JOSEPH RALPH BURTON, Plff. in Err ^ v.

UNITED STATES.

(See S. C. Reporter’s ed. 344—100.)

Federal power.— The powers of the Fed¬ eral government were not exceeded by the enactment of U. S. Rev. Stat.'§ 1782, U. S. Comp. Stat. 1901, p. 1212, making it a mis¬ demeanor for a United States Senator to receive or agree to receive compensation for services rendered before any department, in relation to any proceeding in which the United States is interested.

partments— authority of Senate over its members — The authority of the Sen¬ ate of the United States over its members is not interfered with by U. S. Rev. Stat. § 1782, making it a misdemeanor for a United States Senator to receive or agree to receive compensation for services ren¬ dered before any department, in relation to any proceeding in which the United States is interested, and declaring that anyone con¬ victed under its provisions shall be incapa¬ ble of holding any office of honor, trust, or profit under the government of the United States.

departments — interference with sen¬ atorial duties.— The discharge, by a Sena¬ tor of the United States, of his legitimate duties, is not interfered with by U. S. Rev. Stat. § 1782, making it a misdemeanor for a United States Senator to receive or agree to receive compensation for services rendered before any department, in relation to any proceeding in which the United States is interested.

tion for crime.— Senators of the United States do not hold their places “under the government of the United States,” within the meaning of the declaration in U. S. Rev. Stat. § 1782, that anyone convicted under its provisions shall he incapable of holding any office of honor, trust, or profit under that government.

fore a department. — A fraud order in¬ quiry pending before the Postoffice Depart¬ ment is a proceeding in which the United States, although having no direct money or pecuniary interest in the result, is “directly

Note. — On the separation of the departments of government — see notes to Titusville Iron Works v. Keystone Oil Co. 1 L.R.A. 361 ; Flem¬ ing v. Guthrie, 3 L.R.A. 53 ; King v. State, 3 L.R.A. 210 ; and State ex rel. Jameson v. Denny, 4 L.R.A. 79.

On former jeopardy — see notes to Com. v. Fitzpatrick, 1 L.R.A. 451 ; Altenburg v. Com. 4 L.R.A. 543 ; Ex parte Lange, 21 L. ed. U. S. 872 ; United States v. Perez, 6 L. ed/ U. S. 165 ; and Silsby v. Foote, 14 L. ed. U. S. 394.

On acceptance of contract by letter or tele¬ gram — see note to Eliason v. Henshaw. 4 L ed. U. S. 556.

As to the proper Federal district for suit _

see note to Roberts v. Lewis. 36 L. ed. U. S

1057

Supreme Court of the United States.

Oct. Term,

or Indirectly Interested” within the meaning of U. S. Rev. Stat. § 1782, making It a misdemeanor for a United States Senator to receive or agree to receive compensation for services rendered before any department, iu relation to any proceeding in which the United States is so interested.

not entitled to demand that all special or particular means employed In the commis¬ sion of the offense should be more fully set out in the indictment, where the words of such indictment directly, and without ambi¬ guity, disclose all the elements essential to the commission of the offense charged.

case.— If there Is sufficient evidence to go to the jury in a criminal case, the Supreme Court of the United States will not weigh the facts and determine the guilt or inno¬ cence of the accused by a mere preponder¬ ance of evidence, hut will limit its decision to questions of law.

fore department. — The agreement to re¬ ceive, and the receipt of, the forbidden com¬ pensation, are made two separate and dis¬ tinct offenses by U. S. Rev. Stat. § 1782, making it a misdemeanor for a United States Senator to receive or agree to receive com¬ pensation for services rendered before any department, in relation to any proceeding in which the United States is interested.

acquittal upon the charge of having received the compensation forbidden by U. S. Rev. Stat. § 1782, from a specified person, de¬ scribed in the indictment as an officer and employee of a corporation, will not sus¬ tain a plea in bar of a prosecution upon the charge of having received such compensa¬ tion from the corporation, where the ac¬ cused declined to plead further after his de¬ murrer to the answer, alleging that the two offenses are not, in legal effect, identical, was overruled.

mail or telegram. — A contract is to he deemed concluded when the offer is accept¬ ed within a reasonable time, either by tele¬ gram, duly sent in the ordinary way, or by ietter, duly posted to the proposer, pro¬ vided either be done before the offer is with¬ drawn to the knowledge of, or upon notice to, the other party.

al absence of the accused from the state of Missouri when the acceptance by a St. Louis corporation of his offer to render services in consideration of the compensa¬ tion forbidden by U. S. Rev. Stat. § 1782, was despatched by mail or telegram, does not deprive the circuit court of the United States for the eastern district of Missouri of juris¬ diction of the offense, on the theory that the crime was not committed in that dis¬ trict, within the meaning of U. S. Const, art. 3, § 2, and 6th Amend., requiring the trial of all crimes against the United States to be held in the state and district where such crimes shall have been committed.

[No. 539.]

1058

Argued April 8, 4, 1906. Decided May 21

TN ERROR to the Circuit Court of the -*- United States for the Eastern District of Missouri to review a conviction of a vio¬ lation of U. S. Rev. Stat. § 1782, making it a misdemeanor for a United States Senator to receive or agree to receive compensation for services rendered before any department, in relation to any proceeding in which the United States is interested. Affirmed.

The facts are stated in the opinion. Messrs. Jolin F. Dillon and F. W. Lehmann argued the cause, and, with Messrs. Harry Hubbard, W. H. Rossington, and W. Knox Haynes, filed a brief for plain¬ tiff in error:

The United States was not a party to, nor interested in, the proceedings set forth in the indictment.

Northampton v. Smith, 11 Met. 390; Mc¬ Grath v. People, 100 Ill. 464; Evans v. Eaton, 7 Wheat. 356, 5 L. ed. 472; State v. Sutton, 74 Vt. 12, 52 Atl. 116; Foreman v. Marianna, 43 Ark. 324; Taylor v. Highway Comrs. 88 Ill. 526; Chicago, B. & Q. R. Co. v. Kellogg, 54 Neb. 138, 74 N. W. 403; Sauls v. Freeman, 24 Fla. 209, 12 Am. St. Rep. 190, 4 So. 525; Bowman’s Case, 67 Mo. 146; United States v. Wiltberger, 5 Wheat. 76, 5 L. ed. 37 ; United States v. Sheldon, 2 Wheat. 119, 4 L. ed. 199; United States v. Morris, 14 Pet. 464, 10 L. ed. 543; United States v. Clayton, 2 Dill. 219, Fed. Cas No 14,814.

The indictment states no facts showing the pendency of any proceeding in the Postal Department.

United States v. Hess, 124 U. S. 483, 31 L. ed. 516, 8 Sup. Ct. Rep. 571; Post v. United States, 161 U. S. 583, 40 L. ed. 816, 16 Sup. Ct. Rep. 611; Virginia v. Paul, 148 U. S. 107, 37 L. ed. 386, 13 Sup. Ct. Rep. 536; American School of Magnetic Healing v. McAnnulty, 102 Fed. 565; Dauphin v. Key, MacArth. & M. 203; Enterprise Sav. Asso. v. Zumstein, 64 Fed. 837, Affirmed in 15 C. C. A. 153, 37 U. S. App. 71, 67 Fed. 1000; Bates & G. Co. v. Payne, 194 U. S. 106, 48 L. ed. 894, 24 Sup. Ct. Rep. 595; Public Clearing House v. Coyne, 194 U. S. 497, 48 L. ed. 1092, 24 Sup. Ct. Rep. 789; United States v. Ju Toy, 198 U S. 253, 49 L. ed. 1040, 25 Sup. Ct. Rep. 644; United States v. Eaton, 144 U. S. 677, 36 L. ed. 591, 12 Sup. Ct. Rep. 764; Caha v. United States, 152 U. S. 211, 38 L. ed. 415, 14 Sup. Ct. Rep. 513.

The plea of former acquittal as to tht offense charged in the third and seventh counts of the indictment showed a former indictment and trial for and acquittal of the offense, and this plea was not avoided by

202 U. S

Bubton v. United States.

the replication, and the demurrer to the replication should have been sustained. Placing the defendant on trial again for the offense alleged was in violation of the 6 th article of Amendment to the Federal Constitution.

Baldwin v. Bank of Newbury, 1 Wall. 234, 17 L. ed. 534; Mechanics’ Bank v. Bank of Columbia, 5 Wheat. 326, 5 L. ed. 100; Ford v. Williams, 21 How. 289, 16 L. ed. 38; New Jersey Steam Nav. Co. v. Mer¬ chants’ Bank, 6 How. 381, 12 L. ed. 481; Commercial Bank v. French, 21 Pick. 486, 32 Am. Dee. 280; Dug cm v. United States, 3 Wheat. 172, 4 L. ed. 362; State v. Cooper, 13 N. J. L. 361, 25 Am. Dec. 490; Hurst v. State, 86 Ala. 604, 11 Am. St. Rep. 79, 6 So. 120; Cooley, Const. Lim. 7th ed. p. 470; People v. M’Gowan, 17 Wend. 386; Monroe v. State, 111 Ala. 15, 20 So. 634; United States v. Lee, 4 Cranch, C. C. 446, Fed. Cas. No. 15,586; United States v. Ball, 163 U. S. 662, 41 L. ed. 300, 16 Sup. Ct. Rep. 1192; United States v. Nickerson, 17 How. 204, 15 L. ed. 219; Mitchell v. State, 42 Ohio St. 384; Campbell v. State, 9 Yerg. 333, 30 Am. Dec. 417; State v. Martin, 30 Wis. 216, 11 Am. Rep. 567; Stuart v. Com . 28 Gratt. 950; Ouenther v. People, 24 N. Y-. 100; Morris v. State, 8 Smedes & M. 762; State v. Kattlemann, 35 Mo. 105; State v. Kittle, 2 Tyler (Vt.) 471; Dealy v. United States, 152 U. S. 539, 38 L. ed. 545, 14 Sup. Ct. Rep. 680.

There was no evidence to go to the jury that Burton made any agreement to receive compensation for services to prevent the is¬ suance of a fraud order. Therefore the court erred in submitting to the jury the question whether Burton made such agree¬ ment.

Whatever the agreement was which Bur¬ ton made to receive compensation from the Rialto Grain & Securities Company for services, such agreement was not made in the state of Missouri, and the defendant was deprived of his constitutional right to be tried in the state and district where the agreement was made, contrary to § 2, article 3, of the Constitution and of the 6th Amend¬ ment thereof.

Tayloe v. Merchants’ F. Ins. Co. 9 How. 390, 13 L. ed. 187; Patrick v. Bowman, 149 U. S. 411, 37 L. ed. 790, 13 Sup. Ct. Rep. 811, 866; 12 Enc. PI. & Pr. pp. 239, 240; Re Burr, 4 Cranch, 470, 2 L. ed. 684; Re Palliscr ( Palliser v. United States) 13G U. S. 257, 34 L. ed. 514, 10 Sup. Ct. Rep. 1034; Homer v. United States, 143 U. S. 2'12, 36 L. ed. 129, 12 Sup. Ct. Rep. 407 ; Landa v. State, 26 Tex. App. 580, 10 S. W. 218; United States v. Fpwlces, 3 C. C. A.

States v. Dietrich, 126 Fed. 664; Eliason v. 202 U. S.

Henshaw, 4 Wheat. 225, 4 L. ed. 556; First Nat. Bank v. Hall, 101 U. S. 43, 25 L. ed. 822; Minneapolis & St. L. R. Co. v. Colum¬ bus Rolling Mill, 119 U. S. 151, 30 L. ed. 377, 7 Sup. Ct. Rep. 168; Chitty, Contr. Uth Am. ed. 15, note f; Christian d C. Grocery Co. v. Bienville Water Supply Co. 106 Ala. 124, 17 So. 352; Tennessee Coal, Iron, d R. Co. v. Pierce, 26 C. C. A. 632, 52 U. S. App. 355, 81 Fed. 814; Seits v. Brewers’ Refrigerating Mach. Co. 141 U. S. 510, 35 L. ed. 837, 12 Sup. Ct. Rep. 46.

The agreement of the defendant with the Rialto company was for service by the month, and, no service in the department having been rendered during the period cov¬ ered by the payment made March 26th, there was no offense in the receipt of that pay¬ ment.

Davis v. Preston, 6 Ala. 83; Matthews v. Jenkins, 80 Va. 463; La Coursier v. Rus¬ sell, 82 Wis. 265, 52 N. W. 176; Benedict v. United States, 176 U. S. 357, 44 L. ed. 503, 20 Sup. Ct. Rep. 458; Re Nielsen, 131 U. S. 188, 33 L. ed. 122, 9 Sup. Ct. Rep.

