A conspiracy to influence a congressional election by bribery of
voters is not a conspiracy to defraud the United States within the
meaning of § 37 of the Penal Code, formerly § 5440 of the Revised
Statutes.
Quaere whether the power of Congress to regulate
elections of Senators and Representatives, Const., Art. I, § 4, is
applicable to a general nominating primary, as distinguished from a
final election?
The primary election law of West Virginia, Acts 1915, c. 26, pp.
222, 246, provides that only candidates belonging to a political
party which polled three percent of the vote of the state at the
last preceding general election can be voted for, excludes
independent and other voters not regular and qualified members and
voters of such a party from participation in the primary, and
further provides that, after the primary, candidates, including
persons who have failed therein, may be nominated by certificate
signed by not less than five percent of the entire vote of the last
preceding election.
Held that the rights which candidates
for nomination for the office of Senator of the United States may
have in such a primary come wholly from the state law, and a
conspiracy to deprive them of such rights by debauching the primary
with illegal votes for an opposing candidate is not within the
scope of § 19 of the Penal Code (formerly Rev.Stats., § 5508)
designed for the protection of rights and privileges secured by the
Constitution or laws of the United States.
Page 243 U. S. 477
The Federal Corrupt Practices Act, and amendments (c. 392, 36
Stat. 822; c. 33, 37 Stat. 25; c. 349, 37 Stat. 360), recognizing
primay elections and limiting the expenditures of candidates for
Senator in connection with them, are not in effect an adoption of
all state primary laws as acts of Congress.
The temporary measure enacted by Congress for the conduct of the
nomination and election of Senators until other provision should be
made by state legislation (c. 103, 38 Stat. 384) was superseded as
to West Virginia by the primary law of that February 20, 1914,
effective ninety days after its passage.
234 F. 446, 236 F. 993, affirmed.
The cases are stated in the opinion.
MR. JUSTICE CLARKE delivered the opinion of the Court.
These four cases were argued together because the indictments in
the first three must be justified, it at all, under the same § (§
37) of the Criminal Code of the United States, while the fourth
involves the application of § 19 of that Code to the same state of
facts which we have in the third case.
In the
Gradwell case (No. 683) and in the
Hambly case (No. 684) the fourteen defendants are charged
in the indictments
Page 243 U. S. 478
with having conspired together "to defraud the United States,"
and to commit a willful fraud upon the laws of the State of Rhode
Island, by corrupting and debauching, by bribery of voters, the
general election held on the third of November, 1914, at which a
Representative in Congress was voted for and elected in the Second
Congressional Cistrict of Rhode Island in the
Gradwell
case, and in the First Congressional District in the
Hambly case, thereby preventing "a fair and clean"
election.
No. 775 relates to the conduct of a primary election held in the
State of West Virginia on the 6th of June, 1916, under a law of
that state providing for a statewide nomination of candidates for
the United States Senate. In the indictment, twenty defendants are
charged with conspiring
"to defraud the United States in the matter of its governmental
right to have a candidate of the true choice and preference of the
Republican and Democratic parties nominated for said office and one
of them elected,"
by causing and procuring a large number of persons who had not
resided in the state a sufficient length of time to entitle them to
vote under the state law to vote at the primary for a candidate
named, and also to procure four hundred of such persons to vote
more than once at such primary election.
The indictment in No. 776 charges that the same defendants named
in No. 775 conspired together to "injure and oppress" White,
Sutherland, and Rosenbloom, three candidates for the Republican
nomination for United States Senator who were voted for at the
primary election held in West Virginia on June 6th, 1916, under a
law of that state, by depriving them of the "right and privilege of
having each Republican voter vote, and vote once only, for some
one" of the Republican candidates for such nomination, and of not
having any votes counted at such election except such as were cast
by Republican voters duly qualified
Page 243 U. S. 479
under the West Virginia law. The charge is that the defendants
conspired to accomplish this result by procuring a thousand persons
who were not qualified to vote under the state law because they had
not resided in that state a sufficient length of time to vote for
an opposing candidate, William F. Hite, and many of them to vote
more than once, and to have their votes cast, counted, and returned
as cast in favor of such candidate.
