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§ 828. Plundering wrecked vessel.— Where an indictment alleges that the defendant did "plunder, steal, take and carry away" money from a stranded vessel, proof of either plundering or stealing is sufficient, as the statute punishing the offense is in the alternative. United States v. Pitman,* 1 Spr., 196. See § 791-795.

§ 829. The word "plunder," as used in the act of congress punishing the plundering of any property from or belonging to any wrecked or stranded vessel, is not limited to forcible taking, but includes fraudulent taking or embezzling. Ibid.

§ 830. "Personal goods."-- Choses in action are not "personal goods," within the meaning of section 16 of the crimes act of 1790, ch. 36, punishing the taking, with intent to steal or purloin, "the personal goods of another," on the high seas, or in any of the places within the sole and exclusive jurisdiction of the United States. United States v. Davis, 5 Mason, 356 (SS 1621-23). See § 796.

X. OFFENSES BY OFFICERS.

[See §§ 611, 612.]

SUMMARY-Who an officer, § 831.- Embezzlement by officers under act of June 14, 1866, § 832.-Surgeon for examination of pensioners not an officer, § 833.— Liability of state officers, § 834.

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§ 831. A clerk in the office of the assistant treasurer of the United States, at Boston, appointed by such assistant treasurer, with the approbation of the secretary of the treasury, as authorized by the general appropriation act of July 23, 1865, is an officer or person charged with the safe keeping of the public money," within the meaning of the sixteenth section of the act of August 6, 1816, and is punishable under that section for loaning the public moneys intrusted to him for safe-keeping. (MILLER, GRIER and FIELD, JJ., dissent.) United States v. Hartwell, SS 835-841. See § 846.

§ 832. The third section of the act of June 14, 1866, providing "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, and concluding with the penal sanction, 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," is confined to officers of banks and banking associations, and does not apply to a clerk in the office of the assistant treasurer, at Boston. Ibid.

§ 833. A surgeon appointed to make periodical examination of pensioners by the commissioner of pensions, under the third section of the act of March 3, 1873 (R. S., sec. 4777), is not an officer of the United States within the meaning of section 12 of the act of 1825, declaring that "every officer of the United States who is guilty of extortion under color of his office shall be punished by a fine of not more than $500, or by imprisonment not more than one year, according to aggravation of the offense." United States v. Germaine, §§ 842, 843. See § 846.

§ 834. If a law of congress, passed as necessary and proper for carrying into effect any constitutional provision, is corruptly violated by any person, even though he be a judicial officer of a state, such person is amenable to prosecution in a United States court for such offenses. A justice of the peace of a state is therefore liable to punishment in a United States court for unlawfully and corruptly endeavoring to influence, obstruct and impede the due administration of justice in a court of the United States by issuing a warrant of arrest for, and sentencing to be whipped and imprisoned, a witness under recognizance in such court. United States v. Kindred, SS 844, 845.

[NOTES. See §§ 846-850.]

UNITED STATES v. HARTWELL.

(6 Wallace, 335-402. 1867.)

CERTIFICATE OF DIVISION from U. S. Circuit Court, District of Massachusetts. STATEMENT OF FACTS.- Hartwell, being a clerk in the office of the assistant treasurer of the United States at Boston, was indicted for embezzlement of public money, the indictment, in numerous counts, being founded on the statute of 1846, and on that of 1866. The court below being divided in opinion, certified two questions: first, whether defendant was liable under the sixteenth

section of the act of 1846 (the Sub-Treasury Act); and, second, whether any offense was charged under the act of 1866 of which the court has jurisdiction. Opinion by MR. JUSTICE SWAYNE.

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 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 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 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 as 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 con nection is: "All officers and other persons charged by this act, or any other act, with the safe-keeping, transfer and disbursement of the public money, are hereby required," etc. "If any officer charged with the disbursement of the public moneys shall accept or receive," etc. "The provisions of this act shall be so construed as to apply to all persons charged with the safe-keeping, transfer or disbursement of the public money, whether such persons be indicted as receivers or depositaries of the same.”

§ 835. A clerk appointed by virtue of an act of congress by an assistant treasurer, with the approval of the secretary of the treasury, is a public officer.

Was the defendant an officer or person "charged with the safe-keeping 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 (14 Stat. at Large, 200), 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.

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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. scribe. § 837.

tract.

They were to be such as his superior in office should pre

distinction between a government office and a government con

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. United States v. Maurice, 2 Marsh., 103; Jackson v. Healy, 20 Johns., 493; Vaughn v. English, & Cal., 39; Sanford v. Boyd, 2 Cr. C. C., 78; Ex parte Smith, id., 693. The defendant was appointed by the head of a department within the meaning of the constitutional provision upon the subject of the appointing power. Const., art. II, § 2.

§ 838. What the sixteenth section of the act of 1846 declares to be an embezzlement and a felony.

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 intrusted 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 publie 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 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, punish

ment 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.

§ 839. The sixteenth section of the act of 1846 applies to subordinate as well as to principal officers.

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.

§ 840. Penal laws to be construed strictly, but reasonably as well.

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, 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. United States v. Wiltberger, 5 Wheat., 96 (§§ 1633-36, infra); United States v. Morris, 14 Pet., 475; United States v. Winn, 3 Sumn., 211 (S$ 381384, supra); 1 Bish. Cr. L., § 123; Bacon's Abr., tit. Statute, I.

We think we have not transcended these principles in coming to the conclusions we have announced.

§ 841. The third section of the act of 1866, June 14 (to regulate, etc.), does not apply to the clerks in the offices of assistant treasurers.

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.

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 2 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.

JUSTICES MILLER, GRIER and FIELD dissented from the majority on the answer given to the first question.

UNITED STATES v. GERMAINE.

(9 Otto, 508-512. 1878.)

CERTIFICATE OF DIVISION from U. S. Circuit Court, District of Maine.
Opinion by MR. JUSTICE MILLER.

STATEMENT OF FACTS.-The defendant was appointed by the commissioner of pensions to act as surgeon, under the act of March 3, 1873, the third section of which is thus stated in the Revised Statutes as section 4777: "That the commissioner of pensions be, and he is hereby, empowered to appoint, at his discretion, civil surgeons to make the periodical examination of pensioners which are or may be required by law, and to examine applicants for pension, where he shall deem an examination by a surgeon appointed by him necessary; and the fee for such examinations, and the requisite certificates thereof in duplicate, including postage on such as are transmitted to pension agents, shall be $2, which shall be paid by the agent for paying pensions in the district within which the pensioner or claimant resides, out of any money appropriated for the payment of pensions, under such regulations as the commissioner of pensions may prescribe."

He was indicted in the district of Maine for extortion in taking fees from pensioners to which he was not entitled. The law under which he was indicted is thus set forth in section 12 of the act of 1825 (4 Stat., 118): "Every officer of the United States who is guilty of extortion under color of his office shall be punished by a fine of not more than $500, or by imprisonment not more than one year, according to the aggravation of his offense."

The indictment being remitted into the circuit court, the judges of that court have certified a division of opinion upon the questions whether such appoint

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