Newberry v. United States, 559

Decision Date02 May 1921
Docket NumberNo. 559,559
Citation41 S.Ct. 469,256 U.S. 232,65 L.Ed. 913
PartiesNEWBERRY et al. v. UNITED STATES
CourtU.S. Supreme Court

[Syllabus from pages 232-234 intentionally omitted] Mr. Charles E. Hughes, or New York City, for plaintiffs in error.

[Argument of Counsel from pages 234-240 intentionally omitted] Messrs. Solicitor General Frierson, of Chattanooga, Tenn., and Frank C. Dailey, of Indianapolis, Ind., for the United States.

[Argument of Counsel from pages 240-243 intentionally omitted] Mr. Justice McREYNOLDS delivered the opinion of the Court.

Plaintiffs in error—Truman H. Newberry, Paul H. King, and 15 others—were found guilty of conspiring (Criminal Code, § 37; Comp. St. § 10201) to violate section 8, Act of Congress approved June 25, 1910, c. 392, 36 Stat. 822-824, as amended by Act of August 19, 1911, c. 33, § 2, 37 Stat. 25-29 (Comp. St. 195), the federal Corrupt Practices Act, which provides:

'No candidate for Representative in Congress or for Senator of the United States shall give, contribute, expend, use, or promise, or cause to be given, contributed, expended, used, or promised, in procuring his nomination and election any sum, in the aggregate, in excess of the amount which he may lawfully give, contribute, expend, or promise under the laws of the state in which he resides: Provided, that no candidate for Representative in Congress shall give, contribute, expend, use, or promise any sum, in the aggregate, exceeding five thousand dollars in any campaign for his nomination and election; and no candidate for Senator of the United States shall give, contribute, expend, use, or promise any sum, in the aggregate, exceeding ten thousand dollars in any campaign for his nomination and election:

'Provided further, that money expended by any such candidate to meet and discharge any assessment, fee, or charge made or levied upon candidates by the laws of the state in which he resides, or for his necessary personal expenses, incurred for himself alone, for travel and subsistence, stationery and postage, writing or printing (other than in newspapers), and distributing letters, circulars, and posters, and for telegraph and telephone service, shall not be regarded as an expenditure within the meaning of this section, and shall not be considered any part of the sum herein fixed as the limit of expense and need not be shown in the statements herein required to be filed.' Comp. St. § 195(7).

Act No. 109, Sec. I, Michigan Legislature, 1913, prohibits expenditure by or on behalf of a candidate, to be paid by him, in securing his nomination, of any sum exceeding 25 per centum of one year's compensation; and puts like limitation upon expenditures to obtain election after nomination. Section I is copied below.1

Taken with the state enactment, the federal statute in effect declares a candidate for the United States Senate punishable by fine and imprisonment, if (except for certain specified purposes) he give, contribute, expend, use, promise or cause to be given, contributed, expended, used or promised in procuring his nomination and election more than $3,750—one-half of one year's salary. Under the construction of the act urged by the government and adopted by the court below it is not necessary that the inhibited sum be paid, promised or expended by the candidate himself, or be devoted to any secret or immoral purpose. For example, its open and avowed contribution and use by supporters upon suggestion by him or with his approval and cooperation in order to promote public discussion and debate touching vital questions or to pay necessary expenses of speakers, etc., is enough. And upon such interpretation the conviction below was asked and obtained.

The indictment charges: That Truman H Newberry became a candidate for the Republican nomination for United States Senator from Michigan at the primary election held August 27, 1918; that by reason of selection and nomination therein he became a candidate at the general election, November 5, 1918; that he and 134 others (who are named) at divers times from December 1, 1917, to November 5, 1918, unlawfully and feloniously did conspire, combine, confederate, and agree together to commit the offense on his part of wilfully violating the Act of Congress approved June 25, 1910, as amended, by giving, contributing, expending, and using and by causing to be given, contributed, expended and used, in produring his nomination and election at said primary and general elections, a greater sum than the lawsof Michigan permitted and above ten thousand dollars, to wit, $100,000, and on thepart of the other defendants of aiding, counseling, inducing, and procuring Newberry as such candidate to give, contribute, expend, and use or cause to be given, contributed, expended and used said large and excessive sum in order to procure his nomination and election. Plaintiffs in error were convicted under count one, set out in the margin.2

The court below overruled a duly interposed demurrer which challenged the constitutionality of section 8; and by so doing we think fell into error.

