U S v. WEITZEL 246 U.S. 533 (1918)

Mr. Assistant Attorney General Warren, for the United States.[ U S v. Weitzel 246 U.S. 533 (1918) ]

[246 U.S. 533, 540]   Mr. A. E. Stricklett, of Covington, Ky., for defendant in error.

Mr. Justice BRANDEIS delivered the opinion of the Court.

The Comptroller of the Currency is charged with the duty of supervising national banks. When he deems it necessary to take possession of the assets of a bank and assume control of its operations, he appoints a receiver under Revised Statutes, 5234 (Comp. St. 1916, 9821). Weitzel, so appointed receiver, was indicted in the District Court of the United States for the Eastern District of Kentucky under Revised Statutes , 5209 (Comp. St. 1916, 9772), for embezzlement and making false entries. That section does not mention receivers, but provides that 'every president, director, cashier, teller, clerk, or agent' [246 U.S. 533, 541]   of a national bank who commits these offences shall be punished by imprisonment for not less than five nor more than ten years. The government contended that the receiver was an 'agent' within the meaning of the act. A demurrer to the indictment was sustained on the ground that he is not. The court discharged the prisoner and the case comes here under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246 (Comp. St. 1916, 1704).

The receiver, unlike a presid nt, director, cashier, or teller, is an officer, not of the corporation, but of the United States. In re Chetwood, 165 U.S. 443, 458 , 17 S. Sup. Ct. 385. As such he gives to the United States a bond for the faithful discharge of his duties; pays to the Treasurer of the United States moneys collected; and makes to the Comptroller reports of his acts and proceedings. Revised Statutes, 5234. Being an officer of the United States he is represented in court by the United States attorney for the district, subject to the supervision of the Solicitor of the Treasury. Section 380 (Comp. St. 1916, 556); Gibson v. Peters, 150 U.S. 342 , 14 Sup. Ct. 134. And because he is such officer, a receiver has been permitted to sue in the federal court regardless of citizenship or of the amount in controversy. Price v. Abbott ( C. C.) 17 Fed. 506. In a sense he acts on behalf of the bank. The appointment of a receiver does not dissolve the corporation. Chemical National Bank v. Hartford Deposit Co., 161 U.S. 1, 7 , 16 S. Sup. Ct. 439; the assets remain its property, Rosenblatt v. Johnston, 104 U.S. 462 ; the receiver deals with the assets and protects them for whom it may concern, including the stockholders; and his own compensation and expenses are a charge upon them. Section 5238 (Comp. St. 1916, 9825). But a receiver is appointed only when the condition of the bank or its practices makes intervention by the government necessary for the protection of noteholders or other creditors. 1 While the receivership continues the corporation is precluded from [246 U.S. 533, 542]   dealing by its officers or agents in any way with its assets. And when all creditors are satisfied or amply protected the receiver may be discharged by returning the bank to the control of its stockholders or by the appointment of a liquidating agent under Act of June 30, 1876, c. 156, 19 Stat. 63. Whether, as the government assumes, such statutory agent who is elected by the stockholders is included under term 'agent' as used in section 5209, we have no occasion to determine. The question was expressly left undecided in Jewett v. United States, 100 Fed. 832, 840, 41 C. C. A. 88, 53 L. R. A. 568. But the assumption, if correct, would not greatly aid its contention. The law can conceive of an agent appointed by a superior authority; but the term 'agent' is ordinarily used as implying appointment by a principal on whose behalf he acts. The fact that in this section the words 'clerk or agent' follow 'president, director, cashier, teller' tends, under the rule of noscitur a sociis, to confirm the inference. United States v. Salen, 235 U.S. 237, 249 , 35 S. Sup. Ct. 51. Furthermore, the term 'agent of a bank' would ill describe the office of receiver.

