A chief supervisor of elections, appointed under the provision
of Rev.Stat. § 2025, is not required by law to make copies of
the lists of registered voters returned to him, nor to arrange them
in alphabetical order after filing them, and is not authorized to
charge the United States for such services voluntarily
performed.
Page 155 U. S. 674
This was a petition of the chief supervisor of elections for the
Northern District of Illinois, for
"services rendered as such chief supervisor in entering and
indexing the records of his office, to-wit, the records of the
names of persons who registered and voted at the election held in
the City of Chicago, City of Lake View, Town of Lake, and Village
of Hyde Park, in November, 1888, at which election representatives
to Congress were voted for, 61,482 folios at 15 cents per folio,
amounting to $9,222.30,"
and for disbursements made in connection therewith amounting to
$210.35.
The Court of Claims, upon the evidence, found the facts to be as
follows:
1. Claimant, Elijah B. Sherman, has been a commissioner of the
United States and chief supervisor of elections for the Northern
District of Illinois since the year 1884, duly qualified, and is
still acting as such.
2. In connection with the congressional election of 1888, he
performed the duties of chief supervisor of elections under the
provisions of title 26 of the Revised Statutes of the United
States, known as "The Elective Franchise," in addition to the
duties of circuit court commissioner.
3. On or about the 25th day of July, 1892, the claimant made and
duly verified an account for certain services and disbursements as
chief supervisor of elections in connection with the congressional
election of 1888, to-wit, for entering and indexing the records of
persons registered and of voters, being the records of the chief
supervisor's offices, 61,482 folios at 15 cents per folio,
$9,222.30, and for disbursements amounting to $210.35.
4. Said account was duly presented in open court in the circuit
court of the United States for said district in the presence of the
district attorney of the United States for said district. Said
court entered an order finding that said account was correct as to
the number of folios embraced therein, and that the item for
stationery and supplies necessarily used in making said record was
correct, but declining to approve said account or certify the
correctness thereof, for the reason that said circuit judge thought
the statute did not authorize the work charged for by the chief
supervisor.
Page 155 U. S. 675
5. No part of the work done, disbursements made, or services
referred to and charged for in the aforesaid account has been
included in, covered by, or embraced in any account made or
presented to the accounting officers of the Treasury, or any other
department or office of the United States, other than the account
sued upon herein, and no payment has been made for any item charged
therein, and all of said service was performed within six years
before the commencement of this suit.
6. Said account was presented to the accounting officers of the
United States Treasury Department for payment, and payment thereof
was refused. Thereupon the first auditor of the Treasury, on the
ground that said claim involved a controverted question of law,
certified said claim to the honorable Secretary of the Treasury,
and transmitted the same to him, together with all the vouchers,
papers, documents, and proofs pertaining thereto, that the same
might be transmitted to the Court of Claims, as provided in §
1063, Rev.Stat., and thereupon the honorable acting Secretary of
the Treasury transmitted to this Court the claim of petitioner,
with all vouchers, papers, proofs, and documents pertaining
thereto, to be proceeded with in this Court according to law.
7. The claimant, as chief supervisor of elections, required of
supervisors of elections lists of the persons who registered and
voted in their respective election districts or voting precincts at
said election held in November, 1888. Such lists, when made, were
returned to and filed by him, and became a part of the records of
his office. Said lists were necessary for properly guarding and
scrutinizing said election, and the registration prior thereto.
8. The nature of the services described in the account in suit
was the entering and indexing of the records of persons who
registered for the purpose of voting at the election for
representatives in Congress held in November, 1888, in the City of
Chicago, City of Lake View, village of Hyde Park, and Town of Lake,
in said Northern District of Illinois, and said index record
contained the particulars relative to each voter then required by
the laws of the State of Illinois, and
Page 155 U. S. 676
as shown in Exhibit A. The matter contained in said index record
was contained in the registers or lists made by supervisors of
election, and returned to claimant as chief supervisor of
elections, and which became part of the records of his office.
9. The disbursements charged for are for large index volumes for
entering and indexing the records of the claimant's office, and for
stationery and supplies necessarily used in and about the entering
and indexing of said records, amounting to $210.35.
10. Before the services now sued for were performed, the
claimant made out and presented his account as chief supervisor of
elections for services rendered at the congressional election of
1888, in which account, and while it was in the possession of the
first Comptroller, and before it was approved by him, the claimant
endorsed the following words:
"The foregoing account and claim against the government is
presented without prejudice to my right to present hereafter a
further account and claim for the services in entering and indexing
the records of my said office touching the said election of 1888,
and the registration prior thereto, and for any other services
rendered by me in connection with said election, which is not
included in the foregoing account, and without prejudice to the
right to sue therefor."
