Opinion of the Court.

The record presented to us is very simple, there being no other statement of the proceedings had upon the indictment

pal law or authority, who neglects or refuses to perform any duty in regard to such election required of him by any law of the United States, or of any State or Territory thereof; or who violates any duty, so imposed; or who knowingly does any acts thereby unauthorized, with intent to affect any such election or the result thereof; . . . shall be punished as prescribed in section fifty-five hundred and eleven."

Observe, "intent” is not made an element in determining the existence of the offences specified in that section, except in those cases where the offender knowingly does an act "unauthorized" by the law of the United States, or by the law of the State or Territory under whose sanction he exercises the functions of an officer of election. His neglect or refusal to perform a duty required by law in regard to an election, at which a Representative of Congress is voted for, is made by this section an offence against the United States, although such non-performance of duty is without an evil intent; while the doing of an act simply "unauthorized" by law is not punishable unless done with an intent to affect the election or the result thereof. Whether that distinction is justified by sound public policy was for the law-making department of the government to determine. It was well said by the court, commenting on § 5515, in United States v. Jackson, 25 Fed. Rep. 548, 549, 550:

Congress seeks by this statute to guard the election of members of Congress against any possible unfairness, by compelling, under its pains and penalties, every one concerned in holding the election to a strict and scrupulous observance of every duty devolved upon him while so engaged. . The evil intent consists in disobedience to the law. The legislature has the power to adjudge, and does adjudge, that the doing of the thing is not for the public good; and whether its judgment be wise or unwise, it is always binding on the citizen, and the doing of it is a crime. This is particularly so with reference to that class of statutes imposing duties on public. officials in the exercise of their public functions. The command of the legislative will must be obeyed, and disobedience is a crime, and may be punished as such."

I proceed to inquire whether the alleged surrender of the certificate, tally paper, and poll list was a violation of any duty imposed upon the inspector as an officer of the election at which a Representative in Congress was voted for. If it was, it follows, in view of the plain words of the statute, that he committed an offence against the United States; consequently, those who conspired to induce or procure, and any one who advised, counselled, induced, or procured him to neglect or violate his duty by surrendering the election papers to Perkins also committed an offence against the United States.

The duties imposed by the laws of the State upon inspectors at an election at which a Representative in Congress is voted for are set forth in c. 56 of the Revised Statutes of the State of 1881.

Opinion of the Court.

than is contained in that instrument itself, and the judgment of the court upon the trial. As the Circuit Court refused to

Township trustees, by virtue of their office, are inspectors of election in the precincts in which they reside. Prior to the opening of the polls they appoint two judges of different political parties, who, with the inspector, constitute a board of election. Rev. Stat. Indiana. § 4688. The judges and the inspector, before the election is opened, are required to take an oath to support the Constitution of the United States and of the State, and to faithfully and impartially discharge the duties assigned by law. Id. § 4692. The inspector is the chairman of the board of election. Id. § 4695. When the polls are closed it is made the duty of himself and the election judges to open the ballot-box and count the votes, the ballots to be taken out one by one by the inspector, "who shall open them as he takes them out, and read aloud the name of each person printed or written thereon, and the office for which every such person is voted. He shall then hand the ballot to one of the judges, who shall examine the same and hand it to the other judge, who shall string it on a thread of twine." Id. § 4710. No person can be admitted to the room where the counting is done, except the members of the board of election, the sworn clerks, and two voters from each political party having candidates to be voted for. Id. § 4711.

Other sections of the statutes of Indiana are as follows:

"SEC. 4712. When the votes shall be counted the board of judges shall make out a certificate under their hands, stating the number of votes each person has received, and designating the office, which number shall be written in words; and such certificate, together with one of the lists of voters and one of the tally papers, shall be deposited with the inspector, or with one of the judges selected by the board of judges.

