1. Revised Statutes § 1020, 18 U.S.C. § 601, provides that, when
any recognizance in a criminal case returnable to any court of the
United States is forfeited by a breach of the conditions thereof,
such court may remit the whole or a part of the penalty whenever it
appears that there has been no
"willful default of the party, and that a trial can,
notwithstanding, be had in the cause, and that public justice does
not otherwise require the same penalty to be enforced."
Held:
(1) That this statute is the exclusive source of the power of
the District Court at any time to remit the forfeiture of a
recognizance in a criminal cause.
(2) The word "party" appearing in the phrase "willful default of
the party," means only the principal in the recognizance; it does
not include the surety. P.
314 U. S. 530.
2. Where the words of the Revised Statutes are clear, their
meaning may not be changed by resort to the prior law. P.
314 U. S.
530.
Response to questions certified by the Circuit Court of Appeals
on a review by that court of a judgment of the District Court, 34
F. Supp. 1007, which dismissed a petition praying that forfeiture
of a recognizance be remitted. The petitioners were the surety and
its indemnitor.
MR. JUSTICE REED delivered the opinion of the Court.
This certificate brings to this Court from the Court of Appeals
for the Third Circuit questions concerning
Page 314 U. S. 528
the power of a District Court of the United States to relieve an
innocent surety from the penalty of a forfeited recognizance.
The principal in the recognizance,
"Herbert R. Short, was convicted in the District Court for the
District of New Jersey on June 20, 1940, upon two counts of an
indictment charging conspiracy, and was, on that day, directed to
appear in the court on July 19, 1940, for sentence. On July 19,
1940, Short did not appear in the said court. The court thereupon
ordered a bench warrant to issue, and ordered the recognizance to
be forfeited. Short was apprehended on August 29, 1940. On
September 12, 1940, he was brought before the District Court, and
sentence was then imposed upon him."
The surety, Continental Casualty Company, and its indemnitor,
Marie M. Short, the wife of the principal, the convicted defendant,
filed a joint petition in the District Court within the term at
which the order of forfeiture had been entered, praying for
remission of the forfeiture.
"The District Court found as a fact that the default of Herbert
R. Short, the principal in the recognizance, was willful, and
dismissed the petition for remission of the forfeiture upon the
ground that it was without power under Section 1020 of the Revised
Statutes, 18 U.S.C. § 601, to grant the petition in view of the
willful default of the principal, and that it had no power
independently of the statute to entertain the petition."
The Court of Appeals being in doubt as to the power of the
District Court certified the following questions to this Court for
instructions:
"1. Is Section 1020 of the Revised Statutes (18 U.S.C. § 601)
the exclusive source of the power of the District Court of the
United States at any time to remit the forfeiture of the penalty of
a recognizance taken in a criminal cause? "
Page 314 U. S. 529
"2. Is the word 'party' appearing in the phrase 'willful default
of the party' in Section 1020 of the Revised Statutes (18 U.S.C. §
601) intended to describe"
"(a) the person who makes application to the court for the
remission of the forfeiture of the penalty, whether that person is
the principal or the surety in the recognizance, or"
"(b) only the principal in the recognizance?"
"3. If the answer to Question 1 is 'No,' does the District Court
of the United States have common law power to remit the forfeiture
of the penalty of a recognizance taken in a criminal cause where
the default of the principal in the recognizance was willful?"
"4. If Question 3 is answered and the answer thereto is 'Yes,'
is the common law power to remit the forfeiture limited to exercise
upon an application made within the term of court at which the
order of forfeiture was entered?"
The answers depend upon the construction of Section 601 of Title
18 of the United States Code, set out below. [
Footnote 1] This section assumed its present form
in the Revised Statutes § 1020, approved June 22, 1874. R.S. Title
LXXIV, § 5596, repealed all acts mentioned in the revision passed
prior to December 1, 1873. The revision substituted the word
"party" for the word "parties" which was in the earlier act, and,
by reenactment, thus raised the question as to whether the willful
default mentioned in both the revision and the former act may be
that either of the principal or his bail, or whether it is
restricted, on account of the revision, to the principal
Page 314 U. S. 530
only. The provision for remission of forfeitures was first
enacted in 1839 as § 6 of an "Act in amendment of the acts
respecting the Judicial System of the United States." [
Footnote 2] The act included various
procedural provisions designed to fix practice in the federal
courts. The change to the singular in the Revised Statutes was made
without any explanation of its purpose, and indeed without the
brackets or italics used to indicate a repeal or amendment.
