[246 U.S. 220, 221] Mr. Assistant Attorney General Fitts, for the United States.
[246 U.S. 220, 223] Messrs. John R. Holmes and Sherman T. McPherson, both of Cincinnati, Ohio, for defendants in error.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
Except as to parties, the indictments in these six cases are alike. Each contains three counts; the first and second undertake to allege a conspiracy to injure and oppress in violation of section 19, Criminal Code ( Act March 4, 1909, c. 321, 35 Stat. 1092 [Comp. St. 1916, 10183]), and the third a conspiracy to defraud the United States, contrary to section 37 (Comp. St. 1916, 10201). Demurrers were sustained upon the ground that, rightly construed, neither section applies to the specified acts.
Section 37, originally part of the Act of March 2, 1867 (14 Stat. 484, c. 169, 30), provides:
It was considered in United States v. Gradwell, 243 U.S. 476 , 37 Sup. Ct. 407, and held not applicable in circumstances similar to those here presented. The government has accordingly abandoned the third count.
Section 19 provides:
And the two counts based thereon charge defendants with conspiring to injure candidates for presidential electors, the United States Senate and representative in Congress at the regular election in Ohio, November 7, 1916, also qualified electors who might properly vote thereat, in the free exercise and enjoyment of certain rights and privileges secured by Constitution and laws of the United States, namely-the right (a) of being a candidate; (b) that only those duly qualified should vote; (c) that the results should be determined by voters who had not been bribed; and (d) that the election board should make a true and accurate count of votes legally cast by qualified electors and no others. The indictment further alleged the conspiracy was carried into effect as intended by purchasing votes of certain electors and causing election boards to receive them and make inaccurate returns.
The real point involved is whether section 19 denounces as criminal a conspiracy to bribe voters at a general election within a state where presidential electors, a United States [246 U.S. 220, 225] Senator and a representative in Congress are to be chosen. Our concern is not with the power of Congress, but with the proper interpretation of action taken by it. This must be ascertained in view of the settled rule that 'there can be no constructive offenses, and before a man can be punished his case must be plainly and unmistakably within the statute' ( United States v. Lacher, 134 U.S. 624, 628 , 10 S. Sup. Ct. 625); and the policy of Congress to leave the conduct of elections at which its members are chosen to state law alone, except where it may have expressed a clear purpose to establish some further or definite regulation.
Departing from the course long observed, by Act of May 31, 1870, c. 114, 16 Stat. 140, Congress undertook to prescribe a comprehensive system intended to secure freedom and integrity of elections. Section 19 of that act declares:
In pursuance of a well understood policy, the Act of February 8, 1894, c. 25, 28 Stats. [246 U.S. 220, 226] 36, repealed the foregoing and other kindred sections in Act of 1870 but left in effect section 6, then section 5508, Revised Statutes, and now section 19, Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1092 [Comp. St. 1916, 10183]). See United States v. Mosley, 238 U.S. 383 , 35 Sup. Ct. 904; United States v. Gradwell, supra.
The government in effect maintains that lawful voters at an election for presidential electors, senator and member of Congress and also the candidates for those places have secured to them by Constitution or laws of the United States the right and privilege that it shall be fairly and honestly conducted; and that Congress intended by section 6, Act of 1870, to punish interference with such right and privilege through conspiracy to influence voters by bribery.
Section 19, Criminal Code (Comp. St. 1916, 10183), of course, now has the same meaning as when first enacted as section 6, Act of 1870 (see Criminal Code, 339, 341, [Comp. St. 1916, 10513, 10515]); and considering the policy of Congress not to interfere with elections within a state except by clear and specific provisions, together with the rule respecting const uction of criminal statutes, we cannot think it was intended to apply to conspiracies to bribe voters. Bribery, expressly denounced in another section of the original act, is not clearly within the words used; and the reasoning relied on to extend them thereto would apply in respect of almost any act reprehensible in itself, or forbidden by state statutes, and supposed injuriously to affect freedom, honesty, or integrity of an election. This conclusion is strengthened by express repeal of the section applicable in terms to bribery and we think is rendered entirely clear by considering the nature of the rights or privileges fairly within intendment of original section 6.
The right or privilege to be guarded, as indicated both by the language employed and context, was a definite, personal one, capable of enforcement by a court, and not the political, non-judicable one common to all that the public shall be protected against harmful acts, which is [246 U.S. 220, 227] here relied on. The right to vote is personal and we have held it is shielded by the section in question. Ex parte Yarbrough, 110 U.S. 651 , 4 Sup. Ct. 152; United States v. Mosley, supra. The same is true of the right to make homestead entry, United States v. Waddell, 112 U.S. 76 , 5 Sup. Ct. 35; also, of the right of one held by a United States marshal to protection against lawless violence, Logan v. United States, 144 U.S. 263 , 12 Sup. Ct. 617. While the opinion in United States v. Gradwell, supra, does not determine the precise question now presented, it proceeds upon reasoning which contravenes the theory urged by counsel for the government.
The court below properly construed the statute and its judgments are