by intimidation or bribery prevent any person from exercising the elective franchise "to whom the right of suffrage is secured or guaranteed by the fifteenth amendment of the constitution of the United States." Certain inspectors of a municipal election in the state of Kentucky were indicted for refusing to receive and count at said election the vote of one Garner, a citizen of the United States of African descent. The indictment was based upon the third and fourth sections. The contention there, as here, was that the fifteenth amendment had created a class of voters which it was the duty of congress to protect in the exercise of the elective franchise, and that it was competent for congress to provide for the punishment of every obstruction to the exercise of that right as a right arising under or dependent upon the constitution of the United States. To this contention the court said:

"Rights and immunities created by or dependent upon the constitution of the United States can be protected by congress. The form and the manner of the protection may be such as congress, in the legitimate exercise of its legislative discretion, shall provide. These may be varied to meet the necessities of the particular right to be protected. The fifteenth amendment does not confer the right of suffrage upon any one. It prevents the states, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, color, or previous condition of servitude. Before its adoption, this could be done. It was as much within the power of a state to exclude citizens of the United States from voting on account of race, etc., as it was on account of age, property, or education. Now it is not. If citizens of one race, having certain qualifications, are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment, there was no constitutional guaranty against this discrimination; now there is. It follows that the amendment has invested the citizens of the United States with a new constitutional right, which is within the protecting power of congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. This, under the express provisions of the second section of the amendment, congress may enforce by 'appropriate legislation.' This leads us to inquire whether the act now under consideration is 'appropriate legislation' for that purpose. The power of congress to legislate at all upon the subject of voting at state elections rests upon this amendment. The effect of article 1 § 4, of the constitution, in respect to elections for senators and representatives, is not now under consideration. It has not been contended, nor can it be, that the amendment confers authority to impose penalties for every wrongful refusal to receive the vote of a qualified elector at state elections. It is only when the wrongful refusal at such an election is because of race, color, or previous condition of servitude that congress can interfere, and provide for its punishment. If, therefore, the third and fourth sections of the act are beyond that limit, they are unauthorized."

Examining the sections there involved, the court held that neither section was confined in its operation to unlawful discriminations on account of race, color, or previous condition of servitude. "If congress had the power," said the court, "to provide generally for the punishment of those who unlawfully interfere to prevent the exercise of the elective franchise without regard to such discrimination, the language of these sections would be broad enough for that purpose." Having held that congress was only authorized to interfere with the voting at a state election when the wrongful refusal to receive and count a vote is because of race, color, or previous con

46 C.C.A.-13

dition of servitude, the court held that the two sections there involved were beyond the limit authorized by the fifteenth amendment. In U. S. v. Cruikshank, 92 U. S. 542, 555, 556, 23 L. Ed. 588, two of the counts of the indictment were for hindering and preventing the citizens named, who were described as being of African descent, "in the free exercise and enjoyment of their several and respective right and privilege to vote at any election to be thereafter by law had and held by the people in and of the state of Louisiana, or by the people of and in the parish of Grant aforesaid." These counts, as well as all the other counts of the indictment, were based upon the sixth section of the act of May 31, 1870, now section 5508 of the Revised Statutes. Concerning these particular counts, the court said:

"In Minor v. Happersett, 21 Wall. 178, 22 L. Ed. 627, we decided that the constitution of the United States has not conferred the right of suffrage upon any one, and that the United States have no voters of their own creation in the states. In U. S. v. Reese, 92 U. S. 214, 23 L. Ed. 563, we hold that the fifteenth amendment has invested the citizens of the United States with a new constitutional right, which is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this it appears that the right of suffrage is not a necessary attribute of national citizenship, but that exemption from discrimination in the exercise of that right on account of race, etc., is. The right to vote in the states comes from the states, but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the constitution of the United States, but the last has been. Inasmuch, therefore, as it does not appear in these counts that the intent of the defendants was to prevent these parties from exercising their right to vote on account of their race, etc., it does not appear that it was their intent to interfere with any right granted or secured by the constitution or laws of the United States. We may suspect that race was the cause of the hostility, but it was not so averred. This is material to a description of the substance of the offense, and cannot be supplied by implication. Everything essential must be charged positively, and not inferentially. The defect here is not in form, but in substance."

