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 i 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, in Barto 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.

take effect must be such as in the judgment of the legislature affects the question of the expediency of the law; an event on which the expediency of the law in the judgment of the lawmakers depends. On this question of expediency the legislature must exercise its own judgment definitely and finally. But in the present case no such event or change of circumstances affecting the expediency of the law was expected to happen. The wisdom or expediency of the free school law, abstractly considered, did not depend on a vote of the people. If it was unwise or inexpedient before that vote was taken, it was equally so afterward. The event on which the act was made to take effect was nothing else than the vote of the people on the identical question which the Constitution makes it the duty of the legislature itself to decide. . . . The government of the State is democratic, and it is a representative democracy, and in passing general laws, the people act only through their representatives in the legislature."7

7 While, as indicated, direct legislation laws of a general character have at times been held unconstitutional, special referendal, or local option, laws, have been held valid, the point being taken, among others, that at the time the federal and state Constitutions were adopted, measures of this character were generally recognized as proper, and construed to provide for delegation of local governing, rather than legislative, powers. Thus Cooley, summing up the argument upon this point, says: "It has already been seen that the legislature cannot delegate its power to make laws; but fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the legislature, in the absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon them the powers of local government, and especially of local taxation and police regulation [liquor laws, etc.] usual with such corporations, would pass unchal lenged. The legislature in these cases is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and officers is not understood to belong properly to the State, and when it interferes, as sometimes it must, to restrain and control the local action, there should be reasons of state policy or dangers of local abuse to warrant the interposition." Constitutional Limitations, 7th ed., p. 264. In the earlier cases (Wales v. Belcher, 3 Pick. 508; Godden v. Crump, 8 Leigh, 120; Burgess v. Pue, 2 Gill, 11) general referendal laws were sustained, but since the decision of the Delaware court in 1847 (Rice v. Foster, 4 Harr. 479) the general practice, as indicated in the text, has been to hold them void as a delegation of legislative power.

§ 78. Dorr's Rebellion.

The first instance in which the Federal Government was called upon to construe this guaranty clause was in connection with Dorr's Rebellion in Rhode Island in 1841. The salient facts of this incident were these. The Constitution under which the people of Rhode Island had lived since the separation from England provided for a very limited suffrage. With the development of more democratic ideas this condition of affairs became very unsatisfactory to those who were thus denied the right to vote. Numerous attempts were made to have the Constitution amended, but these were always defeated by the small oligarchy of legal voters who did not wish to share their special privileges with others. Finally, in 1841, mass meetings of the discontended were held, and, without any instruction or permission from the existing government, the citizens were directed to elect, by a universal manhood suffrage, delegates to a constitutional convention. This was done, and at that convention a Constitution was framed that later was adopted by a clear majority of the adult male resident citizens of the State. Thereupon, the convention, meeting again, declared: "Whereas, by return of the votes upon the Constitution, it satisfactorily appears that the citizens of this State, in their original sovereign capacity, have ratified and adopted said Constitution by a large majority; and the will of the people, thus decisively known, ought to be implicitly obeyed and faithfully executed: We do therefore resolve and declare that said Constitution rightfully ought to be, and is, paramount law and Constitution of the State of Rhode Island and Providence Plantations, and we further resolve and declare for ourselves and in behalf of the people whom we represent, that we will establish said Constitution and sustain and defend the same by all necessary means." Attempts were made to put into operation the government provided for in the instrument thus declared in force, Dorr being elected Governor under it.

All of the above acts, it will be observed, were unsanctioned by any law of the old de jure government. Upon an appeal being made by that government to the Federal Government for aid, the President of the United States recognized that government as the

de jure government of the State and took steps to extend the aid that was requested. By this federal executive action two important facts were, established with reference to the "guaranty: clause of the federal Constitution. The first of these was that, according to this clause, the Federal Government was obligated to protect the several States not only against the attempts of foreign powers to impose upon them governments not of their own choosing, but against revolutionary action on the part of their own citizens. The second was that it was thus decided that it is not a violation of the provision that a state government shall be republican in form that it rests upon the legal will of a minority of its adult male citizens. In effect it was determined that the old government of Rhode Island, being accepted as republican in form at the time that the State became a member of the Union, it could not be changed by any extra-legal means against the desire of those who by the old instrument were given the sole power of expressing' the legal will of the State. This last clause "against the desire of those who by the old instrument were given the sole power of expressing the legal will of the State," is advisedly added, for, as repeated instances have shown, the Federal Government has not felt itself obligated under the guaranty clause to see to it that none of the state Constitutions are ever amended or replaced by new instruments except in strict accordance with the provisions governing constitutional changes existing at the time the changes are made. When such changes, even though brought about in a manner not formally constitutional, have been accepted as valid by the old governments, the Federal Government has not felt itself obligated to interfere. But when, as was the case in Rhode Island, the revolutionary change is resisted by those exercising authority under the old instrument of government, the Federal Government, upon appeal to it for assistance, will almost surely consider itself called upon to recognize and support the old government.