A demurrer to the indictment by each of the defendants in each
case on the ground that it fails to set forth any offense under the
laws of the United States was sustained by the District Court of
the District of Rhode Island in the first two cases and of the
Southern District of West Virginia in the third. The cases are here
on error.
It is plain from the foregoing statement that the indictments in
the first three cases are based solely upon the charge that the
defendants conspired "to defraud the United States," in violation
of § 37 of the Criminal Code, and that the indictment in No. 776 is
based upon the charge that three candidates for the nomination for
Senator of the United States were "injured and oppressed," within
the meaning of § 19 of the Criminal Code, by a conspiracy on the
part of the defendants to compass their defeat by causing illegal
voting for an opposing party candidate at the primary election.
The applicable portions of §§ 37 and 19 are as follows:
"Section 37. If two or more persons conspire either to commit
any offense against the United States or to defraud the United
States in any manner for any purpose, . . . each of the parties to
such conspiracy shall be fined not more than ten thousand dollars,
or imprisoned not more than two years, or both."
"Section 19. If two or more persons conspire to injure, oppress,
threaten, or intimidate any citizen in the free exercise of
enjoyment of any right or privilege secured to
Page 243 U. S. 480
him by the Constitution or laws of the United States, or because
of his having so exercised the same, . . . they shall be fined not
more than five thousand dollars and imprisoned not more than ten
years, and shall, moreover, be thereafter ineligible to any office,
or place of honor, profit, or trust created by the Constitution or
laws of the United States."
The argument of counsel for plaintiff in error in the first
three cases is that the United States government has the right to
honest, free, and fair elections, that a conspiracy to corrupt
electors by bribery has for its object the denial and defeat of
this right, and that it therefore is a scheme to defraud the United
States within the meaning of § 37. This presents for decision the
questions:
Is § 37 of the Criminal Code applicable to congressional
elections, and, if it is, has the United States such an interest or
right in the result of such elections that to bribe electors
constitutes a fraud upon the government within the meaning of this
section?
To admit, as it must be admitted, that the people of the United
States, and so their government, considered as a political entity,
have an interest in and a right to honest and fair elections
advances us but little toward determining whether § 37 was enacted
to protect that right, and whether a conspiracy to bribe voters is
a violation of it. Obviously the government may have this right and
yet not have enacted this law to protect it. It may be, as is
claimed, that Congress intended to rely upon state laws and the
administration of them by state officials to secure honest
elections, and that this section was enacted for purposes wholly
apart from those here claimed for it.
To answer the questions presented requires that we look to the
origin and history of § 37, and that we consider what has been, and
is now, the policy of Congress in dealing with the regulation of
elections of Representatives in Congress.
Page 243 U. S. 481
Section 37 first appears as § 30 of "An Act to Amend Existing
Law Relating to Internal Revenue, and for Other Purposes." enacted
on March 2, 1867, 14 Stat. p. 471, and, except for an omitted not
relevant provision, the section has continued from that time to
this, in almost precisely its present form. It was carried into the
revision of the United States Statutes of 1873-74 as § 5440 of
Chapter 5, the title of which is "Crimes against Operations of the
government," while another chapter, Chapter 7 of the revision,
deals with "Crimes against the Elective Franchise and Civil Rights
of Citizens." Forty-two years after its first enactment the section
was carried into the Criminal Code (in force on and after January
1st, 1910), where it now appears as § 37, again in a chapter, now
Chapter 4, devoted to "Offenses against the Operation of the
government," while Chapter 3 of the Code deals with "Offenses
against the Elective Franchise and Civil Rights of Citizens."
The section has been widely applied in the prosecution of frauds
upon the revenue, in land cases, and to other operations of the
government, and while no inference or presumption of legislative
construction is to be drawn from the chapter headings under which
it is found in the Criminal Code (§ 339), nevertheless the history
of the origin, classification, and use made of the section which we
have just detailed are not without significance, and, taken with
the fact that confessedly this is the first time that it has been
attempted to extend its application to the conduct of elections,
they suggest strongly that it was not intended by Congress for such
a purpose.
