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 he treated as a piece of property of which the owner may not be deprived without due process of law even by the State itself. In Kennard v. Louisiana21 an action in the nature of quo warranto was brought against the plaintiff in error, a justice of the Supreme Court of the State, by a Mr. Morgan, and the decision of the Louisiana courts was in his favor. Thereupon Kennard took an appeal to the Supreme Court of the United States upon the ground that, through her judiciary, the State had deprived him of his office without that due process of law which the Fourteenth Amendment secured to him. In its opinion the Supreme Court of the United States say: "The question before us is, not whether the courts below, having jurisdiction of the case and the parries, have followed the law, but whether the law, if followed, would have furnished Ken-nard the protection guaranteed by the Constitution. Irregularities and mere errors in the proceedings can only be corrected in the state courts. Our authority does not extend beyond an examination of the power of the courts below to proceed at all." And, directing its examination to this point, the court found that in fact due process of law had been provided in the trial of his right to office which he claimed. In thus assuming jurisdiction of the case, and in examining as to whether in fact due process of law had been had, it is apparent that the Supreme Court must have held that the right to the office in question was a property-right within the terms of the provision of the Fourteenth Amendment which declares that no State shall deprive a person of life, liberty, or property without due process of law.

20 It is to be observed, however, that where a State in a fiscal capacity outers into contracts with private persons for services to be rendered or materials to be furnished, it is to be regarded pro liar, vice as a private person and as bound accordingly. " When a State becomes a party to a contract as in the case before us, the same rules of law are applied to her as to private persons under like circumstances. When she or her representatives are properly brought into the forum of litigation, neither she nor they can assert any right or immunity as incident to her political sovereignty." Davis v. Gray (16 Wall. 203; 21 L. ed. 447). See also Curran v. Arkansas (15 How. 304; 14 L. ed. 705).

21 92 U. S. 480; 23 L. ed. 473.

Again, in Foster v. Kansas,22 the federal court assumed jurisdiction in a case where the Supreme Court of Kansas had ousted the plaintiff in error from office, the court in its opinion saying: "As the question of the constitutionality of the statute was directly raised by the defendant, and decided against him by the court, we have jurisdiction and the motion to dismiss must be overruled;" thus affirming the decision of the state court on the ground that the proceedings showed due process of law.

In Boyd v. Xebraska23 the state supreme court had ousted Boyd from the office of governor and installed Thayer therein. On error to the federal Supreme Court, the judgment of the state Supreme Court was reversed, Thayer ousted, and Boyd reinstated as governor of the State, the ground for this action being that in the proceedings by which Boyd had been originally ousted, the state court had incorrectly decided that he was not a citizen of the United States and therefore disqualified for office. In its opinion, the court say: "As the allegation- [of citizenship] . . . sets up a right and privilege claimed under the laws of the United States, this court must determine for itself the question of sufficiency of this allegation, and is not concluded by the view taken of that question by the Supreme Court of Nebraska." The statement that a federal right or privilege was here claimed, would not seem to be correct. No right or privilege attached to, or growing out of federal citizenship was claimed. The judgment of the state court should have been affirmed irrespective of the fact whether or not in truth Boyd was a citizen of the United States.24

22112 U. S. 205; 5 Sup. Ct. Rep. 8; 28 L. ed. 696.

23 143 U. S. 135; 12 Sup. Ct. Rep. 373; 36 L. ed. 103.

In Wilson v. North Carolina25 the Supreme Court of the United States was again called upon to determine whether the plaintiff in error had, by being ousted from office, been deprived of property without due process of law. In its opinion the court again affirm the doctrine that "the procedure provided by a valid state law for the purpose of changing the incumbent of a state

24 In an emphatic dissenting opinion Justice Field said: "I dissent from the judgment just rendered. I do not think that this court has any jurisdiction to determine a disputed question as to the right to the governorship of a State, however that question may be decided by its authorities. . . . The fact that one of the qualifications prescribed by the State for its officers can only be ascertained and established by considering the provisions of the law of the United States in no way authorizes an interference by the General Government with the state action. Because an officer of a State must [according to the Constitution or statutes of that State] be a citizen of the United States, it does not follow that the tribunals of the United States can alone determine that fact, and that the decision of the State in respect to it can be supervised and controlled by the federal authorities. . . . The office of sheriff was not a right or privilege claimed under a law of the United States, but was a right or privilege claimed by the election under the laws of Missouri. The mere fact that it was necessary that the incumbent of the office should also be a citizen of the United States, did not of itself give him a right to that office. . . . My objection to the decision is not diminished by the fact that there is no power in this court to enforce its decision upon the State of Nebraska should resistance be made to it. Should the incumbent declared by this court not to be entitled to the office refuse to surrender it and the state authorities should stand by him in such refusal, what could be done about it? . . .If the right of this court to interfere in this case can be sustained, every candidate for office alleging that the successful party has not some qualification prescribed by statute, which can only be defined by reference to a federal law, will claim a right to invoke the interference of the federal judiciary to determine whether he ought or not to have been declared elected."

25169 U. S. 586; 18 Sup. Ct. Rep. 435; 42 L. ed. 865.

Federal Control of Form of State Governments. 171 office will not in general involve any question for review by this court. A law of that kind does but provide for the carrying out and enforcement of a policy of a State with reference to its political and internal administration, and a decision of the state court in regard to its construction and validity will generally be conclusive here. The facts would have to be most rare and exceptional which would give rise in a case of this nature to a federal question."