dissenting from the opinion, but concurring with a modification in the judgment of reversal:
The conviction and sentence under review were based oh an indictment charging a conspiracy to commit vio*259lations of the act of Congress known as the Corrupt Practices Act, as made applicable to state laws dealing with state nominating primaries for, and the ensuing state elections of, United States Senators and Representatives in Congress. The case is here by direct writ of error, because of the contention that primaries of that character are not subject to the regulating power of Congress, and as an incident there is involved the contention that, even if the act of Congress was constitutional, it had been prejudicially misconstrued. Sustaining the first of these contentions and therefore deciding the act to be unconstitutional, the court reverses and finally disposes of the case. Although I am unable to concur in the conclusion as to the want of power of Congress and in the judgment of reversal as rendered, I am nevertheless of opinion that there should be a judgment of reversal without prejudice to a new trial, because of the grave misapprehension and grievous misapplication of the statute upon which the conviction and sentence below were based. I state the reasons which control me as to both these subjects.
By an amendment to the Corrupt Practices Act of 1910, Congress, in 1911, dealt with state primaries for the nomination of Senators and Representatives in Congress and with the election after nomination of such candidates (Act of June 25,1910, c. 392,36 Stat. 822; Act of August 19, 1911, c. 33, § 8, 37 Stat. 25, 28). At that time there existed in the State of Michigan a law regulating state nominating primaries which included candidates for state offices as well as for the Senate and House of Representatives of the United States. These primaries were held in the month of August in each year preceding the November general election. By that law the result of the primaries determined the right to have a person’s name placed as a candidate on the ballot at the general election, and,, in the case of United States Senators, *260provision was made for the return of the result of the primary to the state legislature before the time when the duty of that body to elect a Senator would arise.
The Seventeenth Amendment to the Constitution, providing for the election of United States Senators by popular vote, was promulgated in May, 1913. In June, 1914, Congress by legislation carrying out the Amendment provided that thereafter Senators should be elected by popular vote, and, where state laws to that effect existed, made them applicable. But, evidently to give time for the States to enact the necessary legislation substituting for election by the legislature the method of election established by the Amendment, it was provided that, where no law for primaries by popular vote as to Senators existed, that subject should be controlled by the state law regulating primaries for the nomination of Representative at Large, if provided for, and if not, by the provisions controlling as to primaries for general state officers, the operation of these latter provisions being expressly limited to a term of three years (Act of June 4, 1914, c. 103, 38 Stat. 384). Within the time thus fixed and before the election which was held in this case, the State of Michigan, in order to conform its laws to the Amendment, modified them so as to provide for the election of Senators by popular vote, and made the general nominating state primary law applicable to that condition (Act No. 156, Mich. Acts of 1915), and, by virtue of the Amendment, the act of Congress, and the state law just stated, the primary with which we are concerned in this case was held in August, 1918.
The plaintiff in error, Newberry, was a candidate for the nomination of the Republican party as United States Senator, and, having been nominated at such primary, became a candidate at the ensuing November election, and was returned as elected. Subsequently the indictment under which the conviction below was had was *261presented, charging him and others, in six counts, with a conspiracy to commit violations of provisions of the Corrupt Practices Act relating to state nominating primaries as well as to the resulting general election. It is not at this moment necessary to describe the nature of these accusations further, since it is not questioned that the indictment charged a conspiracy to commit crimes within the intendment of the Corrupt Practices Act and hence involved the question of the constitutional power of Congress which the court now adversely decides and the basis for which I now come to consider.
As the nominating primary was held after the adoption of the Seventeenth Amendment, the power must have been sanctioned by that Amendment, but for the purpose "of clarity I consider the question of the power, first from the provisions of the Constitution as they existed before the Amendment, and second in contemplátion of the light thrown upon the subject by the force of the Amendment.
The provisions of §§ 2 and 3 of Article I of the Constitution, fixing the composition of the House of Representatives and of the Senate and providing for the election of Representatives by vote of the people of the several States and of Senators by the state legislatures, were undoubtedly reservoirs of vital federal power constituting the generative sources of the provisions of § 4, cl. 1, of the same Article, creating the means for vivifying the bodies previously ordained (Senate and House), that is, providing: “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.”
