4

the federal constitution, is the conclusion of the supreme courts of both California and Oregon in cases in which this question has been directly presented. Indirectly the question has been considered by both state and federal courts in a number of cases in which are to be found intimations of a similar doctrine. It is the purpose of this article to briefly review the principal cases which have touched upon this question.

2. Initiative and Referendum Closely Related. There is necessarily a difference in the proceedings for obtaining the expression of the will of the electors when exercising the privilege of initiating a measure and that whereby a measure is referred to them from some official source. the distinction between the principle of the

But

initiative and referendum is in the nature of an artificial refinement, for in either case, it is the final vote of the people that gives the proposed legislation its validity. It can really make no difference so far as it concerns the power of the people to participate directly in the adoption of legislation, whether the proposed measure is first suggested by a certain percentum of the electors, or is first suggested by the legislature and referred to the electors for their approval or disapproval. In either case the proposal is submitted "through a designated origin * * * upon the initiative of one or more persons, * * * but so long as the ultimate decision is left to the will of the people at the ballot box, it is essentially republican.”1

3. Republican Form of Government.Section 4, of article IV, of the constitution of the United States provides 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."

In the first place, under this provision of the federal constitution, "it rests with con

(1) Hopkins v. City, 81 Minn. 189.

* *

*

gress to decide what government is the established one in a state. For as the United States guarantee to each state a republican government, congress must necessarily decide what government is established in the state before it can determine whether it is republican or not. And its decision is binding upon every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts."2

* * *

This guaranty of a republican form of government is "to every state," and, it is believed, has nothing to do with purely local municipal governments.3 A republican form of government, as contemplated by this section of the constitution, relates to the form of government for the states at large, a unit of the same general nature as the thirteen original states which united to form the federal union. "It may be true," said the supreme court of the United States, "that the general rule is that the determination of the territorial boundaries of a municipal corporation is purely a legislative function, but there is nothing in the federal constitution to prevent the people of a state from giving, if they see fit, full jurisdiction over such matters to the courts and taking it entirely away from the legislature. The preservation of legislative control in such matters is not one of the essential elements of a republican form of government which, under section 4 of article IV, of the constitution, the United States are bound to guarantee to every state in this union."

Under the federal constitution no particular government is designated as republican; nor is the exact form to be guaranteed in any manner especially designated. "The guarantee," it was said by the United

(2) Luther v. Borden, 7 How. (U. S.) 1, 42; Texas v. White, 7 Wall. (U. S.) 700, 730; Taylor v. Beckham, 178 U. S. 548, 579.

All

States Supreme Court, "necessarily implies the duty on the part of the states themselves to supply such a government. the states had governments when the constitution was adopted. * * *These governments the constitution did not change. They were accepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the states to provide. Thus we have unmistakable evidence of what was republican in form within the meaning of that term as employed in the constitution. * * Women were excluded from suffrage in nearly all of the states by express provision in their constitutional laws."5

*

The framers of the federal constitution probably had no notion that a republican form of government was menaced by the vigorous and flourishing local governments which universally pervaded at least four of the original thirteen states, the system known as the New Engand towns; a system which has been dispersed with various modifications in a number of the newer states of the Union. It might be of interest land town organization as it existed prior to the formation of the federal constitution, left us in the writings of that able lawyer and statesman, John Adams, who probably knew the system as intimately as anybody could possibly know it. "The towns in many parts of America," wrote Mr. Adams, "are small districts of territory, on an average perhaps six miles square. By the ancient laws of the country, which are still in force, any seven inhabitants of one of these towns, have a right to demand of the magistrates a public assembly of all. There are necessarily several of these town meetings a year, and generally a great number of them. In these assemblies every man high and low, every yeoman, tradesman, and every days laborer, as well as every gentleman and public magistrate, has a right to vote and to speak his sentiments upon public affairs, to propose measures, to instruct representatives in the legislature, etc. This right was constantly

(5) Minor v. Happersett, 21 Wall. 162, 175,

176.

and frequently used under the former government, and is now much more frequently used.under the new."

Such a system as described by John Adams, prevalent throughout four states which united to form the constitution, was not considered to be inimical to a republican form of government; (Minor v. Happersett, 21 Wall. 176); on the contrary, it flourished in those states where the spirit of republicanism was the most uncompromising. As we have seen above, seven inhabitants of one of those towns could 'initiate" an assemblage of the whole lawmaking body, and when it was convened, any one of them had a right to propose measures, and vote on the same.

4. Various Instances of the Initiative and Referendum.-The referendum has been described as a condition precedent to the taking effect of a law. The initiative is in its very nature a condition precedent to the referendum.

The initiative and referendum in some form or other have been introduced into the legislative systems of South Dakota, Nebraska, California, Iowa and Oregon; but no part of the world, with the exception of Switzerland and New Zealand, has been invested with the democratic power conferred upon Oklahoma by her new constitution. The provisions of the Oklahoma constitution for the initiative and referendum are given in the note.'

(6) Works of John Adams, Vol. 7, pp. 182, 3, Boston, 1852.

