First Nat. Bank of Anamoose v. United States

206 F. 374, 46 L.R.A.N.S. 1139, 1913 U.S. App. LEXIS 1549

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 13, 1913
• Docket: No. 3,751
• Status: Published

Opinions

SANBORN, Circuit Judge.

The First National Bank of Anamoose complains that it was convicted and fined under section 239 of the Penal Code upon these conceded facts: One Meyers, a resident of Ana-moose, in North Dakota, ordered a case of beer of the Hamm Brewing Company, a corporation of Minnesota. The Brewing Company accepted the order at St. Paul, shipped the beer thence to Anamoose via the “Soo” Railway Company, and received a bill of lading from' that company under an agreement that the company would not deliver the beer to'Meyers until he presented the bill of lading to its agent at Anamoose. The Brewing Company then attached a sight draft on Meyers for the purchase price of the beer -to the bill of lading, and sent them to the bank at Anamoose, -which agreed with the vendor to collect the draft from Meyers, and to deliver the bill of lading to him so as to enable him to receive the shipment of beer from the Railroad Company, and thereby to complete the sale and delivery of the beer. Section 239 of the Penal Code reads in this way:

“Any railroad company, express company, or other common carrier, or any other person who, in connection with the transportation oí any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one state, territory, or district of the United States, or place noncontiguous to but subject to the jurisdiction thereof, info any other state, territory, or district of the United States, or place noncontiguous to but subject to the jurisdiction thereof, or from any foreign country into any state, territory, or district of the United States, or place noncontiguous to but subject to the jurisdiction thereof, shall collect the purchase price or any part thereof, before, on, or after delivery, from the consignee, or from any other person, or shall in anj manner act as the agent of the buyer or seller of any such liquor, for the purpose of buying or selling or completing the sale thereof, saving only in the actual transportation and delivery of the same, shall be fined not more than five thousand dollars.”

Counsel for the bank contend that the facts of the case did not bring it, or its act, within any of the classes of persons or acts which this statute subjects to fine for collecting the price of liquor. The attorneys for the government, on the other hand, insist that the statute subjects to punishment all persons and all corporations that collect the purchase price of liquor transported in interstate commerce, or that act as agents of vendor or vendee in the buying, or selling thereof, and this interpretation of the law was sustained in an elaborate opinion by the learned judge below which may be found in 190 Fed. 336.

The statute, however, does not read, as it seems as though it naturally would have read if such had been the intention of Congress, that every person who, in connection with the transportation thereof in interstate commerce should collect the purchase price of interstate liquor, or who should act as the agent of the buyer or seller for the purpose of buying, selling, or completing the sale thereof, should be fined thereunder. By the terms it contains it does not embrace within its denunciation' all persons, but expressly limits its condemnation to “any railroad company, express company, or other common carrier, or other person,” who in connection with the interstate transportation collects or acts as agent. And, if the contention of counsel for the government were to prevail, the words “railroad company, express company, or other common carrier, or other” in the law would become futile, and the statute would be made to read “any person who,” etc., in violation of the maxim that “all the words of a law must have effect rather than that part should perish by construction.” City of St. Louis v. Lane, 110 Mo. 254, 258, 19 S. W. 533; Knox Co. v. Morton, 15 C. C. A. 671, 675, 68 Fed. 787, 790; Wrightman v. Boone County, 31 C. C. A. 570, 572, 88 Fed. 435, 437; Paving, etc., Company v. Ward, 28 C. C. A. 667, 674, 85 Fed. 27, 34.

[1] The statute creates and denounces a new offense. A penal statute which creates a new crime and prescribes its punishment must clearly state the persons and acts denounced. A person who, or an act which, is not by the expressed terms of the law clearly within the class of persons, or within the class of acts, it denounces will not sustain a conviction thereunder. One ought not to be punished for a new offense unless he and his act fall plainly within the class of persons or the class of acts condemned by the statute. An act which is not clearly an offense by the expressed will of the legislative department before it was done may not be lawfully or justly made so by construction after it is committed, either by the interpolation of expressions or by the expunging of some of its words by the judiciary. Fx post facto construction is as vicious as ex post facto legislation. “To determine that a case is within the intention of a statute its language must .authorize us to say so. 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 enumérated in the statute because it is of equal atrocity, or of kindred character, with those which are enumerated. The case must be a strong one, indeed, which would justify a court in departing from the plain meaning of words in search, of an intention which the words themselves did not suggest.” United States v. Wiltberger, 18 U. S. (5 Wheat.) 76, 96, 5 L. Ed. 37; United States v. Ninety-Nine Diamonds, 139 Fed. 961, 964, 72 C. C. A. 9, 12, 2 L. R. A. (N. S.) 185, and cáses there cited.

