By the Constitution and laws of Kentucky, the determination of
contests of the election of Governor and Lieutenant Governor is,
and for a hundred years has been, committed to the General Assembly
of that Commonwealth.
The Court of Appeals of Kentucky decided that the courts had no
power to go behind the determination of the General Assembly in
such a contest, duly recorded in the journals thereof; that the
office of Governor or of Lieutenant Governor was not property in
itself, and, moreover, that, under the constitution and laws of
Kentucky, such determination being an authorized mode of
ascertaining the result of an election for Governor and Lieutenant
Governor, the persons declared elected to those offices on the face
of the returns by the Board of Canvassers only provisionally
occupied them because subject to the final determination of the
General Assembly on contests duly initiated.
Held:
(1) That the judgment of the Court of Appeals to the effect that
it was not empowered to revise the determination by the General
Assembly adverse to plaintiffs in error in the matter of election
to these offices was not a decision against a title, right,
privilege or immunity secured by the Constitution of the United
States, and plaintiffs in error could not invoke jurisdiction
because of deprivation, under the circumstances, of property or
vested rights, without due process of law.
Page 178 U. S. 549
(2) That the guarantee by the federal Constitution to each of
the states of a republican form of government was entrusted for its
enforcement to the political department, and could not be availed
of, in connection with the Fourteenth Amendment, to give this Court
jurisdiction to revise the judgment of the highest court of the
state that it could not review the determination of a contested
election of Governor and Lieutenant Governor by the tribunal to
which that determination was exclusively committed by the state
constitution and laws, on the ground of deprivation of rights
secured by the Constitution of the United States.
This was an action in the nature of
quo warranto
brought, under the statutes of Kentucky, by J. C. W. Beckham
against William S. Taylor and John Marshall, for usurpation of the
offices of governor and Lieutenant Governor of Kentucky, in the
Circuit Court of Jefferson County in that commonwealth.
The petition averred that at a general election held on the 7th
of November, 1899, in the Commonwealth of Kentucky, William Goebel
was the Democratic candidate for Governor and J. C. W. Beckham was
the Democratic candidate for Lieutenant Governor, and that at said
election, William S. Taylor and John Marshall were the Republican
candidates for the said offices, respectively; that, after said
election, the state Board of election commissioners, whose duty it
was to canvass the returns thereof, canvassed the same and
determined on the face of the returns that said Taylor and said
Marshall were elected Governor and Lieutenant Governor,
respectively, for the term commencing December 12, 1899, and
accordingly awarded them certificates to that effect, whereupon
they were inducted into those offices.
The petition further alleged that, within the time allowed by
law, said William Goebel and J. C. W. Beckham gave written notices
to Taylor and Marshall that they would each contest the said
election on numerous grounds set out at large in the respective
notices; that said notices of contest were duly served on said
Taylor and Marshall, filed before each house of the General
Assembly, and entered at large on the journals thereof; that
thereafter Boards of contests were duly selected by each house of
the General Assembly, and sworn to try said contests as required by
law; that at the time appointed for
Page 178 U. S. 550
the hearing, the said Taylor and Marshall appeared, and each
filed defenses and counternotices, and the evidence of contestants
and contestees was heard by the Boards from January 15, 1900, until
January 29, 1900, inclusive, and upon January 30, 1900, said
contests were submitted without argument to the Boards for
decision.
That thereafter, the Boards, having considered the matters of
law and fact involved in the contests, did each separately decide
the contest submitted to it, and made out in writing its decision,
and reported the same to each house of the General Assembly for
action thereon.
That in the contest for Governor, the Board determined, and so
reported to each house of the General Assembly, that William Goebel
had received the highest number of legal votes cast for Governor at
the election held on November 7, 1899, and that he was duly elected
Governor for the term beginning December 12, 1899, and that in the
contest for Lieutenant Governor, the Board determined and so
reported that the contestant Beckham had received the highest
number of legal votes cast at said election, and was duly elected
to the office of Lieutenant Governor for said term.
The petition also alleged that the reports and decisions of the
Contest Boards were thereafter duly adopted and approved by both
houses of the General Assembly in separate and in joint sessions;
that there were present in the house of representatives at said
time 56 members and in the senate 19 members, which was a quorum of
each house, and that there were present 75 members in joint
session, and that the General Assembly did then and there decide
and declare that William Goebel and J. C. W. Beckham had each
received the highest number of legal votes cast at said election
for the offices of, and were duly elected, Governor and Lieutenant
Governor as aforesaid. The journals of both houses of the General
Assembly showing the proceedings and facts aforesaid were referred
to and made part of the petition, and attested copies thereof filed
therewith.
It was further averred that, after the determination of said
contest by the General Assembly, the said William Goebel and
Page 178 U. S. 551
J. C. W. Beckham were duly sworn and inducted into the offices
of Governor and Lieutenant Governor of the commonwealth and at once
entered upon the discharge of their respective duties. That
thereafter, on the third of February, 1900, William Goebel died,
and by law said Beckham was required to discharge the duties of the
office of Governor, and accordingly on that day he took the oath
prescribed by law, and immediately entered on the discharge of the
duties of said office.
It was further alleged that the powers of Taylor as Governor and
of Marshall as Lieutenant Governor immediately ceased on the
determination of the contest by the General Assembly, but that,
notwithstanding the premises, the said Taylor and Marshall had
usurped the said offices of Governor and Lieutenant Governor, and
had refused to surrender the records, archives, journals, and
papers pertaining to the office of Governor, and the possession of
the executive offices in the capitol in the City of Frankfort.
The prayer of the petition was
"that the defendant, William S. Taylor, be adjudged to have
usurped the office of Governor of this commonwealth, and that he be
deprived thereof by the judgment of this court; that this plaintiff
be adjudged entitled to the said office and be placed in full
possession of said office of Governor, the executive offices
provided by the commonwealth for the use of the Governor, and that
all the records, archives, books, papers, journals, and all other
things pertaining to the said office be surrendered and delivered
to this plaintiff by the said Taylor, and that the said Taylor be
enjoined and restrained from further exercising or attempting to
exercise the office of Governor of this commonwealth; that the said
John Marshall be adjudged to have usurped the office of Lieutenant
Governor of the commonwealth, and that he be deprived thereof, and
declared not entitled to the same by the judgment of this Court,
and enjoined from assuming to act as such Lieutenant Governor; that
plaintiff, Beckham, be adjudged the lawful incumbent of said
office; and, finally, the plaintiff prays for his costs in this
behalf expended, and for all proper relief."
Defendants Taylor and Marshall filed answers and amended
Page 178 U. S. 552
answers and counterclaims, denying any valid proceedings in
contest, and alleging in substance that the action of the Boards of
contests and of the General Assembly in the contests was the result
of a conspiracy entered into by the members of the Boards and the
members of the General Assembly to wrongfully and unlawfully
deprive contestees of their offices; that in the execution of this
design, the members of said Boards were fraudulently selected, and
not fairly drawn by lot, as required by law, and that a majority of
those selected were persons whose political beliefs and feelings,
inclinations, and desires on the subject of the contests were known
in advance. That the entries on the journals of the General
Assembly were false and fraudulent and made in pursuance of said
conspiracy, and that the pretended decisions were fraudulent and
utterly void. That the senate lacked a quorum at the time of the
pretended adoption of the Contest Boards' reports, and that
defendant, Taylor, as Governor, on January 31, 1900, refused to
permit the members of the General Assembly to meet as the General
Assembly at Frankfort because he had previously adjourned the
General Assembly to meet on February 6 at London, in Laurel
County.
The notices of contest were averred to have been exactly alike,
mutatis mutandis, and the notice in respect of the office
of Governor was set out as given in the margin. [
Footnote 1]
Page 178 U. S. 553
The following are paragraphs from the answers and amended
answers:
Page 178 U. S. 554
"Further answering herein, defendants, W. S. Taylor and John
Marshall, say, each of them is over forty years of age,
Page 178 U. S. 555
has been a citizen and resident of the State of Kentucky all his
life, and likewise a citizen and resident of the United States all
his life. They say further that, as hereinafter more
specifically
Page 178 U. S. 556
stated, the said Taylor was, on November 7th, 1899, duly elected
Governor of the State of Kentucky, and the said Marshall duly
elected Lieutenant Governor for the State of Kentucky, by the
qualified voters thereof; that each of them afterwards received
Page 178 U. S. 557
in due form a certificate to that effect from the State Board of
Election Commissioners of the Commonwealth of Kentucky, and each of
them thereafter duly qualified as such officers by taking the oath
of office prescribed by law therefor, and thereby each of them
became charged with an express public trust for the benefit of the
people of the State of Kentucky. They say that the proceedings
referred to in the petition herein, by which it is alleged that the
contests over the offices of Governor and Lieutenant Governor were
tried and determined, and by which it is alleged that the authority
of these defendants to act respectively as Governor and Lieutenant
Governor was terminated, were and are utterly void and of no effect
for the reasons hereinafter stated, and if effect be given to them,
and these defendants be thereby deprived of their respective
offices of Governor and Lieutenant Governor of Kentucky, and
plaintiff, Beckham, be thereby installed in the office of Governor
or Lieutenant Governor of Kentucky, these defendants will be
thereby deprived by the State of Kentucky of their property without
due process of law, and both they and the people of Kentucky and
the qualified voters thereof will be deprived of their liberty
without due process of law, and will be denied the benefit of a
republican form of government, all of which is contrary to the
provisions of the fourth section of the fourth article of the said
Constitution and to the Fourteenth Amendment to said Constitution,
the benefits of which provisions are hereby specially set up and
claimed by these defendants both for themselves and for the people
of Kentucky and the qualified voters thereof whose representatives
and trustees these defendants are."
"
* * * *"
"Defendants further say that, if the state, after having
furnished to its citizens and electors in a number of its counties
official ballots upon which it required them to vote, or not
vote
Page 178 U. S. 558
at all, in the election of a Governor and Lieutenant Governor,
shall reject their votes, and thus refuse to allow them to
participate in the election of such officers merely because they
used in voting the ballots which the state required them to use,
and if the state shall, thereby and on that account refuse to allow
the persons respectively chosen for the office of Governor and
Lieutenant Governor by the majority of the qualified voters of the
state, including those using the ballots aforesaid, to take their
seats and perform the duties of Governor and Lieutenant Governor,
and shall in lieu of them seat other persons, then the state will
thereby deprive the said citizens and electors, all of whom are
both citizens of Kentucky and citizens of the United States, of
their political liberty without due process of law, in violation of
the Constitution of the United States, and will thereby deny to
them the benefits of a republican form of government in violation
of the Constitution of the United States, and will thereby also
deprive these defendants of their property without due process of
law, all of which is contrary to the provisions of the Constitution
of the United States."
"
* * * *"
"And defendants further say that if any such pretended meeting
of members of the General Assembly was held either on January 31 or
February 2 at which any action was taken or attempted to be taken
on the reports of said contest committees, the said meetings were
held secretly, without any notice to any of the Republican members
of the General Assembly and without any notice to either of these
defendants that such meeting was to be held, and without any
opportunity either to the said Republican members or any of them to
be present, or any opportunity for either of these defendants to be
present at such meetings at which the said contests were to be
heard and determined. And if any such meetings were held or
attempted to be held on either of those days, and any determination
of either of said contests was pretended to have been had, it was
utterly void on account of lack of notice and opportunity to be
present or to be heard as just herein stated, as well as for the
other reasons heretofore given. And to deprive these defendants or
either of them of their offices by such action would
Page 178 U. S. 559
be to deprive them of their property without due process of law,
and would be to deprive defendants and the other people of the
State of Kentucky, and especially the qualified voters thereof, of
their political liberty without due process of law, and to deny to
them the benefits of a republican form of government. All of which
is contrary to the provisions and guaranties of the Constitution of
the United States as well as that of Kentucky."
"
* * * *"
"Defendants further say that both the offices of Governor and
Lieutenant Governor are offices created by the Constitution of
Kentucky, and therefore not subject to abolition by the General
Assembly of Kentucky. And furthermore it is provided by the
Constitution of Kentucky that 'the salaries of public officers
shall not be changed during the term or which they were elected,'
and defendants say they were elected, as heretofore shown, to the
offices of Governor and Lieutenant Governor, respectively, of the
State of Kentucky on November 7, 1899, for a period of four years
each, and then and thereby became entitled to exercise the
functions of said offices and to receive the salaries and
emoluments appertaining thereto, which are large and valuable, and
were such when they were thus elected, the salary of the Governor
being then and now fixed by law at $6,500 per annum, and to take
from them their said offices and their said salaries and emoluments
by the aforesaid action of said contest tribunals would be to
deprive them of their property without due process of law, contrary
to the provisions of the Constitution of the United States, and
especially of the Fourteenth Amendment thereof."
"
* * * *"
"Defendants say that the power vested in the houses of the
General Assembly of Kentucky to try contests over elections of
Governor or Lieutenant Governor is judicial in its nature, and is
subject to the same limitations and restrictions to which the
exercise of judicial power is ordinarily subject; that, by the
Constitution of the State of Kentucky and also by the Constitution
of the United States, especially the Fifth and Fourteenth
Amendments thereof, the exercise of absolute and arbitrary
Page 178 U. S. 560
power by the state or any department thereof, whereby any person
shall be deprived of life, liberty, property, or the pursuit of
happiness, including therein the enjoyment of honors and the
occupation of positions of public trust and emolument, is
forbidden. But defendants say that if effect be given to the
alleged decisions by the said boards of contest or the said houses
of the General Assembly as to the said contested elections for
Governor or Lieutenant Governor, and these defendants be thereby
deprived of the offices of Governor or Lieutenant Governor, and the
plaintiff Beckham be thereby vested with the power of Governor of
Kentucky, then not only will the people of Kentucky be deprived of
their political liberty without due process of law, but these
defendants will also be deprived, without due process of law, of
the right to hold the said offices of Governor and Lieutenant
Governor, which are both profitable and honorable, all of which is
contrary to and forbidden by both the provisions of the state
constitution and of the Constitution of the United States above
referred to, and defendants say that if, by a proper construction
of the Constitution of Kentucky, the absolute and arbitrary power
is given either to the boards of contest or the houses of the
General Assembly to take from these defendants the offices of
honor, trust, and emolument to which they were elected by the
people of the state as heretofore alleged, under the false guise of
a trial of a contest over said offices, then the said constitution
of the state is itself contrary to the aforesaid provisions of the
Constitution of the United States."
