UNITED BUTEIiJ V. FISHER.·
(Circuit Oourt, 8. D. Ohio, W. D.
August 22, 18S1.)
ELECTION SEClION 5515, REv. ST.
A supervisor of election, appointed under the laws of the United States, is an "ojftCf/l' of an election" within the meaning of section 5515, Hev. St. 2. SAME-INTERFERENCE WITH JUDGES-SECTION 5511, REV. ST. While the judges of an election, at which a representative in congress is voted for, are engaged in counting the ballots cast, to mingle with the ballots cast ballots having thereon the name ofa candidate for representative in con· gress which the defendant well knew had not been voted by any of the electors at such election, constitutes" an unlawful interference with the judges of the election in the discharge of their duties," within the meaning of section 5511, Rev; St.
On Demurrer to Indictment. George R. Sage and Chas. H. Blackburn, for demurrer. Cha.nniny Richards, U. S. Dist. Att'y, contra. BAXTER, C. J. The indictment in this case is demurred to. It contains six counts-four of them predicated on section 5515, and the others on section 5511, of the Revised Statutes. Section 5515 provides"That every officer of an election, at which a representative or deleg:\te in congress is voted for, whether sucb officer of election be appointed or created by or under any law or authority of the United States, or by or under any state, territorial, district, or municipal law or authority, 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 OJ: territory thereof; or who violates any duty so imposed; or whhknowingly does any act thereby unauthorized, with intent to affect any such election or the result thereof, ... ... ... shall be punished,"
Oneof these counts, which will serve as a sample of them all, charges that defendant,-
"Being an officer of an election at which a representative in congress for the first congressional district of Ohio was voted for, to-wit, a supervisor of election, duly appointed under the laws of the United States for the voting precinct A, of the first ward of the city of Cincinnati, did unlawfully and knowingly do an act unauthorized by the laws of the United States, or of the state of Ohio, in that, while the judges of said election were engaged in counting the ballots cast in said precinct, he did mingle with the ballots so cast certain, to wit, fourteen, ballots, having thereon the name of a candidate for representative in co.ngress for said district which he well knew had not been voted by any of the electors of said precinct, with intent to affect the'result of said election by having them counted as ballots cast bv the electors of said precinct," etc.
*Repol'ted by J. C. Harper, Esq., of the Cincinnati bar.
UNITED STA.TES V. FISHER.
No objection has been taken to the frame of the indictment. But defendant. contends that none but officers of an election are amenable to indictment undedhe law, and that supervisors appointed pursuant to the act' of congress relating to the subject are not such officers. We assent to the first part of the propo$ition. None but officers of an election are within either the letter or spirit of the law. But are superyis()rs such officers? An office, says Cowell, is "a function by virtue whereof a man hath some employment in the affairs,of another." Webster defines it to be "a duty, charge, or trust;" while Burrill says "the idea of an office clearly embraces ,:the' ideas- of tenure, durp,tion, fees or emoluments, rightsrlJ,ndpowars,as WElll as that of du'ty." A supeJ;visor, we think, fulfils all these conditiqns. He is appointed andrcommissioned by authority of law, which· fixes the tenure and duration of his office, is entitled to fees, vested, with certain powers and privileges, ,and charged with defined duties. When in the dis. charge of these duties or in theexercis60f these rights, he speaks aots by authority of law, alid isrunquestionably an officer. It seems equally clear that he is an officer of elections. Every require. ment which the law makes of him relates directly or remotely to elections. He is authorized and required to attend at all times and places fixed for the registration of voters, who, being registered, would be entitled to vote for a representative or delegate in oongress, and to challenge any person offering to register; to attend at all times and places when the names of registered voters may be marked for ohallenge, and to cause such names registered as they may deem proper to be SO marked; to make, when required, the lists provided for in section 2026, and verify the same; and upon any occasion and at any time, when in attendanoe upon the duties prescribed, to personally inspeot and scrutinize such registry, and for purposes of identification to affix their signatures to each page of the original list, and to each copy thereof, at such times, upon each day when any name may be received, entered, or registered, and in suoh manner as will, in their judgment, detect and expose the improper or wrongful reo moval therefrom or addition thereto of any name. Section 2016. They are further authorized and required to attend at all times and places for holding elections of representatives or delegates in congress, and for counting the votes cast at such elections; to challenge any vote offered by any person whose legal qualifications they may doubt; to be and remain where the ballot-boxes are kept at aU times after the polls are open, until enry vote cast at such time and place has been counted, the canvass of aU votes polled wholly completed,
