Huber v. Reily

• Decision Date: 20 July 1866
• Citation: Huber v. Reily, 53 Pa. 112 (Pa. 1866)
• Parties: Huber <I>versus</I> Reily.
• Court: Pennsylvania Supreme Court

Page 112

53 Pa. 112

HuberversusReily.

Supreme Court of Pennsylvania.

July 20, 1866.

ERROR to the Court of Common Pleas of Franklin county.

McClure & Stewart, and Stambaugh & Gehr, for plaintiff in error, took the following positions: —

1. That the plaintiff in error, in rejecting the defendant's ballot, acted in accordance with the provisions of the Act of Congress, approved March 3d 1865. And,

2. That this act is constitutional in its provisions.

On the 1st point they cited Acts of Congress of March 3d 1865, § 21, and March 3d 1863, § 13; Const. of Penna., art. 3, § 1; Lynch v.Clark, 1 Sandf. R. 583; Scottv.Sandford, 19 How. 533.

On the 2d point they cited Act of Congress of March 3d 1863; Kneedler v.Lane, 9 Wright 295, Vattel 106; Calderv.Bull, 3 Dall. 386; Murrayv.Hoboken Land Co., 18 How. 281, 282.

F. M. Kimmell, George W. Brewer, Wm. S. Stenger and J. McD. Sharpe, for defendant in error, made the following points: —

1. It is incompetent for Congress, under the Federal Constitution, to impair either directly or indirectly the right of suffrage in the states.

2. The Act of Congress of the 3d of March 1865, is an ex post facto law, and therefore violates the Federal Constitution.

3. The act proposes to inflict and impose pains and penalties upon offenders before and without a trial and conviction by due process of law, and therefore is in direct antagonism to the Bill of Rights.

They cited, on the 1st point, Const. of U. S., arts. 9 and 10; Commonwealth v.Hartman, 5 Harris 119.

On the 2d point, Calderv.Bull, 3 Dall. 386.

On the 3d point, Const. U. S., Amendments, art. 5; Brownv.Hummel, 6 Barr 91.

The opinion of the court was delivered, July 20th 1866, by STRONG, J.

The Act of Congress under which the defendant below justifies his refusal to receive the vote of the plaintiff is the one approved on the 3d day of March 1865.The 21st section is the only one applicable to this case, and it is as follows: "And be it further enacted, that in addition to the other lawful penalties of the crime of desertion from the military or naval service, all persons who have deserted the military or naval service of the United States, who shall not return to said service, or report themselves to a provost-marshal within sixty days after the proclamation hereafter mentioned, shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship and their rights to become citizens; and such deserters shall be for ever incapable of holding any office of trust or profit under the United States, or of exercising any right of citizens thereof; and all persons who shall hereafter desert the military or naval service, and all persons who being duly enrolled, shall depart the jurisdiction of the district in which he is enrolled, or go beyond the limits of the United States, with intent to avoid any draft into the military or naval service, duly ordered, shall be liable to the penalties of this section."This is followed by a clause authorizing and requiring the President to issue his proclamation setting forth the provisions of the section, and we know judicially that this was done on the 11th of March 1865.

The Act of Congress is highly penal.It imposes forfeiture of citizenship and deprivation of the rights of citizenship as penalties for the commission of a crime.Its avowed purpose is to add to the penalties which the law had previously affixed to the offence of desertion from the military or naval service of the United States, and it denominates the additional sanctions provided as penalties.Such being its character, it is, under the well-known rule of law, to receive a strict construction in favor of the citizen.

The constitutionality of the act has been assailed on three grounds.The first of these is that it is an ex post facto law, imposing an additional punishment for an offence committed before its passage, and altering the rules of evidence so as to require different and less proof of guilt than was required at the time of the perpetration of the crime.The second objection is that the act is an attempt by Congress to regulate the right of suffrage in the states, or to impair it, and the third objection is that the act proposes to inflict pains and penalties upon offenders before and without a trial and conviction by due process of law, and that it is therefore prohibited by the Bill of Rights.

