Opinion of the Court.

in any other manner whatever, and provided the same shall not have been delivered to the party to whom it is directed, every such person shall, on conviction thereof, for every such offence, be imprisoned at hard labor not less than one nor more than five years."

The words at the close of the section, "every such person shall, on conviction thereof, for every such offence, be impris oned," are omitted in the revised section, and the question is whether that change works the change in the law contended for. It will be perceived that if the word "or," or the word "and," were supplied before the words "any such person who shall steal," etc., as having been omitted by way of ellipsis, a course often pursued, the objection would have nothing to rest on. But we do not think the supplying of any word is necessary. If the comma after the word "directed," in the third line from the close of the section as it appears in the Revised Statutes, be treated as a semicolon, the result is the same, and obviates any uncertainty in the matter. For the purpose of arriving at the true meaning of a statute, courts read with such stops as are manifestly required. Hammock v. Loan and Trust Co., 105 U. S. 77, 84; United States v. Isham, 17 Wall. 496.

As contended on behalf of the defendant, there can be no constructive offences, and before a man can be punished, his case must be plainly and unmistakably within the statute. But though penal laws are to be construed strictly, yet the intention of the legislature must govern in the construction of penal as well as other statutes, and they are not to be construed so strictly as to defeat the obvious intention of the legislature. United States v. Wiltberger, 5 Wheat. 76; United States v. Morris, 14 Pet. 464; Am. Fur Co. v. United States, 2 Pet. 358, 367.

"It appears to me," said Mr. Justice Story, in United States v. Winn, 3 Sumner, 209, 211, "that the proper course, in all these cases, is, to search out and follow the true intent of the legislature, and to a lopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature."

Opinion of the Court.

To the same effect is the statement of Mr. Sedgwick, in his work on Statutory and Constitutional Law, 2d ed. 282: "The rule that statutes of this class are to be construed strictly, is far from being a rigid or unbending one; or rather, it has in modern times been so modified and explained away as to mean little more than that penal provisions, like all others, are to be fairly construed according to the legislative intent as expressed in the enactment; the courts refusing, on the one hand, to extend the punishment to cases which are not clearly embraced in them, and, on the other, equally refusing by any mere verbal nicety, forced construction or equitable interpretation, to exonerate parties plainly within their scope."

This passage is quoted by Baron Bramwell in Attorney General v. Sillem, 2 H. & C. 532, as one "in which good sense, force and propriety of language are equally conspicuous; and which is amply borne out by the authorities, English and American, which he cites." Foley v. Fletcher, 28 L. J. (N. S.) Ex. 100, 106; Nicholson v. Fields, 31 L. J. (N. S.) Ex. 233; Hardcastle on Statutory Law, p. 251.

And the reason for the less rigorous application of the rule is well given in Maxwell on the Interpretation of Statutes, 2d ed. p. 318, thus:

"The rule which requires that penal and some other statutes shall be construed strictly was more rigorously applied in former times, when the number of capital offences was one hundred and sixty or more; when it was still punishable with death to cut down a cherry-tree in an orchard, or to be seen for a month in the company of gipsies. But it has lost much of its force and importance in recent times, since it has become more and more generally recognized that the paramount duty of the judicial interpreter is to put upon the language of the legislature, honestly and faithfully, its plain and rational meaning, and to promote its object. It was founded however, on the tenderness of the law for the rights of individuals, and on the sound principle that it is for the legislature, not the court, to define a crime and ordain its punishment."

We entertain no doùbt that two classes of offences were intended to be created by section 5467, one relating to the

Opinion of the Court.

embezzlement of letters, etc., and the other to stealing the contents, and that this conclusion is not reached in violation of any rule of construction applicable to penal statutes.

But it is said that the offence of embezzling a letter is covered by section 3891 of the Revised Statutes, and that of abstracting its valuable contents by section 5467, and hence the latter was intended to be confined to stealing the contents and should not be held to embrace secreting, embezzling or destroying the letter, which might contain nothing of value.

Section 3891 is as follows:

"Any person employed in any department of the postal service, who shall unlawfully detain, delay, or open any letter, packet, bag, or mail of letters intrusted to him, or which has come into his possession, and which was intended to be conveyed by mail, or carried or delivered by any mail-carrier, mail-messenger, route-agent, letter-carrier, or other person employed in any department of the postal service, or forwarded through or delivered from any post-office or branch post-office established by authority of the Postmaster General; or who shall secrete, embezzle, or destroy any such letter, packet, bag, or mail of letters, although it does not contain any security for or assurance relating to money or other thing of value, shall be punishable by a fine of no more than five hundred dollars, or by imprisonment for not more than one year, or by both."

