Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1876-03-28

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| Law ought not to be In such 3 condition
| that the eleetor may act on one ides
| Of its meaning and the inspector on an
other. The e1ectoT, under the provisions
| Of the statute, IL only required to statS
| in his affidavit thst he has been wrong
fully prevented by the officer from quail
| flying; there are no words Of Limitation
in this part of the section. Ia case
| like this, If an affidavit is in the Ian.
gusge Of the statute, it ought to be suf
ficient both fer the voter and the in
spectOr. laws which prohibit the doing
Of things, and provide q punish
ment for their violation, should
have no double meaning, A citizen
should not unnecessarily be placed
where, by an honest error in the CON.
struetion of penal statute, he may be
subj .cted to prosecution for false oath
and an inspector Of elections should not
be put in jeopardy because he, with
equsl honesty, eutertairs an opposite
opinion. II this statute limmits the
wrongful act which will justify the sff1A
davit to discrimination on account of
race and color then citizen who makes
sn affidavit that he has been wrongful
ly prevented by officers, which is trtie III
the ordinary sense OF that term, subjects
himself to Indictment and trial, if not to
conviction, bscsuse it is not true that
he had been prevented by such an
wrongful act as the statute contempla =
ed, and if there is no such limitation,
but any wrongful act Of exclusion will
Justify the affidavit and give the right
to vote without the actual Performance
Of the prerequisite, then the inspector
who rejects the vote because he reads
the law in its limited sense, and thinks
it is confined to wrongful discrimina-
ton on account Of race, ETC., subjects
himself to prosecution, il not to punish
ment, because he has misconstTued the
law. When we go beyond the third
section ard read the fourth, we
find there no words of linn
itation, or reference even, that
can be construed as manifesting
any intention to cOnfine its provisions to
the terms of the fifteenth amendment.
That sncticn has for its object the pun
ishment OF all persons who, by force,
bribery, ETC., hinder, delay, etc., any
person from qualifying or voting. In
view Of all these facts, We feel compelled
to say that, in our opinion, the language
Of the third and fourth sections does not
coniine their operation to unlawful dis
crimiuations on account Of race
and color. II congress had
the power TO provide generally
for the punishment OF those who un-
lawfully interfere to prevent the exer-
else of the elective franchise without re-
gard to such discrimination, the Ian
guage Of these sections would be broad
enough for that purpose; 1t remains now
to consider whether statute so general
as this in its provisions can he made
available for the punishment Of those
who may be guilty Of unlawful diserim-
inatlon against citizens Of the United
States while exercising the elective
franchise on account of their race, etc.
There is no attempt in the sections
now under consideration to provide
specifically for such an Offense.
If the case is provided for at all,
it is because it comes under the general
prohibition against any wrongful act or
obstruction. In this particular we are,
therefore, directly called upon to decide,
whether penal statute created by con-
gTess, with its united powers, which
provides in general language, broad
enough to cover wrongful acts without
as well as within the constitutional juTis-
diction, can be limited by judicial con-
slruction so as to make it operate only
on that which congress may rightfully
prohibit and punish. For this purpose
we must take these sections of the stat
ute as they are. We are not able to re-
ject part which sunco1stitutional and
retain the remainder, because it is not
possible to separate that which is
unconstitutional, If there be any such,
from that which is not. The proposed ef-
feet is not to be attained by striking out
or disregarding words that are in the
section, but by inserting those that are
not now there. Each of the sections
must stand as q whole, or fa'l together.
the language is plain, and there is no
room for the construction, unless it be
ss to the effect of the constitution. The
question, then, to be determined is
whether we can introduce words Of linn
itation into penal statute go as to make
it specific, when, as expressed, it is gen.
eral only. It would certainly be danger
Gus if the legislature could set 8 net large
enough to catch all possible offenders,
and leave it to the courts to step inside
and say who could be rigb;fully detained
and who should be set at large. This
would to some extent substitute the judi
cial for the legislative department of the
government. The courts enforce the
legislative will when Rscertained, if
within the constitutional grant Of power.
In its legitimate sphere congress is su-
preme and beyond control Of the courts,
but if it steps outside Of its constitutional
Limitation and attempts that which is
beyond its Teach, the courts are author
lied to, and when called on in due
course Of legal proceedings must,
annul lis encroachmeDts. The reserved
power of the States and people to limit
this statute, in the manner now asked
for, would be to make q new law
not enforce an old one. This is no part of
our dnty. We must decide that congress
has not, as yet, provided by appropriate
legislation for the punishment of the
Offense charged in the indictment, and
the circuit court properly sustained
the demurers, and gave judgment
for the defendants. This makes
it unnecessary to answer any
of the other questions certified,
since the law gives the presiding
judge the casting vote in CAGES of divi-
sion; and authorizes judgment in ac-
cordance with his opinion. Revenue
statute, section $50. If we fad that
the judgment rendered is correct, we
need not do more than affirm it, II,
however, we reverse If, all questions GER
titled, which may be considered in the
final determination of the case, accord-
ing to the option we express, should be
answered. The Judgment of the ciacuit
court is affirmed. Dissenting, Mr.. JUS
tice Hunt. Mr. Justice Clifford dissent
ed from the opinion, but concurred in
the judgment.
French Politics.
PARIS, March ga discussion in the