Sherman v. United States (155 U.S. 673)/Opinion of the Court

The charge in question is claimed to be justified by Rev. St. §§ 2026, 2031, the material parts of which read as follows:

'Sec. 2026. The chief supervisor shall prepare and furnish all necessary books, forms, blanks, and instructions for the use and direction of the supervisors of election in the several cities and towns in their respective districts. * *  * He shall require of the supervisors of election, when necessary, lists of the persons who may register and vote, or either, in their respective election districts or voting precincts, and cause the names of those upon any such lists whose right to register or vote is honestly doubted to be verified by proper inquiry and examination at the respective places by them assigned as their residences; and he shall receive, preserve, and file *  *  * all certificates, returns, reports, and records of every kind and nature contemplated or made requisite by the provisions hereof, save where otherwise herein specially directed.'

'Sec. 2031. There shall be allowed and paid to the chief supervisor, for his services as such officer, the following compensation, apart from and in excess of all fees allowed by law for the performance of any duty as circuit court commissioner: For filing and caring for every return, report, record, document, or other paper required to be filed by him under any of the preceding provisions, ten cents; for affixing a seal to any paper, record, report, or instrument, twenty cents; for entering and indexing the records of his office, fifteen cents per folio. * *  * And the fees of the chief supervisors shall be paid at the treasury of the United States, such accounts to be made out, verified, examined, and certified as in the case of accounts of commissioners, save that the examination or certificate required may be made by either the circuit or district judge.'

Under the first section, it is a matter for the chief supervisor to determine whether it be 'necessary' to require of the supervisors of election lists of the persons who may register and vote, etc., and his discretion in this particular is not subject to review. When these lists are returned to him, he is required to 'receive, preserve, and file' them as 'certificates, returns, reports, or records'; and, by section 2031, 'for filing and caring for' such 'return, report, record, document, or other paper' he is entitled to 10 cents. Is he, however, under the name of 'entering and indexing the records of his office,' entitled to 15 cents per folio for making a complete copy of such returns, and arranging them in alphabetical order after they have been properly filed as records of his office?

The object of the statutes concerning the elective franchise, now embodied in title 26 of the Revised Statutes, was, as declared in the title to the act of May 31, 1870 (16 Stat. 140), 'to enforce the rights of citizens of the United States to vote in the several states of this Union, and for other purposes,' among which was, undoubtedly, the preservation of the purity of elections, and the obtaining of an honest expression of opinion from each individual voter. For this purpose the judge of the circuit court was required, upon the petition of a certain number of citizens of any city or town having upwards of 20,000 inhabitants, or of any county or parish in any congressional district, making known their desire to have the registration or election guarded and scrutinized, to open the circuit court at the most convenient point in the circuit (section 2011); to appoint and commission, from day to day, two citizens from each voting precinct, to be known and designated as 'SUPERVISORS OF ELECTIONS' (SECTION 2012), who were required to attend at the registration of the voters, to challenge voters and supervise the registry, to make lists of the voters when required (section 2016), to attend at the election, to supervise the manner in which the voting was done (section 2017), to canvass each ballot, and, generally, to see that the election and canvass were fairly conducted, and to make return of their doings to the chief supervisor (section 2018). By section 2021, the marshal for the district was required, upon the application in writing of a certain number of citizens, to appoint a certain number of deputy marshals to aid and assist the supervisors in the verification of any lists of voters, and to attend the registration and election.

By section 2025, the circuit court was required to appoint, from among the circuit court commissioners, a chief supervisor, who should serve so long as he faithfully and capably discharged the duties imposed upon him.

