United States v. Marks. penalty for demanding an excessive fee, but all pending prosecutions for violations of the act of 1862-occurring even prior to July 4, 1864-must fail, because it is well settled that no prosecution can be supported by a repealed statute. But, as already intimated, the district-attorney contends that the acts of 1862 and of 1864 are to be read as one act; that the act of 1864 is to be regarded as a reenactment of the act of 1862, omitting only the repealed parts; and that, in fact, this is the legal effect of every amendatory or supplementary statute. In support of his position, he refers to the case of The Harriet, 1 Story C. Ct. 251. It is undoubtedly true, that where a statute is amended, the original statute is thenceforward to be read (striking out of it all of the repealed and incorporating into it all of the amended provisions) precisely as if the original statute was re-enacted, omitting the repealed and inserting in their appropriate places the amended provisions. But this rule will not allow the incorporating into or reading as part of the original act, a provision of the supplementary act, which, by its terms, plainly refers to the supplementary act only, and which has complete sense and operation without reference to the original act at all. Now, undoubtedly, the provisions of sections 12 and 13 of the act of 1864 are not without operation if they are confined, as their terms require, to the pensions granted by the act in which they are found, and, therefore, there is no rule of interpretation which requires or permits them to be incorporated into and read as part of the act of 1862. If the act of 1862 be now read, striking out of it all that is repealed by the act of 1864, and inserting into it all that is amendatory, still we cannot read as part of it sections 12 and 13 of the act of 1864, because they do not relate to it, except as they repeal some of its provisions. The whole effect of the provisions of sections United States v. Marks. 12 and 13 of the act of 1864 on the act of 1862, is to require that henceforward the act of 1862 be read with sections 6 and 7 omitted. Again, the district-attorney contends that in the construction of statutes, the intention of the legislature must prevail; that it is unreasonable to suppose Congress, by the act of 1864, intended to prescribe the fees of the attorneys for making claim to only the very few pensions granted by that act, and to leave the fees of the same attorneys for making claim to the numerous pensions granted by the act of 1862 wholly unlimited. But I have no means of ascertaining the intention of Congress, except from what they have said. I have no right, upon any conjectures of policy which I may entertain, to supply an intention which cannot be derived from the language employed. I am obliged to take the statute just as it is written, and to adopt that construction which its language plainly imports. I cannot stretch it to cases obviously not embraced by its terms, because such cases seem to me to be included in the policy. Congress have plainly declared that it shall not be lawful for attorneys making claim to pensions under the act of 1864, to demand or receive more than a prescribed compensation; but should the court conjecture that some other act not expressly forbidden-that a demand of more than the compensation fixed by the act of 1864 for making claim to pensions under the act of 1862―ought to be punished, for the purpose of effecting a supposed legislative intention, "it would" (as Judge MARSHALL said, in the case of The Paulina's Cargo, 7 Cranch, 61), "certainly transcend its own duties and powers, and would create a rule, instead of applying one already made. It is the province of the legislature to declare in explicit terms how far the citizen shall be restrained, and it is the province of the court to apply the rule in the case thus explicitly de United States v. Marks. scribed-not to some other cases which judges may conjecture to be equally dangerous." Moreover, the district-attorney is obliged to concede, and does concede, that for all violations by agents or attorneys of the act of 1862, occurring prior to the act of July 4, 1864, there could be no punishment after the latter date; because, by the act of that date, the penal provisions of the former act were repealed. But no well grounded reason can be assigned why Congress should intend to relieve these violators, that does not apply with equal force to all like offenders. Why should we presume that Congress intended that an attorney who demanded, in August, 1864, a fee of twenty dollars for making claim to a pension, allowed by the act of 1862, should be punished, when they have, by explicit legislation, declared that an attorney who demanded and received such fee for similar service in August, 1862, shall not be punished? Still, I can hardly doubt that Congress did not in fact intend to deprive the beneficiaries under the act of 1862 of the protection sought to be given by sections 6 and 7. I cannot, however, sitting here as a judge, say they did not intend to do what they have plainly done. I may conjecture that they overlooked the effect of the language used in sections 12 and 13 of the act of 1864, but I can neither overlook nor disregard it. I cannot supply the omission of the legislature, for it is a fundamental rule "that a penalty cannot be raised by implication, but must be expressly created and imposed." Jones v. Estes, 2 Johns. 