The sole question is, Did the circuit court err in dismissing the action, on the ground that it was not one within the jurisdiction of the court? An affirmative answer to this question is rendered necessary by the decision in Wiley v. Sinkler, 179 U.S. 58, 45 L. ed. 84, 21 Sup. Ct. Rep. 17. In that case the action was brought in a circuit court of the United States against state election officers to recover damages in the sum of $2,500 for an alleged unlawful rejection of plaintiff's vote at a Federal election. A demurrer was filed to the complaint. One of the grounds of the demurrer was that the court had no jurisdiction of the action, because it did not affirmatively appear on the face of the complaint that a Federal question was involved. The demurrer, however, was sustained, not because of the want of jurisdiction, but solely upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The cause was brought directly to this court, under that provision of the act of March 3, 1891, which confers power to review the judgment or decree of a circuit court, among others, in any case involving the construction or application of the Constitution of the United States. In this court the contention was renewed that the circuit court was without jurisdiction, and this contention involved necessarily, also, a denial of the power of this court to review, since the right directly to do so was sustainable alone upon the ground that the cause was one involving the construction or application of the Constitution of the United States. The argument advanced to sustain the asserted want of jurisdiction was this, that, as the Constitution of the United States did not confer the right of suffrage upon anyone, but the same was a privilege which the elector enjoyed under the Constitution and laws of the state in which he was entitled to vote, therefore the denial of the right to vote at an election for a member of Congress did not and could not involve the construction or application of the Constitution of the United States. The court, however, decided otherwise, and, speaking through Mr. Justice Gray, said that the case 'involves the construction and application of the Constitution of the United States;' that 'the right to vote for members of the Congress of the United States . . . has its foundation in the Constitution of the United States;' that 'the circuit court of the United States has jurisdiction, concurrent with the courts of the state, of any action under the Constitution, laws, or treaties of the United States, in which the matter in dispute exceeds the sum or value of $2,000;' and that, the action being 'brought against election officers to recover damages for their rejection of the plaintiff's vote for a member of the House of Representatives of the United States, the complaint, by alleging that the plaintiff was, at the time, under the Constitution and laws of the state of South Carolina and the Constitution and laws of the United States, a duly qualified elector of the state, shows that the action is brought under the Constitution and laws of the United States.' In concluding its examination of the question of jurisdiction, it was declared that 'the circuit court, therefore, clearly had jurisdiction of this action.' The conclusion thus expressed, by necessary implication, decided the power of this court to review, which would not have obtained, unless jurisdiction of the circuit court had been found to rest on the constitutional right.
It is manifest from the context of the opinion in the case just referred to that the conclusion that the cause was one arising under the Constitution of the United States was predicated on the conception that the action sought the vindication or protection of the right to vote for a member of Congress, a right, as declared in Ex parte Yarbrough, 110 U.S. 655, 664, 28 L. ed. 275, 278, 4 Sup. Ct. Rep. 152, 158, 'fundamentally based upon the Constitution [of the United States], which created the office of member of Congress, and declared it should be elective, and pointed to the means of ascertaining who should be electors.' That is to say, the ruling was that the case was equally one arising under the Constitution or laws of the United States, whether the illegal act complained of arose from a charged violation of some specific provision of the Constitution or laws of the United States, or from the violation of a state law which affected the exercise of the right to vote for a member of Congress, since the Constitution of the United States had adopted, as the qualifications of electors for members of Congress, those prescribed by the state for electors of the most numerous branch of the legislature of the state.