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.
Page 73 U. S. 386
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
Page 73 U. S. 387
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,"
&c.
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,"
&c.
Page 73 U. S. 388
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
Page 73 U. S. 389
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.
Page 73 U. S. 391
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This case comes before us upon a certificate of division in
opinion of the judges of the Circuit Court of the United States for
the District of Massachusetts.
As disclosed in the record the case is as follows:
The defendant was indicted for embezzlement. The indictment
Page 73 U. S. 392
contains ten counts. The first three are founded upon the
sixteenth section of the act of August 6, 1846, the remaining seven
upon the third section of the Act of June 14, 1866.
The counts upon the act of 1846 allege 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, are set forth.
The succeeding counts allege 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 are given in the preceding counts.
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 6, 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.
The section referred to in the act of 1846 describes in three
places the persons intended to be brought within its scope. The
language used in that connection is:
"All officers and other persons charged by this act, or any
Page 73 U. S. 393
other act, with the safekeeping, transfer and disbursement of
the public money, are hereby required,"
&c.
"If any officer charged with the disbursement of the public
moneys shall accept or receive,"
&c.
"The provisions of this act shall be so construed as to apply to
all persons charged with the safekeeping, transfer or disbursement
of the public money, whether such persons be indicted as receivers
or depositaries of the same."
Was the defendant an officer or person "charged with the
safekeeping of the public money" within the meaning of the act? We
think he was both.
He was a public officer. The General Appropriation Act of July
23, 1866, [
Footnote 3]
authorized the assistant treasurer, at Boston, with the approbation
of the Secretary of the Treasury, to appoint a specified number of
clerks, who were to receive, respectively, the salaries thereby
prescribed. The indictment avers the appointment of the defendant
in the manner provided in the act.
An office is a public station, or employment, conferred by the
appointment of government. The term embraces the ideas of tenure,
duration, emolument, and duties.
The employment of the defendant was in the public service of the
United States. He was appointed pursuant to law, and his
compensation was fixed by law. Vacating the office of his superior
would not have affected the tenure of his place. His duties were
continuing and permanent, not occasional or temporary. They were to
be such as his superior in office should prescribe.
A government office is different from a government contract. The
latter from its nature is necessarily limited in its duration and
specific in its objects. The terms agreed upon define the rights
and obligations of both parties, and neither may depart from them
without the assent of the other. [
Footnote 4]
The defendant was appointed by the head of a department
Page 73 U. S. 394
within the meaning of the constitutional provision upon the
subject of the appointing power. [
Footnote 5]
The sixth section of the act of 1846, after naming certain
public officers specifically, proceeds:
"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."
This clearly embraces the class of subordinate officers to which
the defendant belonged.
We are also of the opinion that the act prescribes punishment
for the offense with which the defendant is charged.
The first part of the sixteenth section declares, that if any
officer to whom it applies shall convert to his own use, loan,
deposit in bank, or exchange for other funds, except as permitted
by the act, any of the public money entrusted to him, "
every
such act shall be deemed and adjudged to be an embezzlement,"
and is made a felony.
It next enacts that if any officer charged with the disbursement
of public moneys shall take a false voucher, "every such act shall
be a conversion to his own use of the amount specified" in such
voucher.
This clause then follows:
"And any officer or agent of the United States,
and all
persons participating in such act, being convicted thereof
before any court of the United States of competent jurisdiction,
shall be sentenced to imprisonment for a term of not less than six
months nor more than ten years, and to a fine equal to the amount
of the money embezzled."
This clause is to be taken distributively. It applies, and was
clearly intended to apply, to all the acts of embezzlement
specified in the section -- to those relating to moneys, in the
first category, as well as to those relating to vouchers
Page 73 U. S. 395
in the second. The context of the section and the language of
the clause both sustain this view of the subject. If this be not
the proper construction, then the consequence would follow that in
this elaborate section, obviously intended to cover the whole
ground of frauds by receivers, custodians, and disbursers of the
public moneys, of every grade of office, punishment is provided for
only one of the offenses which the act designates. There is no
principle, which, properly applied, requires or would warrant such
a conclusion.
It is urged that the terms used in the sixteenth section to
designate the persons made liable under it, are restrained and
limited to principal officers, by requirements and provisions which
are applicable to them, and are inapplicable to all those holding
subordinate places under them. To this there are several answers.
We think the only effect of these provisions is to operate,
according to their terms, where such higher officers are concerned.
They are without effect as to the subordinates, to whom they are
inapplicable. They do not take offenders of that class out
of the penal and other provisions of the statute, which must be
conceded otherwise to embrace them. The broad language of the
provision in the preceding sixth section, which has been referred
to, is coupled with no qualification whatever, expressed or
implied.
If the subordinates are not within the act, there is no
provision in the laws of the United States for their punishment in
such cases. So far as those laws are concerned, they may commit any
of the crimes specified with impunity. We think it clear that it
was not the intention of Congress to leave an omission so wide and
important in the act, and our minds have been brought
satisfactorily to the conclusion that they have not done so.
