I dissent; but I will not undertake to do more just now than to briefly outline the skeleton of the argument which leads me to the conclusion that the "initiative" as contained in the Los Angeles charter is unconstitutional and void.
I will not stop to discuss the forcible contention by counsel for the petitioner that the provision of the charter under consideration is violative of certain parts of our state constitution, because, in my opinion, the provision is violative of that part of the constitution of the United States which declares that "Congress shall guarantee in each state a republican form of government." It is, in my judgment, a narrow and incorrect view of that provision of the United States constitution to hold that it concerns Congress alone, and that a state may violate it at its will so long as Congress does not choose to interfere. The provision declares a great constitutional principle, and must be observed by all coming within its purview. The correct construction, is that given by the United States supreme court in Minor v. Happersett, 21 Wall. 162, where it is said: "The guarantee necessarily imposes a duty on the part of the states themselves to provide such a government." Therefore every act done by a state which is inconsistent with and violative of the theory of a republican form of government is invalid.
Now, what is a republican form of government? These words are not defined in the constitution itself; like other words used in that instrument, we must look for their meaning to the general and usual sources and authorities which determine the signification of English words and phrases. And an examination of those sources leaves no doubt as to the meaning of the phrase in question. It is defined in the Federalist, in legislative debates, in judicial opinions, in textbooks *Page 94 of the law, and in the standard dictionaries of the language. I shall not quote from these authorities. The meaning of the phrase as derived from these sources is correctly and concisely stated in Webster's dictionary as follows: "A state in which the sovereign power resides in the whole body of the people, and isexercised by representatives selected by them." A republican form of government is one in which the people select those who are to make their laws, and is radically different from a pure democracy, in which the people collectively and as their own original act make the laws. And whenever under our American system of representative government a state undertakes to destroy the representative system and install in its place, as the lawmaking power, the people, either acting in a mass-meeting, or enacting laws by ballot, in their original capacity, it undertakes to do an unconstitutional thing which is void. And it is to be observed that the initiative provision of the Los Angeles charter is not confined to merely reserving to the people the right to approve of measures which refer to one or two special subjects; it gives them full affirmative sway over the whole matter of municipal legislation — they may propose and pass by vote "any ordinance."
It is said that although the state might not have power to take the lawmaking power of the state from a representative body and confer it upon the whole people, still it may do so as to part of the state organized as a municipality. But what the state cannot do itself it cannot authorize a municipality to do; the act is one which the state cannot do at all, and therefore cannot make such act valid in any part of its territory. Moreover, the state cannot do indirectly that which it cannot do directly; and considering the wide power of legislation which the people of the state have already given the municipalities, the latter are exercising lawmaking power almost equal to that of the state; the initiative in the Los Angeles charter embraces a large power of general legislation which usually belongs to the state. Already a municipality is independent of the state as to all legislation relating to municipal affairs; and we all know how difficult it is to determine how far legislation as to "municipal affairs" runs into general legislation. Moreover, considering the generosity with which the people of the state have given away their *Page 95 powers to municipalities, there is no telling how much further they may go in that direction. If this disposition continues, the time may come when California will be not much more than a shadow of a name — used to designate the territory within which exists certain almost — free cities and independent municipalities. Why should the people of the state, with their present love of municipal power, restrict the legislative power of a municipality to "municipal affairs"; why should not each municipality have its own substantive law in all ordinary matters of legislation — no matter what the law on any subject might be in other municipalities, or in other parts of the state. And the initiative would then cover substantially all the legislation in the state.
Of course, the expediency or wisdom of the law under consideration is not a judicial question; but it is well to remember that in a government republican in form representative legislators are persons who are presumed to have, at least, some special qualifications for legislative work, they are chosen some time before they are called to act, they meet and consult with each other, they are not too much hurried in their action, and take full time for consideration of proposed legislation. In a pure democracy, which is represented in part by the initiative, whenever demagogues, pseudo-reformers, or promoters of discontent are able to "fool" the people for only a short "part of the time" by a mischievous proposition, they can by a hurried special election have the proposition voted into a law before there is an opportunity for a sober second thought. It admits the very evils which the representative form of government was intended to guard against.
I cannot refrain from expressing regret at the apparent readiness of many of the people of this state to abandon prominent features of our American system of government — the wisest and best system ever yet devised and put into successful operation. *Page 96