Green v. Mills

69 F. 852 | 4th Cir. | 1895

Lead Opinion

FULLER, Circuit Justice

(after stating the facts as above). It is contended on behalf of appellee that jurisdiction of this appeal cannot be entertained, because if the case went to final decree an appeal therefrom "would lie only to the supreme court. Under section 7 of the judiciary act of March 3, 1891, where, upon a hearing in equity in the circuit court, an injunction is granted or continued by an interlocutory order or decree, “in a cause in which an appeal from a final decree may be taken under the provisions of this act to the circuit court of appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction to the circuit court of appeals.” By section 5 of that act, appeals or writs of error may be taken directly to the supreme court “in any case in which the jurisdiction of the court is in issue. In such cases the question of jurisdiction alone shall be certified to the supreme court from the court below for decision,” “in any case that involves the construction or application of the constitution of the United States,” or “in any case in which the constitution or law of a state is claimed to be in contravention of the constitution of the United States.”

It was early held, in McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118, that the act gave to a party to. a suit in the circuit court, where the question of the jurisdiction of the court over the parties or subject-matter was raised and put in issue upon the record, at the proper time and in the "proper way, the right to a review by the sujireme court, after final judgment or decree against him, of the decision upon tliat question only, or by the circuit court of appeals on the whole case. Maynard v. Hecht, 151 U. S. 324, 14 Sup. Ct. 353. And in Carey v. Railway Co., 150 U. S. 170, 14 Sup. Ct. 63, it was ruled, than, in order to hold an appeal maintainable under the second of the above-named classes, the const ruction or application of the constituí ion oí the United States must be involved as controlling, although on appeal or error all other questions would be open to determination, if inquiry were not rendered unnecessary by the ruling1 on that arising under the constitution. Horner v. U. S., 143 U. S. 570, 12 Sup. Ct 522. In U. S. v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, the Bupmne court decided that, if the question of jurisdiction is in issue, and the jurisdiction sustained, and judgment or decree on the merits is rendered in favor of the plaintiff, then the defendant can elect either to have the question certified, and come directly to Hie supreme court, or to carry the whole case to the circuit court of appeals, where the question of jurisdiction can he certified by that court.

In view of these and other cases, we are of opinion that, where the jurisdiction is not in issue, but the question of the constitutionality of a state law is raised, and must necessarily be decided in the disposition of the case, there the case on final decree should be taken directly to the supreme court. But, where the jurisdiction depends on the existence of a federal question, which is controverted, the jurisdiction sustained, and the case goes to decree on the merits, the defendant may take the whole cast; to the circuit court of appeals. Whether that court, if the conclusion were reached that the constitutional question was controlling in the premises, should remand the ease to the circuit court, or may certify the question to the supreme court, we are not called upon to determine. Here the jurisdiction of the circuit court rested on the existence of -a federal question, namely, the validity of the state laws, challenged as in contravention of the constitution and laws of the United States; but, conceding the jurisdiction, the question arose on the threshold whether the case made or attempted to be made was one of equitable cognizance, and we think that, upon the final decree, an appeal would lie to this court, whether the bill were dismissed on final hearing on that ground or otherwise. The motion to dismiss will therefore be overruled.

The jurisprudence of the United States has always recognized the distinction between common law and equity as, under the constitution, matter of substance as well as of form and procedure. And the distinction has been steadily maintained, although both jurisdictions are vested in the same courts. Fenn v. Holme, 21 How. 481, 484; Thompson v. Railroad Cos., 6 Wall. 134; Cates v. Allen, 149 U. S. 451, 13 Sup. Ct. 883, 977; Mississippi Mills v. Cohn, 150 U. S. 202, 205, 14 Sup. Ct. 75. It is well settled that a court of chancery Is conversant only with matters of property and the maintenance of civil rights. The court has no jurisdiction in matters of a political nature, nor to interfere with the duties of any department of government, unless under special circumstances, and when necessary to the protection of rights of property, nor in matters merely criminal, or merely immoral, which do not affect any right of property. In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482; Luther v. Borden, 7 How. 1; Mississippi v. Johnson, 4 Wall. 475; Georgia v. Stanton, 6 Wall. 50; Holmes v. Oldham, 1 Hughes, 76, Fed. Cas. No. 6,648. Neither the legislative nor the executive department, said Chief Justice Chase, in Mississippi v. Johnson, “can be restrained in its action by the judicial department, though the acts of both, when performed, are, in proper cases, subject to its cognizance.” “The office and jurisdiction of a court of equity,” said Mr. Justice Gray, in Be Sawyer, “unless enlarged by express statute, are limited to the protection of rights of property.” To assume jurisdiction to control the exercise of political powers, or to protect the purely political rights of individuals, would be to invade the domain of the other departments of government or of the courts of common law.