. As without this grant no state power on the subject was possessed, it follows that the state power to create primaries as to United States Senators depended upon *262the grant for its existence. It also follows that, as the conferring of the power on the States and the reservation of the authority in Congress to regulate were absolutely coterminous, except as to the place of choosing Senators which is riot here relevant* it results that nothing is possible of being done under the former which is not subjected to the limitation imposed by the latter. And this is illustrated by the legislation of Congress and the decisions of this court upholding the same. See, “Act to regulate the Times and Manner of holding Elections for Senators in Congress,” approved July 25, 1866, 14 Stat. 243; Act of May 31,1870,16 Stat. 144; Act of July 14, 1870, 16 Stat. 254; Act of June 10, 1872, 17 Stat. 347; Ex parte Siebold, 100 U. S. 371; Ex parte Clarke, 100 U. S. 399; Ex parte Yarbrough, 110 U. S. 651; United States v. Mosley, 238 U. S. 383.
But it is said that, as the power which is challenged here is the right of a State to provide for and regulate a state primary for nominating United States Senators free from the control of Congress, and not the election of such Senators, therefore, as the nominating primary is one thing and the election another and different thing, the power of the State as to the primary is not governed by the right of Congress to regulate the times and manner of electing Senators. But the proposition is a suicidal one, since it at one and the same time retains in the State the only power it could possibly have as delegated by the clause in question and refuses to give effect to the regulating control which the clause confers on Congress as to that very power. And mark, this is emphasized by the consideration that there is no denial here that the States possess the power over the federal subject resulting from the provision of the Constitution, but a holding that Congress may not exert as to such power to regulate authority which the terms of the identical clause of the Constitution confer upon it.
*263But, putting these contradictions aside, let me test the contention from other and distinct points of view: (1) In last analysis the contention must rest upon the proposition that there is such absolute want of relation between the power of government to regulate the right of the citizen to seek a nomination for a public office and its authority to regulate the election after nomination, that a paramount government authority having the right to regulate the latter is without any power as to the former. The influence of who is nominated for elective office upon the result of the election to fill that office is so known of all men that the proposition, may be left to destroy itself by its own statement.
(2) Moreover, the proposition, impliedly at least, excludes from view the fact that the powers conferred upon Congress by the Constitution carry with them the right “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers ” (Art. I, § 8, cl. 18), and in doing so virtually disregards the previous legislative history and the decisions of this court sanctioning the same, to which we have referred, since that practice and those decisions unmistakably recognize that the power under the clause in question extends to all the prerequisite and appropriate incidents necessary to the discharge of the authority given.
(3) From a somewhat different point of view the same result is even more imperatively required. Thus, as has been séen, the election was had under the Seventeenth Amendment to the Constitution, providing for the election of Senators by popular vote instead of by the state legislatures. In the resolution providing for the passage of that Amendment through Congress, as first reported by Senator Borah on behalf of the judiciary committee, after making the changes necessary to substitute a provision causing Senators to be elected by popular vote instead of.by the legislatures of the several States, the *264provision of § 4 of Article I reserving to Congress the power “to make or alter,” except as to places, the regulations adopted by the several States as to the “times, places and manner ” of electing Senators, was omitted; thus leaving all power on the subject in the States, free from any regulating control of Congress. (S. Rep. 961, 61st Cong., 3d sess.)
There was division, however, concerning the matter, ■manifested by a proposition to amend the resolution, as reported, so as to retain the omitted provision, thus preserving the power of Congress as originally conferred (Cong. Rec., vol.. 46, Part 1, p. 847). The legislative situation thus created was aptly stated by Senator Borah, referring to the report of the committee and to the proposition (submitted by Senator Sutherland of Utah) to amend that report and the resolution accompanying it. He said:
“In reference to the amendment which has been suggested by the Senator from Utah [Mr.' Sutherland], it was considered at some length before the committee. The proposition is a simple one. As the joint resolution now stands, the times, places, and manner of electing United States Senators is left entirely to the State. The State may determine the rules and regulations, and the times, places, and manner of holding elections for United States Senators.
