nature unrepublican, it is quite clear that no comfort can be obtained from the federal guaranty of the republican form of government. The measures indeed are democratic and not monarchical; popular and not aristocratic. They still leave room for many of the representative features of the real republic. Though indeed the term "Republican" was frequently used in the debates and discussions which led up to the adoption of the constitution as an opposite to and as contrasted with a pure democracy, and so implying a representative form of government, it was so used in speaking of the new and central government alone, and it can be hardly possible that the framers of the national charter concerned themselves with or sought to control the local policies of the several states except in so far as it was necessary to formulate an interstate Monroe Doctrine which should guarantee for the union that which President Monroe afterwards guaranteed for the whole continent. The guaranty, in short, related to the form of government and source and center of ultimate sovereignty, and not to the economic policies which the sovereign majority might see fit to inaugurate. It had no relation to property rights. It was not a bulwark against socialism or collectivism, but against aristocratic and monarchical institutions. Its scope was clearly outlined by Madison when in The Federalist he said:

"In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic, or monarchical innovations. The more intimate the nature of such an union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist, that the forms of government under which the compact was entered into, should be substantially maintained."9

When we come to the fourteenth amendment we find a stronger argument for the conservative but one which we believe will hardly be sustained by the courts. Here again we come to the question of state sovereignty, and the difference between the powers of the federal government, which are merely delegated, and those of the state legislatures and constitution-making bodies, which are original and inherent.

It is of course generally conceded that public revenues can only 9 THE FEDERALIST, No. 43, p. 286.

be raised for public uses, and that a tax which is levied for any other purpose deprives the payer of property without due process of law.10

It by no means follows, however, that a state is denied the right to engage in or to levy taxes for the maintenance of an industry which was formerly private and which perhaps might even now be carried on by private enterprise, for the federal courts have already everywhere sustained statutes and constitutional provisions which have authorized the states, and even their municipalities, to engage in and to support, not only by special assessment but by general taxation also, improvements and industries such as irrigation districts, swamp reclamation schemes, municipal fuel yards, public sewers, gas and electric light plants, heating plants and similar enterprises, and have evinced a decided willingness to leave to the states themselves the determination of what is and what is not a public use.11

It is true that in the early case of Loan Association v. Topeka 12 the Supreme Court of the United States appeared to limit the right of taxation to matters pertaining to the machinery of government, and to sanction its use, if for industrial purposes at all, then only for such as "have been customarily and by long course of legislation levied;" but the statement is after all merely dictum and the decision is an old one. The case, indeed, has been followed by many others which impose no such limitations, and by that of Jones v. City of Portland,13 where the same court said:

10 Loan Association v. Topeka, 20 Wall. (U. S.) 655 (1874).

11 Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 17 Sup. Ct. Rep. 56 (1896); Hagar v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. Rep. 663 (1884); Davidson v. New Orleans, 96 U. S. 97 (1877); Jones v. City of Portland, 245 U. S. 217, 38 Sup. Ct. Rep. 112 (1917); Gibbs v. Consolidated Gas Co. of Baltimore, 130 U. S. 396, 9 Sup. Ct. Rep. 553 (1889).

12 20 Wall. (U.S.) 655, 665 (1874). Among other things the court said: "And in deciding whether, in the given case, the object for which the taxes are assessed falls upon the one side or the other of this line, they [the courts] must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, whether State or municipal. Whatever lawfully pertains to this and is sanctioned by time and the acquiescence of the people may well be held to belong to the public use and be proper for the maintenance of good government, though this may not be the only criterion of rightful taxation."

13

245 U. S. 217, 38 Sup. Ct. Rep. 112 (1917). See also cases cited in note 11, supra.

"The decision of the case turns upon the answer to the question whether the taxation is for a public purpose. It is well settled that moneys for other than public purposes cannot be raised by taxation, and that exertion of the taxing power for merely private purposes is beyond the authority of the State. Citizens Saving & Loan Association v. Topeka, 20 Wall. 655.

"The act in question has the sanction of the legislative branch of the state government, the body primarily invested with authority to determine what laws are required in the public interest. That the purpose is a public one has been determined upon full consideration by the Supreme Judicial Court of the State upon the authority of a previous decision of that court. Laughlin v. City of Portland, 111 Maine, 486.

"The attitude of this court towards state legislation purporting to be passed in the public interest, and so declared to be by the decision of the court of last resort of the State passing the act, has often been declared. While the ultimate authority to determine the validity of legislation under the Fourteenth Amendment is vested in this court, local conditions are of such varying character that what is or is not a public use in a particular State, is manifestly a matter respecting which local authority, legislative and judicial, has peculiar facilities for securing accurate information. In that view the judgment of the highest court of the State upon what should be deemed a public use in a particular State is entitled to the highest respect."

