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power to do after the act of 1890 whatever petitioners had obtained any such "right" at it might have done before. But we think the time of the repealing act of 1889, as this is giving to the words "subject to future could be said to be then "existing or territorial legislation” too broad a scope. It crued,” and thereby saved by this section, was doubtless intended by these words to inasmuch as they had obtained no judgment give to the territorial legislature power to upon the refunding bonds before applying make such new gulations concerning the for a writ of manda inus, as was the case in funding act as future exigencies might seein Jemphis v. United States, 97 U. S. 293, 24 to require. This power was properly exer- L. ed. 920, although, it is true, they had obcised in the territorial act of March 19, 1891. tained the opinion of this court that such Congress itself exercised the same power of bonds should issue. amendment by its acts of July 13, 1892, But without expressing an opinion upon August 3, 1894, and June 6, 1896. While this point, we think that the petition for we held in the recent case of Shuerman v. this mandamus was a "proceeding thereto Arizona, 184 U. S. 342, ante, 406, 22 Sup. Ct. fore taken” within the meaning of the sav. Rep. 406, that the territorial statute of 1897 ing clause of § 2934, and that the right of was the foundation for the appointment of the petitioners was saved thereby, even if it the loan commissioners, and that their au- be conceded that the loan commission had thority must be exercised in the manner pre been abolished. In the case of Alemphis v. scribed by the territorial laws, it by no United States, already alluded to, it was means follows that it was within the con said that “when the alternative writ of man. templation of Congress to authorize the leg. damus was issued March 22, 1875, a proceed. islature to repeal the act of 1890 under ing was commenced under or by virtue of which their existence was continued. It the statute.” The defendants insist that was entirely reasonable to assume that the the action or proceeding must have resulted territorial legislature might wish to extend in a judgment prior to the repealing stat. the power of refunding the bonds to those is- ute, in order that the rights should be saved sued by its own municipalities, as well as by § 2934. This, however, confounds the by itself, as it did by the act of March 19, distinction between a "right" already "ex. 1891, but it is inconceivable that, after hav- isting or accrued” and an "action or proceeding passed a complete and independent act ing theretofore taken,” since, if the proceedof its own for the refunding of territorial ing had culminated in a judgment, the latbonds, Congress should authorize a territor- ter clause would be supertluous, and the ial legislature to repeal it. While the ter- judgment would be saved by the former ritorial and congressional legislation subse. clause with respect to a right already exist. quent to the act of Congress of June 25, 1890, ing or accrued. Every word or clause used has but little bearing upon the question now in a statute is presumed to have a meaning in controversy in this case, it indicates of its own, independent of other clauses, and plainly that, under the power given for fu- if a statute preserve, not only rights, but ture territorial legislation, it was contem. proceedings, it will be presumed that the plated that such legislation should be in fur. legislature intended to save both classes, and therance and extension of the main object to give to "proceeding taken” a broader of the act of 1890, whereby the power of re meaning than would be indicated by the funding territorial indebtedness should be words "right existing or accrued." extended to the indebtedness of counties, mu. 3. The only remaining questions urged nicipalities, and school districts of the ter against the issue of a mandamus in this caso ritory, and that it could not have been con. is that these bonds do not come within the templated that power should be given to the provisions of the act of June 6, 1896, for si territorial legislature to abolish the whole the reason that the Arizona legislature, find. system without the consent of Congress. ing that an attempt was being made*to in.*

The result is that, even if we are mistaken clude the bonds in question in that act, in saying that the congressional act of 1890 adopted certain memorials in 1897 and 1899 operated as a repeal of the territorial act of urging the President to veto the act of Cov1887, it is still a separate and independent gress legalizing the bonds, and urging upact which it was beyond the territorial leg. on Congress to pass such legislation as islature to repeal, and that the office of loan would exclude from the provisions of the act commissioners, continued by the act, was not of June 6, 1896, the bonds issued by Pima terminated by the repeal of 1899.

