16 F. 223 | U.S. Circuit Court for the District of Eastern Virginia | 1883
Lead Opinion
This is a demurrer filéd to an information in the circuit court of the United States, which charges the defendants named therein with a violation, of section 5506 of the Revised Statutes, in that they combined and confederated to prevent and hinder certain citizens named therein from voting at a congressional election held November 7, 1882, by refusing to assess them for taxes so that they could pay their capitation tax, which was at that time and at that election a prerequisite for voting.
So far as the'first ground of demurrer is concerned, that there is no averment in the information that the parties conspired against were citizens of Virginia, qualified to vote in 1881, and qualified to vote in the coming election of 1882, it is possible that the averments are not made explicitly; it is only by implication such facts can be known from the information; but the court will allow the United States to amend in this particular, as it can cause no surprise and work no injury to the defendants. The second ground of demurrer, that the defendants were not bound to assess the parties mentioned at the time application was made for assessment, is rather a matter of fact to be proved than a ground of demurrer, and is now overruled. The third ground of demurrer, that the capitation tax was abolished by a vote of the people to whom it was submitted at the election of 1882, after the offenses charged in the information had been com
The Case of Reese was under the same section of the original act of May 30, 1870, as that under which this information is filed, with the exception that, after the argument of the Case of Reese, the congress of the United States re-enacted that section in the Revised Statutes, leaving out of it the words which, in the Case of Reese, had been considered to bring it under the fifteenth amendment, and made it a general law within the power of congress to enact, not by virtue of the fifteenth amendment, but by virtue of the power given to congress under the fourth section of the first article of the constitution. The Case of Reese did not arise at a congressional election. It was at a municipal election, in the state of Kentucky, and the judges of election -were indicted for refusing to receive the votes of a certain person, of African descent, because of his race and color. All claims to support the indictment not arising out of the fifteenth amendment were abandoned. It will be seen that the section 5506 makes no reference to race or color, nor does it confine the crime of obstructing and hindering votes to persons of that race. The fifteenth amendment does, and therefore when the counsel of the United States abandoned all support of their indictment, except that it had from the fifteenth amendment, it liad no support at all. The court so decided. The dissenting opinion of Mr. Justice Hunt goes upon the ground that the words “as aforesaid,” in the section as originally enacted, referred to the former sections of the act, and repeated in it the provisions of
The case we are to decide, therefore, is not the Reese Case, which; was a case of a municipal election, but we are to decide whether congress has the power under the constitution to prevent the crimes enumerated in section 5506 at a federal election. This the supreme court did not decide in the Reese Case, for the chief justice says, in delivering his opinion, that all support from any other constitutional power but the fifteenth amendment was abandoned at- bar in that case.
The fourth section of the first article of the constitution of the United States provides “the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, but the congress may at any time by law make' or alter such regulations, except as to the places of choosing senators.” .
If congress can provide for the manner of election, it can certainly provide that it shall be an honest manner; that there shall be no repression of voters and an honest count of the ballots. There is little regarding an election that is not included in the terms, time, place, and manner of holding it. Since the Reese Case was argued congress has enacted, as we said before, this section 5506. That it comes within the power to regulate the time and place of election given by section 4, chapter 1, has been decided in this circuit ovei and over again, but the objection to it made at bar is that the section does- not mention congressional elections, which elections alone under the fourth section it has a right to regulate.
It seems to us that when congress has power to regulate federal elections alone, given it by the constitution, and it passes a law to regulate elections under that power, every fair construction would be that they exercised their legislative power within the grant of the constitution, and that the law made in pursuance of constitutional authority applied only to the elections named in it.
The court in the Reese Case decided that section 5506 was not appropriate legislation to enforce the fifteenth amendment. The section said nothing of race, color, and previous condition. It was at: a municipal election, and therefore was not within the power of congress under section 4, art. 1, of the constitution, which gives power to congress over federal elections. Had the same crime been com-
The demurrer will be overruled.
Concurrence Opinion
I fully concur in the opinion just delivered by Judge Bond. I will add something on the constitutional question that has been argued so elaborately at bar. The information in this case is founded upon section 5506 of the Revised Statutes of the United States. I will remark that that section is not the same law as section 4 of the enforcement act of May 31, 1870. It is nearly the same in terms, but it contains no words connecting it with other sections of any act, as section 4 did. It stands upon its own terms and language. It was not enacted in the same bill as section 4 of the act of 1870, or at the same time, or by the same congress. It was enacted in 1874, and took effect as a law on the first of December, 1874, two months after the case of U. S. v. Reese, 92 U. S. 214, was argued before the supreme court of the United States, and more than two years after the indictment was found which was passed upon in that case. The supreme court did not in the Case of Reese, and has not in any subsequent case, passed upon section 5506 of the Revised Statutes; and, whatever it may have ruled in any of its decisions upon any other statute, such as section 4 of the enforcement act of 1870, non constat that it has thereby ruled upon section 5506, upon which the information before us is founded.
