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him. In its opinion the Supreme Court of the United States say: "The question before us is, not whether the courts below, having jurisdiction of the case and the parties, have followed the law, but whether the law, if followed, would have furnished Kennard the protection guaranteed by the Constitution. Irregularities and mere errors in the proceedings can only be corrected in the state courts. Our authority does not extend beyond an examination of the power of the courts below to proceed at all." And, directing its examination to this point, the court found that in fact due process of law had been provided in the trial of his right to office which he claimed. In thus assuming jurisdiction of the case, and in examining as to whether in fact due process of law had been had, it is apparent that the Supreme Court must have held that the right to the office in question was a property right within the terms of the provision of the Fourteenth Amendment which declares that no State shall deprive a person of life, liberty, or property without due process of law.

Again, in Foster v. Kansas,22 the federal court assumed jurisdiction in a case where the Supreme Court of Kansas had ousted the plaintiff in error from office, the court in its opinion saying: "As the question of the constitutionality of the statute was directly raised by the defendant, and decided against him by the court, we have jurisdiction and the motion to dismiss must be overruled;" thus affirming the decision of the state court on the ground that the proceedings showed due process of law.

In Boyd v. Nebraska23 the state supreme court had ousted Boyd from the office of governor and installed Thayer therein. On error to the federal Supreme Court, the judgment of the state Supreme Court was reversed, Thayer ousted, and Boyd reinstated as governor of the State, the ground for this action being that in the proceedings by which Boyd had been originally ousted, the state court had incorrectly decided that he was not a citizen of the United States and therefore disqualified for office. In its opinion, the court say: "As the allegation [of citizenship] sets up a right and privilege claimed under the laws of the United

22 112 U. S. 205; 5 Sup. Ct. Rep. 8; 28 L. ed. 696. 23 143 U. S. 135; 12 Sup. Ct. Rep. 375; 30 d

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States, this court must determine for itself the question of sufficiency of this allegation, and is not concluded by the view taken of that question by the Supreme Court of Nebraska." The statement that a federal right or privilege was here claimed, would not seem to be correct. No right or privilege attached to, or growing out of federal citizenship was claimed. The judgment of the state court should have been affirmed irrespective of the fact whether or not in truth Boyd was a citizen of the United States.2

24

In Wilson v. North Carolina25 the Supreme Court of the United States was again called upon to determine whether the plaintiff in error had, by being ousted from office, been deprived of property without due process of law. In its opinion the court again affirm the doctrine that " the procedure provided by a valid state law for the purpose of changing the incumbent of a state

24 In an emphatic dissenting opinion Justice Field said: "I dissent from the judgment just rendered. I do not think that this court has any jurisdiction to determine a disputed question as to the right to the governorship of a State, however that question may be decided by its authorities. . . . The fact that one of the qualifications prescribed by the State for its officers can only be ascertained and established by considering the provisions of the law of the United States in no way authorizes an interference by the General Government with the state action. Because an officer of a State must [according to the Constitution or statutes of that State] be a citizen of the United States, it does not follow that the tribunals of the United States can alone determine that fact, and that the decision of the State in respect to it can be supervised and controlled by the federal authorities. . . The office of sheriff was not a right or privilege claimed under a law of the United States, but was a right or privilege claimed by the election under the laws of Missouri. The mere fact that it was necessary that the incumbent of the office should also be a citizen of the United States, did not of itself give him a right to that office. . . . My objection to the decision is not diminished by the fact that there is no power in this court to enforce its decision upon the State of Nebraska should resistance be made to it. Should the incumbent declared by this court not to be entitled to the office refuse to surrender it and the state authorities should stand by him in such refusal, what could be done about it? . . . If the right of this court to interfere in this case can be sustained, every candidate for office alleging that the successful party has not some qualification prescribed by statute, which can only be defined by reference to a federal law, will claim a right to invoke the interference of the federal judiciary to determine whether he ought or not to have been declared elected."

25 169 U. S. 586; 18 Sup. Ct. Rep. 435; 42 L. ed. 865.

office will not in general involve any question for review by this court. A law of that kind does but provide for the carrying out and enforcement of a policy of a State with reference to its political and internal administration, and a decision of the state court in regard to its construction and validity will generally be conclusive here. The facts would have to be most rare and exceptional which would give rise in a case of this nature to a federal question."

§ 84. Taylor v. Beckham.