county to the Arizona Narrow Gauge RailBut, in addition to this, there is a saving road Company, so that the act should not be clause in the Revised Statutes of Arizona of so construed as to validate these bonds. 1887, which provides as follows:

These memorials, however, seem to have been “2934 (Sec. 7). The repeal or abrogation unsuccessful. No interest, however, of any statuto, law, or rule does not revive paid upon the bonds, and it was shown by any former statute, law, or rule theretofore the findings of fact that the present owners, repealed or abrogated, nor does it affect any Coler & Company, bought them as they ma. right then already existing or accrued at the tured with notice that the first coupons had time of such repeal, or any action or proceed been protested, and that the bonds had been ing theretofore taken, except such as may be repudiated by Pima county from the start, provided in such subsequent repealing stat. The court below, however, made a finding of ute, nor shall it affect any private statute fact from which it appeared that the origin. not expressly repealed thereby.”

al bonds of Pima county were issued in lit. It may admit of some doubt whether the 'eral compliance with an act of the territory

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of Arizona, approved February 21, 1893, in the judgment of the Supreme Court of Ario exchange for bonds of the Narrow Gauge zona, ordering a peremptory mandamus to Railroad Company. It is true that the coun. issue to the present loan commissioners, ty of Pima derived little or no benefit from was right, and it is therefore affirmed. the building of the few miles of railroad, but, as was said by the supreme court, Mr. Justice Gray did not sit in this case, “there was nothing in evidence showing bad and took no part in its decision. faith on the part of the railroad company, in so far as the first exchange of bonds was concerned, nor is there any evidence which

(185 U. S. 487) shows bad faith on the part of the company

THOMAS SWAFFORD, Plff. in Err., or its contractor, Walker, and his principals, Coler & Company, except their failure W. A. TEMPLETON and S. H. Pearcy. to continue the building and equipment of the road after the completion of the 30 miles Jurisdiction of circuit court-Federal ques. of grading and laying of 10 miles of track, tion-case involving right to vote for except such inferences as may be drawn member of Congress. from the fact that both the railroad company and Coler & Company had difficulty in an action to recover damages from state elec raising the money for the payment of the tion officers for their asserted wrongful rework done, and did not have the resources fusal to permit the plaintiff to vote for a

member of the House of Representatives, at a to go on and complete the work. Can the

national election held in the district where he court say that, notwithstanding the fact

resided, is one arising under the Constitution that the bonds were exchanged in compli.

of the United States, of which a circuit court ance with the terms of the act of February of the United States bas jurisdiction. 21, 1883, they are invalid and not within the provisions of the act of Congress of June 6,

(No. 487.) 1896, because subsequent to their issue the original holders of those bonds failed to Submitted April 14, 1902. Decided May 19, complete the railroad, and the county of

1902. Pima thereby received no benefit from the

of consid- N ERROR to the Circuit Court of the

eration is to besdistinguished from of I United States for the neasternt District

* 488

an exchange of bonds in good faith under of Tennessee to review a judgment dismiss. the act of June 6, 1896, unless the failure ing a suit to recover damages for the refus. of consideration was due to a failure on the al by election officers to permit the plaintiff part of the holders of the bonds to comply to vote for a member of the House of Repre with the provisions of the act authorizing sentatives. Reversed. their issuance. The legislative act was ex: See same case below, 108 Fed. 309. ceedingly liberal in its terms, and contained no safeguard against the failure of the rail. Statement by Mr. Justice White: road company to build or operate the road. *This action was begun by Swafford, plainThe only provision looking to the protec- tiff in error, in the circuit court of the Unittion of the county was the one which re-ed States for the southern division of the quired a certificate of the county surveyor, eastern district of Tennessee. Templeton showing that each 5 miles of the road was and Pearcy, defendants in error, were made graded and laid with ties and iron, as a con- defendants to the action, the object of which dition precedent to the exchange of each was to recover damages for an asserted $50,000 of county bonds for a like amount of wrongful refusal by the defendants to perrailroad bonds. As the supreme court has mit the plaintiff to vote at a national elecheld in this case, Congress, by the act of tion for a member of the House of RepreJune 6, 1896, validated the territorial sentatives, held on November 6, 1900, in act of February 21, 1883. And as the lat. the district of the residence of the plaintiff. ter did not make the completion of the road The declaration expressly charged that a condition precedent to the issuance of the the plaintiff was a white man, a natural. bonds, nor make their validity dependent born citizen of the United States, and was upon the subsequent conduct of the railroad such on November 6, 1900, and had been for company, bad faith cannot be predicated of many years prior thereto a resident and duly the transaction so long as there was not qualified voter in the county of Rhea, state only a substantial compliance, but a literal of Tennessee, and, as such, entitled, under as well, with the requirements of the act un- the Constitution and laws of the United der which they were issued.” (64 Pac. 432.) States and of the state, to vote for members

