The sun. [volume] (New York [N.Y.]) 1833-1916, 1892-02-11
Tho Nebraska Case-Judge Fields Dis.
sentinx Opinion.

All OF the Judges OF the Supreme Court
Of the United States. except Mr.. JUS
tice FIELD. concurred In reversing the
decision Of the Supreme Court Of Ne
braska under which Gen. JOHN NJ.
THAYER held the office Of Governor of
that State. although they did not all base
their concurrence on the same grounds.
Judge FIELD. however. denied the power Of
the court to take cognizance Of a contro-
versy in regard to the title to Office Of the
Governor OF State: and his dissenting
opinion Is worthy Of much more attention
and consideration on the part OF the public
than 1t has yet received.
The tenth article Of the Federal Constitu-
ton declares that the powers not delegated
to the United States by that instrument or
not prohibited by 1t to the States are re-
served to the States respectively. or to the
people. Among the powers reserved to the
States by virtue Of this provision is the
power to say who shall be eligible to State
offices. how State officers shall be chosen.
and In what manner any dispute as to their
qualifications shall be determined. with
none OF these things" says Mr.. Justice
FIELD. lean the Government Of the United
States interfere. In all these particulars
the States are as independent Of the
general Government as that Government
within its sphere is independent of the
States" 1t is true that under the fourth
section Of article w. OF the Constitution.
the general Government may interfere
when necessary to guarantee to any State
In the Union republican form Of govern
ment. or to protect it against invasion. or
h,r ho 7 oriclo
ture. or by the Executive when tho Legis-
lature cannot DO convened, to guard State
against domestic violence; but except in the
cases contemplated by this constitutional
provision. II Judge FIELD is right. sit can
no more interfere with the qualifications.
election, and installation OF the State off,
GERS than a foreign Government" and he
declares that nowhere in the Constitution
can any clause be found which authorizes
any such infringement upon State rights.
The claim Of JAMES E. BOYD to the Office
OF Governor OF Nebraska was denied by the
courts OF that State on the ground that he
had not been a citizen for the length OF
time prescribed by law. In order to deter
mine whether he was citizen or not. 1t be-
came necessary to consider and construe
the provisions Of number OF Federal laws;
and 1t was upon this ground that the Su-
preme Court at Washington entertained
jurisdiction Of the case. Upon that point
Judge FIELD says: The necessity Of
referring to law OF the United
States to ascertain what constituted citizen
ship did not make the respondents right
to the Office dependent upon that fact in
any such sense as to bring 1t within the
cognizance Of the Federal courts. Equally
might 1t be said that contested claim to q
seat In the Legislature Of State could be
brought under their cognizance. when the
ground OF contest happens to be the dis
puted citizenship Of one OF the contestants"
This remark OF the learned Justice sug-
gests contingency which might well arise
In the State OF New York under the amend
ment which has been proposed to the State
Constitution. which takes away from the
Legislature the power to pass upon the
election. return. and qualifications of its
own members, and provides that these mat
tiers shall hereafter be determined by the
courts. and that after any such de-
termination is made 1t shall be con-
elusive upon the Legislature. Suppose
that after the adoption Of this amendment