Chapter 320 of the Laws of North Carolina of 1891 was a valid
law, and the action of the Governor of the state under it in
suspending the plaintiff in error as Railroad Commissioner,
appointed under it, was, as construed by the Supreme Court of that
state, a valid exercise of the power conferred upon the Governor by
that act, and was due process of law, within the meaning of the
Constitution.
The federal question which is attempted to be raised in this
case is unfounded in substance, and does not really exist.
The judgment of the state court in this case operated of itself
to remove the plaintiff in error from the office of Railroad
Commissioner, and there is no foundation in the evidence for the
allegation that his successor knew of the filing of the supersedeas
bond when he took possession of the office, or was guilty of
contempt in doing so.
Two motions were made in this case. The defendant in error made
a motion to dismiss the writ on the ground of want of jurisdiction.
The plaintiff in error obtained from this Court a rule against the
relator, Caldwell, to show cause why he should not be punished as
for a contempt in proceeding upon the judgment of the state court
after a writ of error from this Court had been allowed, and a
supersedeas bond duly filed. The two motions were heard
together.
The following were the facts presented upon the motion to
dismiss:
By chapter 320 of the Laws of 1891, the General Assembly of
North Carolina passed an act creating a state railroad commission,
the first section of which is set out in the margin.
*
Page 169 U. S. 587
At the same session, the legislature passed another act making
such commission a court of record.
Under the authority of the first-mentioned act, James W. Wilson,
the plaintiff in error, was elected Railroad Commissioner by the
General Assembly of 1893 for the term ending April 1, 1899, and he
duly qualified, and entered upon the discharge of his duties as
such Railroad Commissioner.
On the 24th of August, 1897, the Governor sent a communication
to the plaintiff in error in which, after stating that it had been
charged that he had been guilty of a violation of the act above
mentioned, and giving the particulars regarding such violation, the
Governor directed him to show cause on a day named at the office of
the executive in Raleigh why he should not be suspended from
office, and a report thereof made to the next General Assembly
according to law, and he was directed on the return day of the
notice to make answer and proofs in writing, and to be present in
person or by counsel at his election.
On the return day the plaintiff in error appeared and denied in
writing the various charges contained in the Governor's
communication, after which, in explanation of the charges, he made
a written statement in regard to them. The plaintiff in error
demanded of the Governor that the evidence against him be produced,
and that he have an opportunity to confront
Page 169 U. S. 588
his accusers and cross-examine the witnesses. This demand was
refused.
After receiving the answer and explanation of the plaintiff in
error, and after hearing him upon the return day, the Governor
subsequently, and on the 23d of September, 1897, sent him a written
notice in which he said to the plaintiff in error
"that you have not only violated said act in the specification
set out in said act, but that you have otherwise, within the
meaning and intent and words of said act, become disqualified to
act."
The Governor therefore, assuming to proceed under the statute,
further informed the plaintiff in error that he thereby suspended
him
"from the office of Railroad Commissioner and chairman of said
commission, such suspension to continue until the question of your
removal or restoration shall be determined by a majority of the
General Assembly in joint session. The fact of your suspension,
together with the reasons therefor and the evidence, documents, and
information connected therewith will be reported to the next
General Assembly. You will further take notice that, under and by
virtue of the powers conferred and duties imposed by law upon the
chief executive, I have appointed L. C. Caldwell, Esq., of the
County of Iredell, to fill the vacancy created by your suspension.
Inasmuch as you are understood to deny the power of the executive
to suspend you from office, as provided by the statutes, I have
requested Mr. Caldwell to make demand upon you for the possession
of the office, and, upon your refusal, to bring action therefor, to
the end that the title to the office may be judicially
determined."
"D. L. Russell,
Governor"
The plaintiff in error, in reply to the communication of the
Governor, sent him the following letter:
"Raleigh, N.C.
September 24, 1897"
"To D. L. Russell,
Governor"
"Sir: Yours of the 23d inst. is hereby acknowledged. In reply, I
will say that I shall disregard your order to suspend, but will
continue to do business at the old stand until
Page 169 U. S. 589
removed by a tribunal other than a self-constituted 'star
chamber.'"
"Jas. W. Wilson"
"
Chairman Railroad Commission"
Mr. Caldwell duly qualified as Railroad Commissioner, and
thereupon demanded that the plaintiff in error should surrender the
office, papers, records, etc., to him, which the plaintiff in error
refused to do. Mr. Caldwell then obtained leave from the Attorney
General to bring this action in the nature of a
quo
warranto to test the title to the office. In the complaint,
the foregoing facts are set forth, and a judgment asked determining
the title to the office to be in relator and granting him judgment
for the possession thereof.
