In re Davenport

We are prepared to dispose of this matter now. The two j udges concur entirely in their views upon the subject, although the decision must be considered as being made by the circuit judge sitting alone, with the advice and concurrence of Judge Choate. We do not think a case is made out for removing Mr. Davenport under this petition. The instructions, so far as the substance and materiality of them are concerned—everything that precedes the second further direction—appear to have been the same that were issued previously and passed upon and approved, so far as they went, although ex parte, by the district attorney and Judge Woodbüéf. Under such circumstances this court would not be authorized to say that the reissuing of these instructions was evidence of want of fidelity or of want of capacity on the part of the chief supervisor. Certainly these circumstances repel all imputation of any bad faith, while at the same time they may not be conclusive upon this court, sitting judicially, as to the propriety of the instructions.

Now as to the instructions- themselves. The question of their propriety has been argued to us and we have been asked to express an opinion in regard to them. *476The decision not to remove Mr. Davenport disposes, perhaps, of the prayer of the petition, but we deem it-proper, in view of the questions involved, and of the arguments of the counsel on both sides, to give our views on the instructions, as the views of the court, without making any order whatever in the premises except to deny the prayer of the petition for the removal of Mr. Davenport.

We regard the inquiries which- the -instructions direct shall be made of the person presenting an 1868 certificate of naturalization as proper ones to be made. We do not understand that there is anything in these instructions which is intended to interfere in any manner with the proper perogatives and duties of the inspectors. The inspectors are to decide whether the applicant is to be registered or not. If they refuse to register him the remedy is by mandamus from the supreme court of the State, and if they improperly put his name upon the registry, undoubtedly there is a remedy. We do not see anything in these instructions which in any manner militate against this proposition.

If these inquiries or any other inquiries are asked of the applicant, and he refuses to answer one way or the other, the consequence will be that his name will not be registered. If he says that he will not answer the inquiries because the answer may tend to criminate him, that will make no difference. He does not answer, no matter what the reason is, and if he say she will not answer, he assumes the consequences.

These instructions were made with reference to the registration and election laws of the State of Hew York, and we consider the inquiries in question to be inquiries running pari passu with the questions which are authorized and required by those laws to be put to a person offering to vote as a naturalized person. The inspectors are not only required to put certain questions but they are authorized to put such other questions as affect the *477right of the person to vote. Such is also the purport of the oath. The instructions direct the supervisor to challenge the right to register of a person who persists in registering on an 1868 certificate. We think sufficient is shown to warrant an inquiry into these 1868 papers. We cannot go behind the affidavit of Mr. Davenport. We have not the facts before us upon which he acted, and must take his affidavit upon that subject as showing sufficient grounds for an inquiry in regard to persons offering to register on 1868 papers. The right of the supervisor to challenge any person offering to register is expressly given by the statute of the United States, and that statute requires that the supervisor shall be a voter. The statute of the State gives the right of challenge to any voter. The instructions then direct the supervisor to require the statutory oath to be put to the applicant. That is no more than asking the inspector to put the statutory oath. The inspector is the proper person- to put the statutory oath, and he is under the State law required to do so. When the oath is put, the applicant is to be examined. How is he to be examined? The State law provides that the inspector shall put the questions. These instructions say, “Upon such challenge, after the party is sworn, you will make of him the following inquiries.” Farther-on they say, “ Whenever upon your examination of any person applying for registration, it shall appear that such person, &c.” It does follow at all from this language, that the questions are to be put directly by the supervisor to the applicant. They are to be put in the usual lawful way through the inspector. That is the meaning, although the language might be made more accurate. The inspector, being by law the person who is to administer the oath and put the questions, may not put the questions proposed by the instructions.

He may have his attention called by the supervisor *478to the advisability of putting the questions and he may refuse to put them, but nevertheless they are proper questions for the supervisor to ask to have put. The theory of the law for registration in the State of New York is that the right of a naturalized person to vote, even though he presents a certificate of naturalization, is to be inquired into, and there is nothing in the decision that touches this question or conflicts or interferes with it. Then comes the instruction : “ That whenever upon your examination of any person applying for registration it shall appear that such person has in his possession a certificate of naturaliza-, tion improperly issued or granted, or improperly obtained, you will see that such person is not allowed to register,” &c. Well, that is not an instruction of prohibition.

If the inspector is about to put down the name of the applicant as a registered voter, this instruction does not mean that the supervisor is to seize the pen and take it from the inspector’s hands, and thus prevent the registering. It merely means that the supervisor is to use proper means to see that the inspector does not register the applicant, but of course the inspector may still register him. The form of expression is perhaps not as accurate as might be, but at the same time it is. a form not improper to have been used, and we do not understand that it conflicts in any manner with the freedom of action of the inspector.

The instruction proceeds: “And will take from him his certificate and attach thereto a statement of the facts, as given by the applicant, together with his name and address, and return the same with your book to the assembly district aid, to be forwarded to the chief supervisor.” That portion of this direction we regard as unwarranted and not to be supported. We regard it as tending to a breach of the peace, and *479as totally unauthorized under the circumstances in which it is directed.

If a person is arrested under section 5022 of the Revised Statutes of the United States by a deputy marshal or a supervisor for illegally attempting to register, and in connection with that arrest the incriminating and inculpating certificate is taken, together with the person, before a magistrate,' that may be a proper proceeding, but it will be a very different proceeding. We do not think that the' words “ will take from him his certificate” are capable of the modified construction sought to be given to them by one of the counsel—that the supervisor is merely to receive the certificate if the person gives it up. It is capable of a different construction. Moreover, in the petition in this case, it is stated that in several cases the certificate has been taken from the applicant, and on his demanding it back, the supervisor has refused to return it. If it is submitted to the inspector, and the inspector passes it to the supervisor, and the applicant then asks to have it returned to him, the withholding of it then by the supervisor amounts to the same thing as if he had taken it forcibly from the applicant. We do not think that that portion of the instruction can'be upheld.

• In regard to the point raised by Mr. Wingate in his last observation to the court about the evidence to be submitted as to naturalization, either the original certificate or some substituted evidence, it would seem that perhaps the instruction goes a little beyond the intent of the State statute. The State statute seems to be that the applicant is to produce the original certificate of naturalization, if he can ; but that, if it is lost, he may show the fact of his naturalization by other evidence than the production of a duplicate of such certificate. This instruction seems to proceed upon the principle that the best attainable evidence must be *480produced, either the original certificate or a duplicate. It says : “If for any substantial reason, such as that the records of the court where the applicant was naturalized have been burned or otherwise destroyed, so that he cannot obtain a duplicate, then the evidence of any one who knows the fact of the naturalization of the applicant or who has seen his certificate may 'be received.” That is the opinion of the chief supervisor of election. It may or may not be acted upon by the inspectors. It would seem, so far as the court now perceives, to be a departure somewhat from what is required by the State statute. We have not had an opportunity to examine it with care, and it has not been commented upon by the other side. But the departure is not a very grave or serious one, and the matter is to be regulated unquestionably by the inspectors.

If the supervisor sees fit to say to the inspectors, that the State law is so and so, and it is not, the inspectors know better, for they have guidance of the State law and of the instructions to them thereunder, and they will continue to act as they see fit. The instruction in question, though' it may be erroneous, is not sufficient ground for removal, and does not require more serious comment. These are our views on the subject, in which both judges concur. They cover the whole ground, and my associate, Judge Choate, says that he has nothing to add. ■