The latest case upon the point under consideration is that of Taylor v. Beckham,20 decided in 1900. This case arose out of the following facts. At a general election held in November, 1899, in Kentucky, William Goebel and J. C. W. Beckham were the democratic nominees for the offices of governor and lieutenant-governor respectively, and William S. Taylor and John Marshall were the republican candidates. The state board of election commissioners whose duty it was to canvass the returns, determined that Taylor and Marshall were elected, and they were thereupon inducted into office. Goebel and Beckham contested the election upon various grounds, boards of contest were organized, and reported their decisions to the General Assembly for its action thereupon as provided by law. These reports, which were approved by the Assembly, found that Goebel and Beckham had been elected. They were then duly sworn and inducted into office. In February, 1900, Goebel died and Beckham succeeded to the governorship. Taylor and Marshall, however, refused to recognize the validity of the proceedings whereby Goebel and Beckham had been declared elected, and declined to surrender the records and other papers pertaining to the office of governor or to vacate the executive offices in the capitol building at Frankfort. Whereupon Beckham brought an action in the nature of a quo warranto in the Circuit Court of the State against Taylor and Marshall. Judgment of ouster was rendered in favor of the plaintiff. The case was carried on appeal to the Court of Appeals of Kentucky and the judgment affirmed; whereupon a writ of error was obtained by Taylor and Marshall from the Supreme Court of the United States. The Supreme Court dismissed the writ of error.
26 178 U. S. 548; 20 Sup. Ct. Rep. 890; 44 L. ed. 1187.
Two grounds for federal interference had been set up by the plaintiffs in error: (1) That the proceedings by which they had been ousted from office were not compatible with a republican form of government; (2) that they had been deprived of a prup-erty right without due process of law.
As to the first contention, the court held that the Commonwealth of Kentucky being in full possession of its faculties as a member of the Union, no exigency had arisen requiring the interference of the Federal Government to enforce the guaranty clause. As to the second point, the court say: "The contention is that, although the statute furnished due process of law, the General Assembly in administering the statute denied it, an 1 that the Court of Appeals in holding to the rule that where a mode of contesting elections is specifically provided by the Constitution. or laws of a State, that mode is exclusive, and in holding that, as the power to determine was vested in the General Assembly of Kentucky, the decision of that body was not subject to a judicial revision, denied a right claimed under the federal Constitution. The Court of Appeals did, indeed, adjudge that the case did not come within the Fourteenth Amendment, because the right to hold the office of governor or lieutenant-governor of Kentucky was not property in itself, and being created by the Constitution, was conferred and held solelv in accordance with the terms of that instrument and laws passed pursuant thereto, so that, in respect of an elective office, a determination of the result of an election, in the manner provided, adverse to a claimant, could not be regarded as a deprivation forbidden by that amendment."
The court, after an examination of authorities, declare that the Kentucky court had been correct in thus holding that a public office is not property, and say: "It is clear [then] that the judgment of the Court of Appeals, in declining to go behind the decision of the tribunal vested by the state Constitution and laws with the ultimate determination of the right to these offices, denied no right secured by the Fourteenth Amendment."
In assuming the position here taken as to non-property character of a public office and in dismissing the writ of error on that ground, it would seem that the court was scarcely in harmony with its preceding decisions, in several of which, as we have already seen, by assuming jurisdiction, and by examining the character of the processes by which the contests for office had been settled to see if they provided due process of law, it had assumed that as between two contestants for an office, the right to an office and its emoluments was a property right within the meaning of the Fourteenth Amendment.27
27 Thus Justice Brewer, in his dissenting opinion, says: "I agree fully with those decisions which are referred to [in the majority opinion], and which hold that as between the State and the office holder there is no contract right either to the term of office or to the amount of salary, and that the legislature may, if not restrained by constitutional provisions, abolish the office or reduce the salary. But when the office is not disturbed, when the salary is not changed, and when, under the Constitution of the State, neither can be by the legislature, and the question is simply whether one shall be deprived of that office and its salary, and both given to another, a different question is presented, and in such a case to hold that the incumbent has no properly in the office, with its accompanying salary, does not commend itself to my judgment." Justice Brewer goes on to argue, however, that the judgment of the Court of Appeals of Kentucky should have been affirmed for the reason that due process of law had been observed. "But," he concludes, "because, as I understand the law, this court has jurisdiction to review a judgment of the highest court of a State ousting one from his office and giving it to another, and a right to inquire whether that judgment is right or wrong in respect to any federal question such as due process of law, I think the writ of error should not be dismissed, but that the judgment of the Court of Appeals of Kentucky should be affirmed." Justice Brown concurred in the opinion rendered by Justice Brewer.
