in advance that if a company remove a case to a federal court, its license shall be revoked. We think this distinction is not well founded. The truth is that the effect of the statute is simply to place foreign companies upon a par with the domestic ones doing business in Kentucky. No stipulation or agreement being required as a condition for coming into the State and obtaining a permit to do business therein, the mere enactment of a statute which, in substance, says if you choose to exercise your right to remove a case into a federal court, your right to further do business within the State shall cease and your permit shall be withdrawn, is not open to any constitutional objection. The reasoning in the Doyle case we think is good."18

From the foregoing cases it is apparent that no abandonment is really made of the principle that the States are constitutionally incompetent to interfere with or prohibit the exercise of a federal right. Corporations chartered in one State and doing business in another State may exercise the right of removal given them by the federal statutes without reference to what the laws of the States in which they are doing business may provide, and this they may do even if they have contracted with those state authorities not to exercise these rights. The fact that the state authorities, in the exercise of a power acknowledged to be possessed by them, withdraw, or threaten to withdraw, a privilege which they have granted, furnishes no ground for federal relief. There is, to be sure, a causal nexus between the exercise of the federal right of removal and of the State's right to withdraw its permission to the foreign corporation to do business within the State's limits. But, legally speaking, there is no connection. Each is the exercise of an independent right. The case is not similar to one where the State interferes with or hinders the operation of a federal agency, as, for example, the taxation of its franchise. In the cases above considered, no attempt is made by the States to declare what cases shall and what cases shall not be removed into the federal courts, or in any way to interfere with the exercise

18 A strong dissenting opinion, concurred in by Justice Harlan, was filed in this case by Justice Day.

of their jurisdiction by those courts after the cases have been removed into them. Whenever this has been attempted the federal courts have prevented it. Thus it has been repeatedly declared that the jurisdiction conferred upon the federal courts cannot be in any way abridged or impaired by the statutes of a State. 19

So, also, it is held that the proper petition and bond having been filed, a case is considered removed even though the state court may refuse to make an order of removal, and may in fact proceed with the trial of the cause.20 In such cases the defendant may, if he choose, defend the case in the state court, and after final judg ment obtain a writ of error from the United States Supreme Court, and in so doing he does not forfeit his right to defend in the lower federal court. The circuit court can issue a writ of certiorari to the state court demanding a copy of the record in case and the clerk refusing to furnish it becomes liable under a federal act to fine or imprisonment.21

466;

19 Hyde v. Stone (20 How. 170; 15 L. ed. 874); Smyth v. Ames (169 U. S. 18 Sup. Ct. Rep. 418; 42 L. ed. 819); Mercer Co. v. Cowles (7 Wall. 118; 19 L. ed. 86); Lincoln Co. v. Luning (133 U. S. 529; 10 Sup. Ct. Rep. 363; 33 L. ed. 766); Chicot Co. v. Sherwood (148 U. S. 529; 13 Sup. Ct. Rep. 695; 37 L. ed. 546); Barrow S. S. Co. v. Kane (170 U. S. 100; 18 Sup. Ct. Rep. 526; 42 L. ed. 964).

20 Home L. Insurance Co. v. Dunn (19 Wall. 214; 22 L. ed. 68); Marshall v. Holmes (141 U. S. 589; 12 Sup. Ct. Rep. 62; 35 L. ed. 870) and cases there cited.

21 Act of Mch. 3, 1875. Whether Congress has the power thus to punish the refusal of the state official to perform this duty has not received judicial determination. If, however, we judge by analogy from the decision in Ex parte Siebold (100 U. S. 371; 25 L. ed. 717), and if the act required is a purely ministerial one, Congress has the power. In Ex parte Virginia (100 U. S. 339; 25 L. ed. 676) a judge of a Virginia court had been indicted for a violation of the federal Civil Rights Act of 1875 in that he had excluded negroes from grand and petit juries. The selection of jurors the majority of the court declared to be a purely ministerial act, and, as to the fact that the accused was a state official, said: "We do not perceive how holding an office under a State and claiming to act for the state can relieve the holder from obligation to obey the Constitution of the United States, or to take away the power of Congress to punish his disobedience." Justice Field, in a dissenting opinion concurred in by Justice Clifford, strongly urged that the act of 1875 was unconstitutional in so far as it attempted to govern the selection of jurors in state courts. He argued that the selection of

