IN BE MASSEY.

629

In re

MASSEY.

(Dl8trict OO'U11, E. D. Arkansas, W. D.

October Term, 1890.)

ELECTIONS OF CONGBESSMEN-ENFOBOEMlllNT OF FlllDEBAL LAWS-INSPEOTION OJ' LOTS.

BAL-

The laws. 0:( the United States concerning elections at which congressmen are elected are paramount, and Mansf. Dig. Ark. § 2694, providing that "the judges of election shall securely envelop all the ballots which may have been received under seal, and return the same to the clerk of the proper county, which shall in no event be opened except in case of a contested election, .. cannot be held to justifvthe refusal of the clerk to produce the ballots before the grand jury of the United States, pending an investigation into alleged violations of federal election laws.

Rule to Show Cause why respondent should not be committed for contempt. . In response to a rule to show cause, why respondent, a county clerk, should not be committed for contempt in refusing to bring the ballots cast at a congressional election, before the grand jury the respondent filed the following answer:
"The respondent would respectfully represent to this honorable court that, in compliance with the 8ubpana duces tecum served on him by the marshal of said district, a certifi,ed copy of whic9, together with the orders of this honor· able court under which the summons issued. and the return of the marshal tbereon, is hereto attached and made a part of this response, he appeared be· fore the grand jury for the purpose of answering, and did answer, all ques. tions propounded to him by said body, and a.lso produced the poll-books of the election in Wellborn township inllaid county, in obedience to the directions contained in said writ. The respondent would further represent to this honorable court that he is the county clerk within and for Conway county, state of Arkansas; that he is not by the laws of. said state an election ollicer, and has no duties to perform in connection with elections, except as hereinafter stated; that by the provision of the statute of the state of Arkansas the county court is required at itll last term. held more than 30 days before any election, to appoint three discreet persons in each township, having the qualifications of electors, to aetas jUdges of election within the township, and the judges like qualifications to act as so appointed shall select two perllons having clerks thereof; that all elections are held by said jUdges and the clerks to be by them appointed. It is by law the duty of the clerk of the county court at least twenty-five dllYs before a general election to make out and deliver to the sheriff of the county two blank poll.books for each township in his county, properly laid off in. columns, with proper captions. with forms of oaths and ,certificates attached thereto, and it is by law made the duty of the sheriff forthwith to deliver such books to the judges of elections within their respective townships. The jUdges of.,elections, before entering upon their duties, are required to take an oath that they will perform the duties of judges of the election according to law, and to the best of their knowledge and abilities, and will stUdiously endeavor to prevent fraud, deceit, and abuse in conduct. ing the same; and will not disclose how any elector shall have voted, unless required to do so in a judicial proceeding, or a proceeding to contest an election. The clerks of election are required, before entering on their duties, to take an oath that they will faithfUlly record the names of all voters. and that they will not disclose how any elector shall have voted, unless reqUired to do ,so as a witnessina.judicial proceeding, or in a proceeding to contest an elec:tion. Thl!.t, atterc8!1:vassing.the:.votea cast at the election, the jndges,.be-

6301

FEDERAL' REl"ORTER,vol.

45.

