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(Congressional legislation.) considerations tending strongly to the inference that the power contained in the last two clauses which I have named, is full and ample to sustain the constitutionality of the section on which this indictment is founded.

The learned judge then proceeded to show that the indictment, being for a statutory misdemeanor, and the offence being charged in the words of the statute, was sufficient. (See 12 Int. R. Rec. 153.)

Demurrer overruled and judgment

for the United States.

The constitutionality of the 20th section of the act of 31st May 1870, may, perhaps, be conceded, without endorsing the whole of a law, which is apparently designed to give to the federal executive a controlling influence in the state elections. Probably, the worst feature of this act is the 13th section, which declares it lawful for the president to employ such part of the land and naval forces of the United States or of the militia, as shall be necessary to aid in the execution of judicial process under the act. The use that may be made of this power was shown in two or three recent instances, in which, although no judicial process had been issued, and no infraction of the law had occurred, portions of the military forces of the United States were stationed in the immediate vicinity of the polls, on election day, for the undisguised purpose of overawing the electors in the exercise of the right of suffrage. And this, not with a view of securing to the friends of the federal administration a fair election for members of congress (for in each of these cases the return of a friend of the administration was acknow. ledged to be hopeless), but for the ulterior purpose of influencing the election for state officers. If the American people are content to endorse this action, as a constitutional exercise of federal power, they have strangely degenerated from their British ancestors.

In 1741, during the corrupt administration of Sir Robert Walpole, at an election held for the city of Westminster, under an order signed by three magistrates of the county, a body of armed soldiers was marched up and stationed in the churchyard of St. Paul, Covent Garden, in the vicinity of the poll; and on this being shown to the house of commons,

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(Congressional legislation.) they passed a resolution affirming "that the presence of a regular body of armed soldiers, at an election of members to serve in parliament, is a high infringement of the liberties of the subject, a manifest violation of the freedom of elections, and an open defiance of the laws and constitution of this kingdom.” The high bailiff was taken into custody by order of the house, and the three magistrates who signed the order were brought to the bar and reprimanded by the speaker, upon their knees, as the house had directed; and after this, the house passed a vote of thanks to the speaker, for his reprimand of the delinquents, and directed the same to be printed. This is the mode in which our ancestors resented such infractions of their political liberties; it is to be hoped, there is still virtue enough in their descendants to follow their example.

As early as the 4th April 1803, the state of Pennsylvania provided by statute that “no body of troops, being regularly employed in the army of the United States or of this state, shall appear and be present, either armed or unarmed, at any place of election within this state, during the time of said election." 4 Smith's Laws 101. And this wholesome provision to secure the political liberties of the people was re-enacted by the act of 2d July 1839, S 95. Purd. Dig. 383. It may well be doubted, whether a violation of this statutory regulation would not vitiate the poll.

In 1793, a committee of the House of Representatives reported against the right of a member to his seat, on the ground of the presence of federal troops in the immediate vicinity of the polls, and the interference of some of the soldiers with the freedom of the election. And in consequence of this occurrence, a bill was passed by the house “for removing any military force of the United States from the places of holding elections ;" this, however, failed to become a law in consequence of the non-concurrence of the senate. Trigg v. Preston, 1 Cong. Elect. Cas. 78. Blackstone says, “it is essential to the very being of parliament, that elections should be absolutely free; therefore, all undue influences upon the electors are illegal and strongly prohibited." 1 Bl. Com. 178. For, Mr. Locke ranks it among those breaches of trust in the executive magis. trate, which, according to his notions, amount to a dissolution of the government, “if he employs the force, treasure and offices of the society to corrupt the representatives, or openly to pre-engage the electors and prescribe what manner of persons shall be chosen; for, thus to regulate candidates and electors, and new-model the ways of election,

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(Fees of office pending a contest.) what is it," says he, “but to cut up the government by the roots and poison the very fountain of public security ?” Locke on Government, p. 2, § 222.

Perhaps, there is no better proof of the extent to which the principles of civil and political liberty have passed from the remembrance of the American people, than the fact recorded in the daily newspapers, without comment, that at the municipal election of the city of Charleston, held on the 20 August 1871, six years after the close of the civil war, a body of federal troops was stationed at each precinct, to prevent violence. And this, without shadow of authority, and without its exciting the slightest emotion in the citizens of what is claimed to be a free country.


