the return of the bill, but from this entry alone it is argued that February 25,1887, should be accepted as the true date of its return. On the other hand, a minute-book kept by the journal clerk of the house of representatives, under date of February 24, 1887, contains the following memorandum: "A message in writing was received from the president of the United States, which was laid on the speaker's table." Concerning this entry, the journal clerk testifies that such memorandums are usually made by him in his minute-book on receipt of messages from the president, for the purpose of identification in case of several messages being received on the same day; and that a careful search of the journal . of the house, as well as the clerk's minutes, shows that no message was received from the president on that day io which the memorandum could relate, unless it was the message in relation to the relief of the sureties of Mr. How, which was laid before the house by the speaker on the following morning, February 25, 1887, and is referred to by the jom:nal entry of that· day. The journal clerk further testifies that the message to which the entry in his minute-book under date of February 24, 1887, . relates, was undoubtedly the message containing the president's objections to the bill for the relief of the sureties of John How; that it was received during the session of the house, between 4' and 5 P. on February 24, 1887, and, according to his recollectIon, was opened for identification, and laid on the speaker's table; and that, in confonnity with the usual practice of thehollse,1under clause 2 of rule 24 of the house of representatives, a message received at the hour named would be laid before the house by the speaker 011 the following morning, after the reading and approval of the house journal. As the entry contained in the house journal of February 25, 1887, to the effect that the speaker on that day laid the president's message before the house, does not state when the message was received, and is in no respect inconsistent with the explanation furnished by the journal clerk, the -evidence before the .court shows almost to the point of demonstration that the bill in question was returned intime to prevent its. becoming law; that is, on February 24,1887. I so . find, and accordingly direct judgment to be entered for the penalty of the bond.
UNITED STATES '11. TRAINOR.
(District Oourt, D.OregQn. August 4, 1888.)
U. S. § 5511. . Section 5511 of the Revised Stattites. for the prevention and punishment of corruption and misconduct at a congressional election, does not include an "attempt" .to do or commit any o( the acts therein specified and prohibited, except that of voting in the name of another person, and the act of aiding, counseling, procuring, or adVising any person, voter.' or officer, to do oromn to do any act·, the commission or omission of which is thereby made a crime, and therefore an indictment will not lie thereon against one for attempting to ·vote at such election a second time. . . (Svllabu8 'by theOourt.)
ELECTIONS AND VOTERS-ATTEMPTING UNLAWFUL VOTING-REV. ST.
UNITED STATES V. TRAJ!\'OR.
Indictment for Attempting to Vote a Second Tillie. Lewi8 L. McArthur, for plaintiff. Robert G. Morrow, for defendant.
DEADY, J. The indictment in this case charges that the defendant, on June 4, 1888, at an election then being held in the state of Oregon for a representative in the congress of the United States, did knowingly "attempt and offer to vote a second time" for such representative, at polling place numbered 1, in South Portland precinct, in the state aforesaid; he having aIr,eady voted once for such representatlve at said polling place, on said day. The defendant demurs to the indictment,for that the facts stated therein do notCQllstitute a crime. The indictment is found under section 5511 of the Revised Statutes. The section is a very long one, over-crowded with particulars. It is a crude, bungling piece of composition, and, considering the importance of the subject, shamefully obscure and uncertain. Although intended to punish and prevent bribery and corruption at congressional elections, it does not make the reception of a bribe a crime, and only includes the case of a briber by the obscure indirection of making it a crime to pre,vent "by force, threat, intimidation, bribery, reward, or offer any qualified voter "from freely exercising the right ofsuffrage." The section contains nine clauses, separated by the conjunction "or" and a semi-colon, specifying a great number of acts and omissions relating to elections for representatives in congress, which are thereby made criminal and punishable by fine and imprisollment. The first four relate to unlawful voting by any person; as voting or attempting t(l vote in the name of another person, voting more than once, or at a place where the party is not entitled to vote, or without having a lawful right to vote, or doing any unlawful act to secure an opportunity to vote. But nothing is said concerning an attempt to do any of these acts except the fi,rst. The next four clauses relate to the preventing of any person" from freely exercising the rIght of suffrage by force, threats," etc., or compelling, or inducing by any such means any officer of election to act unlaWfully, or interfering in any manner with him in the discharge of his duty. The eighth and ninth clauses read as follows:
.. Or knowi ngly receives the vote of any person not en titled to vote, or refuses to receive the vote of any person entitled to vote; or aIds. counsels, proany such vuter, person, or officer to do any act hereby made cures, or a crime,.or omit to do any duty the omission of which is hereby made a crime, or attempt to do so," shall be punished, etc.