The defendant below served an answer in which it was admitted
that the Governor undertook or attempted to suspend the defendant
from his office, and that he designated the plaintiff (the relator)
for the vacancy which he had attempted to create, and that the
relator had taken the oath prescribed by law for Railroad
Commissioner. It was also admitted that the defendant refused to
vacate his office, or to surrender the same to the relator, and the
defendant alleged that he was advised that his suspension was
illegal, and that he was still entitled to discharge the duties of
his office. He also set up that, by an act of the General Assembly
of the state, the railroad commission had been constituted a court
of record inferior to the supreme court, to be known as the "Board
of Railroad Commissioners," and with general jurisdiction as to all
subjects embraced in the act creating the commission. Being a judge
of a court of record, the defendant alleged that the Governor had
no constitutional power to suspend him.
The answer then set forth the proceedings already mentioned,
resulting in the suspension of the defendant by the Governor, and
it also set forth the various demands made by defendant before the
Governor to be confronted with witnesses, and to have an
opportunity to cross-examine them, and the Governor's refusal of
those demands, and as a result the
Page 169 U. S. 590
defendant alleged that the Governor had, without evidence and
without trial, found that the defendant had violated the law, and
had become disqualified to act as Railroad Commissioner, and that
he had, without a more specific finding, assumed to suspend the
defendant, and deprive him of his office.
The defendant also alleged in his answer that the action of the
Governor was taken in violation of the Fourteenth Amendment of the
Constitution of the United States.
Upon these pleadings, the action came on for trial, and the
record states that
"at the conclusion of the reading of the pleadings, the
defendant tendered the following issues, and demanded a trial by
jury:"
"1. Is the plaintiff entitled to the office of Railroad
Commissioner?"
"2. Does the defendant unlawfully intrude into, hold, and
exercise the office of Railroad Commissioner and chairman of said
commission?"
"3. Has the defendant acquired any interest in any way in the
Southern Railway Company, in violation of law?"
"4. Has the defendant become disqualified to act as a fair judge
or commissioner, or has he become in any way disqualified to
act?"
"5. Did the defendant, prior to September 1, 1897, sell and
convey for a valuable consideration the Round Knob Hotel to R. M.
Brown?"
"6. Did the defendant demand of the Governor that the evidence
against him be produced, and that he have an opportunity to
confront his accusers, and cross-examine the witnesses against
him?"
"7. Was said demand refused?"
"8. Was any evidence produced?"
The court refused to submit these questions to the jury, and the
defendant excepted.
The plaintiff thereupon moved for judgment upon the complaint
and answer. The defendant objected that the motion was irregular,
and that the plaintiff should either demur or go to trial before
the jury, and that the statute in question, and the action of the
Governor, set out in the pleadings, deprived
Page 169 U. S. 591
defendant of his office without due process of law and denied to
him the equal protection of the laws in violation of the Fourteenth
Amendment to the Constitution of the United States, the protection
of which he expressly claimed.
The court ruled that the plaintiff was entitled to judgment upon
the pleadings, which judgment was thereupon rendered, and the
defendant excepted and appealed to the supreme court of the state.
After argument, that court adjudged that the defendant had been
lawfully suspended from the office of Railroad Commissioner; that
the relator had been duly appointed to fill the vacancy thus
created, and that the defendant should be ousted from, and the
relator inducted into, that office. Judgment to that effect was
accordingly entered. The defendant then sued out a writ of error
from this Court, which was allowed by the chief justice of the
supreme court of the state.
MR. JUSTICE PECKHAM, after stating the facts in the foregoing
language, delivered the opinion of the Court.
A consideration of the facts convinces us that the motion to
dismiss this writ of error for lack of jurisdiction ought to be
granted.
Under the statute of 1891, creating the railroad commission and
providing for the appointment, suspension, and removal of the
officers of such commission, the act of the governor in suspending
the plaintiff in error was not a finality. Before there could be
any removal, the fact of suspension was to be reported to the next
legislature by the governor, and unless that body removed the
officer, the effect was to reinstate him in office, and he then
became entitled to the salary during the time of his
suspension.
