Ex parte Clarke

delivered the opinion of thé court.

This case comes before us on the return to a writ of habeas corpus, issued by order-of one of the justices of this court. The petition for a habeas corpus was addressed to the judges of the Supreme Court of the United States by Augustus F. Clarke, who states therein that he is a member of the city council of Cincinnati, and, as such, one of the judges of election of precinct A in. said city; in which capacity he acted at the State, congressional, county, and municipal elections held in said city ■ in October, 1878. That on the 24th of October, 1878, he was indicted in the Circuit Court of the United States for the Southern District of Ohio for unlawfully neglecting to perform the duty required of him as such judge of election by the laws of the State of Ohio in regard to said election, in this, that having accepted one of the poll-books of said election, sealed and directed according to law, for the purpose of conveying the same to the clerk of the Court of Common Pleas of Hamilton County, in said State, at his office, he neglected to do so ; and, in another count, that he permitted the said poll-books, sealed and directed for the purpose aforesaid, to be broken open before he conveyed the same to said clerk ; that a motion to quash said indictment, and a demurrer thereto, having been successively overruled, he pleaded not guilty, and at the February Term, 1879, was tried and found guüty; ahd having unsuccessfully moved for a new trial,' and in arrest of judgment, he was sentenced by said court to be imprisoned in the jail of Hamilton County for twelve months, and to pay a fine of $200 and the cost of prosecution; that in pursuance of said sentence he had been arrested and imprisoned, and is now imprisoned and restrained, from his liberty by the marshal of the United States for said district. The petition then asserts that the said Circuit Court had no jurisdiction in the premises, and

It is conceded that this indictment was found under sect. 5515 of the Revised Statutes of the United States, which is in the following words: [This section is set forth in Ex parte Siebold, supra, pp. 371, 381.]

The law of Ohio which the petitioner is charged with violating is as follows : —

“ (32.) Sect. XIX. That, after canvassing the votes in the manner aforesaid, the judges, before they disperse, shall put under cover one of the poll-books, seal the same, and direct it to the clerk of the Court of Common Pleas of the county wherein the return is to be made; and the poll-book, thus sealed and directed, shall be conveyed by one of the judges (to be determined by lot if they cannot agree otherwise) to the clerk of the Court of Common Pleas of the county, at his office, within two' days from the day of the

election; and tlie other poll-book, where the same is not otherwise disposed of by this act, shall be deposited with the township clerk, or clerk of the election district (as the case may be), within three days from the day of election, there to remain for the use of the persons who may choose to inspect the same.”

On the thirty-first day of July, 1879, the said petition was presented to - Mr. Justice Strong, and a writ of habeas corpus was allowed by him, returnable forthwith before himself, at the Catskill Mountain House, in the State of New York. On the 11th of August, 1879, return being made of the body of the petitioner according to the command of the writ, with a copy of the judgment of the Circuit Court, and the warrant of commitment issued thereon, Justice Strong made an order postponing the hearing of the cause into this court, to be heard upon the second Tuesday of October, 1879 (being the first day of the present term), and admitted the petitioner to bail in the sum of $5,000 to abide the rule of the Supreme Court in the premises.

The case was argued at the same time with Ex parte Siebold, supra, p. 371; and- most of the questions involved have been considered in that case.

One question, however, has been raised by the counsel for the government which it is necessary to consider. It is objected that this court cannot proceed upon a writ of habeas corpus which was originally presented to a justice of this court, and was postponed and referred by him ,to the court for its determination.

We have considered this point with some care, inasmuch as in Kaine’s Case, reported in 14 How. 103 , the court held that it could not act upon a writ thus referred to it by Mr. Justice Nelson. But the ground taken there was, that the writ had been issued 'by him in .virtue of his original jurisdiction; though the .'court was of opinion that it could issue a new writ upon the papers before it in virtue of its own appellate jurisdiction, and would do so if the case required itbut being of opinion that there was no case on the merits the application was discharged. But in this case, however it may have been in that, it is clear that the writ, whether acted upon by the justice who issued it, or by this court, would in fact require a

As to the merits of the case, there can be no serious question that the indictment charges an offence specified in the act of Congress. Rev. Stat., sect. 5515. Any defect of form in making the charge would be at most an error, of which this court could not take cognizance on habeas corpus. The prin

The petitioner, therefore, must be remanded to the custody of the marshal for the Southern District of Ohio; and it is

So ordered.

