'■''''"iiiii»iii]i.;ii!i^ 
 
 mi 
 
 1 11 1 
 
 WiiT \ 
 
 mm' 
 

 BOUGHT WITH THE INCOME 
 FROM THE 
 
 SAGE ENDOWMENT FUND 
 
 THE GIFT OF 
 
 1S91 
 

 DATE DUE 
 
 ! 
 
 BflMijJil'' 
 
 atfBRS^ 
 
 
 
 
 
 
 
 
 
 ' 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 1 
 
 
 
 
 1 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 GAVLOHD 
 
 
 
 PNINTCOIHU-t.A. 
 
 JF49Z.U6^6r2 191?"" '-"'"'^ 
 
 The referendum in America 
 
 olin 
 
 3 1924 030 487 205 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924030487205 
 
THE 
 REFERENDUM IN AMERICA 
 
THE 
 
 REFERENDUM IN AMERICA 
 
 TOGETHER 
 
 WITH SOME CHAPTERS ON THE INITIATIVE AND 
 THE RECALL 
 
 BY 
 
 ELLIS PAXSON OBERHOLTZER, Ph.D. 
 
 Author of 
 
 *'Law Making by Popular Vote," "The Relations Between the Government and the 
 Newspaper Press in the German Empire," Etc. 
 
 NEW EDITION, WITH SUPPLEMENT COVERING THE 
 YEARS FROM I90O TO 1911 
 
 NEW YORK 
 
 CHARLES SCRIBNER'S SONS 
 
 igii 
 
 V- 
 
Copyright, 1900, 191 1, by 
 Ellis Paxson Obeeholtzer 
 
PREFACE 
 
 The names, the initiative and the referendum, have been 
 known, of course, to a few students of government in this 
 country and England for many years. It is, however, within 
 only a very short time that these terms have conveyed a 
 meaning even to otherwise intelligent and well informed 
 men. The governments of the Swiss cantons were little un- 
 derstood by foreigners and it was not until the system of re- 
 ferring laws to popular vote was introduced into the practice 
 of the Confederation that the subject began to claim anything 
 like general consideration in the English speaking world. 
 As for myself, I cannot remember that very much that was 
 definite was known of this interesting democratic institution 
 prior to the appearance of a popularly written work on the 
 Swiss Confederation in 1889 by Sir Francis O. Adams, long 
 the British Minister at Berne, and Mr. C. D. Cunningham. 
 This book started discussion in this country, and it soon came 
 to be recognized that law-making by the people was also no 
 strange thing in the United States. Mr. James Bryce re- 
 ferred to the subject in a chapter in " The American Com- 
 monwealth " and during the ten years past this feature of the 
 Swiss and American political systems has become familiar 
 to a constantly widening circle of Americans. 
 
 Our own experience with the referendum was brought to 
 the notice of readers in university circles by the publication 
 in 1891 of my essay on " Law Making by Popular Vote," by 
 the American Academy of Political and Social Science, which 
 was followed in 1893 by a somewhat more detailed treatment 
 of the subject in a Monograph on the Referendum, included 
 in the publications of the University of Pennsylvania, Poli- 
 tical Economy and Public Law Series. These studies, though 
 
VI PREFACE 
 
 appealing necessarily to a rather narrow interest were so 
 kindly received by students of political institutions in this 
 country, England and France that it has encouraged me after 
 these seven years to return to the subject in the present work. 
 
 Although my earlier studies regarding the referendum 
 have furnished the frame for some of the chapters of the pres- 
 ent volume every sentence, I think, is new and many of the 
 facts are from sources which were then but barely tapped. I 
 cannot flatter myself with the hope that such a recital will 
 be interesting reading to every one, but I have made an effort 
 to keep it from being too dry and insipid to the general 
 taste. 
 
 In seven years very great advances have been made in the 
 development of the direct principle in law-making not only 
 in this but also in other lands. Mr. Bryce, Mr. W. E. H. 
 Lecky, Prof. A. V. Dicey, Mr. A. L. Lowell, Mr. E. L. God- 
 kin and many other writers on constitutional subjects have 
 carefully and attentively noted these manifestations in our 
 political life ; and indeed in all countries where representative 
 government has been tested and its weaknesses have been re- 
 vealed the system of law-making by direct popular vote has 
 come to claim a large share of public interest. 
 
 The question of introducing the referendum into Belgium 
 was seriously discussed during the recent constitutional con- 
 troversy which preceded and accompanied the revision of the 
 organic law of that kingdom. More recently it has engrossed 
 public attention in Australia in connection with the move- 
 ment to unite and federate the various Australian colonies. 
 
 Coincidently the subject has rapidly gained a place for it- 
 self in Socialist and Labor party platforms in Europe and 
 America. In the United States the demand that the people 
 should have a larger share in the making of the laws has 
 spread over a great area and through many strata of the 
 population. In most of the Western States the referendum 
 has been taken up with zeal by the advocates of radical 
 social reforms in the belief that it is only the representative 
 system which stands between them and the realization of 
 
PREFACE vii 
 
 their ideals. Seeing the light first in the political program 
 of the " Farmers' Alliance " the referendum made its way 
 into the platforms of the so-called " Peoples' Party ", which 
 polled a very large popular vote until its principles, the 
 referendum with the rest, were transferred almost bodily to 
 the platforms of the Democratic party. Not a few societies 
 and leagues exist for the purpose of advancing this reform, 
 in the East as well as in the West, and there are not many 
 parts of the country where the referendum is now a strange 
 name even to the common man. That the education of the 
 people respecting such a subject is, in a way, a gain in a 
 democracy it is not possible to doubt, and it leads one to hope 
 that a question so vitally affecting our constitutional system 
 may be still more deeply examined into so that a true idea 
 may be secured as to the worth of the referendum in contrast 
 with the older representative type of government which is 
 the heritage of the Anglo-Saxon race. If, in this work, I shall 
 succeed in doing ever so little to make the issue clearer in 
 the minds of those to whom the book may come, I shall feel 
 it an abundant recompense for my somewhat tedious labors 
 among the law books of the American States. 
 
 It should be explained that the first two chapters of this 
 work are the result of a study undertaken long ago in an- 
 other connection when I had hoped that the engagements 
 of life would permit me to complete a constitutional history 
 of the State of Pennsylvania, in the preparation of which 
 I had made more than a beginning. I think, however, that 
 it can not be wholly inappropriate to incorporate these chap- 
 ters in this volume since they illustrate some phases of 
 popular government in America of which we all have need of 
 being occasionally reminded. These initial chapters will 
 serve, I hope, as an historical background for those which 
 follow, and will tend, perhaps, to a better understanding of 
 some developments in the political experience of the United 
 States of a later time. Lest in these chapters I should be 
 accused of partisanship against Dr. Franklin and in favor of 
 John Adams, which is a fate that has been met by not a few 
 
viii PREFACE 
 
 writers before me, I wish in advance to disclaim any such 
 intention of prejudice. The student who looks for his sources 
 in regard to this subject will find many of the most valuable 
 of them in John Adams' " Works ", and Mr. Adams' theories 
 have found their justification in the course of later events 
 while Dr. Franklin's were discredited long ago. There is 
 no desire on the part of this author to take away anything 
 from Franklin's glory in any direction or to make his figure 
 appear in any other than an historically correct light. The 
 historian has accorded him a high place among his compeers 
 and my only aim here has been to investigate the course of his 
 life as it bears upon political science, in which respect he was, 
 I think, a mistaken adviser of his fellow men. 
 
 I wish sincerely to thank my preceptors and friends at the 
 University of Pennsylvania, under whose inspiration this 
 work was begun, while I was still a student in that institu- 
 tion, for their interest and advice during the progress of 
 these studies. I desire particularly to name Prof. Edmund 
 J. James, the President of the American Academy of Political 
 and Social Science, earlier of the University of Pennsylvania, 
 but now of the University of Chicago ; Prof. Simon N. Pat- 
 ten, of the University of Pennsylvania, and Prof. John Bach 
 McMaster, of the University of Pennsylvania. 
 
 I wish, too, to acknowledge the great courtesy of the of- 
 ficers of the Pennsylvania Historical Society and of the Law 
 Association of Philadelphia, whose valuable collections I 
 have constantly referred to while engaged in the preparation 
 
 of these chapters. 
 
 ELLIS P. OBERHOLTZER. 
 
 Philadelphia^ August, 1900. 
 
PREFACE TO REVISED EDITION 
 
 In a new edition of tiiis work the author would have pre- 
 ferred a complete revision of its pages. For practical rea- 
 sons another course has been chosen, and the new material 
 has been brought together at the end of the book, where it 
 will probably be quite as, if not more, available for use. 
 A chapter has been added concerning the "Recall," a third 
 popular right which is now inseparably joined with the ini- 
 tiative and the referendum in the minds of those who have 
 lately pressed forward to attack the representative system 
 through the machinery of direct government. If the re- 
 vision had been complete it is quite possible that the first 
 two chapters of the work concerning democracy in Peim- 
 sylvania in the eighteenth century would have been elim- 
 inated. I am not sorry to have these included again. They 
 teach lessons which need to be learned and re-learned. The 
 value of this piece of American experience is probably greater 
 now, in the light of recent happenings in the development 
 of government in the West, than it was ten years ago. It 
 is an impressive proof of the danger lurking in movements 
 which run counter to inborn traits and native sentiments. 
 
 This work has often been quoted as favorable to a sys-. 
 tem of direct government in America. It is the author's 
 wish to correct any misapprehension which may have ex- 
 isted on this point hitherto. It will probably be allowed 
 that he has made himself clear in the supplementary chap- 
 ters concerning the development of the initiative and the 
 referendum in their general form, which has taken place 
 entirely in the last decade. The scientific treatment of an 
 
X PREFACE TO REVISED EDITION 
 
 interesting American political institution is now supple- 
 mented by some information in regard to an institution 
 which several Western States have imported from Switzer- 
 land. I wish to renew my expressions of obligation to the 
 Law Association of Philadelphia for the free access to and 
 use of their valuable library. 
 
 E. P. O. 
 Philadelphia, August, 1911. 
 
CONTENTS 
 
 CHAPTER I 
 
 PAGE 
 
 The Interplay of French and American Thought in the Eighteenth 
 
 Century i 
 
 CHAPTER II 
 The Downfall of Franklin's Government in Pennsylvania 45 
 
 CHAPTER III 
 
 The Rise of the Constitutional Convention and the Decline of the 
 
 Legislature 69 
 
 CHAPTER IV 
 
 The Referendum on Entire Constitutions 99 
 
 CHAPTER V 
 
 The Amendment of Constitutions by Conventions 128 
 
 CHAPTER VI 
 
 The Amendment of Constitutions by the Legislative Method 142 
 
 CHAPTER VII 
 
 The Referendum on Statutes of General Operation within the State 
 when the Vote of the People is Authorized by the State Con- 
 stitution 173 
 
 CHAPTER VIII 
 
 The Referendum on Statutes of General Operation within the State 
 when no Authorization for the Vote is Contained in the Con- 
 stitution 200 
 
 CHAPTER IX 
 
 The Local Referendum — Bills Affecting the Scope and Form of 
 
 the Local Governments 218 
 
 xi 
 
xii CONTENTS 
 
 CHAPTER X 
 
 PAGE 
 
 The Local Referendum — Loan Bills and Financial Proposals. . . . 241 
 
 CHAPTER XI 
 
 The Local Referendum — Loan Bills and Financial Proposals 
 
 (Continued) 279 
 
 CHAPTER XH 
 
 The Local Referendum — Local Option Liquor Laws and Vexed 
 Questions 286 
 
 CHAPTER XIII 
 The Local Referendum — Is It Constitutional? 311 
 
 CHAPTER XIV 
 The Referendum on City Charters 335 
 
 CHAPTER XV 
 The Initiative in America 368 
 
 SUPPLEMENTARY CHAPTERS 
 
 CHAPTER XVI 
 The Initiative and the Referendum in the States 391 
 
 CHAPTER XVII 
 
 The Local ReferendiAi; Home Rule for Cities; Commission Gov- 
 ernment, etc 427 
 
 CHAPTER XVIII 
 The Recall 454 
 
 CHAPTER XIX 
 
 The Referendum vs. the Representative System 471 
 
 INDEX 515 
 
THE 
 REFERENDUM IN AMERICA 
 
The Referendum in America 
 
 CHAPTER I 
 
 THE INTERPLAY OF FRENCH AND AMERICAN THOUGHT IN 
 THE EIGHTEENTH CENTURY 
 
 The leaven of political unrest which pervaded the popula- 
 tions of both Europe and America in the latter half of the 
 eighteenth century, was responsible for a number of peculiar 
 results. In all the forms, suggested and actual, at this time, 
 however, popular government does not seem to have passed 
 through the phase of allowing the people to vote directly by 
 yeas and nays upon their laws, or even upon their constitu- 
 tions, though we find evidences of this in respect of the latter 
 case, in two of the New England States, and somewhat later 
 in France in the Revolutionary Constitutions ^ of that fate- 
 ful period when institutions and traditions in that country 
 were being swept from their moorings in a storm of revolt 
 from which the whole of Europe barely made its escape. 
 
 The influence which J. J. Rousseau exerted upon the 
 progress of political events in America, has lately been made 
 the subject of an interesting examination by Prof. Jellinek, 
 of Heidelberg, and the results arrived at have the effect of 
 reversing some pretty well-grounded opinions on this point.^ 
 
 He attempts to show that the tendency, at this time, was 
 
 ^Adoption and Amendment of Constitutions in Europe and America, 
 by Chas. Borgeaud, Hazen's translation, New York, 1895, pp. 199, 200; 
 Lecky, Democracy and Liberty, 1896, Vol. I, p. 277. 
 
 " See Jellinek, Die Erklarung der Menschen-und Buergerrechte, Leip- 
 zig, 189s. 
 
2 THE REFERENDUM IN AMERICA 
 
 from America to France, rather than in the other direction. 
 In so far as the Bills of Rights in the various State Constitu- 
 tions' are concerned, beginning with Virginia's, the case is 
 probably well made out, and it would appear, quite a long 
 time ago. There is not a particle of doubt that the French 
 Declaration of the Rights of Man was helped to its concrete 
 form by the American Declarations of Rights, but it would 
 be a serious mistake were we altogether to disregard Rous- 
 seau's influence in this connection. Certainly the play of 
 ideas of one country upon those of the other was at least 
 mutual, and knowing this, as we do, it becomes an interesting 
 field of historical study. It is a period of the highest impor- 
 tance in the cdnstitutional experience of America and France. 
 
 In the Contrat Social, Rousseau brought to expression sen- 
 timents that millions of men were beginning to feel. As the 
 philosopher of equality, of a social system in which age, sex, 
 property, knowledge, were of little weight in comparison with 
 the demands of nature, fantastically worked out and cata- 
 logued in an o priori way, he was the spokesman for great 
 numbers of people. " Taking men such as they are, and laws 
 such as they may be made,"* Rousseau planned his scheme 
 of government, and yet to a degree beyond any other writer 
 of his time, he it was, perhaps, who took men not as they 
 were, but as they were not. 
 
 In the state in which the system of the Naturrecht was ex- 
 emplified in its perfect form, the people were to assemble and 
 sanction their own laws. Jean Jacques gives us his views on 
 this point in terms not to be mistaken •.'^ " The sovereign 
 having no other force but the legislative power, acts only by 
 the laws ; and the laws being only the authentic act of the 
 general will (volontS generale), the sovereign can never act 
 but when the people are assembled. Some will perhaps think 
 that the idea of the people assembling is a mere chimera but 
 if it is so now, it was not so two thousand years ago ; and I 
 should be glad to know whether men have changed in their 
 
 ° Eorgeaud, op. cit., pp. 15 et seq. ^ Op. cit., p. 156. 
 
 * Oeuvres, Geneva, 1782, Tome II, p. 3. 
 
FRENCH AND AMERICAN THOUGHT 3 
 
 nature." He tells us that the people of Rome assembled in 
 the Capitol, and here exercised their sovereign authority, and 
 that at remoter times the Greeks, the Macedonians and the 
 ancient Franks held councils of the people. He seems not 
 to have known of the survival of the folk-mote in some of 
 the Swiss cantons, where the Lands gemeinde was still a pre- 
 vailing institution, as it is to-day, nor of the town-meeting in 
 the New England Colonies, his philosophy needing little sup- 
 port drawn from the world about him. 
 
 Representative government with him was an evil, neces- 
 sary sometimes no doubt, but only to be tolerated, — never to 
 be cordially admired. Legislatures were a mark of political 
 degeneracy. They resulted from a declination of patriotism, 
 in this sense — that the people had become unwilling or indis- 
 posed longer to attend to their own affairs. There was bred 
 an activity of private interest, the people refusing to give of 
 their time to society, and their direct participation in law 
 making was made difiEcult also by the immense extent of 
 dominions, a tendency to be deplored since the government 
 thus became undemocratic. The representative system was 
 brought on by the abuse of government generally; it was 
 not the outgrowth or expression of the natural political con- 
 dition.* Deputies were not the representatives of the people. 
 They could only be regarded as their commissioners. They 
 were not qualified to conclude upon anything definitively. 
 " No act of theirs," said Jean Jacques, " can be a law unless 
 it has been ratified by the people in person ; and without that 
 ratification nothing is a law."' 
 
 One cannot conceive of Rousseau being other than a rather 
 passionate advocate of the system of submitting laws to pop- 
 ular vote, were he with us to-day, though without a ballot sys- 
 tem, which has been a development of more recent years, the 
 possibility of a plebiscite that could serve as a substitute for a 
 council of the people does not seem to have suggested itself 
 to the French philosopher. He did not hesitate to declare 
 that the happiest people in the world, in his own view, were 
 
 'O/J. cit., p. 165. ''Ibid. 
 
4 THE REFERENDUM IN AMERICA 
 
 " a company of peasants sitting under the shade of an oak ", 
 conducting the affairs of the nation " with a degree of wis- 
 dom and equity that do honor to human nature ".^ To say 
 that a writing of this ki;id passed without its influence in 
 America in the years prior to and during the Revolution, is, 
 it would appear, a grave historical error. In America as 
 well as in Europe, these theories (it may be admitted that 
 they were not Rousseau's in particular, he being but the 
 writer who expressed them earliest and most pleasingly) soon 
 struck deep root. The Contrat Social was well known to 
 the Americans, or at any rate, to the pamphleteers and news- 
 paper writers among them, who were busily engaged with the 
 subject of government, arousing a popular interest in this 
 branch of knowledge, which would do great credit to the 
 American democracy in this later time. 
 
 Although British tendencies in respect of government were 
 strong in the colonies, there was a conviction among the 
 masses everywhere that men were little better for their 
 wealth, their birth or even for their training and education. 
 These democratic sentiments were held more obstinately in 
 the frontier districts than in the large cities, and more 
 strongly too in parts where the holdings in land were small, 
 than where they were of larger size. The idea was spread 
 far afield, and the belief took an intenser form as the breach 
 between England and America widened, and the seeds of dis- 
 cord were sown, men aligning themselves in increasing num- 
 bers in favor of resistance, independence and the war. If 
 inequality were English, then it was the more unsuitable for 
 the American patriots. It must be discarded. A new po- 
 litical scheme must be sought out. There must be a turning 
 toward France where was held a more liberal philosophy, 
 which would afford the people sympathy in their struggles 
 accompanied by an affiliation in sentiment, which was the 
 more to be cultivated a little later, when French volunteers 
 enlisted in the Continental army, and a political alliance be- 
 tween the nations was definitively established. 
 
 ' Op. cit., pp. 179-80. 
 
FRENCH AND AMERICAN THOUGHT 5 
 
 It was a question which the leaders of the Revolution in 
 America had early to discuss, — with the abolition of the colo- 
 nial governments what should come next ? What should fol- 
 low the old political order ? Should independence from Eng- 
 land, the declared equality of men which we find in that fa- 
 mous writing bearing the date of July 4, 1776, and in the 
 Bills of Rights of the various State Constitutions, be followed 
 by government most like or most divergent from that to 
 which the colonists had been earlier accustomed ? It was not 
 unnatural for the man of simplest mind, of the least foresight, 
 to declare that what would be in the highest sense satisfactory 
 to the Americans was a government in many essential points 
 quite different from that which they had had hitherto. 
 
 There were at least three propositions in respect of the new 
 governments. First, the very conservative view which made 
 itself felt in every part of the country, but which was most 
 influential in the South.' This faction would have made the 
 States monarchies or aristocracies, with magistrates serving 
 for life. Second, the moderate republican view of which John 
 Adams was the ablest and most distinguished representative ; 
 and third, the ultra-democratic view, which got its chief sup- 
 port from France, and of which Benjamin Franklin was a 
 friend and defender. 
 
 Dr. Franklin, who had been in London in the interest of 
 the colonies, met there a young Englishman named Thomas 
 Paine. He was a writer, it was thought, of some ability, 
 and although not professing to be this when he got to Amer- 
 ica, but instead, one who had just found a voice, as if in- 
 spired, in this great contest against British power and ag- 
 gression now about to ensue, he did not disappoint his patron, 
 Dr. Franklin. "In the course of this winter" (1775-76), 
 John Adams writes in his autobiography,^" " appeared a phe- 
 nomenon in Philadelphia, a disastrous meteor, I mean 
 Thomas Paine ". He almost immediately published a pam- 
 phlet which he called Common Sense, and he continued to 
 
 • Cf. John Adams' Works, Vol. IV, p. 201. 
 " Works, Vol. II, p. 507. 
 
6 THE REFERENDUM IN AMERICA 
 
 write under this name throughout the war, being employed 
 for a time by Congress, winning some admirers, but not a 
 few acquaintances, who regarded him with no more respect 
 than did Mr. Adams. He afterwards returned to Europe, of- 
 fered his services to the Frencli democrats,'^ replied to 
 Burke's aspersions against the French nation in respect of 
 the Revolution in a book that he called the Rights of Man, 
 was elected a " citoyen de France ", and was finally chosen 
 to the Convention where he sat among the members who 
 took the nickname of " the Mountain "." He was an interna- 
 tional firebrand in very truth, a kind of American Mirabeau 
 without the power of declamation, who, however, wrote Eng- 
 lish savagely and unscrupulously, and somehow met with 
 many attentive readers. His Common Sense passed through 
 several editions, and appearing as it did when the people 
 were undecided whether or not to sever their relations with 
 England, not knowing, if they should do so, what would 
 follow, his pamphlet won a degree of popularity beyond any 
 intrinsic worth, so far as we are able to perceive upon a peru- 
 sal of it at the present day. 
 
 This pamphlet was an appeal " addressed to the inhabitants 
 of America ". The author revealed himself a revolutionist 
 in every part and member. " We have it in our power ", he 
 said, " to begin the world over again. A situation similar to 
 the present hath not happened since the days of Noah until 
 now." ^* He traced the origins of government in a manner 
 clearly pointing to his familiarity with the Contrat Social, 
 since Rousseau's happy peasants under the oak were not dif- 
 
 " Cf. Letter to the authors of the Republican which was published by 
 Condorcet, in Political Writings of Thomas Paine, Albany, 1794. 
 
 " Cf. Borgeaud, op. cit., p. 206. 
 
 " Political Writings — Common Sense, p. 58 ; cf. Burke's words ad- 
 dressed to the revolutionists in France : " You chose to act as if you 
 had never been moulded into civil society, and had everything to begin 
 anew. You began ill because you began by despising everythin<r that 
 belonged to you. You set up your trade without a capital. If the last 
 generations of your country appeared without much lustre in your eyes 
 you might have passed them by, and derived your claim from a more 
 early race of ancestors. Under a pious predilection for those ancestors 
 
FRENCH AND AMERICAN THOUGHT '7 
 
 ferent from those Paine called to mind, when he wrote" that 
 when the people of a community were ready for government 
 " some convenient tree will afford them a state house under 
 the branches of which the whole colony may assemble to de- 
 liberate on public matters ". And he continued : " In this 
 first parliament every man by natural right will have a seat." 
 As the colony increased in size, it would be necessary for 
 them to agree together " to leave the legislative part to be 
 managed by a select number chosen from the whole body, 
 who are supposed to have the same concerns at stake, which 
 those have who appointed them, and who will act in the same 
 manner as the whole body would act were they present ".^'' 
 He indicated that frequent elections would be necessary, and 
 that the system of government should be " simple ". By this 
 he meant that he should favor an assembly of a single 
 chamber, which he, with his friend Franklin, and the other 
 leaders of the Franco-Pennsylvanian Democracy would soon 
 introduce into the fundamental law of the State of Pennsyl- 
 vania. He found the weakness of the English Constitution 
 to be its complexity, while Montesquieu and John Adams re- 
 garded this thing as the chief source of its strength. The 
 three branches of government, the executive, legislative and 
 judicial, checking each other, in their result he declared to be 
 contradictions, and the whole system of balances considered 
 in the light of his philosophy, was reduced to " a mere ab- 
 surdity ". It is true that Adams himself expresses the opin- 
 ion that the influence of Paine's pamphlet was not so great 
 as many had considered it;^° but it was doubtless difficult 
 
 your imagination would have realized in them a standard of virtue and 
 wisdom beyond the vulgar practice of the hour's, and you would have 
 risen with the example to whose imitation you aspired. Respecting your 
 forefathers, you would have been taught to respect yourselves. You 
 would not have chosen to consider the French as a people of yesterday, 
 as a nation of low-born servile wretches, until the emancipating year 
 of 1789". — Works, London, 1815, Vol. V, pp. 82-83. 
 
 " Common Sense, p. 7 ; cf. Plain Truth, the pamphlet written in rep'y 
 to Common Sense, in defence of the English Constitution with its sys- 
 tems of checks and balances, as expounded by Montesquieu. 
 
 "Common Sense, p. 7. ^"Adams' Works, Vol. II, p. 509. 
 
8 THE REFERENDUM IN AMERICA 
 
 then, as it would be to-day, to determine how great or little 
 may be the effect of such a publication at an opportune mo- 
 ment. Its publication at any rate, alarmed the Massachusetts 
 leader, as he is free to admit in his review of this period of 
 his life.^' He took immediate steps to counteract the hurt- 
 ful tendency, as he thought it to be, and we shall now see 
 with what success, and as a result of how much pains and 
 effort. 
 
 John Adams while attending the sessions of the Conti- 
 nental Congress, conferred with the members from the other 
 colonies whom he met there regarding the various problems 
 of government which would arise in case of a severance of 
 relations with Great Britain, and he soon came to be regarded 
 as a leader in American constitutional discussion. Richard 
 Henry Lee, a delegate from Virginia, upon whose support 
 in Congress Mr. Adams, as a rule, could certainly rely, was 
 so much impressed by the views of his Massachusetts col- 
 league, that he asked the latter to reduce his plan to writing, 
 which he did in the form of a letter addressed to Mr. Lee 
 from Philadelphia, under date of November 15, 1775.^* 
 " Taking nature and experience for my guide "," he said, " I 
 have made the following sketch " ; whereupon he proceeded 
 to state with great lucidity that " a legislative, an executive 
 and a judicial power comprehend the whole of what is meant 
 and understood by government ". " It is balancing each of 
 these three powers against the other two," he added, " that 
 the efforts in human nature towards tyranny can alone be 
 
 "Mr. Adams says that he considered Paine's plan for an assembly 
 of one chamber, "as flowing from simple ignorance and a mere desire 
 to please the Democratic party in Philadelphia, at whose head were 
 Mr. Matlack, Mr. Cannon and Dr. Young. I regretted, however, to see 
 so foolish a plan recommended to the people of the United States, who 
 were waiting only for the countenance of Congress to institute ' their 
 State governments. I dreaded the effect so popular a pamphlet might 
 have among the people, and determined to do all in my power to 
 counteract the effect of it ". — Works, Vol. II, pp. 507-8. 
 
 "Works, Vol. IV, pp. 185-187. 
 
 " Cf. Rousseau's introduction to his Contrat Social alluded to in this 
 chapter, ante, p. 2. 
 
FRENCH AND AMERICAN THOUGHT 9 
 
 checked and restrained, and any degree of freedom preserved 
 in the constitution." 
 
 The legislature, he said, should consist of a " house of 
 commons ", which would represent the people, and a " coun- 
 cil " elected by the house, either from its own members or the 
 citizens at large, to consist of twelve, sixteen, twenty-four or 
 twenty-eight persons. Each chamber should have a negative 
 on the bills passed by the other. The executive power should 
 be exercised by a governor chosen annually, triennially or 
 septennially, as might be preferred, by joint ballot of the 
 house of commons and the council. The governor should 
 possess the power of vetoing bills which the legislature had 
 passed. He should appoint civil and military officers, with 
 the advice and consent of the council, and have command of 
 the army. The judicial power was to be exercised by judges 
 appointed by the governor, not elected by the people. 
 
 Mr. Adams' plan in the main, was for a government such 
 as has to-day, with slight modification, everywhere come to 
 be the prevailing form in this country. Virginia at that time 
 was perhaps the most important colony among the thirteen, 
 and naturally much concern was felt as to the result of the 
 convention which was soon to meet there to arrange for a 
 transition from a royal, that is the colonial, to an independent 
 republican government. Adams, in response to a request for 
 a fuller statement of his views on this subject, wrote his 
 " Thoughts on Government ", also in the form of a letter to 
 a Virginian, which was published early in 1776,^" and was 
 widely circulated in Virginia, exerting a very considerable 
 influence upon the members of the convention. ^^ There 
 was in Virginia among most of the " opulent families " of the 
 
 " Works, Vol. IV, pp. 193 et seq. 
 
 " Works, Vol. I, p. 208. See also Letter of Patrick Henry to John 
 Adams, May 20, 1776, Works, Vol. IV, p. 20T. Adams' pamphlet led to 
 the publication of another by an unknown author, which was entitled 
 " An address to the convention of the colony and ancient Dominion of 
 Virginia on the subject of government in general, and recommending 
 a particular form to their consideration by a native of the colony". 
 This was designed to counteract the popular influence of Adams' 
 
lo THE REFERENDUM IN AMERICA 
 
 State, " a strong bias to aristocracy " P Adams, in the 
 " Thoughts on Government ", which he offered to the Vir- 
 ginians, advanced his opinion, against that of the " meteor " 
 Paine, that " the happiness of society is the end of govern- 
 ment ". Paine, following Rousseau, had said that " govern- 
 ment even in its best state is a necessary evil ".^^ " There is 
 no good government ", Mr. Adams continued, " but what is 
 republican ", and he pointed to the writings of Sidney, Har- 
 rington, Locke, Nedham, Neville, Burnet and Hoadly, thus 
 indicating the breadth of his reading upon political subjects. 
 The " only valuable part of the British Constitution " at the 
 time he wrote was, he declared, republican. " In a large so- 
 ciety inhabiting an extensive country, it is impossible that the 
 whole should assemble to make laws. The first necessary 
 step then, is to depute power from the many to a few of the 
 most wise and good ", and here we have a well-summarized 
 statement of the representative principle, which he desired 
 should not be departed from. 
 
 He continued his inquiry regarding the proper means of 
 choosing these representatives, declaring himself specifically 
 opposed to Paine's legislative assembly of a single chamber^* 
 to which he stated his objections under six heads, among 
 these being the following, — that such a body was liable to all 
 the "vices, follies and frailties of an individual", being hasty, 
 passionate, enthusiastic, prejudiced as the whim might seize 
 it ; that it was apt to be avaricious, exempting itself from bur- 
 dens, and putting them on others ; and that it was ambitious, 
 and would vote to make itself perpetual. He again aimed to 
 impress it upon his readers, how essential it was to keep the 
 
 writing. For this document see Force's Archives, Fourth Series, Vol. 
 VI, cc. 748-7S4- 
 
 '* Patrick Henry's letter to John Adams, Adams' Works, Vol. IV 
 
 p. 201. 
 
 " Polit. Writings of T. Paine, in pamphlet Common Sense, p. i. 
 
 '^ Works. Vol. Ill, p. 22. Adams writes in his Autobiography about 
 this time : " I knew that every one of my friends and all those who were 
 most zealous for assuming governments, had, at that time, no idea of 
 any other government but a contemptible legislature in one assembly 
 with committees for executive, magistrates and judges." 
 
FRENCH AND AMERICAN THOUGHT " 
 
 legislative, executive and judicial departments of the govern- 
 ment properly separated, and repeated his suggestions re- 
 specting the constitution of these various departments, con- 
 tained in his letter of a few months before to Mr. Lee. He 
 expressed his dissent, too, from the proposition for a frequent 
 rotation of officers which is an error that was soon committed 
 by the Philadelphia democrats in the framing of the first Con- 
 stitution of Pennsylvania and which later became one of the 
 subjects of strife in the bitter contest that ensued between the 
 Constitutionalists and Anti-Constitutionalists in that State. 
 
 But Adams, too, was quite as alert to check the royalists 
 and aristocrats, as the single-chamber democrats. On March 
 23, 1776, he wrote a letter to General Gates^^ in which he al- 
 luded to the problem confronting the Americans in a more 
 general way. " The difficulty ", he says in this communica- 
 tion, " lies in forming particular constitutions for particular 
 colonies, and a continental constitution for the whole. Each 
 colony should establish its own government, and then a 
 league should be formed between them all.^° This can be 
 done only on popular principles and axioms, which are so 
 abhorrent to the inclinations of the barons of the South, and 
 the proprietary interests in the Middle States, as well as to 
 that avarice of land, which has made on this continent so 
 many votaries to Mammon, that I sometimes dread the con- 
 sequences." The influence of Adams and his friends against 
 the " barons of the South " in so far as Virginia, the largest 
 of the southern colonies, was concerned, was efifectively im- 
 pressed upon the convention which framed the first Constitu- 
 tion of that State, and in Pennsylvania, a " Middle State " in 
 which the proprietary interests were so strong, they were not 
 these interests which Adams was to combat in the constitu- 
 tional discussions of the next few years. He was to be con- 
 
 " Works, Vol. I, pp. 207-8. 
 
 " This was done, the league being "organized under the Articles of 
 Confederation, of 1777, and although this was in accordance with 
 Adams' advice at this time, he later was among the first to perceive the 
 need of a stronger central government ; cf. Thoughts on Govt., Vol. IV, 
 p. 200. 
 
12 THE REFERENDUM IN AMERICA 
 
 fronted by the party which was too democratic, rather than 
 too aristocratic. The way was being prepared at Philadel- 
 phia for a constitution, which was the most extraordinary 
 ever adopted in America, and one of the most impractical 
 which men have ever been invited to live under in any part 
 of the world. 
 
 A little later, Mr. Adams embodied his views in respect of 
 a suitable government for the Americans, in a letter to John 
 Penn, with the hope, — and it was not a vain one, — of exert- 
 ing an influence in favor of the English form of government 
 in North Carolina, where, as in Virginia, a convention was 
 about to meet for the purpose of adopting a State Constitu- 
 tion.^^ His efforts in the same direction were also extended 
 into other colonies, with no doubtful result.^' 
 
 Concerning Mr. Adams' system of government for the new 
 American States, his grandson, Charles Francis Adams, pays 
 a just tribute to the man, when he writes : " It is very true 
 that the outline of the system thus recommended contains 
 the same features in the main, which are found in the colonial 
 charters of New England, and are in them, taken from the 
 constitutional forms of the mother country. Mr. Adams had 
 made them the study of his life, and fully believed that they 
 rested upon general principles of the highest possible value. 
 He had little of the purely scheming temper that has led some 
 of the noblest minds of the world to devise systems of their 
 own, ingenious, and sometimes imposing, but utterly want- 
 ing in practical adaptation to the feelings and habits of those 
 for whose use they were intended. He had studied Plato, 
 and Montesquieu, Milton, Locke and Harrington quite as 
 
 " Works, Vol. IV, p. 203. 
 
 ^ Works, Vol. I, p. 209. Chas. Francis Adams, in his " Life of John 
 Adams ", says : " His sentiments were so extensively diflFused as ma- 
 terially to guide the public mind in the construction of many of the 
 State Constitutions. The immediate effect was particularly visible 
 in those adopted by New York and North Carolina, the last of which 
 remained unchanged for sixty years, and at the time of its amendment 
 in 1836, was the only one left of the Constitutions adopted at the Revo- 
 lution." 
 
FRENCH AND AMERICAN THOUGHT 13 
 
 profitably to avoid their errors as to heed their counsels.'^ 
 * * * The people though attached by habit to the old 
 forms were very open to receive new impressions. Their 
 ideas upon government in general were not a little crude. 
 Mr. Adams did not permit himself to be led astray by any 
 of these temptations. Conservative by temperament and 
 education, he applied his mind to the task of saving whatever 
 experience had proved to be valuable in the British constitu- 
 tional forms. * * * 'Yhe skill with which this was done 
 may be best understood from the result, for it is undeniable 
 that the success of the constitutions adopted in the respective 
 States has proved proportionate to the degree of their ap- 
 proximation to the general features of his plan." ^' 
 
 In the meantime, Paine and those who entertained his opin- 
 ion that British models should be wholly departed from, who 
 were ready " to begin the world over again," and to build it 
 anew on other foundations, were actively making their propa- 
 ganda against Mr. Adams, and were achieving a degree of 
 success quite out of proportion to their due. This was par- 
 ticularly true in Pennsylvania, which from now on, through- 
 out the Revolution, and until the State constitutional conven- 
 tion met in 1790 and definitely made an end to all these singu- 
 lar notions, was the stronghold of the French party on this 
 continent. 
 
 Upon the loth day of May, 1776, a resolution was passed 
 by the Congress, authorizing the various colonies to insti- 
 tute at their option, new governments. The resolution, to 
 which Mr. Adams, by appointment of the Congress, drafted 
 a fitting preamble, was as follows : " That it be recom- 
 mended to the respective assemblies and conventions of the 
 United Colonies, where no government sufficient to the ex- 
 igencies of their affairs has been hitherto established, to 
 adopt such government as shall, in the opinion of the people, 
 best conduce to the happiness and safety of their constitu- 
 ents in particular, and America in general." 
 
 Already the Virginia Convention had met at Williams- 
 
 " IVorks, Vol. I, p. 209. 
 
14 THE REFERENDUM IN AMERICA 
 
 burgh, and in Pennsylvania where the differences between 
 the proprietary interests and the more popular interests had 
 been prolonged, and where the dissatisfaction of large sec- 
 tions of the people was so great, and the distrust for the aris- 
 tocratic colonial assembly so deeply rooted, steps were imme- 
 diately taken to establish a new government, as the Congress 
 had advised. There were at this time in the colony, two 
 bodies almost parallel in authority; — the Assembly and the 
 " County Committees ", organized by the citizens in 1774, to 
 arrange for appointing delegates to Congress, and to con- 
 fer with the Assembly rather gratuitously in respect of 
 questions of common gravity, so many of which were arising 
 constantly, by reason of England's attempts to coerce the 
 Americans. These committees, called at first " Committees 
 of Correspondence", came later to be known as "Committees 
 of Inspection and Observation ", a name more narrowly de- 
 scriptive of their specific duties and functions. The members 
 were elected by the people as were the members of the As- 
 sembly, though the bodies were extra-constitutional in every 
 sense, and without authority except in so far as this was de- 
 rived from legislation of the Continental Congress. 
 
 There was in the colony, so soon as the resolution of May 
 15. ^77^ had been passed, a dread lest the Assembly should 
 undertake to institute a government on its own account, al- 
 though the members of the proprietary party declared that 
 the present government was itself " sufficient to the exigen- 
 cies of their affairs " and that any new government, there- 
 fore, would be superfluous. To avert such a coup, the Phila- 
 delphia City Committee issued a call for a public meeting, to 
 be held in the " State House Yard", on May 20, 1776, which, 
 according to the newspapers of the time, was attended by sev- 
 eral thousand persons. It was agreed on this occasion that, 
 the Assembly being incompetent for the task of instituting a 
 new government, a " provincial Convention " should be 
 chosen by the people. In order to determine upon the meth- 
 ods to be adopted in selecting the members of this Conven- 
 tion, a general conference was called to meet in Philadelphia 
 
FRENCH AND AMERICAN THOUGHT iS 
 
 on June 18. The Philadelphia City Committee,, taking the in- 
 itiative in this matter, at once sent out letters which were de- 
 livered in many cases by its own members, or other deputed 
 representatives to the Committees in the various counties. 
 At this conference there were 108 duly accredited deputies 
 from the different Committees. The body proceeded at once 
 to perfect the arrangements for the provincial Convention, 
 which was to meet " for the express purpose of forming a 
 new government * * * on the authority of the people 
 only ". 
 
 The " associators ", or the militiamen, who, in many cases, 
 had been denied the suffrage heretofore, greatly to their dis- 
 satisfaction, were now all enfranchised ipso facto by reason 
 of their connection with the army, and all other persons who 
 should present their votes for members of the Convention, 
 were required to take an oath of fealty to America, as against 
 Great Britain. The number of members of the Convention 
 was fixed at ninety-six, or eight for the city and each county, 
 irrespective of differences in population or wealth. The elec- 
 tions were appointed for July 8, the entire movement being 
 hurried forward so precipitately as to prevent adequate dis- 
 cussion of the project, and the people at a distance from the 
 city were not even allowed an opportunity to express their 
 opinions in numbers at the polls. One week after the elec- 
 tions or on July 15, the Convention met at the State House 
 in Philadelphia, continuing in session by adjourmnents, till 
 the 28th day of the ensuing September. The personnel of 
 this body is a matter of some interest, in view of what it pro- 
 ceeded to do so soon as it had met. It was composed, of 
 course, of the committeemen or those in whom the latter had 
 full confidence, being an assembly, radical, perhaps, beyond 
 any which had gathered together before in the colonies. The 
 elections had been completely in the hands of the county 
 committees, and they had passed off without much excite- 
 ment or contest. The main test in the case of candidates at 
 this time was their loyalty to the cause of independence. Of 
 the ninety-six delegates, thirty-one had been members 
 
l6 THE REFERENDUM IN AMERICA 
 
 of the conference, which had met on June i8. Ten 
 had been members of the Convention of January, 1775, 
 and eight had sat in the Convention of July 15, i774- 
 There were few who had been members of the old proprietary 
 Assembly.^" Nearly all were frontiersmen, since the West- 
 ern counties which were being rapidly populated, each had 
 a representation in the Convention equal to Philadelphia city. 
 These delegates were for the most part farmers; some of 
 them millers, that is, proprietors of small grist mills, which 
 crushed and ground grain by water-power. The pioneer 
 farming class, imbued with ideas of a singularly democratic 
 kind, predominated in the councils of the Convention. Phil- 
 adelphia was naturally the center for such scholarship as ex- 
 isted at that day in the colony, and it was then the leading 
 American city, being the assembling place of the delegates 
 from the different colonies, which soon came to be States, the 
 first capital of the Republic. The city's advantage in this 
 respect was evidenced by the presence in the Convention, in 
 the Philadelphia delegation, of Benjamin Franklin, who was 
 at once chosen to be the President of the Convention ; David 
 Rittenhouse, James Cannon, a graduate of the University 
 of Edinburgh, and a tutor in the Academy of Philadelphia; 
 Owen Biddle, a member of the Philosophical Society and an 
 astronomer, and George Clymer. 
 
 If our records are trustworthy, there were only four law- 
 yers in the Convention, — George Ross, of Lancaster, who was 
 elected Vice-President of the Convention, and occupied the 
 
 '"' These facts regarding the membership of the convention are 
 gleaned from Dr. W. H. Egle's Biographical Sketches in Pennsylvania 
 Magazine, Vol. Ill, pp. 46 et seq. John Jacobs of Chester County had 
 sat in the Assembly continuously since 1762, and Benjamin Franklin 
 had of course been a burgess from the city for many years. Benjamin 
 Bartholomew had represented Chester County in the Assembly since 
 1772. George Ross had held a seat from Lancaster County since 1768. 
 John Wilkinson, of Bucks County, had been in the Assembly but only 
 for one year, in 1762-3. David Rittenhouse had been elected in 1776. 
 George Clyracr and eight others who were members of the Convention 
 had been elected to the Assembly just a few weeks before, when the 
 functions of that body were about to terminate. 
 
FRENCH AND AMERICAN THOUGHT i? 
 
 chair in Franklin's absence, being the most eminent in the 
 little group. There was scarcely any one who could be 
 looked to to lead the deputies aright, and to act as a balance 
 against the rash, the enthusiastic and the ignorant among 
 the members, for most of those who had knowledge of con- 
 stitutional questions and of statecraft had been left at home, 
 as suspected Tories, or for other reasons were not, unfortu- 
 nately for the early history of the State, called to the task of 
 preparing for it a frame of government. 
 
 This Convention, gathered together in haste and panic, 
 only a fortnight after it had met, on August 2,^^ determined 
 by vote in committee of the whole, that the new government 
 should be centered in a legislature of but a single chamber.^'' 
 The warnings which John Adams had uttered with so much 
 courage and earnest conviction, and which had had their 
 effect in Virginia, and were being heeded in other of the new 
 commonwealths, fell upon deaf ears in the capital city of the 
 United Colonies, the city of Franklin, and of Thomas Paine. 
 The debates upon the " Frame," or that part of the Consti- 
 tution following the Bill of Rights which was adopted on 
 August 16, began on August 21, and continued until Septem- 
 ber 5. The " Frame " was published in pamphlet, form on 
 September 10, though it was not printed in the newspapers 
 until a few days later. It was desired that it should be cir- 
 culated among the people for their consideration, it was said, 
 and yet on September 16, the Convention resumed its ses- 
 sions and hastened to adopt the draft, which it did on Septem- 
 ber 28, promulgating it at once as the Constitution of the 
 State. It was said with great truth afterward, when it was 
 alleged that the people had not had a hand in determining 
 whether they desired to live under such a form of govern- 
 ment, that the pamphlets had scarcely got outside the city 
 
 " Minutes of the Convention, Philadelphia, 1776, p. 18. 
 
 ^ It is noteworthy that in the national government, in so far as there 
 was yet one at hand, no division of powers existed. " All the powers 
 of government, — legislative, executive and judiciary, — ^were at that time 
 (1776) collected in one centre, and that centre was Congress." Adams' 
 Autobiography, Works, Vol. Ill, p. 87. 
 
1 8 THE REFERENDUM IN AMERICA . 
 
 before the Convention met again, and proceeded to ratify its 
 earlier work.'' This was not a consultation with the people, 
 a reference to them of the important question of whether or 
 not they should have one constitution or another — a question 
 which, in Massachusetts and New Hampshire, and elsewhere 
 in America, was coming now to be regarded as one that the 
 electors should determine in their town meetings, and at the 
 local polling places. 
 
 Very few changes were made in the original frame in those 
 days from September i6, when the Convention resumed 
 its debates, to September 28, when Benjamin Franklin and 
 the other members, except those who were so much dissatis- 
 fied with the work as to refuse thus to endorse it, placed their 
 signatures upon the document, indicating that it was the su- 
 preme law of the new State. The most peculiar feature of 
 the new government, though it embraced other odd schemes 
 which will be spokenof lateron in this description of a strange 
 phase of democracy in America, was the unicameral legisla- 
 ture of which we have never since had an example in the 
 American States, and which is a prevailing part of the scheme 
 of government in no important community to-day, though the 
 world has been recently reminded of the possibility of a re- 
 turn to greater simplicity in this respect in England, where 
 the Radicals have, with more or less seriousnessj proposed 
 the abolishment of the House of Lords."* Although this sub- 
 ject had earlier been discussed in the Convention without 
 convincing the majority party of the error of their general 
 course, a final effort in behalf of a bicameral legislature had 
 
 " Under these conditions, a writer in the Pennsylvania Packet, Feb- 
 ruary 13, 1779, said, that "only a few people of Philadelphia and its 
 neighborhood could have the least opportunity of examining it or offer- 
 ing their remarks, which were little regarded, and the Constitution after 
 circulating a few days, in print, about the streets of Philadelphia, was 
 finally adopted with scarce any material amendments "- See also Resolu- 
 tions of Town Meeting to protest against the Constitution, Phila., Oct. 
 21, 22, 1776. 
 
 " Lecky, Democracy and Liberty, Vol. I, pp. 361 et seq. Cf. Articles 
 in London Times on " Leeds and the Lords ", Sept. 13 and 14, 1894 and 
 " Thfe Reform of the House of Lords ", Nov. 28, 29, 30, 1894. 
 
FRENCH AND AMERICAN THOUGHT 19 
 
 been made by the friends of the English system of checks 
 and balances only a few days before the adjournment of the 
 body. The motion to amend the frame in this respect, and 
 to establish two houses instead of one, was offered by Mr. 
 Ross, the Vice-President of the Convention, on September 
 16, and it was seconded by Mr. Clymer of Philadelphia, two 
 of the leading minds in the Convention."* It was decided, 
 though the Minutes are silent as to the vote on this subject, 
 that further debate upon this point should be precluded, since 
 it had been fully discussed before. There was to be but a 
 single house; conviction seemed to prevail among the mem- 
 bers in respect of this feature of the government. The " su- 
 preme legislative power ", as the Constitution describes it, 
 was to repose in a " house of representatives of the freemen 
 of the Commonwealth or State of Pennsylvania ",^' whose 
 members were to be chosen annually in the counties, each 
 county at first returning an equal number, though the basis of 
 representation was soon to be changed to the more equitable 
 one of taxable inhabitants. 
 
 Upon this single assembly was conferred almost absolute 
 power. As every suggestion regarding a Senate, appeared 
 in the eyes of the Pennsylvania democrats to be a movement 
 to establish an odious House of Lords, an " upper " house, 
 whose very name was inconsistent with the principles of 
 equality, so the term Governor smacked too, of royalty, the 
 royal and proprietary colonies in America all having had 
 Governors. They would therefore have no officer known by 
 this name, and none, indeed, of any kind who should stand 
 as an obstacle between the people and the State. For the 
 people were the State, and the State was the people. Like 
 Paine, who said in his Common Sense, that he took his rule 
 from a " principle in nature which no art can overturn, viz : 
 that the more simple a thing is, the less liable it is to be dis- 
 ordered, and the easier repaired when disordered ",^' the 
 framers of the Constitution of Pennsylvania would put no 
 
 »Cf. Minutes of the Convention, p. 51. 
 