In the view which we take of this case, and giving to the enactment the construction which we think properly belongs to it, it is unnecessary to consider, at length, either of these objections to its constitutionality.It may be insisted with strong reason that the penalty of forfeiture of citizenship imposed upon those who had deserted the military or naval service prior to the passage of the act is not a penalty for the original desertion, but for persistence in the crime, for failure (in the language of the statute) to return to said service, or to report to a provost-marshal within sixty days after the issue of the President's proclamation.If this is so, the Act of Congress is in no sense ex post facto, and it is not, for that reason, in conflict with the constitution.Its operation is entirely prospective.If a drafted man owes service to the Federal Government, every new refusal to render the service may be regarded as a violation of public duty, a public offence for which Congress may impose a penalty.And as it is the duty of every court to construe a statute, if possible, so "ut res magis valeat, quam pereat," that construction of this act must be adopted which is in harmony with the acknowledged powers of Congress, and which applies the forfeiture of citizenship to the new offence described as failure to return to service, or to report to the provost-marshal.

The second objection also assumes more than can be conceded.It is not to be doubted that the power to regulate suffrage in a state, and to determine who shall or who shall not be a voter, belongs exclusively to the state itself.The Constitution of the United States confers no authority upon Congress to prescribe the qualifications of electors within the several states that compose the Federal Union.Congress is indeed empowered to make regulations for the time, place and manner of holding elections for senators and representatives, or to alter those made by the legislature of a state (except those in relation to the places of choosing senators), but here its power stops.The right of suffrage at a state election is a state right, a franchise conferrable only by the state, which Congress can neither give nor take away.If, therefore, the act now under consideration is in truth an attempt to regulate the right of suffrage in the state, or to prescribe the conditions upon which that right may be exercised, it must be held unwarranted by the constitution.In the exercise of its admitted powers, Congress may doubtless deprive an individual of the opportunity to enjoy a right that belongs to him as a citizen of a state, even the right of suffrage.But this is a different thing from taking away or impairing the right itself.Under the laws of the Federal Government a voter may be sent abroad in the military service of the country, and thus deprived of the privilege of exercising his right; or a voter may be imprisoned for a crime against the United States, but it is a perversion of language to call this impairing his right of suffrage.Congress may provide laws for the naturalization of aliens, or it may refuse to provide such laws.Its action or non-action may thus determine whether individuals shall or shall not become citizens of the United States.And I cannot doubt that as a penalty for crime against the General Government, Congress may impose upon the criminal forfeiture of his citizenship of the United States.Disfranchisement of a citizen as a punishment for crime is no unusual punishment: Barker v. The People, 20 Johns. 458.If by the organic law of a state citizens of the United States only are allowed to vote, the action or non-action of Congress may thus indirectly affect the number of those entitled to the right of suffrage.Yet, after all, the right is one which its possessor holds as a citizen of a state, secured to him by the stateconstitution, and to be held on the terms prescribed by that constitution alone.

But it is not a correct view of the Act of Congress now before us to regard it as an attempt to override state constitutions or to prescribe the qualifications of voters.The act makes no change in the organic law of the state.It leaves that, as before, to confer the right of suffrage as it pleases.The enactment operates upon an individual offender, punishes him for violation of the Federal law by deprivation of his citizenship of the United States, but it leaves each state to determine for itself whether such an individual may be a voter.It does no more than increase the penalties of the law upon the commission of crime.Each state defines for itself what shall be the consequence of the infliction of such penalties.And with us, it is still our own constitution which restricts the right of suffrage and confers it upon those only who are inhabitants of the state and citizens of the United States.

The third objection against the validity of the Act of Congress would be a very grave one if the act does in reality impose pains and penalties before and without a conviction by due process of law.The fifth article of the amendments to the constitution ordains "that no person shall be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger, nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness...