Charles S. Thornton, for plaintiff in error.
Geo. W. Smith, E. C. Akin, Frank P. Blair, and Murry Nelson,
Jr., for defendant in error.
Mr. Justice HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the court.
The attorney general of Illinois filed in the supreme court of
Illinois, at its June term, 1897, an original petition against
Joseph Kipley, superintendent of police of the city of Chicago, and
Adolph Kraus, Dudley Winston, and Hempstead Washburne,
commissioners appointed under the act of the legislature of
Illinois in force on and after March 20, 1895, entitled 'An act to
regulate the civil service of cities.'
Page 170 U.S.
182, 183
The application for leave to file the petition was accompanied
by a suggestion upon the part of the attorney general that the case
involved an interpretation of the above act.
The prayer of the petition was that a writ of mandamus issue,
commanding Kipley, as superintendent of police of Chicago, to
notify the civil service commissioners of all vacancies existing in
the positions of assistant superintendent of police, inspectors of
police, and captains of police in the city of Chicago, and
commanding the civil service commissioners to submit to Kipley, as
superintendent of police, the names of not more than three
applicants for promotion for each vacancy from the grade next below
that in which such vacancy or vacancies exist, and that the
petitioner have such other or further relief as the nature of the
case required.
Kipley filed a separate answer, in which he insisted that he had
acted in all respects in conformity with law. He also averred that
although the act regulating the civil service of cities was passed
and approved substantially as stated in the petition, and was
afterwards submitted to a vote of the electors of Chicago, and
adopted by a large majority of votes, it was 'unconstitutional and
void,' in that it purported to confer judicial powers and authority
to make and enforce judgments and decisions of a nonjudicial body,
described and set forth in the act as the 'Civil Service
Commission.'
Subsequently, June 28, 1897, the city council of Chicago passed
an ordinance designating certain public officers who should be
selected by the mayor with the concurrence of the council. Kipley,
July 10, 1897, filed a plea setting forth this ordinance, and
alleging, in relation to the appointment by the civil service
commissioners of certain subordinate police officers of the city,
that they 'have been, if they ever were within the same, wholly
taken away from and removed out of the control, jurisdiction, and
power of the said civil service commissioners, so that such matters
are now expressly excepted, by its very terms from the force and
effect of said civil service act.'
On the 7th day of October, 1897, Kipley asked leave of the
Page 170 U.S.
182, 184
court to withdraw his plea, and also to amend his answer so as
to embody therein averments to the effect that the relator was not
entitled to a writ of mandamus, and that the court had no
jurisdiction or power to grant the same, because the said civil
service act of March 20, 1895, was null and void, and contrary to
the constitution of the state of Illinois and the constitution of
the United States, in that:
'(1) It abridges the privileges and
immunities of the citizens of the United States, because it
operates to exclude from the classified service of such city, as
therein specified, all such citizens as do not apply for office, or
for place of employment.
'(2) The said act of March 20, 1895,
deprives a duly elected and qualified officer of the right to
select his subordinates, and provide the requisite agencies for
performing his official duties; thus abridging the rights,
privileges, and immunities belonging and guarantied by the said
constitutions, respectively, to every citizen thereof.
'(3) The said act of March 20, 1895,
provides for the invasion of the right of the people to be secure,
in their persons, houses, papers, and effects, against unreasonable
searches and seizures.
'(4) The said act of March 20, 1895,
purports to prescribe for the criminal trial of public officers for
nonfeasance, for misfeasance, for malfeasance in office, and for
the infliction of penalties therefor, of deprivation of office, of
fine, of imprisonment, and incapacity to hold office thereafter, by
a nonjudicial body, and in such manner that the accused shall not
enjoy the right to a speedy and public trial by an impartial jury
of the state or district wherein the crime shall have been
committed, and without informing the accused of the nature and
cause of the accusation, and without confronting the accused with
the witnesses against him, and without permitting the accused to
have compulsory process for obtaining witnesses in his favor, and
to have the assistance of counsel for the defense.
