terest in the controversy, his interest is not | that of an indispensable party, without whose presence a court of equity cannot do justice between the parties before it, and whose interest must be so affected by any decree to be rendered as to oust the jurisdiction of the court. With the parties before it, the court may proceed to determine whether, because of the acts alleged in the bill, the heirs at law of Mrs. Tilton were entitled to recover because of the lapsed legacy. If it finds the issue in favor of the complainant, it may proceed to determine the proportion in which the complainant and the Watermans are entitled to share, without prejudice to the rights of Davis. It may direct the retention of his share in the hands of the executors, to be adjudicated in some other suit, or may otherwise shape its relief so as to do justice to the parties before the court without affecting his interest. Upon the whole case, we are of opinion that the Federal court has jurisdiction for the purpose of ascertaining the rights of the complainant to recover as against the executor, and the interest of the persons before the court in the fund. While the court could make no decree which would interfere with the possession of the probate court, it had jurisdiction to entertain the bill and to render a judgment binding upon the parties to the extent and in the manner which we have already stated. We are, therefore, of the opinion that the court below erred in holding that there was no jurisdiction to entertain this suit, and the decree is reversed and the cause remanded to the Circuit Court of the United States for the Eastern District of Louisiana for further proceedings in accordance with this opinion. Mr. Justice White dissents. (215 U. S. 50.) UNITED STATES, Plff. in Err., V. UNION SUPPLY COMPANY. INTERNAL REVENUE (8 39*) CRIMINAL OLEOMARGARINE DEALERS. power to punish either by fine or imprisonment or both. [Ed. Note.-For other cases, see Internal Revenue, Dec. Dig. § 39. For other definitions, see Words and Phrases, vol. 6, pp. 5322-5335; vol. 8, p. 7752.] [No. 120.] Argued October 13, 14, 1909. Decided November 8, 1909. IN ERROR to the District Court of the United States for the District of New Jersey to review a judgment quashing an indictment of a corporation for violating the statutory requirement that wholesale dealers in oleomargarine shall keep certain books and make certain returns. Reversed. The facts are stated in the opinion. Solicitor General Bowers for plaintiff in error. Mr. Isaac R. Hitt, Jr., for defendant in error. Mr. Justice Holmes delivered the opinion of the court: This is an indictment of a corporation for wilfully violating the 6th section of the act of Congress of May 9, 1902, chap. 784, § 6, 32 Stat. at L. 193, 197, U. S. Comp. Stat. Supp. 1907, pp. 636, 641. That section requires "wholesale dealers" in oleomargarine, etc., to keep certain books and to make certain returns. It then goes on as follows: “And any person who wilfully violates any of the provisions of this section shall, for each such offense, be fined not less than fifty dollars and not exceeding five hundred dollars, and imprisoned not less than thirty days nor more than six months." The corporation moved to quash the indictment, and the district court quashed it on the ground that the section is not applicable to corporations. Thereupon the United States brought this writ of error. The argument for the defendant in error is drawn from an earlier decision by the same court. It is that § 5 applies in express terms to corporations, and gives the court discretionary power to punish by either fine or imprisonment, or both; whereas, in § 6, both punishments are imposed in all cases, and corporations are not mentioned; that it is impossible to imprison a corporation, and that the statute warrants no sentence that does not comply with its United States v. Braun & Fitts, 158 A corporation is a "person" within the terms. meaning of the act of May 9, 1902 (32 Fed. 456. We are of opinion that this reaStat. at L. 193, chap. 784, U. S. Comp. soning is unsound. In the first place, takStat. Supp. 1907, pp. 636, 641), § 6, re- ing up the argument drawn from § 5, that quiring wholesale dealers in oleomargarine corporations were omitted intentionally to keep certain books and make certain from the requirements of § 6, it is to be returns, and providing for punishing by noticed that the 6th section of the present fine and imprisonment "any person who wilfully violates any of the provisions of act copies its requirements from the act this section," although § 5 of the same of October 1, 1890, chap. 1244, § 41, 26 act applies in express terms to corpora- Stat. at L. 567, 621, U. S. Comp. Stat. 1901, tions, and gives the court discretionary p. 2235, which did not contain the penal For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *53 was created by letters patent which, following the language of the Choctaw treaty of September 27, 1830 (7 Stat. at L. 333), art. 2, under the