Section 5209 is substantially a reenactment of section 52 of the Act of February 25, 1863, c. 58, 12 Stat. 665, 680, the first National Bank Act. It is urged by the government, that the punishment of defalcation by a receiver is clearly within the reason of the statute and that, unless the term 'agent' be construed as including receivers, there was no federal statute under which an embezzling receiver of a national bank could have been prosecuted, at least until the Act of February 3, 1879, c. 42, 20 Stat. 280, (Comp. St. 1916, 10265), made officers of the United States so liable therefor; and, indeed, cannot now be, because he should not be held to be an officer. The argument is not persuasive. Congress may possibly have believed that a different rule should be applied to an officer of the United States who is selected by the Comptroller for a purpose largely different from the performed by officers of the bank, and who gives bond for the [246 U.S. 533, 543]   faithful discharge of his duties. Furthermore a casus omissus is not unusual, particularly in legislation introducing a new system. 2 The fact that in 1879 Congress should have found it necessary to enact a general law for the punishment of officers of the United ates who embezzle property entrusted to them, but not owned by the United States, shows both how easily a casus omissus may arise and how long a time may elapse before the defect is discovered or is remedied. Statutes creating and defining crimes are not to be extended by intendmant because the court thinks the legislature should have made them more comprehensive. Todd v. United States, 158 U.S. 278, 282 , 15 S. Sup. Ct. 889; United States v. Harris, 177 U.S. 305 , 20 Sup. Ct. 609.

The judgment of the District Court is Affirmed.

Footnotes

[ Footnote 1 ] See Revised Statutes, 5234, 5141, 5151, 5191, 5201, 5205, 5208 ( Comp. St. 1916, 9821, 9678, 9746, 9762, 9767, 9770).

[ Footnote 2 ] For example: 1. Extortion by Government 'officers': Act of March 3, 1825, c. 65, 12, 4 Stat. 118 (R. S. 5481 [Comp. St. 1916, 10253]); United States v. Germaine, 99 U.S. 508 ; amended by Act of June 28, 1906, c. 3574, 34 Stat. 546 (Comp. St. 1916, 10253), to include 'clerk, agent, or employe,' and every person assuming to be such offieer, etc. 2. Mailing obscene writings: Act of July 12, 1876, c. 186, 19 Stat. 90 (R. S. 3893 [Comp. St. 1916, 10381]); United States v. Chase, 135 U.S. 255 , 10 Sup. Ct. 756; amended by Act of Sept. 26, 1888, c. 1039, 25 Stat. 496, to include 'letters,' Andrews v. United States, 162 U.S. 420 , 16 Sup. Ct. 798; 3. Intimidating witness: Act of April 20, 1871, c. 22, 2, 17 Stat. 13 (R. S. 5406 [Comp. St. 1916, 10306]); Todd v. United States, 158 U.S. 278 , 15 Sup. Ct. 889; amended by Criminal Code (March 4, 1909, c. 321, 35 Stat. 1113 [Comp. St. 1916, 10306]) 136, to include witnesses before a 'United States commissioner or officer acting as such,' as well as witnesses before 'courts.' 4. Introducing liquor into Indian country: Act of March 15, 1864, c. 33, 13 Stat. 29 (R. S. 2139 [Comp. St. 1916, 4136a]); Sarlls v. United States, 152 U.S. 570 , 14 Sup. Ct. 720; amended by Act of July 23, 1892, c. 234, 27 Stat. 260 (Comp. St. 1916, 4136a), to prohibit the introduction of 'ale, beer, wine, or intoxicating liquor or liquors of whatever kind,' as well as 'ardent spirits.' 5. Perjury: Act of March 3, 1869, c. 130, 15 Stat. 326; Act March 3, 1825, c. 65, 13, 4 Stat. 118 (R. S. 5211 [Comp. St. 1916, 9774]; see also R. S. 5392 [ Comp. St. 1916, 10295]); United States v. Curtis, 107 U.S. 671 , 2 Sup. Ct. 501; amended by Act of Feb. 26, 1881, c. 82, 21 Stat. 352 (Comp. St. 1916, 9775), to include false swearing before a 'notary public' or 'any state officer' properly authorized by the state to administer oaths.