Boyd v. State of Nebraska/Dissent Field

Mr. Justice FIELD, dissenting.

I dissentfrom 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. I agree that the states of the American Union are not in all respects independent political communities; I agree that they do not possess that supreme political authotity which would entitle them to be called 'sovereign states,' in the full sense of those terms, as they are often designated. They are qualified sovereignties, possessing only the powers of an independent political organization which are not ceded to the general government or prohibited to them by the constitution. But except as such powers are ceded to the general government or prohibited to them, the states are independent political communities. This is not a matter of argument or inference, but is the express declaration of the tenth amendment. As forcibly stated by Mr. Justice NELSON, speaking for this court, 'the general government and the states, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other within their respective spheres. The former 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 government, within its sphere, is independent of the states.' Collector v. Day, 11 Wall. 113, 124. In no respect is this independence of the states more marked, or more essential to their peace and tranquility, 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. 4, § 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 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. Because an officer of a state must be a citizen of the United States, it does not follow that the tribunals of the United States can alone determine that fact, and that the decision of the state in respect to it can be supervised and controlled by the federal authorities. Nor is there any decision of this court that sanctions any such interference. There is a mere dictum in Missouri v. Andriano, 138 U.S. 496, 499, 11 Sup. Ct. Rep. 385, but no decision to that effect.

That case involved a contest between the parties for the office of sheriff of a county in Missouri. Among other things, the constitution of that state declared that no person should be elected to any office in the state who was not a citizen of the United States. The relator claimed to have been in possession of the office since 1884, and entitled to continue until his successor was elected, commissioned, and qualified; and that the respondent was not entitled to the office because he was not a citizen under the constitution of the United States, having been born in Germany, and not having been naturalized. To this the respondent replied, admitting his foreign birth, and that he had never been naturalized under the laws of the United States, but claiming that under the act of congress of 1802 he became and was a citizen by the naturalization of his father, that act providing that the children of citizens of the United States should, though born out of their limits and jurisdiction, be considered as citizens.

Under that act the supreme court of Missouri held that the respondent was a citizen of the United States. The case coming to this court, it was decided that, when a decision of a state court was in favor of a right or privilege claimed under a statute of the United States, this court had no jurisdiction to review it, and the writ of error was accordingly dismissed. In the opinion delivered by the justice of this court it was said that, had the judgment of the supreme court of Missouri been adverse to the claim of the respondent, there could be no doubt of his right to a writ of error from this court to review its ruling,-a question which was not in judgment, and what, therefore, was said respecting it was a mere dictum, without authoritative force.

The office of sheriff was not a right or privilege claimed under a law of the United States, but was a right or privilege claimed by the election under the laws of Missouri. The mere fact that it was necessary that the incumbent of the office should also be a citizen of the United States did not of itself give him a right to that office. It would, indeed, be a strange ruling to declare that an office which required the votes of the people of a state or of one of its districts was a right or privilege under a law of the United States, because one of the qualifications of the incumbent was that he should be a citizen of the United States. The necessity of referring to a law of the United States to ascertain what constituted citizenship did not make the respondent's right to the office dependent upon that fact in any such sense as to bring it within the cognizance of the federal courts. Equally might it be said that a contested claim to a seat in the legislature of a state could be brought under their cognizance when the ground of contest happened to be the disputed citizenship of one of the contestants. It is true the answer to the attempted exercise of jurisdiction by the courts in the latter case would be that it is the settled law of legislative bodies, and hitherto recognized in all our state contitutions, that each house shall be the exclusive judge of the election and qualification of its members. But no less settled, and hitherto universally recognized, in this country, is the law which vests exclusive jurisdiction in each state over the election, qualification, and installation of its chief executive. There seems to me to be the same inappropriateness and want of authority in proceeding in the federal courts for the office in the one case as in the other.

My objection to the decision is not diminished by the fact that there is no power in this court to enforce its decision upon the state of Nebraska should resistance be made to it. Should the incumbent declared by this court not to be entitled to the office refuse to surrender it, and the state authorities should stand by him in such refusal, what could be done about it? He might well say: 'I have been declared by the duly constituted suthorities of the state, who alone have the right to inquire into the matter, to be entitled to the office, and I deny the authority of the general government, or any department of it, to interfere with my possession of the office.' How could this court in such case enforce its order? The presence of the marshal with a posse to attempt it would be a painful exhibition of weakness. Would the court call upon the general government to sent an army into the state to force upon it a governor who has been declared by its duly constituted authorities not to be entitled to the office, and to oust the one who has been declared by them to be entitled to it?

I doubt whether any such proceeding would be successfully carried out, or that the attempt to do it would be sustained by the executive, or by congress, or by the people anywhere. I can see only mischief and trouble to follow from the assertion of any such power over the authorities of a state as is claimed in this case. If the right of this court to interfere in this case can be sustained, every candidate for office alleging that the successful party has not some qualification prescribed by statute, which can only be defined by reference to a federal law, will claim a right to invoke the interference of the federal judiciary to determine whether he ought or not to have been declared elected. There is always and naturally much bitterness and disturbing effect following interferences by the general government with affairs exclusively belonging to a state, and this result would be greatly augmented by recognizing the right here asserted as vested in the federal judiciary. Few things, in my judgment, would have a greater tendency to destroy the independence and autonomy of the states, redece them to a humiliating position, and engender constant irritation. Suppose the authorities of the state do decide erroneously as to the qualification of a person elected, if the state acquiesces in the decision, what public policy is to be subserved by invoking the interference respecting it of the federal authorities, whom the decision does not concern?

There is already sufficient irritation from alleged interferences, whether true or not, in local matters by such authorities, without adding to it a thousandfold by subjecting the qualifications of state officers and their installation to unauthorized federal scrutiny.

I therefore at the outset earnestly protest against the assumption of any such authority.