23 F. Cas. 430 | U.S. Circuit Court for the District of Southern Ohio | 1878
I trust it will not be improper for me to say that I regret having been called upon to perform this duty. But the act of congress imposing the duty is imperative, and if constitutional, must be enforced. Learned counsel have, however, insisted that- it is unconstitutional: First, because it requires the courts to perform other than judicial duties; and second, because its enforcement would be an invasion of the rights of the states. Can these propositions, or either of them, be maintained?
The government, we concede, is divided Into three distinct departments — the exeeu-tive, legislative and judicial — each invested with appropriate functions, and neither can be lawfully required to encroach upon the prerogatives of either of the others, without violating the fundamental law from which they all derive their authority. If therefore the act which provides for the appointment of supervisors of elections required the court to perform non-judicial duties, I would follow the precedent of Chief Justice Jay and other contemporary judges, so earnestly commended by counsel, and refuse to enforce it. I heartily concur in principles announced by the learned chief justice. The reasons assigned for declining to execute the invalid pension act are clearly stated as follows: “That neither the legislative nor the executive branches can constitutionally assign to the judicial any duties but such as are properly judicial, and to be performed in a judicial manner * * * that the duties assigned to the courts by the (invalid pension) act are not of that description. * * * As therefore the business assigned to this court by this act is not judicial, nor directed to be performed judicially, the act can only be considered as appointing commissioners for the purposes mentioned in it by official instead of personal descriptions.”
By reference to the act it will be found that it designated the judges as commissioners, to take depositions and make reports to the secretary of war, and authorized the secretary of war to suspend, and congress to revise, their decisions, and hence the learned judge added “that by the constitution, neither the secretary of war nor any other executive officer, nor even the legislature, are authorized to sit as a court of errors on the judicial acts or opinions of this court."
But what would have been the decision of the court if the act had required it to appoint commissioners to perform the duties prescribed? The constitution declares that “congress may, by law, vest the appointment of such inferior officers as it thinks proper, in the president alone, in the courts of law, or in the heads of departments;” and under this constitutional grant of power congress has vested the president, the heads of departments and the courts with authority to appoint a great many subordinate officers. Amongst others, the courts have been authorized to appoint their clerks, circuit court, and other commissioners, and this power had been exercised by the judges who declined to enforce the invalid pension act. Why is it supposed the courts would have refused to comply with the statutory command, if the invalid pension act had authorized and required them to appoint commissioners to perform the merely ministerial duties by its provisions imposed? There would have been no greater impropriety in the court’s appointing commissioners to perform the duties prescribed by that act, than in appointing clerks or circuit court commissioners under the several acts authorizing them so to do. The terms in which they express their objection to acting in the non-judicial character of commissioners indicate clearly, that without doubt or hesitation they would have appointed commissioners to discharge the same duties. The duty of the courts to appoint subordinate officers when required and authorized so to do by law, has never before been questioned, and cannot be upon the basis of any adjudicated case. All precedents and authority are to the contrary. The state governments, like the national, are divided into separate departments. There is no more power under the state constitutions to impose other than judicial duties on the courts than there is under the federal constitution. And yet by law in several of the states the appointment of judges of elections has been conferred upon the courts, and so far as I am advised the validity of these laws, or the propriety of their enforcement has not been questioned.
Tliere is a very obvious distinction between the invalid pension act and that under consideration. In the former, the judges were designated and required to act as commissioners. That duty they very properly declined to perform. And if the act under consideration commanded this court to supervise the elections, I should refuse to obey it. But the command is, that this court shall appoint others to perform that duty. The supervisors so to be appointed will be “inferior officers.” The constitution authorizes congress by law to vest such appointments in the courts. Congress, by the statute under discussion, has authorized and commanded the circuit judges, when requested by the requisite number of citizens, to make the appointment which has now been asked for. And though this law may conflict with the opinions of counsel and those whose views they represent, as to the proper classification and division of powers between the several departments of the government, the constitution and the act when construed together make the appointment of supervisors a judicial duty which this court cannot decline to perform without a flagrant violation of the obligations imposed upon it by law.