The prayer of the defendants was that the bill be dismissed,
that J. C. W. Beckham be adjudged a usurper, and that William S.
Taylor and John Marshall be respectively adjudged the Governor and
Lieutenant Governor of the commonwealth.
The answers were in large part disposed of on demurrer and
motion to strike out, and the case was submitted to the circuit
court for determination on the law and facts without the
intervention of a jury, and defendants "moved the court to state in
writing the conclusions of fact found separately from the
conclusions of law," but it was agreed that the court might adopt
its opinion on demurrer as its statement of its conclusions
Page 178 U. S. 561
of law. This the court did, and found the facts in its judgment,
which findings included, among others, these:
"Second. William Goebel and J. C. W. Beckham inaugurated a
contest for the offices of Governor and Lieutenant Governor,
respectively, before the General Assembly of Kentucky on the second
day of January, 1900, against William S. Taylor and John Marshall,
and the said contest was finally determined by the General Assembly
on the second day of February, 1900, at which time it was adjudged
and determined by each house of said General Assembly, acting
separately and also in joint session, that the said William Goebel
was duly elected Governor of the Commonwealth of Kentucky for the
term beginning December 13, 1899, and was entitled to said office
of Governor, and it was then and there in like manner determined by
said General Assembly and by each house, acting separately and in
joint session, that the said J. C. W. Beckham was duly elected
Lieutenant Governor of said commonwealth for the same term."
"Third. Immediately after the said determination, the oath of
office of Governor as provided by law was administered to said
Goebel, February 2, 1900, and the oath of office as Lieutenant
Governor, as provided by law, was in like manner administered to J.
C. W. Beckham."
"Fourth. Said William Goebel died on the third day of February
at 6:45 P.M., and shortly thereafter upon said day J. C. W. Beckham
as Lieutenant Governor was sworn, as required by law, to discharge
the duties of the office of Governor of the commonwealth."
Judgment of ouster was rendered in favor of plaintiff and
against defendants.
The case was then carried on appeal to the Court of Appeals of
Kentucky and the judgment affirmed, 21 Ky.L.Rep. 1735, whereupon a
writ of error from this Court was allowed by the chief justice of
that court.
The journals of the two houses, attached to the petition as part
thereof, showed that the General Assembly convened on January 2,
1900, and that, on the third day after its organization, boards of
contest were appointed pursuant to the statute; that of February 2,
1900, the board in each of the contests reported
Page 178 U. S. 562
to the two houses that they had heard all the evidence offered
by the parties, and that William Goebel had received the highest
number of legal votes cast for Governor; that J. C. W. Beckham had
received the highest number of legal votes cast for Lieutenant
Governor, and that they were duly elected and entitled to those
offices. The journals further showed that, on the same day, both
houses, with a quorum present, approved and adopted, separately and
in joint session, the reports of the contest boards, and declared
that William Goebel and J. C. W. Beckham were duly elected Governor
and Lieutenant Governor, respectively.
It appeared that thereupon said Goebel and Beckham on that day,
February 2, took the oath of office; that, on January 30, William
Goebel was shot by an assassin, receiving a wound from which he
afterward died on February 3, and that, on January 31 defendant
Taylor as Governor issued a proclamation declaring that a State of
insurrection existed at Frankfort, Kentucky, adjourning the General
Assembly until February 6, and ordering it then to assemble at the
Town of London, in Laurel County.
The sessions of the General Assembly on February 2 were not held
at the state house, for the reason, as recited in the journals,
that it was occupied by a military force which would not allow the
General Assembly to meet there, and thereupon the General Assembly
met on that day in the Capitol Hotel, in the City of Frankfort. On
February 19 the General Assembly met at the state house, and the
senate on that day adopted the following resolution:
"Whereas, on the 31st day of January, 1900, the acting Governor
of the Commonwealth of Kentucky, by the use of armed force,
dispersed the General Assembly, and has until recently prevented
the senate and house from assembling at their regular rooms and
places of meeting; and,"
"Whereas the General Assembly and each house thereof, after
public notice, met in joint and separate sessions in the City of
Frankfort, a full quorum of such bodies being present, and adopted
the majority reports and resolutions of the Board of Contest for
Governor and Lieutenant Governor of the Commonwealth
Page 178 U. S. 563
of Kentucky, unseating the contestees, W. S. Taylor and John
Marshall, as Governor and Lieutenant Governor, and seating the
contestants, William Goebel and J. C. W. Beckham, as Governor and
Lieutenant Governor, respectively, all of which proceedings,
reports, and resolutions are set out in the journals of the two
houses of the General Assembly; and,"
"Whereas, this joint assembly is now enabled to meet in its
regular place of meeting, and, whilst it adheres to the belief
beyond doubt that the action of the General Assembly therefore
taken in reference to said contests is valid, final, and
conclusive, to remove any doubt that may exist in the minds of any
of the people of the commonwealth; now, be it"
"
Resolved By the General Assembly of the Commonwealth
of Kentucky, in joint session assembled, to the end that all doubt
may be removed, if any exists, as to the validity and regularity of
the action and proceedings at the times and places shown by the
journals of the two houses, other than its regular rooms provided
by law, that all the acts, proceedings, and resolutions of the
senate and house and of the joint assembly of the two houses upon
or touching the report of the majority of the Boards of Contest for
the offices of Governor and Lieutenant Governor, unseating the
contestees and seating William Goebel and J. C. W. Beckham and
declaring them to have been elected Governor and Lieutenant
Governor, respectively, on the 7th day of November, 1899, is hereby
reenacted, readopted, and reaffirmed and ratified at this, the
regular place of meeting provided by law at the seat of government
in Frankfort, Ky."
The same resolution was adopted by the house, and on February 20
by both houses in joint session.
The Court of Appeals regarded the disposal of the following
contentions of Taylor and Marshall as decisive of the case, namely:
(1) that the proceedings of the legislature of February 2 were void
because the legislature had then been adjourned by the Governor
until February 6, and no legal session could be held in the
meantime; (2) that William Goebel having died on February 3, the
contest for the office of Governor thereby abated, and the action
of the legislature on February 19 and 20 was therefore void; (3)
that the legislature
Page 178 U. S. 564
took no action on February 2, and that the journals of these
meetings were fraudulently made by the clerk in pursuance of an
alleged conspiracy between certain members of the assembly and
contestants; (4) that the General Assembly acted without evidence
and arbitrarily.
The Court of Appeals held that the Governor had no power to
adjourn the legislature, and that his attempt to do so was wholly
void, and did not interfere with the right of the legislature to
proceed with its sessions at Frankfort. The only authority relied
on to sustain his action was section 36 of the Constitution of
Kentucky, as follows:
"The first General Assembly, the members of which shall be
elected under this Constitution, shall meet on the first Tuesday
after the first Monday in January, 1894, and thereafter the General
Assembly shall meet on the same day every second year, and its
sessions shall be held at the seat of government, except in case of
war, insurrection, or pestilence, when it may, by proclamation of
the Governor, assemble, for the time being, elsewhere."
This, the court held, did not provide for the adjournment of the
General Assembly by the Governor after it had assembled, but for
the designation of another place at which it might assemble for the
time being and organize, when prevented by the causes named from
doing so at the capital, and that it was not intended to authorize
such action as was taken was clear from section 80, which provided,
among other things:
"In case of disagreement between the two houses with respect to
the time of adjournment, he [the Governor] may adjourn them to such
time as he shall think proper, not exceeding four months."
This showed that the Governor had no power over the time of
adjournment of the two houses except in cases of disagreement as to
that matter between them, and no such disagreement existed here.
And even then it did not confer upon him power to name any other
place than that in which the legislature might be sitting.
Section 41 also provided:
"Neither house, during the session of the General Assembly,
shall, without the consent of the other, adjourn for more than
three days, nor to any other place
Page 178 U. S. 565
than that in which it may be sitting."
By this section, either house might, with the consent of the
other, adjourn for more than three days, or to any other place than
that in which it was sitting, but it could not have been intended
that the Governor should have like power. On the contrary, the
powers of the state government were divided into three distinct and
independent departments, and the state constitution was intended to
maintain the absolute independence of each.
The court further decided that the death of William Goebel on
February 3 did not affect the right of Beckham. If Goebel was
elected Governor and Beckham Lieutenant Governor, Beckham on
February 3 became entitled to the office of Governor, and had the
right to continue the contest to secure what the Constitution
guaranteed him, so that, if the legislature had not acted until
February 19, it had a right then to act on the contest, and its
action would be nonetheless valid because not taken in Goebel's
lifetime.
As to the validity of the entries in the journals and the effect
to be given them, the court ruled, citing many authorities,
[
Footnote 2] that evidence
aliunde could not be received to impeach the validity of
the record prescribed by the constitution as evidence of the
proceedings of the General Assembly, and that the court was without
jurisdiction to go behind the record thereby made. Among other
things, the court said:
"There is no conflict between the action of the State Canvassing
Board and that of the legislature in these cases. The State
Canvassing Board were without power to go behind the returns. They
were not authorized to hear evidence and determine who was in truth
elected, but were required to give a certificate of election to
those who on the face of the returns had received the highest
number of votes. For the state board to have received evidence to
impeach the returns before them
Page 178 U. S. 566
would have been for them in effect to act as a Board for trying
a contested election, and if they had done this, they would have
usurped the power vested in the General Assembly by the
Constitution, for, by its express terms, only the General Assembly
can determine a contested election for Governor and Lieutenant
Governor."
"But the certificate of the State Board of Canvassers is no
evidence as to who was in truth elected. Their certificate entitles
the recipient to exercise the office until the regular
constitutional authority shall determine who is the
de
jure officer. The rights of the
de jure officer
attached when he was elected although the result was unknown until
it was declared by the proper constitutional authority. When it was
so declared, it was simply the ascertainment of a fact hitherto in
doubt or unsettled. The rights of the
de facto officer,
under his certificate from the Canvassing Board, were provisional
or temporary until the determination of the result of the election
as provided in the constitution, and upon that determination, if
adverse to him, they ceased altogether. Such a determination of the
result of the election by the proper tribunal did not take from him
any preexisting right; for if not in fact elected, he had only a
right to act until the result of the election could be
determined."
In respect of the allegation that the action of the General
Assembly was void because without evidence and arbitrary, the court
held that it must be presumed that the legislature did its duty in
the premises, and further that the objections that the notices of
contest were insufficient and that the evidence was equally
insufficient, that the Contest Boards were not fairly drawn by lot,
and that certain members of the Boards were liable to objection on
the ground of partiality were all in respect of matters confided to
the General Assembly to deal with as made by the constitution the
sole tribunal to determine such contests.
To the argument that if all the specifications of contestants
were true, the election was wholly void and no one elected, the
court replied that it had no means of knowing the grounds on which
the General Assembly reached its conclusion; that the
Page 178 U. S. 567
presumptions were in favor of their judgment, and that
"when they found as a fact that the contestants received the
highest number of legal votes cast in the election in controversy,
we are not at liberty to go behind their findings."
The court further held that the proceedings were not in
violation of the Fourteenth Amendment, and said:
"The office of Governor being created by the constitution of
this state, the instrument creating it might properly provide how
the officer was to be elected and how the result of this election
should be determined. The provisions of the constitution on this
subject do not abridge the privileges or immunities of citizens of
the United States. Such an office is not property, and in
determining merely the result of the election, according to its own
laws, the state deprives no one of life, liberty, or property. In
creating this office, the state had a right to provide such
agencies as it saw fit to determine the result of the election, and
it had a right to provide such a mode of procedure as it saw fit.
It is wholly matter of state policy. The people of the state might,
by an amendment to their constitution, abolish the office
altogether. The determination of the result of an election is
purely a political question, and if such suits as this may be
maintained, the greatest disorder will result in the public
business. It has always been the policy of our law to provide a
summary process for the settlement of such contests, to the end
that public business shall not be interrupted; but if such a suit
as this may be maintained, where will such a contest end?"
Of the seven members of the tribunal, Hazelrigg, C.J., Paynter,
Hobson, and White, JJ., concurred in the principal opinion by
Hobson, J., and Burnam and Guffy, JJ., in the result, in a separate
opinion by Burnam, J., on the ground
"that there is no power in the courts of the state to review the
finding of the General Assembly in a contested election for the
offices of Governor and Lieutenant Governor as shown by its duly
authenticated records."
Du Relle, J., dissented, holding that the boards of contest had
no jurisdiction in the matter which they undertook to try, and that
the demurrer should have been carried back to the petition and
sustained.
Page 178 U. S. 568
The present Constitution of the State of Kentucky of 1891
provides, section 90:
"Contested elections for Governor and Lieutenant Governor shall
be determined by both houses of the General Assembly according to
such regulations as may be established by law."
This was taken verbatim from the 24th section of article 3 of
the Constitution of 1850.
Section 27 of article 3 of the Constitution of 1799 provided:
"Contested elections for a Governor and Lieutenant Governor shall
be determined by a committee, to be selected from both houses of
the General Assembly, and formed and regulated in such manner as
shall be directed by law."
