to the :evidence where the: trial was fair and deliberate; and covered evidence is It Was the prerogative of the 'jury to pass uJ>on and' if tbeyresolved the doubts that might have arisen in their minds from its contradietory'chll.raeter in favor,of the plaintiff, it is not for tbe judge, because his to verdict. ' , " ' , As to the1iw of the case, I have, felt bound by the reas6ningof flW court of the United 'States in Moulor v lnsurance Co., 11 i, 3H,342,344-346,4 Sup. Ct. Rep. 466. The contract in that, dase was the, insured than the contract ;nuch more, specific and, stringent pere. It was so strong that the judge below had taken the case whoIl}i from the jury, and instructed them to find for the defendant. The I preme court ruled there substantially as I feel bound by that precedent to ruleherejto the effect that, however strong the case may seem in the judge's opinion .to be against the plaintiff on there be doubt as to the weigbt of evidence, the jury nmst resolve The motion to set aside must be denied. I . ,
settikd' thatstioha conviction: roti)he part of It juclge' doesnotJustify bim in setting aside
CLAFLL'f et
al.
'11. BEAVER
et ale
(Olrc'Uit Oourt, 8. D. Ohio, B. D. January 18, 1888.) REPLEVIN-TRIAL-ORDERING ISSUES-SALE-FRAUD.
In replevin the issue was whether the goods sought to be taken were sold by plaintiffs to defendants upon false representations by the latter. The marshal having returned to the writ that he had taken and delivered the goods therein mentioned, the court refused to hear proof that some of, the goods taken on the writ, although conforming to the general description. given therein and in the return. had not been purchased from plaintiffs. or, if they had, that they had been paid for; and there was a general verdict fOf plain' tiffs. Held, upon a motion for a new trial, that an order to frame an issue to try the facts offered to be proved, and vacating the verdict to such anexten$ as the issue might be found for defendants, was proper. .
At Law.' On motion for new trial. This was an action of replevin, brought by H. B. Claflin & Co., who were wholesale merchants at New York, against A. M. Beaver, and another who was his partner during part of the time in which the replevied goods were being purchased, and a third defendant, to whom the goods had beEm as-signed by the first-mentioned defendants for the benefit of creditors. 'The plaintiff's case was that the goods had been bought at dift'erent dates Of the plaintiff's by Beaver and by Beaver & Co; for the purpose of stocking their retail house at Washington Court House, under circumstances llnd'upon representations made by Beaver as to his and his firm's· responsioility, which were fraudulent, and entitled the plaintiffs to rescind the sale·. The petition and the writ of replevinin many instances described the
260
J'BDElUL REPORTER. I
emIly, e. g., so many pieces of <lalico; and the marshal returned upon the writ that he had taken the goods mentiened and described in the writ, and delivered them to the plaintiffs upon their giving bond. Upon the trial, which was upon general pleadings, the defendants offered to show by proof that some of the goods actualJy taken on the writ, although conforming to the general description of the writ, were in fact either never purchased of the plaintiffs, or if, in some instances, they had been so purchased, they had been paid for. But upon objection the court held that the marshal's return being that the goods delivered on the writ were those mentioned in the petition and writ, and the plea being simply a denial of the petition, no issue of the kind now proposed to be litigated was made by the pleadings, and therefore that the offered proof could not be receivedibut indicated that the matter should be the subject of a collateral issue in the case. The issue made by the pleadings was tried before the Jury, who found a general verdict thereon for the plaintiffs. Thereupon the defendants moved for a new trial, relying principally upon the alleged error in rejecting the proof .offered as above stated. Kramer.&: Kramer and Harrison'&: Marsh, for plaintiffs. W. B. Maynard and W. O. Hender8on, for defendants. SEVERENS, J. ; (after 8tating the facts a8 ,above.) ·In this cause a motion having been made hy the defendants that the verdict be set aside and a new trial be granted therein, for the reason, among others, of alleged error of the court in excluding proof offered on the trial by the defendants that a part of the goods taken on the writ of replevin in this case and delivered to the .plaintiffs, although covered by the general description in the petition and writ, were not purchased of the plaintiffs, or that, if purchased, had been paid for prior to the institution of this suit; arid the said motion having been argued by the respective counsel fottheparupon <}bnsideration thereof, it having appeared upon the trial of the cause that the foundation of the right to recover the goods for which the action was brought consisted in an alleged fraud on the part of the purchasers, who are defendants, in procuring a sale .thereof to them from the said plaintiffs, and inducing such it is now here ordered that Baid motion be granted, and the said verdict be vacated in so far and to thA extent following only; that is to say, the parties may frame an issue upon the question whether some part· of the goods taken by the marshal upon the writ in this cause,.and delivered to the plaintiffs, were not purchased of the plaintiffs, or, been pur9hased, were paid for prior to the beginning of this suit, and, if so, w1;lat was the value thereof at the time they were so taken by the marshal, including interest thereon to the date of the trial of the issue. herein directed. Said issue may be framed upon a petition to be filed by the defendants within 30 days herefrom, and .the answer of the plaintiffs to be filed within 10 days after notice' of the filing of said petition, and !'Iuch further pleading as the nature of said answer may req uire, according to the practice in· the courtsof the state of Ohio. See Krippendorj v. Hyde, 110 U. S. 276, :4 SllP' Ct. Rep. 27:i·OoveU Heyman, 111 U. S. 176, 4 Sup. Ct. Rep.
