portion, the two together being a majority thereof. The business here involved is that of mining instead of refining sugar. Otherwise there is no difference between that case and this. The property of the Osceola Company and its operation is internal to the state of Michigan, as that of the Pennsylvania corporations was to that state. The differences in detail referred to do not call for a difference of decision. The conclusion must be reached, then, that the transaction complained of herein is not within the national act. If the Calumet & Hecla Company had purchased the property of the Osceola, or if that property had been held by a trustee for the benefit of its stockholders and the Calumet & Hecla Company had purchased the beneficial interests of the cestuis que trustent, certainly the transaction would not in either case have been within that act. No more can it be said that a purchase by it of the capital stock, or a majority thereof, or of a portion thereof and the right to vote another portion, the two together constituting a majority, is within it.

It seems to me that the existence of any difficulty in determining how this case ought to be decided, so far as this question is concerned, is due to the manner in which it is approached. If it is approached in an effort to reach a conclusion as to whether the transaction involved is within the meaning of the national act, it may be hard to dispose of it correctly. But if it is approached as the Knight Case was approached by the judges of the different courts who rendered opinions, holding that the transaction attacked therein was not within that act, which was in an effort to reach a conclusion as to whether it was within the national jurisdiction, and consequently whether it could properly have been put within that act, no room for doubt as to how it ought to be decided will be left.

As indicated at the start, it is also claimed that the transaction involved here is within the state act. The claim that it is so is based largely, if not altogether, on the same line of reasoning upon which it is claimed to be within the national act. Indeed, on the one side, it seems to be claimed to be within the state act because it is within the national act, and, on the other hand, that is not within the state act because it is not within the national act. This, no doubt, is due to the fact that both sides of this case have approached it from the standpoint as to what is the true meaning of both acts, and not from the standpoint as to which jurisdiction-national or state-the transaction complained of is within. So approaching it, it was but natural to feel that the question whether that transaction was within the state act depended on whether it was within the national act. For the language of both acts is substantially similar, though that of the state act is somewhat more verbose. But approaching it from the proper standpoint, as I have claimed it to be, as soon as it is determined that the transaction in question is not within the national act, it is at once realized that it does not necessarily follow that because it is not within the one act it is not within the other. The transaction being within the state jurisdiction, and not within the national, it may well be within the state act, though not within the national. The question, then, as to whether it is within the state act hangs on whether

it is within the words thereof, construed in the light of the circumstance that the state had power to put it there.

So construing these words, how does the matter stand? The Calumet & Hecla Company and the Osceola Company were created and organized, and have ever since continued, to transact business under a general act of the state of Michigan providing for the incorporation of companies for mining, smelting, and manufacturing copper and other metals. By that act, any two or more corporations existing thereunder may consolidate. This court in the case of Marbury v. Kentucky Union Land Co., 62 Fed. 335, 10 C. C. A. 393, held that an act authorizing two corporations to consolidate, also authorizes one to purchase the capital stock of the other, on the principle that the greater includes the less. But this was not the only authority that the Calumet & Hecla Company had to purchase the stock of the Osceola. By an amendment to that general act, approved May 10, 1905 (Pub. Acts 1905, p. 153, No. 105), a company organized thereunder was expressly authorized "to subscribe to, purchase, acquire and own" stock in any company organized thereunder. Neither the provision authorizing a consolidation or purchase of stock has ever been repealed or modified to any extent, unless it has been done by the anti-trust legislation. There are two anti-trust acts in Michigan, one aproved June 23, 1899 (Pub. Acts 1899, p. 409, No. 255), and another, declared to be "supplementary to and declaratory of and in addition to" the earlier act, approved June 20, 1905 (Pub. Acts 1905, p. 507, No. 329). The original act was in existence at the time of the approval of said amendment of May 10, 1905, and the supplementary one was approved subsequent to its approval. The one is entitled "An act to prevent trusts, monopolies and combinations," etc., and the other "An act relative to agreements, contracts and combinations in restraint of trade or commerce." It is not necessary to quote from the body of either act. Each contains general language in the line of its title. There is no express reference to the legislation referred to as contained in said general act and the amendment thereto. It is not to be taken that it impliedly has reference thereto. That legislation and those acts can be construed together, and I think that within well-recognized principles they ought to be so construed. So construing them, it is not to be held that what the one expressly authorizes is denied by the other.

