Moneys collected by a post office official under the Act of
August 24, 1912, upon C.O.D. parcels and held by him for use by him
in purchasing money orders to be sent to the sender of the parcels,
are not "money order funds," within R.S. § 4045, nor "public
money," within § 3846. Pp.
273 U. S. 335-336.
6 F.2d 12 reversed.
Appeal from a judgment of the circuit court of appeals which
affirmed a judgment for the United States in an action in the
district court against a postmaster and his surety, to recover
money embezzled by an assistant superintendent of mails.
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
This action was brought to recover upon the official bond of
Smyer, who was postmaster at Birmingham, Alabama, the amount of
moneys embezzled by one Smith, assistant superintendent of mails at
that office. The moneys came into Smith's hands as collections made
by him upon numerous C.O.D. parcels or collected upon such parcels
by letter carriers and turned over to him. The condition of the
bond is that the postmaster "shall faithfully discharge all duties
and trusts imposed on him by law and by the regulations of the Post
Office Department."
Page 273 U. S. 334
All parcel post matter which came to the office was in charge of
Smith. Parcel post matter and money order business were separately
handled in different departments of the office. It was Smith's duty
to receive and handle C.O.D. parcels and collect from the
addressees the amounts called for upon tags attached to the
parcels, and thereupon purchase from the money order department
money orders payable to the senders of the parcels for the several
amounts. These tags, signed by the addressees, were considered by
the Post Office Department as applications for money orders payable
to the senders of the parcels. The moneys so collected were
converted to Smith, and never came into the hands of anyone
connected with the money order department. The court below affirmed
a judgment in favor of the government. 6 F.2d 12.
The right of the government to recover depends upon the
construction and application of §§ 4045 and 3846, Revised Statutes,
copied in the margin.
* We are of
opinion that under neither section is there liability upon the
bond.
Page 273 U. S. 335
The language of § 4045, so far as pertinent here, is that
"all money received for the sale of money orders, including all
fees thereon . . . shall be deemed and taken to be money order
funds and money in the Treasury of the United States."
We are of opinion that, until the money intended for the
purchase of money orders reaches the hands of the postmaster or
some employee of the post office authorized to issue money orders,
it has not been received for the sale of money orders within the
meaning of the language quoted. These sums of money were received
not for the sale -- that is, as a price paid in for money orders --
but for the purchase of money orders. That by the words, "for the
sale of money orders" was meant a completed purchase is borne out
by the phrase immediately following, "including all fees thereon."
There could, of course, be no money received for fees on the sale
of money orders here until actual payment to the money order
department. The section further requires that it shall be the duty
of the assistant treasurer, at the request of the Postmaster
General, to open an account of "money order funds" deposited by
postmasters to the credit of the Postmaster General, etc. It cannot
have been intended that money, collected for the specific purpose
of buying a money order for the sender of a parcel, might be
deposited to the credit of the Postmaster General as "money order
funds" before being put to that use. Section 4045 was enacted on
June 8, 1872, while the act providing for the collection on
delivery of articles sent by parcel post was not passed until
August 24, 1912. 37 Stat. 539, 558, c. 389. Certainly when § 4045
was originally enacted, Congress could have had in mind only a
completed purchase, since a situation like the present was not then
provided for. And while that consideration would be of no value
where the language of the statute plainly applied to conditions
subsequently arising, it may aid to some degree in the construction
of a statute where, as here, the words are of doubtful import.
Page 273 U. S. 336
In
United States v. Mann, 160 F. 552, a similar
collection was made by a rural letter carrier, and, having failed
to purchase a money order for the sender, he was indicted under §
4046 of the Revised Statutes for converting to his own use "money
order funds." The contention of the government as to the
application of § 4045 was the same as here, but the court held that
the money did not constitute money order funds, and directed a
verdict of not guilty. In the course of an opinion subsequently
filed, it was said:
"It is nothing more or less than money which the regulation of
the Postmaster General authorizes his qualified employee to accept
from the citizen, with the duty of purchasing a money order
therewith. It becomes no part of the 'money order funds' until that
purchase has been made, and then it is within the category of the
first class of the definition --
viz., 'money received for
the sale of money orders.'"
Nor is the case for the government helped by the more general
language of § 3846. By that section, postmasters must keep safely
"all the public money collected by them, . . . until it is ordered
by the Postmaster General to be transferred or paid out." The
collections made by or turned over to Smith were in his hands for
the purpose, and only for the purpose, of being remitted in the
form of money orders to the persons for whom the collections were
made and to whom the moneys equitably belonged. True, these moneys
came to Smith's hands under color of his office, but subject to no
form of disposition except for the use to which they were
specifically devoted. Public money, within the meaning of § 3846,
obviously is money belonging to the United States in such sense
that it may be ordered by the Postmaster General to be transferred
or paid out. It seems clear that the sums of money here in question
were not subject to that control until
Page 273 U. S. 337
after they had reached the hands of the money order
department.
There is a clear distinction between public money and these sums
of money received by an employee of the office charged with the
specific duty of transmitting them to their real owners in a
definitely prescribed manner. That money, though received under
color of office, may not be public money is clearly recognized by §
225 of the Criminal Code, 35 Stat. 1088, 1133, c. 321, which
defines the offense of embezzlement in part as the conversion by
any person in the postal service of any money coming into his hands
under color of his office, whether the same shall be the money of
the United States or not.
Judgment reversed.
THE CHIEF JUSTICE, MR. JUSTICE HOLMES, and MR. JUSTICE STONE
dissent.
*
"Sec. 4045. All money received for the sale of money orders,
including all fees thereon, all money transferred from the postal
revenues to the money order funds, all money transferred or paid
from the money order funds to the service of the Post Office
Department, and all money order funds transferred from one
postmaster to another shall be deemed and taken to be money order
funds and money in the Treasury of the United States. And it shall
be the duty of the assistant treasurer of the United States to
open, at the request of the Postmaster General, an account of
'money order funds' deposited by postmasters to the credit of the
Postmaster General, and of drafts against the amount so deposited,
drawn be him and countersigned by the Sixth Auditor."
"Sec. 3846. Postmasters shall keep safely, without loaning,
using, depositing in an unauthorized bank, or exchanging for other
funds all the public money collected by them or which may come into
their possession until it is ordered by the Postmaster General to
be transferred or paid out."