common use, or that.thenarlleofbonnet·inthat sense was in common the face of the use, is not entirely paragraph. If there.is no conflict .between these two authorities, then the statement in Worcester may betakim as conclusive. If, however, there is a conflict between them, then the court must determine this question from its own knowledge as to the ,use of the word. 'fhree witnesses-and I do not refer to their testimony as enlightening . the court upon the meaning of the word, nor do I predicate my ruling upon their testimony, but I refer to it in illustration merely-three witnesses gave suggestive testimony upon this point. Mr. Dunlap sells a great many of these caps,-imports and sells them,':'-and buys them also, I presume, from manufacturers here. He sells them on the call of his customers as caps, except that Scotchmen have called and asked for a bonnE'it. Mr. Russell, himself a Scotchman, knows what a bonnet is; but though he has been in business here long, and sold many of them, he testifies that no one here has asked for these goods,asking for them by the name of bonnet. The other, a most important witness on that point, is the plaintiff himself. No one arriving in a strange city anyWhere in this country, and wishing to purchase a Scotch 'cap, who should look over a business directory to find a shop at which to buy. it, would go to a person who advertised himself as a dealer in bonnets. Thl' plaintiff seems to have recognized that fact fully, for, upon his sign, he describes himself as an importer of Scotch caps. I am, therefore, of the opinion that the word "bonnet" is not in this statute sufficiently broad to cover the goods the subject of this suit, unllli!!l it is, made so by having affixed to it at the time congress pa8sed this act SOme peculiar, technical, trade meaning, which coupled it, in the minds of the legislators, with these particular goods, or goods similar to them. Of this there is no proof, and I shall, therefore, deny the plaintiff's motion for a verdict, and shall direct a verdict for the defendant.
UNITED STATES f1. GREEN.
(Oircuit Oourt. E. D. Missouri, E. D. April 19, 1887.)
Under a proper construction of the laws of Missouri defining the duties of clerks Of'election in the city of St.Louis,' such officers are not reqoired to certify as to the result of an election. Theduty of certif;ring as to the result of an. election is imposed on the judges of election, while clerks of election are merely. required attest" or authenticate tbe signatures of the judges to the certificate. Vide Sess. Laws Mo. 1883, pp. 44, 45, §§ 19,20.24; Rev. St. ·Mo.. 5495, 5498. All indictment having been drawn against a clerk of under that clause of eection 5515,Rev. St. U. S., which declares it to . bean.oft:ense ".to make a false certificate as to the rcsult"of a congressional election',: hsld,.that such indictment was bad on demurrer, inasmuch as it was not a clerk's d\ltyto certify as to the resolt Of the election. Held, furth6'/', that ,the,clerk. by attesting the,poll·book, did npt certify as to the correctness of. the Ctlun't of the votes, but merely authenticated the of thejudgesi whose duty it was to count the votes and certif)' as to the result. ' . .
AGAINST-ATTESTATION, OF POLL-BOOKS BY CLERK.
