power to do after the act of 1890 whatever petitioners had obtained any such "right" at it might have done before. But we think the time of the repealing act of 1889, as this is giving to the words "subject to future could be said to be then "existing or ac territorial legislation" too broad a scope. It crued," and thereby saved by this section, was doubtless intended by these words to inasmuch as they had obtained no judgment give to the territorial legislature power to upon the refunding bonds before applying make such new regulations concerning the for a writ of mandamus, as was the case in funding act as future exigencies might seein Memphis v. United States, 97 U. S. 293, 24 to require. This power was properly exer- L. ed. 920, although, it is true, they had obcised in the territorial act of March 19, 1891. tained the opinion of this court that such Congress itself exercised the same power of bonds should issue. amendment by its acts of July 13, 1892, But without expressing an opinion upon August 3, 1894, and June 6, 1896. While this point, we think that the petition for we held in the recent case of Shuerman v. this mandamus was a "proceeding theretoArizona, 184 U. S. 342, ante, 406, 22 Sup. Ct. fore taken" within the meaning of the savRep. 406, that the territorial statute of 1887|ing clause of § 2934, and that the right of was the foundation for the appointment of the petitioners was saved thereby, even if it the loan commissioners, and that their au- be conceded that the loan commission had thority must be exercised in the manner pre-been abolished. In the case of Memphis v. scribed by the territorial laws, it by no United States, already alluded to, it was means follows that it was within the con- said that "when the alternative writ of mantemplation of Congress to authorize the leg- damus was issued March 22, 1875, a proceedislature to repeal the act of 1890 under ing was commenced under or by virtue of which their existence was continued. It the statute." The defendants insist that was entirely reasonable to assume that the the action or proceeding must have resulted territorial legislature might wish to extend in a judgment prior to the repealing stat the power of refunding the bonds to those is-ute, in order that the rights should be saved sued by its own municipalities, as well as by § 2934. This, however, confounds the by itself, as it did by the act of March 19, distinction between a "right" already "ex1891, but it is inconceivable that, after hav-isting or accrued" and an "action or proceeding passed a complete and independent acting theretofore taken," since, if the proceedof its own for the refunding of territorial ing had culminated in a judgment, the latbonds, Congress should authorize a territor- ter clause would be superfluous, and the ial legislature to repeal it. While the ter-judgment would be saved by the former ritorial and congressional legislation subse-clause with respect to a right already exist quent to the act of Congress of June 25, 1890, ing or accrued. Every word or clause used has but little bearing upon the question now in a statute is presumed to have a meaning in controversy in this case, it indicates of its own, independent of other clauses, and plainly that, under the power given for fu- if a statute preserve, not only rights, but ture territorial legislation, it was contem- proceedings, it will be presumed that the plated that such legislation should be in fur-legislature intended to save both classes, and therance and extension of the main object to give to "proceeding taken" a broader of the act of 1890, whereby the power of re- meaning than would be indicated by the funding territorial indebtedness should be words "right existing or accrued." extended to the indebtedness of counties, municipalities, and school districts of the territory, and that it could not have been contemplated that power should be given to the territorial legislature to abolish the whole system without the consent of Congress.

The result is that, even if we are mistaken in saying that the congressional act of 1890 operated as a repeal of the territorial act of 1887, it is still a separate and independent act which it was beyond the territorial legislature to repeal, and that the office of loan commissioners, continued by the act, was not terminated by the repeal of 1899.

3. The only remaining questions urged against the issue of a mandamus in this case is that these bonds do not come within the provisions of the act of June 6, 1896, for the reason that the Arizona legislature, finding that an attempt was being made to include the bonds in question in that act, adopted certain memorials in 1897 and 1899 urging the President to veto the act of Congress legalizing the bonds, and urging upon Congress to pass such legislation as would exclude from the provisions of the act of June 6, 1896, the bonds issued by Pima county to the Arizona Narrow Gauge Railroad Company, so that the act should not be so construed as to validate these bonds. These memorials, however, seem to have been "2934 (Sec. 7). The repeal or abrogation unsuccessful. No interest, however, was of any statute, law, or rule does not revive paid upon the bonds, and it was shown by any former statute, law, or rule theretofore the findings of fact that the present owners, repealed or abrogated, nor does it affect any Coler & Company, bought them as they maright then already existing or accrued at the tured with notice that the first coupons had time of such repeal, or any action or proceed- been protested, and that the bonds had been ing theretofore taken, except such as may be repudiated by Pima county from the start. provided in such subsequent repealing stat-The court below, however, made a finding of ute, nor shall it affect any private statute not expressly repealed thereby."