EX PARTE MORRILL.
261
855; Gumbel '\I. Pitkin, 8 Sup. Ct. Rep. 379, (January, 1888,) opinion by MATTHEWS, J. And it is further ordered that the verdict heretofore rendered stand as a finding of the original issues in favor of the plaintiffs, as to all the goods described in the petition and taken on the writ, except such as shall be found upon the issues now directed to have not been purchased from the plaintiffs by either of the defendants, or, if so purchased, were paid for prior to the beginning of this suit, to the end that upon the coming in of the finding of the issue to be framed upon the aforesaid question such judgment may be entered as all the facts and the rights of parties may require.
Ex parte MORRILL. (Circuit Court,
n.
Oregon. June 18,1888.)
UNITED STATES MARSHALS-SPECIAL DEPUTIES-DUTIES AT ELECTIONS-WRONG,
A special deputy-marshal of the United States in the course of his duty made an arrest under section 2022 of the Revised Statutes, at an election for a representative in cougress, and took the party before a United States com· missioner, where he was charged with aiding and counseling a person to vote at such election who had no legal right to vote, and discharged on bail. and immediately made a complaint against said deputy before a police judge, ac· cusing him of the crime of assault and battery, by assaulting and beating the complainant, on which a warrant of arrest was issued, and he was taken and lodged in the county jail. Thereupon. on the petition of the deputy. B writ of habeas corpu8 was allowed by the district judp;e, returnable intl) the circuit court, then in session; and from the return to the writ it appeared that the process under which the jailer claimed to hold the deputy was the said warrant of arrest. On the hearing the court found that the deputy had prob. able cause, at the time of the arrest of the party, to believe that he had co Ill' mitte_d the crime of aiding and counseling a person to vote at such election, who had nO right to vote thereat, and that the alleged assault and batterr with which the deputy was charged consisted simply in the arrest of .the COlllplainant, without force or violence, for the crime aforesaid. Bela (1) That a special deputy-marshal, appointed under section 2021 of the Revised Statutes to keep the peace and preserve order at the polls at an election for represent· ative in congress, is, as to such election, and the crimes for which, undersllC" tion 2022 of the Revised Statutes, he may make arrests, without process. a peace-officer; (2) that a crime is committed "in the presence" of such deputy; within the provisions of said section 2022, when the facts within his observation, in connection with what, under the circumstances, may be considered common knowledge, p;ive him probable cause to believe. or reasonable ground to suspect, that such is the case; and (3) probable cause or reasonable$'rouu!J to sllspect is such a state of facts as will constitute a defense to an actIon for false imprisonment or malicious prosecution, and it is sufficient if the facts· or appearances are sufficient to induce a reasonable probability that all the acts which constitute the crime have been done. (Bgllabu8 by the Court.)
FUL ARREST-PROBABLE OAUSE.
Habea8 Coryus. Lewis L. McArthur, for petitioner. Alfred F. SeaTa, Jr., for respondent.
