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183 U. S. 300, 307, 46 L. ed. 207, 213, 22 Sup. Ct. Rep. 162; Security Trust & S. V. Co. v. Lexington, 203 U. S. 323, 333, 51 L. ed. 204, 208, 27 Sup. Ct. Rep. 87; Clement Nat. Bank v. Vermont, 231 U. S. 120, 143, 58 L. ed. 147, 159, 34 Sup. Ct. Rep. 31; Wells, F. & Co. v. Nevada, 248 U. S. 165, 168, 63 L. ed. 190, 192, 39 Sup. Ct. Rep. 62; Embree v. Kansas City & L. B. Road Dist. 257 Mo. 611, 166 S. W. 282, 240 U. S. 242, 251, 60 L. ed. 624, 629, 36 Sup. Ct. Rep. 317.

The supreme court of Missouri has construed the law involved here, in State ex rel. Marquette Hotel Invest. Co. v. State Tax Commission, 282 Mo. 213, 221 S. W. 721, and defined the term "surplus," as used in the law, to mean the excess of the value of assets over the par value of capital stock, and this court will follow that construction.

Elmendorf v. Taylor, 10 Wheat. 152, 160, 6 L. ed. 289, 292; Northern P. R. Co. v. Meese, 239 U. S. 614, 619, 60 L. ed. 467, 468, 36 Sup. Ct. Rep. 223, 10 N. C. C. A. 939; Forsyth v. Hammond, 166 U. S. 506, 518, 41 L. ed. 1095, 1100, 17 Sup. Ct. Rep. 665; Farncomb v. Denver, 252 U. S. 7, 64 L. ed. 424, 40 Sup. Ct. Rep. 271; Wilson v. Standefer, 184 U. S. 399, 412, 46 L. ed. 612, 618, 22 Sup. Ct. Rep. 384; Fairfield v. Gallatin County, 100 U. S. 52, 25 L. ed. 546; Ridings v. Johnson, 128 U. S. 224, 32 L. ed. 405, 9 Sup. Ct. Rep. 72; Watson v. Maryland, 218 U. S. 173, 54 L. ed. 987, 30 Sup. Ct. Rep. 644; Kentucky Union Co. v. Kentucky, 219 U. S. 140, 55 L. ed. 137, 31 Sup. Ct. Rep. 171; Lindsley v. Natural Carbonic Gas Co. 220 U. S. 61, 55 L. ed. 369, 31 Sup. Ct. Rep. 337, Ann. Cas. 1912C, 160; Michigan C. R. Co. v. Michigan R. Commission, 236 U. S. 615, 59 L. ed. 750, P.U.R.1915C, 263, 35 Sup. Ct. Rep. 422; Price v. Illinois, 238 U. S. 446, 59 L. ed. 1400, 35 Sup. Ct. Rep. 892; Erie R. Co. v. Hilt, 247 U. S. 97, 100, 62 L. ed. 1003, 1004, 38 Sup. Ct. Rep. 435; Clement Nat. Bank v. Vermont, 231 U. S. 120, 134, 58 L. ed. 147, 155, 34 Sup. Ct. Rep. 31.

The appellant wholly failed to show or point out any discrimination against it as compared with the tax assessed against other railroad companies. The state tax commission based its computation of appellant's taxes solely upon the sworn values stated by it in its report. The returns made for the purposes of property or ad valorem taxes are not any basis for comparison of values for the purposes of assessing the franchise or excise tax, as the property

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returned for the former tax is not identical with the property and assets reported for the latter.