A dissenting opinion was also rendered in this case by Justice Harlan. In this he argues not only that the writ of error should not have been dismissed, but that the court should adjudge that the decree in the state court had taken from Taylor and Marshall rights protected by the Fourteenth Amendment. In agreement with Justices Brewer and Brown he argues that as between two claimants a public office is property, and had been so held by the Supreme Court in previous cases. But he goes even further than this, and brings the right of office within the meaning of the term "liberty" as used in the Fourteenth Amendment. "What more directly involves the liberty, of the citizen," he says, "than to be able to enter upon the discharge of the duties of an office to which he has been lawfully elected by his fellow citizens? What more certainly infringes upon his liberty than for the legislature of the State, by merely arbitrary action, in violation of the rules and forms required by due process of law, to take from him the right to. discharge the public duties imposed upon him by his fellow citizens in accordance with the law? ... I grant that it is competent for a State to provide for the determination of contested election cases by the legislature. All that I now seek to maintain is the proposition that when a state legislature deals with a matter within its jurisdiction, and which involves the life, liberty or property of the citizen, it cannot ignore the requirement of due process of law. . . . Looking into the record before us, I find such action taken by the body claiming to be organized as the lawful legislature of Kentucky as was discreditable in the last degree and unworthy of the free people whom it professed to represent." After a statement of the facts which in his opinion justified this characterization of the action of the legislature, Justice Harlan concludes: "Those who composed that body seemed to have shut their eyes against the proof for fear that it would compel them to respect the popular will as expressed at the polls. Indignant, as naturally they were and should have been, at the assassination of their leader, they proceeded in defiance of all forms, of law and in contempt of the principles upon which free government rest, to avenge that terrible crime, namely, the destruction by arbitrary methods of the right of the people to choose their chief magistrate. The former crime, if the offender be discovered, can be punished as directed by law. The latter should not be rewarded by a declaration of the inability of the judiciary to protect public and private rights, and thereby the rights of voters, against the wilful, arbitrary action of a legislative tribunal which, we must assume from the record, deliberately acted upon a contested election case involving the rights of the people and of their chosen representative in the office of governor without looking into the evidence upon which alone any lawful determination of the case could be made. The assassination of an individual demands the severest punishment which it is competent for human laws in a free land to prescribe. But the overturning of the public will, as expressed at the ballot box, without evidence or against evidence, in order to accomplish partisan ends, is a crime against free government, and deserves the execration of all lovers of liberty. ... I cannot believe that the judiciary is helpless in the presence of such a crime. The person elected as well as the people who elected him, have rights that the courts may protect. To say that in such an emergency the judiciary cannot interfere is to subordinate the right to mere power, and to recognize the legislature of a State as above the supreme law of the land. . . . The doctrine of legislative absolutism is foreign to free government as it exists in this country. The cornerstone of our republican institutions is the principle that the powers of government shall, in all vital particulars, be distributed among three separate co-ordinate departments, legislative, executive, and judicial. And liberty regulated by law cannot be permanently secured against the assaults of power or the tyranny of a majority, if the judiciary must be silent when rights existing independently of human sanction, or acquired under the law, are at the mercy of legislative action taken in violation of due process of law."