We are not unmindful that penal laws are to be construed
strictly. It is said that this rule is almost as old as
construction itself. But whenever invoked it comes attended with
qualifications and other rules no less important. It is by the
light which each contributes that the judgment of the court is to
be made up. The object in construing penal,
Page 73 U. S. 396
as well as other statutes, is to ascertain the legislative
intent. That constitutes the law. If the language be clear it is
conclusive. There can be no construction where there is nothing to
construe. The words must not be narrowed to the exclusion of what
the legislature intended to embrace, but that intention must be
gathered from the words, and they must be such as to leave no room
for a reasonable doubt upon the subject. It must not be defeated by
a forced and over-strict construction. The rule does not exclude
the application of common sense to the terms made use of in the act
in order to avoid an absurdity, which the legislature ought not to
be presumed to have intended. When the words are general and
include various classes of persons, there is no authority which
would justify a court in restricting them to one class and
excluding others, where the purpose of the statute is alike
applicable to all. The proper course in all cases is to adopt that
sense of the words which best harmonizes with the context, and
promotes in the fullest manner the policy and objects of the
legislature. The rule of strict construction is not violated by
permitting the words of the statute to have their full meaning, or
the more extended of two meanings, as the wider popular instead of
the more narrow technical one; but the words should be taken in
such a sense, bent neither one way nor the other, as will best
manifest the legislative intent. [
Footnote 6]
We think we have not transcended these principles in coming to
the conclusions we have announced.
The determination of the second question certified depends upon
the construction of the third section of the act to which it
refers.
That section provides, "that if any banker, broker, or other
person not an authorized depositary of the public moneys," shall do
either of the acts therein specified, every such act shall be held
to be an embezzlement.
Page 73 U. S. 397
The penal sanction with which the section concludes is as
follows:
"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 an
embezzlement of public money, and punished as provided in section
two of this act."
This clause is limited in its terms to the officers named in it.
There is nothing which extends it beyond them. It cannot, by
construction, be made to include any others. It is confined to
officers of banks and banking associations. The defendant is not
brought within the act by the averments contained in the counts of
the indictment, which are founded upon it. They describe him only
as a clerk in the office of the assistant treasurer, at Boston. As
such, the act does not affect him, and the court has no
jurisdiction of the offenses charged. These counts are, therefore,
fatally defective.
The first point certified up will be answered in the affirmative
and the second in the negative.
Answers accordingly.
[
Footnote 1]
9 Stat. at Large 59.
[
Footnote 2]
14 Stat. at Large 65.
[
Footnote 3]
14 Stat. at Large 200.
[
Footnote 4]
United States v. Maurice, 2 Brockenbrough 103;
Jackson v. Healy, 20 Johnson 493;
Vaughn v.
English, 8 Cal. 39;
Sanford v. Boyd, 2 Cranch's C.C.
78;
Ex Parte Smith, id. 693.
[
Footnote 5]
Const., Art. II, § 2.
[
Footnote 6]
United States v.
Wiltberger, 5 Wheat. 96;
Same
v. Morris, 14 Pet. 475;
Same v. Winn, 3
Sumner 211; 1 Bishop's Criminal Law § 123; Bacon's Abridgment tit.
Statute I.
MR. JUSTICE MILLER, dissenting.
MR. JUSTICE GRIER, MR. JUSTICE FIELD, and myself, being unable
to concur with the majority of the court in the answer given to the
first of the questions certified to us, I proceed to state the
reasons for our dissent.
The question is thus stated in the certificate from the circuit
court: is the defendant liable to indictment under the sixteenth
section of the Act of Congress of August 6, 1846?
The statute here referred to is that commonly known as the
Sub-Treasury Act, establishing a system for the safekeeping,
transfer and disbursement of the public moneys. The sixteenth
section commences by providing
"That all officers and other persons charged by this act, or by
any other act, with the safekeeping, transfer and disbursement of
the public moneys, other than those connected with the Post Office
Department, are hereby required to keep an accurate entry of each
sum received, and of each payment or transfer, "
Page 73 U. S. 398
and certain uses of those moneys by such officers are then
defined, each of which shall constitute an act of embezzlement, and
shall be a felony. It is then declared that when any officer shall
pay out other funds than such as he has received, such payment
shall be held to be a conversion to his own use of the amount
specified in the receipt or voucher which he may take at the time.
Then follows this language:
"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 money so
embezzled."
What we have here attempted to state is all contained in a
single sentence, very loosely drawn, leaving it extremely doubtful
whether the punishment prescribed in the words last quoted is
intended to apply to any other act than the conversion mentioned in
the clause just preceding them. There are also other provisions in
the same section which we will notice hereafter, but the first
inquiry that arises is, whether the defendant stands in such
relation to the custody of the public moneys that he is liable to
be punished under this statute.