State ex rel. Spratt v. Chicago, R. I. & P. R. Co. 162 Mo. 394, 63 S. W. 497; State ex rel. Tillery v. Hannibal & St. J. R. Co. 89 Mo. 102, 14 S. W. 511; State ex rel. Ziegenhein v. St. Louis & S. F. R. Co. 117 Mo. 1, 22 S. W. 910; State ex rel. Hayes v. Hannibal & St. J. R. Co. 135 Mo. 618, 37 S. W. 532; Sunday Lake Iron Co. v. Wakefield Twp. 247 U. S. 350, 62 L. ed. 1154, 38 Sup. Ct. Rep. 495; Chicago, B. & Q. R. Co. v. Babcock, 204 U. S. 585, 597, 51 L. ed. 636, 640, 27 Sup. Ct. Rep. 326; Coulter v. Louisville & N. R. Co. 196 U. S. 599, 608, 49 L. ed. 615, 617, 25 Sup. Ct. Rep. 342.

The supreme court of Missouri did not hold in the Marquette Hotel Invest. Co. Case (282 Mo. 213, 221 S. W. 721) that, under the Missouri franchise tax law, the tax is measured by the volume of business, and the tax of which appellant complains was not assessed on that basis. The law measures the tax by the proportion property and assets located in the state bear to total property and assets, wherever located. The supreme court of Missouri so held, and the tax in question was assessed according to that rule. It is thoroughly established that capital employed in interstate commerce, although not itself directly taxable by the state, may be lawfully included in measuring a privilege or excise tax.

Western U. Teleg. Co. v. Atty. Gen. 125 U. S. 530, 31 L. ed. 790, 8 Sup. Ct. Rep. 961; United States Glue Co. v. Oak Creek, 247 U. S. 321, 326, 327, 62 L. ed. 1135, 1140, 1141, 38 Sup. Ct. Rep. 499, Ann. Cas. 1918E, 748; Armour & Co. v. Virginia, 246 U. S. 1, 7, 62 L. ed. 547, 550, 38 Sup. Ct. Rep. 267; Kansas City, M. & B. R. Co. v. Stiles, 242 U. S. 111, 119, 61 L. ed. 176, 187, 37 Sup. Ct. Rep. 58; Kansas City, Ft. S. & M. R. Co. v. Botkin, 240 U. S. 227, 232, 60 L. ed. 617, 619, 36 Sup. Ct. Rep. 261; Underwood Typewritér Co. v. Chamberlain, 254 U. S. 113, ante, 165, 41 Sup. Ct. Rep. 45; Baltic Min. Co. v. Massachusetts, 231 U. S. 82, 83, 58 L. ed. 132, 133, 34 Sup. Ct. Rep. 15; Flint v. StoneTracy Co. 220 U. S. 107, 165, 55 L. ed. 389, 419, 31 Sup. Ct. Rep. 342, Ann. Cas. 1912B, 1312; United States Exp. Co. v. Minnesota, 223 U. S. 335, 340, 344, 56 L. ed. 459, 463, 464, 32 Sup. Ct. Rep. 211; St. Louis Southwestern R. Co. v. Arkansas, 235 U. S. 350, 59 L. ed. 265, 35 Sup. Ct. Rep. 99.

Messrs. D. A. Frank, J. W. Gleed, | Gould, 245 U. S. 151, 62 L. ed. 211, 38 Thomas O. Stokes, and S. L. Swarts Sup. Ct. Rep. 53; Edwards v. Wabash filed a brief as amici curiæ: R. Co. C. C. A., 264 Fed. 610; Travis v. American Cities Co. 192 App. Div. 16, 182 N. Y. Supp. 394.

The failure of the act to provide for notice, hearing, and opportunity to be heard, or a review, constitutes a taking of the taxpayer's property without due process of law, and a denial to the taxpayer of the equal protection of the laws.

