United States v. Hartwell
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73 U.S. 385 (1867)
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U.S. Supreme Court
United States v. Hartwell, 73 U.S. 6 Wall. 385 385 (1867)
United States v. Hartwell
73 U.S. (6 Wall.) 385
1. An office is a public station or employment, conferred by the appointment of government, and embraces the ideas of tenure, duration, emolument, and duties.
Accordingly, a person in the public service of the United States appointed pursuant to statute authorizing an Assistant Treasurer of the United States to appoint a clerk, with a salary prescribed, whose tenure of place will not be affected by the vacation of office by his superior, and whose duties (though such as his superior in office should prescribe) are continuing and permanent, is an officer within the meaning of the Sub-Treasury Act of August 6, 1846, 9 Stat. at Large 59, and, as such, subject to the penalties prescribed in it for the misconduct of officers.
2. The terms employed in the sixteenth section of that act to designate the persons made liable under it are not restrained and limited to principal officers.
3. The admitted rule that penal statutes are to be strictly construed is not violated by allowing their words to have full meaning, or even the more extended of two meanings, where such construction best harmonizes with the context and most fully promotes the policy and objects of the legislature.
4. The penal sanctions of the third section of the act of June 14, 1866, "to regulate and secure the safekeeping of public money," &c., 14 Stat. at Large 65, is confined to officers of banks and banking associations.
The defendant was indicted in that court at Boston, for embezzlement. The indictment contained ten counts. The first three were founded upon the sixteenth section of the Act of August 6, 1846, known as the Sub-Treasury Act. [Footnote 1] This act in its fifth section provides for the appointment of "four officers," to be denominated assistant treasurers, at Boston and three other places named. It had already in a third section -- after referring to certain buildings, rooms and safes in New York and Boston which had by a prior act been ordered to be prepared for other persons described -- enacted, that
"the assistant treasurers from time to time appointed at those points, shall have the custody and care of the said rooms, vaults and safes respectively, and of all the moneys deposited within the same, and shall perform all the duties required to be performed by them in reference to the receipt, safekeeping, transfer and disbursement of all moneys according to the provisions of this act."
Sections seven and eight provide for bonds, with sufficient surety, from assistant treasurers as often as the Secretary of the Treasury may require, and in sums as large as he may deem proper.
The sixth section declares that the "Treasurer of the United States," "Treasurer of the Mint," and "all assistant treasurers," &c. &c., "and all public officers of whatever grade, be, and they are hereby, required to keep safely, without loaning, using, depositing in banks, or exchanging for other funds than as allowed by this act, all 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."
The thirteenth section provides that
"The said officers, whose duty it is made by this act to receive, keep and disburse the public moneys, as the fiscal agents of the government, may be allowed any necessary additional expenses for clerks, fire proof chests or vaults, or other necessary expenses of safekeeping, transferring and disbursing said moneys,"
The sixteenth section -- a long section, and the one on which the first three counts were founded -- ran, in its important parts, as follows:
"That all officers and other persons charged by this act or any other act with the safekeeping, transfer and disbursement of the public moneys, are hereby required to keep an accurate entry of each sum received, and of each payment or transfer; and that if anyone of the said officers shall loan any portion of the public moneys entrusted to him for safekeeping, every such act shall be deemed an embezzlement; and if any officer charged with the disbursement of public moneys shall transmit to the Treasury Department to be allowed in his favor any receipt or voucher from a creditor of the United States, without having paid to such creditor in such funds as he may have received for disbursement the full amount specified in the same, every such act shall be deemed a conversion by such officer to his own use of the amount specified in such voucher; and any officer or agent of the United States, and all persons advising or participating in such act, being convicted thereof before any court of competent jurisdiction, shall be sentenced to imprisonment for a term not less than six months, nor more than ten years, and to a fine equal to the amount of the money so embezzled. And upon the trial of any indictment against any person for embezzling public money under the provisions of this act, it shall be sufficient to produce a transcript &c., as required in civil cases under the provisions of the act entitled 'An act to provide,' &c., approved March 3, 1797, and the provisions of this act shall be so construed as to apply to all persons charged with the safekeeping, transfer or disbursement of public money, whether such persons be indicted as receivers or depositaries of the same,"
So far as respects the act of 1846, on which the first three counts were founded.
The act of 1866 [Footnote 2] (June 14), upon the third section of which the remaining seven counts of the indictment were founded, runs, in that section, thus:
"If any banker, broker, or any person, not an authorized depositary of public moneys, shall knowingly receive from any disbursing officer, or collector of internal revenue, or other agent of the United States, any public money on deposit or by way of loan or accommodation, with or without interest, or otherwise than in payment of a debt against the United States, or shall use, transfer, convert, appropriate or apply any portion of the public money for any purpose not prescribed by law, or shall counsel, aid or abet any disbursing officer or collector of internal revenue or other agent of the United States in so doing, every such act shall be deemed and adjudged an embezzlement of the money so deposited, loaned, transferred, used, converted, appropriated, or applied; [and any president, cashier, teller, director, or other officer of any bank or banking association who shall violate any of the provisions of this act shall be deemed and adjudged guilty of embezzlement of public money,] and punished as provided in section two of this act."
It was admitted that the defendant was not a president or other officer of a bank.
The counts upon the act of 1846 alleged that the defendant, being an officer of the United States, to-wit, a clerk in the office of the assistant treasurer of the United States, at Boston, appointed by the assistant treasurer, with the approbation of the Secretary of the Treasury, and as such charged with the safekeeping of the public moneys of the United States, did loan a large amount of said moneys with the safekeeping whereof he was entrusted in his capacity aforesaid. The names of the borrowers, and the amount and description of the moneys loaned, were set forth.
The succeeding counts -- those namely on the act of 1866 -- alleged
that the defendant, being a person, not an authorized depositary of the public moneys of the United States, to-wit, a clerk in the office of the assistant treasurer of the United States, at Boston, appointed by him, with the approbation of the Secretary of the Treasury, having the care and subject to the duty to keep safely the public moneys of the United States, did knowingly and unlawfully appropriate and apply another portion of said public moneys, of which he had the care, and was subject to the duty safely to keep as aforesaid, for a purpose not prescribed by law, to-wit, did loan the same. The particulars with reference to the loans were given as in the preceding counts.
The indictment averred the appointment of the defendant under the General Appropriation Act of July 23, 1866, which authorized the assistant treasurer at Boston, with the approbation of the Secretary of the Treasury, to appoint a clerk at a salary of $2,500.
The testimony being closed, the opinions of the judges were opposed upon the points:
(1) Whether the defendant was liable to indictment under the sixteenth section of the act of August 6th, 1846, and
(2) Whether there is any offense charged in the last seven counts under the third section of the act of June 14, 1866, of which the court had jurisdiction.