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transportation of goods at less than the published rate. Whether shippers who pay a rate under the honest belief that it is the lawfully established rate, when in fact it is not, are liable under the statute because of a duty resting on them to inform themselves as to the existence of the elements essential to establish a rate as required by law, is a question not decided because not arising on this record. The stipulated facts show that the shippers had knowledge of the rates published and shipped the goods under a contention of their legal right so to do. This was all the knowledge or guilty intent that the act required."
It might be implied from this remark of the court that an intent to commit an act which constitutes the offense is essential, but the court leaves undecided the vital question whether the accused would be guilty in case he was honestly mistaken as to a material element in the facts.
It therefore appears that the authorities are in sharp conflict, and that the question is one not definitely settled by the United States courts, but with an apparent leaning in favor of the position that there must be knowledge of the act which constitutes the offense, and an intent to commit such act, although knowledge that the act will constitute a criminal offense is not necessary, as the want of such knowledge would be only ignorance of the law.
But, I am of the opinion that in the present controversy it is unnecessary to adopt either of the views contended for.
A general principle, recognized in all the authorities, is that there may be such character of negligence as will take the place of criminal intent. As said in I Bishop New Criminal Law, section 313:
"There is little distinction except in degree between a will to a wrongful thing and an indifference whether it is done or not; therefore, carelessness is criminal, and within limits supplies the place of the affirmative criminal intent."
In United States v. Thomson (12 Fed. 245, 248), it was said, “In many cases negligence or indifference to duty or consequences is equivalent to a criminal intent;" and, consequently, the master of a vessel was found guilty of permitting the vessel to be overloaded with passengers, without himself knowing or taking any steps to know how many passengers were on board, on the ground that the statute imposed upon him the active duty of ascertaining the number taken on board, and his neglect of this duty was equivalent to a criminal intent.
None of the cases holding that an intent is a necessary ingredient of a criminal offense are antagonistic to this theory, because the question of negligence did not arise therein, and was not considered.
It was clearly the intention of Congress, in enacting the provisions heretofore quoted, requiring the safe-keeping of money by officials intrusted therewith, that the greatest diligence and care should be exercised by them, and that every precaution should be taken to safely keep and account for the same. If money should be lost by robbery, or fire, or by any accidental means, after every precaution had been exercised by the official having it in his possession, it would indeed be a harsh rule that would not only hold him and his sureties liable for the same, but would confine him in the penitentiary for its loss; but, where he is guilty of gross negligence, as a direct result of which the money is lost, both the letter and the spirit of the statute have clearly been violated, and every necessary element of the crime is present. To hold otherwise would practically nullify section 88 of the Penal Code, as apparently all other methods of loss, except accidental, which could be thought of, are enumerated in sections 87 and 89.
In the specification under the second charge it is alleged that Assistant Paymaster Haughey had been furnished a safe, with combination locks on both the outer and inner doors, for the safe-keeping of this money; that, notwithstanding he well knew that it was his duty to keep the safe securely locked during his absence from the ship, yet on the day mentioned he removed the lock from the inner door of the safe and failed and neglected to lock the outer door, and, knowing that the safe was in this condition, he left the vessel; and that, as a result of this negligence, the money was lost; and the court-martial found as a fact that these allegations were true.
I am of the opinion, therefore, that in view of the very stringent terms of this statute, the conduct of Assistant Paymaster laughey in knowingly leaving the safe in the condition described, was equivalent to a criminal intent, and that he was guilty of embezzlement under the provisions of section 88 of the Penal Code.
I am further of the opinion that you would be justified in returning the record to the court-martial for revision, but as to whether or not you shall do so, is a question of policy which addresses itself to your department alone. Respectfully,
GEORGE W. WICKERSHAM.
The SECRETARY OF THE NAVY.
Preference in the matter of appointment to civil office accorded by
section 1754 of the Revised Statutes to persons honorably discharged from the military or naval service by reason of disability resulting from wounds or sickness incurred in the line of duty, is not subject to the law of apportionment and extends over all others on the eligible list irrespective of their rating.