.. ·. On June 4, 1888, the petitioner, Eli' Marcill, was arrested by. a police offickr of this city, and lodged in the county jail on a charge of assault. and bAttery. He immediately applied by petition to the United States district judge for a writ.of'habea8 corpus, alleging in his petition that he was a deputy Unite.d States 'marshal for the district. of Oregon; that in the discharge of his guty lLS.such deputy he was about to arrest a person for aiding and abetting an illegal voter in casting a vote for a representative in congress, at polling plac.e3, in South portland precinct,at an election for such representative then and there being held, when was arrested by Samuel Parrish without authority of law, and delivered to the custody of the sheriff of Multnomah county and his jailer. The writ was allowed, and made returnable forthwith in the United States circuit court, then in session. The respondent, H. C. Wood, the jailer of Multnomali county, immediately produced the body''Of;the petitioner in court, with the original warrant on which the arrest was made, when by consent of parties the respondent had until June the 7th to make a formal return to the writ, and the petitioner until the following day to reply thereto, when the cause should be heard; whereupon an order was made admitting the petitioner to bail in the sum of $500. On June the 8th the parties appeared, and witnesses were sworn and testified for and against the petitioner on the question of the alleged assault and battery, and the alleged grounds of the arrest by the petitioner of Walter F. Matthews, for aiding and counseling a person to vote at said election who had no legal right to vote. From the admissions in the pleadings and the evidence I find the following facts: , The petitioner, Eli Morrill, on June 4, 1888, was a duly-appointed and qualified special deputy-marshal of the United States for the city of Portland; Or., a city of more than 20,000 inhabitants, under section 2021 of the Revised Statutes, and was authorized to perform the duties and , exercise the powers of such deputy at an election for representative in congress then being held insaid city; that about 10 o'clock of said day the petitioner, having good relLSon to believe, from his observation and knowledge, that one Matthew or Mace Cetel or Tetel had voted illegally at said election at polling place 4: in South Portland precinct, the fact, being, as it now appears, that said Cetel is an nnnaturalized alien who had not even declared his intention to become a citizen of the United States'l1rrested him therefor without a warrant, and took him before a United States commissioner inthe United States court-rooms, in said city, and there made a complaint against him to that effect; that soon after the arrest of Cetel the petitioner, having good reason to believe, from his observation and knowledge, that J. L. Carrol and Walter F. Matthews did aid and counsel said Cetel to so vote illegally, arrested them therefor, the latter being arrested in the hall outside of the door of the marshal's office, whither he had gone to go bail for Carrol, by the petitioner placing his hand on his shoulder, without violence or rudeness, and telling
EX PARTE 1I0RRILL.
263
him he was under arrest;. and asking· him to walk into· the office 1 ·where he remained until he gave bail; that soon after Matthews was d.ischarged he went before the police judge· of the city, having the jurisdiction· of a justice ofthepeace, arid made a complaint under oath; accusing the petitioner of the' "crime of assault and battery," committed as follows: "The said Eli Morrill, on the 4th day of June, 1888, in the city ofPortland, * * *. did willfully and unlawfully assault and beat" said Matthews; the fact being. that the petitioner did not "beat" said Matthews, or lay his hand on him, otherwise than as above stated; that on this information said judge issued a warrant for the arrest of the'petitioner for the crime ofassault and battery, returnable before himselflorthwith, on which is· an indorsement to the effect that the same was received on June 4, 1888, and executed by arresting Morrill on the same day, signed, "S. B. PARRISH, Chief of Police of the city of Portland, by S. S. YOUNG, Police Officer;" that said police officer, instead of taking the petitioner before ,said judge for examination and discharge on bail, or commitment. as required by law and by said warrant commanded,lodged him in the county jail with the warrant, without examination or com;. mitment, where he remained until taken out on the writ of habeas corpus. From the improper conduct of the officer intrusted with the execution of this warrant, taken in c0nnection with the exaggeration and falsehood contained in the information on which it was issued,it is quite evident that the real purpose of the proceeding was to lock up this special deputy, and thus prevent him from performing his dut,y in guarding the polls against fraudulent votes and pracfices. The onlyquestiol1 of fact about which there is any substantial conflict of testimony is the part which Walter F. Matthews took in getting Cetel's illegal vote into the ballot-box. On the witness stand he admits that he was engaged on the day of the election at said polling place 3 as a" worker" for one of the political parties, but denies that he took any part in getting Cetel to vote. It appears that Cetel went first to polling place 3, and offered to ,vote, and, on being questioned by the judges, he was found to be an unnaturalized foreigner, who had not even declared his intention to become a citizen, and his vote was rejected. Morrill, who was standing within plain view of the polling place, and saw Cetel, thought he voted there. Fl'om this polling place Cetel went directly to the corner of Fourth and Mill streets, nearby where itis admitted Fred D. Matthews, the brother of Walter F. Matthews, and J. L. Carrol were standing.. Fred Matthews and Carrol were also engaged at that polling place as "workers" for the same party as Walter F. Matthews. Fred D. Matthews admitted on the witness stand that he, knowing Cetel had just been rejected by the judges at polling place No.3, asked Carrol to "go with him to another polling place, and see if he couldn't get him to vote,"-that is, get his vote in the ballot-box. Carrol made some question as to how he was to get Cetel to a polling place, when Matthews told him to call an express wagon in the service of theil' puty, which stood near by, which he did, when Matthews and Carrol
264
FEDERAL REPORTER.
