Argument for Defendant in Error.

contend that such a conflict in legislation invalidates the whole act. When an act of a state legislature, purporting to carry ⚫ out a duty imposed on the State by the Constitution of the United States, directs certain officers of the State to do certain things, which the act of Congress passed in pursuance of the Constitution of the United States, commands other state officers to do and to perform in a different manner, the whole of the state law is illegal and void. The vice of the state law is that it is in hostility to the act of Congress. There is no presumption that the state law was passed in ignorance of the United States law. The legislature are presumed to know the laws of the United States governing state action.

Mr. A. A. Ellis, Attorney General of the State of Michigan, (with whom was Mr. John W. Champlin on the brief,) and Mr. Otto Kirchner, for defendant in error, said, on the question of jurisdiction:

I. The decision of the Supreme Court of the State of Michigan, refusing the mandamus prayed for, is not reviewable by this court, because: (a) The case does not fall within the 25th section of the Judiciary Act, Rev. Stat. § 709; and (b) The subject matter of this controversy is not of judicial cognizance.

(a) Under Rev. Stat. § 709 this court may review the final judgment or decree in any suit by the highest court of a State in the following cases only: (1) Where is drawn in question the validity of a statute of or an authority exercised under the United States, and the decision is against its validity; or (2) Where is drawn in question the validity of a statute of or authority exercised under any State on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of their validity; or (3) Where any title, right, privilege or immunity is claimed under the Constitution, or any treaty or statute of, or commission held, or authority exercised under the United States, and the decision is against the title, right, privilege or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission or authority.

Argument for Defendant in Error.

Ryan v. Thomas, 4 Wall. 603; Caperton v. Ballard, 14 Wall. 238; Simmerman v. Nebraska, 116 U. S. 54.

The validity of the law in question is in no way involved in the application for the mandamus. There is nothing inconsistent between it and the statute under which the respondent, secretary of state, is required to act. It cannot, therefore, be claimed that the validity of a statute of the State of Michigan on the ground of its being repugnant to the Constitution, treaty or laws of the United States, is drawn in question in the mandamus proceeding. The case, therefore, is not within' the second subdivision of § 25 of the Judiciary Act.

Neither can it be claimed that any right, privilege or immunity is claimed under the Constitution, or any treaty, or statute of, or commission held, or authority exercised under the United States, and that the decision of the Supreme Court of Michigan was against any such title, right, privilege or immunity. The case, therefore, is not within the last clause of § 25 of the Judiciary Act.

It cannot be contended that it is under the first subdivision of the section.

The duty of the secretary of state to give the statutory notice of the election was a public duty. But conceding, for the sake of argument, that a candidate for office at the next general election has a right under the statute to insist that notice of the election shall be given, and to enforce such right by mandamus; the right, if any, rests entirely upon the statute of the State of Michigan, and is in no way affected by the Constitution, or treaty, or statute, or commission held or authority exercised under the United States.

It is true that the Supreme Court of Michigan in passing upon the relators' right to the mandamus prayed for decided that the law did not conflict with any provision of the Federal Constitution, and that it was void only so far as it conflicted with the Act of Congress. But the expression by the state court of an opinion upon a Federal question does not give this court jurisdiction of the case unless it appears that it was necessary to pass upon the Federal question in order to decide the case; and if a decision might have been reached by the

Argument for Defendant in Error.

state court without passing upon the Federal question this court will not take cognizance of the cause. Railroad Co. v. Rock, 4 Wall. 177; Lawler v. Walker, 14 How. 149; De Saussure v. Gaillard, 127 U. S. 216.

There are other grounds upon which the decision of the court refusing the mandamus might have been placed without touching any Federal question. A mandamus is not a writ of right in Michigan even when it is asked against a public officer to compel him to discharge a public duty. In all cases it is granted or refused in the sound discretion of the court. People v. Regents of the University of Michigan, 4 Michigan, 98; Mabley v. Superior Court Judge of Detroit, 41 Michigan, 31; Hale v. Risley, 69 Michigan, 596.

