U.S. Supreme Court Mississippi v. Johnson, 71 U.S. 4
Wall. 475 475 (1866) Mississippi v.
Johnson 71 U.S. (4 Wall.) 475 Syllabus 1. The President of the United States cannot be restrained by
injunction from carrying into effect an act of Congress alleged to
be unconstitutional, nor will a bill having such a purpose be
allowed to be filed.

															2. It makes no difference whether such incumbent of the
Presidential office be described in the bill as President or simply
as a citizen of a State.

															This was a motion made by Messrs. Sharkey and R. J. Walker, on
behalf of the State of Mississippi, for leave to file a bill in the
name of the State praying this court perpetually to enjoin and
restrain Andrew Johnson, a citizen of the State of Tennessee and
President of the United States, and his officers and agents
appointed for that purpose, and especially E. O. C. Ord, assigned
as military commander of the district where the State of
Mississippi is, from executing or in any manner carrying out two
acts of Congress named in the bill, one "An act for the more
efficient government of the rebel States," passed March 2d, 1867,
notwithstanding the President's veto of it as unconstitutional, and
the other an act supplementary to it, passed in the same way March
23d, 1867, acts commonly called the Reconstruction Acts.

															The former of these acts, reciting that no legal State
governments or adequate protection for life or property now exists
in the rebel States of Virginia, North Carolina, South Carolina,
Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and
Arkansas, and that it was necessary that peace and good order
should be enforced in them until loyal and republican State
governments could be legally established, divided the States named
into five military districts, and made it the duty of the President
to assign to each one an officer of the army, and to detail a
sufficient military force to enable him to perform his duties and
enforce his authority within his district. It made it the duty of
this officer to protect all persons in their rights, to suppress
insurrection, disorder, violence, and to punish, or cause to be
punished, all disturbers of the public peace and criminals, either
through the local civil tribunals or through military Page 71 U. S. 476 commissions, which the act authorized. It provided further that,
on the formation of new constitutions and certain conditions which
the act prescribed, the States respectively should be declared
entitled to representation in Congress, and the preceding part of
the act become inoperative, and that, until they were so admitted,
any civil governments which might exist in them should be deemed
provisional only, and subject to the paramount authority of the
United States at any time to abolish, modify, control, or supersede
it.

															The second of the two acts related chiefly to the registration
of voters who were to form the new constitutions of the States in
question.

															The bill set out the political history of Mississippi so far as
related to its having become one of the United States, and

															"that forever after, it was impossible for her people, or for
the State in its corporate capacity, to dissolve that connection
with the other States, and that any attempt to do so by secession
or otherwise was a nullity,"

															and she "now solemnly asserted that her connection with the
Federal government was not in anywise thereby destroyed or
impaired," and she averred and charged

															"that the Congress of the United States cannot constitutionally
expel her from the Union, and that any attempt which practically
does so is a nullity."

															The bill then went on:

															"The acts in question annihilate the State and its government by
assuming for Congress the power to control, modify, and even
abolish its government -- in short, to exert sovereign power over
it -- and the utter destruction of the State must be the
consequence of their execution. They also violate a well known
salutary principle in governments, the observance of which can
alone preserve them, by making the civil power subordinate to the
military power, and thus establish a military rule over the States
enumerated in the act, and make a precedent by which the government
of the United States may be converted into a military despotism in
which every man may be deprived of his goods, lands, liberty, and
life, by the breath Page 71 U. S. 477 of a military commander or the sentence of the military
commission or tribunal, without the benefit of trial by jury and
without the observance of any of those requirements and guarantees
by which the Constitution and laws so plainly protect and guard the
rights of the citizen. And, the more effectually to accomplish this
purpose, the said acts divide the ten Southern States into five
military districts, and make it the duty of the President to assign
an officer to the command of each district, and to place a
sufficient force under him whose will is to be the law and his
soldiers the power that executes it. It is declared to be his duty
to protect all persons in their rights of person and property, to
suppress insurrections, disorder, and violence, and to punish, or
cause to be punished, all disturbers of the peace and criminals,
and he may organize military commissions and tribunals to try
offenders when he may think proper. But by what rule or law is he
to judge of the rights of person or property? By what rule or law
is he to arrest, try, and punish criminals? By what rule or law is
he to judge whether they have committed crimes? The answer to these
questions is plain -- by his own will, for, though he may adopt the
State authorities as his instruments if he will, yet he may reject
them if he will. A scope of power so broad, so comprehensive, was
never before vested in a military commander in any government which
guards the rights of its citizens or subjects by law. It embraces
necessarily all those subjects over which the States reserved the
power to legislate for themselves as essential to their existence
as States, including the domestic relations, all the rights of
property, real and personal, the rights of personal security and
personal liberty, and assumes the right to control the whole of the
domestic concerns of the State. These acts also provide that the
governments now existing in the Southern States are but provisional
governments, subject to the paramount authority of Congress, which
may at any time abolish, modify, control, or supersede them."

															It then charged that, from information and belief, the said
Andrew Johnson, President, in violation of the Constitution and in
violation of the sacred rights of the States, would proceed,
notwithstanding his vetoes, and as a mere ministerial
duty, to the execution of said acts as though they Page 71 U. S. 478 were the law of the land, which the vetoes prove he would not do
if he had any discretion, or that in doing so he performed anything
more than a mere ministerial duty; and that with the view to the
execution of said acts he had assigned General E. O. C. Ord to the
command of the States of Mississippi and Arkansas.

															Upon an intimation made a few days before by Mr. Sharkey, of his
desire to file this bill, the Attorney General objected to it in limine, as containing matter not fit to be received.
The Chief Justice then stated that while, as a general thing, a
motion to file a bill was granted as of course, yet if it was
suggested that the bill contained scandalous or impertinent matter,
or was in other respects improper to be received, the court would
either examine the bill or refer it to a master for examination.
The only matter, therefore, which would now be considered was the
question of leave to file the bill. Page 71 U. S. 497 The CHIEF JUSTICE delivered the opinion of the court.

															A motion was made, some days since, in behalf of the State of
Mississippi, for leave to file a bill in the name of the State,
praying this court perpetually to enjoin and restrain Andrew
Johnson, President of the United States, and E. O. C. Ord, general
commanding in the District of Mississippi and Arkansas, from
executing, or in any manner carrying out certain acts of Congress
therein named.

