153 FEDERAL REPORTER. "If agreements and combinations to prevent competition are or may be hurtful to trade, the only sure remedy is to prohibit all agreements of that character. If the validity of such an agreement was made to depend upon an actual proof of public prejudice or injury, it would be very difficult in any caseto establish the invalidity although the moral evidence might be very convincing." This principle was very strongly approved by this court in the Addyston Pipe Case, so frequently referred to, and many other cases cited: in its support. It has been suggested that we should have regard to new commercial conditions and a tendency toward a relaxation of old common-law principles which tend to prevent development on modern lines. This is an argument better addressed to legislative bodies than to the courts. Neither is it wise for the courts to countenance the introduction of artificial distinctions dependent upon the variant economic views of individual judges. Distinctions which are specious or analogies which are but apparent will but afford opportunities to whit-tle away broad economic principles lying at the bottom of our public policy, principles which have long received the sanction of statesmen and the approving recognition of a long line of jurists. A like argument is expected whenever some new method of circumventing freedom of commerce comes under the tests of the law. It was made and answered by Judge Taft in the Addyston Pipe Case with a strength to which we can add nothing. Our conclusion is that complainant's system of contracts is not enforceable. The injunction must be discharged. The case will be remanded, with directions to proceed as may beconsistent with this opinion. VAN GESNER v. UNITED STATES. BIGGS v. SAME. WILLIAMSON (Circuit Court of Appeals, Ninth Circuit. Nos. 1,369, 1,370, 1,368. March 11, 1907.) 1. CRIMINAL LAW-REVIEW IN FEDERAL COURTS-ELECTION. In a criminal case in a federal court which involves a constitutional question, after a judgment of conviction, the defendant is put to his election whether he will take the case direct to the Supreme Court of the United States on such question, or take the whole case to the Circuit Court of Appeals, and, where he elects the former, a writ of error subsequently taken out to the Circuit Court of Appeals will be dismissed. 2. PUBLIC LANDS-REGULATIONS OF LAND DEPARTMENT. The Land Department of the United States has the power to make reasonable rules and regulations, not inconsistent with any valid law, for the purpose of giving effect to the provisions of the acts of Congress providing for the disposition of the public lands, which have the force and effect. of law, and of which the courts take judicial notice. [Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Public Lands,. $288. Decisions of land department, their conclusiveness and effect, see noteto Hartman v. Warren, 22 C. C. A. 38; Carson City Mining Co. v. North Star Mining Co., 28 C. C. A. 344; Unita Tunnel M. & T. Co. v. Creede &. C. C. M. & M. Co., 57 C. C. A. 207.] *Rehearing denied May 20, 1907. 3. PERJURY-PUBLIC LANDS-APPLICATION TO PURCHASE-TIMBER AND STONE ACT. Under Timber & Stone Act June 3, 1878, § 1, c. 151, 20 Stat. 89 [U. S. Comp. St. 1901, p. 1545], which requires applicants to purchase land thereunder to file a verified written statement, and after the required publication of notice to "furnish to the register of the Land Office satisfactory evidence" of certain facts, the regulations of the Land Department, requiring such evidence to be in the form of depositions under oath, are in furtherance of the purposes of the statute and valid, and false swearing in either the preliminary statement or in such depositions constitutes the crime of perjury and an offense against the United States, under Rev. St. § 5392 [U. S. Comp. St. 1901, p. 3653]. [Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Perjury, § 23.] 4. CONSPIRACY-SUBORNATION OF PERJURY-PUBLIC LANDS - INDICTMENT. AVERMENT OF WILLFULNESS. Where the facts alleged, in an indictment for conspiracy to commit an offense against the United States by subornation of perjury in proceedings to acquire public lands, necessarily import willfulness on the part of the persons giving such testimony, the failure of the indictment to use the word itself is not fatal. 5. SAME COMPETENCY OF EVIDENCE. Under an indictment for conspiracy to commit an offense against the United States by subornation of perjury in procuring persons to make application for the purchase of lands under the timber and stone act, under agreements to convey the same to defendants, and to falsely swear, among other things, that such lands were chiefly valuable for timber, it was not error to permit the government to prove that the lands were not valuable for the timber upon them, but were chiefly valuable for grazing purposes, although such evidence tended to show that the lands were not subject to entry under the act. 6. CRIMINAL LAW-EVIDENCE-OTHER OFFENSES EVIDENCE OF MOTIVE. An indictment for conspiracy to commit an offense against the United States by subornation of perjury charged that defendants procured and instigated a number of persons to make application for the purchase of public lands in a certain township under the timber and stone act, and to falsely swear in their applications and proofs that they were not seeking to purchase such lands on speculation, but for their own exclusive benefit and use, and that they had not made any contract or agreement by which the title would inure to the benefit of another; whereas, in truth and fact, such persons were applying to purchase the lands on speculation and under prior agreements to convey the title to defendants. Held, that under such indictment the motive of the parties to the transactions was a material fact to be proved, and that evidence that defendants had induced other persons to file on or purchase state lands in the same vicinity, which were subsequently conveyed to defendants, was properly admitted, where the jury were instructed to consider it only as bearing on such question of motive. 