It is conceded by the Attorney General, we think very properly,
that the act is only applicable to officers or other persons
charged by law with the safekeeping, transfer or disbursement of
the public moneys. It may be also conceded that the defendant's
position as clerk is an office provided for by the statute, the
salary of which is also fixed by a subsequent act of Congress. The
section of the act of 1846, which we are now considering, in
describing the class of persons who may become guilty of
embezzlement, speaks of them as "officers and other persons charged
by this act, or any other act, with the safekeeping, transfer and
disbursement of the public moneys." Admitting that the words
"safekeeping, transfer, and disbursement," are to be taken
distributively, and that one charged with either of those duties
may become liable under the statute, the question
Page 73 U. S. 399
still remains, is a clerk in the office of the assistant
treasurer, charged by this act, or any other act of Congress, with
either of those duties? It is not sufficient that he may, by order
of the assistant treasurer, by whom he is appointed, be placed in
such a position that it is his moral duty to safely keep or to
disburse the public money. If reliance is placed upon the language
just cited, this duty must be imposed on him by some act of
Congress.
This unavoidable construction of the act is not a mere technical
adherence to its verbiage, but is founded in obvious consistency
with the other provisions of the statute.
The clerks in the office of the assistant treasurer are, by the
terms of this act, appointed by him alone, although by an act
passed long since, and which can have no effect on the construction
of this one, the assent of the Secretary of the Treasury is
required. But they still derive their appointment from the
assistant treasurer, and are removable at his pleasure. Their
duties are prescribed by him, and he assigns each clerk to the
performance of such functions as he may think proper. No act of
Congress, nor any other law, confers upon these clerks any power or
control over the public money. If they exercise such control, they
get it from the assistant treasurer alone. They give no bond to the
government, but the assistant treasurer may require them to
indemnify him by bond, as is the rule in many large establishments.
Their direct responsibility is to him.
On the other hand, the assistant treasurer is the person, and
the only person in his office, charged by act of Congress with the
custody or control of the public moneys. The third section of the
act, after describing the buildings, rooms and safes in New York
and Boston, in which the money is to be kept, says 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."
To secure
Page 73 U. S. 400
the performance of the duties thus imposed, sections seven and
eight provide for bonds, with sufficient surety, as often as the
Secretary of the Treasury may require, and in sums as large as he
may deem proper.
The assistant treasurers are not, however, the only officers
charged by the act with the safekeeping, transfer or disbursement
of the public moneys, and we are referred to section six for an
enumeration of the classes of persons thus charged. By that section
it is enacted
"That the Treasurer of the United States, the treasurer of the
mint of the United States, the treasurers and those acting as such
of the various branch mints, all collectors of customs, all
surveyors of customs acting also as collectors, all assistant
treasurers, all receivers of public moneys at the several land
offices, all postmasters, and all public officers of whatever
character, be, and they are hereby, required to keep safely,
without loaning, using, or depositing in banks, or exchanging for
other funds than as allowed by this act, all the public moneys
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."
All the classes of persons here
specifically described
are officers who are charged by some act of Congress with the duty
of collecting, receiving or holding public money. Was the general
phrase, "all public officers of whatever character," intended to
include only other public officers charged by law with the custody
of public money, or was it intended to include any clerk, or other
employee of such officer, who might, by his permission or order,
have the occasional custody of the money under that officer's
supervision or control?
We think the latter would be a loose and unjustifiable
construction, at variance with the spirit of the context, and with
the rules of construing penal statutes. The word public, used here
as qualifying the word officer, is not without significance, as
indicating officers whose duties are fixed by public law and not by
the individual discretion of their employers. Undoubtedly there are
other public officers, not in
Page 73 U. S. 401
the list of those specifically mentioned in this section, who by
law are charged with the collection, holding and paying out of
public moneys. Among those which occur readily to the mind are
marshals, district attorneys, commissaries, quartermasters,
paymasters. Many others of the same class could probably be
enumerated. It seems to us that the phrase is used to include all
such officers. Persons whose duties are prescribed by statute, who
are directly and primarily liable to the government, who give bond
for the safety of the money in their hands, and not to subordinate
clerks whom they may employ.
In fact, looking to the general tenor of the act as well as to
its most minute provisions, we are impressed with the conviction
that they apply exclusively to the legal custodians of the public
money and not to their clerks. In a clause of this sixteenth
section, intended to include in the most sweeping terms all who are
liable to its denunciations, they are described as "all who are
charged with the safekeeping, transfer and disbursement of the
public money, whether such person be indicted as receiver or
depositary." The Treasurers of the United States, the assistant
treasurers, and the treasurers of the mint and branch mints, are by
the act called depositaries. All the other officers so charged are
persons who receive or collect public money, but not being
authorized to hold it, pay over to these depositaries. It is
strongly implied by this section that to be liable to indictment
the person must belong to one or the other of these classes. All
those mentioned in the statute as coming within its provision are
required to keep and transmit to the proper department correct
accounts. A false voucher is made a felony. A Treasury transcript
showing a balance against such officer or agent is made evidence of
money, for which he is liable. A draft on one of them not paid on
presentation is
prima facie evidence of embezzlement. None
of these provisions can apply to clerks, who have no such accounts
with the government, against whom no Treasury balance can be shown,
who have no vouchers to return, and against whom no drafts are ever
drawn.
Page 73 U. S. 402
We think the defendant is not liable to indictment under that
statute.
