UNITED STATES
'D.
M'BOSJ.EY.
897
UNITED STATEs 11. MCBOSLEY. SAME.". MOORE. 'SAME". PIERcE, (Two Ca,ses.) 'SAME ". Rrl'TJjllt. "'SAME v.S1oprr," ,.SAME"'. STOUT and an, ' , , :' ' : (DiBflrict Court, 1). IndiO,na. -,' .'
);
.
.'
,
.,'
1888.} .. , ;
: 'Anilldictment under ,Rev. St. U. S. § 5511, for illegld voting,odor bribery 'llt, an,election for in co;ngress, voted for; ateame, time and Blf1.fWs !lJ;ld upon tlCl\ets WIth for local or state offlqets, need tl:ot that the ballot cast coiltamed the name of a person voted for for representative in congres8,:nor that the bribe was glvenwith inte,nt to inftuencl! the voter in respect 'to the congressi?nal election. Indictments under Rev. St.U. S. § 5511; ,on Motiop to Quash. ,David Wryie and JaB. G.KcNutt, for the United States. Oharle8 L., Holstein, for defendant. WOODS, J. ' The venue in each case is laid in Orange county, in the Ifecond congressional'district of· 'Indiana, a.nd the· seve'ral charges are section551l of the Federal Revised Statutes; the sec.tidn, So fa.r aarelevant, reading as follows: cCIf,at any delegate in congress, any person knowingly personates ,and yotes, or attempts to vote, in the name of any other perSOD, whether living,del'l.d, orfictitious,or. votes at. a place where he may not: be 'lawfully entitled' to vote,: or votes:witbout having ,8 lawful right to vote, .or does any unlaw(ul act to secureap,opportunity to vote for hilll8elf, person, or byfoJ::ce, threat, intimidation, bribery, reward, ()r ofor any fer unlawfully preven.tsany voter of any state, or of any from freely right Of. suffrage, or by any such meaos mduces any voter to refuse to exercIse suchnght;· * * * he shall be'pun.., i&lled by a fine of not more than i five hundred dollars, or by imprisonment not more than three years, ·or by <both, and shall pay the costs of theprosecutJ.9U.".,
-REv. ST. U. S. § 55i1. ,
AND :NATION,AI. ELECTloNs-INDlCTM EN'l
Tbesubstan'ce of the charge'against 'McBosley is that at the election fO,rreJ?resentative in congress held on the seCond day of h'Ei'Voted unlawfully 'iIi a township and''Iirednct in which he had not'reaided long enough to be entiUedto vote: Moore is'charged with having unlawfrilly"procured and advised .M<lBosley to vote illegally. It is charged aga.inst Pierce that he prevented a voter from voting freely, in one case by paying him five dollars, and in the other case by giving him a quart of whisky, "to.vote a ballot at said precinct at said election aforesaid,then and there containing the names of certain candidates for certain officesthe'rein named, among which was the name of said Pierce, as a candidate for the office of sheriff of said 'county, the description of said ballot, and the names thereon, except the llame of Pierce as aforesaid) beingunkMwn'to the grand jury." 'Ritter is charged with counseling lind assisting Pierce tobrihea Witness with money,as charged in the first indictment against Pierce. John Stout is. charged with bribing a v.29F.no.17-57
FEDERAl, REPORTER.
voter named Edmund Hammond, by paying him five dollars to cast I) ballot containing thena!Ue of as acanpidatefor auditor of ,county, ,.the. .uninformed; i;n .J,'espect to other names upon the ballot. It is charged that HOlliday and Amos Stout counseled and assisted John Stout to bribe Hammond. to eacih o(these indictments that it does not The objection IS sPow, that the unlawfulortainted ballot contained the name of any candidate or person voted for for repre'sentative in congress, nor that the' voter. by reason ofthe bribe, voted, or refl'ained.from'¥oUng, or voted tllan without the, bribe he would have respect to that office.· This is. predicated'llpon, but in niy jndgment supported by,the proposition, if it beoonceded, that the power of congress, under the fourth clause of the fi,rst'l1rlicle of the federal constitution', to make regulations and to declare offenses in respect to eleclions at which represerita.tivesin congress are voted for j 'is limited to such matters, acts, and conduct as do or may' affect, or are 'designed to affect;,the election of such representative, and does not extend to matters ol'condu.ct having exclusive reference to the choice of local or state officers. ,. When congresSional· and local elections are held at., the same times and places, and mixed ballots as is the practiqe)n Indiana, it isa, misleading . ·rennement; I think, to,say that there are.· two national and a state-held at t1:le aRmeA,ime. It iaone e1ection, for the' conduct of \'V.hich the .two .have a cPmm.on ,concern, .though interestedina!lv:eral results, (Ex U. S, 3n;) and I<ongress having unquestionably the paramount and, whe,n it to assert it,' the exclueivepower to regulate such elections, mustjiil.the first instance at least, deterniIne for itself what regulations are necesSll.ry or expedient; and it isnot,tqe province of ,to. enactment pn tbe,8u9Ject, on the ,ground ,that It IS notwiililUthe powers of congress, it be demonstrablethilt in no event, and under no ciroffense defined, and coming withinth,e .letter and spirit oftheenactItient, couldaffecNhe election for representative in congress. The offenses of voting illegally, and of bribery at ejections, as denounced in ,seo.tion 5511, consist in of thi!1ge, which are forbidden without reference to the of.. offetl,de;r.; and by section 5514 it is expresalyprovided that, if the offense have reference to lot cast in .a' state where the names. for congress and of canupon, the same tick;etot didates for'local offices are or may bl:! ballot,the'proof in respect to the bal,lot will be primajacie sufficient to convict, if it be abown that the ballot :was one on which. the. name of th,e candidate for cl)ngress might have been put. , It may readily be shown that illegal: ballots in theJ>oxes,even thqugh they contain the ,name of no one .voted for for represen4ttiv6, in cOllgrassl especially where', as in this state, ·t1)lere,is, and under tbeeonstitution, Qan be, llo.certajn, means of knQW;ipgJ>ywhom a pa,llot WijS cast, mightiWi-onsly complicate:,iaild affOrd the IlleanE\,and. opportunity election which otherwise for contestingjo tb-e result of a. would he, undjjlputed· . QU.lyor way not charge
.voter cast a" ballot with the: a.. ca,ndidltte fdrcongress hpon' ,it; case ()f a contested election, it would be open1t() question arid dis·pute whether that ballot was cast by' one person: or. another. . 'In respect to the 'charges of bribery, in addition' to the consideration!! 'already. advanced, it must be evident, on general principles, that gress 'has' the right to forbid thepl'esence at anyfede1"al election of all forms of force, threats, intimidatI(jn, or bribery used to prevent any qualified voter from freely exercising the right of suffrage; and where congressional elections, and ,elections for state and local officers, are held at the same time and places, and especially where the names of candidates for congress and candidates for local offices are put upon the same ticket, it is manifest that regulations and restrictions which permitted inquiry whether the offender insl1ch respects intended to intimidate or influence. the conduct .of voters in respect to one office or candidate 01' another, would be inefficient, because easily eVltded. Once concede that the indictment for bribery ofa. voter, in order to be good under the federal statute, timst charge an intent to affect the congressional eIection, and the gpeedy result will be,' not less bribery in respect to that election; but more likely a increase, contrived and conducted in such way 8$W proof of the real purpose, by of different purposes. ' It said, however, that this is only a question of proof, and that, if the government cannot prove its case, it ought not to have it. But the point is that the law need not be-the constitution does not require it to be-so framed as to demand difficult or impossible proofs of theofi'ense.· Indeed, the· definition of bribery, as contained in this statute, shows an evident design to escape such difficulties. The offense does in inducing the voter, by a bribe, to vote a particular ticket, or to vote for' or refrain from voting for or against a particular person or candidate; but, like force, threats, and intimidation, bribery is treated as preventing the voter from exercising freely nis right of sufnage,and in this view it is evidently immaterial whether the bribe was paid for one particular purpose or another; because, on the theory of law, as well lIS of reason and experience, the voter who has accepted a bribe for one purpose is unfitted for, and is likely to be thereby diverted from, the right exercise of the eIective franchise for every purpose. In my judgment, therefore, it was not necessary that the indictment for illegal voting should have charged that the ballot cast contained the name of any person voted for for representative. in congress; nor was it necessary that in the bribery cases it should be charged that a candidate for congress was voted for, or not voted for, nor that the bribe was given with intent to influence the voter's action in respect tocongresswan; if. I am right in this, it follows that the indictment is not made bad by reason of the averments in respect to one name which the ballots are shown to have contained. Except as descriptive of the ballot, these a.YElrment.{i would seem to be immaterial, even Conceding that they warrant an inference that the alleged bribe was given for the vote for the perSGll named.
