we are not entirely agreed. The .court "isalwaya reluctant in a criminal case to .decide finally a question of law which goes to the merits of the case; because, without a certificate of division, there is no writ of error, and the judgment of in respect to such a case is final. My ow inclination lato hold,thatthe offense here specified is a. crime under the laws of the United States, but in view of the doubts in my mind I should be very reluotant, to do so, unless upon certificate of division, wDich will eDltbleth&. defendants to take the case to the supreme court. My btothbr; Judge CAtDWELL, is inclined to the other view. We can, cer,WY the, question for the fin al deierminationof the supreme cQurt, Q,ij.d,that is what we have deinteresting One of grave doubt and oided to do. one of generai importanoe, becau:se:homestead laws are not of .such ,'a transient character that, they a.re 'likely' to pass away speedily; they are permanent laWS; arid will rema.in for 'a long period in this conn:-
"..' .. ' . " , '
, The result is; ,thafthe questions arisiAg ou the demurrer formation will be certified. ';;
UNITBD STATBS II. MUNFORD
Oourt.'ll. D. YirgiAia.
FBDEltAL ELECTIONS-AUTHORITY 01' CoNGRESS ToREGULATB-'8ECTION REv. ST., CoNSTITUTIONAL-8TATB OR MUNICIPAL ELEcTIONS.
As congress has authority under sect.ion4, .art. 1, of the to regulat,e federal elections, section 5506 of the Revised Statutes, passed in pursuance of such authority, and for that purpose, is constitutional and valid as to such elections,but has no application to state or municipal elections. U. 8. v. Reese, 92 U. S. 2l4, distinguished. s'8AME-ARTICLE l, f 4, CONSTITUTION-FIFTEENTH AMENDMENT. Under article I, f 4, of the constitution congress has general powers of legislaelections, but under the fifteenth amendment can legtion concerning islate concerning lJtau and munimpal elections solely for the purpose of preof race, oolor, or previous condition 01 venting discrimination on Hrvitude.
Demurrer to Information. The information in this case cha.rged tha.t defenrtants,
.. On or about the first day of November, 1882, and on divers other daya next,lmsuing, up to and including the sixth day of NC>o vetqber, A. D. 1882, at said eastern district of Virginia, to-wit, at Richmond,
Virginia, and within the jurisdiction of this court, did unlawfully combine and confederate together with each other, and with others to the jury unknown, to hinder, delay, prevent, and obstruct divers and sundry citizens and voters of the city of Richmond, Virginia, from doing certain acts reqUired to be done to qualify said citizens to vote at an .election in the state of Virginia; for this, to-wit: That on the days and dates aforesaid an election was about to occur in the state of Virginia for It congressman at large to represent the state of Virginia in the forty-eighth congress of the United States and in the third congressional district of Virginia, of which the city of Richmond forms a part, for a representative from that district in said forty-eighth congress, to-wit, November 7, 1882. "And whereas, at said election, it was necessary, under the laws governing the same, that every citizen and voter in the city of Richmond should, in order to vote, prior to said seventh day of November, 1882, pay to the state of Virginia a capitation tax of one dollar for the year 1881. "And whereas, the collector of state taxes for the state of Virginia, in the city of Richmond, would not receive from any citizen or voter of said city his capitation tax for the year 1881 unless and until such citizen had been assessed by the commissioner of the revenue for the city of Richmond, and no other person was authorized to receive payment of the same. And whereas, said Robert B. Munford was the commissioner of the revenue for the city of Hichmond, Virginia, and said John W Wilks, Henry H. Wilkins, Charles W. Goddin, and Edward Gray were his deputies or assistants in said office on the days and at the date!l of the offenses hereinabove !let forth. "And whereas, the candidates for congress from the state at large to be voted for at said election were John S. Wise, John E. Massey, and John M. Dawson; and the candidates for congress from the third congressional district of Virginia were George D. Wise and John AmblerSmitll. And whereas, it was the duty of said Robert B. Munford, commissioner