The "person" or "officer" who is the subject of these two sentences or clauses, is not expressed; but from the nature of the acts prohibited in the first of them-the receiving or refusing a vote illegally-it must be an officer at a congressional election, and in the case of the second one it may be "any person" who gives the "aid, counsel," etc., therein prohibited. And the "such voter, person, or officer," mentioned in the latv.36l<'.no.3-12
ter clause, and who may be the object of such "aid, counsel," etc., mnst be the "qualified voter," the "any person" or "officer of such election," mentioned in the preceding part of the section. On this a.nalysis of the statute, the eighth and ninth clauses, when expressed in full, should read: Any officer at a congressional election who "knowingly receives the vote of any person not entitled to vote;" or knowingly "refuses to receive the vote of any person entitled to vote," or "any person" who "aids, counsels, procures, or advises any such voter, person, or officer to do any act hereby made a crime, or omit to do any duty the omission of which is hereby made a crime, or attempt to do BO," shall be pumshed, etc. The use of this form of the verb "attempt," in this connection, is a blunder It should have been in the form of the third person singular, -attempts,-or it might have been in the future tense,-shall attempt, -so as to read: Any person who aids, counsels, etc., or "attempts" to aid, counsel; etc., or "shall" attempt to aid, counsel, etc. However, the phrase "attempt to do so," or attempts to do so, cannot be construed to apply to any acts other than those mentioned in the clause in which it is contained; and those are "aids, counsels, procures, or advises any such voter, person, or officer" to do or omit to do an act, the commission or omission of which is by the statute made a crime. Disregarding the grammatical error in the use of the word "attempt" in legal effect, the clause reads: '''Any person who aids, counsels, procures, or advises, or attempts (or shall attempt) to RId, counsel, advise, or procure any such voter, person,or officer," etc., shall be punished ,'etc. The act of attempting to vote illegally, except in the case of attempting to vote in the name of another person, appears to have been overlooked in the prepara,bon of the statute, and no provision is made therein for its punishment. Therefore, the act with which the defendant is charged in the indictment---an attempt to vote illegally,because he had already voted once at said election-is not a legal crime,and the demurrer is' well taken. This is to be 'regretted. The defendant has incurred the moral guilt of attempting to pollute the ballot-box, the sacred depository of the public will, with an illegal tote,and deserves legal punishment therefor. "But the remedy for the omission is with congress; and not the courts. If the defendant, in his attempt to vote, did any unlawful act to accomplish his purpose, he may be proceeded against for a violation of the fourth clause of the section, which provides that if any person "does any unlawful act to secure an opportunity to vote for himself or any other 'person," he shall be punished, etc. Thus, if the defendant was sworn, ori his offer to vote a second time, and thereupon stated that he, ,had not voted at that election, he would be guilty of an unlawful act-peljury"to secure an opportunity to vote for himself," and could be prosecuted therefor. ' The demurrer is sustained.
KEYES V. PUEBLO SMELTING & REFINING CO.
'V. PUEBLO SMELTING
(Oircuit Oourt, D. Oolorado. June 7,1888.)
PATENTS FOR INVENTIONS-ANTICIPATION-SMELTING ORES.
Keyes & Arents' patent; relating to the art of smelting metallic ores, consisting of a tube inserted at the base of the furnace, through which the pure metal, being heaviest. runs out, and is conducted into a pasin, leaving the matte and slag behind, is not anticipated by the device described in volume 5, p. 135. of Karsten's work on Smelting and Mines, by means of which the pure metal at the bottom of the furnace is permitted to empty itself into 0. "fore-hearth." or little projection from the bottom of the furnace out into the open air: as it is not pretended that by his device the matte is separated at this fore-hearth from the pure metal.
In Equity· Bill for infringement of patent. On final hearing. R. E.Foot, for complainants. a. E. Gust and. Thomas Macon, for defendant. Before MILLER, Justice.
MILLER, Justice. Two questions are made in the case by the defendants in opposition to the claim of the plaintiffs, and the first is that they deny that they have infringed the patent of the plaintiffs. The patent itself has relation to the art of smelting metallic ores, and is a very clear statement of a mode of withdrawing the pure metal after it has been separated by heat and the usual appliances of smelting furnaces from the other matter found in the ores in their native condItion. And the mode by which this is done, as explained by the patentees, is a pIe reliance upon some of the principles of 11atural physical science. They say, and that is undoubtedly true, that the metal-any metal which is sought to be extracted from these ores-is heavier than the other particles of are, than the other matter found in the ore. The art of smelting, itself, consists in the processes by which, through the use of heat and other substances called "fluxes," this mixture of the are with calcareous matter, with some other metals, is separated, and the pure metal is in this manner dIsintegrated from, and in some shape brought to a separation from, the other more useless and less valuable parts of the ore. I It is not necessary to inquire whether the are of lead or of gold or silver or copper is merely a mechanical mixture,as it mostly is,-or is in some cases a chemical mixture; the great result to be sought for in smelting is to separate them. Lead is perhaps the easiest of all the ores to separate from the surrounding materials found connected with it. The mechanical principle to which I allude is that, these ores being mixed in a large furnace or cylinder without other materials which offer attraction to some of its elements, they are separated; It is by means of the heat secured through a blast-furnace. It is all melted, all dissolved, all turned into one fluid mass within the furnace, and precipitated from the upper part of the furnace, where they are mixed together, into the base of the furnace. In this process of separation and precipitation, or falling down, ihe metal being the heaviest t