Further aid in determining the application and construction of
the section may be derived from the history of the conduct and
policy of the government in dealing with congressional
elections.
The power of Congress to deal with the election of Senators and
Representatives is derived from § 4, Article I,
Page 243 U. S. 482
of the Constitution of the United States, providing that:
"The times, places and manner of holding elections for Senators
and Representatives shall be prescribed in each state by the
legislature thereof; but the Congress may at any time by law, make
or alter such regulations, except as to the places of choosing
Senators."
Whatever doubt may at one time have existed as to the extent of
the power which Congress may exercise under this constitutional
sanction in the prescribing of regulations for the conduct of
elections for Representatives in Congress, or in adopting
regulations which states have prescribed for that purpose, has been
settled by repeated decisions of this Court in
Ex Parte
Siebold, 100 U. S. 371,
100 U. S. 391;
Ex Parte Clark, 100 U. S. 399;
Ex Parte Yarbrough, 110 U. S. 651, and
in
United States v. Mosley, 238 U.
S. 383.
Although Congress has had this power of regulating the conduct
of congressional elections from the organization of the government,
our legislative history upon the subject shows that except for
about twenty-four of the one hundred and twenty-eight years since
the government was organized, it has been its policy to leave such
regulations almost entirely to the states, whose representatives
Congressmen are. For more than fifty years, no congressional action
whatever was taken on the subject until 1842, when a law was
enacted requiring that Representatives be elected by districts (5
Stat. p. 491), thus doing away with the practice which had
prevailed in some states of electing on a single state ticket all
of the members of Congress to which the state was entitled.
Then followed twenty-four years more before further action was
taken on the subject, when Congress provided for the time and mode
of electing United States Senators (14 Stat. 243), and it was not
until four years later, in 1870, that, for the first time, a
comprehensive system for dealing
Page 243 U. S. 483
with congressional elections was enacted. This system was
comprised in §§ 19-22 of the Act approved May 31st, 1870, 16 Stat.
p. 144, in §§ 5 and 6 of the Act approved July 14, 1870, 16 Stat.
p. 254, and in the Act amending and supplementing these acts,
approved June 10, 1872, 17 Stat. 347-349.
These laws provided extensive regulations for the conduct of
congressional elections. They made unlawful false registration,
bribery, voting without legal right, making false returns of votes
cast, interfering in any manner with officers of election, and the
neglect by any such officer of any duty required of him by state or
federal law; they provided for appointment by circuit judges of the
United States of persons to attend at places of registration and at
elections, with authority to challenge any person proposing to
register or vote unlawfully, to witness the counting of votes, and
to identify by their signatures the registration of voters and
election tally sheets, and they made it lawful for the marshals of
the United States to appoint special deputies to preserve order at
such elections, with authority to arrest for any breach of the
peace committed in their view.
These laws were carried into the revision of the United States
Statutes of 1873-1874, under the title, "Crimes against the
Elective Franchise and Civil Rights of Citizens," Rev.Stats. §§
5506 to 5532, inclusive.
It will be seen from this statement of the important features of
these enactments that Congress by them committed to federal
officers a very full participation in the process of the election
of Congressmen, from the registration of voters to the final
certifying of the results, and that the control thus established
over such elections was comprehensive and complete. It is a matter
of general, as of legal, history that Congress, after twenty-four
years of experience, returned to its former attitude toward such
elections, and repealed all of these laws with the exception
Page 243 U. S. 484
of a few sections not relevant here. Act approved February 8,
1894, 28 Stat. 36. This repealing act left in effect, as apparently
relating to the elective franchise, only the provisions contained
in the eight sections of Chapter 3 of the Criminal Code, §§ 19 to
26, inclusive, which have not been added to or substantially
modified during the twenty-three years which have since
elapsed.
