[223 U.S. 118, 119] Messrs. E. S. Pillsbury and Oscar Sutro for plaintiff in error.
[223 U.S. 118, 129] Mr. A. M. Crawford, Attorney General of Oregon, Messrs. George Fred Williams, Jackson H. Ralston, I. H. Van Winkle, W. S. U'Ren, C. E. S. Wood, Frederick L. Siddons, William E. Richardson, George H. Shibley, Robert L. Owen, and J. Harry Carnes for defendant in error.
Mr. Elliott W. Major, Attorney General of Missouri, and Messrs. John T. Dye and Addison C. Harris as amici curioe.
Mr. Chief Justice White delivered the opinion of the court:
We premise by saying that while the controversy which this record presents is of much importance, it is not novel. It is important, since it calls upon us to decide whether it is the duty of the courts or the province of Congress to determine when a state has ceased to be republican in form, and to enforce the guaranty of the Constitution on that subject. It is not novel, as that question has long since been determined by this court conformably to the practice of the government from the beginning to be political in character, and therefore not cognizable by the judicial power, but solely committed by the Constitution to the judgment of Congress.
The case is this: In 1902 Oregon amended its Constitution. This amendment, while retaining an existing clause vesting the exclusive legislative power in a general assembly consisting of a senate and a house of representatives, added to that provision the following: 'But the people reserve to themselves power to propose laws and amendments to the Constitution, and to enact or [223 U.S. 118, 134] reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly.' [Art. 4, 1.] Specific means for the exercise of the power thus reserved was contained in further clauses authorizing both the amendment of the Constitution and the enactment of laws to be accomplished by the method known as the initiative and that commonly referred to as the referendum. As to the first, the initiative, it suffices to say that a stated number of voters were given the right at any time to secure a submission to popular vote for approval of any matter which it was desired to have enacted into law, and providing that the proposition thus submitted, when approved by popular vote, should become the law of the state. The second, the referendum, provided for a reference to a popular vote, for approval or disapproval, of any law passed by the legislature, such reference to take place either as the result of the action of the legislature itself, or of a petition filed for that purpose by a specified number of voters. The full text of the amendment is in the margin.
Section 1 of article 4 of the Constitution of the state of Oregon shall be, and hereby is, amended to read as follows:
Section 1. The legislative authority of the state shall be vested in a legislative assembly, consisting of a senate and house of representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution, and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative, and not more than 8 per cent of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon. The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety) either by the petition signed by 5 per cent of the legal voters, or by the legislative assembly, as other bills are enacted. Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. The veto power of the governor shall not extend to measures referred to the people. All elections on measures referred to the people of the state shall be had at the biennial regular general elections, except when the legislative assembly shall order a special election. Any measure referred to the people shall take effect and become the law when it is approved by a majority of the votes cast thereon, and not otherwise. The style of all bills shall be: 'Be it enacted by the people of the state of Oregon.' This section shall not be construed to deprive any member of the legislative assembly of the right to introduce any measure. The whole number of votes cast for justice of the supreme court at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal voters necessary to sign such petition shall be counted. Petitions and orders for the initiative or for the referendum shall be filed with the Secretary of State, and in submitting the same to the people, he and all other officers shall be guided by the general laws and the act submitting this amendment until legislation shall be especially provided therefor. [223 U.S. 118, 135] In 1903 detailed provisions for the carrying into effect of this amendment were enacted by the legislature.
By resort to the initiative in 1906, a law taxing certain classes of corporations was submitted, voted on, and promulgated by the governor in 1907 as having been duly adopted. By this law telephone and telegraph companies were taxed, by what was qualified as an annual license, 2 per centum upon their gross revenue derived from business done within the state. Penalties were provided for nonpayment, and methods were created for enforcing payment in case of delinquency.
The Pacific States Telephone & Telegraph Company, an Oregon corporation engaged in business in that state, made a return of its gross receipts, as required by the [223 U.S. 118, 136] statute, and was accordingly assessed 2 per cent upon the amount of such return. The suit which is now before us was commenced by the state to enforce payment of this assessment and the statutory penalties for delinquency. The petition alleged the passage of the taxing law by resort to the initiative, the return made by the corporation, the assessment, the duty to pay, and the failure to make such payment.
