# United States v. Hartwell/Opinion of the Court

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* Opinion of the Court
* Dissenting Opinion Miller
United States Supreme Court
73 U.S. 385
United States v. Hartwell
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 6th, 1846, the remaining seven upon the third section of the act of June 14th, 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 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 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.
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 other act, with the safe-keeping, 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 safe-keeping, transfer or disbursement of the public money, whether such persons be indicted as receivers or depoi taries of the same.'
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 23d, 1866, 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.
The defendant was appointed by the head of a department within the meaning of the constitutional provision upon the subject of the appointing power.
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 offence 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 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 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 offences 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, 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.
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.
The penal sanction with which the section concludes is as follows: 'And any president, cashier, teller, director, or othr 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 offences 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.

## Notes

* ↑ 14 Stat. at Large, 200.
* ↑ United States v. Maurice, 2 Brockenbrough, 103; Jackson v. Healy, 20 Johnson, 493; Vaughn v. English, 8 California, 39; Sanford v. Boyd, 2 Cranch's Circuit Court, 78; Ex parte Smith, Id. 693.
* ↑ Const., Art. II, § 2.
* ↑ United States v. Wiltberger, 5 Wheaton, 96; Same v. Morris, 14 Peters, 475; Same v. Winn, 3 Sumner, 211; 1 Bishop's Criminal Law, § 123; Bacon's Abridgment, tit. Statute I.
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