The particular act which was under consideration in this case was one which provided for the establishment of municipal woodyards which should sell fuel at cost. We can hardly believe that the Supreme Court of the United States will make a distinction between a municipal and a state industry, or between a woodyard and the elevators, flour mills, packing houses, storage plants, cheese factories, banks, and other enterprises which are provided for in the socialistic programs of the western states.

If Congress may levy a prohibitive tariff (which of course is paid by the consumer) upon foreign manufactured goods in order that the manufacturing interests of the nation may be encouraged, it is difficult to see why the state may not levy direct taxes upon its citizens for the promotion of publicly owned enterprises which the majority of its citizens believe, however fatuously, will tend to encourage their paramount industries and obtain fair prices for their products. Taxation, it may be conceded, can only be used

for public purposes, but it will be hard to prove to the Supreme Court of the United States that a public purpose is not subserved by the maintenance of an industry which is owned by a state and from which the state derives all the profits. There can at any rate be no question that up to the present time the federal courts have generally left the questions of what are and what are not public uses, and what are and what are not the legitimate spheres of state enterprise and of state endeavor, to be determined by the state electorates, the state legislatures, and the state courts.

At least one federal district judge has held that such enterprises are public and has told us that:

"The line of legislative power has been steadily advanced as society has come to believe increasingly that its welfare can best be promoted by public as distinguished from private ownership of certain business enterprises. Laws which at one time were held invalid, have at a later period been sustained by the same court. No judge can investigate judicial decisions rendered during the past ten years without being impressed with the rapid extension of state activity into fields that were formerly private. The twilight zone that separates permissible from forbidden state action is broad. Business which will seem to one court to be public will seem to another to be private. . . . McQuillin on Municipal Corporations, section 1809, and the fifth edition of Dillon on Municipal Corporations, volume 3, section 1292, which contain the last word of text-writers on the subject, solemnly inform us that cities cannot be authorized to establish publicly owned coal and wood yards, because that would be using the taxing power for a private purpose. The next edition of these works will strike out this language and inform us that such yards are permissible, because they are for a public purpose and are publicly owned, citing Jones v. Portland, 245 U. S. 217. . . . Thus 'can' succeeds 'can't' in this field of law so rapidly that one can hardly tell which word he is looking at.

"What may be done by the state to protect its people and promote their welfare cannot be declared by a priori reasoning. New evils arise as the result of changing conditions. If the state remains static, while the evils that afflict society are changing and dynamic, the state soon becomes wholly inadequate to protect the public. The state must be as free to change its remedies as the evils that cause human suffering are to change their forms."14

14 Amidon, District Judge, in Scott v. Frazier, 258 Fed. 669 (1919).

The only instances, indeed, where the federal courts have interfered have been where the tax was sought to be levied for the aid of industries or projects which were privately owned,15 and it is quite clear that the question to be determined is not, was the business or enterprise formerly considered to be a private one, or is it even now capable of private management, but is the state or municipality itself the real owner, and is it acting for itself alone and not for the benefit or profit of some private individual?

But is there no hope in Israel? Can nothing be saved from the burning? How about the magnificent school land grants of the western states? If these and the funds derived therefrom can be saved as a guarantee of the permanence of popular education and of the Americanism of the West, and as a heritage not only to the children of the citizens of the present but to those of the generations yet unborn, many will be content. They will be satisfied to allow the experiments to be tried, and, if they fail, for the dancer to pay the fiddler in the shape of an increased present taxation and a present industrial ruin.

The danger to these grants and to these funds lies in the temptation to invest recklessly in the securities of state and municipal owned industries, many of which must necessarily fail, to divert the moneys from their proper funds in order that they may be loaned to such enterprises and swell the general balances of the state which will be constantly drawn upon, and perhaps, and in order that these funds may be replenished, to sell the lands themselves at lower figures than would otherwise have been obtained. The danger, we believe, is very apparent. It can, however, we also believe, be met and overcome by a rigid insistence, by those who are authorized to insist, upon the simple law of contracts and of

trusts.

An example of the grants under consideration is furnished by those which are contained in the Congressional Act of February twenty-second, 1889, and which authorized the creation of the states of North Dakota, South Dakota, Montana, and Washington. Among other things this act provided:

15 Loan Association v. Topeka, 20 Wall. (U. S.) 655 (1874); Allen v. Inhabitants of Jay, 60 Maine, 124 (1872); Cole v. La Grange, 113 U. S. 1, 15 Sup. Ct. Rep. 416 (1884); Dodge v. Mission Township, 107 Fed. 827 (1901); City of Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. Rep. 442 (1882).