The answer of the corporation contained twenty-nine paragraphs. Four of these challenged the validity of the tax because of defects inhering in the nature or operation of the tax. The defenses stated in these four paragraphs, however, may be put out of view, as the defendant corporation, on its own motion, was allowed by the court to strike these propositions from its answer. We may also put out of view the defenses raised by the remaining paragraphs based upon the operation and effect of the state Constitution, as they are concluded by the judgment of the state court. Coming to consider these paragraphs of the answer thus disembarrassed, it is true to say that they all, in so far as they relied upon the Constitution of the United States, rested exclusively upon an alleged infirmity of the powers of government of the state, begotten by the incorporation into the state Constitution of the amendment concerning the initiative and the referendum.
The answer was demurred to as stating no defense. The demurrer was sustained, and the defendant electing not to plead further, judgment went against it, and that judgment was affirmed by the supreme court of Oregon. ( 53 Or. 163, 99 Pac. 427.) The court sustained the conclusion by it reached, not only for the reasons expressed in its opinion, but by reference to the opinion in a prior case (Kadderly v. Portland, 44 Or. 118, 146, 74 Pac. 710, 75 Pac. 222), where a like controversy had been determined.
The assignments of error filed on the allowance of the writ of error are numerous. The entire matters covered [223 U.S. 118, 137] by each and all of them in the argument, however, are reduced to six propositions, which really amount to but one, since they are all based upon the single contention that the creation by a state of the power to legislate by the initiative and referendum causes the prior lawful state government to be bereft of its lawful character as the result of the provisions of 4 of article 4 of the Constitution, that 'the United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.' This being the basis of all the contentions, the case comes to the single issue whether the enforcement of that provision, because of its political character, is exclusively committed to Congress, or is judicial in its character. Because of their absolute unity we consider all the propositions together, and therefore at once copy them. We observe, however, that in the argument the second, fourth, and fifth paragraphs, for the purposes of discussion, were subordinately classified, and these subordinate classifications we omit from our text, reproducing them, however, by a marginal reference.
1. The guaranty of article 4, section 4, of the Federal Constitution, is to the people of the states, and to each citizen, as well as to the states as political entities.
2. Section 4 of article 4 therefore prohibits the majority in any state from adopting an unrepublican Constitution.
1. Difference between a republic and democracy.
2. In ascertaining the meaning of the phrase 'republican form of government,' the debates of the constitutional conventions and the federalist papers are of great importance, if not conclusive.
3. The framers of the Constitution recognized the distinction between the republican and democratic form of government, and carefully avoided the latter.
4. The extent of territory of the states alone sufficed, in the judgment of the framers of the Constitution, to condemn the establishment of a democratic form of government.
5. The form of state government perpetuated by the Constitution was the republican form, with the three departments of government, in force in all the states at the time of the adoption of the Constitution.
6. The history of other nations does not furnish the definition of the phrase 'republican form of government,' as those words were used by the framers of the Constitution. They distinguish the American from all other republics by the introduction of the principle of representation.
7. Initiative legislation is invalid because government by the people directly is inconsistent with our form of government.
8. The well-known practices of (a) adopting state Constitutions by popular vote, and of (b) local legislation in 'town meetings,' furnish no precedent for the lodgment of legislative power in the ballot box. [223 U.S. 118, 139] V.
On the surface, the impression might be produced that the first and third propositions,-the one in words relating
1 1. State Legislatures are a vital feature of our government; the Federal Constitution presupposes their existence, and imposes on each state the obligation to maintain them.
2. The division of powers of the three departments in each of the states is a prerequisite to the national government.
3. It is evident under the Constitution the state legislatures are the agency to carry on the relations between the nation and the states.
4. The word 'legislature' in the Constitution means a representative assembly consisting of two houses, empowered to make the law. Such was its meaning at the time of the adoption of the Constitution.
5. Contemporaneous legislation by Congress sheds some light on the meaning of the term 'legislature,' as used in the Constitution.
6. The initiative destroys the legislative assemblies or legislatures which it is the implied obligation of each state to maintain, for a legislature must be the lawmaking power.
