United States v. Gradwell

• Decision Date: 28 July 1916
• Citation: 234 F. 446
• Parties: UNITED STATES v. GRADWELL et al.
• Court: U.S. District Court — District of Rhode Island

234 F. 446

UNITED STATES v. GRADWELL et al.

United States District Court, D. Rhode Island.

July 28, 1916

Harvey A. Baker, U.S. Atty., of Providence, R.I. (William H Camfield, Asst. U.S. Atty., of Providence, R.I., on the brief), for the United States.

Barney Lee & McCanna, of Providence, R.I., for defendants Gradwell Mathewson, Warner, and Rathbun.

Charles A. Walsh, of Providence, R.I., for defendants Keach, Colvin Kresge, and Whitman.

Wilson, Gardner & Churchill, of Providence, R.I., for defendants Dodge and Hudson.

James E. Dooley, of Johnston, R.I., for defendant Carpenter.

Wayne H. Whitman, of Providence, R.I., for defendants Carr and Franklin.

BROWN District Judge.

This is an indictment under section 37 of the Criminal Code, charging a conspiracy to defraud the United States by corrupting a general election at which a Representative in Congress was voted for and elected.

The fundamental question is whether this conspiracy statute is to be so broadly construed as to comprehend a conspiracy of this character.

It is not contended that the conspiracy was to commit any offense against the United States, but the indictment rests upon the words 'to defraud the United States in any manner or for any purpose. ' It is well settled that these words are broad enough to include any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of the government. U.S. v. Barnow, 239 U.S. 74, 79, 36 Sup.Ct. 19, 60 L.Ed. 155; Haas v. Henkel, 216 U.S. 462, 479, 30 Sup.Ct. 249, 54 L.Ed. 569, 17 Ann.Cas. 1112; U.S. v. Plyler, 222 U.S. 15, 32 Sup.Ct. 6, 56 L.Ed. 70; U.S. v. Curley (D.C.) 122 F. 738, Id., 130 F. 1, 64 C.C.A. 369. But these and all cases cited, except one, relate to functions of the organized government, and not to a step in the organization of the government.

But a single case has been cited in which the statute has been extended to include fraud in the election of a member of Congress. U.S. v. Aczel et al. (D.C.) 219 F. 917, 921, 923, 934, 938. The learned judge, after a consideration of U.S. v. Curley, 130 F. 1, 64 C.C.A. 369, Id. (C.C.) 122 F. 738, and Haas v. Henkel, 216 U.S. 462, 30 Sup.Ct. 249, 54 L.Ed. 569, 17 Ann.Cas. 1112, expressed the opinion that:

'If a conspiracy which is calculated to * * * destroy the value of the operations and reports of the Bureau of Statistics of the Department of Agriculture as fair, impartial, and reasonably accurate would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or department regulations, it is perfectly plain that a conspiracy which is calculated to obstruct and impair, corrupt, and debauch an election where Senators and Representatives in Congress are to be elected, would be to defraud the United States by depriving the government itself of its lawful right to have such Senators and Representatives elected fairly and in accordance with the law.' Apparently the opinion proceeds on the assumption of an analogy between the obstruction of operations of the constituted government and obstruction of an election by which the people of the state make their choice of Representatives in Congress. Whether such assumption is justified requires careful examination and further consideration.

Assuming that the United States has such an interest in the election of a Representative in Congress as gives it constitutional power to pass statutes safeguarding such an election, no such statute is involved, and in the present case we are not directly concerned with any other existing statute passed by Congress to this end. The question is whether section 37 of the Criminal Code, in its inclusion of conspiracies to defraud, was intended as a statute for the protection of elections for Representatives in Congress, as well as for the protection of operations of the organized government.

The existence of a constitutional power in Congress to legislate in respect to the conduct of those elections whereby the people of a particular state choose their Representatives in Congress is of slight assistance in determining whether, by this conspiracy statute, it was intended to do so.

For many years this power was reserved, and was not exercised.