Coe v. Armour Fertilizer Works, 237 U. S. 413, 421, 424, 59 L. ed. 1027, 1031, 1032, 35 Sup. Ct. Rep. 625; Central of Georgia R. Co. v. Wright, 207 U. S. 127, 140, 142, 52 L. ed. 134, 141, 143, 28 Sup. Ct. Rep. 47, 12 Ann. Cas. 463; Embree v. Kansas City & L. B. Road Dist. 240 U. S. 242, 245, 60 L. ed. 624, 627, 36 Sup. Ct. Rep. 317; Londoner v. Denver, 210 U. S. 373, 384, 386, 52 L. ed. 1103, 1112, 1113, 28 Sup. Ct. Rep. 708; Hagar v. Reclamation Dist. 111 U. S. 701, 707, 28 L. ed. 569, 572, 4 Sup. Ct. Rep. 663; Chicago, M. & St. P. R. Co. v. Drainage Dist. 253 Fed. 491; Jackson Lumber Co. v. McCrimmon, 164 Fed. 759; Scott v. Toledo, 1 L.R.A. 688, 36 Fed. 385; Santa Clara County v. Southern P. R. Co. 18 Fed. 385; Meyers v. Shields, 61 Fed. 721; State ex rel. Carleton Dry Goods Co. v. Alt, 224 Mo. 493, 123 S. W. 882.

A provision for the collection of the taxes by suit, such as provided by § 8, under the circumstances of this case, affords the taxpayer absolutely no protection.

Ex parte Young, 299 U. S. 123, 147, 149, 52 L. ed. 714, 723, 724, 13 L.R.A. (N.S.) 932, 28 Sup. Ct. Rep. 441, 14 Ann. Cas. 764; State ex rel. Johnson v. Merchants & Miners Bank, 279 Mo. 228, 213 S. W. 815.

Irrespective of what the legislature meant, and irrespective of the language used, and irrespective of what the intent of the legislature might be, as gathered from the language used, this court has no right whatsoever to change the tax base as fixed by the legislature. Mutual Ben. L. Ins. Co. v. Herold, 198 Fed. 199; Haiku Sugar Co. v. Johnstone, 161 C. C. A. 155, 249 Fed. 103; United States v. Coulby, 251 Fed. 982; Miller v. Gearin, 169 C. C. A. 293, 258 Fed. 225; American Net & Twine Co. v. Worthington, 141 U. S. 468, 35 L. ed. 821, 12 Sup. Ct. Rep. 55; Eidman v. Martinez, 184 U. S. 578, 46 L. ed. 697, 22 Sup. Ct. Rep. 515; Swan & F. Co. v. United States, 190 U. S. 143, 47 L. ed. 984, 23 Sup. Ct. Rep. 702; Benziger v. United States, 192 U. S. 38, 48 L. ed. 331, 24 Sup. Ct. Rep. 189; Gould v.

Even in the case of remedial laws, which are to be liberally construed, it is the uniform rule that courts cannot assume the functions of the legislature by writing into statutes words which will correct the vital oversights or omissions of the legislature.

Kehr v. Columbia, 136 Mo. App. 322, 116 S. W. 428; State ex rel. Crow v. West Side Street R. Co. 146 Mo. 155, 47 S. W. 959; Meriwether v. Overly, 228 Mo. 218, 129 S. W. 1; Bankers' Life Co. v. Chorn, Mo. 186 S. W. 681; State v. Long, 203 Mo. App. 427, 220 S. W. 690; State ex rel. Marquette Hotel Invest. Co. v. State Tax Commission, 282 Mo. 213, 221 S. W. 721; United States v. Goldenberg, 168 U. S. 95, 42 L. ed. 394, 18 Sup. Ct. Rep. 3; Hobbs v. McLean, 117 U. S. 567, 581, 29 L. ed. 940, 945, 6 Sup. Ct. Rep. 870; Barnitz v. Casey, 7 Cranch, 456, 469, 3 L. ed. 403, 407.

There can be no lawful collection of a tax until there is a lawful assessment. There can be no lawful assessment except in the manner prescribed by law and of property designated by law for that purpose. No property is taxable but that which is required by law to be assessed for taxation. When the tax gatherer puts his finger on the citizen, he must also put his finger on the law permitting it. It is not for the tax assessor or tax collector to say what property or what interests in property are to be taxed.