900
FEDERA,L, REPORTER.
'What force the provisionp( 5514 as rule qfevidenceat th,e trial have in the way of ind,icatiJ?g that the governQleI;lt.'s prima Jaci;e case may be met by countervlliling evidence, and what ;sh9Uld be deemed competent evidence in that, direction, are questions, p.pt now up. The indictments,I ll-l1d, if a.nyof the matters against thepl are llvailableto the defendants,.itmust pe byway of defense, which they must bring forward. Motions Qve;rruled.
Ex jiarlePERKINS. 1 ,' . ;;,,:.,
((Jt'rcuit (Jourt, .
n. Indiana.
March, lSS7l )
fact that a, repJillselttaA)ive in congress is voted for at an election of state Iloud officers does not aut40rize c\lngress tq regulate such election in' mlitters which in nowise relate to or affect the result so far as con'cerns the United States. ' 9. ELECTJONS.,..UNJTED STATES STATtTTEREGULATING---REv.ST. U. S. §§ 5511.
'to
CONSTJTUTJOll'AL LAW-AuTHOIU'T.YOF :CONGRESS TO REGt7LATEELECTIONS.
Rev. St. U. S. §§ 551l-1:i515. making it an offense against the United States, among other 'things. for any officar, ,state or national; of an election 'at which a rep,re,senta,t"iV,e or delegate to con",g"ress is voted for. to" ViOlate, any ,dUiY in regard ,to .lluchelection imposed;on him OY ,state or federal law, does not brace a;ny act which bas exclusive reference to the ejection of state or county officers, and the by officers of such an election,'Of the statement upon the of the vote for, certain local officers,it! pursuance of a conspiracy, is not an offense agaJnst the United States.
OF VOTE FOR STATl;!: OFFICER.
8.
,rested and before him upon an affidavit alleging facts which are claimed to constitute an offense agaipst the United States, but which in faqt do not; it being adinitted thattliere are no other facts in'the case than those contained in the affidavit.' ",'" , 4. SAME-POWER TO PUNISH FOR
A United States commissioner has 110' jurisdiction to exanllne a person ar:
'
The, provi'sion of Rev. St. U. S.' 1014, that offenders, against the Uniteq States may be arrested,iniprisoullq,or bailed by certain 9JP.ceranamed, in: cluding'Uhited States commissioners, "agreeably.to tlie usual mode of process against offenders" in the not confer upon commissioners the power to, punish for. contempt posllessed by stateollicers, and they have no powerto piInish ,for contempt.
ST. U. S.§ 1014.
..
IS. 'HABEASCOltPUS-CONTEMPT. ' If a court, ina case in which it has n'o jurisdiction over the parties or subject'matter. sentences a personf9r contempt, such persoll be released by any court having authority to of habeas CQrpu8. "
Appeal fromDistrict Court. UpOll habeas CCYJ;PU8, Petitioner, was committed ' by a .United States commissioner for contempt in refusing to be sworn as a witness, in an examination, before the commissioner, of certain persons charged with Violation of the United States election laws. The affidavit upon which the examination was based was follows: "Before me, William 1\.. VanBuren, a United States commissioner, appointed by the 'circuit court of the United States for the district of Indiana; JReversing decision of district court, appended hereto.
.EX PABTEPERKINS.
901
in-the Seventh circuit, to take acknowledgments of baU; etc'.. according to the of congress in that. behalf provided, personally appeared this day 'rheo(lore ,A. Wagner, who, being ftrstduly sworn, deposes and says that he bas g()odreason to believe, and does verily believe, that on the ,second day of November, in the year of 1886, at the district afores'aid, an election beingth'etiand there holdim for the choosing of a representative 'inthe eon. gress of the United States from -the Seventh congressi'onal district of the state of Indiana, said election being holden on the same day and year lastafQresaid, certain persons, to-wit, William F. A. Bernhamer"Shneon Coy, UeJlIT D. Spaan, anqJohn. Counselman, and others to this affiant unknown, did conspire together, and with each ,other, to commit an offense against tlle United States; that is to say, the'said persons, to-wit, William F. A. Bernhamer anilJohn Counselman, being then and there officers of said election ,aforesmd,andmembers of the board to canvass the returns thereof, that is to say, Qeingtbenand there inspectors, and said William F. A. Bernhamer, beingtheduly-electedchairrnan of said canvassing board, respectively, and voters present at the said Simeon (Joy and Henry:p. Spaan, being said election and said canvass of the returns thereof, at said election duly appoillted'lind sworn to discharge his and their such officer and officers. at jsaid election for the Second precinct of the Fotltth ward oithe city of Indianapolis, in the county of Marion, in the state of Indiana, and district aforesaid,dili then and there unlawfully, fraudulently, knowingly, and .feloniously do acertai ll act in pursuance of said conspiritCy, to effect the object thereof, which object was then and there to falsely, unlaWfully, and fel<;miously change the tallies, tally-sheets, aud thl,l returns thereon, of and at said the precincts hereinafter named, so as to show, by false, fraudulent, forged, and substituted returns of said tallies and upon said taUy-sheets, that one'Frank A. Morrison was then and there chosen and elected at said election to the OIlice of coroner of the said county of Marion, whereas in truth and in he was not so chosen and elected; and also to show, by said false, fraudulent, forged, and substituted returns, that one Albert F. Ayres was then and there chosen and elected to the office of jUdge of the criminalcourl of said county of Marion, whereas in truth and iIi. fact the said Ayres was not so chosent1nd elected; and otherwise tochange, alter, 'and forge saidtalljsheets and said returns thereon at said election aforesaid." Here follows a detailed statement of the erasures and alterations made in a number of tally-papers and poll-books, but all in reference to the offices of cnminaljudge and coroner. , Twrpie, Dist. Atty., Ritt&r & Ritter and HatriJJon, Miller & Elam, for the United States. ' .' Bak&r, R&d & lIendric1c8, HarrviJJ & Oalkinli, and Duncan, Smith & Wit1IO'Ii, for petitioner. GRESHAM, J. The statutes of Indiana provide that when the votes at any election arecol1nted, the board of judges shall make out a certificate stating in words the number each person has received for any office; and such certificate, with one of the lists of voters and one of the tally-papers, shall be deposited with the inspector, or one of the judges selected by the board.. Section 4712. Before this certificate is made out, the ballots, with one of the of voters and one of the tally-papers, are, in presence of the jl1ages .and, clerks, placed by the inspector in a paper envelope or bag, which is closed, sealed,and delivered by him to .the county clerk as soon as possible, on or before the Thursday next
,902
, FEDlmA'L
supceeding 'Section' 4713. 'The inspectors'of each townshipo'r'precinct, or the judges to whOm the certificates,poll;books, and ,tallylpapers are delivered, . a hoard of duty it is ,to and tAeJ;Q.;,'aud 'to l1,ssemble at the court-house, the election, fortliat purpose. Secon the 'thuJ.:l3day next The board of (lanvassers is required to compare and examine ,the papers intrusted· to it; and to aggregate· and tabulate from courity.,A 13tatement thereof is drawli up by the uit .co.urt }he, v.0. tes for each 'pe ... . ea.ch tOWJ:lIlfldpfficlUct, and.tPe qf such votes, which IS sIgned by the board, and deJivered to the clerk, with the certifi"eates;'pdU.books, and tally-papers so used by it. Section 4717. The :boltrdde&lares and certifies the highest number of votes given for each 'office, (section 4718,) and 10 days after its return is made the clerk isof election to, persons entitled thereto, on their demand, sues commissioned by the governor. In such cases, except where they ,·the clerk, within 10 ,days after the receipt by him. of the return of the board, forwards a statement of the ,votes and the persons who have been declared elected, by .mail, to the. secretary of state.' Section 4721. The secretary oistate. immediately compares and estimates the votes given for representatives in congress, and certifies to the governor the persons having the highest number of votes as duly elected, and the governor issues to each of them a certificate of his election." Section 4728. On the seventh