which changes said corporation, on the 17th day of January, 1910, was duly notified by the Public Printer.

It is further averred that during all the time covered by the indictment, Major W. P. Zantzinger "was an officer and employee of the United States and of the Postoffice Department thereof, that is to say, was United States postal card agent;" that, under and by virtue of his office and employment as such postal card agent, and the orders issued from time to time by the Third Assistant Postmaster General and by the Postmaster General of the United States, the said Zantzinger "was the agent of the Postmaster General of the Postoffice Department mentioned in said specifications, and, as such agent, was charged with the duty of inspecting, before any postal cards were accepted by the Postoffice Department, the said cards and the paper from which they were made," and that, as such agent, the said Zantzinger was an officer of the United States and a person acting for and on behalf of the United States in an of ficial function, under and by authority of the Postoffice Depart

ment.

It is further averred that said corporation under its contract aforesaid, between the 17th day of January and the 30th day of April, 1910, delivered at the government printing office wareroom large quantities of postal card paper; that said Zantzinger, in the course of the performance of his duties, examined said paper and found and determined that large quantities thereof were below said specifications, and were not equal in quality to the standard fixed upon by the Postmaster General, and that said Zantzinger, in the proper discharge of his said duties, thereupon rejected all paper which he had so found to be below said specifications, and refused to accept, on behalf of the Postoffice Department, any postal cards made therefrom.

It is further averred that on the 2d day of May, 1910, large quantities of postal card paper had been shipped by said corporation to the said Public Printer, and were then at the government printing office in this District, awaiting inspection by said Zantzinger, and that other large quantities of paper would from time to time be shipped by said corporation under its said

D. C.]

Statement of the Case.

contract, from its mill in the State of Ohio, to said Public Printer, which would also be inspected by said Zantzinger as such. postal card agent; and that there was then and there pending and brought by law before, and would thereafter be pending and be brought before, the said Zantzinger, "in his said official capacity as United States postal card agent, for his decision and action," the question whether said postal card paper awaiting inspection, and to be thereafter shipped, conformed in all respects to said specifications and said new standard so fixed upon by the Postmaster General; that said Zantzinger, in so deciding and acting, was a person acting for and on behalf of the United States in an official function, under and by authority of the Postoffice Department of the United States.

It is then averred that on the 2d day of May, 1910, in the District of Columbia, the defendant, Peter G. Thomson, senior, who was then president of said corporation, "and who then and there well knew all and singular the premises in this indictment set forth, unlawfully did offer and give, and cause to be offered and given," to said Zantzinger, he then and there still being an officer of the United States and a person acting for and on behalf of the United States in an official function under and by virtue of said Postoffice Department, the sum of $100 in money, with intent to influence the decision and action of said Zantzinger on the question and matter aforesaid, which question and matter the said Thomson, senior, then well knew was then pending and by law brought before, and would thereafter be pending and brought before, the said Zantzinger, in his official capacity aforesaid, and with intent to induce said Zantzinger to do an act in violation of his lawful duty, etc.

The count closes with the averment that said Thomson, at the time and place aforesaid, and in manner and form aforesaid, "unlawfully did offer and give, and cause to be offered and given, money to an officer of the United States, and to a person acting for and on behalf of the United States," etc.

The second count differs from the first in that it is there averred that the alleged bribe of $100 was inclosed in an envelop and sent to said Zantzinger by said Thomson through

Vol. XXXVII.-30.

the United States mail, said Thomson then and there well knowing all and singular the premises in this count set forth, and thereby intending to influence the decision, etc., of said Zantzinger.

Mr. R. Golden Donaldson, Mr. Wade H. Ellis, and Mr. C. B. Matthews for the appellant.

Mr. Clarence R. Wilson, United States District Attorney, and Mr. J. C. Adkins for the appellee.