NICKELL v. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit. February 1, 1909.)

No. 1,391.

CONSPIRACY (§ 48*)-TRIAL FOR CRIMINAL OFFENSE-INSTRUCTIONS.

The instructions given on the trial of an indictment for conspiracy to induce perjury on the part of persons applying to enter land under the timber and stone act (Act June 3, 1878. c. 151, 20 Stat. 89. as amended by Act Aug. 4, 1892, c. 375, 27 Stat. 348 [U. S. Comp. St. 1901, p. 1545]) by *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

falsely stating that the lands were not being purchased by them on speculation and that they had not made any agreement by which the titles they might acquire should inure to the benefit of any other person, considered, and, as applied to the evidence, held correct, as confining the inquiry to the preliminary statements made at the time of the applications.

[Ed. Note. For other cases, see Conspiracy, Dec. Dig. § 48.*]
Ross, Circuit Judge, dissenting.

In Error to the Circuit Court of the United States for the District of Oregon.

On rehearing. For former opinion, see 161 Fed. 702, 88 C. C. A.

562.

Martin L. Pipes and Thomas O'Day, for plaintiff in error.

Francis J. Heney, Tracy C. Becker, and John McCourt, U. S. Atty., for the United States.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW, Circuit Judge. This case was heard at a previous term of this court, and a decision rendered February 3, 1908. The case is reported in 161 Fed. 702, 88 C. C. A. 562, where the facts are fully stated. On January 6, 1908, the Supreme Court of the United States rendered a decision in the case of Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278, reversing the judgment of the lower court, and remanding the case for a new trial for errors of the trial court in admitting certain testimony and instructing the jury upon the law. The plaintiff in error thereupon filed a petition for a rehearing in the present case, alleging that in the case in the Supreme Court Williamson was charged with identically the same offense as the plaintiff in error in this case, and that the law in that case is applicable to the facts in this case. The rehearing was granted, and the case has been considered in the light of the decision of the Supreme Court in the Williamson Case.

The charge in the indictment in the Williamson Case, as in the indictment now before the court in the present case, is, in substance, that the defendants had entered into an unlawful conspiracy, combination, and confederation on a date and at a place named, within the district where the indictment was found, 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 commit the offense of perjury in the said district by taking their oaths before an officer, in cases where a law of the United States should authorize an oath to be administered, that they would declare and depose truly that certain declarations 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 such officer, and, after being duly sworn by and before such officer, to state and subscribe under their oaths that certain public lands of the said United States open to entry and purchase under the acts of Congress approved June 3, 1878.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

and August 4, 1892 (Act June 3, 1878, c. 151, 20 Stat. 89; Act Aug. 4, 1892, c. 375, 27 Stat. 348 [U. S. Comp. St. 1901, p. 1545]), and known as timber and stone lands, which those persons would then be applying to enter and purchase in the manner required by law, were not being purchased by them on speculation, but were being purchased in good faith to the own and exclusive 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 titles which they might acquire from the said United States should inure in whole or in part to the benefit of any person except themselves, when in truth and in fact, as each of the said persons would then well know, and as they, the said defendants, would 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 they would have made agreements and contracts with other persons by which the titles which they would acquire from the said United States in such lands would inure to the benefit of persons except themselves; 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 would not believe to be true.