But, in addition to this, there is a saving clause in the Revised Statutes of Arizona of 1887, which provides as follows:

It may admit of some doubt whether the

fact from which it appeared that the original bonds of Pima county were issued in lit'eral compliance with an act of the territory

the judgment of the Supreme Court of Arizona, ordering a peremptory mandamus to issue to the present loan commissioners, was right, and it is therefore affirmed.

Mr. Justice Gray did not sit in this case, and took no part in its decision.

(185 U. S. 487)

THOMAS SWAFFORD, Plff. in Err.,

v.

W. A. TEMPLETON and S. H. Pearcy. Jurisdiction of circuit court-Federal question-case involving right to vote for member of Congress.

An action to recover damages from state election officers for their asserted wrongful refusal to permit the plaintiff to vote for a member of the House of Representatives, at a national election held in the district where he resided, is one arising under the Constitution of the United States, of which a circuit court of the United States has jurisdiction.

[No. 487.]

1902.

ERROR to the Circuit Court of the

of Arizona, approved February 21, 1883, in exchange for bonds of the Narrow Gauge Railroad Company. It is true that the county of Pima derived little or no benefit from the building of the few miles of railroad, but, as was said by the supreme court, "there was nothing in evidence showing bad faith on the part of the railroad company, in so far as the first exchange of bonds was concerned, nor is there any evidence which shows bad faith on the part of the company or its contractor, Walker, and his principals, Coler & Company, except their failure to continue the building and equipment of the road after the completion of the 30 miles of grading and laying of 10 miles of track, except such inferences as may be drawn from the fact that both the railroad company and Coler & Company had difficulty in raising the money for the payment of the work done, and did not have the resources to go on and complete the work. Can the court say that, notwithstanding the fact that the bonds were exchanged in compliance with the terms of the act of February 21, 1883, they are invalid and not within the provisions of the act of Congress of June 6, 1896, because subsequent to their issue the original holders of those bonds failed to Submitted April 14, 1902. Decided May 19, complete the railroad, and the county of Pima thereby received no benefit from the same? The question of a failure of consideration is to be distinguished from that of an exchange of bonds in good faith under the act of June 6, 1896, unless the failure of consideration was due to a failure on the part of the holders of the bonds to comply with the provisions of the act authorizing their issuance. The legislative act was exceedingly liberal in its terms, and contained no safeguard against the failure of the rail- Statement by Mr. Justice White: road company to build or operate the road. *This action was begun by Swafford, plainThe only provision looking to the protec- tiff in error, in the circuit court of the Unittion of the county was the one which re-ed States for the southern division of the quired a certificate of the county surveyor, eastern district of Tennessee. Templeton showing that each 5 miles of the road was and Pearcy, defendants in error, were made graded and laid with ties and iron, as a con-defendants to the action, the object of which dition precedent to the exchange of each $50,000 of county bonds for a like amount of railroad bonds. As the supreme court has held in this case, Congress, by the act of June 6, 1896, validated the territorial act of February 21, 1883. And as the latter did not make the completion of the road a condition precedent to the issuance of the bonds, nor make their validity dependent upon the subsequent conduct of the railroad company, bad faith cannot be predicated of the transaction so long as there was not only a substantial compliance, but a literal as well, with the requirements of the act under which they were issued." [64 Pac. 432.] But a further answer to these objections to the validity of the bonds is that all the facts upon which these objections are founded existed and were known to the loan commissioners at the time the original answer was filed and before the case of Utter 7. Franklin was heard or decided by this court, and should have been then set up as a defense upon the merits.

Upon the whole case we are of opinion that

of Tennessee to review a judgment dismissing a suit to recover damages for the refus al by election officers to permit the plaintiff to vote for a member of the House of Repre sentatives. Reversed.

See same case below, 108 Fed. 309.

was to recover damages for an asserted wrongful refusal by the defendants to permit the plaintiff to vote at a national election for a member of the House of Representatives, held on November 6, 1900, in the district of the residence of the plaintiff.

The declaration expressly charged that the plaintiff was a white man, a naturalborn citizen of the United States, and was such on November 6, 1900, and had been for many years prior thereto a resident and duly qualified voter in the county of Rhea, state of Tennessee, and, as such, entitled, under the Constitution and laws of the United States and of the state, to vote for members of Congress, and that he had been illegally deprived of such right by the defendants, when serving as election officers at an election held on November 6, 1900, in the district of the residence of the plaintiff, in said county of Rhea.

