dissenting.
I am unable to poneur in either the opinion or judgment in this case. The single question is whether the Circuit Court of the United States had jurisdiction. Accepting the statement of facts in the opinion of the majority as sufficiently full, it appears that the plaintiff was entitled to a place on the permanent registry and was denied it by the-defendants, the board of registrars in the county iif which .he lived. No one was allowed to vote who was not' registered. He desired to vote'at the coming election for .representative in Congress. He was deprived of that right by the action of the defendants. Has the Circuit Court jurisdiction to redress such wrong ? It is conceded that because, pf the permanence of the registry the appeal cannot be "dismissed mnder Mills v. Green, 159 U. S. 561, for if registered on the permanent registry the plaintiff can vote at all future elections.
Whether the plaintiff’s remedy was at law or in equity, can*489not be considered on this appeal. It was so decided in Smith v. McKay, 161 U. S. 355, the authority of which is not in terms denied in the opinion of the majority, although by the decision it is practically disregarded. The certificate of the trial judge stated that “the only question considered and decided by the court in dismissing the bill of complaint was, whether upon the bill and demurrer thereto a case is presented, of which'this court has jurisdiction under the Constitution or laws of the United States.”
The act of Congress authorizing appeals directly from the Circuit Courts to this court, 26 Stat. 827, provides that;
“ In any case in which the jurisdiction of the court is in issue»; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision.”
In Smith v. McKay, we said (p. 358):
“ When the requisite citizenship of the parties appears, and the subject matter is such that the Circuit Court is competent to deal with it, the jurisdiction of that court attaches, and whether the court -should sustain the complainant’s prayer for equitable relief, or should dismiss the bill with leave to bring an action at law, either would be a valid exercise of jurisdiction. If any error were committed in the exercise of such jurisdiction, it could' only be remedied by an appeal to the Circuit Court of Appeáls.”
- See also Tucker v. McKay, 164 U. S. 701; Murphy v. Colorado Pacing Company, 166 U. S. 719 ; Shepard v. Adams, 168 U. S. 618, 622;. Building o& Loan Association v. Price, 169 U. S. 45, in which we said:
“ The complainant appealed to this court, which appeal was allowed and granted solely upon the question of the jurisdiction of the Circuit Court, and that question alone has been certified. Whether the bill show’s facts sufficient to invoke the consideration of a court of equity is not such a question of jurisdiction .as is referred to in the Judiciary Act of March 3, 1891, c. 517, and we have therefore no concern with that question.” Blythe Company v. Bhythe, 172 U. S. 644; Blythe v. Hinckley, 173 U. S. 501, 506, from w’hich I quote: “ Appeals or writs of error may be taken directly from the Circuit Courts to this court in *490cases in which the jurisdiction of those courts is in issue, that is, their jurisdiction as Federal courts, the question alone of jurisdiction being certified to this court. The Circuit Court held that the remedy was at law and not in equity. That conclusion was not a decision that the Circuit Court had no jurisdiction as a dourt of the United States. ”
A still more significant case is Huntington v. Laidley, 176 U. S. 668. In that case proceedings had been had in the courts of the State resulting in a final determination of the controversy. Subsequently this action was commenced in the Federal court, and the final decision of the state courts was pleaded as res judicata. The Circuit Court dismissed the suit for want of jurisdiction, and certified the question to this court. I thought it • was sacrificing substance to form to reverse the judgment of dismissal when it was apparent that the controversy had been settled by the decisions in the state court, and, therefore, could not rightfully be relitigated in the Federal court. But this court held that the only question to be considered was that of jurisdiction, saying (p, 679):
“ Under the circumstances of this case, the question whether the proceedings in any or all of the suits, at law or in equity, in the state court, afforded a defence — either by way of res adjudícala, or because of any control acquired by the state court over the subject matter — to this bill in the Circuit Court of the United States, was not a question affecting the jurisdiction of that court, but was a question affecting the merits of the cause, and as such to be tried and determined by that court in the exercise of its jurisdiction. The Circuit Court of the United States cannot, by treating a question of merits as a question of jurisdiction, enable this court, upon a direct appeal, on the question of jurisdiction only, to decide the question of merits, except in so far as it bears upon the question whether the court below had or 'had not jurisdiction of the case. In any aspect of the case, the decree of the Circuit Court of the United States, dismissing the suit for want of jurisdiction, must be reversed, and the cause remanded to that court for further proceedings therein.”
