GREEN v. MILLS, 69 F. 852

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.