This section is from the book "The Constitutional Law Of The United States", by Westel Woodbury Willoughby. Also available from Amazon: Constitutional Law.
The difficulty sometimes experienced in deciding between a justiciable and a non-justiciable question is well illustrated in this latter case.
Here a bill was filed invoking the original jurisdiction of the Supreme Court to restrain the Secretary of War, the General of the Army, and Major-General Pope from putting into effect the acts of Congress of 1867, providing for military government in the State of Georgia.4 The bill alleged that the intent of the acts of Congress as apparent on their face and by their very terms was to overthrow the existing constitutional government of the State and to substitute an unconstitutional one therefor. In declining to issue the orders prayed for, the court say:
2 5 Pet. 1; 8 L. ed. 25.
3 6 Wall. 50; 18 L. ed. 721.
4 In Mississippi v. Johnson (4 Wall. 475; 18 L. ed. 437) the attempt had been made to restrain the President of the United States from executing the reconstruction acts, but the bill had been dismissed on the ground that an injunction or mandamus would not lie to the chief executive of the nation.
"In looking into it, it will be seen that we are called upon to restrain the defendants, who represent the executive authority of the government, from carrying into execution certain acts of Congress, inasmuch as such execution would annul and totally abolish the existing State Government of Georgia, and establish another and different one in its place; in other words, would overthrow and destroy the corporate existence of the State, by depriving it of the means and instrumentalities whereby its existence might, and otherwise would, be maintained.
"This is the substance of the complaint, and of the relief prayed for. The bill, it is true, sets out in detail the different and substantial changes in the structure and organization of the existing government, as contemplated in these acts of Congress; which, it is charged, if carried into effect by the defendants, will work this destruction. But, they are grievances, because they necessarily and inevitably tend to the overthrow of the State as an organized political body. They are stated, in detail, as laying a foundation for the interposition of the court to prevent the specific execution of them; and the resulting threatened mischief. So in respect to the prayers of the bill. The first is, that the defendants may be enjoined against doing or permitting any act or thing, within or concerning the State, which is or may be directed, or required of them, by or under the two acts of Congress complained of; and the remaining four prayers are of the same character, except more specific as to the particular acts threatened to be committed.
"That these matters, both as stated in the body of the bill, and in the prayers for relief, call for the judgment of the court upon political questions, and upon rights, not of person or property but of a political character, will hardly be denied. For the rights. for the protection of which our authority is invoked, are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a State, with all its constitutional powers and privileges. No case of private rights or private property infringed, or in danger of actual or threatened infringement, is presented by the bill, in a judicial form, for the judgment of the court." 5