The policy of thus entrusting the conduct of elections to state
laws, administered by state officers, which has prevailed from the
foundation of the government to our day, with the exception, as we
have seen, of twenty-four years, was proposed by the makers of the
Constitution, and was entered upon advisedly by the people who
adopted it, as clearly appears from the reply of Madison to Monroe
in the debates in the Virginia Convention, saying that:
"It was found impossible to fix the time, place, and manner of
election of Representatives in the Constitution. It was found
necessary to leave the regulation of these, in the first place, to
the state governments, as being best acquainted with the situation
of the people, subject to the control of the general government, in
order to enable it to produce uniformity and prevent its own
dissolution. . . . Were they exclusively under the control of the
state governments, the general government might easily be
dissolved. But if they be regulated properly by the state
legislatures, the congressional control will probaby never be
exercised. The power appears to me satisfactory, and as unlikely to
be abused as any part of the Constitution."
Records of the federal Convention. Farrand, vol. 3, p. 311.
And, in Essay No. LIX. of the Federalist, Hamilton writes:
"They [the convention] have submitted the regulation of
elections for the federal government, in the first instance, to the
local administrations, which, in ordinary
Page 243 U. S. 485
cases and when no improper views prevail, may be both more
convenient and more satisfactory; but they have reserved to the
national authority a right to interpose whenever extraordinary
circumstances might render that interposition necessary to its
safety."
With it thus clearly established that the policy of Congress for
so great a part of our constitutional life has been, and now is, to
leave the conduct of the election of its members to state laws,
administered by state officers, and that, whenever it has assumed
to regulate such elections, it has done so by positive and clear
statutes, such as were enacted in 1870, it would be a strained and
unreasonable construction to apply to such elections this § 37,
originally a law for the protection of the revenue, and for now
fifty years confined in its application to "Offenses against the
Operations of the government," as distinguished from the processes
by which men are selected to conduct such operations.
When to all this we add that there are no common law offenses
against the United States (
United States v.
Hudson, 7 Cranch 32;
United States v.
Eaton, 144 U. S. 677),
that, before a man can be punished as a criminal under the federal
law, his case must be "plainly and unmistakably" within the
provisions of some statute (
United States v. Lacher,
134 U. S. 624,
134 U. S.
628), and that Congress has always under its control the
means of defeating frauds in the election of its members by
enacting appropriate legislation and by resort to the
constitutional grant of power to judge of the elections, returns,
and qualifications of its own members, we cannot doubt that the
district court was right in holding that the section was never
intended to apply to elections, and that to bribe voters to vote at
such an election is not such a fraud upon the United States or upon
candidates or the laws of Rhode Island as falls within either the
terms or purposes of the section.
There remains to be considered the second West Virginia
Page 243 U. S. 486
case, No. 776. The indictment in this case charges that the
defendants conspired to procure and did procure a large number of
persons, not legal voters of West Virginia, to vote, and a number
of them to vote more than once, in favor of one of the four
candidates for the Republican nomination for United States Senator
at a state primary. The claim is that such illegal voting "injured
and oppressed" the three other party candidates, within the meaning
of § 19 of the Criminal Code of the United States, by depriving
them of a right which it is argued they had "by the Constitution
and laws of the United States" to have only qualified Republican
voters of the state vote, not more than once, for some one of the
candidates of that party for Senator at such election.
Here again, confessedly, an attempt is being made to make a new
application of an old law to an old type of crime, for § 19 has
been in force, in substance, since 1870, but has never before been
resorted to as applicable to the punishment of offenses committed
in the conduct of primary elections or nominating caucuses or
conventions, and the question presented for decision is: did the
candidates named in the indictment have such a right under the
applicable West Virginia law that a conspiracy to corrupt the
primary election held under that law on the 6th day of last June
"injured and oppressed" them within the meaning of § 19 of the
Federal Criminal Code?
That this § 19 of the Criminal Code is applicable to certain
conspiracies against the elective franchise is decided by this
Court in
United States v. Mosley, 238 U.
S. 383, but that decision falls far short of making the
section applicable to the conduct of a state nominating primary,
and does not advance us far toward the claimed conclusion that
illegal voting for one candidate at such a primary so violates a
right secured to the other candidates by the United States
Constitution and laws as to constitute
Page 243 U. S. 487
an offense within the meaning and purpose of the section.