In the Supreme Court of Illinois.


(REPORTED 3 Chicago LEGAL News 114.)

[Fees of office pending a contest.]

The title to an office confers upon the person elected a right to the fees and emoluments thereof, from the commencement of his legal term.

An action for money had and received will lie by the officer de jure against one who has intruded into the office, by color of a certificate of election, to recover the fees received during the time of such intrusion.

If the incumbent received his commission, bonâ fide, he will be allowed, in such action, his reasonable expenses in executing the duties of the office; otherwise, if his intrusion were without pretence of legal right.

Appeal from Morgan county. This was an action of assumpsit brought by Milton Mayfield, in the Morgan circuit court, against Sylvester L. Moore, to recover the fees received by the defendant, as sheriff and collector of the state, county and other revenue. On the 6th November 1866, the plaintiff and defendant were opposing candidates for the office of sheriff of Morgan county; on a canvass of the vote, a certificate of election was given to the defendant, who received a commission and entered (Fees of office pending a contest.) upon and discharged the duties of the office, from the 17th November 1866 until the 13th January 1868. Soon after the canvass of the vote, the plaintiff gave notice to the defendant that he should contest the election, on the ground that illegal votes had been cast for the defendant, more in number than sufficient to change the result. Justices of the peace were selected in the mode pointed out by law, and a trial was had, which resulted in favor of the plaintiff, finding him, on the evidence, to be entitled to the office. From this decision, the defendant appealed to the circuit court of Morgan county, where a trial was had, with a like result. To reverse the judgment of the circuit court, the defendant sued out a writ of error to the supreme court, which was subsequently dismissed, and the plaintiff was duly commissioned and entered upon the duties of the office.

The plaintiff then brought this suit, to recover the fees and emoluments of the office received by the defendant whilst acting as sheriff. A trial was had in the court below, where the plaintiff recovered a judgment for $34.55, the amount of fees received after the rendition of the judgment by the circuit court, and before the office was surrendered to the plaintiff. On the trial, the plaintiff offered to show the amount received by the defendant, whilst he exercised the office, as fees, allowances and emoluments, but the court overruled the offer, and confined him to the fees, commissions and profits received by the defendant, after the decision of the case by the circuit court. The plaintiff, thereupon, took his appeal to the supreme court, and assigned such ruling of the circuit court for error.

Ketchum and De Leuw, for the appellant.

Case and McClure & Stryker, for the appellee.

WALKER, J., delivered the opinion of the court. It is urged by the appellant, that he, being entitled in law to

(Fees of office pending a contest.) the office, the fees and emoluments incident to it followed the title and vested in him; and that, on the familiar rule, that where one person has received money which, in equity and good conscience, belongs to another, he may sue for and recover the same, in an action for money had and received.

We presume it will not be questioned, that the legal right to an office confers the right to receive and appropriate the fees and emoluments legally incident to the place; that where such an officer performs the duties of the office, he may demand and receive the compensation allowed by law. It cannot be, that in such a case, another person can legally claim such compensation; an officer, having rendered services, is as fully entitled to the compensation fixed by law, as is any one individual entitled to a reasonable compensation for labor and skill rendered for another; the fees and emoluments are legally his. We also find that the authorities have gone still further and held, that where a person has usurped an office belonging to another, and received the accustomed fees of the office, money had and received will lie, at the suit of the person entitled to the office, against the intruder. Arris v. Stukely, 2 Mod. 260; 1 Selw. N. P. 68. And the same rule was announced and enforced in the case of Crosbie v. Hurley, 1 Alc. & Nap. 431; in this last case, there was a contest as to the title to the office, and the person recovering the title to it, sued the other who had acted, and recovered the fees and emoluments received whilst in

possession and exercising the duties of the place. The same rule has been adopted in this country, and seems to be based on common law rules.

It is said by Blackstone, that “offices are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, and are also incorporeal hereditaments, whether public, as those of magistrates, or private, as bailiffs, receivers or the like; for a man may have an estate in them, either to him and

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