A. D. JAMES, United States Marshal for the Western District of Kentucky, and The United States, Appts., v. HENRY BOWMAN.

190 U.S. 127

23 S.Ct. 678

47 L.Ed. 979

A. D. JAMES, United States Marshal for the Western District of Kentucky, and The United States, Appts.,

No. 213.

Argued March 16, 1903.

Decided May 4, 1903.

In December, 1900, an indictment was found by the United States district court for the district of Kentucky against the appellee, Henry Bowman, and one Harry Weaver, based upon § 5507 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 3712). The indictment charged, in substance, that certain 'men of African descent, colored men, negroes, and not white men,' being citizens of Kentucky and of the United States, were, by means of bribery, unlawfully and feloniously intimidated and prevented from exercising their lawful right of voting at a certain election held in the fifth congressional district of Kentucky on the 8th day of November, 1898, for the election of a representative in the Fifty-sixth Congress of the United States.

No allegation is made that the bribery was because of the race, color, or previous condition of servitude of the men bribed. The appellee, Henry Bowman, having been arrested and held in default of bail, sued out a writ of habeas corpus on the ground of the unconstitutionality of § 5507. The district judge granted the writ, following reluctantly the decision of the circuit court of appeals for the sixth circuit, in Lackey v. United States, 53 L. R. A. 660, 46 C. C. A. 189, 107 Fed. 114. From that judgment the government has taken this appeal.

Section 5507 is as follows:

'Sec. 5507. Every person who prevents, hinders, controls, or intimidates another from exercising, or in exercising the right of suffrage, to whom that right is guaranteed by the Fifteenth Amendment to the Constitution of the United States, by means of bribery or threats of depriving such person of employment or occupation, or of ejecting such person from a rented house, lands, or other property, or by threats of refusing to renew leases or contracts for labor, or by threats of violence to himself or family, shall be punished as provided in the preceding section.'

The 15th Amendment provides:

'Sec. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

'Sec. 2. The Congress shall have power to enforce this article by appropriate legislation.'

Solicitor General Hoyt and Mr. W. R. Harr for appellants.

[Argument of Counsel from pages 128-131 intentionally omitted]

Messrs. Swagar Sherley and W. B. Dixon for appellee.

[Argument of Counsel from pages 131-135 intentionally omitted]

Mr. Justice Brewer delivered the opinion of the court:


The single question presented for our consideration is whether § 5507 can be upheld as a valid enactment, for, if not, the indictment must also fall, and the defendant was rightfully discharged. On its face the section purports to be an exercise of the power granted to Congress by the 15th Amendment, for it declares a punishment upon anyone who, by means of bribery, prevents another to whom the right of suffrage is guaranteed by such amendment from exercising that right. But that amendment relates solely to action 'by the United States or by any state,' and does not contemplate wrongful individual acts. It is in this respect similar to the following clauses in the 14th Amendment:


'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'


Each of these clauses has been often held to relate to action by a state, and not by individuals. As said in Virginia v. Rives, 100 U. S. 313, 318, sub nom. Ex parte Virginia, 25 L. ed. 667, 669:


'The provisions of the 14th Amendment of the Constitution we have quoted all have reference to state action exclusively, and not to any action of private individuals.'


Again, in Ex parte Virginia, 100 U. S. 339, 346, 25 L. ed. 676, 679:


'They have reference to actions of the political body denominated a state, by what ever instruments or in whatever modes that action may be taken. A state acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are officers or agents by whom its powers are jurisdiction the equal protection of the laws.'


Again , in United States v. Cruikshank, 92 U. S. 542, 554, 23 L. ed. 588, 592:


'The 14th Amendment prohibits a state from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add anything to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the states; and it still remains there. The only obligation resting upon the United States is to see that the states do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.'


