not only would the people's representatives make the laws, and their agents administer them, but the people would also, directly or indirectly, choose the executive. But it would by no means follow that the whole body of people, or even the whole body of adult and competent persons, would be admitted to political privileges; and in any republican State the law must determine the qualifications for admission to the elective franchise."

In United States v. South Carolina,2 a case decided in 1905, an obiter suggestion was made by the court in its majority opinion that a State by assuming control of the manufacture and distribution of certain commodities, and, especially, by acquiring and undertaking the management of public utilities, might thereby lose its republican form of government. To the suggestions thus made no great weight can be given. Whether or not a government is republican in form depends not upon the sphere of its activities, but upon the manner in which its functionaries are selected, and the degree of their legal responsibility to the people. Thus there would be no difficulty in the most socialistic of States having a government of the purest republican type.

Constitutionality of referendum

In the courts of the States, general direct legislation (referendum) laws were in a few early cases held unconstitutional on the ground that their effect is to establish a democratic in place of a republican—that is, a representative-form of government. Thus, for example, in Rice v. Foster,3 the court of Delaware declared: "Although the people have the power, in conformity with its provisions,

2 199 U. S. 437; 26 Sup. Ct. Rep. 110; 50 L. ed. 261.

3 4 Harrison, 479. This law involved only a local option law. Its reasoning applies, however, and has continued to be applied to general laws. As to local option laws, however, and laws establish

to alter the Constitution, under no circumstances can they, so long as the Constitution of the United States remains the paramount law of the land, establish a democracy or any other than a republican form of government." And this, the court went on to declare, would in effect be done, should the electorate be given a direct legislative power.

Decision as to de jure character of State governments

Precedents have established the principle that where there is a dispute in a State as to the de jure character of a particular organ of its government, as, for example, as to which of two individuals has been elected as chief executive, or which of two courts or legislatures is entitled to authority, the Federal Government will not ordinarily interfere, being governed by the principle that each State government has a tribunal for the decision of such contests, and that the General Government will consider itself bound by the decision which that tribunal renders, just as the Federal courts hold themselves bound by the decisions of the State courts as to the existence and, in general, the interpretation of their respective State statutes.

In two classes of cases, however, the Federal Government exercises the right to decide which of two contesting State officials or organs is to be recognized as the de jure

ing local governments and equipping them with adequate powers, the case may be said to have been overruled. See Oberholtzer, The Referendum in America. For a general discussion of what constitutes a government republican in form, see Luther v. Borden, 7 How. 1; 12 L. ed. 581, a case growing out of Dorr's Rebellion in 1845 in Rhode Island. The argument of Daniel Webster who was of counsel is especially valuable. The use of this guaranty clause by the United States for the "reconstruction" of the Southern States after the Civil War is discussed in the author's Constitutional Law, § 80. A limited suffrage is compatible with a republican form of government. Minor v. Happersett, 21 Wall. 162; 22 L. ed. 627. See also Luther v. Borden.

authority. The first of these includes those cases in which a decision becomes necessary in order to determine a matter of direct Federal concern. Thus, for example, when each of two contesting State legislatures selects and sends Senators to Congress, it is necessary for the United States Senate to decide which of the two electing bodies is endowed with the authority to act in that behalf for the State. So, also, as in the case of Dorr's Rebellion, where Federal aid is needed to suppress domestic disorder, it is necessary for the President or Congress to determine which government, claiming authority, it will recognize.

The second class of cases in which the Federal Government, through its Supreme Court, will assume jurisdiction of a dispute between two parties as to who is entitled to a State office, is where a claim is made that the State laws, as applied by the State authorities in settlement of the dispute, have violated that provision of the Fourteenth Amendment which declares that no State "shall deprive any person of life, liberty or property, without due process of law," or have violated the tenth section of Article I of the Constitution of the United States, which declares that no State shall pass a law impairing the obligation of a contract.

Public office not a property or contract right

The Supreme Court of the United States has held in an unqualified manner, that as between a State and an officeholder, there is no contract right possessed by the latter either to the office or to the salary attached to it, and that, therefore, in the absence of express constitutional provision otherwise, his removal from office or the abolishment of the office itself gives him no cause of action against the State.4

4 Butler v. Pennsylvania, 10 How. 402; 13 L. ed. 472; Taylor v. Beckham, 178 U. S. 548; 20 Sup. Ct. Rep. 890; 44 L. ed. 1187.

Suits between two or more claimants to State office

When the dispute is not one between the State and one of its officers, but between two individuals each claiming the office and its emoluments,-when, in other words, the office itself is not disturbed nor the salary changed, the question is a different one. Then, it would seem, the office has often to be treated as a piece of property of which the owner may not be deprived without due process of law even by the State itself.5

5 Kennard v. Louisiana, 92 U. S. 480; 23 L. ed. 478; Foster v. Kansas, 112 U. S. 205; 5 Sup. Ct. Rep. 8; 28 L. ed. 696; Boyd v. Nebraska, 143 U. S. 135; 12 Sup. Ct. Rep. 375; 36 L. ed. 103; Wilson v. North Carolina, 169 U. S. 586; 18 Sup. Ct. Rep. 435; 42 L. ed. 865; Taylor v. Beckham, 178 U. S. 548; 20 Sup. Ct. Rep. 890; 44 L. ed. 1187.

CHAPTER VI

FEDERAL SUPERVISION OF STATE ACTIVITIES; THE FOUR

TEENTH AMENDMENT

The Fourteenth Amendment

The question now to be considered is not the maintenance of the supremacy of the Federal Government, but the protection of individuals in the enjoyment of rights and immunities guaranteed to them by the Federal Constitution.

Prior to the adoption of the Fourteenth Amendment in 1868 the laws of the individual States, so long as they related to subjects over which the States had the right of legislation, were not subject to examination in Federal courts with a view to ascertaining whether they deprived anyone of life, liberty or property without due process of law, or denied to anyone equal legal protection. The first nine Amendments to the Federal Constitution which enumerated the fundamental rights of individuals that might not be violated were, from the beginning, construed to limit not the States but only the Federal Government. Until, therefore, the Fourteenth Amendment was adopted there was, so far as the Federal Constitution was concerned, nothing to prevent the several States from enacting laws which denied to their own citizens the equal protection of the laws or deprived them of life, liberty and property, without due process of law. The only limitations laid upon the States by the Constitution ~ were that they should enact no bills of attainder, or ex post facto laws, or laws impairing the obligation of con