Pacific States Telephone Telegraph Company v. State of Oregon
| Decision Date | 19 February 1912 |
| Docket Number | No. 36,36 |
| Parties | PACIFIC STATES TELEPHONE & TELEGRAPH COMPANY, Plff. in Err., v. STATE OF OREGON |
| Court | U.S. Supreme Court |
Messrs. E. S. Pillsbury and Oscar Sutro for plaintiff in error.
[Argument of Counsel from pages 119-129 intentionally omitted]
Mr. A. M. Crawford, Attorney General of Oregon, Messrs. George Fred Williams, Jackson H. Ralston, I. H. Van Winkle, W. S. U'Ren, C. E. S. Wood, Frederick L. Siddons, William E. Richardson, George H. Shibley, Robert L. Owen, and J. Harry Carnes for defendant in error.
Mr. Elliott W. Major, Attorney General of Missouri, and Messrs. John T. Dye and Addison C. Harris as amici curioe.
[Argument of Counsel from pages 129-133 intentionally omitted]
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 guaranty of the Constitution on that subject. It is not novel, as that question has long since been determined by this court conformably to the practice 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. This amendment, while retaining an existing clause vesting the exclusive legislative power in a general assembly consisting of a senate and a 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
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.' [Art. 4, § 1.] 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.
Section 1 of article 4 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 8 per cent 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 5 per cent 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 or 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.
In 1903 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 1907 as having been duly adopted. By this law telephone and telegraph companies were taxed, by what was qualified as an annual license, 2 per centum 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 & Telegraph Company, an Oregon corporation engaged in business in that state, made a return of its gross receipts, as required by the
statute, and was accordingly assessed 2 per cent 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, in so far 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 Or. 163, 99 Pac. 427.) 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 Or. 118, 146, 74 Pac. 710, 75 Pac. 222), 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
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 article 4 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.
'The initiative and the tax measure in question are repugnant to the provisions of § 1 of the 14th Amendment to the Constitution of the United States, which forbids a state to deny to any person within its...
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