In the dissenting opinion of Mr. Justice Lamar in U.S. v. Mosley, 238 U.S. 388, 35 Sup.Ct. 904, 59 L.Ed. 1355, is a reference to the legislation under this power, and to the report of the committee (House Report No. 18, 53d Congress, 1st Session) as to the policy of federal legislation concerning elections held under state laws. See, also, Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717; Ex parte Clarke, 100 U.S. 399, 25 L.Ed. 715.

The question of protecting the United States against the class of frauds which involve merely the relations of the offender and the United States, and the question of legislating respecting the conduct of the elections whereby the people of the respective states choose their Representatives in Congress are substantially distinct, so distinct in substance that it is highly improbable that it was intended to legislate on both together. The Curley Case (C.C.) 122 F. 738, and 130 F. 1, 64 C.C.A. 369; Hass v. Henkel, 216 U.S. 462, 479, 30 Sup.Ct. 249, 54 L.Ed. 569, 17 Ann.Cas. 1112; and the cases other than the Aczel Case, involved no consideration of the relations between state and national governments, or of the political policy of exercising the constitutional power of Congress to legislate concerning the elections which are primarily the act of the people of the states in choosing their Representatives.

It is of course possible, by the use of abstract terms, to bring under a single classification things which are practically and substantially different. It is not enough, however, that the United States may be able to show that a violation of a constitutional right of the United States was contemplated by conspirators. We must find other than a verbal justification for giving to section 37 of the Criminal Code so broad a scope. It is a familiar rule that a thing may be within the letter of the statute, and yet not within the statute, because not within its spirit, nor within the intention of its makers. Holy Trinity Church v. U.S., 143 U.S. 457, 459, 12 Sup.Ct. 511, 36 L.Ed. 226.

The right of the United States in respect to these elections is a constitutional right to legislate or not to legislate as is deemed expedient or necessary. With this right, or with its exercise, no interference is charged in the indictment. But it is said that there is also in the government a right to have its Senators and Representatives elected fairly and in accordance with law, even when Congress has not legislated to define the right. It is inaccurate to say that the indictment charges a conspiracy to defraud the government of this right, nor can it be said that it is charged that the United States is obstructed in the performance of any active function in respect to this right. It may be said that this theoretical right is violated by doing what is inconsistent with it, and that a violation of the right is in a sense a fraud upon the United States. But in the inquiry whether section 37 was intended to vindicate this right, or to afford protection against its violation, we may consider what protection is otherwise afforded.

In Ex parte Siebold, 100 U.S. 392, 25 L.Ed. 717, it was said:

'As a general rule, it is no doubt expedient and wise that the operations of the state and national governments should as far as practicable be conducted separately, in order to avoid undue jealousies and jars and conflicts of jurisdiction and power. But there is no reason for laying this down as a rule of universal application.'

In the dissenting opinion in Ex parte Clarke, 100 U.S. 420, 25 L.Ed. 715, Mr. Justice Field emphasizes the interest of the states in maintaining the purity of such elections, and says:

'I do not think that any apprehension need be felt if the supervision of all elections in their respective states should also be left to them.'

This is a statement of a political policy which seems generally to have prevailed over the opposite policy by the repeal of the statutes which were adopted in reconstruction times.

In considering whether section 37 was intended as an exercise of constitutional power to protect against fraud in state elections, it is proper to consider that the so-called right of the United States to have duly chosen Representatives in Congress is safeguarded by the primary interest of the people of the states in this respect, and by the laws of the states, and that for this reason congressional legislation on the subject generally has been regarded as unnecessary.

It cannot be said that Congress was under any positive duty to legislate for the protection of state elections for members of Congress, or that there is any presumption of an intent to do so. But the right of the United States to duly elected Congressmen is protected by the Constitution itself in a provision which indicates distinctly the policy of excluding questions of this character from the jurisdiction of the courts, as well as of avoiding conflict between state and national governments, even though the right of Congress to legislate, if necessary, is reserved.

The House of Representatives is made the final judge of the elections, returns, and qualifications of its own members. The Representatives of all the other states pass upon the question whether the Representative of a particular state has been duly elected. The apparent intent was to remove such questions from executive, judicial, or even legislative control, and to confide them to the...