But a further answer to these objections of Congress, and that he had been illegally to the validity of the bonds is that all the deprived of such right by the defendants, facts upon which these objections are when serving as election officers at an elecfounded existed and were known to the loan tion held on November 6, 1900, in the discommissioners at the time the original an. trict of the residence of the plaintiff, in said swer was filed and before the case of Utter county of Rhea. 1. Franklin was heard or decided by this The declaration specified the manner in court, and should have been then set up as a which the right which it was asserted exdefense upon the merits.

isted under the Constitution and laws of the Upon the whole case we are of opinion that' United States and of the state had been vio

400

lated, as follows: That for a number of that, as prior to the adoption of the 14th years there had been in force in Tennessee Amendment to the Constitution of the Unitcertain special registration and ballot laws, ed States, plaintiff enjoyed the elective fran. which were operative only in counties con- chise, by virtue of that amendment and of taining a population of 50,000 inhabitants enumerated provisions of the state Constituor over, and in cities, towns, and civil dis- tion “plaintiff became, and was, possessed tricts having a population of 2,500 inhabit of the right of suffrage as an immunity or ants or over; that Rhea county, was not, privilege of citizenship, of which he could prior to 1899, affected by the legislation in not be deprived by the enactment of chapquestion, because it did not have a popula- ter 163 (the law of 1899) under the circum. tion of 50,000 or upwards, and had no town, stances aforesaid.” city, or civil district within its borders con- The defendants filed a demurrer questiontaining a population of 2,500; that, not being the sufficiency of the declaration upon ing subject to the operation of the statutes various grounds. in question, the elections in Rhea county, After hearing upon the demurrer, the as in other counties similarly situated, were court filed an opinion in which it said that it governed by, and conducted in accordance clearly appeared from the declaration that with, the general election laws prevailing the action did not really and substantially in the state of Tennessee; that in 1899 the involve a Federal question, and that the legislature of Tennessee passed a law known court was without jurisdiction or power to as chapter 163 of 1899, by which the civil entertain the suit. 108 Fed. 309. An en: districts or subdivisions theretofore existing try was made sustaining the demurrer and in Rhea county were diminished in number, dismissing the suit, and it was recited that and so arranged as to cause the civil dis- the dismissal was solely because of the want trict in which the plaintiff lived and was en- of jurisdiction. A certificate of the judge, titled to vote to contain a population of over moreover, was filed, which is as follows: 2,500 inhabitants, and therefore to become "In this cause I hereby certify that the subject to the aforesaid special registration order of dismissal herein made is based soleand election laws, if the redistricting law in ly on the ground that no Federal question question was valid. It was further averred was involved, and that the declaration, in that at the election held on November 6, my opinion, disclosed the infraction of no

