United States v. Brewer, 139 U.S. 278 (1891)

Mr. Justice Blatcheord

delivered the opinion of the court.

This is an indictment against three persons, found in the Circuit Court of the United States for the Western District of Tennessee, under section 5515 of the Bevised Statutes.

That section, with its punctuation, as published in the second edition of the Bevised Statutes, is as follows: “ Sec. 5515. Every officer of an election at which any Bepresentative or. Delegate in Congress is voted for, whether such officer of election be appointed or created by or under any law or authority of the United States, or by or under any State, territorial, district or municipal law or authority, who neglects or refuses to perform any duty in regard to such election required of him by any law of the United States, or of any State or Territory thereof; or who violates any duty so imposed; or Avho knowingly does any acts thereby unauthorized, with intent to affect any such election, or the result thereof; or Avhofraudulently makes any false certificate of the result of - such election in regard to such Bepresentative or Delegate; or who Avithholds, coñceals or destroys any certificate of record so

required by law respecting the election of any such Representative or Delegate; or who neglects or refuses to make and return such certificate as required by law ; or who aids, counsels, procures or advises any voter, person, or officer to do any act by this or any of the preceding sections made a crime, or to omit to do any duty the omission of which is by this or any o,f such sections made a crime, or attempts to do so, shall be punished as prescribed in section fifty-five hundred and eleven.” It purports to be a reenactment of section 22 of the act of May 31, 1870, ch. 114, (1.6 Stat. 145,) which, with its punctuation, as published, was as follows: “ Seo. 22. And he it farther enacted, That any officer of any election at which any representative or delegate in the Congress of the United States shall be vqted for, whether such officer of election be appointed or created by or under any law or authoritjr of the United States, or by or under any State, territorial, district or municipal law or authority, who shall neglect or refuse to perform any duty in regard to such election required of him by any law of the United States, or of any State or Territory thereof; or violate any duty so imposed, or knowingly do any act thereby unauthorized, with intent to affect any such election, or the result thereof; or fraudulently make any false certificate of the result of such election in regard to such representative or delegate; or withhold, conceal or destroy any certificate of record so required by law respecting, concerning or pertaining to the election of any such representative or delegate; or neglect or refuse to make and return the same as so required by law; or aid, counsel, procure or advise any voter, person or officer to do any act by this or any of the preceding sections made a crime; or to omit to do any duty the omission of which is by this or any of said sections made a crime, or attempt to do so, shall be deemed guilty of a crime and shall be liable to prosecution and punishment therefor, as provided in the nineteenth section of this act for persons guilty of any of the crimes therein specified.”

The indictment originally contained four counts. The first count alleged that on the 6th of November, 1888, in the county of Shelby, Tennessee, at the third ward of Memphis,

an election for a Representative in the Congress of the United States for the Tenth Congressional District of Tennessee was held, at the southeast corner of G-ayoso and Second Streets, Memphis, in the fourteenth civil district of that county; that at that election two of the defendants were the judges thereof and the other was the returning officer thereof, holding the election, “at which election such representative in Congress was then and there voted for; that it then and there thereby became and was the luty (among others) of the said judgts and returning officer of said election, when the same was fin-' ished and after the polls were closed, then and there at the said place of holding the same, and at the place where the ballots were cast at said election, to open the ballot-box then and there used at said election and then and there containing the ballots cast at said election, in the presence of such of the electors at said election as might choose to attend, and to read aloud the names of the persons which should appear in each ballot in the said ballot-box so cast at said election; ” and that the defendants did then and there “unlawfully neglect to perform their said duty in regard to the said election, as required of them by law, by then and there, and after the said election was finished, and after the polls at said election were closed, and before the counting of the votes cast at said election, failing to so open the said ballot-box at the place where the said election was held, and to so then and there at the place last aforesaid read aloud the names of the persons which should then and there appear in each ballot in the said ballot-box, the same being the duly designated place of holding the said election.”

The second count, with the same preliminary allegations as in the first count, averred that the defendants unlawfully refused to perform their said duty, by failing to do what it was alleged in the first count they failed to do, “ and by then and there, and after the said election was finished and the polls thereof were closed, unlawfully removing the said ballot-box from the place where the said election, was held, and before the counting of the votes cast at the said election, the same being the duly designated place of holding the said election.”

The third count, after making the same preliminary allegations, averred that the' defendants did unlawfully violate their said duty by failing to do what it was alleged in the first and second counts they failed to do, and by unlawfully removing the ballot-box as averred in the second count.

The fourth count averred that the defendants did “ unlawfully and knowingly, and with intent to affect the said election and the result thereof, and after the said election was finished, and after the polls at said election were closed, and before the counting of the votes cast at said election, remove the ballot-box used at said election, and then and there containing the ballots cast at said election, from the'place aforesaid where the said election was held, the same being the duly designated place of holding the said election, such removal of the said ballot-box being unauthorized by law, and contrary to the form of the statute in such'cases made and provided, and against the peace and dignity of the United States of America.”