“If the amendment as offered by the Senator from Utah should prevail, then the matter would be left as it now is, subject to the supervision and control of Congress.” 1
After much consideration, the amendment offered by Senator Sutherland was carried.2 But the reported resolution, as thus amended, did not pass during that Congress. In the first session of the following Congress, however, the 62d Congress, a resolution identical in *265terms with the one which had been reported in the Senate at the previous session was introduced in the House and passed the same.1 In the Senate the House resolution was favorably reported from the committee by Senator Borah,2 accompanied, however, by a minority report by Senator Sutherland,3 offering as a substitute a resolution preserving the complete power of Congress, as had been provided for in the Senate in the previous . Congress, and an amendment to the same effect offered by Senator Bristow was subsequently adopted,4 and as thus amended the resolution was ultimately submitted for ratification, and, as we have seen, was ratified and promulgated. (38 Stat. 2049.)
When the plain purpose of the Amendment is thus seen, and it is borne in mind that, at the time it was pending, the amendment to the Corrupt Practices Act dealing with state primaries for nominating Unitéd States Senators which is now before us was in the process of consideration in Congress, and when .it is further remembered that, after the passage of the Amendment, Congress' enacted legislation, so that the Amendment might be applied to state senatorial primaries, there would seem to be an end to all doubt as to the power of Congress.
It is not disputable that originally instructions to representatives in state legislatures by party conventions or by other unofficial bodies, as to the persons to be elected as United States Senators, were resorted to as a means of indirectly controlling that subject and thus, in a sense, restricting the constitutional provision as to the mode of electing Senators. The potentiality of instructions of that character to accomplish that result is *266amply shown by the development of our constitutional institutions as regards the electoral college, where it has come to pass that the unofficial nomination of party has rendered the discharge of its duties by the electoral college a mere matter of form. That in some measure at least a tendency, to that result came about under the constitutional direction that Senators should be elected by the people [legislatures] would appear not doubtful. The situation on this subject is illustrated by a statement in a treatise by Haynes on “Election of Senators,” 1906, p. 132, as follows:
“Notwithstanding our rigid Constitution’s decree that the senators frbm the several States shall be elected by ‘the legislatures thereof,’ this act of the legislatures may be deprived of nearly all of its vitality. The election of President offers an illustration of the filching of actual power away from the electors in whom it is vested by law. When James Russell Lowell, a Republican elector for Massachusetts in 1876, was urged to exercise his independence and vote for Tilden, he declined, saying that ‘whatever the first intent of the Constitution was, usage had made the presidential electors strictly the instruments of the party which chose them.’ The Constitution remains unchanged, yet presidential electors, recognize that they have been stripped of all discretion. It appears that under certain conditions the election of Senators by state legislatures has been and can be made an equally perfunctory affair.”
The growth of the tendency to make the indirect result thus stated more effective evidently was the genesis of the statutory primary to nominate Senators. See statement concerning an amendment to the constitution of Nebraska on that subject as early as 1875, in the same treatise, p. 141.
The large number of States which at this day have by law established senatorial primaries shows the develop*267ment of the movement which originated so long ago under the circumstances just stated. They serve to indicate the tenacity of the conviction that the relation of the primary to the election is so intimate that the influence of the former is largely determinative of the latter. I have appended in the margin a statement from a publication on the subject,1 showing how well founded this conviction is and how it has come to pass that in some cases at least the result of the primary has been in substance to render the subsequent election merely perfunctory. Under these conditions I find it impossible to say that the admitted power of Congress to control and regulate the election of Senators does not embrace, as *268appropriate to that power, the authority to regulate the primary held under state authority.