day of December, an affidavit was made and filed by Wagner before William A. Van Buren, one of the commissioners of this court, charging William F. A. Bernhamer and John H. Counselman, who were officers of au election which ,,:as held on November 2, 1886, for the pu,rpose of choosiI1-g state and county officers and a representative in congress from the Seventh congressional district of Indiana, with having conspired with Simeon Coy and Henry D. Spaan to commit an offense against the United States by changing the tally-papers that were prep'ared at several precincts,and designed for the use of the board of canvassers, so as to show and have it declared that Frank A. Morrison was elected coroner, and Albert. F. Ayers .was elected criminal judge, of Marion county, when they were not so elected; and that, in further.ance of conspiracy, they did so change such tally-papers.. The defendants were arrested, and brought before the commissioner for examination, and in the course thereof Samuel E. Perkins was subprenaed, and. called as& witness for the government, and declined to be swdrn or testify I claiming that the commissioner had no jurisdiction of the offense charged in the affidavit.: He was thereupon committed to the jail of Marion county for the term 'of three months by the commissioner as for & contempt of court. Perkins applied for release upon a writ of habeas txYrpUB, which was denied by the district court, and his application is now before this court on appeaL The provisions. of the federal statutes which are cited as applicable to the offenses charged in the affidavit are sections 5511, 5512, 5514, and 5515·. So much of section 5511 !\S need be referred to provides that if
EX l'ARTE PERKINS.,
903
at any election for representative in congress, any person knowingly personates and votes, or attempts to vote, in the narne of another, or votes more than once at the same election, for any candidate for the same office, or by threat, intimidation, bribery, reward, Or offer thereof, unlawfnlly interferes in any manner with any officer of such election in the discharge of his duties, or by any such means, or any other unlawful means,' induces any officer of an election, or officer whose duty it is to ascertain,announce, or declare the result of any such election, or give or make any certificate or evidence in relation thereto, to violate or refuse to comply with his duty, or knowingly aids, counsels, or advises any such voter or officer to do any act thereby made a crime, or omits to do any duty the omission of which is thereby made a ,crime, shall be punished as'therein specified. of section 5512 relates to fraud in registration of v6tersa1l elections for representatives in congress, andc.oncludes by declaring tl1itt 'if any such officer or other person whn has any duty to perform in relation to such registration or election, in ascertaining; announcing:, or declaring the result thereof, or in giving or making any oortificate;orevidence in relation thereto, knowingly,neglectsorrefuses to perform any duty required by law, or violates any duty imposed by law, or does any actunauthorized by law, relating to or affecting such registrationor election, or the result thereof, or any certificate or evidence in relation thereto, or if any person aids, counsels, procures, or advises any such voter; :person, or officer to do any act hereby made a crime, every such person shall be punishable as in the last section. Section 5514 declares that whenever the laws of any state or territory require that the name of a candidate or person to be. voted for as representativeor delegate in congress shall be printed, written, or-contained on any ticket or ballot with the names of other candidates or persons to be voted for at the same election, as state, territorial, municipal, or local officers, it shall be deemed prima facie evidence to convict any person charged with voting, or offering 'to vote, unlawfully, under the provisions of this chapter,' to prove that the person so charged cast or offered to cast such a ticket orbnllot whereon the name of such representative or delegate might by law be printed, written, or contained, or that the person so charged committed any of the offenses denounced in this chapter with reference to such ticket or ballot. Section 5515, which is chiefly relied upon as authorizing the examination before the commissioner. is as follows: "Everyofficllr of an election 'at which any representative or delegate in congress is voted for, whether such officer of election be' appointed or created by Or 'underauy 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 ,reqnired of him 1>,y any law of the Uni1;ed States, of any stllte or territory thereof, or who, vio1a,tes any duty so imposed, or who knowingly does any act. thereby unauthorized, or who makes anyJalse certificate ,of theresult of such election in regard tOllueh representative or delegate; or who withholds, conceals,otdestroys any certificate or record so reqUired by of
904
FEDE!U.#REPORTER.
Sl\cl;l l'Elpresent!iti¥e or delegate, oqvho neglectsor refuses and, resuch certi.ficates, as, or who aids, counsels, procures, or advi.ses any "oter, person, or offi,cel' to do any act by this or any of the preceding sections made a crime, or'lt6 ott,iit to do any duty the omission of which is' by this or any of such sections tJiade a crime, or attempts to do so, shall be punished aaprescribed in section 5511." , 'Ii
Section 4; art. l,of thecqnst.itution of the UnitedStatos provides "that thetime,place, and manner ,of· holdipg ,elections fur sentatives.shall be prescribed in each state by the thereof, but coagressmay, at any time,!by law, make or alter suqb" regulations, except as to the :place of choosing sellators." The constitution confers upon congress ample power to legislate for the protection andp'llrity of elections for representatives in congress, whether such elections beJor representativesaIone; or in conjunction with the selection of state and countyofficers. ,It lis to be steadily horne in mind that the purpose of all such legislatioIY:is the securing of an hQnes,tresult so far as the .election of members' [o£:congress is concernf}(i;, Congress may enact statutes containing spiloifioregulationsto accomplish this end, or it may adopt the laws ofthe'Btatellso far as to congressional representativef/, and thus and .toothat ex,tent make th:e state election officers fe4eral officers, but it camg'l)lIio ,further. It does not follow because congress can legislate for the) protection and purity ofelections for representatives in congress, that,it'may assume full control of all electiollS at which such repre.The sentative8iueehosen in conjunction with state and county mere fact that a representative in. congress is voted for at an election of state and county officers, does not authorize congres.sto regulate such election in mattets which in nowise relate toOl' affect, the rest,l.lt so farfj,S it concemsthe United States. It has no more right to regulate the election of state and, OOl.luty officers under .those circumstances, than it would have if nOl,'epresentative incongreas were voted for; and it has not attempted,todo so. ·Thejurisdiction of the federal courts in the enforyement of these statutes depends altogether upon something having been done or omitted which hasafl'ected or mightaffecti the result of an election fora sentative in' congress. The facts..stated in the affidavit, in connection with the admissions of counsel in the course of the argument, show that the result of the election was not affected, unless it was by the mutilation of. the solely and exclusively in the statements of the vote for coroner and criminal judge. It is not pretended that the tally-papers .changed, or forged in any other respect, or that any of were the tally-papers, poll-books, or ballots were removed from their proper place of custody. The alleged offellse against the United States consists wholly in the alteration of the statements of the votes for coroner and criminal as contained in the tally-papers.. ' It is -by counsel for the' government that the jurisdiction· of the federal courts is com,plete if anything is done or omitted which amounts to offense against thestatejthat it is sufficient to give jurisdiction that a representative in congress was voted for at the election
an
EX PAR.TE PERKINS.
