The sun. [volume] (New York [N.Y.]) 1833-1916, 1876-09-27
THE ENFORCEMENT ACT.
A corr OF the DECISION DECLAR-
ING 1T NULL AND VOID.
The Piftcenth Amendment Does Not COufer
the Right Of SunraEc-It merely Prevents
Elective Franchi,e Preference to Que Cit-
lieu Of the Untt,d states over Another.

Opn on OF the court.
This case comes here bv reason OF division
OF opinion between the Judges OF tbs Circuit
Court 10 the District Of Kentucky. 1t presents
an indictment cont lining four counts under
sections 8 and OF the act Of May 81, 1879 90
Stat, 14O), against two Of the inspectors OF
municipL election in the STATE Of Kentucky,
for refusing to receive and count at such cleo
tion the vote OF William Garner, citizen Of the
United states of African descent. All the qies-
lions presented by the cerudcatc OF division
arose upon general demuusrs to the several
rounts OF the Indictment.
In tnis court tho United States ab ndon the
srst and third counts. and expressly waive the
consideration OF all claims not arising out Of
The enforcement OF the Fifteenth Amendment
Of the Constitution.
After this concession, the principal question
oft for consideration Is, whether tho act under
which the indictment Is found can oe made ef-
loo i've for the punishment OF inspectors OF
elections who refuse to receive an d count the
sotas of citizens OF he United states. having
ali the qu ,iucations OF voters because OF their
face, color, or previous condition OF serVltude.
II Congress mas not declared an acc cone
within q State to be a crime against the United
States, the courts nave 10 power 70 TcAt u as
tucn. United states agt. Hudson Cranch. 81
IL ts not claimed That there Is ny statute wnicn
can reach this case, unless IL be the ono In
Looking, then, 10 this statute. We ind that its
nrst section provides that all citizens OF the
quaiined bv law To vote at spy election, sc,
small be emitted aud allowed To vote thereat.
without distinction OF race. Color. or previous
condition OF serviuIe, sny Con utuuon' &c.
Of tue STATE TO the contrary notwitistandlng'
THIS simply declares right Without proviGlug
spunishmeut for Its violation
The second section proudes for the punish
ment OF any omcvr charged Win tho duty u
furnishing TO citizens All opportunity to perform
sDy act winch by the Constitution OF laws OF any
btste is made prer, quis,ts or qualification OF
voting, VINO shall omit to give ali citizens of the
United states he sane and equal opportunity
10 perform sucn prerequisite ana become
oushhed on account OF 'ns race, color, OF pre-
ylous condition Of seryitude OF the applicant
THIS does not app y To or inclade he inspectors
oil an electiOnw only duty IL Is to receive an
sount the votes VI citizens oesignated Uv law as
voters. who have already become qualified 10
The third section Is to the effect that when
syer by or under the Constitution or laws oi any
State, &C.. any act Is or snail be required 10 be
aoue oy any citizen as a prer.quislts to qu INV
or entitle bim to vote, the Onsr OF such citizen
W perform the act required to bs done, - IS
iforesaid, shall. II Il lel 90 be carried into eI
scutioD by re ,son Of the wrongful act or Oml.-
with the duty OF receiving or permitting such
Performance or oner to perform. or actine tuere-
on, be deemed a Il neld = performance In law
OF such act; aud the person 80 Offering ana tall
Ing as Aforesaid and being otherwise gu .ilns d.,
snail TO emitted to vote IN the same manner ami
TO the same extent as II he nad Ia TACT per
formed sucn act; and auy judge, luspe ctor. or
other officer Of election, whose duty 1t Is to re-
bucn ci,izeD, VINO shall wrougfuliy refuse or
omit to receive, count, &C., the Of suc.l cit
VT sitting such offer. sud tuo time anu place
tnereuf, and Tue name Oh tue person or oicer
was wTougfuliy prevented 10y sucu person or Of
bcer from performing sdch act shall Tor every
bucn Ohehce forfeit and pay. &c.
Tue fourth section provides for the punish
nent Of any person who shall by force, OIibery,
threats, Intimidation, or otter ami ~fuI means.
binder, delay. &c., or snaIi commune with others
W hinder, delay, prevent OF oostruct any citizen
from uoiug any act Iequirsd to be done ~ QuGi-
ny him to vote or FROM voting al any cleo ion.
the second count IN the Indictment 10 Uased
npon the fourth section Of this act, aud Inc
iourth upon the thi section.
Rights aud lmmunties created by or depend
pDt u on toe Constitution OF tue United states
ban be protected ny Congress. Inc form aud
the manner Of the protection may be such as
Congress. In the Legitimate exercise Of It's legs-
huve DISC, elton. snail provide. hese may be
Varied To meet tue necessities Of the particular
ngnttn De protected.
