A suit instituted to try the title of a party to a state office,
whereof he is the incumbent and whereto he was, by the constituted
authorities of the state, duly declared to be elected pursuant to
her laws, cannot be removed from one of her courts into the circuit
court of the United States on his petition setting forth that by
reason of bribery and threats, colored persons who were qualified
to vote at the election and who would have voted for him were
deterred from voting, and that the returning board rejected the
votes of the parishes where such illegal practices prevailed.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This suit was brought by the State of Louisiana on the relation
of John C. Moncure in the Sixth District Court for the Parish of
Orleans on the 20th of March, 1877, to try the title of Dubuclet,
the plaintiff in error, to the office of treasurer of state, the
duties of which he was performing under a commission from the
governor dated Dec. 31, 1874. The allegations of the petition are
in substance that Moncure was in fact elected to the office at an
election which was held on the 2d of November, 1874, but that the
returning board, by a false and illegal canvass and compilation of
the votes, declared that a majority were in favor of Dubuclet, who
was thereupon commissioned.
On the 2d of April, 1877, Dubuclet filed his petition for the
removal of the suit to the Circuit Court of the United States for
the District of Louisiana. This petition was granted by the state
court, but when the case got to the circuit court, it was remanded
on the ground that it was not in law removable. To reverse that
order of the circuit court, this writ of error was brought.
Page 103 U. S. 551
It is conceded that according to the decisions in Strauder
v. West Virginia, 100 U. S. 303
Virginia v. Rives, 100 U. S. 313
case was not made for removal under sec. 641, Rev.Stat. We think it
equally clear that the showing in the petition was not sufficient
to effect a transfer under the second section of the Act of March
3, 1875, c. 137, 18 Stat. 470. The averments relied on for this
purpose are as follows:
"Petitioner further represents that at the election held in this
state on the ___ day of November, A.D. 1874, for state treasurer,
at which petitioner was a candidate, that in the Parishes of De
Soto, Bienville, Union, Grant, and other parishes of the state,
there were more than five thousand citizens of color of the State
of Louisiana and of the United States qualified by law to vote at
said election and who offered to vote, and if they had been
permitted to vote would have voted for petitioner, and against Jno.
C. Moncure, relator, and who were prevented, hindered, and
controlled and intimidated from voting for petitioner by relator
Moncure and those acting in his interest by means of bribery,
threats of depriving them of employment and occupation, and of
ejecting them from rented houses, lands, and other property, and by
threats of refusing to renew leases or contracts for labor, and by
threats of violence to them or their families, in violation of
their and your petitioner's civil rights, and in violation of the
laws of the United States, made and enacted to protect the civil
rights of citizens of color and previous condition of servitude.
Page 103 U. S. 552
"Petitioner further represents that in consequence of said
illegal acts and violation of the laws of the State of Louisiana
and the United States by relator Moncure, and those acting in his
interest, at and before said election, and for the purpose of
defeating your petitioner for treasurer of the State of Louisiana,
that the returning officers of election of the State of Louisiana,
in accordance to law and their swore duty, duly returned your
petitioner elected, by rejecting the votes cast in the several
parishes and at the several polls where relators, in their
petition, complain the vote should have been counted in his,
Moncure's favor, and where they complain the vote should not have
been counted in favor of petitioner."
"Petitioner further represents that the suit of the relator is
for the object and purpose of depriving your petitioner of the
office of Treasurer of the State of Louisiana by reason of the
denial of the aforesaid citizens the right to vote on account of
race, color, and previous condition of servitude in violation of
the laws of the United States made to protect the equal civil
rights of petitioner and those offering to vote for him, and by
reason of the right guaranteed by the Fifteenth Article of
Amendment to the Constitution of the United States."
If all that is here alleged be true, it does not show a case
"arising under the Constitution or laws of the United States." If
Moncure was guilty of what is charged against him, he had violated
the provisions of sec. 5507 of the Revised Statutes, but that gave
Dubuclet no right, under the laws of the United States, to have the
entire vote of the designated parishes thrown out by the canvassers
of the election. Moncure might have been prosecuted for what he had
done, but neither his prosecution, conviction, nor punishment would
of itself set aside the vote of the parishes or polls as returned.
The effect of such conduct on the validity of the election
depended, so far as this record shows, on the laws of the state,
and not on those of the United States. Whether Moncure and those in
his interest have been guilty of a crime punishable by law may
depend alone on the laws of the United States, but the United
States have not as yet attempted to declare what effect such
unlawful acts shall have on the election of a purely state officer.
The laws of Louisiana, it is conceded, gave colored men the right
to vote at all elections, and because in this case they were
prevented by intimidation from exercising that privilege, the
properly constituted canvassing board of the state, acting, as is
alleged by Dubuclet in his petition, "in accordance to law and
their sworn duty," rejected all votes from the parishes and polls
where intimidation occurred, and thus found that he was elected.
Had the vote of these parishes been counted, the result would have
been in favor of Moncure. Thus, according to Dubuclet's own
showing, his right to his office depends on the laws of the state.
Because the laws of the state required the returning board to
reject the votes of the parishes and polls where intimidation,
whether of white or colored voters,
Page 103 U. S. 553
materially interfered with the election, the majority of the
votes cast at the election, which could be counted, were in his
favor, and therefore he is in office. Such is in effect his
allegation in the petition for removal. Clearly, then, on his own
showing, his right arises not so much under the Constitution and
laws of the United States as under those of the state.
Sec. 2010, Revised Statutes, gives one who "is defeated or
deprived of his election" to such an office as Dubuclet holds the
right of suing for his office in the courts of the United
"where it appears that the sole question touching the title to
such office arises out of the denial of the right to vote to
citizens who so offered to vote on account of race, color, or
previous condition of servitude."
That certainly is not this case, for Dubuclet, instead of being
defeated or deprived of his election, is now in office under his
election duly declared pursuant to the laws of the state, and
exercising all the duties of his place and enjoying all its
privileges. This section provides for an original suit by one out
of office to get in, but not for the removal of a suit against one
in office to put him out. It is unnecessary to discuss the validity
of the law in its application to purely state offices, for it does
not affect this case. It is one thing to have the right to sue in
the courts of the United States, and another to transfer to that
jurisdiction a suit lawfully begun in a state court.
We think it clear that the circuit court ought not to have taken
jurisdiction of the case.