United States v. Smith (124 U.S. 525)

The indictment is rounded on section 5490 of the Revised Statutes, which is as follows: 'Every officer or other person charged by any act of congress with the safe-keeping of the public moneys, who fails to safely keep the same, without loaning, using, converting to his own use, depositing in banks, or exchanging for other funds than as specially allowed by law, shall be guilty of embezzlement of the money so loaned, used, converted, deposited, or exchanged; and shall be imprisoned not less than six months, nor more than ten years, and fined in a sum equal to the amount of money so embezzled.'

The law providing for the safe-keeping of the public moneys is found in section 3639 of the Revised Statutes, which is as follows: 'The treasurer of the United States, all assistant treasurers, and those performing the duties of assistant treasurer, all collectors of the customs, all surveyors of the customs, acting also as collectors, all receivers of public moneys at the several land-offices, all postmasters, and all public officers of whatsoever character, are required to keep safely without loaning, using, depositing in banks, or exchanging for other funds than as specially allowed by law, all the 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; and, when such orders for transfer or payment are received, faithfully and promptly to make the same as directed, and to do and perform all other duties as fiscal agents of the government which may be imposed by any law, or by any regulation of the treasury department made in conformity to law. The president is authorized, if in his opinion the interest of the United States requires the same, to regulate and increase the sums for which bonds are or may be required by law, of all district attorneys, collectors of customs, naval officers, and surveyors of customs, navy agents, receivers and registers of public lands, paymasters in the army, commissary general, and by all other officers employed in the disbursement of the public moneys, under the direction of the war or navy departments.'

The law providing for the employment of clerks by collectors of customs is found in section 2634 of the Revised Statutes, which is as follows: 'The secretary of the treasury may, from time to time, except in cases otherwise provided, limit and fix the number and compensation of the clerks to be employed by any collector, naval officer, or surveyor, and may limit and fix the compensation of any deputy of any such collector, naval officer, or surveyor.'

To the indictment the defendant filed a demurrer, and upon its hearing the following questions occurred, upon which the judges were divided in opinion: '(1) Does the indictment sufficiently charge an offense under section 5490, Revised Statutes? (2) Is a clerk in the office of the collector of customs for the collection district of the city of New York, appointed by the collector of customs, with the approbation of the secretary of the treasury, by virtue of section 2634 of the Revised Statutes, a person charged by any act of congress with the safe-keeping of public moneys? (3) Was the defendant appointed by the head of a department, within the meaning of the constitutional provisions, (article 2, § 2,) upon the subject of the appointing power?' Thereupon, on the request of the district attorney, the questions were certified to this court, with a copy of the indictment and an abstract of the record, for final decision.

Jenks, Sol. Gen., for plaintiff.

[Argument of Counsel from pages 527-531 intentionally omitted]

Elihu Root, for defendant.

Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.