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except as permitted by the act, any public money, every such act should be deemed an embezzlement.

2. That if any officer charged with the disbursement of public money should take a false voucher, every such act should be deemed a conversion of the amount specified.

The penal clause then follows: “And any officer or agent of the United States, and all persons participating in such act, being convicted before any court, shall be sentenced,” &c. It was held that this clause was to be taken distributively, and that it was clearly intended to apply to all the acts of embezzlement specified in the section, to those relating to moneys in the first category, as well as those relating to vouchers in the second.

Further objection is made to this indictment that the writing upon the postal card contains no “ indecent epithet," within the proper meaning of the term. The word epithet, as defined in dictionaries, is apparently limited to adjectives and nouns, expressive of some character, quality, or attribute. In the earlier edition of Webster it is extended to nouns as well as to adjectives ; in the later editions, however, it seems to be confined to adjectives, the exact meaning of the word is discussed there, and its use in the sense of phrase, name, or expression is pronounced improper. Now if the court were confined, in the interpretation of this section, to the strict grammatical definition of the word epithet, I should be of the opinion that the writing upon this card contains no indecent epithet. Obviously, however, it could not have been the intent of Congress that the word should receive this restricted meaning, or that the conviction or acquittal of a prisoner should depend upon the fact whether he employed adjectives or verbs to express his indecent or scurrilous ideas. Clearly, to call a man a “thief,” or “thieving rascal,” would be within the statute. Would it not be equally within the intent of the statute to say of him that he is in the habit of stealing ?

It is unnecessary here to decide whether the words “ Indecent and scurrilous epithets were intended to include all indecent and scurrilous expressions or language — such for instance as threats couched in indecent terms, although there is much force in the argument that Congress intended to prohibit the use of postal cards for the purpose of sending any indecent expressions. I am clearly of the opinion that it was not intended to confine the use of the words to nouns or adjectives ; but that any form of expression which imputes to a person any indecent or scurrilous characteristic or quality is within the statute. The original signification of the word epithet is sometimes put upon, attributed, charged, or imputed, whatever might be the form of words employed. It so happens that adjectives are most frequently used for this purpose, and hence the meaning of the word has been gradually restricted to nouns and adjectives, and, finally, according to the present usage, to adjectives alone. The gist of the word epithet in this section is the thought or imputation conveyed by the words employed, and not the particular parts of speech used to convey it. I am satisfied that Congress did not intend to employ the word epithet in its restricted sense, and my only doubt is whether the statute was not intended to embrace all scurrilous and indecent communication. • I think the jury are at liberty to infer, from the postal card in question VOL. II.


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in this case, that the writer intended to impute to the woman whose name is mentioned an illicit connection with a colored man, and hence that it contains an indecent epithet within the meaning of the statute.

It is true that penal statutes must be construed strictly. That is, as observed by Mr. Justice Story, in The United States v. Winn, 3 Sumn. 211: “That penal statutes are not to be enlarged by implication, or extended to cases not obviously within their words and purport; but where the words are general, and include various classes of persons, I know of no authority which would justify the court in restricting them to one class, or in giving them the narrowest interpretation, where the mischief to be redressed by the statute is equally applicable to all of them. But where a word is used in a statute which has various known significations, I know of no rule which requires the court to adopt one in preference to another, simply because it is more restrained, if the objects of the statute equally apply to the largest and broadest sense of the word. In short, it appears to me that the proper course in all these cases is to search out and follow the true intent of the legislature, and to adopt that sense of the word which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature.”

While the liberty of the citizen is not to be taken away by an application of the statute to cases not clearly falling within the intent of the legislature, society also has its right, and the beneficent purpose of penal laws should not be frittered away by a rigid adherence to literalisms and grammatical definitions. In Winn's case, above cited, the word “crew," as applied to seamen, was held to include the first mate; and in Hartwell's case (supra), a clerk in the office of the assistant treasurer was held to be an officer within the meaning of the sub-treasury act.

See, also, The Industry, 1 Gall. 117; U. S. v. Mattock, 2 Sawyer, 148; U. S. v. Wiltberger, 5 Wheat. 76; The Enterprise, 1 Paine, 32; U. S. v. Hartwell, supra.

The motion to quash must be denied.




[APRIL, 1875.]