90.5
where it is done or omitted j and that it is not necessary to show that the act done or omitted had any influence whatever on the election of a representative in congress,or the result thereof. It is not claimed that· congress has authority to interfere with a state election at which no representative in congress is'voted for; and yet it is said the mere fact that such representative is voted for at an election of state and county officers makes all offenses against the state, in connection with such election, offenses against the United States, although the acts constituting theofi'ense have in nowise influenced the result of the election. of such representative, and could have no influence on it. If this view be correct, and one personates another in voting for coroner only, atariy election where a representative in congress is voted for, his doing sobe·· comes atiJdtTense against the United States which is punishable in its (jO'urts.Nay, more, if the federal government has· jurisdiction in such cases, ita jurisdiction is'paramount and exclusiVe, ifcongress'sees fit to assert it ;'ltnd it may therefore· assume the exclusive control of the election of state and county 'officers where they are held at the same time and with the election of a representative in congress, and qust thestaooc.ourts of tbeir· jurisdiction. It was said on the argurnent that the only way fot the$tates to avoid such a condition ofthingsis to hold its etections at a separate time and place. .. It'was bron.dlystatedthlit every act of fraud and corruption in any such election must necessarily have some influence on the election of a representative in congress,although the precise influence which the.alteration' of this vote for coroner and criminal judge has actually had upon the election Of such representative in this case waS not indicated. But it was asserted to be the object of the federal legislation to banish all demoralizing influences, actual or potential, from elections where representatives in congress are voted for. This reasoning would apply as well to those elooti011s where separate ballots and ballot-boxes, tally-papers alid poll-books are provided for the state and federal offices that are voted for, and to· the fraUdulent conduct of the officers of elections and voters with reference to either. The effect of such fraud and corruption is too remote to affect the election of a representative in congress within the meaning of the statute. In'discussing and construing the sectioris now under consideration, the supreme court ofthe Uliited l:5tates in Ex parte Siebold, 100 U. S. 3'71, say: . . "In what we have said it must be remembered that weare dealing onlyw.ltp the snbject of elections of Jepresentatives to congress. If, for its own .. "enience, a state sees fit to .elect state and county offiCers at the sametiilie, and with the election of will not'be of the right to. make regula.tionsinreferellce to the latter. We douot mean to say, however, that for any Retsof the officers.of election, .having exc,lllsive reference to the election of .stateor county officers, they will ge to federal nordo ;under.standthat the of.C,0IlW:19SSJ¥)W underCon!llderation llave any to such Under.ith$ construction given the statutes by:couni;lelfor the government, 'itiis plain· that at such an election there could be no "a(jts of the
906 officers Q( having exclusive reference to the election of state or county,officers," and the. exemptiQp of them from any amenability to the forsuphaots,jn the language just quoted, would have nomea,ning. lfeveryl,Wtin violation of the state laws is equally a violation of the federal laws,it would be impossible to commit any illegal act "having exclusive refereMe to the election of state and county officers," which is not "amenable to federal jurisdiction." U. S. v. Reese, 92 V. S.215; U. S. v. Campbell, 16 Fed. Rep. 233; U. S. v. Munford, ld. 223; .,f!. S. v. Wright, Brown v. Munford, ld, 175; U. S. v. Cahill,.9 Ft:ld. Rep. 80; U. S. v. Seaman, 23 Fed. Rep., 882; U. S. v. Woods, 215. An of sectio.n 5514 sllOWS that the position of coqnsel for the untena.ble. l.tprovides that whenevelJ, under the laws of any,iSU\W, the name of a clludidate for representative in congress might be prin1i!adon the, same ticket or ballot with the names ofstate and county officers,·" ;'shall be deemed sufficient prima facie ,evidence to convict any voting,or offering to vote, uWll.wfully, under the this chapter,.to prove Ithat the persoI;lS so charged. cast, or offered j;I} .q.llt, ..such ticket, or ,hall()t,» or to prove that II the person so charged .any of the denounced in this chapter with reference to such ticket od)aIlot." . Npw, if the w()rds "so charged," in the last back to; the offense of '\[Otingonly, it would have nO ·me.au.i,ng.whatever, nod is mere surplusage. In order to give any etreQt: .that clause it must be;read as if the word "so " were omitted from it.: liead, the.inmntiQn of congress to make the. section rule of e.vidence Ito alloffensesbeco.m;es, mQre apparent. As th'-lijl:iQJI'll1p.1letj8d, it mell.l,'l$ that it is ()nly prima: facie. evidence of any offense that the act charged was committed to such ticketQr ballot, which, may be rebutted by proof thatih!3ilctwas not committed with reference to the election of a ;representativ'i:l in®ngre,ss. This c(}nstruction is sqpported, if not justified,by the,language of section 21 of the act of 1870, (16 St. at Large, 145,) frO,mwhich section 5514 wascoridensed by .the revisers.· Section 21: reads:.,' .. And be it further enacted, that whenever, by the laws of any state or ritory, the na.me otany candidattl'or person to be voted tor as representative .to be printec:l. written, or contained in any tIcket or ballot WIth other candIdates or persons to be voted for at the same for state, territorial, municipal, or local. officers, it shall be sufA,cient ptima,.'t./icJ"f·',e,v,',idence,:elthed.or, th,eyurpos,e, ot','iIidicti.,ng or convict,tu g , any person clial'gtld WIth votIng, or attemptmg or offenng to vote. unlawfully. under the provisfons' tlf the' preceding sections, or fol' committing either of the offenses:thereby:'created, to prove that the person so charged or indicted, 'Voted, or attem,ptEldor to vote; such ballot or, ticlret, or committed either of tile named. hl,tbe preceding sections of thiS act with reference toslleh 'And the proof and establishment of ,such facts shall be takell,. held;st)d',ttej!l'iied to be evidence that Such l'ersons voted. or attempted or offered to vote, for sl1cll representative or delegate, as the case SUch: pffense was committed with reference to the election of may·be, Or! such or delegate, and shitll be sufficient to wal'rantllis ;
EX P.A RTI!: PERKINS.,
907
tiOll, unleilBtt'shaU be shown thahuch ballot, wheliYbast,or attempted or offered to be cast, by him, dld'1lot contain the candidate for the office or. delegate in the. congr6lls, .91 the ,United. States. or that· such offense was not comtllitted 'With referen'ce to the election of such Or delegate. .. U. S. v. Bowen, 100 U. S; 508.