7. The initiative overthrows one of the greatest safeguards against the abuse of the power of legislation, to wit: the system of a dual legislative assembly. [223 U.S. 118, 140] to the equal protection clause of the 14th Amendment, and the other in terms asserting 'taxation by the initiative method violates fundamental rights, and is not in accordance with the law of the land,' are addressed to some inherent defect in the tax or infirmity of power to levy it, without regard to the guaranty of a republican form of government. But this is merely superficial, and is at once dispelled by observing that every reason urged to support the two propositions is solely based on 4 of article 4, and the consequent inability of the state to impose any tax of any kind which would not violate the 14th Amendment, or be repugnant to the law of the land, if in such state the initiative or referendum method is permitted. Thus dispelling any mere confusion resulting from forms of expression, and considering the substance of things, it is apparent that the second proposition, which rests upon the affirmative assertion that, by the adoption of the initiative and referendum, the state 'violates the right to a republican form of government which is guaranteed by 4 of article 4 of the Federal Constitution,' and the two subdivisions made of that proposition, the first, that 'the guaranty in question is to the people of the states and to each citizen, as well as to the states as political entities,' and the second asserting, ' 4 of article 4 therefore prohibits the majority in any state from adopting an unrepublican Constitution,' are the basic propositions upon which all the others rest. That is to say, all the others and their subdivisions are but inducements tending to show the correctness of the second and fundamental one. This conclusion is certain, as they all but point out the various modes by which the adoption of the initiative and referendum incapacitated the state from performing the duties incumbent upon it as a member of the Union, or its obligations towards its citizens, thus causing the state to cease to be a government republican in form, within the intendment of the [223 U.S. 118, 141] constitutional provision relied upon. In other words, the propositions each and all proceed alone upon the theory that the adoption of the initiative and referendum destroyed all government republican in form in Oregon. This being so, the contention, if held to be sound, would necessarily affect the validity, not only of the particular statute which is before us, but of every other statute passed in Oregon since the adoption of the initiative and referendum. And indeed, the propositions go further than this, since in their essence they assert that there is no governmental function, legislative or judicial, in Oregon, because it cannot be assumed, if the proposition be well founded, that there is, at one and the same time, one and the same government, which is republican in form, and not of that character. Before immediately considering the text of 4 of article 4, in order to uncover and give emphasis to the anomalous and destructive effects upon both the state and national governments which the adoption of the proposition implies, as illustrated by what we have just said, let us briefly fix the inconceivable expansion of the judicial power and the ruinous destruction of legislative authority in matters purely political which would necessarily be occasioned by giving sanction to the doctrine which underlies and would be necessarily involved in sustaining the propositions contended for.
First. That however perfect and absolute may be the establishment and dominion in fact of a state government, however complete may be its participation in and enjoyment of all its power and rights as a member of the national government, and however all the departments of that government may recognize such state government, nevertheless, every citizen of such state, or person subject to taxation therein, or owing any duty to the established government, may be heard, for the purpose of defeating the payment of such taxes or avoiding the discharge of such duty, to assail in a court of justice the rightful existence [223 U.S. 118, 142] of the state. Second. As a result, it becomes the duty of the couRts of the United States, where such a claim is made, to examine as a justiciable issue the contention as to the illegal existence of a state, and if such contention be thought well founded, to disregard the existence in fact of the state, of its recognition by all of the departments of the Federal government, and practically award a decree absolving from all obligation to contribute to the support of, or obey the laws of, such established state government. And as a consequence of the existence of such judicial authority, a power in the judiciary must be implied, unless it be that anarchy is to ensue, to build by judicial action upon the ruins of the previously established government a new one,-a right which, by its very terms, also implies the power to control the legislative department of the government of the United States in the recognition of such new government and the admission of representatives therefrom, as well as to strip the executive department of that government of its otherwise lawful and discretionary authority. Do the provisions of 4, article 4, bring about these strange, far-reaching, and injurious results? That is to say, do the provisions of that article obliterate the division between judicial authority and legislative power upon which the Constitution rests? In other words, do they authorize the judiciary to substitute its judgment as to a matter purely political for the judgment of Congress on a subject committed to it, and thus overthrow the Constitution upon the ground that thereby the guaranty to the states of a government republican in form may be secured,-a conception which, after all, rests upon the assumption that the states are to be guaranteed a government republican in form by destroying the very existence of a government republican in form in the nation.
We shall not stop to consider the text to point out how absolutely barren it is of support for the contentions sought to be based upon it, since the repugnancy of those contentions [223 U.S. 118, 143] to the letter and spirit of that text is so conclusively established by prior decisions of this court as to cause the matter to be absolutely foreclosed.