State ex rel. Koeln v. Lesser, 237 Mo. 310, 141 S W. 888; Leavell v. Blades, 237 Mo. 695, 141 S. W. 893; State ex rel. Carleton Dry Goods Co. v. Alt, 224 Mo. 493, 123 S. W. 882.

Mr.

Justice Holmes delivered the opinion of the court:

This is a bill to restrain the collection of a franchise tax imposed by the statutes of Missouri upon domestic corporations. Laws 1917, pp. 237-242.1 The

1 Section 1. Every corporation organized under the laws of this state shall, in addition to all other fees and taxes now required or paid, pay an annual franchise tax to the state of Missouri equal to 340 of 1 per cent of the par value of its outstanding capital stock and surplus, or if such corporation employs a part of its capital stock in business in another state or country, then such corporation shall pay

plaintiff, a corporation of Missouri, filed with the state tax commission [229] a report, as required by law, showing the value of its assets within the state to be $122,826,652, and the amount of its stock employed within the state, $21,625,830. The state tax commission accepted these figures, and, following the statute, levied a tax measured by 40 of 1 per cent of the capital stock employed within the state, and also the same tax in respect of the excess in value of the assets within the state over that of such stock, treating that as the "surplus" which the statute takes as the measure along with the stock. The result, of course, was a tax of 40 of 1 per cent upon $122,826,652, equal to $92,119.99. The plaintiff contests the constitutionality of the act under the 14th Amendment and the commerce clause (art. 1, § 8), and under a supposed prohibition of double taxation in the Constitution of Missouri. It also contends that if the act was valid it was misconstrued in the ascertainment of the surplus over the value of the capital stock in the state. A preliminary injunction was denied by three judges sitting in the district court, and the plaintiff appealed.

The objection most insisted upon in this court was that the statute made no provision for a hearing, and that, although the plaintiff applied to the tax commission for a hearing and had one, the statute was bad because it did not provide one in terms. Central of Georgia R. Co. v. Wright, 207 U. S. 127, 138, 52 L. ed. 134, 141, 28 Sup. Ct. Rep. 47, 12 Ann. Cas. 463. The mode of collecting the tax is by a suit, where, of course, the present plaintiff would be heard, but it is said that the judgment of the commission can be attacked only for want of jurisdiction and fraud. We cannot suppose, however, that any question of law apparent on the face of the record would not be open. The constitutional objection mainly relied upon necessarily would be. And as in this case the commission accepted the plainan annual franchise tax equal to 40 of 1 per cent of its capital stock employed in this state, and for the purposes of this act such corporation shall be deemed to have employed in this state that proportion of its entire outstanding capital stock and surplus that its property and assets in this state bears to all its property and assets wherever located. Every corporation, not organized under the laws of this state, and engaged in business in this state, shall pay an annual franchise tax to the state of Missouri equal to 340 of 1 per cent of the par value of its capital stock and surplus

tiff's figures, and the contest is wholly upon matters of law, we see nothing of which [230] the plaintiff can complain in this respect. There is, to be sure, one charge involving matter of fact dehors the record. It is alleged that the plaintiff was taxed disproportionately as compared with other railroads. But the plaintiff was taxed upon its own figures, in accordance with the statute, and could not complain of that. If it had made out a case of fraud against the commission, we presume that the state courts would have been open to it, as well as the district court of the United States. But nothing of that kind was proved. Sunday Lake Iron Co. v. Wakefield Twp. 247 U. S. 350, 353, 62 L. ed. 1154, 1156, 38 Sup. Ct. Rep. 495.