This section is based on section 146 of the act of June 8, 1872 (17 Stat. 302), which reads thus:

"That any person employed in any department of the postal service, who shall unlawfully detain, delay, or open any letter, packet, bag, or mail of letters intrusted to him, or which shall have come into his possession, and which was intended to be conveyed by mail, or carried or delivered by any mailcarrier, mail-messenger, route-agent, letter-carrier, or other person employed in any department of the postal service or forwarded through or delivered from any post-office or branch post-office established by authority of the Postmaster General; any such person who shall secrete, embezzle, or destroy any such letter, packet, bag, or mail of letters, as aforesaid, which

Opinion of the Court.

shall not contain any security for or assurance relating to money or other thing of value, every such person shall, on conviction thereof, for every such offence, forfeit and pay a penalty of not exceeding five hundred dollars, or be imprisoned not more than one year, or both, at the discretion of the court."

The contention is that the embezzlement of a letter is punishable only under section 3891, whether it does or does not contain a thing of value; that if it does the offender is not liable under section 5467, unless he steals it; and that this is a reasonable and just construction, as the letter may have been taken without intention to abstract the article, and indeed without suspicion of the contents until the interior is explored. And it is urged that as section 146 of the act of June 8, 1872, expressly provided a penalty for the embezzlement of a letter," which shall not contain" anything of value, and its substitute, section 3891, uses the language, “although it does not contain " anything of value, the latter section has been thereby broadened so as to punish the offence whether the letter contains an article of value or not. This view would require us to hold that the intention was to do away. with the long-observed distinction between embezzling letters containing valuable matter and those which do not, and to absolve the culprit from liability for all the consequences of his unlawful act, notwithstanding the offences of secreting, embezzling, or destroying letters of the first class are carefully defined. If section 3891 covers the embezzlement of all letters and mail matter, no reason for the larger part of section 5467 can be perceived. The construction contended for is inadmissible.

We concur with counsel for the government, that as sections 146 and 279 of the act of June 8, 1872, are to be considered together, so are sections 3891 and 5467, and that the offences of secreting, embezzling, or destroying mail matter, not containing articles of value, are punishable under the one, and containing such articles under the other. We are unable to find any sound reason for the conclusion that Congress intended to substitute for "imprisonment at hard labor for

Syllabus.

not less than one year nor more than five years,” the penalty denounced by section 279 and carried into section 5467, in respect to the embezzlement of mail matter containing articles of value, "a fine of not more than five hundred dollars, or by imprisonment for not more than one year, or by both," the punishment for embezzling mail matter not containing such articles.

Similar views as to section 5467 were expressed by Judge Benedict in United States v. Pelletreau, 14 Blatchford, 126, and United States v. Jenther, 13 Blatchford, 335, and by Judge Brewer as to section 5469, in United States v. Falkenhainer, 21 Fed. Rep. 625. Contra, United States v. Long, 10 Fed. Rep. 879.

The first question certified is in a form frequently disapproved of. Dublin Township v. Milford Savings Institution, 128 U. S. 510, 514; United States v. Northway, 120 U. S. 327; United States v. Hall, 131 U. S. 50. The second question is answered in the affirmative and it will be

So certified.

RICH v. MENTZ TOWNSHIP.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK.

No. 229. Argued March 25, 1890.- Decided April 14, 1890.

Where a majority of the taxpayers of a town are authorized by statute to encumber the property of all, in aid of a railroad or other corporation, the record must show that the statutory authority has been pursued. The statute of New York of May 18, 1869, 2 Sess. Laws of 1869, 2303, authorized a county judge, on the petition of a "majority of the taxpayers of any municipal corporation,” verified by the oath of one of the petitioners, for the issue of bonds of the corporation in aid of a railroad, to take jurisdiction and to proceed, as provided under the act, to determine whether the bonds should be issued. In 1871 this statute was amended, 2 Sess. Laws 1871, 2115, so as to confer that jurisdiction only when the application was made by "a majority of the taxpayers" of the municipal corporation," not including those taxed for dogs or highway tax only."