The indictment is based on the view that certain sections of the statutes of Tennessee • must be so construed as to require that the ballot-box shall not be removed from the place where the election was held, before the votes cast are counted, and that they shall be counted at the place where the election was held, immediately after the closing of the polls.

The defendants being brought into court, a nolle prosequi as to the fourth count was entered, on motion of the district attorney. The defendants demurred to the other three counts, setting forth the following grounds of demurrer :

of said indictment,) upon these defendants; as s said judges and returning officer of said election, when the same was finished and after the polls were closed, then and there, and at the place of holding the same, and at the place where the ballots-were cast at the said election, to open the ballot-box then' and there used at said election,’ in manner and form as the said duty is alleged in said three counts.

against these defendants in the second count of said indictment, was not in law a refusal by these defendants, as such returning officer and judges, to perform any duty imposed upon them by the laws of the State of Tennessee or of the United States, or otherwise, in manner and form as such duty is stated and set forth in said second count of the said indictment.

There was a joinder in the demurrer, and it was argued before the court, held by the Circuit Judge and the District Judge. They were divided in opinion on the questions raised by the demurrer, and certified to this court the points upon which they disagreed, as'follows :

“ 2. Whether the matters and things alleged and set forth in the first three counts of said indictment constitute an offence or offences under section 5515 of the Revised Statutes of the United States, or under any other law or statute of the United States.

of the votes cast at said election, to remove the said ballot-box from the southeast corner of Gayoso and Second Streets, in Memphis, Tennessee, that being the designated place' of holding said election and the place where the same was held, for the purpose of opening the said ballot-box and reading aloud the names of the persons appearing on each ballot cast at said election, as contemplated by said section 1068 of the Code of Tennessee.

The first two questions certified are in such a general form that this court cannot answer them, as has been repeatedly held. United States v. Northway, 120 U. S. 327; Dublin Township v. Milford Savings Institution, 128 U. S. 510, 514; United States, v. Hall, 131 U. S. 50; United States v. Lacher, 134 U. S. 624, 632.

As to questions 3, 4, 5, 6 and 7, we are of opinion that they must be answered in the negative.

The statutes of Tennessee which relate particularly to the question involved are sections 1067,1068 and 1070 of the Code of Tennessee of 18S4, by Milliken & Yertrees, which are as follows: “ Sec. 1067. The officer or person and judges ap

pointed to hold an election shall not proceed to or commence counting out the votes given in the election until the polls shall have been closed. Sec. 1068. When the election is finished, the returning officer and judges shall, in the presence of such of the electors as may choose to attend, open the box and read aloud the names of the persons Avhich shall appear in each ballot; and the clerks, at the same time, shall number the ballots, each clerk separately.” •“ Sec. 1070. The inspectors have authority to maintain regularity and order in the balloting; to keep access to the polls free and unobstructed; to prevent all disorderly and riotous conduct during the election, and during the counting of the votes after the polls are closed; and.for this purpose they are vested Avith all the poAArers of a peace officer.”

It is contended that these sections impliedly require that the box shall be-opened, and the names of the persons appealing in each ballot read .aloud, at the place where the election Aims held, and that the ballot-box shall not be removed from the place where the election Avas held before the votes are counted. But this'is urged merely as an implication. The statute does not provide distinctly and specifically, and in words required in a criminal statute, that the box shall be opened at the place where the election Avas held, and the names of the persons appearing in each ballot be read aloud at that place, and the ballot-box not be removed from that place before the votes cast are counted.

We are not referred to any statute of Tennessee, or to any construction given by its courts to the sections of the statute above referred to, Avhich declares it to be the duty of the officers of election to count the votes at the place Avhere the election Avas held. The implication of the decision in McCraw v. Harralson, (4 Coldwell, 34, 44, 45,) made in 1867, is to the contrary. In that case, section 864 of 1 Thompson & Steger’s Statutes of 1871, Avhich section Avas enacted in 1835, provided that “ the officer or person holding any election of county officers shall compare the polls at the court-house, on the first Monday after said election, and shall deliver to each person elected a certificate of his election.” The officers holding the

election in. controversy did not compare the polls at the courthouse, but counted the votes in a private house in the town in which the court-house was situated; and the court held that, the returns having' been made to the court-house, and the county court being in session, the counting of the votes at a private house in the town was a sufficient compliance with the requirements of the statute, and constituted no ground, in the absence of all fraud or misconduct in comparing the polls and counting the votes, for setting aside the election.

Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. United States v. Sharp, Pet. C. C. 118. Before a man can be punished, his case must be plainly and unmistakably within the statute. United States v. Lacher, 134 U. S. 624, 628. We are of opinion, therefore,-that questions 3, 4, 5, 6 and 7 must be answered in the negative, no fraud being averred in the indictment, and no intent to affect the election or its result, and there being no allegation that the election or its result was affected.

This disposition of questions 3, 4, 5, 6 and 7 requires that the demurrer to the indictment be sustained, and makes it unnecessary to answer question 8.

Questions 1 (md 2 'are not answered because they are too general. Questions 3, A *5', 6 and 7 are cvnswered in the negative, and guestion 8 is not answered because it is unnecessary to answer it.*