900, for a member of ngr the defend right arising under or out of the Federal ants, who were a majority of the election laws or Constitution; and that treating the judges conducting such election, when the demurrer as presenting this question of ju. complainant presented himself to vote, in risdiction, and acting also independently of sisted that he mark his ballot, and fold it in the demurrer, and on the court's own mo a particular way without assistance, as re- tion, the suit is dismissed only for the reaquired by the special ballot law. It was as- sons above stated; that is, that the contro serted that this demand by the election offi- versy not arising under the laws and Concers was lawful if the special ballot law ap- stitution of the United States, there is conplied to the conduct of the election, but was sequently no jurisdiction of the circuit court unlawful if the election in Rhea county was of the United States. not subject to such special law, and was con- “This certificate is made conformably to trolled by the general election law of the act of Congress of March 3, 1891, chapter state. Averring that he was an illiterate 517, and the opinion filed herein April 30, person, and unable to mark or fold his bal. 1901, is made a part of the record, and will lot unassisted, and was therefore not able to be certified and sent up as a part of the procomply with the provisions of the special ceedings, together with the certificate." ballot law referred to, it was alleged that the vote of plaintiff was rejected by the defendants, despite the insistence of the

plain- plaintiff in error.

Mr. Frederick Lee Mansfield for tiff that the election ought legally to have been conducted according to the require

Mr. Jerome Templeton for defendant

in error. ments of the general law, and not by those of the special law, for the reason that the redistricting act of 1899 was absolutely .* Mr. Justice White, after making the void

foregoing statement, delivered the opinion The grounds upon which it was alleged of the court: that the act of 1899 redistricting Rhea coun- The sole question is, Did the circuit court ty was void may be thus summarized: Be- err in disinissing the action, on the ground cause it was "class legislation in violation that it was not one within the jurisdiction of the Federal Constitution,” it being as- of the court ? An afirmative answer to this serted that said law was enacted for parti- question is rendered necessary by the deci. san purposes, and that, although there were sion in Wiley v. Sinkler, 179 V. Š. 58, 45 L. other counties in the state similarly situ- ed. 84, 21 Sup. Ct. Rep. 17. In that case ated as was Rhea county, the civil districts the action was brought in a circuit court of as laid out by the county courts in such oth the United States against state election of er counties, pursuant to statutory author- ficers to recover damages in the sum of $2,5 ity, were left undisturbed by the legislature. 500 for an alleged unlawful rejection of In other particulars, also, the act in ques- plaintiff's vote at a Federal election. A de tion was averred to constitute special or murrer was filed to the complaint. One of class legislation. It was specially averred 'the grounds of the demurrer was that the

401

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court had no jurisdiction of the action, be- , was predicated on the conception that the cause it did not affirmatively appear on the action sought the vindication or protection face of the complaint that a Federal ques of the right to vote for a member of Contion was involved. The demurrer, however, gress, a right, as declared in Ex parte Yar. was sustained, not because of the want of ju- brough, 110 U. S. 655, 664, 28 L. ed. 275, 278, risdiction, but solely upon the ground that 4 Sup. Ct. Rep. 152, 158, "fundamentally the complaint did uot state facts sufficient based upon the Constitution (of the United to constitute a cause of action. The cause States), which created the office of member was brought directly to this court, under of Congress, and declared it should be electhat provision of the act of March 3, 1891, tive, and pointed to the means of ascertain. which confers power to review the judgmenting who should be electors.” That is to or decree of a circuit court, among others, say, the ruling was that the case was equal. in any case involving the construction or ap- ly one arising under the Constitution or laws plication of the Constitution of the United of the United States, whether the illegal act States. In this court the contention was complained of arose from a charged viola. renewed that the circuit court was without tion of some specific provision of the Constijurisdiction, and this contention involved tution or laws of the United States, or from necessarily, also, a denial of the power of the violation of a state law which affected this court to review, since the right direct. the exercise of the right to vote for a mem.co ly to do so was sustainable alone upon the ber of Congress, since the Constitution of ground that the cause was one involving the the *United States had adopted, as the quali.. construction or application of the Constitu- fications of electors for members of Con. tion of the United States. The argument gress, those prescribed by the state for elecadvanced to sustain the asserted want of ju- tors of the most numerous branch of the leg. risdiction was this, that, as the Constitu- islature of the state. tion of the United States did not confer the It results from what has just been said right of suffrage upon anyone, but the same that the court erred in dismissing the action was a privilege which the elector enjoyed for want of jurisdiction, since the right under the Constitution and laws of the state which it was claimed had been unlawfully in which he was entitled to vote, therefore invaded was one in the very nature of things the denial of the right to vote at an election arising under the Constitution and laws of for a member of Congress did not and could the United States, and that this inhered in not involve the construction or application the very substance of the claim. It is obof the Constitution of the United States. vious from an inspection of the certificate The court, however, decided otherwise, and, that the court, in dismissing for want of ju. speaking through Mr. Justice Gray, said risdiction, was controlled by what it deemed that the case "involves the*construction and to be the want of merit in the averments application of the Constitution of the Unit. which were made in the complaint as to the ed States;" that “the right to vote for mem- violation of the Federal right. But as the bers of the Congress of the United States very nature of the controversy was Federal,

