State ex rel. Barker v. Bowen
| Decision Date | 26 January 1877 |
| Citation | 8 S.C. 400 |
| Parties | STATE ex rel. BARKER, v. BOWEN. |
| Court | South Carolina Supreme Court |
An action in the nature of quo warranto does not lie in the name of the State to determine the title to the office of elector of President and Vice President of the United States and the objection can be made by the defendants under a plea to the jurisdiction of the State Court in which the action is brought.
An action to determine the title to an office can only be maintained by or in the name of the sovereign with whom the franchises and privileges of the office originated.
The franchises and privileges of the office of elector of President and Vice President originate and are exercised under the Constitution and laws of the United States and not under those of the State, though the power to appoint to the office is with the State.
The action in this case was brought originally in the Supreme Court. It was entitled " The State, ex relatione Theodore G. Barker, Samuel McGowan, J. I Ingram, Robert Aldrich, John W. Harrington, William Wallace and John B. Erwin, vs. C. C. Bowen, Timothy Hurley John Winsmith, Thomas B Johnston, William B. Nash, Wilson Cooke and William F. Myers," and was in the nature of quo warranto , and its object was to obtain the judgment of the Court upon the question whether the relators or the defendants had been elected electors of President and Vice President of the United States at the election held in the State on the 7th day of November, 1876. The relators were the candidates for electors nominated by the party which supported Samuel J. Tilden for the office of President of the United States, and the defendants were the candidates nominated by the party which supported Rutherford B. Hayes for the same office. The complaint alleged that the relators had received a majority of the votes cast at the election and that the Board of State Canvassers had falsely and fraudulently determined and certified the defendants as the persons elected; that the certificate of election had been given to them, and that they claimed the right to exercise the functions of the office of electors of President and Vice President.
James Conner , with whom was John B. Gordon , for relators.
This is an action in the nature of quo warranto brought by the plaintiffs claiming to have been elected to perform the functions of electors of President and Vice President of the United States for the State of South Carolina, at a general election held in and for this State on the 7th day of November, A. D. 1876, and complaining that the defendants, claiming to have been elected at such general election of President and Vice President, have procured certificates of such election to be issued to them by the Secretary of State of this State and claim to exercise the offices of such electors, whereas, as they allege, said defendants were not so elected. The prayer of the complaint is that the defendants may make answer to the State and show what warrant or authorty they have to use and enjoy the offices, liberties, privileges and franchises aforesaid. The defendants have answered, pleading to the jurisdiction of the Court, without setting up any other defense.
If, then, this Court should conclude that it possessed full jurisdiction in the premises, judgment final in behalf of the plaintiffs would necessarily follow from the state of the pleadings.
This Court possesses, under Section 4, Article IV, of the Constitution of this State, jurisdiction in case of quo warranto , and, since the adoption of the Code of Procedure, (Section 443,) that jurisdiction has been exercised in the form of an action in the nature of quo warranto.- Alexander vs. McKenzie , 2 S. C., 81; State , ex rel. Barker , vs. Bowen, (ante, p. __.) If any want of jurisdiction exists, it must arise either from the nature of the rights alleged to be wrongfully exercised by the defendants or from the character of the parties that stand before us as plaintiffs.
The question before us was discussed by the counsel for the defendants chiefly from the general proposition that national questions belong to the national Courts and State questions to the State Courts. On this general theory it was urged that, as the controversy related to the title of the respective parties to an office created under the Constitution and laws of the United States, the case was one necessarily of cognizance in the United States Courts and improper for the consideration of a State tribunal.
I know of no such test as to the relative jurisdiction of the Courts of the United States and of the States as that contended for.
As a general rule, the State Courts have concurrent jurisdiction with the United States Courts of questions arising under the Constitution and laws of the United States.
This concurrent jurisdiction is the basis of transfer, in certain specified cases, from the Courts of the States to those of the United States.-Act of Congress, March 3, 1874-75, 472. Certain cases of this general class, among which the most characteristic are those affecting international commerce and diplomatic intercourse in a particular way, and certain cases immediately affecting the national revenues and administration, are exclusively conferred upon the Courts of the United States; but these must be regarded as exceptions to the more general rule of concurrent jurisdiction.
The jurisdiction of the United States Courts, arising from the character of the parties, rests on special grounds not affecting the general proposition.
Such a scheme of divided jurisdiction resting upon dual Courts as would result from the application of the rule contended for would have deprived the judicial system of the country of organic stability and committed it to the consequences flowing from the attrition between inharmonious parts. As long as we have judicial unity no serious inconvenience is likely to arise from the fact that our laws spring from two distinct sources-the one supreme as to certain subjects, and the other final as to all other subjects not prohibited by it. Both legislative jurisdictions blend in giving shape to the rights of citizens. These rights, from their nature, must be cognizable as to their entirety by a judicial body. Two judicial administrations, acting independentely upon the same rights or subject matter, each limited to tracing the operation of laws derived from a particular source upon such rights or matter in controversy, would present an anomaly consistent with neither sound theory nor experience. The Constitution and legislation of the United States has, on the whole, embodied the highest practical wisdom in solidifying the national and State judicial systems, by making every Court in the land subject to all consequences flowing from a dual legislative system. Congress has effectuated this purpose by drawing the line that divides their jurisdiction, when not influenced by the character of the parties, upon the nature of the rights capable of being brought into controversy and not upon any theory of committing the interpretation of the national Constitution and laws to one body, and that of State Consitutions and laws to another.
It follows that, should it appear that both the rights in controversy and those to which the controversy relates arose or derived their essential features from the Constitution and laws of the United States, that fact would not of itself defeat the jurisdiction of the Court otherwise than by means of transfer to the concurrent authority of the United States Circuit Court, where the questions to be considered arose under the Constitution and laws of the United States; but it would be necessary, in order to attain that end, to show that the case belongs to a category either conferred exclusively on the United States Courts or prohibited to the State Courts.
The real point of difficulty in the present case was not noticed by the counsel for the defendants. It arises out of the general rule governing the writ of quo warranto , and therefore applicable to formal proceedings serving as a substitute for that remedy. The present action is brought in the name of the State of South Carolina. Can it be maintained in the name of the State? And if not, does not that circumstance prevent judgment? If so, a further question will arise whether that defeat can become available to the defendants under their present plea to the jurisdiction, notwithstanding that the objection was not taken by them in form.
The familiar rule governing proceedings quo warranto is that only the sovereign with whom the office, franchise or liberty-that is, the subject of...
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