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District Court of Appeal, Second District, Division 1, California.


Cr. 2880.

Decided: July 25, 1936

U. S. Webb, Atty. Gen., Frank Richards, Deputy Atty. Gen., and Buron Fitts, Dist. Atty., and A. H. Van Cott, Deputy Dist. Atty., both of Los Angeles, for the People. P. Talbot Hannigan and Samuel Schwartz, both of Los Angeles, for respondent.

This is an appeal from a judgment dismissing the information after an order sustaining the defendant's demurrer thereto.

The offense charged was perjury based on an alleged false affidavit executed and uttered in connection with an application for aid from the department of charities, bureau of county welfare of the county of Los Angeles.

In 1901 the State Legislature passed an act to provide for the maintenance and support, in certain cases, of indigent persons. St.1901, p. 636. In 1933 this act was repealed and an entirely different system was adopted for the maintenance and support of indigent persons, which fixes the duty of the counties of the state in this respect. St.1933, p. 2005.

It is alleged in the information that the affidavit, which is the basis of the perjury herein, was required by law, in that it was required by a certain ordinance of the county of Los Angeles, to wit, Ordinance No. 2168 (N.S.). But it is contended by respondent that the ordinance does not contain the provisions alleged in the information, although it is conceded that such provisions are in fact contained in another and different ordinance. In this connection, People v. French, 134 Cal.App. 694, 26 P.(2d) 310, is relied upon as authority by respondent. It should be noted, however, that in the French Case, supra, the point was not raised that the court is without authority to take judicial notice of the contents of a county ordinance and that a demurrer raises a question of law only. For the purpose of passing on the demurrer, the allegations of the information must be assumed as true and the objections sought to be raised by demurrer, namely, that the ordinance does not contain the provisions alleged, are available only as a defense at the trial. The trial court was without authority, and this court is without authority to take judicial notice of a county ordinance. Hence the information on its face was not open to those objections sought to be raised by the demurrer, as the alleged ordinance appears to be sufficiently described and quoted in the information and meets the requirements of the rules of pleading in this respect.

Respondent raises another question, however, that merits particular attention, namely, that the oath required by the ordinance referred to is not within the meaning of the provisions of section 118 of the Penal Code, that is to say, that the requirement, in an ordinance, of an affidavit is not one of the cases in which such an oath may by law be administered within the meaning of the provisions of section 118 of the Penal Code. This contention is sustained.

The provisions of the Statutes of 1933, hereinbefore referred to, require no oath of any kind in connection with the administration of charitable relief; therefore, it must be assumed that the oath upon which the prosecution seeks to base the perjury charge herein is exclusively the creature of the ordinance described in the information. While it may be conceded that a county has, in proper cases, authority to adopt ordinances and impose penalties for the violation thereof, it is without authority, directly or indirectly, to provide that the violation of such ordinances shall constitute a felony. An offense, to constitute a felony, must be an offense against the state. Assuming that the county, by its ordinance, could provide that the execution of a false affidavit under such circumstances would be a misdemeanor, nevertheless, in the absence of legislative authority, general in its scope throughout the state, a county ordinance cannot constitute the basis of a felony prosecution. The oath required by the ordinance, therefore, is not such an oath which may by law be administered, as contemplated by the provisions of section 118 of the Penal Code. “Nothing is better settled with reference to the offense of perjury than that it may not be based upon an oath, however solemnly taken, which is not required by the law to be taken by the party charged.” People v. Millsap, 85 Cal.App. 732, 260 P. 378, 383. Thus the expression in section 118 of the Penal Code: “in which such an oath may by law be administered,” is interpreted to mean, an oath which is required by law. Such interpretation is inevitable, if the consistency of section 118 of the Penal Code with article 4, section 25 of the Constitution of California, is to be preserved. Moreover, the expression “required by law” contemplates that the Constitution and the Legislature, only, can require the oath referred to in section 118 of the Penal Code. Any other construction would permit the creation of felonies, by special and local ordinances either by counties, or by cities of the various classes incorporated by authority of general law. “The legislature shall not pass local or special laws * * * for the punishment of crimes and misdemeanors” (article 4, § 25, Const. of California), and it follows that a felony prosecution for perjury cannot be predicated on the execution of an affidavit when the only requirement for such affidavit is by virtue of the provisions of a county ordinance.