The defendant was not subject to trial and punishment as for separate offenses in agreeing to receive and receiving compensa¬ tion for the services charged in the indict¬ ment to have been rendered by him.

2 Bishop, New Crim. Proc. § 55; 1 Bishop, New Crim. Proc. § 436; State v. Jones, 106 Mo. 302, 17 S. W. 366.

The juror, William V. Jones, was dis¬ qualified because he had formed and still re¬ tained an opinion as to the guilt or in¬ nocence of the defendant, an opinion which was the result of reading the reports of the former trial, which reports he believed to be true; and the challenge to him should have been sustained.

Leicis v. United States, 146 U. S. 370, 36 L. ed. 1011, 13 Sup. Ct. Rep. 136; Williams v. United States, 35 C. C. A. 369, 93 Fed.

the letters of Houts, Evans, Warner, and Fravel, and the accompanying circulars and booklets, all of which were read in full, to the jury, were incompetent and irrelevant as against the defendant, as he had no knowledge of them whatever, and their con¬ tents were not necessary to show the fact that some matter was pending in the depart¬ ment against the Rialto Grain & Securities Company.

Tappan v. Beardsley, 10 Wall. 427, 19 L. ed. 947.

Mr. B. P. Waggener also argued the cause, and, with Messrs. John F. Dillon, Harry Hubbard, F. IF. Lehmann, W. H. Rossington, IF. Knox Haynes, and W. P. Hackney, filed a brief for plaintiff in error:

The act of 1864, now Rev. Stat. § 1782,

1059

Supreme Court oj- ~ue United States.

Oct. Term,

U. S. Comp. Stat. 1901, p. 1212, is in con¬ flict with the fundamental idea on which our whole Federal government is founded, viz. : That the Federal government is a gov¬ ernment of limited powers, with duties de¬ fined and restrictions imposed, and no au¬ thority is lodged anywhere to change those duties or restrictions, except the power re¬ served by the people.

Cooley, Const. Lim. 7th ed. 11; Martin v. Hunter, 1 Wheat. 304, 4 L. ed. 97 ; Able- man v. Booth, 21 How. 519, 16 L. ed. 174; Ex parte Virginia, 100 U. S. 361, 25 L. ed. 684; Kilboum v. Thompson, 103 U. S. 182, 26 L. ed. 383.

By the Constitution, there has been dele¬ gated express power to each House to pun¬ ish its own members in such manner as, in its wisdom, is just and proper, and, by “the concurrence of two thirds, to expel a mem¬ ber.”

Kilboum v. Thompson, supra; 1 Story, Const. 4th ed., 589.

When the Constitution defines the circum¬ stances under which a right may be exer¬ cised or a penalty imposed, the specifica¬ tion is an implied prohibition against leg¬ islative interference to add to the condition, or to extend the penalty to other cases.

Louie v. Com. 3 Met. (Ky.) 241; Falloon v. Clark, 61 Kan. 127, 58 Pac. 990; Brown v. Grover, 6 Bush, 3; Thomas v. Owens, 4 Md. 190; Com. v. Williams, 79 Ky. 42, 42 Am. Rep. 204; Sheehan v. Scott, 145 Cal. 684, 79 Pac. 350; Rison v. Farr, 24 Ark. 161, 87 Am. Dec. 52; State ex rel. Allison v. Blake, 57 N. J. L. 8, 25 L.R.A. 480, 29 Atl. 417; State ex rel. Kimball v. Hendee, 57 N. J. L. 307, 30 Atl. 894; Cooley, Const. Law, 5th ed. 753; Cooley, Const. Lim. 7th ed. p. 99.

A right conferred by the Constitution is beyond the reach of legislative interference. If it were not so, there would be nothing stable ; there would be no security for any right. It is in the nature of a constitutional grant of power or privileges that it cannot be taken away by any authority known to government. It involves a prohibition of interference with it.

McCafferty v. Guyer, 59 Pa. 109.

No legislation is appropriate which would conflict with the implied prohibitions upon Congress. They are as obligatory as the ex¬ press prohibitions.

Ex parte Virginia, supra.

The jurisdiction of each House to decide upon the election returns and qualifications of its own members is supreme and exclu¬ sive.

1 Story, Const. § 833, p. 584; 1 Kent, Com. 235; People ex rel. Hatzel v. Hall, 80 N. Y. 121; State v. Gilmore, 20 Kan. 551, 27 Am. Rep. 189; State ex rel. Atty.

1060

Gen. v. Tomlinson, 20 Kan. 703; Robertson v. State, 109 Ind. 92, 10 N. E. 582, 643; State ex rel. Brooks v. Baxter, 28 Ark. 129; People ex rel. Drake v, Mahaney, 13 Mich. 482 ; Dalton v. State, 43 Ohio St. 68^0, 3 N. E. 685.

Whenever a question arises concerning the constitutionality of a particular power, the first question is whether the power is ex¬ pressed in the Constitution. If it is, the question is decided. If it is not expressed, the next inquiry must be whether it is prop¬ erly an incident to an express power, and necessary to its execution. If it is, then it may be exercised by Congress. If not, Con¬ gress cannot exercise it.

United States v. Harris, 106 U. S. 636, 27 L. ed. 292, 1 Sup. Ct. Rep. 601.

The sovereignty to be created was to be limited in its powers of legislation, and, if it passed a law not authorized by its enu¬ merated powers, it was not to be regarded as the supreme law of the la'nd; nor were the state judges bound to carry it into effect.

Ableman v. Booth, 21 How. 519, 16 L. ed. 174.

A state has no voice whatever, under the Constitution, in prescribing the qualifica¬ tions of a Senator.

Re Trumbull, Taft, Elec. Cas. 228; Re Ames, Taft, Elec. Cas. 375.

If a Senator is not an officer of the United States, in the sense of the Constitution, clearly he may not be coerced, or punished for his refusal to obey the requirements of an act of Congress relative to the discharge of bis duties as United States Senator.

United States v. Germaine, 99 U. S. 510, 25 L. ed. 483; United States v. Mouat, 124 U. S. 307, 31 L. ed. 464, 8 Sup. Ct. Rep. 505; United States v. Smith, 124 U. S. 532, 31- L. ed. 536, 8 Sup. Ct. Rep. 595; Re Green (Fitzgerald v. Green) 134 U. S. 377, 33 L. ed. 951, 10 Sup. Ct. Rep. 586; Mc¬ Pherson v. Blacker, 146 U. S. 35, 36, 36 L. ed. 877, 8(8, 13 Sup. Ct. Rep. 3; Kentucky v. Dennison, 24 How. 107, 16 L. ed. 729.

Each House” has the power to summon witnesses, and the same power as the courts to enforce its mandates, and may determine for itself the same question which Congress, by the act of 1864, has attempted ^dele¬ gate to the judiciary to determine.

Re Chapman, 166 U. S. 661, 41 L. ed. 1154, 17 Sup. Ct. Rep. 677.

The Senate necessarily possesses the in¬ herent power of self-protection.

Id., 166 U. S. 668, 669, 41 L. ed. 1158, 1159, 17 Sup. Ct. Rep. 677.

Where the means for the exercise of a granted power are given, no other or dif¬ ferent means can be implied, as being more effectual or convenient.

Cooley, Const. Lim. 7th ed. 98.

202 V. S.

Bubton v. United States.

Congress has no constitutional power, by legislation, to place any limitations or re¬ strictions upon his official conduct as Sena¬ tor, and make, by force of the statute, such conduct a crime which would not be a crime if he were not a Senator.

1 The Federalist, p. 357, No. 44; p. 273, No. 48.

The nature of the employed power exer¬ cised as a means must be legitimate; in other words, no power will be employed as a means to an end which is not legitimate, — that is, not within the powers granted by the Constitution. The ancillary legislation must be a necessary and proper means to accomplish an end which is clearly constitu¬ tional.

1 tucker, Const. P. 368; M’Culloch v. Maryland, 4 Wheat. 316, 4 L. ed. 579.

The express power conferred excludes the idea of any implied power not necessary and proper for carrying into execution the ex¬ press power.

Anderson v. Dunn, 6 Wheat. 233, 5 L. ed.

While the act does not in terms provide for forfeiture of office, or expulsion, it re¬ quires a judgment, upon conviction, that the person convicted shall be “rendered forever hereafter incapable of holding any office of honor, profit, or trust under the government of the United States.” The effect of the judgment, if the act is valid, is to expel the Senator from the Senate.

Lowe v. Com.. 3 Met. (Kv. ) 241.

Assistant Attorney General Robb argued the cause and filed a brief for defendant in error :

The effect of granting a new trial is to nullify entirely the proceedings at the for¬ mer trial.

Trono v. United States, 199 U. S. 521, ante, 292, 26 Sup. Ct. Rep. 121.

When acceptance of a proposal is made by letter or telegram, the contract is complete the moment the letter is mailed or the tele¬ gram despatched, the lex loci contractus be¬ ing the place where the letter or telegram is mailed or despatched.

Tayloe v. Merchants’ F. Ins. Co. 9 How. 390, 13 L. ed. 187; Patrick v. Bowman, 149 U. S. 424, 37 L. ed. 794, 13 Sup. Ct. Rep. 811, 866; Garrettson v. Forth Atchison Bank, 47 Fed. 867; Phenix Ins. Co. v. Schultz, 25 C. C. A. 453, 42 U. S. App. 483, 80 Fed. 343; Hammond, Contr. § 42, note

The charge of the court set the entire case, as presented by the evidence, fairly and sub¬ stantially before the jury. This was suf¬ ficient.

Chicago & N. W. R. Co. v. Whitton, 13 Wall. 270, 290, 20 L. ed. 571, 578; Tweed’s

202 U. S.

Case ( Flanders v. Tweed) 16 Wall. 516, 21 L. ed. 392.

Those only are officers of the United States in a constitutional sense, and in the sense in which those words are employed in the statutes, who hold their places by vir¬ tue of an appointment by the President, or a court of law, or the head of a depart¬ ment.

United States v. Germaine , 99 U. S. 508, 25 L. ed. 482; United States v. Mouat, 124 U. S. 307, 31 L. ed. 464, 8 Sup. Ct. Rep. 505; United States v. Smith, 124 U. S. 532, 31 L. ed. 536, 8 Sup. Ct. Rep. 595; 17 Ops. Atty. Gen. 419.

The agreement to receive and the receipt of compensation for the alleged services con¬ stituted two offenses.

Clune v. United States, 159 U. S. 590, 595, 40 L. ed. 269, 271, 16 Sup. Ct. Rep. 125; United States v. Rindskopf, 6 Biss. 259, Fed. Cas. No. 16,165.

The plenary authority of Congress to pro¬ tect the Executive Department was asserted in Public Clearing House v. Coyne, 194 U. S. 497, 48 L. ed. 1092, 24 Sup. Ct. Rep. 789, where it was held that, in case of con¬ flict, the rights of the individual must give way to the rights of the public.

The evident purpose of Congress in all this class of legislation has been to pro¬ mote efficiency and integrity in the dis¬ charge of official duties, and to maintain proper discipline in the public service. Clearly such a purpose is within the scope of legislative power.

Ex parte Curtis, 106 U. S. 371. 373, 27 L. ed. 232, 234, 1 Sup. Ct. Rep. 381.

In United States v. Newton, 9 Mackey, 226, the supreme court of the District of Columbia held that § 12 of the civil service act, which prohibits persons from solicit¬ ing or receiving political contributions in any room or building officially occupied by any United States officer or employee, etc., ap¬ plied to private citizens as well as officials, and was not an unconstitutional abridg¬ ment of the citizen’s right of speech and action; the government having a right to prescribe rules of conduct, not only for of¬ ficers and employees, but for all persons visiting such places.

Unless Congress can define and punish of¬ fenses committed by Senators and Repre¬ sentatives in their official capacity, the gov¬ ernment is absolutely at the mercy of cor¬ rupt members, for no other body can. That Congress can do so arises from the fact that all legislative power conferred upon the Fed¬ eral government is vested in it. From the foundation of the government this has been held to include the power to enact penal legislation, such legislation being necessary

1061

358-360

Supreme Court of the United States.

Out. Term,

and proper to carry into execution the pow¬ ers delegated.