fore they disperse, are required to put under cover one of the poll-books used at such election, seal the same, and.directlt the clerk of the county court, and the poll-books, thus sealed and directed, shall be conveyed by one of the j ud/{l's to clerk of .coonty court,.within after the close of the polls, and the other poll-books shall be retained by the JUdges of elections, free for tl16 inspection of all ,persons. , On the fifth day after the election, or sooner, if all the returns have been rE'ceived, the clerk of the county court two justiceSpf the peace of the county, if they can be. conv.\ffilentlY had, and, if not, then,tw.o ;householders having thequalifications of electors, and shall proceed to open and compare the several election which have been made to his office, and make ahstracts of the votes givetiforthe severai' c,andidates foreacll office on, separate sheets of paper. Such abstracts, being siglledby the clerk and justices or householders, or any two them, shall1)e depqsited in the office of the clerjt the county court, thereIn to remain. Each Clerk, in.comparing the returns of election, sllaH do it publicly in the court-house, or in the place in which the courts are usually held. 'first giving notice oMhe same by public proclamation at the door. The clerks of :ttJe county courts of the several counties of this state, when they shall call, in two justices of the peace to assist them in comparing the poll-houks of the several townships of their. respective COllllties, shall proceed to add and count all the votes for the several persons therein voted tl)r, regardlessofartyinformaUty whatever. Each clerk of the county court shall, within two days after the examination and comparison of the returns of any election, deposit in 'the nearest post-office, on the most direct route to the sl.'at of govet'nment,certiftt>d coriesof the abstracts filed in his office of the returns of the election for membel'S of congress, a ndall executi ve, legislative, and judicial officers, directed to the secretary of state, and he shall,' at the sallletime, Jnc]use, and direct to the speabr oftM house of representativesat the Beat of goverriment Ii. certified copy of the abstract of vowsgi ven for govt'r'not"secrl'tary of ,state, auditor of lltate, trellsurer of state, and attor-' ney. genel'Sl. The foregoing are the prinr-ipal dutieiJ imposed by law upon count-yclerks;in conneotion the ascerta,nment of the result of electiuns. Section 8, art. 3, of the constitution of Arkansas, provided: 'All eleetiolls bythe'peop}e shall 1Ie by ballot.' Every ballot shall be' numbered in the order in which it shall be received, and the'uum1ler recorded by the election olIkers on the list ·of voters oppollitethe name of the elE-ctor who prt'sents the ballot. The election officer shllllbeswol'n or affirmed not to disclose how any elector shall have voted, unless reqUired to:do so as a witness in a judicial proceeding, or a proceeding to conI est kn election." Section 2694 of Mansfield's Digest of the Laws of Arkanslls provides:"It shall be the duty of the jUllges of eleetions in the respective townships throughOut the state, after such election shall have·been closed, as pl'ovlded >10r in the forE-going sections, securely to envt'lop all ballots which may bl\ve 'been' received in accordance with the provisions of this net under seal; and' return the same 'to the Clerk of the proper county,whiehshilll in no opened except in case of a contested election.' Section 27 of the Revised Statutes of the United States prOVides:' All vott'S fot' representatives in congress must be by, written· or printed ballot, ' ,and aU votes received or 'recorded'contrary to IJhissection shall be of no effect.' ., " , "The respondent would further: respectfully represent to this honorable C011rt that 'he is by law· the offlcjalctlRtollian of the ballots cast in all elections hel(Hnsaid county forstata, collnt!Y,ottict'rs,tor members of congl'e!ls. That the ballots refen'ed ,to in the 8ubprxtta duces tecum, issued. and directed to him asafuresaid.' were cast in anelectioo,beld 'for a member of congress.· That said ballots were returned by the jndgesofsaid election to' respondent uIider, seal,.anl! aJ,:e now held in his cUlltody.iu'Ws official capacity under seal, as

631
the Sialne were returned to him ,lJy the aforesaid 'jrillges. And the respondent understands and is advisedthat:under the laws of said and by virtue of the act of provided, he not onlY'has no power, but is prohibited from opening said in the case of a contested tion, and respondent would by such violation of law subject himself to criminal pr\,lsecution fora misdemeanor. in office, and to removal from oHice under the laws oithis state. "Respondent would further represent and show to this ,honorable court that by the adjl.idicatlotlof the llupreme court of the state in the construction of and statutes of the state, that being the highest court prOVided for by;thecQnstitut,ion and ll\wS of the state, the county c!t'rk, as the custodian of the baU<;,ts, has no power topermitthe same to !?e opened by any petsOn or for anit>Urpo!;e, except in the case of u·cimtes,ted'election.And· he is advised and rt'presents that the law8'of1lhe'state and the aforesaid decisions are bindIng upon 'him in .this tribunal, and, that he cannot, except in Ute case ofacontestlld electipn, open said ballots, or briI)g t/lishonorortbe grand jUI:Y, to be opened in 8ubprena duces tecum.ser.ved on bim as aforeaaid., , , ' · ',. : ·. : ' "Respondent further sai ttl [sayeth] there is no'c6iltested election lng befor.e the grand jury, or beforethis hon.ol'able .court, in which he ill qUired to prodllcethe aforesaid ballots, not'iatllere allY criminal :canse or charge' upon oath, information, indiCtment, or' other lawful, IDode, instit.uted. ·or, oow,penqing, ill, this honol"il;ble CQur.t, 9,1; before tbe ,grl\nd, jUfY, or any, jUclicialproceeding before the cpurt or jury, in whi.ch he is reqqirpd, Pi. sfores,aid order of thi,shonoraljle the writ is8uedthereunde'l', to prod uce the aforesaid bidlpts, in' ordet'thatthe same mi\y be openetl aoil' eXilmlned. And ,he further ad vi 8'eif to! state that, if the're were a jndiCial proceeding pending before thishonol"able court, or before the grand jury, other dibanoin the case ofa cont.estedelection, he wOlJlq not, unlier law!'!.of the state of haY6 power or authority ballots,' .... ;:, ' '. , . " " "Wjleteforerespondent that he ,lawfUlly bnng the same before thishonorableconrt, or the 'grand jury,l'or the purpose of opeRed, withdritviolati rig his official: dUty under the laws of the state and of .the United States, JOl' Which reason, and, not from any intention to disregard the process of this honorable court, respondent is advised and feels to dec\l\le to produce and bal10[s. , ,', "Whereforerespondent respectfully prays that this honorable court in the facts herein stated, ijischarge bim from the rule to shoW calise, and permit hIm to go hence." ,,