Similar views have been repeatedly expressed by state tribunals of high authority. Thus, in Fletcher v. Tuttle, 151 Ill. 41, 37 N. E. 683, the supreme court of Illinois say:

“The question, then, is, whether the assertion and protection of political rights, as judicial power is apportioned in this state between courts of law and courts of chancery, are a proper matter of chancery jurisdiction. Wc would not be understood as holding that political rights are not a matter of judicial solicitude and protection, and that the appropriate judicial tribunal will not, in proper cases, give them prompt and efficient protection, but we think they do not come within the proper cognizance of courts of equity.”

In re Sawyer, Georgia v. Stanton, Sheridan v. Colvin, 78 Ill. 237, Dickey v. Reed, Id. 261, Harris v. Schryock, 82 Ill. 119, and many other cases are cited, and the court continues:

“Other authorities of similar import might be referred to, but the foregoing are amply sufficient to show that, wherever the established distinctions between equitable and common-law jurisdiction are observed, as they are in this state, courts of equity have no authority or jurisdiction to interpose for the protection of rights which are merely political, and where no civil or property right is involved. In all such cases the remedy, if there is one, must be sought in a court of lav»7. The extraordinary jurisdiction of courts of chancery cannot, therefore, be invoked to protect the right of a citizen to vote or to be voted for at an election, or his right to be a candidate for or to be elected to any office; nor can it be invoked for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held. These matters involve in themselves no property rights, but pertain solely to the political administration of government. If a public officer, charged with political administration, has disobeyed or threatens to disobey the mandate of the law, whether in respect to calling- or conducting an election, or otherwise, the party injured or threatened 'with injury in his political rights is not without remedy. But his remedy must bo sought in a court of law, and not in a court of chancery.”

In Hardesty v. Taft, 23 Md. 513, where application was made for-an injunction to prevent the use of a register of voters prepared for a certain county, the court of appeals of Maryland observed:

“On this branch of the inquiry, it seems to the court very clear that a court of equity cannot be invoked to prevent the performance of political duties like those committed to the officers of registration under the law. The willful, fraudulent, or corrupt refusal of a vote by judges of election, or ¡i like denial of registration by the officer appointed to register votes, which is the same thing, can be adequately compensated for in damages at Law. Bevard v. Hoffman, 18 Md. 484. The writ of injunction will not be awarded in doubtful or new cases not coming within well-established principles of equity. Bonaparte v. Railroad Co., Baldw. 218, Fed. Cas. No. 1,617. Each voter has a separate and distinct remedy for the willfully improper deprivation of his vote; and the joinder of others, like circumstanced or injured, a a complainants in equity, on the ground of avoiding a multiplicity of suits, will not avail to afford equitable relief. To interfere in the mode asked for by the complainants would be to stop a popular election in one portion of the state, and thus arrest, as to it, the wheels of government. For irregularities in the conduce of an election, for receiving illegal or rejecting legal votes, and l'or the correction of consequences resulting therefrom, the law provides appropriate remedies and modes of procedure. Buch matters are not the subjects of equitable jurisdiction.”

Tlie general doctrine as to public officials is thus stated by the New York court of appeals in People v. Canal Board, 55 N. Y. 393:

“A court of equity exercises its peculiar jurisdiction over public officers to control their action only to prevent a breach of trust affecting public franchises, or some illegal act under color or claim of right affecting injuriously the property rights of individuals. A court of equity has, as such, no supervisory power or jurisdiction over public officials or public bodies, and only takes cognizance of actions against or concerning them when a case is made coming within one of the acknowledged heads of equity jurisdiction.”

Nor will equity interfere by injunction to restrain persons from exercising the functions of public offices, on the ground of the illegality of the law under which their appointments were made, but will leave that question to be determined by a legal forum. The doctrine is clearly established that courts of equity will not thus interfere to determine questions concerning the appointment or election of public officers or their title to office, such questions being of a purely legal nature and cognizable only by courts of law. High, Inj. (3d Ed.) § 131.2 et seq., and cases cited. And see Hagner v. Heyberger, 7 Watts & S. 104; Smith v. McCarthy, 56 Pa. St. 359; Smith v. Myers, 109 Ind. 1, 9 N. E. 692; Peck v. Weddell, 17 Ohio St. 271; Kemp v. Ventulett, 58 Ga. 419. The rule is not otherwise in South Carolina. The supreme court of that state has decided upon a similar application for a like injunction, made, as would appear, by this same complainant, that the relief asked “is not the appropriate remedy for the grievance set out.” Ex parte Mills, 41 S. C. 554, 19 S. E. 749.

