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the various Reconstruction Acts passed by Congress, went on itself to assume the practical control of the establishment of new governments; and these governments it termed republican in form, though they were imposed upon the States against the will of the great bulk of their citizens, and were maintained in existence by the support that the federal bayonet was able to give them. Furthermore, Congress even then refused to admit the States to a full enjoyment of constitutional rights until they had amended their Constitutions in certain specific ways, and ratified the Fourteenth and Fifteenth Amendments to the federal Constitution. In so doing, not only was violence done to the guaranty clause, but the States in question were deprived of that equality with the other States of the Union to which they were constitutionally entitled.

In an earlier chapter it has been pointed out that in the famous case of Texas v. White12 the Supreme Court construed the " guaranty" clause of the United States Constitution to authorize Congress to establish and maintain governments in those States which had attempted secession from the Union. It will be remembered, however, that in that case the court did not feel itself called upon to pass upon the constitutionality of any of the particular provisions of the Reconstruction Acts which were enacted by Congress in the exercise of that power, but was content with satisfying itself that the government which had been established and had been in actual operation, had been recognized by Congress, and was, as such, competent to bring suit in behalf of the State of Texas, which, it was declared, had never been, despite its ordinance of secession, out of the Union.13

In White v. Hart1 an attempt was made to have the Supreme Court hold void certain provisions of the reconstruction Constitution of Georgia on the ground that the Constitution had been adopted under the dictation and coercion of Congress, and was not thus, in reality, the act of the State. The Supreme Court replied: "Congress authorized the State to frame a new Constitu

12 7 Wall. 700; 19 L. ed. 227.

13 See ante, p. 85.

14 13 Wall. 646; 20 L. ed. 685.

tion, and she elected to proceed within the scope of the authority conferred. The result was submitted to Congress as a voluntary and valid offering, and was so received and so recognized in the subsequent action of that body. The State is estopped to assail it upon such an assumption. Upon the same grounds she might deny the validity of her ratification of the constitutional amendments. The action of Congress upon the subject cannot be inquired into. The case is clearly one in which the judicial is bound to follow the action of the political department." In short, the court held that whether or not Congress was justified in requiring of the State that, as a condition to her again enjoying representation in Congress, she should adopt a Constitution containing certain provisions, the State had yielded and adopted a Constitution as required. It was therefore her act, and its provisions were valid as such. Had she continued to refuse to accede to the conditions imposed by Congress, it might ultimately have been necessary to decide whether those conditions were constitutionally requirable. But having yielded to them, the court very properly held that it could not examine into the motives or circumstances which led the State to do so.

§ 81. Restricted Suffrage Compatible with Republic Form of Government.

In Minor v. Happersett15 the point was raised that a state gov ernment is not republican in form in which adult women are not permitted to vote. As to this the court said: "The guaranty is of a republican form of government. No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended. The guaranty necessarily implies a duty on the part of the States themselves to provide such a gov ernment. All the States had governments when the Constitution was adopted. In all the people participated to some extent, through their representatives elected in the manner specially pro15 21 Wall. 162; 22 L. ed. 627.

vided. These governments the Constitution did not change. They were accepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Constitution. As has been seen [in the argument that has gone before], all the citizens of the States were not invested with the right of suffrage. In all, save perhaps New Jersey, this right was only bestowed upon men and not upon all of them. Under these circumstances it is certainly now too late to contend that a government is not republican, within the meaning of this guaranty in the Constitution, because women are not made voters." 16

Precedents have established the principle that where there is a dispute in a State as to the de jure character of a particular organ of its government, as, for example, as to which of two individuals has been elected as chief executive, or which of two courts or legislatures is entitled to authority, the Federal Government will not ordinarily interfere, being governed by the principle that each state government has a tribunal for the decision of such contests, and that the General Government will consider itself bound by the decision which that tribunal renders, just as the federal courts hold themselves bound by the decisions of the state courts as to the existence and, in general, the interpretation of their respective state statutes.1 17