The apparent and natural meaning of the terms of a statute is always to be preferred to any curious or hidden signification reached by the reflection and ingenious reasoning of unusually strong and acute minds. And, unless at .the time this bank was charged with the violation of Ihis statute this act of Congress clearly expressed to a man of ordinary ability and intelligence the meaning that the collection by a bank of a sight draft for the purchase price of liquor that had been transported in interstate commerce and the delivery to the purchaser of the bill of lading therefor attached to the draft subjected that bank to the fine which the statute prescribed, the defendant below ought not to be and must not be punished by this fine. We confess that the first reading of this law did not suggest to our minds that a bank which made such a collection would thereby subject itself to the punishment specified in the act. It is evident that the law failed to suggest such a thought to the mind of Judge Smith, who in writing the opinion of this court in United States Express Company v. Friedman, 191 Fed. 673, 681, 112 C. C. A. 219, spoke of this section 239 as prohibiting “common carriers from collecting the purchase price of liquors on interstate shipments, or from in any way acting as agent of the buyer or seller of such liquors, except in the transportation and delivery of the same,under the penalty of a fine of not over $5,000,” or of Judge Hough who, in his opinion in United States v. Eighty-Seven Barrels, etc., of Wine (D. C.) 180 Fed. 215, 216. said:

“Section 239 renders it criminal for any common carrier transporting or delivering liquor after interstate or international transportation to ‘collect the purchase price or any part thereof,’ or ‘in any manner act as the agent of the buyer or seller of any such liquor, for the purpose of buying or selling or compleiitig the sale thereof, saving only in the actual transportation and delivery of the same.’ ”

In January, 1910, Judge Campbell of the Eastern District of Oklahoma, in a considered opinion, decided that such a collection by a bank did not subject it to the fine imposed by this law. Danciger v. Stone fC. C.) 188 Fed. 510, 512. The Secretary of the Treasury and the Attorney General of the United States, the heads of the executive departments of the government to which the enforcement of this law was intrusted, were of the same opinion. The Attorney --General, speaking of the statute, said:

"The act does not apply to banks, collecting drafts with bill of lading attached, where the shipment is made to a real consignee upon an order sent by Mm and Ailed by shipment from the dealer’s place of business. The collection of a draft for the purchase price of a. commodity in that manner is the usual and ordinary method of carrying on business and is not connected with the transportation of the property within the meaning of the statute under consideration.” 29 Opinions Attorneys General, 58, 62.

Indeed, although this statute was enacted on March 4, 1909, no one except the United States Attorney for North Dakota seems to have discovered that it was intended to subject banks collecting such drafts to punishment by fine, until the opinion of the court below to that effect was formed and expressed in June, 1911. The act for which this bank has been convicted and fined was done on March 15, 1911. If the concession were made that it was the intention of the Congress to include banks among those liable to fines for such acts as that committed by the defendant below, how, in view of these opinions of judges and executive officers, can the conclusion that this intention was not dearly expressed by the statute he escaped? It is only when a penal statute clearly and plainly subjects parties and acts to its denunciation that they may be lawfully punished thereunder. If it is doubtful whether or not it includes them they ought to be and must be exempt from criminal prosecution thereunder. And it is the intention expressed in the statute and that alone to which courts may give effect-. They may'' not' assume bt presume purposes and intentions that the terms used in th'e Statute do -not indicate and then by construction practically enact or expunge provisions to accomplish such supposed intentions. United States v. Ninety-Nine Diamonds, 139 Fed. 961, 964, 72 C. C. A. 9, 12, 2 L. R. A. (N. S.) 185. Conceding that by study, reflection, and ingenious reasoning unusually acute and able minds may discover and convince themselves of a .construction of this statute and an intention of its makers which would include this bank and the collection of the draft with which it is charged in its denunciation, still it is certain that that construction and intention are so curious and recondite that the 'státute failed to express them to the minds of the Secretary of the Treasury, of the Attorney General, and of Judge Campbell after a careful study of the law for the purpose of its official interpretation. It fails to manifest such a meaning and intention to our minds, and we cannot hold that it so clearly or plainly expressed them to bankers, and persons unlearned in the law that they may be lawfully condemned thereunder.