Tested by these principles, this bill of complaint cannot be maintained, for it seeks on behalf of individuals to restrain the exercise of governmental powers, and asserts no threatened infringement of rights of property or civil rights, and no recognized ground of equity interposition. No discrimination on account of race, color, or previous condition of servitude is charged, or pointed out as deducible on the face of the acts in question. No specific application to the defendant as supervisor to register complainant is alleged, but it is said that complainant has failed to register because, in spite of repeated and persistent efforts to that end, he found himself unable to comply with the provisions of the law in that behalf. In this regard, the gravamen of the bill is that, although the legislature might require- registration under reasonable restrictions as proof of the possession of the qualifications prescribed by the constitution, which is, indeed, made the duty of the general assembly by that instrument (Const. S. C. art. 8, § 3), the requirements of these acts are such as to materially abridge and impair the exercise of the elective franchise and impose additional qualifications to those prescribed; and that therefore the acts are invalid, as in contravention of the constitutions of the state and of the United States. But, if this were true, it would not follow that complainant would have a locus standi in equity. The bill is brought to restrain the registering officer from discharging, at all, duties imposed upon him by law in respect of the public, lest complainants and other individuals similarly situated might thereafter be deprived of a political right because of alleged inability to comply with legislative requirements, which he contends are invalid for that reason. We repeat that the action sought to be enjoined is political and governmental',' and it is not pretended that any right of property or civil right is threatened with infringement thereby.

This being so, we are clearly of opinion that no ground of equitable cognizance exists, and, although the appeal is from interlocutory orders, yet, as we entertain no doubt that such a bill cannot be maintained, we áre constrained, in reversing these orders, to remand the cause with a direction to dismiss the bill. And it is so ordered.

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Concurrence Opinion

HUGHES, District Judge

(concurring). This case was heard by the chief justice, Judge SEYMOUR, and myself, on Friday last, the 7th inst. We thought it was of a character to call for an early decision, and it was determined, after adjournment on Friday, that the decision should be announced to-day, and a decree entered. The case was exhaustively argued at the bar, and nothing can be gained by awaiting a further time for the examination of briefs. We are of opinion that the preliminary injunction which was granted in the case ought to be dissolved and the bill dismissed. A decree to that effect, prepared by the chief justice, will be entered at once. The opinion of the court on the important questions presented by the record will be prepared by the chief justice, and filed and reported as soon as practicable. I have thought that, in the meantime, it was due to the public, and might not be improper in me, to present at once some of the considerations which have led me to the opinion that the injunction of the circuit court below should not have been granted. I therefore submit what follows. I have had no opportunity of presenting it to the other judges who sat with me, and am solely responsible for the views expressed.

This bill is brought by the complainant, on his own behalf, and "on behalf of other citizens of the county of Richland, in the state of South Carolina, and the United States,” circumstanced like himself. It sets out that he is 26 years of age, and that he is entitled to be registered as a citizen and voter. It describes, by quotation, in considerable detail, sundry provisions of the registration laws of Boutli Carolina now in force. It charges that these provisions violate certain clauses of the state constitution, in two respects, viz.: First, by requiring the voter always to be in possession of his certificate of registration, and to present it when offering to vote; and, second, by allowing only 10 days in each year (in the month of March) for the registration of voters who have failed to register at the times provided by law for registration at periods anterior to those 10 days, it: charges that the registration laws complained of, by adding a compliance with these two qualifications as necessary to the exercise oí the right of suffrage,—these being qualifications which are not required by the state constitution,—thereby violate the state constitution. It adds the charge that these two requirements also violate the constitution of the United ¡states, inasmuch as-section 2 of article 1 of that instrument provides that electors for members of congress “in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” The bill alleges that complainant failed to register at the times designated by law, or within the 10 days set ajiart for that purpose in March, 1893, for those who had not previously registered, because, although he had made repeated efforts to become registered, he found idmself unable to comply with the unreasonable, unnecessary, and burdensome rules, regulations, and restrictions prescribed by the alleged unconstitutional registration laws as conditions precedent to his right to register, lie complains that, in consequence of Ms having thus failed to be registered, he has never been allowed to vote at any state or any federal election in Bou th Carolina. The bill alleges that the defendant, G-reen, has been appointed supervisor of registration for Richland county under these unconstitutional laws, is exercising' the duties prescribed by them, and intends to deliver to the managers of the election in Richland county the registration books, wliich he is preparing, to be used by them in deciding upon the right of citizens to vote, among other elections, at the first next ensuing election to be held in South Carolina, which will be one to be; held in August next for members of a state convention called to frame a new state constitution. The bill alleges, in general terms, that the registration laws of South Carolina, complained of, violate, as before described, section 2 of article 1 of the national constitution, and are also “in violation of section 2 of article 14., and section 2. of article 15, and of divers other sections and articles of the said instrument.” As there are but seven articles in the original constitution of the United States, the presumption is that the bill has reference to the fourteenth and fifteenth amendments (not articles) of the national constitution. The complainant therefore prays the court to grant a writ of injunction restraining and enjoining the defendant, Supervisor of Registration Green, individually and officially, from the performance of any of the acts required of him by the registration laws complained of, and for other relief. The court below granted an order temporarily enjoining and restraining Supervisor Green from the commission of any of the acts complained of in the bill, and granted at a later day an order restraining and enjoining this supervisor from exercising duties or performing any acts complained of in the hill until the further order of the court. From this order appeal is taken to this court.