(7) "The legislative authority of the state shall be vested in a legislature, consisting of a senate and house of representatives; but the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the legislature, and also reserve power at their own option to oppose or reject at the polls any act of the legislature. The first power reserved by the people is the initiative, and eight per centum of the legal voters shall have the right to propose any legislative measure, and fifteen per centum of the legal voters shall have the right to propose amendments to the constitution by petition, and every such petition shall include the full text of the measure proposed. The second power is the referendum, and it may be ordered either by petition signed by five per centum of the legal voters or by the legislature as other bills are enacted. The ratio and per centum of legal voters shall be based upon the total number of

In Florida one-fourth of the registered voters of any county may call an election by the initiative within the county on the subject of prohibition. (Revised Statutes of Florida, 1892, p. 239). In Georgia, onetenth of the voters qualified to vote for the members of the general assembly in any county in the state may invoke the initiative. (Georgia Code, 1895, sec. 1514, et seq.) Similar provisions are contained in the statutes of Minnesota, the Code of Mississippi, the Revised Statutes of Missouri,10 the Montana Code," the Code of Virginia, the statutes of Wisconsin,13 and the law of New Jersey.14

12

5. The Initiative and Referendum in the Light of the Constitution.-In some of the early cases there may be found some expression of opinion by the courts, (mostly dictum), to the effect that direct legislation by the people is impracticable, and repugnant to the principles of a representative government under the federal constitution. These cases were decided when the principle of the initiative and referendum was comparatively new in this country. Possibly the leading example of this class. of decisions is the product of the supreme court of the state of Pennsylvania. It was there held in Parker v. Commonwealth,15 in 1847, that, "If the two houses can divest themselves of the office of lawmakers, and devolve it upon the body of the people, what security have we against the passage of laws, perhaps well meant, but likely to be glaringly wrong, because inconsiderately adopted? and what check is left upon hasty and ill-advised zeal, open to be influenced and misguided by interested, cunning, or blind fanaticism? If the practice be sanctioned, there must follow a train of

point of their progress, must end in the final overthrow of the constitution. Every case of doubtful propriety will be referred to the result of a ballot; and acts of assembly, subject to the popular vote, will be yielded to unthinking clamor or partisan importunity, by faithless legislators anxious to escape the responsibility of their position." The Delaware court, in the case of Rice v. Foster declared that, "Wherever the power of making laws, which is the supreme power in a state, has been exercised directly by the people under any system of polity, and not by representation, civil liberty has been overthrown. Popular rights and universal suffrage, the favorite theme of every demagogue, afford, without constitutional control or a restraining power, no security to the rights of individuals, or to the permanent peace and safety of society. In every government founded on popular will, the people, although intending to do right, are the subject of impulse and passion; and have been betrayed into acts of folly, rashness and enormity, by the flattery, deception and influence of demagogues."

17

The Pennsylvania case, supra, was overruled by the court which gave it birth," and the supreme court of Illinois pointed out what it conceived to be the error of both that and the Delaware case, supra, in People v. Reynolds.18 The views of the Illinois court respecting the Pennsylvania and Delaware cases were afterwards approved by the supreme court of California, in the case of Upham v. Supervisors of Sutter County.19

New York's court of last resort, as also her intermediate court, have expressed their views upon some phases of the underlying principles of the initiative and referendum. In the case of Thorne v. Cramer,20 the supreme court said: "The doctrine that no harm can result from allowing the people to exercise, directly, the law

making power, is more plausible than sound. If it were a legitimate subject for investigation at this time, we think it might be easily shown that some of the worst evils necessarily flow from such violation of the fundamental law. The constitution has wisely deposited the legislative power in the hands of a limited number of chosen men. This is done, partly, because of the impracticability of having laws passed in a mass assemblage of the people; and, partly, because it is supposed that the chosen representatives will be better qualified for the duty than a considerable portion of the electors. It is hardly necessary to say that many voters are not in all respects qualified to become governors or legislators. They may have discretion enough to select suitable men for their officers; but if they were put directly to the business of passing laws themselves, they would be quite out of their element." In another case, decided by New York's court of last resort, it was held that, "If this mode of legislation is permitted to become general, it will soon bring to a close the whole system of representative government which has been so justly our pride. The legislature will become an irresponsible body, too timid to assume the responsibility of lawgivers, and with just wisdom enough to devise subtle schemes of imposture to mislead the people. All the checks against improvident legislation will be swept away; and the character of the constitution will be radically changed."21

In an early Michigan case it was said by the supreme court that, "Public opinion will prevail; but it will be enlightened, deliberate and organically expressed public opinion. It is this opinion alone which the constitution designed should govern. Such a grant secures deliberation and responsibility in legislation, and affords protection against the despotism of official rulers on the one. hand, and of irresponsible numerical majorities on the other."22 In Iowa, the su

preme court said: "The people have no power in their primary and individual capacity to make laws. They do this by their representatives."23

The recent decisions of the courts bearing directly or indirectly on the subject of the initiative and referendum hold that the principle involved is entirely agreeable to a republican form of government; and so far as our investigation has extended, there is no decision to the contrary. Some of the wisest publicists of the age approve this tendency towards a direct form of legislation which is manifesting itself in modern times.24

In 1901, an amendment to the constitution of the state of Colorado was adopted, creat

ing the city and county of Denver. One of the provisions of the amendment is that the city council shall, upon the request of five per cent of certain qualified electors, submit any amendment to the charter,

"or any measure requested," to the electors of such city and county; and "the people of the city and county of Denver are vested with and they shall always have the exclusive power in the making, altering, revising, or amending their charter. * The citizens of the city and county of Denver shall have exclusive power to amend their charter or to adopt a new charter, or to adopt any measure as herein provided." The Supreme Court of Colorado said that this amendment was to be upheld, "in view of its express purpose to secure to the people of Denver absolute freedom from legislative interference in matters of local concern; and so considered and interpreted, we find nothing in it subversive of the state government, or repugnant to the constitution of the United States.'

1925

In a case coming before the Minnesota

(23) State v. Beneke, 9 Iowa, 203. (24) But see the able contention to the contrary by Hon. T. E. Sherwood, former justice supreme Court of Missouri, is 56 Cent. L. J. 247. Pac. Colo. 369, 74 See also State v. O'Connor, 81

(25) People v. Sours, 31 Rep. 167, 172.

Minn. 79, 83 N. W. 498; State v. District Court,

90 Minn. 457, 97 N. W. 132.