On D«:lrnUrrer. Indiotment under,Rev. St.U. S. § 5515, for frauduientlyattesting It false certificate of election upon the poll-books. T. P.Bashaw, Dist. Atty., and D. P. Dyer, for the Government. Krum &- Jonas and Naptnn &- Frost, for defendant. THAYER, J.. This is an indictment drawn under that clause of section . 5515,Rev. St. U. S.,.which declares it to be an offense if any officer, at an election for a representative in congress, fraudulently makes a false certificate. of the result of such election with respect to the representative voted for. The defendant acted as clerk of election in November, 1886, and is charged with "jalselyattesting upon the pollrbooks afalse certificate," said to. have been made by the judges of election, with reference to the congressionalVdte. The ihdictment is drawn upon the theory that clerks ofelectiou, when they ·attest the poll-books at the close of an election, as the law requires, thereby certify to the correctness of the count as made lU.ld certified by the judges of election. On the other hand, it is contended that· clerks of eleotion are merely required to attest theact of the judges in signing the.certificate as to the result of the election, and that, aa clerks, they, have nothing to do with the actual count of the vote. If the latter. view is correct, it follows that the indictment is bad, in law, inasmn<:h as .it misconceives a clerk's duties, and piaces a wrong COllstruotiOJ,l,upon the meaning of the clerk's attestation. We have had some difficulty in determining, under the state statutes, precisely what effect ought to be given to the attestation in question,that is to say, whether we should construe it as relating to the general correctness of the count, and as confirmatory of the fact certified to the judges of election, or whether it is a mere authentication of the signatures of the judges to the certificate. So far as the duties of a clerk of election are expressly defined by statute, they seem to be confined (1) to writing the words "voted" or "rejected" opposite the voter's name on the pollbooks as the names of voters are called by the receiving judges when votes are tendered for acceptance or rejection; (2) to entering or tallying the votes in favor of each candidate as the same are read aloud by the counting judges; and (3) to attesting the poll-books when the election has ended, and the judges have signed the certificate as to the result. Vide section 19. Sess. Laws Mo. 1883, p. 44; section 5498, .Rev. St. 1879; sections 20, 24, Sess.Laws Mo. 1883, pp. 44, 45. In other words, a clerk's duties seem to be purely clerical. They are not authorized to receive, copnt, or handle the ballots personally, but are simply required, to entnes. at the dictation of the judges of election, and to cast up the total number of votes polled in favor of each candidate as the same are read'off by. the pounting judges. The counting of the ballots is required to be dQIJ,e by two of the judges, one of whom reads the ballot in an audas ible voice,. and passes it to his associate to be examined. and PtYvided by law. So far as we can see,jhere is no of the electiori law which oontemplates that the face of the ballot shall be exposed to the clerks of election, or that the same shall pass Videsection'q195, Itev! St.,1879. . " . ...." ...
The matter is involved in some obscurity, but we think it the most reasonable construction of the Jaw that clerks of election merely authenticate or attest the act of the judges in signing the returns, and that they are not required, and do not in fact, certify as to the correctness of the count, which is made by the judges themselves. The statute itself makes a distinction between the duties of judges and clerks of election, in that the former are required to certify to the result, and the latter to attest the signing. The word "attest," in its ordinary sense, also confirms the construction which we have herein given to the statute. If clerks of election are to be held responsible for the correctness of the certificate of the judges, it would seem that some provision ought to be contained in the law to give them a view of the ballots; otherwise they will be compelled to certify to facts of which they have no personal knowledge. It would seem, also, that they should be required to sign the certificate as well as the judges, and not merely to attest the signing. For these reasons we hold the demurrer to be well taken, and order the same to be sustained. BREWER, J., concurs.
DAVIS and others.
(District Court E. D. Missouri, E. D. Novemper 21, 1887.)
INDICTMENT-JUDGES OF ELECTION-JOINDER OF PARTIES.
In Missouri, judges of election and clerks of election have several and not joint duties; and where they are jointly indicted for neglect of duty the indictment will be held bad.· Persons who, as officers of an election, have different duties to perform, cannot be jointly indicted for neglect of theirsev-, eral duties. To authorize a joint indictment, the duty imposed on the defendants must be a joint duty. .
Th08.P. Bashaw, U. S. Dist. Atty., and D. P. Dy.('Jf, special counsel, for plainti.ff. O. M. NapwH, for defendants.
THAYER, J. In the case of U. S. v. Dat"ia et al., the indictment is against six persons, four of :whom are described as judges of election, and the other two as clerks of election. The indictment is drawn under the first clause of section 5515, Rev. Sf. U. S., which provides, in substance, that any officer of an election at which a representative in congress is voted for, "who neglects or refuses to perform any duty in regard to such election required of him by any law of the United States, or of any state or territory thereof," shall be deemed guilty of an offense, etc. These defendants are charged jointly, in one and the same count, with neglecting and refusing at a congressional election to perform certain duties imposed upon them, or supposed to have been imposed upon them,