United States v. Coombs, 12 Pet. 72, 9 L. ed. 1004 ; United States v. Fox, 95 U. S. 670, 24 L. ed. 538; Frisbie v. United States, 157 U. S. 166, 39 L. ed. 659, 15 Sup. Ct. Rep. 586.

Mr. Justice Harlan delivered the opinion of the court:

This criminal prosecution is founded upon the following sections of the Revised Stat¬ utes:

“Sec. 3929 (U. S. Comp. Stat. 1901, p. 2686). The Postmaster General may, upon evidence satisfactory to him that any person or company is engaged in conducting any lottery, gift enterprise, or scheme for the distribution of money, or of any real or personal property by lot, chance, or drawing of any kind, or tnat any person or company is conducting any other scheme or device for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promises, instruct postmasters at any post office at which registered letters arrive di¬ rected to any such person or company, . . . whether such agent or representa¬

tive is acting as an individual or as a firm, bank, corporation, or association of any [359]kind, to return all such ‘registered letters to the postmaster at the office at which they were originally mailed with the word ‘fraudulent’ plainly written or stamped up¬ on the outside thereof; and all such letters so returned to such postmasters shall be by them returned to the writers thereof, under such regulations as the Postmaster General may prescribe. ...” By the act of March 2d, 1895, chap. 191, this section was extended and made applicable to all letters or other matter sent by mail.” 28 Stat. at L. 963, 964, U. S. Comp. Stat. 1901, pp. 3178, 2688.

“Sec. 4041. The Postmaster General may, upon evidence satisfactory to him that any person or company is engaged in conduct¬ ing any lottery, gift enterprise, or scheme for the distribution of money or of any real or personal property by lot, chance, or draw¬ ing of any kind, or that any person or com¬ pany is conducting any other scheme for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promises, forbid the payment by any post¬ master to said person or company of any postal money orders drawn to his or its or¬ der or in his or its favor, or to the agent of any such person or company, whether such agent is acting as an individual or as a firm, bank, corporation, or association of any kind, and may provide by regulation for 1062

the return to the remitters of the sums named in such money orders. . . . ”26

Stat. at L. 466, chap. 908, U. S. Comp. Stat.

1901, p. 2749.

“Sec. 1782 (U. S. Qomp. Stat. 1901, p.

1212). No Senator, Representative, or Delegate, after his election and during his continuance in office, , and no head of a de¬ partment, or other officer or clerk in the employ of the government, shall receive or agree to receive any compensation whatever, directly or indirectly, for any services ren¬ dered, or to be rendered, to any person, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter or thing in which the United States is a party, or directly or indirectly interested, before any department, court-martial, bu¬ reau, officer, or any civil, military, or naval commission whatever. Every person offend¬ ing against this section shall be deemed guilty of a misdemeanor, ‘and shall be im-[360J prisoned not more than' two years, and fined not more than ten thousand dollars, and shall, moreover, by conviction therefor, be rendered forever thereafter incapable of holding any office of honor, trust, or profit under the government of the United States.”

13 Stat. at L. 123, chap. 119.

The plaintiff in error was indicted in the district court of the United States for the eastern district of Missouri for a violation of § 1782, the offense being alleged to have been committed at St. Louis. The accused was found guilty, and, on writ of error, the judgment was reversed by this court, and a new trial ordered, upon the ground, among others, that, according to the facts dis¬ closed in that case, the offense charged was not committed in the state of Missouri, where the accused was tried. 196 U. S. 283,

49 L. ed. 482, 25 Sup. Ct. Rep. 243.

Subsequently, the defendant was tried un¬ der a new indictment (the present one) charging him with certain violations of §

counts. Stating the case now only in a gen¬ eral way, the first, second, fourth, sixth, and eighth counts charged, in substance, that the defendant, a Senator oi the United States, had agreed to receive compensation, namely, the sum of $2,500, for services to be rendered by him for the Rialto Grain & Securities Company, a corporation (to be hereafter called the Rialto Company), in relation to a proceeding, matter, and thing, in which the United States was interested, before the Postoffice Department, those counts differing only as to the nature of the interest which the United States had in such proceeding, matter, and thing; some of the counts alleging that the United States was directly, others that it was in-

202 U. S.

Bubton v. United States.

360-363

directly, interested in such proceeding, mat¬ ter, and thing. The third, fifth, and sev¬ enth counts charged that the defendant did receive compensation to the amount of $500 for the services alleged to have been so ren¬ dered by him, those three counts differing only as to the nature of the interest, wheth¬ er direct or indirect, which the United States had in the alleged proceeding, mat¬ ter, and thing before the Postoffice Depart¬ ment.

[361] *The defendant demurred to each count. The government, at that stage of the prose¬ cution, dismissed the indictment as to the fourth and fifth counts and the court over¬ ruled the demurrer as to all the other counts. The accused filed a plea in har to the third and seventh counts. To that plea the government filed an answer, to which we will advert hereafter. A demurrer to that answer was overruled, and, defendant declining to plead further, the plea in bar was denied. He was then arraigned, tried, and found guilty on the first, second, third, sixth, seventh, and eighth counts. No judg¬ ment or sentence was pronounced on the first, second, and eighth counts, because they covered the transaction and offense mentioned in the sixth count. And as the third count covered the transaction and of¬ fense embraced by the seventh count, no judgment or sentence was pronounced on it.

On the sixth count the defendant was sentenced to be imprisoned for six months in the county jail and to pay a fine of $2,000: on the seventh, to be imprisoned for six months in the county jail and fined $500. It was declared or recited in the judgment on each of those counts that the accused, by his conviction, “is rendered for¬ ever hereafter incapable of holding any of¬ fice of honor, trust, or profit under the government of the United States.”

It will be well to bring out fully the. alle¬ gations of the two counts upon which the sentences were based. They will show the nature of the proceeding, matter, or thing before the Postoffice Department, in respect of which the defendant was indicted.

The sixth count alleged that on the 18th day of November, 1£02, the defendant was a Senator of the United States from the state of Kansas, having been theretofore elected for a term of six years, expiring on the 4th day of March, 1907, and the Rialto Company was a corporation engaged in the business of buying, selling, and dealing in grain and securities, having its principal offices at the city of St. Louis, Missouri; tli at before and on the above day there was

[362] pending before *the Postoffice Department of the United States, and before the then Post¬ master General of the said United States, a certain proceeding in which the United 202 U. S.

, States was then indirectly interested, for de¬ termining the question whether that corpo¬ ration was engaged in conducting a scheme for obtaining money through the mails of the said United States, by means of false and fraudulent pretenses, representations, and promises, made by the said corporation, and whether the said Postmaster General should instruct the postmaster at the post- office at St. Louis, the same then being a postoffice at which registered letters were then arriving, directed to the said corpora¬ tion, to return all such letters to the post¬ masters at the several postoffices at which they were or should thereafter be originally mailed, with the word “fraudulent” plainly written or stamped upon the outside thereof, to be by such postmasters returned to the writers thereof under the regulations of the said Postoffice Department, and in the same manner to dispose of all other letters and matter sent by mail to the said postoffice di¬ rected to the said corporation, “all of which the said Postmaster General might then have lawfully done, upon evidence satisfac¬ tory to him that the said corporation was engaged in conducting such a scheme to de¬ fraud as that in this count mentioned; and, further, that before and on the day in this count first aforesaid the facts pertaining to the questions in this count mentioned .were under investigation by the said Postoffice De¬ partment and the said Postmaster General and, on that day, were still undetermined by the said Postmaster General. And the grand jurors aforesaid, upon their oath aforesaid, do further present that the said Joseph Ralph Burton, Senator, as in this count of this indictment aforesaid, on the said 18th day of November, in the year of our Lord nineteen hundred and two, after his said election as such Senator, and dur¬ ing his continuance in office as such Senator, at St. Louis, aforesaid, in the division and district aforesaid, then well knowing the proceedings in this count mentioned, in which the United States was then indirectly interested, to be, *as it then still was, pend- [3633 ing as last aforesaid, before the said Post- office Department and the said Postmaster General, and undetermined by the said Postmaster General, and then well knowing the character of that proceeding, and that the said United States was then indirectly interested in the same proceeding as last aforesaid, and then well knowing all the premises in this count set forth, unlawfully did agree with the said Rialto Grain & Se¬ curities Company, corporation as aforesaid, by and through its officers, agents, and at¬ torneys, to receive directly from that cor¬ poration, through its officers, agents, and at¬ torneys, certain other compensation, to wit, the sum of $2,500, lawful money of the said

1063

363-365

Supreme Court of the United States.

Oct. Term,

United States, for certain services to be rendered by him, the said Joseph Ralph Burton, to the said corporation, in relation to the last-mentioned proceeding, in which the said United States was then indirectly interested as aforesaid, before the said Post- office Department and before the said Post¬ master General, while the same proceeding was and should still be pending before the said Postoffice Department and the said Postmaster General, and still undetermined by the said Postmaster General, and after his, the said Joseph Ralph Burton’s, said election as such Senator, and during his continuance in office as such Senator, — that is to say, services consisting of his, the said Joseph Ralph Burton’s, appearing before the said Postoffice Department and before the said Postmaster General, the Chief Post- office Inspector, and the Assistant Attorney General for said Postoffice Department, and other officers of said Postoffice Department, as an agent of, and attorney for, the said corporation, and obtaining information for said corporation concerning said proceeding in this count mentioned, in which the Unit¬ ed States was then indirectly interested, and by the influence of his presence and of his office as such Senator, and by statements, representations, and persuasion, inducing the said Postmaster General to believe that the said corporation was not conducting any such scheme to defraud as that last above [364]mentioned, and to *put a stop to any further investigation of the questions in this count mentioned by the said Postoffice Department and by the said Postmaster General, and to refrain from determining the same ad¬ versely to the interests of the said corpora¬ tion, and from instructing the said post¬ master at the said postoffice at St. Louis aforesaid to return the registered letters, and other letters and matter sent by mail aforesaid to the postmasters at the postof¬ fices at which they were or should there¬ after be originally mailed as aforesaid, with the word ‘fraudulent’ plainly written or stamped upon the outside thereof, as aforesaid, to be by such postmasters re¬ turned to the writers thereof as aforesaid, and also from forbidding the payment to the said corporation, by the said postmaster at the postoffice at St. Louis aforesaid, of postal money orders drawn to its order, or in its favor. And so the grand jurors afore¬ said, upon their oath aforesaid, do say that the said Joseph Ralph Burton, at the time and place, and in manner and form in this count of this indictment aforesaid, un¬ lawfully did offend against § 1782 of the Re¬ vised Statutes of the said United States, agains.t the peace and dignity of the said United States.”

The seventh count alleged “that on the

1064

said 26th day of March, .in the year of our Lord nineteen hundred and three, the said Joseph Ralph Burton, then still being a Senator of the said United States for the said state of Kansas, as in the sixth count of this indictment set forth, and having, after his election as such Senator, and during his continuance in .office^ to wit, on divers days between the said 18th day of November, in the year of our Lord nineteen hundred and two, and the said 26th day of March, in the year of our Lord nineteen hundred and three, rendered the services in the said sixth count described, to the corporation in that count mentioned, before the Postmaster General of the said United States and before the said Postoffice Department, and the same having been, as he, the said Joseph Ralph Burton, when so rendering the same, well knew, services in relation to the *pro-[365] ceeding described in the said sixth count, in which the said United States was indi¬ rectly interested, pending, as he, the said Joseph Ralph Burton also well knew, be¬ fore the said Postoffice Department and Postmaster General, unlawfully did, after his said election and during his continuance in office, at St. Louis aforesaid, in the said eastern division of the said eastern district of Missouri, receive directly from the said corporation, through its officers, agents, and attorneys, certain compensation for the same services, that is to say $500; he, the said Joseph Ralph Burton, when so receiving such compensation for the said services, well knowing the same to have been services in relation to a proceeding pending before a department and before an officer of the gov¬ ernment of the said United States, and well knowing the said proceeding to have been a proceeding in which the said United States was indirectly interested, and one pending before the said Postoffice Depart¬ ment and Postmaster General, and undeter¬ mined by the said Postmaster General, as in the said sixth count is more fully set forth: against the peace and dignity of the said United States, and contrary to the form of the statute of the same in such case made and provided.”

Motions for new trial and in arrest of judgment having been denied the case was brought here upon writ of error.

whether § 1782 is repugnant to the Con¬ stitution of the United States. This ques¬ tion has been the subject of extended dis¬ cussion by counsel. But we cannot doubt the authority of Congress by legislation to make it an offense against the United States for a senator, after his election and during his continuance in office, to agree to receive or to receive compensation for servioes to be rendered or rendered to any

202 TJ. S.

Burton v. United States.