The index so prepared of the election of 1888 was not in fact
made until after the congressional election of 1890. It was used by
the claimant in the election of 1892, but to what extent does not
appear. The similar index of the election returns of the election
of 1890 was made out before the election of 1892, and was used in
that election, and has been paid for.
On the foregoing findings of fact, the court decided as a
conclusion of law:
"The services which form the cause of action in this suit not
having been rendered at the proper time, to-wit, before the
congressional election of 1890, and the defendants having therefore
derived no benefit from them in that election, they must be deemed
voluntary, and for them the claimant should not recover. Petition
dismissed. "
Page 155 U. S. 677
Petitioner thereupon appealed to this Court.
Page 155 U. S. 680
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The charge in question is claimed to be justified by Revised
Statutes §§ 2026, 2031, the material parts of which read
as follows:
"SEC. 2026. The chief supervisor shall prepare and furnish all
necessary books, forms, blanks, and instructions for the use and
direction of the supervisors of election in the several cities and
towns in their respective districts. . . . He shall require of the
supervisors of election, when necessary, lists of the persons who
may register and vote, or either, in their respective election
districts or voting precincts, and cause the names of those upon
any such lists whose right to register or vote is honestly doubted
to be verified by proper inquiry and examination at the respective
places by them assigned as their residences, and he shall receive,
preserve, and file . . . all certificates, returns, reports, and
records of every kind and nature contemplated or made requisite by
the provisions hereof, save where otherwise herein specially
directed."
"SEC. 2031. There shall be allowed and paid to the chief
supervisor, for his services as such officer, the following
compensation, apart from and in excess of all fees allowed by law
for the performance of any duty as circuit court commissioner: for
filing and caring for every return, report, record, document, or
other paper required to be filed by him under
Page 155 U. S. 681
any of the preceding provisions, ten cents; for affixing a seal
to any paper, record, report, or instrument, twenty cents; for
entering and indexing the records of his office, fifteen cents per
folio. . . . And the fees of the chief supervisors shall be paid at
the Treasury of the United States, such accounts to be made out,
verified, examined, and certified as in the case of accounts of
commissioners, save that the examination or certificate required
may be made by either the circuit or district judge."
Under the first section, it is a matter for the chief supervisor
to determine whether it be "necessary" to require of the
supervisors of election lists of the persons who may register and
vote, etc., and his discretion in this particular is not subject to
review. When these lists are returned to him, he is required to
"receive, preserve, and file" them as "certificates, returns,
reports, or records;" and, by section 2031, "for filing and caring
for" such "return, report, record, document, or other paper" he is
entitled to ten cents. Is he, however, under the name of "entering
and indexing the records of his office," entitled to fifteen cents
per folio for making a complete copy of such returns, and arranging
them in alphabetical order after they have been properly filed as
records of his office?
The object of the statutes concerning the elective franchise,
now embodied in Title XXVI of the Revised Statutes, was, as
declared in the title to the Act of May 31, 1870, c. 114, 16 Stat.
140, "to enforce the rights of citizens of the United States to
vote in the several states of this Union, and for other purposes,"
among which was undoubtedly the preservation of the purity of
elections, and the obtaining of an honest expression of opinion
from each individual voter. For this purpose, the judge of the
circuit court was required, upon the petition of a certain number
of citizens of any city or town having upwards of 20,000
inhabitants, or of any county or parish in any congressional
district, making known their desire to have the registration or
election guarded and scrutinized, to open the circuit court at the
most convenient point in the circuit (§ 2011); to appoint and
commission, from day to day, two citizens from each voting
precinct, to be known and designated as supervisors
Page 155 U. S. 682
of elections (§ 2012), who were required to attend at the
registration of the voters, to challenge voters and supervise the
registry, to make lists of the voters when required (§ 2016),
to attend at the election, to supervise the manner in which the
voting was done (§ 2017), to canvass each ballot, and,
generally, to see that the election and canvass were fairly
conducted, and to make return of their doings to the chief
supervisor (§ 2018). By § 2021, the marshal for the
district was required, upon the application in writing of a certain
number of citizens, to appoint a certain number of deputy marshals
to aid and assist the supervisors in the verification of any lists
of voters, and to attend the registration and election.
By § 2025, the circuit court was required to appoint, from
among the circuit court commissioners, a chief supervisor, who
should serve so long as he faithfully and capably discharged the
duties imposed upon him.