 " Constitution, sec. a. " Common Sense, p. 8. 
 
20 THE REFERENDUM IN AMERICA 
 
 clog upon the wheels of government. Therefore there should 
 be no Governor, and no one exercising the powers of a Gov- 
 ernor. There should be a plural executive, to be called the 
 Supreme Executive Council, in which was vested the " su- 
 preme executive power ",^* and this body was to have a 
 President, who was to be called the President of the State of 
 Pennsylvania, in true republican form. The councilors 
 were to exert no legislative power whatsoever and they did 
 not constitute a second house. They, with their President, 
 had no negative upon the legislature, and were not even au- 
 thorized to offer their advice concerning the passage of any 
 law, except in so far as this may have been contemplated 
 when it was provided that the Council should prepare busi- 
 ness to be laid before the Assembly.'" Each county was to 
 elect one councilor to serve for a term of three years. As 
 there were then twelve counties, it was at first a body there- 
 fore of twelve members. One third of the Council was re- 
 newed annually, four seats being vacated each year. In the 
 Constitution of our very squeamish democrats, as if an apol- 
 ogy were needed, the following explanation of this system is 
 found : " By this mode of election and continual rotation, 
 more men will be trained to public business, there will in 
 every subsequent year be found in the Council a number of 
 persons acquainted with the proceedings of the foregoing 
 years, whereby the business will be more consistently con- 
 ducted, and moreover, the danger of establishing an incon- 
 venient aristocracy will be effectually prevented." *° 
 
 By the original draft of the Constitution, which was 
 printed in Philadelphia in September, the Assembly in addi- 
 tion to its other extensive powers, was to elect nine men from 
 outside its own membership to compose the Council.^^ By 
 this deviation from the original plan, which resulted in the 
 Council being made elective by the people, the Assembly was 
 
 " Constitution, sec. 3. " Sec. 20. " Sec. 19. 
 
 "Pennsylvania Gasette, Sept. 18, 1776-—" The proposed plan or frame 
 of government for the Commonwealth or State of Pennsylvania" 
 
FRENCH AND AMERICAN THOUGHT 21 
 
 deprived of a very considerable part of its authority over the 
 executive department of the government, though it was still 
 charged with the task of meeting anpually with the members 
 of the Council, and of electing by joint ballot from the latter 
 body, the presiding executive ofi&cers of the State, a President 
 and a Vice-President.*^ The State treasurer was to be ap- 
 pointed by the Assembly, and the delegates to the general 
 American Congress were similarly chosen, which was the pre- 
 vailing method in other States at that time. It could elect, 
 removable at its own pleasure, a register of wills and re- 
 corder of deeds, in the city, and in each county, *' and im- 
 peach " every officer of state, whether judicial or executive ", 
 the proceedings to be heard before the President and Vice- 
 President, and a quorum of the Council.** The judges of the 
 supreme court who were to be appointed by the Council, 
 could be removed at any time by the Assembly for " misbe- 
 havior ".*° Justices of the peace who were elected by the 
 people in the city and counties, could in the same way be dis- 
 placed by the Assembly for " misconduct ".*' 
 
 Here, in respect of the judiciary the principle of the sep- 
 aration of powers, which Mr. Adams contended for was 
 grossly violated. That the judges should be removable by 
 the legislature for " misbehavior " was a rule calculated to 
 bring about a subserviency in the courts which was gravely 
 contemplated by conservative men. That the Assembly 
 should be unchecked by a second house, a governor or any 
 authority equal in power and dignity in the legislative de- 
 partment of the government, was occasion for real alarm, 
 but that the courts of justice, too, were to be subordinate to 
 this supreme single chamber, was a remarkable circumstance. 
 
 It is true, there was a fanciful plan by which the work of 
 the Assembly could be reviewed at periods of seven years. 
 Then the people of each county and the city were to elect a 
 body to be called a Council of Censors.*' This Council was to 
 
 "Sec. 19. "Sec. 34. "Sec. 22. "Sec. 23. 
 
 " Sec. 30. 
 
 " Cf. Rousseau, Contrat Social. Rousseau's chapter on Censors must 
 
2 2 THE REFERENDUM IN AMERICA. 
 
 meet and discuss the question whether during the septennial 
 period which had just been passed through, the Constitution 
 had been " preserved inviolate in every part, and whether the 
 legislative and executive branches of the government have 
 performed their duty as guardians of the people, or assumed 
 to themselves or exercised other or greater powers than they 
 are entitled to by the Constitution ".** They were to examine 
 into the collection and expenditure accounts of the govern- 
 ment, to call for papers and records, pass " public censures ", 
 order impeachments and " recommend " the Assembly to re- 
 peal such laws " as appear to them to have been enacted con- 
 trary to the principles of the Constitution ". 
 
 The Assembly was, indeed, restricted in one important re- 
 spect. It was specifically denied the power " to add to, alter, 
 abolish or infringe any part of this Constitution ' V although 
 the tendency in the United States in a few years, was to set 
 in strongly in the direction of giving the State legislatures 
 this right, usually, it is true, only after the assent of the 
 people has been expressed in a plebiscite, yet solely upon the 
 initiation of the legislature. In Pennsylvania, the Council 
 of Censors was the only body which could start the machinery 
 for a change in the Constitution, be it ever so small. By a 
 two-thirds vote the censors could summon a convention, and 
 this body might then amend the fundamental law of the 
 State, in the same manner in which it had been originally 
 established. 
 
 In order that theye might be no suspicion of an hereditary 
 system in office-holding, there was to 'be frequent rotation in 
 the civil service. Thus any person who had served as a 
 councilor for three successive years, that is for one term, 
 was not to be capable of holding this office again for four 
 years -afterwards.^" Representatives in the Assembly were 
 not to continue in their offices more than four years in any 
 
 have suggested this very odd device to the Pennsylvanians when they 
 were seeking for a government which would make them wholly free of 
 English constitutional usage. 
 
 "Sec. 47. "Sec. 9. ^ Sec. 19. 
 
FRENCH AND AMERICAN THOUGHT 23 
 
 seven," and the terms of certain other officers were also lim- 
 ited by the Constitution.^^ 
 
 It has always been a matter of interest among those who 
 have written of the early political history of Pennsylvania — 
 few, unfortunately, in number — to inquire what precisely 
 were the influences which led the Convention to adopt such a 
 system of government, when none of the other colonies 
 turned away so lightly from custom, tradition and the advice 
 of good authorities on constitutional subjects. It is true that 
 Georgia and Vermont in the next year, 1777, adopted con- 
 stitutions which in respect of the single house of legislature, 
 at least, followed the Pennsylvania plan."' But an examina- 
 tion of these instruments will show that they differ in some 
 rather important respects from the first Constitution of Penn- 
 sylvania. Vermont, on account of a territorial question, was 
 not one of the original States, being admitted to the Union 
 only in 1791, after the adoption of the Federal Constitution, 
 when the confederation had made way for the federation, 
 the Staatenbund for the Bundesstaat. Vermont had its Gov- 
 ernor and Lieutenant-Governor, instead of a President and 
 Vice-President. There was a Council in lieu of a second 
 house, which was without the power of vetoing legislation, 
 however, quite as in Pennsylvania. Nevertheless, it was pro- 
 vided in Vermont, and this was a difference of some im- 
 portance, that " to the end that laws before they are enacted 
 may be more maturely considered, and the inconveniency of 
 hasty determination as much as possible prevented, all bills 
 of public nature shall be first laid before the Governor or 
 Council, for their perusal and proposals of amendment "."" 
 In Pennsylvania, the only suggestion that delay might be ex- 
 pedient, was contained in a provision which placed the re- 
 sponsibility with the people, rather than with the councilors. 
 
 " Sec. 8. 
 
 "For instance, sheriffs and coroners in counties, sec. 31. 
 
 " Cf. Adams' Works, Vol. II, p. 508, " Matlack, Cannon, Young and 
 Paine had influence enough to get their plan adopted in Georgia and 
 Vermont, as well as Pennsylvania ". 
 
 " Con. of Vermont, 1777, sec. xiv. 
 
24 THE REFERENDUM IN AMERICA 
 
 This clause was as follows : " All bills of public nature shall 
 be printed for the consideration of the people before they 
 are read in General Assembly the last time for debate and 
 amendment, and except on occasions of public necessity, shall 
 not be passed into laws until the next session of Assem- 
 bly ".^° The Governor, Lieutenant-Governor and Treasurer 
 in Vermont, were to be elected by the people annually, instead 
 of by the Assembly as in Pennsylvania.^" The coimcilors in 
 Vermont were elected by scrutin de liste, that is, on a general 
 ticket,^^ while in Pennsylvania each county returned one 
 member. The unusual feature in the Pennsylvania Consti- 
 tution regarding a Council of Censors was carried over into 
 the Constitution of Vermont.^* As in Pennsylvania, the 
 censors were to meet every seven years, and for the same pur- 
 pose, — to ascertain whether the Constitution had been " pre- 
 served inviolate in every part", etc. The members of the body, 
 however, were again to be elected on a general state ticket, 
 instead of by counties as in Pennsylvania. This peculiar in- 
 stitution was continued in the later Constitutions of Vermont, 
 and it survived, indeed, until 1870, when the section was 
 finally abrogated.^" By this method many conventions were 
 assembled, and a number of amendments made in the funda- 
 mental law of the State. 
 
 So early as in 1786, the Constitution of Vermont of 1777 
 was modified in an important way, and it was declared 
 specifically in that year that " the legislative, executive 
 and judiciary departments shall be separate and distinct, so 
 that neither exercise the powers properly belonging to the 
 other ".*" A Senate in name and in fact, was, however, not 
 
 °' Sec. IS, Pennsylvania Constitution. 
 
 " It is true that the councilors sat and voted with the Assembly in 
 the election of a President and Vice-President in Pennsylvania, but as 
 there were seventy-two assemblymen, and only twelve councilors, the 
 council was not a very great force. The Assembly, however, was re- 
 stricted in its choice to two of the twelve members of the Council. The 
 Constitution forbade their going outside that body for candidates. 
 
 " Con. of Vermont, sec. xvii. ^^ Ibid., sec. xliv. 
 
 " Amendments to the Constitution of Vermont, art. xxv, sec. iv. 
 
 °° Constitution of 1786, chap. II, sec. 6. 
 
FRENCH AND AMERICAN THOUGHT 25 
 
 introduced into the legislative system of the State, until 
 i836.»i 
 
 Looking briefly at the Constitution adopted in Georgia 
 in 1777, which lasted until 1789, we find that it too deviated 
 from the Pennsylvania example. It was a carelessly framed 
 document. Though this was not true in any sense, it was 
 stated in plain language that " the legislative, executive and 
 judiciary departments shall be separate and distinct, so that 
 neither exercise the powers properly belonging to the oth- 
 er ".'"' The Council was elected by the Assembly from its 
 own body, being virtually therefore a committee of the 
 house." The Governor, bravely called by this name, was 
 also an assemblyman, annually elected to the high post by his 
 colleagues."* The Council was not without legislative power, 
 though this was only advisory. It was provided in the Con- 
 stitution that " all laws and ordinances shall be sent to the 
 executive council after the second reading, for their perusal 
 and advice "."^ The bills submitted to it were to be returned 
 to the Assembly by the councilors, with the latter's remarks 
 thereon, within five days,"" and then came a ceremony, which 
 to the disciples of liberty and equality in Pennsylvania would 
 have been distasteful to the last degree : " A committee from 
 the Council sent with any proposed amendments to any law 
 or ordinance, shall deliver their reasons for such proposed 
 amendments, sitting and covered; the whole house at that 
 time except the speaker uncovered ". It is sufficiently plain 
 in face of the provision establishing this undemocratic rite, 
 that the Georgian democrats were not firmly grounded in 
 the new principles of government, as they had lately been 
 expounded in Philadelphia. But the single house in Georgia 
 was to be abolished in 1789, and another Constitution was 
 adopted, in which it was declared explicitly at the very be- 
 ginning of the instrument that " the legislative power shall 
 be vested in two separate and distinct branches; to wit, a 
 
 "Amendments, art. iii. ""Art. i. 
 
 " Art. ii. '* Art. xxiii. 
 
 " Art. viii. ^ Art. xxvii. 
 
26 THE REFERENDUM IN AMERICA 
 
 Senate and House of Representatives, to be styled the Gen- 
 eral Assembly "." 
 
 How, now, was it that this peculiar system was instituted 
 in Pennsylvania, and who was responsible for its origin ? In 
 general, as has been noted already, there are two facts to be 
 considered in explaining the existence of this radically 
 democratic feeling in Pennsylvania, and it was not confined 
 to this State alone. Even in Massachusetts, where John 
 Adams' influence was greatest, and the Constitution which 
 he framed has survived to this day, with some relatively 
 slight amendments, there was a considerable body of senti- 
 ment favorable to a single house. These two facts were, — 
 first, the presence in the conventions of large numbers of the 
 frontiersmen, who had had contests in colonial days with the 
 wealthier property-owning classes, living in or near the cities. 
 Thus in Pennsylvania, there had been a hostile feeling for 
 many years between these elements, owing to the belief gen- 
 erally entertained, that those who could were not paying a 
 due proportion of the public charges, in order to defend and 
 advance the interests of all the people, especially those re- 
 siding in the Western counties, who came frequently in 
 contact with the Indians. Secondly, there was a conviction, 
 that when the colonies were freeing themselves from Eng- 
 land, they should discard English government in toto, and 
 this feeling was intensified by the presence in every com- 
 munity of bodies of men called Tories, who still continued 
 friendly to the motherland, and at once came to be regarded 
 with distrust, when they were not indeed the subjects of great 
 popular odium.°8 Their influence, in so far as they were 
 able to exert any, was, of course, against new constitutions of 
 every kind in the first instance, and then against those which 
 were most democratic. It is thus that it was possible for the 
 
 "Art. i, sec. i. 
 
 "'James Madison in The Federalist, no. xlix, says that the early con- 
 stitutions of the American States were formed " in the midst ♦ * of a 
 universal ardor for new and opposite forms, produced by the universal 
 resentment and indignation against the ancient government ". 
 
FRENCH AND AMERICAN THOUGHT a? 
 
 enthusiasts in Pennsylvania to do what they had done in the 
 Convention, and now to wage their remarkable campaign in 
 its defence which continued throughout the war, and up to 
 the years 1789 and 1790, when the Constitution, thoroughly 
 discredited, was superseded by another of the general Amer- 
 ican type. 
 
 As for the scholastic and academic side of the movement, 
 which gave Pennsylvania this Constitution, it has always been 
 the custom, and very rightfully indeed, to associate Benjamin 
 Franklin's name with the single-chamber legislative system. 
 There, however, has been a certain element of doubt respect- 
 ing the actual part which Dr. Franklin took, in inflicting 
 upon the State this novel and highly original scheme of 
 government. There is no room for question, that his 
 leanings were wholly in the direction of a single house, 
 though in the real work of framing the Constitution, he 
 seems not to have had more than an advisory part. He was 
 the President of the Convention, but he was not regularly in 
 attendance at the sessions. He appended his signature to the 
 instrument, and before the Convention adjourned, a resolution 
 was passed by the body, thanking him for the honor he had 
 conferred upon it " by filling the chair during the debates on 
 the most important parts of the Bill of Rights and Frame of 
 Government, and for his able and disinterested advice 
 thereon ".*" There were others, however, who were con- 
 cerned in the actual draft and these in so far as they have been 
 named were Timothy Matlack,'" James Cannon, Dr. Thomas 
 Young, Thomas Paine and George Bryan, the last three not 
 having been members of the Convention at all, but the leading 
 spirits in a small junta, which first by the name of the Whig 
 Society, and later the Constitutional Society, battled for their 
 
 " Minutes of the Convention, p. 67. 
 
 " Timothy Matlack was originally a member of the Society of Friends, 
 but in the Revolution left the sect and became a " Free Quaker " or 
 " Fighting Quaker ". It is said that he wore his sword in the streets 
 of Philadelphia. When asked what its use was, he replied, " It is to 
 defend my property and my liberty "- 
 
28 THE REFERENDUM IN AMERICA 
 
 beloved principles as valiantly as did La Rochefoucauld, Con- 
 dorcet, Mirabeau and the other friends of a single legislative 
 assembly and unrestricted popular government throughout 
 a contemporary period in France.'^ 
 
 What Franklin's part in the work really was, those who 
 lived at the time have not been very willing to state, though 
 evidence has later been adduced in sufficient quantity to im- 
 plicate him seriously in the framing of the peculiar instru- 
 ment. Dr. Franklin's position, not only in America, but in 
 the world at large, was somewhat unusual. He had been in 
 France on at least two occasions prior to his long residence 
 there of some nine years, while the Revolution was in prog- 
 ress in America, when he represented the new States, an 
 important mission upon which he embarked shortly after the 
 Pennsylvania Convention had adjourned. The first two 
 visits were made in 1767 and 1769, while he was abroad in 
 the colonial behalf, defending the American cause at Lon- 
 don.''^ He seems to have developed a sincere interest while 
 
 ^ In speaking of Paine's Common Sense, Mr. Adams says that parts 
 of the latter were merely meant to please the Democratic party in 
 Philadelphia, at whose head were Mr. Matlack, Mr. Cannon and Dr. 
 Young. * * * Matlack, Cannon, Young and Paine had influence enough, 
 however, to get their plan adopted in substance in Georgia and Ver- 
 mont, as well as Pennsylvania". — Works of Jno. Adams, Vol. II, pp. 
 S07-8. " The bill of rights is taken almost verbatim from that of Vir- 
 ginia, which was made and published two or three months before that 
 of Philadelphia was begun; it was made by Mr. Mason, as that of 
 Pennsylvania was by Timothy Matlack, James Cannon and Thomas 
 Young and Thomas Paine." — Ibid. Vol. Ill, p. 220. Cf. Ibid. Vol. IX, 
 pp. 617-623. Alexander Graydon in the Memoirs of His Own Time, Phila- 
 delphia, 1846, p. 28s, says that the Constitution of Pennsylvania " was 
 understood to have been principally the work of Mr. George Bryan, in 
 conjunction with a Mr. Cannon, a schoolmaster ; and it was severely 
 reprobated by those who thought checks and balances necessary to the 
 legitimate distribution of the powers of government. Doctor Franklin 
 was also implicated in the production "- Mr. Bryan, Graydon explains 
 was a native Irishman, and it is suggested that on this account he was 
 opposed to the English system of government. He was later a Vice- 
 President and then President of the State, holding other offices under 
 the Constitution, in the defence of which he was always very loyal. 
 Cf. article in Pennsylvania Gazette, Oct. 30, 1776. 
 
 " Hale, Franklin in France, Boston, 1887, Vol. I, pp. 6 et sea. 
 
FRENCH AND AMERICAN THOUGHT 29 
 
 in Paris in the " Physiocratie ", and made the acquaintance 
 of old Dr. Quesnay,'' the elder Mirabeau, Turgot, Dupont 
 de Nemours, with whom his friendship was of long dura- 
 tion, Dubourg, who translated Frankhn's works into French, 
 and others of the " Economistes ", members of that singular 
 sect, who met together and constructed imaginary wealth out 
 of imaginary land, and carried politics and social economy 
 into one of the strangest phases upon which it has ever en- 
 tered. They declared that the peasant, the tiller of the soil, 
 was the only producer in society, and Franklin's mind seems 
 to have been in so receptive a condition in respect to political 
 subjects, that he embraced the cult, or at any rate in a char- 
 acteristic manner led his French friends to think that he was 
 one of their number. Little doubt can remain on this point, 
 when we consider his letter to Dupont of July 28, 1768, in 
 which he acknowledges the receipt of the latter's book on the 
 " Physiocratie " ; for here he says that on reading the work 
 he received " a great deal of instruction " from it, that he is 
 " perfectly charmed " with the principles of the " new phil- 
 osophy ", which he declares he " sincerely wishes " to " grow 
 and increase till it becomes the governing philosophy of the 
 human species as it must be that of superior beings in better 
 worlds ".'* 
 
 His interest in the various eccentric movements in the 
 French intellectual life of the time, seems to have been deep, 
 and they awakened in him no sentiments of mental revolt such 
 as other men would have felt, as, for instance, Mr. Adams, 
 whose political principles were founded on historical knowl- 
 edge, and were well and strongly defined. It was thus in 
 respect of a single house, and his other visionary and very 
 democratic views on the subject of government, for which he 
 cannot escape responsibility in the case of the first Constitu- 
 tion of Pennsylvania. There is enough historical testimony 
 to-day to link his name closely to the names of the other 
 
 " He was ordained a " knight of the order " by the laying on of 
 hands by Dr. Quesnay. Adams' Works, Vol. I, p. 661. 
 " Hale, op. cit. Vol. I, pp. 13. 14. 
 
30 THE REFERENDUM IN AMERICA 
 
 men who took a more direct part in the work of writing and 
 adopting the Constitution, and this testimony w,e may pro- 
 ceed briefly to present. 
 
 We are told that Franklin's " participation in it or appro- 
 bation of it [the work of the Pennsylvania Convention] 
 was roundly asserted by its fautors "J^ Mr. Matlack, who 
 was in a position to know a great deal concerning the early 
 history of the Constitution, wrote in the year 1779, in a politi- 
 cal controversy with Richard Bache, that it was largely the 
 work of Mr. Bache's " venerable father-in-law," Franklin.'" 
 He adds, and Mr. Matlack was present on that occasion: 
 " When the debate was nearly closed. Dr. Franklin was re- 
 quested by the Convention to give his opinion on the point, 
 and he declared it to be clearly and fully in favor of a legis- 
 lature to consist of a single branch as being much the safest 
 and best." 
 
 There was a little anecdote generally related at the 
 time, which we will repeat, as Mr. Adams gives it in one 
 of his useful and interesting political studies. The President 
 of the Convention having been requested for his opinion 
 upon the subject of the number of houses of which a legis- 
 lature should consist, rose and said that " two assemblies ap- 
 peared to him like a practice he had somewhere seen, of 
 certain wagoners who, when about to descend a steep hill 
 with a heavy load, if they had four cattle, took off one pair 
 from before, and, chaining them to the hinder part of the 
 wagon, drove them up hill, while the pair before, and the 
 weight of the load overbalancing the strength of those be- 
 hind, drew them slowly and moderately down the hill "." 
 
 " Graydon's Memoirs, p. 285. 
 
 "Timothy Matlack in an open letter to Mr. Bache in Pennsylvania 
 Packet, March 30, 1779. 
 
 ''''Defence of the Constitutions of the United States of America, 
 Adams' Works, Vol. IV, p. 390. This anecdote is related too by Gray- 
 don, Memoirs, p. 285 : " The Doctor, perhaps a sceptic in relation to 
 forms of government, and ever cautious of committing himself, had 
 thrown out an equivoque about a wagon with horses drawing in op- 
 posite directions; as upon the adoption of the Federal Constitution, 
 
FRENCH AND AMERICAN THOUGHT 31 
 
 What moral Franklin meant to point by his story it would 
 be difficult to say with definiteness, and so inconclusive is 
 this piece of evidence, that perhaps it might well be disre- 
 garded altogether. So carefully had Franklin concealed his 
 views from one who should have had unusual means of 
 knowing them, that in 1787, John Adams, in ascribing to 
 Franklin a sentiment favorable to a single house, spoke of it 
 as the latter's " reputed opinion ". " I say reputed ", Mr. 
 Adams explains, "because I am not able to affirm that it is 
 really his. It is, however, so generally understood and re- 
 ported, both in Europe and America, that his judgment was 
 in opposition to two assemblies, and favorable to a single one, 
 that in a disquisition like this it ought not to be omitted." ^' 
 
 Franklin's arrival in France late in the year 1776, whither 
 he went as one of the officially deputized agents of the Amer- 
 ican Congress, to secure the sympathy, and if possible the 
 active aid of that nation for the colonies in their struggle 
 against the English crown, was the occasion of many flat- 
 tering marks of attention. The friends whom he had made 
 on his earlier visits, had not forgotten him. His writings 
 had been widely circulated in Europe, and there were few 
 who did not know his name, and were not prepared cordially 
 to welcome him as the representative of the people who had 
 so lately declared themselves an independent nation. He was 
 honored by the Academy of Sciences in Paris. D'Alembert, 
 the mathematician and philosopher, Condorcet, the philoso- 
 pher and encyclopaedist, Turgot, the man of letters, public 
 finance and statecraft, the Duke de La Rochefoucauld,^" and 
 
 he told a pleasant story of a self-complacent French lady who nad 
 always found herself in the right. But whether he meant by his rustic 
 allusion to show his approbation to checks or otherwise, is an enigma 
 that has never been solved." The anecdote is repeated also by Jared 
 Sparks, in his Life of Franklin, Works, Vol. I, 1840, p. 409. Also by 
 Laboulaye, Histoire Politique des Etats Unis, Paris, 1855, Tome I, 
 
 p. 367- 
 
 "Defence, Vol. IV, p. 389. 
 
 '" I.ouis-Alexandre, Due de La Roche-Guyon et de La Rochefoucauld 
 d'Anville was born in 1743. He was the son of the great-granddaughter 
 of the Duke de La Rochefoucauld, who was the author of the Maximes. 
 
32 THE REFERENDUM IN AMERICA 
 
 many other leaders of that elegant and visionary school in 
 literature and science, of which Rousseau, Diderot and Vol- 
 taire were still more distinguished representatives, received 
 " le grand Franklin " as the living precursor of the new 
 social order, of which they had written and said so much. 
 He was looked to as one of the chiefs of the new democracy, 
 the leading tenet of whose creed was human equality, and 
 universal brotherhood, a great idealist movement, world en- 
 compassing, comparable' in some degree to the socialist cos- 
 mopolitanism that we are confronted with to-day. He at- 
 tired himself in what was believed to be true democratic 
 simplicity. With his fur-hat and other odd articles of rai- 
 ment, the enthusiastic disciples of J. J. Rousseau saw in him 
 a living image of the old heroes and philosophers of Greece 
 and Rome.*" The American Constitutions, and especially 
 that of Pennsylvania, were translated into French. One col- 
 lection was published in Switzerland so early as in 
 1778,'^ and another in 1783 at FrankHn's own sug- 
 gestion, and under his personal direction, by the Duke de 
 La Rochefoucauld.*^ Franklin having been the Presi- 
 dent of the Pennsylvania Convention, the Constitution of 
 that State was looked upon as the embodiment of his 
 own views. Whether it was the truth or not there is nowhere 
 a record that would tend to show that he tried to disabuse 
 the minds of his admirers in France of this idea. Europe 
 was allowed to draw the inference that the Constitution was 
 his own work, and as Adams has somewhere said, it was by 
 remaining passive, and by permitting others by indirection, to 
 arrive at their conclusions without his saying yes or no, that 
 
 She made her home the assembling place for philosophers and economists 
 of the eighteenth century and like her son numbered among her friends 
 many notable personages. 
 
 " Cf. Lecky, History of England in the iSth Century, New York, 1882, 
 Vol. IV, p. 52 ; Benjamin Franklin, Chef de la Democratie Americaine 
 par M. Belot, Lyons, 1886, p. 5. 
 
 "Jellinek, Die Erkldrung der Menschen-und Buergerrechte, p. 10. 
 
 °^ Cf. Larousse, Dictionnaire Universal under " La Rochefoucauld " • 
 Borgeaud, Btablissetnent et Revision des Constitutions en Amirique et 
 en Europe, Paris, 1893, p. 27. 
 
FRENCH AND AMERICAN THOUGHT 33 
 
 the American " philosopher " increased his fame and reputa- 
 tion. There was no doubt in France then, and there is Uttle 
 among historians there to-day, that he was the real author of 
 this document. It was everywhere in Europe a subject 
 of admiration by those who were identified with the literary 
 movement which was preparing the way for the French 
 Revolution, and which was then at the height of its author- 
 ity,*' and they were the leaders of the Revolution who at 
 Franklin's death stopped in the midst of their horrible career 
 of tyranny and murder to eulogize his memory. 
 
 A meeting was arranged in Paris between Voltaire and 
 Franklin, of which there are different versions. These two 
 apostles of liberty, the old French patriarch, and the simple 
 friend of the people from America, the first to give their 
 literary theories practical form in the new republic of Penn- 
 sylvania, embraced each other amid the plaudits of a large 
 number of onlookers.** The interest which the liberal writers 
 of Europe had expressed in Pennsylvania, however, accord- 
 ing to Laboulaye, antedated Franklin's appearance upon the 
 scene in Paris. William Penn had been regarded as a law- 
 giver so wise and tolerant, that now it was the most natural 
 thing in the world for the State to abolish the representative 
 system, which it had almost done in the Constitution of 
 1776, and to restore the people to all their " natural " rights 
 and privileges. It was Penn's peculiar service to the liberal 
 cause, we are told, which " explains and justifies the admira- 
 tion of the last century for the Republic of Pennsylvania. 
 Penn was for the writers of the eighteenth century a phil- 
 osopher rather than the leader of a sect. Philadelphia was the 
 city of toleration; Pennsylvania was the promised land of 
 the philosophers. * * * j^ two words, what Utopia was 
 
 "Cf. Mignet, Vie de Franklin, 12th edition, Paris, 1885, pp. iii 
 etseg.; P. A. Changeur, Comment on devienl iin homme, 1894, p. 356, 
 I.aboulaye, Histoirc Politigtie des Eiats Unis, Tome I, pp. 367 et seq. 
 
 " A most dramatic account of this incident is contained in Belot, 
 Benjamin Franklin, Chef de la Democratie Americaine, Lyons, 1886. 
 Cf. Adams' Works, Vol. Ill, p. 147. and " Life of Voltaire ", by Con- 
 dorcet, Oeuvres Complete, Vol. C, p. i6i. 
 
34 THE REFERENDUM IN AMERICA 
 
 to Thomas More and Salentum to Fenelon, Pennsylvania 
 was to Voltaire ".'° 
 
 It was about this time, too, that a print had appeared 
 in France. It was sent on to America, having been designed 
 and executed, it is said, by a "celebrated hand". It was 
 entitled "Doctor Franklin, Crowned by Liberty". It ex- 
 hibited a bust of Franklin being crowned by laurel leaves. 
 At his right hand was a globe with the Continent of America 
 in view. In the background and leaning on the globe, was 
 a figure which was described in the newspapers of the period 
 as " the genius of the Doctor " with the sword of justice in 
 its right hand, while in its left hand, falling open over the 
 globe, was a scroll upon which was inscribed the words " Con- 
 stitution of the government of Pennsylvania ".^° 
 
 To me it does not appear likely that the French philoso- 
 phers were wholly indebted to Pennsylvania for their opin- 
 ions in respect of government, as enthusiastically as they 
 received Franklin's Constitution, and studied it as the true 
 expression of democracy. It scarcely seems safe, therefore, 
 to go so far as Professor Jellinek '^ would take us, by infer- 
 ence at least, in making America the leader in the democratic 
 movement of the eighteenth century, since Turgot, Condorcet 
 and the Duke de La Rochefoucauld were scarcely the dis- 
 ciples of Franklin. They were his friends, because it would 
 appear of what they thought he represented, not for what 
 they actually knew about his politics. He was influenced, 
 in all likelihood, very much more by them than they by him, 
 a conclusion from which there is no apparent avenue of 
 escape. 
 
 It was Turgot that in March, 1778, wrote a letter to Dr. 
 Richard Price, an English political writer, who had taken 
 an interest in constitutional subjects at this time, attacking 
 the American Constitutions, in that there was " an unreason- 
 
 "Laboulaye, of. cit. Tome I, pp. 370-71. See, too, Voltaire's amus- 
 ing apostrophe to the Quakers in his Dictionnaire Philosophique 
 
 Article on the Quakers. 
 
 '"Article in Pennsylvania Packet, March 30, 1779. ''Op. cit. 
 
FRENCH AND AMERICAN THOUGHT 35 
 
 able imitation of the usages of England ". Different bodies 
 were established, the sovereignty was divided, and they had 
 then tried to balance these different authorities. But one 
 Constitution, that of Pennsylvania, seems to have met with 
 M. Turgot's admiration.'* It was this letter which led Adams 
 to write his spirited " Defence of the Constitutions of the 
 United States of America against the attack of M. Turgot ", 
 etc., a work in three volumes, which exerted an important 
 influence in the Federal Convention of 1787. It is an 
 historical writing upon which the author expended a very 
 great deal of effort, while representing the American States 
 at London.*' 
 
 ™ Adams' Works. Vol. IV, p. 278. 
 
 " In a letter to John Taylor Mr. Adams says : " M. Turgot had seen 
 only the Constitutions of New York, Massachusetts and Maryland, and 
 the first Constitution of Pennsylvania. His principal intention was to 
 censure the three former. * * » The drift of my whole work was to 
 vindicate these three Constitution's against the reproaches of that great 
 statesman, philosopher and really excellent man, whom I well knew ". 
 — Works, Vol. VI, p. 486. Again he says : " Franklin, Turgot, Roche- 
 foucauld and Condorcet, under Tom. Paine, were the great masters of 
 that academy" [the School of folly]. — Ibid., Vol. VI, p. 403. No- 
 where else has Adams summed up his work in combating the French 
 philosophy so well as in the following passages: "In 177s and 1776 
 there had been great disputes in Congress and in the several States, 
 concerning a proper constitution for the several States to adopt for 
 their government. A Convention in Pennsylvania had adopted a govern- 
 ment in one representative assembly, and Dr. Franklin was the President 
 of that Convention. The Doctor, when he went to France in 1776, 
 carried with him the printed copy of that Constitution, and it was im- 
 mediately propagated through France that this was the plan of govern- 
 ment of Mr. Franklin. In truth, it was not Franklin, but Timothy 
 Matlack, James Cannon, Thomas Young, and Thomas Paine, who were 
 the authors of it. Mr. Turgot, the Duke de La Rochefoucauld, Mr. 
 Condorcet and many others, became enamored with the Constitution 
 of Mr. Franklin. And in my opinion, the two last owed their final and 
 fatal catastrophe to this blind love. In 1780, when I arrived in France, 
 I carried a printed copy of the report of the Grand Committee of the 
 Massachusetts Convention, which I had drawn up ; and this became an 
 object of speculation. Mr. Turgot, the Duke de La Rochefoucauld, 
 and Mr. Condorcet and others, admired Mr. Franklin's Constitution, 
 and reprobated mine. Mr. Turgot in a letter to Dr. Price, printed 
 in London, censured the American Constitution as adopting three 
 branches in imitation of the Constitution of Great Britain. The inten- 
 
36 THE REFERENDUM IN AMERICA 
 
 Mirabeau followed Turgot in a pamphlet enforcing the 
 views of the latter in respect of the merit of a simple cen- 
 tralized government. Condorcet's sympathy with the same 
 philosophy is not to be mistaken^ and his sentiments may 
 be gleaned from more than one of his writings."" The Duke 
 de La Rochefoucauld was a firm believer in the same prin- 
 ciples and in his Eulogy of Franklin in 1790, in speaking of 
 the American philosopher's political views, gave him un- 
 measured praise for the authorship of the Pennsylvania 
 Constitution. The Duke on this occasion said : " Franklin 
 alone disengaging the political machine from those multiplied 
 
 tion wa.s to celebrate Franklin's Constitution and condemn mine. I 
 understood it, and undertook to defend my Constitution, and it cost me 
 three volumes. In justice to myself, however, I ought to say that it 
 was not the miserable vanity of justifying my own work, or eclipsing 
 the glory of Mr. Franklin's that induced me to write. I never thought 
 of writing till the Assembly of Notables in France had commenced a 
 revolution with the Duke de La Rochefoucauld and Mr. Condorcet at 
 their head, who I knew would establish a government in one assembly, 
 and that I knew would involve France and all Europe in all the horrors 
 we have seen ; carnage and desolation for fifty, perhaps for a hundred, 
 years. At the same time every western wind brought us news of town 
 and county meetings in Massachusetts, adopting Mr. Turgot's ideas, 
 condemning my Constitution, reprobating the office of governor, and the 
 assembly of the Senate, as expensive, useless and pernicious, and not 
 only proposing to toss them off, but rising in rebellion against them. 
 In this situation I was determined to wash my hands of the blood that 
 was about to be shed in France, Europe and America, and show to the 
 world that neither my sentiments nor actions should have any share in 
 countenancing or encouraging any such pernicious, destructive and fatal 
 schemes. * * * I -vyas personally acquainted with Mr. Turgot, the 
 Duke de La Rochefoucauld and Mr. Condorcet. They were as amiable, 
 as learned and as honest men as any in France. But such was their 
 inexperience in all that relates to free government, and so obstinate 
 their confidence in their great characters for science and literature, 
 that I should trust the most ignorant of our honest town meeting 
 orators to make a Constitution, sooner than any or all of them ". — John 
 Adams' letter to Samuel Perley, June 19, 1809, IVorks, Vol. IX, pp. 621 
 et seq. Cf. ibid., Vol. IV, p. 389. 
 
 '* See particularly Qiiatres lettres d'un Bourgeois de New Haven, sur 
 I' Unite de la Legislation which drew out Adams' Discourses on Davila. 
 These four letters are published in the first volume of Mazzei's Re- 
 cherches historiques et politiqnes sur les Etats Unis de I'Ameriqne sep- 
 tentrionate ; cf. also Condorcet's Eloge de Franklin. 
 
FRENCH AND AMERICAN THOUGHT 37 
 
 movements, and admired counterpoises that rendered it so 
 complicated, proposed the reducing it to the simplicity of a 
 single legislative body. This grand idea startled the legisla- 
 tors of Pennsylvania, but the philosopher removed the fears 
 of a considerable number, and at length determined the 
 whole to adopt a principle which the national assembly has 
 made the basis of the French Constitution ". In a note to 
 the above passage in the printed edition of his oration, the 
 Duke de La Rochefoucauld, on the subject of a single legis- 
 tive assembly, added the following remarks : " Franklin was 
 the first who dared to put this idea into practice. The respect 
 the Pennsylvanians entertained for him induced them to 
 adopt it; but the other States were terrified at it, and even 
 the Constitution of Pennsylvania has since been altered. In 
 Europe this opinion has been more successful.'^ When I had 
 the honor to present to Franklin the translations of the Con- 
 stitutions of America the minds of people on this side the 
 Atlantic were scarcely better disposed toward it than those 
 on the other side ; and if we except Dr. Price in England, and 
 Turgot and Condorcet in France, no man who applied him- 
 self to politics agreed in opinion with the American phil- 
 osopher. I will venture to assert that I was of the small 
 number of those who were struck with the beauty of the 
 simple plan he traced, and that I saw no reason to change 
 my opinion when the national assembly led by the voice of 
 those deep thinking and eloquent orators who discussed that 
 important question, established it as a principle of the French 
 Constitution that legislation should be confided to a single 
 body of representatives. It will not perhaps be deemed un- 
 pardonable to have once mentioned myself at a time when the 
 honor I have of holding a public character makes it my duty 
 to' give an account of my sentiments to my fellow citizens. 
 France will not relapse into a more complex system, but will 
 assuredly acquire the glory of maintaining that which she 
 has established, and give it a degree of perfection, which, 
 
 " Rochefoucauld himself soon after met his death from a mob, as a 
 result of the success which the " opinion " gained in France. 
 
38 THE REFERENDUM IN AMERICA 
 
 by rendering a great nation happy, will attract the eyes and 
 the applauses of all Europe, and of the whole world." °^ 
 
 Such eloquent words would have better graced a worthier 
 cause than this one, which had already been wholly dis- 
 credited in Pennsylvania, and was leading France into a 
 period, the darkest and gloomiest in her whole history. The 
 sympathy the members of this group felt, the one for the 
 other, is indicated in Franklin's correspondence in a letter 
 dated Paris, February 8, 1786,°^ after his return to America, 
 and his election to the Presidency of Pennsylvania, which the 
 " Constitutionalists " and " Anti-Constitutionalists " united 
 in, asking him to accept."* In complimenting Franklin upon 
 the resolution he had shown in the face of the demands which 
 had been made upon him, and transmitting the friendly re- 
 gards of Condorcet, the Duke de La Rochefoucauld said: 
 " I know that two powerful and nearly equal parties support 
 different principles as the basis of the Constitution; but no- 
 body is better qualified than yourself to conciliate both of 
 them, and to obtain not perhaps the Constitution, most 
 absolutely perfect, but at least, as Solon said, the best which 
 your fellow citizens are able to bear. This is the critical 
 moment for the Americans. The return of peace and the 
 certainty of independence demand of them a general revision 
 of their laws, and the formation of new, codes, no longer a 
 servile imitation of the laws of England, but dictated by rea- 
 son, conformed to thei/ actual situation, and adapted to insure 
 the happiness of states and individuals. In legislation you 
 must be the teachers of the world." 
 
 In two letters to his friend in France, M. LeVeillard, who 
 
 "Memoirs of the Life and Writings of Berijamin Franklin, by Wm. 
 Temple Franklin, London, 1818, Vol. I, p. 303. Temple Franklin says 
 here that the Pennsylvania Constitution of 1776 "may be considered 
 as a digest of Dr. Franklin's principles of government. The single 
 legislature and the plural executive appear to have been his favorite 
 tenets." 
 
 ™ Sparks, Vol. X, p. 247. 
 
 " Cf. Letter of Franklin to the Duke de La Rochefoucauld, Phila., 
 April 15, 1787, in Temple Franklin's Collection Vol. II, p. 97. 
 
FRENCH AND AMERICAN THOUGHT 39 
 
 was another loyal adherent of the same philosophy, Franklin 
 expresses his views regarding the plan for two chambers in 
 the, Federal system, as arranged for by the new Constitutipn 
 of the United States, of 1787. In the first letter, he says : " I 
 am of opinion with you that the two chambers were not 
 necessary, and I disliked some other articles that are in the 
 proposed plan "."^ And in the second letter he says : " As 
 to the two chambers, I am of your opinion that one alone 
 would be better, but, my friend, nothing in human affairs and 
 schemes is perfect, and perhaps this is the case of our opin- 
 ions."'» 
 
 If any further evidence were needed to indicate what 
 were Franklin's sympathies at the time of the adoption of 
 the Pennsylvania Constitution, or what they had come to be 
 as a result of his long residence in France, it should be sup- 
 plied in a paper attributed to Franklin, and published as his 
 in William Temple Franklin's collection of his writings," 
 under the rubric " Queries and Remarks on a paper entitled 
 ' Hints for the members of the Convention ' ". These 
 " Hints " were originally published in a newspaper appearing 
 in Carlisle, Pa., being reprinted in the Federal Gazette, 
 November 3, 1789, and also in some of the other 
 Philadelphia journals. The articles were signed " A 
 Farmer ", and were strongly written arguments for a re- 
 vision of the Constitution of the State of Pennsylvania, so 
 that its form would be put in harmony with the other Amer- 
 ican governments. To these a reply, ascribed to Dr. Franklin, 
 was addressed, and it is a defence of the Constitution of 1776, 
 so vigorously worded that if it is an authentic document, 
 which, from its style it would appear to be, there can be no 
 question raised hereafter as to Franklin's true position re- 
 specting two legislative chambers." 
 
 •" Letter to LeVeillard, dated Phila., April 22, 1788, in Temple Frank- 
 lin, Vol. I, p. 391. 
 
 "'Letter to LeVeillard, Phila., Oct. 24, 1788, ibid. Vol. I, pp. 395-96. 
 
 " Vol. I, Appendix no. g. 
 
 " The writer has been unable to find these " Queries and Remarks " 
 
4° THE REFERENDUM IN AMERICA 
 
 Assuming that Franklin was the author of this paper, 
 which it seems perfectly safe to do, we find that here again 
 he defended the plural executive, and doubted the expediency 
 of placing a single individual in such a place of power as 
 the Governor's seat. It was desired that Pennsylvania should 
 have a Governor like the other States, a system which 
 Franklin professed to think would gravely imperil demo- 
 cratic institutions. In order to secure " independence and 
 stability of administration ", it had been asserted that the 
 chief magistrate should be " beyond the reach of every annual 
 gust of folly and of faction ". " Does not this reasoning ", 
 Franklin inquired, " aim at establishing a monarchy at least 
 for life, like that of Poland?" 
 
 In respect of the legislature of two chambers, Franklin 
 pointed to the unfortunate experiences which the colony had 
 had with a second branch, in which the proprietary family 
 and the aristocratic element were often successful in defeat- 
 ing the popular will. The influence which the unusually pro- 
 longed and bitter contests with the proprietors had exerted 
 upon Franklin's mind, and no doubt upon the minds of many 
 other men who were now the advocates of a single house of 
 assembly in Pennsylvania, is here clearly indicated. " How 
 many delays," he says, " and what great expenses were oc- 
 casioned in carrying on the public business, and what a train 
 of mischiefs, even to the preventing of the defence of the 
 province during several years, when distressed by an Indian 
 war, by the iniquitous demand that the proprietary property 
 should be exempt from taxation ! " "^ He predicted long dis- 
 putes between the chambers, were there two co-equal in 
 authority, and pointed to the experience in some neighboring 
 States, where with two bodies serious deadlocks then existed. 
 
 The rather amusing suggestion was offered that so little 
 public wisdom might be at hand, that were it divided be- 
 
 araong any of the other collections of Franklin's writings. As the paper 
 is so positive and unequivocal in its language, an investigation as to its 
 source would be an interesting historical study. 
 " Cf. Laboulaye, op. cit.. Tome I, p. 367. 
 
FRENCH AND AMERICAN THOUGHT 4' 
 
 tween two houses, each would perhaps be " too weak " to 
 " support a good measure or obstruct a bad one ". The pres- 
 ence of a plural legislature in England was due, he argued, 
 to the " pre-existing prevalence of an odious feudal system ". 
 The proposal that the two branches should be elected by dif- 
 ferent interests, one representing wealth, the other being a 
 more popular body, he found to be " contrary to the spirit of 
 all democracies ". With two houses there was an assump- 
 tion " that wisdom is the necessary concomitant of riches ". 
 He illustrated his dislike of two chambers by telling another 
 characteristic anecdote. " Has not the famous political fable 
 of the snake with two heads and one body some useful in- 
 structions contained in it ? " he inquired. " She was going 
 to a brook to drink, and in her way was to pass through a 
 hedge, a twig of which opposed her direct course. One head 
 chose to go on the right side of the twig, the other on the left, 
 so that time was spent in the contest, and before the decision 
 was completed, the poor snake died of thirst ". 
 
 Franklin concluded this rather passionate defence of the 
 existing Constitution of Pennsylvania as follows : " I am 
 sorry to see a disposition among some of our people to com- 
 mence an aristocracy, by giving the rich a predominancy in 
 government, a choice peculiar to themselves in one half the 
 legislature to be proudly called the upper house, and the other 
 branch chosen by the majority of the people degraded by the 
 denomination of the lower, and giving to this upper house a 
 permanency of four years, and but two to the lower I hope, 
 therefore, that our representatives in the Convention will not 
 hastily go into these innovations, but take the advice of the 
 prophet, — ' Stand in the old ways, view the ancient paths. 
 Consider them well ; and be not among those that are given to 
 change ' ". 
 
 It would be hard to think of any quotation of which 
 Franklin was so fond, more inappropriate in this connection, 
 than an appeal now " to stand in the old ways ", if he meant 
 this to be an argument for the retention of a Constitution 
 which was one fabric of innovations. Throughout all these 
 
42 THE REFERENDUM IN AMERICA 
 
 thirteen years since it had been adopted, the chief objection 
 to it had been that it was new, and in total disaccord with the 
 habits, desires and traditions of the British people, of which 
 the Pennsylvanians were still a living branch. The Declara- 
 tion of Independence had not made them over again. It 
 was not more possible then, than it is to-day, to " create " con- 
 stitutions, and to introduce legal and political forms which 
 have no basis in the empirical knowledge of men as they con- 
 duct themselves, in reference to other men as members of 
 society. Therefore, we may conclude, if our testimony here 
 is trustworthy, that whether or not Franklin had a direct part 
 in originally framing the Constitution of Pennsylvania of 
 1776, he was at any rate a loyal defender of its principles. 
 
 Franklin's character in a general way is a hackneyed 
 theme. Considerations as to his life and influence do not 
 concern us here, except as they tend to show the close connec- 
 tion which existed between French and American thought at 
 this period, thus giving us 'a clearer insight into a most pe- 
 culiar phase of the development of popular government in this 
 country. It seems to be accepted that what Franklin achieved 
 in France, in securing that nation's aid in behalf of the colo- 
 nies, was not due to his friendship for two chambers or one 
 chamber of legislature, or " liberty ", or the French school of 
 philosophy, which then appears to have had no representative 
 in the government, M. Turgot having already been dismissed 
 from his high place in the state. In the cabinet of Louis 
 XVI. " generosity of spirit or sympathy with liberty was not 
 even thought of" as a motive for the alliance with the 
 American states.^"" France's course was determined on in 
 order to humiliate and break the power of Great Britain. 
 There may have been other considerations which impelled 
 French volunteers to cross the ocean and enlist under the 
 American standard, but that is quite a different matter. It 
 would be a mistake not to make allowance for the fact that 
 Franklin's universal reputation as a philosopher, had con- 
 stituted him a much more useful representative of this gov- 
 "° Chas. Francis Adams' " Life of John Adams ", Works, Vol. I, p. 309. 
 
FRENCH AND AMERICAN THOUGHT 43 
 
 ernment in France, than he otherwise could have been. How 
 his fame had been gained, would form a rather curious study, 
 though it could not affect the result, and history has definitely 
 assigned him a high place among the founders of the Ameri- 
 can nation. To regard him as a scientist and philosopher, 
 which was the habit of the time, would reflect very greatly 
 upon the state of the development of science and philosophy 
 in the i8th century. Neither, of course, then enjoyed a' very 
 high position, as we understand the terms to-day. The 
 physicists would scarcely now claim Dr. Franklin as an ex- 
 ponent of their science, and yet he was regarded by large 
 numbers of people at that time, as a greater one than Newton. 
 No one would think of placing Franklin's name among the 
 immortals in a history of philosophy, a peer of Leibnitz, for 
 instance, with whose name his was often coupled also. 
 
