The defendants were inspectors of election in district No. 2 of the town of Triangle, in Broome county. At the general election, in November, 1868, the plaintiff offered his vote to them as inspectors, and they excluded it. He brings this action against them, for damages, and alleges that they illegally excluded his vote. The defendants Matheson and Johnson, as a several defense in their answer, allege, on information and belief, that the plaintiff, prior to the 3d day of March, 1865, had been in the military service of the United States, and had deserted therefrom, and did not return to ’said service, or report himself to a provost marshal, within sixty days after the proclamation mentioned in section 21 of the act of congress, entitled “An act to amend the several acts heretofore passed, to
The plaintiff demurs to this defense, on the ground that the matters alleged do not constitute a defense. By the demurrer, the plaintiff admits the truth of the matters therein stated. The question is thus raised—assuming all the matters therein stated, to be true—were the defendants required by law to allow the plaintiff to vote ?
By the statement in said defense it appears that the plaintiff’s vote was challenged on the ground of his being a deserter. Uo other ground is stated. I am required, therefore, to assume that in all other respects he had the undisputed qualifications of a legal voter.
Section 21 of the act of congress, approved March, 1865, referred to in the said defense, provides that in addition to the other lawful penalties of the crime of desertion from the military or naval service, “ all persons who have deserted the military or naval service of the United States, who shall not return to said service, or report themselves to a provost marshal, within sixty days after the proclamation hereinafter mentioned, shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship, and their rights to become citizens; and such
The president immediately issued his proclamation in pursuance of this section. The plaintiff, by his demurrer, admits that prior to the passage of this act he had been in the military service of the United States, and had deserted therefrom, and had not returned or reported himself, as required by the said act and proclamation. There is no allegation in the defense that the plaintiff had been tried by a court martial, and convicted of being a deserter, and a failure to return. That fact, therefore, is not admitted.
By the constitution of this State, a citizen of the United States, only, can vote at a general election. If, therefore, this act had the effect of depriving the plaintiff of his citizenship, and the inspectors had the proper evidence before them, they were justified in refusing-his vote, and the defense is available to the defendants. But it is insisted, on the part of the plaintiff, that this act is in violation of the , constitution of the United States, and void and without legal effect. It is claimed to be in violation in two
It has been repeatedly held that to warrant the courts in setting aside a law as unconstitutional, the case must be so clear that no reasonable doubt can be said to exist. (Fletcher v. Peck, 6 Cranch, 128. United States Bank v. Wheat, 10 Wheat. 53. Parsons v. Bedford, 3 Peters, 433, 438. Ogden v. Sanders, 10 Wheat. 294. Sedg. on Stat. and Com. Law, 592.)
With this rule in view, I proceed to consider the question of the constitutionality of this act.
Subdivision 3 of section 9 of article 1 of the constitution of the United States provides that no bill of attainder, or ex post facto law, shall be passed. If this act comes under either of these classes, it must be held to be void, and no protection to the defendants.
At the time this act was passed, the government was engaged in a war. Subdivision 11 of section 8, of the said article, provides that congress shall have power to raise and support armies. Subdivision 13, of the same section, provides that congress shall have power to make rules for the government and regulation of the land and naval forces. Under these provisions, congress clearly would have the authority to pass said act, unless it comes under the class of eases prohibited by the said subdivision 3 of section 9 aforesaid.
This act must be construed by the light of surrounding circumstances. At that time the war had been waged for four years, with varied success. The army, which was very large, composed mainly of volunteers, had been at different times greatly depleted, and as often repleted. From this volunteer force there were many deserters. They were scattered, and skulking about in all parts of the country, and many in Canada. They had subjected themselves to the penalties of desertion. Congress then passed this act, having two objects in view. First, to re
Such laws relate only to criminal and penal proceedings which impose punishment and forfeitures. This act is penal in its character, and provides for a forfeiture.
