ing 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 23, 1866,1 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 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.2 The defendant was appointed by the head of a department within the meaning of the constitutional provision upon the subject of the appointing power.3 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 fnnds 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 offense 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 1 14 Stat. at Large, 200. U. S. v. Maurice, 2 Marsh. 103; Jackson . Healy, 20 Johns. 493; Vaughn v. English, 8 Cal. 39; Sanford v. Boyd, 2 Cr. C. C. 78; Ex parte Smith, Id. 693. 3 Const., art. 2, sec. 2. 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 t' e 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 it is provided for only one of the offenses 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 The words be no construction where there is nothing to construe. 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 harmonize 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.1 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. lic The penal sanction with which the section concludes is as follows: "And any president, cashier, teller, director, or other 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 pubmoney, and punished as provided in section 2 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 can not, 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, 1 United States v. Wiltberger, 5 Wheat. 96; United States v. Morris, 14 Pet. 475; United States v. Winn, 3 Sumn. 211; 1 Bish. and the court has no jurisdiction of the offenses charged. are, therefore, fatally defective. These counts The first point certified up will be answered in the affirmative and the and the second in the negative. Answers accordingly. Justices MILLER, GRIER, and FIELD, dissented from the majority on the answer given to the first question. In the United States District Court, New York, 1870. To Bring into the United States, goods subject to duty without having paid or accounted for the duties is not against the law. It is the secret and clandestine manner in which goods are brought which constitute the gist of offense. HALL, J. The defendant was tried at the present term, and a verdict of guilty was rendered upon one count of the indictment against him. He thereupon moved in arrest of judgment on account of the alleged insufficiency of the count on which he was convicted. This count charged "that the said David H. Thomas, now or late of Niagara, in the county of Niagara, in the State of New York, heretofore, to wit, on the first day of September, in the year of our Lord one thousand eight hundred and sixty-nine, at Niagara, in the county of Niagara, and State of New York, in said district, and within the jurisdiction of this court, did fraudulently, knowingly and unlawfully receive and conceal certain goods, wares and merchandise, to wit: five hundred pounds of nutmegs, after their importation into the United States contrary to law, knowing the same to have been imported contrary to law, in that, that the said goods, wares and merchandise so imported as aforesaid were, at the time the same were so imported into the United States, subject to duty by law, the duties due and payable upon said goods, wares and merchandise not having been paid and accounted for, he, the said David H. Thomas, at the time he so received and concealed the said goods, wares and merchandise as aforesaid, well knowing that the duty due and payable upon said goods, wares and merchandise had not been paid or accounted for, contrary to the statute of the United States of America in such case made and provided, and against the peace of the United States and their dignity." The count was intended to be based upon the fourth section of "An act further to prevent smuggling and for other purposes," approved July 18, 1866, and which provides "that if any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any goods, wares or merchandise contrary to law, or shall receive, conceal, buy, sell or in any manner facilitate the transportation, concealment or sale of such goods, wares or merchandise after their importation, knowing the same to have been imported contrary to law, such goods, wares and merchandise shall be forfeited, and he or she shall, on conviction thereof before any court of competent jurisdiction, be fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not exceeding two years, or both, at the discretion of such court; and in all cases where the possession of such goods shall be shown to be in the defendant or where the defendant shall be shown to have had possession thereof, such possession shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury." It will be seen that the indictment in express terms limits the allegation that the nutmegs mentioned in the indictment were imported and brought into the United States contrary to law, by stating that the same, being subject to duty by law, where so imported and brought into the United States without, the duties due and payable thereon, having been paid or accounted for, at least, that is the substance of what it was intended to allege by the inartificial language used in the indictment. This makes it necessary to consider what is the true construction of the fourth section of the act of 1866, above recited, and whether the allegation made brings the case stated within its provisions. As a general rule, it may be said that it is not contrary to law to import, or bring into the United States, goods subject to duty without having paid or accounted for such duties. In almost every case of importation the goods are not only brought into the United States, but are imported, in the true legal sense of that term as used in the revenue acts, before there is any obligation to account for or make payment of the duties. They are brought into the United States as soon as they are brought into its territory; and the act of their importation is complete when they are voluntarily brought into a port of delivery with intent to unlade them there, and if the goods are subsequently entered, and the other provisions of the law afterwards complied with, and the duties paid, no penalty or forfeiture is incurred. 1 U. S. Stat. at Large, vol. 14, p. 179. 2 U. S. v. Lindsay, 1 Gall. 365. |