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 a 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 the question, 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

Opinion of the Court.

223 U. S.

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 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

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.

KIERNAN v. PORTLAND, OREGON.

ERROR TO THE SUPREME COURT OF THE STATE OF OREGON.

No. 503. Argued November 3, 1911-Decided February 19, 1912.

Pacific States Telephone Co. v. Oregon, ante, p. 118, followed to the effect that the determination of whether the government of a State is republican in form within the meaning of §4 of Art. IV of the Constitution is a political question within the jurisdiction of Congress and over which the courts have no jurisdiction.

Where the record does not contain the petition for rehearing but the opinion of the state court denying it discusses at length the Federal question relied on here, this court will infer that the subject was included in the petition.

Quare: Whether the plaintiff in a taxpayer's suit against a city to enjoin the issuing of bonds to build a bridge over navigable waters on the ground of unconstitutionality of the ordinance, can raise the question of lack of consent of the Government of the United States.

Argument for Plaintiff in Error.

223 U.S.

THE facts, which involve the constitutionality under § 4 of Art. IV of the Federal Constitution of the initiative and referendum provision of the constitution of the State of Oregon, are stated in the opinion.

Mr. Ralph R. Duniway, with whom Mr. T. J. Geisler was on the brief, for plaintiff in error:

The initiative and referendum amendment, Art. IV, § 1, of the Oregon constitution, adopted June 2, 1902, is ́invalid, as it changes the former republican form of government of the State of Oregon into a pure democracy, in violation of § 4, Art. IV, of the Constitution of the United States, which guarantees to every State in this Union a republican form of government. Crampton v. Zabriskie, 101 U. S. 601, 609; 21 Ency. of Law (2d ed.), 45, 76.

The powers of municipal corporations are limited to the powers granted in their charters. Pac. University v. Johnson, 47 Oregon, 448; McDonald v. Lane, 49 Oregon, 530, 532; Naylor v. McCulloch, 54 Oregon, 305, 308.

Municipalities cannot issue bonds unless the power to do so is conferred by legislative authority, express or implied, and any doubt as to the existence of such power is to be resolved against its existence. 25 Cyc. 1575; 21 Ency. Law (2d ed.), 45, 70; Bonham v. Bank, 144 U. S. 173; Klamath Falls v. Sachs, 35 Oregon, 325.

The validity of the constitutional amendment must be determined by what can be done under its authority as written. Hood River Light Co. v. Wasco County, 35 Oregon, 498, 510, 512; Ames v. People, 26 Colorado, 83, 109; S. C., 56 Pac. Rep. 656, 663; People v. Johnson, 34 Colorado, 143; S. C., 86 Pac. Rep. 233 on 237; Collins v. New Hampshire, 171 U. S. 33; Henderson v. New York, 92 U. S. 268; Minnesota v. Barber, 136 U. S. 313; Stuart v. Palmer, 74 N. Y. 188; Colin v. Lisk, 153 N. Y. 188; Gilman v. Tucker, 128 N. Y. 190; Dexter v. Boston, 176 Massachusetts, 247; Howard v. R. R. Co., 207 U. S. 463.

223 U.S.

Argument for Plaintiff in Error.

Whether the constitutional amendment to a state constitution violates the Federal Constitution is a judicial question to be considered and decided by the courts. Kadderly v. Portland, 44 Oregon, 118, 130, 135; Gunn v. Barry, 15 Wall. 610, 629.

The fact that a constitution (Oklahoma) containing similar provisions to Art. IV, § 1, but not similar to Art. IV, § 1a and Art. XI, § 2, was submitted to Congress, and the State admitted to full rights in the Union under it, cannot make such provisions valid. Gunn v. Barry, 15 Wall. 610, 629; In re Rahrer, 140 U. S. 560; Calhoun v. Calhoun, 2 So. Car. 301; Cooley's Const. Lim., 6th Ed., 44-45.

The framers of the Constitution of the United States established a republican form of government by means of electing representatives of the people to carry on the government, as distinguished from a democracy. Minor v. Happersett, 21 Wall. 162, 175.

The power left to the legislature by the Oregon amendment is merely permissive. The legislative power may be taken away entirely by the electors under the initiative and referendum amendment.

By later constitutional amendments the power of the legislature has already been materially curtailed, if it can be done.

See Art. IX, § la as to poll or head taxes; and the amendment and Art. XI, § 2, attempting to take away power to legislate as to liquor and give it to the people; amendment, now Art. XI, § 10, attempting to delegate to the electors of counties unlimited power to go into debt to build permanent roads within the county; all passed November 8, 1910.

If these initiative and referendum amendments are valid, the legislature can be abolished and all the legislative functions of the State performed by the electors under the initiative and referendum amendments.