(4) It is true that the plenary reservation in Congress of the power to control the States in the exercise of the authority to deal with the times, places, and manner of electing Senators and Representatives, as originally expressed in the Constitution, caused much perturbation in the conventions of the several States which were called upon to consider ratification, resulting from the fear that such power to regulate might be extended to and embrace the regulation of the election of the members of the state legislatures who were to exercise the power to elect Senators. It is further true that articles in the Federalist and other papers published at. the time served to dispel the fear by directing attention to the fact that the regulating power of Congress only extended to the times and manner of electing Senators and did not include an authority, even by implication, to deal with the election of the state legislatures, which was a power reserved to the States. But this only served to emphasize the distinction between the state and federal power and affords no ground at this late day for saying that the reserved state power has absorbed and renders impossible of exercise the authority of Congress to regulate the federal power concerning the election of United States Senators, submitted, to the extent provided, to the authority of the States upon the express condition that such authority should be subordinate to and controlled by congressional regulation.
Can any other conclusion be upheld except' upon the theory that the phantoms of attenuated and unfounded doubts concerning the meaning of the Constitution, which have long perished, may now be revived for the purpose of depriving Congress of the right to exert a power essential to its existence, and this in the face of the fact that the only basis for the doubts which arose in *269the beginning (the election of Senators by the state legislatures) has been completely removed by the Seventeenth Amendment?
I do not stop to refer to the state cases concerning the distinction between state legislative power to deal with elections and its authority to control primaries, as I cannot discover the slightest ground upon which they could be apposite, since here an inherent federal right and the provision of the Constitution in dealing with it are the subjects for consideration.
Moreover, in passing, I observe that, as this case concerns a state primary law imposing obligatory results, and the act of Congress dealing with the same, it is obvious that the effect of individual action is wholly beside the issue.
The consequence to result from a denial to Congress of the right to regulate is so aptly illustrated by the case in hand that in leaving the question I refer to it. Thus, it is stated and not denied that, in the state primary in question, one of the candidates, as permitted by the state law, propounded" himself at the primary election as the candidate for the nomination for. Senator of both thé Republican and the Democratic parties. If the candidacy had been successful as to both, the subsequent election would have been reduced to the merest form.
In view', then, of the plain text of the Constitution, of the power exerted under it from the beginning, of the action of Congress in its legislation, and of the amendment to the Constitution, as "well as of the legislative action of substantially the larger portion of the States, I can see no reason for now denying the power of Congress to regulate a subject which from its very nature inheres in and is concerned with the election of Senators of the United States, as provided by the Constitution.
The indictment remains to be considered. It contained six counts. For the moment, it suffices to say that the *270first four all dealt with a common subject, that is, a conspiracy between Newberry and others named to contribute and expend, for the purposes of the state primary and general election, more money than allowed by the Corrupt Practices Act. The fifth count charged a conspiracy on the part of the defendants to commit a great number, to wit, one thousand, offenses against the United States, each to consist of giving money and things of value to a person to vote for Newberry at said election, and a great number, to wit, one thousand, other offenses against the United States, each to consist of giving money and things of value to a person to withhold his vote from Henry Ford at said general election. The sixth count charged a conspiracy to defraud by use of the mails.
At the trial, before the submission of the case to the jury, the court put the fifth count entirely out of the case by instructing the jury to disregard it, as there was no evidence whatever to sustain it. The bribery charge, therefore, disappeared. The second, third and fourth counts, dealing, as I have said, with one general subject, were found by the court to be all in substance contained in the first count. They were, therefore, by direction of the court, either eliminated or consolidated with the first count. Thus, as contained in that count, the matters charged in the first four counts were submitted to the jury, as was also the sixth count; but the latter we need not further consider, as upon it there was a verdict of' not guilty.
The case therefore reduces itself solely to the matters covered in the first count. That count charged a conspiracy on the part of the defendants, 135 in number, including Newberry, to commit an offense against the United States, that is, the offense on the part of New-berry of violating the Corrupt Practices Act by giving, contributing, expending and using and by causing to be given, contributed, expended and used, in procuring *271his nomination and election as such Senator at said primary and general elections, a sum in excess of the amount which he might lawfully give, contribute, expend or use, and cause to be given, contributed, expended or used for such purpose under the laws of Michigan, and in excess of $10,000, to wit, the sum of $100,000; and on the part of the other defendants of aiding, counseling, inducing, and procuring Newberry as such candidate to give, contribute, expend and use, or cause to be given, contributed, expended or used, said large and excessive sum, in order to procure his nomination and election.