365-368

person, before a department of the govern¬ ment, in relation to a proceeding, matter, or thing in which the United States is a party or directly or indirectly interested.

The principle that underlies § 1782 is not wholly new in our legislative history.

|366]For instance, by the act of March 3d, *1863 (12 Stat. at L. 765, chap. 92, Rev. Stat. 1058, U. S. Comp. Stat. 1901, p. 731), it was declared that members of Congress shall not practise in the court of claims. Later, Congress by statute declared that no member of, or delegate to, Congress, shall, directly or indirectly, himself or by any other person in trust for him, or for his use or benefit, or on his account, undertake, ex¬ ecute, hold, or enjoy, in whole or in part, any contract or agreement made or entered into in behalf of the United States, by any officer or person authorized to make con¬ tracts on behalf of the United States; and every person violating this section was to be deemed guilty of a misdemeanor, and fined $3,000. Rev. Stat. 3739, U. S. Comp. Stat. 1901, p. 2508.

Counsel for the accused insists that § 1782 is in conflict with the fundamental idea of the Federal system; namely, that the government is one “of limited powers, with duties and restrictions imposed, and no authority is lodged anywhere to change those duties or restrictions, except the pow¬ er reserved by the people.” The proposi¬ tion here stated is certainly not to be dis¬ puted; for it is settled doctrine, as declared by Chief Justice Marshall, and often re¬ peated by this court, that “the government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually grant¬ ed must be such as are expressly given or given by necessary implication.” Martin v. Hunter, 1 Wheat. 304, 343, 4 L. ed. 97, 107. We do not, however, perceive that there has been in the statute before us any departure from that salutary doctrine.

It is said that the .statute interferes, or, by its necessary operation, will interfere, with the legitimate authority of the Senate over its members, in that a judgment of con¬ viction under it may exclude a Senator from the Senate before his constitutional term expires; whereas, under the Constitution, a Senator is elected to serve a specified number of years, and the Senate is made by that instrument the sole judge of the qualifications of its members, and, with the concurrence of two thirds, may expel a Sen- 1367] ator from that body. In our judgment *there is no necessary connection between the con¬ viction of a Senator of a public offense pre¬ scribed by statute and the authority of the Senate in the particulars named. While the framers of the Constitution intended 202 IT. S.

that each department should keep within its appointed sphere of public action, it was never contemplated that the authority of the Senate to admit to a seat in its body one who had been duly elected as a Senator, or its power to expel him after being admitted, should, in any degree, limit or restrict the authority of Congress to enact such statutes, not forbidden by the Constitution, as the public interests required for carrying into effect the powers granted to it. In order to promote the efficiency of the public serv¬ ice and enforce integrity in the conduct of such public affairs as are committed to the several departments, Congress, having a choice of means, may prescribe such regu¬ lations to those ends as its wisdom may sug¬ gest, if they be not forbidden by the funda¬ mental law. It possesses the entire legis¬ lative authority of the United States. By the provision in the Constitution that “all legislative powers herein granted shall be vested in a Congress of the United States,” it is meant that Congress — keeping within the limits of its powers and observing the restrictions imposed by the Constitution — may, in its discretion, enact any statute appropriate to accomplish the objects for which the national government was estab¬ lished. A statute like the one before us has direct relation to those objects, and can be executed without in any degree im¬ pinging upon the rightful authority of the Senate over its members or interfering with the discharge of the legitimate duties of a Senator. The proper discharge of those duties does not require a Senator to appear before an executive department in order to enforce his particular views, or the views of others, in respect of matters committed to that department for determination. He may often do so without impropriety, and, so far as existing law is concerned, may do so whenever he chooses, provided he neither agrees to receive nor receives com¬ pensation for such services. Congress, when passing this statute, knew, as, indeed, *everv-[368] body may know, that executive officers are apt, and not unnaturally, to attach great, sometimes, perhaps, undue, weight to the wishes of Senators and Representatives. Evidently the statute has for its main object to secure the integrity of executive action against undue influence upon the part of members of that branch of the government, whose favor may have much to do with the appointment to, or retention in, public position of those whose official ac¬ tion it is sought to control or direct. The evils attending such a situation are appar¬ ent and are increased when those seeking to influence executive officers are spurred to action by hopes of pecuniary reward. There can be no reason why the government may

1065

368-370

Supreme Court of the United States.

Oct. Term

not, by legislation, protect each department against such evils, indeed, against every¬ thing from whatever source it proceeds, that tends or may tend to corruption or in¬ efficiency in the management of public affairs. A Senator cannot claim immunity from legislation directed to that end, simply because he is a member of a body which does not owe its existence to Congress, and with whose constitutional functions there can be no interference. If that which is enacted in the form of a statute is within the gen¬ eral sphere of legitimate legislative, as distinguished from executive and judicial, action, and not forbidden by the Constitu¬ tion, it is the supreme law of the land, — supreme over all in public stations as well as over all the people. “No man in this country,” this court has said, “is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the govern¬ ment, from the highest to the lowest, are creatures of the law, and are bound to obey it.” United States v. Lee, 106 U. S. 196, 220, 27 L. ed. 171, 181, 1 Sup. Ct. Rep. 240. Nothing in the relations existing between a Senator, Representative, or Delegate in Congress and the public matters with which, under the Constitution, they are respective¬ ly connected from time to time, can exempt them from the rule of conduct prescribed by § 1782. The enforcement of that rule will not impair or disturb those relations or cripple the power of Senators, Repre¬ sentatives, or Delegates to meet all rightful [369] * or appropriate demands made upon them as public servants.

Allusion has been made to that part of the judgment declaring that the accused, by his conviction, “is rendered forever hereafter incapable of holding any office of honor, trust, or profit under the government of the United States.” That judgment, it is argued, in inconsistent with the constitu¬ tional rights of a Senator to hold his place for the full term for which he was elected, and operates of its own force to exclude a convicted Senator from the Senate, although that body alone has the power to expel its members. We answer that the above words, in the concluding part of the judg¬ ment of conviction, do nothing more than declare or recite what, in the opinion of the trial court, is the legal effect attending or following a conviction under the statute. They might well have been omitted from the judgment. By its own force, without the aid of such words in the judgment, the stat¬ ute makes one convicted under it incapable forever thereafter of holding 'any office of honor, trust, or profit under the government of the United States. But the final judg¬ ment of conviction did not operate, ipso 1066

facto, to vacate the seat of the convicted Senator, nor compel the Senate to expel him or to regard him as expelled by force alone of the judgment. The seat into which he was originally inducted' as a Senator from Kansas could only become vacant bv his death, or by expiration of his term of office, or by some direct action on the part of the Senate in the exercise of its consti¬ tutional powers. This must be so for the further reason that the declaration in §

1782, that anyone convicted under its pro¬ visions shall be incapable of holding any office of honor, trust, or profit “under the government of the United States,” refers only to offices created by, or existing under the direct authority of, the national govern¬ ment, as organized under the Constitution, and not to offices the appointments to which are made by the states, acting separately, albeit proceeding, in respect of such appoint¬ ments, under the sanction of that instru¬ ment. While the Senate, v as a branch of the legislative department, ‘owes its exist- [370] ence to the Constitution, and participates in passing laws that concern the entire coun¬ try, its members are chosen by state legis¬ latures, and cannot properly be said to hold their places “under the government of the United States.”

We are of opinion that § 1782 does not, by its necessary operation, impinge upon the authority or powers of the Senate of the United States, nor interfere with the legit¬ imate functions, privileges, or rights of Senators.

ment does not present the case of a proceed¬ ing, matter, or thing in which, within the meaning of the statute, the United States was a party or interested, nor adequately state the facts constituting the offense.

These objections are, we think, without merit. Our reading of the statute and the indictment leads to the opposite conclusion.

The statute make , it an offense for a Sen¬ ator, after his election, and during his con¬ tinuance in office, to receive or agree to receive compensation, in any form, from any person, in relation to a proceeding, matter, or thing before a department, in which the United States is a party, or directly or in¬ directly interested. The scope of the stat¬ ute is, in our judgment, most manifest, and the nature of the offense denounced can¬ not well be made clearer than it has been made by the words used to express the legislative intent. The business in respect of which the accused is charged to have both agreed to receive, and to have received, com¬ pensation, was plainly a proceeding or matter in which the United States was in¬ terested. That such proceeding or matter involved the pecuniary interests of the de-

202 U. S.

Burton v. United States.

370-373

fendant’s client is not denied. That it also involved the use of the property as well as postal facilities furnished by the United States for carrying and transporting mail matter must also be admitted. What the Postoffice Department aimed to do in the execution of the acts of Congress and the regulations established under those acts was to protect the mails of the United States from being used, in violation of law, to pro¬ mote schemes for obtaining money and prop¬ erty by means of false and fraudulent pre¬ tenses, representations, and promises. That [371] * statute has its sanction in the power of the United States, by legislation, to designate what may be carried in the mails and what must be excluded therefrom; such designa¬ tion and exclusion to be, however, consistent with the rights of the people as reserved by the Constitution. Ex parte Jackson, 96 U. S. 727, 732, 24 L. ed. 877, 879; Re Rapier, 143 U. S. 110, 36 L. ed. 93, 12 Sup. Ct. Rep. 374; American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 47 L. ed. 90, 23 Sup. Ct. Rep. 33; Public Clearing House v. Coyne, 194 U. S. 498, 508, 47 L. ed. 1093, 1098, 24 Sup. Ct. Rep. 789. In the proceed¬ ing, matter, and thing before the depart¬ ment, with which the defendant was con¬ nected as an attorney for a corporation im¬ mediately concerned in the result, the Post¬ master General represented the United States, and, in the discharge of his official duties, sought to enforce a law of the United States. The United States was the real party in interest on one side, while the Rialto Company was the real party in in¬ terest on the other side. If the Post¬ master General did not represent the United States, whom did he represent? The word “interested” has different meanings, as can be readily ascertained by examining books and the adjudged cases. 4 Words & Phrases Judicially Defined, 3692; Stroud’s Judicial Dictionary, 399. But its meaning here is to be ascertained by considering the subject-matter of the statute in which the •word appears. And it is, we think, a mis¬ take to say that the United States was not interested, directly or indirectly, in pro¬ tecting its property, that is, its mails and postal facilities, against improper and il¬ legal use, and in the enforcement, through the agency of one of its departments, of a statute regulating such use. It would give too narrow an interpretation to the statute to hold that the United States was not in¬ terested, directly or indirectly, in a pro¬ ceeding in the department having such ob¬ jects in view. It is true the business be¬ fore the Postoffice Department in which the Rialto Company was concerned did not as¬ sume the form of a suit in which there were parties according to the technical rules 202 IT. S.

of pleading. But it was, nevertheless, in a substantial sense, a proceeding, matter, or thing before an executive department, in which both the United States and the Rialto Company were interested.

*It is said that, within the meaning of[372] the statute, the United States is not inter¬ ested in any proceeding or matter pending before an executive department, unless it has a direct moneyed or pecuniary inter¬ est in the result. Under this view, Sena¬ tors, Representatives, and Delegates in Con¬ gress who are members of the bar may regularly practise their profession for com¬ pensation before the executive department^ in proceedings which, if not directly involv¬ ing the pecuniary interests of the United States, yet involve substantial pecuniary in¬ terests for their clients as well as the en¬ forcement of the laws of the United States, enacted for the protection of the rights of the public. Such a view rests upon an in¬ terpretation of the statute which is wholly inadmissible. In our opinion, § 1782 ex¬ cludes the possibility of such a condition of tilings, and makes it illegal for Senators, Representatives, or Delegates to receive, or agree to receive, compensation for such services. We may add that the judgment in Burton v. United States, 196 U. S. 283, 49 L. ed. 482, 25 Sup. Ct. Rep. 243, proceeded upon the ground that the case then made — and the present case, as to the facts, is much stronger against the defendant — was embraced by the statute.

It is equally true that the accused was informed with reasonable certainty by the indictment of the nature and cause of the accusation against him, — the two counts hereinbefore given at large, and upon which sentences were pronounced, being as full as any of the others. The averments of the indictment were sufficient to enable the de¬ fendant to prepare his defense, and, in the event of acquittal or conviction, the judg¬ ment could have been pleaded in bar of a second prosecution for the same offense.

