Pacific States Telephone & Telegraph Co. v. Oregon

delivered the opinion of the court.

We premise by saying that while the controversy which this record presents is bf 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 guarantee of. the Constitution on that súbject. It is not novel, as.that question has long sincé been determined by this court conformably to the practise 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 (Art. IV, § 1). This amendment while retaining an existing clause vesting the exclusive legislative power in a General Assembly consisting of a senate and house of representatives added, to that provision the following: “But the people reserve..to themselves power tp propose laws and amendments to the constitution and to enact or *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..” 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. 1

*135 In 1903 (Feby. 24, 1903, Gen. Laws 1903, p. 244) 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 1906 (June 25, 1906, Gen. Laws 1907, p. 7) as having been duly adopted. By this law telephone and telegraph companies were taxed, by what was qualified as'an annual license, two per centum upon their gross revenue derived from business done within the State. Penalties were provided for non-payment, and methods were created for enforcing payment in case of delinquency.

The Pacific States Telephone and Telegraph Company, an Oregon corporation engaged in business in that State, made a return of its gross receipts as required by the. *136 statute and was accordingly assessed two 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 aré 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 defensé. The demurrer was sustained, and the defendant electing not to plead further, judgment went against it' and that júdgment was affirmed by the Supreme Court of Oregon. (53 Oregon, 162.) The court sustained the conclusión 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 Oregon, 118, 146), where a like controversy had been determined.

The assignments, of error filed on the allowance of the writ of érror are numerous. The entire matters covered *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 Art. IV 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..

I.

“The initiative and the tax measure in question are repugnant to the provisions of section 1 of the Fourteenth . Amendment to the Constitution of the United States which forbids a State to deny to any person within its jurisdiction the equal protection of the law.

II.

“The initiative amendment and the-tax in question) levied pursuant to a measure, passed by authority of the initiative amendment, violates the right to a republican *138 form of government which is guaranteed by section 4, article IV, of the Federal Constitution. 1

III.

“Taxation by the initiative method violates fundamental rights and is not in accordance with ‘the law of the land.’ (U. S. Const., Art. VI).

IV.

“ The initiative is in contravention of a republican form of government. Government by the people directly is the attribute of a pure democracy and is subversive of the principles upon which the republic is founded. Direct legislation is, therefore, repugnant to that form of government with which alone Congress could admit a State to the Union and which the State is bound to maintain. 2

*139 V.,

“ The Federal Constitution presupposes in each State the maintenance, of a republican form of government and the existence of state legislatures, to wit: Representative assemblies having the power to make the laws; and that in each State the powers of government will be divided into 'three departments: a legislature, an executive and a judiciary. One of these, the legislature, is destroyed by the initiative. 1

VI.

“ The provision in the. Oregon constitution for direct legislation violates the provisions of the act of Congress admitting Oregon to the Union.”

On the surface, the impression might be produced that the first and third propositions, — the one in words relating *140 to the equal protection clause of .the Fourteenth 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 gúarantee 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 Art. IV and the consequent inability of the State to impose any tax of any kind which-would not violate the Fourteenth 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 section - 4 of Article IV of the Federal Constitution,” and the two subdivisions made of that proposition, the first that “the guarantee 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 “section 4 of Articlé IV therefore prohibits the majority in any State from adopting an unrepublican constitution,” are tlie 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. Inodes by which the adoption of the initiative and referendum incapacitated the State from, performing -the ddties 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 *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 thé 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 hot. of that character:

Before immediately considering the text of § 4 of Art. IV, 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-arid' enjoyment of all its.powers and rights as a member of the national-Government, and however all the departinerits 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 exist *142 ence 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, Art. TV, 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 guarantee 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 ^he repugnancy of those cpn *143 tentions 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 léading and absolutely controlling case — Luther v. Borden, 7 How. 1.