Similar views as to the limitation upon the powers of congress in respect of the legislation authorized by the fifteenth amendment are expressed in U. S. v. Harris, 106 U. S. 629, 637, 1 Sup. Ct. 601, 27 L. Ed. 290.

But it is said that the law upon which the indictment at bar is based escapes the vice of the law condemned in U. S. v. Reese, supra, by the fact that its operation is confined to offenses obstructive to the exercise of the elective franchise by a class of voters described in the law as "those to whom the right of suffrage is secured and guarantied by the fifteenth amendment." "This class," counsel say, "is constituted solely of citizens of African descent, and the operation of the law limited to offenses denying or abridging this right of suffrage." But this argument is based upon a misapprehension of the vice in those portions of the enforcement act commented upon in U. S. v. Reese. If the right conferred, secured, or guarantied by the fifteenth amendment is not the right of suffrage, but the right of exemption from discrimination in the exercise of the elective franchise on account of race, color, etc., then the legislation which congress is authorized to enact in respect of

voting at state elections by that amendment must be limited to acts which prevent or punish the discrimination therein forbidden. Every wrongful obstruction of the suffrage of the black man at a state election is not on account of race, color, etc. Unless he is hindered or prevented from the free exercise of the elective franchise on account of his race, color, etc., there has not been a denial or abridgment of the right of suffrage within the prohibitions of the amendment. Both U. S. v. Reese and U. S. v. Cruikshank were decided upon the ground that discrimination on account of color, race, etc., is essential to the commission of any offense against the United States at a state election. In Ex parte Yarbrough, cited above, this limitation was held not to apply at elections where congressmen were to be chosen, because the right to vote for congressmen is a right secured by and dependent upon the constitution of the United States, the office being created and the qualification of voters being determined by that instrument.

The vice of the fifth section, now section 5507 of the Revised Statutes, is precisely the vice of the third and fourth sections of the same act. It is not limited in its operation to congressional or presidential elections, nor to offenses grounded upon race, color, or previous condition of servitude. Reading the section in connection with the other parts of the act from which it was taken, it is too obvious for discussion that congress intended that it should have operation in all elections, and should not be limited to obstructions to the free exercise of the elective franchise based upon race, etc. Indeed, this is the very meaning attached to the act by the court below. The indictment in the case at bar did not aver the bribery to have been because of color, etc., and, if it had, it would have added an element not named in the statute. The same conclusion, in respect to the invalidity of this section, was reached by Judge Gresham, in U. S. v. Amsden (D. C.) 6 Fed. 319. Without considering the further question as to whether the power of congress to legislate in respect to purely state elections is not also limited to prohibitions of discrimination by the United States, and by the states and their officers or others, claiming to act under color of laws within the prohibition of the amendment, we are content to hold that section 5507 is void, as including within its operation offenses not grounded upon race, color, or previous condition of servitude, and therefore in excess of the power of congress in respect of state elections; its powers in respect to such elections being dependent upon the fifteenth amendment alone.

A number of errors in respect to the charge delivered and to charges refused have been assigned. Inasmuch as we have unanimously reached the conclusion that the law under which the indictment was found is repugnant to the constitution, it becomes unnecessary to consider the mere details of the trial. Judgment reversed, with directions to sustain the demurrer to the indictment, and discharge the plaintiff in error without day.

(107 Fed. 121.)

DE LEMOS v. UNITED STATES.

(Circuit Court of Appeals, Fifth Circuit. February 19, 1901.)

No. 938.

CRIMINAL LAW-Procedure FOR REVIEW-APPEAL.

The fundamental distinction existing at common law between appeals and writs of error has always been recognized and maintained in the appellate procedure of the courts of the United States, and a judgment in an action at law or in a criminal case has never been reviewable except by writ of error; nor was it the purpose of congress to change such rule by Act Jan. 20, 1897 (29 Stat. 492), amending section 5 of the act creating the circuit courts of appeals by transferring from the supreme court to such courts appellate jurisdiction in a certain class of criminal cases, and which provides that "appeals or writs of error may be taken from the district courts or circuit courts to the proper circuit court of appeals in cases of conviction of an infamous crime not capital." The words "appeal or writ of error" are used in several places in the original act, not as permitting the use of the remedies interchangeably, but the use of either as should be appropriate to the case; and, construing the amendment in connection with the other provisions of the act, it cannot be held to confer jurisdiction upon a circuit court of appeals to review a criminal case by appeal.