The constitutional warrant under which regulations relating to
congressional elections may be provided by Congress is in terms
applicable to the "times, places, and manner of holding elections
[not nominating primaries] for Senators and Representatives."
Primary elections, such as it is claimed the defendants corrupted,
were not only unknown when the Constitution was adopted, but they
were equally unknown for many years after the law, now § 19, was
first enacted. They are a development of comparatively recent
years, designed to take the place of the nominating caucus or
convention, as these existed before the change, and even yet the
new system must be considered in an experimental stage of
development, under a variety of state laws.
The claim that such a nominating primary, as distinguished from
a final election, is included within the provision of the
Constitution of the United States applicable to the election of
Senators and Representatives is by no means indisputable. Many
state supreme courts have held that similar provisions of state
constitutions relating to elections do not include a nominating
primary.
Ledgerwood v. Pitts, 122 Tenn. 570;
Montgomery v. Chelf, 118 Ky. 766;
State ex Rel. Von
Stade v. Taylor, 220 Mo. 619;
State ex Rel. Zent v.
Nichols, 50 Wash. 508;
Gray v. Seitz, 162 Ind. 1;
State ex Rel. Nordin v. Erickson, 119 Minn. 152.
But even if it be admitted that, in general, a primary should be
treated as an election within the meaning of the Constitution,
which we need not and do not decide, such admission would not be of
value in determining the case before us, because of some strikingly
unusual features of the West Virginia law under which the primary
was held, out of which this prosecution grows. By its terms, this
law provided that only candidates for Congress belonging
Page 243 U. S. 488
to a political party which polled three percent of the vote of
the entire state at the last preceding general election could be
voted for at this primary, and thereby, it is said at the bar, only
Democratic and Republican candidates could be and were voted for,
while candidates of the Prohibition and Socialist parties were
excluded, as were also independent voters who declined to make oath
that they were "regular and qualified members and voters" of one of
the greater parties. Even more notable is the provision of the law
that, after the nominating primary, candidates, even persons who
have failed at the primary, may be nominated by certificate signed
by not less than five percent of the entire vote polled at the last
preceding election. Acts West Va.1915, c.. 26, pp. 222, 246.
Such provisions as these, adapted though they may be to the
selection of party candidates for office, obviously could not be
lawfully applied to a final election at which officers are chosen,
and it cannot reasonably be said that rights which candidates for
the nomination for Senator of the United States may have in such a
primary under such a law are derived from the Constitution and laws
of the United States. They are derived wholly from the state law,
and nothing of the kind can be found in any federal statute. Even
when Congress assumed, as we have seen, to provide an elaborate
system of supervision over congressional elections, no action was
taken looking to the regulation of nominating caucuses or
conventions, which were the nominating agencies in use at the time
such laws were enacted.
What power Congress would have to make regulations for
nominating primaries, or to alter such regulations when made by a
state, we need not inquire. It is sufficient to say that, as yet,
it has shown no disposition to assume control of such primaries or
to participate in them in any way, and that it is not for the
courts, in the absence of such legislation, to attempt to supply it
by stretching old
Page 243 U. S. 489
statutes to new uses to which they are not adapted and for which
they were not intended. In this case, as in the others, we conclude
that the section of the Criminal Code relied upon, originally
enacted for the protection of the civil rights of the then lately
enfranchised negro, cannot be extended so as to make it an agency
for enforcing a state primary law such as this one of West
Virginia.
The claim that the effect of the Federal Corrupt Practices Act
(June 25, 1910, c. 392, 36 Stat. 822, amended August 19, 1911, c.
33, 37 Stat. 25), recognizing primary elections and limiting the
expenditures of candidates for senator in connection with them is,
in effect, an adoption by Congress of all state primary laws, is
too unsubstantial for discussion, and the like claim that the
temporary measure (Act of June 4, 1914, 38 Stat. 384), enacted by
Congress for the conduct of the nomination and election of Senators
until other provisions should be made by state legislation, cannot
be entertained, because this act was superseded by the West
Virginia primary election law, passed February 20th, 1914,
effective ninety days after its passage.
It results that the judgments of the district court in each of
these cases must be
Affirmed.