and the proper and reqnisite certificates or returns made, whether the certifica,tes or returns be required under any law of the United States, or any state, territorial, or municipal law; and to personally inspect and scrutinize, from time to time, and at all times, on the day of election, the manner in which voting is done, and the w.ay and method in which the poll.books, registry lists, and tallies or check. books-whether the same are required by any law of the United States, or any state, territorial, or municipal law-are kept. Section 2017. Anti to the end that each, candidate for the office of representative or delegate in congress may obtain the benefit of every vote cast for him, supervisors are required to· personally scrutinize, count, and canvass each ballot cast in their election districts or voting precincts, etc.; and the better to enable them to discharge their duties, they are authorized and directed, in their respective districts or voting preon the day of registration, on the day when the registered voters may be marked to be challenged, and on the day of election, to take, occupy, and remain in such position as will, in their judgment, best enable them to discharge their duties; and when, the voting has ceased, to assume such position in relation to the ballot-boxes, for the purpose of engaging in the work of canvassing the ballots and performing such other duties as are prescribed by law, and there remain until every duty in respect to such canvass, certificates, returns, and statements has been wholly completed. Sections 2018 and 2019. An officer whose only offiCial duties relate to the registration of votes as preliminary to the exercise by them of their right to Yote, to be present at the polls during the time the votes are being cast, to engage in the work of canvassing the ballots, to personally scrutinize, count, and canvass each ballot cast, and to remain with the inspectors and other officers of such election until the yates are can· vassed and connted, and certificates and returns are wholly completed, is an officer of the election so supervised by him within the meaning and intention of the section under and pursuant to which the counts under consideration were framed. The remaining counts, based on section 5522, proceed against defennant as an individual. This section declares it an offence for any one "to interfere in any manner with any officer of such election in the discharge of his duty." The counts thereunder recharge the same unlawful commingling of votes referred to in the preceding counts, and aver that such unlawful commingling of the spurious with the legal ballots constituted "an unlawful interference with the
ADAJlS V. HYAJlS.
judges of the election in the discharge of their duties." I am unable to see any valid objection to them. They follow the law, and the facts alleged constitute, beyond doubt, an unlawful interference within the plain meaning of the statute. The demurrer will- be overruled.
NOTE·· A governor of a state is not .. an officer of election" within the meaning of section 22 of the act of May 31,1870, (section 5515, Rev. St.) U. 8. v. Clayton, 2 Dill. 219; 19 Am. Law Rep. 737; 10 Am. Law Reg. (N. S.) 737. See Giauque's U. S.Election Laws, 35 et Beq.
ADAMS and another, Assignees,
HUMS and another.
(Circuit Court, D. Connecticut.
OF CONNECTICUT OF
1860, c. 348, § 5,
Under section 5 of chapter 348 of the Session Laws of Connecticut of 1860, sureties of an assignee in insolvency are lialJle upon their bond in case of their principal's default, though it consistil in refusing to obey an order made to sUbvert the assignment. Qwcre, whether or not an accounting before the county judge is a prerequisite to an action. 2. SESSION LAWS OF 1877, c. 466, CONSTRUED-AcTIONS AGAINST SURETIES. Chapter 466, of the Session Laws of Connecticut of 1877, did not make an accounting Lefore some specified court a prerequisite to an action against such sureties.
SAME-RIGHTS OF SURETIES AS AFFECTED THEREBY.
No substantial rights of such sureties were impaired by the repeal of the act of 1860 by the act of 1877.
William Y. Wilson, for plaintiffs. Philip J. Joachimson, for defendants.
SHIPMAN, D. J. Upon the facts which have been heretofore found the defendants insist that they are not liable in this suit,because they say that, under the fifth section of chapter 348 of the Session Laws of 1860, if the default of an assignee in insolvency consisted in a refusal to obey an order or decree made to subvert and not to carry out the assignment, an action will not lie against his sureties upon their bond, and also that an accounting by the assignee before the court of common pleas was prerequisite to a suit against his sureties. The defendants rely upon the construction which was placed upon this section in the case of People v. Chalmers. 1 Hun, 686, and 60 N. Y. 154. The fourth section of the act provided in substance that after the v.8,no.6-27