has its foundation in the Constitu- and, therefore, jurisdiction existed, whilst tion of the United States ;” that “the cir. the opinion of the court as to the want of cuit court of the United States has juris. merit in the cause of action might have fur. diction, concurrent with the courts of the nished ground for dismissing for that reastate, of any action under the Constitution, son, it afforded no sufficient ground for decid. laws, or treaties of the United States, in ing that the action was not one arising unwhich the matter in dispute exceeds the sum der the Constitution and laws of the United or value of $2,000;" and that, the action be- States. ing "brought against election officers to re- True, it has been repeatedly held that, on cover damages for their rejection of the error from a state court to this court, where plaintiff's vote for a member of the House the Federal question asserted to be conof Representatives of the United States, the tained in the record is manifestly lacking complaint, by alleging that the plaintiff was, all color of merit, the writ of error should at the time, under the Constitution and be dismissed. New Orleans Waterworks Co. laws of the state of South Carolina and the v. Louisiana, 185 U. S. —, ante, 691, 22 Sup. Constitution and laws of the United States, Ct. Rep. 691, and authorities cited. This a duly qualified elector of the state, shows doctrine, however, relates to questions aris. that the action is brought under the Consti- ing on writs of error from state courts tution and laws of the United States." In where, aside from the Federal status of the concluding its examination of the question parties to the action or the inherent nature of jurisdiction, it was declared that the cir- of the Federal right which is sought to be cuit court, therefore, clearly had jurisdiction vindicated, jurisdiction is to be determined of this action.” The conclusion thus ex. by ascertaining whether the record raises a pressed, by necessary implication, decided bona fide Federal question. In that class the power of this court to review, which of cases not only this court may, but it is would not have obtained, unless jurisdiction its duty to, determine whether in truth and of the circuit court had been found to rest in fact a real Federal question arises on the on the constitutional right.

record. And it is true, also, as observed in It is manifest from the context of the New Orleans Waterworks Co. v. Louisianau, opinion in the case just referred to that the 184 U. S. –, ante, 691, 22 Sup. Ct. Rep. 691, conclusion that the cause was one arising that a similar principle is applied in analo under the Constitution of the United States gous cases originally brought in a court of

22 8. C.-50.

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the United States. McCain v. Des Moines, 1. The Volunteer Army of the United States 174 U. S. 168, 43 L. ed. 936, 19 Sup. Ct. Rep.

raised under the act of Congress of March 2, 644; St. Joseph E G. I. R. Co. v. Steele, 167

1899 (30 Stat. at L. 977, chap. 352), 18 "other U. S. 659, 42 L. ed. 315, 17 Sup. Ct. Rep.

forces" within the meaning of the 77th ar 925. But the doctrine referred to has no

ticle of war, declaring that "officers of the

Regular Army shall not be competent to alt application to a case brought in a Federal

on courts-martial to try the officers or solcourt where the very subject-matter of the diers of other forces," although the volunteer controversy is Federal, however much want- troops organized under that act were musing in merit may be the averments which it tered directly into the service of the United is claimed establish the violation of the Fed- States without regard to state or territorial

lipes. eral right. The distinction between the

2. cases referred to and the one at bar is that

A court-martial entirely composed of officers which must necessarily exist between con

in the Regular Army of the United States,

who, by the 77th article of war, are “not troversies concerning rights which are cre

competent to sit on courts-martial to try the ated by the Constitution or laws of the Unit. officers or soldiers of other forces," is witbed States, and which consequently are in out jurisdiction to try an officer or soldier of their essence Federal, and controversies con- such other forces when convened for that solo cerning rights not conferred by the Consti- purpose. tution or laws of the United States, the 3.