Although the statute and these decisions thus expressly limit the range of inquiry on a certificate of jurisdiction to the ques*491tion of jurisdiction, is is held that because there is a constitutional question shown in the pleadings, the certificate may be ignored and the entire case presented to this court for consideration.' In other words, although the plaintiff, by his method of appeal, following the provisions of the statute, limited the inquiry to the matter of jurisdiction, this court will ignore such limit and treat the case as coming here on a general appeal, which he did not take. This conclusion seems to me to practically destroy the statute and overrule the prior decisions, for the jurisdiction of Federal courts primarily rests on the Constitution of the United States and the extent of their jurisdiction is determined by its provisions. Hence every case coming up on a certificate of jurisdiction may be held to present a constitutional question and be open for full inquiry in respect to all matters involved.
Neither can I assent to the proposition that the case presented by the plaintiff’s bill is not strictly a legal one and entitling a party to a judicial hearing and decision. He alleges that he is a citizen of Alabama, entitled to vote ; that he desired to vote at an election for representative in Congress; that without registration he could not vote, and that registration was wrongfully denied him by the defendants. That many others. were similarly treated does not destroy his rights or deprive him of relief in the courts. That such relief will be given has been again and again affirmed in both National and state courts.
That the United States Circuit Court has jurisdiction of an action like this seems to me to result inevitably from prior decisions of this court. Without stopping to notice in detail the cases of Ex parte Siebold, 100 U. S. 371; Ex parte Yarbrough, 110 U. S. 651, and In re Coy, 127 U. S. 731, in which the general jurisdiction of Federal courts over matters involved in the election of national officers is affirmed, I refer to two recent cases which bear directly upon the present question. Wiley v. Sinkler, 179 U. S. 58, was an action brought in the Circuit Court of the United States by the plaintiff to recover damages of an election board for wilfully rejecting his vote for a member of the House of Representatives. We held that the court had jurisdiction, and said (p. 64):
*492“This action is 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 Soüth 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. The damages are laid at the sum of $2500. What amount of damages the plaintiff shall recover in such .an action is peculiarly appropriate for the determination of a jury, and no opinion of the court upon that subject can justify it in holding that the amount in controversy was insufficient to support the jurisdiction of the Circuit Court. Barry v. Edmunds, 116 U. S. 550 ; Scott v. Donald, 165 U. S. 58, 89; Vance v. W. A. Vandercook Co., 170 U. 468, 472; North American Co. v. Morrison, 178 U. S. 262, 267. The Circuit Court therefore clearly had jurisdiction of this action, and we are brought to the consideration of the other objections presented by the demurrer to the complaint.”
Again, in Swafford v. Templeton, 185 U. S. 487, which, like the former, case, was one brought in the Circuit Court of the United States to recover damages for the alleged wrongful refusal by the defendants as election officers to permit the plaintiff to vote at a national election for a member of the House of Representatives, it was held that the court had jurisdiction. Here, too, we said, after referring to Wiley v. Sinkler (p. 492) :
“ 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, ‘ fundamentally based upon the Constitution of the United States, which created the office of member of Congress, and declared that it should be elective, and pointed out 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 *493of 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. .It results from what has just been said that the court erreh in dismissing the action for want of jurisdiction; since the right which it was claimed had been unlawfully invaded was one in the very nature of things arising under the Constitution and laws.-of the United States, and that this inhered in the very substance of the claim. It is obvious from an inspection of the certificate that the court, in dismissing for want of jurisdiction, was controlled by what it deemed to be the want of merit in the averments which were made in the .complaint as to the violation- of the Federal right. But as the very nature of the controversy was Federal, and, therefore, jurisdiction existed, whilst the opinion of the court as to the want of merit in the causé of action might have furnished ground for dismissing for that reason, .it afforded no sufficient ground for deciding that the action was. not one arising under the Constitution and laws of the United States.”
It seems to me nothing need be added to these decisions, and unless they are to be considered as overruled they are decisive of this case.
Mr. Justice Brown also dissents.