Section 19 of the Criminal Code, § 5508 Rev.Stat., punishing
conspiracy to injure, oppress, or intimidate any citizen in the
full exercise or enjoyment of any right or privilege secured by the
Constitution or laws of the United States, is constitutional and
constitutionally extends protection to the right to vote for
members of Congress and to have the vote, when case, counted.
While § 19 of the Criminal Code, when originally enacted, was §
6 of the Enforcement Act, and Congress then had in mind the doings
of the Ku Klux and the like against negroes, the statute dealt at
the time with all federal rights of all citizens, and protected
them all, and still continues so to do.
Section 19, Criminal Code, applies to the acts of two or more
election officers who conspire to injure and oppress qualified
voters of the district in the exercise of their right to vote for
members of Congress by omitting the votes cast from the count and
the return to the state election board.
The facts, which involve the construction and application of §
5508, Rev.Stat., and § 19 of the Penal Code, are stated in the
opinion.
Page 238 U. S. 385
MR. JUSTICE HOLMES delivered the opinion of the court:
This is an indictment under § 19 of the Criminal Code, act of
March 4, 1909, c. 321, 35 Stat. 1088, 1092. It was demurred to and
the demurrer was sustained by the district court on the ground that
the section did not apply to the acts alleged. As the judgment on
the face of it turned upon the construction of the statute, the
United States brought the case to this court.
The indictment contains four counts. The first charges a
conspiracy of the two defendants, who were officers and a majority
of the county election board of Blaine county, Oklahoma, to injure
and oppress certain legally qualified electors of the United
States, being all the voters of eleven precincts in the county, in
the free exercise and enjoyment of their right and privilege, under
the Constitution and laws of the United States, of voting for a
member of Congress for their district. To that end, it is alleged,
the defendants agreed that, irrespective of the precinct returns
being lawful and regular, they would omit them from their count and
from their returns to the state election board. The second count
charges the same conspiracy, a secret meeting of the defendants
without the knowledge of the third member of their board, for the
purpose of carrying it out, and the overt act of making a false
return, as agreed, omitting the returns from the named precincts,
although regular and entitled to be counted. The third count is
like the first, with the addition of some details of the plan,
intended to deceive the third member of their board. The
Page 238 U. S. 386
fourth charges the same conspiracy, but states the object as
being to injure and oppress the same citizens for and on account of
their having exercised the right described.
The section is as follows:
"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 him by the Constitution or laws of
the United States, or because of his having so exercised the same,
or if two or more persons go in disguise on the highway, or on the
premises of another, with intent to prevent or hinder his free
exercise or enjoyment of any right or privilege so secured, 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 and laws of the United States."
It is not open to question that this statute is constitutional,
and constitutionally extends some protection, at least, to the
right to vote for members of Congress.
Ex parte Yarbrough,
110 U. S. 651;
Logan v. United States, 144 U. S. 263,
144 U. S. 293.
We regard it as equally unquestionable that the right to have one's
vote counted is as open to protection by Congress as the right to
put a ballot in a box.
The only matter that needs argument is that upon which the
district court expressed its view -- whether, properly construed,
the statute purports to deal with such conduct as that of the
defendants, assuming that there is no lack of power if such be its
intent. Manifestly the words are broad enough to cover the case,
but the argument that they have a different scope is drawn from the
fact that originally this section was part of the enforcement act
of May 31, 1870, c. 114, § 6, 16 Stat. 141 (later, Rev.Stat. §
5508), and that by an earlier section of the same statute, § 4
(later, Rev.Stat. § 5506), every person who, by any unlawful means,
hindered or combined with others to hinder any citizen from voting
at any election
Page 238 U. S. 387
in any state, etc., was subjected to a much milder penalty than
that under § 6. It may be thought that the act of 1870 cannot have
meant to deal a second time and in a much severer way in § 6 with
what it had disposed of a few sentences before. The other sections
have been repealed, but § 19, it may be said, must mean what it
meant in 1870 when the enforcement act was passed, and what it did
mean will be seen more clearly from its original words.
In its original form, the section began:
"If two or more persons shall band or conspire together or go in
disguise upon the public highway, or upon the premises of another,
with intent to violate any provision of this act, or to injure,
oppress,"
etc. The source of this section in the doings of the Ku Klux and
the like is obvious, and acts of violence obviously were in the
mind of Congress. Naturally, Congress put forth all its powers. But
this section dealt with Federal rights, and with all Federal
rights, and protected them in the lump, whereas § 4, Rev.Stat. §
5506, dealt only with elections, and although it dealt with them
generally, and might be held to cover elections of Federal
officers, it extended to all elections. It referred to conspiracies
only as incident to its main purpose of punishing any obstruction
to voting at any election in any state. The power was doubtful, and
soon was held to have been exceeded.
United States v.
Reese, 92 U. S. 214.
See Logan v. United States, 144 U.
