In the recently decided case of W. U. Telegraph Co. v. Kansas the court takes a position which it is somewhat difficult to harmonize with that assumed in the insurance cases. In this case the court held unconstitutional as an interference with interstate commerce a state law exacting from a foreign telegraph corporation, as a condition of being permitted to continue to do a local business within the State, a charter fee of a given per cent of its entire authorized capital stock. The court declare: "The vital difference between the Prewitt case and the one now before us is that the business of the insurance company, involved in the former case, was not, as this court has often adjudged, interstate commerce, while the business of the telegraph company was primarily and mainly that of interstate commerce." This is true enough, but the essential fact still remains that the Prewitt case permitted the State to exact of the foreign corporation as a condition to its being permitted to do business within the State that it should forego the exercise of a federal constitutional right, whereas, in the later case it was held that the State might not as a condition impose burdens upon the exercise by the foreign corporation of federal right, that of carrying on interstate commerce, which can scarcely be said to be a more important privilege than that involved in the Prewitt case. It would seem, therefore, that the suggestion made by Justice White in his concurring opinion in the later case was a stronger one, namely, that the company having been permitted to enter the State and construct its plant there, the onerous conditions attempted to be imposed by the State as a condition to its remaining there were confiscatory and, therefore, wanting in due process of law.

jurors is a judicial and not a merely ministerial act (quoting Kentucky v. Dennison), and that Congress had no authority over judicial officers of the States in discharge of their duties under State laws. For a fuller discussion of this case see post, p. 189.

22 30 Sup. Ct. Rep. 190.

CHAPTER X.

THE FEDERAL CONTROL OF THE FORM OF STATE GOVERNMENTS.

§ 75. State Autonomy.

In the foregoing pages the sovereignty of the United States as opposed to, and inconsistent with, the continued sovereignty of its individual commonwealth members has been sufficiently declared. Whatever doubt there may have been upon this point before the Civil War, the result of that gigantic struggle has left no room for disagreement since, and the subsequent unequivocal assertions of the federal courts have simply registered conclusions that no one could rationally question. Starting, then, from this fundamental fact that, looking at the matter from a purely legal viewpoint, the individual Commonwealths constitute self-governing but politically subordinate portions of the United States, we shall now proceed to consider the degree of autonomy secured them under the federal Constitution. This subject we may conveniently divide into two parts. First, we may examine the degree of control that the Federal Government may constitutionally exercise over the form of government that the several States may establish for themselves; and, secondly, the extent to which the General Government may supervise or control the exercise by the States. of those powers that are reserved to them. First, then, as to the control that may be constitutionally exercised by the United States over the forms of government of its constituent units.

Speaking generally it may be said that, providing its government be republican in form, each State of the Union may establish such governmental organs as it sees fit, and apportion among them its executive, legislative and judicial powers according to its own judgment as to what is expedient and proper.

§ 76. Republican Form of Government Defined.

The federal Constitution provides that "The United States shall guarantee to every State in this Union a republican form

of government, and 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."1

In form, the first clause of this section would appear to be for the benefit of the States and to impose a duty upon the Federal Government, and such undoubtedly would be its effect should a foreign power attempt to impose a government of any sort whatever upon the people of one of the States against their will; or should a domestic revolution result in the establishment in power of a government not sanctioned by law or not freely agreed to by the electorate. In fact, however, as we have already seen, and as will presently be more particularly spoken of, this clause was so interpreted during reconstruction times as to give to the Federal Government for several years an almost unlimited power of control of the domestic affairs of those States that had been in rebellion against its authority.

It will be noticed that the Constitution does not itself define the term "republican form of government." It has, however, always been an accepted rule of construction that the technical and special terms used in the Constitution are to be given that meaning which they had at the time that instrument was framed. This is but reasonable, for, in default of anything to the contrary, those who drafted the Constitution are to be presumed to have intended the words which they used to have that meaning they knew them to have. For a definition, then, of "republican government must discover what in 1787 such a political form was considered to be. Certainly we may say that the governments of the thirteen original States as they existed at the time the Constitution was drafted must have been considered as illustrating the republican type. Furthermore, the Constitutions of all those States which have been admitted to the Union since 1787 must be regarded as having been impliedly declared republican by Congress at the time of the giving of its assent to their entrance into the Union. The late Judge Cooley, in his Principles of Constitutional Law, has perhaps defined the term as satisfactorily as anyone. "By a

1 Art. IV, Sec. 4.

2 Chapter XI.

republican form of government," he says, "is understood a government by representatives chosen by the people; and it contrasts on the one side with a democracy, in which the people or community as an organized whole wield the sovereign powers of government, and, on the other side, with the rule of one man as King, Emperor, Czar, or Sultan, or with that of one class of men, as an aristocracy." "In strictness," Judge Cooley goes on to say, "a republican government is by no means inconsistent with monarchical forms, for a King may be merely an hereditary or elective executive while the powers of legislation are left exclusively to a representative body freely chosen by the people. It is to be observed, however, that it is a republican form of government that is to be guaranteed; and in the light of the undoubted fact that by the Revolution it was expected and intended to throw off monarchical and aristocratic forms, there can be no question but that by a republican form of government was intended a government in which not only would the people's representatives make the laws, and their agents administer them, but the people would also, directly or indirectly, choose the executive. But it would by no means follow that the whole body of people, or even the whole body of adult and competent persons, would be admitted to political privileges; and in any republican State the law must determine the qualifications for admission to the elective franchise."

In United States v. South Carolina, a case decided in 1905, an obiter suggestion was made by the court in its majority opinion that a State by assuming the control of the manufacture and distribution of certain commodities, and, especially, by acquiring and undertaking the management of public utilities might thereby lose its republican form of government. To the suggestions thus made no weight can be given. Whether or not a government is republican in form depends not upon the sphere of its activities, but upon the manner in which its functionaries are selected, and the degree of their legal responsibility to the people. Thus there would be no difficulty in the most socialistic of States having a

3 199 U. S. 437; 26 Sup. Ct. Rep. 110; 50 L. ed. 261.

government of the purest republican type. This suggestion to the contrary by the Supreme Court is the first that the writer has

seen.

§ 77. The Constitutionality of Referendum Laws.

In the courts of the States, general direct legislation (referendum) laws were in a few early cases held unconstitutional on the ground that their effect is to establish a democratic in place of a republican that is, representative — form of government. Thus, for example, in Rice v. Foster the court of Delaware declared: "Although the people have the power, in conformity with its provisions, to alter the Constitution, under no circumstances can they, so long as the Constitution of the United States remains the paramount law of the land, establish a democracy or any other than a republican form of government." And this, the court went on to declare, would in effect be done, should the electorate be given a direct legislative power.

In addition to being in violation of the federal Constitution, direct legislation laws of a general character have frequently been held void as in violation of the state Constitutions in that they attempt to delegate to the people that law-making power which has been intrusted to the legislature. In answer to the point that the law-making power was not thus transferred, but simply the operation of the statutes in question made dependent upon the happening of a particular event, namely, the approving vote of the people, the court of New York, inBarto v Himrod, said: "It is not denied that a valid statute may be passed to take effect upon the happening of some future event, certain or uncertain. But such a statute, when it comes from the hand of the legislature, must be a law in præsenti to take effect in futuro. . The event or change of circumstances on which a law may be made to

44 Harr. 479.

5 This case involved only a local option law. Its reasoning, however, applies, and has continued to be applied to general laws. As to local option laws, however, and laws establishing local governments and equipping them with adequate powers, the case may be said to have been overruled.

64 Seld. 483.