The next objection to the tax has assumed greater importance than any other because it induced the same judges who sat in this case to change their opinion and issue a temporary injunction in a suit like this, brought by the Southwestern Bell Telephone Company. We will consider it, although it hardly is open on the bill. It now has been decided by the supreme court of Missouri that corporations with stock having no stated par value can be admitted to do business in the state (State ex rel. Standard Tank Car Co. v. Sullivan, 282 Mo. 261, 221 S. W. 728), and that decision was taken to mean that all such corporations fall within a provision imposing a tax of only $25 upon foreign corporations without a capital stock. On that ground it was held that the Southwestern Bell Telephone Company was denied the equal protection of the laws. We hesitate to differ from judges presumably familiar with local conditions, but we cannot read the careful discussion by the Missouri court as having the meaning supposed. It is true that it adverts to the "lump annual tax" imposed upon foreign corporations without a capital stock, while arguing that the policy and laws of Missouri do not forbid their entering the state. But at employed in business in this state, and for the purposes of this act such corporation shall be deemed to have employed in this state that proportion of its entire capital stock and surplus that its property and assets in this state bears to all its property and assets wherever located; provided, that this act shall not apply to corporations not organized for profit, nor to express companies, which now pay [pay] an annual tax on their gross receipts in this state; and insurance companies, which pay an annual tax on their gross premium receipts in this state.

a later page it quotes with approval a Kansas case to show not only that the absence of a stated value for the stock would create no difficulty [231] in determining whether a corporation should be admitted, but also that it would create equally little difficulty in applying the tax imposed upon corporations with stock having a stated par. Until the supreme court of the state decides other wise, we shall assume that the supposed inequality of treatment does not exist.

There is no contravention of the commerce clause. It is said that the value of the franchise taxed is derived partly from the fact that the corporation does

its property and assets in this state bears to all its property and assets wherever located." We cannot much doubt that the tax was intended to be measured by the proportion of stock and surplus in the state, and that the omission of reference to surplus in the clause first quoted is a misprision or abbreviation that does not conceal the purpose to be gathered from the previous and following words. We think it unnecessary to go into further details. Decree affirmed.

Err.,

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UNITED STATES OF AMERICA.

(See S. C. Reporter's ed. 232-295.) Elections

congressional authority

interstate business, but that does not TRUMAN H. NEWBERRY et al., Plffs. in invalidate the tax. St. Louis & E. St. L. Electric R. Co. v. Missouri, decided today [256 U. S. 314, post, 946, 41 Sup. Ct. Rep. 488]; St. Louis Southwestern R. Co. v. Arkansas, 235 U. S. 350, 365, 59 L. ed. 265, 272, 35 Sup. Ct. Rep. 99. Of course, the fact that the plaintiff's road was under Federal control during the year in question does not exonerate it. It was profiting by its franchises, although in a different way. Act of March 21, 1918, chap. 25, §§ 1, 15, 40 Stat. at L. 451, 458. Comp. Stat. §§ 31152a, 311530, Fed. Stat. Anno. Supp. 1918, pp. 757, 765.

over.

1. The only source of power which Con-
gress (prior to the adoption of the 17th
Amendment) possessed over elections for
Senators and Representatives was U. S.
Const., article 1, § 4, which empowers Con-
Such elections.
gress to regulate the manner of holding

