mitted need not be averred with the same particularity as if the defendants were indicted for a commission of the substantive offense. Anderson v. United States, 171 C. C. A. 341, 260 Fed. 558; Knauer v. United States, 150 C. C. A. 210, 237 Fed. 12; Lew Moy v. United States, 150 C. C. A. 252, 237 Fed. 52; Aczel v. United States, 146 C. C. A. 578, 232 Fed. 659; McConkey v. United States, 96' C. C. A. 501, 171 Fed. 832; Thomas v. United States, 17 L.R.A.(N.S.) 720, 84 C. C. A. 477, 156 Fed. 906; Van Gesner v. United States, 82 C. C. A. 180, 153 Fed. 54; Ching v. United States, 55 C. C. A. 304, 118 Fed. 540. Persons may be guilty of conspiracy with one to commit an offense which, as a matter of law, only that one can commit. United States v. Rabinowich, 238 U. S. 78, 86, 59 L. ed. 1211, 1214, 35 Sup. Ct. Rep. 682; United States v. Holte, 236 U. S. 140, 144, 145, 59 L. ed. 504-506, L.R.A.1915D, 281, 35 Sup. Ct. Rep. 271; Chadwick v. United States, 72 C. C. A. 343, 141 Fed. 235; Tapack v. United States, 137 C. C. A. 39, 220 Fed. 445447; Grunberg v. United States, 76 C. C. A. 51, 145 Fed. 84; Scott v. United States, 64 C. C. A. 631, 130 Fed. 432. The fact that a person honestly believes that he has a right to do what the law declares illegal will not affect the criminality of the act. State v. Foster, 22 R. I. 163, 50 L.R.A. 339, 342, 46 Atl. 833; State v. Welch, 73 Mo. 284, 39 Am. Rep. 515; People v. Brooks, 1 Denio, 457, 43 Am. Dec. 704; | Medrano v. State, 32 Tex. Crim. Rep. 214, 40 Am. St. Rep. 775, 22 S. W. 664; Ellis v. United States, 206 U. S. 246, 257, 51 L. ed. 1047, 1053, 27 Sup. Ct. Rep. 600, 11 Ann. Cas. 589; Armour Packing Co. v. United States, 209 U. S. 56, 85, 86, 52 L. ed. 681, 696, 697, 28 Sup. Ct. Rep. 428; Reynolds v. United States, 98 U. S. 145, 167, 25 L. ed. 244, 250; Re Independent Pub. Co. 228 Fed. 789; Agnew v. United States, 165 U. S. 36, 50, 41 L. ed. 624, 629, 17 Sup. Ct. Rep. 235; Chicago, St. P. M. & O. R. Co. v. United States, 90 C. C. A. 211, 162 Fed. 835; United States v. Sioux City Stock Yards Co. 162 Fed. 556; United States v. Atchison, T. & S. F. R. Co. 166 Fed. 160; St. Louis & S. F. R. Co. v. United States, 94 C. C. A. 437, 169 Fed. 69; United States v. Union P. R. Co. 94 C. C. A. 433, 169 Fed. 65. The act of a defendant, done in good faith, may be wilful. United States v. Union P. R. Co. su pra; Chicago, St. P. M. & O. R. Co. v. United States, 90 C. C. A. 211, 162 Fed. 835; Eldorado Coal & Coke Co. v. Swan, 227 Ill. 592, 81 N. E. 691; State v. Clark, 102 Iowa, 685, 72 N. W. 296. Mr. Justice McReynolds delivered the opinion of the court: Plaintiffs in error-Truman H. Newberry, Paul H. King, and fifteen otherswere found guilty of conspiring (Criminal Code, § 37) to violate § 8, Act of Congress approved June 25, 1910 (chap. 392, 36 Stat. at L. 822-824), as amended by Act of August 19, 1911 (chap. 33, 37 Stat. at L. 25-29, Comp. Stat. § 195, 3 Fed. Stat. Anno. 2d ed. p. 124),-the Federal Corrupt Practices Act,-which provides: "No candidate for Representative in Congress or for Senator of the United States shall give, contribute, expend, use, or promise, or cause to be given, contributed, expended, used, or promised, in procuring his nomination and election, any sum, in the aggregate, in excess of the amount which he may lawfully give, contribute, expend, or promise under the laws of the state in which he resides: Provided, That no candidate for Representative in Congress shall give, contribute, expend, use, or promise any sum, in the aggregate, exceeding five thousand dollars in any campaign for his nomination and election; and no candidate for Senator of the United States shall give, contribute, expend, use, or promise any sum, in the aggregate, exceeding ten thousand dollars in any campaign for his nomination and election: | Act No. 109, § 1, Michigan legislature, 1913, prohibits expenditure by or on behalf of a candidate, to be paid by him, in securing his nomination, of any sum exceeding 25 per centum of one year's compensation; and puts like limitation upon expenditures to obtain election after nomination. Section 1 is copied below.1 for the Republican nomination for United States Senator from Michigan at the primary election held August 27, 1918; that, by reason of selection and nomination therein, he became a candidate at the general election, November 5, 1918; that he and 134 others (who are named) at divers times from December Taken with the state enactment, the Federal statute in effect declares a candidate for the United States Senate punishable by fine and imprisonment, if (except for certain [245] specified purposes) 1, 1917, to November 5, 1918, unlawfulhe give, contribute, expend, use, promise, or cause to be given, contributed, expended, used, or promised in procuring his nomination and election more than $3,750,-one half of one year's salary. Under the construction of the act urged by the government and adopted by the court below, it is not necessary that the inhibited sum be paid, promised, or expended by the candidate himself, or be devoted to any secret or immoral purpose. For example, its open and avowed contribution and use by supporters upon suggestion by him, or with his approval and co-operation, in order to promote public discussion and debate touching vital questions, or to pay necessary expenses of speakers, etc., is enough. And upon such interpretation the conviction below was asked and obtained. The indictment charges: That Truman H. Newberry became a candidate 1 Act 109, Michigan legislature, 1913: "Section 1. No sums of money shall be paid, and no expenses authorized or incurred by or on behalf of any candidate to be paid by him in order to secure or aid in securing his nomination to any public office or position in this state, in excess of 25 per cent of one year's compensation or salary of the office for which he is candidate: Provided, That a sum not exceeding 50 per cent of one year's salary may be expended by the candidates for governor and lieutenant governor; or where the office is that of member of either branch of the legislature of the state, the 25 per cent shall be computed on the salary fixed for the term of two years: Provided further, That no candidate shall be restricted to less than $100 in his campaign for such nomination. No sums of money shall be paid and no expense authorized or incurred by or on behalf of any candidate who has received the nomination to any public office or position in this state, in excess of 25 per cent of one year's salary or compensation of the office for which he is nominated; or where the office is that of member of either branch of the legislature of the state, the 25 per cent shall be computed on the salary fixed for the term of two years: Provided, That no candidate shall be restricted to less than $100. No sum of money shall be paid and no expenses authorized or incurred by or on behalf of any candidate contrary to the provisions of this act." ly and feloniously did conspire, combine, confederate, and agree together to commit the offense on his part of wilfully violating the Act of Congress approved June 25, 1910, as amended, by giving, contributing, expending, and using, and by causing to be given, contributed, expended, and used, in procuring his nomination and election at said primary and general elections, a greater sum than the laws of Michigan permitted, and above $10,000, to wit, $100,000, and on the part of the other defendants of aiding, counseling, inducing, and procuring Newberry, as such candidate, to give, contribute, expend, and use, or cause to be given, contributed, expended, and used, said large and excessive sum in order to procure his nomination [246] and election. Plaintiffs in error were convicted under count 1, set out in the margin.2 [247] The court below overruled a 2 (Count One.) That Truman H. Newberry, Chase S. Osborne, Henry Ford, and William B. Simpcandidates for the Republican nomination son, before and on August 27, 1918, were for the office of Senator in the Congress of the United States from the state of Michi gan at the primary election held in said state, and Henry Ford and James Helm, state on that day under the laws of said before and on said August 27, 1918, were candidates for the Democratic nomination for the same office at said primary election; that from said August 27, 1918, to and including November 5, 1918, said Truman H. Newberry and said Henry Ford, by reason of their election and nomination at said primary election, became and were opposing ator in the Congress of the United States from said state of Michigan at the general election held in said state on said November 5, 1918, said Truman H. Newberry of the Republican party and said Henry Ford of the Democratic party, each of said candidates having, on said August 27, 1918, and on November 5, 1918, attained to the age of thirty years and upwards, and been a citizen of the United States for more than nine years, and each then being an inhabitant and resident of said state; and that said Truman H. Newberry, Paul H. King (and 133 others), hereinafter called the defendants, continuously and at all and divers