In view of the importance of the subject, the apparent misapprehension on one side and seeming misconception on the other, suggested by the argument as to the full significance of the previous doctrine, we do not content ourselves with a mere citation of the cases, but state more at length than we otherwise would the issues and the doctrine expounded in the leading and absolutely controlling case,-Luther v. Borden, 7 How. 1, 12 L. ed. 581.
The case came from a circuit court of the United States. It was an action of damages for trespass. The case grew out of what is commonly known as the Dorr Rebellion in Rhode Island, and the conflict which was brought about by the effort of the adherents of that alleged government, sometimes described as 'the government established by a voluntary convention,' to overthrow the established charter government. The defendants justified on the ground that the acts done by them, charged as a trespass, were done under the authority of the charter government during the prevalence of martial law, and for the purpose of aiding in the suppression of an armed revolt by the supporters of the insurrectionary government. The plaintiffs, on the contrary, asserted the validity of the voluntary government, and denied the legality of the charter government. In the course of the trial the plaintiffs, to support the contention of the illegality of the charter government and the legality of the voluntary government, 'although that government never was able to exercise any authority in the state, nor to command obedience to its laws or to its officers,' offered certain evidence tending to show that nevertheless it was 'the lawful and established government,' upon the ground that its powers to govern have been ratified by a large majority of the male people of the state of the age of twenty-one years and upwards, and also by a large [223 U.S. 118, 144] majority of those who were entitled to vote for general officers cast in favor of a Constitution which was submitted as the result of a voluntarily assembled convention of what was alleged to be the people of the state of Rhode Island. The circuit court rejected this evidence and instructed the jury that, as the charter government was the established state government at the time the trespass occurred, the defendants were justified in acting under the authority of that government. This court, coming to review this ruling, at the outset pointed out 'the novelty and serious nature' of the question which it was called upon to decide. Attention also was at the inception directed to the far-reaching effect and gravity of the consequences which would be produced by sustaining the right of the plaintiff to assail and set aside the established government by recovering damages from the defendants for acts done by them under the authority of, and for the purpose of sustaining, such established government. On this subject it was said (p. 38):
Coming to review the question, attention was directed to the fact that the courts of Rhode Island had recognized the complete dominancy in fact of the charter government, and had refused to investigate the legality of the [223 U.S. 118, 145] voluntary government for the purpose of decreeing the established government to be illegal, on the ground (p. 39) 'that the inquiry proposed to be made belonged to the political power, and not to the judicial; that it rested with the political power to decide whether the charter government had been displaced or not; and when that decision was made, the judicial department would be bound to take notice of it as the paramount law of the state, without the aid of oral evidence or the examination of witnesses, etc.' It was further remarked:
Reviewing the grounds upon which these doctrines proceeded, their cogency was pointed out and the disastrous effect of any other view was emphasized, and from a point of view of the state law the conclusive effect of the judgments of the courts of Rhode Island was referred to. The court then came to consider the correctness of the principle applied by the Rhode Island courts, in the light of 4 of article 4 of the Constitution of the United States. The contention of the plaintiff in error concerning that article was, in substantial effect, thus pressed in argument: The ultimate power of sovereignty is in the people; and they, in the nature of things, if the government is a free one, must have a right to change their Constitution. Where, in the ordinary course, no other means exists of doing so, that right, of necessity, embraces the power to resort to revolution. As, however, no such right, it was urged, could exist under the Constitution, because of the provision of 4 of article 4, protecting each state, on application of the legislature, or of the executive, when the legislature cannot be convened, against domestic violence, it followed that the guaranty of a republican government in form [223 U.S. 118, 146] was the means provided by the Constitution to secure the people in their right to change their government, and made the question whether such change was rightfully accomplished a judicial question, determinable by the courts of the United States. To make the physical power of the United States available, at the demand of an existing state government, to suppress all resistance to its authority, and yet to afford no method of testing the rightful character of the state government, would be to render people of a particular state hopeless in case of a wrongful government. It was pointed out in the argument that the decision of the courts of Rhode Island in favor of the charter government illustrated the force of these contentions, since they proceeded solely on the established character of that government, and not upon whether the people had rightfully overthrown it by voluntarily drawing and submitting for approval a new Constitution. It is thus seen that the propositions relied upon in this case were presented for decision in the most complete and most direct way. The court, in disposing of them, while virtually recognizing the cogency of the argument in so far as it emphasized the restraint upon armed resistance to an existing state government, arising from the provision of 4 of article 4, and the resultant necessity for the existence somewhere in the Constitution of a tribunal, upon which the people of a state could rely, to protect them from the wrongful continuance against their will of a government not republican in form, proceeded to inquire whether a tribunal existed and its character. In doing this it pointed out that, owing to the inherent political character of such a question, its decision was not by the Constitution vested in the judicial department of the government, but was, on the contrary, exclusively committed to the legislative department, by whose action on such subject the judiciary were absolutely controlled. The court said (p. 42): [223 U.S. 118, 147] 'Moreover, the Constitution of the United States, as far as it has provided for an emergency of this kind and authorized the general government to interfere in the domestic concerns of a state, has treated the subject as political in its nature, and placed the power in the hands of that department.