The statutes of Kentucky provide:
"SEC. 1535. No application to contest the election of an officer
shall be heard unless notice thereof, in writing, signed by the
party contesting, is given."
"1. The notice shall state the grounds of the contest, and none
other shall afterward be heard as coming from such party, but the
contestee may make defense without giving counternotice."
"2. In the case of an officer elective by the voters of the
whole state or any judicial district, the notice must be given
within thirty days after the final action of the Board of
Canvassers."
"
* * * *"
"
§ 1596 A . . ."
"8. CONTESTED ELECTION OF GOVERNOR AND LIEUTENANT GOVERNOR. When
the election of a Governor or Lieutenant Governor is contested, a
Board for determining the contest shall be formed in the manner
following:"
"First. On the third day after the organization of the General
Assembly which meets next after the election, the senate shall
select by lot three of its members, and the house of
representatives shall select by lot eight of its members, and the
eleven so selected shall constitute a board, seven of whom shall
have power to act."
"Second. In making the selection by lot, the name of each member
present shall be written on a separate piece of paper, every such
piece being as nearly similar to the other as may be.
Page 178 U. S. 569
Each piece shall be rolled up so that the name thereon cannot be
seen, nor any particular piece be ascertained or selected by
feeling. The whole so prepared shall be placed by the clerk in a
box on his table, and after it has been well shaken up and the
papers therein well intermixed, the clerk shall draw out one paper,
which shall be opened and read aloud by the presiding officer, and
so on until the required number is obtained. The persons whose
names are so drawn shall be members of the Board."
"Third. The members of the Board so chosen by the two houses
shall be sworn by the Speaker of the House of Representatives to
try the contested election, and give true judgment thereon,
according to the evidence unless dissolved before rendering
judgment."
"Fourth. The Board shall, within twenty-four hours after its
election, meet, appoint its chairman, and assign a day for hearing
the contest, and adjourn from day to day as its business may
require."
"Fifth. If any person so selected shall swear that he cannot,
without great personal inconvenience, serve on the Board, or that
he feels an undue bias for or against either of the parties, he may
be excused by the house from which he was chosen from serving on
the Board, and if it appears that the person so selected is related
to either party, or is liable to any other proper objection on the
score of its partiality, he shall be excused."
"Sixth. Any deficiency in the proper number so created shall be
supplied by another draw from the box."
"Seventh. The Board shall have power to send for persons,
papers, and records, to issue attachments therefor signed by its
chairman or clerk, and issue commissions for taking proof."
"Eighth. Where it shall appear that the candidates receiving the
highest number of votes given have received an equal number, the
right to the office shall be determined by lot under the direction
of the Board. Where the person returned is found not to have been
legally qualified to receive the office at the time of his
election, a new election shall be ordered to fill the vacancy;
Provided, the first two years of his term shall not have
expired. Where another than the person returned shall be found to
have received the highest number of legal votes given,
Page 178 U. S. 570
such other shall be adjudged to be the person elected and
entitled to the office."
"Ninth. No decision shall be made but by the vote of six
members. The decision of the Board shall not be final nor
conclusive. Such decision shall be reported to the two houses of
the General Assembly, for the future action of the General
Assembly. And the General Assembly shall then determine such
contest."
"Tenth. If a new election is required, it shall be immediately
ordered by proclamation of the Speaker of the House of
Representatives to take place within six weeks thereafter, and on a
day not sooner than thirty days thereafter."
"Eleventh. When a new election is ordered or the incumbent
adjudged not to be entitled, his powers shall immediately cease,
and, if the office is not adjudged to another, it shall be deemed
to be vacant."
"Twelfth. If any member of the Board willfully fails to attend
its sessions, he shall be reported to the house to which he
belongs, and thereupon such house shall, in its discretion, punish
him by fine or imprisonment or both."
"Thirteenth. If no decision of the Board is given during the
then session of the General Assembly, it shall be dissolved unless
by joint resolution of the two houses it is empowered to continue
longer."
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
It is obviously essential to the independence of the states, and
to their peace and tranquillity, that their power to prescribe the
qualifications of their own officers, the tenure of their
offices,
Page 178 U. S. 571
the manner of their election, and the grounds on which, the
tribunals before which, and the mode in which such elections may be
contested should be exclusive and free from external interference
except so far as plainly provided by the Constitution of the United
States.
And where controversies over the election of state officers have
reached the state courts in the manner provided by, and been there
determined in accordance with, the state constitutions and laws,
the cases must necessarily be rare in which the interference of
this Court can properly be invoked.
In
Boyd v. Thayer, 143 U. S. 135,
which was a proceeding in
quo warranto in which the
Supreme Court of Nebraska had held that James E. Boyd had not been
for two years preceding his election a citizen of the United
States, and hence that, under the constitution of the state, he was
not eligible to the office of Governor, this Court took
jurisdiction because the conclusion of the state court involved the
denial of a right or privilege under the Constitution and laws of
the United States, upon which the determination of whether Boyd was
a citizen of the United States or not depended, and therefore
jurisdiction to review a decision against such right or privilege
necessarily existed in this tribunal.
Missouri v.
Andriano, 138 U. S. 496. And
we said:
"Each state has the power to prescribe the qualifications of its
officers and the manner in which they shall be chosen and the title
to offices shall be tried, whether in the judicial courts or
otherwise. But when the trial is in the courts, it is a 'case,' and
if a defense is interposed under the Constitution or laws of the
United States and is overruled, then, as in any other case decided
by the highest court of a state, this Court has jurisdiction by
writ of error."
So in
Kennard v. Louisiana, 92 U. S.
480, concerning the right of Kennard to the office of
Associate Justice of the Supreme Court of Louisiana, jurisdiction
was taken on the ground that the constitutionality of the statute
under which the disputed title to office was tried was drawn in
question. The court, speaking by MR. Chief Justice Waite, said:
"The question before us is not whether the courts below, having
jurisdiction of the case and the parties, have followed the law,
but whether
Page 178 U. S. 572
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."
The writ in
Foster v. Kansas, 112 U.
S. 201, rested on the same ground.
In each of the foregoing cases, the determination of the right
to the offices in dispute was reposed in the judicial courts, and
no question was expressly considered by this Court as to whether
the right to a public office of a state was or was not protected by
the Fourteenth Amendment.
In
Wilson v. North Carolina, 169 U.
S. 58, the Governor of North Carolina had suspended
plaintiff in error as railroad commissioner under a statute of that
state, and the state supreme court had held the action of the
Governor a valid exercise of the power conferred upon him, and that
it was due process of law within the meaning of the Constitution. A
writ of error from this Court to review that judgment was granted,
and on hearing was dismissed. MR. JUSTICE PECKHAM, in delivering
the opinion, said:
"The controversy relates exclusively to the title to a state
office, created by a statute of the state, and to the rights of one
who was elected to the office so created. Those rights are to be
measured by the statute and by the Constitution of the state,
excepting insofar as they may be protected by any provision of the
federal Constitution. Authorities are not required to support the
general proposition that, in the consideration of the Constitution
or laws of a state, this Court follows the construction given to
those instruments by the highest court of the state. The exceptions
to this rule do not embrace the case now before us. We are
therefore concluded by the decision of the Supreme Court of North
Carolina as to the proper construction of the statute itself, and
that as construed it does not violate the Constitution of the
state. The only question for us to review is whether the state,
through the action of its Governor and judiciary, has deprived the
plaintiff in error of his property without due process of law or
denied to him the equal protection of the laws. We are of
opinion
Page 178 U. S. 573
that the plaintiff in error was not deprived of any right
guaranteed to him by the federal Constitution by reason of the
proceedings before the Governor under the statute above mentioned,
and resulting in his suspension from office. The procedure was in
accordance with the constitution and laws of the state. It was
taken under a valid statute creating a state office in a
constitutional manner, as the state court has held. What kind and
how much of a hearing the officer should have before suspension by
the Governor was a matter for the state legislature to determine,
having regard to the constitution of the state. The procedure
provided by a valid state law for the purpose of changing the
incumbent of a state 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 the policy of the
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. . . . In its internal
administration, the state (so far as concerns the federal
government) has entire freedom of choice as to the creation of an
office for purely state purposes, and of the terms upon which it
shall be held by the persons filling the office. And in such
matters, the decision of the state court that the procedure by
which an officer has been suspended or removed from office was
regular and was under a constitutional and valid statute must
generally be conclusive in this Court. . . . Upon the case made by
the plaintiff in error, the federal question which he attempts to
raise is so unfounded in substance that we are justified in saying
that it does not really exist; that there is no fair color for
claiming that his rights under the federal Constitution have been
violated, either by depriving him of his property without due
process of law or by denying him the equal protection of the
laws."
The grounds on which our jurisdiction is sought to be maintained
in the present case are set forth in the errors assigned, to the
effect, in substance: (1) that the action of the General Assembly
in the matter of these contests deprived plaintiffs in
Page 178 U. S. 574
error of their offices without due process of law; (2) that the
action of the General Assembly deprived the people of Kentucky of
the right to choose their own representatives, secured by the
guarantee of the federal Constitution of a republican form of
government to every state, and deprived them of their political
liberty without due process of law.
For more than a hundred years, the Constitution of Kentucky has
provided that contested elections for Governor and Lieutenant
Governor shall be determined by the General Assembly. In 1799, by a
committee "to be selected from both houses of the General Assembly,
and formed and regulated in such manner as shall be directed by
law," since 1850, "by both houses of the General Assembly,
according to such regulations as may be established by law."
The highest court of the state has often held, and, in the
present case has again declared, that under these constitutional
provisions, the power of the General Assembly to determine the
result is exclusive, and that its decision is not open to judicial
review.
Batman v. Megowan, 1 Metc. 533;
Stine v.
Berry, 96 Ky. 63. [
Footnote
3]
The statute enacted for the purpose of carrying the provisions
of the Constitution into effect has been in existence in substance
since 1799, 1 Morehead and Brown 593-594; Rev.Stat. Ky. 1852, c.
32, art. 7, § 1, p. 294. Many of the states have similar
constitutional provisions and similar statutes.
We do not understand this statute to be assailed as in any
manner obnoxious to constitutional objection, but that plaintiffs
in error complain of the action of the General Assembly under the
statute and of the judgment of the state courts declining to
disturb that action.
It was earnestly pressed at the bar that all the proceedings
were void for want of jurisdiction apparent on the face of the
record; that, under the constitution and statute, as there was no
question of an equal number of votes or of the legal
Page 178 U. S. 575
qualifications of the candidates, the action of the General
Assembly could only be invoked by a contest as to which of the
parties had received the highest number of legal votes; but that
the notices put forward a case not of the election of the
contestants, but of no election at all, which the Contest Boards
and the General Assembly had no jurisdiction to deal with. The
notices were, however, exceedingly broad, and set up a variety of
grounds, and specifically stated that the contestants would ask the
Boards of Contest and the General Assembly to determine that they
were legally and rightfully elected Governor and Lieutenant
Governor at the said election, and that the contestees were not.
And the determination of the Boards and of the General Assembly was
that contestants had received the highest number of legal votes
cast for any candidate for said offices at said election, and were
duly and legally elected Governor and Lieutenant Governor -- a
determination which adjudged the notices to be sufficient, and
which did not include any matter not within the jurisdiction of the
tribunal.
We repeat, then, that 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 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 state 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.
Page 178 U. S. 576
The view that public office is not property has been generally
entertained in this country.
In
Butler v.
Pennsylvania, 10 How. 402,
51 U. S. 416,
Butler and others, by virtue of a statute of the State of
Pennsylvania, had been appointed canal commissioners for a term of
one year with a compensation of four dollars
per diem, but
during their incumbency another statute was passed whereby the
compensation was reduced to three dollars, and it was claimed that
their contract rights were thereby infringed. The Court drew a
distinction between such a situation and that of a contract by
which "perfect rights, certain definite, fixed private rights of
property, are vested," and said:
"These are clearly distinguishable from measures or engagements
adopted or undertaken by the body politic or state government for
the benefit of all, and from the necessity of the case, and
according to universal understanding, to be varied or discontinued
as the public good shall require. The selection of officers, who
are nothing more than agents for the effectuating of such public
purposes, is matter of public convenience or necessity, and so too
are the periods for the appointment of such agents, but neither the
one nor the other of these arrangements can constitute any
obligation to continue such agents or to reappoint them after the
measures which brought them into being shall have been found
useless, shall have been fulfilled, or shall have been abrogated as
even detrimental to the wellbeing of the public. . . . It follows,
then, upon principle, that in every perfect or competent government
there must exist a general power to enact and to repeal laws and to
create and change or discontinue the agents designated for the
execution of those laws. Such a power is indispensable for the
preservation of the body politic and for the safety of the
individuals of the community. It is true that this power, or the
extent of its exercise, may be controlled by the higher organic law
or constitution of the state, as is the case in some instances in
the state constitutions."
In
Crenshaw v. United States, 134 U. S.
99,
134 U. S. 104,
Mr. Justice Lamar stated the primary question in the case to be
"whether an officer appointed for a definite time or during good
behavior had any vested interest or contract right in his office
of
Page 178 U. S. 577
which Congress could not deprive him."
And he said, speaking for the Court: "The question is not novel.
There seems to be but little difficulty in deciding that there was
no such interest or right."
Butler v. Pennsylvania, supra;
Newton v. Commissioners, 100 U. S. 548;
Blake v. United States, 106 U. S. 227,
and many other cases.
