The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-03-28

the act are beyond that limit they are unauthorized
The third section does not in express terms limit the
offence OF inspector OF elections, for which the pun
ishment IL provided TO wrongful discrimination on
of race &c This is conceded, but IL Is urged
that when this section Is construed with those whch
precede H. and 10 which, as Is claimed, II refers II
Is so limited. The argument Is that The only
wrongful act on tho part OF the oihcer, whose
duty 1t rs to receive or permit tue re-
quiste qualification. which can dispense with
actual qualification under State laws and substitute
the prescribed affidavit therefor, IS that mentioned
and prohibited in section 10 vii, discrimination on
account OF race. &c, and that consequently section
Is confined IN lis operation TO the same wrongful dis
crmination This - penal statute, aud must be con-
strued strictly, rot strictly indeed MS 10 defeat the
clear intention o. Congress but the words employed
must be Understood IN the sense they were obviously
used United states vs. wiltberger, Wheat. S5l.
is apparent that it not the Intention of
Congress thus 10 limit the operation OF the act we can
not give u that elect The statute eontemplates
most important change IN the election laws Previous
TO It's adoption the States general rule regulated in
their own way all the details Of all elections they
prescribed the qualifications Of voters and the manner
In which those offering 10 vote at an election should
make known their qualifications to the officers IN
charge This intcrferes with this practice and
prescrbes rules not provided by the laws OF the States
1t substitutes under certain circumstances perform
ance wrongluy prevented Tor the performance ITSELF
II the elector makes and presents his affidavit in the
form and to the effect prescribed the inspectors arc
TO treat this the equivalent OF the specified require
ment OF the State law. This is
RADICAL CHANGE
in the practice and the statute which creates 1t should
be explicit in It's terms. Nothing should be LETT TO
construction II It can he avoided The law ought not
TO be in such condition that the eector may act
idea of its meaning and the inspector upon
another. The elector under the provisions Of the
statute only required TO state IN his affidavit that he
qualifying. There words OF limitation in this
part of the section In case like this, II an affidavit
Is IN the language OF the statute II ought TO DO sut
cient both Tor the voter aud tor the Inspector Laws
which prohibit the doing of things aud provide pun
ishnent for their violation should have double
meaning. citizen should unnecessarily be placed
penal statute he may be subjected TO prosecution for
false oath and an inspector OF elections should not
be put In jeopardy because he with equal honesty
tertains an opposite opinion.
II this statute limits the wrongful actwhich will JUS
THY the affidavit 10 discrimination on account OF race
&c, then citizen who makes an affidavit that he has
been wronguly prevented by the officer which is true
in the ordinary of that term subjects himself
indictment and trial. if not to conviction, because is
not that he has been prevented by such wrong
full act as the statute contemplated and If there
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 tho
inspector who rejects the vote because he the
law in its limited sense, and thinks 1t is confined
wrongful dis. rminaton account OF race &c, sub
iccts himself to prosecution # not to punishment be-
cause he has misconstrued the law. Penal statutes
ought not TO be expressed in language so uncertain.
II the Legislature undertakes TO define by statute
offence and provide for its punishment IL should
express its will IN language that need not
deceive the common mind Every man should be able
TO know with certainty when nc is committing a
crime, but when 90 beyond the third section and
read the fourth, we find there
LIMITATION OR REFERENCE
that can be construed manifestng any inten.
tion to conlne its provisions TO the terms OF the mr.
teenth amendment That section has Tor object the
punishment OF all persons who by force bribery &c,
hinder, delay &c, any person from qualifying or
voting In view of all these facts feel compelled to
say that in our opinion the language OF the third and
fourth not conne their operation I'M
lawful discrimination on account OF race &c. If Con
eress had the power to provide generally Tor the
punishment OF those who unawfully Interfere pre-
the exercise OF the elective franchise without re-
gard TO such discrimination, the language OF these
sections would be broad enou. h for that purpose
II remains now to consider whether statute
general this in its provisions be made available
the punishment OF those who may be guilty OF unlawful
discrimination against citizens Of the United States
while exercising the elective franchise account OF
their race &c. There Is no attempt in the sections
now under consideration TO provide specifically Tor
such offence Ii the is provided for all it
because under the general prohibition against
any wrongful act or unlawful obstruction in tins mar
tcular We are, therefore, directly called upon to do.
eide whether penal statute enacted by Congress,
with ITS limited powers, which provides in
ful acts without well within the
constitutional jurisdiction, be limited by judicial
which Congress may rehtiully prohibit and punish.
For this purpose must take these sections OF the
statute as they are.
We not aih TO reject part which is unconstitu-
tona and retain the remainder because posi-
BILE separate that which is unconstitutional II there
be any such, Som that which is not The proposed
effect not to be attained by striking out disregard
ing words that are in the section but by inserting
those that there. Each of
the sections must stand a whole, or
fall altogether. The language is plain
There Is no for construction unless IL be as 10
the effect OF the constitution The question then be
determined is whether can introduce words of Inn
taton INTO a penal statute 10 make 1t specific.
when, as expressed, II is general only. II would GER
tainly be dangerous II the Legislature could net
large enough TO catch all possible offenders ind leave
II to the courts to step in and say who could be right
fully detained and who should be set at large This
would extent substitute the judicial for the
legislative department OF the government. The
enforce when
il within constitutional grant of power. Within its
legitimate sphere Congress Is supreme and beyond the
control OF the courts but II IL steps Of It's
constitutional limitations and attempts that which Is
beyond its reach. the courts authorized TO- and
when called upon, in due course OF legal proceedings
must annul its encroachments upon the reserved
power OF States and the people. TO limit this
IN the manner now asked for would be to make
law, not to enforce Old This is
part of our duty; we must, therefore, decide that
Congress has not, as yet, provided by appropriate
legislation for the punishment Of the offence charged
in the Indictment and that the Circuit Court properly
sustained the dcmurrers and judgment for the de-
PENDANTS.
This makes 1t unnecessary TO any of the
other questions certhed, since the law which gives
the presiding judge the casting vote IN cases OF
division, and authorizes judgment in accordance
with ms opinion REV. Stat, ESQ., II we find
that the judgment rendered is correct need not
do more than Affirm II, however, we reverse all
questions certified, which may be considered in tho
final determination OF the case, according TO the
opinion express, should be answered. The judg
ment of the Circuit Court Is affirmed.
Disscnting-Mr Justice Hunt
Mr. Justice clifford diissented from the opinion but
concurrcd IN the judgment