 If philosophy is the science of all the sciences, as we are 
 disposed to think to-day, it is not likely that Dr. Franklin 
 could have been a master in this great empire of knowledge. 
 His own early education was deficient, as Mr. Charles Francis 
 Adams somewhere observes in explanation of Franklin's 
 erratic ideas on many subjects. If we view him as a po- 
 litical philosopher, Mr. Adams' words seem almost too chari- 
 table, and yet among philosophers, none then appeared to 
 have more general appreciation and respect, either in this 
 country or in Europe. He was himself the member of 
 learned societies abroad, and nearly all his friends in France 
 were proposed for and elected to membership in his Philo- 
 sophical Society in Philadelphia. His scientific reputation 
 was truly a " phenomenon " as Mr. John Adams says in one 
 of his amusing estimates of the man.^"^ Leibnitz, Newton", 
 Frederick of Prussia and Voltaire, all seemed like lesser stars 
 in the firmament to great multitudes of people.^"^ The fe- 
 
 "' Adams' Works, Vol. t, p. 649, Appendix, Adams' letter to Boston 
 Patriot in 181 1. 
 
 ^"^ " His name was familiar to government and people, to kings, 
 courtiers, nobility, clergy and philosophers, as well as plebeians, to 
 such a degree that there was scarcely a peasant or a citizen, a valet de 
 chambre, coachman or footman, a lady, chambermaid or a scullion in a 
 
44 THE REFERENDUM IN AMERICA 
 
 male sex knew his name in connection with the service 
 he rendered them in increasing their assurance during thun- 
 derstorms, by reason of the iron points which he placed upon 
 buildings to lead the lightning down. The printers all 
 claimed him as one of their guild, and they eulogized 
 him in whatever country newspapers were published. He 
 was looked upon as the friend of all churches, and again 
 as a French atheist.^"' In politics he was always a friend of 
 government in its most popular forms, a politician wherever 
 he turned, rather than a scientist or a great statesman whose 
 work will live through time, as universally familiar as his 
 contemporaries were with his name. It would be a serious 
 error, therefore, to underestimate Franklin's influence in 
 America and in France and to allege that he was not a power- 
 ful factor in shaping the political ideas of his fellow men, 
 who, in many circles, respected him so highly, if we can show 
 that he had definite convictions in regard to the philosophy 
 of government, which has been the sole object of the studies 
 that have resulted in my writing the present chapter. 
 
 kitchen, who was not familiar with it, and who did not consider him a 
 friend to human kind. When they spoke of him, they seemed to think 
 that he was to restore the golden age. * * * To develop that com- 
 plication of causes which conspired to produce so singular a phenom- 
 enon, is far beyond my means or forces. Perhaps it can never be done 
 without a complete history of the philosophy and politics of the 
 eighteenth century. Such a work would be one of the most important 
 that ever was written ; much more interesting to this and future ages, 
 than the ' Decline and Fall of the Roman Empire ', splendid and use- 
 ful as that is.'' — Wotks, Vol. I, p. 660. 
 
CHAPTER II 
 
 THE DOWNFALL OF FRANKLIN's GOVERNMENT IN PENNSYL- 
 VANIA 
 
 The Pennsylvania Constitution of 1776 was destined to 
 have an unusually chequered career, all of which may be only 
 briefly outlined here. A considerable number of the members 
 of the Convention had refused to sign it, in this way express- 
 ing their dissatisfaction with the instrument. Among the 
 number were George Ross, the Vice-President of the Con- 
 vention, who presided in Franklin's absence, and George 
 Clymer. Very vigorous opposition to the Constitution was 
 developed in Philadelphia, so soon as the frame of govern- 
 ment was made public. Thomas McKean, who was the 
 President of the provincial conference from which the conven- 
 tion derived its powers, and of whom it was said that without 
 book or written document of any kind, he one night drew up 
 an instrument of government, which, with very little change, 
 was approved and adopted as the Constitution of the State 
 of Delaware,^ John Dickinson, Dr. Benjamin Rush, Col- 
 onel John Bayard and James Wilson, to name but a few of the 
 eminent men of the city numbered among the Anti-Consti- 
 tutionalists, openly expressed their dissent with the new 
 principles. Public meetings were called, and were largely 
 attended, resolutions were adopted, and many objections to 
 the new Constitution were stated in extenso. It was declared 
 " That the said Constitution differs not only unnecessarily 
 from that to which the people have been accustomed, but in 
 many important articles from every government that has 
 lately been established in America on the authority of the 
 people, from the sentiments of the honorable Continental 
 
 ^ Called for this reason the " Lycurgus of Delaware State ". Cf. 
 article in Pennsylvania Gazette, October 30, 1776. 
 
 45 
 
46 THE REFERENDUM IN AMERICA 
 
 Congress respecting government, from those of the most dis- 
 tinguished authors who have dehberately considered that 
 subject "} 
 
 It was proposed in order to defeat the purposes of the Con- 
 vention, and secure, if possible, another government, that 
 at the first election under the Constitution, which was to 
 occur on November 5, 1776, the electors and election officers 
 should refuse to take an objectionable oath of fealty to the 
 State which the Convention had prescribed f that the assem- 
 blymen when they should be elected, should not take an offen- 
 sive religious oath, which was too liberal, and was considered 
 to look toward atheism.* It was recommended that council- 
 ors should not be chosen at the elections in November, of 
 which officers it will be noted each county was to return one. 
 The new Assembly, it was declared, ought to have " full pow- 
 ers to make such alterations and amendments " in the Consti- 
 tution as the members might consider to be necessary and 
 proper." 
 
 As a consequence, in the elections of November in Phila- 
 delphia city and Philadelphia county, the oaths were omit- 
 ted, and councilors were not chosen, — quite in accordance 
 with the plan which had been concertedly agreed upon. 
 Anti-Constitutional candidates were elected to the Assembly, 
 and it was understood that when they met they should at 
 once proceed to a revision of the Constitution. From other 
 parts of the State, however, candidates who viewed the Con- 
 stitution with greater favor, were returned, though it is said 
 that not more than 2,000 voters exercised the suffrage 
 throughout the entire State.' 
 
 ^ Resolutions of meeting in the State House yard, Philadelphia, Octo- 
 ber 21-22, 1776; cf. Pennsylvania Gasette, October 23, 1776. 
 
 ' Section 40 of Constitution. Also ordinance of convention, in Minutes 
 of Convention, p. 56. 
 
 ' Sec. 10 of the Constitution ; cf. Resolutions of the meeting in the 
 State House yard, sec. 26. 
 
 "/feirf. 
 
 • " This Constitution was no sooner published, than it was reprobated 
 by a great body of the people. Some of the members of the convention 
 
DOWNFALL OF FRANKLIN'S GOVERNMENT 47 
 
 When the Assembly met, the opponents of the Constitu- 
 tion were strong enough, to effect one thing at least. By 
 refusing to take their seats, they could prevent the house from 
 organizing. John Dickinson, who led the Anti-Constitution- 
 alists, seeing that there was no prospect of amending the 
 Constitution through the Assembly, early in the session made 
 the following proposition: 
 
 " On behalf of myself and of others of my constituents, I 
 agree that we will consent to the choice of a Speaker, sit with 
 the other members, and pass such acts as the public affairs 
 may require, provided that the other members, the majority, 
 will agree to call a free convention for a full and fair repre- 
 sentation of the freemen of Pennsylvania, to meet on or 
 before the day of January next, for the purpose of re- 
 vising the Constitution framed by the late Convention, and 
 making such alterations and amendments therein as shall 
 by them be thought proper," etc. The proposal having not 
 been received with favor by the majority of the members, 
 
 who composed it were insulted upon returning to their respective coun- 
 ties. Unfortunately for the State, General Howe invaded New Jersey, 
 and pointed towards an attack upon the capital of Pennsylvania about 
 the time fixed upon by the convention for the election of an assembly 
 to execute the Constitution. A government of some kind became neces- 
 sary to collect the force of the State to resist the approaching enemy. 
 About two thousand voters only appeared in favor of an assembly. 
 The members chosen took their seats, and after setting aside several 
 parts of the Constitution which they had previously sworn to main- 
 tain, they undertook to execute the parts of it which remained. So 
 obnoxious was the Constitution to the best men in the State, that the 
 Executive Council, after tempting a number of them with the first of- 
 fices in the government to no purpose, were obliged to call a Chief 
 Justice and an Attorney General from the neighboring States." — 
 Pennsylvania Packet, Feb. 2, 1779. "It was in vain that some men of 
 more prudence and foresight in the convention objected to many parts 
 of the proposed Constitution in every stage of its progress. It was car- 
 ried as it now appears, in heat and in haste. Necessity, the tyrant's 
 useful plea, was urged for carrying it into immediate execution, with- 
 out submitting it to the discussion or sovereign sanction of the people. 
 Scarce a twentieth part of the people would countenance the Consti- 
 tution by giving a vote under it at the first election." — Article in Penn- 
 sylvania Packet. Feb. 6, I779. 
 
48 THE REFERENDUM IN AMERICA 
 
 Dickinson and several of his colleagues withdrew from the 
 house, which had the result of breaking a quorum. 
 
 The situation was so grave, however, by reason of the ap- 
 proach of the British army, that the Continental Congress, 
 in the absence of any organized authority in the State, 
 threatened to intervene and establish a provisional govern- 
 ment. The contending factions therefore agreed to elect a 
 speaker, and proceed to the transaction of business, though 
 Dickinson and his immediate following still refused to occupy 
 their seats. Writs were issued by the speaker in February, 
 1777, for the election of members in their places. Council- 
 ors and other ofificers were also chosen at special elections, 
 and on March 5, 1777, the Council and the Assembly, having 
 met together in the manner contemplated by the Constitu- 
 tion, elected the first President and Vice-President of the 
 State, and they were inducted into office with some cere- 
 mony.'' 
 
 This appearance of vigor in the new government, however, 
 did not have the effect of allaying the popular uneasiness and 
 distrust, and the agitation for a new Constitution was soon 
 renewed. The Whig Society, of which Paine, Cannon and 
 Young were active members, was organized to oppose the 
 anti-constitutional movement. In the spring of 1777, the 
 threatening attitude of the British army once again occa- 
 sioned alarm to Congress, and on April 14 it was resolved 
 that the subject was so important as to require Congressional 
 superintendency and oversight. On April 15 a committee 
 of Congress to which the matter had been referred, reported 
 that " the executive authority of the Commonwealth of Penn- 
 sylvania is incapable of any exertion adequate to the present 
 crisis ", which the Anti-Constitutionalists at once took to be 
 an absolute condemnation of the new government. " Weak- 
 ness and languor are apparent in every part of the govern- 
 ment. There is no regular administration of justice, whereby 
 
 ' Thomas Wharton, Jr., councilor for Philadelphia County, was elected 
 President, and George Bryan, councilor for Philadelphia city, Vice- 
 President. 
 
DOWNFALL OF FRANKLIN'S GOVERNMENT 49 
 
 the enemies of our country may be punished and its friends 
 protected ", said a number of petitioners who addressed " the 
 President of the Executive Council and the Board of War * 
 for the State of Pennsylvania ", on May 6, 1777. They 
 asked therefore " that as soon as the Assembly shall meet, ap- 
 plication be made to them to recommend the election of a new 
 Convention for the purpose of altering and amending the 
 Constitution ". The Board of War, Richard Bache, Chair- 
 man, on May 14, replied to its petitioners that it heartily ap- 
 proved of the proposition as a " salutary and necessary 
 measure ". 
 
 The Supreme Executive Council itself on June 11, ad- 
 dressed the Assembly as the Board of War had done a few 
 days earlier. In this communication, the councilors de- 
 clared that " they are sorry to find the present Constitution 
 of the State so dissatisfactory to any of the well-affected in- 
 habitants thereof, and would gladly concur in any suitable 
 and safe measure for the removal of this uneasiness ; that they 
 are of the opinion this might be greatly attained by ta- 
 king the sense of the majority of the electors throughout the 
 counties on the important question whether a Convention be 
 holden at some proper time to reconsider the frame of gov- 
 ernment formed by the late Convention ; that to fix the exact 
 mode of obtaining the mind of the majority on the subject 
 most properly belongs to their representatives ; that the 
 Council hope that if some suitable mode of advising and get- 
 ting the people at large to declare themselves, and if this were 
 advised and published at this time, great ease and relief would 
 thereby be given to some persons who are dissatisfied as 
 aforesaid ; and that unanimity in the common cause so neces- 
 sary at this time, will be promoted ". ® 
 
 Even the Whig Society, which of course engaged itself in 
 an eflfort to defeat the movement for a new Constitution, was 
 now favorable to a plebiscite on this subject, as it or its suc- 
 
 ' A State Military Board appointed by the Supreme Executive Council. 
 There was also -i " Navy Board ''. 
 ' Colonial Records, Vol. XI, p. 220. 
 
so THE REFERENDUM IN AMERICA 
 
 cessor, the Constitutional Society, did not find it expedient 
 to be at a later date." The Whig Society asked the Assem- 
 bly if the worst happened, at least to " take the necessary steps 
 for collecting the sense of the State previous to any such 
 recommendation " — i. e., a " recommendation " to the people 
 to elect a new Convention. The Assembly on June 12 en- 
 tered upon the immediate consideration of the project, and 
 resolved that it would " recommend it to the inhabitants of the 
 Commonwealth to give their sense of the present dispute re- 
 specting the calling of a Convention ". A committee was ap- 
 pointed to devise and propose a plan by which this " sense " 
 should be ascertained, and the Assembly upon receiving its 
 report, determined on June 17 to submit the question to the 
 people, their answer to be given directly by a yea and nay 
 vote. 
 
 It is of interest to note how this early plebiscite in Pennsyl- 
 vania was to be taken. The freemen of each township, 
 borough, ward or other local district, when they next chose 
 their " inspectors " for the election of members of the Assem- 
 bly, were to select " commissioners ", one for each local dis- 
 trict. The duties of these " commissioners " were rather 
 ambiguously defined in the law as follows: 
 
 " To go to the house or place of residence of each and every 
 freeman entitled to vote for members of General Assembly 
 within their respective townships, boroughs, wards or dis- 
 tricts, or to take some other opportunity of meeting with 
 them. The said commissioner shall ask each and every of 
 the said freemen whether he desires that a convention be now 
 called, and the freeman shall give in writing on a scroll or 
 piece of paper, his vote or answer, which he shall put into a 
 box provided for that purpose, which he shall keep shut and 
 in his own possession, and return the same on or before the 
 tenth day of November to the sherifiE of the city or county 
 to which he belongs, or in case of the death, sickness or ab- 
 sence of the sheriff, to the coroner, who, with the assistance 
 of the said commissioner, shall examine the said box or bag, 
 
 " Cf. infra, p. 53. 
 
DOWNFALL OF FRANKLIN'S GOVERNMENT 5^ 
 
 and cast up the number of votes therein contained on each 
 side of the question, and the sheriff or coroner shall deliver to 
 such commissioner a certificate of the said numbers, and 
 also return a true account thereof, under the hands and seals 
 of the said sheriff or coroner, and of the said commissioner^ 
 to the next General Assembly at their first sitting."^^ 
 
 As the State soon became the center for the military opera- 
 tions of a considerable portion of the British army, the pleb- 
 iscite could not be taken, but with the evacuation of Phila- 
 delphia by the enemy in 1778, expressions of dissatisfaction 
 with the Constitution were immediately renewed. In No- 
 vember, 1778, the subject was again brought before the As- 
 sembly, and on the 28th day of that month, the house passed 
 resolutions stating that whereas " divers petitions " had been 
 presented to former assemblies " suggesting inconveniencies 
 in the present Constitution and form of government ", and 
 asking for a submission of the question to the people, and 
 whereas resolutions providing for such a vote had earlier been 
 agreed to, but " the invasion of the State and other circum- 
 stances " had prevented it being carried into effect, another 
 attempt would be made to get an expression of public opinion 
 • in April, 1779. The people were to vote by ballot the slips 
 of paper containing the words " For a Convention ", or 
 " Against a Convention ", as the preference of the voter 
 might dictate. The members of the Convention were to be 
 selected at the same time, so that the people would not be 
 '■' put to the inconvenience of a second meeting ", should a 
 majority of the ballots be unfavorable to the existing Con- 
 stitution. The Convention, in case the people should sanction 
 it, was to meet at Lancaster on June i, 1779.^^ 
 
 "Journals of the Assembly, p. 145. 
 
 " Journals of the Assembly, pp. 246-47. This resolution, which was 
 passed November 28, 1778, provided, " That the people throughout this 
 State qualified to vote for members of Assembly, do meet at the usual 
 places of election since the late happy revolution, on the 2Sth day of 
 March next, and choose judges and inspectors as by law directed in 
 case of representatives. And the said judges and inspectors being so 
 chosen and sworn as at the election of representatives, shall provide 
 
52 THE REFERENDUM IN AMERICA 
 
 Were the vote favorable to a Convention, it was provided 
 that that body should determine on nine separate points. 
 Those most vitally affecting the character of the Constitution, 
 related to the division of governmental powers; — whether 
 the legislature in the future should consist of one house or 
 two ; whether the executive authority should be strengthened 
 and given a position more independent of the Assembly; 
 whether the judiciary should continue to be the servant of the 
 Assembly, and whether the anomaly called the Council- of 
 Censors might not better be abolished. It was still in Phila- 
 delphia that the most dissatisfaction was expressed in refer- 
 ence to the Constitution.^' It was now, as at a later time, 
 a favorite mode of defending the Constitution against 
 every attack upon it to say that those who most desired to 
 change it were " Tories ". John Dickinson, James Wilson 
 and Richard Bache, all were accused of their Tory inclina- 
 
 iwo boxes for the city and each district of every county; and on the 
 first Tuesday of April next they shall receive the votes of the free- 
 men qualified at the time of said election by law, to vote as aforesaid, 
 making at the same time a list of the voters' names, and put into 
 one box all the votes for and against a convention, the voters in favor 
 of a convention writing on their tickets ' For a Convention ', and those 
 against it ' Against a Convention ', and in the other box they shall put 
 the votes for the members of such convention as that, if the majority 
 of votes should be in favor of a convention, the minority may not be 
 precluded from a choice in the persons who are to compose it, or the 
 people put to the inconvenience of a second meeting ". These boxes 
 after the meeting had adjourned were to be sealed, and delivered by the 
 election officers to the sheriffs at the court houses of the respective 
 counties, who then should take them up to the Assembly where the 
 boxes would be opened, and the ballots counted. " If a majority of votes 
 shall appear to be against a convention, then no further proceedings 
 shall be had, but if a majority of votes shall be for a convention, the 
 Assembly shall then proceed to open the boxes containing the names 
 of the members for the city and county, and shall declare the six 
 highest in number from each city and county to be the members to rep- 
 resent the said city and county in convention." 
 
 " Cf. Pennsylvania Packet, Jan. 21, 1779. A correspondent replying 
 to the assertion that a majority of the citizens of Philadelphia were in 
 favor of the Constitution, said that " nothing could be farther from the 
 truth '', and added that " at every general election " held in this city 
 since the formation of the present Constitution, Anti-Constitutional mem- 
 bers have been returned. 
 
DOWNFALL OF FRANKLIN'S GOVERNMENT S3 
 
 tions, whenever they exerted themselves in behalf of a change 
 in the system of government in Pennsylvania.^* 
 
 This very cheap and successful method of " campaigning " 
 was used with effect against John Adams and other Amer- 
 icans, very loyal and in the highest degree useful to their 
 countrymen, who could well afford to let their enemies stamp 
 and fume if their services could be of any value in saving the 
 new nation from such a democratic upheaval as was soon to 
 fall to the lot of the foolish people of France. It was not the 
 Tories who were leading the movement against this unright- 
 eous Constitution, but, a great branch of the Whig or Amer- 
 ican party, for the Tories were safely enough shut out from 
 any part in political affairs during this period. The Whig 
 party in Pennsylvania was cloven through and through on 
 the constitutional issue, being almost equally divided in num- 
 bers into the Constitutional and the Anti-Constitutional, or 
 so-called " Republican " factions, an alignment which con- 
 tinued until the new convention met in 1790, when the gov- 
 ernment of the State was made to conform to the common 
 American model. 
 
 The Constitutionalists conducted such a campaign through 
 the counties, circulating petitions and assembling the names 
 of remonstrants against the plebiscite which had been set for 
 April, 1779, that the Assembly weakened at the last moment, 
 although the resolution authorizing the vote of the people 
 had been passed unanimously by the same Assembly in the 
 preceding November.^" 
 
 " Dickinson defended himself in a public address, Pennsylvania 
 Packet, Dec. 31, 1782 ; James Wilson in Pennsylvania Packet, October 
 17, 1780. Cf. Article of Timothy Matlack in Pennsylvania Packet, 
 March 30, 1779, for an attack upon Mr. Bache, at that time President 
 of the so-called " Republican Society " — an Anti-Constitutional Club. 
 
 " Familiar methods were used in the country districts to prejudice 
 the people against the convention. Assertions were made, as they were 
 afterward and before, that it was an attempt to establish a hateful 
 " House of Lords " ; cf. Address of Republican Society, signed by 
 Richard Bache, Chairman, Pennsylvania Packet, March 25, 1779, in 
 which he asked ; " Were you not told when the petitions were presented 
 to you that the opposition to the Constitution arose and was supported 
 
54 THE REFERENDUM IN AMERICA 
 
 The members of the Assembly, it was said, had taken the 
 oath to support the Constitution, as it was prescribed that 
 they should do in that instrument, and yet they had inconsist- 
 ently voted for a convention to change it.^* If change were 
 needed, there was a method by which this could be effected, — 
 namely, through the Council of Censors. A convention 
 called by any other authority would be extra-constitutional.^' 
 A single remonstrance containing the names of 3743 inhabi- 
 tants of Lancaster County, was received in the Assembly,^* 
 and altogether signatures to the number of 16,000, at least, 
 seem to have been secured,^" enough in any case to induce 
 the house on February 27, 1779, only a few weeks before the 
 date fixed for the plebiscite to rescind its earlier action by a 
 vote of 47 yeas to 7 nays.^" " Whereas a very considerable 
 number of the inhabitants of this Commonwealth are much 
 dissatisfied with the said resolution," the Assembly declared 
 in its repealer it had been induced to change its order for a 
 popular vote, and thus the issue was postponed again, though 
 the discussion was happily allowed to subside in some degree 
 until the Council of Censors held its first regular meeting in 
 1783-84, when the argument was revived with all its orig- 
 inal and indeed an increased asperity. 
 
 It was the time of the fantastic and the elegant in political 
 philosophy, when the facts of life and the experience of the 
 human race must take a place subordinate to style of expres- 
 sion and flowing language, which were often used to disguise 
 
 only by a junta of gentlemen in Philadelphia, who wished to trample 
 upon the farmers and mechanics, to establish a wicked aristocracy, and 
 introduce a House of Lords, hoping to become members of it ? " 
 
 ^'Pennsylvania Packet, Feb. 4, 1779. 
 
 '"Ibid., March 2, 1779. "Ibid. 
 
 " Address of Richard Bache, Pennsylvania Packet, March 25, 1779. 
 Here it is admitted that 16,000 signatures were received, though it was 
 said that these represented only a third or fourth part of the inhab- 
 itants of the State, to which there was the pleasant retort that the other 
 two-thirds or three-fourths were Tories. Cf. Address to the people by 
 the minority members of the Council of Censors, Pennsylvania Packet, 
 Jan. 27, 1784. 
 
 '"Journals of the Assembly, pp. 323-324. 
 
DOWNFALL OF FRANKLIN'S GOVERNMENT 55 
 
 pleasant idealistic illusions. The Roman Censors were to 
 meet every seven years, a " romantic " period, as a contem- 
 porary newspaper writer observed.^^ The literary age which 
 produced Rousseau, Diderot, d'Alembert, Condorcet and even 
 Frankhn with all his rustic crudity was an age of elegance. 
 The Pennsylvania Constitution was a product of this literary 
 apriorism, and after tasting of the viands we must feel some- 
 what nauseated as Adams did when he had attended this 
 strange feast in France. " I am no enemy of elegance ", Mr. 
 Adams explained, " but I say no man has a right to think of 
 elegance till he has secured substance, nor then to seek more 
 of it than he can afford.''''^ 
 
 In 1783 when the date had arrived for each county to 
 return two members to the Council of Censors, whose duty it 
 would be to ascertain whether or not the Constitution had 
 been " preserved inviolate in every part ", the two parties 
 in Pennsylvania put forth strenuous efforts. The Anti-Con- 
 stitutionalists seemed at first to be triumphant. It was al- 
 leged, however, that in Philadelphia, soldiers from other 
 States, quartered in the city, had been allowed to vote ; that 
 they were " assembled together by beat of drum on the day of 
 the election, and marched with ofScers at their head toward 
 the State House" ; that the judges and inspectors were " over- 
 awed " ; that " the officers of the army attended at the win- 
 dows with their swords in their hands, and the sergeants 
 were employed in distributing tickets ", etc.^^ By a vote of 
 fourteen to seven, however, the Council of Censors deter- 
 mined that the election of two censors for the city of Phila- 
 delphia was " agreeable to the laws of this State ", and by 
 fourteen to eight that there was " no legal cause for setting 
 aside the said election ". 
 
 " This term was doubtless suggested by the septennial parliamentary 
 period in England, and seems to have been an idea, therefore, of Brit- 
 ish rather than French lineage. 
 
 "" Works, Vol. I, p. 433. 
 
 " Petition to the Council of Censors by certain Constitutionalists in 
 Philadelphia, Pennsylvania Packet, January 10, 1784. Also Journal of 
 the Council of Censors, p. 22. 
 
S6 THE REFERENDUM IN AMERICA 
 
 Upon the announcement of this decision the eight mem- 
 bers in the minority issued a long manifesto or protest, 
 which was entered on the minutes of the Council/* the Presi- 
 dent of which was F. A. Muhlenberg, afterward the first 
 Speaker of the House of Representatives of the United 
 States. The censors instead of setting themselves to the task 
 of determining whether or not the Constitution had been 
 " preserved inviolate ", and the various departments of the 
 government had kept themselves within their rightful limits, 
 at once took measures looking to a call for a new convention. 
 The Council could issue such a call, of course, on a vote of its 
 members. The Constitytionalists had been the loudest in 
 their appeals to the Constitution, as a means of accomplish- 
 ing its own reform m 1778 and 1779, but they now resisted 
 the movement with all the force they could command.^" The 
 report of the " Committee on the Defects and Alterations of 
 the Constitution "^° was a masterly statement of the various 
 arguments against the Pennsylvania Constitution, and it de- 
 serves a high place among the archives of government on this 
 continent. 
 
 Respecting the single house of assembly, the report de- 
 clared that the Constitution in this detail was " materially 
 defective ". A body of men upon whose action there was 
 no veto, was a source of danger in the state ; first, because if 
 it should happen that a prevailing faction in that body were 
 " desirous of enacting unjust and tyrannical laws, there would 
 be no check upon their proceedings " ; and second, because 
 an " uncontrolled power of legislation will always enable the 
 body possessing it to usurp both the judicial and the executive 
 authority, in which case no remedy would remain to the 
 people but by a revolution." 
 
 The division of the executive authority among so many 
 persons; namely, the various members of the Executive 
 Council, who with the formation of new counties had in- 
 
 "* Journal of the Council of Censors, p. 26. 
 
 " Cf. an address to the people in Pennsylvania Packet, January 27, 
 1784. "Packet, Jan. 24, 1784; Journal of Council, pp. 53 et sea. 
 
DOWNFALL OF FRANKLIN'S GOVERNMENT 57 
 
 creased until they now numbered thirteen, was also regarded 
 as a defect. Some of the principal reasons for their opinion 
 were developed in the committee's report, and it was alleged 
 that the constant sitting of a Council was expensive and bur- 
 densome ; that a numerous body of men does not possess the 
 decision necessary for action in sudden emergencies ; that if 
 the Council be " weak or wicked " in its action, " there is no 
 individual so accountable to the public as every man ought to 
 be in such cases " ; that since the President is chosen by the 
 joint ballot of the Council and Assembly " if a prevailing 
 faction should ever happen in the Assembly, so as to lead a 
 considerable majority, the President thus chosen will have 
 nothing to fear from the legislature, and by influencing the 
 Council, would possess exorbitant authority without being 
 properly accountable for the exercise of it ". 
 
 In respect of the judiciary, it was said that this needed re- 
 form also, in the sense that now the terms were too short, the 
 Supreme Court judges being commissioned for seven years 
 only, and being removable at any time by the Assembly for 
 '■ misbehavior ". This was looked upon as a grave mistake 
 in political policy, for " if the Assembly should pass an un- 
 constitutional law, and the judges have virtue enough to re- 
 fuse to obey it, the same Assembly could instantly remove 
 them ". The rotation of offices of inferior kinds, as provided 
 for in the Constitution, the committee conceived to be an 
 error, and this point was argued in a manner to do great 
 credit to our ablest advocates of " civil service reform " at a 
 later day. 
 
 The committee proposed that there should henceforth be a 
 legislature of two houses, to be called the " Legislative 
 Council ", and the " Assembly ". These together should be 
 denominated " The General Assembly of Pennsylvania ". 
 The Council was alluded to as the " first branch ", in order 
 to avoid the distinctions of " upper " and " lower ", which 
 many considered so objectionable. Both houses were to be 
 elected by the people, though on separate apportionments, the 
 units of population in the case of the Council being larger 
 
S8 THE REFERENDUM IN AMERICA 
 
 than for the Assembly. The assemblymen were to be elected 
 annually ; the councilors for periods of three years, one-third 
 returning every year, in the general manner, later made so 
 familiar to us in the Federal system, in respect of the United 
 States Senate, it being as well the usual method employed 
 in nearly all the State governments. 
 
 As for the executive power, there was to be a Governor 
 annually chosen by the people. Each house, of course, was 
 to have a negative on the measures of the other, and the 
 Governor would possess a veto in reference to the work of 
 both. The Governor was to appoint the judges, who were to 
 hold ofBce indefinitely, during " good behavior ", a point, 
 however, which the Assembly was no longer to determine 
 upon its own responsibility. The Council of Censors, which 
 was the object of much ridicule, was to be abolished. 
 
 This report was adopted by the Council of Censors, by a 
 vote of twelve to nine, which was less than the constitutional 
 two-thirds majority requisite to call a new Convention, 
 wherefore the Council shortly adjourned, or " suspended its 
 deliberations " to use its own term in this connection, in order 
 to allow the question to be debated well by the people. The 
 nine members who had dissented from the report issued a 
 statement in defence of their course. In this peculiar docu- 
 ment they said : " The alterations proposed will introduce 
 a form of government much more expensive, burdensome 
 and complicated; — but what we dread more than expense 
 and delay, they tend to introduce among the citizens, new and 
 aristocratic ranks, with a chief magistrate at their head, 
 vested with powers exceeding those which fall to the ordinary 
 lot of kings. We are sufficiently assured that the good people 
 of Pennsylvania most ardently love equal liberty, and that 
 they abhor all attempts to list one class of citizens above the 
 heads of the rest, and much more the elevating any one citizen 
 to the throne of royalty. And herein we are confident we 
 speak not only the language of our constituents, but that we 
 proclaim also the voice of God and nature." " 
 
 "Journal of Council, p. 75. 
 
DOWNFALL OF FRANKLIN'S GOVERNMENT 59 
 
 The majority, under Mr. Muhlenberg's leadership, on their 
 side, issued an address to the people of Pennsylvania, which 
 was adopted in the Council by a vote of twelve to ten. In this 
 address it was stated that the minority of the Council did not 
 represent one-third of the people in the State. Each county 
 having equal representation, that is, two members, some of 
 the least populous parts of the State acquired an undue 
 strength. The address was a careful and rational statement 
 of the case from the point of view of well informed and con- 
 servative men, and the people were asked seriously to con- 
 sider the question of calling a new convention, making known 
 to the Council their sentiments regarding the proposition 
 before it should reassemble in a few months.^* 
 
 The minority in the Council hereupon published a counter 
 memorial to the people, which for rough democratic convic- 
 tion, has perhaps never been excelled by any political docu- 
 ment ever penned in this country. These fearless friends 
 of popular rights appealed to the people in the following 
 terms : ^° " Let no artful addresses of those aspiring despots 
 who wish to establish and fill an upper house of lords amongst 
 you, that they may thereby more effectually teach you sub- 
 mission to your betters, prevail with you to give up a Consti- 
 tution which is the admiration of Europe, which attracts the 
 attention of every friend of equal liberty in the world, and 
 which will continue to brighten and grow, illustrious as long 
 as the lamp of science shall irradiate the Western world, and 
 the genius of liberty protect its hardy sons from the en- 
 croachments of arbitrary power." The object which these 
 " despots " desired to attain, our democrats explained, was 
 the establishment of " an upper house to accommodate the 
 better sort of people, and to vest them with full power to pre- 
 vent any law from passing which a number of honest farmers 
 from the country may judge to be salutary and beneficial to 
 the State ". And not only was the Senate a dangerous anti- 
 popular device, but "your Governor or King (for it matters 
 
 "Journal of Council, p. 77- 
 ^Pennsylvania Packet, Jan. 27, 1784. 
 
6o THE REFERENDUM IN AMERICA 
 
 not by what name you may call him) " would have " absolute 
 power to put a negative on any bill which both houses may 
 agree to enact ", whereby " you may finally despair of ever 
 having it in your power, without bloodshed, to counteract an 
 ambitious tyrant at the head of your government". The 
 public, too, was gravely assured that the Governor would 
 have " greater legislative authority than the Kings of Great 
 Britain", while there would be established in the State an 
 odious " aristocratic nobility ".'" 
 
 Petitions and remonstrances were circulated assiduously by 
 the two parties, and so hotly was the campaign prosecuted, 
 that later in the year when the censors met again, the Con- 
 stitutionalists had got control of the Council. Some vacan- 
 cies which had occurred in the membership, had been filled. 
 A few members who had earlier been in favor of a conven- 
 tion, were now against it, and on September i6, 1784, it was 
 resolved by a vote of fourteen to ten ^^ that " there does not 
 appear to this Council an absolute necessity to call a con- 
 vention to alter, explain or amend the Constitution ", and in 
 an address to the people, on September 24, 1784, the censors 
 announced that this action had been taken because of the 
 great number of remonstrances which they had received.'^ 
 In the election of members of the Assembly which followed, 
 the Constitutionalists won a signal victory, securing a major- 
 ity of twenty in the house,'' which took occasion soon after 
 it met, to express its firm attachment to the Constitution, 
 " that great bulwark of equal liberty ".'* 
 
 Franklin, who for nine years had been encouraging the 
 
 "° Cf. Pennsylvania Packet, Feb. 12, 1784. 
 
 '^Journal of Council,, p. 163. "Journal, p. 177. 
 
 " In this campaign the constitutional issue was again confused with 
 the question of loyalty to the general American cause. An attempt had 
 been made to modify the so-called " Test Laws ", by which many 
 Quakers and others suspected of Tory affiliations, were excluded from 
 a part in the State government. As the Anti-Constitutionalists had been 
 identified with the movement to liberalize these laws, the radicals were 
 the better able to conduct a successful campaign in the autumn of 1784. 
 
 "Pennsylvania Packet, Dec. 27, 1784. 
 
DOWNFALL OF FRANKLIN'S GOVERNMENT 6i 
 
 Pennsylvania Constitutionalists from the European shore," 
 arrived in Philadelphia again in September, 1785. He was 
 accorded a generous welcome. Among other marks of at- 
 tention, he was presented with an address from the Consti- 
 tutional Society. A committee of fifteen members of this 
 organization appeared before him, and in their address they 
 said : " It would be endless to enumerate the great variety of 
 instances m which you have benefited the State of Penn- 
 sylvania in former times and of late; — before the late glori- 
 ous Revolution, and since. We cannot, however, omit to 
 express the high veneration with which we view you as the 
 father of our free and excellent Constitution. In this great 
 work we persuade ourselves that you, in conjunction with the 
 other patriots of the Convention, over which you presided, 
 have erected a stronghold to the sacred cause of liberty, 
 which will long continue as it has hitherto done, to resist the 
 assaults of all its enemies, and if anything of human con- 
 trivance could attain to immortality, we would fondly flatter 
 ourselves that it might remain forever." " To this little sect 
 of enthusiasts who clung to their doctrines with the faith 
 that belongs to a religion, Franklin made a characteristic 
 response : " Your friendly congratulations on my safe return 
 to our country, are extremely obliging. In the services you 
 are pleased so kindly to remember I had great and able assist- 
 ance from others. My principal merit, if I may claim any in 
 public affairs, is that of having been always ready and willing 
 to receive and follow good advice. I think myself happy in 
 returning to live under the free Constitution of this Common- 
 wealth, and hope with you that we and our posterity may 
 long enjoy it." '' 
 
 Elections for the Executive Council and Assembly were 
 
 " Franklin wrote to a friend in Philadelphia under date of March 1 9, 
 1780 : " The disputes about the Constitution seem to have subsided. It 
 is much admired here and all over Europe, and will draw many families 
 of fortune to settle under it, as soon as there is peace." — Pennsylvania 
 Packet, Jan. 27, 1784- 
 
 "Pennsylvania Packet, Sept. 19, 1785. 
 
 "Ibid.. Sept. 19, 1783- 
 
62 THE REFERENDUM IN AMERICA 
 
 again pending, and the Constitutional Society at once made 
 Dr. Franklin its candidate for the Council, to represent 
 Philadelphia city, to which office he was elected. When 
 the Assembly and Council met to choose a President for the 
 State for the ensuing year, Franklin, as it was planned that 
 he should be, — when he was placed in the Council, — was 
 elevated to this position. The proclamation of his election, 
 we are told, was made at the Court House " amidst a great 
 concourse of people, who expressed their satisfaction by re- 
 peated shouts ".'* Both parties united in doing him this 
 honor, and his election appears to have been unanimous, ex- 
 cept for his own vote, a circumstance which afforded him 
 much satisfaction, as he mentioned the fact in his correspond- 
 ence with the Duke de La Rochefoucauld, and with his other 
 friends in France.^' In the same way he was re-elected to the 
 office in 1786, and in 1787, when, upon completing his third 
 year, he, by the terms of the Constitution, could serve no 
 longer, and retired to private life, being congratulated by his 
 French friends for the fortitude he had shown at his great 
 age, in taking up the reins of government in a turbulent 
 State.*" 
 
 With the establishment of the Federal Constitution, pub- 
 lic attention was directed to its form, which followed Adams' 
 English type, and was so far out of sympathy with the prin- 
 ciples which were contended for with such zeal in 
 Pennsylvania and France. The conviction deepened in 
 Pennsylvania that Franklin's Constitution must be changed. 
 The Constitutionalists, consistent to the end, opposed the 
 adoption of the Federal Constitution because of its aris- 
 tocratic character. They were not particularists as were the 
 " States rights " men who opposed the Constitution of the 
 United States, on the ground that the federation would be so 
 much stronger than the individual members which composed it. 
 
 '^Packet, Oct. 31, 1785. 
 
 ^' Cf. Temple Franklin's Collection, Vol. II, p. 97. 
 *" Cf. Letter of the Duke de La Rochefoucauld, Sparks' Works of 
 Franklin, Vol. X, p. 247. 
 
DOWNFALL OF FRANKLIN'S GOVERNMENT 63 
 
 They were social theorists who contended that society would 
 sufifer ; that men would be ground under a weight of complex 
 governmental machinery, and that classes would be formed, 
 undoing all the good which had been gained by a return to 
 Rousseau's state of nature. The Assembly of Pennsylvania, 
 in 1787, had voted to authorize an election for members of 
 a State Convention to ratify the Federal Constitution. About 
 a score of the Pennsylvania Constitutionalists opposed this 
 movement with a pertinacity worthy of some useful cause. 
 They absented themselves from the Assembly, in order to 
 break a quorum, and thus prevent the transaction of public 
 business. They complained that two of their body " were 
 seized by a number of citizens of Philadelphia, who had col- 
 lected together for that purpose, their lodgings were violently 
 broken open, their clothes torn, and after much abuse and in- 
 sult they were forcibly dragged through the streets of Phila- 
 delphia to the State House, and there detained by force " ; 
 that " in the presence of the majority " they were treated 
 with the most insulting language [by the crowd in the gal- 
 lery] while the house so formed proceeded to finish their 
 resolutions ".*^ 
 
 These martyrs to the liberal cause now issued an " Address 
 to the People " after the manner of the time, in which they 
 explained how great was their opposition to a Constitution, 
 such as that one was which a State Convention would soon 
 be called together to ratify, — with its two houses, including 
 its aristocratic Senate, the Federal Judiciary and other 
 features so hostile to the spirit of true democracy.*^ Such 
 proceedings, it may be noted, are not very unlike many 
 which were to ensue in France during the period when gov- 
 ernment was concentrated in a single house of legislature in 
 that country. 
 
 The Constitutional party in Pennsylvania, when the Fed- 
 
 '^ Pennsylvania Packet, Oct. 4, 1787. Cf. Minutes of the Eleventh 
 General Assembly of Pennsylvania, p. 244. 
 
 "Pennsylvania Packet, Oct. 4, 1787. Cf. Address of the dissenters in 
 the Convention, Ibid., Dec. 18, 1787. 
 
64 THE REFERENDUM IN AMERICA 
 
 eral Constitution had been adopted, found itself a small 
 protesting minority, not in one State, but in thirteen, — in a 
 whole nation. The battle had now been won. The English 
 Constitution, fitting in as it did with the traditions, the 
 character, the empirical details of the whole American civ- 
 ilization, had triumphed at last. The Constitution of Eng- 
 land, of Montesquieu, of John Adams, of Massachusetts, 
 Virginia, New York and Maryland, and nearly all the Amer- 
 ican States, had become the Constitution of the nation, and 
 Pennsylvania must now leave her isolated place, and join 
 her sister States, conforming to the general model which 
 Ross and Clymer, and McKean and Wilson, and Dickinson 
 and Muhlenberg, the loyal ten in the Council of Censors of 
 1784, and many another friend of the Commonwealth had 
 striven for, against such singular and mighty odds.*' 
 
 What remained was but a slight detail, — a resolution of 
 the Assembly, an election of delegates, a convention. On 
 March 26, 1789, by a vote of forty-one to sixteen, resolu- 
 tions were passed by the Assembly recalling the fact that 
 the people had the inherent right to alter their governments, 
 choosing their own method, wherefore the people of the 
 counties were recommended to elect members to a convention 
 equal to the number of members returned to the Assembly.** 
 The Executive Council was now a great inconvenience. With 
 the addition of counties, it had come to have a membership 
 of nineteen. It was spoken of as " an absurdity of the most 
 glaring kind ", while its chief object was said to be " to 
 shelter the most active and mischievous characters from that 
 responsibility which they owe to the people, and prevent 
 them from being individually obnoxious to legal punishments 
 
 " " By this event [the adoption of the Constitution of the United 
 States] the Constitutional party of Pennsylvania was laid at the feet 
 of the Republicans, who, now triumphant under the appellation Federal- 
 ists, overwhelmed their adversaries with the short-lived odium of Anti- 
 Federalism." — Graydoii, Memoirs, p. 342. 
 
 "Cf. Pennsylvania Packet, March 23, 1789, for the text of an address 
 to the people, which was introduced in the Assembly, but was not 
 adopted. Also Ibid., March 24, 1789. 
 
DOWNFALL OF FRANKLIN'S GOVERNMENT 65 
 
 for any reprehensible proceedings ".*^ The dissentient 
 members of the Assembly, who still clung faithfully to the 
 Constitution, filed the reasons for their opposition to the 
 course of the majority.*" They alleged again that the legis- 
 lature was exceeding its authority when it issued a call for 
 a convention, that the Council of Censors would soon meet 
 once more, when a change might be made, if it were ad- 
 judged to be necessary, through constitutional channels. This 
 was described as the fourth attempt of the " aristocratic 
 party to betray you into a voluntary surrender of your lib- 
 erties ", by the destruction of " that free and equal Constitu- 
 tion, which an overborne minority in your Assembly is no 
 longer able to preserve "." Petitions were again circulated 
 for the signatures of the Constitutionalists, but when the 
 Assembly reconvened in the autumn, a resolution was passed 
 by a vote of thirty-nine to seventeen finally sanctioning the 
 convention, which was called to meet in Philadelphia, Novem- 
 ber 4, 1789,** and this was the Constitution of 1776's last 
 death throe. 
 
 Once the convention had met, there was not for a moment 
 a question as to the fate of the single house, the weak and 
 divided executive, the subservient judiciary, and the Council 
 of Censors. They were consigned to the constitutional lum- 
 ber-room, from which they are not likely soon again to be 
 brought forth. 
 
 "Pennsylvania Packet, March 24, 1789. 
 
 "/6id., April I, 1789. "Ibid. 
 
 " The resolution declared, " that having taken effectual measures for 
 satisfying themselves of the sense of the good people of the Common- 
 wealth thereon, they are well assured from the petitions referred to 
 them, from inquiries made, and from information given by the sev- 
 eral members, that a large majority of the citizens of this State ", etc., 
 desire a convention. The petitions were supplemented by the observa- 
 tions of members of the Assembly, who, during the recess, had " mixed 
 with their constituents ", thus having an opportunity to judge well of 
 the state of public sentiment upon this subject. Furthermore, the 
 members in their capacity as the people's representatives, combined with 
 these considerations " a conviction " of their own, independently arrived 
 at " that the measure is in itself right and necessary ". 
 
66 THE REFERENDUM IN AMERICA 
 
 In passing, it is difficult not to stop a moment to ask and 
 wonder w.hether or not such a struggle for the system of 
 checks and balances, and the division of the executive, legis- 
 lative and judicial functions of a government really brought 
 with it its true rewards. With the recent development of 
 cabinet government beginning as it did in England, and 
 spreading until it now girdles the globe, we cannot but inquire 
 whether the battle which Adams fought was worth the fight- 
 ing. It seems clear to us now that we, catching the sub- 
 stance, unformed and plastic, of the English Constitution, 
 as we found it at the end of the eighteenth century, fixed it 
 rigidly in our written instruments of government until we 
 are to-day in a position isolated from all the world. Our 
 President and our Governors, are like King George III, with 
 their personal cabinets. Our legislatures are the legislatures 
 of England a hundred years ago.*' We with our written 
 constitutions have been standing still, while England has 
 gone forward developing her system of responsible cabinet 
 government, which is the subject of so much admiration 
 wherever British political institutions are understood and 
 appreciated. 
 
 It would be difficult though, it seems to me, to overestimate 
 the service which Adams, Hamilton and the fathers of the 
 American constitutional system performed in saving us from 
 unchecked popular rule, by leading the people away from 
 the consequences of such teachings as Rousseau's, and those 
 which the whole French race soon went in pursuit of, head- 
 long to their ruin. The results here could not have been the 
 same, for the conditions were so different. They, however, 
 would have been absolutely blighting, anarchic and bad. We 
 had declared that all men were free and equal, but we did not 
 act fully up to our expressed convictions. The people did 
 not legislate; they still delegated this power to their repre- 
 
 " Cf. C. Ellis Stevens, Sources of the Constitution of the United 
 States, New York, 1894, pp. 148 et seq. ; Bryce, American Common- 
 wealth, 3d Edition, Vol. I, pp. 34 et seq.; Lecky, Democracy and Liberty, 
 Vol. I, p. 9- 
 
DOWNFALL OF FRANKLIN'S GOVERNMENT 67 
 
 sentatives, who, even in Pennsylvania, were to be " persons 
 most noted for wisdom and virtue ".^° 
 
 We did not, except in a few instances, as notably in Penn- 
 sylvania, commit our political fortunes to a single body of 
 deputies, as they soon did in France ; we retained the English 
 system of checks, balances, vetoes and negatives born not of 
 a belief that all men were equally capable as social and polit- 
 ical beings, but of one quite different, diat they were unequal 
 indeed, many being capricious, passionate, hasty, irrational, 
 ambitious, egoistic, — masses of men often exhibiting these 
 symptoms after a manner that segregated individuals do not. 
 It was John Adams' glory that he at the beginning of the 
 constitutional contest in America, when the royal and pro- 
 prietary governments had not yet been overthrown, under- 
 stood all this, and spoke out in fearless tones against the 
 dangers which lurked in the rule of the multitude. His 
 biographer, Mr. Charles Francis Adams, has justly said: 
 " Nobody has done so much to prove the fatal effect of vest- 
 ing power in great masses in any single agency. No one has 
 shown so clearly the necessity of enlisting the aid of the 
 various classes of society to the support of a common cause, 
 by giving to each of them a legitimate field of exertion." ^^ 
 For the service that it was to us in the early days of our 
 experiments with independent government in America, and 
 for what we still confidently expect of it, we must cherish the 
 system as a very noble inheritance. Not until we are con- 
 vinced that the evils which have developed in our political 
 life, and which are putting the virtue of our civil institu- 
 tions to so sore a test, are induced by the system rather than 
 by the inherent shortcomings of men in democracies, should 
 we be willing to turn from the course which history and ex- 
 perience have marked out for us. To inject into our heritage 
 to-day, principles and political forms which trace another 
 lineage, would result no more happily than the French effort 
 at the end of the eighteenth century to discard history, and 
 
 °° Pennsylvania Constitution, sec. 7. 
 "■ Works, Vol. I, p. 43S. 
 
68 THE REFERENDUM IN AMERICA 
 
 lay the foundations of the future on strange lines. Every 
 empirical sentiment, and all the teachings of modern science, 
 combine to bring home to reasoning men this one great fact 
 which will live as long as the world lasts and human govern- 
 ment endures. 
 