The decisions are numerous to the effect that public offices are
mere agencies or trusts, and not property as such. Nor are the
salary and emoluments property, secured by contract, but
compensation for services actually rendered. Nor does the fact that
a constitution may forbid the legislature from abolishing a public
office or diminishing the salary thereof during the term of the
incumbent change its character or make it property. True, the
restrictions limit the power of the legislature to deal with the
office, but even such restrictions may be removed by constitutional
amendment. In short, generally speaking, the nature of the relation
of a public officer to the public is inconsistent with either a
property or a contract right. [
Footnote 4]
The Court of Appeals not only held that the office of Governor
or of Lieutenant Governor was not property under the Constitution
of Kentucky; but, moreover, that court was of opinion that the
decision of these contested elections did not deprive plaintiffs in
error of any preexisting right.
Our system of elections was unknown to the common law, and the
whole subject is regulated by constitutions and statutes passed
thereunder. In the view of the Court of Appeals, the mode of
contesting elections was part of the machinery for ascertaining the
result of the election, and hence the rights of the officer who
held the certificate of the State Board of Canvassers
"were provisional or temporary until the determination of the
result of the election as provided in the Constitution,
Page 178 U. S. 578
and upon that determination, if adverse to him, they ceased
altogether."
In fact, the statute provided that when the "incumbent is
adjudged not to be entitled, his powers shall immediately cease,"
and under the constitution, the holder of the certificate
manifestly held it for the time being subject to the issue of a
contest if initiated.
It is clear 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.
But it is said that the Fourteenth Amendment must be read with
Section 4 of Article IV of the Constitution, providing that:
"The United States shall guarantee to every state in this Union
a republican form of government, and shall protect each of them
against invasion, and, on application of the legislature, or of the
executive (when the legislature cannot be convened), against
domestic violence."
It is argued that when the State of Kentucky entered the Union,
the people "surrendered their right of forcible revolution in state
affairs," and received in lieu thereof a distinct pledge to the
people of the state of the guaranty of a republican form of
government and of protection against invasion and against domestic
violence; that the distinguishing feature of that form of
government is the right of the people to choose their own officers
for governmental administration; that this was denied by the action
of the General Assembly in this instance; and in effect that this
Court has jurisdiction to enforce that guaranty, albeit the
judiciary of Kentucky was unable to do so because of the division
of the powers of government. And yet the writ before us was granted
under section 709 of the Revised Statutes to revise the judgment of
the state court on the ground that a constitutional right was
decided against by that court.
It was long ago settled that the enforcement of this guaranty
belonged to the political department.
Luther v.
Borden, 7 How. 1. In that case, it was held that
the question which of the two opposing governments of Rhode Island
-- namely, the charter government or the government established by
a
Page 178 U. S. 579
voluntary convention -- was the legitimate one was a question
for the determination of the political department, and when that
department had decided, the courts were bound to take notice of the
decision and follow it, and also that, as the Supreme Court of
Rhode Island, holding constitutional authority not in dispute, had
decided the point, the well settled rule applied that the courts of
the United States adopt and follow the decisions of the state
courts on questions which concern merely the constitution and laws
of the state.
We had occasion to refer to
Luther v. Borden in
In
re Duncan, 139 U. S. 449,
139 U. S. 461,
and we there observed:
"Mr. Webster's argument in that case took a wider sweep, and
contained a masterly statement of the American system of government
as recognizing that the people are the source of all political
power, but that, as the exercise of governmental powers immediately
by the people themselves is impracticable, they must be exercised
by representatives of the people; that the basis of representation
is suffrage; that the right of suffrage must be protected and its
exercise prescribed by previous law, and the results ascertained by
some certain rule; that, through its regulated exercise, each man's
power tells in the Constitution of the government and in the
enactment of laws; that the people limit themselves in regard to
the qualifications of electors and the qualifications of the
elected, and to certain forms for the conduct of elections; that
our liberty is the liberty secured by the regular action of popular
power, taking place and ascertained in accordance with legal and
authentic modes, and that the Constitution and laws do not proceed
on the ground of revolution or any right of revolution, but on the
idea of results achieved by orderly action under the authority of
existing governments, proceedings outside of which are not
contemplated by our institutions. Webster's Works, vol. 6, p. 217.
. . . The State of Texas is in full possession of its faculties as
a member of the Union, and its legislative, executive, and judicial
departments are peacefully operating by the orderly and settled
methods prescribed by its fundamental law. Whether certain statutes
have or have not binding force it is for the state to determine,
and that
Page 178 U. S. 580
determination, in itself, involves no infraction of the
Constitution of the United States, and raises no federal question
giving the courts of the United States jurisdiction."
These observations are applicable here. The Commonwealth of
Kentucky is in full possession of its faculties as a member of the
Union, and no exigency has arisen requiring the interference of the
general government to enforce the guaranties of the Constitution,
or to repel invasion, or to put down domestic violence. In the eye
of the Constitution, the legislative, executive, and judicial
departments of the state are peacefully operating by the orderly
and settled methods prescribed by its fundamental law,
notwithstanding there may be difficulties and disturbances arising
from the pendency and determination of these contests. This very
case shows that this is so, for those who assert that they were
aggrieved by the action of the General Assembly properly accepted
the only appropriate remedy which, under the law, was within the
reach of the parties. That this proved ineffectual as to them, even
though their grounds of complaint may have been in fact well
founded, was the result of the Constitution and laws under which
they lived and by which they were bound. Any remedy beside that is
to be found in the august tribunal of the people, which is
continually sitting, and over whose judgments on the conduct of
public functionaries the courts exercise no control.
We must decline to take jurisdiction on the ground of
deprivation of rights embraced by the Fourteenth Amendment, without
due process of law, or of the violation of the guaranty of a
republican form of government by reason of similar deprivation.
As remarked by Chief Justice Taney in
Luther v.
Borden:
"The high power has been conferred on this Court of passing
judgment upon the acts of the state sovereignties, and of the
legislative and executive branches of the federal government, and
of determining whether they are beyond the limits of power marked
out for them respectively by the Constitution of the United States.
This tribunal, therefore, should be the last to overstep the
boundaries which limit its own jurisdiction. And while it should
always be ready to meet any question confided
Page 178 U. S. 581
to it by the Constitution, it is equally its duty not to pass
beyond its appropriate sphere of action, and to take care not to
involve itself in discussions which properly belong to other
forums."
Writ of error dismissed.
[
Footnote 1]
"The contestee, William S. Taylor, is hereby notified that the
contestant, William Goebel, who was more than thirty years of age,
and has been a citizen and resident of Kentucky for more than six
years next preceding the 7th day of November, 1899, will contest
the election of the said William S. Taylor to the office of
Governor of this commonwealth, before the next General Assembly
thereof, to be convened as provided by law, in the City of
Frankfort, on the second day of January, 1900, and before the Board
of contest to be organized by the said General Assembly for the
purpose of determining the contest for Governor, and will then and
there contest the right of the said William S. Taylor to the office
of Governor of this commonwealth by virtue of the election held
herein on the 7th day of November, 1899, and the certificate of
election granted unto the said William S. Taylor by the State Board
of Election Commissioners on the 9th day of December, 1899, and
will ask the General Assembly and said Board of contest to
determine that the contestant, William Goebel, was legally and
rightfully elected Governor aforesaid at the said election, and
that William S. Taylor was not rightfully or legally elected to
said office, and said contestant will then and there ask the said
Board of contest and the General Assembly to take such proceedings
and orders in the matters of said contest as is required by law for
his induction into said office."
"For grounds of such contest, the contestant says:"
"In the election held in this Commonwealth on the 7th day of
November, 1899, for the office of Governor, the contestant, William
Goebel, was the Democratic candidate, and the contestee, William S.
Taylor, was the Republican candidate, for said office of Governor,
and were then and there voted for as such candidates, and at said
election held in the Counties of Knox, Jackson, Magoffin, Pike,
Martin, Johnson, Owsley, Lewis, Carter, Pulaski, Bell, Clinton,
Russell, Adair, Harlan, casey, Wayne, Whitley, Todd, Caldwell,
Crittenden, Perry, Muhlenburg, Monroe, Metcalf, Butler, Letcher,
Leslie, Lee, Laurel, Hart, Greenup, Grayson, Estill, Edmonson,
Cumberland, Clay, Breckenridge, Boyd, and Allen, and in each
precinct thereof, all of the official ballots used, in all of said
counties were printed upon paper so thin and transparent that the
printing and the stencil marks thereon made by the voters could be
distinguished from the back of said ballots; that none of the said
ballots used in said counties were printed upon plain white paper
sufficiently thick to prevent the printing from being distinguished
from the back of the said ballots, whereby the secrecy of the said
ballots were destroyed and the said election in all of the said
counties rendered void, and the printed vote thereon should not be
counted in ascertaining the result of the election in this
commonwealth."
"Second. That the said alleged election held in the County of
Jefferson and the City of Louisville on the 7th day of November,
1899, was and is void, because the contestant says that, upon that
day, before the said election, the Governor of the Commonwealth
unlawfully called the military forces of the state into active
service in said city, armed with rifles, bayonets, and gatling
guns, for the purposes of overawing, intimidating, and keeping
Democratic voters from the polls thereof, and did himself, in
violation of the law of the land, go to the said city and county
the day before said election, and assume direction and command of
the said military forces, and ordered and directed them to go, and
they did go in obedience to said order, to the polling places in
said city, on the said day of said election, and thereby many
thousand of voters, to-wit, more than enough to have changed the
result of the said election, were intimidated and alarmed, and
failed and refused to go to the polls or to vote on said day; that
for this cause the said election in the City of Louisville and
County of Jefferson was not free and equal, but is void, and the
said alleged votes cast thereat should not be counted."
"Third. The contestant says that, on the day of the said
election in the City of Louisville and County of Jefferson,
Sterling B. Toney, one of the circiut judges of the county and city
aforesaid, without authority of law, issued a mandatory injunction,
by which he required the legally appointed officers of the election
for the city and county aforesaid to admit in to the polling places
during said election many persons who were not authorized or
required by law to be in said polling places, and take part in said
election and the pretended count of ballots, and were kept and
maintained in the said places unlawfully and wrongfully by the said
officers of said judge and the military power of the state, under
the direct command of the Governor, by reason of which the votes
cast at said election were not fairly counted, but the result left
in doubt and uncertainty, and for this cause the said election was
void, and the alleged and pretended votes cast thereat in said city
should not be counted."
"Fourth. The said contestant says that at the said election held
as aforesaid, on the 7th day of November, 1899, in the County of
Jefferson and City of Louisville, and Warren, Hopkins, Christian,
Knox, Whitley, Pulaski, Bell, and divers other counties of this
commonwealth, that many thousands of the legal voters thereof,
to-wit, more than enough thereof to have changed the result of said
election, who were in the employment of the Louisville &
Nashville Railroad Company and other corporation, were intimidated
by the officers and superior employees of said company and
corporations by threats of less employment and discharge from the
service of the said company and corporations, and were thereby
forced and compelled to vote and did, for this cause, vote for the
contestee for the office of Governor, when in truth and in fact
they desired to vote for the contestant, and would have done so but
for such intimidation and duress. For this cause, the said election
held in said counties was and is void."
"Fifth. The contestant says that, before the said election on
November 7, 1899, the leaders of the Republican party in the
commonwealth corruptly and fraudulently entered into an agreement
and conspiracy with the said officers of the Louisville &
Nashville Railroad Company and the American Book Company and other
corporations and trusts, by which the said companies, corporations,
and trusts agreed to furnish large sums of money to be used in
defeating the contestant at said election by bribing and corrupting
the voters and election officers of this commonwealth and
debauching the public press thereof, and that in pursuance to the
said conspiricy, the said companies, corporations, and trusts did
furnish large sums of money, which were so corruptly and unlawfully
used in the Counties of Jefferson, Warren, Fayette, Breathitt,
Hopkins, Daviess, Logan, Todd, Henderson, Pulaski, Whitley, Knox,
Bell, Hardin, and divers other counties of the commonwealth, and by
which many thousands of the legal voters thereof were bribed and
corrupted and thereby cause to vote for contestee. Newspapers were
purchased and debauched and officers of said election bribed, and
the contestant deprived of many thousand votes which he would have
received but for the unlawful and corrupt conspiracy aforesaid,
which votes were sufficient to have elected him."
"Sixth. The contestant further says that in the Counties of Knox
and Lewis, the county boards of election officers, whose duty it
was, by law, to correctly certify the result of the election held
in their respective counties, were compelled by unlawful mandatory
injunctions issued by circuit judges and clerks to sign false
returns and certificates of said election giving to the contestee
large majorities of the votes cast in said counties, and in the
County of Knox the said Board was compelled by duress and open
threats of violence from a large body of armed citizens of said
county, assembled at the county seat, to sign false and fraudulent
certificates. In the County of Jefferson, the officers who held
said election at the voting places in the City of Louisville were
compelled to sign like false and fraudulent certificates of said
election, by duress and under threats of Sterling B. Toney, one of
the circuit judges of the commonwealth, who announced his purpose
to fine and imprison said officers if they did not sign said false
certificates. By reason of the duress aforesaid and the said
unlawful mandatory injunctions, the votes in the said counties and
all the precincts thereof were not correctly counted or certified,
and the said votes so certified should not now be counted in
determining the result of said election. All of said certificates
were signed and made under duress, and would not have been signed
but for the facts aforesaid."
"Seventh. The contestant says that, in pursuance to a conspiracy
of the leaders of the Republican Party in Kentucky, and the United
States Marshal for the District of Kentucky, to intimidate and
deter the Democrats and friends of contestant from voting for him,
said marshal and other officers and persons threatened to indict
many of contestant's supporters in the United States court for the
District of Kentucky for alleged violation of law in connection
with said election, and, in pursuance to said conspiracy, caused
their threats to be published in the daily press of the state and
in other forms, and upon the day of said election caused deputy
United States marshals to be and remain at the polling places in
the City of Louisville and in various other cities of the
commonwealth, intermeddling with the said election, overawing,
threatening, and intimidating Democratic voters and their friends
and supporters of the contestant, whereby many voters, to-wit, more
than enough to have changed the result of said election, were
prevented from voting for contestant, who otherwise would have done
so."