candidates for election to the office of Sen duly interposed demurrer which challenged the constitutionality of § 8; and by so doing, we think, fell into error. Manifestly, this section applies not only to final elections for choosing Senators, but also to primaries and conventions of political parties for selection of candidates. Michigan and many other states undertake to control these primaries by statutes and give recognition to their results. And the ultimate question for solution here is whether, under the grant of power to regulate "the manner of holding elections," Congress times throughout the period of time from December 1, 1917, to and including said November 5, 1918, at and within said southern division of said western district of Michigan, unlawfully and feloniously did conspire, combine, confederate, and agree together, and with divers other persons to said grand jurors unknown, to commit an offense against the United States, to wit, the offense on the part of said Truman H. Newberry of wilfully violating the Act of Congress approved June 25, 1910 [36 Stat. at L. 822, chap. 392], as amended by the Acts of August 19, 1911 [37 Stat. at L. 25, chap. 33], and August 23, 1912 [37 Stat. at L. 360, chap. 349, Comp. Stat. § 195, 3 Fed. Stat. Anno. 2d ed. p. 122], by giving, contributing, expending and using and by causing to be given, contributed, expended and used, in procuring his nomination and election as such Senator at said primary and general elections, a sum, in the aggregate, in excess of the amount which he might lawfully give, contribute, expend, or use or cause to be given, contributed, expended, or used for such purpose under the laws of said state of Michigan, to wit, the sum of $100,000, and by giving, contributing, expending, and using and causing to be given, contributed, expended, and used in procuring his nomination and election as such Senator, at said primary and general elec tions, a sum in the aggregate, in excess of $10,000, to wit said sum of $100,000, and on the part of said other defendants of aiding, counseling, inducing, and procuring said Truman II. Newberry so to give, contribute, expend, and use and cause to be given, contributed, expended, and used said large sum of money in excess of the amounts permitted by the laws of the state of Michigan and the said acts of Congress; the same to be money so unlawfully given, contributed, expended, and used by said Truman H. Newberry and by him caused to be given, contributed, expended, and used as such candidate for the following and other purposes, objects, and things, to wit: Advertisements in newspapers and other publications; Print paper, cuts, plates, and other supplies furnished to newspaper publishers; Subscriptions to newspapers; Production, distribution, and exhibition of moving pictures; which a may fix the maximum sum candidate therein may spend, or advise or cause to be contributed and spent by others to procure his nomination. Section 4, article 1, of the Constitution, provides: "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state [248] by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators." Here is the source of congressional power over the elections Traveling and subsistence expenses of campaign managers, public speakers, secret propagandists, field, district, and county agents and solicitors, and of voters not infirm or disabled; Compensation of campaign managers, public speakers, and secret propagandists, and of field, district, and county agents and solicitors; Appropriating and converting to the use of the defendants themselves, and each of them, large sums of money under the guise and pretense of payment of their expenses and compensation for their services; Rent of offices and public halls; Unlawful assistance of election officials; Expenses and compensation of Democratic obstructionist candidates at the primary election; Expenses and compensation of detectives; Dinners, banquet and other entertainments given to persons believed to be influ ential in said state of Michigan; And no part of which said money was to be money expended by said Truman H. Newberry, as such candidate, to meet or discharge assessments, fees, or charges made or levied upon candidates by the laws of said state, or for his necessary personal expenses, incurred for himself alone, for travel and subsistence, stationery and postage, writing or printing (other than in newspapers), or for distributing letters, circulars, or postage, or for telegraph or telephone service, or for proper legal expenses in maintaining or contesting