I fully concur in the opinion just delivered by Judge Bond. I will add something on the constitutional question that has been argued so elaborately at bar. The information in this case is founded upon section 5506 of the Revised Statutes of the United States. I will remark that that section is not the same law as section 4 of the enforcement act of May 31, 1870. It is nearly the same in terms, but it contains no words connecting it with other sections of any act, as section 4 did. It stands upon its own terms and language. It was not enacted in the same bill as section 4 of the act of 1870, or at the same time, or by the same congress. It was enacted in 1874, and took effect as a law on the first of December, 1874, two months after the case of U. S. v. Reese, 92 U. S. 214, was argued before the supreme court of the United States, and more than two years after the indictment was found which was passed upon in that case. The supreme court did not in the Case of Reese, and has not in any subsequent case, passed upon section 5506 of the Revised Statutes; and, whatever it may have ruled in any of its decisions upon any other statute, such as section 4 of the enforcement act of 1870, non constat that it has thereby ruled upon section 5506, upon which the information before us is founded.
We are dealing here with an offense charged to have been committed, in a federal election, in violation.of this section 5506; and the defense ask us to base our ruling, in this case of a federal election, upon the ruling of the supreme court in a case arising in a town election under the act of 1870, in which that court not only carefully confined itself to the case before it, but protested by iteration that it was not considering any law in its relation to federal elections. Its opinion in Reese el al. was expressly confined to section 4 of the act of 1870 in its relation to state elections, and the court held that section not to be within the purview of the fifteenth amendment of the constitution. But, even as to that section, the court did not," and took especial pains not to, decide that the section was beyond the purview of the first article of the constitution. The supreme court has never decided that section 4 of the act of 1870 was unauthorized by article 1. Much less has it ever decided that section 5506 of the Revised Statutes was unauthorized by article 1. This article and the fifteenth *230amendment are as follows; and it will be seen that the former refers only to federal elections, while the latter refers to all elections, federal, state, and municipal, but limits legislation under it to the prevention of discrimination between voters on account of race, color, and previous condition. The result is that congress has general powers of legislation concerning federal elections, but can legislate concerning state and municipal elections solely for the purpose of 'preventing discriminations on account of race:
Article 1, § 4. “ 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 electing senators.”
Fifteenth Amendment. “ The right of citizens of the United States to vote shall not he denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.
“ The congress shall have power to enforce this article by appropriate legislation.”
It was as to whether section 4 of the act of 1870 was authorized by the fifteenth amendment, and not as to whether it was authorized by article 1, that the supreme court considered the Case of Reese. The indictment in that case was for an offense committed in an election of town officers in Kentucky. The indictment was founded chiefly upon section 4 of the enforcement act of May, 1870, which section provided that if any person shall, by unlawful means, hinder, etc., or conspire with others to hinder, delay, prevent, or obstruct any citizen of the United States from ..doing any act required to be done to qualify him to vote, he shall be punished as defined by the section. The section did not embrace, in words, the limitation that the hindering should be on account of race or color, and it made general reference to voting, and not particular reference to voting at elections for congress or for state officers.
Thus, the indictment before the court being for an offense committed at a state election, the question for decision was whether congress had, in this section 4, interfered in state elections beyond the authority given by the fifteenth amendment. Holding that congress could not interfere in state elections, except to prevent discrim-inations on account of race, and the case before it having arisen in a state election, the proposition which the court discussed was whether congress,, in section'4, had confined itself within this limitation, and if it did not, but used general terms, what was the consequence as to the validity of this section of the enforcement act in respect to state elections. Before entering upon that discussion, the *231court took pains to premise, at page 218, that it would not consider “the effect of article 1 of the constitution in respect to elections for senators and representatives in congress.”
The power of congress over federal elections was as broad as the language of article 1 imports. Congress could legislate generally in respect to federal elections. The court was, accordingly, careful to premise that it would not consider the enforcement act of May 31, 1870, with reference to the first article and federal elections, but would consider it only with reference to the fifteenth amendment and state elections.
The court having, after this protest, gone on at some length in considering section 4 of that act with this particular reference, then took pains, when about to use the language so much relied upon by counsel for the defense, on page 221, to limit what it intended saying to “a penal statute enacted by congress with its limited powers; ” necessarily meaning limited powers over state elections derived from the fifteenth amendment, and not meaning to speak of the general powers of congress over federal elections derived from article 1. Having, then, a second time attempted to guard its deliverances against misconstruction, the court say:
“We are called upon to decide whether a penal statute enacted by congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which congress may rightfully prohibit and punish. * * * It would certainly bo dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who could be set at large. * * * To limit this statute in the manner now asked for would ho to make a new law, not to enforce an ohl one. This is no part of our duty. * * * We are not able to reject a part which is constitutional and retain the remainder; because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not.”
Nothing here said by the court applies to section 4 of the act of 1870, in its relation to article 1. The court did not intend to intimate that a law may not be constitutional in respect to one provision of the organic law, though not authorized by other provisions. The substance of what the court said in its argument was that where congress uses language in a statute, which, in order to be constitutional in regard to a particular indictment or class of offenses, requires the interpolation by the court of words of limitation necessary to make it constitutional, it is as to that indictment, and all in-*232dic'tments like it, null and void. The indictment before the court was for an offense committed at a state election. The court was considering the validity of an act of congress with reference to a state election. That was the precise and only question in the mind of the court; it was the precise and only question before the court for decision; it was the question to which the court took especial pains to limit its consideration; and, according to all received canons for construing the decisions of courts, we are bound to conclude, notwithstanding any language employed arguendo, that the court decided no more than that section 4 of the act of May 31, 1870, was not valid to support an indictment in a United States court for acts done in a state election.
The language so much relied upon by counsel for defense was used arguendo, and no logic is more fallacious in juridical discussions, than that of adopting, as the solemn judgments of courts, propositions employed by judges in the progress of arguments by which thej' advance to the conclusions which they pronounce as their solemn judgments.
Finally, the court, in the Case of Reese, took 'pains to brush away all inferences which might be drawn from the reasoning employed in its opinion, by distinctly and carefully defining what its judgment was.’ It said’: “We must, therefore, decide that congress has not as yet provided by appropriate legislation for the punishment of the offense charged in this indictment.” That was all. The election was a state election. The offense indicted was comruitted at a state election, and the court held that that indictment could not stand.
Section 4 of the act of 1870 is now repealed. The supreme court never said that it was invalid under article 1 of the constitution, and iti is now no longer on the statute-book. It is substituted by section 5506, as it stands in the Revised Statutes. This latter section applies only to offenses committed in relation to federal elections. No one pretends, no one has ever pretended, that it relates to state or municipal elections; for it has never before now been under adjudication. It could not be made, to refer to state or municipal elections except by authority of the fifteenth amendment, and it could not be brought within that, authority except by interpolating in the section the words, “on account of race, color, or previous condition of servitude. ” This interpolation the supreme court declares that we have no power to make; and so section 5506 is valid only in respect to federal elections^ It is valid as to these latter, not because it contains express mention of these elections, but because it is authorized by *233article 1 of the constitution; because congress roust be presumed to have passed a constitutional law, unless it otherwise palpably appears; and because, therefore, it is a necessary implication that the object of the section is the constitutional one of protecting voters in federal elections.
See Brown v. Munford, ante, 175.