The accused was not entitled to more, nor could he demand that all the special or par¬ ticular means employed in the commission of the offense should be more fully set out in the indictment. The words of the indict¬ ment directly, and without ambiguity, dis¬ closed all the elements essential to the com¬ mission of the offense charged, and, there¬ fore, within the meaning of the Constitution, and according to the rules of pleading, the defendant was informed of the nature and cause of the ‘accusation against him. t7ait-]373[ ed States v. Simmons, 96 U. S. 361, 362, 24 L. ed. 820; United States v. Carll, 105 U. S.

611, 26 L. ed. 1135; Blitz v. United States,

153 U. S. 308, 315, 38 L. ed. 725, 727, 14 Sup. Ct. Rep. 924.

1067

373-375

Supreme Court of the United States.

Oct. Term,

below erred in not directing the jury to ac¬ quit the defendant; in other words, that the evidence in support of the indictment was so meager that the jury could not properly have found him guilty of any offense. We cannot assent to this view. There was, be¬ yond question, evidence tending to establish on one side the defendant’s guilt of the charges preferred against him; on the other side, his innocence of those charges. It will serve no useful purpose to set out all the testimony. It is sufficient to say that the whole evidence has been subjected to the most careful scrutiny, and our con¬ clusion is that the trial court was not au¬ thorized to take the case from the jury and direct a verdict of not guilty. That course could not have been pursued consistently with the principles that underlie the system of trial by jury. The case was pre-eminent¬ ly one for the determination of a jury. It was for the jury to pass upon the facts; and, as there was sufficient evi¬ dence to go to the jury, this court will not weigh the facts, and determine the guilt or innocence of the accused by the mere preponderance of evidence, but will limit its decision to questions of law. In its charge to the jury the circuit court held the scales of justice in even balance, saying all that was necessary to guard the rights of the accused. Nothing seems to have been omitted that ought to have been said nor anything said that was not entirely ap¬ propriate. Upon the general question of guilt or innocence, and as to the rules by which the jury should be guided in their consideration of the case, the circuit court, in substance, said that the indictment was not evidence in any sense, but only an accu¬ sation which it was incumbent upon the government to sustain by proof establishing guilt beyond a reasonable doubt; that the presumption of law was that he was inno¬ cent of the accusation as a whole and as to every material element of it, and that such presumption abided with him from the be- T374]ginning to the end of *the trial, and re¬ quired, at the hands of the jury, an ac¬ quittal, unless a careful, intelligent, fair consideration of the whole evidence, attend¬ ed by the presumption of innocence, pro¬ duced in the mind, beyond a reasonable doubt, the conviction that the defendant was guilty; and that they, the jury, were the sole judges of the credibility of the wit¬ nesses and of the weight to be attached to their testimony.

The circuit court was equally direct and impartial in what it said in relation to the particular issues of fact raised by the in¬ dictment and evidence. After explaining the nature of the proceeding before the Post- 1068

office Department, in respect of which, the indictment alleged, the defendant acted as counsel for the Rialto Company, for com¬ pensation received and to be received, and after referring, with Some fullness, to the specific charges in the several counts, the court called attention to the questions that were common to all' the counts. It said to the jury: “Was the defendant a Sena¬ tor of the United States for the state of Kansas during the times covered by the transactions under investigation? It is ad¬ mitted that he was, and therefore you will have no difficulty in determining that. Was the Rialto Grain & Securities Company an existing corporation carrying on business of the character described during the times covered by the transactions under inves¬ tigation? There was proof that it was, and no proof to the contrary, so you will have no difficulty with that. Was a pro¬ ceeding pending before the Postoffice Depart¬ ment from November 18tl}, 1902, to March 26th, 1903, to determine whether or not a fraud order should be issued against that company? If the evidence shows that the officers of the Postoffice Department, at the instance of private individuals or other¬ wise, had, before that time, set on foot an inquiry to determine whether or not satis¬ factory evidence existed that the Rialto Grain & Securities Company was engaged in conducting a scheme or device for ob¬ taining money through the mails by means of false or fraudulent pretenses, represen¬ tations, or promises, as charged in the in¬ dictment; and if the evidence further shows that that inquiry had *not been concluded, [375] and was, during the period named, in the charge of any of the officers of the Post- office Department then charged with the performance of any duty in respect of such inquiry, — then I charge you that there was such a pending proceeding before the Post- office Department, as described in the indict¬ ment, and is referred to in the statutes be¬ fore mentioned; and also that it was a pro¬ ceeding in which the United States was both directly and indirectly interested.”

It then called the attention of the jury to the particular counts charging the defend¬ ant with having agreed with the Rialto Company to receive a stated compensation for services to be rendered in the proceeding before named. Touching those counts, the court said: “Did he make such an agree¬ ment? That he made an agreement of some character to act as counsel for that company for a stated compensation is con¬ ceded. The real question is whether that agreement included, among other matters in relation to which he was to serve the company, the proceeding in the Postoffice Department before named. Upon that ques-

202 U. S.

ISOS.

Bubton v. United States.

375-377

tion the evidence is conflicting, and it is your duty to weigh the evidence and de¬ termine the truth. If, among other things, it was intended by the defendant and the Rialto Grain & Securities Company in mak¬ ing the agreement that he would, in part consideration for the compensation he was to receive, appear as agent or attorney of such company before the Postoffice Depart¬ ment, or any of its officers charged with any duty or having any authority over such fraud order proceeding, for the purpose or with the intent of influencing or obtain¬ ing action on their part favorable to such company in said proceeding, whether by way of stopping the investigation or ultimately preventing the. issuance of a fraud order, — then I charge you that the agreement of the defendant was violative of the statute; otherwise it was not. The offense pre¬ scribed in the statute consists in the agree¬ ment to receive compensation for the ren¬ dition of such services. The mere agree¬ ment to render the services is not an offense. It is the agreement to receive compensation [376]for the rendering of them *which constitutes the offense. It should be carefully observed that the actual rendition of services is not a necessary element of this offense. The offense is complete and the defendant’s guilt is established if the evidence shows that he made an agreement to render such services for compensation.”

Coming then to the questions referring exclusively to the counts charging defendant with having received from the Rialto Com¬ pany compensation for services rendered by him to it, the court said to the jury: “Did he render any service for the Rialto Grain & Securities Company before the Postoffice Department in the proceeding named? On that question I charge you that if he ap¬ peared as agent or attorney of such company before the Postoffice Department, or any of its officers charged with any duty or hav¬ ing any authority over such fraud order proceeding, for the purpose or with the in¬ tent of influencing or obtaining action on their part favorable to such company in said proceeding, and did then, by any statement or representation respecting the business in which that company was engaged, or the manner in which it was conducting such business, endeavor to obtain any action favorable to such company on the part of the Postoffice Department, or any of its officers, in such fraud order proceeding, then he rendered service for said company within the meaning of the statute. And I further charge you that if he appeared as agent or attorney of such company before the Postoffice Department, or any of its officers charged with any duty or having any authority over such fraud order proceeding, 202 U. S. U. S., Book 50.

for the purpose or with the intent of in¬ fluencing them in respect of their action in said proceeding, and did then arrange with the Department, or any of its officers, that a hearing should be had in respect of such matter, and then also assured the Depart¬ ment, or any of its officers, that it was the purpose of said company to comply strictly with the law, and then also arranged that no action should be taken against said com¬ pany in said proceeding without his being first notified thereof, that would constitute services within the meaning of the statute.

Did he, at St. Louis, ‘Missouri, on the 26tli [377] day of March, 1903, receive from the Rialto Grain & Securities Company any payment of money as compensation for such serv¬ ices ?” Here the court gave instructions, seven in number, asked by the defendant.

They were not objected to by the govern¬ ment and need not be set out.

that he could not legally be indicted for two separate offenses, one for agreeing to receive compensation in violation of the stat¬ ute, and the other for receiving such com¬ pensation. This is an erroneous interpre¬ tation of the statute, and does violence to its words. It was certainly competent for Congress to make the agreement to receive, as well as the receiving of, the forbidden compensation, separate, distinct offenses.

The statute, in apt words, expresses that thought by saying: “No Senator . . .

shall receive or agree to receive any compen¬ sation whatever, directly or indirectly, for any services rendered or to be rendered,” etc.

There might be an agreement to receive compensation for services to be rendered without any compensation ever being in fact made, and yet that agreement would be covered by the statute as an offense. Or, compensation might be received for the for¬ bidden services without any previous agree¬ ment, and yet the statute would be violated.

In this case, the subject-matter of the sixth count, which charged an agreement to re¬ ceive $2,500, was more extensive than that charged in the seventh count, which al¬ leged the receipt of $500. But Congress intended to place its condemnation upon each distinct, separate part of every trans¬ action coming within the mischiefs intended to be reached and remedied. Therefore an agreement to receive compensation was made an offense. So the receiving of compensa¬ tion- in violation of the statute, whether pursuant to a previous agreement or not, was made another and separate offense.

There is, in our judgment, no escape from this interpretation consistently with the established rule that the intention of the legislature must govern in the interpreta¬ tion of a statute. “It is the legislature, not

37S-380

Supreme Coubt of the United States.

Oct. Term,

[378] *the court, which is to define a crime, nnd ordain its punishment.” United States y. 11 'iltberger, 5 Wheat. 76, 95, 5 L. ed. 37, 42; H. llackfield & Co. v. United States, 197 U. S. 442, 450, 49 L. ed. 826, 829, 25 Sup. Ct. Rep. 456.

of that clause of the Constitution of the United States which declares that no per¬ son “shall be subject for the same offense to be twice put in jeopardy of life or limb.'1 The question arose in this way:

The first and second counts of the in¬ dictment in the former case charged that the defendant, in violation of the statute, and on March 26th, 1903, unlawfully, know¬ ingly, wilfully, and corruptly took, accepted, and received $500 “from the Rialto Grain & Securities Company,” for services rendered in its behalf in a matter before the Post- office Department in which the United States was interested. Those two counts differed only as to the interest, whether direct or indirect, of the United States in that matter. The third count in the former indictment charged that on March 26th, 1903, the de¬ fendant unlawfully, knowingly, wilfully, and corruptly took, accepted, and received $500 “from one W. D. Mahaney” (described as an officer and employee of the Rialto Com¬ pany), as compensation for services rendered by defendant to that company in a matter before the Postoffice Department in which the United States was directly interested. The jury in the former case convicted the defendant on the first and second counts and acquitted him on the third count; in other words, they found, in effect, that he received money from the company, but not from Mahaney. Upon writ of error sued out by defendant this court reversed the judgment and sent the case back with di¬ rections for a new trial. Whether that re¬ versal, upon defendant’s own writ of error, had the effect, within the principle of Trono v. United States (recently decided) 199 U. S. 521, ante, 292, 26 Sup. Ct. Rep. 121, to take from him the benefit of his acquittal on the third count in the former case, we need not decide. It may be assumed, for the purposes of this discussion, that it did not.

The defendant pleaded the judgment of acquittal on the third count in the former

[379] indictment in bar of this prosecution *as based on the third and seventh counts in the present indictment. In its answer to that plea the government alleged that, while the third and seventh counts of the present indictment are identical in legal effect with counts one and two of the 'former indict¬ ment, “the offense charged against the de¬ fendant in said counts three and seven of the indictment herein is not identical in 4070

legal effect with said count three of said original indictment.” The defendant, as we have seen, demurred to the answer. The de¬ murrer having been overruled, and the de¬ fendant declining to plead further, the plea in bar was overruled and denied.

As no issue was taken upon the answer, by replication, the question presented is whether, upon the face of the record, as matter of law simply, the offense charged in the third and seventh counts of the pres¬ ent indictment is the same as that charged in the third count of the former indictment.

This question must be answered in the nega¬ tive, unless the charge, in the present indict¬ ment, that the money in question was re¬ ceived by the defendant “from the Rialto Grain & Securities Company,” is the same, in law, as the charge, in the former indict¬ ment, that he received it “from one W. D. Mahaney,” mentioned as an officer and em¬ ployee of the Rialto Grain & Securities Com¬ pany. We could not so hold, for the rea¬ son that the two charges clo not necessarily import, in law, the same thing. The only support for the contrary view is found in the words, added after Mahaney’s name, describing him to be an officer and em¬ ployee of the Rialto Company. But those words are to be taken only as descriptive of the person, or as identifying the person from whom, it was charged, the defendant, in fact, received the money. It was not alleged in the former indictment that Ma¬ haney paid the money to the defendant in behalf of, or by direction of, the company.