n remains to be considered whether the acts charged in the affidavit might naturally and reasonably, and within the meaning of the statute, affect the election of a representative in congress; and it is said that they might do so'by destroying or impairing the value of the tally-papers as evidence before the board of canvassers, or in anycontetlt of the election of such, It is claimed that on account of erasures and changes apparent on the tally-paper in the vote for coroner and criminal judge, it might be wholly or accepted only upon evidenceiali'Unde that, the vote for representative in congress, in which there are no erasures<or changes, was correctly stated, and that the person elected as such representative might thereby lose, or be put to great trouble and expenlJe in proving, his election. The legal presumption as to such erasures and, changes is that they were made before the paper was ;signed, ap,d theprestllnption is not to be overthrown by mel'esuspicion. But, if there ia,reason to believe that the erasures afidehanges in. the smtementa of the vote for coroner and criminal judge were fraudulently made, it is not a snilicient reason for declining to accept the statements of, the votes fQJ.'otherofficers in which there are no erasures or changes. Little 10 Wall. 28; Greenl. Ev. § 566; Lewi8 v:.iOommti88'iQner8; etc,., MarahaJ1, 00., 16 Kan. 102; Cochran v. Nebeker, 48 Ind. 459. A statement of the votes cast for' each forever» office, and, although .it is one in, fol'ID, it is several in its essence and character., The choice of a majori,tyof the voters in a. count-yor district or state,aB to other office,S, al:>out which there.is no reasona,blequestion or doubt, oughtnot tqb,erev:ersed 'by, the rejection of the whole tally-paper, and the vote thereby, or held in abeyatlQe, beCllouse there is some question or ,doubt as to the vote for coroner or criminal judge. It would be umeasonable to presume, if the election of governor hinged upon the vote of any of the precincts named in' the affidavit, that any honest or intelligentmari,or body of men, would reject its vote, and give the office to the candidate of the minority of the "\iotets of the smte, on account of these erasures and changes, and it would be impossible to justify such an act. It was to ,l>reventsuch acts, of ignorance or perversity that the legislature of Indiana inserted the folldwingsections in the statute governing elections: "8ec.4720. No tally-paper, poll-book. or certificate returl1ed from any alec- ' tion 'by the board of judges thereof, shall be rejected 10r want of f(jrm, nor for lack of strictly in accordance with the directions herein contained. if the same can, Po satisfactorily understood; and such board ofcllllvassers shall in no case reject the returns from any precinct if the same. be certified by the board of election of that precinct. .reqll,ired bY la\V, and presented. to. them by tbe inspector or one of.thejUdges of said board:" . '.. . ' "Sec: 4722. be withbeld ,by tbe governor 'on aCCollnt of any'defect or informality:in the return of aliy election to the office of the
908
FJj)DQM ,R,EPORTER.
secretary of the state, if it Wth reasonable certainty, be ascertained from suchretuI'l:l.Swhat o6ica is intended:, and who is entitled to such commission. of the refer¢nce toth e election of state arid county offioers,"and for such acts they are ,and cannot be made "amenable to federal jurisdiction, "because others might improperly or wrongfully make them a pretext for refusing to count the vote for representative iricongress. The 'specific facts stated in the affidavit, which were admitted on the argument to be all the facts in the case, do 110t offense against the United States, and the commissioner was therefore without to conduct the examinati<im, and Perkins' was guilty of no contempt in refusing to be sworn' and testify as a witness. ' . ' An order! or jupgment ofia; court, acting within its jurisdiction, punishing a paJity,orother person.forcol1tempt of its authority, cannot be but if a court,having no jurisreviewed 'oNmmilled by dictiari over the parties or thesubjeet-matter before it,sentences a party, a witness O'l' any other perspnto imiprisonment for contempt of its autoority; the person thus illegally deprived of his liberty mny 'be 'released by any court authorized "to issue writs of habeas COrpU8. . Ex parte Fisk, 1l3.U.S. 7>13,6 Srip.. Ot; RElp: i724;ln reMorton, 10' Mich, '208; In re Hdll, Id.210; Tex:. 668; People ,,;;. Cassels, 5 Hill,,164; RutJurtJord :Y. Hol'1tte8, 5"Hun, 317; Ex parte Burjdrd, 30ranch, 448; Ex parte Bollman, 4Cranch,:175; In re Buell, 3 Dill.H6; In re Henrich, 5 Blatchf. 414; In re'StWpji, ,12, Blatchf. 501; Inre MacDonnell, 11 Blatchf. 170.' . ,. 'But, even if the facts charged'gava the commissioner jurisdiction to proceed with the'e1'liminatiotl, the qUestion whether he was authorized to sentence PeJ!k:ins toimprisonment:jn the county jail forth.eperiodof three'months remains to b,e considered. Section 627 of the Revised S1atntes 'of tihe United, States', which· provides for the appointment of commissioners, is as .follows: -·"Each circuit cOllrt may appointfin different parts of thedistI'ict for which it is held, so discreet persons as it may deem necessary,' who shall be called' commissioMrs of tl;1e; Qircqit courts,' and shall exercise the powers which are or maybe expr.essly by law upon commissioners of cir-' cuit courts. " '. :'rJIe power for contempt is nowhere expressly, conferred on comIhissiQnl;lrs. It is claimed, by counsel for the .government, that the in seqtion 1011:, that offenders against the United States may be arrested, imprison.aq,. or bailed by the offlgers therein "agreeably to tge usual mode named, (among whom are of process against offenders" in,thq state where they are found, confers on 'these officers all the powers 'of;ajustice of the peace, sitting as an examining magistrate under the 'lAWS of Indiana, among which is the power to punish for contempt. ,Article 35 of the Statutes of Indiana, denning contempts of cotrrt,. 'liu'thorizing a maxilllUIhfine of $500 and a maximum imprisonmentof;tl:]ree months, is pited as applicable to justices of. the peace in such c,ases.. :aut its provisions for a statement , iI' ·
9Q9
I>y' the" judge" 'of the acts
01' 'Words constituting 'the; :contempt, for exceptions:M1dbills of-exceptions, as in other 'Criminal actions, and direct appeals'to the supreme. court"show that article 35 does not apply to justices of the peace, and I do not understand that counsel now seriously insist that it does. MeDon. Treatise, (Ed; 1871,) 10.6;375; ld. (Schrader's Ed.) 388, 390; Greim v. A1cer, 11 Ind. ,223; Garrigus v. State, 93 Ilid. 239; Cammi88icmera Vanderburgh Co., 49 Ind. 457. 'Under section 1477 of the Statutes of Indiana, justices of the peace tmdoubtedlybave power to enforce the attendance of witnesses, and to proceedings before them, . by fine not exceedpreserve tltder,' in ing iniprisomnent not exceeding three hours; hutfurthetconsideration ofthEdr powers is unnecessary, b6Gausewelook to the statutes of Indiana6nlyto' ascertain the mode in which powers that are expressly cdnfurl'(!don commissioners by the federalsiatutes sha,l1be exercised. Section 1014 of the federal statutes expressly confers on commissioners the power, 'to arrest, imprison, or bail offenders agaiti-st the'United Sta:t1es, and it also prescribes the manner in which this power' shall be whicb:'is,»;agreeably tQ the usual mode of proceS!! against offenders" in the; states: It isnGt eS$entialto the due exercise of thiS power thakJ com;, missioners to punish for contempt; for they call refar the! eontq.rp.acy of witnesses to the court, as they do in'takitigJdepositions, and as masters in chancery and registers in bankl'l1ptcy are requjred; w'do;' It is just as important to have the answers of witneSses in criminal ,proceedillgs,and there ts no reason why the power to enforce such· answers should bedeIiied: to officers having charge of the one, and conceded to those having charge of the other. It was the intention of congres'3 -to assimilate the proceedings before commissioners and other officers mentioned in section 1014, for holding aoPersons to answer before the courts, of the United States, tdthe proceedings for similar purposes in the states where such had. U. S. v. Rundlett, 2 Curt. 41. But it is a stretch of language to say that the punishment, of a, witness for contempt by a commission,er "usual mode of processl;1gainst offenders,"'or is a essential 'e;xercise Qf any power that is expressly conferredoll hitn. Much of the fallacy in the reasoning on. this jeetisJounq.ed on tbe, assumption that a commissioner holds II; court. The assumption is unsound and misleading. In U. S. v. Case, 8 Blatchf. 250, WOODRUFF, J., said: II TM commissioner bolds no court. He' actEl as an arresting, examining, and committing magistrate." He is asap "examining and committing magi,strate", by Mr., FIlS)',D, in fl. S. v. Schuman;.2 .Abb. U. S. Pro 523, and in other cases cited by the government. It, was held by Justice STORY (U. S. V. OZark, in 1 Gall. 497) that a district judge sitting as an examining andcoffi' mitting magistrate. under section 33 of the judiciary act of 1789, which been carried forward hltO the Revised Statutes as section 1014,' co*rti, and an .indictment for perjury foundeq. UPQl;l;,a. the offense to have been committed in a "comrt of the United States" it charged the act of perjury to have