Mr. Justice Field, with whom concurred Mr. Justice Clifford, dissenting.

I cannot assent to the decision of the majority of the court in this and the preceding case, and I will state the reasons of my dissent. One of the six petitioners is a citizen of Ohio, and the other five áre citizens of Maryland. They all' seek a discharge from imprisonment imposed by judgments of Federal courts for alleged official misconduct as 'judges of election in their respective States.

' At an election held- in the first congressional district of Ohio, in October, 1878, at which a representative in Congress was voted for, the petitioner from that State was appointed under its laws, and acted as a judge of election at a precinct in one of the wards of the city of Cincinnati. At an election held in the fourth and fifth congressional districts of Maryland, in November, 1878, at which a representative in Congress was voted for, the petitioners from that State were appointed under its laws, and acted as judges of election at different precincts in the wards of the city of Baltimore. For alleged misconduct as such officers of election the petitioners were indicted in the Circuit Courts of the United States for their respective districts, tried, convicted, and sentenced to imprisonment for twelve months, and, in some of the cases, also to pay a fine.

In what I have to say I shall confine myself principally to the case of the petitioner from Ohio; the other cases will be incidentally considered. In that case, the petitioner is charged with having violated a law of the State. In the cases from

In all the cases the petitioners are imprisoned under the judgments against them; and each one insisting that the Circuit Court, in his case, acted without jurisdiction, and that his imprisonment is, therefore, unlawful and subversive of his rights as a citizen, has petitioned this court for a writ of habeas corpus, annexing to his petition a transcript of the' record of the proceedings against him; and prays that he may be released from restraint.

It has been settled by this court that the writ of habeas corpus is one of the modes by which its appellate jurisdiction will be exercised in cases where it is alleged that by the action of an inferior tribunal a citizen of the United States has been unlawfully deprived of his personal liberty; and, if necessary, that a certiorari will be issued with the writ to bring up for examination the record of the proceedings of the inférior tribunal. In such cases, we look into that record to see, not whether the court erred in its rulings, but whether it had

I do not regard the presentation by the petitioner from Ohio of his petition to one of the justices of the court in the first instance as a fact at all affecting his ease. His petition is addressed to this court, and- though the justice, who allowed the writ, directed that it should be returnable before himself, he afterwards ordered the hearing upon it to be had before this court. The petition may, therefore, with propriety be treated as if presented to us in the first instance. Irregularities in that regard should not be allowed to defeat its purpose, the writ being designed for the security of the personal liberty of the citizen.

The act of Congress upon which the indictment of the petitioner from Ohio was founded is contained in sect. 5515 of the Revised Statutes, which declares that “ every officer of an election, at which any representative 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 who knowingly does any acts thereby unauthorized with intent to affect any such election or the result thereof, . . . shall be punished as prescribed ” in a

The indictment contains three counts, the third of which was abandoned. The first count charges unlawful neglect on the part of the accused to perform a duty required of him by the law’s of the State, in not carrying to the clerk of the Court of Common Pleas one of the poll-books of the election, covered and sealed by the judges of election, with which he was intrusted by them for that purpose. The second count charges the violation of a duty required of him by the laws of the State in permitting one of the poll-books, covered and sealed, intrusted to him by the judges of election to carry to the clerk of'the Court of Common Pleas'; to be broken open before he conveyed it to that officer.

The law of Ohio, to which reference is had in the indictment, provides that after the votes at an election are canvassed “the judges, before they disperse, shall put under cover one of-the poll-books, seal the same, and direct it to the clerk of the Court of Common Pleas of the county wherein the return is to be made; and the poll-book thus sealed and directed, shall be conveyed by one of the judges (to be determined by lot if they cannot agree otherwise), to the clerk of the Court of Common Pleas of the county, at his office, within two days from the day of the election.”