, 0.,0. ,WateTs,U. Atty., and John McClure, for the United States. John M. MOOT!!, Jf.L. Terry, .llnd J. W.,House, for respondent. '
, WILI,IAMS, J., a former day of this court, the United States distJ;'ict attorney to the'cmirt that at thegeneral election for members of congress, held 5th day of NO:Vllwber, lS90, there wasreason to believe that the judges of election for Welborn township, in Conway county,bad not disebargedtheir duties'in accordance with the law, butbad'lllade a false return of the votes castatthatp'recinct at theelecthat h,edesired ip)l,ly rnatrerbefore the grand jury, then in session" and thata. subpmna .issue to the respondent, the clerk gra,n!i jury the poll-bpoks and ballots· of. ,the election SO ,held. 'at, said ,precinct.. ,At his, reques,t.the

632

FEDERAL REPORTER,

vol. 45.

BUbprena was issued, and the clerk appeared before the grand jury, bringingivith him thepolI-books of the election, but failing to bring the lots cast in the precinct at the election. The grand jury reported in open witness refused to produce the ballots, and, upon his bei,ng in open court by the court, he still refused to produce the ballots; stating that, while he desired not to be considered in contempt of the court, he had been informed by counsel and he believed it to be a violation of his duty as clerk to permit the ballots in his possession, cast at the election, to go out of his possession, or to be opened and inspected by any persons, except in a case of contested election; and the attorney general of the state of Arkansas stating to the court that, on behalf of the state, he desired to present the matter to the court by way of a response of the clerk, respectfully submitting that by Const. Ark. arlo 3, § 3, and Mansf. Dig. Ark. § 2694, the clerk was prohibited from parting with the 'Possession of the ballots, or allowing the same to go out of his possession, or to be opened by anyone, except in case of contested election. The question to be determined by the court is whether, by the act of congress and the laws of the state of Arkansas, the custodian of ballots cast at an election held for members of congress, pursuant to said la.ws, may be compelled by a federal court,· ill the administration of the criminallaw of the United States, to prod\}ce the ballots cast at said election or not. It is not contended by the able counsel who represent the respondent and the state of Arkansas but that the general government has the right, under the constitution, to pass laws regulating the manner of holding elections for members of congress in the several states, nor that, in the holding of elections under said laws, the election officers appointed under the state laws become officers of the general government, as well as of the state, and that they are amenable to the government for violations of said laws; so that it would seem that the only question that need be passed upon is whether the laws of the United States so passed are paramount if they are in conflict with any state law. And upon this point it is only necessary to cite the case of Ex parte Seibold, in 100 U. S. 371, to settle the question.. In that case the supreme court of the United States, in language not to be misunderstood, declares that the power OIthe United States in the ·enforcement of said laws, and in the conduct of elections thereunder, is paramount. The court in that case (BRADLEY, Justice) uses the following language: "The objection that the laws and regulations, the violation of which is made punishable by the acts of congress, are state laws. and have not been adopted by congress, is no sufficient answer to the power of congress to impose punishment. It is true that congress has not deemed it necessary to interfere with the duties of the ordinary officers of election, but has been content to leavo them as prescribpd by state la W8.. It has only created additional sanctions for their performance. and prOVided means of supervision, in order more effectually to secure such performance. The imposition of punishment implies a prohibition of the act punished. The state laws which congress sees no occasion to alter, but which it allows to stand, are iIi effect adopted by congress. It simply demands their fulfillment. Content to leave the laws as

INRl!: MASSEY'.