															The acts referred to are those of March 2d and March 23d, 1867,
commonly known as the Reconstruction Acts.

															The Attorney General objected to the leave asked for upon Page 71 U. S. 498 the ground that no bill which makes a President a defendant and
seeks an injunction against him to restrain the performance of his
duties as President should be allowed to be filed in this
court.

															This point has been fully argued, and we will now dispose of
it.

															We shall limit our inquiry to the question presented by the
objection, without expressing any opinion on the broader issues
discussed in argument whether, in any case, the President of the
United States may be required, by the process of this court, to
perform a purely ministerial act under a positive law, or may be
held amenable, in any case otherwise than by impeachment for
crime.

															The single point which requires consideration is this: can the
President be restrained by injunction from carrying into effect an
act of Congress alleged to be unconstitutional?

															It is assumed by the counsel for the State of Mississippi that
the President, in the execution of the Reconstruction Acts, is
required to perform a mere ministerial duty. In this assumption
there is, we think, a confounding of the terms ministerial and
executive, which are by no means equivalent in import.

															A ministerial duty the performance of which may, in proper
cases, be required of the head of a department by judicial process
is one in respect to which nothing is left to discretion. It is a
simple, definite duty, arising under conditions admitted or proved
to exist and imposed by law.

															The case of Marbury v. Madison, Secretary of State, [ Footnote 1 ] furnishes an
illustration. A citizen had been nominated, confirmed, and
appointed a justice of the peace for the District of Columbia, and
his commission had been made out, signed, and sealed. Nothing
remained to be done except delivery, and the duty of delivery was
imposed by law on the Secretary of State. It was held that the
performance of this duty might be enforced by mandamus issuing from
a court having jurisdiction. Page 71 U. S. 499 So, in the case of Kendall, Postmaster General v. Stockton
& Stokes, [ Footnote 2 ]
an act of Congress had directed the Postmaster General to credit
Stockton & Stokes with such sums as the Solicitor of the
Treasury should find due to them, and that officer refused to
credit them with certain sums so found due. It was held that the
crediting of this money was a mere ministerial duty the performance
of which might be judicially enforced.

															In each of these cases, nothing was left to discretion. There
was no room for the exercise of judgment. The law required the
performance of a single specific act, and that performance, it was
held, might be required by mandamus.

															Very different is the duty of the President in the exercise of
the power to see that the laws are faithfully executed, and, among
these laws, the acts named in the bill. By the first of these acts,
he is required to assign generals to command in the several
military districts, and to detail sufficient military force to
enable such officers to discharge their duties under the law. By
the supplementary act, other duties are imposed on the several
commanding generals, and these duties must necessarily be performed
under the supervision of the President as commander-in-chief. The
duty thus imposed on the President is in no just sense ministerial.
It is purely executive and political.

															An attempt on the part of the judicial department of the
government to enforce the performance of such duties by the
President might be justly characterized, in the language of Chief
Justice Marshal, as "an absurd and excessive extravagance."

															It is true that, in the instance before us, the interposition of
the court is not sought to enforce action by the Executive under
constitutional legislation, but to restrain such action under
legislation alleged to be unconstitutional. But we are unable to
perceive that this circumstance takes the case out of the general
principles which forbid judicial interference with the exercise of
Executive discretion. Page 71 U. S. 500 It was admitted in the argument that the application now made to
us is without a precedent, and this is of much weight against
it.

															Had it been supposed at the bar that this court would, in any
case, interpose by injunction to prevent the execution of an
unconstitutional act of Congress, it can hardly be doubted that
applications with that object would have been heretofore addressed
to it.

															Occasions have not been wanting.

															The constitutionality of the act for the annexation of Texas was
vehemently denied. It made important and permanent changes in the
relative importance of States and sections, and was by many
supposed to be pregnant with disastrous results to large interests
in particular States. But no one seems to have thought of an
application for an injunction against the execution of the act by
the President.

															And yet it is difficult to perceive upon what principle the
application now before us can be allowed and similar applications
in that and other cases have been denied.

															The fact that no such application was ever before made in any
case indicates the general judgment of the profession that no such
application should be entertained.

															It will hardly be contended that Congress can interpose in any
case to restrain the enactment of an unconstitutional law, and yet
how can the right to judicial interposition to prevent such an
enactment, when the purpose is evident and the execution of that
purpose certain, be distinguished in principle from the right to
such interposition against the execution of such a law by the
President?

															The Congress is the legislative department of the government;
the President is the executive department. Neither can be
restrained in its action by the judicial department, though the
acts of both, when performed, are, in proper cases, subject to its
cognizance.

															The impropriety of such interference will be clearly seen upon
consideration of its possible consequences.

															Suppose the bill filed and the injunction prayed for allowed. If
the President refuse obedience, it is needless to Page 71 U. S. 501 observe that the court is without power to enforce its process.
If, on the other hand, the President complies with the order of the
court and refuses to execute the acts of Congress, is it not clear
that a collision may occur between the executive and legislative
departments of the government? May not the House of Representatives
impeach the President for such refusal? And in that case, could
this court interfere in behalf of the President, thus endangered by
compliance with its mandate, and restrain by injunction the Senate
of the United States from sitting as a court of impeachment? Would
the strange spectacle be offered to the public world of an attempt
by this court to arrest proceedings in that court?

															These questions answer themselves.

															It is true that a State may file an original bill in this court.
And it may be true, in some cases, that such a bill may be filed
against the United States. But we are fully satisfied that this
court has no jurisdiction of a bill to enjoin the President in the
performance of his official duties; and that no such bill ought to
be received by us.

															It has been suggested that the bill contains a prayer that, if
the relief sought cannot be had against Andrew Johnson, as
President, it may be granted against Andrew Johnson as a citizen of
Tennessee. But it is plain that relief as against the execution of
an act of Congress by Andrew Johnson is relief against its
execution by the President. A bill praying an injunction against
the execution of an act of Congress by the incumbent of the
presidential office cannot be received, whether it describes him as
President or as a citizen of a State.

															The motion for leave to file the bill is, therefore,

															DENIED.

															[ Footnote 1 ] 5 U. S. 1 Cranch
137.

															[ Footnote 2 ] 37 U. S. 12 Pet. 527.