S. 263. The subject was not one that called for the most
striking exercise of such power as might exist. Any overlapping
that there may have been well might have escaped attention, or, if
noticed, have been approved, when we consider what must have been
the respective emphasis in the mind to Congress when the two
sections were passed.
But § 6 being devoted, as we have said, to the protection of all
Federal rights from conspiracies against them, naturally did not
confine itself to conspiracies contemplating
Page 238 U. S. 388
violence, although, under the influence of the conditions then
existing, it put that class in the front. Just as the Fourteenth
Amendment, to use the happy analogy suggested by the Solicitor
General, was adopted with a view to the protection of the colored
race, but has been found to be equally important in its application
to the rights of all, § 6 had a general scope and used general
words that have become the most important now that the Ku Klux have
passed away. The change of emphasis is shown by the wording already
transposed in Rev.Stat. § 5508, and now in § 19. The clause as to
going in disguise upon the highway has dropped into a subordinate
place, and, even there, has a somewhat anomalous sound. The section
now begins with sweeping general words. Those words always were in
the act, and the present form gives them a congressional
interpretation. Even if that interpretation would not have been
held correct in an indictment under § 6, which we are far from
intimating, and if we cannot interpret the past by the present, we
cannot allow the past so far to affect the present as to deprive
citizens of the United States of the general protection which, on
its face, § 19 most reasonably affords.
Judgment reversed.
MR. JUSTICE McREYNOLDS did not sit in this case.
MR. JUSTICE LAMAR, dissenting:
I dissent from the judgment that the state election officers are
subject to indictment in Federal courts for wrongfully refusing to
receive and count election returns.
In this case, the indictment charges a violation of Rev.Stat. §
5508 (Penal Code, § 19), which makes it an offense to "conspire to
injure, oppress, threaten or intimidate any citizen in the free
exercise or enjoyment of any right or privilege secured to him by
the Constitution or laws of
Page 238 U. S. 389
the United States." And the indictment charges that these two
defendants, "
being then and there members of the county
election board of Blaine county, Oklahoma," did conspire to
deprive certain unnamed voters of such right, and, in pursuance of
that conspiracy, threw out the returns from several election
precincts.
The section under which the indictment is brought was originally
a part of the act of 1870, appearing as § 5508
* in chapter 7 of
the Revised Statutes, headed, "Crimes against the Elective
Franchise and Civil Rights of Citizens." The act and the chapter
contained many sections -- ten of them (§§ 5506, 5511-5515,
5520-5523) related to offenses by persons or officers against the
elective franchise -- to crimes by the voter, and against the
voter, and specifically to offenses by registrars, deputy marshals,
supervisors, and "every officer of an election." Taken together, it
is perfectly evident that, in them, Congress intended to legislate
comprehensively and exhaustively on the subject of "crimes against
the franchise." Under one or the other of them, these defendants
would have been subject to indictment, but for the fact that all of
those ten sections were explicitly and expressly repealed by the
Act of February 8, 1894 (28 Stat. 36).
Those ten election sections having been repealed, it is now
sought to indict these officers under § 5508, which
Page 238 U. S. 390
was not repealed. This is said to be justified on the ground
that, in the original act, there was such an overlapping and
doubling of offenses that even when those relating to election
officers were repealed, a right to prosecute them for conspiracy
was retained in § 5508. But this assumes that there was an
overlapping when, in fact, the subjects of "
crimes against the
elective franchise" and "
crimes against civil rights"
were treated as separate and distinct. The chapter heading
(Rev.Stat. §§ 5506-5523) indicates the difference; and though the
two subjects were dealt with in the same act, they were
nevertheless treated as distinct. The sections of the original act
ran parallel to each other, but were separated from each other; and
when all those dealing with offenses by election officers were
repealed, the legislative content of those sections was not poured
into § 5508.
The act of 1870 imposing punishment upon election officers who
were agents of the state was passed in pursuance of the provisions
of the Amendment which related to state action, and thus authorized
Congress to provide for the punishment of state officers by Federal
courts, which, prior to that time, could not have been done. The
Congressional will on that subject was fully and completely
expressed in those parts of the statute which were afterwards
repealed. Congress, having dealt so explicitly with offenses by
state election officers in the ten repealed sections, cannot be
supposed to have referred to them indirectly in § 5508, which does
not mention voters, or elections, or election officers, but deals
with the deprivation of civil rights of a different nature.
As will appear by the report of the committee (House Report No.
18, 53d Cong., 1st session) and debates in the House and Senate
during the discussion of the repealing act of 1894, Congress took
the view that, as elections were held under state laws, by state
officers who were subject to punishment by the state for a
violation of the election
Page 238 U. S. 391
laws, they should not be subject to indictment in the United
States courts. The express and avowed intent was to repeal all
statutes which gave federal courts jurisdiction over elections and
over offenses committed by election officers. And to hold that
while a single election officer is now immune from prosecution, two
or more can be indicted under § 5508, gives an enlarged operation
to the theory that an act, not in itself criminal, may be punished
if committed by more than one. Such construction also injects §
5508 into a field from which it was excluded when passed in 1870,
and into which it cannot now be forced by implication. For under
Penal Code (§ 339) § 5508 means now exactly what it did when it was
originally enacted.