Desertion, before, was criminal under the military regulations of the government; but before this act was passed, absolute forfeiture of citizenship, and right to hold office, was not imposed as a punishment. Therefore, if this was an additional punishment imposed on the original past crime of desertion, it would be ex post facto. I do not so understand it. Under this act, this new forfeiture is self-imposed, and is not on account of the past act of desertion,' but on account of the renewed and continued breach of duty as citizens and soldiers in refusing to return to the service they had deserted, under the assurance of pardon. ■The act provides that in case of a failure to return, they
Is it a bill of attainder ? Bills of attainder are such special legislation as inflict capital punishment upon persons supposed to be guilty of high offenses, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. (3 Story’s Com. on Const. 209. Smith’s Com. on St. and Const. Law, 365, 366.)
Legislation, in like manner inflicting pains and penalties are included in the general designation of bills of attainder. (Smith’s Com. on St. and Const. Law, 366. Sedg. on Const. and St. Law, 598. Cummings v. The State of Missouri, 4 Wal. 277. Fletcher v. Peck, 6 Cranch, 138.) In such cases, legislative bodies assume to exercise judicial powers, and perform the duties of judges in addition to their legitimate functions. They determine the guilt of parties without any of the safeguards of a formal judicial trial. The sufficiency of evidence is determined without any regard to rules. The punishment is fixed according to the notions of the legislative body, without hearing on the part of the accused. Such legislation is prohibited by.the federal constitution.
The act in question imposes a forfeiture of citizenship,
Congress has entire control of the question of citizenship. It comes within its constitutional powers. It can make such rules and regulations in regard thereto as in its judgment are right and proper. Subdivision 4 of section 8 of article 1 of the constitution provides that congress shall have power to establish a uniform rule of naturalization. By this, congress is authorized to pass laws for the naturalization of aliens, which is to be the rule in every State in the union. Every person born within the United States is a citizen thereof. Congress, having the power to make rules for the government and regulation of the land and naval forces of the United States, has the power to impose penalties and forfeitures as a punishment for a breach of those rules and regulations. One of those penalties or forfeitures may be a forfeiture of citizenship and right to hold office under the United States— no matter whether that citizenship was secured by naturalization under the laws of congress, or by being a native born. (Barker v. The People, 20 John. 458.)
This act cannot be said to have been passed with a direct reference to voting in any State. Where, as in this State, the constitution and laws provided that no one shall vote unless he be a citizen of the United States, this act, when the penalty is enforced, might have the effect of excluding a voter. But the qualification of voters is entirely within the control of each State. Congress has no
If it was the intention of congress, by this act, without a trial, or the adjudication of any court, to deprive this class of persons of citizenship, it would come under that class of legislation designated as bills of attainder. I think there was no such intention.
It can hardly be claimed that the trial before the inspectors of election holding office under our State laws, when the person offers his vote, could have been contemplated as a trial under this act, by the framers thereof. Their duty is to ascertain who are citizens; not to adjudge, declare and enforce forfeitures of citizenship. It is their duty to ascertain who are and who are not legal voters, and to reject the votes of those that are illegal, and receive the votes of those that are legal. In this case the plaintiff offered his vote, and the inspectors were satisfied, from the evidence given, that he was embraced in this class of persons described in said act as deserters who had failed to return. They honestly believed the act itself was sufficient to forfeit citizenship, and therefore excluded his vote; whereas, they should have gone further, and ascertained if the plaintiff had been convicted in any court, of being a deserter, and of failing to return. If he had been so convicted, his vote should have been excluded; if not, it should have been received. This act doubtless contem
I am therefore led to the conclusion that the act in question is constitutional; that it is not an ex post facto law; neither is it a bill of attainder, for the reason that it contemplates a trial by a court martial to enforce this penalty, together with the other penalties for desertion.
But there was no evidence of conviction produced before the inspectors. For that reason there was no evidence of forfeiture of citizenship, and the inspectors had no right to exclude the vote.
The demurrer should be sustained, and the defendants have leave to amend their defense, on payment of the costs of the demurrer, within twenty days, if they be so advised.
Murray, Justice.]