got Cetel in the wagon and Carrol drove off with him, to find a voting place. This is the substance of Fred D. Matthews' story, and Carrol's is to the same effect, except that he says Fred D. Matthews came to him on the occasion, and said: "Here is a mau, [Cetel;] take him to polling place 4, and see if you can vote him," which he did, and voted him. Both of these witnesses seek to make the impression that Walter F. Matthews, although at that poll, had nothing to do with the transaction. The statements in this respect are generally vag and sometimes evasive. The most direct are these: Fred D. says, "Did not see my brother when man [Cetel] put in wagon;" and Carrol says, Walter F. "had nothing to do with Cetel." True, FredD. might not have been looking at Walter F. at this moment, and yet the latter may have participated in the con8ultation a.nd shared in the conclusion that Carrol should take Cetel to polling "lace 4 and vote him, and then turned away to look after some other Cetel. And it may be true, so far as Carrol saw, that Walter F. had nothing to do with Cetel personally, and yet he may have consulted and advised with his brother concerning his being sent to polling place 4 with Carrol, for, according to his own statement, his attention was not attracted to this matter until Fred D. came to him and said, "Here is a man, take him to polling place 4, and see if you can vote him." When Cetelleft the window of polling place 3 and went to the Matthews', Morrill testifies thatR. G. Chure.h called his attention to the party, and warned him of them. Church testifies that about that time of day he saw suspicious characters about the place indicated-the corner of Fourth and Mill streets-in company with "the Matthews' boys," and that he oalled Morrill's attention to them, and said, "the Matthews boys are using influence to get suspicious characters to vote." Morrill swears tbat he then gave the party his attention, and saw both the Matthews and Carrol talking to Cetel in an urgent manner, when Carrol and Walter F. Matthews got into the wagon with Cetel and started off. Thereupon he got in a hack and told the driver to follow the wagon, which he liid, to polling place 4; and by the time he got out of the hack and up to the place Cetel had voted. On being assured of this fact by the ju,dges, he arrested him, and took him back to polling place 3, when the judges and $upervisors identified him as the alien who had just before offered to vote there and was refused. The weight of the testimony of the two Matthews and Carrol is affected by their part in and relation to this transaction; though it must be admitted that Fred F. Matthews appears to have spoken very canJidly concerning his own part in it. He admits that he sent Carrol with Cetel to polling place 4, to get his vote in if he could, when he knew that the same had just been refused by the judges at polling place 3 on the ground of his being an alien who had !;lot declared his intentions, which fact must have been strongly corroborated, if not suggested by his imperfect English. But the testimony of Walter F. is also unfavorably affected by the fact that he made oath to the complaint on which this warrant issued, wherein he positively and explicitly stated that Morrill not only assaulted him, but "beat" him p when he was forced to admit on tht:l witness stand that
£X PARTE MORRILL.