U.S. Supreme Court Georgia v. Stanton, 73 U.S. 6 Wall. 50
50 (1867) Georgia v. Stanton 73 U.S. (6 Wall.) 50 ORIGINAL Syllabus 1. A bill in equity filed by one of the United States to enjoin
the Secretary of War and other officers who represent the Executive
authority of the United States from carrying into execution certain
acts of Congress on the ground that such execution would annul and
totally abolish the existing state government of the state and
establish another and different one in its place -- in other words,
would overthrow and destroy the corporate existence of the state by
depriving it of all the means and instrumentalities whereby its
existence might and otherwise would be maintained -- calls for a
judgment upon a political question, and will therefore not be
entertained by this Court.

															2. This character of the bill is not changed by the fact that in
setting forth the political rights sought to be protected, the bill
avers that the state has real and personal property (as for
example, the public buildings &c), of the enjoyment of which,
by the destruction of its corporate existence, the state will be
deprived, such averment not being the substantive ground of the
relief sought.

															This was a bill filed April 15, 1867, in this Court, invoking
the exercise of its original jurisdiction, against Stanton,
Secretary of War; Grant, General of the Army, and Pope, Major
General, assigned to the command of the Third Military District,
consisting of the States of Georgia, Florida, and Alabama (a
district organized under the Acts of Congress of the 2d March,
1867, entitled "An act to provide for the more efficient government
of the rebel states," and an act of the 23d of the same month
supplementary thereto), for the purpose of restraining the
defendants from carrying into execution the several provisions of
these acts, acts known in common parlance as the "Reconstruction
Acts." Both these acts had been passed over the President's
veto.

															The former of the acts, reciting that no legal state governments
or adequate protection for life or property now existed in the
rebel States of Virginia and North Carolina, South Carolina,
Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and
Arkansas, and that it was necessary that peace and good order
should be enforced in them until loyal and republican state
governments could be legally established, divided the states named
into five military districts and Page 73 U. S. 51 made it the duty of the President to assign to each one an
officer of the army and to detail a sufficient military force to
enable him to perform his duties and enforce his authority within
his district. It made it the duty of this officer to protect all
persons in their rights, to suppress insurrection, disorder,
violence, and to punish or cause to be punished all disturbers of
the public peace and criminals, either through the local civil
tribunals or through military commissions, which the act
authorized. It provided further that when the people of any one of
these states had formed a constitution in conformity with that of
the United States, framed by a convention of delegates elected by
male citizens &c., of twenty-one years old and upwards, "of
whatever race, color, or previous condition," who had been
residents in it for one year, "except such as may be disfranchised
for participation in the rebellion," &c., and when such
constitution should provide &c., and should be ratified by a
majority of the persons voting on the question of ratification, who
were qualified for electors as delegates, and when such
constitution should have been submitted to Congress for examination
and approval, and Congress should have approved the same, and when
the state by a vote of its legislature elected under such
constitution should have adopted a certain article of amendment
named to the Constitution of the United States, and ordaining among
other things that

															"all persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States, and of the state where they reside,"

															and when such article should have become a part of the
Constitution of the United States, then that the states
respectively should be declared entitled to representation in
Congress and the preceding part of the act become inoperative, and
that until they were so admitted, any civil governments which might
exist in them should be deemed provisional only, and subject to the
paramount authority of the United States at any time to abolish,
modify, control, or supersede them.

															The second of the two acts related chiefly to the registration
of voters who were to form the new constitutions of the Page 73 U. S. 52 states in question, and which registration by the act, could
include only those persons who took and subscribed a certain oath
set forth in such second act, as that they had "not been
disfranchised for participation in any rebellion or civil war
against the United States," &c.

															The bill set forth the existence of the State of Georgia, the
complainant, as one of the states of this Union under the
Constitution; the civil war of 1861-1865 in which she was involved;
the surrender of the Confederate armies in the latter year and
submission to the Constitution and laws of the Union; the
withdrawal of the military government from Georgia by the
President, commander-in-chief of the army; and the revival and
reorganization of the civil government of the state with his
permission; and that the government thus reorganized was in the
possession and enjoyment of all the rights and privileges in her
several departments -- executive, legislative, and judicial --
belonging to a state in the Union under the Constitution, with the
exception of a representation in the Senate and House of
Representatives of the United States.

															It set forth further that the intent and design of the acts of
Congress, as was apparent on their face and by their terms, was to
overthrow and to annul this existing state government and to erect
another and different government in its place, unauthorized by the
Constitution and in defiance of its guarantees, and that, in
furtherance of this intent and design, the defendants (the
Secretary of War, the General of the Army, and Major General Pope),
acting under orders of the President, were about setting in motion
a portion of the army to take military possession of the state, and
threatened to subvert her government and to subject her people to
military rule; that the state was wholly inadequate to resist the
power and force of the Executive Department of the United States.
She therefore insisted that such protection could and ought to be
afforded by a decree, or order, of this Court in the premises.

															The bill then prayed that the defendants might be
restrained: Page 73 U. S. 53 1. From issuing any order or doing or permitting any act or
thing within or concerning the State of Georgia which was or might
be directed or required of them or any of them by or under the two
acts of Congress.

															2. From causing to be made any registration within the state as
specified and prescribed in the last of the aforesaid acts.

															3. From administering or causing to be administered within the
state the oath or affirmation prescribed in said act.

															4. From holding or causing to be held within the state any such
election or elections or causing to be made any return of any such
elections for the purpose of ascertaining the result of the same
according to said act.

															5. From holding or causing to be held within the state any such
convention as is prescribed therein.

															The bill, in setting forth the political rights of the State of
Georgia, and of its people sought to be protected, averred among
other things that the state was owner of certain real estate and
buildings therein (the state capitol, at Milledgeville, and
Executive mansion), and of other real and personal property,
exceeding in value $5,000,000, and that putting the acts of
Congress into execution and destroying the state would deprive it
of the possession and enjoyment of its property. This reference and
statement were not set up, however, as a specific or independent
ground of relief, but apparently only by way of showing one of the
grievances resulting from the threatened destruction of the state,
and in aggravation of it. And the matter of property was not
noticed in the prayers for relief. Page 73 U. S. 71 The bill having been dismissed at the last term, MR. JUSTICE
NELSON now delivered the opinion of the Court.

															A motion has been made by the counsel for the defendants to
dismiss the bill for want of jurisdiction, for which a precedent is
found in the case of Rhode Island v. Massachusetts. [ Footnote 1 ] It is claimed that
the Court has no jurisdiction either over the subject matter set
forth in the bill or over the parties defendants. And in support of
the first ground, it is urged that the matters involved, and
presented for adjudication, are political and not judicial, and
therefore not the subject of judicial cognizance.

