Elder v. Colorado/Opinion of the Court
The assignments of error are twenty-one in number. All of them rest upon the assumption that the supreme court of Colorado held that article 20 of the state Constitution, particularly §§ 2 and 3, were repugnant to the provision of the Constitution of the United States guaranteeing to every state a republican form of government and to the act of Congress known as the Colorado enabling act, and that by such ruling rights possessed by the people of the state of Colorado and rights vested in the people of the city and county of Denver were invaded. And upon the assumption that such rulings were made all the Federal questions relied on are based.

On behalf of the defendant in error it is insisted that the supreme court of Colorado did not decide any question under the Constitution of the United States, but merely disposed of the case before it upon its construction of the meaning of the provision of the state Constitution which was involved and upon the authority of a previous decision rendered by the Colorado court. It is not denied that in the course of the opinion of the supreme court of Colorado it was said that if the article of the state Constitution in question was susceptible of a contrary construction to that affixed to it by the court, it would be repugnant to the guaranty of a republican form of government, etc. This, it is said, was mere obiter, as the court considered and held the provision valid.

If we were to indulge in the hypothesis that the assumptions upon which the assignments of error rest were sustained by the record, and were besides to assume that, at the proper time and in the proper manner, it had been asserted that to hold article 20 invalid would be repugnant to the Constitution of the United States, the case would yet not be within the purview of § 709, Revised Statutes (U.S.C.omp. Stat. 1901, p. 575). Under this section the power to review the judgment of a state court exists only in the following classes of cases: a Where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; b. Where is drawn in question the validity of a statute of, or an 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; c. '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.'

It is plain that the case is not embraced within subdivision a. Nor can it be said to be embraced within subdivision b, for if we consider that the court below, instead of construing and upholding the constitutional provision in question, actually held it to be invalid because repugnant to the Constitution of the United States, such decision was against, and not in favor of, the validity of the article. Nor is the case embraced within subdivision c, for nowhere in the record does it appear that the plaintiff in error, specially or otherwise, set up or claimed in the courts of Colorado any title, right, privilege, or immunity under the Constitution of the United States.

Indeed, under the circumstances disclosed, if there had been an assertion of a right, title, privilege, or immunity under the Constitution of the United States it would have been so frivolous as not to afford a basis of jurisdiction, since it is foreclosed that a mere contest over a state office, dependent for its solution exclusively upon the application of the Constitution of a state or upon a mere construction of a provision of a state law, involves no possible Federal question. Taylor v. Beckham, 178 U.S. 548, 44 L. ed. 1187, 20 Sup. Ct. Rep. 890, 1009. Whilst, when a state court has considered a Federal question, that fact may serve to elucidate whether a Federal issue properly arises for consideration by this court, that doctrine has no application to a case where the controversy presented is inherently not Federal, and incapable of presenting a Federal question for decision.

Writ of error dismissed. 

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