Page 169 U. S. 592
In speaking of the statute and the purpose of this particular
provision, the supreme court of the state said:
"The duty of suspension was imposed upon the Governor from the
highest motives of public policy, to prevent the danger to the
public interests which might arise from leaving such great powers
and responsibilities in the hands of men legally disqualified. To
leave them in full charge of their office until the next biennial
session of the legislature, or pending litigation which might be
continued for years, would destroy the very object of the law. As
the Governor was therefore, by the very letter and spirit of the
law, required to act, and act promptly, necessarily upon his own
findings of fact, we are compelled to hold that such official
action was, under the circumstances, due process of law. Even if it
were proper, the Governor would have no power to direct an issue
like a chancellor."
The highest court of the state has held that this statute was
not a violation of the constitution of the state; that the hearing
before the Governor was sufficient; that the office was
substantially an administrative one, although the commission was
designated, by a statute subsequent to that which created it, a
court of record; that the officer taking office under the statute
was bound to take it on the terms provided for therein; that he was
lawfully suspended from office, and that he was not entitled to a
trial by jury upon the hearing of this case in the trial court. As
a result, the court held that the defendant had not been deprived
of his property without due process of law, nor had he been denied
the equal protection of the laws.
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
Page 169 U. S. 593
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 the plaintiff in error was not deprived of any
right guarantied 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 a
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.
Upon this subject, it was said in the case of
Allen v.
Georgia, 166 U. S. 138, as
follows:
"To justify any interference upon our part, it is necessary to
show that the course pursued has deprived, or will deprive, the
plaintiff in error of his life, liberty, or property without due
process of law. Without attempting to define exactly in what due
process of law consists, it is sufficient to say that if the
supreme court of a state had acted in consonance with the
constitutional
Page 169 U. S. 594
laws of a state and its own procedure, it could only be in very
exceptional circumstances that this Court would feel justified in
saying that there had been a failure of due legal process. We might
ourselves have pursued a different course in this case, but that is
not the test. The plaintiff in error must have been deprived of one
of those fundamental rights the observance of which is
indispensable to the liberty of the citizen, to justify our
interference."
This statement is quoted with approval in
Hovey v.
Elliott, 167 U. S. 409,
167 U. S.
443.
No such fundamental rights were involved in the proceedings
before the Governor. 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 person 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.
In
Kennard v. Louisiana, 92 U. S.
480, the proceeding under which the title to the office
of justice of the supreme court of the state was tried was held not
to violate the Fourteenth Amendment of the Constitution of the
United States. The court said the officer had an opportunity to be
heard before he was condemned. There was no intimation in that case
that a hearing such as was had here would be insufficient, or that
the officer would be entitled to be "confronted with his accusers,
and to cross-examine the witnesses," and to have a jury trial. In
Foster v. Kansas, 112 U. S. 201, the
Kennard case was approved. Neither case gives any support
to the claim that such a hearing as was given in this case would be
insufficient under the Fourteenth Amendment.
Nothing in that amendment was intended to secure a jury trial in
a case of this nature.
The demand made by the plaintiff in error for such a trial in
the court below must have been for the purpose of submitting to the
jury the question of the truth of the allegations
Page 169 U. S. 595
set up in the answer regarding the proceedings before the
Governor, and to claim that, if the jury found them to be true, he
was not legally suspended. But the motion for judgment on the
pleadings was equivalent to a demurrer to the answer for
insufficiency, and was therefore an admission of all the facts well
pleaded. The question, then, became one of law for the court to
decide, and in granting the motion, the court did decide that no
defense was set forth in the answer. In a case like this, such a
decision of the state court is conclusive. The mere refusal of a
jury trial, in and of itself and separated from all other matters,
raises no federal question.
Walker v. Sauvinet,
92 U. S. 90.
In the proceeding for trying the title to office in the case of
Kennard v. Louisiana, supra, the statute provided for a
hearing without a jury, and this Court held it was not
objectionable for that reason.
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.
In
Hamblin v. Western Land Company, 147 U.
S. 531, it was stated that
"a real and not a fictitious federal question is essential to
the jurisdiction of this Court over the judgments of state courts.
73 U.
S. Hartupee, 6 Wall. 258;
New Orleans v New
Orleans Water Works Co., 142 U. S. 79,
142 U. S.
87. In the latter case, it was said that"
"the bare averment of a federal question is not in all cases
sufficient. It must not be wholly without foundation. There must be
at least color of ground for such averment, otherwise a federal
question might be set up in almost any case, and the jurisdiction
of this Court invoked simply for the purpose of delay."
We think this case falls within the principle thus stated.