authority of which the Nation a tract of land "in fee simple, to patent was made, granted to the Choctaw them and their descendants, to inure to them while they shall exist as a nation and live on it," but such grant was one to the Nation only, limited in point of time to the corporate existence of the Na clause. In its earlier form the enactment, members of the tribe and their descendants clearly applied to corporations, and when the same words were repeated in the later act it is not to be supposed that their meaning was changed. The words "wholesale dealers" are as apt to embrace corporations here as they are in § 2, requiring such dealers to pay certain taxes. We have no doubt that they were intended to embrace them. The words "any person" in the penal clause are as broad as "wholesale dealers" in the part prescribing the duties. U. S. Rev. Stat. § 1, U. S. Comp. Stat. 1901, p. 3. Dig. §§ 27, 28; Dec. Dig. § 12.] It is impossible to believe that corporations were intentionally excluded. They are as tion. [Ed. Note.-For other cases, see Indians, Cent. [No. 253.] much within the mischief aimed at as pri: Argued October 21, 22, 1909. Decided Novate persons, and as capable of a "wilful” breach of the law. New York C. & H. R. R. Co. v. United States, 212 U. S. 481, 53 L. vember 8, 1909. PPEAL from the Circuit Court of the ed. 613, 25 Sup. Ct. Rep. 304. If the de- A United States for the Eastern District fendant escapes, it does so on the single ground that, as it cannot suffer both parts of the punishment, it need not suffer one. It seems to us that a reasonable interpretation of the words used does not lead to such a result. If we compare § 5, the application of one of the penalties rather than of both is made to depend, not on the character of the defendant, but on the discretion of the judge; yet, there, corporations are mentioned in terms. See Hawke v. E. Hulton & Co. [1909] 2 K. B. 93, 98. And, if we free our minds from the notion that criminal statutes must be construed by some artificial and conventional rule, the natural inference, when a statute prescribes two independent penalties, is that it means to inflict them so far as it can, and that, if one of them is impossible, it does not mean, on that account, to let the defendant escape. See Com. v. Pulaski County Agri. & Mechanical Asso. 92 Ky. 197, 201, 17 S. W. 442. In Hawke v. E. Hulton & Co. [1909] 2 K. B. 93, it was held that the words "any person" in one section of a penal act did not embrace a corporation, notwithstanding a statute like our Rev. Stat. § 1. But that was not so much on the ground that imprisonment was contemplated as a punishment, as be cause the person convicted was to be "deemed a rogue and a vagabond." Moreover, it was thought that corporations could be reached under another section of the act. Judgment reversed. of Oklahoma to review a decree sustaining a demurrer to, and dismissing, a bill brought by and on behalf of persons of Choctaw or Chickasaw Indian blood and descent, to establish their right to certain lands under a treaty with and patent from the United States. Affirmed. The facts are stated in the opinion. Messrs. Frank Hagerman, John G. Carlisle, Webster Ballinger, and Albert J. Lee for appellants. Solicitor General Bowers and Messrs. Edward P. Hill and David C. McCurtain for appellees. Mr. Justice Holmes delivered the opinion of the court: This is a bill in equity purporting to be brought by and on behalf of some thirteen thousand persons, "all persons of Choctaw or Chickasaw Indian blood and descent, and members of a designated class of persons for whose exclusive use and benefit a special grant was made" of certain property in Oklahoma. The principal defendants are, the Secretary of the Interior; McCurtain, chief of the Choctaws; Johnston, governor of the Chicasaws, and all persons whose names appear with theirs on the rolls of "citizens" of the Choctaw and Chickasaw Nations, respectively, and all persons whose names ap pear upon the "freedmen" rolls of those Nations, as approved by the Secretary of the Interior on or before March 4, 1907, these being the persons to whom the Secretary of the Interior is proceeding to allot the abovementioned property, being all the property of the tribe. The main object of the bill is to restrain the allotment to the defendants, and to undo it so far as it has taken place, to establish the title of the plaintiffs for the purpose of allotment, and to have a new distribution decreed. A firm of lawyers is joined, on the allegation that they have re *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 89. ceived a portion of the property under a fraudulent arrangement. The bill was demurred to for want of equity and for want of jurisdiction in the court. The circuit court examined the treaty and conveyance under which the plaintiffs claim, and held that they did not confer the rights alleged in the bill; that the right to share in the distribution depended on membership in one of the two tribes, except in the case