Year: 1876

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because Of race. color, or precious con


interfere and provide for it's pun


ishment. II, therefore, the third


and fourth sections of the act are


beyond that limit, they are unau-


thorized. The third section does not in


express terms limit the offense Of an


Inspector for which the punishment is


provided to wrongful discrimination


on account Of race, etc. This is con


ceded but it is urged that when this


section is construed with those which


precede it, and to which, as is claimed,


1t refers, it is 50 limited. The argument


is that the only wrongful act on the


part Of the officer whose duty it is to


receive or permit the requisite qualifi-


cations which can dispense with actual


qualifications under the State laws and


substitute the prescribed affidavit there


for. is that mentioned and prohibited in


section 2, to wit, discrimination on ac-


count of race, etc, and that conse-


uuently Section 3 is confined in its opera


tions to the same wrongful discrim-


nation This Is q penal statute and


must be construed strictly-not so


strictly, indeed. as to defeat the
clear intention OF Congress, but the


words employed must be understood


i'm the sense that were obviously


used UNITED States VS.. Wiltberger, s


Wheat, 85.) If, taking the whole
statute together. it is apparent that it
was not the intention of Congress thus
to limit the operation of the act, we can
not give it that effect. The statute
contemplates most important change
in the election laws. Previous to it's
adoption the States. as u general rule,
regulated in their own way all the de-
tails of all elections. They prescribed
the qualifications of voters, and the
manner in which those Offering to vote
at an election should make known their
qualifications to the officers in charge.
This act interferes with this practice,
and prescribes rules not provided by the
laws OF the States. 1t substitutes under
certain circumstances % performance
wrongfully prevented for the per-
formance itself If the elector
makes and presents his affidavit
in the form, and to the effect
the inspectors are to treat
this as the equivalent of the specified
of the State law.


THIS IS A RADICAL CHANGE IN THE PRACTICE,
and the statute which creates it should
be explicit i'm its terms. Nothing should
be left to construction il it can be
avoided. The law ought not to be in
such condition that the elector may
act upon one idea Of its meaning and
the inspector upon another. The cleo
tor, under the provisions Of the statute,
is only required to state in his affidavit
that he has been wrongfully prevented
by the officer from qualifying. There
are no words of limitation in this part Of
the section. In case like this. il an
affidavit is in the language of the statute,
1t ought to be sufficient both for the
voter and the inspector. Laws which
prohibit the doing Of things, and provide
u punishment fol- their violation, should
have no double meaning. A citizen should
not unnecessarily be placed where, by
an honest error in the construction Of q
penal statute, he may be subjected to a
for a false oath; and an in
spector OF elections should not be put in
because he with equal honesty
an opposite opinion. II this
statute limits the wrongful act which
will Justify the affidavit, to discrimina-
ton on account OF race, etc, then a
citizen who makes an affidavit that he
has been wrongfully prevented by the
officer, which is true in the ordinary
sense of that term, subjects himself to


Indictment and trial, if not to convic-
ton, because it is not true that he has
been prevented by such wrongful act
rs the statute contemplated, and ii
there is no such limitation, but any
act of excursion will justify
The affidavit and give the right to vote
without the actual performance Of the
then the inspector who re-
ects the vote because he reads the law


in its limited sense, and thinks it is con-
fined to wronful discrimination on ac-
count Of race, etc, subjects himself to
il not to punishment, be-
cause he has miScOnstrued the law.
Penal statutes ought not to be expressed
IN hng,ldqe so uncertain. II the Legis
ature undertakes to define by statute a
new offense and provide for its punish
ment, it should express it's will in an
yuage that need not deceive the com
non mind Every man should be able
10 know with certainty when he is com
hitting a crime; but when we go beyond
The third section and read the fourth,
we find there no words of limitation,
Or reference even, that can be
as manifesting any inten
-eution to confine it's provisions to the
5eims of the Fifteenth Amendment.
That section has for its OBJECT the pun


shment 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
confine their operation to unlawful dis
on account of race, etc. Ii
Congress had the power to provide gen
orally for the punishment Of those who
unlawfully interfere to prevent the ex
ercise of the elective franchise without
regard to such discrimination, the lam
guage of these sections would be broad
enough for that purpose.


THE LAW TOO GENERAL.


It remains now to consider whether
statute so general as this in its provi-
sions can be made available for the pun
ishment of those who may be guilty OF
unlawful discrimination against citi-
zens of the United States while exercis-
ing the elective franchise on account OF
their race. There is no attempt in the
sections now under consideration to
provide specifically for such an offense.
II the case is provided for at all, it is be-
cause it comes under the general pro-
hibition against any wrongful act or un-
lawful obstruction in this particular. We
are therefore directly called upon to de-
eide whether penal statute enacted by
Congress, with it's limited powers, which
provides in general language, broad
enough to cover wrongful acts without
as we'll as within the constitutional
Jurisdiction, can be limited by judicial
construction so as to make it operate
only on that which Congress may right
fully prohibit and punish. For this
purpose we must take these sections Of
the statute as they are. We are not able
to reject part which is unconstitutional


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