enacted, fixing the number of representatives in Congress from the state of Kansas at eight, and providing for their election. But the power to divide the territory of a state into congressional districts, for the purpose of selecting members of Congress apportioned to a state, is a power residing in the Legislature of the state, and not in the Congress of the United States, as is recognized by said act of Congress. In the exercise of that power the act of the Legislature of 1897 was passed, taking the county of Pottawatomie from, and adding the county of Shawnee to, the First Congressional District. Hence it is apparent that the right of Shawnee county to participate in the proceedings of the Holton convention, under the averments of complainant's bill, does not depend upon the true construction of the "reapportionment act" of Congress, but does depend upon the validity of the act of the Legislature of the state placing the county of Shawnee in the First Congressional District; and the validity or invalidity of that act of the Legislature is a question for the determination of the courts of the state, and does not involve a federal question for determination by this court, unless the further contention made by solicitors for complainant may be sustained.

Such further contention is that under section 2, art. 1, of the federal Constitution, the electoral machinery of the state, when employed for the purpose of selecting representatives in Congress from a state, become laws of the United States, and are to be construed the same as though enacted by Congress for that purpose. In other words, if the determination of this controversy depends upon the construction of acts of the Legislature of the state of Kansas employed for the purpose of selecting a candidate for the office of representative in Congress from the First Congressional District of the state, such controversy becomes one cognizable by the federal courts, to the same extent as though the construction of the federal Constitution or laws was directly involved. In support of this contention, Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. 152, 28 L. Ed. 274, Wiley v. Sinkler, 179 U. S. 58, 21 Sup. Ct. 17, 45 L. Ed. 84, and Swafford v. Templeton, 185 U. S. 487, 22 Sup. Ct. 783, 46 L. Ed. 1005, are cited. However, an examination of those cases will show the sole question therein determined was, in the Yarbrough Case, the sufficiency of the federal criminal laws to punish one who unlawfully obstructs a person qualified under state laws from voting for a member of Congress; and, in the other cases, that federal courts have jurisdiction of an action at law brought by one qualified under state laws to vote for a member of Congress, who is wrongfully prevented from voting; and this because section 2 of article I of the federal Constitution adopts the qualifications required under state laws to vote for a member of the more numerous branch of the state Legislature as the test of the proper qualifications to vote for a member of Congress. From this it will be seen the claim made by solicitors for complainant, that the above and kindred cases hold the election machinery employed by the state in the selection of candidates for the office of representative in Congress, becomes, when so employed, a part of the federal law, and the construction of the same raises a federal question, is claiming too much for such cases.

As the question at bar is not the right to vote, but the privilege of

being voted for, and as this is not an action at common law for damages, but relief is sought by a bill in equity, the question whether this court in equity has jurisdiction to grant the injunction prayed remains. It must be apparent to any one that the relief sought by complainant under his bill, in so far as it prays an order of this court directing the defendant Burrow, as Secretary of State of the state of Kansas, to forthwith certify to the several county clerks of the counties comprising the First Congressional District the name of complainant as the party candidate to be placed on the official ballot to be voted at the coming November election, is not a proper subject of equity, for such relief can only be afforded in an action of mandamus, which is an action at law, and that a federal court of equity will not grant a mandatory injunction upon a preliminary or interlocutory motion against officers of a state, but, if at all, only upon final hearing, and then only to execute the decree or judgment of the court. Walkley v. City of Muscatine, 6 Wall. 483, 18 L. Ed. 930; Fletcher v. Tuttle (Ill.) 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220; McCauley v. Kellogg et al., 2 Woods, 13, Fed. Cas. No. 8,688; Audenried v. Philadelphia & Reading R. Co., 68 Pa. 370, 8 Am. Rep. 195; Rogers Locomotive Works v. Frie Railway Co., 20 N. J. Eq. 379.

As to the temporary restraining order now asked, the argument made by solicitors for complainant is that the concluding portion of section 2703, Gen. St. Kan. 1901, above quoted, recognizes the right to proceed in equity in the state courts to restrain the action of the board of which the defendants are members. Hence such remedy, under repeated decisions of the federal courts, may be available in this court sitting as a court of equity. Ex parte McNeil, 13 Wall. 236, 20 L. Ed. 624, Davis v. Gray, 16 Wall. 203, 21 L. Ed. 447, Cowley v. Northern Pacific Railroad Co., 159 U. S. 569, 16 Sup. Ct. 127, 40 L. Ed. 263, and many other cases, are cited in support of the contention made. While it is true the rights created and remedies provided by the statute laws of a state may be enforced in the federal courts, either in law or in equity, yet the enforcement of such statutory rights and remedies by the federal courts first presupposes jurisdiction in the federal courts; and while the statute under consideration recognizes the right to obtain relief by injunction in the state courts under certain conditions, yet it creates no such right, and in my judgment no such right exists in this court sitting as a court of equity, and this for the following reasons: The right to become the nominee of a political party for a public office, whether national or state, and as such nominee to receive the votes of the qualified electors voting to fill such office, is a purely political right as contradistinguished from a civil or property right. In Re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402, Mr. Justice Gray says:

"The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property."