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,” offéred 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 21 years and upwards and also by a large *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 in-. structed 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 rjght 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):

“For, if this court is authorized to enter upon this inquiry as proposed by the plaintiff, and it should be decided that the charter government had no legal.existence during the period of time above -mentioned, if it had been annulled, by the adoption of the opposing'government, then the laws passed by its .legislature during that time, were nullities; its .taxes wrongfully collected; its salaries and'compensation to its officers illegally paid; its public accounts improperly settled; and the judgments and sentences of its courts in civil and criminal cases null and void, and;-the officers who carried their decisions,into operation, answerable as trespassers, if not in some cases as criminals.” '

• 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 govern"ment, and had .'refused to investigate the legality of thé *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 tó 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:

“This- doctrine is clearly.ánd • forcibly stated in the opinion of the supreme court of the State in the trial, of Thomas W; .Dorr, who was the governor elected under the opposing constitution, and headed the armed' force which endeavored to maintain its authority.”

Reviewing the grounds upon which, these doctrines proceeded, theif cogency was pointed out and the disastrohs effect of any other view was emphasized, and from a point of view of the statb law the conclusive effect of the judgments of the courts of Rhode Island was referred' to. ■ The court then carne to consider the correctness of the principle-applied by thé Rhode Island courts, in the light-of § 4-of. Art. IV, 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,, arid they in the nature of . things,", if the governriient is a free one* mrist 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. Ás, however, rio súch right it was urged could exist under the Constitution,-because of-the provision of' | 4. of Art. IV, protecting each State on application of the legislature of of the executive,' when the legislature carinot be convened, against domestic violence, it followed that the guarantee of- a jpvernínent' republican i¿ form *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 courts in disposing of them, while vir-' tually 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 Art. IV, 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):

*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.

“The fourth section of the fourth article of the constitution of the United States provides that the United States shall-guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the legislature or of the. executive (when the legislature cannot be convened) against domestic violence.

“Under this article of the constitution it rests with congress- to decide what government -is the established one in a State. For, as the United States guarantee to each State a republican government, congress must necessarily decide what government is established in the State before.it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its. decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and as no senator's or representatives were elected under the authority of the government of which Mr. Dorr was the head, Congress wap not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts.” ;

- Pointing out that Congress, by the act of February 28, 1795 (1 Stat. 424, c. 36), had recognized, the obligation resting upon it to protect from domestic violence by conferring authority upon the President of the United States, *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 Art. IV was a judicial one, the duty to afford protection 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, arid 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 iriterfere and set at naught his-action; and the pertinent statement was,made (p. 43) : “If the judicial power extends so far,' the guarántee contained in the constitution of, the United States is a guarantee óf ariarchy, 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 fróm 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 directirig attention to the statement; by the court, speaking through Mr. Chief Justice Fuller, in Taylor v. Beckham, No. 1, 178 U. S. 548, where, after disposing of a contention made concerning the Fourteenth Amendment' -and coming to consider a proposition.which was necessary to be decided concerning the nature and effect of the guarantee of § 4 of Art. IV, it was said (p.- 578):

“But it is said that the Fourteenth Amendment must be *149 read with section- 4 of article IV of the. Constitution, providing 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.’ It is argued that when the State of Kentucky entered the Union, .the people ‘surrendered their right of forcible revolution in state affairs,’ and received in lieu thereof a distinct pledge to the people of the State of the guarantee of a republican form of government, and of protection against' invasion, and against domestic violence; that the distinguishing feature of that form of government is the right of the people to choose their own .officers for governmental administration; that this was denied by the action-of the General Assembly in this instance;' and, in effect, that this court has jurisdiction to enforce that guarantee,, albeit the judiciary of Kentucky was unable to do so because of the division of the powers of government. And yet the. writ . before us; was granted under §. 709 of the Revised Statutes to revise the judgment of the state court on the ground' that á constitutional right was decided against by that court.

“It was long ago Settled that the enforcement, of this guarantee'belonged to the political department. Luther v. Borden, 7 How. 1. In that case it was held, that thequestion, which of the two opposing governments of Rhode Island, namely, the charter government or the government established .by a voluntary convention, was the legitimate one, was a question for the determination of the political department; and when that department had.decided,.the' courts .were bound to take notice of the decision and follow it. .. . *

. 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 *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 suomitted 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 it 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 *151 effected 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'embracéd 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.