Opinion of the Court.

"2. Whether the matters and things alleged and set forth in the first three counts of said indictment constitute an offence or offences under section 5515 of the Revised Statutes of the United States, or under any other law or statute of the United States.

"3. Whether the laws of the State of Tennessee imposed upon said defendants, as such returning officer and judges of election, at the said election, the duty, when the election was finished and after the polls were closed, of opening the ballotbox used at the said election, at the place of holding the same, to wit, at the place where the ballots of said election were cast.

"4. Whether, under the laws of the State of Tennessee, it was a violation of duty imposed upon the defendants, as such judges and officer of election, at the said election, for said defendants, when the said election was finished and after the polls were closed, to remove the ballot-box used at said election from the place where the same was held, and where the ballots were cast at said election, to another place, for the purpose of opening the said ballot-box and reading aloud the names of the persons appearing on each ballot, as contemplated by section 1068 of the Code of Tennessee, (Milliken & Vertrees' edition).

“5. Whether it was the duty, under the laws of the State of Tennessee, of the said defendants, as judges and officer of the said election, after the same was finished and after the polls at said election were closed, to open the ballot-box used at said election, to wit, at the southeast corner of Gayoso and Second Streets, in Memphis, Tennessee, the same being the duly designated place of holding said election, and the place where said election was held, and to there read aloud the names of the persons appearing on each ballot cast at said election, as contemplated by said section 1068 of the Code of Tennessee.

"6. Whether it was a violation of duty imposed by the laws of the State of Tennessee upon the defendants as judges and officer of said election, when the same was finished, and after the polls at said election were closed, and before the counting

Opinion of the Court.

of the votes cast at said election, to remove the said ballot-box from the southeast corner of Gayoso and Second Streets, in Memphis, Tennessee, that being the designated place of holding said election and the place where the same was held, for the purpose of opening the said ballot-box and reading aloud the names of the persons appearing on each ballot cast at said election, as contemplated by said section 1068 of the Code of Tennessee.

"7. Whether it was a neglect or refusal of duty imposed by the laws of the State of Tennessee upon the defendants, as judges and officer of the said election, when the same was finished, and after the polls at said election were closed, and before the counting of the votes cast at said election, to fail to open the ballot-box used at said election at the southeast corner of Gayoso and Second streets, in Memphis, Tennessee, that being the duly designated place of holding said election, and the place where the same was held, and to there read aloud the names of the persons appearing on each ballot cast at said election, as contemplated by said section 1068 of said Code of Tennessee.

"8. Whether the first three counts of said indictment, or any of them, are bad because no one of the said counts contains an allegation that the matters and things therein respectively charged and set forth against said defendants, as judges and officer of the election aforesaid, were so done by them with intent to affect the said election and the result thereof."

The first two questions certified are in such a general form that this court cannot answer them, as has been repeatedly held. United States v. Northway, 120 U. S. 327; Dublin Township v. Milford Savings Institution, 128 U. S. 510, 514; United States v. Hall, 131 U. S. 50; United States v. Lacher, 134 U. S. 624, 632.

As to questions 3, 4, 5, 6 and 7, we are of opinion that they must be answered in the negative.

The statutes of Tennessee which relate particularly to the question involved are sections 1067, 1068 and 1070 of the Code of Tennessee of 1884, by Milliken & Vertrees, which are as follows: "Sec. 1067. The officer or person and judges ap

Opinion of the Court.

pointed to hold an election shall not proceed to or commence counting out the votes given in the election until the polls shall have been closed. Sec. 1068. When the election is finished, the returning officer and judges shall, in the presence of such of the electors as may choose to attend, open the box and read aloud the names of the persons which shall appear in each ballot; and the clerks, at the same time, shall number the ballots, each clerk separately." "Sec. 1070. The inspectors have authority to maintain regularity and order in the balloting; to keep access to the polls free and unobstructed; to prevent all disorderly and riotous conduct during the election, and during the counting of the votes after the polls are closed; and for this purpose they are vested with all the powers of a peace officer."

