Year: 1870

Important opinion OF Judge Bond
We have received the following in
portant opinion of the Hon. Hugh L
Bond, Judge Of the Fourth Judicis


Circuit Of the United States, in and 70


the district of West Virginia, given il


the caseSf habeaS corpus heard in cham


bers at Martinsburg, Va, on Monda.


last


In U.ambrs-HaJeas Corpus. Sin tn


matter Of the petition of John H. Nc


Ilwee, before Hon. Hugh L. Bond


Judge of the Fourth Judicial Circuit o


the United States.


1t appears from the return and tn,


evidence in this cause that the petitioneI


is one Of the persons appointed, under


the laws Of the State 81 West Virginia
to register those entitled to vote under
the election laws of that State.


A certain Winfield Scott Alkire, 8
white citizen of West Virginia, made
application on the fifth day of August
1870, to the petitioner to be registered
and his application was refused on the
ground that he was not qualified tovote
under the laws Of the State, by reason
Of his adherence to or participation in
the late rebellion.


The petitioner was therefore, on the
affidavit of said Alkire, arrested and
brought before a commissioner of the
United States for supposed violation
of the act Of Congress, approved May
81, 1870, and by'said commissioner, in
default Of bail, was committed to an
swer at the next term Of the District
Court.


1t appears to me that this case does
not come within the purview Of the
statute in question.


That it was not the intention of Con-
gress to abolish the laws of the several
States which prescribed the qualitica-
tlons of voters, or even to alter them,
except so far as they were founded upon
the distinction of race, color, or pre-
vious condition of servitude,' is sutfi-
ciently evident from the words of the
first section of this statute, which de-
clare it to relate TO ''all citizens of the
United States who are or shall be
otherwise qualified by law to vote"


1t cannot be doubted that the mean
ing Of this language is that these citi-
zens shall he qualified to vote by the
laws of the State or Territory in which
they offer to poll.


That these persons thus otherwise
qualified shall vote" without distinction
of race, color, or previous condition OF
servitude, is the purpose and intent OF
the statute.


1t was clearly the duty imposed upon
the petitioner TO inquire into the quail
fcations of the applicant for registra.
tion under the laws OF the Stale of West
Virginia, and if he found him other
wise qualified he was to register him
without distinction Of race, color, or
previous condition Of servitude,' under
the penalty of this act Of Congress


The third section of the act of Con-
gress relates to those citizens "other-
wise qualified who have not been able,
by reason Of the wrongful act or omis-
sion aforesaid, to do the prerequisite
act which entities the citizen to vote.
There is no mention OF any wrongful
act or omission" in the third section it.
self, and every rule of construction
requires that reference should be had
to the previous sections where we find
the wrongful act or omission to be the
making among citizens otherwise quail
flied distinction ION account OF race,
color or previous condition OF servi-
tude.


1t is not pretended that the petitioner
refused the application OF Alkire on
this account and therefore he is not
guilty of the wrongful act or omis-
sion,' which makes him amenable to
the punishment prescribed in these sec
tions.


The twenty-second section of the act
under consideration relates to the off
GERS Of any election at which any Rep
resentative or Delegate in the Congress
of the United States shall be voted for.
1t is not alleged, nor is it true, that
there was any election ofthe kind being
held, Of which election the petitioner
was an Officer" He was mere sub
ordinate officer of registration, from
whose judgment there was an appeal
by the laws Of the State TO board of
registration in review.


The petitioner, in my opinion, must
be discharged, because it does not ap-
pear that he is guilty OF the violation
of the act Of Congress with which he is
charged, and for the reason that for
his judgment of the qualification of the
applicant for registration, under the
laws of West Virginia, he is not an
swerable in the courts Of the United
States. shall pass an order to this
effect Ii. D. BOND.


The petitioner was discharged.