United States v. Mosley

238 U.S. 383, 35 S. Ct. 904, 59 L. Ed. 1355, 1915 U.S. LEXIS 1574

• Court: Supreme Court of the United States
• Decided: June 21, 1915
• Docket: 180
• Status: Published

Opinions

Mr. Justice Holmes

delivered the opinion of the court.

This is an indictment under § 19 of the Criminal Code, Act of March 4, 1909, c. 321, 35 Stat. 1088, 1092. It was demurred to and the demurrer was sustained by the District Court on the ground that the section did not apply to the acts alleged. As the judgment on the face of it turned upon the construction of the statute the United States brought the case to this court.

The indictment contains four counts. The first charges a conspiracy of the two defendants, who were officers and a majority of the county election board of Blaine County, Oklahoma, to injure and oppress certain legally qualified electors, citizens of the United States; being all the voters of eleven precincts in the county, in the free exercise and enjoyment of their right and privilege, under the Constitution and laws of the United States, of voting for a Member of Congress for their district. To that end, it is alleged, the defendants agreed that irrespective of the precinct returns being lawful and regular they would omit them from their count and from their returns to the state election board. The second count . charges the same conspiracy, a secret meeting of the defendants without the knowledge of the third member of their board for the purpose of carrying it out, and the overt act of making a false return, as agreed, omitting the returns from the named precincts although regular and entitled to be counted. The third count is like the first with the addition of some , details of the plan, intended to deceive the third member of their board. The fourth charges the same conspiracy, but states the object as being to injure and oppress the same citizens for and on account of their having exercised the right described.

The section is as follows: “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.” It is not open to question that this statute is constitutional, and constitutionally extends some protection at least to the right to vote for Members of Congress. Ex parte Yarbrough, 110 U. S. 651. Logan v. United States, 144 U. S. 263, 293. We regard it as equally unquestionable that the right to have one’s vote counted is as open to protection by Congress as the right to put a ballot in a box.

The only matter that needs argument is that upon which the District Court expressed its view — whether properly construed the statute purports to deal with such conduct as that of the defendants, assuming that there is no lack of power if such be its intent. Manifestly the words are broad enough to cover the case, but the argument that they have a different scope is drawn from the fact that originally this section was part of the Enforcement Act of May 31, 1870, c. 114, § 6, 16 Stat. 140, 141 (later, Rev. Stat., § 5508), and that by an earlier section of the same statute, § 4 (later, Rev. Stat., § 5506), every person who by any unlawful means hindered or combined with others to hinder any citizen .from voting at any election in any State, &c., was subjected to a much milder penalty than that under § 6. It may be thought that the Act of 1870 cannot have meant to deal a second time and in a much severer way in § 6 with what it had.disposed of a few sentences before. The other sections have been repealed, but § 19, it may be said, must mean what it meant in 1870 when the Enforcement Act was passed, and what it did mean will be seen more clearly from its original words.

In its original form the .section began “If two or more persons shall band or conspire together, or go in disguise Upon the public highway, or upon the premises of another, with intent to violate any provisions of this Act, or to injure, oppress,” &c. The source of this section in the doings of the Ku Klux and the like is obvious and acts "of violence obviously were in the mind of Congress. Naturally Congress put forth all its powers. But this section dealt with Federal rights and with all Federal rights, and protected them in the lump, whereas § 4, Rev. Stat., § 5506, dealt only with elections, and although it dealt with them generally and might be held to cover elections of Federal officers, it extended to all elections. It referred to conspiracies only as incident to its main purpose of punishing any obstruction to voting at any election in any State. The power was doubtful and soon was held to have been exceeded, United States v. Reese, 92 U. S. 214. See Logan v. United States, 141 U. S. 263. The subject was not one that called for the most striking exercise of such power as might 'exist. Any overlapping that there may have been well might have escaped attention, or if noticed have been approved, when we consider what must have been the respective emphasis in thé mind of Congress when the two sections were passed.

But § 6 being devoted, as we have said, to the protection of all Federal rights from conspiracies against them, naturally did not confine itself to conspiracies contemplating violence, although under the influence of the conditions then existing it put that class in the front. Just as the Fourteenth Amendment, to use the happy analogy suggested by the Solicitor General, was adopted with a view to the protection of the colored race but has been found to be equally important in its application to the rights of all, § 6 had a general scope and used general words that have become the most important now that the Ku Klux have passed away. The change of emphasis is shown by the wording already transposed in Rev. Stat., § 5508, and now in § 19. The clause as to going in disguise upon the highway has dropped into a subordinate place, and even there has a somewhat anomalous sound. The section now begins with sweeping general words. Those words always were in the act, and-the present form gives them a congressional interpretation. Even if that interpretation would not have been held correct in an indictment under § 6, which we are far from intimating, and if we cannot interpret the past by the present, we cannot allow the past so far to affect the present as to deprive citizens of the United States of the general protection which on its face § 19 most reasonably affords.

Judgment reversed.

Mr. Justice McReynolds did not sit in this case.