From this brief recapitulation of the prominent provisions of
the title, it is evident that no permanent system for the carrying
on of congressional elections was intended to be established. The
act was to be operative only in particular cases when, upon
petition filed by the required number of citizens, the circuit
court was authorized to appoint supervisors, who attended that
election at the conclusion of which they became
functi
officio. No system for the permanent registration of voters
was contemplated, simply because the exigencies which dictated the
appointment of supervisors for a particular election might not
exist at the next or any subsequent election. No permanent official
is provided for except a chief supervisor in each judicial
district, who served without regular salary, and acted only when
the electoral machinery was put in motion, prior to any election,
by the petition of the requisite number of voters. No permanent
records were contemplated, and, without a system of registration
like that obtaining in many of the states, none would be of any
value, since persons who are disqualified at one election by reason
of minority, alienage, nonresidence, or other cause might, when the
next election took place, become legal and competent voters. So
those who are this year qualified may next year,
Page 155 U. S. 683
either by removal from their present residence, by insanity,
conviction of crime, or other cause, become disqualified the next
year. The laws of the several states usually recognize the fact
that a person whose name appears upon the registry of a certain
precinct is presumed to be qualified at the next election in that
precinct. But even if a complete registration of voters were made
by the chief supervisor, no such presumption would follow, since it
is the state, and not the general government, which prescribes the
qualification of voters. It was never the design of the act that
Congress should determine who should vote at any election or
interfere with laws of the state in that regard, but only to
protect those who were entitled to vote by the laws of the state in
the exercise of the elective franchise. It would therefore have
been entirely superfluous to provide for a permanent registry of
voters to be kept by the chief supervisor. The state registration
is presumed to answer all requirements in that particular.
So too, a registry of voters, to be of any value, must be kept
at the polling places in each precinct in order that, as each voter
presents himself, reference may instantly be made to the list to
ascertain his qualifications. Hence the list made by the claimant,
to serve any useful purpose, would have to be either printed or
copied for use in each precinct, involving, of course, an enormous
expense. But even this would have been of little value, since each
precinct is concerned only with its own voters, and a list of
61,282 folios, containing the names of probably double that number
of voters, would be so long as to be practically useless for ready
and immediate reference. Add to this the fact, that thousands of
changes are made at each election, and that the services in
question were not completed until July, 1892, nearly four years
after the election took place, and it will be seen that the list
made by the claimant could have been of no possible value to the
government -- of no more value than a city directory published four
years after the compilation of names is made. The index, so
prepared by him after the election of 1888, was not in fact made
until after the congressional election of 1890, and was never used
until the election of 1892. To what
Page 155 U. S. 684
extent it was so used does not appear. It seems, too, that a
similar index of the election returns of the election of 1890 was
made out before the election of 1892, was used in that election,
and has been paid for.
It is claimed, however, that, if the statute requires or
authorizes the work to be done, the claimant ought not to be held
responsible for the fact that the transcript was of no value or to
lose his compensation for that reason. Assuming that section 2026
vests him with a discretion to require of the supervisors lists of
the voters when, in his opinion, it is necessary, and that section
2031 authorizes, and perhaps requires, him to file and care for
such lists, there is certainly no requirement that he make a copy
of such lists. The entering and indexing the records of his office,
for which he is entitled to recover 15 cents per folio, would
evidently be complied with by his filing such returns, and indexing
them in the name of the supervisor making the return, and even if
the services performed by him in copying and rearranging the names
upon these returns could be construed as "entering and indexing"
them, it was a service of such manifestly disproportionate value to
the cost thereby incurred that we think it could never have been
contemplated by the statute. The claimant should have recognized
this fact and, before putting the government to the very large
expense of this transcript, he should have been able to point to
some statute requiring it to be done in language free from
ambiguity.
The very magnitude of the expense incurred should have put the
claimant upon inquiry as to the propriety of the service. He has no
right to plunge the government into an expense of some $10,000 upon
a doubtful interpretation of the law, especially when he is
apprised of the fact that the service performed must have been of
little or no value to the government. The index which he prepared
for the election of 1890, and for which he was paid, covered every
possible use for which the index he now charges for could have been
made available. It is of no more value than a directory for a
certain year issued after a directory for a subsequent year has
been published and put upon the market.
Page 155 U. S. 685
We do not wish to be understood as imputing any bad faith to the
plaintiff in this particular, as there are undoubtedly decisions
even of the Court of Claims, which uphold charges of this
description,
Dennison v. United States, 25 Ct.Cl. 304;
Allen v. United States, 26 Ct.Cl. 445, and the department
seems to have paid many of these accounts without question since
these decisions. We are, however, clear in our opinion that the
service is not one within the spirit or the letter of the statute;
that the circuit judge was right in refusing to approve the
account, and that the allowance of other accounts of a similar
nature works no estoppel upon the government. If there be any
estoppel at all, it is against the claimant, who has already been
paid for a similar service performed since the transcript in
question was made.
The judgment of the Court of Claims is therefore
Affirmed.