(b) The subject-matter of this controversy is not of judicial cognizance. Judicial power is, in its nature, necessarily exclusive. It does not trench upon the domain of any other department of the government. It will not allow any other department of the government to trench upon its domain. A matter is of judicial cognizance when the courts have power to dispose of it finally. Miller on the Constitution, 314; Hayburn's Case, 2 Dall. 408, 409, note; United States v. Ferreira, 13 How. 40; United States v. Yale Todd, 13 How. 52, note; In re Cooper, 143 U. S. 472.

Applying the principles of these decisions to the case at bar, we say that this controversy is not judicial, because whatever decision this court, or any other court, may make as to the validity of the state law, is subject to review by political officers and agencies. See Royce v. Goodwin, 22 Michigan, 496, and Sutherland v. The Governor, 29 Michigan, 320.

The legal status of the situation may be stated thus:

1. The canvass and final determination as to who is elected to the office of elector rests with the board of state canvassers in the first instance. This decision is not subject to review or control by any court within the State of Michigan.

2. If the decision of the board of canvassers as to who is elected to the office of presidential elector is contested, the final decision of the controversy rests in the next place with the legislature of the State in joint convention. It cannot be

Opinion of the Court.

contended that the action of the legislature is subject to judicial review or control.

3. It then rests with the governor of the State, whose duty it is to certify the action of the state board of canvassers. He may have to decide between contending boards. The action of the governor, as we have already shown, is not subject to judicial review or control.

4. And, finally, the whole matter rests with both houses of the Congress of the United States.

It is manifest, therefore, that whatever decision the court may render in this case is not final, but is subject to review by the political agencies already referred to.

The object of this proceeding is not to determine whether the notice prayed for in the petition should be given, but to obtain a decision upon the validity of the State law. That decision is, as we have already seen, subject to review, and subject to be utterly disregarded by the various political agencies referred to.

II. This court is bound by the decision of the Supreme Court of Michigan as to all matters sought to be raised by the petition, except the question as to whether the state statute contravenes the Fourteenth Amendment to the Constitution.

The only conflict between the state statute and the act of Congress relates to the time of the meeting of the electors and the certification of their appointment. Wherever the state law and the act of Congress conflict, the latter of course controls. The Supreme Court of Michigan held that what remained of the state law was a valid expression of the legislative will within constitutional limitations. The validity of so much of the state statute as does not conflict with the act of Congress, barring the Federal question already referred to, is, we submit, a question of local law upon which the determination of the local tribunal is conclusive.

MR. CHIEF JUSTICE FULLER, after stating the case as above reported, delivered the opinion of the court.1

1 The judgment of affirmance was entered as above stated October 17, 1892, and the mandate issued at once. The opinion was delivered and filed November 7, 1892.

Opinion of the Court.

The Supreme Court of Michigan held in effect that if the act in question were invalid, the proper remedy had been sought. In other words, if the court had been of opinion that the act was void, the writ of mandamus would have been awarded.

And, having ruled all objections to the validity of the act urged as arising under the state constitution and laws adversely to the plaintiffs in error, the court was compelled to, and did, consider and dispose of the contention that the act was invalid because repugnant to the Constitution and laws of the United States.

We are not authorized to revise the conclusions of the state court on these matters of local law, and those conclusions being accepted, it follows that the decision of the Federal questions is to be regarded as necessary to the determination of the cause. De Saussure v. Gaillard, 127 U. S. 216.

Inasmuch as under section 709 of the Revised Statutes of the United States, we have jurisdiction by writ of error to re-examine and reverse or affirm the final judgment in any suit in the highest court of a State in which a decision could be had, where the validity of a statute of the State is drawn in question on the ground that it is repugnant to the Constitution and laws of the United States and the decision is in favor of its validity, we perceive no reason for holding that this writ was improvidently brought.

It is argued that the subject-matter of the controversy is not of judicial cognizance, because it is said that all questions connected with the election of a presidential elector are political in their nature; that the court has no power finally to dispose of them; and that its decision would be subject to review by political officers and agencies, as the state board of canvassers, the legislature in joint convention, and the governor, or, finally, the Congress.

But the judicial power of the United States extends to all cases in law or equity arising under the Constitution and laws of the United States, and this is a case so arising, since the validity of the state law was drawn in question as repugnant to such constitution and laws, and its validity was sustained.