is properly covered by both, when each is used in a sense strictly and technically correct." We think, when the context of the act of March 2, 1907, is taken into view, and the remedial character of the act is given due weight, it becomes apparent that the word "construction" is employed in the statute in its common signification, and hence includes both construction and interpretation, although there may be an abstract difference between them. This being so, it follows that we have jurisdiction to review the action of the court in quashing the indictment. Putting aside for the moment technical objections to the sufficiency of the indictment, it is conceded by both sides that if the statutes which the court below construed be given the meaning which the United States, by the assignments of error, assert is the correct one, an offense against the United States was stated in both counts of the indictment. The construction of the statutes, therefore, is the real question for decision. We propose to examine the statutes applicable to each count separately; and, in doing so, to weigh the conflicting contentions urged in argument bearing on the question of the true construction. We reserve, however, for final consideration various contentions relating merely to the construction of the indictment as a pleading, by which the United States contends that the court below was wrong, even if, for the sake of argument, it be assumed that its construction of the statutes was right, and by which the defendants in error contend that the order quashing the indictment was 387]right, even if the court was wrong in its view of the law, because of defects in the indictment. 1. The first count. This count requires us to consider only the conspiracy provision, § 5440, and the coal-land provisions, $$ 2347, 2348, 2349. and 2350. As the applicability of § 5440 would be qualified if he made any entry of coal land in his own behalf, to make such entry ostensibly for himself, but really as agent for the disqualified principal, to pay for the land with money of such principal under the obligation, when the title has been obtained by purchasing from the United States, to turn over the land purchased to the concealed and disqualified principal? That the statute does expressly prohibit such a transaction we think is foreclosed by a previous decision of this court. Before coming to so demonstrate, however, in view of the contrary conclusion reached by the court below and the earnestness with which the correctness of that conclusion has been pressed at bar, we shall briefly consider the subject upon the hypothesis that it is open, and not foreclosed. Beyond question, by § 2347, Rev. Stat., everyone possessing the qualifications of age and citizenship therein stipulated is entitled, upon application and on payment of the price fixed by law, to purchase in his own behalf 160 acres of coal land, and every association of persons possessing the qualifications therein mentioned is entitled to purchase 320 acres of such land. This right, however, to thus purchase, is not uncontrolled, since it is limited by the § 2350, saying: "The three preceding sections shall be held to authorize only one entry of the same person or association of persons; *and [388 no association of persons, any member of which shall have taken the benefit of such sections, either as an individual or as a member of any other association, shall enter or hold any other lands under the provisions thereof; and no member of any association which shall have taken the benefit of such sections shall enter or hold any other lands under their provisions. . The express command that the preceding sections shall be held to authorize only one entry by the same person or association of persons causes the grant to purchase not to embrace more than one entry by the same person; and as the right to purchase the coal land did not exist except by the authority conferred by the statute, it follows that the express provision excluding the right to do a particular act is, both in form and substance, a prohibition against the doing of such act. To hold that this prohibition does not exclude the existence |