Although the question has never been raised before in this state, the federal courts have been called upon to decide somewhat similar questions where alleged false affidavits have been filed in the United States Land Office in connection with the sale and purchase of public lands. Substantially the same as the California statute, section 5392 of the Revised Statutes of the United States, chapter 4, page 1050 (18 U.S.C.A. § 231), defines “perjury” as follows: “Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose [etc.] * * * is guilty of perjury.”

In Caha v. United States, 152 U.S. 211, 14 S.Ct. 513, 515, 38 L.Ed. 415, the defendant was accused of perjury which resulted from alleged false testimony given by the defendant in a contest over a home–stead entry in the United States Land Office. The contention by defendant and appellant was that there was no provision for such a contest; that the statute did not authorize any such contest; and that the oath was not taken in a case in which a law of the United States authorized an oath to be administered. After reviewing the laws applicable thereto, the court made the following observation: “We have, therefore, a general grant of authority to the land department to prescribe appropriate regulations for the disposition of the public land; a specific act of congress authorizing contests before the local land offices in cases of pre–emption; rules and regulations prescribed by the land department for contests in all cases of the disposition of public lands, including both pre–emption and homestead entries; and the frequent recognition by acts of congress of such contests in respect to homestead entries. Clearly, then, within the scope of section 5392, the local land officers, in hearing and deciding upon a contest with respect to a homestead entry, constituted a competent tribunal, and the contest so pending before them was a case in which the laws of the United States authorized an oath to be administered.”

In United States v. Nelson (D.C.) 199 F. 464, the defendant was charged with perjury alleged to have been committed in an affidavit filed in connection with an application to enter and claim certain public lands. It was contended by defendant and appellant that said affidavit was not required or authorized by law and could not therefore serve as a basis of the charge of perjury. After an extensive review of authorities on the subject, the court said:

“It may be conceded that there is some support, both in reason and the decided cases, for the view that, in the administration of the general homestead law, Congress having, by section 2290 [43 U.S.C.A. § 162], specifically prescribed the contents of the required affidavit, it is incompetent for the Land Department to impose upon the applicant additional conditions. ‘Expressio unius est exclusio alterius.’ United States v. Maid (D.C.) 116 F. 650. That point, however, it is unnecessary presently to decide; for it must be borne in mind that the application under consideration was not made under the general homestead laws alone. The lands were within the boundaries of a national forest, and by express provision of the act of June 11, 1906 [16 U.S.C.A. §§ 506 and note, 507–509, 510 note], authorizing their entry, they could be entered only in accordance with the general homestead laws and that act. That act conferred upon the defendant, if otherwise qualified, a preference right to make entry over other qualified applicants, provided certain facts and conditions existed. To enable the officers properly to administer the law and accept the application of the person entitled to make the entry, it was requisite that they inform themselves concerning the existence of such facts. No method of inquiry or form of procedure is pointed out by the law. The method most familiar, most convenient, and most commonly adopted for making a prima facie showing of a fact in the administration of the public land laws is, as Congress must have well known, by affidavit or verified written statement. Such a method is entirely reasonable, and imposes upon the applicant no undue burden. Furthermore, in the Revised Statutes we find the following sections:

“‘Sec. 441. The Secretary of the Interior is charged with the supervision of public business relating to the following subjects: * * * Second. The public lands, including mines.’ (U.S.Comp.St. 1901, p. 253 [5 U.S.C.A. § 485].)

“‘Sec. 453. The Commissioner of the General Land Office shall perform, under the direction of the Secretary of the Interior, all executive duties appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and, also, such as relate to private claims of land, and the issuing of patents for all (agents) (grants) of land under the authority of the government.’ (U.S.Comp.St.1901, p. 257 [43 U.S.C.A. § 2]).