265
he was neither "struck," nor "bruised," nor "hurt," and that the alleged "assault and battery" consisted simply in an arrest, wherein, at most, he now only claims that he was caught by the arm and "rudely" pushed into the marshal's office, and "unceremoniously" set down in a chair; and even that is a gross exaggeration of the fact, as appears from the testimony of a third perSOll then present. But it must be admitted that Morrill's testimony 011 this point is not as satisfactory as it ought to be. When on the stand he admitted that he did not reltdily or certainly know the Matthews boys apart, though they bear no resemblance to one another. But he was excited and confused, and may have, and probably did, mean that he could not guish them by their names; did not know which was Fred and which was Walter, or, as he is commonly called. "Jack." They were both in the court--room, and he undertook to point out the one he saw working with Cetel at the corner of Fourth and Mill, but the men were nearly in a line, and I did not get a clear idea of which one he meant. On the argument it was claimed by counsd for the respondent that he pointed out Fred D., and, this being disputed by counsel for the petitioner, and I being unable to say whether he did or not, Morrill was recalled, when he pointed to Walter F., and said positively he was the man. Butthen he had heard the discussion, and was apprised of the importance of the matter. If, under the circumstances, Walter F. was entitled, as a witness, to full credit, I should say that Morrill, after arresting Cetel and Carrol, and bringing them to the marshal's office, ashe- went out met Walter :F. in the hall, where he had come from polling place 3 to go bail for Carrol, and knowing that he was a Matthews, he mistook him forhia brother, whom he had seen working with Cetel, and arrested hiIIl; and as iUs, I can but say that possibly this may be the true version of the affair. And this shows how necessary it is in the administration of tht>Selaws to select level-headed, intelligent persons of good standing in the nity for the office of supervisor and deputy-marshal, so that when any question arises in the courts or elsewhere as to what took place or what was done at a given polling place, they may be relied on for an intelligent and truthful account of the IDatter. The portions of the Revised Statutes under which the petitioner was appointed and acting as special deputy-marshal when he arrested Walter F. Matthews, are taken from the act of May 31, 1870, (16 St. 140,) entitled" An act to enforce the right of citizens of the United States to vote in the several sUJ,tes of this Union, and for other purposes;" and from the act of February 28, 1871, (16 St. 433,) amendatory thereof. They relate to the election -of representatives in congress, and are passed in pursuance of the power granted to congress in section 4 of article 1 of the constitution of the United States, which reads: "The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but tbecongress may"at any time by law make or alter such regulatioDs except aa to tlJe place of seoators." .
.,
266 legislation, if ther3ever was any reasonable, qqu:btajJout long .since been firmly established by the supreme court. Ex .parte. SieQold, );00 U. S. Ex parte Yarbrough, 110 U. S.651, 4 Sup. Ct.R,ep. 152. .' In th,ese cases.it was held that while the constitution of the United States (article 1, § 2) adopts the Q,l.lll1ification prescribed by the state for a voteI.' f<ilr the popular branch of its own legislature as the qualification for a voter for a representative in congress., yet the right of the latter to vote is based on the constitution, and not on the state law; and congress has a.supervisory power over tpe subject, and in the exercise thereof, to secure legal and fair elections, a free,pure, and sll-fe e:JI:ercise of the right to vote thereat; and to prevent fraud and violence thereabout may (1) either. make altogether new regulations or add to or alter those already by the ,state; (2) impose new duties on the state officers of election, andPJiovide for the appointment of other officers thereof; and (3) compel the observance of state and national laws regulating such electionsby, punisl:lipg any violation thereof. . Allstate regulations, so long as c:l06S: not displace or alter them, are in eflect congressional regulations; but a I.'egulation made by congress is of paramount authority, a.t;l.Q. ma,kes void and of no effect any state law which is repugllant to it. , Secti9,Il of the Eevised Statutes requires the marshal, whenever any wh.ich a representative in congress is to be chosen, upon applicatiqn 1;ly tW() citizens of a town of more than 20,000 inhabitants, to appoint special deputy-marshals, whose duty it shall be to aid and ,assist the Ilupervisors of election in the discharge of their duties. Se()ti9J.'!. requires the marshal and his deputies to "keep the peace," and prQtect the supervisors in the dischr rge of their duties; to preserve order at the polls; to prevent fraudulent voting, and fraudulent conduct on the part of, any officer of election,and immediately to arrest, with or without process, any person who commits or attempts to commit any offense against tpe,United States; "but no person shall be arrested without process for any offense not committed in the presence of the marshal or his gener!1l.orspecial deputies, or either of them, or of the supervisors of election, or either of them." Section 6511. declares, among other things, that if at any election: for in congress any person knowingly votes without having a a lawful right.;to vote, or if any person shall "aid, counsel, procure, or advise" to so vote, he Shall be punished by a fine of not more than $5QO, or by imprisonment not more than three years, or by both, and shall pay the costs of the pr<ilsecution.. ,When is ,an offense "committed in the presence" ofa marshal, within the of section 2022.? In answering this question consideration must be given to the fourth amendment to the constitution: . the people to be secure in their persolls, 'houses, papers, and effectsagainstunreasoull,ble searches and seizures,shaU not be violated; and no warrants shall issue but upon probable cause, supported by oath or aflir-
,Ex·· PARTE MORRiLL.