In Civil Rights Cases, 109 U. S. 3, 13, 27 L. ed. 835, 840, 3 Sup. Ct. Rep. 18, 22:


'And so in the present case, until some state law has been passed, or some state action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the 14th Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity; for the prohibitions of the amendment are against state laws and acts done under state authority. Of course, legislation may, and should be, provided in advance to meet the exigency when it arises; but it should be adapted to the mischief and wrong which the amendment was intended to provide against; and that is, state laws, or state action of some kind, adverse to the rights of the citizen secured by the amendment. Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty, and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the state legislatures, and to supersede them. It is absurd to affirm that, because the rights of life, liberty, and property (which include all civil rights that men have) are by the amendment sought to be protected against invasion on the part of the state without due process of law, Congress may therefore provide due process of law for their vindication in every case; and that, because the denial by a state to any persons of the equal protection of the laws is prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation; that is, such as may be necessary and proper for counteracting such laws as the states may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the states may commit or take, and which, by the amendment, they are prohibited from committing or taking.'


United States v. Harris, 106 U. S. 629, 639, 27 L. ed. 290, 294, 1 Sup. Ct. Rep. 601, 609:


'The language of the amendment does not leave this subject in doubt. When the state has been guilty of no violation of its provisions; when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has deprived any person of life, liberty, or property without due process of law, or denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the state, as enacted by its legislative, and construed by its judicial, and administered by its executive, departments, recognize and protect the rights of all persons,—the amendment imposes no duty, and confers no power, upon Congress.'


See also Slaughter-House Cases, 16 Wall. 36. 21 L. ed. 394; Scott v. McNeal, 154 U. S. 34, 45, 38 L. ed. 896, 901, 14 Sup. Ct. Rep. 1108; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 233, 41 L. ed. 979, 983, 17 Sup. Ct. Rep. 581.


But we are not left alone to this reasoning from analogy. The 15th Amendment itself has been considered by this court, and the same limitations placed upon its provisions. In United States v. Reese, 92 U. S. 214, 217, 23 L. ed. 563, 564, we said:


'The 15th Amendment does not confer the right of suffrage upon anyone. It prevents the states, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, color, or previous condition of servitude. Before its adoption this could be done. It was as much within the power of state to exclude citizens of the United States from voting on account of race, etc., as it was on account of age, property, or education. Now it is not. If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment, there was no constitutional guaranty against this discrimination; now ther is It follows that the amendment has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. This, under the express provisions of the 2d section of the Amendment, Congress may enforce by 'appropriate legislation."


In passing it may be noticed that this indictment charges no wrong done by the state of Kentucky, or by anyone acting under its authority. The matter complained of was purely as individual act of the defendant. Nor is it charged that the bribery was on account of race, color, or previous condition of servitude. True, the parties who were bribed were alleged to be 'men of African descent, colored men, negroes, and not white men,' and again, that they were 'persons to whom the right of suffrage and the right to vote was then and there guaranteed by the 15th Amendment to the Constitution of the United States.' But this merely describes the parties wronged as within the classes named in the amendment. They were not bribed because they were colored men, but because they were voters. No discrimination on account of race, color, or previous condition of servitude is charged.


These authorities show that a statute which purports to punish purely individual action cannot be sustained as an appropriate exercise of the power conferred by the 15th Amendment upon Congress to prevent action by the state through some one or more of its official representatives, and that an indictment which charges no discrimination on account of race, color, or previous condition of servitude is likewise destitute of support by such amendment.