This distinction was manifestly in the mind of the jury in the former case; for, while they found the defendant guilty of having received forbidden compensation from the company, they found him not guilty of hav¬ ing received such compensation from Ma¬ haney. *The defendant may have received [380] such compensation from Mahaney, but it may not have been paid by direction of the company. So, in a legal sense, it may have been received from the company, although paid by the hands of Mahaney. It cannot

be held otherwise, as matter of law, upon

the face of the two indictments, apart from any evidence. And there was no evidence in support of the plea or in refutation of the answer. The defendant simply demurred to the answer, thereby admitting its averments of fact; and, without a replica¬ tion, and without any evidence, rested his defense of former jeopardy upon the face of the two indictments. As the effect of the reversal of the judgment in the former case was to set aside the judgment of convic¬ tion on the first and second counts of the

original indictment, the way was opened for another trial on those oounts. But the government elected not te proceed under

202 U. S.

Burton v. United States.

380-382

that indictment, but to have a new one em¬ bodying the same charge as to the $500 that was made in the former case. Its right to adopt that course cannot he questioned. In our judgment, the defendant cannot plead his acquittal upon the charge of having re¬ ceived forbidden compensation from Ma- haney in bar of a prosecution upon the charge of having received such compensation from the company. A plea of autrefois acquit must be upon a prosecution for the same identical offense. 4 Bl. Com. 336. It must appear that the offense charged, using the words of Chief Justice Shaw, “was the same in law and in fact. The plea will be vicious if the offenses charged in the two indictments be perfectly distinct in point of law, however nearly they may be con¬ nected in fact.” Com. v. Roby, 12 Pick.

of the original and the present indictments, the two charges must be regarded as sepa¬ rate and distinct. The plea of former jeop¬ ardy in this case presents a technical de¬ fense, and cannot be allowed for the reason that the offense of which the defendant was heretofore acquitted does not plainly appear, as matter of law, upon the face of the re¬ cord, to be identical with the one of which [381]he has been convicted in this case. *If, at the trial below, under the present indict¬ ment, proof had been made that the $500 was paid by Mahaney, and that he was an officer and employee of the Rialto Com¬ pany, — if the proof had gone no farther, — the jury would not have been authorized to find that the money was received from the company ; whereas, the same proof would have sustained the charge in the third count of the original indictment. This shows that the two charges were not identical, in law, and that the same evidence would not have sustained each. It is well settled that “the jeopardy is not the same when the two indictments are so diverse as to preclude the same evidence from sustain¬ ing both.” 1 Bishop, Crim. Law, § 1051 ; Wilson v. State, 24 Conn. 57, 63, 64. For these reasons we hold that the court below properly sustained the answer to the plea, and, the defendant not pleading further, the plea in bar was properly overruled and denied.

sidered. It relates to the jurisdiction of the court below to try the defendant for the crime alleged.

The Constitution requires that the trial of all crimes against the United States shall be held in the state and the district where such crimes shall have been com¬ mitted. Const, art. 3, § 2, 6th Amendment. The contention of the accused is that, in no view of the evidence, can he be said to have 202 U. S.

committed any offense in the state of Mis¬ souri; consequently, the Federal court, holden at St. Louis, was without jurisdic¬ tion, under the Constitution, to try him. The contention of the government is that the alleged offense was committed at St. Louis, and that it was proper to try the defendant in the district embracing that city.

The circuit court thus instructed the jury: “If there was an agreement on the part of the defendant to receive compensa¬ tion for services to be rendered by him in such a fraud order proceeding, was the agreement made within the jurisdiction of this court? In other words, was it made in St. Louis, Missouri? Upon this question I charge you that if such an agreement was

other place, but with the understanding on the part of the defendant that it should be communicated to the Rialto Grain & Se¬ curities Company at St. Louis, Missouri, to be there accepted or ratified by that company before it should become effective,, and if thereafter, in pursuance of such un¬ derstanding, the proposed or tentative agree¬ ment was communicated to the Rialto Grain & Securities Company at St. Louis, Mis¬ souri, and was there accepted and ratified by that company without any change in its terms, then the agreement was made at St. Louis, Missouri, and within the jurisdiction^ of this court. The fact that the defendant was notified of such acceptance or ratifica¬ tion by telegram or letter sent to him at Washington would not alter this result, if the circumstances un^er which the nego¬ tiations were had and the tentative agree¬ ment was made were such that it can be reasonably inferred that he contemplated and assented to notice of the acceptance of his proposition being communicated to him through that medium.”

The jury found that the alleged agree¬ ment was consummated, that is, completed, at St. Louis. This finding was clearly jus¬ tified by the evidence. There was proof that on the 17th day of November, 1902, the general counsel of the Rialto Company — while he and the accused were in Illinois, traveling together from St. Louis to Chica¬ go — explained to the latter the affairs and condition of the company, and invited the defendant to become counsel with him for the company; that, as the result of that conference and invitation, the defendant, be¬ ing in Illinois at the time, proposed or offered to become such counsel on the basis of an employment for not less than five months at a monthly salary of $500 ; that he was then informed that only the company could conclude an arrangement as to com¬ pensation ; that he contemplated, at the

1071

382-385

Supreme Court of the United States.

Oct. Term,

time, that his offer as to employment compensation would be submitted for him to the company at St. Louis ; that, upon the return of the company’s counsel to St. Louis, on the morning of November 18th, [383] 1902, he at once communicated to the *Rial- to Company at that city, the above offer or proposal of the defendant; that the com¬ pany promptly accepted the offer, of whicH fact the defendant was immediately in¬ formed by telegram of November 18th, 1902, sent from St. Louis, and addressed to him at Washington, by the representative of the company; that such acceptance was con¬ firmed by a letter written and duly mailed at St. Louis on the same day, in which letter counsel, speaking for the company, said: “I hope you received my message to the effect that this company accepts your terms to act as counsel at a salary of $500 per month, and service to begin immediate¬ ly, that is, of this date, November 18, 1902;” that under date of November 20th, 1902, by letter addressed to the Rialto counsel at St. Louis, the defendant acknowledged receipt by due course of mail of the above letter of November 18th, and stated that he had called that morning at the Department, on behalf of the company, and had found that two complaints had been filed there against it, which had been sent out on No¬ vember 7th for investigation; that the letter last referred to thus concluded: “I have arranged with the Department to be ad¬ vised in case any complaints are made against your company, and have arranged for a hearing if any hearing should become necessary. I have assured the Department that it is the purpose of your company to comply strictly with the law, and that it is your desire to remain at all times in perfect harmony with the Department. No action of any kind will be taken against you with¬ out my first being notified, and every op¬ portunity for a full explanation or hearing will be had. In return, if agreeable, you may make remittance for my first month’s pay.”

The evidence further tended to show thai during the five months following the ac¬ ceptance of his offer at St. Louis, the de¬ fendant acted as counsel for the Rialto Com¬ pany before tire Postoffiee Department when requested or when it was necessary, and re¬ ceived from the company a salary of $500 per month for his services to -it, — the salary for each of the first four months being paid [384] by the company’s check, drawn at *St. Louis upon a St. Louis bank, and made payable to the defendant’s order, which check was sent from St. Louis to the' defendant at Washington. The last month’s salary of $500 was paid in cash to defendant at St. Louis, in the company’s office, on March 1072

and ; 26th, 1903, on which date, with his own consent he was discharged as the company’s attorney, his services being no longer re¬ quired. Tire evidence also tended to show that during the whole period of the defend¬ ant’s employment and service as the com¬ pany’s attorney he relied or counted upon the acceptance of his. offer on the ISth day of November, 1902, as evidencing an agree¬ ment then concluded between him and the company in respect of compensation. He received the letter of November 18th by due course of mail, and does not deny hav¬ ing received the telegram previously sent to him, the same day, on the same subject. Nothing was said or done by him during the whole period of his service as the com¬ pany’s counsel that was inconsistent with the agreement established by the evidence.

All that he did, said, or wrote was consist¬ ent with the idea that he regarded the ac¬ ceptance at St. Louis, of his offer, as com¬ pleting the agreement between him and the eompahy. From the time of such acceptance he was entitled, so far as the agreement was concerned, to demand, and he in fact received, the stipulated salary.

In view of the evidence and of all the cir¬ cumstances, was the jury warranted in find¬ ing that the alleged agreement was con¬ cluded at St. Louis f Manifestly so, we think. Although this is a criminal prose¬ cution, that question must be determined by the principles recognized in the general law of contracts as to the time when an agree¬ ment between parties takes effect and be¬ comes binding upon them. It is to be taken as settled law, both in this country and in England, in cases of contracts between par¬ ties distant from each other, but communi¬ cating in modes recognized in commercial business, that, when an offer is made by one person to another, the minds of the parties meet and a contract is to be deemed con¬ cluded, when the offer is accepted in reason¬ able time, either by telegram, *duly sent in [385] the ordinary way, or by letter, duly posted to the proposer, provided either be done be¬ fore the offer is withdrawn, to the knowl¬ edge of, or upon notice to, the other party. A leading authority on the general subject is Tayloe v. Merchants’ F. Ins. Co.

9 How. 390, 399, 400, 13 L. ed. 187, 190, 191.

It appeared in that case that a fire insurance company made an offer by mail to insure property upon certain terms. The offer was accepted in a letter promptly mailed to the proper address of the company. The in¬ quiry arose as to the time when the con¬ tract of insurance was to be deemed com¬ pleted. This court held that, according to the settled principles of law governing con¬ tracts entered into by correspondence be¬ tween parties distant from each other, the

202 U. S.

Bubton v. United States.

385-387

contract became complete when the letter accepting the offered terms was mailed, the offer not haying been then withdrawn. The court said: “We are of opinion that an offer under the circumstances stated, prescribing the terms of insurance, is intended, and is to be deemed, a valid undertaking on the part of the company, that they will be bound, according to the terms tendered, if an answer is transmitted in due course of mail, accepting them; and that it cannot he withdrawn, unless the withdrawal reaches the party to whom it is addressed before his letter of reply announcing the ac¬ ceptance has been transmitted.”

In Patrick v. Bowman, 149 U. S. 411, 424, 37 L. ed. 790, 794, 13 Sup. Ct. Rep. 811, 866, the court, referring to the Tayloe Case, again held that when an offer is made and accepted by the posting of a letter of ac¬ ceptance, the contract is complete accord¬ ing to the terms of the offer.

Kent says: “In creating the contract, the negotiation may be conducted by letter, as is very common in mercantile transac¬ tions; and the contract is complete when the answer containing the acceptance of a distinct proposition is despatched by mail or otherwise, provided it be done with due diligence, after the receipt of the letter con¬ taining the proposal, and before any inti¬ mation is received that the offer is with¬ drawn. Putting the answer by letter in the mail containing the acceptance, and thus placing it beyond the control of the party, [386]is ‘valid as a constructive notice of accept¬ ance. An offer by letter, or by special agent, is an authority revocable in itself, but not to be revoked without notice to the party receiving it, and never after it has been executed by an acceptance. There would be no certainty in making contracts through the medium of the mail, if the rule were otherwise.” 2 Kent, Com. 477.

The authorities to the same effect are too numerous to be cited, but we refer particu¬ larly to "Fassor v. Camp, 11 N. Y. 441, 445; Mactier v. Frith, 6 Wend. 103, 21 Am. Dec. 262; Adams v. Lindsell, 1 Barn. & Aid. 681; Re Imperial Land Co. L. R. 7 Ch. 587 ; Household Fire & Carriage Acci. Ins. Co. v. Grant, L. R. 4 Exch. Div. 218; Perry v. Mt. Hope Iron Co. 15 R. I. 380, 381, 2 Am. St. Rep. 902, 5 Atl. 632; Wheat v. Cross, 31 Md. 103, 1 Am. Rep. 28; Averill v. Hedge, 12 Conn. 424; Chiles v. Nelson, 7 Dana, 281; Washburn v. Fletcher, 42 Wis. 152; Minnesota Linseed Oil Co. v. Collier White Lead Co. 4 Dill. 434, Red. Cas. No. 9,635; Maclay v. Harvey, 32 Am. Rep. 40 note and authorities cited (90 Ill. 525) ; Levy v. Co¬ hen, 4 Ga. 1, 13; Falls v. Gaither, 9 Port. (Ala.) 605, 612; 2 Redf. Railways, 338, 339; Pom. Contr. 95; 1 Parsons, Contr. 9th 202 U. S.

ed. 483; 2 Parsons, v^ontr. 257, note; Met¬ calf, Contr. 17 ; Thompson, Electricity, §§ 425-478; Scott & J. Telegraphs, §§ 295 et seq .; Addison, Contr. 16, 17. Whether the acceptance by the Rialto Company of the de¬ fendant’s offer is to be regarded as effective¬ ly made by the telegram duly sent to him, or only when the letter addressed to him by the Rialto counsel was duly mailed at St. Louis, or in both ways, in any event, the acceptance promptly and adequately oc¬ curred on the 18th of November, 1902, at St. Louis, on which day and at which place it is to be deemed that the minds of the parties met, the agreement becoming com¬ plete the moment of the acceptance of de¬ fendant’s offer, without the necessity of formal notice to the company that Burton had received information of its acceptance of his offer.