The latest case upon the point under consideration is that of Taylor v. Beckham,2 decided in 1900. This case arose out of the following facts. At a general election held in November, 1899, in Kentucky, William Goebel and J. C. W. Beckham were the democratic nominees for the offices of governor and lieutenantgovernor respectively, and William S. Taylor and John Marshall were the republican candidates. The state board of election commissioners whose duty it was to canvass the returns, determined that Taylor and Marshall were elected, and they were thereupon inducted into office. Goebel and Beckham contested the election upon various grounds, boards of contest were organized, and reported their decisions to the General Assembly for its action thereupon as provided by law. These reports, which were approved by the Assembly, found that Goebel and Beckham had been elected. They were then duly sworn and inducted into office. In February, 1900, Goebel died and Beckham succeeded to the governorship. Taylor and Marshall, however, refused to recognize the validity of the proceedings whereby Goebel and Beckham had been declared elected, and declined to surrender the records and other papers pertaining to the office of governor or to vacate the executive offices in the capitol building at Frankfort. Whereupon Beckham brought an action in the nature of a quo warranto in the Circuit Court of the State against Taylor and Marshall. Judgment of ouster was rendered in favor of the plaintiff. The case was carried on appeal to the Court Kentucky and the judgment affirmed;

26 178 U. S. 548; 20 Sup. Ct. Rep. 890; 44

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was obtained by Taylor and Marshall from the Supreme Court of the United States. The Supreme Court dismissed the writ of

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Two grounds for federal interference had been set up by the plaintiffs in error: (1) That the proceedings by which they had been ousted from office were not compatible with a republican form of government; (2) that they had been deprived of a property right without due process of law.

As to the first contention, the court held that the Commonwealth of Kentucky being in full possession of its faculties as a member of the Union, no exigency had arisen requiring the interference of the Federal Government to enforce the guaranty elause. As to the second point, the court say: "The contention is that, although the statute furnished due process of law, the General Assembly in administering the statute denied it, and that the Court of Appeals in holding to the rule that where a mode of contesting elections is specifically provided by the Constitution, or laws of a State, that mode is exclusive, and in holding that, as the power to determine was vested in the General Assembly of Kentucky, the decision of that body was not subject to a judicial revision, denied a right claimed under the federal Constitution. The Court of Appeals did, indeed, adjudge that the case did not come within the Fourteenth Amendment, because the right to hold the office of governor or lieutenant-governor of Kentucky was not property in itself, and being created by the Constitution, was conferred and held solely in accordance with the terms of that instrument and laws passed pursuant thereto, so that, in respect of an elective office, a determination of the result of an election, in the manner provided, adverse to a claimant, could not be regarded as a deprivation forbidden by that amendment."

The court, after an examination of authorities, declare that the Kentucky court had been correct in thus holding that a public office is not property, and say: "It is clear [then] that the judgment of the Court of Appeals, in declining to go behind the decision of the tribunal vested by the state Constitution and laws with the ultimate determination of the right to these offices, denied no right secured by the Fourteenth Amendment."

In assuming the position here taken as to non-property character of a public office and in dismissing the writ of error on that ground, it would seem that the court was scarcely in harmony with its preceding decisions, in several of which, as we have already seen, by assuming jurisdiction, and by examining the character of the processes by which the contests for office had been settled to see if they provided due process of law, it had assumed that as between two contestants for an office, the right to an office and its emoluments was a property right within the meaning of the Fourteenth Amendment.27

27 Thus Justice Brewer, in his dissenting opinion, says: "I agree fully with those decisions which are referred to [in the 'majority opinion], and which hold that as between the State and the office holder there is no contract right either to the term of office or to the amount of salary, and that the legislature may, if not restrained by constitutional provisions, abolish the office or reduce the salary. But when the office is not disturbed, when the salary is not changed, and when, under the Constitution of the State, neither can be by the legislature, and the question is simply whether one shall be deprived of that office and its salary, and both given to another, a different question is presented, and in such a case to hold that the incumbent has no property in the office, with its accompanying salary, does not commend itself to my judgment." Justice Brewer goes on to argue, however, that the judgment of the Court of Appeals of Kentucky should have been affirmed for the reason that due process of law had been observed. "But,” he concludes, "because, as I understand the law, this court has jurisdiction to review a judgment of the highest court of a State ousting one from his office and giving it to another, and a right to inquire whether that judgment is right or wrong in respect to any federal question such as due process of law, I think the writ of error should not be dismissed, but that the judgment of the Court of Appeals of Kentucky should be affirmed." Justice Brown concurred in the opinion rendered by Justice Brewer.

A dissenting opinion was also rendered in this case by Justice Harlan. In this he argues not only that the writ of error should not have been dismissed, but that the court should adjudge that the decree in the state court had taken from Taylor and Marshall rights protected by the Fourteenth Amendment. In agreement with Justices Brewer and Brown he argues |

that as between two claimants a public office is property, and had been so held by the Supreme Court in previous cases. But he goes even further than this, and brings the right of office within the meaning of the term "liberty" as used in the Fourteenth Amendment. "What more directly involves the liberty of the citizen," he says, "than to be able to enter upon the discharge of the duties of an office to which he has been lawfully elected by his fellow citizens? What more certainly infringes upon his

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