[orally.) This is rather an informal proceeding, and yet it may be fair, and probably is, for us to state the views that we have of these questions. In reference to the construction of the act, my brother Treat and I differ. I shall not undertake to express his views, because he can do so much more forciby than I can, and more clearly. I will simply state the conclusion to which I have come from my examinations during the last week, for my attention was called to this matter only a week ago by your marshal. I do not think that the appointment of deputy marshals depends upon the fact that supervisors have been heretofore appointed. As I read that statute there are two separate matters provided for: the appointment of supervisors, which is done by the court, and the appointment of deputy *155marshals, which is done by the marshal, and which is done whenever an application is made by a certain number of citizens. Though the court should have appointed supervisors, it would not follow from that that the marshal had any authority to appoint deputymarshals. They do not follow as a matter of course. They are not part of the machinery which is set in motion by the appointment of supervisors. You may appoint all the supervisors asked. They may be qualified and discharge their duties. Unless the marshal is requested to appoint he lias nothing to do.
Section 2021 provides that upon the application of certain citizens the marshal shall act; not that whenever supervisors have been appointed the marshal shall appoint deputies to assist them, but that whenever a certain application is made he shall appoint deputies. Now, as to that matter, my brother Treat differs from me. He will give his «views directly. While I think the marshal had the right to appoint deputy marshals, whether it was a wise policy or not was for him to determine. Although a comparative stranger, as I am, and not qualified to express a very clear judgment, perhaps, as to whether it was wise or not, yet, from the past reputation of this city, I do not think any one need to anticipate trouble at the coming election. This city has maintained a good reputation in the past, and from my knowledge of the character of the people whom I have met I am led to think there will be no trouble in the future. But that is a matter for the marshal himself. He is better posted as to the situation here than I am.
I am free to say that I think these instructions which he has issued go too far. If supervisors were in existence, if they had been appointed to take charge of the election, their functions would be much vaster than those of deputy marshals, and when there are no supervisors the duties of the deputy marshals are very limited in their nature. I do not think that they can interfere with any judge or clerk of election. Indeed, I doubt whether, as this is a state election, — although a president and congressmen are to he voted for, — I doubt whether congress has the power to vest in supervisors or any one else the power to take the judges and clerks of election away from a precinct and intercept the election. But whether it has or not is immaterial here. The supervisors are not in existence, and I am very clear that the deputymarshals have no power to interfere with either a judge or a clerk of election in any way, shape, or manner. They have no power to demand admittance into the election-room. That power is committed simply to supervisors. They must stand outside, along with other people. As to their functions, what are they? To preserve order at the place of registration and at the polls. That is one thing. To take into custody, with or without process, any person who commits or attempts to commit any of the acts or offenses prohibited in the federal statutes.
Under that provision, I think that about all they can do is, if a *156man offers to vote and does vote illegally, they are not obliged to wait for process, but can arrest that man. That is not interfering with the election. It is simply arresting a man who is an illegal voter, or who is attempting to cast an illegal vote, who has violated the laws of the United States and is liable to prosecution. They may help to keep the peace. I do not mean by that if there happens to be a street fight they can become policemen to arrest the men thus engaged. That it is a duty that devolves upon the state authorities, to punish all assaults and batteries, and prevent street fights. But they may interfere to kfeep the peace if crowds should come to drive away voters from the polls. They may resist that, because that is necessary to preserve the elective franchise to those who are entitled to it; but when you go beyond that, it seems to me, they have nothing in the world to do. As to determining who is entitled or who has the right to vote, that is for the judges of election. Whether they decide rightfully or wrongfully is a matter with which the deputy marshals have nothing to do. They are not vested with judicial functions to arrest or to interfere with the judge or the clerk in the discharge of their duties. They can stay outside the polls. While they may arrest a man who casts an illegal vote, or attempts to cast an illegal vote, and take him before a United States commissioner, or, if there is an attempt to drive people away from the polls and prevent them from voting, they may resist all such efforts and thereby keep the peace; yet, whenever they go beyond that, they transcend their lawful authority. So, I conceive, these" instructions are liable to misconstruction. A marshal might' think, under these instructions, that if a judge should refuse to receive a vote which he thought ought to be received, he could arrest the judge and take him away. That cannot be done. The judges are amenable to the state and federal law, and if they act wrongfully may be punished; but you cannot stop an election. You cannot take them away from the polls. You cannot arrest them during the day, or until they have finished the count. They have a right to stay at the polls, and the deputy marshals- have nothing whatever to do with them. So you can see the duties of these deputy marshals are limited in their nature, and, if the city maintains" its ordinary reputation for peacefulness, it is probable they will have as little to do with the election as I shall.
Mr. Dyer. There is one matter that I would like to call the attention of the court to.,. As I have said, voters are registered in the city. The. question is, who is to decide whether, when a man offers to vote, he is an .illegal voter or not ?
The Court, (Judge Brewer.) Unquestionably, the judges of election decide that entirely. The,marshals have nothing to say as to whether that vote shall go in or not. If a deputy marshal thinks a vote is illegal he has no power to interfere. He can arrest the man after he has voted, and take him before a United States commissioner and have him examined; but he cannot arrest the man when in the act *157of voting, or say that he shall not vote. This Is a question for the judges.