But this, the defendant insists, is not enough to show that ‘the alleged offense was[ committed at St. Louis. Counsel would seem to contend that the physical absence of the accused from St. Louis, when the offer was received by the company and when the agreement was concluded, rendered it impossible that he could have committed the alleged offense at that city. In substance, the contention is that an individual could not, in law or within the meaning of the Constitution, commit a crime within a state in which he is not physically present at the time the crime is committed.

The constitutional requirement is that the crime shall be tried in the state and district where committed; not necessarily in the state or district where the party com¬ mitting it happened to be at die time. This distinction was brought out and recognized in Re Palliser (Palliser v. United States) 136 U. S. 257, 265, 34 L. ed. 514, 517, 10 Sup. Ct. Rep. 1034. Palliser was indicted in the district court of the United States for the district of Connecticut for violating certain statutes relating to the disposal of postage stamps, and forbidding postmasters not only to dispose of postage stamps in the payment of debts or in the purchase of com¬ modities, or to pledge them, but also to sell or dispose of them except for cash. By letter written and mailed at New York and addressed to a postmaster in Connecticut, Palliser made to that officer an offer of con¬ tract which could not have been accepted by the latter without violating the above stat¬ utes. This court held that the offer in Palliser’s letter was a tender of a contract with the intent to induce the postmaster to sell postage stamps for credit, in viola¬ tion of his duty, and that the case, there¬ fore, came within § 5451 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3680), providing that “every person who promises,

1073

387-390 Supreme Court of

offers, or gives, or causes or procures to be promised, offered, or given, any money or other thing of value, or makes or tenders any contract, undertaking, obligation, gra¬ tuity, or security for the payment of money, or for the delivery or conveyance of any¬ thing of value to any officer of the United States, . . . with intent to influence

him to commit or aid in committing, or to collude in or allow any fraud, or make op¬ portunity lor the commission of any fraud [•88] on the United States, *or to induce him to do t r omit to do any act in violation of his lawful duty, shall be punished” by fine and imprisonment.

The question arose whether Palliser, who did not go into Connecticut, could be pun¬ ished in that state for the offense alleged against him. This court, speaking by Mr. Justice Gray, said: “The petitioner relies on those provisions of the Constitution of the United States which declare that in all criminal prosecutions the accused shall have the right to be tried by an impartial jury of the state and district wherein the crime shall have been committed. Art. 3, § 2 ; Amendments, art. 6. But the right thereby secured is not a right to be tried in the district where the accused resides, or even in the district in which he is personally at the time of committing the crime, but in the district ‘wherein the crime shall have been committed.’ . . . When a crime is com¬

mitted partly in one district and partly in another, it must, in order to prevent an absolute failure of justice, be tried in ei¬ ther district, or in that one which the leg¬ islature may designate; and Congress has accordingly provided, that ‘when any offense against the United States is begun in one judicial district and completed in any other it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner and as if it had been actually and wholly committed therein.’ Rev. Stat. § 731, U. S. Comp. Stat. 1901, p. 585.” In that case the court said it was universally admitted that when a shot fired in one jursidietion strikes a person in another jurisdiction, the offender may be tried where the shot takes effect.

If the sending by the defendant to the Rialto Company from Chicago to St. Louis of the offer above referred to was the be¬ ginning of negotiations for an agreement in violation of § 1782, the agreement be¬ tween the parties was completed at the time of the acceptance of the defendant’s offer at St. Louis on November 18th', 1902. Then the offense was committed, and it was com¬ mitted at St. Louis, notwithstanding the defendant was not personally present in 1074

the United States. Oct. Teem,

Missouri when his offer was accepted and the agreement was completed.

*The principle announced in Palliser’s case[3S9] was reaffirmed in Horner v. United States,

143 U. S. 207, 36 L. dd. 126, 12 Sup. Ct.

Rep. 407, in which it was held that the dis¬ trict court of the United States in Illinois had jurisdiction to try one charged with having violated the statute relating to the sending of lottery matter in the mails, in that he had unlawfully caused to be deliv¬ ered to a certain person in that district lottery circulars conveyed by mail in a sealed letter that he had deposited in the mail at New York, addressed to and to be delivered to such person in Illinois. The fact that the accused was in New York when the lot¬ tery circulars were mailed, and not person¬ ally present in Illinois when che offense was completed by the delivery there of the lot¬ tery circulars to the person to whom they were sent, was held to be immaterial, and not to defeat the jurisdictiQn of the Federal court in Illinois to try the accused.

It cannot be maintained, according to the adjudged cases, that the personal absence of the defendant Burton from St. Louis, at the time his offer was accepted, and when the agreement between him and the company was completed and became binding, as be¬ tween the parties, deprived the Federal court there of jurisdiction. He sent his of¬ fer to St. Louis with the intent that it should be there accepted and consummated. Having been completed at that city in con¬ formity with the intention of both parties, an offense was, in the eye of the law, com¬ mitted there; and when the court below as¬ sumed jurisdiction of this case it did not offend the constitutional requirement that a crime against the United States shall be tried in the state and district where it was committed.

Other questions were discussed by counsel, but we have alluded to all involving the sub¬ stantial rights of the accused that are men¬ tioned in their briefs of points and author¬ ities, and which we deem it necessary to notice.

Mr. Justice McKenna concurs in the judgment oased on the count charging the receipt of forbidden compensation, but does not concur in the judgment oh the count charging simply an agreement to receive compensation. He is of opinion that *the[390J agreement to receive and the receipt of com¬ pensation constitute, under the circumstan¬ ces of this case, but one offense.

Judgment affirmed.

Mr. Justice Brewer, dissenting:

A conviction of plaintiff in error on an indictment charging substantially the same offenses as are charged in the present case

202 U. S.

Burton v. United States.

390-392

was reversed by this court. 196 U. S. 283, 49 L. ed. 482, 25 Sup. Ct. Rep. 243. In the opinion then filed it was stated that four Justices of this court (the writer of this being among the number) were of the opin¬ ion that the matters charged against the de¬ fendant were not made offenses by the stat¬ ute under which the indictment was found. Nothing was said in that opinion in respect to this matter beyond the simple statement of the conclusions of the several Justices. As one of the four, I think the importance of the case justifies me in stating the rea¬ sons which led to that conclusion, and which induces belief that the present conviction is wrongful.

The statute (Rev. Stat. § 1782, U. S. Comp. Stat. 1901, p. 1212) forbids a Sena¬ tor or other official of the government to “receive or agree to receive any compensa¬ tion whatever, directly or indirectly, for any services rendered, or to be rendered, to any person, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter or thing in which the United States is a party, or directly or indirectly interested, before any department, court- martial, bureau, officer, or any civil, mili¬ tary, or naval commission whatever.” It was charged in the indictment that there was pending in the Postoffice Department a proceeding to inquire whether the Rialto Grain & Securities Company vTas conduct¬ ing a scheme for obtaining money by false pretenses through the mails of the United States, and whether a fraud order, as it is called, should be issued against said com¬ pany. and that the defendant, as a Senator of (391] the United States, unlawfully agreed to “re¬ ceive from the said corporation compensation for services rendered by him in relation to such proceeding before that Department. It was not charged that the United States was a party to the proceeding, nor that it would either make or lose any money or property, whatever might be the result, but only that it was directly and indirectly in¬ terested. The question is therefore distinct¬ ly presented whether a proceeding in one of the departments of the government, in which it does not appear that the United States is pecuniarly interested in the result, will neither make nor lose by the issue of the proceeding, whatever it may be, is one in which it is “directly or indirectly interest¬ ed.” Unless the statute, by clear intend¬ ment, includes the transaction, any exten¬ sion beyond its meaning so as to include the transaction would be, under the elementary rule governing the interpretation of crimi¬ nal statutes, simply judicial legislation, as it would be, by judicial construction, mak¬ ing that a crime which Congress has not so 202 U. 3.

made, and thereupon imposing punishment. United States v. Wiltberger, 5 Wheat. 77,

5 L. ed. 37; Sarlls v. United States, 152 U.

S. 570, 38 L. ed. 556, 14 Sup. Ct. Rep. 720; United States v. Harris, 177 U. S. 305, 44 L. ed. 7S0, 20 Sup. Ct. Rep. 609. There is a certain broad sense in which the word “interest” is sometimes used, which de¬ scribes the relation which the government has to the acts of all its officials, to all proceedings in courts or in departments, and, indeed, to the conduct of all its citi¬ zens. It is interested in seeing justice and righteousness obtain everywhere. It is in¬ terested in seeing that no wrongful con¬ duct shall prevail. But so is every offi¬ cial and every citizen interested. It is not an interest which separates and distin¬ guishes the government from the citizens, but it is that interest which all have, whether government or citizens, in the or¬ derly and just management of affairs, in honorable and right living. It is that in¬ terest which a father or head of a family has in the good conduct of all the members of his family. But the word “interest” as found in the law books refers to pecuniary profit and loss, and that Congress used the word “interested” in its common legal ac¬ ceptation is as clear and certain as any¬ thing can be.

*lt is well to inquire in the first placo[392] whether the word “interest” or “interested” has a settled legal meaning. A leading case is that of Northampton v. Smith, 11 Met.

390, in which was involved the construction of a statute of Massachusetts which pro¬ vided that, when, a judge of probate was interested in any case within his jurisdic¬ tion, the case should be transferred -to the most ancient adjoining county. The pro¬ bate judge transferred the case on the ground that he was one of the inhabitants of the town of Amherst, and that there were in the will which was offered for pro¬ bate many bequests to charitable purposes for the benefit of persons described as dwelling in the eight towns enumerated, of which Amherst was one. Mr. Chief Justice,

Shaw, delivering the opinion of the court, said (p. 394) :

“If the term ‘interest’ were used in the loose sense it sometimes is, consisting in a strong and sincere desire to promote all enterprises for the advancement of learn¬ ing, philanthropy, and general charity, or a similar interest, with all good men, to repress and put down pernicious and mis¬ chievous schemes, no man could be found fit to be intrusted with the administration of justice; for no man can be exempt from such interests.”

And again (p. 395 X:

“2. It must be a pecuniary or proprietary

1075

392-395

Supreme Court of the United States.

Oct. Term,

interest, a relation by which, as a debtor or creditor, an heir or legatee, or otherwise, he will gain or lose something by the re¬ sult of the proceedings, in contradistinction to an interest of feeling, or sympathy or bias, which would disqualify a juror. Smith v. Bradstreet, 16 Pick. 264.

“3. It must be certain, and not merely possible or contingent. Hawes v. Hum¬ phrey, 9 Pick. 350, 20 Am. Dec. 481; Wil- braham v. Hampden County, 11 Pick. 322; Danvers v. Essex County, 2 Met. 185. It must be direct and personal, though such a personal interest may result from a rela¬ tion which the judge holds as the mem¬ ber of a town, parish, or other corporation, [393] 'where it is not otherwise provided by law, if such corporation has a pecuniary or pro¬ prietary interest in the proceedings.

“It may be, and probably is, very true, as the human mind is constituted, that an interest in a question or subject-matter, arising from reeling and sympathy, may be more efficacious in influencing the judgment than even a pecuniary interest; but an in¬ terest of such a character would be too vague to serve as a test by which to de¬ cide so important a question as that of jurisdiction; it would not be capable of pre¬ cise averment, demonstration, and proof; not visible, tangible, or susceptible of being put in issue and tried; and therefore not certain enough to afford a practical rule of action.”

In McGrath v. People, 100 Ill. 464, it was held that:

“The state js not ‘interested, as a party or otherwise,’ in. a proceeding in the nature of a quo warranto to try the title of a per¬ son to- an office into which it was alleged he had intruded, in any such sense as would give to the supreme court jurisdiction to hear an appeal in such a proceeding direct¬ ly from the trial court, under § 88 of the practice act. The interest which the state must have in a cause, within the meaning of this section, in order to entitle either party to bring it directly to the supreme court from the trial court, is a substantial interest, — as, a monetary interest.”

