1. An indictment against A., found Sept. 11, 1875, charged that
in March, 1868, he, as agent and attorney of B. and C., did
withhold, and continued thereafter to withhold from them, certain
money which he, as their agent and attorney, had received from the
United States by the collection of their respective claims for "pay
and bounty" and "arrears of pay and bounty."
Held: 1. That the acts charged are not an offense under
Sec. 13 of the Act of July 4, 1864, 13 Stat. 389; 2. That sec. 31
of the Act of March 3, 1873, 17
id. 575, Rev.Stat., sec.
5485, was not intended to apply to a case where the money had been
withheld before its passage.
2. The word "claimant" in said sec. 13 means a person who, under
the Act of July 4, 1864, has a claim before the pension office.
The facts are stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
The defendant, Louis Benecke, was indicted in the District Court
for the Western District of Missouri, and the sixth and tenth
counts of the indictment charged him with unlawfully withholding
arrearages of pay and bounty from persons for whom, as agent and
attorney, he had collected the same from the United States.
In the one case, the date was alleged to be the sixteenth day of
March, 1868, and in the other the 17th of the same month, and in
both continuing thereafter.
On these counts the defendant was found guilty in the circuit
court, and on motion for a new trial and arrest of
Page 98 U. S. 448
judgment the judges of that court certified six questions of law
to this Court on which they differed, as applicable to the
case.
The first of these is thus stated:
"Is wrongfully withholding back pay or bounty by an agent or
attorney from a claimant an offense under sec. 13 of the Act of
July 4, 1864, 13 Stat. 389, or under sec. 31 of the Act of March 3,
1873, 17 id. 575, sec. 5485, Rev.Stat.?"
The act of 1864 is entitled "An Act supplementary to an act
entitled
An Act granting pensions, approved July 14, 1862.'" It
consists of fifteen sections, the twelfth of which is devoted to
prescribing specifically the compensation of agents and attorneys
for procuring the allowance of pensions and bounty, or other
claims, under the act, and the thirteenth section to prescribing a
punishment for violation of the twelfth. It is as follows:
"SEC. 13. And be it further enacted that any agent or attorney
who shall, directly or indirectly, demand or receive any greater
compensation for his services under this act than is prescribed in
the preceding section of this act or who shall contract or agree to
prosecute any claim for a pension, bounty, or other allowance under
this act, on the condition that he shall receive a percentum upon[,
or] any portion of the amount of such claim, or who shall
wrongfully withhold from a pensioner or other claimant the whole or
any part of the pension or claim allowed and due to such pensioner
or claimant, shall be deemed guilty of a high misdemeanor, and upon
conviction thereof shall, for every such offense, be fined not
exceeding $300, or imprisoned at hard labor not exceeding two
years, or both, according to the circumstances and aggravations of
the offense."
There is here no provision in regard to services for procuring
pay, nor any provision in the act regarding it. The pensions to
soldiers, their widows and orphans, is not pay, and the provisions
for paying them are not under that act. Arrearages of pay were not
collected under any pension law or through the pension office. What
is meant by bounty here is said in the briefs to be also passed
upon and paid in another bureau. The indictment is perhaps on this
point a little obscure. In the sixth count, the defendant is
charged as guilty of withholding
Page 98 U. S. 449
arrearages of pay and bounty, and in the tenth with withholding
pay and bounty.
Since the act in which this offense is described makes no
provision for pay or for bounty, and the fees regulated and the
acts forbidden are those done in regard to that act, it seems a
reasonable construction of the penal part of the statute that
withholding pay and bounty, which are not mentioned there, are not
intended to be punished by the act.
It is not in reference to pay that Congress was legislating. The
persons described who may be guilty are those prosecuting claims
for pensions or bounty before the pension office. The offense
described is "withholding from a pensioner or other claimant the
whole or any part of the claim allowed and due said pensioner or
claimant," and it is but a just limitation of the word "claimant"
that he should be a claimant under that act, a claimant before the
pension bureau. This part of the section is to be taken in
connection with the taking of illegal fees, which manifestly refers
to cases before the pension office and which are described and
punished in the same sentence and by the same penalty. The word
"bounty" is not used in this sentence, nor the word "pay," but the
argument is that the word "claim" includes them. We think this
would be an unjustifiable extension of a penal statute beyond its
terms and against its purpose.
The first question is therefore to be answered in the negative,
and we need not inquire if the statute was repealed, since the
offense described in the indictment is not within it.
The offenses in this indictment are said to have been committed
in 1868. The law then in existence did not make the act charged a
crime. It is argued by counsel that withholding the money due is a
continuous offense, and if the same money was withheld after the
act of 1873 did make such withholding punishable, the indictment is
good under that act. But without deciding here how far the
withholding the money under a law which made that an offense when
the wrongful withholding began can be held to be a continuous
offense, we are of opinion that it would be a forced construction
of the act to hold that it was intended to apply to a case where
the money had already been withheld five years when the statute was
passed. The
Page 98 U. S. 450
party might very well be criminally wrong in failing to pay when
he received it, but Congress could hardly be supposed to intend to
punish as a crime his failure to pay afterwards what was in law but
a debt created five years before.
This answers the fifth question -- namely "Can the defendant be
punished under sec. 31 of the Act of March 3, 1873?" These answers
also render unnecessary a reply to the others.
It is therefore ordered to be certified to the circuit court
that the first and fifth questions are answered in the negative and
that answers to the others are thereby rendered unnecessary.
So ordered.