"Eighth. The contestant says that after said election and before
the meeting of the State Board of Election Commissioners in the
City of Frankfort, a conspiracy was formed and entered into by the
contestee, the Louisville & Nashville Railroad Company, John
Whallen, who was its paid agent, and other persons, whose names are
unknown to contestant, to bring from various sections of this
commonwealth large numbers of desperate armed men for the purpose
of alarming and intimidating the members of the said election board
in the discharge of their duties, and the friends and supporters of
said contestant, and that in pursuance to said conspiracy the
corporations and persons aforesaid did transport to the City of
Frankfort at said time a large number of the militia of the state,
dressed in citizens' clothing, and many hundreds of desperate armed
men, and unlawfully kept and maintained said militia and armed men
in and about the chamber and capitol where said election board held
its sessions for several days; for the unlawful purpose of alarming
and intimidating the members of said board and the good citizens of
the commonwealth, and the said corporation and persons also caused
the military forces of the commonwealth to be armed and equipped
and held in readiness and the stae arsenal to be guarded by armed
men for the unlawful purpose aforesaid, and Democratic members of
the military companies of the state militia to be disarmed and
discharged and their places to be filled with Republicans."
"Ninth. The contestant for further grounds of contest herein
says that in the County of Jefferson, the county board of election
officers, whose duty it was to ascertain and correctly certify the
result of said election held in said county, were compelled by
threats of violence and death to the two Democratic members of said
Board to accept, and said Board by reason of the duress aforesaid
did accept, false, fraudulent, and illegal returns from the various
precincts in the City of Louisville, which returns were prepared by
the attorneys and agents of the Republican Party, and were signed
by the precinct officers aforesaid under duress and threats of fine
and imprisonment, and said board of election officers, by reason of
the duress aforesaid, based upon their certificate as to the result
of said election in said county upon the said false, fraudulent,
and illegal returns made by the said precinct officers as
aforesaid, and for this cause the contestant was deprived of many
thousand votes cast for him at said election, and the contestee was
given many thousand illegal votes to which he was not entitled,
to-wit, more than enough to have changed the result of the said
election, and for this cause the said election was and is void, and
the alleged vote of Jefferson County as certified by said county
board should not be counted in ascertaining the result of said
election in this commonwealth."
"Tenth. The contestant further avers that many thousand of
persons who were not entitled to vote at the said election on
November 7, 1899, were unlawfully brought into this commonwealth by
the agents of the Louisville & Nashville Railroad Company and
others acting in contestee's behalf, and at said election were
wrongfully and unlawfully voted for the contestee in said election;
that the number of votes so cast were sufficient to have changed
the result of said election."
"The contestant will, upon the grounds aforesaid at the time and
place and before the tribunals stated, contest the election of said
William S. Taylor to the office of Governor of this
commonwealth."
[
Footnote 2]
Cooley on Const.Lim. (5th ed.) 222;
Wright v. Defreese,
8 Ind. 298;
McCulloch v. State, 11 Ind. 424;
State v.
Moffitt, 5 Ohio 358;
Wise v. Bigger, 79 Va. 269;
Sunbury & Erie Railroad Co. v. Cooper, 33 Pa. 283;
Fletcher v.
Peck, 6 Cranch 87;
Ex Parte
McCardle, 7 Wall. 506;
United States v. Des
MoinesCo., 142 U. S. 544;
United States v. Old Settlers, 148
U. S. 466.
[
Footnote 3]
And see State v. Marlow, 15 Ohio St. 115, 134;
State v. Harmon, 31 Ohio St. 250;
Commonwealth v.
Garrigues, 28 Pa. 9;
Commonwealth v. Leech, 44 Pa.
332;
Royce v. Goodwin, 22 Mich. 496;
Baxter v.
Brooks, 29 Ark. 173;
State v. Lewis, 51 Conn.
113.
[
Footnote 4]
Sweeny v. Poyntz, Cir.Ct.U.S.Dist.Ky., not yet
reported, Taft, J.;
Standeford v. Wingate, 2 Duv. 440,
443;
Conner v. Mayor, 5 N.Y. 285;
Donahue v. Will
County, 100 Ill. 94;
Attorney General v. Jochim, 99
Mich. 358;
Smith v. New York, 37 N.Y. 520;
State v.
Hawkins, 44 Ohio St. 98;
State v. Davis, 44 Mo. 129;
State v. Duvall, 26 Wis. 428;
Prince v. Skillin,
71 Me. 361;
Douglas County v. Timme, 32 Neb. 272;
Lynch v. Chase, 55 Kan. 367;
Shelby v. Alcorn, 36
Miss. 273.
MR. JUSTICE BREWER dissenting:
I am unable to concur in all that is said by THE CHIEF JUSTICE
in the opinion just announced, and will state briefly wherein I
dissent.
An office to which a salary is attached, in a case in which the
controversy is only as to which of two parties is entitled thereto,
has been adjudged by this Court, and rightfully, to be property
within the scope of that clause of the Fourteenth Amendment which
forbids a state to "deprive any person of life, liberty, or
property without due process of law." In
Kennard v.
Louisiana, 92 U. S. 480,
Kennard was appointed a justice of the Supreme Court of Louisiana.
Morgan claimed to be entitled thereto, and brought suit to settle
the title to the office. The supreme court of the state decided in
favor of Morgan, and Kennard sued out a writ of error from this
Court on the ground that the judgment had deprived him of his
office without due process of law in violation of the foregoing
provision of the Fourteenth Amendment. Of course neither life nor
liberty was involved, and the jurisdiction of this Court could be
sustained only on the ground that the property of Kennard was taken
from him, as alleged, without due process of law. This Court
unanimously sustained the jurisdiction, but, on examination of the
proceedings, found that there had been due process of law, and
therefore affirmed the judgment of the Supreme Court of Louisiana.
In
Foster v. Kansas, 112 U. S. 201, the
Supreme Court of Kansas had, in
quo warranto proceedings,
ousted Foster from the office of County Attorney of Saline County,
and there was presented a motion to dismiss as well
Page 178 U. S. 582
as one to affirm. This Court unanimously held that the motion to
dismiss must be overruled, saying (p.
112 U.S. 206):
"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."
At the same time, it affirmed the decision of the supreme court
of the state on the ground that the proceedings showed due process
of law. In
Boyd v. Thayer, 143 U.
S. 135, the Supreme Court of Nebraska had, in an
appropriate action, rendered judgment ousting Boyd from the office
of Governor of the state and placing Thayer in possession. On error
to this Court, we took jurisdiction of the case and reversed the
judgment of the Supreme Court of Nebraska, thus restoring Boyd to
the office from which he had been ousted by the judgment of that
court. In that case, there was a dissenting opinion by Mr. Justice
Field on the ground of jurisdiction, he saying (p.
143 U. S.
182):
"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."
In the late case of
Wilson v. North Carolina,
169 U. S. 586, in
which the judgment of the supreme court of the state confirming the
action of Governor in suspending a railroad commissioner was
sustained and the writ of error dismissed, the dismissal was not
placed on the ground that the office, with its salary, was not
property to be protected by the Fourteenth Amendment, but, as said
MR. JUSTICE PECKHAM, speaking for the Court (p.
169 U. S.
595):
"Upon the case made by the plaintiff in error, the federal
question which he attempts to raise is so unfounded in substance
that we are justified in saying that it does not really exist; that
there is no fair color for claiming that his rights under the
federal Constitution have been violated, either by depriving him of
his property without due process of law or by denying him the equal
protection of the laws."
We have thus, in four case, coming at successive times
through
Page 178 U. S. 583
a period of twenty-five years, had before us the question of the
validity of judgments of the highest courts of separate states
taking office from one person and giving it to another, in three of
which we unhesitatingly sustained our jurisdiction to review such
judgments, two of which we affirmed on the ground that the
proceedings in the state court disclosed due process of law, and
that therefore the rights of the plaintiff in error were not
infringed; in the third of which we held that the proceedings could
not be sustained, and reversed the judgment of the state court
ousting one person from the high office of Governor of the state
and giving it to another, and in the fourth of which, while we
dismissed the writ of error, it was not on the ground that there
was no property involved, but because the reasons assigned for a
review were so frivolous as not to call for consideration. Such a
series of decisions should not now be disturbed except upon very
cogent and satisfactory reasons. And this case, it must be borne in
mind, is exactly like the others -- a proceeding in error to review
the judgment of the highest court of a state in an action to remove
an incumbent from his office.
Aside from these adjudications, I am clear as a matter of
principle that an office to which a salary is attached is, as
between two contestants for such office, to be considered a matter
of property. I agree fully with those decisions which are referred
to and which hold that, as between the state and the officeholder,
there is no contract right either to the term of office or 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 in simply whether one
shall be deprived of that office and its salary, and both given to
another, a very 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.
While not concurring in the order of dismissal, I am of opinion
that the judgment of the Court of Appeals of Kentucky should be
affirmed. The State of Kentucky has provided that
Page 178 U. S. 584
contests in respect to the office of Governor and Lieutenant
Governor shall be decided by the General Assembly. Such provision
is not uncommon, is appropriate, and reasonable. The contestants,
William Goebel and J. C. W. Beckham, filed with the General
Assembly within due time their notices of contest. Those notices
were broad enough to justify action by the General Assembly and a
decision setting aside the award of the canvassing Board and giving
to the contestants their offices. The prescribed procedure was
followed, the committee authorized by statute was selected, its
report made, and upon that a decision awarding to the contestant
the offices. It is true that the first decision of the General
Assembly was made at a secret session outside its ordinary place of
meeting, and without notice except to those who were supposed to be
willing to concur in the report of the committee. If that ended the
proceedings, I should be strongly inclined to hold that the
decision thus rendered could not be sustained. For when a tribunal
is constituted of several members, I understand that all have a
right to be present, and if any session is held elsewhere than at
the appointed time and place, each one must be notified in order
that he may have the opportunity of being present and contributing
by his advice and opinion to the final judgment. But the record
does not stop with this award of a part of the assembly in secret
session, for subsequently, when the General Assembly was in session
at its regular place of meeting, in the discharge of its ordinary
duties, and at a time prescribed for its meeting, the action taken
on February 2 was ratified and confirmed, both in single and joint
session. Now I agree with those members of the Court of Appeals of
Kentucky who hold that this final action of the General Assembly is
conclusive. I do not ignore the many allegations of wrong, such as
that the selection of the committee was not by lot, as prescribed
by the laws, but was a trick on the part of the clerks of the
assembly, and it must be conceded that the outcome of that drawing
lends support to this allegation. Curious results sometimes happen
by chance, but when those results happen so largely along the lines
of the purposes of those who have control of the supposed chance,
it is not strange that outsiders are apt to feel that purpose, and
not
Page 178 U. S. 585
chance, determined the result. Be all these things as they may,
the General Assembly was constituted as the tribunal to conduct and
supervise the contest. It approved what took place, and it is
familiar law that no question can be raised in the courts as to the
honesty or integrity of the members of the legislature in the
discharge of their duties. Whatever of purity or honesty may be in
fact lacking in the conduct of any one of them is a matter to be
inquired into between his constituents and himself, and it is no
part of the province of the judiciary to challenge or question the
integrity of his action. So we have the case of a committee
apparently selected by lot, the propriety of whose action was
approved by the tribunal having charge of the controversy, the
report of that committee in favor of the contestants, and the
judgment of the assembly not merely at the secret session, but
later, when all were present or were called upon to be present,
approving such report. This, in my opinion, constitutes due process
of law within the meaning of the Fourteenth Amendment, and I agree
with the Court of Appeals of Kentucky that, upon that award thus
made by the proper tribunal, no other judgment can be entered than
that which sustains it. But 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.
MR. JUSTICE HARLAN, dissenting:
At the regular election held in Kentucky on the 7th day of
November, 1899, William S. Taylor and William Goebel were,
respectively, the Republican and Democratic candidates for Governor
of that commonwealth.
As required by law, the returns of the election were made to the
Secretary of State.
Upon examining and canvassing the returns, the officers charged
with the duty of ascertaining the result of the election
Page 178 U. S. 586
certified, as to the office of Governor, that Taylor
"received the highest number of votes given for that office as
certified to the Secretary of State, and is therefore duly and
regularly elected for the term prescribed by the constitution."
According to the returns upon which that certificate was based,
Taylor received 193,714 votes and Goebel 191,331.
It cannot be doubted that the certificate awarded to Taylor
established at least his
prima facie right to the
governorship, and that he could not be deprived of that right
except upon a contest in the mode prescribed by law and upon proof
showing that Goebel was legally entitled to the office. To deprive
him of that right illegally was an injury both to him and to the
people of the state. "The very essence of of civil liberty," it was
said in
Marbury v.
Madison, 1 Cranch 137, "is the right of every
individual to claim the protection of the laws whenever he receives
an injury."
The Constitution of Kentucky provides that the Governor
"shall be elected for the therm of four years by the qualified
voters of the state. The person having the highest number of votes
shall be Governor, but if two or more shall be equal and highest in
votes, the election shall be determined by lot in such manner as
the General Assembly may direct,"
and that the Governor "shall at stated times receive for his
services a compensation to be fixed by law." Const. Kentucky,
§§ 70, 74. That instrument further provides that
"contested elections for Governor and Lieutenant Governor shall
be determined by both houses of the General Assembly according to
such regulations as may be established by law."
§ 90.