of the revenue for the dty of Richmond, Virginia, and his said deputies or assistants, promptly, fairly, and impartially to assess for capitation tax all voters, citizens of the city of Richmond, Virginia, in 1881, as they presented themselves for assessment at the office of said commissioner, and to furnish equal facilities and opportnnities for assessment to all voters and citizens applying to be- assessed for capitation tax as aforesaid, without any discrimination in favor of or against any individual, 01' class of individuals, because of his or their political belief or preference, or for any other reason. "Yet the said Robert B. Munford, John W. Wilks, Henry H. Wilkins, Charles Y,'. Goddin, and Edward Gray, disregarding their duty in the premises, did not perform the same, but on the contrary, on the days and dates and at the place aforesaid, being the friends and supporters and partisans of said John E. Massey for congressmen at large from Virginia, and George D. Wise for congressman from the third congressional district of Virginia', did unlawfully combine, conspire, and confederate together to assess a!l many as possible of the friends and supporters of said John E. Massey and George D. Wise, and to hinder, delay, prevent, and obstruct the political friends and supporters of John S. Wise and John Ambler 8mith, to-wit: William Allen, Will· iam Eallley, Thomas Cousins, Randolph Jackson, Asa Reed, Frederick Draper,
Ben Fleming, Isaac Johnson, J. H. Roberts, William Blair, WilUamFortune. David Tiller, and divers other citizens and voters of the city of Richmond, Virginia, whose names are to the jury unknown,* from doing the lawful act of being assessed as required to be done to qualify them to vote, because said voters were the political friends and supporters of said John S. and John Ambler Smith. "And said Robert B. Munford, John W. Wilks, Henry H. Wilkins, Charles W. Goodin, and Edward Gray, so As aforesaid unlawfully combining, confederating, Il.nd conspiring, did, on the days and dates and at the places aforesaid; in and by divers and sundry discriminating, unlawful, unfair,dilatory, unnecessary, frivolous, vexatious ways and methods, by them then and there con· trived aOO concocted, hinder, delay, prevent, and obstruct William Allen, Will· iam Easley, Thomas Cousins, Randolph Jackson, Asa Read, Frederick Draper, Ben Fleming, Isaac Johnson, J. H. Roberts, William Blair, William Fortune, David Tiller, and other citizens and voters of the city of Richmond, Virginia, to the jury unknown,'" from doing the lawful acl: of being assessed as required to be done to qualify them to vote; with intent to hinder, delay', prevent and obstruct the said citizens and voters, to-wit, William Allen, William Easley, Thomas Cousins, Randolph Jackson, Asa Read,' FrederiekDraper, Ben Fleming, Isaac Johnson, J. H. Roberts, William Blair, William Fortune, David Tiller, and divers and s'llndry other citizens and voters of the city of Richmond, Virginia, to the jury unknown,'" from doing the lawful act of being assessed as required to be done to qualify them to vote."
Defendants demurred to the information on the following grounds:
(1) The said i!lformation is not in proper form, thl:lre being no averment therein that the act of being assessed for the capitation tax due the state of Virginia for the year 1881 was an act required to be done to enable persons to vote within the meaning of section 5506 in the Revised Statutes of the United States, edition of 1878; and because there is no averment that the persons conspired against were citizens of the United States, or of the state of Virginia. or city of Richmond, during the year 1881, or that any tax could have been properly assessed against them for that year; for the further reason that the charge of the offense in said information is too general and indefinite. (2) Because the said defendants were not reqUired by law to assess between the last day of October and the seventh day of November, 1882,capitation taxes due the state of Virginia on persons for the year 1881. (3) Becanse the constitutional provision of Virginia making the payment of the papitation a prerequisite for voting was repealed befpre the said i:qfor'mation was filed. '. , , (4) Because the act of congress refers to acts to be done by the citizen to
*AMENDMENT ALLOWED BY COURT.