In Evans v. Eaton, 7 Wheat. 356, 5 L. ed. 472, a patent case, the question was whether a certain witness was competent, the alleged objection being that he was interested, be¬ cause he might use the alleged invention if the patent was adjudged void, and Mr. Justice Story, speaking for the court, said (p. 425, L. ed. p. 489) :

“The special notice in this case asserts matter which, if true, and found specially by the jury, might authorize the court to adjudge the patent void; and it is supposed that this constitutes such an interest in Frederick in the event of the cause that he 1076

is thereby rendered incompetent. But, in this respect, Frederick stands in the same situation as every other person in the com¬ munity. If the patent is declared void, the invention *may be usetj. by the whole com- [394] munity, and all persons may be said to have an interest in making it public prop¬ erty. But this results from a general prin¬ ciple of law, that a party can take nothing by a void patent; and, so far as such an interest goes, we think it is to the credit, and not to the competency, of the witness.”

In State v. Sutton, 74 Vt. 12, 52 Atl. 116, the case and the ruling is disclosed by the following quotation from the opinion:

“This is an indictment under § 5072 of the Vermont statutes, for defaming this court and a judgment thereof, and the judges of the court as to said judgment. It is ob¬ jected that Judge Watson, who sat below, was disqualified by reason of interest in the event of the cause or matter, for that he is one of the judges alleged to have been defamed. It is a pecuniary interest that disqualifies, and Judge Watson is no more interested in this case in that respect than he is in every other criminal case that he tries, and that interest is too small for the law’s notice. State v. Batchelder, 6 Vt. 479.

It is said that a judge defamed would be deeply interested to have the respondent convicted, not only that he might be severe¬ ly punished, but also for the aid it might afford him in the prosecution and mainte¬ nance of a civil action for damages. But such an interest does not disqualify.”

In Foreman v. Marianna, 43 Ark. 324, it was held that a judge who was a taxpayer in a town was not disqualified from sitting in a case relating to the annexation of cer¬ tain territory to the town, the court saying (p. 329) :

“A general interest in a public proceeding, which a judge feels in common with a mass of citizens, does not disqualify. If it did, we might chance to have to go out of the state at times for a judge. The ‘in¬ terest’ which disqualifies a judge under the Constitution is not the kind of interest which one feels in public proceedings or public measures. It must be a pecuniary or property interest, or one affecting his individual rights, and the liability or peeun- iary ffain °r relief to the judge must occur upon the event of the suit, not result re¬ motely, *in the future, from the general op- [395] eration of laws and government upon the status fixed by the decision.”

In Taylor v. Highway Comrs. 88 Ill. 526, the question was who had the right to ap¬ peal from the decision of the commissioners of highways in laying out a new road or vacating an old one, and the court said :

“The word ‘interested’ must receive a reasonable construction, such as will, on

202 U. S.

Bubton v. United States.

395-397

tlie one hand, protect those who have a direct and substantial interest in the mat¬ ter, and, on the other hand, protect the com¬ missioners of highways from unnecessary litigation in defending their action as such, at the suit of persons who may imagine they have an interest, when in fact they have no such interest as was contemplated by the legislature. Every citizen of a coun¬ ty, in one sense, has an interest in the pub¬ lic highways. So, too, it may be said, and properly, that every citizen of the state has an interest in the highways in the dif¬ ferent counties of the state. If, therefore, the language of the statute is to be inter¬ preted literally, an appeal might be taken by any citizen of the state. But we appre¬ hend it was not the intention of the legis¬ lature that the word ‘interested’ should re¬ ceive such a liberal construction. It was, doubtless, intended to give the right of ap¬ peal to those persons who had a direct and pecuniary interest, not shared by the public at large, — such as owned land ad¬ joining the new road laid out or the old one vacated.”

In Chicago, B. & Q. R. Co. v. Kellogg, 54 Neb. 138, 74 N. W. 403, in deciding whether a trial judge was disqualified, this was the ruling:

“ ‘A judge ... is disqualified from acting as such ... in any case where¬ in he is ... interested.’ But the word ‘interested,’ found in this section of the statute, probably means pecuniarily inter¬ ested, or at least it means that a judge, to be disqualified from hearing a case, must be in such a situation with reference to it or the parties that he will gain or lose something by the result of the action on trial. It is not claimed that Judge Beall will gain or lose anything from the result [396]of *this action. It is not pretended that he has any pecuniary interest in the matter. The argument seems to be that, because he rendered the law judgment, he would naturally be desirous that the same should be sustained, and that, therefore, his in¬ clination would be to defeat this suit. It can never be presumed that a judge will per¬ mit his desires or inclinations to control his decision in any manner and that he tried the case and rendered the judgment which is sought to be vacated by this action does not render him interested and disquali¬ fied, within the meaning of said section of the statute.”

See also Com. v. O’Neil, 6 Gray, 343; Sauls v. Freeman, 24 Fla. 209, 12 Am. St. Rep. 190, 4 So. 525; Boioman’s Case, 67 Mo. 146.

In Bouvier’s Law Dictionary, vol. 1, p. 651, “interest” is defined:

“The benefit which a person has in the

202 U. S.

matter about to be decided and which is in issue between the parties. By the term ‘benefit’ is here understood some pecuniary or other advantage, which, if obtained, would increase the witness’s estate, or some loss which would decrease it.”

In Black’s Law Dictionary the definition is (p. 636) :

“A relation to the matter it controversy, or to the issue of the suit, in the nature of a prospective gain or loss, which actually does, or presumably might, create a bias or prejudice m the mind, inclining the per¬ son to favor one side or the other.”

If the word “interested” was not used in this section in this ordinary legal sense, the words “in which the United States is a party or directly or indirectly interested” are surplusage, because, in respect to every proceeding before a department or other tribunal, the United States as parens patrice has an interest, in what Chief Jus¬ tice Shaw calls the “loose” sense of the term. Indeed, what significance is there in inserting the words from “contract” to “in¬ terested,” inclusive, unless some distinct limitation was intended? If the language was “in relation to any proceeding before any department, court-martial,” etc., it would express the intent to exclude *Sen-[397] ators from appearance for compensation in any and all matters before the departments. Inserting the clause above referred to ob¬ viously means a limitation, and no other limitation is suggested except that which limits it to matters in which the govern¬ ment is pecuniarly interested. Neither do the words “or any other matter or thing” enlarge the scope of the prohibition so as to take in matters of a different nature.

The rule of construction regarding the effect of such words when following an enumera¬ tion of subjects is that they are to be held as meaning any other matter or thing of a like or similar nature to those already named, so that all subjects of that kind may be included, and none escape by reason of not being specially named. They do not open the statute to all kinds of matters or things not of the same nature as those already named. Otherwise there would be no sense in the prior enumeration. Her- rnance v. Ulster County, 71 N. Y. 481;

People v. New York & M. B. R. Co. 84 N.

Y. 565; Thames & M. Marine Ins. Co. v. Hamilton, L. R. 12 App. Cas. 484.

Doubtless the government is charged with the supervision of the action of all its officials, but that supervision does not, of itself, create a pecuniary interest. This court has a supervising control of the lower Federal judicial tribunals. We are interest¬ ed in seeing that full justice is done in all cases therein. But that duty of supervision and review creates no pecuniary interest,

1077

"37—400

Supreme Court of the United States.

Oct. Term,

and does not disqualify a single one of us from participating in the consideration of this case.

If it be said that the government is pecuniarily interested in the postage the amount of which might be affected bjr the issue of a fraud order, it is enough to say that there is no proof of any such interest. Further, postage is received in payment for services rendered in transportation. If no services are rendered no postage is received. The issue of a fraud order does not put a stop to the carrying of letters. It simply stops the delivery. It may be that when knowledge of the issue of a fraud order becomes widespread, the number of letters [398]may be ‘diminished, but, as heretofore said, diminishing the amount of mail matter di¬ minishes likewise the cost thereof. The gov¬ ernment is no more interested in an increase or diminution of the amounts received by railroad and other carriers for transporting the mails, or those received by stamp con¬ tractors for the manufacture of stamps, than it is in the fees received by marshals, clerks, and other officers for services ren¬ dered to individuals. In any event, oppos¬ ing a fraud order would not, in the lan¬ guage of the chairman of the House Com¬ mittee on the Judiciary, hereinafter quoted, be a suit against the government.

Again, the history of the passage of the bill which culminated in this statute em¬ phasizes the views already expressed. The bill was introduced into the Senate Decem¬ ber 23, 1863, by Senator Wade. As pre¬ pared, it forbade the appearance of a Sen¬ ator or member of the House of Represent¬ atives in any court as well as department, etc. On February 10, 1864, the Committee on the Judiciary reported in favor of strik¬ ing out the following words (p. 555) :

“No member of the Senate or of the House of Representatives of the United States shall, during his coptinuance in office, hereafter appear or act as counsel, attorney, or agent in any cause or proceeding, civil or criminal, in any court — civil, criminal, mili¬ tary, or naval — or before any commission, in which the United States is a party or directly or indirectly interested, or receive any compensation of any kind, directly or indirectly, for services of any description rendered by himself or another in relation to any such cause or proceeding;”

— and they were stricken out.

On page 561 is this statement by Senator Trumbull, the chairman of the committee:

“This is not a bill to prevent attorneys from practising in courts of ,law. but it is a bill to prevent Representatives and Sen¬ ators in Congress and officers of the govern¬ ment, who are paid for their services, from 1078

receiving a compensation for advocating claims in the departments and before the bureaus *of the government, and betore[399] courts-martial. That is the particular ques¬ tion that is pending.” t.

On p. 2773 in the proceedings of the House it appears:

“Mr. Wilson, from .the Committee on the Judiciary, reported back Senate bill No. 28, relating to members of Congress, heads of departments, and other officers of the gov¬ ernment. The bill was read. It prescribes penalties for members of Congress, heads of departments, or other officers engaging as attorneys or counselors in suits against, the government. The bill was ordered to a third reading; and was accordingly read the third time and passed.”

While much weight must not be given to the declarations of individual Senators, those which are embodied in the reports of the chairmen of the judiciary committees are certainly entitled to consideration, and they show clearly that the intent of Congress in this enactment was to prevent Senators and other officials of the government from receiving compensation for assisting in the prosecution of claims against the govern¬ ment. It would be the height of absurdity to suppose anyone believed that a Senator should be debarred from the right ,-of ap¬ pearing in any court in cases in which the government is without a pecuniary interest, and yet, that was the scope of the bill as originally presented, if the present construc¬ tion of the statute is sustained.

Further, while it may be true that execu¬ tive officers are apt to give undue weight to the wishes of Senators, yet, there is nothing in this statute to prevent a Senator from exerting all his influence over them.

He may prosecute any claims in behalf of his constituents or others, even though the government is directly and largely pecun¬ iarily interested. He may appear in any matter or proceeding pending before one of the departments, and there is nothing in the statute to prohibit it. The only restric¬ tion is that he must himself have no pecun¬ iary interest in the matter. The denuncia¬ tion is against his receiving, or agreeing to receive, compensation for his services. Is it not reasonable to believe that, if pecun¬ iary interest on his ‘part is the only bar [400] to his action, a like pecuniary interest on the part of the government is that interest on the other side intended by the statute?

It is said the language of the section is “directly or indirectly interested,” but that does not change the fact that the Government must be interested; and inter¬ ested, as I have shown, refers to some pe¬ cuniary interest. It is directly interested when, as the result of the proceeding, it

202 TJ. S.

James v. United States.

400-402

may make or lose some of its property, as, where a claim is prosecuted in the depart¬ ment for a tract of land, or for the allow¬ ance of a contract to a higher rather than to a lower bidder. It is indirectly inter¬ ested when the effect of the ruling may re¬ sult in pecuniary loss to the government in some other case to be thereafter pre¬ sented to the department. It may be that, in a pending case, the government is guaT- anteed against loss, and yet, if a certain ruling is established as the ruling of the department, it may affect future cases in which there is no such indemnity to the government, and in those cases it would be indirectly interested. But whatever the line of demarcation between “direct” and “indirect” results, the statute is clear that the government must be “interested.”

Other matters of moment have been dis¬ cussed by counsel, but as this is fundamen¬ tal, and upon it rests the whole prosecution, I have preferred to express my views on this matter alone. It seems clear to my mind that the construction now given writes into the statute an offense which Congress never placed there. It is a criminal case, and, in such a case above all, judicial legislation is to be deprecated.

I am authorized to say that Mr. Justice White and Mr. Justice Peckham concur in these views.