the results of either of said elections. [Thirty-eight distinct and separate overt acts are specified.] And so the grand jurors aforesaid, upon their oaths aforesaid, do say, that said defendants, continuously and at all and divers times throughout the period of time in this count mentioned, at and within said division and district, in manner and form in this count aforesaid, unlawfully and feloniously did conspire to commit an offense against the United States, and certain of them did do acts to effect the object of the conspiracy, against the peace and dignity of the United States, and contrary to the form of the statute of the same in such case made and provided. specified. It has been so declared by this court (Ex parte Siebold, 100 U. S. 371, 25 L. ed. 717; United States v. Gradwell, 243 U. S. 476, 481, 61 L. ed. 857, 862, 37 Sup. Ct. Rep. 407), and the early discussions clearly show that this was then the accepted opinion. The Federalist, Nos. 58-60; Elliot's Debates, vol. 2, pp. 50, 73, 311; vol. 3, pp. 86, 183, 344, 375; vol. 4, pp. 75, 78, 211. State ex rel. Nordin v. Erickson, 119 ers possessing "the qualifications requisite for electors of the most numerous branch of the state legislature." Art. 1, §§ 2 and 3. The 17th Amendment, which directs that Senators be chosen by the people, neither announced nor requires a new meaning of election, and the word now has the same general significance as it did when the Constitution came into existence,-final choice of an [249] We find no support in reason officer by the duly qualified electors. or authority for the argument that because Hawke v. Smith, 253 U. S. 221, 64 L. ed. the offices were created by the Consti- 871, 10 A.L.R. 1504, 40 Sup. Ct. Rep. tution, Congress has some indefinite, un- 495. Primaries were then unknown. defined power over elections for Sena- Moreover, they are in no sense elections tors and Representatives not derived for an office, but merely methods by from § 4. "The government, then, of which party adherents agree upon canthe United States, can claim no powers didates whom they intend to offer and which are not granted to it by the Con- support for ultimate choice by all qualstitution, and the powers actually grant-ified electors. General provisions touched must be such as are expressly given, ing elections in constitutions or stator given by necessary implication." utes are not necessarily applicable to Martin v. Hunter, 1 Wheat. 304, 326, primaries, the two things are radically 4 L. ed. 97, 102. Clear constitutional different. And this view has been deprovisions also negative any possible in-clared by many state courts. People v. ference of such authority because of the Cavanaugh, 112 Cal. 674, 44 Pac. 1057; supposed anomaly "if one government had the unrestricted power to control matters affecting the choice of the officers of another." Mr. Iredell (afterwards of this court) in the North Carolina Convention of 1788, pointed out that the states may-must, indeed-exert some unrestricted control over the Federal government. "The very existence of the general government depends on that of the state governments. The state legislatures are to choose the Senators. Without a Senate there can be no Congress. The state legislatures are also to direct the manner of choosing the President. Unless, therefore, there are state legislatures to direct that manner, no President can be chosen. The same observation may be made as to the House of Representatives, since as they are to be chosen by the electors of the most numerous branch of each state legislature. If there are no state legislatures, there are no persons to choose the House of Representatives. Thus it is evident that the very existence of the general government depends on that of the state legislatures." 4 Elliot's Debates, p. 78. See also The Federalist, No. 45. The Federal features of our government are so clear and have been so often declared that no valuable discussion can proceed upon the opposite assumption. Undoubtedly elections within the original intendment [250] of § 4 were those wherein Senators should be chosen by legislatures and Representatives by vot Sundry provisions of the Constitution indicate plainly enough what its framers meant by elections and the "manner of holding" them. "The House of Representatives shall be composed of members chosen every second year by the people of the several states." "No person shall be a Representative. who shall not, when elected, be an inhabitant of that state in which he shall be chosen." "When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies." "Immediately