CHAPTER III 
 
 THE RISE OF THE CONSTITUTIONAL CONVENTION AND THE DE- 
 CLINE OF THE LEGISLATURE 
 
 Although an unfriendly newspaper critic had alleged that 
 it was ridiculous for " the thirteen United States of America 
 to maintain an Ambassador in England at the enormous ex- 
 pense of, perhaps, eight or ten guineas per day for no other 
 visible purpose than to write a eulogium on the British gov- 
 ernment under the sham pretence of vindicating the Amer- 
 ican Constitutions 'V Mr. Adams' " Defence " of these Con- 
 stitutions against the attack of M. Turgot exerted a very 
 great influence when it appeared, well supplementing the 
 work which he, and those who thought with him, had earlier 
 done in behalf of the system of checks and balances in the 
 United States. So well established were these views, how- 
 ever, by the time the Federal Convention met that the advo- 
 cates of a single chamber were an insignificant force. 
 Madison wrote in the Federalist in 1788 respecting a legis- 
 lature of two houses : " This is a precaution founded on such 
 clear principles and now so well understood in the United 
 States that it would be more than superfluous to enlarge on 
 it." ' 
 
 In other States than Pennsylvania there had also been a 
 tendency toward the simpler forms, and notably in Massa- 
 chusetts, where John Adams himself drafted the first consti- 
 tution, it having been adopted by the convention as it came 
 from his pen without material amendment. It has survived 
 to this day in its fundamental form though as the years have 
 rolled along some changes have been dictated by modified 
 conditions and circumstances. Adams' Constitution is still 
 
 '^Pennsylvania Packet, October 5, 1787. 
 • The Federalist, p. 292. 
 
 6g 
 
7° THE REFERENDUM IN AMERICA 
 
 the Constitution of Massachusetts, though 119 years have 
 passed over its head, a remarkable tribute to the political 
 wisdom of its author which is contrasted in a striking way 
 with the brief and unhappy life of Franklin's a priori scheme 
 of government in Pennsylvania. Even Samuel Adams is 
 said to have been inclined toward a single house of. legis- 
 lature in Massachusetts,^ and later as the people's discontent 
 spread, with the severer financial conditions which were 
 brought on by the war, they, dissatisfied and unable to trace 
 their ills to the true source, made it an occasion to demand a 
 more democratic form of government. For instance, at the 
 convention in Hampshire County that met in 1786, just prior 
 to " Shay's Rebellion ", which the State government, as it 
 had been constituted, was fortunately strong enough to cope 
 with in a summary way, it was asserted that the Senate was 
 a most obnoxious feature of the Constitution. Since it 
 seemed to be a restraint upon the insurgents' mischievous 
 designs, they desired that the second house should be abol- 
 ished.* An insurrection in New Hampshire also evidenced 
 much popular dissatisfaction in that State. Changes in the 
 Constitution were desired since the existing government had 
 proven itself strong enough to prevent the realization of the 
 plans of certain agitators for unlimited issues of paper money 
 and a more equal distribution of property. 
 
 It was these outbreaks, Adams tells Franklin, which really 
 set him to the task of writing his " Defence of the American 
 Constitutions ". The work was suggested, he says, by " the 
 late popular frenzy in Massachusetts and New Hampshire ". 
 A government of three departments and a legislature of two 
 houses in order to prevent a regime of disorder under the 
 leadership of a passionate convention without checks of any 
 sort — this is " the only sense ", Mr. Adams adds, " in which 
 I am or ever was a republican.^ " In recalling this period of 
 
 'John Adams' Works, Vol. I, pp. 286-7; also Vol. IX, p. 618 
 ' G. L. Austin, History of Massachusetts, Boston, 1876, p. 365 
 " Sparks' Works of Franklin, Vol. X, p. 284— a letter to Franklin from 
 London, dated January 27, 1787. 
 
THE CONVENTION AND THE LEGISLATURE 7^ 
 
 his life afterward, in 1809, Mr. Adams referred to the anxiety 
 which he felt while his " Defence " was in preparation, lest 
 the dispersion of extreme democratic sentiments in Massa- 
 chusetts should lead to total anarchy, and wrote : " Every 
 western wind brought us news of town and county meetings 
 in Massachusetts adopting Mr. Turgot's ideas, condemning 
 my Constitution, reprobating the office of governor and the 
 assembly of the senate as expensive, useless and pernicious, 
 and not only proposing to toss them off but rising in rebellion 
 against them. In this situation I was determined to wash my 
 hands of the blood that was about to be shed in France, Eu- 
 rope and America and show to the world that neither my sen- 
 timents nor actions should have any share in countenancing 
 or encouraging any such pernicious, destructive and fatal 
 schemes"." All over America, indeed, though nowhere to so 
 marked a degree as in Pennsylvania, the friends of extremely 
 democratic forms were a very active force. Thoroughly 
 beaten and discredited as they were by the adoption of the 
 Federal Constitution, and by the lessons which all the world 
 could draw from the dire occurrences of the French Revolu- 
 tion, the same elements continued to exert an influence on 
 American politics for many years. 
 
 Convinced as the best minds then were, and as we still 
 must be in looking back over the history of the Ameri- 
 can States, that their constitutional development was natural 
 and proper only so long as it conformed to those empirical 
 principles which Adams so clearly perceived and so ably de- 
 fended, there have come up in course lately some things that 
 contrast rather curiously with earlier events. The growth of 
 the influence of the constitutional convention is unquestiona- 
 bly one of the most remarkable manifestations in the field of 
 popular government in the United States to-day. The con- 
 vention has been gaining strength year by year and has been 
 absorbing powers that it earlier did not possess until the leg- 
 islature with its boasted two chambers, once the centre of so 
 peculiar a constitutional contest, is to-day little more than a 
 "Adams' Works, Vol. IX, pp. 621, et seq. 
 
72 THE REFERENDUM IN AMERICA 
 
 shadow of its former self. One of the three departments of 
 government, the legislative, expressed itself through the leg- 
 islature which has now had to divide its honors with another 
 legislative agency, the convention. This convention, oddly, 
 enough, is an assembly of a single chamber, from which the 
 founders of the government strove so diligently to keep us 
 free. How we have come through this development it will 
 be my task in this chapter to demonstrate. 
 
 There has never been the slightest doubt in the minds of 
 publicists who have written of our institutions as to where 
 sovereignty resides. It resides with the people. They are the 
 original source of the government's authority; it is with 
 them as the object of its activities that the state exists. They, 
 somewhat in the way of a great abstraction, serve us as a 
 background for our political thinking, and from them the 
 various agencies of the government are traced out historically 
 into their present forms. Political philosophy devotes it- 
 self to exploring the field and defining, in so far as it can do 
 this, the frontiers of government, laying out the bounda- 
 ries of the " state " in relation to whatever else exists in 
 our social system. Political science, taking these frontiers 
 as they have been established, looks to the problem of or- 
 ganizing the state, of giving to it a definite position in the so- 
 cial scheme, of appointing its agents and assigning to each 
 its suitable tasks. We have noted how at great pains the 
 American governments were held to three main departments, 
 the legislative for enacting the law, the judicial for expound- 
 ing and interpreting it and the executive for carrying it into 
 effect. The people as the sovereign power had delegated to 
 these agencies, one checking the other, in order to secure sta- 
 bility and equipoise — thus, as it were, putting a spine in the 
 creature that it would not fall with every turn of the wind— 
 the authority to act in their name as the government and the 
 state. 
 
 Now, how does the State constitution fit into this system, 
 and in what relation does the convention, which framed it, 
 stand to these other agencies of the government? The 
 
THE CONVENTION AND THE LEGISLATURE 73 
 
 Americans turned to a written constitution in the most nat- 
 ural way, and again chiefly because they were at ground 
 EngHshmen, or, at any rate, colonists gone out from the 
 British Islands, carrying with them their grants and charters 
 in which were guaranteed to them the rights they prized so 
 highly. It is true that England herself had not then, and 
 still to-day has not a written constitution. Throughout the 
 colonial period, however, in the struggle with the crown and 
 the proprietors it was, with the American colonists, a ques- 
 tion of securing from England fresh concessions, and not 
 any of a chimerical kind but those which were couched in 
 definite terms and which the delegates, who often sought 
 them in person, could bring home with them in writing 
 across the ocean. 
 
 It was a development perhaps not quite so natural that 
 these constitutions should be framed by conventions, i e. by 
 bodies of delegates separately chosen to do this important 
 work, rather than that the task be intrusted to the regular 
 legislature which has created and continues to build up the 
 English Constitution. But it is necessary to consider the 
 fact that when the colonies broke loose from their 
 English moorings, the aristocratic assemblies and royal 
 governors could no longer be safely utilized. These were fol- 
 lowed by conventions, or provincial conferences, or con- 
 gresses, however they may have been denominated. As 
 Jameson, in his classic work on Constitutional Conventions, 
 clearly points out, these bodies were of the " revolutionary " 
 type exercising powers of various kinds; not only framing 
 new constitutions, but also electing magistrates and members 
 of the general Congress, enacting statute law on a wide vari- 
 ety of topics and providing for the common defense. They 
 got their authorization through force, i. e., lacking other 
 means, the stronger party in the colonies allowed these bod- 
 ies of delegates to step in and do what was considered to be 
 expedient to establish and perpetuate the principles which 
 this stronger party valued and held to be dear. Some of 
 the first constitutions were framed by the same bodies which 
 
74 THE REFERENDUM IN AMERICA 
 
 acted regularly as legislatures, as in New Hampshire in the 
 case of the Constitution- of 1776, and in Virginia a few 
 months later ; and with hardly an exception the bodies which 
 framed the constitutions enacted also a considerable amount 
 of ordinary legislation to serve temporary ends, even when 
 called for the single purpose of devising a form of govern- 
 ment with the expectation that they would adjourn and make 
 way for other agents so soon as their special task had been 
 performed. 
 
 Although it was early less clear than it has since come to 
 be that a convention should not enact statute or municipal 
 law, the belief was even then well grounded that the legis- 
 lature should not mix in with the work of making the con- 
 stitutional and fundamental law of a State. The legislature 
 of Massachusetts in 1778, acting on its own responsibility, 
 had framed a Constitution which was submitted to the town 
 meetings. The people rejected it because they were led to 
 think that it had been prepared in an irregular way, that is, 
 by the legislature rather than by a convention specially cho- 
 sen for the work. Almost immediately afterward the people 
 of Massachusetts voted to delegate the task to a convention 
 and the Constitution framed by this body met with popular 
 approval. In South Carolina where the Constitutions of 
 1776 and 1778 were framed by the legislature the Supreme 
 Court declared that " the form of government " was " no 
 more than any other legislative act ". The same authority 
 that made it could repeal it again whenever it chose.'^ 
 
 In but one or two instances at that early time was 
 the legislature authorized either to make or propose 
 amendments to the constitution after it had been pro- 
 mulgated as the organic law of the State, and then only 
 under severe limitations. In one State, at least, Pennsyl- 
 vania, where the Assembly was given large and various pow- 
 ers in respect of other matters such authority was in specific 
 terms prohibited to the legislature. The Constitution de- 
 clared that the legislature should have no right " to add to, 
 ' Cf. 2 McCord's R., p. 354. 
 
THE CONVENTION AND THE LEGISLATURE 75 
 
 alter, abolish or infringe any part of this Constitution".' By 
 the differentiation of these two functions of statute law-ma- 
 king and constitutional law-making another check, or bal- ^ 
 ance, was introduced into our system, and how separate and 
 distinct have been the careers of the convention for enact- 
 ing the fundamental law and of the legislature for enacting 
 ordinary legislation is emphasized very strongly by a study 
 of the later history of the development of political institutions 
 in our American States. 
 
 Within a comparatively recent time, however, another ten- 
 dency has manifested itself and our earlier discussions as to 
 the relation which should exist between the convention and 
 the legislature have developed new aspects. Much interest- 
 ing material is afforded the student in this field of inquiry. 
 It has been asserted by the members of some of the conven- 
 tions, and they have been upheld in the view by justices of 
 certain State courts, delivering official or unofficial opin- 
 ions on the subject, that the conventions are over and beyond 
 all law. These bodies are sometimes looked upon as ex- 
 traordinary agents exercising extraordinary powers, being 
 not a part of the system of State government but the author 
 of it, and therefore independent of any other agent the peo- 
 ple may establish. It has been argued that when the conven- 
 tion meets the State is again resolved into its original parts, 
 a notion borrowed of course from France, analogies being 
 drawn between our own and the French constituent assem- 
 blies of revolutionary types. When the convention meets, 
 the people, it is said, take back to themselves all the authority 
 they ever delegated, i. e. to the State government, but a re- 
 siduary portion of course since certain enumerated powers 
 have been made over to the Federal government which may 
 be resumed again only by means of a separate Federal pro- 
 cess." Such a view, however, must be regarded as wholly 
 
 'Constitution of 1776, sec. 9. 
 
 ' Cf. Tenth Amendment of the Federal Constitution ; Jameson, Con- 
 stitutional Conventions, 4th ed., p. 87 ; Cooley, Principles of Constitu- 
 tional Law, pp. 29-30. 
 
76 THE REFERENDUM IN AMERICA 
 
 untenable in the face of the evidence and argument adduced 
 by Judge Jameson.^" It is the accepted theory to-day, as a 
 result of our development and experience in respect of con- 
 ventions, that they must co-operate, in a way at least, with 
 the other agencies of government which the sovereign soci- 
 ety has established. It is necessary to the regular and or- 
 derly working out of our system that the legislature, which 
 has been aptly called " the sentinel on duty ",^^ shall put into 
 motion the machinery for the assembling of the convention 
 and shall perhaps also in some measure prescribe the bounds 
 within which it may act. Precedents upon this point are now 
 so numerous that no other view can be allowed and conven- 
 tions which were assembled on their own authority, responsi- 
 ble to no established organ of the State, would be mere mass 
 meetings, akin only to those of 1776, of the secession and 
 reconstruction periods in this country, and of 1789 and af- 
 ter in France. Such conventions might become a source of 
 very serious danger and, were these unbridled assemblies a 
 part of our scheme of government, the days of the American 
 democracy could be reckoned near their end. The conven- 
 tion, if precedent is followed and good counsel from our 
 history and experience are sought, will never gain such ascen- 
 dency over the legislature and the other agencies of govern- 
 ment as to get entirely free of reasonable restraints. 
 
 It is of much theoretical interest to speculate in regard to 
 the instability of our institutions were the convention to 
 gain unwonted power at the expense of the other agencies 
 of government. But it must be of a great deal more actual 
 present importance to us to note how tlie convention is ma- 
 king head against these rival agencies, and particularly the 
 legislature, from another side where the ramparts are not so 
 high nor so well defended. No tendency among all those 
 which are at work in the domain of government upon this 
 
 "Von Hoist's opinion is divergent; cf. Apendix C of Jameson's 
 work on Constitutional Conventions ; cf. also Reports of cases before a 
 leading State court, both confirmatory of Jameson, — Wells v. Bain, 75 
 Pa. 39; and Woods' Appeal, 75 Pa. 59- "Jameson, op. cit., p. 365. 
 
THE CONVENTION AND THE LEGISLATURE 77 
 
 side of the Atlantic Ocean is more striking and none should 
 claim a larger share of our interest and concern. It is a 
 silent and gradual revolution which is bringing the State 
 legislatures into a condition of relative impotency. By any 
 rightful interpretation of the term a constitution must be 
 considered to be an outline of the principles of government. 
 It is a statement of essential and fundamental facts regard- 
 ing the organization of the state. Our own Federal Con- 
 stitution is a type of what a written constitution should be, 
 a charter that clearly defines the greater and more general 
 relations between the sovereign society and the agencies by 
 which its authority is outwardly made manifest. The Eng- 
 lish Constitution, though unwritten, is no less real. It is 
 perfectly definable. It embraces no rules in respect of the 
 traific in wines, spirits and beer ; provisions in regard to the 
 granting of free passes on railways are foreign to it, as are 
 also rules concerning the legal rate of interest on loanable 
 money, newspaper libel, the duello or the lottery which we 
 so often find to-day in American State Constitutions. The 
 Constitutions of Germany, Switzerland and France are not 
 repositories for legislation regarding comparatively trivial 
 affairs. " By the constitution of a commonwealth," Jame- 
 son says, " is meant primarily its make-up as a political or- 
 ganization, that special adjustment of instrumentalities, 
 powers and functions by which its form and operation are 
 determined." ^^ Again this high authority says : " A con- 
 vention is authorized to embody in the constitution general 
 provisions establishing principles, but leaving details depend- 
 ent on considerations of temporary expediency to be deter- 
 mined by the legislature."^' For these reasons we find that 
 legislation of this kind is called the " fundamental law " or 
 the " organic law ". It has a character of its own inviolable 
 in the minds of all men who are trained to recognize the 
 simplest of legal and political distinctions. How ruthlessly 
 we have leveled these barriers that divide two great classes 
 
 " Jameson, p. f>T. 
 " Ihid., p. 429. 
 
78 THE REFERENDUM IN AMERICA 
 
 of law it will be my task here now in a general way to indi- 
 cate.^* 
 
 At first the legislatures were left a very wide field for 
 their activities. .To them was given comparative freedom 
 to fill out the skeleton of government, to put in the flesh, and 
 fibre. They indeed exercised very extensive powers which 
 were not legislative in any true sense. They, in many cases, 
 chose the Governors, or Presidents, of the States. They 
 thus exerted an important control over the executive depart- 
 ment of the government. Such privileges seem to have been 
 enjoyed by the legislatures of all the States during the Rev- 
 olutionary period, except Massachusetts and New York. The 
 legislatures chose, not only the Governors, but also the Gov- 
 ernors' Councils in a great many States, as well as other 
 State executive and administrative officers, such as the 
 State Treasurer and the Secretary of the Commonwealth. 
 The State legislatures elected the delegates to the Continental 
 Congress. The judges of the higher courts were appointed 
 by the legislature as was the Attorney-General or public 
 prosecutor, and in some cases, as in Delaware,'^" the judges 
 of the county courts were chosen by the same power. The 
 legislature sometimes even selected the members of the second 
 house or Senate, which is to say that the legislature was 
 elected by the people as a single house, and, either resolved 
 itself into two chambers afterward, as was the case, for in- 
 stance, in South Carolina, or went outside of its own body, 
 as in New Hampshire, selecting the members of a second 
 house from the people of the State at large. To the legis- 
 lature was sometimes entrusted also the duty of appointing 
 the officers of the State's land and naval forces, as by the 
 first Constitutions of Delaware and New Hampshire. The 
 legislature was in no case subject to an executive veto ex- 
 
 " In recent years attention has been frequently directed to this de- 
 velopment ; cf. Bryce, op. cit., Vol. I, pp. 443 et seq. ; Borgeaud, op. cit., 
 pp. 39 et seq.; Lowell, Governments and Parties in Continental Europe, 
 1897, Vol. II, p. 293. 
 
 "Constitution of 1776, art. xii. 
 
THE CONVENTION AND THE LEGISLATURE 79 
 
 cept in Massachusetts and New York, the Governor applying 
 the negative in the former State, and a Council of Revision, 
 composed of the Governor, the chancellor and the judges of 
 the Supreme Court, in the latter commonwealth. 
 
 No long time elapsed, of course, until the people acted di- 
 rectly in the choice of their Governors and Congressmen in 
 all the States of the Union. Councilors came to be officers 
 in the personal cabinets of the Governors, following the ex- 
 ample set by the Federal Constitution, or else were elected 
 by the people. The judges became either appointive by the 
 Governors or elective by the people. The appointment of 
 the officers of the State militia was added to the Governor's 
 prerogatives. In short, the various State legislatures were 
 soon shorn of nearly all their powers in the selection of mag- 
 istrates, becoming simple law-making bodies, which it is their 
 function to be, of two chambers one having a negative upon 
 the other, the Governor possessing a veto upon the action oE 
 both. 
 
 This was a natural and legitimate development which was 
 certain to ensue so soon as the various governments were 
 fairly organized, and the example of Massachusetts and New 
 York, and above all of the Federal Constitution, was at hand 
 and could be pointed to as embodying a type system for the 
 free States of this continent. Another and a less natural 
 movement to curtail the powers of the legislature was 
 aimed against it in its capacity as a law-making body and 
 was begun by its rival in the law-making field, the constitu- 
 tional convention. It was through the offices of the conven- 
 tion, of course, that the legislature had been stripped of its 
 authority in the choice of magistrates, but the first great ad- 
 vance made against the legislature in the more recent move- 
 ment to lop off its powers was the change from annual to 
 biennial sessions. Earlier it was the universal rule in the 
 different States to elect the members of the legislature every 
 year. If this were not the custom respecting both branches, 
 it was so at least with respect to the lower house or more 
 popular branch of the legislative assembly. The legisla- 
 
8o THE REFERENDUM IN AMERICA 
 
 ture was not only elected each year, but it met annually also, 
 and this system prevailed with no exceptions until we were 
 well along in this century. Among the original States of 
 the Union making this change may be named Delaware 
 which introduced biennial sessions in 1831.^° Maryland made 
 the change in 1846 " and Virginia in 1850, returning to an- 
 nual sessions in 1870, but again abandoning the system in 
 favor of a session every second year in 1876. Now all the 
 forty-five States of the Union have amended their Consti- 
 tutions in favor of biennial legislative sessions, or in many 
 instances, as in the newer States, have never known any 
 other system, except New York, Massachusetts, New Jer- 
 sey, Rhode Island, South Carolina and Georgia. The 
 Georgia Convention of 1877 ^* provided for meetings of the 
 legislature every second year instead, of annually, as had 
 been the rule before, but in 1892 upon the initiation of the 
 legislature, the Constitution was amended and the annual 
 meeting was restored to the political practice of the State. ^° 
 This seems to be the only case in which a real desire has been 
 manifested for a return to the system of annual legislative 
 sessions and the tendency in all parts of the Union has been 
 steadily in the other direction. In those few States in which 
 the legislatures still convene annually, and, notably in New 
 York and New Jersey, there is no concealment of the public 
 distrust for these bodies, while the conviction seems to grow 
 that it would be a very much better arrangement should they 
 meet less frequently. Indeed in one State, Mississippi, by 
 the Constitution of 1890"" the convention has gone yet a 
 step farther, providing for regular legislative sessions only 
 once in four years. In the interval, however, two years af- 
 ter the adjournment of the regular session, a special session 
 may be called but this may not continue for a longer term 
 than thirty days. 
 
 "Constitution of 1831, art. ii, sec. 4. 
 "Amendments to the Constitution of 1776, art. xxvi. 
 "Art. ii, sec. 4, paragraph 3, of the Constitution. 
 " Georgia Laws, 1890-91, pp. 55-6. ™ Sec. 36. 
 
THE CONVENTION AND THE LEGISLATURE 8i 
 
 Thus we note that in nearly all the States of the Union 
 the convention has reduced by one half the activity and power 
 of the legislature as a law-making agency, and this, despite 
 the fact that our social life to-day is more complex than ever 
 before, the communities more populous, and human require- 
 ments correspondingly greater, while political philosophy is 
 all the time extending the field of gpvernment and giving 
 organized society a hand in an increasing number of our 
 worldly affairs. 
 
 The change from annual to biennial sessions, however, is 
 not by any means the only curtailment of the legislature's 
 powers recently effected through the instrumentality of the 
 constitutional convention. Not only does the convention 
 bind the legislature to a single session in two years, unless, 
 of course, the Governor should convene an extra, or special 
 session, but it fixes a limit to the number of days during 
 which that session shall last. This is a very late develop- 
 ment in the constitutional practice of the States, and the re- 
 sult has been attained in several ingenious ways. The sim- 
 plest method is to place an absolute limit upon the length of 
 the session. For instance, the Constitution of Maryland 
 says :^^ " The General Assembly may continue its session so 
 long as in its judgment the public interest may require for a 
 period not longer than ninety days." Special sessions which 
 may be convened by the Governor are not to continue for a 
 longer time than thirty days. In Montana the limit is set 
 at sixty days,^^ and in Alabama at fifty days.^' In Florida 
 the regular sessions " may extend to sixty days " while a 
 special session is not to last longer than twenty days.^* In 
 Indiana a regular session may continue for sixty-one days, 
 while forty days is the limit prescribed for a special session.^^ 
 The limit in Kentucky is sixty days •^'^ in North Dakota sixty 
 
 ^Constitution of 1867, art. iii, sec. 15. 
 ''Constitution of 1889, art. v, sec. 6. 
 "Constitution of 1875, art. iv, sec. 5. 
 "Constitution of 1885, art. iii, sec. 2. 
 "Constitution of 1851, art. iv, sec. 29. 
 "Constitution of 1891, sec. 42. 
 
82 THE REFERENDUM IN AMERICA 
 
 days;''' in South Dakota sixty days;^* in Washington sixty 
 days ;^'' in Wyoming sixty days f in Colorado ninety days,'^ 
 having been increased from forty days in 1884, on the initia- 
 tion of the legislature. 
 
 Sometimes, too, it is left to the legislature itself to de- 
 termine, by a vote somewhat larger than a majority of its 
 members, whether the session shall last longer than a pre- 
 scribed number of days. For example, the Constitution 
 of Virginia provides that, " No session of the General As- 
 sembly shall continue longer than ninety days without the 
 concurrence of three fifths of the members elected to each 
 house; in which case the session may be extended for a 
 further period not exceeding thirty days."^^ In West Vir- 
 ginia the limit of the life of the session is fixed at forty-five 
 days, unless two-thirds of the members of each house shall 
 vote to extend it.^' A somewhat similar provision occurs in 
 the Constitution of Arkansas.^* 
 
 Again the conventions have adopted an indirect method of 
 reaching the same end, namely by altogether stopping, or by 
 reducing the salaries of the members of the legislature after 
 they have been in session for a certain time, adjudged to be 
 sufficient for the transaction of their business. The members 
 of these bodies, receiving a payment from the public treasu- 
 ries, are in some cases given a per diem allowance instead of a 
 definite sum for the session. Thus in Nebraska the members 
 are to have $3 a day each, provided, however, " that, they 
 shall not receive pay for more than forty days at any one 
 session".^^ In Idaho the payments continue for sixty days, 
 in Kansas fifty days, Kentucky sixty days, Oregon forty days, 
 
 " Constitution of 1889, art. ii, sec. 56. 
 " Constitution of 1889, art. iii, sec. 6. 
 " Constitution of 1889, art. ii, sec. 12. 
 '" Constitution of 1889, art. iii, sec. 6. 
 "' Constitution of 1876, art. v, sec. 6. 
 " Constitution of 1870, art. v, sec. 6. 
 " Constitution of 1872, art. vi, sec. 22. 
 "Constitution of 1874, art. v, sec. 17. 
 "Constitution of 1875, art. ii, sec. 21. 
 
THE CONVENTION AND THE LEGISLATURE 83 
 
 Tennessee seventy-five days. In Texas the payment is at the 
 rate of $5 per day for the first sixty days and $2 per day for 
 the remainder of the session.^* Here again is another potent 
 influence working to hmit the legislature's activity and to 
 keep it within established bounds. 
 
 In late years the legislatures, through the means lying 
 nearest to their hand, have occasionally put forth efforts to 
 restore themselves to earlier power by making proposals to 
 amend the constitution which is a privilege that they gen- 
 erally possess. Thus propositions for a return to annual ses- 
 sions, for an increase of the number of days during which 
 the session may continue, for the increase of the salaries of 
 the members and so on, are submitted to the people who as a 
 rule quite promptly reject them. The legislatures there- 
 fore have never succeeded in regaining very much of their 
 lost ground by these heroic attempts to re-instate themselves 
 in public favor. 
 
 The conventions, however, go even farther than this in 
 their determined campaign against the legislature. They in- 
 corporate in the constitution definite rules governing the ac- 
 tion of the legislatures in respect of many different classes 
 of subjects. The members of these bodies are instructed 
 minutely in regard to the performance of their duties as law- 
 makers. They are told what they may do, and again what 
 they may not do, so that it is a straight and narrow path, in 
 very truth, which they must thread their way along if they 
 wish their laws to enter into the Kingdom, safe from the 
 revision of the judicial department of the government. 
 Among other subjects to which the conventions are turning 
 their attention to-day are the railways, and private corpora- 
 tions generally. Rules defining corporate rights and regu- 
 lating the conduct of corporations have been introduced into 
 the constitutions in great numbers. These are often very 
 burdensome to capital, though often, again, quite just; the 
 only point to be insisted on in this connection is the one with 
 which we started out, that laws of this kind might more 
 
 " Constitution of 1876, art. iii, sec. 24. 
 
84 THE REFERENDUM IN AMERICA 
 
 properly come from a legislature than from a constitutional 
 convention. There may be found, too, in all the newer con- 
 stitutions, specific directions from the convention regarding 
 the deportment of the legislature in respect of the State's 
 revenues and expenditures. There are rules for the pro- 
 tection of the sinking funds and for guarding the State's 
 credit against those who would loan it or grant it away. 
 There are definite regulations to govern the State in the 
 taxation of property and the appropriation of the public 
 moneys — all these provisions, reflecting the distrust of the 
 conventions for the legislatures, having been framed in the 
 view of putting up walls and outworks to defend the honor 
 of the State from the spoiler, against whose machinations 
 popular government in some of its degenerate forms seems to 
 furnish no guarantee. 
 
 In the same way the conventions have sought to guard the 
 financial credit of the local political units and, more par- 
 ticularly in the larger cities, a field in which America's fail- 
 ures in government have been so notable and numerous as 
 to attract the attention of the civilized world. By many dif- 
 ferent devices the conventions have undertaken to restrain 
 the legislatures in the passage of local government acts which 
 apply to cities, towns, counties and the other local political 
 districts. The legislatures are confined within constantly nar- 
 rowing bounds in this department of their activity. There 
 has been a distinct tendency at work for many years to 
 strip the legislature of its power to pass so-called special 
 acts in respect of municipalities. If the affairs of cities are 
 made the subject of legislation at all it must be in a gen- 
 eral way, which is to say that rules which are established 
 for one community must apply to all, or, at any rate, to 
 all of a " class ", the members of which are similar in char- 
 acter and have the same general requirements. The pro- 
 hibition of special legislation has led, of course, to rather 
 peculiar results in some instances and many, no doubt, which 
 are disadvantageous to the cities so grouped together, since 
 
THE CONVENTION AND THE LEGISLATURE §5 
 
 their needs are often, in the nature of the case, very di- 
 vergent. 
 
 There are many important classes of legislation, other 
 than laws to regulate local government, concerning which 
 the conventions declare that special acts shall not be passed. 
 In California, for instance, according to the present Consti- 
 tution of the State the subjects regarding which the legis- 
 lature may not enact special laws are classified under thirty- 
 three different heads.'^ By the new Constitution of Ken- 
 tucky twenty-nine classes of special legislation are prohib- 
 ited,^* and the list tends all the while to grow appreciably 
 longer. These prohibitions extend to such topics of le|^isla- 
 tion as divorce, the assessment and collection of taxes, 
 judicial procedure, the punishment of crime, the conduct 
 of elections, the settlement of estates of deceased persons, 
 the management of public schools, remission of fines and 
 penalties, regulation of the rate of interest on money, re- 
 moval of county seats, the granting of special privileges to 
 persons and corporations, the adoption of children, the pro- 
 tection of fish and game, the regulation of labor and trade, 
 etc., etc. 
 
 Furthermore a very large number of provisions are to be 
 found in the more recent constitutions respecting what, by 
 any rightful interpretation of the subject, would be con- 
 sidered to be mere rules to govern parliamentary procedure, 
 such as would not be entitled, therefore, to a place outside 
 of a handbook for the guidance of a legislative body. The 
 conventions determine when bills shall be introduced into 
 the legislature. In Nebraska this may be done only during 
 the first forty days of the session ; ^* in California only during 
 the first fifty days.*" There are rules to govern the reading 
 of bills prior to their passage, and provisions requiring that 
 
 "Constitution of 1879, art. iv, sec. 23- 
 
 " Constitution of 1891, sec. 59. 
 
 " Constitution of 1875, art. iii, sec. 4. 
 
 "Constitution of 1879, art. iv, sec. 2. 
 
86 THE REFERENDUM IN AMERICA 
 
 the subject of the bill shall be expressed in its title, that no 
 bill shall embrace more than one subject and that money 
 shall not be appropriated during the closing days of 
 any session. Such prohibitions in the newer Constitu- 
 tions are meant to prevent the common " railroading " and 
 " jamming " methods which the legislatures to-day, to their 
 infinite discredit, sometimes adopt. The convention again 
 in some cases has taken away from the legislature the free- 
 dom to determine when a law which it has approved shall 
 come into effect, a future day for its going into force being 
 definitely set by the constitution, as for instance the July 4th 
 following the date of passage.*^ 
 
 The conventions, it appears, have also taken unto them- 
 selves the duty of regulating the suffrage in great detail, 
 of safeguarding the ballot system and making specifications 
 of many different kinds that should be wholly foreign to a 
 constitution. They have even intervened to the point of 
 guiding the other agents of the government in the exercise 
 of the police power as in respect to the prohibition or re- 
 straint of the sale and manufacture of alcoholic beverages, 
 respecting lotteries and " gift enterprises ", libels by the press, 
 polygamy, bribery, "lobbying", "log-rolling" and the pur- 
 chase of men's votes, the duel and the punishment of those 
 who commit offences against good morals. Various state 
 institutions, charitable, educational and penal, receive their 
 grants of power through the convention and the rules for 
 their conduct and maintenance are more or less fully set forth 
 in the constitutions. The salaries of members of the legis- 
 lature, governors and other magistrates are fixed by the 
 constitutions of the States. The legislature, in short, at every 
 turn must consult the charter from which it derives its 
 powers, if it would steer a course clear of the convention- 
 and escape the charge of having passed an unconstitutional 
 act. 
 
 " Cf. Constitution of Iowa, art. iii, sec. 26 ; Constitution of North 
 Dakota, art. ii, sec. 67 ; Constitution of Colorado, art. ii, sec. 19. In this 
 case the legislature usually retains the right to decide whether a given 
 law is of " immediate importance " and if so it may disregard the rule. 
 
THE CONVENTION AND THE LEGISLATURE 87 
 
 As the conventions have undertaken narrowly to de- 
 fine the limits within which the legislatures may officiate, 
 so too have they added details concerning the executive 
 and, more particularly, the judicial departments of the gov- 
 ernment. Rules which belong in the practice code to govern 
 the conduct of proceedings in the courts and which have nb 
 particle of right in constitutional law have crept into these 
 instruments of government to the lasting confusion of our 
 legal systems. But upon the dignity of no other depart- 
 ment than the legislature, its own vigorous rival, has the 
 convention made such serious attacks, and for the motives 
 of no other has it expressed so much distrust. Indeed by no 
 other means than a careful perusal and study of these instru- 
 ments in a comparative way can any person arrive at a 
 correct view of the great variety of topics which to-day are 
 treated by the constitutional, conventions in the different 
 American States. This is not better indicated than by the 
 growing length of the constitutions. Beginning we know as 
 brief and condensed statements of the fundamental prin- 
 ciples of government, dignified in form, even though they 
 were sometimes the work of political illusionists, they have 
 increased in body and volume several times over. The first 
 Constitution of Virginia with its famous Bill of Rights takes 
 up only four pages in Poore's edition of the Federal and 
 State Constitutions. Virginia's Constitution adopted in 1830 
 covers seven pages. Its successor framed in 1850 had in- 
 creased in length so that it needed eighteen pages, while 
 the present Constitution of Virginia fills twenty-one pages 
 in the same book, an increase between 1776 and 1870 from, 
 . say, 3000 words to 15000 words. Each of the first two Con- 
 stitutions of Pennsylvania, adopted in 1776 and 1790, takes 
 up about eight pages in Poore's large quarto volumes. The 
 present Constitution of the State adopted in 1873 occupies 
 twenty-three pages. Missouri's Constitution was twelve 
 pages long in 1820, increasing to twenty-one pages in 1865 
 and thirty-three pages in 1875. Illinois shows a striking 
 advancement from ten pages in 1818 to twenty-one in 1848 
 
88 THE REFERENDUM IN AMERICA 
 
 and twenty-five in 1870. All the newer Constitutions ai"e 
 of great length. Fair types of those most recently adopted 
 are Montana's in 1889, Washington's in 1889, Mississippi's 
 in 1890, Kentucky's in 1891, each one of which contains 
 upwards of 20000 words. The Constitution of South Da- 
 kota of 1889 comprises 25000 words, while the Constitu- 
 tion of Louisiana, adopted in 1898 embraces no less than 
 43000 words codified in 326 separate " articles " ! The first 
 Constitution of Louisiana, dated 1812, contained between 
 5000 and 6000 words, swelling to loooo in 1845 and 1852 
 and 12000 in 1868. The first Constitution of New Hampshire 
 in 1776 contained only about 600 words and some of the 
 State Constitutions framed during the Revolutionary time 
 contrast with those which are being framed to-day, even for 
 the new and sparsely populated commonwealths of the " Far 
 West ", in a mosti striking way. 
 
 To this curious and somewhat humiliating position has 
 the constitutional convention brought the American State 
 legislature, possessing not the sovereign power of the Federal 
 Congress in greater matters, of course, but originally ex- 
 ercising a very large share of residuary authority in the 
 district under its own jurisdiction ; — ^the legitimate successor 
 of the same Parliament which gradually won its freedom 
 from the king and the king's high judges, which fought for 
 its life against those who would prorogue it and dissolve 
 it contrary to its will, which was the one place where the 
 people were given a voice and an opportunity to impress 
 their views upon the public polity, and which when the 
 States declared their independence of England became almost 
 the sole heir, as we have seen, to the whole governmental 
 estate. The legislature in those States in which good patterns 
 were followed, Pennsylvania being the most notable excep- 
 tion to the rule, was effectively curbed in some directions by 
 the executive and judicial departments of the government, 
 but in its own field as a law maker it was practically supreme. 
 It has been reserved to a fourth agency of government, the 
 convention, to dispute its title to its own birthright. 
 
TKE CONVENTION AND THE LEGISLATURE §9 
 
 But is there not perhaps a method by which the legislature 
 or the other established agencies of government can treat with 
 the convention, giving back to the legislature the old place 
 which belongs to it in the enactment of statute law, while the 
 convention is confined within its proper bounds as a maker 
 of constitutional law ? Judge Jameson, our highest authority 
 on the constitutional convention, suggests a simple plan by 
 which to restore the legislature to its own portion. Recog- 
 nizing the distinction between constitutional law and that 
 which, rightfully considered, must be held to belong outside 
 of these limits, he is led to some very interesting conclusions. 
 " A convention ", he says, " is competent to recommend the 
 adoption of principles in such a form and under such con- 
 ditions as are consonant with the general conception of funda- 
 mental legislation and no further. It may indicate what has 
 become the settled policy of the State but if it go beyond that, 
 developing principles into minute provisions, likely as circum- 
 stances shift to need modification, it trespasses upon the do- 
 main of the legislature. Doubtless a constitution stuffed 
 with legislative details may acquire legitimacy by its being 
 ratified by the people, for where a constitution contains a posi- 
 tive provision the courts cannot ignore it or annul it, but the 
 impropriety of such legislation would not thereby be dis- 
 proved or lessened. If legislative provisions are thrust into 
 a constitution and passed upon by the people, ought they to 
 have the force of laws any more than when submitted to the 
 people disconnected with provisions truly fundamental? In 
 the latter case we have seen that our courts pronounce them 
 wholly without validity as laws. If the same judgment be 
 not given respecting a constitutional provision consisting of 
 legislative details, it is simply because it would be in effect to 
 permit our judiciary to annul the charters under which they 
 act on the pretext of striking from them provisions not prop- 
 erly fundamental ".*^ 
 
 We of course cannot conceive of the courts going to the 
 extreme length which Judge Jameson suggests. They are 
 
 "Jameson, op. cit., pp. 429-30. 
 
90 THE REFERENDUM IN AMERICA 
 
 employed at every session in defining the frontiers between 
 constitutional and statutory provisions in respect of subjects 
 of very many different kinds. Laws passed by the legislature 
 are declared " unconstitutional " often upon mere technical 
 points. However, as for the judiciary passing such a judg- 
 ment upon a constitutional provision, no matter how much it 
 might trench on powers which are legislative beyond any one's 
 ability to question it, it is wholly inconceivable. The judiciary, 
 as the recorded cases clearly show, is not without authority 
 over the convention. There is a body of precedent and un- 
 written law on the point to govern the constitutional conven- 
 tion, but so long as it keeps up the disguise, incorporates its 
 acts in a code and calls it all the Constitution of Illinois, of 
 Pennsylvania, or of Louisiana and no other irregularity is at 
 hand, the courts are clearly not empowered to go behind the 
 presentment and declare that what comes to them as " consti- 
 tutional law " is really not this at all, but something of an en- 
 tirely different character. 
 
 The judicial department being without authority in the 
 case, it is proper now to inquire if the legislature itself can 
 place any practical restraints upon the convention. Jameson 
 has made a special effort to show how, to a degree, the con- 
 vention is not a free agent, and theoretically the case is well 
 worked out; but what does the legislature's power really 
 amount to? Could it by any possible method, if it were so 
 disposed, defend itself against the encroachments of the con- 
 vention ? It appears to be well recognized both in theory and 
 usage that it is a power resting with the legislature to call the 
 members of the convention together. The convention is an 
 extraordinary body, meeting infrequently and at irregular 
 times. The legislature may pass a law saying when the con- 
 vention shall meet, albeit usually only after the question has 
 been referred to the people. It is the authority which by cus- 
 tom and right decides how the convention shall be composed, 
 of how many members, etc., the precise day upon which it 
 shall assemble, the place at which it shall assemble. It has the 
 power to provide that the constitution which is framed shall 
 
THE CONVENTION AND THE LEGISLATURE 91 
 
 be submitted to the people for their approval or rejection, and 
 to prescribe an oath for the members of the convention. Can 
 it, however, require that the convention shall do certain 
 things, or perhaps refrain from doing certain other things, 
 changing the constitution only along the lines which the legis- 
 lature itself lays down ? Considerable precedent exists which 
 would seem to indicate that the legislature can bind the con- 
 vention, at any rate up to a certain point, and there would ap- 
 pear to be only three cases in which conventions have under- 
 taken to disobey the mandates of the authority that brought 
 them into life.*' The course adopted by these conventions 
 yielded them no gain and led in one instance, in Pennsylvania 
 in 1873, to judicial opinions of a very noteworthy character. 
 
 There are, however, relatively few cases in which the legis- 
 lature has attempted to bring its own strength to a full test. 
 It would be difficult, no doubt, to hold a convention in check 
 with the precedents at hand if the restrictions weighed very 
 heavily upon it, though an oath prescribed by the legislature, 
 requiring the members of the convention to act strictly in a 
 line with the provisions of the law by which the body was 
 called together, has been successfully employed. As full of 
 theoretical interest as this subject may be, it is perhaps not 
 likely that the legislature will make. very much progress in 
 retaliation by this method so long as the constitutional codes 
 are submitted to the people and have the added force of the 
 endorsement of a body from which all the agents of govern- 
 ment derive their just powers." A most interesting and a 
 very recent case in point is afforded by Louisiana. In 1896 
 the legislature of that State passed an act submitting to the 
 people the question as to whether or not a convention should 
 be called to revise the Constitution. If the proposition were 
 approved, as it was approved, by popular vote, the convention 
 was to meet in 1898, but it was to be subject to seven sepa- 
 rate and important limitations. "Xhe convention was pro- 
 hibited — 
 
 " Cf. Jameson, op. cit., p. 375. 
 
 "For a full review of this subject see Jameson, pp. 362 et seq. 
 
92 THE REFERENDUM IN AMERICA 
 
 (i) From impairing "the bonded indebtedness of the 
 State or of any parochial, municipal, levee or other political 
 corporation " without first securing the consent of the holders 
 of the securities representing this debt. 
 
 (2) From increasing the rate of taxation above the limits 
 set in the old Constitution for any other purpose than to ex- 
 tend local assistance to public schools, and to aid in executing 
 public improvements, and then only with the approval of the 
 property taxpayers affected by such increase. 
 
 (3) From changing the levee system as it was then organ- 
 ized under the terms of the old Constitution and of statutory 
 provisions enacted in pursuance thereof. 
 
 (4) From reducing or shortening the terms of office of 
 the members of the legislature or of State or local officers, 
 whether elected or appointed, or from reducing their respec- 
 tive salaries prior to April, 1900. 
 
 (5) From making the offices of the chief justice, or the as- 
 sociate justices, of the Supreme Court of the State elective, 
 and from shortening the term of office or reducing the salaries 
 of the incumbents. 
 
 (6) From legalizing lotteries. 
 
 (7) From removing the capital of the State from its pres- 
 ent site at Baton Rouge. 
 
 The legislature in order to make its position secure re- 
 quired, furthermore, that each delegate to the Convention be- 
 fore he should be qualified to act as a member of the body 
 should take the following oath before the chief justice or pre- 
 siding associate justice of the Supreme Court : " I hereby 
 solemnly swear that I will well and faithfully perform all my 
 duties as a member of this Convention and that I will observe 
 and obey the limitations of atithority contained in the act 
 under which this Convention is assembled." By such a 
 method the Louisiana Convention was bound beyond all 
 power to loose itself, and the act is entitled to rank as one of 
 the most important counter-movements against the conven- 
 tion's usurpations which any legislature has ever organized 
 and led.*° 
 
 "Acts of Louisiana, 1896, pp. 85-87. 
 
THE CONVENTION AND THE LEGISLATURE 93 
 
 The legislature of Rhode Island lately employed still an- 
 other plan, bold in conception, though as it has developed 
 quite barren of result. Instead of calling a new convention 
 to revise the Constitution, the legislature passed a resolution 
 in 1897,*° in response to what was described as " a widespread 
 feeling among the people of the State that the Constitution 
 should be carefully and thoroughly revised ". The legisla- 
 ture thereupon authorized the governor to appoint a commis- 
 sion of fifteen persons whose duty it should be to report to the 
 General Assembly. The revised Constitution was then to be 
 treated as if it were a separate and single amendment, and 
 adopted by the method prescribed in the old Constitution. It 
 must be approved by a majority of the members of two suc- 
 cessive legislatures and be assented to later on in a refer- 
 endum by three-fifths of the electors of the State, present and 
 voting on the proposition in the town meetings. The legis- 
 lature by this means retained its full authority over the sub- 
 ject. The commission was appointed. It met and framed 
 the " Amendment " which was an entire new Constitution in- 
 cluding a " Bill of Rights ". The " Amendment " was then 
 submitted to the legislature which received the commission's 
 report as if it had been the report of one of its regular legis- 
 lative committees, though no very material alterations seem 
 to have been made in the draft, and it was passed by the Gen- 
 eral Assembly first in March, 1898,*' and again in June, 
 1898.** In November of that year it was submitted to the 
 people of the various towns and cities, but it failed to receive 
 the necessary three-fifths vote. The method of framing the 
 Constitution by a commission instead of by a convention was 
 regarded by many persons as very irregular. The total vote 
 upon the subject throughout the State was only about 31,000 
 (17,589 for and 13,483 against), the vote of the State in the 
 presidential election in 1896 having been nearly 55,000.*° 
 
 "Laws of Rhode Island, January session, 1897, p. 121. 
 "Laws of the January session, 1898, pp. 133-54- 
 "Laws of the May session, 1898, pp. 12-34. 
 
 ** Such a result led the Providence Journal to remark : " The thou- 
 sands who went to the polls but failed to vote either for or against the 
 
94 THE REFERENDUM IN AMERICA 
 
 The method of amending constitutions, or indeed of adopting 
 entirely new instruments of government through the aid of 
 commissions, by which means the legislatures manage to keep 
 this power in their own hands without resort to a convention, 
 has had other applipations from time to time in this country, 
 as in New York in 1872, Michigan in 1873, Maine in 1875 
 and New Jersey in 1881. All these attempts to alter the 
 American practice by subterfuge, however, have proved 
 more or less abortive.^" 
 
 One point more is deserving of mention before we pass 
 from the discussion of this phase of the subject. As the con- 
 stitutions increase in bulk and are swelled out with the details 
 of legislation, ceasing to be the guides to those who are to 
 make the law and becoming the law itself, they are little better 
 qualified to have a permanency and to claim thorough consid- 
 eration and respect than is the work of the legislature. If the 
 constitution expresses the changeful whims of society and 
 supersedes the legislature, in a certain measure, in respect of 
 many different classes of subjects, we must expect those very 
 results which have lately been realized, i. e., an increasing 
 number of conventions and frequent revisions of the " organic 
 law ". This development has gone forward despite an earlier 
 belief that the tendency would be in a contrary direction. In 
 opposing a provision which should define a method of calling 
 together a future convention, Daniel Webster in the Massa- 
 chusetts Convention of 1820 said, that " with the experience 
 which we had had of the Constitution there was little prob- 
 ability that after the amendments which should now be 
 adopted there would be any occasion for great changes. No 
 revision of its general principles would be necessary and the 
 alterations which should be called for by a change of circum- 
 stances would be limited and specific "?^ Judge Jameson 
 adds upon this point : " Doubtless as our Constitutions be- 
 come riper and more perfect [ !] with time and experience 
 
 Constitution shovild now study public questions enough to have some 
 convictions upon them." 
 
 "" Cf. Jameson, op. cit., pp. 570 et seq. 
 
 "■Debates of the Massachusetts Convention, 1821, p. 413. 
 
THE CONVENTION AND THE LEGISLATURE 95 
 
 the necessity of employing the more expensive mode [of 
 amendment] by conventions will be found to be less and 
 less ".^^ These predictions to-day seem a long way from 
 realization. We know now that they were false prophecies 
 in every sense. 
 
 As society moves backward and forward and the needs of 
 the people change, their laws, too, must change, and even if 
 these are incorporated in codes more or less secure from the 
 hand of the repealer they will not be guaranteed the life of a 
 constitution which is. only an outline for the organization and 
 conduct of a government. Another convention will soon 
 need to be called or other steps must be taken to revise or 
 amend it.^* 
 
 The States are now calling conventions at much more fre- 
 quent intervals than was the case at a former time. Although 
 we still have Massachusetts as a notable instance of a com- 
 monwealth walking in the old ways, resisting these modern- 
 izing influences in favor of greater power to the convention 
 and therefore a shorter life to the constitution, there are few 
 others like her in the Union of States. Pennsylvania has 
 already had four Constitutions, Virginia four. Illinois has 
 had three Constitutions since the State entered the Union in 
 1820, Texas three, since the annexation in 1845, Missouri 
 three, including the first Constitution in 1820, Georgia six. 
 Louisiana, beginning with 18 12 and ending with 1898, has 
 had seven Constitutions; Mississippi has had four since the 
 State's history began in 1817. When there are no unusual 
 influences at work, as those which unfortunately prevailed 
 in the South during the Secession period, a constitution 
 seems to be good for about twenty or thirty years which is 
 a maximum of life even when the legislature pxerts itself at 
 almost every session to prepare amendments and thus alter 
 the constitution upon its own initiative without calling a con- 
 vention, a process of which more is to be said in another 
 
 '= Op. cit., p. 552- 
 
 " Cf. Lowell, Governments and Parties in Continental Europe, Vol. II, 
 p. 293. 
 