DEPARTMENT OF JUSTICE,
May 12, 1910. Sir: I have the honor to acknowledge the receipt of your letter of the 18th ultimo, inclosing a communication from the Civil Service Commission in regard to the adjustment of various contrariant decisions and rulings in respect to the preference in the matter of appointment to civil office accorded by section 1754 of the Revised Statutes to persons honorably discharged from the military or naval service by reason of disability resulting from wounds or sickness incurred in the line of duty.
The decisions and rulings which it is sought to harmonize are thus stated in a memorandum prepared by the commission:
“The commission has throughout its history treated eligibles under section 1754, R.S., as entitled to be certified before all others on the same register. The practice is set forth in the inclosed circular relating to veteran preference.
Eligibles entitled to preference have been certified first even when the States in which they were residents had already received an excess of appointments under the apportionment and all other eligibles from the same States were for that reason excluded from that certification.
“In an opinion of August 18, 1909 (27 Op. 546, 563), rendered in connection with the census act approved July 2, 1909, the Attorney-General held:
"Nor do these statutes' (referring to section 1754, R. S., and section 7 of the civil-service act) 'interfere with the rule of apportionment established by section 2 of the act of 1883, and reenacted for the census service in section 7 of the act of 1909. The preference would apply whenever in the eligible register of applicants residing and domiciled in a particular State or Territory, out of the number to which such State or Territory is entitled in conformity to the law of apportionment, an honorably discharged soldier or sailor shall have qualified and shall be inscribed on the register. Such applicant must be preferred for appointment over others similarly qualified and inscribed on the same register.'
“The following letter from the Secretary of Commerce and Labor, dated January 6, 1910, indicates the manner in which it is proposed to give effect to section 1754, R. S., in appointments under the census act approved July 2, 1909:
“The eligible registers resulting from the examination for the Census Bureau, held on October 23 last, which were recently forwarded by the commission to the Director of the Census, contain the names of several persons who were allowed preference by the commission under section 1754 of the Revised Statutes. In each such case the commission placed the name of the person to whom preference was allowed at the head of the appropriate register.
"The question having arisen as to whether the requirement of section 7 of the act of July 2, 1909 (the thirteenth census act), that selections should be made from the register in the order of rating, would permit the selection of preference claimants ahead of those not preference claimants who made higher ratings in the examination, the matter was submitted to the department's solicitor for a legal opinion. The gist of the solicitor's opinion is contained in the following paragraph:
"In view of the position taken by the Attorney-General in construing section 1754, R. S., as above indicated, I am of opinion that that section and section 7 of the thirteenth census act should be construed as two harmonious expressions of the legislative will, and that, therefore, as between eligibles of the same rating, those who have been honorably discharged from the military or naval service, as contemplated by section 1754, should be given the preference in the matter of appointment, but that, as between eligibles of different ratings, those of higher ratings should take precedence over those of lower rating irrespective of the provisions of section 1754, R. S.'
“In view of the foregoing, the Director of the Census will place the names of persons who have been allowed preference on the appropriate register (or registers) above those who make the same rating and below those who make higher ratings.'
"The opinion of the Attorney-General of August 18, 1909, and the letter of the Secretary of Commerce and Labor of January 6, 1910, seem to place two new constructions on section 1754, R. S., as follows:
"1. Certification of preference claimants only when their States are in order of appointment under the apportionment.
"2. Certification of preference claimants only before other persons who are equally qualified; that is, having the same general averages in the examination.
“A uniform interpretation and practice are desirable.”
Section 7 of the civil-service act of January 16, 1883 (22 Stat. 406), provides:
“That after the expiration of six months from the passage of this act no oslicer or clerk shall be appointed, and no person shall be employed to enter or be promoted in either of the said classes now existing, or that may be arranged hereunder pursuant to said rules, until he has passed an examination, or is shown to be specially exempted from such examination in conformity herewith. But nothing herein