The provisions of the act of Congress relating to the appointment of supervisors of election, the powers with which they are intrusted, and the aid to be rendered them by marshals and special deputy marshals, for resisting and interfering with whom the petitioners from Maryland have been condemned and are imprisoned, are stated in the opinion of the court. It is sufficient to observe that they authorize the supervisors to supervise the action of the State officers from the registration of voters down to the close of the polls on the day of election; require the marshals to aid and protect them, and provide for the appointment of special deputy marshals in towns and cities of over twenty thousand inhabitants; and they invest those Federal officers with a power to arrest and take into custody persons without process more extended than has ever before in our country in time of peace been intrusted to any one.

' There is no doubt that Congress may adopt a law of a State, but in that case the adopted law must be enforced as a law of the United States. Here there is no pretence of such adoption. In the case from Ohio it is for the violation of a State law, not a law of the United States, that the indictment was found. The judicial power of the United States does not extend to a case of that kind. The Constitution defines and limits that power. It declares that it shall extend to cases in law and equity arising under the Constitution, the laws of the United States, and treaties made under their authority; to cases affecting ambassadors, other public ministers and consuls ; to cases of admiralty and maritime jurisdiction, and to .various controversies to which the 'United -States or a State is a party, or between citizens of different States, or citizens of the same State claiming lands under grants of different States, or between citizens of a State and any foreign State, citizens or subjects. The term “ controversies ” as.here used refers to such only as are of a civil as distinguished from those of a criminal nature. The judicial power thus defined may be applied to new cases as they arise under the Constitution and laws of the United States, but it cannot be enlarged by Congress so as to embrace cases not enumerated in the Constitution. It has been so held by this court from the earliest period. It wás so adjudged in 1803 in Marbury v. Madison, and the adjudication has been affirmed in numerous instances since. This limitation upon Congress would seem to be conclusive of the case from Ohio. To authorize a criminal prosecution in the Federal courts for an offence against a law of a State is to extend the judicial power of the United States to a case.not arising under the Constitution or laws of the United States.

The invalidity of coercive measures by the United States, to compel an officer of a State to perform a duty imposed upon him by a law of Congress, is asserted in explicit terms in the case of The Commonwealth of Kentucky v. Dennison, 24 How. 66 . The Constitution declares that “ a person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime.” And the act of Congress of 1793-, to give effect to this clause, made it the duty of the executive authority of the State, upon the demand mentioned, and the production of a properly authenticated copy of the indictment or affidavit charging the person demanded with the commission of treason, felony, or other crime, to surrender the fugitive. The Governor of Ohio having refused upon a proper demand to sur

I am not aware that the doctrine of this case,' which is so essential to the harmonious working of the State and Federal governments, has ever been qualified or departed from by this court, until the recent decisions in the Virginia cases, of which I shall presently speak. It is true that, at an early period in the history of the government, laws were passed by Congress, authorizing State courts to -entertain jurisdiction of proceedings by the United States, to enforce penalties and forfeitures under the revenue laws, and to hear allegations, and take proofs, if application were made for their remission. To these laws reference is made in the Kentucky case; and thb court observes that the powers which they conferred wejfc for some -years exercised by the State tribunals, without objection, until, in some of the States, their exercise was declined, because it interfered with and retarded the performance of duties which properly belonged to them as State courts, and in other States because doubts arose as to the power of State courts to inflict penalties and forfeitures for offences against the general, government, unless specially authorized to do so by the States; and that the co-operation of the States in thoses cases was a matter of comity which the several sovereignties extended to one another for their mutual benefit, and was not regarded by either party as an obligation imposed by the Constitution.

It is to be observed that, by the Constitution, the demand for the surrender of a fugitive is to be made by the executive authority of the State from which he has fled; but it is not

Whenever, therefore, the Federal government, instead of acting through its own officers, seeks to accomplish its purposes through the agency of officers of the States, it must aceept the agency with the conditions upon which the officers are permitted to act. For example, the Constitution invests Congress with the “ power to establish a uniform rule of naturalization ; ” and this power, from its nature, is exclusive. A concurrent power in the States would prevent the uniformity of regulations required on the subject. Chirac v. Chirac, 2 Wheat. 259 ; The Federalist, No. 42. Yet Congress, in legislating under this power, has authorized courts of record of the States to receive declarations under oath by aliens of their intention to become citizens, and to admit them to citizenship, after a limited period of residence, upon satisfactory proof as to character and attachment to the Constitution. But, when Congress prescribed the conditions and proof upon which aliens might, by the action of the State courts, become citizens, its power ended. It could not coerce the State courts to hold sessions for such applications, nor fix the time when they should hear the applicants, nor the manner in which they should administer the required oaths, nor regulate in any way their procedure. It could not compel them to act by mandamus from its own tribunals, nor subject their judges to criminal prosecution for their non-action. It could accept the agency of those courts only upon such terms as the States should prescribe. The same thing is true in all cases where the agency of State officers is used; 'and this doctrine applies with special force to judges of elections, at which numerous State officers are chosen at the same time with representatives to Congress. So far as the election of State officers and the registration of voters for their election are concerned, the -Federal government has confessedly no authority to interfere. And yet the super