96 THE REFERENDUM IN AMERICA 
 
 chapter. Nothing could be more natural than frequent con- 
 ventions with new constitutions every few years when the 
 framers undertake to make them the repositories of large 
 classes of private and administrative law. Since and in- 
 cluding the year 1890 the constitutional law of this country 
 has been enriched by conventions in seven States: Missis- 
 sippi, Kentucky, South Carolina, Delaware, Louisiana, Utah 
 (a new State) and New York (in the latter State the conven- 
 tion amending the old, instead of adopting an entirely new 
 constitution). 
 
 We have therefore advanced to that point when we take not 
 only our constitutional law, but much also of our ordinary 
 law, in the States from assemblies of a single chamber. They 
 are on this account liable to every objection which can be 
 urged against single legislative assemblies of any other kind.°* 
 Certainly there can be no doubt as to the general view which 
 it seems proper for us to entertain regarding such bodies, and 
 yet the, situation in practice has come to be so extraordinary 
 that the friends of good government in this country feel con- 
 strained to defend the convention in the face of all its usurpa- 
 tions. This is chiefly because of the higher standards that 
 we, up to this time, have been able to secure in respect of the 
 membership of these assemblies. The legislatures of the 
 States are filled with men who, with the rarest exceptions, are 
 of mediocre ability. It is fortunate, if they are not actually 
 dishonest and corrupt. They have been tried and have been 
 found wanting. In those States where they still retain a full 
 quota of pov/er, holding annual sessions and enacting each 
 year a thick volume filled with special and private acts, undi- 
 gested, confusing and contradictory, often one week repealing 
 in whole or in part a measure which had been passed the week 
 before, there can be no respect and little toleration manifested 
 for the legislators. They were deprived of their power be- 
 
 " Jameson, op. cit., p. 357. "It [the convention] is liable to the ob- 
 jection so fatal to single legislative assemblies that it is prone to hasty 
 and passionate determinations and is therefore a ready instrument of 
 faction and revolution." Cf. ihid., p. 415; also Lecky, Democracy and 
 Liberty, Vol. I, pp. 363-64- 
 
THE CONVENTION AND THE LEGISLATURE 97 
 
 cause they were not careful about the exercise of it. If they 
 ' use their office as an opportunity not only to display their ig- 
 norance, but also to indulge their immoral lust for personal 
 gain, making the legislature an agency for the dishonest dis- 
 bursement of public funds, for blackmail, log-rolling, trading, 
 dickering, " jamming " and the other operations which are the 
 disgraceful outgrowths of our political system in the various 
 States, we are certainly justified in grasping at almost any 
 new agency that promises us a hope of betterment. If de- 
 mocracy by natural process could not purge itself of such 
 abominations then some other means had to be found to gain 
 this necessary end. 
 
 The conventions, chosen more rarely and for a rather un- 
 usual purpose, have up to this time been kept comparatively 
 free from those who are " party men " in the bad sense, poli- 
 ticians who are seeking personal profit. Such men wish 
 for the most part to escape the labor which is supposed 
 to attend the framing of a constitution. Should they be 
 elected to membership in the body it would be a fleeting 
 " honor ". Another convention might not meet for twenty 
 years. An older idea, therefore, that our public men should 
 have superior qualifications, that they should be chosen as 
 some of our earlier constitutional writers expressed the 
 thought from among " the wisest and best ", still prevails 
 when members of a constitutional convention are to be elected. 
 Our ablest lawyers seem not to be averse to accepting mem- 
 bership in the conventions, and those who are usually not 
 called upon to serve the State in any other capacity are not 
 uncommonly selected to perform this important public task. 
 Upon the subject of the contrasts in the personnel of the two 
 assemblies, an average legislature and a convention. Judge 
 Jameson expresses a truth which no one acquainted with the 
 facts will dispute, when he says : " If a man shows himself 
 by culture and the breadth of his views to be fitted for the 
 highest trusts it is nearly certain that he will not be found in 
 the legislature, but be left in obscurity at home. But when 
 a convention is called it is sometimes possible to secure the re- 
 
98 THE REFERENDUM IN AMERICA 
 
 turn of such men. It is not necessarily because such a body 
 is recognized to be, as it is, the most important ever assem- 
 bled in a State, but because the measures it is expected to ma- 
 ture bear less directly on the interests of parties or of indi- 
 viduals. Party management, therefore, is not usually so 
 much directed to the seeking of control of a convention as of 
 a legislature ".^° The same facts have been observed and 
 remarked upon by Mr. Bryce,^" and no better evidence of the 
 difference in personal standards prevailing in respect of the 
 two kinds of bodies is afforded than in the case of the great 
 State of New York. For its Constitutional Convention of 
 1894 there were secured the services of men who would not 
 have been found in the legislature, — if they had themselves 
 desired seats in that body they could not have got elected. 
 The influence of members drawn from this superior class in 
 the State was of course reflected in the proceedings and de- 
 bates of the assembly which left behind it a record for honesty 
 and zeal for the public welfare in singular contrast with that 
 of any recent session of the State legislature. 
 
 °° Jameson, op cit., p. 561. 
 
 '" Op. cit.. Vol. I, p. 475 ; cf. Godkin, Unforeseen Tendencies of De- 
 mocracy, pp. 141 et seq. 
 
CHAPTER IV 
 
 THE REFERENDUM ON ENTIRE CONSTITUTIONS 
 
 A CONSIDERATION of all the facts in regard to the consti- 
 tutional convention in this country, and the relations which in 
 the later years of our political history have been established 
 between it and the legislature, brings us to certain definite re- 
 sults. There is incontestably a tendency in the direction of an 
 enlargement of the powers of the convention, — in the direc- 
 tion of a long constitution containing minute details with re- 
 spect to subjects which, rightly viewed, do not belong within 
 the sphere of constitutional law at all. These long constitu- 
 tions, framed to meet temporary conditions, giving expression 
 to passing ideas upon specific matters in specific terms, in the 
 nature of the case, must be more flexible. They must be fre- 
 quently changed and amended. The average lifetime of a 
 constitution seems to be little more than twenty years when a 
 new convention meets and another long code is adopted. 
 Thus, in spite of ourselves, we have handed over to a single 
 house of legislature very extensive law making powers, put- 
 ting greater faith in one assembly because its members, as a 
 rule, are men of superior talent, knowledge and moral char- 
 acter, than in two houses and a Governor, who used to be our 
 law-givers over a wider field and of whose ability and honor 
 in the public service democracy has seemed to provide us with 
 no practical guaranty. 
 
 Upon this single house there is but one important check and 
 that is applied by the people themselves, i. e., by the electors, 
 coincident in number in most of ihe States with all the male 
 citizens, without regard to race or color, who are above a cer- 
 tain prescribed age and possess various qualifications as to 
 residence, etc., and in an occasional State as to education. In 
 
 99 
 
loo THE REFERENDUM IN AMERICA 
 
 a few States, the number of which would seem to be increas- 
 ing, the electoral body has even come to include women who 
 are admitted to the suffrage on the same liberal terms as men. 
 They, the whole body of electors in the State, as a kind of 
 second chamber are to pass upon such legislation as the con- 
 vention prepares and submits to them. They may accept it 
 or reject it as they please. It is only by a consideration of 
 the true character of the State constitutions, stuffed out as 
 they are with ordinary statute law, that one can form any 
 proper estimate of the value and importance of the privilege 
 which the people now enjoy. 
 
 In recent years attention has often been directed to the 
 custom that prevails in Switzerland of submitting laws to pop- 
 ular vote. We are recommended to introduce the system in 
 this country and the referendum, as it is called (through 
 measures having been passed a long time ago in Switzerland 
 ad referendum, as treaties are sometimes passed and contracts 
 are not infrequently made, i. e., subject to the approval of the 
 principals in the transaction) has many friends among us. 
 In Switzerland the people as a whole were regarded as the 
 principals, the members of the legislature being merely their 
 delegates, and the law which the latter proposed, to be valid, 
 had to be ratified by popular vote. The fact is, or, up to a 
 recent time, was, commonly overlooked that the referendum 
 is no strange feature in our system. It comes down to us as 
 a result of a development extending through a very great 
 many years. 
 
 In respect of constitutions the referendum made its appear- 
 ance in America in a very natural way. No one seems to 
 have stopped to discuss the reasons for it. It appears to have 
 occurred to no one of all our leading democrats of the Revo- 
 lutionary period, not even Franklin or Paine or any of the rest 
 of the ostentatious friends of the people in Pennsylvania, that 
 a constitution to be valid would needs be submitted to popular 
 vote. There were some demands of course that a referendum 
 should be taken in that State, the Anti-Constitutionalists, 
 while the long contest with their opponents v/as in progress, 
 
ON ENTIRE CONSTITUTIONS loi 
 
 having repeatedly urged that, since the people had not ap- 
 proved the Constitution of 1776, its promulgation as the 
 organic law of Pennsylvania was an irregular, if not an il- 
 legal act. But as Judge Jameson somewhere observes in ex- 
 planation of the fact that so few of the early constitutions in 
 this country were submitted to popular vote, there was need 
 of speedy action in nearly all the States since the Tories were 
 active everywhere ; and Pennsylvania is an instance in point, 
 for the first Constitution of that State was adopted amid very 
 great political excitement. Delay would have been held to 
 be dangerous and even fatal to the future of the Common- 
 wealth and the entire American cause. 
 
 Immediately after the Constitution had been adopted, at the 
 meeting of protest in the State House yard in Philadelphia, 
 October 21, 1776,^ it was asserted that the right of the people 
 to be consulted concerning the form of government under 
 which they were to live had been violated. Although a few 
 copies of the Constitution had been printed, time was not al- 
 lowed for them to circulate. The people had not considered 
 the subject and had not made their wishes known to the mem- 
 bers of the Convention. The " Right of Petition " had been 
 freely used during the colonial period, and it was employed 
 by both parties so soon as the Pennsylvania State government 
 was organized. The step, then, from the petition, the me- 
 morial, and the remonstrance, was not far to the referendum 
 itself. 
 
 The Supreme Executive Council in 1777 had recommended 
 that " the sense of the majority of the electors throughout the 
 counties " should be taken on the question of calling a new 
 convention. The Assembly authorized the vote, but serious 
 military operations intervened and it was not until Novem- 
 ber, 1778, that it could again set a date for the elec- 
 tion. Every effort was then put forth by the Constitu- 
 tionalists to bring it to the point of rescinding its action, which 
 it did as a result of the representations made to the members 
 by petition and otherwise in February, 1779. " Those states 
 
 ' Cf . Resolutions in Pennsylvania Gazette, Oct. 23, 1776. 
 
I02 THE REFERENDUM IN AMERICA 
 
 only can be denominated free which are governed under a 
 constitution to which the citizens have given their consent ", 
 the Republican Society declared in their Address to the people 
 in 1779-^ Another writer who took a part in the constitu- 
 tional discussions in Pennsylvania at this time said that " this 
 great matter must come to the voice of the people before 
 Pennsylvania can enjoy any degree of domestic happiness ".' 
 And once more in 1789, when the vote still had not been taken, 
 though the constitutional struggle within the State was near 
 its end, certain memorialists declared " that the power of alter- 
 ing the Constitution resides wholly in the people and that 
 they have a right to exercise that power in any way- and at 
 any time they may judge proper ". 
 
 It had been asserted on July 4, 1776, by the framers of the 
 Declaration of Independence that governments derived " their 
 just powers from the consent of the governed ", that when 
 certain popular rights were infringed upon it was " the right 
 of the people to alter or abolish " their form of government 
 and to institute another in its stead. There were few, how- 
 ever, who went so far as to say that the people themselves, 
 voting yea or nay, should determine whether one constitu- 
 tion should be adopted or another. The influence of the peo- 
 ple as it would be exerted through their deputies and repre- 
 sentatives was expected to answer every need. The Anti- 
 Constitutionalists in Pennsylvania, like the plebiscitary lead- 
 ers to-day in France, were the advocates of a referendum as 
 a means of attaining their end, — the overthrow of the govern- 
 ment. The opposite party, doubtless, would have been quite 
 as eager for a direct vote of the people on this subject if the 
 proceeding had promised them any gain. When the Consti- 
 tution was finally to be superseded in 1789-90 the Assembly, 
 fortunately, was strong enough in itself to issue a definitive 
 call for a convention without referring the subject to the peo- 
 ple, and the convention having met and established the form 
 of government agreeable to the views of a majority of its 
 
 ' Pennsylvania Packet, March 25, 1779. 
 ^ Ibid., February 13, 1779. 
 
ON ENTIRE CONSTITUTIONS 103 
 
 members, it in turn was glad to be free of any obligation to 
 pass the thing back to the people again. 
 
 It is Massachusetts that affords the first example of the 
 actual application of the referendum in this country in the 
 case of a State constitution. In 1776 the Assembly in Massa- 
 chusetts took steps preliminary to the establishment of a new 
 form of government, though it was not until May 5, 1777, 
 that a resolution was passed recommending it to the people at 
 the next election for members of the Assembly or General 
 Court " to make choice of men in whose integrity and ability 
 they can place the greatest confidence, and, in addition to the 
 common and ordinary powers of representation, instruct them 
 with full powers in one body with the Council to form such a 
 constitution of government as they shall judge best calcu- 
 lated to promote the happiness of this State ". It was speci- 
 fied in the same resolution that when the constitution had 
 been framed copies of it should be printed and presented to 
 the people of the towns, who should vote upon it. If it were 
 accepted by two-thirds of those present and voting in the 
 meetings on the subject it was to become the valid constitu- 
 tion of the State.* 
 
 The General Court or legislature, in this manner chosen, 
 adopted a constitution, as it was planned that it should do, on 
 February 28, 1778, and it was submitted to the people later in 
 the year, though for the reason that it was framed by the 
 Assembly rather than by a convention which had been spec- 
 ially elected by the people for this particular task, because it 
 lacked a Bill of Rights and on other accounts, it was rejected 
 by a large majority — five to one of the votes cast being 
 against it, while many of the towns it seems made no returns 
 
 * Journal of the Convention which framed the Massachusetts Con- 
 stitution of 1780, Boston, 1832, p. 255. The text of the Constitution of 
 1778 is contained in the above volume. It will be found valuable for 
 comparison with the instrument which was finally adopted. Cf. Journal 
 of Debates and Proceedings in the Convention of Delegates chosen 
 to revise the Constitution of Massachusetts begun and holden at Boston, 
 November is, 1820. See "Note" on the Origin and History of the 
 Constitution; Hale's New Edition, Boston, 1853. 
 
I04 THE REFERENDUM IN AMERICA 
 
 at all.^ On February 19, 1779, the Assembly returned to the 
 subject. A " resolve " was passed, this time for taking the 
 sense of the people regarding the expediency of calling a con- 
 vention to propose a new constitution. The members of the 
 legislature declared that they were unable to determine " from 
 the representations made to this Court what are the senti- 
 ments of the major part of the good people of this State ", 
 since the earlier Constitution had been disapproved of, and 
 therefore asked the inhabitants to make known their views 
 on the point." 
 
 The vote having been taken and " a large majority of the 
 inhabitants " of the towns making returns — more than two- 
 thirds of the whole number — having approved of a new gov- 
 ernment and being " of opinion that the same ought to be 
 formed by a convention of delegates who should be specially 
 authorized to meet for this purpose ",'' the Assembly there- 
 upon resolved (June 17, 1779) to recommend the people to 
 require their delegates, when the constitution was framed and 
 before it should be adopted, to submit the work of the conven- 
 tion to popular vote. It was provided that copies of the con- 
 stitution should be laid before " the respective towns and plan- 
 tations at a regular meeting of the male inhabitants thereof, 
 being free and tv/enty-one years of age^ to be called for that 
 purpose, in order to its being duly considered and approved 
 or disapproved by said towns and plantations ". And the 
 resolution further recommended the several towns within the 
 State, " to instruct their respective representatives to estab- 
 lish the said form of a constitution as the constitution and 
 form of government of the State of Massachusetts Bay, if 
 upon a fair examination it shall appear, that it is approved of 
 by at least two-thirds of those who are free and twenty-one 
 years of age, belonging to this State and present in the sev- 
 eral meetings ". 
 
 " " Note " on Origin and History of the Constitution, loc. cit. Cf. Life 
 and Works of John Adams, Vol. IV, pp. 213 et seq. 
 'Journal of the Convention of 1779-80, p. 189. 
 ' Ibid., p. s. 
 
ON ENTIRE CONSTITUTIONS 105 
 
 This was the Constitution which was framed by John 
 Adams, and which is still to-day in all its essential parts the 
 organic law of the State of Massachusetts. It was referred 
 to the people in their town meetings in the manner contem- 
 plated by the legislature/ whereupon the Convention took a 
 recess charging a committee of its members to print the 
 Constitution and to distribute the " books " throughout the 
 State by means of " three expresses " employed at the public 
 expense. The Constitution having been approved by two- 
 thirds of those assembled in the town meetings and voting 
 upon this subject, it became the law of the Commonwealth. 
 
 There were here, it is interesting to note, the two referenda, 
 one following the other : First, a vote to determine whether 
 the convention should be called or not; and second, when it 
 had been called and its work had been fihished, a vote to de- 
 cide if the constitution were acceptable to the people, the 
 identical process with which we have now become familiar in 
 nearly all the American States. 
 
 New Hampshire, a State which has always drawn very lib- 
 erally upon the experience of Massachusetts in the field of 
 public as well as private law, likewise furnishes an early in- 
 stance of the use of the referendum on a constitution. The first 
 constitution adopted in any of the American States after the 
 separation from England is the New Hampshire Constitution 
 of 1775-76, which was framed and promulgated by a conven- 
 tion, or " Congress ", that met at Exeter, December 2, 1775, 
 and completed its labors in the following January. This 
 Congress, as it was authorized to do, assumed to itself the 
 " name, pow'er and authority of a house of representatives or 
 assembly for the Colony of New Hampshire ".* The Con- 
 stitution, which is very brief, provided for a second branch of 
 legislature or Council, but neglected to arrange for a 
 Governor, or indeed any officer or officers charged specifically 
 with the task of executing the laws and directing the govern- 
 ment. A " Committee of Safety ", a kind of executive board, 
 
 'Journal of the Convention, p. 168. 
 • Cf. Constitution of 1776. 
 
io6 THE REFERENDUM IN AMERICA 
 
 was organized, and to it the executive powers were entrusted 
 during intervals when the legislature was not sitting. It was, 
 however, a source of much dissatisfaction, though it was 
 probably as useful a feature of the government as the prac- 
 tically headless board which was created by Franklin and his 
 colleagues in Pennsylvania in the same year. On this and 
 other grounds the people of New Hampshire were urged to 
 change this provisional Constitution which had been framed 
 at the outbreak of the war merely to meet a temporary need.^° 
 A convention of delegates which had been chosen for the 
 special purpose of preparing a draft of a new constitution for 
 the State, met in 1778, completing its work in a few. months. 
 The outline of government which had been framed by the 
 Congress at Exeter was not submitted to the people, but the 
 constitution which it was proposed should supersede it was 
 " dispersed throughout the State ", and the officers in the 
 towns were asked to " warn " the inhabitants to assemble to 
 consider the new plan of government. In the town meetings, 
 however, the constitution was rejected,^^ and steps were at 
 once taken to bring together another convention, though this 
 body did not assemble until 1781. The constitution which it 
 prepared was also referred to the people, but it proved to be 
 no more to the public taste than the last one had been, though 
 an opportunity was extended to the towns 'to propose such 
 amendments as it was thought might make it acceptable to the 
 inhabitants. These amendments were so numerous that the 
 convention, when it resumed its sessions, did not succeed in 
 conciliating the various interests until late in 1783, in which 
 year the constitution being again submitted to the people was 
 approved by them and the new government was inaugurated 
 in June, 1784.^^ 
 
 These two States, Massachusetts and New Hampshire, 
 were the only States, among those framing constitutions 
 
 " Collections of the New Hampshire Historical Society, Vol. IV, p. i6z ; 
 cf. Belknap, History of New Hampshire, Boston, 1791, p. 401. 
 ^'^ Ibid., p. 154. 
 "Cf. Belknap, op. cit., p. 435- 
 
ON ENTIRE CONSTITUTIONS 107 
 
 during the Revolutionary period, whose conventions referred 
 their completed instruments of government to popular vote; 
 and Massachusetts seems to stand alone in respect of the sep- 
 arate convention referendum, i. e., the preliminary vote to de- 
 cide whether the convention should be called or not. The 
 Constitution of Virginia had early declared that " when any 
 government shall be found inadequate or contrary to these 
 purposes [the purposes for which government is instituted, 
 enumerated in the Bill of Rights] a majority of the com- 
 munity hath an indubitable, inalienable and indefeasible right 
 to reform, alter or abolish it in such manner as shall be judged 
 most conducive to the public weal ".^^ This declaration was 
 repeated in the Constitution of Perfhsylvania.^* The Mary- 
 land Convention of 1776 announced that " whenever the ends 
 of government are perverted, and public liberty manifestly 
 endangered, and all other means of redress are ineffectual, the 
 people may, and of right ought to reform the old or establish 
 a new government ".^° But the conventions in these States 
 in no instance referred the constitutions to a direct vote of 
 the people. The constitutions were framed and were some- 
 times formally " ratified " by the delegates in the name of, and 
 by the authority of the people, as the phrase might be, but it 
 was only in these two New England States, where the in- 
 habitants in their local communities had long been accustomed 
 to direct legislation that the referendum made its appearance 
 as a part of our constitutional practice.^* 
 
 " Constitution of Virginia of 1776, Bill of Rights, sec. 3. 
 
 " Constitution of Pennsylvania of 1776, sec. 3. 
 
 "Constitution of Maryland of 1776, sec. iv. 
 
 " John Adams contemplated the plebiscite when he wrote in his 
 Autobiography that many questions were referred to him in 1775 and 
 1776 regarding the proper form of government for a state. "How 
 can the people institute governments ? " Mr. Adams was asked. " By 
 conventions of representatives freely, fairly and proportionately chosen," 
 he answered. " When the convention has fabricated a government, or 
 a constitution rather, how do we know that the people will submit 
 to it?" he was asked again. "If there is any doubt of that the con- 
 vention may send out their project of a constitution to the people in 
 their several towns, counties or districts and the people may make the 
 acceptance of it their own act." 
 
io8 THE REFERENDUM IN AMERICA 
 
 It was in New England that this development might have 
 been expected to begin, since the system of local government 
 there was such as to give great encouragement to the spread 
 of the plebiscital principle. There was in the Puritan Col- 
 onies which were established on the shores of New England, 
 a return, in fact, to Rousseau's state of nature, where peasants- 
 met under a forest tree and deliberated on their own affairs, 
 free from the governmental complications to which a per- 
 verted civilization had reduced mankind. A great deal has 
 been said and written regarding certain interesting assemblies 
 of the people surviving still in Switzerland, the old Teutonic 
 folk-mote and other devices by which men of simple needs 
 have cared for their common affairs. It has been assumed 
 that it is a kind of Teutonic heritage. However absorbing 
 such a study may be, there is little enough connection, as it 
 seems to me, between the New England town-meeting and 
 any of the other popular assemblies of history. That one has 
 existed is certainly no explanation for the existence of the 
 other. It appears to be the most natural thing for men when 
 they are set out alone, if they have already reached a certain 
 stage of civilization and are dependent upon their own exer- 
 tions for survival, to co-operate in order to gain necessary 
 ends. The first stage in co-operation, if they are left to them- 
 selves to work out a scheme of government, is for them to 
 meet together in assemblies of some kind where they may pro- 
 pose, discuss and vote. This was the precise course of devel- 
 opment in the New England colonies the various proprietors 
 of lands in a given territorial district grouping themselves to- 
 gether that they might mutually protect and advance their 
 own interests. The town indeed was " a body of stockholders 
 assembled in corporate form "," and powers were gradually 
 and naturally acquired in reference to the roads and highways, 
 the support of the poor, the choice of local executive officers 
 and such other matters as were of common importance to the 
 members of the group. The " stockholders " met together 
 
 " C. F. Adams, Three Episodes of Massachusetts History, Vol. II, p. 
 817. 
 
ON ENTIRE CONSTITUTIONS 109 
 
 at intervals to determine what their policy should be regard- 
 ing these public, if somewhat local and trivial questions, and 
 as the settlements became more populous, as the holdings in 
 land were reduced in size, and villages, even cities, resulted, 
 the town meeting was retained as a feature of the local po- 
 litical system. So large a city as Boston clung to this pri- 
 mary assembly of the freemen until 1822, when it was finally 
 necessary to introduce a representative legislature. This 
 characteristic form of local government, which for various 
 reasons did not secure a foothold in the more southern cpl- 
 onies, though it has since travelled ' westward through the 
 northern zone of States with the New England settlers,^' is a 
 factor that every one who desires to make a correct estimate 
 of our early institutional tendencies must keep well in mind.^° 
 
 The towns, at length, having been joined together, the af- 
 fairs of the larger districts, the colonies, were to be cared for 
 and administered. In the colonies of Massachusetts and 
 Plymouth all the freemen at first had a personal voice in the 
 transaction of the public business,^" but this system soon be- 
 came inconvenient, and later impossible, so that deputies had 
 to be chosen by the towns. These deputies or delegates went 
 up to the capital carrying with them the people's proxies, i, e., 
 the identical ballot which each freeman had cast in the town 
 or other local district was cast for him by the deputy in the 
 General Court or Assembly where the votes were counted 
 and the totals made up.^^ The freeman, coincidently with the 
 development of the proxy system, still retained the right of 
 going to the capital in person and voting there if he wished. 
 
 For a time, the deputies from the towns seem to have 
 passed their laws ad referendum and conditional upon the 
 
 " Cf. Bryce, op. cit., pp. 600 et seq. 
 
 " Cf. John Adams to the Abbe de Mably, a French political moralist 
 Viho had planned to write concerning American affairs at the Revolu- 
 tionary time, Adams' Works, Vol. V, p. 495 ; Bryce, op. cit.. Vol. I, pp. 
 589 et seq. ; De Tocqueville, Democracy in 'America, Bowen's Transla- 
 tion, 3rd ed., Cambridge, 1863, pp. 73 et seq. 
 
 '" C. F. Bishop, History of Elections in the American Colonies, New 
 York, 1893, P- 4- ^Ibid., p. 127. 
 
no THE REFERENDUM IN AMERICA 
 
 subsequent approval of the people. In Plymouth this was 
 the method employed during a period in the seventeenth 
 century ^^ and in Rhode Island where the union of the towns 
 was at first very loose, beginning with 1647, ^^^ representa- 
 tive principle was introduced, with the referendum as an 
 auxiliary feature of the system. Early in the history of the 
 colony law-making by direct vote passed through a number 
 of interesting phases of development in Rhode Island, which 
 are quite worthy of the place Mr. Bishop has recently given 
 them in his work on the election systems prevailing in this 
 country in colonial times. ^' 
 
 There are then the best of reasons for our deduction in 
 regard to the first New England constitutions. There was 
 a method at hand in New England by which an expression 
 of popular opinion could be readily and economically secured. 
 The people in their town-meetings had been made familiar 
 with direct legislation respecting their local concerns. They 
 knew something about the referendum in a larger class of 
 colonial affairs. It was due to no reading of Rousseau or 
 his literary contemporaries, nor to any anticipation of our 
 admiration for Swiss political forms to-day, that the early 
 Constitutions of Massachusetts and New Hampshire were 
 submitted to popular vote. In many of the more southern 
 colonies no ballot system of any kind was in existence.^* 
 There was instead a poll of the inhabitants. Even where the 
 ballot was known there were no town meetings, and there ex- 
 isted no fiction that if the people did not actually participate 
 in the making of their own laws they at any rate had a right 
 to do this, having surrendered the privilege only rather con- 
 ditionally to the deputy through a personal proxy. In Penn- 
 sylvania, for instance, where the ballot was a familiar feature 
 at all elections there is clear proof that the channels between 
 the individual citizens and the government were not kept so 
 open as in New England. In 1777, when it was a question 
 
 "Bishop, p. 5- 
 
 "Ibid., pp. 10 et seq.; cf. Rhode Island Colonial Records, p. 149. 
 
 " Bishop, p. ISS. 
 
ON ENTIRE CONSTITUTIONS "i 
 
 of taking the sense of the people on the proposition to call 
 a convention to frame a new constitution, a very crude 
 plan was evolved by the Assembly. The people of each 
 electoral district were to choose a special ofiScer to be called 
 a " commissioner ". This commissioner was to make a house 
 to house poll of his own district, asking each freeman whether 
 or not he desired a convention. The freeman then must 
 write " his vote or answer " upon " a scroll or piece of pa- 
 per " which was to be placed in a " box or bag ", kept in 
 the possession of the commissioner.^' This was a most 
 inconvenient arrangement and it is suggestive of the electoral 
 system in vogue in some of the southern provinces, in Vir- 
 ginia for instance where, it is said, officers were detailed to 
 go from one plantation to another to collect the votes of 
 the people when it was desired to consult them in regard 
 to any given point of government.^" In 1778, however, 
 when the Pennsylvania Assembly resolved again to appeal 
 to the citizens of the State for a direct expression of their 
 opinion on the convention question, a much more modern 
 method was proposed, the electors being invited to appear 
 at their polling places and to deposit in the boxes ballots or 
 " tickets " on which were written the words " For a Con- 
 vention " or " Against a Convention ", as the individual 
 voter's choice might be.^^ 
 
 Even this plan, however, involving as it did the use of 
 the election " machinery " in each separate district of the 
 State, was far from simple or free of expense and in the 
 absence of the town meetings in which the people of Massa- 
 chusetts and New Hampshire, in the same manner that they 
 determined upon many other affairs, voted to ratify, reject 
 or amend a proposed constitution, there was an influence of 
 a positive kind to deter the States outside of New England 
 at this early day from a more general employment of this 
 popular principle in law-making. 
 
 But before the referendum had spread farther afield, Nev(: 
 Hampshire gave it another trial in 1792, when the Con- 
 
 ^ Ante, p. so. "Bishop, op. cit., p. 160. ''Ante, p. 51. 
 
112 THE REFERENDUM IN AMERICA 
 
 stitution which is with amendments still in force to-day in 
 that State, was submitted to popular vote. Connecticut 
 and Maine in 1818 and 1819 respectively, both being States 
 in which the town meeting was a familiar institution, re- 
 ferred their first Constitutions to the people. Rhode Island, 
 another New England State which with Connecticut had still 
 been acting under her old English charters, followed in 1824 
 with a Constitution which the people, however, refused to 
 accept. The first State outside of New England to submit 
 a constitution to popular vote was ^* New York in 1821, 
 followed by Virginia in 1829, Georgia in 1833, Tennessee 
 in 1834 and North Carolina and Michigan in 1835. From 
 this time onward when the old States adopted new consti- 
 tutions they were submitted to popular vote, and nearly all 
 the new States admitted to the Union brought constitu- 
 tions with them which had received the direct sanction of the 
 citizens. The Congress of the United States in several cases 
 indeed, recognized the principle, in the " Enabling Acts " 
 making it a pre-requisite to statehood that the people should 
 have assented to the fundamental charter' under which they 
 were to live.^' Barring the constitutions framed by the rev- 
 olutionary conventions of the Secession and Reconstruction 
 periods in the South, there seems to have been, since Florida 
 
 " It is stated by Poore in his Note to the Mississippi Constitution of 
 1817 (Poore's Federal and State Constitutions, p. 1054) that it was sub- 
 mitted to popular vote. J. L. Power, Secretary of State for Mississippi, 
 in his " Chapters on State History " says : " No proposition was made in 
 the Convention to submit the Constitution to a vote of the people for ratifi- 
 cation. It went into effect on the day it' was signed, August 15, 181 7. The 
 original is in the office of Secretary of the State " (Magnolia, Miss., Ga- 
 zette of Sept. I, 1897). Poore also states that the Missouri Constitution' 
 of 1820 was submitted to popular vote (op. cit., p. 1104). I am unable to 
 confirm this, as the Secretary of State writes me that " the Capitol of 
 Missouri was destroyed by fire in 1837 and all the records in the Secre- 
 tary of State's office at that time perished in the flames, so that we can 
 only go back to 1837 for official records ". It appears to me unlikely 
 that the Constitution was referred to the people and the State may 
 safely be omiitted from this list; cf. Jameson, op. cit., appendix, p. 652. 
 
 " See the useful work by Dr. Max Farrand on " The Legislation of 
 Congress for the Government of the Organized Territories of the United 
 States, 1 789-1895 ". 
 
ON ENTIRE CONSTITUTIONS "3 
 
 pursued the course in 1839, no instance of a constitution 
 being put into effect without a popular vote in any Amer- 
 ican State until Mississippi adopted this policy in 1890, be- 
 ing followed in a few years by South Carolina, Delaware, 
 Kentucky (with respect to certain amendments and details) 
 and Louisiana. Of the reasons which induced these States 
 to leave the beaten pathway of constitutional practice in this 
 country it will be more logical to speak in another place.'" 
 
 In by far the greater number of cases the electors are 
 twice consulted: First, by the legislature as to whether the 
 convention shall be called or not, of which more will be said 
 elsewhere in another connection ; and secondly, by the con- 
 vention itself when its labors have been finished and its draft 
 of the constitution is complete. Some of the newer consti- 
 tutions are speciiic on these points in our practice. For in- 
 stance, in Idaho the Constitution, after indicating the course 
 to be pursued by the legislature in calling a convention, pro- 
 vides that " any constitution adopted by such convention shall 
 have no validity until it has been submitted to and adopted 
 by the people ".'* When the terms of the constitution are 
 definite and mandatory the convention's duty in respect of 
 submission cannot be brought into question. It is indubitable. 
 The old constitution continues to be effective in all its parts 
 until it is changed or abolished in some lawful manner,'^ and 
 if it requires that a new constitution shall be approved by 
 the people, this is a command which the convention must 
 certainly obey. When the constitution, however, is silent 
 regarding submission some interesting questions arise. In 
 this event two classes of cases are distinguishable : ( i ) When 
 the legislature in the " Convention Act " instructs the con- 
 vention to submit its constitution to popular vote, and (2) 
 
 '° Infra, pp. 120 et seq. 
 
 "■ Constitution of Idaho of 1889, art. xx, sec. 4 ; cf. Constitution of 
 Montana of 1889, art. xix, sec. 8 ; Constitution of Utah of 1895, art. 
 xxiii, sec. 3 ; Constitution of Washington of 1889, art. xxiii, sec. 3 ; 
 Constitution of Wyoming of 1889, art. xx, sec. 4. 
 
 " Cf. Jameson, op cit., p. 492. 
 
"4 THE REFERENDUM IN AMERICA 
 
 when the convention, being without instructions, may pre- 
 sumably consult its own pleasure on the point. 
 
 Respecting the first case history furnishes a great deal 
 of precedent so that the convention's course should not be in 
 doubt. The legislature of Massachusetts in 1777, and again 
 in 1779, when it authorized the election of delegates who 
 should meet and frame a constitution for the State, at the 
 same time specified that the completed constitution should 
 be submitted to popular vote. The delegates, obedient to this 
 command, submitted both instruments and the example has 
 since been generally followed throughout the United States. 
 All the constitutions have not been referred to the people, 
 but there seems to be no instance in which a constitution 
 was not so referred when the legislature's directions to the 
 convention have been imperative. It is the accepted view 
 to-day, as we have noted in the preceding chapter of this 
 book, that so long as the legislature confines its instructions 
 within reasonable bounds, its mandate may not properly be 
 disobeyed and there is considered to be no element of un- 
 reasonableness in a request that the constitution shall be sub- 
 mitted to popular vote. 
 
 Concerning the second case, when the convention is with- 
 out definite instructions from any outside authority, it is less 
 easy to lay down the rule. Precedent to-day, however, is 
 strongly in favor of a submission of the constitution. The 
 tendency is unmistakable and few conventions in this century, 
 except for special reasons when it has been desired to gain 
 particular ends, as recently in Mississippi, South Carolina and 
 Louisiana, have disregarded a law which/ if unwritten, is a 
 scarcely less binding part of our political system. 
 
 There is still another supposable and indeed actual case. 
 The legislature sometimes makes the specific reservation in 
 its " Convention Act " that the constitution which the con- 
 vention frames shall not be submitted to the people, a recent 
 instance of this kind having been furnished in Louisiana. 
 An act of the legislature calling a convention to meet in 
 that State in 1898 distinctly declared that the constitution 
 
ON ENTIRE CONSTITUTIONS "S 
 
 which it drafted should go into effect without a vote of the 
 people.'^ If the legislature can bind the convention to submit 
 a constitution it might be inferred that it could also bind the 
 convention in the matter of not submitting a constitution. 
 Nevertheless, it may not be quite safe to go so far as this, 
 either in our theory or our practice, since, were a great 
 matter of public policy involved, the doctrine might be 
 fraught with serious dangers. Especially perilous might it 
 become were we to dispense not only with the referendum 
 on the entire constitution, but also with the preliminary vote 
 on the proposition to call a convention.'* At some stage in 
 the process of changing the form of government the peo- 
 ple, by the development of more than a century, must be held 
 to have won the indefeasible right to a direct vote upon this 
 important subject. We find an exception to the rule, it is 
 true, in Mississippi so recently as in 1890. The present 
 Constitution of that State was adopted in total disregard of 
 this canon, a result for which the responsibility was di- 
 vided. The legislature called the convention without asking 
 the people whether they desired a convention to meet or not, 
 and nothing was said in the " Convention Act " as to the con- 
 vention's duty in submitting its completed constitution to 
 popular vote.'^ The convention when it met and finished 
 its work, having received no specific directions on the point, 
 assumed the right to declare that the Constitution should go 
 into effect at once without a referendum. This case we are 
 bound to regard as a dangerous precedent and one little 
 in sympathy with the spirit of American practice or ex- 
 perience. 
 
 Since constitutions are so universally submitted to popular 
 vote they, and the bodies which frame them, have come 
 to occupy a distinctly different place in the American scheme 
 of government. "A State constitution," says Mr. Bryce, 
 " is really nothing but a law made directly by the people 
 
 ''Session Laws of Louisiana, 1896, pp. 85-87. 
 
 "* Cf. Jameson, op. cit., pp. 493-94 and p. 529, note. 
 
 " Cf. Laws of Mississippi of 1890, p. 53. 
 
Ii6 THE REFERENDUM IN AMERICA 
 
 voting at the polls upon a draft submitted to them." '° And 
 again the same writer says that the convention is now an 
 " advisory " rather than a " sovereign body "." Judge 
 Jameson goes so far as to say that a convention is not a 
 body of representatives at all, but an assembly of delegates 
 who act as a legislative committee to propose laws of a cer- 
 tain character to the citizens.'' If this seems to be an ex- 
 treme view it is theoretically a quite correct one, and it is 
 clear that a third legislative body has thus been introduced 
 into the American practice, yielding us the legislature, the 
 constitutional convention and the electoral body which have 
 distributed among their three selves a work that in England, 
 for instance, is performed by a single agent, the legislature. 
 If we, however, look upon the convention as a committee ex- 
 ercising purely advisory powers, then it is no longer a legis- 
 lative body. It must be sifted out of our system, in theory 
 at least, while the citizens en masse become the legislative 
 authority, enacting the constitution and giving to it its vitality 
 and force. The delegates to the convention are only com- 
 petent to vote and resolve, subject to the approval of an- 
 other body, the people who commissioned them to their task. 
 
 In the face of recent events in Mississippi, South Carolina, 
 Delaware, Louisiana and Kentucky it is possible, however, 
 that we have got somewhat beyond bounds with our theories. 
 The law of custom in regard to the submission of constitu- 
 tions, which earlier seemed to be so strong that it could not 
 be disobeyed, really appears to be not so inviolable after all, 
 since it has lately gained more notoriety in the breach than 
 in the observance. But whatever the theory no one should 
 allow himself to be confused for a moment in regard to the 
 actual facts. The convention may be a legislative body, or 
 only an advisory legislative committee, but what practical 
 men desire to know, is this — who makes the constitution? 
 Do the people make it, or does the convention make it? In 
 not a few instances, of course, the people have rejected con- 
 
 ■"■ op. cit., p. 436. " Ibid., p. 667, appendix. 
 
 " Op. cit., pp. 461, 530. 
 
ON ENTIRE CONSTITUTIONS "7 
 
 stitutions that were submitted to them. This is sometimes 
 taken to mean that the electors have a knowledge of the sub- 
 ject superior to that which is possessed by the referring 
 body. This conclusion cannot fairly be drawn from such a 
 premise. Wisdom or knowledge of constitutional law, we all 
 know, does not influence the motives, or control the actions 
 of the great mass of citizens who vote to approve or reject 
 a constitution. If a constitution reflects such qualities no 
 one would claim that the people by the mere act of voting for 
 or against it in solido, which is the usual method of submis- 
 sion, had injected anything of real value into the instrument. 
 The character of the legislation contained in one of these 
 great codes of law is better or worse according to the char- 
 acter of the men who have had a hand in framing it. If 
 legislation which is received from a convention is more 
 carefully considered and more honest than legislation re- 
 ceived from a State legislature, it is so because of the greater 
 talent and honesty of the men appointed to frame the law. 
 The convention is extending its powers, is confining the 
 legislature within narrower limits, and is giving form to our 
 whole system of State and local government to an extent 
 never known before because of the direct personal efforts to 
 that end by the men who compose the convention. The 
 members of the convention may be supported, as they un- 
 doubtedly are, by that rather intangible thing, a strong pub- 
 lic sentiment. But the people are not likely to vote against 
 a constitution because it is too long. They cannot be de- 
 pended on to reject it because it treats of too many different 
 subjects, and omits one detail, or includes another. It is 
 true, of course, that the people could in most cases be aroused 
 to reject a constitution which they believed would restrict 
 them in the exercise of their accustomed rights. A violent 
 change in the form of government, or perhaps a single 
 " section " which should run counter to certain well-estab- 
 lished convictions or prejudices would lead to the defeat of 
 the whole instrument. Without a doubt, therefore, the peo- 
 ple are a wholesome check upon the convention. 
 
ii8 THE REFBRENDUM IN AMERICA 
 
 When the convention desires to escape the risk of hav- 
 ing its whole constitution rejected, if the members are shrewd, 
 they will submit debatable propositions separately, i. e., such 
 propositions will be taken out of the body of the instru- 
 ment so that the people need not vote down the whole con- 
 stitution in order to get at a few offensive lines. This device 
 is not new. The first Constitutions of New Hampshire and 
 Massachusetts were sent to the town meetings with the 
 understanding that amendments might be proposed if the 
 original drafts were not acceptable. The Council of Re- 
 vision, in New York, when it vetoed the Convention Act 
 passed by the legislature of that State in 1820, gave as one 
 of the reasons for its action that the bill contemplated the ac- 
 ceptance or rejection of the constitution in toto?^ It was 
 the early experience, however, that the people by rejecting 
 articles here and there as they chose would often wreck the 
 entire constitution. There were large portions of the scheme 
 of government which hung together. One part would have 
 little worth without the other, and thus, allowing once more 
 for the manifest inaptitude of unorganized bodies of men 
 to make their own laws, it has come to be the rule that the 
 general scheme itself must be approved or rejected as a whole. 
 Specific propositions separately submitted are likely to be 
 those in which the members of the convention have little 
 heart, at any rate, though there is' known to be a consid- 
 erable body of public sentiment in favor of them. For in- 
 stance, articles to extend the franchise to women and pro- 
 hibiting the traffic in alcoholic liquors sometimes receive 
 this kind of treatment, and the privilege of expressing them- 
 selves on these points the people often seem very highly to 
 appreciate. To name only a few of the more recent cases: 
 In 1889 when the Constitution of South Dakota was sub- 
 mitted to the people of that State three propositions were 
 separately referred. These proposals were, (i) to prohibit 
 the manufacture and sale of intoxicating liquors; (2) to es- 
 tablish a system of minority representation in the legislature, 
 =' Jameson, op. ciU, Appendix F. 
 
ON ENTIRE CONSTITUTIONS "9 
 
 and (3) to select a temporary seat of State government.*" 
 When the Constitution of North Dakota was submitted to 
 the people in 1889 there was a separate vote on the subject 
 of prohibiting the liquor trafific. In the State of Washing- 
 ton in 1889 when the first Constitution was submitted to 
 popular vote there were three accompanying propositions, 
 relating again to woman suffirage, " prohibition " and the 
 selection of a place to serve as the seat of government. The 
 New York Convention of 1894 which made a number of 
 changes in the Constitution of that State submitted its work 
 in three parts, i. e., in addition to the main body of the amend- 
 ments there were two separate propositions, one making an 
 apportionment of senators and members of the Assembly and 
 a second introducing some regulations in reference to the im- 
 provement of the canals.*^ 
 
 Reverting to an earlier period in American history the 
 question as to whether negroes should enjoy the right of 
 suffrage was separately referred when the Iowa Constitu- 
 tion of 1857 was submitted to popular vote. The same sub- 
 ject was separately submitted by some of the early conven- 
 tions in Kansas while the struggles between the slavery and 
 anti-slavery advocates were in bitter progress; and when 
 Oregon framed her first Constitution in 1857, New York 
 adopted her third Constitution in 1846, and Illinois her sec- 
 ond Constitution in 1848, articles granting equal suffrage 
 to negroes or otherwise dealing with the race question, were 
 
 "The method of submission, which varies in the different States, ac- 
 cording to the ballot system in use, was, in this instance, as follows : 
 All persons desiring to vote for or against the Constitution or for or 
 against any of the articles submitted to a separate vote might erase 
 the word " Yes " or " No " as he desired and insert the name of the 
 place which was his choice as the site for the State capital upon the 
 ballot, the, latter taking the following form. " For the Constitution — 
 Yes — No " ; " For Prohibition — Yes— No " ; " For Minority Representa- 
 tion — Yes — No"; "For as the Temporary seat of Gov- 
 ernment". The vote upon the whole constitution was — Yeas 70131 — 
 Nays 3267 ; upon the prohibition proposition — Yeas 40234 — Nays 
 34510; upon the proposal for minority representation — Yeas 241 61 — 
 Nays 46200. Cf. Constitution of South Dakota of 1889, Schedule, 
 
 "Journal of the Convention, p. 963. 
 
I20 THE REFERENDUM IN AMERICA 
 
 separately referred to the citizens of those States. When the 
 Constitution of 1870 was submitted to a vote of the people 
 in Illinois there were nine different points to which the 
 electors were invited to assent : ( i ) As to the adoption of the 
 whole constitution, i. e., such parts of it as were not embraced 
 in the portions separately submitted, (2) As to seven sec- 
 tions relating to the railroads in the article entitled " Corpora- 
 tions ", (3) Concerning an article entitled " Counties ", (4) 
 Concerning an article entitled "Warehouses", (5) As to 
 whether a simple majority or a three-fifths vote of the peo- 
 ple in the counties should be necessary to decide the question 
 of the removal of county seats, (6) As to a section in rela- 
 tion to the Illinois Central Railroad Company, a state-aided 
 enterprise, (7) As to minority representation, (8) Permit- 
 ting or prohibiting municipal subscriptions in aid of rail- 
 roads or private corporations, (9) Concerning the sale or 
 lease of a canal. *^ 
 
 As has already been said, barring the irregular conven- 
 tions of the Secession period in our history at the South, not 
 a single constitution appears to have been adopted in any 
 State, since Florida took this course in 1838, which was 
 not submitted to the people until Mississippi violated the 
 American law of custom in 1890. In that year a. conspiracy 
 was entered into between the legislature and the convention 
 to disfranchise a large body of the more ignorant of the 
 electors, principally the negroes, who outnumbered the white 
 inhabitants of the State. It was planned to accomplish this 
 result through a prescribed educational qualification of a 
 rather novel character. Each person applying to vote within 
 the State must hereafter " be able to read any section " of the 
 Constitution of Mississippi, or "be able to understand the 
 same when read to him or give a reasonable interpretation 
 thereof " *' This was, ostensibly and in fact, a method of 
 disfranchising a large body of citizens who had been en- 
 
 / 
 " Poore's Federal and State Ccastitutions, Vol. I, p. 493. 
 "Constitution of Mississippi of J890, art. xi"; on the "Franchise" 
 
ON ENTIRE CONSTITUTIONS 121 
 
 franchisee! some twenty years before by the Fifteenth Amend- 
 ment to the Federal Constitution. As it was to be expected 
 that the people, especially the negroes who were in the ma- 
 jority, would vote against the Constitution and thus defeat 
 the plan, if it were submitted to them in the usual manner, 
 the legislature and convention decided to take the matter into 
 their own hands and the Constitution went into force with- 
 out a referendum. 
 
 Another Southern State in which the negroes are a pre- 
 ponderating force and in which they outnumber the 
 " whites ", as in Mississippi, is South Carolina. In the year 
 1895 a convention met to frame a new constitution for that 
 State. Unlike Mississippi, where even a preliminary vote on 
 the convention question was dispensed with, the existing Con- 
 stitution of South Carolina provided that any proposition 
 to call a new convention should be approved by the people. 
 The subject, therefore, was referred to popular vote by a 
 joint resolution of the two houses of the legislature passed in 
 1892,** the necessary majority was secured at an election held 
 in 1893 and the convention met without receiving instructions 
 from the legislature as to the submission of the com- 
 pleted constitution.*^ The convention, once it had 
 met, proceeded to adopt the " Mississippi system ", re- 
 quiring that each person who in future should apply for 
 registration as a voter in that State should undergo a test 
 as to his ability " to read any section in this Constitution ", 
 or to " understand it and explain it " when it was read to 
 him. It was felt in South Carolina, as in Mississippi, that 
 such a provision left a very wide field open to administra- 
 tive discretion. A property qualification for voters was also 
 introduced and the suffrage was hedged about by other re- 
 strictions meant to eliminate the negroes from the electoral 
 body.** Lest its Constitution should be rejected the South 
 
 "Laws of South Carolina, 1852, p. 6. 
 " Cf. Convention Act, Laws of 1894, p. 802. 
 