In two classes of cases, however, the Federal Government exercises the right to decide which of two contesting state officials or organs is to be recognized as the de jure authority. The first of these includes those cases in which a decision becomes necessary in order to determine a matter of direct federal concern. Thus, for example, when each of two contesting state legislatures select and send senators to Congress, it is necessary for the United States Senate to decide which of the two electing bodies is endowed with the authority to act on that behalf for the State. So, also, as in

16 In this case was also negatived the assertion that to deny women the suffrage is to deprive them of a right guaranted to them by the Fourteenth Amendment.

17 See post, Chapter LII.

the case of Dorr's Rebellion, where federal aid is needed to suppress domestic disorder, it is necessary for the President or Congress to determine which government, claiming authority, it will recognize.

The second class of cases in which the Federal Government, through its Supreme Court, will assume jurisdiction where there is dispute between parties as to who is entitled to a state office, include those in which there is a question whether the state laws, as applied by the state authorities, have violated that provision of the Fourteenth Amendment which declares that no State" shall deprive any person of life, liberty, or property, without due process of law," or have violated the tenth section of Article One of the Constitution of the United States, which declares that no State shall pass a law impairing the obligation of a contract.

§ 82. Public Office not a Property or Contract Right.

The Supreme Court of the United States has held in an unqualified manner, that as between a State and an office-holder, there is no contract right possessed by the latter either to the office or to the salary attached to it, and that, therefore, in the absence of express constitutional provision otherwise, his removal from office or the abolishment of the office itself gives to him no cause of action against the State. Thus in Butler v. Pennsylvania's after defining vested private rights of property, the court said: "The contracts designed to be protected by the tenth section of the first article of that instrument are contracts by which perfect rights, certain definite, fixed, private rights of property, are vested. These are clearly distinguishable from measures or engagements adopted or undertaken by the body politic or state government for the benefit of all, and from the necessity of the case, and according to universal understanding, to be varied or discontinued as the public shall require. The selection of officers, who are nothing more than agents for the effectuating of public purposes, is matter of public convenience or necessity, and so, too, are the periods for the appointment of such agents; but neither

18 10 How. 402; 13 L. ed. 472.

the one nor the other of these arrangements can constitute any obligation to continue such agents, or to reappoint them, after the measures which brought them into being shall have been found useless, shall have been fulfilled, or shall have been abrogated as even detrimental to the well-being of the public. The promised compensation for services actually performed and accepted, during the continuance of the particular agency, may undoubtedly be claimed, both upon principle of compact and of equity; but to insist beyond this on the perpetuation of a public policy either useless or detrimental, and upon a reward for acts neither desired nor promised, would appear to be neither reconcilable with natural justice nor with common sense. The establishment of such a principle would arrest necessarily everything like progress or improvement in government; or if changes would be ventured upon, the government would have to become one great pension establishment on which to quarter a host of sinecures. It would especially be difficult, if not impracticable, in this view, ever to remodel the organic law of a State, as constitutional ordinances must be of higher order and more immutable than common legislative enactments, and there could not exist conflicting constitutional ordinances under one and the same system. It follows, then, upon principle, that, in every perfect and competent government, there must exist a general power to enact and to repeal laws; and to create, and change or discontinue, the agents designated for the preservation of the body politic, and for the safety of the individuals of the community. It is true that this power or the ex tent of its exercise may be controlled by higher organic law or the Constitution of the State, as is the case in some instances in the state Constitutions, and is exemplified in the provision of the federal Constitution relied on in this case by the plaintiffs in error, and in some other clauses of the same instrument; but where no such restriction is imposed, the power must rest in the discretion of the government alone."

Again, summing up the law on this subject, the Supreme Court in Taylor v. Beckham' "The decisions are numerous to the

19

say:

19 178 U. S. 548; 20 Sup. Ct. Rep. 890; 44 L. ed. 1187.

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