(Federal qualifications.)

all citizens, without distinction, in the right of suffrage, and that it was not necessary that they should be denied such right, on account of race, color or previous condition of servitude. He says "the last clause of the 14th amendment to the constitution of the United States provides that no one shall be denied the equal protection of the laws; in framing this act, congress must have had this provision of the constitution in view; it cannot be supposed that it would escape their attention; it must, therefore, be conceded, that all citizens are, under the fundamental law of the land, entitled to equal privileges, and the equal protection of the law; the latter right is embraced in the very words of the amendment; it is incredible to suppose that congress intended, by the passage of this act, to do so vain a thing, as to enact a law purely for the benefit of one class of citizens, to the manifest neglect and prejudice of another, thus attempting, by legislation, to deprive them of the equal privileges and the equal protection of the law, as guarantied by the 14th amendment. If such be its true construction, it would be clearly in conflict with this amendment to the constitution of the United States." 3 Am. L. Times 254-5. And this appears to be the opinion of Mr. Justice Bradley, of the supreme court of the United States, in the case of the Live-stock Dealers' and Butchers' Association v. Crescent City Livestock Landing and Slaughter-house Co., 1 Abbott U. S. Rep. 388, 405.

69

HUBER V. REILY.

In the Supreme Court of Pennsylvania.

MAY TERM 1866.

(REPORTED 53 PENNSYLVANIA STATE REPORTS 112.)

[Disfranchisement.]

Congress may inflict, as a punishment for the crime of desertion, the forfeiture of the delinquent's citizenship of the United States; and if a state constitution prescribe citizenship as one of the qualifications of its electors, such person is no longer a legal voter under the state laws.

But such forfeiture is only incurred by the delinquent, after trial by a court-martial and a sentence, duly approved, adjudging the forfeiture. Election officers have no power to reject the vote of an elector, on the ground that he is a deserter from the military service of the United States, in the absence of a regular conviction of the offence.

Error to the judgment of the court of Common Pleas of Franklin county, on a case stated, in which Henry Reily was plaintiff and Benjamin Huber, defendant.

The plaintiff was a citizen of the township of Hamilton, in the county of Franklin, and was liable to military service in the army of the United States; on the 19th July 1864, he was regularly drafted to fill the quota of the township of Hamilton, under a requisition of the President of the United States; he was regularly served with notice, but refused to report, and never did report for muster; he never furnished a substitute; nor did he ever enter into the military service of the government; but was duly registered by the provost-marshal, as a deserter. The plaintiff was a qualified elector of Hamilton township, under the constitution and laws of Pennsylvania; the defendant was judge of the general election in that township, on the 10th October 1865; the plaintiff, on that day, tendered his ballot to the board of election officers of said township, which the defendant refused to receive, on the

(Disfranchisement.)

ground that the plaintiff was a deserter from the military service of the United States. It was agreed that, if the plaintiff was entitled to vote, notwithstanding the act of congress of 3d March 1865, then judgment should be entered in his favor for the sum of one dollar.

The court below gave judgment for the plaintiff, on the case stated, which was assigned for error.

McClure & Stewart and Stambaugh & Gehr, for the plaintiff in error.

Kimmell, Brewer, Stenger and Sharpe, for defendant in

error.

STRONG, J., delivered the opinion of the court. The act of congress under which the defendant below justifies his refusal to receive the vote of the plaintiff, is the one approved on the 3d day of March 1865. The 21st section is the only one applicable to this case, and it is as follows: "And be it further enacted that, in addition to the other lawful penalties of the crime of desertion from the military or naval service, all persons who have deserted the military or naval service of the United States, who shall not return to said service, or report themselves to a provost-marshal, within sixty days after the proclamation hereafter mentioned, shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship, and their rights to become citizens; and such deserters shall be forever incapable of holding any office of trust or profit under the United States, or of exercising any right of citizens thereof; and all persons who shall hereafter desert the military or naval service, and all persons who, being duly enrolled, shall depart the jurisdiction of the district in which he is enrolled, or go beyond the limits of the United States, with intent to avoid any draft into the military or naval service, duly ordered, shall be liable to the penalties of this section." This is followed by a clause

(Disfranchisement.)

authorizing and requiring the president to issue his proclamation, setting forth the provisions of this section; and we know judicially that this was done on the 11th of March 1865.

The act of congress is highly penal; it imposes forfeiture of citizenship, and deprivation of the rights of citizenship, as penalties for the commission of a crime; its avowed purpose is, to add to the penalties which the law had previously affixed to the offence of desertion from the military or naval service of the United States, and it denominates the additional sanctions provided, as penalties; such being its character, it is, under the well-known rule of law, to receive a strict construction in favor of the citizen.

The constitutionality of the act has been assailed on three grounds: the first of these is, that it is an ex post facto law, imposing an additional punishment for an offence committed before its passage, and altering the rules of evidence, so as to require different and less proof than was required at the time of the perpetration of the crime: the second objection is, that the act is an attempt by congress to regulate the right of suffrage in the states, or to impair it: and the third objection is, that the act proposes to inflict pains and penalties upon offenders, before and without a trial and conviction by due process of law, and that it is, therefore, prohibited by the bill of rights. In the view which we take of this case, and giving to the enactment the construction which we think properly belongs to it, it is unnecessary to consider, at length, either of these objections to its constitutionality.

It may be insisted, with strong reason, that the penalty of forfeiture of citizenship, imposed upon those who had deserted the military or naval service prior to the passage of the act, is not a penalty for the original desertion, but for persistence in the crime; for failure (in the language of the statute) to return to said service, or to report to a provost-marshal, within sixty days after the issue of the

(Disfranchisement.)

president's proclamation. If this be so, the act of congress is, in no sense, ex post facto, and it is not, for that reason, in conflict with the constitution; its operation is entirely prospective. If a drafted man owe service to the federal government, every new refusal to render the service, may be regarded as a violation of public duty, a public offence for which congress may impose a penalty; and as it is the duty of every court to construe a statute, if possible, ut res magis valeat, quam pereat, that construction of this act must be adopted, which is in harmony with the acknowledged powers of congress, and which applies the forfeiture of citizenship to the new offence, described as failure to return to service, or to report to the provost-marshal.

The second objection also assumes more than can be conceded. It is not to be doubted, that the power to regulate suffrage in a state, and to determine who shall and who shall not be a voter, belongs exclusively to the state itself; the constitution of the United States confers no authority upon congress, to prescribe the qualifications of electors, within the several states that compose the federal union. Congress is, indeed, empowered to make regulations for the time, place and manner of holding elections for senators and representatives, or to alter those made by the legislature of a state (except those in relation to the places of choosing senators), but here its power stops; the right of suffrage at a state election, is a state right, a franchise conferrable only by the state, which congress can neither give nor take away. If, therefore, the act now under consideration is, in truth, an attempt to regulate the right of suffrage in the state, or to prescribe the conditions upon which that right may be exercised, it must be held unwarranted by the constitution.

In the exercise of its admitted powers, congress may doubtless deprive an individual of the opportunity to enjoy a right that belongs to him as a citizen of a state, even the right of suffrage; but this is a different thing from taking away or impairing the right itself. Under the laws of the