• It was the purpose of the framers of the Constitution to create a government which could enforce its own laws, through its own officers and tribunals, without reliance upon those of the States, and thus avoid the principal defect of the government of the confederation, and they fully accomplished their purpose; for, as said by Chief Justice Marshall, in the McCullough Case, “No trace is to be found in the Constitution of an intention to create a dependence of the Federal government on the governments of the States for the execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone was it expected to rely for the accomplishment of its ends.” When, therefore, the Federal government desires to compel by coercive measures and punitive sanctions the performance of any duties devolved upon it by the Constitution, it must appoint its own officers and agents, upon whom its power can be exerted. If it sees fit to intrust the performance of such duties to officers of a State, it must take their agency, as already stated, upon the conditions which the State may impose. The co-operative scheme to which the majority of the court give their sanction, by which the general government may create one condition and the States another, and each make up for and supplement the omissions or defects in the legislation of the other, touching the same subject, with its separate penalties for the same offence, • and thus produce a harmonious mosaic of statutory regulation, does not appear to have struck the great jurist as a feature in our system of gov ernment or one that had been sanctioned by its founders.

It is true that, since the recent amendments of the Constitu tion, there has been legislation by Congress asserting, as in the instance before us. a direct control over State officers, which

The clause of the Constitution, upon which reliance was placed by counsel, on the argument, for' the legislation in question, does not, as it seems to me, give the slightest support to it. That clause declares that “ the times, places, and manner of holding elections for senators and representatives shall be prescribed- in each State by the legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators.” The power of Congress thus conferred is either to alter the regulations prescribed by the State or to make new ones j the alteration or new creation embracing every particular of time, place, and manner, except the place of choosing senators. But in neither mode nor in any respect has Congress interfered with the regulations prescribed by the legislature of Ohio, or with those prescribed by the legislature of Maryland. It has not altered them, nor made new ones. It has simply provided for the appointment of officers to supervise the execution of the State laws, and of marshals to aid and protect them in such supervision, and has added a new penalty for disobeying those laws. This is not enforcing an altered or a new regulation. Whatever Congress may properly do touching the regulations, one of two things must follow; either the altered or the new regulation remains a State law, or it becomes a law of Congress. If it remain a State law, it must, like other laws of the State,

If this view be correct, there is no power in Congress, independently of all other considerations, to authorize the appointment of supervisors and other officers to superintend and interfere with the election of representatives under the laws of Ohio and Maryland, or to annex a penalty to the violation of those laws, and the action of the circuit courts was without jurisdiction and void. The act of Congress in question was passed, as it seems to me, in disregard of the object of the constitutional provision. That was designed simply to give to the general government the means of its own preservation against a possible dissolution from the hostility of the States to the election of representatives, or from their neglect to provide suitable means for holding such elections. This is evident from the language of its advocates, some- of them members of the convention, when

Similar language is found in the debates in conventions of the other States and in the writings of jurists and statesmen of the period. The conduct of Rhode Island was referred to as illustrative of the evils to be avoided. That State was not represented by delegates in Congress for years, owing to thé character and views of the prevailing party ; and Congress was often embarrassed by their absence. The same evil, it was urged, might result from a similar cause, and Congress should, therefore, possess the power to give the people an opportunity of electing representatives if the States should neglect or refuse to make the necessary regulations.