See Preface, R.S. (2d ed., 1878), p. v. The revised form,
however, is to be accepted as correct, notwithstanding a possible
discrepancy. R.S. § 5596;
United States v. Bowen,
100 U. S. 508,
100 U. S. 513;
Bate Refrigerating Co. v. Sulzberger, 157 U. S.
1,
157 U. S. 45.
Cf. U.S.C. (1940 ed.) p. LVII, § 2(a).
It appears to us that there can be but one person who can
willfully default within the meaning of the section. This is the
principal in the recognizance. By its terms, he agrees to "appear
for judgment." When, without excuse, he fails to appear, there is a
willful default. The surety only guarantees that the principal will
not default. In a certain sense, the surety may default by failure
to pay its obligation, but this is plainly not the kind of default
to which the statute refers. Nor will the possibility of collusion
of the surety with the absconding principal permit an
interpretation that misconduct on the part of the applicant for
relief from forfeiture is the "default" meant by the statute. The
condition of the bond is the appearance of the principal at the
time set . Nothing less satisfies the condition.
The appellants urge against this conclusion that, since the
object of "a recognizance is not to enrich the treasury," but to
promote convenience of criminal administration,
United States
v. Feely, Fed.Cas.No. 15,082, and to remedy hardships caused
by defaults, the word "party" should be liberally construed to
cover not only principals, but sureties,
Page 314 U. S. 531
without willful default, even though the principal may have
deliberately violated the terms of the recognizance. They further
point out that justice suffers no affront, since surrender of the
fugitive in time for trial is another, and an essential, condition
of the remission of the penalty.
But the considerations of policy are too confused to afford a
clear test of Congressional purpose. Paid sureties are often, as
here, indemnified. Remission of penalty would inure to the benefit
of defendants who had violated their undertakings of appearance,
with consequent disorganization of criminal administration. A bail
charged with custody of a defendant,
Taylor v.
Taintor, 16 Wall. 366,
83 U. S. 371,
may exercise, to the substantial benefit of criminal
administration, a high degree of care to prevent default if he
knows the later fortuitous apprehension of the principal will not
relieve him of the forfeit. It is not for courts to say whether
strict forfeiture on willful default or a generous attitude toward
innocent bail will be most conductive to the public welfare. Hence
not for reasons of policy, but because of the language of the
statute, we conclude that Congress has chosen the former.
After the change to "party," with exceptions in the District
Courts, [
Footnote 3] all the
Circuits except the First [
Footnote
4] and Tenth have reached our conclusion, to-wit, that the
statute requires, as a condition to the remission of the penalty, a
determination that the principal in the recognizance is free of
willful default. [
Footnote 5]
No Circuit has decided to the contrary.
Page 314 U. S. 532
Since there is no doubt as to the willful default of the
principal, under the interpretation of the statute just reached,
relief, if any there is for the bail, must be in other sources of
judicial power as suggested in Questions 1 and 3 of the
certificate. That is to say that, in addition to the statutory
power, the courts have a common law power to remit forfeitures in
their discretion.
United States v. Feely, 1 Brock. 255,
Fed.Cas. No.15,082, is relied upon as authority. In that case,
decided before the statute, Chief Justice Marshall exercised the
power and stayed proceedings. Appellant urges that forfeiture is a
judgment within the power of courts to modify on application made
as here during the term, and that this power is not affected by the
statute which was intended to extend the power to remission after
the term in which forfeiture was entered.
No authority, historical or judicial, is cited by appellant to
support its view that the purpose of the Act of February 28, 1839,
was to confer power upon the courts of the United States to act
after the term in which the forfeiture was entered, in
contradistinction to power already existing to relieve from
forfeitures during the term. We see
Page 314 U. S. 533
nothing in the act itself to persuade us that the generality of
the words "whenever it appears to the court" means after the term
in which the forfeiture was entered. Such a desire on the part of
Congress to extend the power of the courts would be manifested by
the language of extension under than differentiation. If the reason
was as appellant contends, why qualify the discretion after the
term by the conditions of the statute, and leave the discretion
during the term unqualified?