															This distinction results from the organization of the government
into the three great departments -- executive, legislative, and
judicial -- and from the assignment and limitation of the powers of
each by the Constitution.

															The judicial power is vested in one Supreme Court and in such
inferior courts as Congress may ordain and establish, the political
power of the government in the other two departments.

															The distinction between judicial and political power is so
generally acknowledged in the jurisprudence both of England and of
this country that we need do no more than refer to some of the
authorities on the subject. They are all in one direction.
[ Footnote 2 ] Page 73 U. S. 72 It has been supposed that the case of Rhode Island v.
Massachusetts [ Footnote 3 ]
is an exception, and affords an authority for hearing and
adjudicating upon political questions in the usual course of
judicial proceedings on a bill in equity. But it will be seen on a
close examination of the case that this is a mistake. It involved a
question of boundary between the two states. Mr. Justice Baldwin,
who delivered the opinion of the Court, states the objection, and
proceeds to answer it. He observes, [ Footnote 4 ]

															"It is said that this is a political, not civil, controversy
between the parties, and so not within the Constitution or
thirteenth section of the Judiciary Act. As it is viewed by the
Court on the bill alone, had it been demurred to, a controversy as
to the locality of a point three miles south of the southernmost
point of Charles River is the only question that can arise under
the charter. Taking the case on the bill and plea, the question is
whether the stake set up on Wrentham Plain by Woodward and Saffrey
in 1842 is the true point from which to run an east and west line
as the compact boundary between the states. In the first aspect of
the case it depends on a fact; in the second, on the law of equity,
whether the agreement is void or valid, neither of which present a
political controversy, but one of an ordinary judicial nature of
frequent occurrence in suits between individuals."

															In another part of the opinion, speaking of the submission by
sovereigns or states of a controversy between them, he
observes,

															"From the time of such submission the question ceases to be a
political one, to be decided by the sic volo, sic jubeo of
political power. It comes to the Court to be decided by its
judgment, legal discretion, and solemn consideration of the rules
of law appropriate to its nature as a judicial question, depending
on the exercise of judicial powers, as it is bound to act by known
and settled principles of national or municipal jurisprudence, as
the case requires. Page 73 U. S. 73 And he might have added what indeed is probably implied in the
opinion, that the question thus submitted by the sovereign or state
to a judicial determination must be one appropriate for the
exercise of judicial power, such as a question of boundary or, as
in the case of Penn v. Lord Baltimore, a contract between
the parties in respect to their boundary. Lord Hardwicke places his
right in that case to entertain jurisdiction upon this ground."

															The objections to the jurisdiction of the Court in the case of
Rhode Island against Massachusetts were that the subject matter of
the bill involved sovereignty and jurisdiction, which were not
matters of property, but of political rights over the territory in
question. They are forcibly stated by the Chief Justice, who
dissented from the opinion. [ Footnote 5 ] The very elaborate examination of the case by
Mr. Justice Baldwin was devoted to an answer and refutation of
these objections. He endeavored to show, and we think did show,
that the question was one of boundary, which of itself was not a
political question, but one of property, appropriate for judicial
cognizance, and that sovereignty and jurisdiction were but
incidental and dependent upon the main issue in the case. The right
of property was undoubtedly involved, as in this country, where
feudal tenures are abolished, in cases of escheat, the state takes
the place of the feudal lord by virtue of its sovereignty as the
original and ultimate proprietor of all the lands within its
jurisdiction.

															In the case of Florida v. Georgia, [ Footnote 6 ] the United States were allowed to
intervene, being the proprietors of a large part of the land
situated within the disputed boundary, ceded by Spain as a part of
Florida. The State of Florida was also deeply interested as a
proprietor.

															The case bearing most directly on the one before us is Cherokee Nation v. Georgia. [ Footnote 7 ] A bill was filed in that case and an
injunction prayed for to prevent the execution of certain acts of
the Legislature of Georgia within the territory of the Cherokee
Nation of Indians, they claiming Page 73 U. S. 74 a right to file it in this Court, in the exercise of its
original jurisdiction, as a foreign nation. The acts of the
legislature, if permitted to be carried into execution, would have
subverted the tribal government of the Indians and subjected them
to the jurisdiction of the state. The injunction was denied on the
ground that the Cherokee Nation could not be regarded as a foreign
nation within the Judiciary Act, and that therefore they had no
standing in court. But Chief Justice Marshall, who delivered the
opinion of the majority, very strongly intimated that the bill was
untenable on another ground -- namely that it involved simply a
political question. He observed

															"that the part of the bill which respects the land occupied by
the Indians, and prays the aid of the Court to protect their
possessions may be more doubtful. The mere question of right might
perhaps be decided by this Court in a proper case with proper
parties. But the Court is asked to do more than decide on the
title. The bill requires us to control the Legislature of Georgia
and to restrain the exertion of its physical force. The propriety
of such an interposition by the Court may be well questioned. It
savors too much of the exercise of political power to be within the
province of the judicial department."

															Several opinions were delivered in the case, a very elaborate
one, by Mr. Justice Thompson, in which Judge Story concurred. They
maintained that the Cherokee Nation was a foreign nation within the
Judiciary Act, and competent to bring the suit, but agreed with the
Chief Justice that all the matters set up in the bill involved
political questions with the exception of the right and title of
the Indians to the possession of the land which they occupied. Mr.
Justice Thompson, referring to this branch of the case,
observed:

															"For the purpose of guarding against any erroneous conclusions,
it is proper I should state that I do not claim for this Court the
exercise of jurisdiction upon any matter properly falling under the
denomination of political power. Relief to the full extent prayed
for by the bill may be beyond the reach of this Court. Much of the
matters therein contained by way of complaint would seem to depend
for relief upon Page 73 U. S. 75 the exercise of political power, and as such appropriately
devolving upon the executive, and not the judicial, department of
the government. This Court can grant relief so far only as the
rights of persons or property are drawn in question and have been
infringed."

