State v. Tachin

• Decision Date: 27 February 1919
• Citation: 106 A. 145
• Parties: STATE v. TACHIN et al.
• Court: New Jersey Supreme Court

106 A. 145

STATE

v. TACHIN et al.

Supreme Court of New Jersey.

Feb. 27, 1919.

Error to Court of Quarter Sessions, Hudson County.

Tony Tachin and Fred Fedodoff were convicted of attempting by speech to incite hostility and opposition to the government of the United States, and they bring error. Affirmed.

Argued November term, 1918, before the CHIEF JUSTICE and SWAYZE and TRENCHARD, JJ.

Otto A. Stiefel, of Newark, with Jennie Richer, of Newark, in the quarter sessions, for plaintiffs in error.

George T. Viekers, of Jersey City (Pierre P. Garven, of Bayonne, on the brief), for the State.

SWAYZE, J. The defendants were cohvicted of the violation of section 2 of the Supplement of 1918 to the Crimes Act (P. L. 1918, p. 130). The specific charge was that they attempted by speech to incite, abet, promote, and encourage hostility and opposition to the government of the United States, in that in the presence of divers good people then and there assembled they said with a loud voice to the persons there assembled in substance that the present war in which the government of the United States is engaged with Germany was a war for the benefit of the capitalists of the world only; that the President of the United States at the behest of the capitalists was sending our men to France to be slaughtered; that the people of the United States did not need any government; and that the persons present should arm themselves for protection against the government.

The case is before us on a strict writ of error. The defendants, for what no doubt they thought good reasons, or at least good policy, have not had the whole record certified under section 136 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863). This relieves us from a consideration of most of the so-called assignments of error, since they challenge only the somewhat oratorical comments of the learned trial judge on the evidence, and present no legal error.

The stress of the argument of the plaintiff in error was on the constitutionality of the statute itself. It is said to be beyond the jurisdiction of the state and to violate the right of free speech.

1. Is it competent for the state to deal with such an offense when directed against the federal government alone? It has been held by the United States Supreme Court that a state may make counterfeiting of money and securities of the United States a crime (Fox v. Ohio, 5 How. 410, 12 L. Ed. 213); that the United States may punish the counterfeiting of foreign coin (United States v. Marigold, 9 How. 560, 13 L. Ed. 257); that a state may pass laws making it a crime to harbor or secrete a fugitive slave (Moore v. Illinois, 14 How. 13, 14 L. Ed. 306). A statute of the United States making criminal certain conduct in connection with state elections has been sustained (Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; Ex parte Clark, 100 U. S. 399, 25 L. Ed. 715), but this involves considerations different from those involved in the case of a state statute, owing to the broader sovereignty of the states. It has also been held that a man may be held criminally under a state law for extortion, where the basis of the extortion was a threat to accuse of having committed an act which was a crime exclusively against the United States and made so by a federal statute (using cigar boxes a second time), Sexton v. California, 189 U. S. 319, 23 Sup. Ct. 543, 47 L. Ed. 833. On the other hand, a man may not be held for perjury under the state law because he makes oath before a notary public of a state upon a contested election for member of the national Congress. In re Loney, 134 U. S. 372, 10 Sup. Ct. 384, 33 L. Ed. 949. The opinions in these cases make it clear that there is no constitutional objection to a concurrent exercise of jurisdiction, but there must be a crime against the state as distinguished from a crime against the United States alone.

In the pending case the crime is sedition. Primarily sedition against the United States is a crime against the federal government, which is the direct subject of attack; but under our system the federal and state governments are so closely interwoven that an attack on the former may imperil the existence of the latter. The right of suffrage is fundamental. That right is conferred by New Jersey upon every male citizen of the United States who possesses certain qualifications, and the meaning of "citizen of the United States," certainly since the Fourteenth Amendment, has been defined by federal authority. If the federal government, which is a government of delegated powers only, under the Tenth Amendment to the federal Constitution, can properly protect by its criminal law the honesty and purity of elections, as the Siebold Case decided, much more can the state government protect its own existence against sedition which, although aimed directly at the federal government, must indirectly affect the security of the state government. The Supreme Court of the United States has said it is a vital principle "that, except as restrained by its own fundamental law, or by the supreme law of the land, a state possesses all legislative power consistent with a republican form of government; therefore each state, when not thus restrained, and so far as this court is concerned, may, by legislation, provide, not only for the health, morals, and safety of its people but for the common good, as involved in the well-being, peace, happiness, and prosperity of the people." Halter v. Nebraska, 205 U. S. 34, 40, 27 Sup. Ct. 419, 421 (51 L. Ed. 696, 10 Ann. Cas. 525). In that case an act of Nebraska making criminal the desecration of the national flag by use in trade and for advertising purposes, was sustained. It is true that there was no act of Congress forbidding such a desecration, and there is an act of Congress punishing sedition. That fact, however, cannot operate to destroy the power of the state. The act of Congress, if inconsistent, supersedes the act of the state Legislature; but the cases already cited suffice to show that the two acts may both be in force, one punishing the crime against the national government, and one punishing the crime against the state government, though both crimes are constituted by the same facts. We find nothing inconsistent between the act of Congress and the act of New Jersey.

2. Whether the act of 1918 violates the right of free speech depends upon its proper construction. If, as the plaintiffs in error argue, it forbids all hostility or opposition to the President or the administration of the national government or to the existence of the government, the rule established by the Court of Errors and Appeals in George v. Braddock, 45 N. J. Eq. 757, 18 Atl. 881, 6 L. R. A. 511, 14 Am. St. Rep. 754, would apply. Within a few months, a large plurality of the voters evinced by their ballots hostility and opposition to the President, the Senate, and the House of Representatives in face of a direct appeal for support. Every one would see the absurdity of suggesting that the voters who thus evinced hostility and opposition to the administration of the government were guilty of a crime under the act of 1918. If the time should ever come when such a proposition is seriously defended, the end of free government would be near. The statute does not denounce hostility or opposition to those who administer the government, but hostility or opposition to the government of the United States itself. The right of citizens to express their sentiments with freedom in a proper way could not constitutionally be taken away, and as long as the Constitution has vigor men may criticize the administration, even in time of war, as they have criticized without...