Statement of the Case.

Counsel are in error in supposing that our jurisdiction, under $709 of the Revised Statutes, for the review of a decision of the highest court of a State is dependent at all on the citizenship of the parties. In such cases we look only to the questions involved.

UNITED STATES v. SMITH.

Dismissed.

CERTIFICATE OF DIVISION OF OPINION FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Section 3639 of the Revised Statutes does not apply to clerks of a collector of customs.

Clerks of a collector of customs are not appointed by the head of a department, and are not officers of the United States in the sense of the Constitution.

THE Court stated the case as follows:

This case comes from the Circuit Court for the Southern District of New York, on a certificate of division of opinion between its judges. The defendant was a clerk in the office of the collector of customs for the collection district of the city of New York, and in 1886 was indicted for the unlawful conversion to his own use of public money, an offence designated in the Revised Statutes as embezzlement of such money. The indictment contains seventy-five counts, each charging the defendant with a separate act of embezzlement. The counts were all in the same form, and the objections to one are equally applicable to the whole of them. The first one is as follows:

"The jurors of the United States of America within and for the district and circuit aforesaid, on their oath present that Douglas Smith, late of the city and county of New York, in the district and circuit aforesaid, heretofore, to wit, on the eleventh day of October, in the year of our Lord one thousand eight hundred and eighty-three, at the southern district of New York, and within the jurisdiction of this court, he, the said Douglas Smith, being then and there a person charged by an

Statement of the Case.

act of Congress with the safe keeping of the public moneys, to wit, a clerk in the office of the collector of customs for the collection district of the city of New York, appointed by the collector of customs, with the approbation of the Secretary of the Treasury, and having then and there in his custody a large sum of public money, to wit, the sum of ten and dollars, did unlawfully fail to keep the same, but the same did unlawfully convert to his own use, against the peace of the United States and their dignity, and contrary to the statute of the United States in such cases made and provided."

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The indictment is founded on § 5490 of the Revised Statutes, which is as follows:

"Every officer or other person charged by any act of Congress with the safe-keeping of the public moneys, who fails to safely keep the same, without loaning, using, converting to his own use, depositing in banks, or exchanging for other funds. than as specially allowed by law, shall be guilty of embezzlement of the money so loaned, used, converted, deposited, or exchanged; and shall be imprisoned not less than six months nor more than ten years, and fined in a sum equal to the amount of money so embezzled."

The law providing for the safe-keeping of the public moneys is found in § 3639 of the Revised Statutes, which is as follows: "The Treasurer of the United States, all assistant treasurers, and those performing the duties of assistant treasurer, all collectors of the customs, all surveyors of the customs, acting also as collectors, all receivers of public moneys at the several land offices, all postmasters, and all public officers of whatsoever character, are required to keep safely without loaning, using, depositing in banks, or exchanging for other funds than as specially allowed by law, all the 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; and when such orders for transfer or payment are received, faithfully and promptly to make the same as directed, and to do and perform all other duties as fiscal agents of the Government which may be imposed by any law, or by any regulation

Argument for Plaintiff.

of the Treasury Department made in conformity to law. The President is authorized, if in his opinion the interest of the United States requires the same, to regulate and increase the sums for which bonds are, or may be, required by law, of all district attorneys, collectors of customs, naval officers, and surveyors of customs, navy agents, receivers and registers of public lands, pay-masters in the army, commissary general, and by all other officers employed in the disbursement of the public moneys, under the direction of the War or Navy Departments."

The law providing for the employment of clerks by collectors of customs is found in § 2634 of the Revised Statutes, which is as follows:

"The Secretary of the Treasury may, from time to time, except in cases otherwise provided, limit and fix the number and compensation of the clerks to be employed by any collector, naval officer, or surveyor, and may limit and fix the compensation of any deputy of any such collector, naval officer, or surveyor."

To the indictment the defendant filed a demurrer, and upon its hearing the following questions occurred, upon which the judges were divided in opinion:

"1. Does the indictment sufficiently charge an offence under $5490, Revised Statutes?

"2. Is a clerk in the office of the collector of customs for the collection district of the city of New York, appointed by the collector of customs, with the approbation of the Secretary of the Treasury, by virtue of § 2634 of the Revised Statutes, a person charged by any act of Congress with the safe-keeping of public moneys?

"3. Was the defendant appointed by the head of a department, within the meaning of the constitutional provisions (Art. II, Sec. 2) upon the subject of the appointing power?"

Thereupon, on the request of the District Attorney, the questions were certified to this court, with a copy of the indictment and an abstract of the record, for final decision.

Mr. Solicitor General for the United States.

Argument for Plaintiff.

The second question assumes the clerk was appointed by the collector with the approbation of the Secretary of the Treasury. The legality of such appointment under the Constitution is raised by the next question. The real inquiry involved in this is is such a person as is described in the question charged by any act of Congress with the safe keeping of public money? Section 3639 of the Revised Statutes expressly charges "all public officers of whatsoever character" by declaring they "are required to keep safely all the public money

at any time. placed in their possession." The words "of whatsoever character" are sufficiently comprehensive to embrace any and every officer in the public service. The enumeration in the former part of the section of a number of those who are bonded officers, and whose express duties are to collect and keep public money, does not imply that they only were intended to be the persons liable to the penalties of the section. Such an interpretation would be equivalent to striking out of the section the clause "and all public officers of whatsoever character." It would be doing no less violence to the intent of the section to add to those words a clause "who by law are charged with the collection, holding, and paying out of public money." That these nor any equivalent words are not found in the enactment, when the lawmakers had all the words of the English language at their disposal, is sufficient evidence to the judiciary that such a limitation was not intended. No more apt words could have been selected to include any and every public officer than those used; nor could a more clear charge have been made on any and every such person than that they "are required to keep safely." To narrow the requirements of the statute would clog the transaction of the public business, and unduly burden, without sufficient protection of law, the chief officers charged with the collection, holding, and payment of public moneys.

In the magnitude of the governmental business it is impossible for the Treasurer of the United States to personally carry the funds he is required to disburse to the numerous recipients. of them. His duties are necessarily at his desk, and others under his direction, his clerks, his messengers, and his watch

Argument for Plaintiff.

men, must and do, practically, have the funds placed in their charge. If he were required by law to do all his counting, transmitting, and carrying, the governmental business would be practically stopped. To relieve the public officers under him from the sanction of punishment, in case they convert the money which he must from necessity place in their possession and custody, would subject him to risk without affording him the protection which the law clearly intended he should have. The same difficulties and hardships would, in a greater or less degree, exist with reference to every receiving and disbursing officer of the government.

United States v. Hartwell, 6 Wall. 385, furnishes an affirmative answer by the court to the question under consideration.

.

.

As to the third question, the second section of Article II of the Constitution so far as material is: The President shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of Departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

The indictment alleges, and the demurrer admits, the defendant was a "clerk in the office of the collector of customs for the collection district of the city of New York, appointed by the collector of customs, with the approbation of the Secretary of the Treasury." The constitutional provision above quoted does not prescribe a mode of procedure - it only estab lishes a principle. The mode by which Congress is to execute the principle has not been uniform. Sometimes an office has been established in express terms, but much more frequently the inferior subordinate offices have been established by clauses in the appropriation bills providing for the payment of salaries,

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