# United States v. Shirey/Concurrence Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Douglas
United States Supreme Court
359 U.S. 255
United States v. Shirey
Argued: Jan. 19, 1959. --- Decided: April 20, 1959
Mr. Justice DOUGLAS, concurring.
The argument that § 214 requires the payment of money or other thing of value be made to the person who is to use his influence 'to procure' an 'appointive office' is not frivolous. The legislative history shows that that was one of the evils against which Congress acted. But I am also convinced that Congress moved against the other evil as well-payment to a political party for the use of 'influence to procure any appointive office.' The abuse in appointing postmasters during the Coolidge administration was the occasion for the law; and then as now (if the allegations in the information are to be believed) payments for those offices sometimes went to the party, sometimes to a politician. As Congressman Stevenson, who later introduced the measure in the House, said in answering a question as to who gets the money paid for 'the appointive office':
'Either it goes into his pocket and the pockets of his machine or it goes into the coffers of the Republican Party. If it does, it is the most blatant defiance of the civil service law that any party has ever had the hardihood to put over, and it is as disgraceful as the Teapot Dome proposition any day.' 65 Cong.Rec. 1410.
The words used in § 214 are broad enough to include both evils.
I have sometimes felt, as my dissents show (see United States v. Classic, 313 U.S. 299, 331, 61 S.Ct. 1031, 1045, 85 L.Ed. 1368; Rosenberg v. United States, 346 U.S. 273, 310, 73 S.Ct. 1152, 1170, 97 L.Ed. 1607; United States v. A & P Trucking Co., 358 U.S. 121, 127, 79 S.Ct. 203, 207, 3 L.Ed.2d 165, that the Court has not always construed a criminal statute so as to resolve doubts in favor of the citizen. But that principle-as highly preferred as any in a government of laws-does no service here. To hold the conduct charged in this information outside the Act is to find ambiguities and doubts not obvious on the face of the legislation, nor justifiably imputed from the legislative history. The inclusion in the original version of § 215 of limiting words can indicate no more than that Congress intended a narrower scope for that section than for § 214. It does not show that § 214 was to be similarly narrowed.
Accordingly I join the opinion of the Court.
Mr. Justice HARLAN, whom Mr. Justice BLACK, Mr. Justice WHITTAKER, and Mr. Justice STEWART join, dissenting.
The Government's primary contention in this case is that an offer to a Congressman to make contributions of money to his political party is an offer of a 'thing of value' to that Congressman within the meaning of 18 U.S.C. § 214, 18 U.S.C.A. § 214. The Court, in ignoring this contention, appears to believe that it is not supportable. The Court holds, however, that the information here involved nevertheless states an offense under § 214 on either of two theories, (1) that the offer alleged is an offer of money to Congressman Stauffer (a theory not even advanced by the Government), or (2) that the Republican Party is a 'person' within the meaning of § 214, and that the offer alleged is an offer of money to that 'person.' In light of the history of § 214, and with proper regard for the principle that an essentially ambiguous criminal statute is to be strictly construed, I cannot agree that this information states an offense under § 214.
Dealing with the Government's principal contention, which the Court bypasses, the information does not charge that Congressman Stauffer would have received any direct, tangible benefit from the payment of money to the Republican Party. The initial problem, therefore, is to decide whether the term 'thing of value' is sufficiently broad to embrace any act which might constitute an inducement to the person to whom the offer to do the act is made. The history of the statute of which § 214 was passed as a part sheds clarifying light on this problem.
Title 18 U.S.C. § 214, 18 U.S.C.A. § 214 was originally enacted as § 1 of a statute (44 Stat. 918) desiged to 'punish the purchase and sale of public offices.' See H.R.Rep. No. 1366, 69th Cong., 1st Sess. Section 2 of that statute read on the 'seller' of influence as opposed to the 'purchaser,' and in the 1948 codification became what is now the first paragraph of 18 U.S.C. § 215, 18 U.S.C.A. § 215. As originally enacted § 2 provided:
'It shall be unlawful to solicit or receive from anyone whatsoever, either as a political contribution, or for personal emolument, any sum of money or thing of value, whatsoever, in consideration of the promise of support, or use of influence, or for the support or influence of the payee, in behalf of the person paying the money, or any other person, in obtaining any appointive office under the Government of the United States.' (Emphasis added.)
I think it plain that this language would not have reached one who solicited, in consideration of the promise of his influence, a general political contribution of money to be paid directly to his party. Under such circumstances the political party would be the 'payee' of the money, but it would be the influence of the solicitor, as opposed to that of the party, which was promised. And although the payment of money to the solicitor's party might well be 'valuable' to him in the sense that it would induce him to exert influence, the use of the word 'payee,' an extremely unconventional term to describe the recipient of indefinite and intangible benefits which might flow from the payment of money to another, shows that it was not contemplated that such an indirect inducement should be considered a 'thing of value' in the statutory sense.
Confirmation for this view is found in a letter of Attorney General Clark written to the Senate on February 19, 1946, in connection with an amendment to 44 Stat. 918 proposed to deal with the solicitation of fees by private employment agencies for referring persons to federal employment openings. In contrasting the language of the proposed amendment with that of § 2 of 44 Stat. 918 the Attorney General was of the opinion that the solicitation provisions of the existing statute reached only the solicitation of political contributions or emoluments 'on behalf of the solicitor himself.'
This proposed amendment was enacted into law in 1951, 65 Stat. 320. Its effect was merely to add to present § 215 what is now the second paragraph of that section. The amendment did not disturb the first paragraph of § 215, which alone is relevant in the 'use of influence' context, and which, as it had formerly stood in 44 Stat. 918, had been construed by the Attorney General as already indicated.