															And in another part of the opinion he returns again to this
question, and is still more emphatic in disclaiming jurisdiction.
He observes:

															"I certainly do not claim as belonging to the judiciary the
exercise of political power. That belongs to another branch of the
government. The protection and enforcement of many rights secured
by treaties most certainly do not belong to the judiciary. It is
only where the rights of persons or property are involved and when
such rights can be presented under some judicial form of
proceedings that courts of justice can interpose relief. This Court
can have no right to pronounce an abstract opinion upon the
constitutionality of a state law. Such law must be brought into
actual or threatened operation upon rights properly falling under
judicial cognizance, or a remedy is not to be had here."

															We have said Mr. Justice Story concurred in this opinion, and
Mr. Justice Johnson, who also delivered one, recognized the same
distinctions. [ Footnote 8 ]

															By the second section of the third article of the Constitution,
"the judicial power extends to all cases, in law and equity,
arising under the Constitution, the laws of the United States,"
&c., and as applicable to the case in hand, "to controversies
between a state and citizens of another state," which
controversies, under the Judiciary Act, may be brought, in the
first instance, before this Court in the exercise of its original
jurisdiction, and we agree, that the bill filed presents a case
which, if it be the subject of judicial cognizance, would in form
come under a familiar head of equity jurisdiction -- that is,
jurisdiction to grant an injunction to restrain a party from a
wrong or injury to the rights of another where the danger, actual
or threatened, is irreparable or the remedy at law inadequate. But,
according to the course of Page 73 U. S. 76 proceeding under this head in equity, in order to entitle the
party to the remedy, a case must be presented appropriate for the
exercise of judicial power; the rights in danger, as we have seen,
must be rights of persons or property, not merely political rights,
which do not belong to the jurisdiction of a court, either in law
or equity.

															The remaining question on this branch of our inquiry is whether,
in view of the principles above stated and which we have endeavored
to explain, a case is made out in the bill of which this Court can
take judicial cognizance. In looking into it, it will be seen that
we are called upon to restrain the defendants, who represent the
executive authority of the government, from carrying into execution
certain acts of Congress, inasmuch as such execution would annul
and totally abolish the existing state government of Georgia and
establish another and different one in its place -- in other words,
would overthrow and destroy the corporate existence of the state by
depriving it of all the means and instrumentalities whereby its
existence might and otherwise would be maintained.

															This is the substance of the complaint and of the relief prayed
for. The bill, it is true, sets out in detail the different and
substantial changes in the structure and organization of the
existing government as contemplated in these acts of Congress,
which, it is charged, if carried into effect by the defendants,
will work this destruction. But they are grievances, because they
necessarily and inevitably tend to the overthrow of the state as an
organized political body. They are stated in detail as laying a
foundation for the interposition of the court to prevent the
specific execution of them, and the resulting threatened mischief.
So in respect to the prayers of the bill. The first is that the
defendants may be enjoined against doing or permitting any act or
thing within or concerning the state which is or may be directed or
required of them by or under the two acts of Congress complained
of, and the remaining four prayers are of the same character,
except more specific as to the particular acts threatened to be
committed. Page 73 U. S. 77 That these matters, both as stated in the body of the bill and
in the prayers for relief, call for the judgment of the court upon
political questions and upon rights not of persons or property but
of a political character will hardly be denied. For the rights for
the protection of which our authority is invoked are the rights of
sovereignty, of political jurisdiction, of government, of corporate
existence as a state, with all its constitutional powers and
privileges. No case of private rights or private property infringed
or in danger of actual or threatened infringement is presented by
the bill in a judicial form for the judgment of the Court.

															It is true, the bill, in setting forth the political rights of
the state and of its people to be protected, among other matters,
avers, that Georgia owns certain real estate and buildings therein,
state capitol, and executive mansion, and other real and personal
property, and that putting the acts of Congress into execution and
destroying the state would deprive it of the possession and
enjoyment of its property. But it is apparent that this reference
to property and statement concerning it are only by way of showing
one of the grievances resulting from the threatened destruction of
the state and in aggravation of it, not as a specific ground of
relief. This matter of property is neither stated as an independent
ground nor is it noticed at all in the prayers for relief. Indeed,
the case as made in the bill would have stopped far short of the
relief sought by the state, and its main purpose and design given
up, by restraining its remedial effect simply to the protection of
the title and possession of its property. Such relief would have
called for a very different bill from the one before us.

															Having arrived at the conclusion that this Court, for the
reasons above stated, possesses no jurisdiction over the subject
matter presented in the bill for relief, it is unimportant to
examine the question as it respects jurisdiction over the parties
defendants. Bill dismissed for want of jurisdiction. [ Footnote 1 ] 37 U. S. 12 Pet. 669.

															[ Footnote 2 ] Nabob of Carnatic v. East India Co., 1 Vesey Jr.
375-393, S.C., 2 id. 56-60; Penn v. Lord
Baltimore, 1 Vesey 446-447; New York v.
Connecticut , 4 Dall. 1; Cherokee
Nation v. Georgia , 5 Pet. 1, 30 U. S. 20 , 30 U. S. 29 -30, 30 U. S. 51 , 30 U. S. 75 ; Rhode Island v.
Massachusetts , 12 Pet. 657, 37 U. S.
733 -734, 37 U. S.
737 -738.

															[ Footnote 3 ] 37 U. S. 12 Pet.
657.

															[ Footnote 4 ]

															Page 37 U. S.
736 .

															[ Footnote 5 ] 37 U. S. 12 Pet. 752, 37 U. S.
754 .

															[ Footnote 6 ] 58 U. S. 17 How.
478.

															[ Footnote 7 ] 30 U. S. 5 Pet.
1.

															[ Footnote 8 ]

															5 Pet. 30 U. S.
29 -30.

															THE CHIEF JUSTICE:

															Without being able to yield my assent to the grounds stated in
the opinion just read for the Page 73 U. S. 78 dismissal of the complainant's bill, I concur fully in the
conclusion that the case made by the bill is one of which this
Court has no jurisdiction.


U.S. Supreme Court Pacific States Tel. & Tel. Co. v.
Oregon, 223
U.S. 118 (1912) Pacific States Telephone and
Telegraph Company v. Oregon No. 36 Argued November 3,
1911 Decided February 19,
1912 223
U.S. 118 ERROR TO THE SUPREME COURT OF THE
STATE OF OREGON Syllabus The enforcement of the provision in § 4 of Art. IV of the
Constitution that the United States shall guarantee to every State
a republican form of government is of a political character, and
exclusively committed to Congress, and as such is beyond the
jurisdiction of the courts.

