c10:No. 180

Mr. Justice Lamar,
dissenting.
I dissent from the judgment that state election officers are subject to indictment in Federal courts for wrongfully refusing to receive and count election returns.
In this case the indictment charges a violation of Rev. Stat., § 5508 (Penal Code, § 19) which makes it an offense to 'conspire to injure, oppress, threaten or intimidate any citizen in the free exercise and enjoyment of any right or privilege secured to him by the laws and Constitution of the United States.’ And the indictment charges that these two defendants, ‘ being then and there members of the County Election Board of Blaine County, Oklahoma,’ did conspire to deprive certain unnamed voters of such right and in pursuance of that conspiracy threw out the returns, from several election precincts.
The section under which the indictment is brought was originally a part of the Act of 1870, appearing as § 5508 in Chapter 7 of the Revised Statutes, headed “Crimes AGAINST THE ELECTIVE FRANCHISE AND ClVIL RIGHTS OF Citizens.” The Act and the Chapter contained many sections — ten of them (§§ 5506, 5511, 5512, 5513, 5514, 5515, 5520, 5521, 5522, 5.523) related to offenses by persons or officers against the elective franchise, — to crimes by the voter and against the voter, and specifically to offenses by Registrars, Deputy Marshals, Supervisors, and “évery officer of an election.” Taken together it is perfectly evident that in them Congress intended to legislate comprehensively and exhaustively on the subject of ‘crimes against the franchise.’ Under one or the other of them, these defendants would have been subject to indictment, but for the fact that all of those 10 sections were explicitly and expressly repealed by the Act of February 8, 1894 (28 Stat. 36).
Those ten election sections having been repealed, it is now sought to indict these officers under § 5508, which was not repealed. This is said to be justified on the ground that, in the original act, there was such an overlapping and doubling of offenses that even when those relating to election officers were repealed, a right to prosecute them for conspiracy was retained in § 5508. But this assumes that there was an overlapping when, in fact, the subject of “crimes against the elective franchise” and “crimes against civil rights” were treated as separate and distinct. The chapter heading (Rev. Stat., §§ 5506-5523) indicates the difference; and though the two subjects were dealt with in the same Act, they were nevertheless treated as distinct. The sections of the original act ran parallel to each other but were separated from each other; and when all those dealing with offenses by election officers were repealed the legislative content of those sections was not poured into § 5508.
The Act of 1870 imposing punishment upon election officers who were agents of the State, was passed in pursuance of the provisions of the Amendment which related to state action, and thus authorized Congress to provide for the punishment of state officers by Federal courts which, prior to that time, could not have been done. The Congressional will on that subject was fully and completely expressed in those parts of the statute which were afterwards repealed. Congress, having dealt so explicitly with offenses by state election officers in the ten repealed sections cannot be supposed to have referred to them indirectly in § 5508, which does not mention voters; or elections; or election officers, but deals with the deprivation of civil rights of a different nature.
As will appear by the Report of the Committee (House Report No. 18, 53rd Cong., 1st session) and debates in the Hoüse and Senate during the discussion of the repealing act of 1894, Congress took the view that as elections were held under state laws, by state officers who were subject to punishment by the State for a violation of the election. laws, they should not be subject to indictment in the United States courts. The express and avowed intent was to repeal all statutes which gave Federal courts jurisdiction over elections and over offenses committed by election officers. And to hold that while a single election officer is now immune from prosecution, two or more can be indicted under § 5508, gives an enlarged operation to the theory that an act, not in itself criminal, may be punished if committed by more than one. Such construction also injects § 5508 into a field from which it was excluded when passed in 1870 and into which it cannot now be forced by implication. For under Penal Code (§ 339), § 5508 means now .exactly what it did when it was originally enacted.
To reverse the judgment of the lower court quashing this indictment means, in effect, that Congress failed in its avowed purpose to repeal all statutes relating to crimes against the franchise. To hold that by virtue of § 5508 as a conspiracy statute all of these repealed election offenses are retained, when committed by two or more officers, will also lead to the conclusion that in 1870 Congress in the very same statute had included two sections both of which' related to the same conspiracy and to the same overt act but which might be .punished differently. For, if the District Attorney had indicted under §5506 for “combining and confederating to prevent a qualified citizen from voting,” the two defendants might have been punished by a fine of $500 and imprisonment for 12 months; while if the indictment for the very same conduct had been based bn § 5508, for “conspiring to deprive the citizen of a right under the United States law,” the punishment might be a fine of $5,000, imprisonment for 10 years and the loss of the right to hold office under the laws of the United States. Congress certainly never intended in the same breath to make the same act punishable under two different sections in different ways at the. option of the prosecuting attorney. Similar anomalies could be pointed out if § 5508 is to be construed as so all-embracing as to include acts by two in violation of the 10 election sections which have been repealed.
Rev. Stat., § 5508, is highly penal and is to be strictly construed. And that ordinary rule is especially applicable when a statute is sought to be enforced against election officers. For the relation between the States and the Federal Government is such that the power of the United States courts to punish state officers for wrongs - committed by them as officers, should be clearly .and expressly defined by Congress and not left to implication — especially so when Congress has given such an explicit expression of its intent that election officers should not be punished in the Federal courts.
The Fifteenth Amendment is self-executing in striking the word "white”, from all laws granting the right of suffrage. It was not so far self-executing as .to . define crimes against the franchise or to impose punishments for wrongs against a voter. The amendment provided that Congress should have power to enforce its provisions by appropriate legislation. Congress did so legislate in 1870. In 1894 it expressly repealed the legislation relating to elections. Since that time no subsequent Congress has restored that legislation or anything like it to the statute books. If this be a hiatus in the law (James v. Bowman, 190 U. S. 127, 139) it cannot be supplied through the operation of a conspiracy statute (§ 5508) which did not contemplate furtive and fraudulent conduct, or a wrong to the public, or to the voters of an entire precinct, or to wrongs like those here charged. It related to conspiracies to injure, oppress, threaten, intimidate — to violence, oppression, injury, intimidation; to force on the premises, force on the highway. The nearest approach to a prosecution for an election offense under § 5508 is the Yarbrough Case, 110 U. S. 656. But he was not an election officer and "the beating and wounding” there charged took place on the "highway” remote from the precinct. That form of intimidation and violence was in Express terms dealt with in § 5508 and in none of the repealed sections.
Rev. Stat., § 5508, has been in force for 45 years. During those 45 years no prosecution has ever been instituted under it against a state election officer. That non-action but confirms the correctness of the construction that it was never intended to apply to offenses by state election officers. On the general subject see James v. Bowman, 190 U. S. 127; Giles v. Teasley, 193 U. S. 149; Hodges v. United States, 203 U. S. 1; Green v. Mills, 69 Fed. Rep. 863; United States v. Harris, 106 U. S. 629; United States v. Cruikshank, 92 U. S. 558; Swafford v. Templeton, 185 U. S. 487; In re Coy, 127 U. S. 731; Wiley v. Sinkler, 179 U. S. 58, 66, 67; Karem v. United States, 121 Fed. Rep. 250, 258 (2), 259; Seeley v. Knox, 2 Woods (C. C.), 368; United States v. Reese, 92 U. S. 214; Holt v. Indiana, 176 U. S. 68, 72, 73; Wadleigh v. New Hall, 136 Fed. Rep. 941; Baldwin v. Franks, 120 U. S. 690; United States v. Waddell, 112 U. S. 76.
“Sbc. 5508. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the.Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars and imprisoned not more than ten years; and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States.” 16 Stat. 141, § 6.

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