There is nothing in the record to show that the complainant is a man of color, or that those for whom he sues are colored persons. The bill contains no allegation that the provisions of law complained of were devised against the complainaht, or those for whom he sues, on account of their race, color, or previous condition of servitude. There is nothing in the averments of the bill from which it may naturally, or must necessarily, be inferred that the complainant, and those for whom he sues, are citizens of color. There are no averments in the bill which show that the case falls within the purview of the fifteenth amendment of the constitution of the United States. Nor does the bill contain any allegations which raise a federal question under that clause of the fourteenth amendment which forbids a state “to deny to any person the equal protection of the laws.” It charges that the effect of the provisions of the registration acts complained of is to give unequal facilities of registration to different classes of citizens, but it does not point out how this is so. It leaves the discrimination as to the privilege of registering, if there be discrimination, to inference, and to research in sources other than its own averments. It charges that the provisions of law complained of discriminate, but does not describe the manner of discrimination, or define the classes affected pro or con, nor does it show that the law complained of, in discriminating between classes, as to the privilege of registering granted by them, violate that clause in the fourteenth amendment which forbids a state “to deny to any person within it, the equal protection of the laws.” It confounds privilege with protection. The bill has no reference to a federal election, in setting out complainant’s case. The gravamen of the bill contemplates only a state election to be held for members of the state convention called to convene in August next. It is not shown that any federal election is to be held in the state of South Carolina before November, 1896. To the bill thus described, and to the orders of injunction granted by the court below in pursuance of its prayers, several objections are urged, in behalf of the state of South Carolina. In what follows I shall consider but one of these.