"Political rights consist in the power to participate, directly or indirectly, in the establishment or management of the government. These political rights are fixed by the Constitution. Every citizen has the right to vote for public officers, and of being elected. These are the political rights which the humblest citizen possesses. Civil rights are those which have no relation to the establishment, support, or management of the government. They consist in

the power of acquiring and enjoying property, or exercising the paternal and marital powers, and the like. It will be observed that every one, unless deprived of them by sentence of civil death, is in the enjoyment of the civil rights, which is not the case with political rights, for an alien, for example, has no political, although in full enjoyment of the civil, rights." 2 Bouv. Law Dict. 597.

Mr. Justice Fuller, sitting as Circuit Justice in Green v. Mills, 69 Fed. 857, 16 C. C. A. 522, 30 L. R. A. 90, says:

"The jurisprudence of the United States has always recognized the distinction between common law and equity as, under the Constitution, matter of substance as well as of form and procedure. And the distinction has been steadily maintained, although both jurisdictions are vested in the same courts. Fenn v. Holme, 21 How. 481 [16 L. Ed. 198]; Thompson v. Railroad Co., 6 Wall. 134 [18 L. Ed. 765]; Cates v. Allen, 149 U. S. 451 [13 Sup. Ct. 883, 37 L. Ed. 804]; Mississippi Mills v. Cohn, 150 U. S. 202 [14 Sup. Ct. 75, 37 L. Ed. 1052]. It is well settled that a court of chancery is conversant only with matters of property and the maintenance of civil rights. The court has no jurisdiction in matters of a political nature, nor to interfere with the duties of any department of government, unless under special circumstances, and when necessary to the protection of rights of property, nor in matters merely criminal or merely immoral, which do not affect any right of property. In re Sawyer, 124 U. S. 200 [8 Sup. Ct. 482, 31 L. Ed. 402]; Luther v. Borden. 7 How. 1 [12 L. Ed. 581]; Mississippi v. Johnson, 4 Wall. 475 [18 L. Ed. 437]; Georgia v. Stanton, 6 Wall. 50 [18 L. Ed. 721]; Holmes v. Oldham, 1 Hughes. 76 [Fed. Cas. No. 6,643]."

The precise question here under consideration was ruled by the Supreme Court of Illinois in Fletcher v. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220. It is there said:

"The question, then, is whether the assertion and protection of political rights, as judicial power is apportioned in this state between courts of law and courts of chancery, are a proper matter of chancery jurisdiction. We would not be understood as holding that political rights are not a matter of judicial solicitude and protection, and that the appropriate judicial tribunal will not, in proper cases, give them prompt and efficient protection, but we think they do not come within the proper cognizance of courts of equity. In Sheridan v. Colvin, 78 Il. 237, this court, adopting, in substance, the language of Kerr on Injunctions, said: 'It is elementary law that the subject of the jurisdiction of the court of chancery is civil property. The court is conversant only with the questions of property and the maintenance of civil rights. Injury to property, whether actual or prospective, is the foundation on which the jurisdiction rests. The court has no jurisdiction in matters merely criminal or merely immoral, which do not affect any right of property. Nor do matters of a political character come within the jurisdiction of the court of chancery. Nor has the court of chancery jurisdiction to interfere with the public duties of any department of the government, except under special circumstances, and where necessary for the rights of property.' Georgia v. Stanton, 6 Wall. 50 [18 L. Ed. 721]; In re Sawyer, 124 U. S. 200 [8 Sup. Ct. 482, 31 L. Ed. 402]; Sheridan v. Colvin, 78 Ill. 237; Dickey v. Reed, 78 Ill. 261; Harris v. Schryock, 82 III. 119, and other cases-are cited in support of the doctrine announced."

Again, in that case, it is said:

"Other authorities of similar import might be referred to, but the foregoing are amply sufficient to show that wherever the established distinctions between equitable and common-law jurisdiction are observed, as they are in this state, courts of equity have no authority or jurisdiction to interpose for the protection of rights which are merely political, and where no civil or property right is involved. In all such cases the remedy, if there is one, may be sought in a court of law. The extraordinary jurisdiction of courts of chancery cannot, therefore, be invoked to protect the right of a citizen to vote or

to be voted for at an election, or his right to be a candidate for or to be elected to any office; nor can it be invoked for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held. These matters involve in themselves no property rights, but pertain solely to the political administration of government. If a public officer, charged with political administration, has disobeyed or threatens to disobey the mandate of the law, whether in respect to calling or conducting an election or otherwise, the party injured or threatened with injury in his political rights is not without remedy, but his remedy must be sought in a court of law, and not in a court of chancery."

