United States v. Hartwell/Dissent Miller
Mr. Justice MILLER, dissenting.

Mr. Justice Grier, Mr. Justice Field, and myself, being unable to concur with the majority of the court in the answer given to the first of the questions certified to us, I proceed to state the reasons for our dissent.

The question is thus stated in the certificate from the Circuit Court: Is the defendant liable to indictment under the sixteenth section of the act of Congress of August 6th, 1846?

The statute here referred to is that commonly known as the Sub-Treasury Act, establishing a system for the safe-keeping, transfer and disbursement of the public moneys. The sixteenth section commences by providing, 'that all officers and other persons charged by this act, or by any other act, with the safe-keeping, transfer and disbursement of the public moneys, other than those connected with the Post-office Department, are hereby required to keep an accurate entry of each sum received, and of each payment or transfer,' and certain uses of those moneys by such officers are then defined, each of which shall constitute an act of embezzlement, and shall be a felony. It is then declared that when any officer shall pay out other funds than such as he has received, such payment shall be held to be a conversion to his own use of the amount specified in the receipt or voucher which he may take at the time. Then follows this language: '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 money so embezzled.'

What we have here attempted to state is all contained in a single sentence, very loosely drawn, leaving it extremely doubtful whether the punishment prescribed in the words last quoted is intended to apply to any other act than the conversion mentioned in the clause just preceding them. There are also other provisions in the same section which we will notice hereafter; but the first inquiry that arises is, whether the defendant stands in such relation to the custody of the public moneys that he is liable to be punished under this statute.

It is conceded by the Attorney-General, we think very properly, that the act is only applicable to officers or other persons charged by law with the safe-keeping, transfer or disbursement of the public moneys. It may be also conceded that the defendant's position as clerk is an office provided for by the statute, the salary of which is also fixed by a subsequent act of Congress. The section of the act of 1846, which we are now considering, in describing the class of persons who may become guilty of embezzlement, speaks of them as 'officers and other persons charged by this act, or any other act, with the safe-keeping, transfer and disbursement of the public moneys.' Admitting that the words 'safe-keeping, transfer, and disbursement,' are to be taken distributively, and that one charged with either of those duties may become liable under the statute, the quesi on still remains, Is a clerk in the office of the assistant treasurer, charged by this act, or any other act of Congress, with either of those duties? It is not sufficient that he may, by order of the assistant treasurer, by whom he is appointed, be placed in such a position that it is his moral duty to safely keep or to disburse the public money. If reliance is placed upon the language just cited, this duty must be imposed on him by some act of Congress.

This unavoidable construction of the act is not a mere technical adherence to its verbiage, but is founded in obvious consistency with the other provisions of the statute.

The clerks in the office of the assistant treasurer are, by the terms of this act, appointed by him alone, although by an act passed long since, and which can have no effect on the construction of this one, the assent of the Secretary of the Treasury is required. But they still derive their appointment from the assistant treasurer, and are removable at his pleasure. Their duties are prescribed by him, and he assigns each clerk to the performance of such functions as he may think proper. No act of Congress, nor any other law, confers upon these clerks any power or control over the public money. If they exercise such control, they get it from the assistant treasurer alone. They give no bond to the government, but the assistant treasurer may require them to indemnify him by bond, as is the rule in many large establishments. Their direct responsibility is to him.

On the other hand, the assistant treasurer is the person, and the only person in his office, charged by act of Congress with the custody or control of the public moneys. The third section of the act, after describing the buildings, rooms and safes in New York and Boston, in which the money is to be kept, says 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.' To secure the performance of the duties thus imposed, sections seven and eight provide for bonds, with sufficient surety, as often as the Secretary of the Treasury may require, and in sums as large as he may deem proper.

The assistant treasurers are not, however, the only officers charged by the act with the safe-keeping, transfer or disbursement of the public moneys, and we are referred to section six for an enumeration of the classes of persons thus charged. By that section it is enacted 'that the Treasurer of the United States, the treasurer of the mint of the United States, the treasurers and those acting as such of the various branch mints, all collectors of customs, all surveyors of customs acting also as collectors, all assistant treasurers, all receivers of public moneys at the several land offices, all postmasters, and all public officers of whatever character, be, and they are hereby, required to keep safely, without loaning, using, or depositing in banks, or exchanging for other funds than as allowed by this act, all the public moneys 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.'

All the classes of persons here specifically described are officers who are charged by some act of Congress with the duty of collecting, receiving or holding public money. Was the general phrase, 'all public officers of whatever character,' intended to include only other public officers charged by law with the custody of public money, or was it intended to include any clerk, or other employe of such officer, who might, by his permission or order, have the occasional custody of the money under that officer's supervision or control?

We think the latter would be a o ose and unjustifiable construction, at variance with the spirit of the context, and with the rules of construing penal statutes. The word public, used here as qualifying the word officer, is not without significance, as indicating officers whose duties are fixed by public law and not by the individual discretion of their employers. Undoubtedly there are other public officers, not in the list of those specifically mentioned in this section, who by law are charged with the collection, holding and paying out of public moneys. Among those which occur readily to the mind are marshals, district attorneys, commissaries, quartermasters, paymasters. Many others of the same class could probably be enumerated. It seems to us that the phrase is used to include all such officers. Persons whose duties are prescribed by statute, who are directly and primarily liable to the government, who give bond for the safety of the money in their hands, and not to subordinate clerks whom they may employ.

In fact, looking to the general tenor of the act as well as to its most minute provisions, we are impressed with the conviction that they apply exclusively to the legal custodians of the public money and not to their clerks. In a clause of this sixteenth section, intended to include in the most sweeping terms all who are liable to its denunciations, they are described as 'all who are charged with the safe-keeping, transfer and disbursement of the public money, whether such person be indicted as receiver or depositary.' The Treasurers of the United States, the assistant treasurers, and the treasurers of the mint and branch mints, are by the act called depositaries. All the other officers so charged are persons who receive or collect public money, but not being authorized to hold it, pay over to these depositaries. It is strongly implied by this section that to be liable to indictment the person must belong to one or the other of these classes. All those mentioned in the statute as coming within its provision are required to keep and transmit to the proper department correct accounts. A false voucher is made a felony. A treasury transcript showing a balance against such officer or agent is made evidence of money, for which he is liable. A draft on one of them not paid on presentation is prima facie evidence of embezzlement. None of these provisions can apply to clerks, who have no such accounts with the government, against whom no treasury balance can be shown, who have no vouchers to return, and against whom no drafts are ever drawn.

We think the defendant is not liable to indictment under that statute. 

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