Lackey v. United States

• Decision Date: 12 February 1901
• Docket Number: 840.
• Citation: 107 F. 114
• Parties: LACKEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

107 F. 114

LACKEY v. UNITED STATES.

No. 840.

United States Court of Appeals, Sixth Circuit.

February 12, 1901

The plaintiff in error has been convicted under an indictment based upon section 5507 of the Revised Statutes of the United States. The indictment contained two counts, the first of which charged, in substance, that certain 'negroes colored men, men of African descent, and not while men,' being citizens of Kentucky and of the United States, and qualified voters under the laws of Kentucky and of the United States, were unlawfully and feloniously 'and on account of their race, color, and previous condition of servitude,' intimidated and prevented from exercising their lawful right of suffrage at a certain state election held in the state of Kentucky on November 7, 1899, for the election of state, county, and municipal officers, 'by means of bribery, and by bribing them,' the said citizens and voters of African descent. The second count is identical with the first, save that it omits the averments that the intimidation and bribery were 'on account of race, color or previous condition of servitude. ' The district attorney dismissed the first count, and went to trial upon the second count, and secured a conviction thereunder.

See 99 F. 952.

Isaac T. Woodson, for plaintiff in error.

R. D Hill and W. C. P. Breckenridge, for the United States.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

LURTON Circuit Judge, having made the foregoing statement of the case, .

There was evidence tending to show that the plaintiff in error 'prevented' a number of voters 'of African descent' from voting at a purely state election, at which they were qualified to vote under the law of Kentucky, by promising them that if they would go away from the polls without voting, and stay away until after the polls had been closed, he would pay each of them the sum of five dollars. The only count upon which the plaintiff in error was tried contained no averment that these colored voters were 'prevented' from exercising the right of suffrage 'on account of race, color, or previous condition of servitude,' nor was any such discrimination made an element of the offense by any ruling or charge of the court below. Neither was it averred in the indictment, nor shown in the proof, that these colored citizens and voters were prevented, hindered, or controlled in the exercise of their right of suffrage at any election at which either presidential electors or congressmen were to be voted for. Nor was it averred or pretended that there was any law of the state of Kentucky which either denied or abridged the right of suffrage on 'account of race, color, or previous condition of servitude,' or that the plaintiff in error, in preventing these colored voters from exercising the right of suffrage, was acting in any official character whatever. Is it, then, an offense against the United States, if a private citizen prevents a colored citizen and qualified voter from voting at a purely state election, where his conduct is not grounded upon 'race, color, or previous condition of servitude'? The indictment is based upon section 5507 of the Revised Statutes of the United States, which reads as follows:

'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, by threats of refusing to renew leases or contracts of labor, or by threats of violence to himself or family, shall be punished as provided in the preceding section.'

This section comes from the enforcement act of May 31, 1870 (16 Stat. 141), and is the fifth section of that act, carried into the revision without alteration. This section provides for the punishment of those who obstruct the free exercise of the elective franchise, without distinction between elections where presidential electors or members of congress are to be chosen and those which are only for the election of state or municipal officers. It is also very clear that it is not limited to offenses grounded upon race, color, or previous condition of servitude. The only limitation of the provision is that the offenses shall be in respect of the exercise of the right of suffrage by a class of voters described as those 'to whom that right is guaranteed by the fifteenth amendment to the constitution of the United States. ' It is a well-settled rule of constitutional construction that the congress has power to protect the exercise of every right, privilege, or immunity by such legislation as may be reasonably adapted to that end. Ex parte Yarbrough, 110 U.S. 651, 4 Sup.Ct. 152, 28 L.Ed. 274; In re Neagle, 135 U.S. 1, 10 Sup.Ct. 658, 34 L.Ed. 55; Logan v. U.S., 144 U.S. 263, 12 Sup.Ct. 617, 36 L.Ed. 429; In re Quarles, 158 U.S. 532, 15 Sup.Ct. 959, 39 L.Ed. 1080. Examples of rights arising under or dependent upon the constitution and laws of the United States are found in the cases cited above. Thus, the right to vote for a member of congress was, in Ex parte Yarbrough, held to be a right arising under the constitution of the United States. In U.S. v. Cruikshank 92 U.S. 542, 553, 23 L.Ed. 588, it was said that the right to petition congress for a redress of grievances is a right secured to citizens of the United States by the constitution. In Logan v. U.S., cited above, it was held that the right of a prisoner in the lawful custody of an officer of the United States to be protected against assault and murder is a right arising under and dependent upon the constitution. In Re Quarles, cited above, it was held that it is the right of every private citizen to inform a marshal of the United States of a violation of the revenue laws of the United States, and a right secured by the constitution, and that a conspiracy to injure, oppress, threaten, or intimidate in the free exercise of this right, or because of having exercised it, is punishable under section 5508 of the Revised Statutes. So, in the Case of Neagle, 135 U.S. 1, 10 Sup.Ct. 658, 34 L.Ed. 55, it was held that the right of every judicial or executive officer of the United States to be protected from lawless violence while in the exercise of the duties and functions of his office is a right arising under the constitution, and that it is the duty of the United States to afford such protection. In Ex parte Yarbrough the conviction was upon an indictment based upon section 5508, Rev. St., which provides for the punishment of those who 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. ' The conspiracy charged was that the defendants conspired to intimidate a citizen of African descent in the exercise of his right to vote for a member of congress, and that they did this on account of his race, color, or previous condition of servitude. The conviction was sustained upon the ground that the right to vote for a member of congress depended upon the constitution of the United States, and was, therefore, a right secured thereby, which it was the duty of congress to protect. Upon this subject, the court, speaking by Justice Miller, said:

'But it is not correct to say that the right to vote for a member of congress does not depend on the constitution of the United States. The office, if it be properly called an office, is created by that constitution, and by that alone. It also declares how it shall be filled by election. Its language is: 'The house of representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.' Article 1, Sec. 2. The states, in prescribing the qualifications of voters for the most numerous branch of their own legislatures, do not do this with reference to the election for members of congress. Nor can they prescribe the qualification for voters for those eo nomine. They define who are to vote for the popular branch of their own legislature, and the constitution of the United States says the same persons shall vote for members of congress in that state. It adopts the qualification thus furnished as the qualification of its own electors for members of congress. It is not true, therefore, that electors for members of congress owe their right to vote to the state law in any sense which makes the exercise of the right to depend exclusively on the law of the state.'

The judgment of the court was also rested, in part, upon the broader ground that the congress had the general implied 'power to protect the elections on which its existence depends from violence and corruption. ' But all that is said in that case upon this aspect of the question was said of elections at which electors or congressmen are to be chosen, and of the direct interest of the United States in securing such elections from violence, corruption, and fraud. But whether the power of congress to legislate in respect to congressional elections depends upon the effect of the second and fourth sections of article 1 of the constitution, or arises out of the implied power to protect such elections against violence and fraud because they are federal elections so far as federal officials are thereby directly chosen, it is very obvious that, whether such power be attributed to either the one or the other source, it furnishes...