633

they are, it is not content with the means provided for their enforcement. It provides additional means for that purpose, and we think it is entirely within its constitutional power to do so. It is simply the exercise of the power to make additional regulations. That the duties devolved on the officers of election are duties which they owe to the United States, as well as to thA state, is further evinced by the fact that they have always been so regarded by the house of representatives itself. In most cases of contested elections the conduct of thl:'se officers is examined and scrutinized by that body as a matter of right, and their failur.e to perform their duties is often made the ground of decision. Their conduct is justly regarded as subject to the fullest exposlUte, and the right to examine them personally, and to inspect all their proceedings and papers, has always been maintained. This could not be done if the officers were amenable only to the supervision of the state government which appointed them. Several other questions IJearing upon the present controversy have been raised by the counsel of the petitioners. Somewhat akin to the argument which has been considered is the objection that the deputy-marshals authorized by the act of congress to be created and to attend the elections ar'l authorized to keep the peace, and that this is a duty which belongs to the state authorities alone. It is argued that the preservation of peace and good order in society is not within the powers confided to thil govemment of the U oited States, but belongs exclusively to the states; Here again we are met with the theory that the government of the United States does not rest upon the solI and terrItory of the country. We think that thIs theory is founded on an entire misconception of the nature and powers of that government. We hold it to be an incontrovertible principle that the government of the United States may, by meaus of physical force, exercised through its officIal agents, execute on every foot of .American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent. This power to enforce its laws and to execute its functions in all places does not derogate from the power of the state to execute its laws at the same time and in the same places. The one does not exclude the other, except where both cannot be executed at the same time. In that case, the words of the constitution itself show which is to yield: 'This constitution, and all laws which shaH bemadeinpursuance thereof, * * * shall be the supreme law of the land.' " The provisions of the constitution of the state of Arkansas, and of the laws pertaining to elections enacted thereunder, are as follows: Section 3, art. 3, of the constitution: ".All elections by the people shall be by baUot. Every ballot shall be numbered in the order in which it shall be received, and the number recorded by the election officers on the Jist of voters opposite the name of that elector who presents the ballot. The election officers shall be sworn or affirmed not to -disclose how any elector shall have voted, unless reqUired to do so as witnesses in a judicial proceeding, or a proceeding to contest an election." Section 2694 of the election law is as follows: "It shall be the duty of the jUdges of elections in the respective townships throughout the state, after said shall have been closed, as provided for in the foregoing sections, securely to envelop all ballots which may have been received, in accordance with the provis\ons of this act, under seal, and return the same to the clerk of the proper county, which shall in no event be -opened except in case of a contested. election." Section 5515 Of the United States Revised Statutes, relating to the ).conduct of elections f0r members of congress, is as follows:

634

FEDERAIi .JI.:Ef.OJt'l'ER , vol.

45.

" "Sec. 5515. Every officet on an: election at which any,representative or dele.. gatMncollgressisvoted for, wllethersuch officer of election.be appointed or oteRted,bydl' under any law or authority of· the United States, or by.or under anystate,terrilorial, district, or municipllllaw or authority, who or refuses to 'perform any duty in regard to such election required of him by any law of the United States, or of any. state or territory tbereof, or who violates any duty so imposed, or who knowingly does any act thereby unauthorized, with intent to affect any such election, or the result thereof, or who lenUy makes any' falsecertiflcate of ,tbe result of !luch election in regard to representative or del:egate, or who withholds, C9nceals, or destroys any certificate of record so required by law respecting the election of any ,such .representativ8> or delegate, or who neglects and refuses to make and return such certificate as required by law, or who aids, counsels, procures, 01" advises any voter, person, or officer to do any act by this or any of the preceding sections made a· crime, or to omit to do any duty, the omission of which is, by this or any such sections, made a crime. or attemptstodo so, shall be punished as prescribed in: section fifty-five hundred and ten. See section 5511." .Now, that the laws of the United States in relation to the election of lllemhei;s of congress are paramount, and that the courts of the United BtateB, as. provided by said laws, have jurisdiction to inquire into and punish all violations of said laws, it may well be asked how it ,is enforce or carry out the provisionso! the .section just quoted without a.ne:iamination of the ballots returned by the judges and clerks of to the county clerk? Suppose that the charge o$cers is tbat they have made a false return of against the votes cast by the electors at said election,-i. that they have certified tbat A;'l'eceived (l. certain Dumber of votes, when an inspection of the 'ballots cast at.said election would show the fact to be that said certificate ,so made was falseanillraudulent,-in what manner could the fact of thei.r crime be established, except by an inspection of the ballots? The courteau conceive .of no other method of ascertaining that fact, and to bold that, by the provisions of the. constitution and laws of the state of Arkansas, said. bljllots cannot he opened or inspected except in a case of contested election, would render inoperative the section just quoted. Referring again to the law of the, state as to the baJlots. It will be conceded that ther'e is no tribunal in the state, or created by the constitution or taws olthe s,tate, that6aninaugurate, carry on, ordetermine a eontest for a member of congress.; and this, of itself, makes it apparent to ,me that these ,provisions of. the constitution and laws of the state can only refer to ballots cast at an election for officer'S wbose election can be contested by the 'state tribunals, and n(')t those:cast at an election for members of congress. Here the matter:might very properly be left and : the response be held insufficient; but I, desire to refer to other matters :Q:rged by counsel, as it is cqarged that to compel. the production of the ,ballots before the grandjury is an overriding oLthe laws of the state by the·federal courts which ought not to be indulged ,in. Mtichmight· beilaid as tothe fact 'Whether, under the constitution of the state of Arkansas, the ballot, after it passes out of the hands of the electioq jndges,.· is' in any manner a'secret ballot. or not. That the word "ballot" impIiessecrecy is unquestioned, and, if it was provided that

e.,

IN REMASSEY.

the. election shall he by ballot, and nothing further was said, then it would bewitl1<?utdoubt the right of the elector to have the secrecy of the ballot preserved: ,fro91 impertinent odmproper inspection; but it will be observed thatt/:le <;lonstitution and laws of the state of Arkansas provide tllat the electiop"pfficers shall place a number upon the ballot cast by the elector: to .correspond with tl,1enumber his name upon the poll-book. In!,!:djudications by !ltate courts ofdifferentstates.!his seems' of the secrecy of the ballot.. The constituto be held tion of the Indiana provided that elections should be by ballot, but the legisll1iture of that state enacted a. law containing similar provisions to the law of this state, i. e., that the ballot cast by the elector should be numbered, etc. The supreme court of that state held that this law was unconstitutional, inasmuch as it impaired the secrecy of the ballot, and in all states where the 'matter has been adupon the ballot are destructive judicated it is ]:;leld that all:Y of its secrecy. In some of the states it is held that the ballot must be of certain dimensions, and of certain color, and any departure from this, either as to dimensions or color, or any marks placed thereon, is held to actually invalidate the ballot, cast, presumably because it destroys the secrecy of the ballot. But it is contended by counsel in this case that the supreme court of the state in Jones v. GlideweU, 53 Ark. 161, 13 S. the ballot in this state. is a secret ballot, W. Rep. 723, have held and I will accede to that contention, although it is not clear to my mind that this point was before the court in that case. ' This brings me, to the consideration of what I deem an important propthe secrecy of the ballot, osition in this case, and that is, and the full force ,and effect of the constitution and la'Ys of the state of Arkansas, do they prohibit the courts of the state, in the enforcement of the criminal law of the state, from having access to the ballots in order that violations of the law by election officers shall be punished? At the very first inception of this case this court announced its opinion that there was no law to prevent the courts of the state from requiring any election officer to produce the ballots before a proper legal tribunal, in order that crime may be punished, and the rights of the electors be protected. To hold otherwise would be allowing election officers to tamper with the most sacred rights of the elector, and shield themselves from punishment by saying that they are not permitted to produce the ballots, as is done, in this case.' If the effect of the provisions of the constitution and the election law is as contended for by the attorneys representing the respondent, then it may, be asserted that the state, in its organic law, and by act of its legislature, has provided an engine for its own. destruction, because, if the election officers cannot be punished for a false and fraudulent return of the votes cast at any election, then the stll.te is entirely at the mercy of such election officers, and, if a sufficient number can be found who Will, SO (fertify such fraudulent returns, and there is nothing left for the.state or the persons elected at such election but the tedious results of a contest, and they are notdeterred by a wholesome fear of a ctiminal prosecution, then it is easy t!l conceive that an-

636

FEDERAL' REPORTER,

vol. 45.

&'<;lhy wo'uld reign, instead of law and order. The elector mUQhmore concerned, and his interests are much better subserved by a proper enforcement of the criminal law against election officers, who would make a fraudulent return of a vote cast by him, even though to do this the ballot that he cast must be produced before the tribunal endeavoring to punish such officers, than by a sentiment which would preserve inviolate the secrecy of his ballot. A high court of the state of Pennsylvania says that the purity of the ballot is of much more importance than the right of the elector to have it preserved secret, and as against that doctrine I fail to find any dissent by the highest tribunals of any state. And it would seem to be a singular contention that after a contest at which the ballots were opened, and clearly showed that the election officers' at any precinct, or any number of precincts, had made a false or fraudulent return of the votes cast at an election, thus establishing their wrong-doing clearly and unequivocally, that the ballots showing this must, after the contest is ended, be returned to the custodian of the same, there to remain, and the state be left powerless to prosecute and convict the prepetrators of the wrong and fraud and outrage because the ballots cannot be produced or opened, or taken from the immediate keeping of the cllstodian, in a case of contested election. Because, if they cannot be taken before the contest, they can no more be taken after the contest, because the provision of the law urged by the respondent in this case is that the ballots shall110t be opened except in a caRe of contested election. The remedy to the citizen which is urged as the only one, i. e., a contested election,is not the one that he would seek, or can seek, where his right asa citizen to cast a ballot, and have it counted as cast, has been taken from him by the fraudulent action of some election officer. Unless the' officer injured sees fit to make a contest, no contest caube had, and there are some elections where, the court conceives, by the laws of the state, even the right to contest would be vain and delusive. For instance, it is provided that at every general election the electors of the state at the various voting precincts shall cast a ballot for or against the granting of a license in the townships, wards, and counties of the state; and suppose that the election officers at any precinct or number of precincts should return and certify the vote that was cast against license, if you please, as being cast for license. Under'the laws of this state, what tribunal of justice would open its portals for the men who have thus sought to establish temperance in their townships or their counties to make a contest? In looking over the election laws of the state, it is quite difficult to fix upon any forum or form or manner of making a coptest to show how the vote actually stood as cast, and, unless the election officer should be restrained by the strong hand of the law, and deterred by the fear of a. criminal prosecution, it is not a violent supposition nor an empty fear that the rights of the elector under this law would often be trampled under foot. I cannot for a moment believe that it ever was the intention of the framers of the constitution or of the lawmakers of the state,by saying that ballots should remain in the hands

NORTON. fl. CALIFORNIA AUTOMATIC CAN CO.

637

of the clerks of the various counties, and not be opened except in a case of contested election, that it should prohibit the courts of the state to preserve the life of the state, and punish crime and deter criminals, by producing before grand juries and courts the ballots cast at any election whatever. "Rex legf 8ubjectUB est "-"The king is Ilubject to the law"is a maxim with the Magna Charta, and is but a terse and forceful expression of the fact that in a government of laws all, from the highest to the lowest, are amenable to the law. But, if the propositions urged by the respondent are to prevail, the election officers "referred to, who are popularly supposed to be the servants of the. people, are above the law, and may thwart the will of the people with impunity. It is attempted in the argument to put this secrecy of the ballot upon the same ground with privileged communications. such as those made at the confessional, to the lawyer, to the physician, or that are made between husband and wife. What ground there is for this contantion I fail to see. There is reason that the communications thus made, and which have ever been considered privileged, should he so, for they relate to statements and confessions that possibly endanger the life, liberty, the property, or the fair fame of the person making the communications, or else they are made in the secrecy and confidence of the marriage relation, the disturbing or destruction of which may well be said to be against well-established public policy. But here the person whose rights are affected-i. e., the citizen who casts the ballot-is making no demands that the secrecy shall be preserved. He is in no manner affected in his life, his liberty, or his estate by the divulging of the fact as to how he has cast his ballot, but, as has been shown, his rights often can .only be protected by the examination of the ballots, to see if they have been correctly returned. So, upon this view of the case, independently of the question as to the paramount effect of the federal laws in regard to these elections, I hold that the r.esponse of the clerk of the circuit court of Conway county in this case is utterly insufficient. .

NORTON

et at

fl. CALIFORNIA AUTOMATIC CAN

Co. et al.

(OirCUttt OoW't, N. D. OaUfO'l"nU&. February 10, 1891.)

1.

:P4TENTS POR INVENTIONS-ANTICIPATION.

9.

Claims I, 2. 8, 4, 5,7, and ]0 of patent No. .ft.IIII. dated March 20, 1888, Issued to Norton and are valid claims, and are 110t anticipated by the prior paten' No. 267,014,lsslled toE. Norton. . Claims Nos. 1, 2, and 5 of patent No. 882,567, dated &1'8,1888, issued to John Solter, are in.fringea by defendants. .

: ,

SAuE-INFRINGEMENT.

,In Equity. . . . ,. ;. Mon.day,Eva,rt8 4cAdcock

" HaveruJ, for complainants.