after they [the Senators] shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes." "No person [251] shall be a Senator . . who shall not, when elected, be an inhabitant of that state for which he shall be chosen." "Each House shall be the judge of the elections, returns and qualifications of its own members." "No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office," etc. "The executive power shall be vested in a President of the United States of America. He shall hold his office dur ing the term of four years, and, to- | executive thereof to make temporary gether with the Vice President, chosen appointment until the people fill the vafor the same term, be elected as fol- cancies by election as the legislature lows." "The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected." And provisions in the 17th Amendment are of like effect. may direct. This Amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution." As finally submitted and adopted the Amendment does not undertake to modThe plain words of the 17th Amend- ify article 1, § 4, the source of congresment, and those portions of the original sional power to regulate the times, Constitution directly affected by it, places, and manner of holding elections. should be kept in mind. Art. 1, That section remains "intact and ap3: "The Senate of the United States plicable both to the election of Represhall be composed of two Senators from sentatives and Senators." Cong. Rec. each state, chosen by the legislature vol. 46, p. 848. When first reported, thereof, for six years; and each Senator January 11, 1911, by Senator Borah for shall have one vote. Immediately after the Judiciary Committee, the proposed they shall be assembled in consequence 17th Amendment contained a clause of the first election, they shall be divid- providing: "The times, places, and ed as equally as may be into three manner of holding elections for Senclasses. And if vacancies hap- ators shall be as prescribed in each pen by resignation, or otherwise, dur- state by the legislature thereof,"-the ing the recess of the legislature of any avowed purpose being thereby to modistate, the executive thereof may make fy § 4, art. 1, by depriving Congress of temporary appointments until the next power to regulate the manner of holding meeting of the legislature, which shall elections for Senators. (A copy of the then fill such vacancies." Seventeenth original resolution as presented to the Amendment: "The Senate of the Unit- Senate is in the margin.)3 [253] Upon ed States shall be composed of two Sen- recommendation of a minority of the ators from each state, elected by the Judiciary Committee this clause was people thereof, for six years; and each eliminated and reference to § 4, art. 1, Senator shall have one vote. The elec- omitted from the Resolution. After tors in each state shall have the quali- prolonged debate in the 61st and 62d fications requisite for electors of the Congresses the Amendment in its presmost numerous branch of the state leg-ent form was submitted for ratification. islatures. When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall [252] issue writs of election to fill such vacancies: Provided, That the legislature of any state may empower the 3 S. J. Res., 134, 61st Congress, Cong. Rec. vol. 46, p. 847. "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two thirds of each House concurring therein), That in lieu of the first paragraph of § 3 of article 1 of the Constitution of the United States, and in lieu of so much of paragraph 2 of the same section as relates to the filling of vacancies, and in lieu of all of paragraph 1 of § 4 of said article 1, in so far as same relates to any authority in Congress to make or alter regulations as to the times or manner of holding elections for Senators, the following be proposed as an amendment to the Constitution, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three fourths of the states: ""The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof for six See Sen. Rep. 961, 61st Cong. 3d Sess.; Apparently because deemed unimportant no counsel on either side referred years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures. "The times, places, and manner of holding elections for Senators shall be prescribed in each state by the legislature thereof. "When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, That the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election, as the legislature may direct. ""This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution."" |