 "Constitution of South Carolina of 1895, art. ii, on the Right of 
 Suffrage. 
 
122 THE REFERENDUM IN AMERICA 
 
 Carolina Convention shrewdly decided that it would not sub- 
 mit the instrument which it had framed to popular vote. 
 
 In Delaware in 1895 a convention was called after a refer- 
 endum had been taken in the manner required by the Consti- 
 tution of the State. The legislature had declared in the Con- 
 vention Act that " in the opinion of this legislature the con- 
 stitution framed by the convention hereinbefore provided for 
 should be submitted for the approval of the legal voters of 
 this State." " This was regarded, however, as a mere recom- 
 mendation of the legislature, rather than a positive mandafe, 
 and it had no influence in shaping the policy of the conven- 
 tion. The delegates adopted the Constitution definitively and 
 it was not submitted to popular vote. In it, also, various 
 experiments are tried with a view to preserving the " freedom 
 and purity of elections ". Any person desiring to qualify 
 as a voter after January i, 1900, it is specified, must be able 
 " to read this Constitution in the English language and write 
 his name ".*^ It is scarcely to be supposed, however, that 
 this provision would have served as cause for formidable 
 popular opposition to the Constitution if the referendum had 
 been taken. It manifestly was not meant to abridge the 
 rights or privileges of any class of the people considered 
 as a class. Numerically the negroes are not so strong a 
 power in Delaware as in the more Southern States. With- 
 out having the Debates of the convention before me, I am 
 inclined to accept the statement of a prominent Delaware 
 lawyer in explanation of the convention's course on this 
 occasion. He rather pertinently remarked in response to my 
 inquiry : " The Constitution was not submitted to popular 
 vote because it was felt that the delegates who were elected 
 for this purpose knew more about making a constitution than 
 the people did." Another consideration influencing the con- 
 vention to adopt such a policy was undoubtedly the fact that 
 it had been so hard to bring the body together. The people 
 had voted on the subject repeatedly and there was no desire 
 
 "Sec. 8 of the Act; Delaware Laws of 1895, p. 231. 
 "Constitution of Delaware, 1895, art. v, sec. 2. 
 
ON ENTIRE CONSTITUTIONS 123 
 
 now to jeopardize a work which was the culmination of so 
 many years of effort.''" 
 
 In the case of the Louisiana Convention of 1898, which 
 also did not submit its Constitution to popular vote, motives 
 precisely similar to those at hand in Mississippi and South 
 Carolina influenced the members to adopt their unusual 
 course. The legislature had referred to the people the ques- 
 tion of calling a convention, and they had decided it in the 
 affirmative. In the same act the legislature in specific 
 terms declared that the convention should have " full power 
 to frame and adopt " a constitution " without submission to 
 the people ".''° Agreeable to this grant of authority, and 
 the understanding which existed among the political leaders 
 of the State, the Constitution was not referred to popular 
 vote. In this case greater cause existed for omitting the refer- 
 endum than in the other two Southern States. The conven- 
 tion scarcely took the trouble to conceal its daring purpise 
 which was of course to disfranchise large bodies of the negro 
 voters."^ Again the educational qualification with some 
 modifications was resorted to, each person who applied for 
 registration as a voter being compelled to write out his own 
 application after a form composed of some eighty words. 
 Failing, should he be not able to read or write to the satisfac- 
 tion of the registration officers, he might qualify on any one 
 of two other tests: (i) If he possessed property within the 
 State assessed at a value of at least $300, and (2) if he were 
 entitled to vote by the laws of any State prior to January 
 I, 1867, or should be a son or grandson not less than twenty- 
 one years of age at the date of the adoption of this Con- 
 stitution of some person entitled at that period to exercise 
 the franchise. Citizens of foreign birth naturalized prior 
 to January i, 1898, were specifically excepted from the re- 
 strictions and need undergo none of the tests."^ Thus with- 
 
 " Infra, p. 13S. 
 
 "Acts of Louisiana of 1896, pp. 85-87. 
 "Art. 197 of the Constitution of 1898. 
 " Constitution of 1898, art. 197, sec. 5. 
 
124 THE REFERENDUM IN AMERICA 
 
 out openly purporting to do this, though the motive is ill- 
 concealed, the Constitution excludes from the franchise just 
 such classes in the electorate as the political leaders desired 
 to reach. The illiterate negroes are not likely to have $300 
 worth of property, and did not enjoy the right of suffrage 
 prior to 1867. The illiterate white men may possess $300 
 worth of property, or if they do not, are pretty certain with 
 their sons and grandsons to get in through the curious provi- 
 sion about citizens of standing in 1867. Foreign naturalized 
 citizens, who are nearly always white, are subject to no one 
 of these harsh restrictions. Such discriminating tests have 
 practically disfranchised all but a relatively small propor- 
 tion of the negroes in Louisiana while touching none of the 
 white voters. To have submitted such a constitution to the 
 people would have been certainly fatal to its success, so the 
 legislature issued directions which the convention carefully 
 obeyed not to put the fate of the instrument in doubt by a 
 referendum. This is the most peculiar case in the recent 
 series in the South in that the legislature openly authorized 
 the convention to dispense with the election. Nevertheless it 
 must be remembered that a preliminary vote was taken to 
 decide whether a convention should meet or not. It was 
 Mississippi which omitted both the preliminary and subse- 
 quent votes and by premeditation and stealth violated all the 
 rules of our unwritten law on this subject. 
 
 In Mississippi the conspiracy of the legislature and the 
 convention, acting together to deprive the electors of any 
 direct part in the adoption of the Constitution, became the 
 subject of an interesting opinion by the judiciary of the 
 State.^' This opinion is quite out of harmony with the 
 whole history of our constitutional development, marking a 
 return to the theory that the convention is a " sovereign 
 body ", and therefore a revolutionary body if it selects to be, 
 subject only to the one condition imposed by the Federal Con- 
 stitution that the government which it establishes shall be 
 " republican " in form, a term which has never been accu- 
 
 " Sproule V. Fredericks, 69 Miss., p. 898- 
 
ON ENTIRE CONSTITUTIONS "S 
 
 rately or satisfactorily defined, and is indeed so vague and 
 uncertain in meaning that it would perhaps include any gov- 
 ernment whose chief magistrate was not called eo nomine an 
 emperor or king. The judges in Mississippi have asserted, 
 with historical tendencies nearly all opposing them, that it is 
 only a theory of the " political essayist and the legal doctrin- 
 aire by which it is sought to be established that the expres- 
 sion of the will of the legislature shall fetter and control the 
 constitution- making body ". This was an ohiter dictum in 
 every sense, an opinion for which the court was not asked, 
 since the legislature had made no attempt to bind the conven- 
 tion by commanding, or even recommending it to submit its 
 constitution to popular vote. To require the convention to 
 follow the legislative direction in the matter or obey the un- 
 written law of the land respecting a referendum on entire 
 constitutions would be, the court declared, " to degrade this 
 sovereign body below the level of the lowest tribunal clothed 
 with ordinary legislative powers ". The court chose to re- 
 pudiate in unmeasured terms the whole doctrine of check or 
 curb upon the authority of this unicameral law-making as- 
 sembly, joining the other departments of the Mississippi gov- 
 ernment, the legislative, the executive, and the conventional 
 in their cabal to restrict the suffrage rights of a large body of 
 the citizens. 
 
 Another judicial opinion, scarcely more reassuring, is con- 
 tributed by the Kentucky Court of Appeals.^* It appears 
 that the Constitution of Kentucky framed in 1891, while sub- 
 mitted to the people, as the legislature in the act calling to- 
 gether the convention had required^^, was altered and 
 amended by the convention after it had been approved by and 
 received back from the electoral body. By an ordinance 
 passed in April, 1891, the convention referred its completed 
 code to the people, adjourning to meet again in the following 
 September. The referendum was taken during the recess, 
 but the delegates when they reconvened voted to make cer- 
 
 " Miller v. Johnson, 92 Ky., 589. 
 "Acts of Kentucky, 1890, p. 124. 
 
126 THE REFERENDUM IN AMERICA 
 
 tain changes in the ratified instrument, some of which were 
 of an important character. This raises another interesting 
 point as to the rights and powers of the convention, one which 
 seems hitherto to have received scarcely any attention. Nor 
 has the Kentucky court yet given us any definite or proper 
 precedent in respect of this subject, since it evaded the direct 
 issue, which was again whether or not the legislature can 
 bind a convention. If it were to submit its work to the peo- 
 ple did this not mean its finished work, rather than a mere 
 draft which it might later amend and rearrange to its own 
 mind? The court on a technical point found in favor of the 
 validity of the constitution in order, it would seem, to save 
 the State from disturbance and expense which were sure to 
 ensue if acts performed and proceedings already taken should 
 be declared illegal. A new referendum would needs be held 
 and indeed in case of an adverse popular vote a new conven- 
 tion might have to be assembled. So much difficulty had 
 been experienced in bringing the late convention together 
 that it was no pleasant prospect to think of doing all this 
 work over again."' The court decided therefore that when 
 the " political department " of the government had assumed 
 and recognized the constitution to be a valid instrument it 
 was not within the scope of the court's powers to compel 
 a " co-equal department ", i. e., the convention, to perform 
 its duty when the result would be to " bring confusion and 
 anarchy upon the State ". Such an opinion is without very 
 much general legal interest and it contributes little to either 
 side of this important discussion. It was dictated by consid- 
 erations of temporary expediency and it must be viewed in 
 this light. There was a vigorous dissenting opinion in which 
 it was declared that the principle established by the court was 
 " heavily laden with mischief to the inherent and inalienable 
 rights of the people ". A protest was therefore entered 
 against the exercise by the convention of this " arbitrary 
 power ", which if " carried to its legitimate results would re- 
 
 " Infra, p. I34- 
 
ON ENTIRE CONSTITUTIONS 127 
 
 fleet back the harsh grating of the dungeon door and the rat- 
 tle of the tyrant's chains ". 
 
 Although it is impossible to think that our entire historical 
 development respecting this subject of a referendum on com- 
 plete constitutions is now lightly to be disregarded, the re- 
 cent practice in several States is -calculated to unsettle many 
 of our cherished theories. We are brought to these con- 
 clusions : that if the old constitution is silent as to the question 
 of the submission of a new constitution, the legislature and 
 convention cooperating, — in the South at least where public 
 opinion seems not to discountenance it, especially when some 
 particular end is to be gained thereby — may reckon without 
 the electors as a ratifying force. In cases in which the 
 legislature still demands a vote of the people, although the 
 conventions of Delaware and Kentucky have come dan- 
 gerously near the point of violating the law of American cus- 
 tom and tradition on this subject, there fortunately is yet no 
 authority for extending to this unicameral assembly unlim- 
 ited and sovereign powers which would release it from 
 proper control. The Mississippi opinion " is at hand, of 
 course, in favor of an unchecked convention, though this we 
 can certainly regard as no very valuable or authoritative 
 precedent. We seem to stand therefore just about where we 
 did when Judge Jameson laid down his pen at the end of his 
 masterly investigation of this subject, and Americans may 
 entertain the hope that the rules governing the convention 
 which he so clearly perceived and so well classified and which 
 have our respect because they are the rules that have been 
 developed out of our practice and experience, may not soon 
 be departed from. 
 
 " Sproule V. Fredericks, loc. cit. 
 
CHAPTER V 
 
 THE AMENDMENT OF CONSTITUTIONS BY CONVENTIONS 
 
 Another topic is now to be considered, and this has to 
 do with the development of the system by which the State 
 constitutions may be amended. When constitutions are to be 
 changed, the normal method, as we have seen, is by calHng 
 together a new convention, if these changes are so important 
 as to amount to a general revision. Coincidently with the 
 referendum on whole constitutions, if not somewhat antedat- 
 ing it, there has developed another referendum, on the subject 
 of assembling a new convention. The electors in the States 
 are themselves to determine, (i) whether the constitution 
 or form of government which the convention has framed, 
 shall be adopted, and (2) when the constitution or form of 
 government has been adopted, whether it shall be abolished 
 or changed. Such a poll of the people to decide upon the 
 expediency of calling a convention to revise the constitution, 
 was proposed in Pennsylvania in 1777, and 1778,^ though 
 the legislature rescinded its action before the referendum 
 was really taken. The Massachusetts legislature in 1779, 
 desiring to ascertain the sense of the people respecting a new 
 government, asked the electors to decide whether a con- 
 vention should be called or not. Tlieir answer being in the 
 affirmative, John Adams' Constitution was framed and sub- 
 mitted to popular vote, the first constitution in the United 
 States, to be made the subject of a plebiscite. 
 
 The Constitution of Pennsylvania of 1776, and the early 
 Constitutions of Vermont, provided for their own amendment 
 •through that curious and unsatisfactory body the Council 
 of Censors. When this Council proposed amendments, they 
 
 ' Ante, pp. 49-52. 
 
 128 
 
CONSTITUTIONAL AMENDMENT BY CONVENTION 129 
 
 were to be submitted to a convention specially chosen for 
 the purpose of considering them. This method of revision 
 was abolished in Pennsylvania in 1790, but it continued to 
 be a feature of the constitutional practice of Vermont until 
 1870, several conventions having met under authority de- 
 rived from this odd provision, and the Constitution having 
 been several times amended by this process. The Constitu- 
 tion of Massachusetts of 1780, provided that in 1795 the 
 election officers in the various towns, etc., should " collect 
 the sentiments " of the people concerning " the necessity and 
 expediency of revising the constitution in order to amend- 
 ments ". Upon a two-thirds vote of the people, a conven- 
 tion was to be called by the General Court or legislature." 
 The Georgia Constitution of 1777 also provided for a con- 
 vention, when it was a question of altering the constitution, 
 but upon the presentation of petitions bearing the signatures 
 of a majority of the voters in each county, instead of an act- 
 ual assembling of the votes pro and con at the polling places.' 
 The Constitution of New Hampshire, adopted in 1784, 
 contained a clause which made it necessary for the legislature 
 to call a convention, at the end of seven years, or in 1791. 
 This provision was self-executory, the convention meeting 
 without a reference of the subject to popular vote. No alter- 
 ation should be made in the constitution by the convention, 
 however, unless it were first " laid before the towns and 
 unincorporated places " of New Hampshire, and approved 
 " by two-thirds of the qualified voters present, and voting 
 upon the question ".* By the New Hampshire Constitution 
 of 1792, the people were to be polled at the expiration of 
 
 ' Constitution of Massachusetts, chapter vi, art. x. 
 
 ' Constitution of 1777, article Ixiii. — " No alteration shall be made in 
 this Constitution without petitions from a majority of the counties, and 
 the petitions from each county to be signed by a majority of the voters 
 in each county within this State; at which time the Assembly shall 
 order a convention to be called for that purpose, specifying the altera- 
 tions to be made, according to the petitions preferred to the Assembly 
 by the majority of the counties as aforesaid." 
 
 *Cf. final paragraph of the Constitution of New Hampshire of 1784. 
 
130 THE REFERENDUM IN AMERICA 
 
 every seven year period, on the subject of calling a con- 
 vention to revise the fundamental law of the State. It was 
 again provided that all amendments originating in this man- 
 ner should be laid before the people assembled in the town 
 meetings." In Delaware by the Constitution of 1792, the 
 electors were declared to be the only authority competent to 
 decide the convention question." Kentucky by the Consti- 
 tutions of 1792 and 1799, and Tennessee by the Constitu- 
 tion of 1796, left it to the people to determine when a con- 
 vention should be assembled. 
 
 It soon came to be so generally understood that it was a 
 prerogative of the citizens at large directly to determine this 
 important point, that the " Council of Revision ", the plu'ral 
 vetoing power in New York, vetoed a bill which had been 
 passed by the legislature of that State in November, 1820, 
 and which authorized a constitutional convention without 
 first securing the people's consent. Chancellor Kent, a mem- 
 ber of the Council, prepared the statement which accom- 
 panied the bill on its return to the legislature, with the 
 Council's disapproval. The first reason for the Council's 
 dissent was that the convention would meet " without having 
 first taken the sense of the people whether such a conven- 
 tion for such a general and unlimited revisal and alteration 
 of the Constitution be in their judgment necessary and ex- 
 pedient ". The various precedents were carefully examined, 
 and it was asserted thus early in the century in the leading 
 State of the Union, by a body composed of some of the ablest 
 legal minds in the United States, that the law of custom as it 
 had been developed in this country with respect to this 
 
 "Constitution of 1792, sections 99-100. 
 
 ' Constitution of 1792, article x. — " No convention shall be called 
 but by the authority of the people ; and an unexceptionable mode of 
 making their sense known, will be for them at a general election of 
 representatives to vote also by ballot, for or against a convention, as 
 they shall severally choose to do ; and if, thereupon, it shall appear 
 that a majority of all the citizens in the State having right to vote for 
 representatives, have voted for a convention, the General Assembly 
 shall, accordingly at their next sessions call a convention ", etc. 
 
CONSTITUTIONAL AMENDMENT BY CONVENTION 131 
 
 subject, was not to be lightly set aside. The Council said: 
 " The declared sense of the American people throughout the 
 United States on this very point, cannot but be received with 
 great respect and reverence; and it appears to be the almost 
 universal will expressed in their constitutional charters, that 
 conventions to alter the constitution shall not be called at 
 the instance of the legislature, without the previous sanc- 
 tion of the people by whom those constitutions were or- 
 dained." The Council declared that there ought to be two 
 referenda, one to determine, in the first instance, as to the 
 general expediency of calling the convention, and a second 
 as to the advisability of accepting the work of the con- 
 vention, and promulgating it as the constitution of the 
 State.'' The legislature, having failed to do its part well in 
 1820, thereupon in the following year took up the subject 
 again, and passed a law which properly embodied the Coun- 
 cil's recommendations.' The people were to vote " Conven- 
 tion " or " No Convention ", as they might prefer, and such 
 changes as the body might make in the organic law, should 
 the people authorize it to meet, would have then to be sub- 
 mitted " to the decision of the citizens of this State * * * 
 together or in distinct propositions as to them [the members 
 of the convention] shall seem expedient ". 
 
 Nearly all the constitutions now contain definite provisions 
 on this subject. When the legislatures leave it to the people 
 to decide whether a convention shall be called or not, they do 
 so as a rule, pursuant to no law of custom, nor by virtue of 
 any implied power, but because of an imperative command 
 in the constitution. For instance, the Constitution of Utah, 
 the newest of the States, declares : " " Whenever two-thirds 
 of the members elected^to each branch of the legislature shall 
 deem it necessary to call a convention to revise or amend 
 
 'See the objections of the Council to the bill calling a convention, 
 dated Nov. 29, 1820. This paper may be conveniently referred to in 
 Jameson's Constitutional Conventions, Appendix F. 
 
 'Cf. Hammond's History of Political Parties in the State of New 
 York, Vol. I, p. 539 ; Laws of New York, 1821, p. 83. 
 
 "Art. xxiii, sec. 2. ' 
 
132 THE REFERENDUM IN AMERICA 
 
 this Constitution, they shall recommend to the electors to 
 vote at the next general election for or against a conven- 
 tion, and if a majority of all the electors voting at such elec- 
 tion shall vote for a convention, the legislature at its next 
 session shall provide by law for calling the same." 
 
 The Constitution of Delaware of 1897, another recently 
 adopted instrument, treats this subject as follows : " The 
 General Assembly by a two-thirds vote of all the members 
 elected to each house, may from time to time provide for the 
 submission to the qualified electors of the State at the gen- 
 eral election next thereafter, the question ' Shall there be 
 a convention to revise the Constitution and amend the same ? ' 
 and upon such submission, if a majority of those voting on 
 said question shall decide in favor of a convention for such 
 purpose, the General Assembly at its next session shall pro- 
 vide for the election of delegates to such convention at the 
 next general election." 
 
 It appears that thirty of the forty-five different State 
 Constitutions contain definite provisions of a similar kind 
 respecting a referendum on the convention question, and in 
 only fifteen is the legislature left to decide upon its own 
 authority what it will do in the matter, when the occasion 
 arises, and a general constitutional revision is required.^" 
 
 A closer examination of these Constitutions will show 
 that in seventeen of the thirty cases, the method of submis- 
 sion is as in Utah and Delaware, — i. e., in pursuance of an 
 affirmative vote of two-thirds of the members elected to the 
 legislature. In one State, Nebraska, three-fifths of the 
 members must concur before the subject is submitted. A 
 simple majority of the members of the legislature voting on 
 the question, as in the case of other laws, seems to be suf- 
 ficient to bring the matter to the referendum in Alabama, 
 Missouri and Tennessee, while in Wisconsin an ambiguous 
 " majority of the Senate and Assembly ", and in West Vir- 
 
 " These fifteen are Arkansas, Connecticut, Georgia, Indiana, Louisi- 
 ana, Maine, Massachusetts, Mississippi, New Jersey, North Dakota, 
 Oregon, Pennsylvania, Rhode Island, Texas, and Vermont. 
 
CONSTITUTIONAL AMENDMENT BY CONVENTION 133 
 
 ginia " a majority of the members elected to each house of 
 the legislature" are required. In Kentucky the proposi- 
 tion must be approved by a majority of all the members 
 elected to the legislature, in two successive General Assem- 
 blies, a rather effective curb upon hasty or precipitate action. 
 
 In another class of States, following the example of Massa- 
 chusetts and New Hampshire, the Constitutions specify that 
 the subject of calling a convention shall be submitted to the 
 people by the legislature at regular intervals ; in New Hamp- 
 shire every seven years, in Iowa in 1870 and each tenth 
 year thereafter, in Michigan in 1866 and each sixteenth year 
 thereafter, in Maryland in 1887 and every twenty years fol- 
 lowing, in Virginia in 1888 and thenceforward at periods of 
 twenty years, in New York in 1916 and every twentieth 
 year thereafter. In these cases it is often declared expressly 
 that the legislature may submit the question at other times 
 when it may consider this policy to be expedient, e. g., in 
 New York, Michigan and Iowa, and where not so declared 
 there is a fair implication that it may do so. 
 
 In the referendum on the convention subject, it is the al- 
 most uniform practice that a majority of the votes cast, de- 
 termines the fate of the proposal. In Kentucky alone is this 
 rule definitely qualified and there it is necessary, if a majority 
 shall be in favor of the question, that the total vote for the 
 convention shall be equal to at least one-fourth of the num- 
 ber of votes cast in the last general election in the State, a 
 limit which is certainly not high, and established in a 
 righteous spirit with a view to safeguarding the State against 
 a convention which might perhaps receive its mandate from 
 a very small minority of the citizens. Although Kentucky, 
 by her Constitution of 1891, still throws some difficulties in 
 the way of the legislature in assembling a convention, the 
 process is simplicity itself, in comparison with that which 
 some very shortsighted men introduced in the State Con- 
 stitution of 1850.^^ This odd system comprised a vote of 
 
 "Article xii. 
 
134 THE REFERENDUM IN AMERICA 
 
 " a majority of all the members elected to each house of the 
 General Assembly ", and two subsequent " ratifying votes 
 of a majority of all the citizens of this State entitled to vote 
 for representatives ", taken at successive general elections 
 for members of the legislature. Thus more than four years 
 were required to call a convention, granting that it were at all 
 possible to fulfill so difficult a condition as securing for the 
 proposal a majority, not of the votes cast, but of all those 
 entitled to be cast, and not once, but on two occasions and 
 at succeeding elections. For instance, one General Assembly 
 could vote to submit the question to the people, but the peo- 
 ple could not be consulted until the next election for repre- 
 sentatives nearly two years later, and the proposition could 
 not be approved a second time before another period of two 
 years had elapsed. The act definitely authorizing the con- 
 vention, then, was still to be adopted by the Assembly at a 
 subsequent session. Strangely enough, there was no other 
 method of amending the Constitution of Kentucky, than by 
 convention. Upon the legislature was conferred no power 
 of initiation, with respect to separate amendments, whish it 
 now possesses so generally in the various States. Such a 
 thing as changing the Constitution was for long years, there- 
 fore, a practical impossibility. Although sporadic attempts 
 were earlier made to meet the conditions precedent to the 
 calling of a convention, there was not a single regular ses- 
 sion of the legislature, beginning with 1879-80, until the 
 convention was finally authorized in 1890, when this subject 
 was not before the General Assembly of Kentucky State. 
 The necessary popular majorities were at last secured, in 
 1887 ^^ and 1889, the members of the convention were 
 elected in 1890, and in 1891 the old Constitution was super- 
 seded by a new one in which good care was taken that the 
 State should not again get into such a trap. 
 
 Delaware, under the Constitution of 183 1, which was in 
 force until a very recent date, had somewhat similar trials in 
 
 " Laws of Kentucky, 1887-8, p. 4. 
 
CONSTITUTIONAL AMENDMENT BY CONVENTION I35 
 
 the course of her attempts to assemble a new convention. 
 Here, too, if a convention were to be called, the proposition 
 must be approved by " a majority of all the citizens in the 
 State having right to vote for representatives "." This ma- 
 jority, it was specified, should be ascertained " by reference 
 to the highest number of votes cast in the State at any one 
 of the three general elections next preceding ". The con- 
 vention question was to be voted on by the people, at a " spe- 
 cial election ", when as American experience has demon- 
 strated, it is even more difficult to bring together any large 
 number of men who have definite views to express respect- 
 ing public questions, than at general pollings, a point which 
 deserves to be dwelt on more at length in another place. At 
 the election on November i, 1887, the vote on the subject of 
 calling a constitutional convention was 1443 1 yeas and 398 
 nays, the number of votes required being 15640. At the 
 election of May 19, 1891, there were 17105 votes for a con- 
 vention, and 115 against it, the number of votes required at 
 this time having increased to 17674.^* However, the Dela- 
 ware Convention of 1831 had not, like the Kentucky Conven- 
 tion, excluded the legislature from changing the Constitution. 
 Amendment could be effected by a two-thirds majority vote 
 of one legislature, and a three-fourths majority vote of the 
 next (without a referendum). After various fruitless en- 
 deavors to call a convention by the method regularly pre- 
 scribed, the legislature at last set itself to the task of adopting 
 an amendment, which would change this troublesome pro- 
 vision of the Constitution and open the way to a revision of 
 the entire instrument.^" The Delaware Convention, which 
 soon met, disposed of the last trace of this old check, and put 
 the State in line with the other Commonwealths, where the 
 tendency had been at work for a long time to make it easy 
 
 "Constitution of 1831, art. ix. 
 
 "Cf. McPherson's Handbook for 1888 and 1892. 
 
 "Laws of Delaware, 1893, chapter 540. ' The amendment simply au- 
 thorized the vote to be taken at a general instead of at a special elec- 
 tion. 
 
136 THE REFERENDUM IN AMERICA 
 
 rather than hard for the agents charged with this task, to 
 effect changes in the constitution. 
 
 We need, too, to look at the case in which the constitution 
 is silent on the point of the legislature calling a convention. 
 What, then, is the legislature's duty? Has it the power to 
 call a convention anyhow, without express constitutional au- 
 thorization to that effect, and if so, is it restricted as to the 
 ways and means to be adopted in attaining this end ? When 
 the constitution says that it shall be amended by some one 
 particular method, and that method is not by convention, 
 explicitly stating that no other shall be employed, it seems 
 to be admitted that to act in contravention of the terms of 
 that instrument, would be revolutionary, an offence no 
 Smaller than to violate any other constitutional provision.^' 
 For instance, the Constitution of Delaware of 1776, a very 
 imperfect instrument, we will all say, at least in this respect, 
 provided, after declaring that certain portions of the Consti- 
 tion " ought " never to be violated " on any pretence what- 
 ever ", that " no other part * * * shall ever be altered, 
 changed or diminished without the consent of five parts in 
 seven of the Assembly, and seven members of the Legisla- 
 tive Council "." It must be remembered, of course, that the 
 legislature might have changed that part of the Constitution 
 giving it the sole right to amend the same, just as it might 
 have changed any other portion of the instrument. Then 
 the convention, apparently prohibited, could have been le- 
 gitimated by the legislature by way of a constitutional 
 amendment. It is Judge Jameson's opinion that such a pro- 
 vision inhibited the amendment or general revision of the 
 constitution by a convention or by any other authority than 
 the General Assembly. There was no implication of power 
 on the part of the legislature to call a convention, the Consti- 
 tution having omitted to give its directions on the point. 
 Such an assumption would have been quite unwarranted, 
 for " no power can be implied in the face of a direct and ex- 
 
 " Jameson, op. cit., pp. 600-601. 
 " Art. XXX. 
 
CONSTITUTIONAL AMENDMENT BY CONVENTION i37 
 
 press prohibition "." But where there is no prohibition of 
 the exercise of the power or allegation of the existence of 
 the right of the legislature to call a convention, for the pur- 
 pose of amending the constitution, that prerogative rests with 
 the General Assembly by inference, as a part of the general 
 grant of legislative authority." 
 
 The case, too, is distinguishable of a constitution which es- 
 tablishes an alternate mode of amendment, without having 
 expressly prohibited the use of the convention method, as 
 the framers of the Delaware Constitution of 1776 are held to 
 have done. We will soon sketch the development of what 
 has been called the legislative mode of amendment, that is, 
 one by and through the legislature, which is meant to sim- 
 plify the problem of constitutional change, and save the 
 State from the cost and labor of putting the cumbrous con- 
 vention system into operation. Now, when the constitution 
 specifies that it may itself be amended by the legislature in 
 such and such a manner, and there is no word in disparage- 
 merit or prohibition of any other method, are we to infer that 
 the elder and primal method by convention has been inter- 
 dicted? Assuredly not. There is the force of a great deal 
 of precedent and principle to show that such a claim would be 
 quite untenable.^" The fact has been clearly established 
 that the legislative mode, except when there are ex- 
 press declarations to the contrary, is intended only to cover 
 the case of a few specific alterations in the fundamental law, 
 — one, two or a half dozen. A convention on the other hand, 
 is an agency by which the entire constitution is revised, and 
 although it may after investigating the subject, recommend 
 only a partial remodelling, the opinion is entertained by those 
 who have called the convention together, that large changes 
 are needed, and the body undertakes its labors committed to 
 this task. There are thus two separate agents to accomplish 
 two separate objects, and one agent exercising its preroga- 
 tive, cannot prejudice the other in the exercise of its peculiar 
 
 "Jameson, p. 601. "Ibid., pp. 211, 601. "Ibid., p. 615. 
 
138 THE REFERENDUM IN AMERICA 
 
 rights. The constitution may be wholly silent in regard to 
 the calling of a convention; it may specify that separate 
 amendments may be initiated by the legislature, but if there 
 is no prohibition respecting the convention as an agency for 
 the general revision of the constitution, there is the unmis- 
 takable implication that this agency may be employed.^^ Up 
 to 1887, Judge Jameson found that in the history of our 
 practice twenty-seven conventions had met without special 
 authority for their assembling having been contained in the 
 State constitutions ^^ and since that time at least two conven- 
 tions have been added to the list, — Mississippi's in 1890, and 
 Louisiana's in 1898. Our custom has so well established the 
 rule upon this point, that it is too late now to question the 
 legitimacy of these conventions.'" 
 
 The converse of this proposition, as we will see on a later 
 page, is not true, for there is no inferable power resting with 
 the legislature to change the constitution in a smaller way, 
 unless definite provisions can be pointed to in that instru- 
 ment, to which the right to exercise such a prerogative may 
 be traced back. The legislature when it acts alone, or in con- 
 junction with the electors in adopting amendments to the 
 constitution, does so in an unusual capacity. It acts as a 
 convention, not as a "legislature, and it must be able to justify 
 its course at every step. It serves us thus on sufferance only, 
 and it has won its title to this share in constitutional law- 
 making, because it is realized that the great, long, and de- 
 tailed constitutions of to-day must be frequently changed, 
 and some method must be at hand, simpler and less expen- 
 sive than calling delegates together from all parts of the 
 State, for the special purpose of making these minor changes 
 in the language and spirit of the instrument.^* 
 
 Now, when the legislature is not specifically prohibited 
 
 ^Jameson, p. 211. — "It must be laid down as among the established 
 prerogatives of our general assemblies that the constitution being silent, 
 whenever they deem it expedient they may call conventions to revise the 
 fundamental law." 
 
 '^Ibid., p. 210. "Ibid., p. 602. 
 
 "/6«(/., pp. 549, 621, 622. 
 
CONSTITUTIONAL AMENDMENT BY CONVENTION i39 
 
 from calling a convention (a case of only theoretical inter- 
 est), and it acts upon authority derived from general impli- 
 cation alone, wrhat direct part are the people to play in the 
 proceeding ? May the referendum respecting the expediency 
 of issuing the call be dispensed with by the legislature? 
 The weight of authority is distinctly on the side of a submis- 
 sion of this question to the people. The opinion of the New 
 York Council of Revision, in 1820, which is cited so fre- 
 quently, — that body, clothed with a power later con- 
 ferred in nearly all our States upon the Governor alone, with- 
 out whose assent to a bill, none could become a law except 
 by a two-thirds vote over the veto, — is against a convention 
 assembled at the sole instance of the legislature. The New 
 York Constitution of 1777, which it was proposed should be 
 changed, contained no word concerning the method of calling 
 a convention, nor did it seem to contemplate the case arising 
 when such a body would need to be convened. The Council, 
 nevertheless, unhesitatingly declared that it was the duty of 
 the legislature to submit the question, just as it was its pre- 
 rogative in general to set the machinery in motion for a con- 
 vention to assemble, despite the Constitution's silence in ref- 
 erence to that larger point. Because the legislature had 
 failed to provide for a poll of the people, the Council had 
 vetoed the bill, and the former acting in pursuance of better 
 advice, promptly passed a measure to refer the matter to the 
 electors of the State. 
 
 Doubtless it is within the power of the legislature, when 
 the constitution contains no specific directions to the con- 
 trary, to call a convention, without first acquainting itself 
 with the sense of the people on this subject. Even in those 
 States in which the ■ constitution is not wholly silent on the 
 point, and a method is prescribed for calling a convention, 
 though without a definite command as to the submission of 
 the question to popular vote, the legislature may undoubtedly 
 omit this latter feature of the process. Perhaps; there is here 
 an added implication that the plebiscite is unnecessary, but 
 lacking the constitutional mandate to dispense with the vote, 
 
14° THE REFERENDUM IN AMERICA 
 
 the legislature may, of course, require the popular sanction, 
 and if it desires to keep itself in line with all our historical 
 tendencies, it will make no effort to evade what must be con- 
 sidered to be its manifest duty in the case. For instance, the 
 Constitution of Georgia declares that " no convention of the 
 people shall be called by the General Assembly to revise, 
 amend, or change this Constitution, unless by the concurrence 
 of two-thirds of all the members of each house of the General 
 Assembly ".^^ It contains no command to submit, nor pro- 
 hibition from submitting to the electors by way of the refer- 
 endum, the question of the expediency of the call, and with- 
 out a doubt, the legislature can refer the subject to them or 
 not, at its own pleasure."' 
 
 Of one thing there seems to be some certainty, if our prac- 
 tice is closely studied and the lessons which it teaches are 
 rightly viewed and considered, and it is this — that the peo- 
 ple should be directly consulted at some stage in the process 
 of constitutional change. One or other of the two refer- 
 enda, either the preliminary vote to decide as to the expedi- 
 ency of calling the convention, or the vote upon the accept- 
 ance or rejection of the whole constitution after the conven- 
 tion has framed it, should be taken."^ If we look at those 
 States in which constitutions have recently been adopted 
 without a reference of the instruments to popular vote, Mis- 
 sissippi, South Carolina, Delaware, Kentucky (in part), and 
 Louisiana, there is but one case, that of Mississippi in which 
 the legislature, or the legislature and convention acting to- 
 gether, took the matter wholly out of the people's hands, and 
 
 '"Constitution of 1877, art. xiii, sec. i, par. 2. 
 
 "A usual form in which to submit this subject, since more modern 
 ballot systems have been introduced, is as follows : " For the [or a] Con- 
 vention ", " Against the [or al Convention ", as in California and 
 Tennessee ; " Shall there be a Constitutional Convention — Yes ", or 
 " No ", a space for the voter's mark being left after either word, as in 
 Minnesota ; " For a general revision of the Constitution — Yes " or 
 " For a general revision of the Constitution — No ", as in Michigan ; 
 " Constitutional Convention — Yes '' or " Constitutional Convention- 
 No ", as in Ohio. 
 
 '" Cf. Jameson, op. cit., p. 494. 
 
CONSTITUTIONAL AMENDMENT BY CONVENTION 141 
 
 withdrew from them all part in the proceedings, both before 
 and after the convention met. It is true that in South Caro- 
 lina, Kentucky and Delaware, the old Constitutions required 
 that conventions should be called only after a polling of the 
 people, and in Kentucky the vote had to be taken on two oc- 
 casions, but the fact remains that it is now only in the rarest 
 instance that all our agents which co-operate to this end, fail 
 us, and a constitution is added to the American collection, 
 without the people having said by yea or nay, somehow, at 
 sometime, whether or not they are ready to make this change 
 in their organic scheme of government. 
 
CHAPTER VI 
 
 THE AMENDMENT OF CONSTITUTIONS BY THE LEGISLATIVE 
 
 METHOD 
 
 Another method of amending the constitution, the legis- 
 lative method, remains to be specifically considered. It was 
 the practice in England, whence we got so much that is valu- 
 able in our political forms, to receive constitutional as 
 well as statutory law from Parliament or the legislature. 
 We had introduced Montesquieu's trinity of English agents, 
 the legislative, executive and judicial departments of govern- 
 ment, each balanced against and checking the two others. 
 But we were to go farther, and bring upon the scene a fourth 
 brake upon the wheel, the convention, dififerentiating con- 
 stitutional and ordinary law, not only in its intrinsic char- 
 acter, but as well in respect of the source from which it was 
 derived. The legislature for a time in this country, was al- 
 most entirely without power in the matter of constitutional 
 law-making, except as the agent to call the convention to- 
 gether. In those early cases in which the legislature itself 
 attempted to act as a convention, the constitutions were con- 
 sidered to have been irregularly adopted, and therefore in- 
 valid.^ It came to be pretty generally understood that what 
 the legislature was not competent to make, it also was not a 
 suitable authority to break down or change. If experience 
 should later show that amendment was needed, it was plainly 
 stated, or fairly implied in the constitution, that the mode at 
 hand was to call another convention. The Constitutions of 
 1776 in Delaware and Maryland, indeed, gave to the legis- 
 lature rather general powers to change those instruments 
 under certain safeguards, calculated to prevent hasty and ill- 
 
 " Ante, p. 74. 
 
 142 
 
AMENDMENT BY THE LEGISLATIVE METHOD i43 
 
 considered action. In the Maryland Constitution, it was 
 specified " that this form of government and the Declaration 
 of Rights, and no part thereof shall be altered, changed or 
 abolished, unless a bill so to alter, change or abolish the same 
 shall pass the General Assembly, and be published at least 
 three months before a new election, and shall be confirmed by 
 the General Assembly after a new election of delegates, in 
 the first session after such new election ". Here was a plan 
 for amendment by simple majority vote of two successive 
 legislatures, and in lieu of the referendum there was intro- 
 duced the device of publishing the proposals for the consider- 
 ation of the people prior to the election of the members of the 
 General Assembly which should pass upon them the second 
 time.* 
 
 In Delaware the Constitution of 1776 prescribed, with the 
 exception of some cases not to the purpose here, that no part 
 of the Constitution should ever be " altered, changed or 
 diminished without the consent of five parts in seven of the 
 Assembly, and seven members of the Legislative Council ".' 
 Thus of the Constitutions of the Revolutionary time in those 
 of two of the original States, the legislature was created the 
 agent for amending the Constitution.* In the Constitutions 
 of New Jersey, New York, North Carolina and Virginia, 
 there were no provisions on this subject. In New Hamp- 
 shire, Massachusetts and Georgia, the convention method 
 was adopted, as it was also in Pennsylvania with the addition 
 of that odd feature, the Council of Censors. As silence is 
 an inference in favor of the convention, there were then but 
 two States of the eleven (the other two needed to make up 
 the " original thirteen " being Connecticut and Rhode Island, 
 and they retained their English charters) which held the leg- 
 islature to be competent in amendment, even with respect 
 
 'Art. lix. 'Art. xxx. 
 
 •The example of South Carolina in 1778 may be disallowed, for the 
 Supreme Court of that State decided that as the Constitutions of 1776 
 and 1778 had both been framed by the legislature, the latter could at 
 its own pleasure change them again. 
 
144 THE REFERENDUM IN AMERICA 
 
 to minor details. It is true, of course, as Judge Jameson 
 has very clearly shown, that these original Constitutions, if 
 we except those of Massachusetts and New Hampshire, 
 which adopted their instruments near or after the conclusion 
 of the war, were merely intended to serve temporary ends, 
 until independence should be secured, if, indeed, that much 
 desired result could be attained. The effort for independent 
 government failing, the constitutions would have had little 
 future value anyhow, not more than those which were framed 
 by the Secession conventions in the Southern States at the 
 outbreak of the great Civil War. There was little thought 
 then of how the constitutions should be changed; the press- 
 ing question was to establish them, adopt them and live 
 under them. Systems by which to amend the instruments 
 of government were to be devised at a somewhat later date. 
 
 The need was soon felt, and it had been prophetically 
 anticipated in Maryland and Delaware in 1776, for 
 some easier mode of amendment than .by assembling a new, 
 convention. The legislature was holding sessions fre- 
 quently. While it was engaged in its own specific line of 
 work, it might too act in the capacity of a convention in 
 adopting, or at any rate in proposing for adoption, such 
 amendments to the constitution as might seem to be required 
 from time to time for the good of the State. From the be- 
 ginning it was understood that in enacting constitutional 
 law, even to this extent, the legislature was stepping outside 
 of its own rightful province. It ought to be more difficult 
 for the legislature to amend the constitution than to pass an 
 ordinary law. Delaware, therefore, had specified that 
 changes in her Constitution should be made only with " the 
 consent of five parts in seven of the Assembly, and seven 
 members of the Legislative Council ".^ Maryland declared 
 that the legislature, if it should desire to alter the Constitu- 
 tion of the State, must announce its intention to the people 
 by publication, and twice approve its proposition for amend- 
 ment, though a simple majority vote on each passage suf- 
 ° Art. XXX. 
 
AMENDMENT BY THE LEGISLATIVE METHOD i45 
 
 ficed. In the Constitution of South CaroHna, in 1790, a 
 somewhat similar provision was introdutied. Amendments 
 were to be proposed in one legislature, published for the in- 
 formation of the people previous to the next election of rep- 
 resentatives, being then confirmed by the next legislature. A 
 two-thirds vote " of the whole representation " in both 
 branches was necessary at each passage, however, a condi- 
 tion tending to make it still more difficult for the legislature 
 to exercise its amending power.* A provision almost the 
 exact counterpart of that found in South Carolina, 
 was incorporated in the Georgia Constitution of 1798,'' 
 and the second Constitution of Delaware adopted in 1792 
 arranged for its own amendment by the legislative mode, 
 though again in a slightly different form, viz: a two-thirds 
 majority vote of 'each house of one legislature, " with the 
 approbation of the Governor ", the publication of the pro- 
 posals for popular consideration, and a three-fourths vote of 
 each branch of the next legislature.' 
 
 Constitutional amendment by legislature originated in the 
 South, and there had its most notable early developments. 
 But in no case did the amendment come nearer to the people 
 than in printing and circulating it for their consideration, 
 three or six months before the next election for representa- 
 tives whose duty it would be to ratify the proposed change. 
 The rejected Constitution of New Hampshire of 1779, con- 
 tained a provision for its own amendment, which specified 
 that " the General Court shall have no power to alter any part 
 of this Constitution, but in case they should concur in any 
 proposed alteration, amendment or addition, the same being 
 agreed to by a majority of the people, shall become valid ".* 
 The Constitutions of New Hampshire adopted in 1784 and 
 1792, provided that alterations in the constitution should be 
 " approved by two-thirds of the qualified voters present, and 
 
 •Constitution of 1790. art. xi. 'Art. iv, sec. 15. 
 "Constitution of 1792. art. x. 
 
 • Sec. 32 of the Constitution, which is printed in the Collections of the 
 New Hampshire Historical Society, Vol. IV, p. 154. 
 
146 THE REFERENDUM IN AMERICA 
 
 voting on the subject " at the various town meetings, but the 
 changes which were contemplated were to come from a con- 
 vention and not from the legislature. It is Connecticut in 
 1818, when she abandoned her old charter and adopted her 
 first Constitution, that won for herself the historical distinc- 
 tion of having originated the plebiscital method which was 
 destined soon to meet with general application throughout 
 the States. It was the New England system of a popular 
 vote upon constitutions or parts of constitutions, received 
 from conventions, grafted on to the Maryland scheme of 
 amendment by legislature, which was generally coming into 
 vogue in the South. Instead of simply publishing the propo- 
 sition " for the consideration of the people ", the people were 
 to have the whole subject directly referred to them, so that 
 each elector might say for himself whether he approved of 
 the amendment or disapproved of it. Moreover the poll of 
 the citizens was not introduced between the two votes of the 
 legislature, a system which soon came into favor in the 
 Southern States, but after that body had both times passed 
 the measure. To the people the last word was given. The 
 Connecticut plan did not call for simple majority votes twice 
 repeated, nor yet for two-thirds majorities, but as if to strike 
 another compromise among the various precedents at hand, 
 the Constitution prescribed that at the first passage a simple 
 majority should suffice^ and curiously, of but one chamber 
 (the House of Representatives) while at the second passage 
 a two-thirds vote in each of the two houses would be neces- 
 sary. A difficulty was averted in the subsequent ratifying 
 vote of the people, by providing that a simple majority of 
 those voting, rather than some larger number, should de- 
 termine the point as to the approval of the amendment. 
 This interesting Connecticut provision is, in full, as follows: 
 " Whenever a majority of the house of representatives shall 
 deem it necessary to alter or amend this Constitution^ they 
 may propose such alterations and amendments, which pro- 
 posed amendments shall be continued to the next Genera^ 
 Assembly and be published with the laws which may have 
 
AMENDMENT BY THE LEGISLATIVE METHOD M? 
 
 been passed at the same session; and if two-thirds of each 
 house at the next session of said Assembly, shall approve 
 the amendments proposed by yeas and nays, said amend- 
 ments shall by the secretary be transmitted to the town 
 clerk in each town in the State, whose duty it shall be to pre- 
 sent the same to the inhabitants thereof for their considera- 
 tion at a town meeting, legally warned and held for that pur- 
 pose, and if it shall appear in a manner to be provided by law 
 that a majority of the electors present at such meetings shall 
 have approved such amendments, the same sha^ be valid, to 
 all intents and purposes, as a part of this Constitution." ^" 
 
 The Massachusetts Convention of 1820, of which Daniel 
 Webster was a member, he himself having had a part in giv- 
 ing form to this particular provision, adopted the Connecticut 
 plan with but slight modification. This Convention did not 
 frame an entire new constitution, but simply submitted to the 
 electors of the State a number of proposals for the amend- 
 ment of the instrument. The Constitution having been de- 
 ficient in respect of a method for its own change, in case any 
 " specific and particular amendment or amendments " should 
 be needed, the example which Connecticut had set the coun- 
 try was studied with interest in Massachusetts. This sec- 
 tion as it was proposed by the Massachusetts Cojivention in 
 1820-21, and was ratified by the people in 1822, specified that 
 the proposal for amendment should be passed by a majority 
 vote of the Senate, and a two-thirds vote of the House of 
 Representatives of one legislature, and a like vote of the two 
 branches of the next succeeding legislature, when, if it were 
 referred to the people, and a majority of the qualified electors 
 voting on the subject should approve it^ it should become a 
 part of the Constitution of the State.^^ 
 
 "Constitution of 1818, art. xi. 
 
 "Amendments to Massachusetts Constitution of 1780, art. ix. The 
 text of the provision is as follows : " If at any time hereafter any 
 specific and particular amendment or amendments to the Constitution 
 be proposed in the General Court, and agreed to by a majority of the 
 senators and two-thirds of the members of the house of representa- 
 tives present and voting thereon, such proposed amendment or amend- 
 
148 THE REFERENDUM IN AMERICA 
 
 The New York Convention which met at about the same 
 time, in 1821, incorporated in the Constitution which it 
 framed, a similar provision for the amendment of the instru- 
 ment. There was here once more a sHght variation in re- 
 spect of terms and forms, but the referendum was again 
 made to follow the vote of two successive legislatures. A 
 simple majority vote of both houses of the first legislature 
 sufficed, while a two-thirds majority vote in both houses was 
 necessary on the second passage, in order to bring the sub- 
 ject to the people.^^ 
 
 In the meantime, about a year after the Connecticut plan 
 of amendment was adopted, Alabama being admitted in 1819 
 to the Union of States brought with her a Constitution con- 
 taining a provision for its own alteration of still a different 
 kind. It was a modification of the Maryland scheme of 1776, 
 with a plebiscite introduced after the proposal came from the 
 
 ments shall be entered on the journals of the two houses with the yeas 
 and nays taken thereon, and referred to the General Court then next 
 to be chosen, and shall be published ; and if in the General Court 
 then next chosen, as aforesaid, such proposed amendment or amend- 
 ments shall be agreed to by a majority of the senators, and two-thirds 
 of the members of the house of representatives present and voting 
 thereon, then it shall be the duty of the General Court to submit such 
 proposed amendment or amendments to the people, and if they shall 
 be approved and ratified by a majority of the qualified voters voting 
 thereon at meetings legally warned and holden for that purpose, they 
 shall become part of the Constitution of this Commonwealth." 
 