of freedmen, specially provided for; that who were members of the respective tribes, and entitled to enrolment as such, was a matter for Congress to determine; that Congress had adopted certain rolls when finally approved by the Secretary of the Interior; that the Secretary had acted and the plaintiffs had been excluded; that his action was final, and that the court had no jurisdiction in the case. The demurrer to the jurisdiction was sustained, the bill was dismissed, and the plaintiffs appealed to this court. and the designated class became the absolute owners of the property as tenants in common. The plaintiffs, in aid of their view, refer to various indications that the policy of the United States already was looking toward the disintegration of the Indian tribes, point out that the words on which they rely were interlined in the government draft at the instance of the Indians, and from these and other circumstances argue that their construction is confirmed. They say that the dominant phrase is "in fee simple to them and their descendants," and that the use of the plural "them** shows a transition from the Nation as formal grantee to the members as beneficiaries. They say that "descendants" was used instead of "heirs" or "children," to avoid questions of legitimacy, or giving an absolute title to living members and their children, and to establish a principle of devolution suitable to the mode of life and unions in those Indian tribes. They conclude that the words "inure to them while they shall exist as a nation and live on it" only mark the duration of the legal title, and do not cut down the equitable right conferred by the earlier words. As we cannot agree with this construction, it will be unnecessary to consider many of the further allegations of the bill. The foundation of the plaintiffs' case is upon the words of the treaty and the patent that we have set forth. Those words seem to us to convey a different meaning on their face,-a meaning that would not be changed, but rather confirmed, if we were to refer at The plaintiffs found their claim upon the Choctaw treaty of Dancing Rabbit creek, September 27, 1830, article 2, 7 Stat.*at L. 333, and letters patent of March 23, 1842, coupled with a treaty between the Choctaws and Chickasaws of January 17, 1837, ratified by the Senate March 24, 1837, 11 Stat. at L. 573. By article 2 of the treaty of 1830, "the United States, under a grant specially to be made by the President of the United States, shall cause to be conveyed to the Choctaw Nation a tract of country west of the Mississippi river, in fee simple, to them and their descendants, to inure to them while they shall exist as a nation and live on it;" with the boundaries. The let-length to the earlier and later dealings with ters patent recite this article, and, "in execution of the agreement," grant the described tract, to have and to hold the same "as inintended to be conveyed by the aforesaid article 'in fee simple, to them and their descendants, to inure to them while they shall exist as a nation and live on it,' liable to no transfer or alienation except to the United States or with their consent." The treaty with the Chickasaws gave the Chickasaws a district within the limits of the Choctaws' country, "to be held on the same terms that the Choctaws now hold it, except the right of disposing of it, which is held in common with the Choctaws and Chickasaws, to be called the Chickasaw district of the Choctaw Nation." The plaintiffs say that the patent conveyed the legal title to the Choctaw Nation in trust for such persons as were members of the tribe at the date of the treaty, or of the Chickasaw tribe at the date of the treaty with them, and their respective descendants, and that, upon the dissolution of the Nation, the legal title merged with the equitable title, 30 S. C.-2. the tribes, which we shall not need to do. We should mention, however, that the United States already had ceded this tract to the Choctaw Nation, with no qualifying words, by the treaty of October 18, 1820, article 2, 7 Stat. at L. 210. Choctaw Nation v. United States, 119 U. S. 1, 38, 30 L. ed. 306, 318, 7 Sup. Ct. Rep. 75. The treaty of 1830 only varied the description a little, and provided for a special patent. But it would not better the plaintiffs' case if the treaty of 1830 were the single root of their grant. In a grant to the Choctaw Nation as a nation, it was natural, as in other cases, to use some words of perpetuity. Of course, the United States could use what words it saw fit to manifest its purpose, but the habit derived from private conveyances would be likely to prevail, and as, in such instruments, the gift of a fee is expressed by adding to the name of the grantee the words "and his heirs," or, in case of a corporation, although unnecessary, “its successors and assigns," here, also, some addition was to be expected to the mere name *59 29. of the grantee. The word "Nation" is used in the treaty as a collective noun, and, as such, according