De Carrington v. United States/Opinion of the Court

by Oliver Wendell Holmes, Jr.

United States Supreme Court

208 U.S. 1

De Carrington  v.  United States

 Argued: December 16, 1907. --- Decided: January 6, 1908

The plaintiff in error was convicted in the court of first instance, and, on appeal, by the supreme court of the Philippine Islands, of the crime of falsification of a public document by a public official. He brings the case here by writ of error, setting up rights under the Constitution and statutes of the United States that were denied by the decision below.

The complaint alleges that the plaintiff in error 'being then and there a public official of the United States civil government of the Philippine Islands, to wit, a duly appointed and commissioned major of the First Infantry, United States Army, and the duly designated, qualified, and acting commander of the Provisional Battalion of the Philippine Scouts, and a duly appointed, qualified, and acting disbursing officer for public funds of the said United States civil government of the Philippine Islands, appropriated on account of said Provisional Battalion and on account of the Louisiana Purchase Exposition at St. Louis,' made a false voucher for the payment of 770 pesos.

The plaintiff in error denies that he was a public official within the meaning of the Philippine Penal Code, art. 300, or that, under the act of March 3, 1883, chap. 134, 22 Stat. at L. 567 (see Rev. Stat. § 1222, U.S.C.omp. Stat. 1901, p. 860; Rev. Stat. § 1860), he could be, while he remained an officer in the Army on the active list. The facts are as follows: In October, 1903, the plaintiff in error wrote a letter to the executive secretary of the insular government, suggesting that, as the Second Battalion of Philippine Scouts was expected to take part in the Louisiana Purchase Exposition, it would be well to allow the writer, with his scouts, to put up a model administration building of native materials for his use, at St. Louis, decorated with native arms, etc., and estimating that he could do this work for $3,000, gold. Governor Taft referred his letter to the exposition board, recommending the project, and the board accepted it. In November the civil commission passed a resolution, authorizing the transfer 'to the credit of Major F. L. Carrington, 1st United States Infantry, commanding the Provisional Battalion of Philippine Scouts, to be transported to St. Louis in 1904 in connection with the Philippine exhibit.' the sum of $3,000, 'to be used and accounted for by Major Carrington in the construction' of a model administration building. It was resolved further that the disbursing officers of the Philippine exposition board should deposit to the credit of Major Carrington the further sum of $500, with which to pay some of the expenses of families of scouts allowed to accompany them to St. Louis, and that, on the approval of the resolutions by certain officials, the civil governor might 'designate Major Carrington as disbursing officer to receive the funds mentioned.' The resolutions were approved, and Governor Taft in the same month addressed a letter to 'Major Frank de L. Carrington, 1st U.S. Infantry, commanding Provisional Battalion Philippine Scouts,' saying: 'You are hereby designated to withdraw, receive, expend, and account for, the funds' above mentioned, 'to be expended in the preparation and display of a scout exhibit at the Louisiana Purchase Exposition, as set forth in said resolution.' These are all the facts that are supposed to constitute the plaintiff in error a public official within the Philippine Penal Code, although, it should be added, that in signing the false document he added, after his name, 'Maj. 1st Infantry, D. O.;' the last letters meaning, it may be presumed, disbursing officer.

At this time the plaintiff in error was an officer of the Army on the active list, detached to command a battalion of Philippine scouts, admitted to be a part of the military establishment of the United States. Leaving names on one side, what happened was that he received $3,500 from civil sources, to be used by him in connection with his military command, in the performance of duties incident to that command. On the face of it the proposition is extravagant that the receipt of a small sum to be spent and done with forthwith in this way made him an officer of the civil government, notwithstanding the source from which it came, or the fact that he sent his accounts to the same quarter. An office commonly requires something more permanent than a single transitory act or transaction to call it into being. The letter of Governor Taft which designated Major Carrington to receive the fund says nothing about appointing him a civil or any kind of officer, nor did he qualify as one in any way. He was addressed by Governor Taft, and he acted, in his military capacity and under his military responsibility. He has been held to that responsibility by a court-martial. The only color for an additional liability is in the words quoted from the resolution of the civil commission, authorizing the civil governor to designate Major Carrington as disbursing officer,-words which the governor wisely did not adopt,-and in the fact that the plaintiff in error gave himself that name. It is unnecessary to inquire whether he could have made himself a civil officer if he had tried, in view of the act of Congress absolutely prohibiting it. Act of March 3, 1883, chap. 134, 22 Stat. at L. 567. No one dreamed that he was attempting it, and if he could have succeeded at the expense of his place in the Army, under Rev. Stat. § 1222, U.S.C.omp. Stat. 1901, p. 860, no one supposed that he had done so, but he continued in his military command undisturbed.

We think it entirely plain that the acceptance of the duty of spending and accounting for this small fund did not amount to holding a civil office within the statutes of the United States. We see no sufficient reason to believe that the Philippine Penal Code, art. 300, purports or attempts to reach a case like that of the plaintiff in error. The provision in art. 401, that, for this purpose, everyone shall be considered a public official who, by popular election, or appointment by competent authority, takes part in the exercise of public functions, does not help art. 300. That also seems to contemplate an office having some degree of permanence. But however that may be, the plaintiff in error was performing no public function of the civil government of the Philippines; he was performing military functions to which the civil government contributed a little money. As a soldier he was not an official of the Philippines, but of the United States. If the Philippine legislation attempted to add to the immediate responsibilities of the soldier in the course and performance of his duty under the paramount authority from which that legislation derives its right to be, we should have to inquire whether we could gather from any act of Congress the intention to permit what might become the instrument of dangerous attacks upon its power. It is a wholly different question from that where a soldier, not in the performance of his duty, commits an ordinary crime. But we do not understand the Penal Code to have the suggested scope.

Judgment reversed.

The same judgment will be entered in Nos. 224 and 225, which were to abide the result of this case.

Notes