Conspiracy to contribute and expend in excess of the amount permitted by the statute was, then, the sole issue, wholly disassociated from and disconnected with any corrupt or wrongful, use of the amount charged to have been illegally contributed and expended. As, putting out of view the constitutional question already considered, the errors assigned are based solely upon asserted misconstructions of the statute by the court in its charge to the jury, we bring the statute at once into view. It provides, so far as relevant to the case before us:
“No candidate for . . . Senator of the United States shall give, contribute, expend, use, or promise, or cause to be given, contributed, expended, used, or promised, in procuring his nomination and election, any sum, in the aggregate, in excess of the amount which he may lawfully give, contribute, expend, or promise under the laws of the State in which he resides: Provided, That . . . no candidate for Senator of the United States shall give, contribute, expend, use, or promise any sum, in the aggregate, exceeding ten thousand dollars in any campaign for his nomination and election: . ...”
Cpming to deal with the statute, the court, after pointing out in the most explicit terms that the limitation on the amount which might be lawfully contributed and expended or caused to be contributed and expended in *272the case at hand was $3,750 (that being the limitation imposed by the laws of Michigan adopted by the'statute of the United States just quoted), then proceeded, over objections duly reserved, to instruct as to the significance of the statute, involved in the prohibitions, (a) against giving, contributing, expending, or using, and (b) against causing to be given, contributed, expended, or used, money in excess of that permitted by the statute, saying on these subjects as follows:
(a) “It is important, therefore, that you should understand the meaning of the language employed in this' Corrupt Practices Act, .and that you should understand and' comprehend the effect and scope of the actT and the meaning of the language there employed, and the effect and scope and extent of the prohibition against the expenditure and use of money therein contained.
“The words 'Give, contribute, expend or use ’ as employed in this statute have their usual and ordinary significance, and mean furnish, pay out, disburse: employ, or make use of. The term ‘ To cause to be expended, or used ’ as it is employed in this statute, means to occasion, to effect, to bring about, to produce the expenditure and use of the money.
“The prohibition oontained in this statute against the expenditure and use of money by the candidate is not limited or confined to the expenditure and use of his own money. The prohibition is directed against the use and expenditure of excessive sums of money by the candidate from whatever source or from whomsoever those moneys may be derived.”
(b) “The phrase which constitutes the prohibition against the candidate 'Causing to be given, contributed, expended or used excessive sums of money,’ is not limited and not confined to expenditures and use of money made directly and personally by himself. . This prohibition extends to the expenditure and use' of excessive sums of *273money in which the candidate actively participates, or assists, or advises, or directs, or' .induces, or procures. The prohibition extends not only to the expenditure and. use of excessive sums of money by the candidate directly and personally, but to such use and expenditure through his agency, or procurement or assistance.
“To constitute a violation of this statute knowledge of The expenditure and use of excessive sums of-money on the part of the candidate is not sufficient; neither is it sufficient to constitute a violation of this statute that the candidate merely acquiesces in such expenditures and use. But it is sufficient to constitute a violation of this statute if the candidate actively participates in doing the things which occasion such expenditures and use of money and so actively participates with knowledge that the money is being expended and used.”
Having thus fixed the meaning of the prohibitions of the statute, the. court came to apply them as thus defined to the particular case before it, saying;
(c) “To apply these, rules to this case: If you are satisfied from the evidence that the defendant Truman H. Newberry at or about the time that he became a candidate for United States Senator was informed and knew that his campaign for the nomination and election would require the expenditure and use of more money than is permitted by law and with such knowledge became a candidate, and thereafter by advice, by conduct, by his acts, by his direction, by his counsel, or by his procurement he actively participated and took part in the expenditure and use of an excessive sum of money, of an unlawful sum of money, you will be warranted in finding that he did violate this statute known as the Corrupt Practices Act.”