It is contended that these sections impliedly require that the box shall be opened, and the names of the persons appearing in each ballot read aloud, at the place where the election was held, and that the ballot-box shall not be removed from the place where the election was held before the votes are counted. But this is urged merely as an implication. The statute does not provide distinctly and specifically, and in words required in a criminal statute, that the box shall be opened at the place where the election was held, and the names of the persons appearing in each ballot be read aloud at that place, and the ballot-box not be removed from that place before the votes cast are counted.

We are not referred to any statute of Tennessee, or to any construction given by its courts to the sections of the statute above referred to, which declares it to be the duty of the officers of election to count the votes at the place where the election was held. The implication of the decision in McCraw v. Harralson, (4 Coldwell, 34, 44, 45,) made in 1867, is to the contrary. In that case, section 864 of 1 Thompson & Steger's Statutes of 1871, which section was enacted in 1835, provided that "the officer or person holding any election of county officers shall compare the polls at the court-house, on the first Monday after said election, and shall deliver to each person elected a certificate of his election." The officers holding the

Syllabus.

election in controversy did not compare the polls at the courthouse, but counted the votes in a private house in the town in which the court-house was situated; and the court held that, the returns having been made to the court-house, and the county court being in session, the counting of the votes at a private house in the town was a sufficient compliance with the requirements of the statute, and constituted no ground, in the absence of all fraud or misconduct in comparing the polls and counting the votes, for setting aside the election.

Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. United States v. Sharp, Pet. C. C. 118. Before a man can be punished, his case must be plainly and unmistakably within the statute. United States v. Lacher, 134 U. S. 624, 628. We are of opinion, therefore, that questions 3, 4, 5, 6 and 7 must be answered in the negative, no fraud being averred in the indictment, and no intent to affect the election or its result, and there being no allegation that the election or its result was affected.

This disposition of questions 3, 4, 5, 6 and 7 requires that the demurrer to the indictment be sustained, and makes it unnecessary to answer question 8.

Questions 1 and 2 are not answered because they are too general. Questions 3, 4, 5, 6 and 7 are answered in the negative, and question 8 is not answered because it is unnecessary to answer it.

EAST TENNESSEE, VIRGINIA AND GEORGIA RAILWAY COMPANY v. FRAZIER.

ERROR TO THE SUPREME COURT OF THE STATE OF TENNESSEE.

No. 1407. Submitted March 9, 1891.- Decided March 23, 1891.

When the pleadings in the trial court of a State, the assignment of error in the Supreme Court of the State, the opinion of the latter court and its original decree present no federal question, and two days later on

Opinion of the Court.

motion of counsel the decree is modified so as to show that a federal question was presented by counsel and decided adversely to their contention, there is color for a motion to dismiss for want of jurisdiction here.

When a charter power is once fully exercised by a corporation, and exhausted, it is, in respect of further contracts and rights of the corporation, as if it had never been granted.

The plaintiff in error having exhausted the power to mortgage its property given by the act of 1847, before its property was mortgaged in 1881, the latter mortgage was made under the then existing laws of Tennessee.

MOTION to dismiss or affirm. The case is stated in the opinion.

Mr. Henry H. Ingersoll for the motion.

Mr. William M. Baxter opposing.

MR. JUSTICE BREWER delivered the opinion of the court.

This case is submitted on a motion to dismiss or affirm. The facts are these:

The State of Tennessee in 1847 (Acts of 1847-48, page 195) granted a charter of incorporation to the East Tennessee and Virginia Railroad Company. In 1869, this corporation was consolidated with the East Tennessee and Georgia Railroad Company, under the name of the East Tennessee, Virginia and Georgia Railroad Company. This consolidated company, in 1881, executed a mortgage, which in 1886 was foreclosed, and the plaintiff in error, the East Tennessee, Virginia and Georgia Railway Company, as purchaser, took possession of the franchises and property. After this foreclosure and sale, petitions in the nature of creditor's bills were filed in behalf of the defendants in error, judgment creditors of the railroad company, to subject its property in the hands of the purchaser, the railway company, to the satisfaction of their judgments. These judgments were, in point of time, subsequent to the mortgage of 1881, and the question presented was, whether they were superior liens. Such superiority was claimed under and by virtue of a proviso to section 3, of chapter 72 of the Laws of Tennessee of 1877, page 92, which reads: "And pro