379. It follows, that as the indictment describes the of fense as committed in reference to a claim under the act of 1864, when the evidence shows it has reference to a pension claimed under the act of 1862, there is a variance between the allegation and the proof which entitles the accused to a new trial. But this right to a new trial may be rested upon the still broader ground, Gray v. Larrimore. that the penal provisions of the act of 1862 having been repealed by the act of 1864, the evidence fails to show that they are guilty of any offense whatever. A new trial must be granted. GRAY v. LARRIMORE. Circuit Court, Tenth Circuit; District of California, June T., 1865. JUDGMENT.-JURISDICTION.-PARTIES IN EQUITY. The jurisdiction of any court over either the person or the subject matter, may be inquired into whenever any right or benefit is claimed under its proceedings; and want of jurisdiction will render its judgment unavailable for any purpose. In applying this rule, the only difference recognized between courts of superior and of inferior jurisdiction, is that, with reference to courts of superior or general authority, jurisdiction is presumed until the contrary appears; but with reference to courts of inferior or limited authority, the jurisdiction must be affirmatively shown by parties who claim any right or benefit under their proceedings. The presumption in favor of the judgments of superior courts, is limited to jurisdiction over persons within their territorial limits, and to proceedings in accordance with the common law. If it appears, either from the record or by evidence outside, that the defendants were, at the time of the alleged service upon them, beyond the reach of the process of the court, or when the proceeding was not one in accordance with the common law, the presumption ceases, and the burden of establishing the jurisdiction over them is thrown upon the party who invokes the benefit of the judgments. As a statute authorizing a suit to be commenced against a non-resident by means of service by publication is in derogation of the common law, its provisions must be strictly pursued, in order to sustain a Gray v. Larrimore. judgment in the subsequent course of the suit so commenced. A failure to comply with any of the requirements of the statute will be fatal to the judgment, unless cured by voluntary appearance. The requisites prescribed by the laws of California, to obtain an order for the service of the summons in a civil action, by publication, and the proofs required to show such service,-stated and considered, in a cause involving the rights of a purchaser under the judgment as against the defendant, suing, after reversal of the judgment, to recover back the property sold under it. The general doctrine of courts of equity, relative to absent parties, is, that if persons out of the jurisdiction are merely passive objects of the judgment sought, or if their rights are merely incidental to those of the parties before the court, then, inasmuch as a complete decree may be obtained without them, they may be dispensed with. But if such absent persons are to be active in the performance or execution of the decree; or if they have rights wholly distinct from those of the other parties; or if the decree ought to be pursued against them; then the court cannot properly proceed, without their being made parties. And the suit, so far at least as their rights and interests are concerned, should be stayed; for, to this extent, it is unavoidably defective. All the partners, or their representatives, are indispensable parties to a bill filed to procure a dissolution of the copartnership and an account. Where, upon a bill filed in a circuit court to procure a dissolution of copartnership and an account, one of the partners (or his representative) is not a resident of the State in which the suit is commenced, and cannot be served with process therein, the suit is defective, and cannot proceed, unless service by publication is authorized by the law of the State, and is made in strict conformity therewith; or unless there is a voluntary appearance. Trial of issues by the court. This was an action to recover the possession of land in San Francisco, and was brought by Matilda C. Gray and Franklina C. Gray (an infant suing by next friend) against Richard Larrimore and others. The facts immediately material to the decision are stated in the opinion of the court.* * See, also, Gray v. Brignardello, 1 Wall. 627. |