OSGOOD v. CHICAGO, DANVILLE, AND VINCENNES R. R. CO. The Act of March 3, 1875, providing for the removal of causes, permits a removal in any

suit mentioned where the controversy is wholly between citizens of different states, and which can be fully determined as between them. And any one or more of the parties, either plaintiff or defendant, may make the removal. The fact that the res has been seized by the state court does not affect the right of re

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moval. The removal of the cause transfers the res as a necessary part of the proceed

ings. The petition for removal may be filed in vacation. The bond must be good and sufficient security, but need not be approved by the state court. It is not essential (at least in the State of Illinois) that the record be certified other than

by the clerk of the state court, under the seal of the court. Nor is it necessary that the petition be verified by affidavit. On the 22d of February, 1875, plaintiff, a bondholder of the railroad company defendant,

filed a bill in a state court against defendant and others (trustees of mortgages given by it, including the president, treasurer, and directors), to foreclose the mortgages, and an injunction was issued and receivers appointed. On the 23d of February, a petition for removal was filed by certain non-resident defendants. February 24th the bill was amended by making divers judgment creditors defendants, one of whom, on the same day, filed a cross-bill. February 26th other creditors were made defendants with leave to file cross-bills. March 1st other persons petitioned to be made co-plaintiffs. No action was taken on the petition last mentioned, nor had more than the one cross-bill been filed ; but a demurrer had been argued and taken under advisement,

and the court had adjourned for the term. On March 22d, during vacation, a petition for removal under the Act of March 3, 1875,

was filed by the company, a corporation of the state in which the bill had been filed, in which the president, treasurer, and trustees joined. A bond, which had not been approved by the state court, was also filed, and a copy of the record without the certificate of the judge, bearing, however, the signature of the clerk and seal of the court. Held: (1.) It appearing that the rights of the judgment creditors were subject to the prior liens of the bondholders, that their interposition could not affect the power

of removal. (2.) That the fact that a cross-bill had been filed by a judgment creditor was equally

ineffectual to prevent the removal. (3.) That the cause was removable under the statute. (4.) That the petition for removal was seasonably filed. (5.) That the facts constituted a legal removal of the cause. The court discusses the statute in divers aspects, defining its scope and operation, the relations of the federal and state courts thereunder, and other points.

THE facts are stated in the opinions.

The Act of March 3, 1875, appears in full in the American Law Times for April, 1875.

Mr. Crawford f Mr. McDonald, for plaintiff.
Mr. Walker f Mr. Campbell, contra.

DRUMMOND, J. On the 22d of February, 1875, the plaintiff, as a bondholder of the railroad company, filed a bill in the Will County circuit court against the company and certain defendants (trustees of mortgages amounting to several millions of dollars, given by the railroad company, including the president and treasurer and members of the board of directors), to foreclose the mortgage. The bill charges various breaches of trust on the part of the officers of the company, and asks for an injunction to prevent them from negotiating certain bonds of the company, and for a receiver. The court, without notice to the defendants, issued the injunction and appointed receivers at the time the bill was filed. On the 23d of February, a petition was filed by some of the non-resident defendants to remove the suit into this court, which was refused by the state court. On the 24th of February, the bill was amended by making various judgment creditors defendants. On the same day, one of the judgment creditors answered and filed a cross-bill, praying the court to enforce the lien against the company, and that the receivers should pay

the same. On the 26th of February, on petition, other creditors of the company


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were made defendants, who asked leave to file cross-bills. These claims of the judgment and other creditors were all subsequent in point of time and right to those of the bondholders under the mortgages. On the 1st of March certain persons petitioned to be made co-plaintiffs.

There was no action of the court on the petition last referred to, and the only cross-bill filed was that of the 24th of February, already mentioned. There was a demurrer to the bill, which had been argued and taken under advisement by the court. There had also been some incidental motions made in the case, which need not be particularly referred to. The court had adjourned for the term. This was accordingly the position of the case when, on the 22d day of March, petitions were filed in the suit with the clerk of the court by the railroad company, a corporation of this state ; Judson, the president, and Tenney, the treasurer, and by the trustees, Roberts, Fosdick, and Fish, asking for the removal of the cause from the state court to this court, under the act of Congress of the 3d of March, 1875. The petitions alleged that the amount in controversy was of the value of more than $500; that the plaintiff was a citizen of Massachusetts; that the parties who had petitioned to be made co-plaintiffs were citizens of Pennsylvania ; and that Judson, Tenney, and Fish were citizens of New York ; Fosdick a citizen of Connecticut, and Roberts a citizen of Illinois. Bonds were filed, conditioned as required by the act of Congress. A transcript of the record of the suit in the state court was filed in this court March 24. A motion is made to dismiss the suit, on the ground that this court has no jurisdiction of the case.