We are dealing here with an offense charged to have been committed, in a federal election, in violation.of this section 5506; and the defense ask us to base our ruling, in this case of a federal election, upon the ruling of the supreme court in a case arising in a town election under the act of 1870, in which that court not only carefully confined itself to the case before it, but protested by iteration that it was not considering any law in its relation to federal elections. Its opinion in Reese el al. was expressly confined to section 4 of the act of 1870 in its relation to state elections, and the court held that section not to be within the purview of the fifteenth amendment of the constitution. But, even as to that section, the court did not," and took especial pains not to, decide that the section was beyond the purview of the first article of the constitution. The supreme court has never decided that section 4 of the act of 1870 was unauthorized by article 1. Much less has it ever decided that section 5506 of the Revised Statutes was unauthorized by article 1. This article and the fifteenth
Article 1, § 4. “ The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the congress may at any time, by law, make or alter such regulations, except as to the places of electing senators.”
Fifteenth Amendment. “ The right of citizens of the United States to vote shall not he denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.
“ The congress shall have power to enforce this article by appropriate legislation.”
It was as to whether section 4 of the act of 1870 was authorized by the fifteenth amendment, and not as to whether it was authorized by article 1, that the supreme court considered the Case of Reese. The indictment in that case was for an offense committed in an election of town officers in Kentucky. The indictment was founded chiefly upon section 4 of the enforcement act of May, 1870, which section provided that if any person shall, by unlawful means, hinder, etc., or conspire with others to hinder, delay, prevent, or obstruct any citizen of the United States from ..doing any act required to be done to qualify him to vote, he shall be punished as defined by the section. The section did not embrace, in words, the limitation that the hindering should be on account of race or color, and it made general reference to voting, and not particular reference to voting at elections for congress or for state officers.
Thus, the indictment before the court being for an offense committed at a state election, the question for decision was whether congress had, in this section 4, interfered in state elections beyond the authority given by the fifteenth amendment. Holding that congress could not interfere in state elections, except to prevent discrim-inations on account of race, and the case before it having arisen in a state election, the proposition which the court discussed was whether congress,, in section'4, had confined itself within this limitation, and if it did not, but used general terms, what was the consequence as to the validity of this section of the enforcement act in respect to state elections. Before entering upon that discussion, the
The power of congress over federal elections was as broad as the language of article 1 imports. Congress could legislate generally in respect to federal elections. The court was, accordingly, careful to premise that it would not consider the enforcement act of May 31, 1870, with reference to the first article and federal elections, but would consider it only with reference to the fifteenth amendment and state elections.
The court having, after this protest, gone on at some length in considering section 4 of that act with this particular reference, then took pains, when about to use the language so much relied upon by counsel for the defense, on page 221, to limit what it intended saying to “a penal statute enacted by congress with its limited powers; ” necessarily meaning limited powers over state elections derived from the fifteenth amendment, and not meaning to speak of the general powers of congress over federal elections derived from article 1. Having, then, a second time attempted to guard its deliverances against misconstruction, the court say:
“We are called upon to decide whether a penal statute enacted by congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which congress may rightfully prohibit and punish. * * * It would certainly bo dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who could be set at large. * * * To limit this statute in the manner now asked for would ho to make a new law, not to enforce an ohl one. This is no part of our duty. * * * We are not able to reject a part which is constitutional and retain the remainder; because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not.”
Nothing here said by the court applies to section 4 of the act of 1870, in its relation to article 1. The court did not intend to intimate that a law may not be constitutional in respect to one provision of the organic law, though not authorized by other provisions. The substance of what the court said in its argument was that where congress uses language in a statute, which, in order to be constitutional in regard to a particular indictment or class of offenses, requires the interpolation by the court of words of limitation necessary to make it constitutional, it is as to that indictment, and all in-
The language so much relied upon by counsel for defense was used arguendo, and no logic is more fallacious in juridical discussions, than that of adopting, as the solemn judgments of courts, propositions employed by judges in the progress of arguments by which thej' advance to the conclusions which they pronounce as their solemn judgments.
Finally, the court, in the Case of Reese, took 'pains to brush away all inferences which might be drawn from the reasoning employed in its opinion, by distinctly and carefully defining what its judgment was.’ It said’: “We must, therefore, decide that congress has not as yet provided by appropriate legislation for the punishment of the offense charged in this indictment.” That was all. The election was a state election. The offense indicted was comruitted at a state election, and the court held that that indictment could not stand.
Section 4 of the act of 1870 is now repealed. The supreme court never said that it was invalid under article 1 of the constitution, and iti is now no longer on the statute-book. It is substituted by section 5506, as it stands in the Revised Statutes. This latter section applies only to offenses committed in relation to federal elections. No one pretends, no one has ever pretended, that it relates to state or municipal elections; for it has never before now been under adjudication. It could not be made, to refer to state or municipal elections except by authority of the fifteenth amendment, and it could not be brought within that, authority except by interpolating in the section the words, “on account of race, color, or previous condition of servitude. ” This interpolation the supreme court declares that we have no power to make; and so section 5506 is valid only in respect to federal elections^ It is valid as to these latter, not because it contains express mention of these elections, but because it is authorized by
See Brown v. Munford, ante, 175.