e:lCaU'linlltionbefore a district: .judge ,under tbat sectionL: ,In delivering ;Justice STORY· characterized the argUIllElJ;tt ,that: a judge,under these' circumstances, waa,a :court, as "utterly insupportable. ' f ' , : ' . It isnottnecessary to decidewbetbera justice of the supreme coudco( the United States, or a circuit or diatrict judge, sitting as an examini,ng magistrate, may punish acontutnacious witnesS or ,other person guilty of ·before him. It is sufficient in this case to hold that commiasionersexercise such powers as are expressly conferred on them by congres,s,i.a.nd that neitheraecti6n 1014, nor any other. federal statute, authol'izes.. thell1'to punishfor';c<mtempt. If, under sectionl014j the ComUli$ldoners have power topuni.sh for contempt as an incident to their examining magistrates,it follows that officers of this feri01'gmdeinay exercise the power without restriction, although congress hss,deemed it necessary,;in.section 725, tOirestrict the supreme <loud United States and:the: circuit and district courts in the exerQise j>f,thesa.me power. , 'It.bti$iWeen thepracticethronghout the country for commissioners to refer to ·the:.circuit: courts, whose, officers they are,: parties, witnesses., and othersgttilty of contumacious.conauct before them. for punishment, and tbeMtion.0fCQmmissionerVan Buren is certainly unsupported by any precedeqt:in tbiscircuit... ' The judgment of the district courtden,yingthe ,application of the petiti,oner to 'be discharged, and remanding him to the county jail,: must 1>& ,the- petitioner.diseharged from custody·. I
",e : t I
, .1 I .,
i
The opinion :ren.dered in the district court in the preceding case is as' fonows:L, ",,:.:,' 'i , I,
for ctirlteiIJ'pt i.prefusiDg to be swor# '/& witness pending before upon an affiliavit charging, or jmq,brthlg to charge; certain' persons named, and who bftd'been arrested and brought before the commissionl"l>"witha violation, in pursuance of a crimihalconspira.cy, of the: federaJi criD].inal .statutes in re,spect tQ .tbe elel}tiye 1.'he reason' giYIlD by the foX; refusing to l;le, S;wQrn was>that the commissioner wasacting:vylth01,1tjuri6dlction, and, his cOllnsel here il)sist.upoll the .sam.e , '.' " ..' ' . . - '. .. ' .,... .' In resp,ect 1;9 'the natiJre at the olJlce, powers, and dl1ties of trnited States commissionertlJ II 't{f1ote'froman opInion ·of, J'ustioo FiELD <If -the cou.rt. de1iVtlretl,on the circuit incalitornia,in the case,of U.'S.'Y;SchumanlJi, 2 ':WSf!
'\VOOW, 'J. '. ''the petitioner was .coDlInHted by.a U nitEjd States commIssioner
. .Ii' !lC,'-
,.
"
'.:
,., ; , '
',",';
as
commissioner officeo! cre.ated .by the act, of .F,ebruary. his, duties werlt at first to,.takmg acknowledgmen·ts,Of and; :By seyeral subSequent' actsliIs'powers have been gteat.1y'enlarged. Amongotber thmgs, bals invested with all the authoritytoari'es1J, imprison, orbltil bffenders against the laws 00; United States w.hich any j ilstice oNil16 peace or otber magistrat(t
cliUl6
:V,
IIottQ.rney'.s right to dis.,
EX PARTE PERKINS;
91i
of any of the United States can e:x:.erciselinder the thirty-thir<l section of the judiciary act of 1789. That section 'provides that' for any crime Or offense against the United Statesthe offender may, by any justice or j lldge of the United ::;tates, or any justice of the peace or other magistrate of any of the United States where he may be found, agreeable tathe usual mode of process against offenders in such state, and at the expense of the United ,States, be arrested, imprisoned, or bailed,as the case may be, for trial before, such court of tbe United, States as by this act has cognizance of the offense! The same act also authoril!es the commissioner, upon any hearing before him when the offense is charged to have been committed on the high seas or elsewhere within the admillaltyand maritime jUrisdiction of the United States, in his discretion to require a recognizance from witnesses for their appearance at the trial. He isthu8 a magistrate of the government, exercising functions of the highest importance to the administration of justice. He is an examining and mittingmagistrate, bound to hear all complaintsofthe commission of any public offense agQi.nst the laws of the United States in bis district, to cause the offender to be, arrested; to examine into,the matters charged, and summon witnessll8ior the g0vernment and for tbe.aeclised, and to,coJIlmjt for trialaccordi-ng:to whether the evidence tends or fails to suppott tlleaoousatjon.For the fa'\tbf.111 discharge 'of his duty in these particulars he alone.is accountai:lle, He' has .no divitled ,responsibility with any other officer ·of the .government, nor is h'e',llubject to any other's control." . , This view is fully sustained in the case of U. S. v.Sa1't:)gg(;11.S, 3 WOO(ls, 529, where'it is:hillld;.in effect. that'a commissioner,'as an examining'ulagistrate, haa: the powers, andderieves them from the same SOUtee, as the chief or jUdges of the United States would in ·samecapacity. . , '", ;. Clot1hedwith,such powers, the commissioner in every instance mine' judicia1l1w'hether, a cbargelaid before him is sufficient in fQrn;1: =\ndsuplItance toJuStify an arrest and investigation.' TIl,is power, and duty W dllCide, when: invoked,'is jurisdiction; and, if the commi'8sioner'deteumines to pr<r <leedanddoes proceed with the hearing,l have no doubt of the rule, and .believe no.a.uthority ;has been cited to the! contrary, witness or person having only a collateral or indirect interest can question:the jurisdictipn, -less the affidavit on which the prooeeding is based.is ,80 wanting in substance -attain relevancy ta:any'form of crime denounced by ,the s-tatutes,as to, atlorq. color fora.ninvestigation.On tbi!! subject see E:v :parte Wat,kins, 3 Pet. 193; E-x pa1·te Parks, 93 U. S. 18; E-x pa1'te Yarbrough, UO U. Sl651. 4 Sup. Ct. Rep. 152; Lange v.Beaedict, 12; Dequindnei v. ,Williams, 8t Ihd.456; Williamson's Case, 26 Pa. 8t.9. " ., Especiany must this be the rule in respect to examinations held in Indial1a; and, governed, as examinations by United. States commissioners sitting ,aT-e\ btthe 8tatutes of the state in res.'p.eet to such proceedings. By section 1639 of tM:lmitana Revised Statutes of, 1881; if, "whUe a. preliminary ination. is had before a justice of the peace of any person ,upon a -ony or· any <ither pUblic offense"itappears to suchjustioo that a mistake 'been made in charging the proper offense, or that, he is guilty of an Mt charged, the justice shali not discharge the defendant, if there ,appea.rs ,to him to be good cause to'detain bim in custody; but he must cause .charging. the proper offense to be made against the' defendant, bimto'aMwer the same, and, if necessary, also recognize -the witnesses ,tQ,:alh These provisiollS aJ:e ,futile if. while the examining tUrnS, his, in vestigationfrom· the insufficient and ill-conceived,chargll' to the proper and'well-dJ:awn affidaVit, prepared under !lis direction, witnesallS,lIl8Y ,w1itbdvaWj Or refuse to'be sworn, on the ,pretense that jurisdiction, had'not ibeen obtaiiledulu!erthe first charge, or, bad been lost ,in ebal1gef,o.,the:secpnd.:,,! .