Whatever may have been the powers of the courts of the United
States before the statute, those powers are now regulated by
statute.
Cf. United States v. Mack, 295 U.
S. 480,
295 U. S. 488.
These statutory powers are exclusive. Before remission may be
allowed, there must be a determination of lack of willfulness in
the default, that a trial can be had, and that public justice does
not otherwise require the enforcement of the penalty. The statement
of the conditions negatives action without the satisfaction of
those requirements. Generally speaking a "legislative affirmative
description" implies denial of the nondescribed powers.
Durousseau v. United
States, 6 Cranch 307,
10 U. S. 314.
The circumstances of this inquiry carry us beyond the rule of
expressio unius est exclusio alterius, cf. Ford v. United
States, 273 U. S. 593,
273 U. S. 611,
and into the domain of inconsistency of purpose.
Cf. Texas
& Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.
S. 426,
204 U. S. 436
et seq. There cannot logically be two series of tests to
determine the power of a federal court to relieve of forfeiture
under a recognizance. The conditions for action make action without
meeting the conditions, we think, contrary to Congressional purpose
as expressed in the statute. Since the passage of the original
statute on remission of forfeitures, the courts of the United
States have, in general, held the same view that the statutory
power was exclusive. [
Footnote
6]
Page 314 U. S. 534
Our answer to Question 1 is "Yes." Our answer to Question 2(a)
is "No." Our answer to Question 2(b) is "Yes." It is not necessary
to answer Questions 3 and 4.
It is so ordered.
MR. JUSTICE ROBERTS took no part in the decision of this
case.
[
Footnote 1]
"When any recognizance in a criminal cause, taken for or in or
returnable to any court of the United States, is forfeited by a
breach of the condition thereof, such court may, in its discretion,
remit the whole or a part of the penalty, whenever it appears to
the court that there has been no willful default of the party, and
that a trial can, notwithstanding, be had in the cause, and that
public justice does not otherwise require the same penalty to be
enforced."
[
Footnote 2]
5 Stat. 322.
[
Footnote 3]
United States v. Traynor, 173 F. 114, 116;
United
States v. O'Leary, 275 F. 202;
United States v.
Slaimen, 6 F.2d 464;
United States v. Barger, 20 F.
500;
Griffin v. United States, 270 F. 263;
cf. United
States v. Jacobson, 257 F. 760.
[
Footnote 4]
Compare United States v. Slaimen, 6 F.2d 464
with
United States v. Vincent, 10 F. Supp. 489,
and dicta
in
United States v. Vendetti, 33 F. Supp. 34.
[
Footnote 5]
United States v. Kelleher, 57 F.2d 684;
Sun
Indemnity Co. of New York v. United States, 91 F.2d 120;
United States v. Robinson, 158 F. 410;
United States
v. Nordenholz, 95 F.2d 756;
Isgrig v. United States,
109 F.2d 131, 134;
Fidelity & Deposit Co. v. United
States, 293 F. 575;
United States v. Reed, 117 F.2d
808;
United States v. Costello, 47 F.2d 684;
Henry v.
United States, 288 F. 843;
Skolnik v. United States,
4 F.2d 797, 799;
United States v. Capua, 94 F.2d 292;
cf. United States v. Libichian, 113 F.2d 368, 371, 372;
Weber v. United States, 32 F.2d 110;
LaGrotta v.
United States, 77 F.2d 673, 675;
United States v.
Rosenfeld, 109 F.2d 908;
United States v. American Bonding
Co., 39 F.2d 428;
Fidelity & Deposit Co. of Maryland
v. United States, 47 F.2d 222;
United States v. Von
Jenny, 39 App.D.C. 377, 381;
United States v. Allen,
39 App.D.C. 383;
United States v. Walter, 43 App.D.C.
468.
[
Footnote 6]
United States v. Mack, 295 U.
S. 480,
295 U. S. 488;
United States v. Walter, 43 App.D.C. 468;
Sun
Indemnity Co. of New York v. United States, 91 F.2d 120;
United States v. Robinson, 158 F. 410, 412;
United
States v. Nordenholz, 95 F.2d 756;
United States v.
Reed, 117 F.2d 808;
United States v. Costello, 47
F.2d 684;
Henry v. United States, 288 F. 843;
United
States v. Libichian, 113 F.2d 368;
United States v.
Rosenfeld, 109 F.2d 908.