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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 selects and sends 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 in that behalf for the State. So, also, as in 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 of a dispute between two parties as to who is entitled to a State office, is where a claim is made that the State laws, as applied by the State authorities in settlement of the dispute, 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 I of the Constitution of the United States, which declares that no State shall pass a law impairing the obligation of a contract.

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 officeholder, 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 him no cause of action against the State.1

4 Butler v. Pennsylvania, 10 How. 402; 13 L. ed. 472; Taylor v. Beckham, 178 U. S. 548; 20 Sup. Ct. Rep. 890; 44 L. ed. 1187.

Suits between two or more claimants to State office

When the dispute is not one between the State and one of its officers, but between two individuals each claiming the office and its emoluments, when, in other words, the office itself is not disturbed nor the salary changed, the question is a different one. Then, it would seem, the office has often to be treated as a piece of property of which the owner may not be deprived without due process of law even by the State itself.5

5 Kennard v. Louisiana, 92 U. S. 480; 23 L. ed. 478; Foster v. Kansas, 112 U. S. 205; 5 Sup. Ct. Rep. 8; 28 L. ed. 696; Boyd v. Nebraska, 143 U. S. 135; 12 Sup. Ct. Rep. 375; 36 L. ed. 103; Wilson v. North Carolina, 169 U. S. 586; 18 Sup. Ct. Rep. 435; 42 L. ed. 865; Taylor v. Beckham, 178 U. S. 548; 20 Sup. Ct. Rep. 890; 44 L. ed. 1187.

CHAPTER VI

FEDERAL SUPERVISION OF STATE ACTIVITIES; THE FOUR

TEENTH AMENDMENT

The Fourteenth Amendment

The question now to be considered is not the maintenance of the supremacy of the Federal Government, but the protection of individuals in the enjoyment of rights and immunities guaranteed to them by the Federal Constitution.

Prior to the adoption of the Fourteenth Amendment in 1868 the laws of the individual States, so long as they related to subjects over which the States had the right of legislation, were not subject to examination in Federal courts with a view to ascertaining whether they deprived anyone of life, liberty or property without due process of law, or denied to anyone equal legal protection. The first nine Amendments to the Federal Constitution which enumerated the fundamental rights of individuals that might not be violated were, from the beginning, construed to limit not the States but only the Federal Government. Until, therefore, the Fourteenth Amendment was adopted there was, so far as the Federal Constitution was concerned, nothing to prevent the several States from enacting laws which denied to their own citizens the equal protection of the laws or deprived them of life, liberty and property, without due process of law. The only limitations laid upon the States by the Constitution were that they should enact no bills of attainder, or ex post facto laws, or laws impairing the obligation of con

tracts. As a matter of fact, indeed, all of the States had by their own Constitutions taken from their legislatures the power to enact laws upon certain specified topics, and forbidden them to violate certain declared principles of justice and right. But the adoption of these constitutional limitations was purely voluntary on their part.

In 1868, however, as one of the results of the Civil War, the Fourteenth Amendment was adopted, which, after declaring that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," goes on to provide that "no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

For a number of years after the adoption of this Amendment it was by no means certain that the effect of the above-cited provisions would not be to endow the United States Government with additional powers so great as fundamentally to alter the very nature of the Union itself. There can be no question that the clauses of the Amendment which have been quoted were easily susceptible of an interpretation that would have given them this result, and that, at the time they were framed and adopted by Congress and ratified by the necessary number of State legislatures, there were very many persons who believed that they would, and desired that they should, work this revolutionary change in the American constitutional system.1 Fortunately, however, as all

1 Cf. Flack, The Adoption of the Fourteenth Amendment; also dissenting opinion of Justice Field in Civil Rights Cases, 109 U. S. 3; 3 Sup. Ct. Rep. 18; 27 L. ed. 835.

must now believe, the Supreme Court has been led to give to these words an interpretation that has robbed them of such an effect.

This the court has been able to do by the principles which it has laid down in the cases which follow.

The Slaughter House Cases

The famous Slaughter. House Cases,2 decided in 1873, grew out of the following facts: The State of Louisiana in the exercise of its "police powers" had passed an act chartering a company, and giving to it the exclusive right to establish and maintain stock yards, landing places and slaughter houses in the city of New Orleans, and providing that all animals intended for food should be slaughtered there. The plaintiffs in the cases that have since come to be known as the "Slaughter House Cases" alleged that this act was unconstitutional as tested by the Federal Constitution on the several grounds that it was in violation of the Thirteenth Amendment in that it created an involuntary servitude upon the part of those who were compelled to resort to this privileged company; and that it was in violation of the Fourteenth Amendment in that it deprived persons of liberty and property without due process of law, denied to them the equal protection of the laws, and abridged the privileges and immunities of citizens of the United States. It is only with this last claim that we are now concerned.

As will later be seen, the Fourteenth Amendment has been construed to give to the Federal courts the power of examining whether, in the exercise of their ordinary police and other powers, the States have denied to anyone due process of law or the equality of the laws. The claim, however, that the rights and immunities which were al

2 16 Wall. 36; 21 L. ed. 394.

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