From this brief recapitulation of the prominent provisions of the title, it is evident that no permanent system for the carrying on of congressional elections was intended to be established. The act was to be operative only in particular cases, when, upon petition filed by the required number of citizens, the circuit court was authorized to appoint supervisors, who attended that election, at the conclusion of which they became functi officio. No system for the permanent registration of voters was contemplated, simply because the exigencies which dictated the appointment of supervisors for a particular election might not exist at the next or any subsequent election. No permanent official is provided for, except a chief supervisor in each judicial district, who served without regular salary, and acted only when the electoral machinery was put in motion, prior to any election, by the petition of the requisite number of voters. No permanent records were contemplated, and, without a system of registration like that obtaining in many of the states, none would be of any value, since persons who are disqualified at one election, by reason of minority, alienage, nonresidence, or other cause, might, when the next election took place, become legal and competent voters. So, those who are this year qualified may next year, either by removal from their present residence, by insanity, conviction of crime, or other cause, become disqualified the next year. The laws of the several states usually recognize the fact that a person, whose name appears upon the registry of a certain precinct, is presumed to be qualified at the next election in that precinct. But even if a complete registration of voters were made by the chief supervisor, no such presumption would follow, since it is the state, and not the general government, which prescribes the qualification of voters. It was never the design of the act that congress should determine who should vote at any election, or interfere with laws of the state in that regard, but only to protect those who were entitled to vote by the laws of the state in the exercise of the elective franchise. It would, therefore, have been entirely superfluous to provide for a permanent registry of voters to be kept by the chief supervisor. The state registration is presumed to answer all requirements in that particular.

So, too, a registry of voters, to be of any value, must be kept at the polling places in each precinct, in order that, as each voter presents himself, reference may instantly be made to the list to ascertain his qualifications. Hence the list made by the claimant, to serve any useful purpose, would have to be either printed or copied for use in each precinct; involving, of course, an enormous expense. But even this would have been of little value, since each precinct is concerned only with its own voters, and a list of 61,282 folios, containing the names of probably double that number of voters, would be so long as to be practically useless for ready and immediate reference. Add to this the fact, that thousands of changes are made at each election, and that the services in question were not completed until July, 1892, nearly four years after the election took place, and it will be seen that the list made by the claimant could have been of no possible value to the government,-of no more value than a city directory published four years after the compilation of names is made. The index, so prepared by him after the election of 1888, was not in fact made until after the congressional election of 1890, and was never used until the election of 1892. To what extent it was so used does not appear. It seems, too, that a similar index of the election returns of the election of 1890 was made out before the election of 1892, was used in that election, and has been paid for.

It is claimed, however, that, if the statute requires or authorizes the work to be done, the claimant ought not to be held responsible for the fact that the transcript was of no value, or to lose his compensation for that reason. Assuming that section 2026 vests him with a discretion to require of the supervisors lists of the voters when, in his opinion, it is necessary, and that section 2031 authorizes, and perhaps requires, him to file and care for such lists, there is certainly no requirement that he make a copy of such lists. The entering and indexing the records of his office, for which he is entitled to recover 15 cents per folio, would evidently be complied with by his filing such returns, and indexing them in the name of the supervisor making the return; and, even if the services performed by him in copying and rearranging the names upon these returns could be construed as 'entering and indexing' them, it was a service of such manifestly disproportionate value to the cost thereby incurred that we think it could never have been contemplated by the statute. The claimant should have recognized this fact, and, before putting the government to the very large expense of this transcript, he should have been able to point to some statute requiring it to be done in language free from ambiguity.

The very magnitude of the expense incurred should have put the claimant upon inquiry as to the propriety of the service. He has no right to plunge the government into an expense of some $10,000 upon a doubtful interpretation of the law, especially when he is apprised of the fact that the service performed must have been of little or no value to the government. The index which he prepared for the election of 1890, and for which he was paid, covered every possible use for which the index he now charges for could have been made available. It is of no more value than a directory for a certain year issued after a directory for a subsequent year has been published and put upon the market.

We do not wish to be understood as imputing any bad faith to the plaintiff in this particular, as there are undoubtedly decisions even of the court of claims, which uphold charges of this description (Dennison v. U.S., 25 Ct. Cl. 304; Allen v. U.S., 26 Ct. Cl. 445), and the department seems to have paid many of these accounts without question since these decisions. We are, however, clear in our opinion that the service is not one within the spirit or the letter of the statute; that the circuit judge was right in refusing to approve the account; and that the allowance of other accounts of a similar nature works no estoppel upon the government. If there be any estoppel at all, it is against the claimant, who has already been paid for a similar service performed since the transcript in question was made.

The judgment of the court of claims is therefore affirmed.