 " Constitution of 1821, art. viii, sec. i. This provision was as follows: 
 " Any amendment or amendments to this Constitution may be proposed 
 in the Senate or Assembly, and if the same shall be agreed to by a 
 majority of the members elected to each of the two houses, such pro- 
 posed amendment or amendments shall be entered on their journals, 
 with the yeas and nays taken thereon, and referred to the legislature 
 then next to be chosen ; and shall be published for three months pre- 
 vious to the time of making such choice ; and if in the legislature next 
 chosen, as aforesaid, such proposed amendment or amendments shall be 
 agreed to by two-thirds of all the members elected to each house, then 
 it shall be the duty of the legislature to submit such proposed amend- 
 ment or amendments to the people, in such manner and at such time 
 as the legislature shall prescribe ; and if the people shall approve and 
 ratify such amendment or amendments by a majority of the electors 
 qualified to vote for members of the leg'slature, voting thereon, such 
 amendment or amendments shall become part of the Constitution." 
 
AMENDMENT BY THE LEGISLATIVE METHOD i49 
 
 legislature the first time, and before it was submitted to that 
 body for final confirmation.^^ 
 
 Maine, forging ahead of the parent State, Massachusetts, 
 from which she had just voted to separate, in order to or- 
 ganize an independent government adopted in her Consti- 
 tution, framed in 1819, a scheme of amendment by legisla- 
 tive means, which in breaking the way to a future type, is 
 entitled to rank with the rather famous Connecticut plan. 
 Maine, before Massachusetts and New York had yet gath- 
 ered their delegates together to discuss the question, had 
 swung over to one legislature instead of two, simplifying the 
 ■whole process. A two-thirds vote of both houses of the 
 legislature was required to pass the proposal but everything 
 else was left to the people, a simple majority of the qualified 
 voters who chose to express an opinion on the subject being 
 competent to declare the popular will. This section of the 
 Constitution of Maine, still in force in that State, is as 
 follows : 
 
 " The legislature whenever two-thirds of both houses shall 
 deem it necessary, may propose amendments to this Constitu- 
 tion, and when any amendment shall be so agreed upon, a 
 resolution shall be passed and sent to the selectmen of the 
 several towns, and the assessors of the several plantations, 
 empowering and directing them to notify the inhabitants 
 of their respective towns and plantations, in the manner 
 prescribed by law, at their next annual meetings in the month 
 of September, to give in their votes on the question, whether 
 such amendment shall be made ; and if it shall appear that a 
 majority of the inhabitants voting on the question are in 
 favor of such amendment, it shall become a part of this Con- 
 stitution." ^* 
 
 It was the example of such States as Massachusetts and 
 New York that turned the balance in favor of the legislative 
 mode of amendment in general, and of the system embodying 
 
 "Constitution of 1819, final paragraph preceding the "Schedule''. 
 " Art. X, sec. 2, of the Amended Constitution, and article x, sec. 4, of 
 the original Constitution. 
 
ISO THE REFERENDUM IN AMERICA 
 
 the referendum in particular. After these great States had 
 spoken, the development was rapid and natural until we have 
 come to the point to-day, when there is not a State Consti- 
 tution among all our forty-five, except New Hampshire's, 
 which does not contain some kind of a provision respecting 
 its own amendment through legislative initiative, and with 
 but one exception, Delaware, there is a later reference of the 
 subject to the people.^^ Delaware by her Constitution of 
 1831, long enjoyed the reputation of being the only State in 
 the Union which amended her fundamental law without di- 
 rectly consulting the people on the different points involved, 
 and she has chosen to hold to this feature of her policy, since 
 by her new Constitution of 1897, there is still no referendum 
 on amendments, the legislature changing the instrument 
 from time to time, practically by the same process invented 
 by the Maryland Convention of 1776.^° 
 
 In all the States amending their constitutions by legislature 
 ad referendum, that is, in forty-three Commonwealths, the 
 people are the final arbiters, except in a single instance. This 
 time it is South Carolina that occupies the isolated place, 
 clinging, even in her new Constitution of 1895, to the old 
 Southern system introduced into Alabama in 1819, of bring- 
 ing the people in, not as the last ratifier, but as a mere adviser 
 after the amendment has once passed the legislature, and 
 before it has yet gone to that body a second time. In such a 
 
 "The provision relating to this subject in Delaware is as follows: 
 "Any amendment or amendments to this Constitution may be proposed 
 in the senate or house of representatives, and if the same shall' be 
 agreed to by two-thirds of all the members elected to each house, such 
 proposed amendment or amendments shall be entered on their jour- 
 nals, with the yeas and nays taken thereon, and the secretary of state 
 shall cause such proposed amendment or amendments to be published 
 three months before the next general election in at least three news- 
 papers in each county in which such newspapers shall be published, and 
 if in the General Assembly next after the said election, such proposed 
 amendment or amendments shall upon a yea and nay vote be agreed 
 to by two-thirds of all the members elected to each house, the same 
 shall thereupon become part of this Constitution."^-Constitution of 1897, 
 art. xvi, sec. i. 
 
 ^°Cf. Constitution of Maryland, 1776, art. lix. 
 
AMENDMENT BY THE LEGISLATIVE METHOD iS^ 
 
 case, the people are clearly not the enacting power at all; 
 that power still rests with the legislature, which asks ior an 
 expression of public opinion, and then heeds the popular 
 instruction or not, as fits its own mood.^^ 
 
 In the forty-two States remaining, some interesting ten- 
 dencies are to be observed and noted. In twenty-seven 
 States it has now come about that it is sufficient if the amend- 
 ments pass a single legislature before they are voted on by the 
 people. This is following the example of Maine, in 1819^ 
 and in this class are included all the new States of the West 
 except North Dakota; i. e., Utah, Idaho, Montana, Wyo- 
 ming, Washington and South Dakota. There are, there- 
 fore, only fifteen States remaining, in which amendments 
 must by varying majorities twice pass the legislature, prior 
 to their submission to popular vote. 
 
 Of the first class of twenty-seven States, seventeen require 
 that any proposed amendment shall pass the legislature by a 
 two-thirds vote. These are Alabama, California, Colorado, 
 Georgia, Idaho, Illinois, Kansas, Louisiana, Maine, Michi- 
 gan, Mississippi, Montana, Texas, Utah, Washington, West 
 Virginia and Wyoming. Here again there is room for dif- 
 ference as to the meaning of the two-thirds vote. In most 
 of the States it is clearly stated t,hat this shall be two-thirds 
 " of all the members elected to each of the two houses ". In 
 others the phraseology is two-thirds " of all the members 
 of each of the two houses ", while in a few, as Alabama, 
 Maine and Mississippi, it is simply two-thirds " of each 
 house", which seems to mean two-thirds of those members 
 present and voting on the subject, — a very different matter. 
 Four States, Arkansas, Minnesota, Missouri and South Da- 
 kota, by their present Constitutions, find passage by a simple 
 majority instead of a two-thirds vote sufficient. Here again, 
 the rule is a majority " of the members elected to each of the 
 two houses ", though in Minnesota the Constitution calls for 
 a majority "of both houses of the legislature". In six 
 States, Florida, Kentucky, Maryland, Nebraska, North Caro- 
 " See Constitution of South Carolina of 1895, art. xvi, sec. i. 
 
IS2 THE REFERENDUM IN AMERICA 
 
 Una and Ohio, a three-fifths vote of the legislature is neces- 
 sary to refer amendments to popular vote. Once more there 
 is ambiguity in North Carolina, where the Constitution 
 speaks loosely of three-fifths " of each house of the General 
 Assembly ". 
 
 Of the second general class, comprising fifteen States, in 
 which proposed amendments must pass two legislatures be- 
 fore going to the people, the greater number of those still 
 adhering to this system, or eleven, — Indiana, Iowa, Nevada, 
 New, Jersey, New York, North Dakota, Oregon, Pennsyl- 
 vania, Rhode Island, Virginia and Wisconsin, find that a 
 majority vote at each passage satisfies every requirement. 
 The very fact of a repetition of the vote being required, is 
 regarded as a sufficient check upon a possible disposition on 
 the legislature's part to " tinker " with the Constitution. In 
 all these States, the Constitutions uniformly provide that the 
 passage shall be by a majority of all the members elected to 
 the two houses. 
 
 The remaining four States in this general class do not ad- 
 mit of any grouping. Connecticut retains the same process 
 she led ofif with in 1818; namely, a vote of "a majority of 
 the house of representatives " of one legislature, and the ap- 
 proval of "two-thirds of each house" in the next' General 
 Assembly.^* Massachusetts, clinging to the method which 
 she introduced in 1821, requires that propositions for amend- 
 ment must have received a vote " of a majority of the sen- 
 ators, and two-thirds of the members of the house of repre- 
 sentatives present and voting thereon " in two successive 
 legislatures.^" Vermont, in 1870, by an amendment to her 
 old Constitution, by which the system of septennial meetings 
 of the so-called Council of Censors was abolished, brought 
 into our practice another anachronism. There amendments 
 prior to their reference to the people must be approved in the 
 senate " by a vote of two-thirds of its members " and be 
 " concurred in by a majority of the members of the house of 
 
 "Article xi. 
 
 "Article ix of the Amendments. 
 
AMENDMENT BY THE LEGISLATIVE METHOD 153 
 
 representatives " of one legislature, being then confirmed by 
 " a majority of the representatives of the next folloviring Gen- 
 eral Assembly ". Moreover, as if to adhere to a tradition 
 in the matter of a periodic system, the legislature in Vermont 
 may only propose amendments at specified intervals of ten 
 years, in 1880, 1890, 1900, etc.''" Finally Tennessee, reaffirm- 
 ing in her present Constitution, which dates from 1870, an 
 old rule, introduced in the practice of that State in 1834, 
 provides for a vote of " a majority of all the members elected 
 to each of the two houses " of one legislature, and a concur- 
 ring vote of two-thirds " of all the members elected to each 
 house " of the next General Assembly."^ 
 
 As for the referendum itself in the forty-two, or forty-three 
 States, if we include South Carolina, in the greater number 
 of cases a simple majority of the qualified electors voting on 
 the amendment suffices for ratification, but there are varia- 
 tions in the language of the Constitutions, which have led to 
 great confusion. Judicial opinions have been called out on 
 the subject, but these themselves are conflicting, and the 
 procedure is so diverse that it is scarcely possible to make 
 a classification. Mr. Bryce gave up the task in despair, and 
 other students of the subject will be disposed, too, to think 
 it a labor quite out of proportion to the return. A " ma- 
 jority " in a certain context, may mean a majority of all 
 those who are qualified to vote, including the " stay-at- 
 homes ". Again it may mean a majority of all those voting 
 for certain classes of officers or representatives or magis- 
 trates, such as members of the State legislature, and again a 
 majority of those voting on the specific proposition or 
 amendment. There is often a wide difference in these totals, 
 since in the American experience it has been found that 
 greater popular interest is felt and expressed in the success or 
 defeat of individual candidates, than of laws and measures. 
 
 There is one notable exception in the case of Rhode Island, 
 where a " majority " in none of its forms prevails since 
 
 "Article xxv of the Amendments. 
 "Article xi, sec. 3. 
 
154 THE REFERENDUM IN AMERICA 
 
 propositions for the amendment of the Constitution must 
 receive the approving vote " oi\ three-fifths of the electors 
 of the State present and voting thereon ".^^ 
 
 Having finished this rather tedious recital as to the actual 
 provisions on the point, some important tendencies may be 
 noted. In the first place, we have been making it easier all 
 the while, to change our State constitutions. To begin with 
 we took ,the function of constitutional law-making out of the 
 hands of the legislatures, and gave it over to conventions 
 specifically assigned to the task. We gradually perceived 
 that as the States grew and conditions changed, it was es- 
 sential to introduce some simpler process of amendment than 
 by calling together a new convention every time any change 
 in the constitution, however slight, might be adjudged to be 
 needful. Still entertaining that distrust of the legislature as 
 a constitutional law-giver, which had been characteristic of 
 Americans from the time they severed their political rela- 
 tions with England, we in 1818 in Connecticut brought in 
 the people themselves as a brake upon the legislature in the 
 exercise of the amending power, and from that time onward 
 the legislative mode of amendment with respect to specific 
 and particular amendments rapidly spread throughout the 
 United States. Still earlier we had taken the people into 
 our confidence as direct participants in the enactment of 
 constitutional law, inasmuch as conventions in some States 
 were called only after a favorable vote in a plebiscite ; whole 
 constitutions in some States were submitted to the citizens 
 at large, and specific amendments passed • by conventions 
 were referred to the people, as they were now also to be re- 
 ferred to the people when proposed by the legislatures. At 
 first there were other checks upon the legislature in the ex- 
 ercise of the constituent power, which are gradually tending 
 to vanish away. It was usual at an earlier time for the con- 
 stitution to require that a proposition for amendment should 
 twice pass the legislature before being sent to the referen- 
 dum. Although Maine started out on another track in 
 
 '- Article xiii. 
 
AMENDMENT BY THE LEGISLATIVE METHOD 15S 
 
 1819, she stood alone in her provision that passage a single 
 time would suffice, until joined by Michigan in 1850, and 
 Ohio in 1851. To-day there are twenty-seven States which 
 employ this simpler process, several, indeed, satisfying them- 
 selves if the proposal for amendment shall be passed by a 
 simple majority of the members elected to the legis- 
 lature, rather than by a two-thirds or a three-fifths majority 
 vote. Furthermore, while it was not unusual some years ago 
 for the constitutions to specify that an amendment should be 
 approved by a larger number of electors than a majority of 
 those voting on the subject, which would again have the 
 effect of making constitutional change more difficult, there 
 has been a tendency in later years toward a liberalization of 
 our standards in reference to this point also. There is a ten- 
 dency at work to establish the rule that one person over a 
 half of those voting on a proposition, may determine the 
 popular will. A majority of those who present themselves 
 to vote on a subject, define the policy of the State, and speak 
 through it not only for the minority, but for that vast num- 
 ber of men who are so negligent as to political duty, and who 
 feel so little personal interest in public questions, that they 
 remain away from the pollings altogether, and say neither 
 yea nor nay. Democracy, doubtless, is powerless to suggest 
 any other reasonable plan. 
 
 It must be noted, too, that our conceptions of constitu- 
 tional law have all the while been enlarging. Distrust for 
 representatives, particularly those chosen to our legislatures, 
 has increased. The conventions have absorbed important 
 powers in the matter of constitution making, inasmuch as 
 subjects are handled thus now, which earlier would not have 
 had a place in the constitutions at all. Statute law disguised 
 as constitutional law, is put in these comprehensive State 
 codes, to be kept safe away from the discredited legislature. 
 Nevertheless we have been manifesting no distrust of our 
 legislatures, acting in their capacity as makers of the fun- 
 damental law, but have been strengthening their hand in 
 this particular. Faith has been put in the referendum as a 
 
IS6 THE REFERENDUM IN AMERICA 
 
 power to deliver us from evils arising from the legislature 
 through this source. To-day it is more essential than it ever 
 was before that the constitution should be easily and quickly 
 changed, since a constitution which is full of details con- 
 cerning nearly every small topic of legislation, must not be 
 bound about by hard and fast barriers, upon which impress 
 can be made only with great difficulty. It is almost impos- 
 sible, except when public opinion is wrought up in some ex- 
 traordinary manner to change the Constitution of the Fed- 
 eral Union. Most of us will agree that it is a very fortunate 
 safeguard, a proud feature of our political system which we 
 should hold fast to. Yet in our States political conditions 
 have got to be so abnormal that we are probably compelled 
 to approve of a different tendency. Certainly if we look with 
 favor upon the movement to restrict the power of the legis- 
 latures, and enlarge the authority of the constitutional con- 
 ventions, in order to stop the diabolism that has lately come 
 to flourish at the State capitals, we must have an easy means 
 of changing our codes of law again, if they need change, 
 which they must from time to time, as human conditions un- 
 dergo amendment. We have at hand no better agent than the 
 legislature; there ought to be none higher or better among 
 those peoples who are bred in the traditions of the British 
 Constitution, but we seem powerless to improve the char- 
 acter of our representatives, and therefore we authorize 
 them to propose changes in the fundamental law, upon the 
 one condition that they will submit them to the people. 
 
 That the people are the legislators here to a degree that 
 they are not when they vote upon constitutions submitted 
 in solido by conventions, there is abundant evidence to show. 
 It is of diminishing importance to us whether the amend- 
 ment is passed by the legislature one time or twice, or 
 whether two-thirds of the members or only a majority of the 
 same approve the measure. We look to the people to guard 
 the constitution against unnecessary and improper change, 
 and if they permit such a change, even though their course 
 be against the better judgment of certain elements in the 
 
AMENDMENT BY THE LEGISLATIVE METHOD iS7 
 
 electorate, we are disposed to accept the result philosoph- 
 ically, with no thought of committing this important duty 
 to any other of the State's agents. The people in the case 
 of constitutional amendments, are in very truth their own 
 law makers, and they have made a record as legislators 
 which we must not judge with too much severity, when it 
 is remembered how necessary it is to have some method of 
 changing the State constitutions, other than by convention, 
 and what singular untrustworthiness has lately been devel- 
 oped in our representative legislatures. 
 
 Nearly all the constitutions recognize the importance of 
 the popular vote, when they require that if more amendments 
 than one are submitted at the same election, they shall be 
 numbered or otherwise designated, so that they may be 
 readily distinguished by the voters, and may be accepted 
 or rejected separately. Yet, in some States, there is the lin- 
 gering suggestion of a tendency to hold the legislature 
 within bounds, in the reference of amendments to popular 
 vote. For instance, in Vermont there are only some certain 
 sessions of the legislature, — once every ten years, in 1880, 
 1890, etc., — when amendments to the Constitution may be 
 proposed to the people,^^ and in Tennessee such proposals 
 may be made by the legislature not oftener than once in six 
 years,^* In some States again, the legislature is restricted 
 in the number of amendments which it may submit at any 
 one time; in Arkansas three, in Kansas three, in Mon- 
 tana three and in Kentucky two. In other States a different 
 method is adopted, as for instance,' in Colorado and Illinois, 
 where amendments to more than one article may not be pro- 
 posed at the same legislative session," and Indiana, where 
 the Assembly, having proposed one or more amendments, 
 must wait until these are definitely disposed of by the people 
 
 " Article xxv, sec. i, of the Amendments to the Constitution. 
 
 "Article xi, sec. 3. of the Constitution. 
 
 " The Illinois legislature, lately made an effort to extend its powers 
 in this respect by a constitutional amendment, but the latter was re- 
 jected by the people to whom it was submitted in 1896. 
 
iS8 THE REFERENDUM IN AMERICA 
 
 before it can propose any more. In a few States, too, there 
 are provisions which forbid the legislature from submitting 
 the same amendment or amendments again when they have 
 been once rejected by the people, except after the lapse of a 
 speciiied period, as for instance, five years. These pro- 
 visions occur, however, in but a small minority of the 
 States. In the larger number the legislature is given a free 
 hand to do what it will in this field at the time that it will.^° 
 It has now come about, therefore, that a very large 
 amount of law reaches us in this manner. The constitutions 
 being themselves stuffed out with extraneous matter which 
 strictly viewed is not constitutional law at all, the amend- 
 ments, as might be expected, partake of the same character. 
 As we have noted already, one reason why this power must 
 be at the legislature's hand, is because of the radical change 
 which has come over our notions of constitutional law, for 
 since the constitutions are filled with details, meant to serve 
 temporary ends, they must be susceptible to some remodeling, 
 when the conditions which called them forth have passed 
 away again, and they stand out as obstacles in the pathway of 
 a natural political development. This is one explanation of 
 the tendency to much and frequent amendment of constitu- 
 tions through the legislative mode. Another is the timidity 
 and weakness of the State legislatures, which often knowing 
 not what to do when public opinion, or that which they 
 take to be such, demands the passage of this or the other law, 
 evade the whole issue by incorporating the subject in an 
 amendment to the constitution, and submitting it to popular 
 vote. There are objections which tower up and look rather 
 
 " When an amendment is submitted to popular vote, the ballots are 
 usually, " For the Constitutional Amendment " or " Against the Con- 
 stitutional Amendment "- The proposition is as a rule summarized and 
 briefly described by title, and when there are several amendments to 
 be voted on at the same time, they are often separately numbered, as a 
 farther means to distinction. In this case, by the Australian ballot 
 system, the vote is by yes or no, the elector's preference being indicated 
 by a cross mark in a space reserved for that purpose. In other cases 
 the full text of the proposed amendments is printed on the ballots. 
 Various methods are in use in the different States. 
 
AMENDMENT BY THE LEGISLATIVE METHOD i59 
 
 insurmountable, in thus submitting an ordinary statute law, 
 as I shall show in a subsequent chapter of this work, but the 
 whole matter is taken out of the reach of the courts, when 
 it is embodied in a constitutional amendment. " If the peo- 
 ple who are the source of power under our system of govern- 
 ment ", the members of the legislature argue, " are in favor 
 of this measure for which there seems to be a popular de- 
 mand, then let them vote for it at the polls. They can de- 
 cide for themselves whether they want it or not. If they 
 try to hold us responsible at the next election, we will tell 
 them that we did all that ought to be asked of us. We passed 
 a law submitting the question to them, to do with it as they 
 liked." Thus laws to prohibit the manufacture and sale of 
 intoxicating liquors have been submitted in the States again 
 and again, by legislatures whose members have had no feel- 
 ing of responsibility regarding their action. In a period of 
 ten years, or from 1880 to 1890, some twenty States appear 
 to have had referenda on this subject. This was an era in 
 which the " temperance sentiment " was thought to be as- 
 smning formidable political proportions, and the leaders of 
 the parties and the various local " bosses " saw in the ref- 
 erendum an easy and respectable method of holding the sup- 
 port of elements which were threatening to " break away " 
 from the party. The movement reached its height in 1889, 
 when the people of no less than eight States voted on the 
 question, nearly all adversely.'" 
 
 Of this general character, too, are the propositions for 
 granting suffrage to women, for although qualifications for 
 those who are to exercise the franchise, are now quite com- 
 monly a subject of constitutional treatment, and perhaps 
 very rightly so, there is here again no intent behind the sub- 
 mission on the part of the submitting power, except to shift 
 the responsibility from its own shoulders. In recent years 
 such amendments have been repeatedly referred to the peo- 
 ple, and full suffrage has thus been conferred upon women 
 
 "Cf. Oberholtzer, The Referendum in America, Philada., 1893, PP. 
 46-47. 
 
i6o THE REFERENDUM IN AMERICA 
 
 in two States — Colorado in 1893 and Idaho in 1896/' while 
 school or municipal suffrage has been acquired by women in 
 this way in several Commonwealths. The people of South 
 Dakota in 1897, New Jersey in 1897, Kansas in 1894, Cal- 
 ifornia in 1896, Washington in 1898, and several other 
 States, have voted upon this question. In submitting such a 
 proposition, the legislature considers that it neither gives its 
 favor nor withholds it. It assigns to itself indeed a place 
 inferior to that of a legislative committee, which when it 
 reports a subject, is usually able to add its endorsement to 
 it, and render some explanation of its action. This there 
 is no pretense of doing in the case of these prohibitory and 
 woman suffrage amendments. The subjects are not de- 
 bated, and the votes of the members are recorded perfunc- 
 torily without any one asking himself whether he desires 
 that this bill shall become a law or not, or whether in his 
 judgment it is advisable or expedient that it should become 
 a law. 
 
 Of a similar character is the famous lottery amendment in 
 Louisiana. This bill was passed by the legislature, and the 
 question was submitted to the people of granting a charter 
 to the so-called " Louisiana Lottery ", which was to pay 
 into the public treasury millions of dollars, in aid of the 
 levees, schools, charities and the pension, drainage, and 
 other specific and general funds of the State. The legis- 
 lature feared to renew the public authorization of this im- 
 mense enterprise, which, in fact, the Constitution prohibited 
 beyond the year 1895, and the friends of this great instru- 
 ment of debauchery aimed to secure for it another term of 
 life, by this specious amendment which was in the nature 
 of a bribe to the taxpayers. The people in 1892, when the 
 matter was referred to them, promptly and to their great 
 credit, rejected the insidious proposal."® 
 
 Nevada, in 1889, held a referendum on a constitutional 
 
 " Wyoming and Utah have had woman suffrage ever since they 
 entered the Union, the former in 1889 and the latter in 1895. 
 " Cf. McPherson's Handbook of Politics for 1890, pp. 266-67. 
 
AMENDMENT BY THE LEGISLATIVE METHOD i6i 
 
 amendment, meant to put it in the power of the State legis- 
 lature to establish and incorporate a lottery, the proposal 
 having been defeated by the people, while New Jersey in 
 1897, when it was a question of prohibiting the legislature 
 from authorizing lottery enterprises, " poolselling ", book- 
 making or gambling of any kind within the State, also voted 
 on the side of virtue and good order, though the fate of the 
 amendment for a time seemed in doubt, and the majority 
 against the iniquity was so small as to argue little in favor 
 of the people's ability rightly to decide a plain moral ques- 
 tion which is thus submitted to them en masse. The result 
 of the ballot was 70,443 for, and 69,642 against the amend- 
 ment, the day having been saved, as it were, by accident. 
 
 Somewhat similar in character are amendments in certain 
 Southern States to grant pensions to veterans of the Con- 
 federate Army, the legislatures desiring by the submission 
 to free themselves from unpleasant consequences. Such an 
 amendment was submitted to the people of Georgia in 1894, 
 Louisiana in 1896, and Texas in 1898. 
 
 Not only in the matter of prohibiting the manufacture and 
 sale of alcoholic beverages, but also in granting licenses for 
 trafficking in liquors, as in Nebraska in 1890, and for in- 
 troducing a socialistic system of State agencies or liquor 
 dispensaries, as in South Dakota in 1898, the legislature 
 escapes its just responsibility by calling for a popular vote. 
 Such an appeal to the acclaim of the crowd as an amend- 
 ment proposing to prohibit trusts, monopolies and com- 
 binations in trade was made in South Dakota in 1896, and, 
 as if there could be two sides to such a question as the leas- 
 ing out of State convicts to private companies, the people 
 of Louisiana were asked to express their views upon a con- 
 stitutional amendment in reference to this point. In Minne- 
 sota in 1896, there was a referendum on an amendment pro- 
 posing a tax on sleeping car and parlor car companies, and 
 in Missouri in the same year, the people were called upon to 
 decide whether the minimum age of attendance among chil-. 
 dren at the public schools could be properly reduced from 
 
1 62 THE REFERENDUM IN AMERICA 
 
 six to five years. The Minnesota legislature in 1888 sub- 
 mitted an amendment to prohibit under penalty, any move- 
 ment " to monopolize the markets for food products, or to 
 interfere with or restrict the freedom of such markets ". 
 
 An unusual instance of irresponsibility on the part of 
 legislatures in submitting questions to popular vote, is met 
 with in California in 1893, when it is related that late one 
 night a member in a moment of pique at something which 
 had been said in a Sacramento newspaper regarding the 
 body to which he belonged, got through an amendment to 
 move the State capital to San Jose, a rival city two hundred 
 miles distant. The legislature took this means, it is said, of 
 avenging itself on some ill-humored critics who were re- 
 joicing in print that it was nearly time for the body to ad- 
 journ, and for the members to return to their homes.^" 
 
 A proposal to change a well-founded rule of our consti- 
 tutional system, wrung at great cost from their kings and 
 governors by our Anglo-Saxon ancestors, and now holding 
 a place in nearly all-.our Bills of Rights, is also occasionally 
 made a subject for popular vote. This is, namely, a proposi- 
 tion to permit less than the whole number of jurors, as for 
 instance five-sixths, to render a verdict. Such an amend- 
 ment, full of historical interest for the student of legal in- 
 stitutions, was referred to the people of Nebraska in 1896, 
 and although defeated there, has actually secured a foothold 
 in some of the Western Commonwealths. Minnesota 
 adopted such an amendment in 1890. In 1897 the people 
 of Maryland voted on and rejected an amendment, plainly 
 in the interest of good government, to make " appointments 
 in the civil service of the State in the municipalities and 
 counties of the State, according to merit and fitness to be 
 ascertained as far as practicable by examination ". Under 
 no possible circumstance should the legislature have been in 
 doubt regarding this subject, and there was nothing to pre- 
 
 "" For this amendment see Statutes of California for 1893, p. 657. It 
 was declared to be void by the Supreme Court of the State, Livermore 
 V. Waite, 102 Cal., p. 113 
 
AMENDMENT BY THE LEGISLATIVE METHOD 163 
 
 vent its definitive action by the passage of a statute, which 
 would have taken immeaiate effect without a referendum. 
 Concerning the actual quantity of this kind of legislation 
 referred to the people each year, some authoritative statis- 
 tics will be of interest, and these are fortunately at hand 
 in the annual compilations of the New York State Library. 
 In the volume for 1895, record is found of thirty-seven 
 amendments which were submitted to the people in fifteen 
 different States. Nearly all of these were voted on at elec- 
 tions held in the year 1894, and fifteen out of the thirty- 
 £even were rejected by the people, while twenty-two were 
 approved. Classifying these amendments in a general way 
 by subjects, it appears that thirteen related to taxation and 
 debt, either in the States or in local communities, eight to 
 local and municipal government, five to suffrage qualifica- 
 tions, four to the Governor and other State officers excluding 
 the members of the legislature, six to the legislature, three 
 to schools and education, three to the judiciary, two to 
 woman suffrage, while one proposed th^- removal of a State 
 capital, one the exclusion of aliens from holding real estate, 
 one a granting of aid to soldiers' homes and one the pay- 
 ment of pensions to Confederate veterans.'^ In 1896 the 
 same authority gives us a list of sixty-two amendments 
 that were submitted to the people in that year, of which 
 twenty-four were approved and thirty-eight rejected. Of 
 these again, fourteen related to suffrage and elections, twelve 
 to the judiciary and the courts, eleven to tax and debt sub- 
 jects, eight to local and municipal government, eight to edu- 
 cation, four to legislative procedure, four to the Governor and 
 the executive department of the government, two to cor- 
 porations, one to prohibition, one to Confederate pensions, 
 two to penal and correctional subjects, one to the removal 
 of a State capital, one to the lease of State forest reserve 
 lands and one proposing compensation for damage to pri- 
 vate property.*'' In 1897, however, according to this record, 
 
 " New York State Library's Legislative Bulletin for 1895. 
 "Ibid., for 1896. 
 
1 64 -^ THE REFERENDUM IN AMERICA 
 
 only eleven amendments were submitted to the people, four 
 of which were approved and seven rejected/^ while in 1898 
 there was again a large number of such propositions referred 
 to popular vote, including seven in California, four in Minne- 
 sota, and three in South Dakota. For an earlier period, Mc- 
 Pherson's biennial report in 1888 gives us forty amend- 
 ments for the two preceding years, covered by the compila- 
 tion, of which twenty-seven were rejected and thirteen were 
 approved.^* In 1890 there are again forty amendments re- 
 ported, of which eighteen were adopted and twenty-two re- 
 jected,^^ while in 1892, when this record unfortunately 
 closes, there are thirty-six amendments in the compiler's list, 
 of which twenty-three were adopted and thirteen rejected.'" 
 One fact claims our attention on the threshold of a further 
 treatment of this subject, and that is with respect to the time 
 of submission. The different States are tending toward uni- 
 formity on this point, selecting the even-numbered years, or 
 the years when the " general elections " occur, i. e., the elec- 
 tions for Governors,, general State officers and Congressmen. 
 In all but three of the States, Congressmen are now chosen 
 on the same day, namely, the first Tuesday after the first 
 Monday in the November of every second year. There are 
 local elections at other times, and it is still not unusual for 
 amendments to be submitted to the people at special elec- 
 tions, at which no other issues are at hand to divert the in- 
 terest or attention of the electors. Thus the three amend- 
 ments referred to popular vote in September, 1897, in New 
 Jersey, were submitted at a special election, as were two 
 amendments in Pennsylvania in June, 1889, including one to 
 prohibit the liquor traffic, three in Texas in August, 1897, 
 fourteen in Nevada in February, 1889, to name but a few of 
 many instances that might be given. The constitutions often 
 contain a definite command that amendments shall only be 
 submitted at general elections, and when this is not the case, 
 the legislature acting on its own authority, usually selects 
 
 "'Bulletin for 1897. " McPherson's Handbook of Politics for 1888. 
 "Ibid., for 1890. "Ibid., for 1892. 
 
AMENDMENT BY THE LEGISLATIVE METHOD 165 
 
 this time as most suitable for taking the popular vote. On 
 the other hand, there are constitutions which positively re- 
 quire that all amendments shall be submitted at special elec- 
 tions, as in New Jersey, by the Constitution of 1844. In that 
 State when an amendment is proposed, it must be approved 
 by the people " at a special election to be held for that pur- 
 pose only ".^' 
 
 There is a general realization of the fact that it is much 
 more expensive to the State specially to open and equip the 
 polls for an amendment election. Separate ballots must be 
 printed, and the entire machinery necessary for the conduct 
 of elections must be set up just as if a Governor, Congress- 
 men, members of legislature, and an entire list of oii&cers 
 were to be chosen. It is now considered better to vote upon 
 all these subjects on the same day, to print the amendments 
 on one end of the large ballot sheets, since the Australian sys- 
 tem has come into use, and to ask for the voter's yea and nay, 
 on propositions at the same time he is choosing from among 
 persons. Again, it has been shown clearly and conclusively 
 by experience, that while it is difficult enough to induce 
 voters to express themselves with respect to laws and prop- 
 ositions at general elections, it is yet harder to get them to 
 take any interest in such a subject at special elections. There 
 is no topic in our practice, so far as it has gone, which calls 
 forth more popular interest, perhaps, than the prohibition of 
 the manufacture and sale of liquor. A large industry is here 
 attacked on the one side, and a personal right to gratify 
 strong tastes and desires is put in jeopardy, while on the 
 other side is the ever active group of teetotalers and prohi- 
 bitionists. These -factors inherent to a democracy are to be 
 reckoned with in any case, quite independent of whatever 
 sentiment there may be which is opposed to, or in favor of a 
 political philosophy justifying drastic State regulation of 
 such a subject, and which would be expected to have some 
 force with those who are entrusted with the duty of making 
 the State's laws. 
 
 "Art. ix. 
 
1 66 -THE REFERENDUM IN AMERICA 
 
 In 1889 when two amendments were submitted to the 
 people of Pennsylvania at a special election, one on prohibi- 
 tion, the other on a suffrage question, the total vote cast 
 was 781,261 and 603,694, respectively. Therefore, when 
 there was nothing else to be voted on but these two propo- 
 sitions, upwards of 175,000 persons were interested in the 
 one question who would not put themselves to the trouble 
 to vote upon the other. The total vote of the State at the 
 Presidential election of 1888, was about 1,000,000, and for 
 Governor in 1890, over 900,000. In Connecticut in 1889, the 
 total vote on a prohibition amendment which was submitted 
 singly and separately unaccompanied by any other proposi- 
 tion, was 72,353, as compared with a vote in the State for 
 President in 1888 of 153,978. In New Hampshire in 1889, 
 and Texas in 1887, when prohibition amendments were sub- 
 mitted, together with several other propositions, those upon 
 the prohibition subject received the votes of many thousands 
 of persons who seemed to have no interest in the other mat- 
 ters referred to them. In the latter State, for instance, the 
 prohibition amendment polled 349,897, nearly the full vote, 
 while no one of the other five amendments submitted at the 
 same election secured more than 235,000 votes. ^' In New 
 Jersey in 1890, when two amendments were submitted to the 
 people at a special election, the vote was 62,378 and 62,367 
 respectively, against 303,741 votes for President in 1888, 
 and in the referendum on the three amendments in 1897, 
 the vote was 140,018, 140,085 and 140,191 respectively, as 
 compared with a total vote of 371,014 for President in 1896. 
 
 On the other hand, it is argued by some who seem how- 
 ever to have the weight of our tendencies. against them, that 
 at special elections there is a much better opportunity to se- 
 cure an unbiased expression of public opinion, since parties 
 then are not at a white heat, and men are not absorbed in 
 questions having to do with the success of particular candi- 
 dates. Indeed the prohibitionists were earlier clear in their 
 
 " These figures are from McPherson's Handbook, and the World Al- 
 manacs. 
 
AMENDMENT BY THE LEGISLATIVE METHOD 167 
 
 demands that their amendments should be submitted at 
 special elections, though, other things being equal, as a 
 means of securing the largest possible number of votes upon 
 a proposition, there is little in our recent experience to rec- 
 ommend such a policy. 
 
 At some recent general elections, when amendments have 
 been submitted to the people, instructive comparisons may 
 be made to show how many voters there are who, through 
 ignorance, or indisposition to perform their duties as citi- 
 zens of a democracy, will omit expressing themselves on 
 either side in a referendum. Of six amendments adopted 
 in Minnesota in 1896 ^» when the total vote varied from 
 158,027, on an amendment which related to taking private 
 property for public use, to 206,616 on an amendment to tax 
 sleeping car, telegraph, express and other companies, there 
 was a vote for President at the same election of 341,644. 
 An amendment in Minnesota, in 1894, levying a tax on in- 
 heritances, secured a total vote of 149,574, when the whole 
 vote for Governor at the same election in the same State, 
 was 296,337. Two amendments which were submitted to 
 popular vote in Kaiisas in 1890, polled 192,504 and 188,237 
 votes respectively, as against 294,584 for Governor at the 
 same election. Even in Massachusetts, our leading State of 
 New England, where it is often thought that men look upon 
 citizenship more seriously, two amendments in 1890 received 
 only 141,863 and 127,130 votes respectively, while 285,515 
 votes were cast for Governor, and in 1891 when two amend- 
 ments were again referred to the people, 182,278 and 198,485 
 votes were recorded on the propositions as compared with a 
 total vote of 320,237 for Governor. In Colorado, in 1892, 
 two amendments in reference to taxation were submitted to 
 popular vote. They drew forth 26,054 and 24,173 votes re- 
 spectively, with a total vote of 93,843 in the State for Presi- 
 dent at the same election. Three amendments in 1894 in 
 Colorado received about 75,000 votes each, out of a total of 
 176,966 cast for State officers. At the general election in 
 " General Laws of Minnesota of 1897, pp. iii to ix. 
 
l68 THE REFERENDUM IN AMERICA 
 
 California in 1898, seven amendments polled the following 
 numbers of votes: 144,615, 149,849, 144,927, 137,971, 146- 
 008, 142,438, and 144,464, respectively. A proposition to 
 call a constitutional convention polled only 107,563 votes. 
 The vote for Governor at the same election was 287,064. 
 In South Dakota in 1898, three amendments received 40,299, 
 42,681 and 42,727 votes respectively, against 74,276 cast for 
 Governor. 
 
 Three amendment elections recently held in Texas are in- 
 structive. At a special election, August 3, 1897, three 
 amendments, one permitting the formation of irrigation dis- 
 tricts in West Texas, the second authorizing certain counties 
 to give aid in the construction of railways, the third validat- 
 ing bonds held by the State as an investment for the per- 
 manent school fund, attracted only about 75,000 electors to 
 the polls. Another special election on an amendment was 
 held on November i, 1898. The legislature had intended 
 to make this submission at the regular general election, but 
 by an oversight, the resolution declared that the election 
 should be held on the first Tuesday in November, instead of 
 the first Tuesday after the first Monday in the month. This 
 was an amendment to authorize the payment of pensions to 
 Confederate soldiers, and the total vote cast was about iio,- 
 000. An amendment to increase the salaries of members of 
 the State legislature, submitted a week later at the general 
 election, received a total vote of 291,022.*" The vote for 
 Governor on the same day was 409,554.*^ 
 
 We are thus led to the odd conclusion that while, as is 
 generally understood, there is a considerable body of men 
 in the electorate not valuing the franchise sufficiently to ex- 
 ercise it on any occasion, even in the elections for President 
 of the United States, a contest in which the most interest is 
 always aroused, there is but a fraction equal to about a half 
 of all those who know their own minds respecting candi- 
 dates who seem to care anything about measures. When the 
 
 "There were only 35,901 votes for this amendment and 255,121 votes 
 against it. " Biennial Report of the Secretary of State of Texas, 1898. 
 
AMENDMENT BY THE LEGISLATIVE METHOD 169 
 
 elections are held on special dates, that is, separate from the 
 elections of men who are to represent the people in legis- 
 latures and in executive positions, it is impossible to get out 
 even half the vote, unless it be on a proposition to deprive a 
 citizen of his beer and gin. Even a proposal to enfranchise 
 an entire new half of the race, and to double the electorate, 
 or to ally the State openly with lottery men and gamblers, 
 will awaken from their lethargy a relatively small number 
 of those who come out from their homes and places of work 
 and business, to help a Republican or Democratic candidate 
 into the " White House ". 
 
 In general elections when the electors are at the polls any- 
 how, and are voting for President, or Governor, or Con- 
 gressmen, they might, it would seem, without too much 
 trouble to themselves, vote at the same time for or against a 
 proposition that may perhaps be referred to them. Here, 
 too, there is so much unconcern as to the result, that even 
 when the amendment, or other project, is printed on the 
 same ballot with the names of the officers to be voted for, 
 only about five persons out of every ten will indicate what 
 their wishes are on the point. When several proposals are 
 submitted, if there is any way left open to the voter by which 
 he in his illiteracy and carelessness can shirk his duty, he 
 will do so, and many thousands of men who say yea or nay 
 to one or two of the amendments, will often ignore the others 
 altogether. 
 
 It is a strange result which has often been remarked upon, 
 not only with us, but in Switzerland also, that when several 
 propositions are voted on at the same time, they will all be 
 treated alike, that is, approved in bulk, or rejected in the 
 same way. The experience in Minnesota in 1898, when four 
 amendments were submitted to the people, is more or less 
 that of the entire country when it appeared, to quote the 
 rather picturesque language of a Western newspaper, " that 
 most of the voters either let the whole batch slide, or voted 
 for all four ".*" We have the case, too, of Texas in August, 
 
 "All four were adopted. 
 
I 70 THE REFERENDUM IN AMERICA 
 
 1887, to which alhision was earlier made, when six separate 
 amendments were referred to the people, one among them 
 being a proposition to prohibit the manufacture, sale or 
 trade in intoxicating liquors. All together were carried 
 down with the prohibitory law, against which there was a 
 very large majority. Perhaps the other five, or four 
 of them at least, would have been quite to the people's mind 
 under other circumstances. In Pennsylvania in 1889, when 
 two amendments were submitted, one to prohibit the liquor 
 traffic and the other to make some harmless and apparently 
 beneficial change in the conditions regulating the exercise 
 of the suffrage, both were voted down by very large ma- 
 jorities. In Louisiana in 1896, when the legislature at- 
 tempted to amend the Constitution of that State, by the 
 method afterward adopted by the Convention of 1898, prac- 
 tically disfranchising the negroes, the people rejected not 
 only this one amendment affecting the suffrage, but some 
 twenty others as well, without reason or discrimination, and 
 in Nebraska in 1896, the people disposed of ten amend- 
 ments in the same thorough fashion. In this case the con- 
 crete thing at which they were trying to vent their dis- 
 gust was a proposition of the legislature, that it should it- 
 self fix the rates of salaries of the various executive officers 
 of the State, and otherwise enlarge its own powers. The 
 honorarium of these officials hitherto had been definitely lim- 
 ited by the Constitution. In 1898 in California, when seven 
 amendments and a proposition to call a convention were sub- 
 mitted to popular vote, only one amendment, and that a very 
 important measure in reference to the executive department, 
 was saved from the general debacle. The opposition in this 
 case seemed to center about a proposal which the legislature 
 had made to extend the length of its sessions, and to increase 
 the salaries of its members. 
 
 In some instances, this tendency produces quite a con- 
 trary result. Thus a measure having popularity with the 
 electors, will sometimes exert an influence to help through a 
 proposition to the passage of which the people are indiffer- 
 
AMENDMENT BY THE LEGISLATIVE METHOD 171 
 
 ent, or perhaps really hostile. In South Dakota in 1896, 
 when a proposal was made to repeal a " prohibition " clause 
 which had earlier been inserted in the Constitution of the 
 State, three other amendments were carried along, which, 
 though of rather a colorless character, might not have fared 
 so well had it been a question of enacting rather than re- 
 scinding the prohibitory liquor law. Some such influence 
 would seem to have been at work, too, in Minnesota, in 1896, 
 when it was proposed to tax the property of sleeping, draw- 
 ing room and parlor car companies, telegraph and telephone 
 companies, express companies, and insurance companies do- 
 ing business within the State. The people were so much 
 elated with the idea of getting a revenue out of these cor- 
 porations, which earlier had seemed to be escaping the tax 
 gatherer, that five other propositions were approved at the 
 same election, thougn by much smaller majorities. 
 
 Nevertheless, it would convey an erroneous impression 
 were we to leave the subject without calling attention to the 
 many cases in which the people can say yes and no at the 
 same breath and really with a knowledge, it would appear, 
 of what those words mean. In November, 1898, three 
 amendments were referred to popular vote in South Dakota, 
 all of first rate importance, one to introduce into the State's 
 political system the Swiss referendum and initiative (23,816 
 for, and 16,483 against), another to confer suffrage upon 
 women (19,689 for, and 22,983 against), a third to introduce 
 a dispensary system by which the State would take charge of 
 the liquor business (22,170 for and 20,557 against). The 
 returns show therefore that the people accepted two of the 
 amendments, but rejected that one in reference to woman 
 suffffrage.** Although only about one-half of the persons 
 voting for candidates at this election chose to vote upon the 
 amendments, of those so doing there is a fair presumption 
 that they recorded their wishes with respect to the different 
 
 ■" It is nevertheless suspected that the adoption of the dispensary 
 amendment was an accident. Cf. Session Laws of South Dakota for 
 1899. P- 73- 
 
172 THE REFERENDUM IN AMERICA 
 
 subjects submitted to them. The people of California in 
 1894 voted on ten different amendments, approving of seven 
 and disapproving of three, among the latter being a foolish 
 proposition to move the capital of the State, and 
 a proposition to increase the salaries of the mem- 
 bers of the legislature, a project, as I have already noted, for 
 which the people rarely evince any enthusiasm. In a word, 
 not a little evidence is at hand to show that there is method 
 often in what at first sight the casual onlooker might be 
 tempted to call pure madness. This, perhaps, is quite what 
 one should expect, yet the hope might be rightly enter- 
 tained that the people at all times would manifest interest, 
 judgment and discrimination, else we must conclude that 
 they are not our ideal law-givers. The spasmodic and the 
 half-hearted law-maker, who does what is to be done in a fit, 
 and then reverts to indifference regarding public affairs, can 
 not claim our unqualified admiration. It may, indeed, be nec- 
 essary as a result of certain natural tendencies in American 
 political life, which have long been at work, to accede to the 
 view that the people are a proper and competent authority, 
 finally to pass upon amendments to their constitutions. But 
 while recognizing the force of historical development, and all 
 that adheres to it, it is certainly a duty to call attention to 
 the fact that in practice, the system is liable to great objec- 
 tions. We are doubtless committed thoroughly to a third 
 body of legislators, that is, the electors themselves, who have 
 been introduced to so large an extent to supplement the 
 work of the representative assemblies, i. e., the legislatures 
 and the conventions. Nevertheless they are not what we 
 would have them be. 
 
 In these chapters we have looked a little way into the rec- 
 ord of the people as the makers of their own constitutional 
 law as it is submitted to them by the conventions and the 
 legislatures. It is now time to pass on to an examination of 
 the people's powers and qualifications as their own law- 
 makers in respect of other classes of legislation. 
 
CHAPTER VII 
 
 THE REFERENDUM ON STATUTES OF GENERAL OPERATION 
 
 WITHIN THE STATE WHEN THE VOTE OF THE PEOPLE 
 
 IS AUTHORIZED BY THE STATE CONSTITUTION 
 
 We have come now to the legislature's submission of stat- 
 utory legislation to the people and we are to inquire whether 
 it is necessary for the legislature to embody its bill in the 
 form of a constitutional amendment, if it should desire to 
 escape its full responsibility as a law-giver. The people have 
 constituted the legislature in its field, and the convention in 
 its field, to represent them and to legislate for them; is it 
 competent for either to refer the work back again to the 
 people? There is no particle of doubt that the convention 
 may call upon the electors to approve or reject its proposals, 
 and indeed the American tendencies lead us straightway to 
 the view that a neglect of this submission is a very irregular 
 course, if not one that is fraught with positive peril to the 
 State. From the convention our organic law is derived. That 
 body gives the government basic character and form, creates 
 the legislature and endows it with its authority as an organ 
 in the constitutional system. The legislature thus acts un- 
 der delegation of authority from the convention ; can it again 
 lay its mantle upon other shoulders without some specific 
 direction to do so from the constituent power in the State, 
 which sometimes, of course, is the convention itself, regularly 
 assembled by the legislature, or more often the convention 
 and the whole body of electors, or again, in the case of 
 amendments, the legislature and the electoral body, co-oper- 
 ating? If the law-making power is regularly entrusted to 
 other bodies, for instance to local communities, as is often 
 the case, to the Governor, to judicial officers, to boards and 
 
 173 
 
174 THE REFERENDUM IN AMERICA 
 
 commissions, all of which have come to exercise legislative 
 authority of more or less importance, we are accustomed to 
 regard it as a strictly legal development, if not, indeed, a 
 scientifically correct development from the point of view of 
 political philosophy. There is no room to doubt then that 
 the makers of the constitution may place the legislative au- 
 thority of the State in the hands of the people, if this is a 
 change of which they approve. If it is desirable to find a 
 new law-making agency, other than the two houses, or to 
 divide this power among several authorities, the constituent 
 assembly is undoubtedly competent to make these reforms 
 in our ^system of government. Just as it might clothe some 
 one person or committee of persons with the legislative 
 power in the State, if this government were still " republi- 
 can " within the meaning of the Federal Constitution, so it 
 may go to the whole people and give them, under such con- 
 ditions as may seem to be suitable and expedient, the 
 power themselves to enact the law either upon all subjects 
 or upon some prescribed classes of subjects. It is this de- 
 velopment which is to be traced in this place and we secure 
 at once a point d'appui for the referendum in America, out- 
 side of the field of constitutional law. 
 