267
matipn.and patticula.rly describinj{thepiace to be searched; and the persons or things to be seized; .. It has, never;been underStood that this pl'o11ision was intended ,to or a does prevent an arrest by a yeace-officcr-a sheriff or crime committed in his preSence. Whart. Crim. PI. § 8; 1 Bish. Crim. Proc. §181. The knowledge derived by the officer from his observation" acting under the sanction of his offiCial oath, is considered equivalent to information supported by the oath or affirmation of another. Now, a warrant of arrest may issue on "probable cause" supported by oath; and by analogy a peace-officer may arrest on probable cause derived from his own observation. At common law apeace-officer might arrest without· warrant "on reasonable grounds of suspicion j" 'und the facts and circumstances which furnish such grounds of suspicion amount to "probable cause," under the constitution, which is cause as will constitute a defense to an action for false imprisonment or malicious prosecution. Whart. Crim. PI. § 9; 1 Bish. Crim. Proc. 182; &L. Law Diet. "False Imprisonment," "Malicious Prosecution." Probable cause is a probability that the crime has been committed by the ,Person charged. The facts stated upon oath "must induce a reason'able probability that all the acts have been done which constitute the offense charged." CRANCH, C. J., in U. S. v.BoUman, 1 Cranch, C. C. 379; Wheeler V. Nesbitt, 24 How. 551. In other words, a crime is committed in the presence of the officer when the facts and circumstances occurring within his observation,iil connection with what, under the circumstances, may be considered' a,s common knowledge, give him probable cause to believe, or reasonable ground to suspect, that such is the cast'. It is not necessary, therefore, that the officer should be an eye or an ear witness of every fact and circumstance involved in the charge, or necessary to the commission of the crime. _ A special deputy-marshal appointed under said section 2021 is, in my judgment, a peace-officer touching an election for representative ip gress, and in roopectto any crime for which he is authQrized tomakeanarrest by said ooctio02022. He is specially charged by the statute to "keep the peace" and "preserve order" at the polls during such electioQ,s, and to make arrests without process thereat, for crimes committed in: his presence; and in my judgment a crime is so committed when the facts and circumstances within his knowledge and observation give him probable cause to believe that a crime has been committed. , This being the case, there is no doubt, on the facts found, that the titioner had probable cause to believe that Walter F. Matthews had,at the ,time of his arrest, committed the crime of aiding,cvunseling, procuring, and ndvisinga person to vote, who had no legal right to vote. He saw Cetel vote, or offer to vote, at polling place 3, and saw him soon after vote at polling place 4, in which he was confirmed by the judges, in ,presence of the illegal voter. He then heard from the judges"tl.t'pollingplace 3, in the presence of Catel, and without dissent, that bis vote had'just been rejected at that poll on the ground that it appeared' from, his own examination that he was nota qualified ,,"otero He saw Mat-
con-
..---'
" ,
,nDERAL REPORTE!l.