It was provided in section 2 of the timber and stone act of June 3, 1878, c. 151, 20 Stat. 89 (U. S. Comp. St. 1901, p. 1545), referred to in the indictment:

"That any person desiring to avail himself of the provisions of this act shall file with the register of the proper district a written statement in duplicate, one of which is to be transmitted to the General Land Office, designating by legal subdivisions the particular tract of land he desires to purchase, setting forth that the same is unfit for cultivation, and valuable chiefly for its timber or stone; that it is uninhabited; contains no mining or other improvements, except for ditch or canal purposes, where any such do exist, save such as were made by or belong to the applicant, nor, as deponent verily believes, any valuable deposit of gold, silver, cinnabar, copper, or coal; that deponent has made no other application under this act; that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit; and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he might acquire from the government of the United States should inure, in whole or in part, to the benefit of any person except himself; which statement must be verified by the oath of the applicant before the register or the receiver of the land office within the district where the land is situated; and if any person taking such oath shall swear falsely in the premises, he shall be subject to all the pains and penalties of perjury, and shall forfeit the money which he may have paid for said land, and all right and title to the same; and any grant or conveyance which he may have made, except in the hands of bona fide purchasers, shall be null and void.”

In section 3 it was provided:

"That upon the filing of said statement, as provided in the second section of this act, the register of the land office shall post a notice of such application, embracing a description of the land by legal subdivisions, in his office, for a period of sixty days, and shall furnish the applicant a copy of the same for publication, at the expense of such applicant, in a newspaper published nearest the location of the premises, for a like period of time; and after the expiration of said sixty days, if no adverse claim shall have been filed, the person desiring

to purchase shall furnish to the register of the land office satisfactory evidence, first, that said notice of the application prepared by the register as aforesaid was duly published in a newspaper as herein required; secondly, that the land is of the character contemplated in this act, unoccupied and without improvements, other than those excepted, either mining or agricultural, and that it apparently contains no valuable deposits of gold, silver, cinnabar, copper, or coal; and upon payment to the proper officer of the purchase money of said land, together with the fees of the register and the receiver as provided for in case of mining claims in the twelfth section of the act approved May 10th, 1872, the applicant may be permitted to enter said tract, and, on the transmission to the General Land Office of the papers and testimony in the case, a patent shall be issued thereon. ** * * Effect shall be given to the foregoing provisions of this act by regulations to be prescribed by the Commissioner of the General Land Office."

To give effect to the provisions of this act by regulations as provided in section 3, the Commissioner of the General Land Office incorporated in a circular issued July 11, 1899, instructions showing the manner of proceeding to obtain title to public lands under the homestead, desert land, and other laws, and in section 11 of the circular it was prescribed as follows:

"The evidence to be furnished to the satisfaction of the register and receiver at the time of entry, as required by the third section of the act, must be taken before the register and receiver, and will consist of the testimony of claimant. corroborated by the testimony of two disinterested witnesses. The testimony will be reduced to writing by the register and receiver upon the blanks provided for the purpose, after verbally propounding the questions set forth in the printed forms. The accuracy of the affiant's information and the bona fides of the entry must be tested by close and sufficient oral examination. The register and receiver will especially direct such examination to ascertain whether the entry is made in good faith for the appropriation of the land for the entryman's own use and not for sale or speculation, and whether he has conveyed the land or his right thereto, or agreed to make any such conveyance, or whether he has, directly or indirectly, entered into any contract or agreement. in any manner, with any person or persons whomsoever, by which the title that may be acquired by the entry shall inure, in whole or in part, to the benefit of any person or persons, except himself. They will certify to the fact of such oral examination, its sufficiency, and his satisfaction therewith.”

In the Williamson Case the Supreme Court held:

"That the particular false swearing to which the indictment related was alone the verified written statement provided for in section 2 of the act to be made on applying to purchase the land, and that the indictment did not embrace a charge concerning a statement or deposition under oath required to be made by the regulation of the Commissioner of the General Land Office, after the publication of the notice, and when the period had arrived for tinal action by the land office on the application to purchase."

The trial court had admitted evidence of the making of the final proofs, as provided in section 3 of the act of June 3, 1878, and section 11 of the circular of the Commissioner of the General Land Office. These final proofs embraced sworn statements made pursuant to the requirements of the regulations adopted by the Commissioner of the General Land Office, declaring the bona fides of the applicant, and that at that period he had made no contract or agreement to dispose of the land.

The trial court had also instructed the jury that the indictment covered perjury in the matter of final proofs, and that they might convict if satisfied by the evidence beyond a reasonable doubt that the de