Although an office has been held in North Carolina to be generally
and in a certain restricted sense the property of the incumbent,
yet in this case the supreme court held that the
Page 169 U. S. 596
incumbent, in taking the office, holds it subject to the act
creating it, which binds him by all its provisions, all of which
were held to be valid. We should be very reluctant to decide that
we had jurisdiction in such a case, and thus, in an action of this
nature, to supervise and review the political administration of a
state government by its own officials, and through its own courts.
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 his life, liberty, or property
in violation of the provisions of the federal Constitution.
We are of opinion that the facts herein present no such case,
and that the jurisdiction of this Court does not extend to the case
as made in the record now before us.
For these reasons, the motion of the defendant in error to
dismiss this writ should be granted, and the writ is
accordingly
Dismissed.
*
"There shall be three commissioners elected by the General
Assembly to carry out the provisions of this act. . . . Said
commissioners shall not jointly, or severally, or in any way, be
the holder of any stock or bond, or be the agent or attorney or
employee of any such company, or have any interest in any way in
such company, and shall so continue during the term of his office,
and in case any commissioner shall as distributee or legatee, or in
any other way, have or become entitled to any stock or bonds or
interest therein of any such company he shall at once dispose of
the same, and in case any commissioner shall fail in this, or in
case any one of them shall become disqualified to act, then it
shall be the duty of the Governor to suspend him from office and to
report the fact of his suspension, together with the reason
therefor, to the next General Assembly, and the question of his
removal from office shall be determined by a majority of the
General Assembly in joint session. In any case of suspension, the
Governor shall fill the vacancy, and if the General Assembly shall
determine that the commissioner suspended shall be removed, then
the appointee of the Governor shall hold until his successor is
elected and qualified as hereinbefore provided, but if the General
Assembly shall determine that the suspended commissioner shall not
be removed from his office, then the effect shall be to reinstate
him in said office. The person discharging the duties of said
office shall be entitled to a salary for the time he is so engaged,
but a commissioner who is suspended shall be allowed the salary
during his suspension in case he should be reinstated by the next
General Assembly."
--------
The following are the facts upon the motion to punish defendant
in error as for a contempt:
The plaintiff in error, after the entry of the judgment of the
supreme court affirming the judgment of ouster, sued out a writ of
error from this Court, which was duly allowed by the chief justice
of the supreme court of that state on the 23d day of December,
1897, and on the same day a good and sufficient bond, conditioned
as required by law in cases of supersedeas, was tendered, and the
chief justice duly approved it, and signed the citation. A few
minutes after seven o'clock in the afternoon of that day, the writ
of error, with the petition therefor, and the assignment of errors,
and the citation and bond, were filed in the clerk's office of the
state supreme court, and at the same time copies of the writ of
error were lodged in the clerk's office for the State of North
Carolina and for the relator. The plaintiff in error alleged, on
information
Page 169 U. S. 597
and belief, that the relator, with full knowledge of the issuing
of the writ and of the action of the chief justice, broke into the
room occupied as offices by the railroad commission and took
possession. The judgment of affirmance directed the issuing of a
writ of possession. On the morning of the 24th of December, 1897,
counsel for the relator made a motion in the state court to set
aside the supersedeas, while at the same time counsel for the
plaintiff in error made a motion that the execution of the writ of
possession issued on the judgment of the state court be recalled on
account of the supersedeas. Both motions were refused, and an
opinion delivered by Mr. Justice Clark, holding that the judgment
of the court
ex proprio vigore placed the relator in the
possession of the office at the time the judgment was filed, and
that such judgment took effect immediately upon being entered, and
it was not superseded by the subsequent writ of error, regular or
irregular. He also held that the court had no power to set aside
the writ of error or to pass upon the regularity thereof.
The relator made answer under oath. He Alleged that, after the
judgment of the Supreme Court of North Carolina was rendered, and
pursuant to its directions, a writ was issued out of that court at
half past five o'clock of that day, and was immediately placed in
the hands of the sheriff, and that the sheriff went to the offices
of the railroad commission for the purpose of executing the writ,
but that the plaintiff in error could not be found, and that he was
absent from the county and state for the purpose, as alleged, of
avoiding service of the writ; that the doors of the commission's
rooms were locked, and the sheriff left the building for the
purpose of getting keys or other means of entry, but did not
return, and that the relator, after waiting a reasonable time for
the return of the sheriff, and being advised by counsel that he had
good right in law so to do, procured the door of the room to be
opened, and he then entered therein, and assumed to exercise the
duties of the office of Railroad Commissioner.
He denied under oath that any notice of the filing of a
supersedeas by the plaintiff in error was served upon him, or that
he had any knowledge of the filing of said bond until
Page 169 U. S. 598
the day after the taking possession of the rooms of the
commission as above stated.