Appeal from the Circuit Court of the United States for the Middle District of Alabama.

John G. Winter and Francis G. Caffey, for appellant.

W. S. Reese, Jr., U. S. Atty. (J. Sternfeld, Asst. U. S. Atty., on the brief).

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

SHELBY, Circuit Judge. This case is submitted on a motion to dismiss the appeal. Ben de Lemos was indicted and convicted in the court below for violation of the pension laws of the United States, and he was sentenced to imprisonment in the Ohio penitentiary for five years. On the day he was convicted the circuit court made an order suspending execution of the sentence pending the appeal The order provided for the suspension of the sentence "pending appeal on writ of error to the circuit court of appeals, on defendant's executing a bond in the sum of $1,500, as required by law and the rules of the court." On the same day a bond was given, and approved by the judge presiding in the circuit court, which recited that "Ben de Lemos has prayed for and taken an appeal to the United States circuit court of appeals of the Fifth circuit to reverse the judgment and sentence in the aforesaid suit." There was no formal petition for, nor order allowing, an appeal, but it is claimed by the appellant that the approval of the appeal bond is sufficient to perfect the appeal. Brandies v. Cochrane, 105 U. S. 262, 26 L. Ed. 989. Whether the bond given was sufficient to bring the case within this rule is immaterial, and will not be considered. The issuance and service of citation of appeal were waived by the United States. The defendant was al lowed 90 days in which to file a bill of exceptions, and it was duly filed. The record, duly certified by the clerk, was filed in this court

on May 12, 1900. No writ of error appears in the record. None was ever issued or prayed for in the case. The appellant claims that this court has jurisdiction of the case by appeal. The United States moves to dismiss the case because it could only be brought to this court by writ of error.

The writ of error and the appeal are the two principal methods known to English jurisprudence and to the jurisprudence of the feder al courts by which cases may be removed from an inferior to an appellate court for review. There are other exceptional modes of review, not material to this case. The appeal is the only method by which a decree in chancery or in admiralty can be brought from a district court or circuit court to the supreme court or to this court for review. The appeal brings up the whole case for re-examination on the merits as to both law and facts, and for decision as though no decree had ever been rendered. A writ of error was the appropriate remedy at common law, by which a party aggrieved by the judgment of an inferior court could remove the judgment for examination into a superior tribunal having jurisdiction to revise it. The writ was defined in Cohens v. Virginia, 6 Wheat. 409, 5 L. Ed. 292, as "a commission by which the judges of one court are authorized to examine a record upon which a judgment was given in another court, and on such examination to affirm or reverse the same according to law." Cases brought up for review on writ of error, unlike cases brought up by appeal, are not open for re-examination on their whole merits, but every controverted question of fact is excluded from consideration, and the appellate court is confined to reviewing rulings of the inferior court on questions of law. This distinction in federal appellate procedure is fundamental, and has existed for more than a century. The distinction in the two modes of review is preserved, not in name, but in principle, by the constitution, for the seventh amendment provides that "no fact tried by a jury shall be otherwise examined in any court of the United States than according to the rules of the common law." This distinction between the uses of the writ of error and the appeal is settled by a long line of decisions of the supreme court and of the several United States courts of appeals. A few of them may be cited: Sarchet v. U. S., 12 Pet. 143, 9 L. Ed. 1033; Bondurant v. Watson, 103 U. S. 278, 26 L. Ed. 447; Nelson v. Huidekoper, 66 Fed. 616, 13 C. C. A. 658; Nelson v. Lowndes County, 93 Fed. 538, 35 C. C. A. 419; Stevens v. Clark, 62 Fed. 321, 10 C. C. A. 379. The learned counsel for the appellant do not controvert this distinction as applicable usually in appellate federal procedure. Their contention is that an appeal is allowed in the case at bar by a proper construction of the statute of January 20, 1897 (29 Stat. 492), which is as follows:

"An act to withdraw from the supreme court jurisdiction of criminal cases not capital, and confer the same on the circuit courts of appeals. "Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that so much of section five of the act entitled 'An act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes,' approved March third, eighteen hundred and ninetyone, as reads 'in cases of conviction of a capital or otherwise infamous