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Political Question

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POLITICAL QUESTION. One over which the courts decline to take cognizance in view bf the line of demarkation between the judicial branch of the government, on one hand, and the executive and legislative branches, on the other. 'Parker v. State, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 567.

Questions expressly reserved by the con stitution to either the executive or the leg islature, and questions which, by necessary implication of the constitution, are so re served—that is, questions the. decision of whicu by the judiciary would obviously em barrass the action of the legislative and ex ecutive within their respective spheres, or which, owing to the superior sources of knowledge of the other two branches, the courts are ill qualified to decide. 22 Harv. L. R. 132.

The following have been held political questions : As to who is the sovereign of a certain country ; Pearcy v. Stranahan, 205 U. S. 257, 27 Sup. Ct. 545, 51 L. Ed. 793 ; the jurisdic tion of different sovereignties; State v. Wag ner, 61 Me. 178; Pearcy v. Stranahan, 205 U. S. 257, 27 Sup. Ct. 545, 51 L. Ed. 793 ; whether a state is republican in its form of government ; State v. Summers (S. D.) 144 N. W. 730 ; as to the status of Indian tribes ; Far rell v. U. S., 110 Fed. 942, 49 C. C. A. 183 ; whether a state constitution was duly or dained by the people; and where it has been promulgated and recognized as in force by the executive and legislative departments and accepted by the people, the legality of its adoption cannot be brought in question in a federal court ; Brickhouse v. Brooks, 165 Fed. 534; whether the initiative and referen dum provisions in the Oregon constitution alter its form of government as to make it no longer republican ; Pacific S. Tel. Co v. Oregon, 223 U. S. 118, 32 Sup. Ct. 224, 56 L. Ed. 377; whether a law is necessary with in the initiative and referendum provision of the constitution, excepting from its provi sion for referendum laws which are neces sary for the immediate preservation of the public peace, health or safety ; Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac.

222; whether or not property held as public property is necessary for the public use; Monroe v. Johnson, 106 La. 350, 30 South. 840; as to how long Cuba may rightfully be occupied by the United States; Neely v. Henkel, 180 U. S. 109, 21 Sup. Ct. 302, 45 L. Ed. 448.

The courts will not declare an act to be a tort in violation of the law of nations or of a treaty, when the executive, congress and the treaty-making power have all adopted it; O'Reilly De Camara v. Brooke, 209 U. S. 45, 28 Sup. Ct. 439, 52 L. Ed. 676.

Courts will treat as subject to their juris diction any territory claimed by the political department ; Harrold v. Arrington, 64 Tex. 233.

A mere assertion of property rights will not give jurisdiction over a political ques tion, where the assertion is merely added for the purpose of conferring jurisdiction; Georgia v. Stanton, 6 Wall. (U. S.) 50, 18 L. Ed. 721; and the court refused to take juris diction of a suit, the real object of which was to settle the right of succession between Indian princes, although nominally brought to test the title to property ; 12 Calcutta W. N. 777 (Calcutta High Court, 1908). But it is held that municipal courts may determine the title to property within their jurisdiction, even though a political question is involved ; 12 Moore, Ind. App. 523.

It is within the province of the political department .to provide the mode in which im perfect rights of property under treaties (such as that by which territory was ceded by Mexico to the United States) may be se cured, and the courts have no jurisdiction to enforce such rights except as delegated to them by congress ; U. S. v. Sandoval, U. S. 278, 17 Sup. Ct. 868, 42 L. Ed. 168.

Such questions frequently arise when there is an attempt to enjoin an incumbent of ei ther the legislative or executive departments from performing some act which he claims the right to perform by virtue of his office, or to compel him to perform some act which he declines or refuses to perform ; Parker v. State, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 567.