Plaintiff in error claims that, by virtue of the allowance of
the writ of error and the filing of the supersedeas bond the
relator was precluded from taking any step under the judgment of
the state court which ousted the plaintiff in error, and adjudged
the right to the office to be in the relator. It is argued that the
filing of a proper bond operates as a supersedeas of the judgment
in an action in the nature of a
quo warranto, as well as
in any other action.
United States v.
Addison, 24 How. 174. In that case, Addison held
the office of mayor of the City of Georgetown. Proceedings in the
nature of
quo warranto were commenced against him by the
United States on the relation of Crawford. Upon the trial of the
action, judgment of ouster was entered against the defendant. A
writ of error from this Court was sued out by him, and a sufficient
bond was filed. The relator applied to this Court for a peremptory
writ of mandamus to be directed to the judges of the circuit court
of the District of Columbia commanding them to execute the judgment
of that court by which Addison had been ousted, and the relator
adjudged entitled to the office. This Court denied the motion, and
decided that, after a writ of error had been sued out from this
Court, and the proper bond filed, further proceedings were stayed
in the court below. It was not a case where, immediately upon the
entering of the judgment of ouster, the court had directed the
possession of the office to be taken by the relator, who had taken
possession accordingly. The court was asked to actively intervene
to put the relator in possession of the office, notwithstanding the
allowance of a writ of error and the filing of a bond. The court
refused to do so, holding that the supersedeas bond stayed further
proceedings under the judgment.
Page 169 U. S. 599
In
Foster v. Kansas, 112 U. S. 201, the
Attorney General of Kansas had instituted a proceeding to remove
Foster, the plaintiff in error, from the office of county attorney
for Saline County. The Supreme Court of Kansas rendered judgment on
the 1st of April, 1884, removing Foster, and, under a statute of
the state making it his duty so to do, the judge of the district
court of Saline County, upon being presented with an authenticated
copy of the record of the supreme court which removed Foster, duly
appointed Moore to such office, and approved his bond on the 7th of
April. A writ of error from this Court had been allowed in
Washington on the 5th of April, and the supersedeas bond approved,
and citation signed. Although notice of these facts was telegraphed
on the same day from Washington to counsel in Kansas, who
immediately exhibited the telegram to the judge of the district
court and notified him of what had been done in Washington, yet
neither the writ of error nor the supersedeas bond arrived from
Washington until the 8th of April, on which day they were duly
lodged in the office of the clerk of the supreme court of the
state. Moore, the appointee of the district judge, thereafter
appeared as county attorney, and a rule was therefore granted
requiring him to appear before this Court, and show cause why he
should not be adjudged in contempt for violating the supersedeas.
This Court, after argument, held that he was not in contempt, and
that the supersedeas was not in force when Moore was appointed to
and accepted the office. The Court said:
"The judgment operated of itself to remove Foster and leave his
office vacant. It needed no execution to carry it into effect. The
statute gave the judge of the district court authority to fill the
vacancy thus created. The judge was officially notified of the
vacancy on the 7th, when the authenticated copy of the record of
the supreme court was presented to him. The operation of that
judgment was not stayed by the supersedeas until the 8th, that
being the date of the lodging of the writ of error in the clerk's
office. It follows that the office was in fact vacant when Moore
accepted his appointment. gave his bond, and took the requisite
oath. He was thus in office before the supersedeas became
Page 169 U. S. 600
operative. What effect the supersedeas had, when it was
afterwards obtained, on the previous appointment we need not
consider. This is not an appropriate form of proceeding to
determine whether Foster or Moore is now legally in office."
The rule was therefore discharged.
In this case, it is also true that the judgment operated of
itself to remove the plaintiff in error. The judgment also adjudged
the title to the office to be in the relator. After the filing of
the supersedeas bond, it may be assumed that further action under
the judgment was stayed. The question is whether the relator is
shown to be guilty of a contempt in proceeding to take possession
after he knew of the filing of the bond. He swears unequivocally
that he was ignorant of the fact of the allowance of a writ or the
filing of the bond at the time when he took possession of the room
occupied by the commission, and that he was not informed of that
fact until some time the next day. We think this a sufficient
answer to the case as it is now presented to us, and that any
further proceeding is rendered unnecessary because of our
conclusion to dismiss the writ of error for want of jurisdiction.
We see no evidence of any intentional contempt on the part of
relator and our conclusion is that the rule must be
Discharged.