'(5) That the said act denies to the
citizens the freedom of political action, making it highly penal
for the citizen to take part in party politics.
Page 170 U.S.
182, 185
'(6) That said act of March 20, 1895, provides for the creation
and maintenance of an office-holding class, at the expense of the
people who are excluded therefrom by the operation of the said
act.
'(7) And generally said act of March
20, 1895, is directly in contravention of the right of that clause
of the United States constitution which prescribes that 'all
persons born or naturalized in the United States and subject to the
jurisdiction thereof are citizens of the United States and of the
state wherein they reside. No state shall make or enforce any law
which shall abridge the privileges and immunities of citizens of
the United States, nor shall any state deprive any person of life,
liberty or property without due process of law, nor deny to any
person the equal protection of the laws.'
'(8) And, further, the said act of
March 20, 1895, generally denominated the 'Civil Service Act,' is
absolutely null and void, because the same purports to require the
civil officers of the city of Chicago to undergo tests as to
qualification for office and public employment in addition to the
requirement of section 25 of article 5 of said constitution of the
state of Illinois, and because it provides for a political test for
the said commissioners respectively therein named, and because
further the same is in contravention of section 22 of article 4 of
said constitution, as well as many other provisions of said state
constitution.'
Kipley also asked leave to file 'a supplemental mental answer,'
averring that since the filing of his original answer the city
council had passed the above ordinance of June 28, 1897.
The motions for leave to withdraw the plea, to amend the answer,
and to file a supplemental as wer, were severally denied.
On a subsequent day of the term, Kipley entered a motion to
discharge the rule requiring the respondents to answer the
petition, and to quash all the proceedings that had been taken;
assigning as reason therefor that the civil service act of March
20, 1895, was contrary to the constitution of Illinois and the
constitution of the United States, upon certain specified grounds.
They were the same as those specified in the
Page 170 U.S.
182, 186
above motion for leave to amend the answer. That motion was also
denied.
On the 22d day of December, 1897, the supreme court of Illinois
rendered its final judgment, granting the relief asked in the
petition for mandamus.
The final order of the court was that a writ of mandamus issue,
commanding Kipley, superintendent of police of Chicago, to notify
the civil service commissioners of all vacancies existing in the
positions of assistant superintendent of police, inspectors of
police, and captains of police in that city, and the civil service
commissioners to submit to him, as such superintendent of police,
the names of not more than three applicants for promotion for each
vacancy from the next grade below that in which such vacancy or
vacancies existed.
Kipley, having given previous notice thereof, filed a petition
for rehearing on the 8th day of January, 1898; but, before that
petition was disposed of, he sued out a writ of error to this
court. That constitutes case No. 586. The rehearing having been
denied, he sued out another writ of error, and that constitutes
case No. 601. The citation in each case was signed by the chief
justice of the state court. The cases, on motion, were consolidated
in this court, and are before us on a motion to dismiss each writ
of error for want of jurisdiction.
We are of opinion that this court is without jurisdiction to
review the final judgment of the supreme court of Illinois in these
cases. The answer makes no reference whatever to the constitution
or laws of the United States. It is true that it avers that the
Illinois civil service act was 'unconstitutional and void.' But
when the jurisdiction of this court is invoked for the protection,
against the final judgment of the highest court of a state, of some
title, right, privilege, or immunity secured by the constitution or
laws of the United States, it must appear, expressly or by
necessary intendment, from the record, that such right, title,
privilege, or immunity was 'specially set up or claimed' under such
constitution or laws. Rev. St. p. 709. Our jurisdiction cannot
arise in such case from inference, but only from averments so
distinct and positive as to place it beyond question that the party
bringing
Page 170 U.S.