And in our opinion the reason why the Ü ccretary, the Attorney General, Judge Campbell, and the defendant below failed to find in this statute any intention of the Congress, or any expression of any intention to condemn the collection by banks of sight drafts for liquor transported in interstate commerce and the delivery of bills of lading therefor to consignees to enable them to obtain possession of the liquor, is that.they did not exist. The history of the times and of the proceedings in Congress which led up to the enactment of this statute have convinced that the mischief at which it was leveled was not the collection of sight drafts by banks or ordinary collectors for the purchase price of liquors, although bills of lading were attached thereto and delivered upon the collection, and that it was the collection by carriers, or their agents, of the purchase price for C. O. D. shipments of liquor into prohibition states whereby they became virtually the agents of the liquor dealers in ’selling their liquors. This mischief existed only in the statés wherein the manufacture and sale of liquor was prohibited, for it was only in those states that such C. O. D. shipments evaded the spirit .of the state laws. The collection by banks of sight drafts and the delivery of bills of lading attached thereto was, and long had been, a common and universal method of collection of the purchase price of liquors and other articles throughout the entire nation. This is a general law applicable in every state of the Union, and it is incredible that the Congress intended, without mentioning or referring to it in the statute, to strike down this method of collection for the sale of liquors transported in interstate commerce in all the states, in the large majority of which the manufacture and sale of intoxicating liquors were not prohibited.

[2] To our minds the natural and manifest meaning of the declaration in this law that “any railroad company, express company, or other common carrier, or any other person who, in connection with the transportation,” etc., shall collect the purchase price, or act as the agent of the buyer or seller, shall be fined, excludes banks, ordinary colléctors, and all persons who are hot members of the general class of carriers. This interpretation finds support in the fact that the contrary construction expunges the words “railroad company, express company, or other common carrier, or any other,” and makes the statute read “any person who,” etc., and in the rule, which is especially applicable' to statutes defining crimes and regulating their punishment, that where general words follow the enumeration of particular classes of persons or acts the general words should be construed to apply to persons or acts of the same general nature or class as those enumerated. Thus, where a statute imposed a forfeiture for forbidden acts of the goods of any “owner, importer, consignee, agent, or other person,” it was held that the words “other person” did not include a stranger to the goods, but was limited to “some one of the same general class as those described bv the words with which it is associated.” United States v. 1150½ Pounds of Celluloid, 27 C. C. A. 231, 237, 240, 82 Fed. 627, 633, 636; 36 Cyc. 1119, 1120; 2 Lewis’ Sutherland Statutory Construction (2d Ed.) § 422; United States v. Bevans, 3 Wheat. 336, 390, 4 L. Ed. 404; Moore v. American Transportation Co., 24 How. 1, 35, 36, 16 L. Ed. 674; United States v. Chase, 335 U. S. 255, 258, 259, 10 Sup. Ct. 756, 34 L. Ed. 117. It is well said at page 1120, 36 Cyc., that:

“The particular words aré presumed to describe certain species, and the general words to be used for the purpose of including other species of the same genus. The rule is bsisecl on the obvious reason that, if the Legislature had intended the general words to be used in their unrestricted sense, they would have made no mention of the particular classes. The words ‘other’ or "any other’ following an enumeration of particular classes are therefore to bo read as ‘other such like’ and. to include only others of like kind or character.”

[3] This is the interpretation of this act of Congress which was given to it by the Secretary of the Treasury and by the Attorney General, who were charged with the duty of executing it, and it is an established rule of the national courts that the contemporaneous construction given to an act of Congress by those charged with its execution, though not controlling, is entitled to great weight, and should not he disregarded or overturned except for cogent reasons, nor unless it is clear that their construction was wrong. Edward’s Lessee v. Darby, 12 Wheat. 206, 210, 6 L. Ed. 603; United States v. Moore, 95 U. S. 760, 763, 24 L. Ed. 588; United States v. Johnston, 124 U. S. 236, 253, 8 Sup. Ct. 446, 31 L. Ed. 389; United States v. Philbrick, 120 U. S. 52, 59, 7 Sup. Ct. 413, 30 L. Ed. 559; United States v. Hill, 120 U. S. 169, 182, 7 Sup. Ct. 510, 30 L. Ed. 627; Baker v. Swigart, 199 Fed. 865, 873, 118 C. C. A. 313; United States v. Miller (C. C.) 187 Fed. 369, 370; United States v. Newport News Shipbuilding & D. D. Co., 178 Fed. 194, 204, 101 C. C. A. 514, 524.

[4] Because the reasons in support of the construction given to section 239 of the Penal Code by the Secretary and the Attorney General are in our opinion more cogent and persuasive than those against it, because it is not clear that their interpretation was erroneous, but it seems to us to give to this act of Congress its true meaning, because the bank and the act for which it has been fined are not specified in the statute, nor included within the classes of persons or ads denounced by it, nor within other classes of their kind, and because the statute is a new law creating a new offense and prescribing its punishment, and' it-fails plainly or clearly to express any denunciation of the collection by a bank, or any other collector of its class, of a sight draft for the purchase pricé of liquor transported in interstate commerce and the delivery of a bill of lading attached to the draft to the consignee to-enable him to get possession of the liquor, our minds have been forced to the conclusion that the acts charged against the bank in the second cotint of the indictment in this case upon which it was convicted constituted no offense, and that the judgment below must be reversed, with directions to the court below to discharge the bank.

It is so ordered.