Insert after the words "to the jnry unknown," where they occnr three tfmes In the Information: "They, then and there, being citizens of Richmond, Vlrp;lnla, In ISS1, and at the time· of IIlild eJec. tlon, and otberwlse qualified voters at said election, liable to be assessed and by law required to pay to the state of Vlt'ginla, at Richmond, y"ginla, a capitatloll tax of olle dollar for the year 1881."
qualify while the informatIon only describes an act required to be done and pedorllled by the defendants and not by the persons desiring to qualify themselves to vote. The assessment for taxation is not an act of the citizen an act of the· commissioner of the revenue alone, and therefore. alleged conspiracy to prevent the citizens from being assessed is not a conspimcy to prevent the citizens from doing an act required to be done to qualify him to vote. (5) the seotion of the Revised' Statutes of the United States for 1878, viz., section 5506, under which this information was drawn, is uncon.void. and been sO decided by the supreme court of the United States. ·(6) if> not alleged that it was a duty imposed by any state law llpon, defendants, or any of t() assess fC).r the poll tax of 1881 of the at the time therein.apecified, ou or about persons Damed in sixth ofNovember,. becaQlle such law, if th:ere be one, is not set ()ut in the information,· and ;gwl,lnds of demurrer appearing on said information. ,. .
. p. S. Atty., and John S. Wise, for the United States. , . . , , Wm. W. Crump, W ·. W.FIenry, and HiU.Carter, for the defendants.· BOND, J. This Is filed to an information in the circuit !3ourt of the Unite,d. which. Ilhargesthe defendants named therein with· a of section 5506 of the Revised Statutes; in that they and hinder certain citizens naine.dther,ein from voting at a c'ongressional election held November 7, 1882, by refusiag to ll!ssessthem 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 iraan cause no surprise and wotk no injury to' the defendants. The second ground of that the defendants were not bound to assllss 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 01 1882, after the offenses charged in the information had been com
UNITED STATES V. MUNFORD.
mitted, is not to the purpose. The parties are dhargedwith a con spiracy to hinder and prevent the qualified voters from doing an act prerequsit-e to enable them to vote. The offense is under criminal statutes of the United States. Those statutes have not been repealed, and it is no answer to this charge to say it is no longer a prerequi. site for voting to pays. capitation tax; and'that this offensElcannot;be committed again. The fourth ground of demurrer overruled. that section 5506, under which the inThe fifth ground formation is filed, has been declared un6onstihtional by the supreme court in the case of U. 8. v. 92U. S. is really the main ground of the demurrer and has been so treated in the argu· ment. The courts of the United States1i.i'e'bollnd absolutely to follow the opinions of that h'ibunal in all cases; and we do so with cheerfulness because they commend themselves to the whole legal profession by their clearness of statement and accuracy of judgment. But we are'not bound by the syllabuo of the reporter, nor the opinions of others as to what the court decided in any case. The Case of Reese was ullder the same section of the original act of May 30, 1870, as that under which this information is filed, with the exc'eption 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 ita general law within the power of congress to enact, not by v1rtue of the fifteenth aIttendment, but by virtue Clf the power given to coti, gress under the fourth section of the first article of the constitutiou; The Case of Reese did r.ot 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 ame'ndment 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 indietment,dexcept that it had from the fifteenth amendment, it had 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 s6Ction as originally enacted, referred to the former sections of the act, and repeated in it the provisions of
those sections. This very able opinion the court did not coincide m, but congress re-enacted the section, leaving those words out of it, and made it a general law. The case we are to decide, therefore, is not the Reese Case, which was a case of a municipal election, but we axe to decide whether congress has the power under the constitution to prevent the crimes enumerated in section 5506 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 Sta,tes provides "the· times, places, and manner of holdjng elections for senators aud representatives shall be prescribed in ea.ch state bJT the legialature 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 Calle was argued congress has enacted, as we said this section 5506. That it comes within the power to regulate' the time and place of election by section 4, ohapter 1, has been decided in this circuit ovel and Qver 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 seemsto us that when congress has power to regulate federal elec· tionsalone, 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-
mitted at a federal election the court would, we think, hav:e found the anthority for section 5506 under the fourth section, art. 1, above recitbd. The demurrer will be overruled.