182, 187
the case up intended to assert a federal right. Oxley Stave Co.
v. Butler Co.,
166
U.S. 648, 17 Sup. Ct. 708; Levy v. Superior Court,
167 U.S.
175, 177, 17 S. Sup. Ct. 769. The averment in the answer that
the statute of Illinois was unconstitutional and void must be taken
as intended to apply to the constitution of that state, and not to
the constitution of the United States. In Miller v. Railroad Co.,
168 U.S.
131, 134, 18 S. Sup. Ct. 34, this court, speaking by the chief
justice, said: 'We have no jurisdiction on a writ of error to a
state court to declare a state law void on account of its collision
with a state constitution; and it was long ago held that, where it
was objected in the state courts that an act of the state was
'unconstitutional and void,' the objection was properly construed
in those courts as raising the question whether the state
legislature had the power, under the state constitution, to pass
the act, and not as having reference to any repugnance to the
constitution of the United States. Porter v Foley, 24 How.
415.'
It is manifest that, when the answer was drawn, neither the
defendant, Kipley, nor the learned counsel representing him,
intended to raise any question of a federal nature. We cannot
suppose that it occurred to either of them at that time that the
civil service act of Illinois was repugnant to the constitution of
the United States.
Nor was any question of a federal character raised, or intended
to be raised, by the plea which brought before the court the city
ordinance of June 28, 1897.
It is, however, said that the motion for leave to amend the
answer did specially set up and claim that the Illinois civil
service act violated certain rights, privileges, and immunities
belonging to the plaintiff in error under the constitution of the
United States. But, as the supreme court of Illinois did not allow
the proposed amendment of the answer, the questions suggested by
the amendment did not arise for determination. To the action of the
court in disallowing the amendment, no exception was taken. The
grounds upon which these motions were denied appear from the
opinion of the court, as follows: 'By this motion respondent,
Kipley, asks-First, for leave to withdraw his plea; second, to file
an amended answer; and,
Page 170 U.S.
182, 188
third, to file a supplemental answer. Nothing more is before us
than the bare motion. No showing has been made, nor reasons filed,
in support of the motion; and we are unable to say whether the
motion should be allowed or not, and it must therefore be
overruled.' People v. Kipley, 167 Ill. 638, 48 N.E. 688. This
action of the state court does not raise a federal question which
this court can examine. The suggestion that the federal questions
which would have been raised if the answer had been amended as
proposed should be considered upon their merits, precisely as they
might have been if the motion to amend had been allowed, cannot be
entertained for a moment. It was in the discretion of the court to
deny the motion to amend, when no reasons were assigned for its
allowance, and to hold the parties to the issues made by the
original petition and answer; and there is nothing in the record
justifying the conclusion that its discretion in that regard was
exercised with the intent or so as to deprive the defendant either
of any right or immunity to which he was entitled under the
constitution or laws of the United States, or of the privilege of
setting up or claiming in due time, and in proper form, any such
right or immunity.
It may be observed that the opinion of the state court delivered
upon final hearing contains nothing to show that any federal
question was considered or determined. The general subject to which
the attention of the court was directed is shown by the following
extract from its opinion, delivered by Mr. Justice Magruder: 'The
evils sought to be remedied by legislation of this character are
well known and well understood. These evils are such as grow out of
what is generally called the 'spoils system.' ... The foundation
principles of the act are that appointments to municipal offices or
employments must be made according to merit and fitness, to be
ascertained by competitive examinations, free to all, and that
promotions from lower to higher grades in the public service must
be made upon the basis of merit.' People v. Kipley, 171 Ill. 44-93,
49 N.E. 229. The validity of the enactment in question was
considered by that court with reference only to the state
constitution.
Page 170 U.S.
182, 189
In respect of the motion to discharge the rule and all
proceedings against the respondents, it need only be said that it
could have been denied upon the ground that the questions sought to
be raised by it might more properly arise upon demurrer, plea, or
answer. Its denial did not have the effect to bring any federal
question into the record to be determined. It may also be observed
that no exception was taken to the action of the state court in
relation to this motion.
This court having no jurisdiction to reexamine the final
judgments of the state court in these cases, the motion to dismiss
the writs of error is sustained.
Dismissed.
Mr. Justice WHITE dissents.