To reverse the judgment of the lower court quashing this
indictment means, in effect, that Congress failed in its avowed
purpose to repeal all statutes relating to crimes against the
franchise. To hold that, by virtue of § 5508 as a conspiracy
statute, all of these repealed election offenses are retained when
committed by two or more officers will also lead to the conclusion
that, in 1870, Congress, in the very same statute, had included two
sections, both of which related to the same conspiracy and to the
same overt act, but which might be punished differently. For, if
the district attorney had indicted under § 5506 for "combining and
confederating to prevent a qualified citizen from voting," the two
defendants might have been punished by a fine of $500 and
imprisonment for twelve months; while, if the indictment for the
very same conduct had been based on § 5508, for "conspiring to
deprive the citizen of a right under the United States law," the
punishment might be a fine of $5,000, imprisonment for ten years
and the loss of the right to hold office under the laws of the
United States. Congress certainly never intended in the same breath
to make the same act punishable under two different sections in
different ways at the option of the prosecuting attorney.
Page 238 U. S. 392
Similar anomalies could be pointed out if § 5508 is to be
construed as so all-embracing as to include acts by two in
violation of the ten election sections which have been
repealed.
Rev.Stat. § 5508 is highly penal, and is to be strictly
construed. And that ordinary rule is especially applicable when a
statute is sought to be enforced against election officers for the
relation between the states and the Federal government is such that
the power of the United States courts to punish state officers for
wrongs committed by them as officers should be clearly and
expressly defined by Congress, and not left to implication --
especially so when Congress has given such an explicit expression
of its intent that election officers should not be punished in the
Federal courts.
The Fifteenth Amendment is self-executing in striking the word
"white" from all laws granting the right of suffrage. It was not so
far self-executing as to define crimes against the franchise, or to
impose punishments for wrongs against a voter. The Amendment
provided that Congress should have power to enforce its provisions
by appropriate legislation. Congress did so legislate in 1870. In
1894, it expressly repealed the legislation relating to elections.
Since that time, no subsequent Congress has restored that
legislation or anything like it to the statute books. If this be a
hiatus in the law (
James v. Bowman, 190 U.
S. 127,
190 U. S. 139)
it cannot be supplied through the operation of a conspiracy statute
(§ 5508) which did not contemplate furtive and fraudulent conduct,
or a wrong to the public, or to the voters of an entire precinct,
or to wrongs like those here charged. It related to conspiracies
to injure, oppress, threaten, intimidate -- to violence,
oppression, injury, intimidation; to force on the premises, force
on the highway. The nearest approach to a prosecution for an
election offense under § 5508 is the
Yarbrough case,
110 U. S. 656.
But he was not an election officer, and
Page 238 U. S. 393
"the beating and wounding" there charged took place on the
"highway" remote from the precinct. That form of intimidation and
violence was in express terms dealt with in § 5508, and in none of
the repealed sections.
Rev.Stat. § 5508 has been in force for forty-five years. During
those forty-five years, no prosecution has ever been instituted
under it against a state election officer. That nonaction but
confirms the correctness of the construction that it was never
intended to apply to offenses by state election officers. On the
general subject,
see: James v. Bowman, 190 U.
S. 127;
Giles v. Teasley, 193
U. S. 149;
Hodges v. United States,
203 U. S. 1;
Green v. Mills, 69 Fed. 863;
United States v.
Harris, 106 U. S. 629;
United States v. Cruikshank, 92 U.
S. 558;
Swafford v. Templeton,;
In re
Coy, 127 U. S. 731;
Wiley v. Sinkler, 179 U. S. 58,
179 U. S. 66-67;
Karem v. United States, 121 Fed. 250, 258(2), 259;
Seeley v. Knox, 2 Woods (C.C.);
Reese v. United
States, 92 U. S. 214;
Holt v. Indiana Mfg. Co., 176 U. S.
68,
176 U. S. 72-73;
Baldwin v. Franks, 120 U. S. 690;
United States v. Waddell, 112 U. S.
76.
*
"Sec. 5508. If two or more persons conspire to injure, oppress,
threaten or intimidate any citizen in the free exercise or
enjoyment of any right or privilege secured to him by the
Constitution or laws of the United States or because of his having
so exercised the same; or if two or more persons go in disguise on
the highway, or on the premises of another, with intent to prevent
or hinder his free exercise or enjoyment of any right or privilege
so secured, 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."
16 Stat. 141, c. 114, § 6, Comp. Stat. 1913, § 10183.