United States v. Hartwell

ON certificate of division in opinion between the judges of the Circuit Court for the District of Massachusetts.

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 6th, 1846, known as the Sub-Treasury Act. 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, safe-keeping, 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 safe-keeping, 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 safe-keeping, 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 any one of the said officers shall loan any portion of the public moneys intrusted to him for safe-keeping, 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 r om 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 3d, 1797; and the provisions of this act shall be so construed as to apply to all persons charged with the safe-keeping, transfer or disbursement of public money, whether such persons be indicted as receivers or depositaries of the same,' &c.

So far as respects the act of 1846, on which the first three counts were founded.

The act of 1866 (June 14th), 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 safe-keeping of the public moneys of the United States, did loan a large amount of said moneys with the safe-keeping whereof he was intrusted 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 23d, 1866, which authorized the assistat treasurer at Boston, with the approbation of the Secretary of the Treasury, to appoint a clerk at a salary of $2500.

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 offence charged in the last seven counts under the third section of the act of June 14th, 1866, of which the court had jurisdiction.

Mr. Stanbery, A. G., and Mr. Ashton, special counsel for the United states:

1. As to the first question certified. No doubt the act of 1846 is applicable to officers alone, or to those charged with safe-keeping, transfer or disbursement of the public moneys. But the clerkship, in this case, is clearly an office. The duties are not temporary, but permanent. The person who fills the place does not act under contract, but under official obligation, and the office remains although the incumbent may die or resign. He does not stand in the relation of a deputy with a tenure of office depending on the principal who appointed him; but he remains in office notwithstanding his principal may retire. It is not possible to hold that such a clerkship is not an office, or that the incumbent is not an officer, unless it be held that he has not been legally clothed with the official duties, that he has not been legally appointed to such office. The statute which provides for the office, authorizes the assistant treasurer to appoint to the office with the approbation of the Secretary of the Treasury.

2. As to the second question. Of course, if such a construction is put upon the third section of the act of June 14th, 1866 (on which the question arises), as limits its operation to bank officers, then the question certified must be answered in the negative. Otherwise, it must be answered in the affirmative. The section is very loosely drawn, and, as to grammatical construction, is subject to criticism. The confusion arises from the awkward introduction of a clause near the end of it. If we read the section without that clause, or read it parenthetically, there will be no confusion. But this is mere verbal criticism. When we inquire what is the intent of this section; whether that intent is merely to punish bank officers, or to punish them and a larger class besides, there can be no difficulty in giving the answer.

Messrs. H. W. Paine and R. M. Morse, contra:

1. Was the defendant an officer or person 'charged with the safe-keeping of the public money' within the intent of the act of 1846? We submit that he was not.

Penal statutes are confessedly to be construed with strictness, and from an examination of all the sections of the statute of 1846, it appears that the assistant treasurer alone is designated as an 'officer,' while watchmen, messengers, clerks and fire-proof safes are classed together among the necessary expenses, which the assistant treasurer, with the approval of the Secretary of the Treasury, is authorized to incur. The defendant was a 'clerk.' No specific duties are imposed upon the clerk; he gives no bond to the government; he is merely a subordinate and assistant to the officer, and performs such service as he directs. The terms of the sixteenth section thus apply to principal officers alone; not to subordinates appointed by them. The cases cited on the other side, if applicable, are mostly nisi prius rulings; no 'authority' with this court. United States v. Hutchinson is directly opposed to them.

2. As to the second question. Is any penalty provided in the act of 1866 for the offence with which the defendant is charged, in the last seven counts of the indictment? We think that there is not, and therefore that the court has no jurisdiction of the case. If, indeed, the act were changed as Mr. Attorney would alter it, parts left out or read parenthetically, the indictment might possibly be sustained. But this court was recently said that it cannot amend or modify any legislative acts. It cannot examine questions as expedient or inexpedient, as politic or impolitic. It is unnecessary to speculate on the reasons which led Congress to omit to affix a penalty to the acts charged upon the defendant. It may have been that they believed that there was some general statute punishment embezzlement, or that it was punishable at common law, and specified the particular penalties in the act for the particularly serious cases of embezzlement therein stated.

Whatever may have been the reason, it is clear upon the well-established principles of construction, that they omitted to affix a penalty.

Mr. Justice SWAYNE delivered the opinion of the court.