The declaration specified the manner in which the right which it was asserted existed under the Constitution and laws of the United States and of the state had been vio

488

After hearing upon the demurrer, the court filed an opinion in which it said that it clearly appeared from the declaration that the action did not really and substantially involve a Federal question, and that the court was without jurisdiction or power to entertain the suit. 108 Fed. 309. An entry was made sustaining the demurrer and dismissing the suit, and it was recited that the dismissal was solely because of the want of jurisdiction. A certificate of the judge, moreover, was filed, which is as follows:

lated, as follows: That for a number of that, as prior to the adoption of the 14th years there had been in force in Tennessee Amendment to the Constitution of the Unitcertain special registration and ballot laws, ed States, plaintiff enjoyed*the elective franwhich were operative only in counties con- chise, by virtue of that amendment and of taining a population of 50,000 inhabitants enumerated provisions of the state Constitu or over, and in cities, towns, and civil dis- tion "plaintiff became, and was, possessed tricts having a population of 2,500 inhabit- of the right of suffrage as an immunity or ants or over; that Rhea county was not, privilege of citizenship, of which he could prior to 1899, affected by the legislation in not be deprived by the enactment of chapquestion, because it did not have a popula-ter 163 (the law of 1899) under the circumtion of 50,000 or upwards, and had no town, stances aforesaid." city, or civil district within its borders con- The defendants filed a demurrer questiontaining a population of 2,500; that, not being the sufficiency of the declaration upon ing subject to the operation of the statutes various grounds. in question, the elections in Rhea county, as in other counties similarly situated, were governed by, and conducted in accordance with, the general election laws prevailing in the state of Tennessee; that in 1899 the legislature of Tennessee passed a law known as chapter 163 of 1899, by which the civil districts or subdivisions theretofore existing in Rhea county were diminished in number, and so arranged as to cause the civil district in which the plaintiff lived and was entitled to vote to contain a population of over 2,500 inhabitants, and therefore to become "In this cause I hereby certify that the subject to the aforesaid special registration order of dismissal herein made is based soleand election laws, if the redistricting law in ly on the ground that no Federal question question was valid. It was further averred was involved, and that the declaration, in that at the election held on November 6, my opinion, disclosed the infraction of no 1900, for a member of Congress, the defend- right arising under or out of the Federal ants, who were a majority of the election laws or Constitution; and that treating the judges conducting such election, when the demurrer as presenting this question of ju complainant presented himself to vote, in- risdiction, and acting also independently of sisted that he mark his ballot, and fold it in the demurrer, and on the court's own mo a particular way without assistance, as re- tion, the suit is dismissed only for the reaquired by the special ballot law. It was as- sons above stated; that is, that the controserted that this demand by the election offi-versy not arising under the laws and Concers was lawful if the special ballot law ap-stitution of the United States, there is conplied to the conduct of the election, but was sequently no jurisdiction of the circuit court unlawful if the election in Rhea county was of the United States. not subject to such special law, and was controlled by the general election law of the state. Averring that he was an illiterate person, and unable to mark or fold his ballot unassisted, and was therefore not able to comply with the provisions of the special ballot law referred to, it was alleged that the vote of plaintiff was rejected by the defendants, despite the insistence of the plaintiff that the election ought legally to have been conducted according to the requirements of the general law, and not by those of the special law, for the reason that the redistricting act of 1899 was absolutely

void.

"This certificate is made conformably to act of Congress of March 3, 1891, chapter 517, and the opinion filed herein April 30, 1901, is made a part of the record, and will be certified and sent up as a part of the proceedings, together with the certificate."

Mr. Frederick Lee Mansfield for plaintiff in error. Mr. Jerome Templeton for defendant in error.

*Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

The grounds upon which it was alleged that the act of 1899 redistricting Rhea coun- The sole question is, Did the circuit court ty was void may be thus summarized: Be-err in dismissing the action, on the ground cause it was class legislation in violation that it was not one within the jurisdiction of the Federal Constitution," it being as of the court? An affirmative answer to this serted that said law was enacted for parti- question is rendered necessary by the deci san purposes, and that, although there were sion in Wiley v. Sinkler, 179 U. Š. 58, 45 L. other counties in the state similarly situ-ed. 84, 21 Sup. Ct. Rep. 17. In that case ated as was Rhea county, the civil districts the action was brought in a circuit court of as laid out by the county courts in such oth- the United States against state election ofer counties, pursuant to statutory author- ficers to recover damages in the sum of $2,ity, were left undisturbed by the legislature. 500 for an alleged unlawful rejection of In other particulars, also, the act in ques-plaintiff's vote at a Federal election. A de tion was averred to constitute special or murrer was filed to the complaint. One of class legislation. It was specially averred 'the grounds of the demurrer was that the