[For other cases, see Elections, I. in Digest
Sup. Ct. 1908.]
Elections

over

-

Nothing more needs to be said concerning the relation of the act to the congressional authority Constitution of the United States. As corrupt practices primaries. to the Constitution of Missouri, we see 2. Under the constitutional grant of no reason to believe that it has been vi-elections" of Senators and Representatives, power to regulate the "manner of holding olated, and perceive no indication of Congress could not fix, as it attempted in such an opinion in the judgments of the the Act of June 25, 1910, § 8, as amended supreme court of the state. That court, by the Act of August 19, 1911, the maximum on the contrary, seems to regard the act sum which a candidate may spend, or as valid. State ex rel. Marquette Hotel advise or cause to be contributed and spent Invest. Co. v. State Tax Commission, 282 by others, to procure his nomination at a Mo. 213, 221 S. W. 721. This case also primary election or convention. [For other cases, see Elections, I.; V. in sanctions the construction adopted by Digest Sup. Ct. 1908.] the commission and the court below for Elections congressional authority the word "surplus" in the statute, and over- corrupt practices — primaries. shows that the amount of the tax was 3. The validity of the Federal Corrupt right. It is urged that where, as here, Practices Act, antedating the 17th Amendonly a part of the corporation's capital by Congress at the time of its enactment. ment, must be tested by powers possessed is employed within the state, the tax is An after-acquired power cannot, ex proprio measured by that part of the capital alone, and no part of the surplus is taken into account. The words are, "Such corporation shall pay an annual franchise tax equal to 40 of 1 per cent of its capital stock employed in this state." But these words follow the words laying the normal tax measured by stock and surplus, [232] and the sentence quoted continues: "And for the purposes of this act such corporation On "primary elections" as elections shall be deemed to have employed in this within Constitution or statute relating to state that proportion of its entire out-elections generally-see note to Line v. standing capital stock and surplus that Waite, 18 L.R.A. (N.S.) 412.

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Note. As to Federal control of elections-see note to Lackey v. United States, 53 L.R.A. 660.

On constitutionality of primary election laws-see notes to People ex rel. Phillips v. Strassheim, 22 L.R.A. (N.S.) 1135; State ex rel. Miller v. Flaherty, 41 L.R.A. (N.S.) 132; and Waples v. Marrast, L.R.A.1917A, 259.

vigore, validate a statute void when enacted. [For other cases, see Elections, I.; V. in Digest Sup. Ct. 1908.]

[No. 559.]

766, 82 S. W. 388; Hodge v. Bryan, 149 Ky. 110, 147 S. W. 21; Hager v. Robinson, 154 Ky. 489, 157 S. W. 1138; Wilson v. Dean, 177 Ky. 97, 197 S. W. 547; Leu v. Montgomery, 31 N. D. 1, 148 N. W.

Argued January 7 and 10, 1921. Decided 662; State ex rel. Labauve v. Michel, 121

May 2, 1921.

IN
trict of Michigan to review convictions
of conspiring to violate the Federal Cor-
rupt Practices Act. Reversed and re-
manded for further proceedings.
The facts are stated in the opinion.
Mr. Charles E. Hughes argued the
cause, and, with Messrs. Martin W. Little-
ton, George E. Nichols, and James O.
Murfin, filed a brief for plaintiffs in er-

N ERROR to the District Court of the

ror:

The statutory provision in question is without constitutional authority.

United States v. Gradwell, 243 U. S. 476, 481, 482, 61 L. ed. 857, 862, 863, 37 Sup. Ct. Rep. 407; Minor v. Happersett, 21 Wall. 162, 172, 22 L. ed. 627, 629; Federalist, No. 60; Luther Martin's "Genuine Information," in Farrand's Records of Federal Convention, vol. 3, pp. 194, 195; Rufus King in Massachusetts Convention, Farrand's Records, vol. 3, p. 267; James Madison in Virginia Convention, Farrand's Records, vol. 3, pp. 311, 319; William R. Davie in North Carolina Convention, Farrand's Records, vol. 3, pp. 344, 345; Roger Sherman in House of Representatives, Farrand's Records, vol. 3, p. 359; Ex parte Siebold, 100 U. S. 371, 396, 25 L. ed. 717, 726; Ex parte Yarbrough, 110 U. S. 651, 28 L. ed. 274, 4 Sup. Ct. Rep. 152; United States v. Mosley, 238 U. S. 383, 59 L. ed. 1355, 35 Sup. Ct. Rep. 904; Re Coy, 127 U. S. 731, 752, 32 L. ed. 274, 278, 8 Sup. Ct. Rep. 1263; Hawke v. Smith, 253 U. S. 221, 64 L. ed. 871, 10 A.L.R. 1504, 40 Sup. Ct. Rep. 495; State ex rel. Nordin v. Erickson, 119 Minn. 156, 137 N. W. 385; State ex rel. Zent v. Nichols, 50 Wash. 522; United States v. Blair, 250 U. S. 273, 278, 279, 63 L. ed. 979, 981, 982, 39 Sup. Ct. Rep. 468; Ledgerwood v. Pitts, 122 Tenn. 570, 125 S. W. 1036; State v. Woodruff, 68 N. J. L. 94, 52 Atl. 294; Com. use of Directors of Poor v. Wells, 110 Pa. 468, 1 Atl. 310; People v. Cavanaugh, 112 Cal. 676, 44 Pac. 1057; State v. Simmons, 117 Ark. 159, 174 S. W. 238; George v. State, 18 Ga. App. 753, 90 S. E. 493; Riter v. Douglass, 32 Nev. 433, 109 Pac. 444; Gray v. Seitz, 162 Ind. 1, 69 N. E. 456; Kelso v. Cook, 184 Ind. 173, 110 N. E. 987, Ann. Cas. 1918E, 68; Montgomery v. Chelf, 118 Ky.