Taylor, having received his certificate of election based upon
the returns to the Secretary of State, took the oath of office as
Governor on December 12, 1899 -- the oath being administered by the
Chief Justice of the Court of Appeals of Kentucky -- and entered at
once upon the discharge of his duties, taking possession of the
public buildings provided for the Governor, as well as of the
books, archives, and papers committed by law to the custody of that
officer. After that and until he was lawfully ousted, his acts as
Governor, in conformity to law, were binding upon every branch of
the state government and upon the people.
Page 178 U. S. 587
Within thirty days after the certificate of election was awarded
to Taylor, he was served by Goebel with notice of contest for the
office of Governor.
By the statutes of Kentucky relating to contested elections for
Governor and Lieutenant Governor, it is provided:
"When the election of a Governor or Lieutenant Governor is
contested a Board for determining the contest shall be formed in
the manner following:"
"First. On the third day after the organization of the General
Assembly which meets next after the election, the senate shall
select by lot three of its members, and the house of
representatives shall select by lot eight of its members, and the
eleven so selected shall constitute a Board, seven of whom shall
have power to act."
"Second. In making the selection by lot, the name of each member
present shall be written on a separate piece of paper, every such
piece being as nearly similar to the other as may be. Each piece
shall be rolled up so that the name thereon cannot be seen, nor any
particular piece be ascertained or selected by feeling. The whole
so prepared shall be placed by the clerk in a box on his table, and
after it has been well shaken and the papers therein well
intermixed, the clerk shall draw out one paper, which shall be
opened and read aloud by the presiding officer, and so on until the
required number is obtained. The persons whose names are so drawn
shall be members of the Board."
"Third. The members of the Board so chosen by the two houses
shall be sworn by the speaker of the house of representatives to
try the contested election, and give true judgment thereon,
according to the evidence, unless dissolved before rendering
judgment."
"Fourth. The Board shall, within twenty-four hours after its
election, meet, appoint its chairman, and assign a day for hearing
the contest, and adjourn from day to day as its business may
require."
"Fifth. If any person so selected shall swear that he cannot
without great personal inconvenience serve on the Board or that he
feels an undue bias for or against either of the parties,
Page 178 U. S. 588
he may be excused by the house from which he was chosen from
serving on the Board, and if it appears that the person so selected
is related to either party, or is liable to any other proper
objection on the score of his partiality, he shall be excused."
"Sixth. Any deficiency in the proper number so created shall be
supplied by another draw from the box."
"Seventh. The Board shall have power to send for persons,
papers, and records, to issue attachments therefor, signed by its
chairman or clerk, and issue commissions for taking proof."
"Eighth. Where it shall appear that the candidates receiving the
highest number of votes given have received an equal number, the
right to the office shall be determined by lot, under the direction
of the Board. Where the person returned is found not to have been
legally qualified to receive the office at the time of his
election, a new election shall be ordered to fill the vacancy:
Provided, The first two years of his term shall not have
expired. Where another than the person returned shall be found to
have received the highest number of legal votes given, such other
shall be adjudged to be the person elected and entitled to the
office."
"Ninth. No decision shall be made but by the vote of six
members. The decision of the Board shall not be final nor
conclusive. Such decision shall be reported to the two houses of
the General Assembly for the future action of the General Assembly.
And the General Assembly shall then determine such contest."
"Tenth. If a new election is required, it shall be immediately
ordered by proclamation of the Speaker of the House of
Representatives, to take place within six weeks thereafter, and on
a day not sooner than thirty days thereafter."
"Eleventh. When a new election is ordered or the incumbent
adjudged not to be entitled, his power shall immediately cease, and
if the office is not adjudged to another, it shall be deemed to be
vacant."
"Twelfth. If any member of the Board willfully fails to attend
its sessions, he shall be reported to the house to which he
belongs, and thereupon such house shall, in its discretion, punish
him by fine and imprisonment, or both. "
Page 178 U. S. 589
"Thirteenth. If no decision of the Board is given during the
then session of the General Assembly, it shall be dissolved unless
by joint resolution of the two houses it is empowered to continue
longer."
Rev.Stat.Kentucky, § 1596
A.
It may be here observed that the jurisdiction conferred by the
statute upon the Board of Contest appointed by the legislature is
not without limit. The power given to determine contested elections
for Governor and Lieutenant Governor is attended by the condition
that the determination of the contest shall be according to such
regulations as may be established by law. In words too clear to
require construction, the powers of a Board of Contest are
restricted so that (1) if the votes were not accurately summed up,
the error might be corrected; (2) if illegal votes were cast, they
might be thrown out; (3) in the event "the candidates receiving the
highest number of votes given have received an equal number, the
right to the office shall be determined by lot;" (4) if the person
returned as elected was not legally qualified to receive the office
at the time of the election, a new election must be ordered to fill
the vacancy; (5) if another than the person returned is found "to
have received the highest number of legal votes
given,
such other shall be adjudged to be the person elected and entitled
to the office." The statute has been so construed by the highest
court of Kentucky in
Leeman v. Hinton, 1 Duvall 38. That
was a common law action involving the title to an office. The
defendant relied upon the decision of a Board of Contest to the
effect that Leeman's claim to the office rested upon an election
held in each precinct under the supervision of military officers
who overawed the majority of the voters in the county. The Court of
Appeals of Kentucky decided in favor of Leeman, saying:
"But the authority to decide as to the freedom and equality of
elections has not been conferred by the legislature upon the Board
for trying contested elections, but forms a part of the general
jurisdiction of the circuit courts."
In the previous case of
Newcum v. Kirtley, 13 B. Mon.
522 -- which was a contested election case in which the Board
assumed to count votes
not cast, but which
would have
been cast if the polls had not been closed too soon -- the
court said that
"the necessary and certain import of
Page 178 U. S. 590
the provision is that the contestant shall not be adjudged to be
entitled to the office unless the Board find that he has
received the highest number of legal votes
given."
Let is also be observed that the Board of Contest in this case
was not given jurisdiction to throw out all the votes cast in a
particular city, county, or section of the state because, in its
judgment, the freedom of the election in such city, county, or
section was destroyed by military or other interference. In other
words, the Board was without jurisdiction to throw out legal votes
actually given, and was bound to respect the mandate of the
constitution that "the person
having the highest number of
votes
shall be Governor," as well as the mandate of the
statute that the person "found to have
received the
highest number of votes . . .
shall be adjudged to be the
person elected and entitled to the office."
I remark further that the members elected to try the contested
election were required by the statute "to give true judgment
according to the evidence."
As to the legislature, it was made its duty by express words to
determine the contest, without regarding the decision of the Board
as final or conclusive. But, as already suggested, its jurisdiction
to act was not without limit, for, in addition to the restriction
above referred to, by the statute under which it proceeded, no
application to contest the election of an officer could be heard
unless notice thereof in writing, signed by the party contesting,
had been given, and
"the notice shall state the grounds of the contest, and none
other shall afterward be heard as coming from such party, but the
contestee may make defense without giving counter notice."
Rev.Stat.Kentucky, § 1535. The Board of Contest, as the
court below has said, "was only a preliminary agent
to take
evidence and
report the
facts to the General
Assembly. The assembly itself finally determined the contest." As
the General Assembly could determine the contest only upon the
grounds set forth in the contestant's notice, it had no authority
or jurisdiction to oust the incumbent unless those grounds or some
of them were sustained by proof laid before it. If no proof was
laid before it, then the
prima facie right of the
incumbent, based upon the certificate awarded to him, must
prevail.
Page 178 U. S. 591
With these preliminary observations as to the trial by a Board
of Contest of a contested election for Governor and as to the
powers of the legislature in determining such contest finally as
between the parties, I come to the consideration of the grounds
upon which the majority of the Court have dismissed the present
writ of error.
The Board of Contest, in their report of January 30, 1900,
say:
"In our opinion, William Goebel was elected Governor of the
Commonwealth of Kentucky on the 7th day of November, 1899, and that
he then and there received the highest number of legal votes cast
for anyone for the office of Governor at said election, and we
therefore respectfully suggest that this report be approved, and a
resolution adopted by the General Assembly declaring the said
William Goebel Governor-elect of the Commonwealth of Kentucky for
the term commencing the 12th day of December, 1899. We decide that
said William Goebel has received the highest number of legal votes,
and is adjudged to be the person elected to said office of Governor
for the term prescribed by law."
The report was not accompanied either by any abstract of the
evidence or any recital of the grounds upon which it based the
statement that Goebel had received the highest number of legal
votes. Nor was the evidence itself transmitted to the legislature
-- not a line nor a word of it. According to the uncontradicted
statement made by counsel at the argument, the proof made nearly
two thousand pages of typewriting. The report simply followed the
words of the statute, and stated that Goebel had received "the
highest number of legal votes," giving no basis, not the slightest,
upon which the legislature could determine the correctness of that
statement.
Immediately after the Board's report reached the body claiming
to be the lawful legislature of the state, that body -- of course,
without reading the evidence or causing it to be read, for it had
no evidence before it -- approved the report and declared Goebel to
have been legally elected Governor. Upon that action alone the
present suit was based, and, by the judgment of the highest court
of Kentucky, such action was declared to be conclusive upon the
judiciary.
Page 178 U. S. 592
The first question to be considered is whether Taylor has been
denied by the judgment of the state court any right or privilege
secured to him by the Constitution of the United States. The
appellant invokes the clause of the Fourteenth Amendment declaring
that "no state shall deprive any person of life, liberty, or
property, without due process of law." There ought not at this day
to be any doubt as to the objects which were intended to be
attained by the requirement of due process of law. "They were
intended," this Court has said,
"to secure the individual from the arbitrary exercise of the
powers of government, unrestrained by the established principles of
private rights and distributive justice."
Bank of Columbia v.
Okely, 4 Wheat. 244.
The majority of this Court decide that an office held under the
authority of a state cannot in any case be deemed property within
the meaning of the Fourteenth Amendment, and hence, it is now
adjudged, the action of a state legislature or state tribunal
depriving one of a state office -- under whatever circumstances or
by whatever mode that result is accomplished -- cannot be regarded
as inconsistent with the Constitution of the United States. Upon
that ground, the Court declines to take jurisdiction of this writ
of error. If the Court had dismissed the writ or affirmed the
judgment upon the ground that there had been no violation of the
principles constituting due process of law, its action would not
have been followed by the evil results which, I think, must
inevitably follow from the decision now rendered.
Let us see whether, in dismissing the writ of error for want of
jurisdiction, the majority have not departed from the rulings of
this Court in former cases. This question, it cannot be doubted, is
one of serious moment. But what was said by Chief Justice Marshall,
speaking for this Court in
Cohen v.
Virginia, 6 Wheat. 404, may well be repeated:
"It is most true that this Court will not take jurisdiction if
it should not; but it is equally true that it must take
jurisdiction if it should. The judiciary cannot, as the legislature
may, avoid a measure because it approaches the confines of the
Constitution. We cannot pass it by because it is doubtful. With
whatever
Page 178 U. S. 593
doubts, with whatever difficulties, a case may be attended, we
must decide it if it be brought before us. We have no more right to
decline the exercise of jurisdiction which is given than to usurp
that which is not given. The one or the other would be treason to
the Constitution. Questions may occur which we would gladly avoid,
but we cannot avoid them."
The first case in this Court relating to this subject is
Kennard v. Louisiana, 92 U. S. 480. That
was a writ of error brought by Kennard to review the final judgment
of the Supreme Court of Louisiana declaring that he was not a
member of that court. "The case," the report states,
"was then brought here
upon the ground that the State
of Louisiana, acting under this law through her judiciary, had
deprived Kennard of his office without due process of law in
violation of that provision of the Fourteenth Amendment of the
Constitution of the United States which prohibits any state from
depriving any person of life, liberty, or property 'without due
process of law.'"
Looking also into the printed arguments filed in that case on
behalf of the respective parties, I find that the attorney for the
plaintiff in error, a lawyer of distinction, insisted that the
sole question presented for determination by this Court
was whether the final judgment of the state court deprived Kennard
of his office in violation of the above clause of the Fourteenth
Amendment. And this view was not controverted by the attorney for
the defendant, also an able lawyer. The latter contended that the
Fourteenth Amendment had no application, because, in what was done,
no departure from the principles of due process of law had
occurred. The opinion of Chief Justice Waite delivering the
judgment of this Court thus opens:
"The sole question presented for our consideration in this case,
as stated by the counsel for the plaintiff in error, is whether the
State of Louisiana, acting under the statute of January 15, 1873,
through her judiciary, has deprived Kennard of his office without
due process of law."
Of course this Court had no jurisdiction to inquire whether
there had been due process of law in the proceedings in the state
court unless the office in dispute or the right to hold it was
property within the meaning of the Fourteenth Amendment, or
unless
Page 178 U. S. 594
Kennard's liberty was involved in his holding and discharging
the duties of the office to which, as he insisted, he had been
lawfully elected. But this Court took jurisdiction of the case and
affirmed the judgment of the Supreme Court of Louisiana upon the
ground that the requirement in the Fourteenth Amendment of due
process of law had not been violated. If, in the judgment of this
Court, as constituted when the
Kennard case was decided,
an office held under the authority of a state was not "property"
within the meaning of the Fourteenth Amendment, the case would have
been disposed of upon the ground that no federal right had been or
could have been violated, and the Court would not have entered upon
the inquiry as to what, under the Fourteenth Amendment, constituted
due process of law in a case of which -- according to the
principles this day announced -- it had no jurisdiction.
In
Foster v. Kansas, 112 U. S. 201 --
which was a writ of error to review the final judgment of the
Supreme Court of Kansas -- the sole issue was as to the right of
Foster to hold the office of county attorney. The defendant in
error moved to dismiss the writ for want of jurisdiction in this
Court, and accompanied the motion with a motion to affirm. This
Court refused to dismiss the case, and, referring to
Kennard v.