to a common usage, is accompanied by a plural verb in the very next article. ("The Choctaw Nation of Indians consent and hereby cede.") Therefore, the second article says "to them" rather than "to it," just as it says "while they [i. e., the Nation] shall exist as a nation," and it adds to the untechnical "in fee simple" untechnical words of limitation of a kind that would indicate the intent to confine the grant to the Nation, which "successors" would not, and, at the same time, to imply nothing as to the rules for inheritance of tribal rights, as "heirs" might have seemed to do. We may compare "for the government of the Choctaw Nation of red people and their descendants," in article 4. The word was addressed to the Indian mind. There is not a suggestion of any trust in the language to either the technical or the unlearned reader, and it is most unlikely that the United States would have attempted to impose one upon the Choctaws in favor of the existing members of the tribe in the very "treaty" that dealt with them as a quasi independent nation, recognized by article 5 as having the right to make war, and that, by the 4th article, bound the United States to secure to that nation "the jurisdiction and government of all the persons and property that may be within their limits west," etc. It is true that, in further promising to secure the Nation from all laws except those enacted by their own national councils, the 4th article adds, "not inconsistent with the Constitution, treaties, and laws of the United States;" but this addition is far from suggesting that a constitutional right of property has been conferred upon a designated class, that might be enforced in a circuit court of the United States by a bill in equity against what was called a Nation. How far anyone was from that understanding, or from doubting that all the rights granted by the United States were in the Choctaw Nation, is shown by the treaty with the Chickasaws upon which the plaintiffs rely. The Nation had no right to make that treaty as it did, if it was subject to the trust supposed. Again, the limitation of time, "while they shall eixst as a nation and live on it," shows that the grant has reference to the corporate existence of the Nation as such, and very plainly qualifies the absoluteness of the earlier words, "in fee simple." The suggestion that it limits the duration of the legal title only, but leaves a trust outstanding, is simply arbitrary. If the plural signifies the members of a class constituted cestuis que trust, the limitation would attach to the trust. But the only answer necessary is that no such separation or intent can be discovered in the words. What we have said shows another sufficient answer to the plaintiffs' claim. They say and argue, as they must, in order to make out their right to a distribution to themselves, that the Choctaws and Chickasaws no longer exist as nations. But, if so, the grant also was at an end when the nations ceased to be, and it rested with the bounty of the United States to decide what should be done with the land, except so far as it already had been decided by treaties or statutes upon which the plaintiffs do not and cannot rely. It is said that, by article 18, in case of any well-founded doubt as to the construction of the treaty, it is to be construed most favorably toward the Choctaws; but there is no well-founded doubt, except whether the construction contended for would have been regarded as favorable to the Choctaws, since it would have cut down the autonomy that the treaty so carefully expressed. See, further, Stephens v. Cherokee Nation, 174 U. S. 445, 488, 43 L. ed. 1041, 1056, 19 Sup. Ct. Rep. 722; Cherokee Nation v. Hitchcock, 187 U. S. 294, 307, 47 L. ed. 183, 23 Sup. Ct. Rep. 115; Lone Wolf v. Hitchcock, 187 U. S. 553, 568, 47 L. ed. 299, 307, 23 Sup. Ct. Rep. 216. The residue of the bill becomes immaterial upon the failure of the plaintiffs to make out a title under the treaty and patent. It refers to the act of June 28, 1898, chap. 517, 30 Stat. at L. 495, and the earlier statutes leading up to it, which established a commission, ordered it to prepare correct rolls of citizenship, and provided, by § 21 of the act of 1898, that the rolls so made, when approved by the Secretary of the Interior, should be final (see also acts of March 3, 1901, chap. 832, 31 Stat. at L. 1058, 1077, U. S. Comp. Stat. 1901, p. 1620; April 26, 1906, chap. 1876, 34 Stat. at L. 137). By § 11, a division was to be made among the "citizens" of the tribes according to the rolls, and by § 12 the allottees were to have undisturbed possession when the report of the allotments had been made to the Secretary of the Interior and confirmed by him. By § 29 an agreement with the Choctaws and Chickasaws on the matter was ratified, and, by act of July 1, 1902, chap. 1362, 32 Stat. at L. 641, a further agreement was ratified, which again excluded all except those whose names were on the roll. Art. 35. The bill charges that these agree ments, as well as a part of the act of 1898, were void as excluding some of the plaintiffs who were not residents of the Nation on June 28, 1898, and as not having been approved by the class, or a majority of the class, alleged to have been designated by the treaty and patent that we have discussed. 