															The provisions of § 4 of Art. IV of the Constitution do not
authorize the judiciary to substitute its judgment as to a matter
purely political for the judgment of Congress on a subject
committed to Congress.

															Under § 4 of Art. IV of the Constitution, it rests with Congress
to decide what government is the established one in a State, and
its decision is binding on every other department of the
Government, and cannot be questioned by the judiciary. Luther v.
Borden , 7 How. 1.

															A statute otherwise constitutional cannot be attacked in the
courts on the ground that it was adopted in pursuance of provisions
in the constitution of the State which render the form of
government of the State unrepublican in form within the meaning of
§ 4 of Art. IV of the Constitution. The courts have no jurisdiction
of the question; it is for Congress to determine.

															Where the claim that one taxed under a state statute is deprived
of property without due process of law is not based on any inherent
defect in the law, or infirmity of power of State to levy it, but
on the ground that the government of the State is not republican in
form, the question is not within the jurisdiction of the
courts.

															The judicial power of the United States will not be extended so
as to interfere with the authority of Congress or of the Executive
so as to make the guarantee contained in § 4 of Art. IV of the
Constitution one of anarchy, instead of order. Luther v.
Borden , 7 How. 1.

															Whether the adoption of provisions for the initiative and
referendum in the constitution of a State, such as those adopted in
Oregon in 1902, so alter the form of government of the State as to
make it no longer republican within the meaning of § 4 of Art. IV
of the Constitution, Page 223 U. S. 119 is a purely political question over which this court has no
jurisdiction. Writ of error to review 53 Oregon 162, dismissed.

															The facts, which involve the constitutionality under § 4 of Art.
IV of the Federal Constitution of the initiative and referendum
provisions of the constitution of the State of Oregon, are stated
in the opinion. Page 223 U. S. 133 MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

															We premise by saying that, while the controversy which this
record presents is of 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 subject. It is not novel, as that question
has long since 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 to propose laws and
amendments to the constitution and to enact or Page 223 U. S. 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.
[ Footnote 1 ] Page 223 U. S. 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
percentum upon their gross revenue derived from business done
within the State. Penalties were provided for nonpayment, 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 Page 223 U. S. 136 statute and was accordingly assessed two percent. 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 are
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, insofar 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 defense. The demurrer
was sustained, and, the defendant electing not to plead further,
judgment went against it and that judgment was affirmed by the
Supreme Court of Oregon. (53 Oregon, 162.) The court sustained the
conclusion 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
error are numerous. The entire matters covered Page 223 U. S. 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 it 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, violate the right to a republican Page 223 U. S. 138 form of government which is guaranteed by section 4, article IV,
of the Federal Constitution. [ Footnote 2 ]"

															" 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.
[ Footnote 3 ] " Page 223 U. S. 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. [ Footnote 4 ]"

															" 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 Page 223 U. S. 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 guarantee 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
Article IV therefore prohibits the majority in any State from
adopting an unrepublican constitution," are the 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 modes by which the
adoption of the initiative and referendum incapacitated the State
from performing the duties 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 Page 223 U. S. 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
the 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 not 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 and enjoyment of all its powers and rights
as a member of the national Government, and however all the
departments 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 existence Page 223 U. S. 142 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. IV 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 the repugnancy of those contentions Page 223 U. S. 143 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 leading 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," offered 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 Page 223 U. S. 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 instructed 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 right 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. 48 U. S. 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 government, and had refused to
investigate the legality of the Page 223 U. S. 145 voluntary government for the purpose of decreeing the
established government to be illegal, on the ground (p. 48 U. S. 39 )

															"that the inquiry proposed to be made belonged to the political
power, and not to 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 and 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,
their cogency was pointed out and the disastrous effect of any
other view was emphasized, and, from a point of view of the state
law, the conclusive effect of the judgments of the courts of Rhode
Island was referred to. The court then came to consider the
correctness of the principle applied by the 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, and they, in the
nature of things, if the government is a free one, must 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. As, however, no such 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 or of the executive, when the legislature cannot
be convened, against domestic violence, it followed that the
guarantee of a government republican in form Page 223 U. S. 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 court, in
disposing of them, while virtually recognizing the cogency of the
argument insofar 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. 74 U. S. 42 ): Page 223 U. S. 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 senators or
representatives were elected under the authority of the government
of which Mr. Dorr was the head, Congress was 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, Page 223 U. S. 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, and 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
interfere and set at naught his action, and the pertinent statement
was made (p. 74 U. S. 43 ):

															"If the judicial power extends so far, the guarantee contained
in the constitution of the United States is a guarantee of anarchy,
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 from 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 directing 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. 178 U. S.
578 ):

															"But it is said that the Fourteenth Amendment must be Page 223 U. S. 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 § 70 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 Page 223 U. S. 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 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 Page 223 U. S. 151 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 or must therefore be, and
it is, dismissed for want of jurisdiction. Dismissed for want of jurisdiction. [ Footnote 1 ]

															Section 1 of Article IV of the constitution of the State of
Oregon shall be and hereby is amended to read as follows:

															"SECTION 1. The legislative authority of the state shall be
vested in a legislative assembly, consisting of a senate and house
of representatives, but the people reserve to themselves power to
propose laws and amendments to the constitution and to enact or
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. The first
power reserved by the people is the initiative, and not more than
eight percent of the legal voters shall be required to propose any
measure by such petition, and every such petition shall include the
full text of the measure so proposed. Initiative petitions shall be
filed with the secretary of state not less than four months before
the election at which they are to be voted upon. The second power
is the referendum, and it may be ordered (except as to laws
necessary for the immediate preservation of the public peace,
health, or safety) either by the petition signed by five percent of
the legal voters, or by the legislative assembly, as other bills
are enacted. Referendum petitions shall be filed with the secretary
of state not more than ninety days after the final adjournment of
the session of the legislative assembly which passed the bill on
which the referendum is demanded. The veto power of the governor
shall not extend to measures referred to the people. All elections
on measures referred to the people of the state shall be had at the
biennial regular general elections, except when the legislative
assembly shall order a special election. Any measure referred to
the people shall take effect and become the law when it is approved
by a majority of the votes cast thereon, and not otherwise. The
style of all bills shall be: 'Be it enacted by the people of the
state of Oregon.' This section shall not be construed to deprive
any member of the legislative assembly of the right to introduce
any measure. The whole number of votes cast for justice of the
supreme court at the regular election last preceding the filing of
any petition for the initiative or for the referendum shall be the
basis on which the number of legal voters necessary to sign such
petition shall be counted. Petitions and orders for the initiative
and for the referendum shall be filed with the secretary of state,
and in submitting the same to the people he, and all other
officers, shall be guided by the general laws and the act
submitting this amendment, until legislation shall be especially
provided therefor."

