This is a demurrer filéd to an information in the circuit court of the United States, which charges the defendants named therein with a violation, of section 5506 of the Revised Statutes, in that they combined and confederated to prevent and hinder certain citizens named therein from voting at a congressional election held November 7, 1882, by refusing to assess them for taxes so that they could pay their capitation tax, which was at that time and at that election a prerequisite for voting.
So far as the'first ground of demurrer is concerned, that there is no averment in the information that the parties conspired against were citizens of Virginia, qualified to vote in 1881, and qualified to vote in the coming election of 1882, it is possible that the averments are not made explicitly; it is only by implication such facts can be known from the information; but the court will allow the United States to amend in this particular, as it can cause no surprise and work no injury to the defendants. The second ground of demurrer, that the defendants were not bound to assess the parties mentioned at the time application was made for assessment, is rather a matter of fact to be proved than a ground of demurrer, and is now overruled. The third ground of demurrer, that the capitation tax was abolished by a vote of the people to whom it was submitted at the election of 1882, after the offenses charged in the information had been com*227mitted, is not to the purpose. The parties are charged with a conspiracy to hinder and prevent the qualified voters from doing an act prerequsite to enable them to vote. The offense is under criminal statutes of the United States. Those statutes have not been repealed, and it is no answer to this charge to say it is no longer a prerequisite for voting to pay a capitation tax, and that this offense cannot be committed again. The fourth ground of demurrer is overruled. The fifth ground of demurrer, that section 5506, under which the information is filed, has been declared unconstitutional by the supreme court in the case of U. S. v. Reese, 92 U. S. 214, is really the main ground of the demurrer and has been so treated in the argument. The courts of the United States are bound absolutely to follow the opinions of that tribunal in all cases, and we do so with cheerfulness because they commend themselves to the whole legal profession by their clearness of statement and accuracy of judgment. But we are not bound by the syllabus of the reporter, nor the opinions of others as to what the court decided in any case.
The Case of Reese was under the same section of the original act of May 30, 1870, as that under which this information is filed, with the exception that, after the argument of the Case of Reese, the congress of the United States re-enacted that section in the Revised Statutes, leaving out of it the words which, in the Case of Reese, had been considered to bring it under the fifteenth amendment, and made it a general law within the power of congress to enact, not by virtue of the fifteenth amendment, but by virtue of the power given to congress under the fourth section of the first article of the constitution. The Case of Reese did not arise at a congressional election. It was at a municipal election, in the state of Kentucky, and the judges of election -were indicted for refusing to receive the votes of a certain person, of African descent, because of his race and color. All claims to support the indictment not arising out of the fifteenth amendment were abandoned. It will be seen that the section 5506 makes no reference to race or color, nor does it confine the crime of obstructing and hindering votes to persons of that race. The fifteenth amendment does, and therefore when the counsel of the United States abandoned all support of their indictment, except that it had from the fifteenth amendment, it liad no support at all. The court so decided. The dissenting opinion of Mr. Justice Hunt goes upon the ground that the words “as aforesaid,” in the section as originally enacted, referred to the former sections of the act, and repeated in it the provisions of *228those sections. This very able opinion the court did not coincide m, but congress re-enacted the section, leaving those words out of it, and made it a general lhw.
The case we are to decide, therefore, is not the Reese Case, which; was a case of a municipal election, but we are to decide whether congress has the power under the constitution to prevent the crimes enumerated in section 5506 at a federal election. This the supreme court did not decide in the Reese Case, for the chief justice says, in delivering his opinion, that all support from any other constitutional power but the fifteenth amendment was abandoned at- bar in that case.
The fourth section of the first article of the constitution of the United States provides “the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state 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.” .
If congress can provide for the manner of election, it can certainly provide that it shall be an honest manner; that there shall be no repression of voters and an honest count of the ballots. There is little regarding an election that is not included in the terms, time, place, and manner of holding it. Since the Reese Case was argued congress has enacted, as we said before, this section 5506. That it comes within the power to regulate the time and place of election given by section 4, chapter 1, has been decided in this circuit ovei and over again, but the objection to it made at bar is that the section does- not mention congressional elections, which elections alone under the fourth section it has a right to regulate.
It seems to us that when congress has power to regulate federal elections alone, given it by the constitution, and it passes a law to regulate elections under that power, every fair construction would be that they exercised their legislative power within the grant of the constitution, and that the law made in pursuance of constitutional authority applied only to the elections named in it.
The court in the Reese Case decided that section 5506 was not appropriate legislation to enforce the fifteenth amendment. The section said nothing of race, color, and previous condition. It was at: a municipal election, and therefore was not within the power of congress under section 4, art. 1, of the constitution, which gives power to congress over federal elections. Had the same crime been com-*229mittecl at a fedora] election the court would, we think, have found the authority for section 5506 under the fourth section, art. 1, above recited.
The demurrer will be overruled.