7. SAME. Under such indictment, it was also competent for the government to show, by the persons who made such applications to purchase lands, that it was their intention and understanding at the time that the lands should be conveyed by them to defendants, contrary to their sworn statements and testimony. In Error to the Circuit Court of the United States for the District of Oregon. A. S. Bennett and H. S. Wilson, for plaintiffs in error. Francis J. Heney, Sp. Asst. to Atty. Gen., and William C. Bristol, U. S. Atty., for the United States. Before GILBERT, ROSS, and MORROW, Circuit Judges. ROSS, Circuit Judge. These cases were tried and submitted together; the plaintiffs in error being jointly charged by indictment with the crime of conspiracy to suborn perjury, in violation of the provisions of section 5440 of the Revised Statutes of the United States TU. S. Comp. St. 1901, p. 3676]. In respect to the plaintiff in error Williamson, this statement is made in the brief of counsel for the plaintiffs in error, to wit: "Prior to the writ of error in this case, the defendant Williamson, who was a representative in Congress, had sued out a writ of error to the Supreme Court of the United States, based upon the holding of that court, in the Burton Case, that a sentence of imprisonment against a member of Congress involved a constitutional question, giving the right of appeal direct to that court. At the time the writ of error was sued out in this case, the constitutional question in the Burton Case had never been decided. This writ of error to this court in the Williamson Case was sued out after the writ to the Supreme Court, and out of abundance of caution in case the writ to the United States Supreme Court should be dismissed upon jurisdictional grounds. The jurisdiction of this court, therefore, in the Williamson Case, depends upon whether the United States Supreme Court shall entertain jurisdiction thereof, and, if it holds that it has jurisdiction to pass upon the merits, then the proceedings in this court necessarily fail. If the Supreme Court should take jurisdiction in the Williamson Case, and pass upon the merits, its decision will necessarily be controlling in all these cases, as the record and questions presented (except the constitutional one) are identical." Upon this statement of counsel for the plaintiff in error, we are of the opinion that the writ in respect to the plaintiff in error Williamson must be and hereby is dismissed. He was put to his election whether he would appeal from the judgment given against him directly to the Supreme Court upon the question of jurisdiction alone, or bring the whole case to this court, in which event this court could, if it deemed proper, certify the question of jurisdiction to the Supreme Court, or the case be taken there by that court by its writ of certiorari. Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397-407, 24 Sup. Ct. 376, 48 L. Ed. 496; McLish v. Roff, 141 U. S. 661–667, 12 Sup. Ct. 118, 35 L. Ed. 893. On behalf of the remaining plaintiffs in error, a number of points are made by counsel; the first going to the question of the sufficiency of the indictment. It is a fundamental right of every defendant in a criminal case to insist that the indictment against him clearly charge an offense denounced by law, fairly inform him of the acts alleged to have been committed by him in violation of that law, and in a manner that will protect him in the event of a verdict of guilty, or acquittal, against any further prosecution for the same offense. The statute under which the indictment in question is founded provides as follows: "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 prescribed penalty. Rev. St. § 5440. The statute is very broad, and includes any and every case where two or more persons conspire, either to commit an 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. In any and every such case, each and every party to the conspiracy is guilty of the crime denounced by the statute, the gist of which is conspiracy. "This offense," said the Supreme Court in United States v. Britton, 108 U. S. 199-204, 2 Sup. Ct. 531, 534 (27 L. Ed. 698), "does not consist of both the conspiracy and the acts done to effect the object of the conspiracy, but of the conspiracy alone. The provision of the statute, that there must be an act done to effect the object of the conspiracy, merely affords a locus penitentiæ, so that before the act done either one or all of the parties may abandon their design, and thus avoid the penalty prescribed by the statute. It follows, as a rule of criminal pleading, that, in an indictment for conspiracy under section 5410, the conspiracy must be sufficiently charged, and that it cannot be aided by the averments of acts done by one or more of the conspirators in furtherance of the object of the conspiracy." The indictment in question undertakes to charge against the defendants thereto the commission of the particular acts bringing them within the provisions of this law. It charges that they, together with divers other persons to the grand jurors unknown, did, on the 30th day of June, 1902, at Prineville, Or., conspire, combine, confederate, and agree together to commit an offense against the United States. That