Louisiana, affirmed the judgment upon the ground that there
had been, in its opinion, no departure from due process of law in
the proceedings to remove Foster. It never occurred to the Court,
nor to any attorney in the case, that the Fourteenth Amendment did
not embrace the case of a state office from which the incumbent was
removed without due process of law. If such an office was not
deemed property within the meaning of that Amendment, that was an
end of the case here. But this Court took jurisdiction and disposed
of the case upon the ground that the requirement in the federal
Constitution of due process of law had been observed.
In
Boyd v. Thayer, 143 U. S. 135,
which came here upon writ of error to review the final judgment of
the Supreme Court of Nebraska ousting Boyd from the office of
Governor and putting Thayer into that position, all the justices
except Mr. Justice Field concurred in holding that this Court
had
Page 178 U. S. 595
jurisdiction of the case. In his dissenting opinion, Mr. Justice
Field observed:
"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."
He continued, quoting the language of Mr. Justice Nelson in
another case:
"The former [general government], in its appropriate sphere, is
supreme, but the states, within the limits of their powers not
granted, or, in the language of the Tenth Amendment, 'reserved,'
are as independent of the general government as that as that
government within its sphere is independent of the states.
The
Collector v. Day, 11 Wall. 113,
78 U. S.
124."
"In no respect is this independence of the states more marked or
more essential to their peace and tranquillity than in their
absolute power to prescribe the qualifications of all their state
officers, from their chief magistrate to the lowest official
employed in the administration of their local government, to
determine the manner of their election, whether by open or secret
ballot, and whether by local bodies or by general suffrage, the
tenure by which they shall hold their respective offices, the
grounds on which their election may be contested, the tribunals
before which such contest shall be made, the manner in which it
shall be conducted, and the effect to be given to the decision
rendered. With none of these things can the government of the
United States interfere. In all these particulars, the states, to
use the language of Mr. Justice Nelson, are as independent of the
general government as that government within its sphere is
independent of the states. Its power of interference with the
administration of the affairs of the state and the officers through
whom they are conducted extends only so far as may be necessary to
secure to it a republican form of government and protect it against
invasion and also against domestic violence on the application of
its legislature or of its executive when that body cannot be
convened. Const. Art. IV, sec. 4. Except as required for these
purposes, it can no more interfere with the qualifications,
election, and installation of the state officers than a foreign
government. And all attempts at interference with them in those
respects by the executive, legislative, or judicial departments of
the general government are, in my
Page 178 U. S. 596
judgment, so many invasions upon the reserved rights of the
states and assaults upon their constitutional autonomy. No clause
of the Constitution can be named which in any respect gives
countenance to such invasion. 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 a law
of the United States in no respect authorizes an interference by
the general government with the state action."
This Court, had a different view of these questions, and, taking
jurisdiction, considered the merits of the case so far as it
involved federal questions, and rendered a judgment which, by its
necessary operation, put into the office of Governor of Nebraska
one whom the highest court of that state had adjudged not to be the
lawful incumbent.
The latest case involving the present question is
Wilson v.
North Carolina, 169 U. S. 586.
That was an action in the nature of
quo warranto to test
the title to a state office. Judgment was rendered for the
plaintiff. The defendant claimed that the state statute and the
action taken under it not only deprived him of his office without
due process of law, but denied to him the equal protection of the
laws, both in violation of the Fourteenth Amendment. In this Court,
a motion to dismiss the writ of error was sustained upon the ground
that, looking at what occurred in the state court, there was
"no fair color for claiming that his [the plaintiff's] rights
under the federal Constitution have been violated either by
depriving him of his property without due process of law or by
denying him the equal protection of the laws."
After observing that this Court would be very reluctant to
decide that we had jurisdiction in the case presented, and could
supervise and review the political administration of a state
government by its own officials and through its own courts, great
care was taken to say:
"The jurisdiction of this Court would only exist in case there
had been, by reason of the statute and the proceedings under it,
such a plain and substantial departure from the fundamental
principles upon which our government is based that it could with
truth and propriety be said that if the judgment were suffered to
remain, the party aggrieved would be deprived of
Page 178 U. S. 597
his life, liberty, or property in violation of the provisions of
the federal Constitution."
Here, as I think, is a distinct declaration that this Court has
jurisdiction to review the final judgment of a state court,
involving the title to a state office, where there has been a plain
and substantial departure from the principles that underlie the
requirement of due process of law. The opinion in
Wilson v.
North Carolina shows a deliberate consideration of the scope
of the Fourteenth Amendment and a refusal to hold, as is now held,
that a contest about a state office could not under any
circumstances involve rights secured by that Amendment. We there
substantially declared that the constitutional requirement of due
process of law could be enforced by this Court where, in depriving
a party of a state office, there had been a plain and substantial
departure from the fundamental principles upon which our government
is based.
It thus appears that, in four cases heretofore decided, this
Court has proceeded upon the ground that to deprive one without due
process of law of an office created under the laws of a state
presented a case under the Fourteenth Amendment to the Constitution
of the United States of which we could take cognizance and inquire
whether there had been due process of law.
Nothing to the contrary was decided in the
Sawyer
case.
124 U. S. 220.
That case contains no suggestion that an office is not property.
The only point there in judgment was that a court of equity could
not control the appointment or removal of public officers. The
Court said:
"The reasons which preclude a court of equity from interfering
with the appointment or removal of public officers of the
government from which the court derives its authority apply with
increased force when the court is a court of the United States and
the officers in question are officers of a state."
But care was taken further to say:
"If a person claiming to be such an officer is, by the judgment
of a court of the state, either in appellate proceedings or upon a
mandamus or
quo warranto, denied any right secured to him
by the Constitution of the United States, he can obtain relief by a
writ of error from this Court."
So that the
Sawyer case directly supports the
proposition that the
Page 178 U. S. 598
judgment of the highest court of a state depriving one of a
state office may be reexamined here if the incumbent has specially
claimed that he has been deprived of it without due process of law.
That the point adjudged in
Sawyer's case was as I have
stated is seen from the opinion in
White v. Berry,
171 U. S. 366, in
which it was said:
"But the court, in its opinion in that case, observed that under
the Constitution and laws of the United States the distinction
between common law and equity, as existing in England at the time
of the separation of the two countries, had been maintained
although both jurisdictions were vested in the same courts, and
held that a court of equity had no jurisdiction over the
appointment and removal of public officers, and that to sustain a
bill in equity to restrain or relieve against proceedings for the
removal of public officers would invade the domain of the courts of
common law, or of the executive and administrative departments of
the government."
Notwithstanding the above adjudications, the decision today is
that this Court has no jurisdiction, under any circumstances, to
inquire whether a citizen has been deprived, without due process of
law, of an office held by him under the Constitution and laws of
his state. If the contest between the one holding the office and
the person seeking to hold it is determinable by the legislature in
a prescribed mode, this Court, it appears, cannot inquire whether
that mode was pursued nor interfere for the protection of the
incumbent, even where the final action of the legislature was
confessedly capricious and arbitrary, inconsistent with the
fundamental doctrines upon which our government is based and the
recognized principles that belong to due process of law, and not
resting in any degree on evidence. If the Kentucky Legislature had
wholly disregarded the mode prescribed by the statutes of that
commonwealth, and, without appointing a Board of Contest composed
of its own members, had, by joint resolution simply, without any
evidence whatever or without notice to Taylor and without giving
him an opportunity to be heard, declared Goebel to be Governor,
this Court, as we are informed by the decision just rendered, would
be without jurisdiction to protect the
Page 178 U. S. 599
incumbent for the reason, as is now adjudged, that the office in
dispute is not "property" within the meaning of the Fourteenth
Amendment. So that, while we may inquire whether a citizen's land,
worth $100, or his mules, have been taken from him by the
legislative or judicial authorities of his state without due
process of law, we may not inquire whether the legislative or
judicial authorities of a state have, without due process of law,
ousted one lawfully elected and holding the office of Governor for
a fixed term, with a salary payable at stated times, and put into
his place one whom the people had said should not exercise the
authority appertaining to that high position. It was long ago
adjudged by the Court of Appeals of Kentucky that an office was "a
valuable right and interest."
Page v. Hardin, 8 B. Mon.
672. In
Commonwealth v. Jones, 10 Bush 735, the same
court, referring to the provision in the Constitution of Kentucky
depriving any person who fought a duel of the right to hold an
office, said: it
"is, in effect, to dispossess him of a right which the Supreme
Court of the United States terms 'inalienable' ([
Cummings v.
Missouri], 4 Wall. 321), to take from him 'rights,
privileges, and immunities' to which he had been entitled, . . .
and to strip him of one of the highest and most valued attributes
of citizenship. . . . The word 'deprived' is used in this section
in the same sense in which it is used in section 12 of the Bill of
Rights and in the Fifth Article of Amendment to the federal
Constitution."
When the Fourteenth Amendment forbade any state from depriving
any person of life, liberty, or property without due process of
law, I had supposed that the intention of the people of the United
States was to prevent the deprivation of any legal right in
violation of the fundamental guarantees inhering in due process of
law. The prohibitions of that amendment, as we have often said,
apply to all the instrumentalities of the state, to its
legislative, executive, and judicial authorities, and therefore it
has become a settled doctrine in the constitutional jurisprudence
of this country that
"whoever by virtue of public position under a state government
deprives another of property, life, or liberty without due process
of law, or denies or takes away the equal protection of the laws
violates the
Page 178 U. S. 600
constitutional inhibition, and as he acts in the name and for
the state, and is clothed with the state's power, his act is that
of the state. This must be so, or [as we have often said] the
constitutional prohibition has no meaning. Then the state has
clothed one of its agents with power to annul or to evade it."
Ex Parte Virginia, 100 U. S. 339;
Chicago, Burlington &c. Railroad v. Chicago,
166 U. S. 226;
Scott v. McNeal, 154 U. S. 34.
Alluding to a contention that the party -- a railroad company --
which invoked the Fourteenth Amendment for the protection of its
property had the benefit of due process of law in the proceedings
against it because it had due notice of those proceedings and was
admitted to appear and make defense, this Court has also said:
"But a state may not, by any of its agencies, disregard the
prohibitions of the Fourteenth Amendment. Its judicial authorities
may keep within the letter of the statute prescribing forms of
procedure in the courts and give the parties interested the fullest
opportunity to be heard, and yet it might be that its final action
would be inconsistent with that Amendment. In determining what is
due process of law, regard must be had to substance, and not to
form."
Chicago, Burlington &c. Railroad v. Chicago, above
cited. Again, in another case:
"Though the law itself be fair on its face and impartial in
appearance, yet if it is applied and administered by public
authority with an evil eye and an unequal hand . . . , it is still
within the prohibition of the Constitution."
Yick Wo v. Hopkins, 118 U. S. 373.
See also Henderson v. New York, 92 U. S.
259;
Chy Lung v. Freeman, 92 U. S.
275;
Neal v. Delaware, 103 U.
S. 370;
Soon Hing v. Crowley, 113 U.
S. 703.
It is said that the courts cannot, in any case, go behind the
final action of the legislature to ascertain whether that which was
done was consistent with rights claimed under the federal
Constitution. If this be true, then it is in the power of the state
legislature to override the supreme law of the land. As long ago as
Davidson v. New Orleans, 96 U. S. 97,
96 U. S. 102,
this Court, speaking by Mr. Justice Miller, said:
"Can a state make anything due process of law which, by its own
legislation, it chooses to declare such? To affirm this is to hold
that the prohibition to the states is of no avail, or has no
application
Page 178 U. S. 601
where the invasion of private rights is effected under the forms
of state legislation."
More recently, we have said:
"The idea that any legislature, state or federal, can
conclusively determine for the people and for the courts that what
it enacts in the form of law, or what it authorizes its agents to
do, is consistent with the fundamental law is in opposition to the
theory of our institutions. The duty rests upon all courts, federal
and state, when their jurisdiction is properly invoked, to see to
it that no right secured by the supreme law of the land is impaired
or destroyed by legislation. The function and duty of the judiciary
distinguishes the American system from all other systems of
government. The perpetuity of our institutions and the liberty
which is enjoyed under them depend in no small degree upon the
power given the judiciary to declare null and void all legislation
that is clearly repugnant to the supreme law of the land."
Smyth v. Ames, 169 U. S. 466.
I had supposed that the principles announced in the cases above
cited were firmly established in the jurisprudence of this Court,
and that, if applied, they would serve to protect every right that
could be brought within judicial cognizance against deprivation in
violation of due process of law.
It seems, however -- if I do not misapprehend the scope of the
decision now rendered -- that under our system of government, the
right of a person to exercise a state office to which he has been
lawfully chosen by popular vote may, so far as the Constitution of
the United States is concerned, be taken from him by the arbitrary
action of a state legislature, in utter disregard of the principle
that Anglo-Saxon freemen have for centuries deemed to be essential
in the requirement of due process of law -- a principle reaffirmed
in the Kentucky Bill of Rights, which declares that
"absolute and arbitrary power over the lives, liberty, and
property of freemen exists nowhere in a Republic, not even in the
largest majority."
§ 2. I cannot assent to the interpretation now given to the
Fourteenth Amendment.
Let us look at the question from another standpoint. The
requirement of due process of law is applicable to the United
States as well as to the states; for the Fifth Amendment -- which
all agree is a limitation on the authority of federal
Page 178 U. S. 602
agencies -- declares that "no person shall . . . be deprived of
life, liberty, or property without due process of law." If Congress
by some enactment should attempt, in violation of due process of
law, to deprive one of an office held by him under the United
States, will not the decision this day rendered compel this Court
to declare that such office is not property within the meaning of
the Fifth Amendment, and therefore the incumbent would be without
remedy unless he could invoke the protection of some other clause
of the Constitution than the one in the Amendment relating to due
process of law? Or would the Court hold that, while a federal
office is property within the meaning of the clause in the Fifth
Amendment declaring that "no person shall . . . be deprived of
life, liberty, or property without due process of law," a state
office is not property within the meaning of the clause in the
Fourteenth Amendment declaring "nor shall any state deprive any
person of life, liberty, or property without due process of law?"