912
FEDERAL REPORTER.
'But it ls claimed tliat the' alterations and erasures of tally-sheets ltnd pollbooks sh()wn by the affidavit in question cannot support a charge of crime under any-provision of the federal statutes; because it is affirmatively shown in the affldavit that the alleged changes, erasures, and everything done. and that the accused are charged with having conspired to do, did not, could not, and were not 'intended to affect the election of representative in congress, but only the election of certain judge and, cotoner of Marion county; and perhaps a member of the state legislature. Ifthia proposition be complete:Wtrue, it follows that the affidavit charges, and, consistently with the [facts stated in it, could not have been so amended' as to' charge a. violation of'federallaw, and possibly the" commissioner was aoting: without jurisdiction or COlor thereof; ,tllOugh that does .not Beem to me to follow necessarily,because, doubtless, amendments relevant to the general subject, though inconsistent' with the ;facts as first stated, might be made, if justified or,re· qUired by the 'proof; M;'fol'instance, the evidence before the commissioner in 'thiflrc3lie shows a removtll:ofthetally-papers from lawfuicustody, and an :of:d.uty. bji'the offioial ciIellodians warranting an/amendment whiCh wouid:bi.lhig the,charge>.f.ntd .substantialconforrnity, with .ellarges which were upheldlibFE:tfparte Claif,ke,100 U. S. 399. But; assuming the proposition asadvanclm ,to be true, we, come, upon the theory: of ,cQunsel, to the pivoW point of the .:Doalterations oftally-sheete and poll-books, such as are here charged, affect, or, under posSible and reasonably supposable states of fact, coulif they,affect,. the election of representative in congress'? ,,' Theonly instance within my knowledge in which this question has been pl'esented'to 8'court for'decision WdS, "in the case of MdJckin v.U. S., tried two years 'ag<> in the l1Fnited£tatesdistriet court 101; the Northern district of Illinois. Forthe judge's charge to the jury at the trial, see (j\hicago Legal News of'February 281'1885; and see 23 Fed. Rep. 334. ' The criminative acts charged to bav..e been 'committed in that case in pursuance of the alleged conspiracY'oonsi!;lted'inthe cbangie of atally,;sheet and appended certificate, after deposit in'tMol6rk's office;:and bef<>re the official count, in .respect to the cast'for epposed candidates for state senator, and in the sllb. stitutio'n 'off@tged"ballots .corresponding to the changed'tally-sheet, instead of alike numberaffthe trueballotneturned therewith. The ruling of JUdge BLODGE'1"r; ·aIII' ttnderstand his charge, was that, under the al. leged in'tbe information before him, such an alteration or forgery of a tally. sheet was'pnuishableunder section 5403, 5511, or 5512 of the federal revised statutes. ' : '' . ' . I read 311 extract from the charge, which supplies a succinct statement of the substance and bearing of tbesections named: "By section 5512, Rev. St. U. S., it is made an offense against the United, States for any person who has any duty to perform in relation to an election rot, representative to congress, or in ascettail).jngthlnesult thereof, or in giving any certificate or document in relation knowingly violate any such duty, or to do any act unauthOJ'i2;ed by law frelating 'or affeating such election, or the result thereof., and for any persontotllid,'eounsel,prooure, or'OOv:i8e any such violation of duty. Section 5511. !Rey. St. U. S., makes it an offense against the United States for any persollkluowingly to iriterfere with 'an officer a! election.at which a repreis elected, or by any uillawful meansinduce any officer of such duty it is toasoertain, announce, 'Or deolare the result 'Of'such' elootltjh;'ot (malte any certillcate',.. document, or evidence in relation thereto; to' violate or 'refuse to comply.wi,thhis duty"or anylaw regulating the samefwbile section 5403makesiit an offense, for any,person to willfully des1lroy ai1Y iIJftJ;ler, document., or record deposited in any public statutes of.Ill1inoia'impose upon ,the county clerk, and· upon his deputies., the the poll-bo'Oks.. tally.sheets, and· ballots delivered to them by the judges of election. The county clerk and his deputies were there-
EX PARTE PERKINS.