															(1 Lord's Oregon Laws, p. 89.)

															[ Footnote 2 ]

															1. The guaranty of article IV, section 4, of the Federal
Constitution is to the people of the States, and to each citizen,
as well as to the States as political entities.

															2. Section 4 of article IV therefore prohibits the majority in
any State from adopting an unrepublican constitution.

															[ Footnote 3 ]

															1. Difference between a republic and democracy.

															2. In ascertaining the meaning of the phrase "republican form of
government," the debates of the constitutional conventions and the
federalist papers are of great importance, if not conclusive.

															3. The framers of the Constitution recognized the distinction
between the republican and democratic form of government, and
carefully avoided the latter.

															4. The extent of territory of the States alone sufficed, in the
judgment of the framers of the Constitution, to condemn the
establishment of a democratic form of government.

															5. The form of state government perpetuated by the Constitution
was the republican form, with the three departments of government,
in force in all the States at the time of the adoption of the
Constitution.

															6. The history of other nations does not furnish the definition
of the phrase "republican form of government," as those words were
used by the framers of the Constitution. They distinguish the
American from all other republics by the introduction of the
principle of representation.

															7. Initiative legislation is invalid because government by the
people directly is inconsistent with our form of government.

															8. The well known practices of (a) adopting state constitutions
by popular vote, and of (b) local legislation in "town meetings,"
furnish no precedent for the lodgment of legislative power in the
ballot box.

															[ Footnote 4 ]

															1. State legislatures are a vital feature of our Government; the
Federal Constitution presupposes their existence and imposes on
each State the obligation to maintain them.

															2. The division of powers of the three departments in each of
the States is a prerequisite to the national Government.

															3. It is evident under the Constitution the State Legislatures
are the agency to carry on the relations between the Nation and the
States.

															4. The word "legislature" in the Constitution means a
representative assembly consisting of two houses, empowered to make
the law. Such was its meaning at the time of the adoption of the
Constitution.

															5. Contemporaneous legislation by Congress sheds some light on
the meaning of the term "legislature" as used in the
constitution.

															6. The initiative destroys the legislative assemblies or
legislatures which it is the implied obligation of each State to
maintain, for a legislature must be the lawmaking power.

															7. The initiative overthrows one of the greatest safeguards
against the abuse of the power of legislation, to-wit: the system
of a dual legislative assembly.


U.S. Supreme Court Ex parte McCardle, 74 U.S. 7 Wall. 506
506 (1868) Ex parte McCardle 74 U.S. (7 Wall.) 506 APPEAL FROM THE CIRCUIT COURT FOR
THE SOUTHERN DISTRICT OF
MISSISSIPPI Syllabus 1. The appellate jurisdiction of this court is conferred by the
Constitution, and not derived from acts of Congress, but is
conferred "with such exceptions, and under such regulations, as
Congress may make," and, therefore, acts of Congress affirming such
jurisdiction have always been construed as excepting from it all
cases not expressly described and provided for.

															2. When, therefore, Congress enacts that this court shall have
appellate jurisdiction over final decisions of the Circuit Courts
in certain cases, the act operates as a negation or exception of
such jurisdiction in other cases, and the repeal of the act
necessarily negatives jurisdiction under it of these cases
also.

															3. The repeal of such an act, pending an appeal provided for by
it, is not an exercise of judicial power by the legislature, no
matter whether the repeal takes effect before or after argument of
the appeal.

															4. The act of 27th March, 1868, repealing that provision of the
act of 5th of February, 1867, to amend the Judicial Act of 1789,
which authorized appeals to this court from the decisions of the
Circuit Courts in cases of habeas corpus, does not except from the
appellate jurisdiction of this Page 74 U. S. 507 court any cases but appeals under the act of 1867. It does not
affect the appellate jurisdiction which was previously exercised in
cases of habeas corpus.

															The case was this:

															The Constitution of the United States ordains as follows:

															"§ 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the
Congress may from time to time ordain and establish."

															"§ 2. The judicial power shall extend to all cases in law or
equity arising under this Constitution, the laws of the United
States, "

															&c.

															And in these last cases, the Constitution ordains that,

															"The Supreme Court shall have appellate jurisdiction, both as to
law and fact, with such exceptions, and under such regulations,
as the Congress shall make. "

															With these constitutional provisions in existence, Congress, on
the 5th February, 1867, by "An act to amend an act to establish the
judicial courts of the United States, approved September 24, 1789,"
provided that the several courts of the United States, and the
several justices and judges of such courts, within their respective
jurisdiction, in addition to the authority already conferred by
law, should have power to grant writs of habeas corpus in all cases
where any person may be restrained of his or her liberty in
violation of the Constitution, or of any treaty or law of the
United States. And that, from the final decision of any judge,
justice, or court inferior to the Circuit Court, appeal might be
taken to the Circuit Court of the United States for the district in
which the cause was heard, and from the judgment of the said
Circuit Court to the Supreme Court of the United States. This statute being in force, one McCardle, alleging unlawful
restraint by military force, preferred a petition in the court
below, for the writ of habeas corpus. Page 74 U. S. 508 The writ was issued, and a return was made by the military
commander admitting the restraint, but denying that it was
unlawful.

															It appeared that the petitioner was not in the military service
of the United States, but was held in custody by military authority
for trial before a military commission upon charges founded upon
the publication of articles alleged to be incendiary and libelous,
in a newspaper of which he was editor. The custody was alleged to
be under the authority of certain acts of Congress.

															Upon the hearing, the petitioner was remanded to the military
custody, but, upon his prayer, an appeal was allowed him to this
court, and upon filing the usual appeal bond, for costs, he was
admitted to bail upon recognizance, with sureties conditioned for
his future appearance in the Circuit Court, to abide by and perform
the final judgment of this court. The appeal was taken under the
above-mentioned act of February 5, 1867.