Can it be that Congress may not deprive one of a federal office
without due process of law, but that a state may deprive one of a
state office without due process of law?
I stand by the former rulings of this Court in the cases above
cited. I am of opinion that, equally with tangible property that
may be bought and sold in the market, an office -- certainly one
established by the constitution of a state, to which office a
salary is attached, and which cannot be abolished at the will of
the legislature -- is, in the highest sense, property of which the
incumbent cannot be deprived arbitrarily in disregard of due
process of law -- that is, as this Court said in
Kennard v.
Louisiana, in disregard of the "rules and forms which have
been established for the protection of private rights." Apart from
every other consideration, the right to receive and enjoy the
salary attached to such an office is a right of property. And a
right of property should be deemed property, unless we mean to play
with words and regard form, rather than substance.
I go farther. The liberty of which the Fourteenth Amendment
forbids a state from depriving anyone without due process of law is
something more than freedom from the enslavement of the body or
from physical restraint. In my judgment, the
Page 178 U. S. 603
words "life, liberty, or property" in the Fourteenth Amendment
should be interpreted as embracing every right that may be brought
within judicial cognizance, and therefore no right of that kind can
be taken in violation of "due process of law."
In
Allgeyer v. Louisiana, 165 U.
S. 578,
165 U. S. 589,
this Court unanimously held that the liberty mentioned in the
Fourteenth Amendment
"means not only the right of the citizen to be free from the
mere physical restraint of his person, as by incarceration, but the
term is deemed to embrace the right of the citizen to be free in
the enjoyment of all his faculties; to be free to use them in all
lawful ways; to live and work where he will; to earn his livelihood
by any lawful calling; to pursue any livelihood or avocation, and
for that purpose to enter into all contracts which may be proper,
necessary, and essential to his carrying out to a successful
conclusion the purposes above mentioned."
Judge Cooley, speaking for the Supreme Court of Michigan in
People v. Hurlbut, 24 Mich. 44, after observing that some
things were too plain to be written, said:
"Mr. Justice Story has well shown that constitutional freedom
means something more than liberty permitted; it consists in the
civil and political rights which are absolutely guaranteed,
assured, and guarded; in one's liberties, as a man and a citizen --
his right to vote,
his right to hold office, his right to
worship God according to the dictates of his conscience, his
equality with all others who are his fellow citizens -- all these
guarded and protected, and not held at the mercy and discretion of
any one man or of any popular majority. Story, Miscellaneous
Writings, 620. If these are not now the absolute rights of the
people of Michigan, they may be allowed more liberty of action and
more privileges, but they are little nearer to constitutional
freedom than Europe was when an imperial city sent out consuls to
govern it."
The doctrine that liberty means something more than freedom from
physical restraint is well illustrated in
Minor v.
Happersett, 21 Wall. 162, in which it was said
that, although the right of suffrage comes from the state, yet,
when granted, it will be protected, and he "who has it can only be
deprived of it by due process of law."
What more directly involves the liberty of the citizen than
Page 178 U. S. 604
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 liberty than for
the legislature of the state, by merely arbitrary action, in
violation of the rules and forms required by due process of law, to
take from him the right to discharge the public duties imposed upon
him by his fellow citizens in accordance with law? Can it be that
the right to pursue a lawful calling is a part of one's liberty
secured by the Fourteenth Amendment against illegal deprivation,
and yet the right to exercise an office to which one has been
elected and into which he has been lawfully inducted is no part of
the incumbent's liberty, and may be disregarded by the mere edict
of a legislative body, sitting under a Constitution which declares
that absolute arbitrary power exists nowhere in a Republic? Can it
be that the right to vote, once given, cannot, under the Fourteenth
Amendment, be taken away except by due process of law -- and it was
so decided in
Minor v.
Happersett, 21 Wall. 162 -- and yet that the right
of the person voted for to hold and exercise the functions of the
office to which was elected can, without violating that Amendment,
be taken away without due process of law? Does the liberty of an
American embrace his right to vote without discrimination against
him on account of race, color, or previous condition of servitude,
and yet not embrace his right to serve in a position of public
trust to which he has been lawfully called by his fellow citizens
who voted for him? The liberty of which I am speaking is that which
exists, and which can exist, only under a republican form of
government. "The United States," the supreme law of the land
declares, "shall guarantee to every state in this Union a
republican form of government." And "the distinguishing feature of
that form," this Court has said,
"is the right of the people to choose their own officers for
governmental administration, and pass their own laws in virtue of
the legislative power reposed in representative bodies, whose
legitimate acts may be said to be those of the people
themselves."
In re Duncan, 139 U. S. 461.
But of what value is that right if the person selected by the
people at the polls for an office provided for by the Constitution,
and holding a certificate
Page 178 U. S. 605
of election, may be deprived of that office by the arbitrary
action of the legislature proceeding altogether without
evidence?
I grant that it is competent for a state to provide for the
determination of contested election cases by the legislature. All
that I now seek to maintain is the proposition that, when a state
legislature deals with a matter within its jurisdiction, and which
involves the life, liberty, or property of the citizen, it cannot
ignore the requirement of due process of law. What due process of
law may require in particular cases may not be applicable in other
cases. The essential principle is that the state shall not, by any
of its agencies, destroy or impair any right appertaining to life,
liberty, or property in violation of the principles upon which the
requirement of due process of law rests. That requirement is "a
restraint on the legislative as well as on the executive and
judicial powers of the government."
Murray v.
Land & Imp. Co., 18 How. 272,
59 U. S. 276;
Scott v. McNeal, 154 U. S. 34;
Chicago, Burlington &c. Railroad v. Chicago, above
cited. "That government can scarcely be deemed to be free," this
Court has said, "where the rights of property are left solely
dependent upon the will of a legislative body without any
restraint."
Wilkinson v.
Leland, 2 Pet. 627.
It is to be regretted that it should be deemed necessary in a
case like this to depart from the principles heretofore announced
and acted upon by this Court.
Looking into the record before us, I find such action taken by
the body claiming to be organized as the lawful legislature of
Kentucky as was discreditable in the last degree, and unworthy of
the free people whom it professed to represent. The statute
required the Board of Contest to give "true judgment" on the case,
"according to the evidence." And when the statute further declared
that the decision of the Board should be reported to the two houses
"for the future action of the General Assembly," that such decision
should not be "final and conclusive," and that the General Assembly
should determine the contest, it meant, of course, that such
determination should rest upon the issues made by the parties and
upon the evidence adduced before the Board of Contest. If the
evidence had been before the legislature, it would have been
physically
Page 178 U. S. 606
impossible to have examined it, for, as we have seen, its final
action was taken immediately after the Board of Contest reported
its decision. But, as heretofore stated, the evidence before the
Board was not transmitted to the legislature, nor were the grounds
upon which the Board proceeded disclosed. Yet the body which
assumed to determine who had been elected Governor, without having
before it one particle of the proof taken upon the issues made by
the notice of contest, "adjudged" that Goebel had been legally
elected Governor of Kentucky. No such farce under the guise of
formal proceedings was ever enacted in the presence of a free
people who take pride in the fact that our American governments are
governments of laws, and not of men. That which was done was not
equivalent to a decision or judgment or determination by the
legislature of a matter committed to it by law. It should be
regarded merely as an exercise of arbitrary power by a given number
of men who defied the law. It is not a pleasant thing to say, but
after a thorough examination of the record, a sense of duty
constrains me to say that the declaration by that body of men that
Goebel was legally elected ought not to be respected in any court
as a determination of the question in issue, but should be regarded
only as action taken outside of law, in utter contempt of the
constitutional right of freemen to select their rulers. They had no
jurisdiction to determine the contest for Governor
except upon the evidence introduced before the Board of
Contest, and in the absence of such evidence, they were
without authority to declare anything except that Taylor's right to
the office of Governor, based upon the certificate awarded him, had
not been impaired. Their determination of the contest without
having the evidence before them could have no greater effect in law
than if the issue had been determined simply by a joint resolution,
without taking proof or without notifying or hearing the parties
interested.
It is to be also said that a fair interpretation of the record
leads irresistibly to the conclusion that the body of men referred
to were wholly indifferent as to the nature of the evidence adduced
before the Board of Contest, and that there was a fixed purpose on
their part, whatever the facts might be, to
Page 178 U. S. 607
put Goebel into office and to oust Taylor. Under the evidence in
the case, no result favorable to Goebel could have been reached on
any ground upon which the Board of Contest or the legislature had
jurisdiction to act. The Constitution of Kentucky, as we have seen,
declares that "the person having the highest number of votes shall
be Governor." And the statute provides that the person returned
having received the highest number of legal votes given "shall be
adjudged to be the person elected and entitled to the office." With
the constitution and the statutes of the state before him when
preparing his notice to Taylor of contest, Goebel, it is true, did
claim in very general terms that he was legally and rightfully
elected, but he took care not to say -- there is reason to believe
that he purposely avoided saying -- that he had received the
highest member of legal votes case for Governor. The evidence
renders it clear that the declaration that he had received the
highest number of legal votes cast was in total disregard of the
facts -- a declaration as extravagant as one adjudging that white
was black or that black was white. But such a declaration made by
the body to which the Board of Contest reported should not surprise
anyone when it is remembered that it came from those who did not
have before them any of the proof taken in the case, and were
willing to act without proof. Those who composed that body seemed
to have shut their eyes against the proof for fear that it would
compel them to respect the popular will as expressed at the polls.
Indignant, as naturally they were and should have been at the
assassination of their leader, they proceeded, in defiance of all
the forms of law and in contempt of the principles upon which free
governments rest, to avenge that terrible crime by committing
another crime -- namely the destruction by arbitrary methods of the
right of the people to choose their chief magistrate. The former
crime, if the offender be discovered, can be punished as directed
by law. The latter should not be rewarded by a declaration of the
inability of the judiciary to protect public and private rights,
and thereby the rights of voters, against the willful, arbitrary
action of a legislative tribunal which, we must assume from the
record, deliberately acted upon a contested election case involving
the rights
Page 178 U. S. 608
of the people and of their chosen representative in the office
of Governor without looking into the evidence upon which alone any
lawful determination of the case could be made. The assassination
of an individual demands the severest punishment which it is
competent for human laws in a free land to prescribe. But the
overturning of the public will, as expressed at the ballot box,
without evidence or against evidence, in order to accomplish
partisan ends, is a crime against free government, and deserves the
execration of all lovers of liberty. Judge Burnam, speaking for
himself and Judge Guffy in the Court of Appeals of Kentucky,
although compelled, in his view of the law, to hold the action of
the legislature to be conclusive, said:
"It is hard to imagine a more flagrant and partisan disregard of
the modes of procedure which should govern a judicial tribunal in
the determination of a great and important issue than is made
manifest by the facts alleged and relied on by the contestees, and
admitted by the demurrer filed in this action to be true, and I am
firmly convinced, both from these admitted facts and from knowledge
of the current history of these transactions, that the General
Assembly, in the heat of anger engendered by the intense partisan
excitement which was at the time prevailing, have done two
faithful, conscientious, and able public servants an irreparable
injury in depriving them of the offices to which they were elected
by the people of this commonwealth, and a still greater wrong has
been done a large majority of the electors of this commonwealth who
voted under difficult circumstances to elect these gentlemen to act
as their servants in the discharge of the duties of these great
offices."
I cannot believe that the judiciary is helpless in the presence
of such a crime. The person elected, as well as the people who
elected him, have rights that the courts may protect. To say that
in such an emergency the judiciary cannot interfere is to
subordinate right to mere power, and to recognize the legislature
of a state as above the supreme law of the land. The Constitution
of Kentucky expressly forbids the exercise of absolute and
arbitrary power over the lives, liberty, or property of freemen.
And that principle is at the very foundation of the government of
the Union. Indeed, to sustain that principle, our
Page 178 U. S. 609
fathers waged the war for independence and established the
Constitution of the United States. Yet by the decision this day
rendered, no redress can be had in the courts when a legislative
body, or one recognized as such by the courts, without due process
of law, by the exercise of absolute, arbitrary power, and without
evidence, takes an office having a fixed salary attached thereto
from one who has been lawfully elected to such office by the voters
of the state at a regular election. The doctrine of legislative
absolutism is foreign to free government as it exists in this
country. The cornerstone of our republican institutions is the
principle that the powers of government shall, in all vital
particulars, be distributed among three separate coordinate
departments -- legislative, executive, and judicial. And liberty
regulated by law cannot be permanently secured against the assaults
of power or the tyranny of a majority if the judiciary must be
silent when rights existing independently of human sanction, or
acquired under the law, are at the mercy of legislative action
taken in violation of due process of law.
Other grounds are disclosed by the record which support the
general proposition that the declaration by the body referred to
that Goebel received the highest number of legal votes cast and was
entitled to the office of Governor ought not to be regarded as
valid, much less conclusive, upon the courts. But as those grounds
have not been discussed by this Court, and as it declines to
determine the case upon the merits as disclosed by the evidence, I
will not extend this opinion by commenting on them.
What has been said in this opinion as to the contest for
Governor applies to the contest for Lieutenant Governor.
I am of opinion that the writ of error should not have been
dismissed, and that the court should have adjudged that the decree
below took from Taylor and Marshall rights protected by the
Fourteenth Amendment of the Constitution of the United States.