Pointing out that Congress, by the act of February 28, 1795 [1 Stat. at L. 424, chap. 36], had recognized the obligation resting upon it to protect from domestic violence by conferring authority upon the President of the United States, [223 U.S. 118, 148] on the application of the legislature of a state or of the governor, to call out the militia of any other state or states to suppress such insurrection, it was suggested that if the question of what was the rightful government within the intendment of 4 of article 4 was a judicial one, the duty to afford protections from invasion and to suppress domestic violence would be also judicial, since those duties were inseparably related to the determination of whether there was a rightful government. If this view were correct, it was intimated, it would follow that the delegation of authority made to the President by the act of 1795 would be void as a usurpation of judicial authority, and hence it would be the duty of the courts, if they differed with the judgment of the President as to the manner of discharging this great responsibility, to interfere and set at naught his action; and the pertinent statement was made (p. 43): 'If the judicial power extends so far, the guaranty contained in the Constitution of the United States is a guaranty of anarchy, and not of order.'
The fundamental doctrines thus so lucidly and cogently announced by the court, speaking through Mr. Chief Justice Taney in the case which we have thus reviewed, have never been doubted or questioned since, and have afforded the light guiding the orderly development of our constitutional system from the day of the deliverance of that decision up to the present time. We do not stop to cite other cases which indirectly or incidentally refer to the subject, but conclude by directing attention to the statement by the court, speaking through Mr. Chief Justice Fuller, in Taylor v. Beckham, 178 U.S. 548 , 44 L. ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing of a contention made concerning the 14th Amendment, and coming to consider a proposition which was necessary to be decided concerning the nature and effect of the guaranty of 4 of article 4, it was said (p. 578):
It is indeed a singular misconception of the nature and character of our constitutional system of government to suggest that the settled distinction which the doctrine just [223 U.S. 118, 150] stated points out between judicial authority over justiciable controversies and legislative power as to purely political questions tends to destroy the duty of the judiciary in proper cases to enforce the Constitution. The suggestion but results from failing to distinguish between things which are widely different; that is, the legislative duty to determine the political questions involved in deciding whether a state government republican in form exists, and the judicial power and ever- present duty whenever it becomes necessary, in a controversy properly submitted, to enforce and uphold the applicable provisions of the Constitution as to each and every exercise of governmental power.
How better can the broad lines which distinguish these two subjects be pointed out than by considering the character of the defense in this very case? The defendant company does not contend here that it could not have been required to pay a license tax. It does not assert that it was denied an opportunity to be heard as to the amount for which it was taxed, or that there was anything inhering in the tax or involved intrinsically in the law which violated any of its constitutional rights. If such questions had been raised, they would have been justiciable, and therefore would have required the calling into operation of judicial power. Instead, however, of doing any of these things, the attack on the statute here made is of a wholly different character. Its essentially political nature is at once made manifest by understanding that the assault which the contention here advanced makes is not on the tax as a tax, but on the state as a state. It is addressed to the framework and political character of the government by which the statute levying the tax was passed. It is the government, the political entity, which (reducing the case to its essence) is called to the bar of this court, not for the purpose of testing judicially some exercise of power, assailed on the ground that its exertion has injuriously [223 U.S. 118, 151] affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the state that it establish its right to exist as a state, republican in form.
As the issues presented, in their very essence, are, and have long since by this court been, definitely determined to be political and governmental, and embraced within the scope of the powers conferred upon Congress, and not, therefore, within the reach of judicial power, it follows that the case presented is not within our jurisdiction, and the writ of error must therefore be, and it is, dismissed for want of jurisdiction.
Dismissed for want of jurisdiction.