United States v. Smith
124 U.S. 525 (1888)

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U.S. Supreme Court

United States v. Smith, 124 U.S. 525 (1888)

United States v. Smith

Argued January 16, 1888

Decided February 6, 1888

124 U.S. 525

Syllabus

Section 3639 of the Revised Statutes does not apply to clerks of a collector of customs.

Clerks of a collector of customs are not appointed by the head of a department, and are not officers of the United States in the sense of the Constitution.

The Court stated the case as follows:

This case comes from the Circuit Court for the Southern District of New York on a certificate of division of opinion between its judges. The defendant was a clerk in the office of the collector of customs for the collection district of the City of New York, and in 1886 was indicted for the unlawful conversion to his own use of public money, an offense designated in the Revised Statutes as embezzlement of such money. The indictment contains seventy-five counts, each charging the defendant with a separate act of embezzlement. The counts were all in the same form, and the objections to one are equally applicable to the whole of them. The first one is as follows:

"The jurors of the United States of America, within and for the district and circuit aforesaid, on their oath present that Douglas Smith, late of the City and County of New York, in the district and circuit aforesaid, heretofore, to-wit, on the eleventh day of October, in the year of our Lord 1883 at the Southern District of New York, and within the jurisdiction of this court, he, the said Douglas Smith, being then and there a person charged by an

Page 124 U. S. 526

act of Congress with the safekeeping of the public moneys, to-wit, a clerk in the office of the collector of customs for the collection district of the City of New York, appointed by the collector of customs, with the approbation of the Secretary of the Treasury, and having then and there in his custody a large sum of public money, to-wit, the sum of ten and 50/100 dollars, did unlawfully fail to keep the same, but the same did unlawfully convert to his own use, against the peace of the United States and their dignity, and contrary to the statute of the United States in such cases made and provided."

The indictment is rounded on § 5490 of the Revised Statutes, which is as follows:

"Every officer or other person charged by any act of Congress with the safekeeping of the public moneys who fails to safely keep the same without loaning, using, converting to his own use, depositing in banks, or exchanging for other funds than as specially allowed by law, shall be guilty of embezzlement of the money so loaned, used, converted, deposited, or exchanged, and shall be imprisoned not less than six months, nor more than ten years, and fined in a sum equal to the amount of money so embezzled."

The law providing for the safekeeping of the public moneys is found in § 3639 of the Revised Statutes, which is as follows:

"The Treasurer of the United States, all assistant treasurers, and those performing the duties of assistant treasurer, all collectors of the customs, all surveyors of the customs, acting also as collectors, all receivers of public moneys at the several land offices, all postmasters, and all public officers of whatsoever character are required to keep safely without loaning, using, depositing in banks, or exchanging for other funds than as specially allowed by law all the public money collected by them or otherwise at any time placed in their possession and custody, till the same is ordered, by the proper department or officer of the government, to be transferred or paid out, and when such orders for transfer or payment are received, faithfully and promptly to make the same as directed, and to do and perform all other duties as fiscal agents of the government which may be imposed by any law, or by any regulation

Page 124 U. S. 527

of the Treasury Department made in conformity to law. The President is authorized, if in his opinion the interest of the United States requires the same, to regulate and increase the sums for which bonds are or may be required by law of all district attorneys, collectors of customs, naval officers, and surveyors of customs, navy agents, receivers and registers of public lands, paymasters in the army, commissary general, and by all other officers employed in the disbursement of the public moneys, under the direction of the War or Navy Departments."

The law providing for the employment of clerks by collectors of customs is found in § 2634 of the Revised Statutes, which is as follows:

"The Secretary of the Treasury may from time to time, except in cases otherwise provided, limit and fix the number and compensation of the clerks to be employed by any collector, naval officer, or surveyor, and may limit and fix the compensation of any deputy of any such collector, naval officer, or surveyor."

To the indictment the defendant filed a demurrer, and upon its hearing the following questions occurred, upon which the judges were divided in opinion:

"1. Does the indictment sufficiently charge an offense under § 5490, Revised Statutes?"

"2. Is a clerk in the office of the collector of customs for the collection district of the City of New York, appointed by the collector of customs, with the approbation of the Secretary of the Treasury, by virtue of § 2634 of the Revised Statutes, a person charged by any act of Congress with the safekeeping of public moneys?"

"3. Was the defendant appointed by the head of a department, within the meaning of the constitutional provisions (Art. II, Sec. 2), upon the subject of the appointing power?"

Thereupon, on the request of the district attorney, the questions were certified to this Court, with a copy of the indictment and an abstract of the record, for final decision.

Page 124 U. S. 531

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