TODD
v.
UNITED STATES.

*279 Mr. John C. Fay for plaintiffs in error.

Mr. Solicitor General for the United States.

*282 MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

After this case had been submitted to us on certain alleged errors, we became impressed with the fact that a more serious question existed than any that had been discussed, and that is, whether a preliminary examination before a commissioner is a proceeding "in any court of the United States" within the meaning of section 5406. The attention of counsel was called to this, and briefs have been furnished on each side. With the assistance furnished by these briefs we have carefully examined the question, and are of the opinion that it must be answered in the negative.

It is axiomatic that statutes creating and defining crimes cannot be extended by intendment, and that no act, however wrongful, can be punished under such a statute unless clearly within its terms. "There can be no constructive offences, and before a man can be punished, his case must be plainly and unmistakably within the statute." United States v. Lacher, 134 U.S. 624; Endlich on the Interpretation of Statutes, sec. 329, 2d ed.; Pomeroy's Sedgwick on Statutory and Constitutional Construction, 280.

That a commissioner is not a judge of a court of the United States within the constitutional sense is apparent and conceded. He is simply an officer of the Circuit Court, appointed and removable by that court. Rev. Stat. § 627. Ex parte Hennen, 13 Pet. 230; United States v. Allred, 155 U.S. 591. *283 A preliminary examination before him is not a proceeding in the court which appointed him, or in any court of the United States. Such an examination may be had not merely before a commissioner, but also before any justice or judge of the United States, or before any chancellor, judge of a state court, mayor of a city, justice of the peace, or other state magistrate. Rev. Stat. § 1014. And it cannot be pretended that one of those state officers while conducting a preliminary investigation is holding a court of the United States. Technically, we speak of an examining magistrate, and not of an examining court. The distinction is recognized in the statutes, § 1014, by which sundry judicial officers of the United States and of the States are authorized to conduct an examination and imprison or bail the defendant, "for trial before such court of the United States as by law has cognizance of the offence." Also § 911, which provides that "all writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof." But a commissioner, like a justice of the peace, is not obliged to have a seal, and his warrants may be under his hand alone. Starr v. United States, 153 U.S. 614. Again, the district attorney is allowed certain fees per diem for an examination before a judge or commissioner and for his attendance in a court of the United States; also for mileage in travelling to the place of holding any court or to the place of any examination before a judge or commissioner. § 824. And a witness is entitled to fees "for each day's attendance in court or before any officer pursuant to law." § 848. While a preliminary examination may be in the strictest sense of the term a judicial proceeding, yet the language of the statute is not broad enough to include every judicial proceeding held under the laws of the United States. The offence described is a conspiracy to deter by force, etc., "any party or witness in any court of the United States."

Doubtless it was within the power of Congress to legislate in this direction fully for the protection of every witness called upon by the laws of the United States to give testimony *284 in any place and under any circumstances, Logan v. United States, 144 U.S. 263, but it has not as yet seen fit to do so, and has only provided for his protection when called as a witness in a court of the United States. United States v. Clark, 1 Gallison, 497, is in point. In that case, under a statute punishing perjury "in any suit, controversy, matter, or cause depending in any of the courts of the United States, or in any deposition taken pursuant to the laws of the United States," 1 Stat. 116, the defendant was indicted for perjury on a preliminary examination before a judge of the District Court of the United States, and it was held by Mr. Justice Story that the indictment could not be maintained, saying: "The statute does not punish every perjury, but only a perjury done in a court of the United States. Plainly, therefore, it is of the very essence of the offence that it should be charged as committed in such court. Now, under the authority of the United States there are but three courts known in law, the District, Circuit, and Supreme Court; and as Congress alone can, by the Constitution, ordain and establish courts, none can exist but such as they create and name. . . . A court is not a judge, nor a judge a court. A judge is a public officer, who, by virtue of his office, is clothed with judicial authorities. A court is defined to be a place in which justice is judicially administered. It is the exercise of judicial power, by the proper officer or officers, at a time and place appointed by law." In connection with that case it is worthy of notice that Congress subsequently changed the statute, (4 Stat. 118,) and that now in force, Rev. Stat. § 5392, extends to every "oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered."

Further discussion seems unnecessary. As a preliminary examination before a commissioner cannot be considered a case pending in any court of the United States, it follows that this indictment is fatally defective and charges no offence against the laws of the United States.

The judgment is

Reversed.

MR. JUSTICE HARLAN dissented.