La. 374, 46 So. 430; Babbitt v. State, 26
Wyo. 27, 174 Pac. 188; United States v.
O'Toole, 236 Fed. 996.

The district court erred in its construction of the statute.

Pettibone v. United States, 148 U. S. 197, 37 L. ed. 419, 13 Sup. Ct. Rep. 542; Folwell v. State, 49 N. J. L. 33, 6 Atl. 619, 7 Am. Crim. Rep. 288; Felton v. United States, 96 U. S. 699, 24 L. ed. 875; Com. v. Kneeland, 20 Pick. 220; Potter v. United States, 155 U. S. 438, 39 L. ed. 214, 15 Sup. Ct. Rep. 144; Spurr v. United States, 174 U. S. 728, 43 L. ed. 1150, 19 Sup. Ct. Rep. 812; 40 Cyc. 944946; The Abbottsford, 98 U. S. 440, 25 L. ed. 168; Logan v. United States, 144 U. S. 263, 301, 36 L. ed. 429, 442, 12 Sup. Ct. Rep. 617; Kepner v. United States, 195 U. S. 100, 124, 49 L. ed. 114, 122, 24 Sup. Ct. Rep. 797, 1 Ann. Cas. 655; Latimer v. United States, 223 U. S. 501, 56 L. ed. 526, 32 Sup. Ct. Rep. 242; Cutter v. State, 36 N. J. L. 125; Stone v. United States, 167 U. S. 178, 42 L. ed. 127, 17 Sup. Ct. Rep. 778; Vogel v. Brown, 201 Mass. 261, 87 N. E. 686.

Solicitor General Frierson and Special Assistant to the Attorney General Dailey argued the cause and filed a brief for defendant in error:

States, holding an office created by the A Senator being an officer of the United Constitution, and constituting a part of the Federal government, all matters relating to his election belong to the government of the United States, which has the same power over them that the states

have over matters relating to the election of state officers, unless restricted by the

Constitution itself.

Lamar v. United States, 241 U. S. 103, 112, 60 L. ed. 912, 915, 36 Sup. Ct. Rep. 535; Ex parte Yarbrough, 110 U. S. 651, 657, 28 L. ed. 274, 275, 4 Sup. Ct. Rep. 152.

Ample authority to sustain this legislation is found in art. 1, § 4, of the Constitution.

Ex parte Siebold, 100 U. S. 371, 388, 25 L. ed. 717, 723; Ex parte Yarbrough, 110 U. S. 651, 657, 28 L. ed. 274, 275, 4 Sup. Ct. Rep. 152; United States v. Gradwell, 243 U. S. 476, 482, 61 L. ed. 857, 863, 37 Sup. Ct. Rep. 407.

In alleging a conspiracy to commit an offense, the offense conspired to be com

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