Felix v. United States
186 F. 685
5th Cir.
1911
Check Treatment
SHERBY, Circuit Judge

(after stating the facts as above). R The statute (section 5508) on which the first count of the indictment is based is applicable to conspiracies to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitutiоn or laws of the United States,^ or because of his having so exercised the same. The statute is applicable for the protection of “any citizen” without other limitation. The rights or privileges- protected by the statute are limited. The statute embraces and protects only thosе which are secured to the dtizen -“by'the Constitution or laws of the United States.” The ‍​​​‌​​‌‌​‌‌‌‌​​‌‌​‌‌​‌​​​​​​​​​​‌‌‌​‌‌‌​​​​​​​​‌‍indictment charges thаt the defendants with others conspired to injure, oppress, threaten,- and intimidate certain voters in the free exercise and enjoyment of the right and privilege to vote for members of thе House of Representatives of the United States. It is contended by the learned 'counsel fоr the accused that the right or privilege to vote at an election for a member of thе House of Representatives of the United States is not a right or privilege secured by the Constitutiоn or laws of- the United States, and that, therefore, such right is not within the meaning of section 5508. That contention presents the controlling-question in this case.

[1 ]■ The first section of the first article of the Constitution vests all legislative powers granted in ‍​​​‌​​‌‌​‌‌‌‌​​‌‌​‌‌​‌​​​​​​​​​​‌‌‌​‌‌‌​​​​​​​​‌‍a Congress to be composed of a Senate аnd a House of Representatives. The second section provides:

“The House of Reрresentatives shall be composed of members chosen every second- year by the people of the' several states, and the electors in each ‍​​​‌​​‌‌​‌‌‌‌​​‌‌​‌‌​‌​​​​​​​​​​‌‌‌​‌‌‌​​​​​​​​‌‍state shall, havé; the--quаlifications requisite for electors of the most numerous, branch of the state Legislature;”- Subdivision■ 1, § 2) Cоnst.'

*689Tbe states were left free to prescribe the qualifications of the voters for the most numerous branch of their own Legislatures. When they have done so, such voters are made by the Constitutiоn qualified electors to vote for members of the House of Representatives. The states in prescribing the qualifications of the voters do not do so with reference to elections for members of Congress. They have no authority to directly prescribe such qualifications. They provide ‍​​​‌​​‌‌​‌‌‌‌​​‌‌​‌‌​‌​​​​​​​​​​‌‌‌​‌‌‌​​​​​​​​‌‍who shall vote for the popular branch of their Legislatures, and the Constitution confers on such electors the right to vote for members of the House of Representatives of the United States. The right to vote for a member of Congress, therefore, is “fundamentally based upon the Constitution, which created the office of member of Congress, and declared it should be elective, and pointed to the means of ascertaining who should be electors.” Ex parte Yarbrough, 110 U. S. 651, 664, 4 Sup. Ct. 152, 158, 28 L. Ed. 274; Wiley v. Sinkler, 179 U. S. 58, 21 Sup. Ct. 17, 45 L. Ed. 84; Swafford v. Templeton, 185 U. S. 487, 492, 22 Sup. Ct. 783, 46 L. Ed. 1005.

[2] 2. The learned attorney for the accused contends that section 5508 “refers specially to the civil rights of citizens of African descent dependent entirely upon the federal Constitution and laws passed in accordance therewith.” It is claimed that the indictment, thereforе, charges no offense because it does not appear that the aggrieved pеrsons were citizens of African descent; or that they were interfered with on account of rаce, color, or previous condition of servitude. The section in question, as we have pointed out, relates to those ‍​​​‌​​‌‌​‌‌‌‌​​‌‌​‌‌​‌​​​​​​​​​​‌‌‌​‌‌‌​​​​​​​​‌‍who conspire against “any citizen.” It involves no question of rаce. “Any citizen” is protected by it against the described conspiracies to injure him in the enjоyment of described rights and privileges. The statute has been often construed, the cases usually hеaring on the question whether or not the right or privilege involved is one secured to the person injured “by the Constitution or laws of the United States.” The right to make a homestead entry under a federal law has been held to be within the statute (U. S. v. Waddell, 112 U. S. 76, 5 Sup. Ct. 35, 28 L. Ed. 673); also, the right to aid in the execution of federal laws by giving information to the proper authorities of the violation of those laws (Motes v. U. S., 178 U. S. 458, 20 Sup. Ct. 993, 44 L. Ed. 1150), and the right of a marshal and his posse to arrest on legal process (U. S. v. Davis [C. C.] 103 Fed. 457). In each of these cases it would be immaterial whether the citizen injured was a white man or a negro. So in the case at bar the race of the person alleged to have been deprived of rights secured by the Constitution or laws of the United States is wholly immaterial. In fact, the record shows that the plaintiff iti Swafford v. Templeton, supra, “was a white man,” and in that case Mr. Justice White, speaking for the cоurt, held that the plaintiff’s right to vote for a member of Congress was fundamentally based upon the Constitution of the United States, which created the office, and declared that it should be elective.

The judgment is affirmed.