It seems to have been the intention, in the recent act, to consolidate into one act all the previous general acts of Congress conferring jurisdiction upon the circuit court, and at the same time to give the court jurisdiction in some cases where no previous act of Congress had conferred it. The court has now jurisdiction in suits between the citizens of different states, without regard to the fact whether or not one of the parties is a citizen of the state where the suit is brought. The act also authorizes a case to be removed from the state to the federal court under such circumstances. The Judiciary Act of 1789, as construed by the supreme court, required that each of the parties plaintiff should have the right to sue each of the parties defendant, in a suit between citizens of different states, and equally so in the case of removal from the state to the federal court under the authority conferred by the twelfth section of that act. The act of 1866 declared that when a suit was brought in a state court by a citizen of that state against a citizen of another state, and a citizen or citizens of the same state as the plaintiff, that if the controversy might finally be determined between the plaintiff and the citizen of the other state without the presence of the co-defendants, it might be removed to the federal court. The recent act of Congress declares that in any suit mentioned in the law when there shall be a controversy which is wholly between citizens of different states, and which can fully be determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove the suit into the federal court. This is the first time that Congress has authorized a defendant, a citizen of the state where the suit is brought, to remove the case from the state to the federal court. As this is a case where there are several defend

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ants, some of whom have not joined in the petition for removal, the question is whether there is a controversy wholly between the plaintiff and those who have petitioned for a removal and which can be fully determined as between them. The controversy in this case, as between these parties, is whether the bonds referred to in the bill are valid debts against the company, and the mortgages can be foreclosed and the claim enforced against the company; and whether the officers of the company have been guilty of any of the breaches of trust alleged against them. The officers named as defendants, and the railroad company, would seem to be parties whose rights, as between them and the plaintiff, can be fully determined as being a controversy wholly between them. The other parties who have joined in the petition for removal are mere trustees. It is a controversy wholly between citizens of different states.

The fact that there are various judgment creditors, whose rights are subject to the prior liens of the bondholders cannot affect the power of removal, — their rights remaining unchanged. Neither can the fact that a judgment creditor has filed a cross-bill, for then it would always be in the power of a.creditor to prevent the operation of the statute. The difficulty arising from the possession of the res or property by the state court is more apparent than real. If the res has been seized as an incident of the controversy between the citizens of different states, then the removal of the cause into the federal court transfers the res with it as a necessary part of the proceedings, and the fact that collateral issues, as connected with the res, have sprung up in the state court, cannot destroy the right of removal, provided the parties seeking it bring themselves within the terms of the statute. The language of the third section is that the petition for the removal must be filed in the state court before or at the term at which the cause can first be tried. It may prove in some cases, particularly those of equity, difficult to determine the term when the cause can first be tried.

It is not claimed in this case that the petition was not filed in due time, but it is objected that it was filed in vacation, and not during any term of the court, and that there was no action of the court


the petition or on the bond. I do not think the objection can be sustained on either ground. The law requires the petition to be filed in the suit, and it may be before the term, and, in fact, it is often desirable immediately after a suit is commenced in the state court to remove it into the federal court before there is any action of the state court in the case.

It is true, that under the statute the bond must be good and sufficient security, but it does not declare that it shall be approved by the judge. It requires the state court to accept the petition and bond and proceed no further in the case. Now suppose the state court should refuse to accept the petition or the bond, or should decide that a bond, valid under the law and with good and sufficient security, was not so, would that deprive the party of the right of removal ? Clearly not. This statute seems to have been passed with a full knowledge of the difficulties growing out of the action or non-action of the state courts under previous laws, and with a determination to make the power of removal independent of the action of the state court. It is not stated in every case under this statute, as in those of 1789 and of 1866, that certain facts are to appear to the satisfaction of the court. And this is the more apparent from the authority conferred

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