In the conventions of several States which ratified the Constitution an amendment was proposed to limit in express terms the action of Congress to cases of neglect or refusal of a State to make proper provisions for congressional elections, and was supported by a majority of the thirteen States; but it was finally abandoned upon the ground of the. great improbability of congressional interference so long as the States performed their duty. When Congress does interfere and provide regulations,' the duty of rendering them effectual, so far as they may require affirmative action, will devolve solely upon the Federal government. It will then be Federal power which is

The views expressed derive further support from the fact that the constitutional provision applies equally to the election of senators, except as to the place of choosing them, as it does to the election of representatives. It will not be pretended that Congress could authorize the appointment of supervisors to examine the. roll of members of State legislatures and pass upon the validity of their titles, or to scrutinize the balloting for senators; or could delegate' to special deputy marshals the power to arrest any member resisting and repélling the interference of the supervisors. But if Congress can authorize such officers to interfere with the judges of election appointed under State laws in the discharge of their duties when representatives are voted for, it can authorize such officers to interfere with members of the State legislatures when senators are voted for. The language of the Constitution conferring power upon Congress to alter the regulations of the States, or to make new regulations on the subject, is as applicable in the one case as in the other. The objection to such legislation' in both cases is that State officers are not responsible to the Federal government for the manner in which they perform their duties, nor subject to its control. Penal sanctions and coercive measures by Federal law cannot be enforced against them. Whenever, as in some instances is the case, a State officer is required by-the Constitution to perform a duty, the manner of which may be prescribed by Congress, as in the election of senators by members of State legislatures, those officers are responsible 'only to their States for their- official conduct. The Federal government cannot touch them. There are remédies for their disregard of its regulations, which can be applied without interfering with their official character as State officers. Thus if its regulations for the election of senators should not be followed, the election had in disregard of them might be invalidated ; but no one, however extreme in his views, would contend that in such a case the members of the legislature

Much has been said in argument of the power of the general government to enforce its own laws, and in- so doing to preserve the peace, though it is not very apparent what pertinency the observations have to the questions involved in the cases before, us. No one will deny that in the powers granted to it the general government is supreme, and that, upon all subjects within their scope, it can make its authority respected and obeyed throughout the limits of the Republic ; and that it can repress all disorders and disturbance which interfere with the enforcement of its laws. But I am unable to perceive in this fact, which all sensible men acknowledge, any cause for the exercise of ungranted power. The greater its lawful power, the greater

My second proposition is that it is not competent for Congress to make the exercise of its punitive power dependent upon the legislation of the States. The act upon which the indictment of the petitioner from Ohio is founded makes the neglect or violation of a duty prescribed by a law of the State in regard to an election at which a representative in Congress is voted for a criminal offence. It does not say that the neglect or disregard of a duty prescribed by any existing law shall constitute such an offence. It is the neglect or disregard of any duty prescribed by any law of the State present or future. The act of Congress is not changed in terms with the changing laws of the State; but its penalty is to be shifted with the shifting humors of the State legislatures. I cannot think that such primitive legislation is valid, which varies, not by direction of the Federal legislators, upon new knowledge or larger experience, but by the direction of some external authority which makes the same act lawful in one State and cr* ninal in another, not according to the views of Congress as to its mpriety, but to those of another body. The Constitution ves - all the legislative power of the Federal government in Congress ; and from its nature this power cannot be delegated to others, except as its delegation may be involved by the creation of an inferior local government or department. Congress can endow territorial governments and municipal corporations with legislative powers, as the possession of such powers for certain purposes of local administration is indispensable to their existence. So, also, it can invest the heads of departments and of the army and navy with power to prescribe regulations to enforce discipline, order, and efficiency. Its- possession is implied in their creation; but legislative power over subjects which come under the immediate control- of Congress, such as defining offences against the United States, and prescribing punishment for them cannot be delegated to any other government or authority. Congress cannot, for example, leave to the States the enactment of laws and restrict the United States to their

I will not pursue the subject further, but those who deem this question at all doubtful or difficult, may find' something worthy of thought in the opinions of the Court of Appeals of New York and of the supreme courts of several other States, where this subject is treated with a fulness and learning, which leaves nothing to be improved and nothing to be added.

• I am of opinion that the act of Congress was unauthorized and invalid; that the indictment of the petitioner from Ohio, and also the indictments of the petitioners from Maryland, and their imprisonment, are illegal, and .that, therefore, they should all be set at liberty.