⚫490

*491

was predicated on the conception that the action sought the vindication or protection of the right to vote for a member of Congress, a right, as declared in Ex parte Yar

4 Sup. Ct. Rep. 152, 158, “fundamentally based upon the Constitution [of the United States], which created the office of member of Congress, and declared it should be elective, and pointed to the means of ascertaining who should be electors." That is to say, the ruling was that the case was equal

of the United States, whether the illegal act complained of arose from a charged violation of some specific provision of the Constitution or laws of the United States, or from the violation of a state law which affected the exercise of the right to vote for a member of Congress, since the Constitution of the United States had adopted, as the qualifications of electors for members of Congress, those prescribed by the state for electors of the most numerous branch of the legislature of the state.

court had no jurisdiction of the action, because it did not affirmatively appear on the face of the complaint that a Federal question was involved. The demurrer, however, was sustained, not because of the want of ju-brough, 110 U. S. 655, 664, 28 L. ed. 275, 278, risdiction, but solely upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The cause was brought directly to this court, under that provision of the act of March 3, 1891, which confers power to review the judgment or decree of a circuit court, among others, in any case involving the construction or ap-ly one arising under the Constitution or laws plication of the Constitution of the United States. In this court the contention was renewed that the circuit court was without jurisdiction, and this contention involved necessarily, also, a denial of the power of this court to review, since the right directly to do so was sustainable alone upon the ground that the cause was one involving the construction or application of the Constitution of the United States. The argument advanced to sustain the asserted want of jurisdiction was this, that, as the Constitution of the United States did not confer the It results from what has just been said right of suffrage upon anyone, but the same that the court erred in dismissing the action was a privilege which the elector enjoyed for want of jurisdiction, since the right under the Constitution and laws of the state which it was claimed had been unlawfully in which he was entitled to vote, therefore invaded was one in the very nature of things the denial of the right to vote at an election arising under the Constitution and laws of for a member of Congress did not and could the United States, and that this inhered in not involve the construction or application the very substance of the claim. It is obof the Constitution of the United States. vious from an inspection of the certificate The court, however, decided otherwise, and, that the court, in dismissing for want of ju speaking through Mr. Justice Gray, said risdiction, was controlled by what it deemed that the case "involves the construction and to be the want of merit in the averments application of the Constitution of the Unit- which were made in the complaint as to the ed States;" that "the right to vote for mem- violation of the Federal right. But as the bers of the Congress of the United States very nature of the controversy was Federal, has its foundation in the Constitu- and, therefore, jurisdiction existed, whilst tion of the United States;" that "the cir- the opinion of the court as to the want of cuit court of the United States has juris-merit in the cause of action might have furdiction, concurrent with the courts of the state, of any action under the Constitution, laws, or treaties of the United States, in which the matter in dispute exceeds the sum or value of $2,000;" and that, the action being "brought against election officers to recover damages for their rejection of the plaintiff's vote for a member of the House of Representatives of the United States, the complaint, by alleging that the plaintiff was, at the time, under the Constitution and laws of the state of South Carolina and the Constitution and laws of the United States, a duly qualified elector of the state, shows that the action is brought under the Constitution and laws of the United States." In concluding its examination of the question of jurisdiction, it was declared that "the circuit court, therefore, clearly had jurisdiction of this action." The conclusion thus expressed, by necessary implication, decided the power of this court to review, which would not have obtained, unless jurisdiction of the circuit court had been found to rest on the constitutional right.

It is manifest from the context of the opinion in the case just referred to that the conclusion that the cause was one arising under the Constitution of the United States 22 S. C.-50.

nished ground for dismissing for that reason, it afforded no sufficient ground for deciding that the action was not one arising under the Constitution and laws of the United States.

This

True, it has been repeatedly held that, on error from a state court to this court, where the Federal question asserted to be contained in the record is manifestly lacking all color of merit, the writ of error should be dismissed. New Orleans Waterworks Co. v. Louisiana, 185 U. S., ante, 691, 22 Sup. Ct. Rep. 691, and authorities cited. doctrine, however, relates to questions arising on writs of error from state courts where, aside from the Federal status of the parties to the action or the inherent nature of the Federal right which is sought to be vindicated, jurisdiction is to be determined by ascertaining whether the record raises a bona fide Federal question. In that class of cases not only this court may, but it is its duty to, determine whether in truth and in fact a real Federal question arises on the record. And it is true, also, as observed in New Orleans Waterworks Co. v. Louisiana, 184 U. S. —, ante, 691, 22 Sup. Ct. Rep. 691, that a similar principle is applied in analogous cases originally brought in a court of

*

494

2.