The Fifteenth Amendment does not confer
The right Of suffrage upon auy one. II prevents
The States or tue United Sta,es, however, ON
tiving preference IN ths particul r To Que CHI
sen of the United states over another, ON &C
pount OF race color, OF previous condition Of
bervtude. Before It's ad 'puOn this could ne
lone. IL was as mucn wituin the power OF 4
State to exclude citizens VI Tue United States
LOm voting ON acc cunt OF race, 81, As IL Was on
IccOunt OF age, property. ore ucatiOn. Now II
h not. III citizens Of one race having certain
aualncauons are permitted by Nv TO vote,
inose OF another having ths same quahuc atoms
must De. Previous TO this hulenument there
was no constitutional suaan,ee ax.inst TINS
DETERMINATIONS. Now thofe Is. IL follows tbat
Inc amendment has inSes.ed tue citizens OF the
United states with new constitutional right
gress. That IRnt Is exemption from dlscTltnl
patton Ia the exercise Of the elective franchise
on account OF r.ce, color, or previous Gonoi.Ou
OF servitude. luis, under .ne exJress provisions
OF the secund section OF tue amsnImrut, Con
Gress may enforce oy appropriate legislation
Inns leads US to inquire wuetner the 81 CT nov
unuer confederation Is " appropriate LEGISLATION
for that purpose. Ihe power oi Congress 10
tegi-iate NJ oil upon the subject OF Young Il
State elections rests upon tnis ansndu' ent
The effect of article L., section 4. Of tue Consti-
sutton IN respect 10 elections lVr senators aud
Representatives. Is not nov Under consideration
Il has not been coutenued. uUr eau II Ue, tnat
tine anlendnent conIers au.hOrit, TO impOs,
penalties Tor every wrong uI rrIus i TO receive
the vote OF iallned elcetor al ota ell etlohs
IL Ii Only when Tue "ronRlul ielus l dt such az
election Is because OF race, color. ar previous
Tore anu pIuNluo loi q pdhl hmeut, H. tnerc
fore, the thlrd aud iourih sections VI The act are
beyon tnat limit. tney are uOaItnor zed.
The third section does not Ia exprcss terms
bmit the Onouce Vi al inspe tor ~ elections
for wuieh lhe punishment is y. divided, 10
wrongful Discrimination ON account race
10. LUIS Is cuuctGedi Out II 10 urged that wueL
Inns section Is cOnstided wtth those wnicn pie
reue II, and 70 wnlcn, as ls Claimed, II refers, II
M 50 limited. Tue argument Is tbat the o.l,
wronsiul act On tie p,rt VI the Onicer VII 81
duty IL Is 10 receive or permit tue requIsit,
Qualification, whIcu can uispense with actua
qualin, alton under the sta.e Laws, and suUsd
tuIe the tresCuUrd affidavit therefor, Is tnaI
mentioned aud rVhiuited N svctIOn =, t. vii
dlscrIninatlon IN account VI race, &c, and tna
zion " the same wrongful discrimination.
AUS Is a penal stat1tr, anu u'.ss Dc construed
stnctly: DOt no stTlctl, indeed, as IL deteat tnt
clear intention Oi Congress, out the wuidr EN-
pio, cd must be undeis.ood IN me sense inc,
were obviously used. ~. 5. ". MitD-rger,
Wheat. 49, II, taking the whole statute 10
EeLheT, ~ 10 apparent That Il was not tue Inte "a
hon Ot Congress thus 10 hmlt the operation VI
kne act, we Cannot give II t.at effect.
no SIT .te concentrates lnOst important
change III the election laws. Previous 10 II;
AGO. non, tue States, ~ general ruio resu ate,
ln lnelr own way all the details ~ all siecliuns
1hev presented the gu .hncatinns 81 voters aut
khs manDur IN winch tnOse Offering ~ vote at -
election sbuuid make known tnclr guam, Atom
~ tue Utficeis IN rhd, We. his ct lat, ffure
with lhis pT.Ctice, aud prescriUes rules not pro
viosu ny tue laws Of tue nlates. IL suOsL.tu .es
under Certain crcuInstances, per.VrnahC,
wrOngfuIy prevented for prrIOruanee ltseli
IL the eieotor uAkes anL presents has eIldaV
ln the lOtm anu 10 the eject LrrscriOoI, tn'
inspectors aio 10 tfeai TINS as tnr equivalent VI
the BpeclhoJ requirement. OF the Sta.e law. nm
n n rduIcal CHANGE IA the pTaCLcr, aud III,
statute NBicn creates / should 10 explicit III ~
teruIs Noticing should DC lett ~ construction 4
20 u be aVOiueu. me law OuRnt not To be n
BuCn a Condi.iOh that tue tlectUr may act upon
one idea VI lie meaning anu Lus Inspector upon
AnOLne
4 he elootor, under the PROVISIONS OF the stat
ute, n oh r,qulrtO 10 state Va MS AFFIDAVIT tnal
be h"H beeu ~iUng, uliy preNen cd b, tne OH gel
H"m quhlliuH. lhsis are no words Ol liIn,td-
Ion IA t"ls oar ai tue section. Ia Case IKE
I'M, ~ ah nld VI, Is ~ tue language Of TIE