The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-02-29

Section 551I. They announced that thsy wero
willing to risk this case SO far an that rule was
concerned upon tho language Of Chief-lustice
Marshall Wiltberger. 5th Wheaton. That
case is not unfamiliar TO had occasion to
refer to IT on the former hearing And II seems
70 me that counsel did not quote the whole Of
that opinion when 4 they say CHIEF justice
Marshall, of the Supreme Court Of the United
States says that penal laws to be construed
strictly. That IL not all Chief justice Marshall
said that though penal laws are to be construed
strictly. they are not TO be construed 90
strictly 90 defeat the obvious inteEtlon OF the
Legislature The maxim is not to be so applied
az TO narrow the words of the statute TO the
cluson of cases which those words, In
their ordinary acceptation in that sense
in which tho Legislature has obviously used
them, would comprehend" So in the case OF
the United States VI. Meyers. one OF the cases
referred to in argument, Chief-justice fancy
used su bstantially the same language, express
ing the same idea in expounding penal statute.
He said "the court certainly will not extend IL
beyond the plain meaning Of its words, for it
has been long and well settled that such statutes
must be construed strictly; yet the plain inten-
ton of the Legislature ought not TO be defeated
by q forced and overstrict construction"
In short, the rule substantially ia that
court 10 not 70 resort TO devices tricks Of
words in order to convict man of crime whose
offense was not within the minds OF the Leais-
laturs; is it to resort to tricks or devices TO-
defeat the manifest will of the legislative
power. The court must act upon the principles
of common sense; that is the meaning OF the
rule Aud so guided, looking at that Section
E511, it seems to me that would be triiing with
the will of Congress, which has power in this
matter, IL / were to consider that statute with
the strictnsss insisted upon in the argument by
counsel for the prisoners. II has been said
further. as against this conclusion. that IL that
construction be proper there was no necessity
for Section 5515, nor there any necessity for
the Section 551l, and therefore we put Congress
In the position of making provision for the
same class OF cases twice over In the
statute. / know Of decision OF any
court in this country which would authorize me
20 defeat tho will of that act of Congress be-
cause Congress had in the same act made
double provision for the same offense. If be-
cause of the careessuess OF the man who drew
the act. or from haste in the proceedings of
Congress. IL so turned out that the same crime
is defined in two different sections OF the Same
statute act with the same punishment to be
fixed. we not for that reason TO depart from
ordinary rules Of construction nor to defeat the
am of the opinion. also, though I need not
stop to discuss the question fully. that this
case, as charged in the indictment. is covered
by the Last clause Of Section 55l2. Without 60
ing fully over that ground, which is entirely
familiar to counsel. and perhaps may not be
very material in view of what have said, will
Section 20 of the act OF lS70-and
that is Section 5512 of the Revised Stat
utes-originally referred to the regis tration
of voters simply; but at the same session of
Congress- or the succeeding session and in the
same volume, we find an act of Congress which
amends that original section and puts 1t SUBJ
is Section 5512 as il originally stood Sec
ton 20 of the act of 1870, had no reference what
to elections. yet by the amendments OF 1871
Congress does introduce the element OF cleo
tions; and the closing part OF the section is in
these words
Or f any such officer other person who has any
duties perform in relation to such registration
election. in sscertanng, announcing declaring the
result thereof in giving making certificate.
document or evidence in relation thereto knowingly
neglects refuses to perform any duty required by
law, violates duty imposed by law or does any
act by law relating to or affecting such
certificate, document evidence in relation thereto,
or IL any person aids counsels procures, or advises
any such voter, person officer to do any act here
by made a crime to omit any act the omission of
which is hereby made a crime, every such person
shall DO punishable as prescribed In the preceding
section.
So that, IL am wrong in constituting the word
thereby in Section 55l1 as embracing the whole
of that chapter and il the strict construction OF
that word. insisted on by counsel for the pris-
oners, 10 the true one, do not any solid
ground upon which they can escape the language
of Section 5512 Because that section does make
1t a crime in terms, for sn officer of an election
for Representative or Delegate in Congress to
omit to perform any duty required of him by
law or to violate any duty imposed upon him by
law, or to do any act unauthorized by law in re-
lation to such elections and follows it with the
declaration that any person who does counsel,
procure or advise any such officer TO do any act
thereby made q crime is liable to this punish
ment. Therefore, in any view of the case,
whether upon the single ground upon which it
was placed In the opinion which Il delivered
Coy's case, upon the additional ground now
stated, there is an offense described in this in
dictment against the United States.
This brings TO inquire in respect to the law
of tho State of Indiana. Each of these ssc-
tions, when 1t uses the phrase, DUTY under
any law regulating the election" refers, OF
State in 10 which the sisetioD is held. And.
whether constituting the one section or the other,
we IRE entitled to and must look at the
statutes of the State OF Indiana The
rntt tate In hat ia
your duty prescribed by the law OF the State
of Indiana with reference to election of q
in Congress. we make that your
duty to US. anc violation of that duty is an
offense against the United States. Was there
any duty upon these inspectors, in reference to
these papers imposed by statute. Ii there was
not, then there would be an end to this case. On
the question Of jurisdiction, the court would be
bound to say, on the face Of this indictment,
offense is described which is not an onsnse
present revision of the statutes of Indiana says:
When the votes shall be counted, the board
of judges shall make out certificate, under their
hands stating the number of votes each person has
received. and designating the office, which number
shall be written in words and such certif
cate together with Of the lists of voters and
of the tallypapers, shall be deposited with the in
spector or with one OF the judges selected by the
board Of judges.
We have, then, the plain declaration in this
statute of Indiana that this certificate, together
with one or the lists of voters and one OF the
tally papers. shall be deposited with the inspect
or or with one or the judges selected by the
board of judges What, then, becomes of the
other papers2 The next section. in substance,
requires that they be- sealed up in strong pa
per bag and as possible before the
next Thursday, be delivered into the custody of
the county clerk, strics care being taken at
every step to preserve them against being tam
pered with.
Now what the board Of inspectors TO do
when they meetl ''The inspector of each town
ship or precinct. or the Judge of election. to
whom the certificate, poll book and tally papers
shall have been delivered, provided tor in
this act, shall constitute q board of canv9ssers,
who shall canvass and estimate the certificates,
poll-lists and tally papers returned by each
member Of said board, for which purpose they
shall assemble at the courthouse on Thursday
next succeeding such election between certain
hours. We have then the clear statutory declar-
alton, that when the votes are counted ana the
certificate 10 made out, that that certificate,
with one Of the poll-lists and OF the tally
papers, shall be deposited with the Inspector.
We fnrther find. frnrn the laat gectinn that il