Consent can confer no jurisdiction on a contention respecting which may or may not

court-martial composed entirely of officers of involve a Federal question depending upon

the Regular Army of the United States in die

rect violation of the 77th article of war, what is the real issue to be decided or the

which declares that such officers shall not substantiality of the averments as to the ex

be competent to sit on courts-martial to try istence of the rights which it is claimed are the officers or soldiers of other forces. Federal in character. The distinction finds 4. The invalidity of a court-martial constiapt illustration in the decisions of this tuted entirely of ofll cers in the Regular Army court holding that suits brought by or

of the United States in direct violation of against corporations chartered by acts of

the 77th article of war, declaring tbat such

officers “shall not be competent to sit on Congress are cases per se of Federal cogniz

courts-martial to try the officers or soldier ance. Osborn v. Bank of United States,

of other forces" can be raised on babeas cor Wheat. 817, 6 L. ed. 223; Teras & P. R. Co.

pus. v. Cody, 166 U. S. 606, 41 L. ed. 1123, 17 Sup. Ct. Rep. 703. It may not be doubted

(No. 610.) that if an action be brought in a circuit court of the United States by such a corpo- Argued April 28, 29, 1902. Decided May ration, there would be jurisdiction to en

19, 1902. tertain it, although the averments set out de festablish the wrong complained of or the A PORIAL From the Circuit Court of the character. The distinction is also well illus- to review an order discharging a prisoner trated by the case of Huntington v. Laidon habeas corpus in accordance with the ley, 176 V. S. 668, 44 L. ed. 630, 20 Sup. Ct. judgment of the Circuit Court of Appeals Rep. 526, where, finding that jurisdiction for the Eighth Circuit. Affirmed. obtained in a circuit court, this court held See same case below, in Circuit Court of that it was error to dismiss the action for Appeals, 113 Fed. 639. want of jurisdiction because it was deemed that the record established that the cause of Statement by Mr. Justice Peckham: action asserted was not well founded.

A petition for a writ of habeas corpus It follows that the court below erred in was presented to the circuit court of the dismissing the action for want of jurisdic. United States for the district of Kansas, first tion. Of course, in reaching this conclu- division, asking that Peter C. Deming, once sion we must not be understood as express- a captain in the subsistence department of ing any opinion as to the sufficiency of the the Volunteer Army of the United States, declaration.

might be produced by Robert W. McThe judgment of the Circuit Court is re- Claughry, the appellant herein, in whose versed, and the action is remanded for fur- custody Deming was placed, McClaughry ther proceedings, in conformity with this being the warden of the United States pris opinion.

on at Fort Leavenworth, Kansas. And it is so ordered.

On the part of Deming it was shown in the petition that he was imprisoned and re

strained by virtue of a sentence imposed (186 U. S. 49)

upon him by a general court-martial of the R. W. McCLAUGHRY, as Warden of the United States, convened at the Presidio of

United States Penitentiary at Fort Leav- San Francisco, California, by William R. enworth, Kansas, Appt.,

Shafter, Major General, United States Vol.

unteers, and Brigadier General of the Unit PETER C. DEMING.

ed States Army, retired, being of the age of

sixty-four years. The sentence imposed up Courts-martial-trial of volunteers by offi- on Deming by the court-martial was that he

cers in Regular Army of the United States should be disinissed from the service of tho

- consent as waiver of objection to juris- United States, and be confined in such peni. diction-review by habeas corpus. tentiary as the reviewing authority might

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