But the contention most earnestly pressed is that Congress has ample power in respect to elections of representative in Congress; that the election which was held, and at which this bribery took place, was such an election; and that therefore under such general power this statute and this indictment can be sustained. The difficulty with this contention is that Congress has not by this section acted in the exercise of such power. It is not legislation in respect to elections of Federal officers, but is leveled at all elections, state or Federal, and it does not purport to punish bribery of any voter, but simply of those named in the 15th Amendment. On its face it is clearly an attempt to exercise power supposed to be conferred by the 15th Amendment in respect to all elections, and not in pursuance of the general control by Congress over particular elections. To change this statute, enacted to punish bribery of persons named in the 15th Amendment at all elections, to a statute punishing bribery of any voter at certain elections would be in effect judicial legislation. It would be wresting the statute from the purpose with which it was enacted and making it serve another purpose. Doubtless even a criminal statute may be good in part and bad in part, providing the two can be clearly separated, and it is apparent that the legislative body would have enacted the one without the other, but there are no two parts to this statute. If the contention be sustained, it is simply a transformation of the statute in its single purpose and scope. This question has been by this court in two cases carefully considered and fully determined. In United States v. Reese, 92 U. S. 214, 23 L. ed. 563, there was an indictment, one count of which was based upon the 3d and another upon the 4th section of the act of May 31, 1870 (16 Stat. at L. 140, chap. 114, U. S. Comp. Stat. 1901, p. 506) the 5th section of which act is substantially repeated in § 5507, Rev. Stat. (U. S. Comp. Stat. 1901, p. 3712). It is true that, as stated, § 4 contains 'no words of limitation or reference, even, that can be construed as manifesting any intention to confine its provisions to the terms of the 15th Amendment. That section has for its object the punishment of all persons who by force, bribery, etc., hinder, delay, etc., any person from qualifying or voting.' And it is also true that the government expressly waived the consideration of all claims not arising out of the enforcement of the 15th Amendment to the Constitution. Nevertheless the decision is directly in point. We said (p. 221, L. ed. p. 565):


'We are, therefore, directly called upon to decide whether a penal statute enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constituional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish. For this purpose, we must take these sections of the statute as they are. We are not able to reject a part which is unconstitutional, and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of the sections must stand as a whole or fall altogether. The language is plain. There is no room for construction, unless it be as to the effect of the Constitution. The question, then, to be determined is, whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only.


'It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government. . . . To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty.'


Again, in the Trade-Mark Cases, 100 U. S. 82, sub nom. United States v. Steffens, 25 L. ed. 550, the validity of an indictment under the 4th and 5th sections of the act of Congress to punish the counterfeiting of trademarks (19 Stat. at L. 141, chap. 274) was considered. The congressional enactments at that time attempted to authorize trademarks generally, and the statute referred to was equally general. It was held that under the Constitution Congress did not have control over the subject of trademarks generally, and, referring to the contention that to a limited extent it had, we said (p. 98, L. ed. p. 553):


'It has been suggested that if Congress has power to regulate trademarks used in commerce with foreign nations and among the several states, these statutes shall be held valid in that class of cases, if no further. . . . While it may be true that when one part of a statute is valid and constitutional, and another part is unconstitutional and void, the court may enforce the valid part where they are distinctly separable, so that each can stand alone, it is not within the judicial province to give to the words used by Congress a narrower meaning than they are manifestly intended to bear in order that crimes may be punished which are not described in language that brings them within the constitutional power of that body. This precise point was decided in United States v. Reese, 92 U. S. 214, 23 L. ed. 563. In that case Congress had passed a statute punishing election officers who should refuse to any person lawfully entitled to do so the right to cast his vote at an election. This court was of the opinion that, as regarded the section of the statute then under consideration, Congress could only punish such denial when it was on account of race, color, or previous condition of servitude. It was urged, however, that the general description of the offense included the more limited one, and that the section was valid where such was in fact the cause of denial. But the court said' (and then follows the quotation we have already made from that case).


We deem it unnecessary to add anything to the views expressed in these opinions. We are fully sensible of the great wrong which results from bribery at elections, and do not question the power of Congress to punish such offenses when committed in respect to the election of Federal officals. At the same time it is all-important that a criminal statute should define clearly the offense which it purports to punish, and that when so defined it should be within the limits of the power of the legislative body enacting it. Congress has no power to punish bribery at all elections. The limits of its power are in respect to elections in which the nation is directly interested, or in which some mandate of the national Constitution is disobeyed; and courts are not at liberty to take a criminal statute, broad and comprehensive in its terms and in these terms beyond the power of Congress, and change it to fit some particular transaction which Congress might have legislated for if it had seen fit.


The judgment of the District Court is affirmed.


Mr. Justice McKenna took no part in the decision of this case.


Mr. Justice Harlan and Mr. Justice Brown dissented.

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