															A motion to dismiss this appeal was made at the last term, and,
after argument, was denied. [ Footnote 1 ]

															Subsequently, on the 2d, 3d, 4th, and 9th March, the case was
argued very thoroughly and ably upon the merits, and was taken
under advisement. While it was thus held, and before conference in
regard to the decision proper to be made, an act was passed by
Congress, [ Footnote 2 ] returned
with objections by the President, and, on the 27th March, repassed
by the constitutional majority, the second section of which was as
follows:

															" And be it further enacted, That so much of the act
approved February 5, 1867, entitled 'An act to amend an act to
establish the judicial courts of the United States, approved
September 24, 1789,' as authorized an appeal from the judgment of
the Circuit Court to the Supreme Court of the United States, or the
exercise of any such jurisdiction by said Supreme Court, on appeals
which have been, or may hereafter be taken, be, and the same is
hereby repealed. " Page 74 U. S. 509 The attention of the court was directed to this statute at the
last term, but counsel having expressed a desire to be heard in
argument upon its effect, and the Chief Justice being detained from
his place here by his duties in the Court of Impeachment, the cause
was continued under advisement. Argument was now heard upon the
effect of the repealing act. Page 74 U. S. 512 THE CHIEF JUSTICE delivered the opinion of the court.

															The first question necessarily is that of jurisdiction, for if
the act of March, 1868, takes away the jurisdiction defined by the
act of February, 1867, it is useless, if not improper, to enter
into any discussion of other questions.

															It is quite true, as was argued by the counsel for the
petitioner, that the appellate jurisdiction of this court is not
derived from acts of Congress. It is, strictly speaking,
conferred Page 74 U. S. 513 by the Constitution. But it is conferred "with such exceptions
and under such regulations as Congress shall make."

															It is unnecessary to consider whether, if Congress had made no
exceptions and no regulations, this court might not have exercised
general appellate jurisdiction under rules prescribed by itself.
For among the earliest acts of the first Congress, at its first
session, was the act of September 24th, 1789, to establish the
judicial courts of the United States. That act provided for the
organization of this court, and prescribed regulations for the
exercise of its jurisdiction.

															The source of that jurisdiction, and the limitations of it by
the Constitution and by statute, have been on several occasions
subjects of consideration here. In the case of Durousseau v.
The United States [ Footnote
3 ] particularly, the whole matter was carefully examined, and
the court held that, while "the appellate powers of this court are
not given by the judicial act, but are given by the Constitution,"
they are, nevertheless, "limited and regulated by that act, and by
such other acts as have been passed on the subject." The court said
further that the judicial act was an exercise of the power given by
the Constitution to Congress "of making exceptions to the appellate
jurisdiction of the Supreme Court." "They have described
affirmatively," said the court,

															"its jurisdiction, and this affirmative description has been
understood to imply a negation of the exercise of such appellate
power as is not comprehended within it."

															The principle that the affirmation of appellate jurisdiction
implies the negation of all such jurisdiction not affirmed having
been thus established, it was an almost necessary consequence that
acts of Congress, providing for the exercise of jurisdiction,
should come to be spoken of as acts granting jurisdiction, and not
as acts making exceptions to the constitutional grant of it.

															The exception to appellate jurisdiction in the case before us,
however, is not an inference from the affirmation of other Page 74 U. S. 514 appellate jurisdiction. It is made in terms. The provision of
the act of 1867 affirming the appellate jurisdiction of this court
in cases of habeas corpus is expressly repealed. It is hardly
possible to imagine a plainer instance of positive exception.

															We are not at liberty to inquire into the motives of the
legislature. We can only examine into its power under the
Constitution, and the power to make exceptions to the appellate
jurisdiction of this court is given by express words.

															What, then, is the effect of the repealing act upon the case
before us? We cannot doubt as to this. Without jurisdiction, the
court cannot proceed at all in any cause. Jurisdiction is power to
declare the law, and, when it ceases to exist, the only function
remaining to the court is that of announcing the fact and
dismissing the cause. And this is not less clear upon authority
than upon principle.

															Several cases were cited by the counsel for the petitioner in
support of the position that jurisdiction of this case is not
affected by the repealing act. But none of them, in our judgment,
affords any support to it. They are all cases of the exercise of
judicial power by the legislature, or of legislative interference
with courts in the exercising of continuing jurisdiction. [ Footnote 4 ]

															On the other hand, the general rule, supported by the best
elementary writers, [ Footnote
5 ] is that, "when an act of the legislature is repealed, it
must be considered, except as to transactions past and closed, as
if it never existed." And the effect of repealing acts upon suits
under acts repealed has been determined by the adjudications of
this court. The subject was fully considered in Norris v.
Crecker, [ Footnote 6 ] and
more recently in Insurance Company v. Ritchie. [ Footnote 7 ] In both of these cases, it
was held that no judgment could be rendered in a suit after the
repeal of the act under which it was brought and prosecuted. Page 74 U. S. 515 It is quite clear, therefore, that this court cannot proceed to
pronounce judgment in this case, for it has no longer jurisdiction
of the appeal, and judicial duty is not less fitly performed by
declining ungranted jurisdiction than in exercising firmly that
which the Constitution and the laws confer.

															Counsel seem to have supposed, if effect be given to the
repealing act in question, that the whole appellate power of the
court, in cases of habeas corpus, is denied. But this is an error.
The act of 1868 does not except from that jurisdiction any cases
but appeals from Circuit Courts under the act of 1867. It does not
affect the jurisdiction which was previously exercised. [ Footnote 8 ]

															The appeal of the petitioner in this case must be

															DISMISSED FOR WANT OF JURISDICTION.

															[ Footnote 1 ] See Ex parte
McCardle , 6 Wallace 318.

															[ Footnote 2 ]

															Act of March 27, 1868, 15 Stat. at Large 44.

															[ Footnote 3 ] 10 U. S. 6 Cranch 312; Wiscart v.
Dauchy , 3 Dallas 321.

															[ Footnote 4 ] Lanier v. Gallatas, 13 Louisiana Annual 175; De
Chastellux v. Fairchild, 15 Pennsylvania State 18; The
State v. Fleming, 7 Humphreys 152; Lewis v. Webb, 3
Greenleaf 326.

															[ Footnote 5 ]

															Dwarris on Statutes 538.

															[ Footnote 6 ] 54 U. S. 13 Howard
429.

															[ Footnote 7 ] 72 U. S. 5 Wallace
541.

															[ Footnote 8 ] Ex parte
McCardle , 6 Wallace 324.