# Ex Parte Clarke/Opinion of the Court

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United States Supreme Court
100 U.S. 399
Ex Parte Clarke
This case comes before us on the return to a writ of habeas corpus, issued by order of one of the justice of this court. The petition for a habeas corpus was addressed to the judges of the Supreme Court of the United States by Augustus F. Clarke, who states therein that he is a member of the city council of Cincinnati, and, as such, one of the judges of election of precinct A in said city; in which capacity he acted at the State, congressional, county, and municipal elections held in said city in October, 1878. That on the 24th of October, 1878, he was indicted in the Circuit Court of the United States for the Southern District of Ohio for unlawfully neglecting to perform the duty required of him as such judge of election by the laws of the State of Ohio in regard to said election, in this, that having accepted one of the poll-books of said election, sealed and directed according to law, for the purpose of conveying the same to the clerk of the Court of Common Pleas of Hamilton County, in said State, at his office, he neglected to do so; and, in another count, that he permitted the said poll-books, sealed and directed for the purpose aforesaid, to be broken open before he conveyed the same to said clerk; that a motion to quash said indictment, and a demurrer thereto, having been successively overruled, he pleaded not guilty, and at the February Term, 1879, was tried and found guilty; and having unsuccessfully moved for a new trial, and in arrest of judgment, he was sentenced by said court to be imprisoned in the jail of Hamilton County for twelve months, and to pay a fine of $200 and the cost of prosecution; that in pursuance of said sentence he had been arrested and imprisoned, and is now imprisoned and restrained from his liberty by the marshal of the United States for said district. The petition then asserts that the said Circuit Court had no jurisdiction in the premises, and that its acts were wholly void and his imprisonment unlawful. He, therefore, prays a habeas corpus to the said marshal, and a certiorari to the clerk of said court, if necessary, and that he may be discharged from custody. A certified copy of the indictment, proceedings, and judgment in the Circuit Court is annexed to the petition, from which it appears that the first count charged that the petitioner on the 9th of October, 1878, in the county of Hamilton, in the State of Ohio, being an officer of election at which a representative in Congress was voted for, to wit, a judge of said election at precinct A of the eighth ward of Cincinnati, and being duly appointed such judge of election under the laws of Ohio, did unlawfully neglect to perform a duty required of him by the laws of said State in regard to said election, specifying said neglect, to wit, that he neglected to convey the poll-book to the county clerk, which had been sealed up by the judges and delivered to him for that purpose; contrary to the form of the statute and against the peace and dignity of the United States. The second count charged that the petitioner, as such judge of election, violated a duty required of him by the laws of said State in regard to said election, specifying the violation, namely, that having received the poll-book in the manner and for the purpose aforesaid, he permitted it to be broken open before he conveyed it to the county clerk, contrary to the form of the statute, &c.
It is conceded that this indictment was found under sect. 5515 of the Revised Statutes of the United States, which is in the following words: [This section is set forth in Ex parte Siebold, supra, pp. 371, 381.]
The law of Ohio which the petitioner is charged with violating is as follows:--
'(32.) SECT. XIX. That, after canvassing the votes in the manner aforesaid, the judges, before they disperse, shall put under cover one of the poll-books, seal the same, and direct it to the clerk of the Court of Common Pleas of the county wherein the return is to be made; and the poll-book, thus sealed and directed, shall be conveyed by one of the judges (to be determined by lot if they cannot agree otherwise) to the clerk of the Court of Common Pleas of the county, at his office, within two days from the day of the election; and the other poll-book, where the same is not otherwise disposed of by this act, shall be deposited with the township clerk, or clerk of the election district (as the case may be), within three days from the day of election, there to remain for the use of the persons who may choose to inspect the same.'
On the thirty-first day of July, 1879, the said petition was presented to Mr. Justice Strong, and a writ of habeas corpus was allowed by him, returnable forthwith before himself, at the Catskill Mountain House, in the State of New York. On the 11th of August, 1879, return being made of the body of the petitioner according to the command of the writ, with a copy of the judgment of the Circuit Court, and the warrant of commitment issued thereon, Justice Strong made an order postponing the hearing of the cause into this court, to be heard upon the second Tuesday of October, 1879 (being the first day of the present term), and admitted the petitioner to bail in the sum of $5,000 to abide the rule of the Supreme Court in the premises.
The case was argued at the same time with Ex parte Siebold, supra, p. 371; and most of the questions involved have been considered in that case.
One question, however, has been raised by the counsel for the government which it is necessary to consider. It is objected that this court cannot proceed upon a writ of habeas corpus which was originally presented to a justice of this court, and was postponed and referred by him to the court for its determination.
We have considered this point with some care, inasmuch as in Kaine's Case, reported in 14 How. 103, the court held that it could not act upon a writ thus referred to it by Mr. Justice Nelson. But the ground taken there was, that the writ had been issued by him in virtue of his original jurisdiction; though the court was of opinion that it could issue a new writ upon the papers before it in virtue of its own appellate jurisdiction, and would do so if the case required it; but being of opinion that there was no case on the merits the application was discharged. But in this case, however it may have been in that, it is clear that the writ, whether acted upon by the justice who issued it, or by this court, would in fact require a revision of the action of the Circuit Court by which the petitioner was committed, and such revision would necessarily be appellate in its character. This appellate character of the proceeding attaches to a large portion of cases on habeas corpus, whether issued by a single judge or by a court. The presence of this feature in the case was no objection to the issue of the writ by the associate justice, and is essential to the jurisdiction of this court. The justice who issued it could undoubtedly have disposed of the case himself, though not, at the time, within his own circuit. A justice of this court can exercise the power of issuing the writ of habeas corpus in any part of the United States where he happens to be. But as the case is one of which this court also has jurisdiction, if the justice who issued the writ found the questions involved to be of great moment and difficulty, and could postpone the case here for consideration of the whole court without injury to the petitioner, we see no good reason why he should not have taken this course, as he did. It had merely the effect of making the application for a discharge one addressed to the court, instead of one addressed to a single justice. This has always been the practice of English judges in cases of great consequence and difficulty, and we do not see why it may not be done here. Under the Habeas Corpus Act, indeed, it was the regular course to take bail and recognize the party to appear in the King's Bench or assizes; though the judge would discharge absolutely if the case was clearly one of illegal imprisonment. Hab. Corp. Act, sect. 3; Com. Dig., Hab. Corp. F.; Bac. Abr., Hab. Corp. B. 13; 1 Chitty, Gen. Pr. 685-688. Of course, under our system, no justice will needlessly refer a case to the court when he can decide it satisfactorily to himself, and will not do so in any case in which injury will be thereby incurred by the petitioner. No injury can be complained of in this case, since the petitioner was allowed to go at large on reasonable bail.
As to the merits of the case, there can be no serious question that the indictment charges an offence specified in the act of Congress. Rev. Stat., sect. 5515. Any defect of form in making the charge would be at most an error, of which this court could not take cognizance on habeas corpus. The principal question is, whether Congress had constitutional power to enact a law for punishing a State officer of election for the violation of his duty under a State statute in reference to an election of a representative to Congress. As this question has been fully considered in the previous case, it is unnecessary to add any thing further on the subject. Our opinion is, that Congress had constitutional power to enact the law; and that the cause of commitment was lawful and sufficient.
The petitioner, therefore, must be remanded to the custody of the marshal for the Southern District of Ohio; and it is
So ordered.
MR. JUSTICE FIELD, with whom concurred MR. JUSTICE CLIFFORD, dissenting.

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