3.

The Volunteer Army of the United States raised under the act of Congress of March 2, 1899 (30 Stat. at L. 977, chap. 352), is "other forces" within the meaning of the 77th ar ticle of war, declaring that "officers of the Regular Army shall not be competent to sit on courts-martial to try the officers or soldiers of other forces," although the volunteer troops organized under that act were mustered directly into the service of the United States without regard to state or territorial lines.

A court-martial entirely composed of officers In the Regular Army of the United States, who, by the 77th article of war, are "not competent to sit on courts-martial to try the officers or soldiers of other forces," is without jurisdiction to try an officer or soldier of such other forces when convened for that sole purpose.

the United States. McCain v. Des Moines, 11. 174 U. S. 168, 43 L. ed. 936, 19 Sup. Ct. Rep. 644; St. Joseph & G. I. R. Co. v. Steele, 167 U. S. 659, 42 L. ed. 315, 17 Sup. Ct. Rep. 925. But the doctrine referred to has no application to a case brought in a Federal court where the very subject-matter of the controversy is Federal, however much wanting in merit may be the averments which it is claimed establish the violation of the Federal right. The distinction between the cases referred to and the one at bar is that which must necessarily exist between controversies concerning rights which are created by the Constitution or laws of the United States, and which consequently are in their essence Federal, and controversies concerning rights not conferred by the Constitution or laws of the United States, the contention respecting which may or may not involve a Federal question depending upon what is the real issue to be decided or the substantiality of the averments as to the existence of the rights which it is claimed are Federal in character. The distinction finds apt illustration in the decisions of this court holding that suits brought by or against corporations chartered by acts of Congress are cases per se of Federal cognizance. Osborn v. Bank of United States, 9 Wheat. 817, 6 L. ed. 223; Texas & P. R. Co. v. Cody, 166 U. S. 606, 41 L. ed. 1123, 17 Sup. Ct. Rep. 703. It may not be doubted that if an action be brought in a circuit court of the United States by such a corpo- Argued April 28, 29, 1902. Decided May ration, there would be jurisdiction to entertain it, although the averments set out

to establish the wrong complained of or the defense interposed were unsubstantial in character. The distinction is also well illustrated by the case of Huntington v. Laidley, 176 U. S. 668, 44 L. ed. 630, 20 Sup. Ct. Rep. 526, where, finding that jurisdiction obtained in a circuit court, this court held that it was error to dismiss the action for want of jurisdiction because it was deemed that the record established that the cause of action asserted was not well founded.

It follows that the court below erred in dismissing the action for want of jurisdiction. Of course, in reaching this conclusion we must not be understood as expressing any opinion as to the sufficiency of the

4.

Consent can confer no jurisdiction on a court-martial composed entirely of officers of the Regular Army of the United States in direct violation of the 77th article of war, which declares that such officers shall not be competent to sit on courts-martial to try the officers or soldiers of other forces.

The invalidity of a court-martial constituted entirely of officers in the Regular Army of the United States in direct violation of the 77th article of war, declaring that such officers "shall not be competent to sit on courts-martial to try the officers or soldiers of other forces" can be raised on habeas corpus.

[No. 610.]

19, 1902.

APPEAL from the Circuit Court of the

States for the District of Kansas

to review an order discharging a prisoner on habeas corpus in accordance with the judgment of the Circuit Court of Appeals for the Eighth Circuit. Affirmed.

See same case below, in Circuit Court of Appeals, 113 Fed. 639.

Statement by Mr. Justice Peckham: A petition for a writ of habeas corpus was presented to the circuit court of the United States for the district of Kansas, first division, asking that Peter C. Deming, once a captain in the subsistence department of the Volunteer Army of the United States, might be produced by Robert W. McClaughry, the appellant herein, in whose custody Deming was placed, McClaughry being the warden of the United States prison at Fort Leavenworth, Kansas.

On the part of Deming it was shown in the petition that he was imprisoned and restrained by virtue of a sentence imposed upon him by a general court-martial of the United States, convened at the Presidio of San Francisco, California, by William R. Shafter, Major General, United States Volunteers, and Brigadier General of the United States Army, retired, being of the age of sixty-four years. The sentence imposed upon Deming by the court-martial was that he should be dismissed from the service of the United States. and be confined in such penitentiary as the reviewing authority might