09. The bill goes on to allege that rolls were prepared by the commission, and approved by the Secretary, within the time allowed by the statutes (act of April 26, 1906, chap. 1876, § 2, 34 Stat. at L. 137), and that the time has expired, but the rolls were not made in conformity to the act of 1898, and are not correct, but fraudulent, in various particulars set forth. by the words "other person" in the provisions of the customs administration act of June 10, 1890 (26 Stat. at L. 131-135, chap. 407, U. S. Comp. Stat. 1901, pp. 1886-1895), § 9, for the forfeiture of goods or their value where "any owner, importer, consignee, agent, or other person" shall make an entry by means of false and fraudulent practices, or shall be guilty of any unlawful act or omission whereby the United States is deprived of the lawful duties, and for the punishment of such person by fine or imprisonment or both. [Ed. Note.-For other cases, see Customs Du ties, Cent. Dig. 266; Dec. Dig. § 125. For other definitions, see Words and Phrases, vol. 6, pp. 5070-5102; vol. 8, pp. 7741-7743.] [No. 278.] ber 8, 1909. IN ERROR to the Circuit Court of the I See same as below, 164 Fed. 580. But these allegations make out no case for the plaintiffs. It is said that the statutes recognize individual rights as already existing. It is true that, by a treaty of June 22, 1855, 11 Stat. at L. 611, the United States guaranteed the lands "to the members of the Choctaw and Chickasaw tribes, their heirs and successors, to be held in common; so that each and every member of Argued October 14, 1909. Decided Novemeither tribe shall have an equal, undivided interest in the whole," with provisos. But the plaintiffs do not claim under this treaty, or mention it in their bill, or a treaty of April 28, 1866, 14 Stat. at L. 769, by articles 11-36 of which the change from common to individual ownership was agreed, and it was provided that unselected land should "be the common property of the Choctaw and Chickasaw Nations, in their corporate capacities," etc. Art. 33. They might be descendants or the members of the tribe as it was in 1839 or 1842, and yet not members or heirs of members of the tribe of 1854; therefore, it is unnecessary to construe this treaty. Neither do the plaintiffs claim under any title to be derived from the statute providing for distribution according to the rolls of citizenship. They do not allege that they are citizens, or attempt to bring themselves within any grant later than the treaty and patent that we have discussed. They disclose that their names are not upon the rolls, and that the decision of the Secretary of the Interior has been against them, and they show no reason for our not accepting the rolls and decision as final according to the terms of distributing acts. See United States ex rel. West v. Hitchcock, 205 U. S. 80, 51 L. ed. 718, 27 Sup. Ct. Rep. 423; Garfield v. United States, 211 U. S. 249, 259, 53 L. ed. 168, 173, 29 Sup. Ct. Rep. 62. Decree affirmed. (215 U. 8. 25.) UNITED STATES, Plff. in Err., V. SIMON J. MESCALL. CUSTOMS DUTIES (§ 125*)—CRIMINAL PROS- An employee in the customs service of the United States who makes and returns false weights in connection with an entry of imported merchandise is comprehended Statement by Mr. Justice Brewer: Section 9, chapter 407, Laws of June 10, 1890 (26 Stat. at L. 131–135, U. S. Comp. Stat. 1901, pp. 1886-1895), known as the customs administration act, under which defendant was indicted, reads as follows: "That if any owner, importer, consignee, agent, or other person shall make, or attempt to make, any entry of imported merchandise by means of any fraudulent or false invoice, affidavit, letter, paper, or by means of any false statement, written or verbal, or by means of any false or fraudulent practice or appliance whatsoever, or shall be guilty of any wilful act or omission by means whereof the United States shall be deprived of the lawful duties, or any portion thereof, . . embraced or referred to in such invoice, affidavit, letter, paper, or statement, or affected by such act or omission, such merchandise, or the value thereof, to be recovered from the person making the entry, shall be forfeited, which forfeiture shall only apply to the whole of the merchandise or the value thereof in the case or package containing the particular article or articles of merchandise to which such fraud or false paper or statement relates; and such person shall, upon conviction, be fined for each offense a sum not exceeding five thousand dollars, or be imprisoned for a time not exceeding two years, or both, in the discretion of the court." The indictment, in the first count, alleges For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |