A baggage porter employed in a station of a railroad controlled
and operated by the United States under the railroad control
legislation during the late War, was not a "person acting for or on
behalf of the United States in any official function," within the
intendment of § 39 of the Criminal Code concerning briberies. P.
256 U. S.
365.
263 F. 538 reversed.
Certiorari to review a judgment of the circuit court of appeals
affirming a judgment of the district court on a conviction under an
indictment. The facts are stated in the opinion.
MR. JUSTICE DAY delivered the opinion of the Court.
Krichman, petitioner, was convicted upon an indictment which
charged that, while the Pennsylvania Railroad was under the control
of and being operated by the
Page 256 U. S. 364
United States, he offered a bribe to a baggage porter to do an
act in violation of his duty, contrary to Section 39 of the
Criminal Code of the United States, 35 Stat. 1096. The section is
in the margin.
*
It appears that the porter was employed at the Pennsylvania
terminal in the City of New York. The petitioner offered to bribe
the porter to deliver to him certain trunks containing furs, which
were checked from the Pennsylvania station to points outside the
state of New York, and paid the porter a sum of money, and procured
from him delivery of a trunk containing valuable furs.
Petitioner moved in arrest of judgment, claiming that neither
the indictment nor the evidence made out any offense under the
statute. The district court denied the motion.
United States v.
Krichman, 256 F. 974. The judgment was affirmed by the Circuit
Court of Appeals for the Second Circuit.
Page 256 U. S. 365
263 F. 538. The case then came to this Court by writ of
certiorari.
The statutes and executive orders concerning railroads are
stated in
Northern Pacific Railway Co. v. North Dakota,
250 U. S. 135. By
the statute of August 29, 1916, c. 418, 39 Stat. 645, the President
was given power to take possession and assume control of the
transportation systems of the country. After the declarations of
war with Germany (April 6, 1917) and Austria (December 7, 1917),
the President issued a proclamation of December 26, 1917, taking
possession of the transportation systems within the boundaries of
the United States. 40 Stats. 1733, Comp.Stats.1918, § 1974a. The
proclamation appointed a Director General of Railroads with full
authority to take control of the systems, and to operate and
administer them. (
See Act of March 21, 1918, 40 Stat. 451,
for the full authority given the Director General by the
proclamation of the President of March 29, 1918.Comp.Stats.1918, §
3115 3/4 H.)
In order to sustain the conviction, the bribe must have been
given to an officer of the United States, or to a person acting for
or on behalf of the United States in an official function under or
by the authority of a department or office of the government.
Clearly Krichman was not an officer of the United States.
United States v. Maurice, 26 Fed.Cas. No. 15747;
United States v.
Hartwell, 6 Wall. 385,
73 U. S. 393.
We need not dwell upon this point, as the government concedes that
the porter was not an officer within the meaning of the
statute.
The point to be decided depends upon whether, when the bribe was
offered to the porter, he was acting for the United States in an
official function. The decided cases do not afford much aid in
reaching a solution of this problem, and, in our view, the cases
cited in the opinions in the courts below throw little light upon
the subject.
Page 256 U. S. 366
The statute creating the offense was passed long before there
was any thought of the government taking over the railroads. That
does not prevent its application if the thing done offends against
it. It is, however, a circumstance proper to be considered in
determining whether the situation is one intended to be dealt with
by Congress.
The act aims to punish the attempted bribery or bribery of
officials and those exercising official functions under or by the
authority of a department or office of the government. Not every
person performing any service for the government, however humble,
is embraced within the terms of the statute. It includes those, not
officers, who are performing duties of an official character. As
was well suggested by Judge Ward in his dissenting opinion in the
circuit court of appeals, not every employee of the government is
covered by the act, but a limitation is made applying to those
acting in official functions. And he added:
"The construction adopted by the court gives these words no
meaning. They might as well, or indeed better, have been omitted,
because window cleaners, scrub women, elevator boys, doorkeepers,
pages -- in short, anyone employed by the United States to do
anything -- is included."
The government admits that the construction contended for will
include the employees suggested by Judge Ward. Indeed, the
construction given by the courts below would bring within the
statute every employee acting under the Director General in the
operation of the railroads. We are unable to accept this
construction of a criminal statute.
In
United States v. Strang, 254 U.
S. 491, this Court held that the Emergency Fleet
Corporation, organized by the Shipping Board, and authorized by the
President to exercise a portion of the power granted to him under
the Act of June 15, 1917, 40 Stat. 182,
Page 256 U. S. 367
was a separate entity from the government which owned all of its
stock, and that an inspector of the Shipping Board was not an agent
of the United States within the meaning of § 41 of the Criminal
Code, Comp.Stats. § 10205, making it an offense for any officer or
agent of any corporation, etc., and any member or agent of any
firm, or person directly or indirectly interested in the pecuniary
profits or contracts of such corporation, etc., to be employed or
to act as an officer or agent of the United States for the
transaction of business with such corporation, etc. Subsequently
the statute was amended so as to bring the United States Shipping
Board Emergency Fleet Corporation within its terms as a
governmental establishment, and, later, to make it an offense to
defraud or to conspire to defraud any corporation in which the
United States owned stock. So, in our view, if § 39 is to include
every governmental employee, it must be amended by act of
Congress.
It is true that, in the emergencies of war, the government took
over the operation of the railroads, and placed them under the
control of the President, acting by his chosen Director General,
who was given full authority to avail himself of the services of
railroad officials, directors, employees, etc., with ample
authority over all. But we cannot believe that this action brought
every service, however remote from the exertion of official
authority, into the exercise of an official function within the
meaning of the statute. We are constrained to the conclusion that
the construction given in the courts below, and insisted upon by
the government, practically recasts the statute from one embracing
officials, and those discharging official functions, into one
including every person discharging any sort of duty while the
government is in control of the work.
The government admits that the statute is ambiguous. While
criminal statutes are to be given a reasonable construction,
Page 256 U. S. 368
ambiguities are not to be solved so as to embrace offenses not
clearly within the law. We are unable to remedy the uncertainties
of this statute by attributing to Congress an intention to include
a baggage porter with those who discharge official duties in the
operation of a railroad controlled by an officer of the
government.
It follows that the judgment of the circuit court of appeals
must be
Reversed.
* Section 39 is as follows:
"Whoever shall promise, offer, or give, or cause or procure to
be promised, offered, or given, any money, or other thing of value,
or shall make or tender any contract, undertaking, obligation,
gratuity, or security for the payment of money, or for the delivery
or conveyance of anything of value, to any officer of the United
States, or to any person acting for or on behalf of the United
States in any official function, under or by authority of any
department or office of the government thereof, or to any officer
or person acting for or on behalf of either house of Congress, or
of any committee of either house, or both houses thereof, with
intent to influence his decision or action on any question, matter,
cause, or proceeding which may at any time be pending, or which may
by law be brought before him in his official capacity, or in his
place of trust or profit, or with intent to influence him to commit
or aid in committing, or to collude in, or allow, any fraud, or
make opportunity for the commission of any fraud, on the United
States, or to induce him to do or omit to do any act in violation
of his lawful duty, shall be fined not more than three times the
amount of money or value of the thing so offered, promised, given,
made, or tendered, or caused or procured to be so offered,
promised, given, made, or tendered, and imprisoned not more than
three years."