In Hardesty v. Taft, 23 Md. 513, 87 Am. Dec. 584, it is said:

"On this branch of the inquiry it seems to the court very clear that a court of equity cannot be invoked to prevent the performance of political duties like those committed to the officers of registration under the law. The willful, fraudulent, or corrupt refusal of a vote by judges of election, or a like denial of registration by the officer appointed to register votes, which is the same thing, can be adequately compensated for in damages at law. The writ of injunction will not be awarded in doubtful or new cases not coming within the well-established principles of equity. Bonaparte v. Railroad Co., Fed. Cas. No. 1,617.”

In People v. Canal Board, 55 N. Y. 393, it is said:

"A court of equity exercises its peculiar jurisdiction over public officers to control their actions only to prevent a breach of trust affecting public franchises, or some illegal act under color or claim of right affecting injuriously the property rights of individuals. A court of equity has, as such, no supervisory power or jurisdiction over public officials or public bodies, and only takes cognizance of actions against or concerning them when a case is made coming within one of the acknowledged heads of equity jurisdiction."

In Giles v. Harris, 189 U. S. 475, 23 Sup. Ct. 639, 47 L. Ed. 909, it is held:

"A circuit court of the United States in Alabama has not jurisdiction of an action in equity brought by a colored man, resident in Alabama, on behalf of himself and other negroes, to compel the board of registrars to enroll the names upon the voting lists of the county in which they reside under a Constitution alleged to be contrary to the Constitution of the United States."

From an examination of the authorities I am persuaded this court has no jurisdiction to restrain the board of which the defendants are the constituent members, created under the statute above quoted, from acting, upon the ground that such statute is unconstitutional and void, or upon any ground set forth in the bill. The right sought to be enforced under the allegations of the bill filed in this case being a political right, and not a civil or property right, this court has no jurisdiction to entertain the bill, and a temporary restraining order against the defendants as officers of the state constituting such board, under the law above quoted, may not and should not be granted. There is no equity in the bill, and the same will be dismissed.

FIRST NAT. BANK OF COVINGTON v. CITY OF COVINGTON et al.

(Circuit Court, E. D. Kentucky. May 26, 1903.)

No. 2,195.

1. RES JUDICATA-QUESTIONS CONCLUDED BY JUDGMENT-SUBSEQUENT SUIT ON DIFFERENT CAUSE OF ACTION.

Under the rule of the federal courts, a decision by the highest court of a state that the acceptance by a bank of a statute imposing taxes created a contract with the state by which the bank was exempt from local taxation during the term of its charter renders such question res judicata between the parties to the suit, and it cannot be again litigated between them in a subsequent suit, although it is on a different cause of action, arising under a law subsequently passed.

2. SAME.

The fact that the Judgment of a court might have been based upon a ground other than that on which it was actually based does not prevent the determination that such ground existed from being conclusive in a subsequent suit between the same parties, if its existence was in issue in the former suit, and properly formed the basis of the judgment therein. 3. SAME-FEDERAL COURTS-FOLLOWING RULE OF STATE COURTS.

Although a judgment of a state court would render a question res judicata in a subsequent suit between the same parties, under the rule of the federal courts, yet a federal court will not give it such effect where it would not be an estoppel under the rule of the highest court of the state.

4. TAXATION-NATIONAL BANKS-KENTUCKY STATUTES.

Act Ky. March 21, 1900 (Acts 1900, p. 65, c. 23), providing for the taxation of shares of national banks, is valid and enforceable, as applied to taxes for subsequent years, and a bank is not exempted from its operation because of its acceptance of the provisions of the Hewitt act of 1886 (Acts 1885-86, p. 140, c. 1233), which, as has been authoritatively determined, did not create an irrevocable contract with the state.

In Equity. Suit to enjoin collection of taxes.

S. D. Royce, for First Nat. Bank.

F. J. Hanlon, for City of Covington.

COCHRAN, District Judge. The Supreme Court of the United States, upon the appeal from the decree entered herein December 17, 1900 (103 Fed. 523), held that said decree was not final, but interlocutory, and hence not appealable (185 U. S. 270, 22 Sup. Ct. 645, 46 L. Ed. 906). It did so because the decree did not dispose of the entire controversy presented by the pleadings herein. That controversy involves the right of the defendant city of Covington, under the act of March 21, 1900 (Acts 1900, p. 65, c. 23), to collect from complainant any taxes whatever; i. e., taxes for the years after that date until the expiration of its charter, November 17, 1904, as well as taxes for the years prior thereto, since the adoption of the revenue law of 1892. A single ground is urged by complainant for nonliability on its part for taxes under said act for any period of time either before or after its

¶ 1. See Judgment, vol. 30, Cent. Dig. § 1508.

¶ 3. Conclusiveness of judgments between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters' Bank v. City of Memphis, 49 C. C. A. 468.