I regret that I cannot concur in the ruling of the circuit court rendered on circuit in this case, in which it was held that the court had jurisdiction to restrain a county supervisor of registration in the performance of his duties under the election laws of South Carolina. The division of our government into the legislative, executive, and judicial departments is a distinguishing feature of our American polity, and it is essential to its existence that each of these departments shall be independent of the other. This is fundamental and organic. It would be just as dangerous to its stability for the judicial department to override the others as for the executive or legislative department to do so. Hence, while the right of the judiciary to pass upon the constitutionality of laws is undoubted, it has that right simply as an incident to its protection of private rights. It has not that right as a mere means of settling abstract questions, and, even in the enforcement of private rights, it has not the power to interfere with the discretion vested in the other departments, or with the exercise of the political powers of those departments. It seems to me that it is a dangerous encroachment upon the prerogatives of the other departments of government, if the judiciary be intrusted to exercise the power of interfering with the holding of an election in a state. If the supervisor of one county can be enjoined from the performance of the duties imposed upon him by the election laws of the state from whom he holds his commission, those of the other counties can be also. Thus, a single citizen in each county (and in the case at bar he is not even a qualified voter) can enjoin an election throughout the entire state, and thus deprive thousands of their right to vote. If a court has power to do this, free elections are at an end. If elections are improperly held, there are appropriate means provided by law for questioning their results, and remedying wrongs, without the exercise of this dangerous power by the courts. A candidate who has been defeated may contest; a voter whose right to register has been denied may proceed to compel the enforcement of that right; and these privileges give what the legislature deems sufficient protection to the injured. But, in my judgment, one citizen cannot, in an endeavor to right his own wrongs, disfranchise others. I do not think that a court has jurisdiction to interfere, by injunction or otherwise, with the enforcement of laws by officers holding and deriving their powers from these laws; certainly not to the extent in which it is attempted to be done by this bill. In arriving at this conclusion I have not considered the question whether or not the registration laws of South Carolina violate the federal constitution or laws. I prefer to rest my opinion upon the ground of the independence of the different departments of government; upon the impolicy of interference by the courts in questions which will result in dragging them constantly into the arena of party politics; and upon the general principle that each department of the government, and each officer thereof, high or low, has the right to administer, according to his best judgment, the duties imposed upon him by the laws creating his office. As illustrating these general principles, I refer to the following decisions: Mississippi v. Johnson, 4 Wall. 475; Gaines v. Thompson, 7 Wall. 347; Louisiana v. Jumel, 107 U. S. 711, 2 Sup. Ct. 128; Hagood v. Southern, 117 U. S. 52, 6 Sup. Ct. 608; Ex parte Ayers, 123 U. S. 443, 8 Sup. Ct. 164; In re Sawyer, 124 U. S. 209, 8 Sup. Ct. 482. It is useless to cite the many other cases which bear on the questions arising in this case, and cited so profusely at the bar. In the case of Mississippi v. Johnson, which was a bill to enjoin the president of the United States and the military commandant of the military district of Mississippi from carrying into effect certain provisions of the reconstruction acts of 3867, the supreme court said that “an attempt on the part of the judicial department of the government to enforce the performance of the (exec-u five and political) duties of the president might be justly characterized, in the language of Chief Justice Marshall, as Tin absurd and excessive extravagance.’ ” “It is true,” says the court, “that in the instance before us the interposition of the court is not sought to enforce action by the executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of executive discretion. The congress is the legislative department of the government. The president is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both, when performed, are, in proper cases, subject to its cognizance.” This language of the supreme court is quoted to show that the court was at pains to distinguish between acts of public officers which were political and executive, and those which were merely ministerial, and between duties of officers as officers, and those which belong to persons as mere citizens. These distinctions are carefully adhered to by the supreme court in the subsequent decisions which I have cited. I do not think it necessary to point out how particularly and carefully it has done so, in those cases.

In the one at bar the person enjoined from the performance of duties was an officer of the executive department of the government, and he was enjoined as an officer, and not as a citizen, from performing political functions. The duties which he was discharging were political,—exclusively political,—and did not appertain to him as a private citizen. I think the teaching of the cases I have cited is clear that a court cannot, by injunction, prohibit a public officer generally from discharging political duties imposed by law7. If the law be vicious, the remedy must be sought elsewhere than in the courts. Probably the homely way of getting rid of a bad law, recommended by Gen. Grant, is the best, viz. by enforcing it rigidly. I do not think that the fact was so; but let it be admitted, for the sake of argument, that the duties of the registration officer who was enjoined in this case were entirely ministerial, affording no room for discretion. Yet they were strictly political. They dealt with that prime subject in a republic,—the elective franchise. The duties were prescribed by legislation, and the performance of them was an executive act. For the court to enjoin an executive officer generally from discharging those duties was for the judiciary to invade the province of both the other two independent departments at once. It was, so far as the injunction operated, a nullification of legislation, and a prohibition of the performance of important executive duties.

So far as the rights of the individual complainant in the bill were concerned it may have been competent for the court to grant individual relief. The supreme court of the United States the other day granted relief from the payment of an income tax to tbe individual complainant in the suit before it, but it went no further. On the authority of Mississippi v. Johnson, supra, we may assume that it would not have entertained a bill for enjoining internal revenue officers of the government from collecting income taxes generally. The judicial power covered the right to grant individual relief, but did not extend to the general power of repealing the law imposing the tax, as to the entire public. I repeat that in the case at bar it may have been competent for the court to grant individual relief. But the bill asked more. It asked similar relief for all citizens of the county situated like the complainant. It practically asked relief for a numerous political party, forming a portion of that people to whom the legislature was solely responsible for its laws, and to whom alone the genius of our institutions makes the legislature responsible. Moreover, it brought the court into immediate and active contact with party contestation. It made the court a controlling factor in party strife. I can imagine nothing more pernicious than a direct participation by the judiciary, by judicial action, in the politics of the people. The bill asked, practically, that the process of registration under the laws of the state should he suspended in an entire county during the pleasure of the court, and that all the citizens of a county not then registered as voters should be denied the right of suffrage during that pleasure. . It seems to me that the mere statement of this view of the case shows that the injunction was ixaprovidently granted, I think the bill should be dismissed.