thews, a.confessed party teworker," at this polling place, take Cetel soon after in a party express wagon, and vote him at polling place 4, under circumstances that warranted the belief that he knew, as he ought to have known, that Cetel was not a legal voter. As the world goes, one man may persuade another to cast a vote for or against a particular person or party; but law and good morals require that he should first know or have goqd reason to believe that the person persuuded is a qualified voter. He acts at his peril. The pollution of the ballot box with illegal votes is one of the gravest crimes that can be committed against society. For the most part, money is the means by which this result is accomplished; and if political parties may subsidize unscrupulous "workers" to engage in this nefarious business with impunity, the day will come when we may expect the republic to be put up at auction, and knocked down to the highest bidder. , .To prevent a result, and preserve the purity and integrity of elections for members of the hQuseof representatives, the acts of 1870 and +871 were passed by congress, and, if faithfully enforced, as provided, t,hrough the agency of competent and trustworthy supervisors and marshals, aided by an honest and patriotic public sentiment, much good will be accomplished and evil prevented. ,As was well said by Mr. Justice MILLER, in speaking for the court, in Ex parte Yarbrough, 110 U. S. 666, 4 Sup. Ct. Rep. 152: "It is as essential to the successful working of this government, that the great organisms of its executive and legislative branches should be the free choice of the people, as that the original form of it should be so. * * * In a republican government, like ours, where political powel' is reposed in representatives of the entire body of the people, chosen at short intervals by popular elections, the temptation to control these elections by violence and corruption is a constant source of danger. Such has been the history of all republics, and, though ours has been comparatively free from both these evils in the past,. no lover of his country can shut his eyes to the fear of future dang'et from both sources." It follows from these premises that the crime of assault and battery was not committed by the petitioner on Walter .F, Matthews, as alleged iil the latter's complaint, and stated in the warrant on which the former was arrested; and that the alleged assault and battery was nothing more than the lawful of Matthews by the petitioner on probable cause to believe that a crime had been committed by the former against the United' States,and therefore the petitioner is illegally restrained. of his libElrty, and entitled to be discharged. in: my judgment the respondent is not authorized to restrain the , petitioner of his liberty, even if the latter acted without probable cause in making the arrest of Matthews. The process under which the respondent professes to hold him is not directed to the sheriff or jailer of M:ultnomah COlfilty. Indeed, it is not a commitment at all. The warrant only authorized the officer executing itto bring the petitioner before it for examination, when he would be entitled to be the officer discharged,'neld to bail, or, in default thereof, commitied to prison. The poliCe Young, had no authority to deliver the petitioner to the
BERRY tI. UNITED STATES.
269
keeper of the county jail,nor such keeper to receive or hold him. His detention by the respondent is, therefore, it seems to me, illegal in any view of the matter.
BERRY 'D. UNITED STATES.
(Di8trict Oourt, E. D. Virginia. ELECTIONS AND VOTERS PENSATION.
October 28, 1887 COM-
SUPERVISOR-AT'fENDANCE ON REGISTRATION -
Under Rev. St. U. S. §§ 2016,2017,2026,2031, requiring the attendance of supervisors of election at the registration of voters, and at elections. and pro. viding that the chief supervisor shall furnish instruc'tions to the supervisors, and that each supervisor shall be allowed five doBars for each day he is .on duty, not exceeding ten days, a supervisor who, unCier instructions frQIn the chief supervisor, attends for six days the registration, one day for final reo, vision of registration, and one day at the election, is entitled to the prescribed' cOInpensation for each of the eight days. . . ,
. Petition for for three days' service as supervisor ofeleotion. Lynn G. Tyler and McLain Pleasants, for petitioner.· ,/ C. Gibson, U.S. Dist. Atty., for the United States. HUGHES, J. The facts and the law in this case are equally clear. simple, and conclusive. Thf1 petitioner was a supervisor of elections, appointed by this court, and acting under the commission and seal of the court. Under the instructions of the chief supervisor and the requirements of law, he attended at the times and places fixed for the registration of voters by the state authorities. There were six days of registration, one for final revision of registration, and Qne election day. He attended and performed his duty on each and all of these days. These-are the facts proved, and they are uncontested. The law is as follows: Title 26, § 2012, Rev. St. U. S., provides for the appointment of supervisors by the circuit judge. Section 2014 provides that the circuit judge may delegate all his powers, under this title, to the district judge. Section 2016, prescribing the duties of these officers, says: "The supervisors of election, so appointed, are authorized and required to attend at all times and places fixed for the registration of voters who, being registered, would be e,ntitled to vote for a representative .01' delegate in cOl)gress, and to challenge any person offering to register; to attend at all times and places ",hen the names of registered voters may be marked for chal,langej@d; to cause such names registered, as they may deem proper, to be so marked j to make, when required, the lists, or either of them, provided for :$ection 2026, and verify the same," etc. Section 2017 provides for and requires the attendance of 8U pervisors at all times'and places for holding ..v'otes elections of representatives in congress, remainihg there are cast and counted and the returns made, to personally inspect and scrutinize the manner in which the votillgis the
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