223 U.S. Argument for Defendant in Error. The guarantee of equal protection of the law is a guarantee of the protection of equal laws. Southern Railway Co. v. Greene, 216 U. S. 412; Yick Wo v. Hopkins, 118 U. S. 369. The unconstitutionality of the acts of a State are equally within the jurisdiction of the courts, whether they be the acts of the legislative or executive department or of the people themselves, adopting their constitutions or amending them. Cohens v. Virginia, 6 Wheat. 415; Dodge v. Woolsey, 18 How. 332; Cummings v. Missouri, 4 Wall. 277; Cooley, Const. Lim., 7th ed. 62; Koehler v. Hill, supra. Mr. John J. Dye and Mr. Addison C. Harris, submitted a brief as amici curiæ, by leave of the court, in support of the contentions of the plaintiff in error. Mr. A. M. Crawford, Mr. George Fred Williams and Mr. Jackson H. Ralston, with whom Mr. S. H. Van Winkle, Mr. W. S. U'Ren and Mr. C. E. S. Wood were on the brief, for defendant in error: The power to determine whether a State has a republican form of government is vested in Congress. Hence it is a political rather than a judicial question. Luther v. Borden, 7 How. 1, 42; Texas v. White, 7 Wall. 700, 730; Taylor v. Beckham, 178 U. S. 548, 578; Hopkins v. Duluth, 81 Minnesota, 189; Article by W. A. Coutts, Vol. VI, No. 4, 304, Michigan Law Review; In re Duncan, 139 U. S. 449. If the question is a judicial one, courts of the United States will follow the decision of the state courts, where the state court has passed upon the question. Luther v. Borden, 7 How. 1, 40; Leeper v. State of Texas, 139 U. S. 462-467. The Federal authorities, including the Supreme Court, h ve treated this as a political question. 7 How. 1, 42; Cooley on Const. Lim., 7th ed., p. 59, 6th ed., p. 42. VOL. CCXXIII-9 Argument for Defendant in Error. 223 U.S. This question does not lose its political complexion because it has arisen since the admission of Oregon into the Union of States. If the courts take jurisdiction of these questions, then we have a decision upon a political question, decided by the political power, reëxamined by the judicial and perhaps overthrown. One branch of the Government becomes arrayed against another, and revolution or rebellion is imminent. It is not a decision upon one clause of the Constitution, but the whole instrument is examined and considered, and the plan or scheme of government there outlined adjudged to be republican, or anti-republican, in character. The State of Oklahoma was recently admitted into the Union with the initiative and referendum principles reserved to the people. See §§ 2, 3, 5, Oklahoma Constitution. While a court may decide whether an amendment of a constitution has been adopted in the prescribed manner, and whether it denies any constitutional right, either as to property or person, it would be an invasion of the prerogatives of Congress should the court below undertake to decide whether the constitution of a new State seeking admission is republican in form, and to decide whether it should become a member of the Union. If the court decides to retain jurisdiction: A state constitution should not be held to contravene the Federal Constitution unless the general scope and plan of government provided in the former is opposed to the general scope and plan of government required by the latter, to be maintained by the State. The initiative and referendum amendment is essentially republican in form as guaranteed in the Federal Constitution, construed in the light of the following authorities: Cooley, Const. Lim., 7th ed., 59; Id., 6th ed., 42, 45; Federalist, Hamilton ed., No. 39, p. 301; No. 43, p. 342; Oberholtzer on the Referen 223 U.S. Argument for Defendant in Error. dum in America, Chap. 45, pp. 368 and 369; 2 Story, Const. 