Manifestly, this section applies not only to final elections for choosing Senators but also to primaries and conventions of political parties for selection of candidates. Michigan and many other states undertake to control these primaries by statutes and give recognition to their results. And the ultimate question for solution here is whether under the grant of power to regulate 'the manner of holding elections' Congress may fix the maximum sum which a candidate therein may spend, or advise or cause to be contributed and spent by others to procure his nomination.

Section 4, article 1, of the Constitution provides:

'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.'

Here is the source of Congressional power over the elections specified. It has been so declared by this courtEx parte Siebold, 100 U. S. 371, 25 L. Ed. 717; United States v. Gradwell 243 U. S. 476, 481, 37 Sup. Ct. 407, 61 L. Ed. 857—and the early discussions clearly show that this was then the accepted opinion. The Federalist, LVIII, LIX, LX; Elliot's Debates, vol. II, 50, 73, 311; volume III, 86, 183, 344, 375; volume IV, 75, 78, 211.

We find no support in reason or authority for the argument that because the offices were created by the Constitution, Congress has some indefinite, undefined power over elections for Senators and Representatives not derived from section 4.

'The government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.' Martin v. Hunter's Lessee, 1 Wheat. 304, 326 (4 L. Ed. 97).

Clear constitutional provisions also negative any possible inference of such authority because of the supposed anomaly 'if one government had the unrestricted power to control matters affecting the choice of the officers of another.' Mr. Iredell (afterwards of this court) in the North Carolina Convention of 1788, pointed out that the states may—must indeed—exert some unrestricted control over the federal government:

'The very existence of the general government depends on that of the state governments. The state Legislatures are to choose the senators. Without a Senate there can be no Congress. The state Legislatures are also to direct the manner of choosing the President. Unless, therefore, there are state Legislatures to direct that manner, no President can be chosen. The same observation may be made as to the House of Representatives, since, as they are to be chosen by the electors of the most numerous branch of each state Legislature. If there are no state Legislatures, there are no persons to choose the House of Representatives. Thus it is evident that the very existence of the general government depends on that of the state Legislatures.' Elliot's Debates, vol. IV, p. 78.

See also The Federalist, XLIV.

The federal features of our government are so clear and have been so often declared that no valuable discussion can proceed upon the opposite assumption.

Undoubtedly elections within the original intendment of section 4 were those wherein Senators should be chosen by Legislatures and Representatives by voters possessing 'the qualifications requisite for electors of the most numerous branch of the state Legislature.' Article 1, §§ 2 and 3. The Seventeenth Amendment, which directs that Senators be chosen by the people, neither announced nor requires a new meaning of election and the word now has the same general significance as it did when the Constitution came into existence—final choice of an officer by the duly qualified electors. Hawke v. Smith, 253 U. S. 221, 40 Sup. Ct. 495, 64 L. Ed. 871. Primaries were then unknown. Moreover, they are in no sense elections for an office but merely methods by which party adherents agree upon candidates whom they intend to offer and support for ultimate choice by all qualified electors. General provisions touching elections in Constitutions or statutes are not necessarily applicable to primaries—the two things are radically different. And this view has been declared by many state courts. People v. Cavanaugh, 112 Cal. 674, 44 Pac. 1057; State v. Erickson, 119 Minn. 152, 137 N. W. 385; State v. Taylor, 220 Mo. 618, 119 S. W. 373; State v. Woodruff, 68 N. J. Law, 89, 52 Atl. 294; Commonwealth v. Wells, 110 Pa. 463, 1 Atl. 310; Ledgerwood v. Pitts, 122 Tenn. 570, 125 S. W. 1036.

Sundry provisions of the Constitution indicate plainly enough what its framers meant by elections and the 'manner of holding' them:

'The House of Representatives shall be composed of members chosen every second year by the people of the several states.'...

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