Let us now consider the second objection. Does the act invade the rights of the states? If so, how ? I do not anticipate any possible conflict between the state and national authority proceeding from the exercise of the power conferred by this act. Congress has the right to regulate the election of its own members, and by the constitution each house is made the exclusive and final judge of their election and qualification. In the exercise of this jurisdiction witnesses may be summoned and examined, and investigations made into the fairness.and regularity of elections. If this may all be done after election, may not congress by law provide safeguards before election to prevent fraud, secure an honest count, and compel correct returns? This is all the appointment of supervisor's is intended to accomplish. It is not contemplated that they shall supersede or exercise any part of the authority vested by state laws in the persons acting under state authority. Supervisors can neither admit nor exclude the ballot of any one offering to vote. They are not present to act as judges but simply as witnesses to remain with the officers holding the elections. take cognizance of everything done, and witness the counting of the votes polled with the puipose to secure fairness and impartiality in the conduct of the election. No injustice can possibly result from such action. It is only to those contemplating frauds either in the easting of the votes or in the counting and return thereof that these impartial witnesses provided by the law are a terror. Frauds perpetrated in the election of members of congress are punishable in the courts. And while the supervisors to be selected from opposing political parties, cannot control the elections and are without authority to receive or exclude a vote, or do any act calculated in the slightest degree to intimidate a legal voter, yet they may, after the election, give evidence and secure the conviction and punishment of violators of the law, and to this class supervisors would naturally be obnoxious.
Thus far I have treated the questions argued as original, and as though there were no precedents in the enforcement of this law in other instances to support the views I have expressed. It was remarked in the argument that the protection intended to be given by the statute had not heretofore been invoked in this circuit. The statement is erroneous.
Judge Hoadly: This district is what I said. THE COURT: The statement is correct in reference to the districts; but the act has been enforced elsewhere in the circuit, as also in other circuits, and so far as I am aware the action of the courts in exercising the powers conferred has not in any instance been objected to.
I think the statute is constitutional; that it is obligatory upon me, and appointments will be made in accordance with its requirements. If after they are made the appointees shall do any act in excess of the powers conferred on them by the law they will be held amenable therefor. Their acts will be their own and not the court’s. In making the appointments the court exhausts its powers, and therefore in their selection I wish to act with judicial impartiality, so as to secure men worthy of so important a trust, and for this purpose invoke the counsel and co-operation of good men of every shade of political sentiment who desire that the popular will may prevail and honest elections be secured.
The Call.
Cincinnati, August 31. 1878.
Hon. John Baxter, Judge of the United States Circuit Court. Sixth Circuit — Dear Sir: The undersigned citizens of Cincinnati, a city having upwards of 20,000 inhabitants, desire to have the election held on the 8th day of October, A. D. 1878, at which a representative in congress is to be voted for, guarded and scrutinized under the laws of the United States, and re-speotfnlly request the appointment of supervisors for the several voting precincts of said city, as provided by title XXXVI., Revised Statutes.
James McKeehan.
B. F. Ewans.
W. J. Lippincott.
Geo. W. Jones.
Lewis Glenn.
B. Eggleston.
Richard Smith.
F. T. Foster.
C. W. Thomas.
Wm. Means.
J. A. Townley.
Harry C. Umer. ■
Geo. F. Davis.
H. Wilson Brown.
Edmund H. Pendleton.
John \V. Hartwell.
C. M. Holloway-.
E. W. Cunningham.
A. H. Hinkle.
C. W. Bowland.
H. C. Whiteman.
[The following note from Judge Hoadly is reprinted from 3 Cin. Law Bui. 722:]
Editor Law Bulletin: Will you please add in connection with my argument before Judge*436 Baxter what I would have gladly said, had the judge given me the opportunity, on the subject of the attempt to support the power of the courts to appoint supervisors of elections, by the provision of the constitution allowing congress to delegate the appointment of subordinate officials to the courts. I am more free to ask this because the question is in its essential character, political, and because Judge Baxter (of course, undesignedly.) diverted my mind from this provision, by interrupting me, and conceding that the proposed action could not be sustained if it were shown to be non-judicial.
It will be seen at once that unless this power is controlled by the distribution into the three great departments — executive, legislative, judicial — the learned judge has raised a larger question than he has solved. Can it be possible that he thinks congress competent to require the federal courts to administer the patronage of the government, to appoint governors of territories, postmasters, collectors of customs, and of internal revenue? But the supreme court long ago suggested the true solution. In Ex parte Hennen, 13 Pet. [38 U. S.] 257, 258, the supreme court, speaking through Mr. Justice Smith Thompson, used the following language, which is perfectly decisive: “By the constitution of the United States (article 2. § 2) it is provided that the president shall nominate, and by and with the advice and consent of the senate, shall appoint certain officers therein designated, and all other officers of the United States whose appointments are not. herein otherwise provided for, and which shall be established by law: but congress may. by law. vest the appointment of sueh'inferior officers, as they shall think proper in the president alone, in the courts of law, or in the heads of departments. The appointing power here designated in the latter part of the section, was no doubt intended to be exercised by the department of the government to which the appointment of officers most appropriately belongs.”
Very Respectfully. George Hoadly.
Cincinnati, Sept. 20, 1878.