5th ed., §§ 1815 to 1819, both inclusive; 1 Elliott's Debates, 406; 5 Id. 160; 15 Writings of Thomas Jefferson, p. 17 (see Vol. XI, Federal Ed., p. 529); Chisholm v. Georgia, 2 Dallas, 419, 457; In re Duncan, 139 U. S. 449, 461; Luther v. Borden, 7 How. 42; Minor v. Happersett, 21 Wall. 162, 175; Taylor v. Beckham, 178 U. S. 548, 578; Hopkins v. Duluth, 81 Minnesota, 189; People v. Sours, 31 Colorado, 369, 383; In re Andrew Pfahler, 150 California, 71, 77, 78; Ex parte Wagner, 21 Oklahoma, 33, 36; Kadderly v. Portland, 44 Oregon, 118, 144; Oregon v. Pac. States Tel. Co., 53 Oregon, 162; Straw v. Harris, 54 Oregon, 424, 431; Kring v. Missouri, 107 U. S. 221. The members of the Federal convention considered a "republican form of government" to be a government which derived all its powers from the great body of the people. Both the Federal and state courts have uniformly held that the initiative method of enacting laws was not repugnant to the provisions of § 4, Art. IV, of the Federal Constitution, either directly or by necessary inference. Chisholm v. Georgia, 2 Dall. 419, 457; In re Duncan, 139 U. S. 449, 461; Minor v. Happersett, 21 Wall. 162, 175; Hopkins v. Duluth, 81 Minnesota, 189; People v. Sours, 31 Colorado, 369, 383; In re Andrew Pfahler, 150 California, 71, 77, 78; Kadderly v. Portland, 44 Oregon, 118; 74 Pac. Rep. 710; Oregon v. Pac. States T. & T. Co., 53 Oregon, 162; 99 Pac. Rep. 427; Straw v. Harris, 54 Oregon, 424, 431. The executive and legislative branches of the Federal Government have held, in substance, that the reservation of the initiative and referendum powers by the people of a State is not violative of the Federal Constitution nor hostile to a republican form of government. Senators and representatives from States reserving those powers are seated in the Senate and House of Representatives without protest. When new States are admitted, the President and Argument for Defendant in Error. 223 U.S. Congress pass upon the form of government presented by the proposed State, and decide whether the same is in harmony with the Constitution of the United States, and they have in several cases approved state constitutions reserving the identical powers attacked in the case at bar, notably, Oklahoma and Arizona, and other States have changed their constitutions to include those powers, towit: South Dakota, Utah, Colorado, Arkansas, Maine and Oregon, without objection from any Federal authority, and no question has ever been raised as to their representation in Congress. Also the right of the people to instruct their representatives in Congress and in the state legislatures, if it exists, is an admission or acknowledgment that the supreme power rests in the people, and we contend that such right does exist. Inexpediency should not be considered. That is for the law-making power of the State. The act does not violate any of the provisions of § 1 of the Fourteenth Amendment. Assuming that the act under consideration was lawfully enacted the taxes levied thereby must be considered a valid exercise of the taxing power of the State in the light of the following authorities: Southwestern Oil Co. v. Texas, 217 U. S. 114; Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 237; Home Ins. Co. v. New York, 134 U. S. 594; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 562; Kentucky R. Tax Case, 115 U. S. 321, 337; Magoun v. Illinois Savings Bank, 170 U. S. 283, 294; Am. Sugar Ref. Co. v. Louisiana, 179 U. S. 89; Cargill Co. v. Minnesota, 180 U. S. 452, 468; Cook v. Marshall County, 196 U. S. 261, 268, 273, 274; Armour Packing Co. v. Lacy, 200 U. S. 226, 235; Delaware Railroad Tax Case, 18 Wall. 206, 231; 2 Cooley on Taxation, 3d ed., 1095; City of St. Joe v. Ernst, 8 S. W. Rep. (Mo.) 558; Producers Oil Co. v. Texas, 99 S. W. Rep. (Tex.) 157; State Tax on R. R. Gross Receipts, 15 Wall. 284, 293. It cannot be claimed in this case that a tax on gross earnings is even incidentally a tax on interstate commerce. Mr. George H. Shibley, Director of the American Bureau of Political Research of People's Rule League of America; Mr. Robert L. Owen, United States Senator from Oklahoma, Chairman of the National Committee, People's Rule League of America, and Mr. J. Henry Carnes as counsel, for the State of Oregon, filed a brief for the defendant in error. Mr. George Fred Williams, as counsel for the States of California, Arkansas, Colorado, South Dakota and Nebraska, filed a separate brief for defendant in error. MR. CHIEF JUSTICE WHITE delivered the opinion of the court. דו 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 |