22

In the recently decided case of W. U. Telegraph Co. v. Kansas the court takes a position which it is somewhat difficult to harmonize with that assumed in the insurance cases. In this case the court held unconstitutional as an interference with interstate commerce a state law exacting from a foreign telegraph corporation, as a condition of being permitted to continue to do a local business within the State, a charter fee of a given per cent of its entire authorized capital stock. The court declare: "The vital difference between the Prewitt case and the one now before us is that the business of the insurance company, involved in the former case, was not, as this court has often adjudged, interstate commerce, while the business of the telegraph company was primarily and mainly that of interstate commerce." This is true enough, but the essential fact still remains that the Prewitt case permitted the State to exact of the foreign corporation as a condition to its being permitted to do business within the State that it should forego the exercise of a federal constitutional right, whereas, in the later case it was held that the State might not as a condition impose burdens upon the exercise by the foreign corporation of federal right, that of carrying on interstate commerce, which can scarcely be said to be a more important privilege than that involved in the Prewitt case. It would seem, therefore, that the suggestion made by Justice White in his concurring opinion in the later case was a stronger one, namely, that the company having been permitted to enter the State and construct its plant there, the onerous conditions attempted to be imposed by the State as a condition to its remaining there were confiscatory and, therefore, wanting in due process of law.

jurors is a judicial and not a merely ministerial act (quoting Kentucky v. Dennison), and that Congress had no authority over judicial officers of the States in discharge of their duties under State laws. For a fuller discussion of this case see post, p. 189.

22 30 Sup. Ct. Rep. 190.

CHAPTER X.

THE FEDERAL CONTROL OF THE FORM OF STATE GOVERNMENTS.

§ 75. State Autonomy.

In the foregoing pages the sovereignty of the United States as opposed to, and inconsistent with, the continued sovereignty of its individual commonwealth members has been sufficiently declared. Whatever doubt there may have been upon this point before the Civil War, the result of that gigantic struggle has left no room for disagreement since, and the subsequent unequivocal assertions of the federal courts have simply registered conclusions that no one could rationally question. Starting, then, from this fundamental fact that, looking at the matter from a purely legal viewpoint, the individual Commonwealths constitute self-governing but politically subordinate portions of the United States, we shall now proceed to consider the degree of autonomy secured them under the federal Constitution. This subject we may conveniently divide into two parts. First, we may examine the degree of control that the Federal Government may constitutionally exercise over the form of government that the several States may establish for themselves; and, secondly, the extent to which the General Government may supervise or control the exercise by the States of those powers that are reserved to them. First, then, as to the control that may be constitutionally exercised by the United States over the forms of government of its constituent units.

Speaking generally it may be said that, providing its government be republican in form, each State of the Union may establish such governmental organs as it sees fit, and apportion among them its executive, legislative and judicial powers according to its own judgment as to what is expedient and proper.

§ 76. Republican Form of Government Defined.

The federal Constitution provides that "The United States shall guarantee to every State in this Union a republican form

of government, and 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." 1

In form, the first clause of this section would appear to be for the benefit of the States and to impose a duty upon the Federal Government, and such undoubtedly would be its effect should a foreign power attempt to impose a government of any sort whatever upon the people of one of the States against their will; or should a domestic revolution result in the establishment in power of a government not sanctioned by law or not freely agreed to by the electorate. In fact, however, as we have already seen, and as will presently be more particularly spoken of, this clause was so interpreted during reconstruction times as to give to the Federal Government for several years an almost unlimited power of control of the domestic affairs of those States that had been in rebellion against its authority.

It will be noticed that the Constitution does not itself define the term "republican form of government." It has, however, always been an accepted rule of construction that the technical and special terms used in the Constitution are to be given that meaning which they had at the time that instrument was framed. This is but reasonable, for, in default of anything to the contrary, those who drafted the Constitution are to be presumed to have intended the words which they used to have that meaning they knew them to have. For a definition, then, of "republican government" we must discover what in 1787 such a political form was considered to be. Certainly we may say that the governments of the thirteen original States as they existed at the time the Constitution was drafted must have been considered as illustrating the republican type. Furthermore, the Constitutions of all those States which have been admitted to the Union since 1787 must be regarded as having been impliedly declared republican by Congress at the time of the giving of its assent to their entrance into the Union.

The late Judge Cooley, in his Principles of Constitutional Law,2 has perhaps defined the term as satisfactorily as anyone. “By a

1 Art. IV, Sec. 4.

2 Chapter XI.