HUGHES, J. 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 oj 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 tho 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 asa law on the first of December, 1874, two months after the case of U. S. v. Reese, 92 U. S. '214, was argued bAfore 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 ment 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 com· mitted, 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 elec. tion 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 et ai. 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
amendment are as follows; and it will be seen that the former refers only ,to federal elections, while the latter refera to all elections, federal, state, and municipal, but limits legislation under it to the prevention of discrimination between voters on account of race, color, and previous condition. The result is that congress has general powers of legishltion concerning federal elections, but can legislate concerning state and municipal elections solely for the purpose of preventing discriminations on account of race: Article I, § '4. "The times, places, and manner of holding elections for
senators and representatives shall be prescribed in ellch state by the legislature thereof; but the cOIlg-ress maya.t any time, by lllW, 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 be 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. 'fhe 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, binder, 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 punisbed 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 congl'8SS had. in this section 4, interfered in sta.te elections beyond the authority given by' the fifteenth amendment. Holding that congress could not interfere in state elections, except to prevent discriminations 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 sectioll 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
UNITED STATES V. MUN:8'OBD.
court took pains to premise, at page 218, that' it would not consider "the effect of article 1 of the constitution in respect to elections for senators and representatives in congress." The power of congress over federal elections was as broaa as the could legislate benerally in language of article 1 imports. respect to federal elections. The court was, accordingly, careful to premise that it would not consider the enforcement act of May 81, 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 (DUnsel 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 4:tuard its deliverances against misronstruction, the court say:
" Weare called upon to decide whether a penal statute enacted oy congress, with its limited powers, which is in general language hroad enough to cover wrongful acts withont 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 pe dangerous if the legislature could set a net large enough to catch all possible offenders, ar.d 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 manIter now asked for would be to make a new law, not to enforce &n o'd one. This is no part of our duty. '" .. .. We are not able to reject a part which is constitutional and retain the remainder; hecause it is not possible to separate that which is 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, reo quire!:! the interpolation by the court of words of limitation necessary to make it constitutional, it is as to that indictment,and all in-
dictments like it, null and void. The before the court Wlls for an offense committed at a state election. The court was considering the validity of an act of congress with reference to a state election. That was the precise and only question in the mind of the court; it was the precise aud only question before the court for decision; it was the question to which the court took especial pains to limit its consideration; and, according to all received canons for can· struing the decisions of courts, we are bound to conclude, notwith. standing any language employed arguendo, that the court decided no more .than that section 4 of the act of May 31, 1870, was not valid to support an indictment in a United States court for acts done in a state election. 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 they 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 committed at a state electio'1, 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 it is now no longer on the statute-book. It is by sec, tion 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
article 1 of the constitution; because congress must' be presumed to have passed a constitutional law, unless it otherwise palpably appears; and because, therefore, it is a necessary impHcation that the object of the section is the constitutional one of protecting voters in federal elections. Setl.JJl'uwn
Munford, ante, 175.
May 10, 1883.1
(Oircuit Oourt, D. Oregf;n.
BREAKING INTO POBT-OFFICE-SECTION
5478 OF THE REVISED STATUTES. 8ection 5478 of the Revised which provides for the punishment of any person who breaks into a building used in part as 8 post-office with intent to commit larceny therein, interpreted as if it read, with intent to commit lar. ceny in the part of said building used as a post.office; and a deinurrer sustained to an indictment drawn upon said section in the words thereof, because in ef· feet it charged that the breaking was done with the intent to commit larceny anywhere in the building.
Demurrer to Indictment. James F. Watson, for the United States. William Gullen Gaston, for plaintiff. DEADY, J. Section 5478 of the Revised Statutes provides that "any person who shall forcibly break into, or attempt to break into, any post-office, or any building used in whole or in part as a postoffice, with intent to commit therein larceny or other depredation, shall be punishable" as therein provided. On October 20, 1882, an indictment was found by the grand jury of this district charging the defendant, on December 21, 1880, with forcibly breaking into a build· ing at Oregon City, in this district, "which building was then and there used in part as a post-office of the United States, with the intent then and there, in said building, to commit the crime of larceny." The defendant demurs to the indictment for that it does not charge him with the commission of an act made criminal by any law of theUnited States, because the intent therein charged is not sufficient to make the alleged breaking a violation of any such law. Taken literally and grammatically, the adverb "therein," in said section 5478, qualifies the verb "to commit," 80 that the intended larceny must be of something, either in a post·office or in a building