“‘Sec. 2478. The Commissioner of the General Land Office, under the direction of the Secretary of the Interior, is authorized to enforce and carry into execution, by appropriate regulations, every part of the provisions of this title not otherwise specially provided for.’ (U.S.Comp.St.1901, p. 1586 [43 U.S.C.A. § 1201]).

“‘Sec. 2246. The register or receiver is authorized, and it shall be their duty, to administer any oath required by law or the instructions of the General Land Office, in connection with the entry or purchase of any tract of the public lands.’ (U.S.Comp.St.1901, p. 1371 [43 U.S.C.A. § 75 and note]).

“In circular No. 10 of the General Land Office, issued by the Commissioner, and approved by the Secretary of the Interior, April 20, 1911, paragraph 17 prescribes the sworn showing to be made by homestead applicants in all cases under the general homestead laws; and paragraph 19 provides that: ‘All applications by persons claiming as settlers must, in addition to the facts required in paragraph 17, state the date and describe the acts of settlement under which they claim a preferred right of entry,’ etc. This appears to be an ‘appropriate regulation,’ and therefore fully within the authority conferred by section 2478, empowering the officers charged with the responsibility of disposing of the public lands ‘to enforce and carry into execution, by appropriate regulations,’ provisions of law ‘not otherwise specially provided for.’ No valid reason is apparent, therefore, why the oath to the affidavit made by the defendant pursuant to this regulation should not be held to be an oath which, by necessary implication, is permitted by the laws of the United States to be administered.”

In connection with the same subject the United States Circuit Court of Appeals, Ninth Circuit, declared: “It is, of course, true that the Land Department cannot by any rule or regulation declare what shall constitute a crime, or make that a crime which by statute is not such.” Robnett v. United States, 169 F. 778, 782.

The United States Supreme Court, in United States v. William George, 228 U.S. 14, 33 S.Ct. 412, 413, 57 L.Ed. 712, reached the same conclusion. The defendant was charged with perjury before the United State Land Office, in connection with the making of final proof of entry of a home–stead claim. A demurrer was sustained and the people appealed. It was contended by defendant and respondent that there was no law of the United States which required defendant, as claimant, in making his homestead proof, to testify with reference to the matters and things set forth in the indictment. The court declared: “It will be observed that the indictment charges that the oath was taken in a proceeding wherein a law of the United States authorized an oath to be administered. Whether it was is the question in the case; and we are brought to the inquiry as to what law of the United States authorized the oath.” The court, after reviewing the facts and the law, continued as follows: “By that section” (sec. 2246, U.S.Comp.Stat.1901, p. 1371 [43 U.S.C.A. § 75 and note]) “the register or receiver is authorized and it is made his ‘duty to administer any oath required by law or the instructions of the General Land Office in connection with the entry or purchase of any tract of land.’ These sections, it is contended, as we have seen, were the law of the indictment. Acting under the authority presumed to be given by § 2246 and the other sections, a regulation was promulgated which prescribed forms of taking pre–emption and final homestead proof by questions and answers, and provided that ‘the claimant will be required to testify, as a witness, in his own behalf, in the same manner.’ It was testimony exacted in pursuance of this regulation and in the manner directed by it which constitutes the charge of the indictment. It will be observed, therefore, that the claimant was required to testify as other witnesses. In other words, three witnesses were required; § 2291 [43 U.S.C.A. § 164] requires two only, and, as we have said, points out what proof, in addition, the claimant himself shall give. It is manifest that the regulation adds a requirement which that section does not, and which is not justified by § 2246. To so construe the latter section is to make it confer unbounded legislative powers. What, indeed, is its limitation? If the Secretary of the Interior may add by regulation one condition, may he not add another?” The court concluded by declaring that, “Where the charge is of crime, it must have clear legislative basis.”

For the foregoing reasons the judgment appealed from is affirmed.

DORAN, Justice.

We concur: HOUSER, P. J.; YORK, J.

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