Whether the instructions marked (a) and (b), if unexplained, were, in view of the ambiguity lurking in many of the expressions used therein, prejudicially *274erroneous, I do not think necessary to consider, since I see no escape from the conclusion that the instruction marked (c), which made application of the view of the statute stated in the previous passages (a) and (b), was in clear conflict with the text of the statute and was necessarily of a seriously prejudicial nature, since in substance it announced the doctrine that, under the statute, although a candidate for the office of Senator might not have contributed a cent to the campaign or caused others to do so, he nevertheless was guilty if he became a candidate or continued- as such after acquiring knowledge that more than $3,750 had been contributed and was being expended in the campaign. The error in the instruction plainly resulted from a failure to distinguish between the subject with which the statute dealt— contributions and expenditures made or caused to be made by the candidate — and caihpaign contributions and expenditures not so made or caused to be made, and therefore not within the statute.
There can be no doubt, when the limitations as to expenditure which the statute imposed are considered in the light of its context and its genesis, that its prohibitions on that subject were intended, not to restrict the right of the citizen to contribute to a campaign, but to prohibit the candidate from contributing and expending or causing to be contributed and expended, to secure his nomination and election, &. larger amount than the sum limited as provided in the statute. To treat the candidacy, as did-the charge of the court, as being necessarily the cause, without, more,' of the contribution of the citizen to the campaign, was therefore to confound things whieh were wholly different, to the frustration of the very object and purpose of the statute. To illustrate: Under the instruction given, in every case where to the knowledge of the candidate a sum in excess of the amount limited by the statute was contributed by citizens to the *275campaign, the candidate, if he failed to withdraw, would be subject to criminal prosecution and punishment. So also, contributions by citizens. to the expenses of the campaign, if only knowledge could be brought home to them that the aggregate of such contributions would exceed the limit of the statute, would bring them, as illustrated by this case, within the conspiracy statute and accordingly subject to prosecution. Under this view, the greater the public service, and the higher the character, of the candidate, giving rise to a correspondingly complete and self-sacrificing support by the electorate to his candidacy, the more inevitably would criminality and infamous punishment result both to the candidate and to the citizen who contributed.
As it follows from the considerations which I have stated that the judgment below was, in my opinion, clearly wrong and therefore should be reversed, it is not necessary that I should go further and point out how cogently under the case presented the illustrations just' previously made apply to it. For the reasons stated, although I dissent from the ruling of the court as to the unconstitutionality of the act of Congress, I nevertheless think its judgment of reversal should.be adopted, qualified, however, so as to reserve the right to a new trial.
Cong. Rec., vol. 46, Part 1, p. 851.
Cong. Rec., vol. 46, Part 4, p. 3307.
H., Rep., No. 2, 62d Cong., 1st sess.
Cong. Rec., vol. 47, Part 1, p. 787.
S. Rep., No. 35, 62d Cong., 1st sess.
Cong. Rec., vol. 47, Part 2, p. 1205.
“In many western and southern states the direct primary method has been applied to the choice of United States senators as well as to state officers.1 In the southern states, victory in such a primary, on the Democratic side, is practically the equivalent of an election, as there is but one effective party in that section of the 'country. The direct nomination of senators is generally accomplished under voluntary party regulations, as in Alabama, Arkansas, South Carolina, and Virginia. In other cases, however, this method of choice has been placed under legal protection, as in Florida (1901), Mississippi (1902), Louisiana (1906), and Texas (1907). Some northern states have also adopted this method of direct nomination. Among northern states, Wisconsin led the way in 1903, followed by Oregon in 1904, Montana in 1905, Iowa, Washington, Nebraska, North Dakota in 1907, Illinois, Kansas, New Jersey, Ohio, and Oklahoma in 1908. ... In some of the states, as in Oregon, candidates for the legislature are afforded an opportunity to pledge themselves to vote for the party candidate receiving the highest vote in the regular election. In other cases a pledge is made to vote for the candidate receiving the highest number of votes in the primary.2 ” (Merriam, Primary Elections, 1908, pp. 83-85.)
On this general topic, see the excellent treatise on The Election of Senators, by George H. Haynes (1906), especially c. XI.
Oregon, 1904, § 13. In Washington the candidate may pledge himself to vote for the party choice for United States senator (1907, § 31). . This latter is the general rule.