"SEC. 4713. As soon as the votes are counted, and before e certificate of the judges as prescribed in the foregoing section is made out, the ballots, with one of the lists of voters and one of the tally papers, shall, in the presence of the judges and clerks, be carefully and securely placed by the inspector, in the presence of the judges, in a strong and stout paper envelope or bag, which shall then be tightly closed and well sealed with wax by the inspector, and shall be delivered by such inspector to the county clerk at the very earliest possible period before or on the Thursday next succeeding said election; and the inspector shall securely keep said envelope containing the ballots and papers therein, and permit no one to open said envelope, or touch or tamper with said ballots or papers therein. And upon the delivery of such envelope to the clerk, said inspector shall take and subscribe an oath before said clerk, that he has securely kept said envelope, and the ballots and papers therein, and that, after said envelope had been closed and sealed by him in the presence of the judges and clerks, he had not suffered or permitted any person to break the seal or open said envelope, or touch or tamper with said ballot or papers, and that no person has broken such seal or opened said envelope to his knowledge; which oath shall be filed in said clerk's office with the other election papers.

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Opinion of the Court.

grant the writ of habeas corpus there is no return by the marshal and the sheriff, so that we have none of the facts or evi

"SEC. 4714. The clerk shall securely keep said envelope so sealed, with the ballots and papers therein, in the same condition as it was received by him from the inspector in his office (unless opened by said inspector, in the presence of the board of canvassers, as herein provided), for the period of six months. But, when such election is contested he shall preserve them so long as such contest is undetermined, subject to the order of the court trying such contest.

"SEC. 4715. The inspectors of each township or precinct, or the judges of election to whom the certificates, poll-books, and tally papers shall have been delivered as provided for in this act, shall constitute a board of canvassers, who shall canvass and estimate the certificates, poll lists, and tally papers returned by each member of said board: for which purpose they shall assemble at the court-house, on the Thursday next succeeding such election, between the hours of ten A.M. and six o'clock P.M.

"SEC. 4716. The members of such board who shall assemble at such time and place shall select one of their number as chairman, and the clerk of the Circuit Court shall act as their clerk.

"SEC. 4717. Such board, when organized, shall carefully compare and examine the papers intrusted to it, and aggregate and tabulate from them the vote of the county; a statement of which shall be drawn up by the clerk, and shall contain the names of the persons voted for, the office, the number of votes given in each township and precinct to each person, the number of votes given to each in the county, and also the aggregate number of votes given; which statement shall be signed by each member of said board; which canvass sheet, together with such certificates, poll-books, and tally papers, shall be delivered to the clerk, and by him filed in his office. The same shall be preserved by him, open to the inspection of any legal voter of the county or district or State."

These statutes have been referred to at large in order to show the great care taken by the State to guard the ballot against fraud, to secure a correct canvass of the votes cast and an honest declaration of the result. It appears that the laws of Indiana contain special provisions for the custody of two sets of papers relating to general elections: (1) The ballots, one of the lists of voters, and one of the tally papers, sealed up in a paper envelope or bag, must be delivered by the inspector into the custody of the county clerk. (2) The certificate prepared by the board of judges, showing the number of votes each candidate received, and designating the office, together with one of the lists of voters and one of the tally papers, inust be "deposited with the inspector," and be returned by him to the board of canvassers, who meet on the Thursday succeeding the election for the purpose of canvassing and estimating "the certificates, poll lists, and tally papers." To the latter papers the present indictments refer. They are the papers which, it is charged, were deposited" with the inspector by the

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Opinion of the Court.

dence in the case except as they are detailed in the indictment. The only question raised by the petitioners, supported by sev

board of election, and, after being surrendered to Perkins, were forged, altered, and mutilated.

It will be observed that the local statute does not, in express terms, require the inspector to keep those papers in his actual manual custody, during the whole period intervening after they are “ deposited" with him, and before he returns them to the board of canvassers. It is therefore contended that the surrender of them to Perkins was not a violation of any duty imposed upon the inspector, and could not be deemed a crime unless done with the intent to affect in some way the result of the election for Representative in Congress; and that, as it is not charged in the indictment that the alleged surrender of the election papers was with such intent, or that the alleged forgeries and alterations in fact affected the result of the election for Representative in Congress, it does not appear that any offence against the United States was committed.