913
fore persons having a duty to perform in regard to this· election for representative to congress. So you will readily see that the offense charged in this case is a conspiracy on the part of all these defendants to violate section 5512, by inducing defendants Biehl and Gleason,whO had a duty to perform inregard to these' evidences of >tb,e.:result· of this election, to neglect to perform such-duty, and by conspiracy to aid. counsel, procure, or advise such officers to neglect their duty, and thevebyenable some .person to spoliate and destr(ly the evidences of this elootion; also to violate section 5511 by conspiring to induce the county clerk .or the county returning board:·to 'make a false canvass and certificate of the result of said election,-that is, by altering returns before the day of canvass Came, to give the county clerk the means of making a. false return oNhe election; aliloto violate sectionM03 by conspiring tc destroyapaper, the poll-hook, tally-sheet, and ballots, which were properly deposited in the office of the:collnty clerk; the office of such clerk being a public uffice wherein tally-sheets, and ballots are propeJ;}y'deposited for the purpose of furnishing the proof authenticating the eleetiQn of a member'of congress,aud,for that purpose the,office of county clerk of this state ,is a public office of tile United States. Wb,en the certificates (If the re8ult of lIiB electjon for amemli>erof congress, or any other office, forthatmatter, is altered in any material- particular, such certificate is legally destroyed, and is . no' longer evidence: of. wi)at it originally stated. It is no longer the document which the jUdges and clerks signed, but it is a different document, and: it ':ma"kesa.·different statement; " Now, if it be conceded. as here stated, that, when a,certificate or tally-sheet is altered in any materialparticnlar, it is legally destroyed, and is no longer evidence otlwhat it originally'stated. the conclusion is clear that the: election ire respecM;o, representative i)lcongress is affected,because an item of: dence in respect thereto.a.muniment of title to the seat in congress, has been destroyed. '. But suppose it too much to'sllly that the document, as a whole, in legal 'eon- · ternplatlon, has been destroyed. it is still manifestly true that its integrity and force as evidence are impaired. If the alteration be manifest on the face of the papers,'atldno explanation given over the signatures:ofthe signers, any party proposing the document as evidence of his rights, .1 suppose, would be the neeessity ·of showing aZiunde that in other respects the instrument is genuine andkue; and undersHch a burden of proof a party to a close contest. it,is easy to understand, might lose a seat in congress to which he was justly entitledJ ' And, if the alteration be more skillful and not apparent, it may be the &O'li1l'Oeof'IDore. serious uncertainty and trouble. If, for, instance, in the case ·before us. we suppose the: ·ballots returned with the duplicate ta11Y-.8heets lost ,of'destroyed, or other ballots substituted which would show a different res·ult in respect to congressman, .and, in addition, suppose that the other tally>.gheets, with Which these altered ones ought to correspond" be found to have been ,altered in respect to' ·the congressional vote,- is it not manifest that in:olliSe of dispute, each alteration would be an obstacle in the way of determining: the true result of ,the· election, because each ta:lly-sheet would tend to discredittbe other? And·thill would be the effect .in respecttocongressman as well as' in respect to other officers. To illustrate further by this case; I ullderstand that some members of the board.ofoanvlliSsers, on account of the apparent changes in these tally-sheets and poll-books, refused to sign, and others signed under protest, the'certititberesult of the election in Marion county,. including candidates for :well as for alllocat offices. This: ,was an lactual, tangible effect election; and; if of the bOllirdnof call. vassershad acted in the same way, the vote of Marion county in respect to congressman might v.29F.no.17-58 '::
FEDERNL REHORTER.
riot hav,ebeen declared without further proceedings, 'and :possibly not without litigation. , Blltthesuggestion haB beenniade that the affidavit here shows the autheJ:h ticity and truth of the alteredpapars in,respect to the election of congressman,and' therefore a supposition to the contrary is inadmissible. The plain answer to this is that the ,accused 'are charged with ha:ving done forbidden things, which, unexplained, impair tlieproof in respect to the congressional election, and they are no less'guiltybeeause the truth of the matter may have been discovered or determined before the formal charge was framed and the " c , . ' prosecution instituted. , Going no further. into the discussion, I am clear that this affidavit charges an offense or offenses fully<within the rightful cognizance of congress, and am equally clear that the proviiliollsofsections 5511 and 5512 are applicable; and, if the charge as made is in any respect defective, the fault is of form rather than of substance, :and affords no ground forraising,aquestion of risdiction. . Whether 01' not section 5403couldl'b6'made .to apply, lam not sure, be-cause uncertain whether any 'of these,fully-sheets or poll-books had been "deposited" With an officer, or in a public within the meaning of that section. The,'proceedings before the commissioner not haVing beenwitllQut diction, the petitioner, of course·.bad no right, on that grouQ.d;:to refuse to be 8worn as 8' w I t n e s s . ' , In respect to tbe length of time for whioh,tbepetitioMr was cammitted, I do not thinktbe, commissionelFijxceeded his power. By, section 1477 of Indians Revised Stat.utes ofJ881, which sectitm was enacted in 1853. a' justhe pel\cewas, and, enforce theitat. tendance byattacbmentand,flne not exceeding enforce order by fine not exceeding ftv6ldollars, and imprisonment not exceeding three hours." ,And by section 1436. enacted at the same time, there was giveh · to Justices "jUrisdiction (j1().16xtensive' with the county; to"administeroaths, IS8ti6. 'subpoonM, ;arid attac,bln6lllts! fol" oontempt, in any, cause' pending be.. tore them,of'dn 1 8ny.matter whel'e:,tbey may be autborized ·to take testi!'mony." Buti'i;n 1879,. ,by an' RCt designed apparently to 'regulate the entire subject of contempts of c0urkitwaS enacted that "every person who,. being -sworn to testify as a witness in'Rny COlirt of record, in an}' trial or iog therein,'sbaU.refuse to testify touching the same, or,Wba, being reqUired 'by&l'Jycourt to be sworn in any suCh trial or take an oath lor afftrmationtherein,"" ...,,'.... shall be deemed' .g,l1ilty ola direct And ,in the sam8act it is provided that punishment for cl>ntempts of court under the act may. be by fine or imprisonment, or both; tbedine not toexoeed five hundredJdoliars, and.,the imprisonment not toexitanll beyondthe,terro of three months. ,Rev,. St. 1881,§§,1006. 1010. These -provisions, in'myjudgment, define the PGwers of justic6sofflhe peace in this reSpect, because; as the supreme court 'of the state has often decided,the -oourts of justices of the peace are' courts.·oji, l'ecord. 'But if,forany reason. ¢he,act of 1879 ought ,to be construed' toembxace only courts of higber and IlOOregelJ,eral jurisdiction, justices may stiH pllnisb contempts (excepting thll particular instances prOVided for in section,I:477) under section 1436,whieh 'putsnoUmitation upon the fine 'or amprisonment which may be, imposed. IQ'utJirewhether United States under the same restrictiOnll 118 justices of the peace in respect to punishments for contempts. ",>';aot, In .any the necessRryconcltision. is that the petitioner was not unlt&wfully committed, 3ndshould be.remanded, unless now'willingto purge ;'bUnself of contempt, in which case he may!ibetaken before the commissioner .fot tbat purpose. ' " Appeal prayed to circuit court, and granted. , "il · .', ,
"''''*
910' REED
and others .SAH:E
V.LAWRENCE
and others.!
v·. CHASE .' and others.
(Oircuit OQurt, W. D.Michiga7i;, tJ. D. OC,tober 'i'erm, 1886.) to recover damages for the infringemept ofa patent, where supplementary account. of profits since the first accoUnting is ordered; the master may use oD'the second accounting, for all proper purposes, the record which he usedon,thefirs$ accol'lnting"without its heingput in evidence be· ,fore him. , 2 SUE-PttmCIPLE TO BE Al'PLmnlN ACCOUNTING FonPnOFITs. In a,suit for the infringement of a patent, the defendant is accountable only for'theJ sum: which represents that portion of the prOfits result.ing from the elIlployment .of"the patented devicesID the article by the de· fendal1t. If.the article mi!.de by him embodies the lise 'of other valuable features; 'riot patented to the cOmplainant, but which have contributed to its marof ketable'Value, the defendant IS not liable to the complainant for such features; and the.burden, is tlDthe complainant ttl show what portion of defendant's).,:protlts aroseLfr9tn: the .Use I)f complaina.nt's patent. .' . ,.: . , I : I' ; ' ,
Ina
a
:
lllYWard BOOB, for complainants. . Edwa,rd8Jc.Stewart and J. 11. Bennett, for defendants. ,r ',,: '_, . ' " _ ·
! ;",.' i '"
I
lSee Chase v. Tuttle. 27 Fed. Rep. 110.