is to say, to unlawfully, willfully, and corruptly suborn, instigate, and procure a large number of persons, to wit, 100 persons, to commit the offense of perjury in the said district (of Oregon) by taking their oaths there, respectively, before a competent officer and person in cases in which a law of the said United States authorized an oath to be administered, that they would declare and depose truly that certain declarations and depositions by them to be subscribed were true, and by thereupon, contrary to such oaths, stating and subscribing material matters contained in such declarations and depositions which they should not believe to be true. That is to say, to suborn, instigate, and procure the said persons, respectively, to come in person before him, the said Marion R. Biggs, who was then and there a United States commissioner for the said district of Oregon, and, after being duly sworn by and before him, the said Marion R. Biggs, as such United States commissioner, to state and subscribe under their oaths certain public lands of the said United States, lying in Crook county, in said district of Oregon, open to entry and purchase under the acts of Congress, approved June 3, 1878, and August 4, 1892, and known as timber and stone lands, which those persons would then be applying to enter and purchase in the manner provided by law, were not being purchased by them on speculation, but were being purchased in good faith to be appropriated to the own exclusive use and benefit of those persons, respectively, and that they had not, directly or indirectly, made any agreement or contract in any way or manner, with any other person or persons whomsoever, by which the title which they might acquire from the said United States in and to such lands. should inure in whole or in part to the benefit of any person, except 153 F.-4 themselves, when, in truth and in fact, as each of the said persons would then well know, and as they, the said John Newton Williamson, Van Gesner, and Marion R. Biggs, wou'd then well know, such persons would be applying to purchase such lands on speculation, and not in good faith to appropriate such lands to their own exclusive use and benefit, respectively, and would have made agreements and contracts with them, the said John Newton Williamson, Van Gesner, and Marion R. Biggs, by which the titles which they might acquire from the said United States in such lands would inure to the benefit of the said John Newton Williamson and Van Gesner, as copartners in the firm of Williamson & Van Gesner, then and before then engaged in the business of sheep raising in said country. The matters so to be stated, subscribed, and sworn by the said persons being material matters under the circumstances, and matters which the said persons so to be suborned, instigated, and procured, and the said John Newton Williamson, Van Gesner, and Marion R. Biggs would not believe to be true; and the said Marion R. Biggs, United States commissioner, as aforesaid, when administering such oaths to those persons, being an officer and person authorized by law of the said United States to administer the same oaths; and the said oaths being oaths administered in cases where a law of the said United States would then authorize an oath to be administered. The indictment further charges that, in pursuance of the said unlawful conspiracy, and to effect the object of the same, the said Marion R. Biggs afterwards, to wit, on the 30th day of June, 1902, at Prineville, Or., did unlawfully prepare a sworn statement in writing, for the signature of one Campbell A. Duncan, who was one of the persons who were to be suborned, instigated, and procured, as aforesaid; that is to say, a paper of the tenor following: "Timber and Stone Lands--Sworn Statement. "Land Office at The Dalles, Oregon, June 30th, 1902. "I, Campbell A. Duncan, of Prineville, county of Crook, state of Oregon, desiring to avail myself of the provisions of the act of Congress of June 3, 1878, entitled 'An act for the sale of timber in the states of California, Oregon, Nevada and Washington Territory,' as extended to all the public land states by act of August 4, 1892, for the purchase of the S. 2 of N. E. 4 and S. 2 of N. W. 4 of section 14, township 15 S. of range 18 E. W. M., in the district of lands subject at The Dalles, Oregon, do solemnly swear that I am a native citizen of the United States, of the age of 34, and by occupation farmer: that I have personally examined said land, and from my personal knowledge state that said land is unfit for cultivation, and valuable chiefly for its timber; that it is uninhabited; that it contains no mining or other improvements nor, as I verily believe, any valuable deposits of gold, silver, cinnabar, copper or coal; that the land contains no salt spring or deposit of salt in any form sufficient to render it valuable therefor; that I have made no other application under said act; that I do not apply to purchase the land above described on speculation, but in good faith to appropriate it to my own exclusive use and benefit; that I have not, directly or indirectly, made any agreement or contract in any way or manner, with any person or persons whomsoever, by which the title I may acquire from the government of the United States may inure in whole or in part to the benefit of any person except myself; and that my post office address is Prineville, Or. Applicant. "State of Oregon, County of Crook-ss.: 66 -- do hereby certify that the foregoing affidavit was read to affiant in my presence before he signed his name thereto; that said affiant is to me personally known (or has been satisfactorily identified before me by -), and |