In the 1948 codification the Revisers, in carrying over into § 215 of the preent Code § 2 of 44 Stat. 918, omitted the language which had expressly restricted its scope to a situation where the influence of the 'payee' is promised. But it is apparent that this omission was not intended to work a substantive change in the statute. Under these circumstances the solicitation provisions of present § 215 must be read in the light of their history, and so read they require the conclusion that their impact is restricted to 'the solicitation or receipt of compensation * * * on behalf of the solicitor himself.'
Given this conclusion, I turn once more to § 214, the provision directly involved in this case. The Government has strongly urged, in an effort to avoid the District Court's holding that the specific mention of 'political contribution' in § 215 implied its exclusion from the term 'thing of value' in § 214, that the two sections are plainly reciprocal and must be construed in pari materia. I agree. There is not the slightest indication in the sparse legislative history that Congress intended that the 'purchase' and 'sale' provisions of the statute should have different scope, nor has any reason which would reasonably support a difference in scope been suggested to us. I cannot believe that Congress intended that although a Congressman soliciting the kind of party contribution charged in this information in return for his influence would not be covered under § 215 (as the Court appears to concede is so), nevertheless the individual from whom the contribution was solicited would, by promising to make it, become guilty of a crime against the United States under § 214 (as the Court now holds). For surely Congress could not have been less eager to reach corruption on the part of government officials than attempts by individuals to take advantage of that corruption. It follows that just as the solicitation of political contributions to be paid directly to a party treasury in return for the promise of the solicitor's influence is not interdicted by § 215, the converse of that situation, the offering to a Congressman of a contribution payable directly to his party's treasury, in return for the promise of his influence, is not reached by § 214.
Given these considerations, even if the Court were right in holding that the Conduct here alleged is an offer of money to Congressman Stauffer I would think it wrong in going on to decide that the information states an offense under § 214. Entirely apart from the statutory history, however, I think it a remarkable construction of the language of § 214 to find that an offer to X to pay money to Y, with whom X is not claimed to have any financial relationship, is an offer of money to X. Under these circumstances there is an offer to X, but it is plainly an offer to perform an act (pay money to Y) rather than an offer of money to X. The statute does not say that any offer to a person involving money is rendered criminal if the other statutory criteria are met, but only that an offer of money to a person may be.
My reading of the statute makes it unnecessary to decide whether, as the Government further contends and the Court holds, the Republican Party is a 'person' within the meaning of § 214, although I would have considerable difficulty in holding that what is characterized by the Court as an 'amorphous group of individuals' fits within this term, particularly when Congress saw fit explicitly to add references to 'firm' and 'corporation' to secure the inclusion of these entities. I think that the use of the words 'of the payee' in what is now § 215 merely made explicit what was intended to be implicit in § 214-that the 'influence' sought must be that of the 'person, firm, or corporation' to whom any money or thing of value is promised or paid. And although the information does not charge in terms that it was the influence of Congressman Stauffer, as opposed to that of the Republican Party, which was sought by appellee, it is clear from the brief and argument of the Government in this Court that it stands on the former construction of the information.
It is of course true, as the Government argues, that relatively indirect and subtle inducements may contain the seeds of the same mischief as the crudest bribery. But 'it would be dangerous, indeed, to carry the principle that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated.' United States v. Wiltberger, 5 Wheat. 76, 96, 5 L.Ed. 37. In light of the considerations discussed above it cannot be said that Congress in 18 U.S.C. § 214, 18 U.S.C.A. § 214 has unequivocally seen fit to outlaw conduct of the kind charged in this information. The most that can be said in favor of the Government's position is that the statute is highly ambiguous in the respect involved here, and this in any event should require rejection of the Government's position under principles discussed in Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905. I would affirm.

## Notes

* ↑ See Note 4, infra.
* ↑ The Attorney General wrote: 'Further, under the proposed language, the solicitation or receipt of compensation, either on behalf of the solicitor or another, would be prohibited, whereas the existing law merely prohibits the solicitation or receipt of compensation, either as a political contribution or personal emolument on behalf of the solicitor himself.' (Emphasis added.)
* ↑ That paragraph provides:
* ↑ The relevant portion of 18 U.S.C. § 215, 18 U.S.C.A. § 215, reads:
* ↑ The Reviser's Note refers expressly to other substantive changes made in the section at the time of codification, and appears to class the omission of the 'payee' language under 'changes of style.'
* ↑ See Note 2, supra.
* ↑ That the two provisions are reciprocal is further shown by the fact that the same substantive and stylistic changes were made in both of them in 1948, the Reviser's Note under § 215 merely incorporating that under § 214 by reference.
* ↑ This is not, of course, to suggest that an offer of a 'political contribution' to a Congressman's personal campaign fund in return for his promise of influence would be without the scope of § 214, or that the solicitation of such a contribution would not fall within § 215.
* ↑ All of the cases cited by the Court in this connection involve clearly defined entities-not 'amorphous' groups.
* ↑ It is apparent that the Revisers believed that the omission of the words 'of the payee' in the recodification of 44 Stat. 918 added nothing to the meaning of § 215. See 79 S.Ct. 752, supra.
* ↑ The Court derives support for its holding from various statements concerning official corruption n o ffice selling made on the floor of the House of Representatives some two years before the passage of the bill which is now §§ 214 and 215. Since these statements were directed exclusively to revelations of corruption on the part of sellers of influence and the Court appears to concede that the seller of influence is not covered by § 215 unless he is a 'payee,' it is difficult to see how these statements can be utilized to support a broader reading of § 214.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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