Mr. Justice ROBB delivered the opinion of the Court:

Section 39 of the Federal Penal Code, formerly sec. 5451, Rev. Stat. U. S. Comp. Stat. 1901, p. 3680, provides that whoever gives or offers to give any money or other thing of value, "to any officer of the United States or to any person acting for or on behalf of the United States in any official function, under or by authority of any department or office of the government thereof, or to any officer or person acting for or on behalf of either House of Congress or of any committee of either House, or both Houses thereof, with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity or in his place of trust or profit, or with intent to influence him to commit or aid in committing or to collude in, or allow, any fraud or make opportunity for the commission of any fraud, on the United States, or to induce him to do or omit to do any act in violation of his lawful duty," shall be punished as therein specified.

Section 861 of the District Code (31 Stat. at L. 1330, chap. 854) provides for the punishment of any person who gives or offers to give any money or other thing of value, "to any executive, judicial, or other officer, or to any person acting in any official function, or to any juror or witness, with intent to influence the decision, action, verdict, or evidence of any such person on any question, matter, cause, or proceeding, or with in

tent to influence him to commit or aid in committing, or to collude in or allow, any fraud, or make any opportunity for the commission of any fraud."

It is the contention of the government that there is material difference between the provisions of the two sections. The basis of this contention is the omission from the District Code of the words, "or which may by law be brought before him in his official capacity or in his place of trust or profit." It is argued that while, under the Federal Code, the act to influence which the bribe is given must, under the terms of the Code, be some act within the scope of the official duties of the person bribed, it is only necessary under the District Code that the bribe should be given to one who assumes a duty which some official is authorized to perform. We are unable to accept this conten

tion.

The word "function" is defined in the Century Dictionary to mean the fulfilment or discharge of a set duty or require ment; the exercise of a faculty or office; that which one is bound or which is one's business to do; business; office; duty; employment. When, therefore, Congress used the term "official function," it had reference to acts official in character, something within the legal duty of the person performing them. It was well known that the word "officer" has a technical signification, and that many acts or duties of an important nature are legally intrusted to persons not officers at all. It was to cover just such a situation that the term "official function" was used. The logical result of the government's contention is indeed startling. To illustrate: It was somebody's duty to inspect the paper furnished by the defendant's corporation. Under the government's contention, if a person not connected with the government service in any way had assumed to inspect such paper or any consignment thereof, and the defendant, under the mistaken belief that such person really was a government agent or employee, had offered him a bribe, the offense of bribery would have been complete. Such cannot be the law. Before there can be an official function, there must be some duty, some responsibility. Thus, in State v. Butler, 178 Mo. 272, 77 S. W. 560,

the court say: "There is no rule so uniformly adhered to by the courts, both States and Federal, as the one 'that there can be no bribery of any official to do a particular act, unless the law requires or imposes upon him the duty of acting.' See also United States v. Van Leuven, 62 Fed. 62; United States v. Ingham, 97 Fed. 935; United States v. Boyer, 85 Fed. 425; Benson v. United States, 27 App. D. C. 331.

The case of People v. Jackson, 191 N. Y. 293, 15 L.R.A. (N.S.) 1173, 84 N. E. 65, 14 A. & E. Ann. Cas. 243, the government contends, sustains its view. In that case Jackson, as a coroner of the city of New York, had issued a warrant for the arrest of one Alexander upon the charge of homicide, and had thereafter solicited a bribe from Alexander's attorney for dismissal of the case. Jackson was convicted, and an arrest of judgment was sought upon the ground that the indictment was fatally defective because it showed that the death occurred in the State of New Jersey, and that the coroner had never viewed the body. The court sustained the conviction upon the ground that every function the defendant had attempted to discharge belonged to the office which he held; in other words, that the subject-matter was within the general scope of the defendant's jurisdiction, and the question of his jurisdiction in the particular case was one primarily for his determination. The court said: "This case is not like some of those relied upon by the appellant, where there was not only no jurisdiction in the particular case, but there could be none in any case, because the function was foreign to the office, and could not be exercised by the officer under any circumstances." It will be seen that that case is in no way inconsistent with the views we have expressed.

But this indictment avers that Zantzinger was an officer and employee of the United States, that is to say, was United States postal card agent, and that, under and by virtue of his employment as such postal card agent, and the orders issued from time to time by the Third Assistant Postmaster General and by the Postmaster General of the United States, he was the agent of the Postmaster General in the premises, and as such agent was charged with the duty of inspecting the paper furnished by the