In support of these positions, counsel for the prisoner invoke the familiar rule that penal statutes are to be construed strictly; that is, for the benefit of him against whom the penalty is inflicted. Dwar. St. 634. It is doubtful whether that rule has any application in the present case; for the statutes of Indiana, to which we have referred, merely regulate the conduct of general elections in that State, and define the duties of the officers of such elections. Let it, however, be conceded, for the purposes of this case, that, in determining whether the prisoner has committed a crime, the statutes of Indiana and the statutes of the United States relating to the election of Representatives in Congress, taken as a whole, should be interpreted as penal statutes strictly, and not as remedial enactments to be liberally construed in order to suppress the frauds and public wrongs against which they are directed. Taylor v. United States, 3 How. 197, 210; United States v. Hartwell, 6 Wall. 385. Still the inquiry remains as to the intent with which the legislative department enacted these laws. In giving effect to the rule that penal statutes must be strictly construed, the court must not disregard the kindred rule, that the intention of the law-maker, to be gathered from the words employed, governs in the construction of all statutes. It was said by the Supreme Court of the United States, speaking by Chief Justice Marshall in United States v. Wiltberger, 5 Wheat. 76, 95, that "though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation or in that sense in which the legislature had obviously used them, would comprehend." So, in United States v. Morris, 14 Pet. 464, 475, Chief Justice Taney, speaking for the court, said: "In expounding a penal statute the court certainly will not extend it beyond the plain meaning of its words; for it has been long and well settled that such statutes must be construed strictly. Yet the

Opinion of the Court.

eral points in regard to the statutes applicable thereto, is that the District Court which tried the indictment had no jurisdic

evident intention of the legislature ought not to be defeated by a forced and overstrict construction." See also American Fur Company v. United States, 2 Pet. 358, 367.

66

Giving to the prisoner the full benefit of the rule of interpretation invoked in his behalf, - leaning to the side of mercy where the liberty of the citizen is involved, I entertain no doubt that the statutes of Indiana, fairly construed, impose upon an inspector who receives the certificate, tally sheet, and poll list of a general election the duty of safely keeping them in his own custody until they are delivered or returned to the board of canvassers. The requirement that they shall be "deposited" with him, and that the board of canvassers, of which he is ex officio a member, shall canvass and estimate the certificates, poll lists, and tally papers returned by each member of said board," is inconsistent with the idea that he may, prior to the assembling of the board of canvassers, voluntarily surrender these important papers into the hands of others. I say important papers, because, upon examining the statutes and the decisions of the supreme court of Indiana, it will be found that, although in contested election-cases the ballots, lists of voters, and tally papers, sealed up and delivered to the county clerk, are primary and conclusive evidence of the result of the election, Reynolds v. State, 61 Ind. 392, 422 et seq., the papers" deposited" with the inspector constitute the basis upon which rests the official declaration in the first instance of the result of all elections in the State. Moore v. Kessler, 59 Ind. 152. The election of members of the state legislature, Governor, Representatives in Congress, and electors for President and VicePresident all rest upon the papers so deposited with inspectors. Rev. Stat. Ind., §§ 4717, 4718, 4721, 4723, 4724, 4726-4729. It is inconceivable that any inspector could suppose it to be consistent with his duty to part with these papers in advance of his meeting his colleagues of the board of canvassers. They are deposited with him as an officer of the law, acting under the sanction of an oath. The word “deposited" implies that the depositary must safely keep these papers in his own custody until he surrenders them to the board whose duty it is to canvass the returns and certify the result of the election. While he may not be responsible for their absolute safety in every case, he is under a solemn duty to guard them with diligence, proportioned to their value, and to the danger that might come to the public from their loss or mutilation. He holds them in trust for the public, and his duty to retain them in his own exclusive custody is quite as clearly defined as if the statute had so declared in express words. If he voluntarily parts with them before they are returned to the board of canvassers they are no longer "deposited" with him. Any other construction would defeat the obvious intention of the legislature and shock the common sense of every one interpreting these statutory provisions in the light of the ordinary meaning of the words used.