First Nat. Bank of Anamoose v. United States

• Decision Date: 13 June 1913
• Docket Number: 3,751.
• Citation: 206 F. 374
• Parties: FIRST NAT. BANK OF ANAMOOSE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

206 F. 374

FIRST NAT. BANK OF ANAMOOSE v. UNITED STATES.

No. 3,751.

United States Court of Appeals, Eighth Circuit.

June 13, 1913

George A. Bangs, of Grand Forks, N.D., and Lawrence Maxwell, of Cincinnati, Ohio (George R. Robbins, of Grand Forks, N.D and Joseph S. Graydon, of Cincinnati, Ohio, on the brief) for plaintiff in error.

Edward Engerud, U.S. Atty., of Fargo, N.D., and Charles E Littlefield, of New York City, Sp. Asst. Atty. Gen., for the United States.

William W. Watts, of Louisville, Ky., amicus curiae.

Before SANBORN, Circuit Judge, and WILLIAM H. MUNGER and TRIEBER District Judges.

SANBORN Circuit Judge.

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

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

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

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

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

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

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

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

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

Indeed although this statute was enacted on March 4, 1909, no one except the United States Attorney for North Dakota seems to have discovered that it was intended to subject banks collecting such drafts to punishment by fine, until the opinion of the court below to that effect was formed and expressed in June, 1911. The act for which this bank has been convicted and fined was done on March 15, 1911. If the concession were made that it was the intention of the Congress to include banks among those liable to...