 We come in the first place, therefore, to South Dakota, 
 which in 1898 introduced the referendum on statute laws 
 in a more extended form, and has determined to give the 
 principle a wider application than any other Commonwealth. 
 This change, one of the most important that has ever been 
 made in the American system of government, was accom- 
 plished by amending a section of the State Constitution, 
 which is common to the Constitutions of all the States, in 
 efifect, if in slightly altered language, and which in South 
 Dakota ran as follows : " The legislative power shall be 
 vested in a legislature which shall consist of a senate and a 
 house of representatives ".^ This clause has now been 
 amended so tliat while " the legislative power of the State " 
 is still vested in an assembly of two houses, " the people ex- 
 
 ' Constitution of South Dakota of 1889, art. iii, sec. i. 
 
ON STATUTES OF GENERAL OPERATION i75 
 
 pressly reserve to themselves the right to propose measures, 
 which measures the legislature shall enact and submit to a 
 vote of the electors of the State " (the right of initiative and 
 the referendum combined), while, too, the people reserve to 
 themselves the right " to require that any laws which the 
 legislature may have enacted shall be submitted to a vote of 
 the electors of the State before going into effect, except such 
 laws as may be necessary for the immediate preservation of 
 the public peace, health or safety, support of the State gov- 
 ernment and its existing public institutions " (the refer- 
 endum pure and simple). The people may initiate laws 
 for submission to popular vote upon the petition of five per 
 cent, of the whole number of the " qualified electors of the 
 State ". They may require a vote upon any law which has 
 earlier been passed by their representatives in the legislature, 
 with the exceptions noted, upon the request of a similar 
 number of persons. It is interesting to observe that the 
 Governor, with this development, ceases longer to exercise 
 the veto power with respect to such laws as may be initiated 
 by the people upon their own petition. While in the case 
 of a bill which has originated in the legislature, there being 
 no method of knowing whether five per cent, of the electors 
 of the State will later ask for a submission of it or not, the 
 Governor will certainly exercise his prerogative as before. 
 This is manifestly the only course to pursue. If the veto 
 disposes of the bill, the people will need to revive it through 
 their own initiation, should they wish to bring it to popular 
 vote. The amendment specifically confers upon the legisla- 
 ture, the power to make suitable regulations " for carrying 
 into effect the provisions oi this section ", and the system by 
 this means will soon be developed in greater detail, much to 
 the interest and enlightenment of students of government 
 in the United States." 
 
 ' Session Laws of South Dakota for 1897, p. 88, art. iii, sec. i, of the 
 Constitution of South Dakota, as amended by vote of the people at the 
 election in November, 1898, reads as follows : " The legislative power 
 of the State shall be vested in a legislature, which shall consist of a 
 
176 THE REFERENDUM IN AMERICA 
 
 One of the earliest instances of the submission of statutory 
 legislation to popular vote in the States, is met with in con- 
 nection with the choice of sites for capitals. In new States 
 this is a matter calling forth a great deal of interest among 
 the people, and moreover, it is one likely to stir up the feel- 
 ings of the representatives' constituents to such a depth that 
 neither convention nor legislature is very eager to decide 
 the question definitively at its own risk. Several conven- 
 tions have submitted this subject of the location of the seat 
 of State government to popular vote, and it is regarded now 
 as a proper matter for a referendum by the Constitutions 
 of many States. When Texas was annexed, in 1845, the 
 Constitution with which the State entered the Union pro- 
 vided that an election for a capital should be held in 1850 
 from among the dififerent places considered to be eligible 
 for the enjoyment of this honor and distinction. If any one 
 of the dififerent places voted for should have " a majority 
 of the whole number of votes cast ", the seat of government 
 
 senate and house of representatives, except that the people expressly 
 reserve to themselves the right to propose measures, which measures 
 the legislature shall enact, and submit to a vote of the electors of the 
 State, and also the right to require that any laws which the legislature 
 may have enacted shall be submitted to a vote of the electors of the 
 State before going into effect, except such laws as may be necessary 
 for the immediate preservation of the public peace, health or safety, 
 support of the State government and its existing public institutions ; — 
 provided that not more than five per centum of the qualified electors 
 of the State shall be required to invoke either the initiative or the ref- 
 erendum. This section shall not be construed so as to deprive the 
 legislature or any member thereof, of the right to propose any meas- 
 ure. The veto power of the executive shall not be exercised as to 
 measures referred to a vote of the people. This section shall apply to 
 municipalities. The enacting clause of all laws approved by vote of the 
 electors of the State shall be : 'Be it enacted by the people of South 
 Dakota.' The legislature shall make suitable provisions for carrying 
 into effect the provisions of this section." Ordinarily laws in South 
 Dakota have run, " Be it enacted by the Legislature of the State of 
 South Dakota ", though even with representative legislatures in some 
 States, the phrase has been " Be it enacted by the people of the State 
 
 of " or " The people of the State of enact ". Cf. Session 
 
 Laws of South Dakota for 1899, pp. 121 et seq. Laws of Oregon, 
 1899, p. 1 129. 
 
ON STATUTES OF GENERAL OPERATION i77 
 
 was to be located there. If no one place received so many 
 votes, a second election was to be held between the two high- 
 est on the list.* Accordingly the legislature, in January, 
 1850, passed an act, submitting the question to the people, 
 in the manner contemplated by the Constitution.* 
 
 Oregon by her Constitution of 1857 authorized the legis- 
 lature " at the first regular session after the adoption of the 
 Constitution ", to arrange for a referendum upon the capital 
 question." 
 
 The Constitution of Kansas of 1859, the first Constitution 
 of the State, and the one which is still in force, fixed the seat 
 of government temporarily at Topeka. The legislature at 
 its first session, however, was to submit the question of the 
 permanent location of the capital to popular vote.* 
 
 Denver was selected as the permanent seat of government 
 of Colorado, by a referendum taken in 1881. The Consti- 
 tution of that State framed in 1876 had authorized the legis- 
 lature at its first session to submit the subject to the people. 
 As in Texas, if no one place received the necessary majority 
 of the votes cast, choice between the two places which had 
 got the largest number of votes at the first election was to be 
 made at a second polling. Only one election was neces- 
 sary.' 
 
 A similar course was pursued in South Dakota in 1889, 
 when that State entered the Union, with respect to the se- 
 lection of the capital. The legislature was to refer the ques- 
 tion to the people at its first session after the admission of the 
 State. This election was held in November, 1890. The 
 question of the choice of a town to serve temporarily as the 
 State capital, had been previously voted on by the people of 
 
 ■Constitution of 184s, art. iii, sec. 35. 
 
 * Laws of the Third Legislature of the State of Texas, chapter Ixvii, 
 
 p. n- 
 
 'Art. xiv, sec. i. 
 
 ' Constitution of Kansas^ art. xv, sec. 8. 
 
 ' Constitution of 1876, art. viii, sec. -£. The vote was taken Novem- 
 ber 8, 1881, and it resulted as follows: — Denver 30,248, Pueblo 6,047, 
 Colorado Springs 4,790, Canon City 2,788, Salida 695, Scattering 929. 
 
178 THE REFERENDUM IN AMERICA 
 
 South Dakota in 1889, the proposition having then been sub- 
 mitted by the constitutional convention.* 
 
 The Constitution of Montana, of 1889, provided for a vote 
 in 1892 on the question of locating the seat of government 
 of that State/ and in Washington in 1889, the Convention 
 submitted the same question. If a majority of votes were 
 not cast for any town at the first balloting the legislature 
 was to arrange for a subsequent election on the subject.^" 
 
 Once the seat of government has been located there is risk 
 of course that it may be removed again, and the legislature 
 in several of the States is put under restraint to the extent 
 that it may not pass any law to change a capital site without 
 first submitting the statute to the people for their ratifica- 
 tion. For instance, the Pennsylvania Constitution of 18^3 
 declares that, " No law changing the location of the capital 
 of the State shall be valid until the same shall have been 
 submitted to the qualified electors of the Commonwealth at 
 a general election, and ratified and approved by them ".^^ 
 Provisions somewhat akin to this occur in the present Constir 
 tutions of the following States: California, Colorado, 
 Georgia, Idaho, Minnesota, Mississippi, Montana, Nebraska, 
 Oregon, Washington and Wyoming. California requires 
 that the law proposing the change, before it is submitted 
 to the people, shall be passed by a " two-thirds vote of each 
 house of the legislature ", while Georgia requires the same 
 vote as in the case of constitutional amendments, that is 
 " two-thirds of the members elected to each of the two 
 houses ". In the other States, regular majority passage, as 
 in the case of ordinary laws, seems to suffice. In Colorado, 
 Montana and Washington, a two-thirds rather than a simple 
 majority vote of the people is necessary to ratify the propo- 
 sition. In Oregon the legislature is prohibited from sub- 
 mitting such a proposal until twenty years after 1857, 
 
 ' Constitution of 1889, art. xx. 
 'Constitution of 1889, art. x, sec. 2. 
 "Constitution of 1889, art. xiv, sec. 1. 
 " Art. iii, sec. 28. 
 
ON STATUTES OF GENERAL OPERATION 179 
 
 in Idaho until twenty years after 1889, and in Wyoming 
 until ten years after 1889. It must be understood, of course, 
 that the legislature is still free to propose constitutional 
 amendments to the people on the same subject, and on prac- 
 tically the same terms. This point was made clear in Cali- 
 fornia in 1893, the legislature having submitted a proposition 
 to change the seat of government of the State, in the form 
 of a constitutional amendment, when it could as well have 
 embodied its proposal in a statute. A referendum would 
 have been required in either case.^^ For even when the 
 Constitutions are silent respecting the submission of statu- 
 tory legislation of this character, the door still stands open 
 for a poll of the people on this subject through a constitu- 
 tional amendment. In the case when the capital of a State 
 has been definitely fixed by the convention, and is named in 
 the constitution, it is plain that it can only be changed when 
 the constitution is changed. Many of the State Constitu- 
 tions contain provisions of this character, as for example, 
 in Missouri, where it is declared that " the General Assembly 
 shall have no power to remove the seat of government of this 
 State from the city of Jefferson ".^^ The State legislature, 
 quite undeterred, however, desiring recently to take the sense 
 of the people on the question of a removal of the capital to 
 Sedalia, made such a proposal in the form of a constitutional 
 amendment, which was voted on and rejected at a refer- 
 endum in 1896. It has become as easy in Missouri, and this 
 is true in many other States, for the legislature to pass a 
 constitutional amendment as an ordinary bill. 
 
 Of a somewhat similar character are statutes which the 
 legislature is sometimes authorized to submit to the people 
 in reference to the selection of sites for State universities, 
 eleemosynary, correctional and like institutions. This is a 
 subject of only a little less interest to the people than the 
 choice of a spot at which the State capital buildings shall be 
 erected. The rivalry of the towns in the newer States for 
 
 " Cf. Livermore v. Waite, 102 Cal., p. 113. 
 " Constitution of 1875, art. iv, sec. 56. 
 
1 80 THE REFERENDUM IN AMERICA 
 
 the honor of possessing these institutions, has often assumed 
 strange and amusing proportions. There is, of course, more 
 than a local pride involved, for State buildings are likely to 
 enhance the value of real estate in the vicinity and to open 
 the way to subsistence and profit to a considerable number 
 of people who perhaps purvey to the institutions, or other- 
 wise directly or indirectly benefit from the distribution of 
 large amounts of public money. In no recent case has the 
 contest for public buildings reached such comical dimensions 
 perhaps as in South Dakota in 1889 and 1890. 
 
 The people of Texas in 1881 at the invitation of the legis- 
 lature, voted upon the question of a choice of site for a State 
 university, a referendum which had been contemplated when 
 the constitution was framed. The Convention of 1876 de- 
 clared that " the legislature shall, as soon as practicable, es- 
 tablish, organize and provide for the maintenance, support 
 and direction of a university of the first class, to be located 
 by a vote of the people of this State, and styled ' the Uni- 
 versity of Texas ' ".^* The legislature got ready to submit 
 the question in 1881, when somewhat exceeding the strict 
 terms of its authority, three propositions were referred to 
 the people: First, should the medical department and the 
 main university be separated ; second, if so, where should the 
 main university be established, and third, where should the 
 niedical school be located. The people of the State deter- 
 mined that this " university of the first class " should be of 
 two parts, — the main institution being placed in Austin, the 
 capital of the State, the medical department at Galveston, 
 the leading port and commercial city of the State.^° Per- 
 missive authority was conferred upon the legislature also to 
 " establish and provide for the maintenance of a college or 
 branch university for the instruction of the colored youths 
 of the State, to be located by a vote of the people ".^' This 
 
 "Art. vii, sec. lo. 
 
 "General Laws of Texas for 1881, pp. 77-79; McPherson's Hand- 
 book for 1882, p. 80. 
 
 "Constitution of 1876, art. vii, sec. 14. 
 
ON STATUTES OF GENERAL OPERATION i8i 
 
 referendum seems not yet to have been taken, though certain 
 lands have been set aside by the legislature which are to ac- 
 crue to a fund for the endowment of this " branch univers- 
 ity " for the colored people. 
 
 The Wyoming Convention of 1889, at the same time that 
 it chose a site for the capital, which it was specified the legis- 
 lature should not remove until after ten years, and then only 
 upon vote of the people, adopted a like rule with respect to 
 the State university, the State insane asylum and the State 
 penitentiary. After ten years, the legislature may move 
 these institutions to new sites, in case the propositions for 
 removal shall be submitted to the people and be approved 
 by " a majority of all votes upon said question cast at such 
 election ". Furthermore, the Constitution declares that 
 " the legislature shall not locate any other public institutions 
 except under general laws, and by vote of the people "." 
 Under authority derived from this clause of the Constitution, 
 several referenda have been taken in Wyoming, as in 1892, 
 to locate a State institution to be known as the " Home for 
 Friendless Women and Children ". The legislature here 
 somewhat exceeded its delegated power in asking the people 
 first to determine the general point as to whether such a 
 home should be established or not. The Constitution con- 
 templated that the legislature would decide this larger ques- 
 tion as to the establishment of the institution on its own re- 
 sponsibility.^* In the same year the people of Wyoming 
 were asked to select a site for a State Hospital for Miners.^" 
 The legislature declared that at the election " every city, town 
 or village in the State of Wyoming at or within three miles 
 of which shall be employed not less than one thousand 
 miners, shall be eligible as a seat for such hospital ". Places 
 were to be nominated just as individual candidates for office 
 are nominated, the " certificates of nomination " being filed 
 with the Secretary of State."" The people of Wyoming 
 
 " Constitution of 1889, art. vii, sec. 23. 
 "Laws of Wyoming for 1890-91, p. 330. 
 "Ibid., p. 352- "Ibid. 
 
i82 THE REFERENDUM IN AMERICA 
 
 were also consulted in the year 1892 regarding their choice 
 of a place at which to estabHsh a State Agricultural College, 
 some site to be selected from among the various cities, towns 
 and villages of the State, which contained not less than one 
 hundred inhabitants each, and were situated " at an eleva- 
 tion above the sea level of not more than 5500 feet "."^ 
 
 As a mark of the distrust which the conventions feel for 
 the State legislatures, we find that an interesting series of 
 restraints are placed upon the latter with respect to the col- 
 lection and expenditure of public money, the care of State 
 property, and the loaning away of the State's credit. Here 
 again the people have been introduced in many States, as a 
 check upon legislative activity, and statutes upon a large 
 number of subjects of this general class, which we will at 
 once proceed to subdivide, must be ratified by popular vote 
 before they can be of any effect or validity. The Consti- 
 tutions are distinct in their specifications on this point. 
 There is in the first place that rather numerous body of 
 States which limit the legislature in its power to contract in- 
 debtedness on the State's account to a certain definite maxi- 
 mum amount. Under no circumstances, unless it be to repel 
 invasion, suppress insurrection or defend the State in time 
 of war, a contingency not very likely to occur in the present 
 state of our Federal relations, can the legislature pass this 
 limit unless it shall first refer the law creating the liability to 
 a vote of the people, and the latter shall give the proposition 
 a direct sanction. Many of the States were involved in debt 
 by the legislatures, at an earlier period, and their outstanding 
 obligations were in some cases so large that it actually led 
 to repudiation. Several Southern States, and some in the 
 " Middle West ", contracted debts and loaned out the public 
 credit beyond their ability or disposition again to make the 
 amounts good. The political financiers of new or poor and 
 sparsely settled parts of the country thus brought scandal 
 upon American statecraft, which it was generally desired 
 
 " Laws of Wyoming for 1890-91, p. 373. 
 
ON STATUTES OF GENERAL OPERATION 183 
 
 should be taken out of the field of possible repetition in the 
 future.^^ 
 
 The Convention of 1842 in Rhode Island, which seems to 
 have originated this referendum, incorporated a provision 
 in the Constitution of the State in terms as follows : " The 
 General Assembly shall have no power hereafter without the 
 express consent of the people to incur State debts to an 
 amount exceeding $50,000, except in time of war or in case 
 of insurrection or invasion".^' Michigan followed with 
 an amendment to her Constitution in 1843, which practically 
 divested the legislature of the entire function of debt-mak- 
 ing ; for " every law authorizing the borrowing of money or 
 the issuing of State stock, whereby a debt shall be created on 
 the credit of the State ", unless it should be for the purpose 
 of raising money " for defraying the actual expenses of the 
 legislature, the judicial and State officers, for suppressing 
 insurrection, repelling invasion or defending the State in 
 time of war ", was henceforth to be submitted to the people. 
 There was no limit as $50,000 or $100,000, within which the 
 Legislature might exercise a free hand. Every law of this 
 character except for the purposes named in the constitution 
 should, before it took effect, be approved " by a majority of 
 all the votes cast for and against it " at a general election.''* 
 The New Jersey Convention of 1844 named a limit like 
 Rhode Island, placing the maximum amount, beyond which 
 the legislature might not go, without a referendum, at 
 $100,000.^° Iowa and New York adopted similar provisions 
 in 1846, and to-day this referendum is established in thirteen 
 states, with varying conditions and limits, which may be 
 briefly set forth as follows: 
 
 California, referendum when the debt exceeds $300,000 
 Illinois in 1848, " " " " 50,000 
 
 '"An excellent work giving the history of this rather discreditable 
 phase of American public finance is The Repudiation of State Debts, by 
 W. A, Scott, Ph.D., New York, 1893. "Art. iv, sec 13^ 
 
 "Amendment to the Constitution of 1835, No. x. 
 
 "Constitution of 1844, art. iv, sec. 6. 
 
i84 
 
 THE REFERENDUM IN AMERICA 
 
 Illinois in 1870, refer'm when the debt exceeds $250,000 
 
 Iowa, " " " " 250,000 
 
 Kansas, " " " " 1,000,000 
 
 Kentucky, " " " " 500,000 
 
 Missouri, " " " " 250,000 
 
 Montana, " " " " 100,000 
 
 New Jersey " " " " 100,000 
 
 New York, " " " " 1,000,000 
 
 Rhode Island, " " " " 50,000 
 
 Washington, " " " " 400,000 
 
 Idaho, a referendum when the indebtedness which it is 
 proposed to create exceeds the sum of ij per cent, of the as- 
 sessed value of the taxable property in the State. 
 
 Wyoming, a referendum when the debt to be incurred in 
 any year exceeds the revenues for that year.^° 
 
 This limited power to issue bonds and put out State paper 
 is granted to the legislature, it is usually explained, in order 
 " to meet deficits or failures in the revenue ", although in 
 Kansas it seems to be for " defraying extraordinary ex- 
 penses and making public improvements ". In nearly all 
 cases it is directly asserted, or the inference is plain, that 
 the limit is meant to apply not to new loans solely, but to all 
 which have gone before and are outstanding in the State's 
 name. No debt or liability is to be incurred which shall 
 " singly or in the aggregate with any existing debt or lia- 
 bility " exceed the sum designated in the constitution unless 
 the law is first submitted to and approved by the people. 
 In Missouri, however, the limit, $250,000, appears to relate 
 to debts incurred in any one year, an important modification 
 of the rule. There is a provision common to most of the 
 constitutions that the restriction shall not apply to debts con- 
 tracted " to repel invasion, suppress insurrection or defend 
 
 " In Nebraska by the Constitution of 1866 there was a referendum 
 when the debt was in excess of $50,000. By the present Constitution 
 of the State, adopted in 187S1 there is no provision for a popular vote 
 on this subject. 
 
ON STATUTES OF GENERAL OPERATION 185 
 
 the State in time oi war". In nearly all the States it is 
 specified also that at the time the law authorizing the legis- 
 lature to incur the debt is submitted to popular vote, another 
 law shall accompany it, levying a tax sufficient regularly 
 to pay the interest on the amount, and also the principal 
 within a given number of years, as for instance, eighteen, 
 twenty, thirty or thirty-five. In the usual case the constitu- 
 tions find a majority of all the votes cast upon the proposal 
 sufficient to pass it, though Illinois prescribes a " majority 
 of the votes cast for members of the General Assembly ", 
 and Missouri requires " a two-thirds majority ". The refer- 
 endum as a rule is taken at a general election though in 
 Missouri it must be at an election " held for that purpose ", 
 i. e., at a special election. 
 
 Instances of such referenda are not at all rare. Recent 
 cases are to be found in New York in 1895, when the people 
 were asked to confer upon the legislature power to issue 
 bonds to the amount of $9,000,000 " for the improvement of 
 the Erie Canal, the Champlain Canal and the Oswego 
 Canal ", State waterways which stood in need of extensive 
 repairs ; " and in California in 1892 when the California 
 legislature invited the electors to assent to a loan of 
 $600,000 for the construction and furnishing of " a general 
 railroad, passenger and ferry depot " in San Francisco,^* 
 and a loan of $2,528,500 for the purpose of taking up and 
 refunding certain outstanding State issues."' 
 
 The new Constitution of South Carolina altogether pro- 
 hibits the legislature from creating " any further debt or 
 obligation, either by the loan of the credit of the State, by 
 guaranty, endorsement or otherwise, except for the ordinary 
 and current business of the State ", unless it shall submit 
 the question to the qualified electors of the State, and two- 
 thirds of those voting on the proposition shall approve the 
 law.^" In many States other kinds of restraints are placed 
 
 " Banks' Revised Statutes of New York, gth edition, p. 3020. 
 
 ^Statutes of California, 1891, p. no. 
 
 ''Ibid., p. 210. "Constitution of 1895, art. x, sec. 11. 
 
i86 THE REFERENDUM IN AMERICA 
 
 upon the legislatures with respect to the contraction of debt. 
 Some conventions have wholly withdrawn the power from 
 the legislatures; again, definite limits are sometimes pre- 
 scribed beyond which the legislature cannot go under any 
 circumstances, even with the popular assent; again, loan 
 bills must often be passed by a number of members of the 
 legislature larger than a simple majority, and there are other 
 methods employed by the conventions with a view to making 
 it difficult for the representatives to incur financial obliga- 
 tions, which are likely to occasion trouble and disaster later 
 on. Of course, in all these cases, if the legislature finds 
 such a restriction a serious affair, it may initiate an amend- 
 ment to the constitution proposing a change in the terms of 
 the restraining provision, and here again there is no one be- 
 tween the existing order and those who would create the 
 debt, but the people themselves. 
 
 There are a number of States too in which the conventions 
 have made still more specific reservations regarding the con- 
 traction of indebtedness on public account. A deal of the 
 bad financiering by the legislatures has been traceable to sub- 
 sidies and guarantees granted to internal improvement com- 
 panies, with a view to conferring benefits on certain com- 
 munities. Thus, highways, railroads and private develop- 
 ment companies of one kind or another have repeatedly 
 profited, while the State has been run seriously into debt. 
 The conviction has taken a firm hold of the people that 
 much of this legislation was enacted to serve private 
 ends, " to put money into circulation " in certain districts, 
 to benefit landholders of one part of the State, while the rest 
 got none of the gain, it having been alleged even that the 
 legislators received large bribes in the way of stock and the 
 like, for attending to matters of this kind. Guarantees in 
 behalf of railroads have often disastrously involved the 
 poorer States. Therefore a series of provisions will be 
 found in the Constitutions specifically limiting the legisla- 
 ture in such appropriations, unless the laws shall first receive 
 the popular assent. North Carolina by a clause which dates 
 
ON STATUTES OF GENERAL OPERATION 187 
 
 from 1868, requires a referendum when it is a question of 
 lending out the State's credit " in aid of any person, associa- 
 tion or corporation, except to aid in the completion of such 
 railroads as may be unfinished at the time of the adoption 
 of the Constitution, or railroads in which the State has a di- 
 rect pecuniary interest ".^^ The North Dakota Constitution 
 puts the legislature under the same restraint in loaning its 
 credit or making donations " in aid of any individual, asso- 
 ciation or corporation, except for necessary support of 
 the poor " ; in subscribing to or becoming the owner 
 of the " capital stock of any association or corpora- 
 tion ", or engaging " in any work of internal improve- 
 ment ". There is to be no deviation from these rules, ex- 
 cept through the referendum and a ratification of each sep- 
 arate proposal " by a tw.o-thirds vote of the people ".^^ A 
 referendum is provided for by the Constitution of Wyoming, 
 when the legislature desires that the State shall embark upon 
 " any work of internal improvement ". The law must be 
 approved by a two-thirds vote of the people.^' 
 
 In i860 the Constitution of Minnesota was so amended 
 that no law " levying a tax or making other provision for the 
 payment of interest or principal of the bonds denominated 
 Minnesota State Railroad Bonds " should take effect unless 
 it were directly voted on and approved by the people of the 
 State. In 1858 an amendment to the Constitution author- 
 ized an issue of bonds to the value of $5,000,000 to aid in the 
 construction of certain railways. The companies in some 
 way failed to meet the conditions imposed upon them, and the 
 second amendment was designed to protect the State against 
 the impulsive action of the legislature. From time to time 
 various acts were passed by the legislature, and submitted 
 to the people with a view to adjusting the indebtedness of the 
 State as it was represented by these bonds, first in 1866, then 
 in 1867, 1870 and 1871, some of which plans were objection- 
 
 » Constitution of 1876, art. v, sec. 5. 
 == Constitution of 1889, art. xii, sec. 183. 
 "Constitution of 1889, art. xvi, sec. 6. 
 
1 88 THE REFERENDUM IN AMERICA 
 
 able to the people and others to the bondholders. At last 
 the State Supreme Court in i88i^* decided that the amend- 
 ment was unconstitutional, on the ground of its being an 
 impairment of the obligation of contracts, and a settlement 
 was effected by the legislature without again submitting the 
 question to popular vote. 
 
 The Constitution of Illinois invested the people of the 
 State with power finally to determine as to the sale or lease 
 of the Illinois and Michigan Canal, a State property.^'* The 
 legislature passed an act in 1882 ceding the canal to the 
 United States, " to be maintained as a national waterway 
 for commercial purposes ". The people voted " For the act 
 ceding the Illinois and Michigan Canal to the United 
 States " or " Against the act ceding the Illinois and Mich- 
 igan Canal to the United States " at the general election of 
 1882, and the proposition was ratified by the necessary ma- 
 jority of the votes cast.^° 
 
 Another subject is made the matter for a referendum in 
 two States, namely, the appropriation of money for the erec- 
 tion of capitol buildings. The Illinois Convention of 1870 
 restricted the legislature to an expenditure of $3,500,000 
 " on account of the new capitol grounds and the construc- 
 tion, completion and furnishing of the state house ". If 
 greater outlay were to be made, the laws authorizing the ap- 
 propriation must be approved by the people of the State.'^ 
 In 1881 a balance of $531,712 was still needed to complete 
 this building. After the law which carried with it an appro- 
 priation to cover this sum was twice submitted to the people, 
 in 1882 and 1884, it was finally ratified by them, and the 
 funds were made available to the legislature.^* 
 
 The Constitution of Colorado contemplated a vote of the 
 people upon any proposition to create a State debt " for the 
 
 " State V. Young, 29 Minn., 474. 
 " Constitution of 1870, separate section. 
 
 ^° Starr and Curtis' Annotated Statutes of the State of Illinois, 2d 
 edition. Vol. I, p. 543- 
 " Art. iv, sec. 33. 
 " Cf. Laws of Illinois, 1881, p. 55 ; ibid., 1883, p. 39 ; ibid., 1885, p. S3. 
 
ON STATUTES OF GENERAL OPERATION 189 
 
 purpose of erecting public buildings " which in any one year 
 should exceed one-half mill on each dollar of valuation of 
 taxable property or which at any one time should make the 
 aggregate amount of such debt more than $50,000. The 
 whole indebtedness incurred on this account could be run 
 up to three mills on each dollar of valuation with the consent 
 of the people of the State, but no higher under any considera- 
 tion.^' Such proposals have been repeatedly submitted to 
 the people of Colorado, both as statutes and as amendments 
 to the Constitution. Statutes were submitted in 1883, when 
 bonds to the amount of $300,000, for the erection of the 
 capitol buildings in Denver were sanctioned by a vote of 
 13,220 against 8,703; in 1889, when a law to create an addi- 
 tional debt of $250,000 for the same purpose was defeated 
 by a vote of 15,010 yeas, and 16,286 nays; in 1891, when 
 authority to issue bonds to the amount of $300,000 was 
 asked for by the legislature, the people again refusing the 
 request by the still more decisive vote of 14,543 yeas and 
 36,322 nays.*" 
 
 Turning from the State's expenditures, which all these 
 referenda are meant to check, we find that the people have 
 won a direct part in deciding some questions, too, in regard 
 to the State's revenues. Thus the Convention of Colorado 
 in 1876 put an important restriction upon the legislature, 
 when it declared that " the rate of taxation on property for 
 State purposes shall never exceed six mills on each dollar 
 of valuation, and whenever the taxable property within the 
 State shall amount to $100,000,000 the rate shall not exceed 
 four mills on each dollar of valuation, and whenever the 
 taxable property within the State shall amount to $300,000,- 
 000, the rate shall never thereafter exceed two mills on each 
 dollar of valuation, unless a proposition to increase such 
 rate specifying the rate proposed, and the time during which 
 the same shall be levied, be first submitted to a vote of such 
 
 ■"Constitution of 1876, art. xi, sees. 3, 4 and 5. 
 
 *° Mills' Annotated Statutes of the State of Colorado, Vol. I, and Sup- 
 plement, Notes to art. xi, sec. 3, of the Constitution. 
 
19° THE REFERENDUM IN AMERICA 
 
 qualified electors of the State, as in the year next preceding 
 such election shall have paid a property tax assessed to them 
 within the State, and a majority of those voting thereon shall 
 vote in favor thereof, in such manner as may be provided 
 by law "/^ An act to increase the rate to five mills for the 
 years 1889 and i8go was rejected by the people in 1888, by 
 a very large majority, the vote standing 762 for, and 10,102 
 against. The vote for President in Colorado in the same 
 year was upwards of 90,000.*^ The plebiscital feature of 
 this provision was repealed by a constitutional amendment 
 adopted in 1892, which put an absolute limit on the legis- 
 lature in the following terms : " The rate of taxation on 
 property for State purposes shall never exceed four mills 
 on each dollar of valuation." *^ 
 
 Referenda on the same subject which are to be taken under 
 very similar conditions are provided for by the Constitutions 
 of Montana ^* and Idaho,*^ when it is a question of estab- 
 lishing tax rates higher than the limits there definitely named, 
 and the provisions in these two States are still in effect 
 to-day. As compared with Colorado a difference must be 
 noted in that the law proposing the increase in the rate in 
 Montana and Idaho is to be submitted to " the people ", i. e., 
 to all the qualified electors rather than to the property tax- 
 payers alone, a restricted portion of the electoral body. 
 
 The Constitution with which Utah entered the Union in 
 1895, contains a somewhat similar provision. There taxes 
 in excess of five mills on the dollar when the taxable prop- 
 erty shall exceed a value of $200,000,000; above four mills 
 on the dollar when it exceeds a value of $300,000,000, must 
 be authorized by direct vote of the property taxpayers of 
 the State." 
 
 The people of Minnesota in November, 1896, voted on and 
 
 "Constitution of Colorado of 1876, art. x, sec. 11. 
 
 *^ Laws of Colorado for 1887, p. 29; Annotated Statutes of Colorado, 
 1891, p. 317, note to art. x, sec. 11. of the Constitution. 
 
 "Mills' Annotated Statutes, Supplement, 1896, note to art. x, sec. 11, 
 of the Constitution. 
 
 "Art. xii, sec. 9. '°Art. vii, sec. 9. "Art. xiii, sec. 7. 
 
ON STATUTES OF GENERAL OPERATION 191 
 
 adopted two legislative acts,*'' one touching the taxation of 
 certain lands owned by railway companies within the State, 
 a referendum authorized by the Constitution,*' and another 
 making a transfer of moneys from the " internal improvement 
 land, fund ", a proceeding declared by the Constitution to be 
 illegal, except with the direct sanction of the people.*' 
 
 Another question closely bound up with the public credit 
 developed into a subject for a referendum at about the same 
 time that the State legislatures were being put under limit 
 in the contraction of debt. The " soft money " politicians 
 found in State banks an unfailing source of the " wealth " 
 which they believed it was one of the functions of a state to 
 create. By chartering banks, and granting them extended 
 rights of issue, a circulating medium was secured in outlying 
 parts of the Union. Certain public improvements were thus 
 helped forward, only to be followed, of course, by serious 
 collapse later on. This " wild cat " banking through po- 
 litical banks came to claim the attention of the conventions 
 at an early date and in several States, beginning with Iowa, 
 in 1846 the people were introduced as a direct check upon 
 their untrustworthy representatives. The Constitution of 
 Iowa declared that " no act of General Assembly authorizing 
 or creating corporations or associations with banking powers, 
 nor amendments thereto shall take effect, or in any manner be 
 in force until the same shall have been submitted sepa- 
 rately to the people at a general or special election, as pro- 
 vided by law, to be held not less than three months after 
 the passage of the act, and shall have been approved by a 
 majority of all the electors voting for or against it at such 
 election ".'" 
 
 A similar provision made its appearance in the Constitu- 
 tions of Illinois and Wisconsin in 1848, of Michigan ill 1850, 
 and Ohio in 185 1. This referendum in one or another of its 
 
 "Laws of Minnesota, 1895, pp. 378, 728; ibid., 1897, pp. x, xi. 
 " Constitution of 1837, sec. 32a, an amendment adopted in 1871. 
 "Ibid., sec. 32b, amendment of 1872. 
 ™ Constitution of 1846, art. viii, sec. 5. 
 
192 THE REFERENDUM IN AMERICA 
 
 forms is at present authorized by the Constitutions of seven 
 States: — Illinois, Iowa, Kansas, Michigan, Missouri, Ohio 
 and Wisconsin. The most comprehensive provision in the 
 group is that which occurs in Wisconsin, where there is a 
 double referendum, first to determine in a general way 
 whether a law on this subject shall be drafted and submitted 
 to the people, and then when the law is prepared, whether or 
 not it shall be adopted.^^ Such a method finds its counter- 
 part in the usual course of procedure in the States, when it 
 is a question of changing the constitution. The general 
 proposition is first submitted to the people, and they are 
 asked to decide whether they want a new constitution, and 
 then afterward whether they approve of that particular con- 
 stitution which has been prepared for them. In some of the 
 States the restriction requiring popular assent has been held 
 to apply only to banks of issue, as in Ohio.^^ In Missouri 
 banks of discount and deposit are expressly excepted from the 
 operations of the provision and the legislature may establish 
 such institutions at will, without seeking the direct author- 
 ization of the people. A banking law was submitted to the 
 people of Wisconsin by the legislature of that State in 1852, 
 and was adopted.^' Amendments to this law have been sev- 
 eral times referred to popular vote, as in 1858, 1861, 1862, 
 1866 and 1867.°* An act specially providing for the organ- 
 ization of savings banks and savings societies was approved 
 by the people of Wisconsin in 1876.°° The entire subject 
 was committed to a number of competent authorities on the 
 financial question, and a new banking code, prepared with 
 much care and designed to supersede the earlier law with 
 its amendments was adopted at a referendum in 1898.''° 
 In Illinois a banking act was adopted by the people in 
 
 '* Constitution of 1848, art. xi, sec. s- 
 
 "Dearborn v. Bank, 42 O. S. 617. 
 
 "' Sanborn and Berryman's Wisconsin Statutes, 1898, pp. 1525 et seq. 
 
 "Ibid. ^Ibid., p. 1541. 
 
 "" Laws of Wisconsin for 1897, chapter 303, p. 647. The vote was 
 86,872 for and 92,607 against the law, or a total of 179,479 as compared 
 with a vote of 329,430 for Governor at the same election. 
 
ON STATUTES OF GENERAL OPERATION i93 
 
 1888, and amended by popular vote in 1890.°' This law was 
 again amended in 1898.^^ It would te a tedious and per- 
 haps profitless task to follow the course of this referendum in 
 other States. 
 
 In a certain number of States, the extension of the sufifrage 
 to new classes of citizens, is held to be a matter which the 
 legislatures should not determine, except upon the advice 
 of the people. Those already invested with the privilege of 
 the franchise, shall directly sanction or reject proposals 
 which may be made for an enlargement of the electoral body. 
 Few questions are so important and serious in democracies as 
 those which are bound up with the suffrage. In nearly all 
 the States, this subject has come to be treated in great de- 
 tail in the constitutions, and little latitude is allowed to the 
 legislatures in giving form to this feature of our political 
 system. If it is desired, therefore, to change the basis upon 
 which the suffrage rests, it is necessary either to refer the 
 subject to the people in the form of a constitutional amend- 
 ment, or call a convention to revise the constitution, which 
 as we have noted already, is the method in favor in the 
 South, when it is desired to accomplish reactionary and in- 
 deed almost revolutionary results, taking us backward on 
 the line of universal suffrage and excluding from further 
 exercise of the privilege many of those persons who have 
 earlier enjoyed it. It is, of course, a very difficult matter 
 to induce any body in the electorate to agree to its own dis- 
 franchisement. It is in the extension of the suffrage that the 
 people, i. e., those already enfranchised by the constitution, 
 play an important part in the direct enactment of legislation. 
 Thus the Wisconsin Convention of 1848, after specifying 
 what should constitute the qualifications of electors within 
 
 " Starr and Curtis' Annotated Illinois Statutes, ad edition, 1896, p. 
 S14. 
 
 "' Laws of Illinois for 1897, p. 184. The amendment was adopted by 
 a popular vote of 124,656 yeas and 55,773 nays, a paltry total of 180,429, 
 as compared with a total vote of -874,115 at the same election for State 
 Treasurer, the leading State officer on the ticket. Illinois at the Presi- 
 dential election of 1896 polled a total vote of 1,090,869. 
 
194 THE REFERENDUM IN AMERICA 
 
 that State, declared " that the legislature may at any time 
 extend by law the right of suffrage to persons not herein 
 enumerated, but no such law shall be in force until the same 
 shall have been submitted to a vote of the people at a gen- 
 eral election, and approved by a majority of all the votes cast 
 at such election ".^' Under this clause the legislature in 
 1849 submitted the question of " equal suffrage to colored 
 persons ", thus admitting negroes to voting privileges on the 
 same terms as white men.°° Again in 1885 the legislature 
 submitted an act to confer upon women the right of suffrage 
 in school matters. This proposition came to popular vote, in 
 1886, and was adopted.*^ 
 
 The Convention of Colorado in 1876, had left to the dis- 
 cretion of the legislature of the State the question of bring- 
 ing forward a measure to enfranchise women. This bill was 
 to become a law if it were approved by the qualified electors 
 of the State (male) at a general election.*'' Very soon after 
 Colorado was admitted to the Union, a woman suffrage act 
 was made the subject of a referendum.*' The law, how- 
 ever, was rejected by a vote of 6,612 yeas to 14,053 nays.'* 
 Another law which was submitted by the Colorado legis- 
 lature in 1893, was more successful.*" It was accepted by 
 the people, the ballots containing the words " Equal Suf- 
 frage Approved " and " Equal Suffrage not Approved ".*' 
 
 The Constitution of North Dakota conferred upon the 
 legislature similar authority in the matter of " further ex- 
 tensions of the suffrage to all citizens of mature age and 
 sound mind, not convicted of crime, without regard to 
 
 " Constitution of 1848, art. iii, sec. i'. 
 
 "Laws of Wisconsin for 1849, chap. 137, p. 85. The vote was 5,265 
 for, and 4,075 against the law. Cf. Gillespie v. Palmer, 20 Wis. 544. 
 
 "Laws of Wisconsin for 1885, chap. 211, p. 184. 
 
 " Constitution of 1876, art. vii, sec. 2. 
 
 " Laws of Colorado for 1877, p. 648. 
 
 " Mills' Annotated Statutes of Colorado, note to art. vii, sec. 2, of the 
 Constitution. " Laws of 1893, p. 256. 
 
 " The act having been adopted by the people, cannot be repealed by 
 the General Assembly. In re Woman Suffrage, Report of Attorney 
 General of Colorado, 1893-4, p. 378. 
 
ON STATUTES OF GENERAL OPERATION 19S 
 
 sex ".*^ But no law of this kind, having for its purpose 
 either the extension or restriction of the right of suifrage, 
 was to have any effect until it was ratified by a majority of 
 the electors of the State.'* There is no record of the legis- 
 lature having yet availed itself of the privilege of submit- 
 ting to the people a law of this character. 
 
 In South Dakota the convention provided that the legis- 
 lature at its first session after the admission of the State into 
 the Union should consult the people upon the proposition of 
 striking the word " male " from the article of the Constitu- 
 tion relating to elections." This question was submitted to 
 the people in 1890, and the proposal was disapproved of.'° 
 A proposition for the enfranchisement of women was again 
 leferred to popular vote in South Dakota, in the form of an 
 amendment to the Constitution, at the general election in 
 1898, when it was again rejected. 
 
 Another matter, which is sometimes left to the treatment 
 of the legislature, acting in conjunction with the people, is 
 that of arranging a scheme of legislative representation or 
 system of apportionment. In Maine by the Constitution of 
 1820, plans were laid for a membership not to exceed 200 
 persons in the house of representatives or lower house of the 
 State legislature. When this limit was reached it was the 
 duty of the legislature to take the sense of the people, in 
 order to decide if this number should be increased or dimin- 
 ished. No matter what the result of the vote, an election on 
 the same subject was to be held regularly at the expiration of 
 every ten year period thereafter.'^ A constitutional amend- 
 ment adopted in 1841, made other arrangements with respect 
 to this subject, and eliminated the referendum, substituting 
 therefor a definite system of apportionment. The Consti- 
 tution of Virginia of 1850, provided that in 1865 and 
 every tenth year thereafter, if the legislature could not agree 
 
 " Constitution of 1889, art. v, sec. 122. 
 
 "Ibid. "Constitution of 1889, art. vii, sec. 2. 
 
 '"Laws of South Dakota for 1890, p. 117. 
 
 " Constitution of Maine of 1820, art. iv, part i, sec. 2. 
 
196 THE REFERENDUM IN AMERICA 
 
 Upon a principle of legislative representation, the people at 
 an election to be called for the purpose, should choose from 
 among four proposed systems. The people were to decide 
 whether representation should be arranged on the basis of 
 the number of voters, or of the amount of taxes paid, or of 
 two possible mixtures of these two systems. In case no one 
 system was the choice of a majority of the voters at the first 
 election, a second election was to be arranged for, as between 
 the two systems which had proved to be most in favor at the 
 first polling.'^ 
 
 The Convention of West Virginia of 1872, authorized the 
 legislature of that State to submit to the people in 1876, 
 or at any general election in any subsequent year " a plan 
 or scheme of proportional representation in the senate of 
 this State ", i. e., a scheme for an apportionment of mem- 
 bers on the basis of the number of inhabitants residing in 
 the various districts, according to the system generally em- 
 ployed in organizing the American lower or second cham- 
 bers.'^ 
 
 Occasionally, too, the referendum has found an applica- 
 tion when it is a question of changing the boundaries of a 
 State, — in reducing or increasing its area and the extent of 
 its territorial jurisdiction. Thus when the so-called " Dis- 
 trict of Maine " was to be organized as a separate State, 
 the result was accomplished by way of a plebiscite which 
 was authorized by act of the legislature of Massachusetts, 
 June 19, 1819, of which State, up to that time, the " Dis- 
 trict " had been a part. The law specified that " if the num- 
 ber of votes for the measure shall exceed the number of 
 votes against it, by fifteen hundred, then and not otherwise, 
 the people of said district shall be deemed to have expressed 
 their consent and agreement that the said district shall be- 
 come a separate and independent State ".'* The election was 
 
 "Constitution of Virginia of 1850, art. iv, sec. 5. "Art. vi, sec. 50. 
 
 " Laws of Massachusetts passed at the Several Sessions of the Gen- 
 eral Court, beginning May, i8'8, and ending February, 1822, Boston, 
 i82»- chapter clxi. o. 2-18. 
 
ON STATUTES OF GENERAL OPERATION i97 
 
 held in the July following, and the necessary majority hav- 
 ing been secured, a convention was called to frame a con- 
 stitution. In this manner Maine was admitted to the Union 
 of States. 
 
 The Constitution of West Virginia provides that " addi- 
 tional territory may be admitted into and become part of 
 this State with the consent of the legislature, and a majority 
 of the quahfied electors of the State voting on the ques- 
 tion "." 
 
 A referendum of this general class, it may be remarked in 
 passing, was authorized by the Congress of the United 
 States in 1846.'" The land which had been ceded by the 
 State of Virginia to the Federal government, to be used for 
 the purpose of establishing a national capital in the District 
 of Columbia, was not needed for that purpose. The Virginia 
 legislature declared its willingness to take it back, where- 
 upon Congress agreed !o the retrocession contingent upon 
 the assent of the people of the territory involved in the 
 transfer, i. e., Alexandria County. It was distinctly stated 
 in the law that " this act shall not be in force until after the 
 assent of the people of the county and town of Alexandria 
 shall be given to it in the mode hereinafter provided ". The 
 vote was to be taken " viva voce upon the question of accept- 
 ing or rejecting the provisions of this act ", and in this man- 
 ner the territory was reattached to the State of Virginia.'''^ 
 When the question of the constitutionality of law-making by 
 popular vote afterward came up in the State courts this 
 case was freely cited as a Federal precedent and one entitled, 
 therefore, to unusual consideration and respect. 
 
 1^0 one has ever for a moment questioned the full com- 
 petence of a convention, or the constituent authority in gen- 
 eral, to demand that laws on the subjects I have just cata- 
 logued in this chapter or indeed on any other subject, shall 
 be passed conditional upon their later acceptance by the 
 
 "Constitution of 1S72, art. vi, sec. 11. 
 
 "Act of July 9, 1846, United States Statutes at Large from 1845 to 
 1851, p. 35. "lUd. 
 
1 98 THE REFERENDUM IN AMERICA 
 
 people. Although it must be considered to be in violation of 
 all our tradition and unwritten law on this point, and out of 
 harmony with the whole system of representative govern- 
 ment, the convention may undoubtedly introduce such an 
 innovation if it likes. A usual provision in the State consti- 
 tutions is that " the legislative authority shall be vested in a 
 legislative assembly, which shall consist of a senate and a 
 house of representatives ". It is clear that this is the source 
 of the legislature's power, the title to its existence, and the 
 grant of its authority. If all reference to such a body were 
 omitted from the constitution, and the duties earlier en- 
 trusted to it were vested in other agents, as in the people, 
 the electors at large, there would be no saving power but, 
 (i), the Federal Government, which, however, would 
 scarcely intervene on the ground that the State government 
 on this account was too democratic, and had therefore ceased 
 to be " republican ", or, (2), the agents within the State it- 
 self and in the mercy of these we should certainly have to 
 put our faith. All the various organs in this field it was the 
 aim of the Fathers so to arrange that one agent could not de- 
 velop unduly at the expense of another. The different 
 checks and balances interacting one upon the other in the 
 presence of that indefinite force known as public opinion, 
 must be the safeguard of our American liberties. 
 
 It is certain that the constituent power may decree that 
 various classes, and indeed all classes of laws shall be passed 
 subject to the ratification of the people, being only proposed 
 by the legislature as by a committee, and this point having 
 been established I shall next inquire what is the status of a 
 law. which is passed by the legislature, and submitted to'the 
 people without our being able to point to any clause in the 
 constitution from which the authority for this submission is 
 derived. 
 
 May a representative legislature to which power has been 
 delegated to enact laws for the people of the State redele- 
 gate its power or shirk its task by referring its work to some 
 
ON STATUTES OF GENERAL OPERATION i99 
 
 other agent or agents ? This brings us to an interesting field 
 of discussion, into which many of our highest American 
 State courts have entered, adding a great deal to the elucida- 
 tion of the points at issue. 
 
CHAPTER VIII 
 
 THE REFERENDUM ON STATUTES OF GENERAL OPERATION 
 
 WITHIN THE STATE WHEN NO AUTHORIZATION FOR THE 
 
 VOTE IS CONTAINED IN THE CONSTITUTION 
 
 We distinguish in the practice of the States, two classes 
 of conditional laws, — those affecting the people of the en- 
 tire State, and referred to the whole electoral body of the 
 State, which are being considered in this present connection 
 and those affecting local districts, municipalities and sub- 
 divisions of the State, which will be separately treated in 
 ensuing chapters of this work. Laws of the latter class are 
 now generally held to be valid and constitutional, so that they 
 have come to occupy a very important place in the legislative 
 economy of nearly all the American States, but the former 
 class of laws it has been the almost uniform policy of the 
 courts to disallow. 
 
 In the first place we have here to clear up the point as to 
 the competence of the legislature to give over its power of 
 legislation to the people with respect to laws which are of a 
 general nature, and apply to the State at large. In the 30's 
 and 40's, the people became profoundly impressed regarding 
 the evils of intemperance, and the aid of the local govern- 
 ments was invoked as a means of regulating the manufac- 
 ture and sale of intoxicating liquors. The agitation at last 
 took the form of a demand that the business should be pro- 
 hibited altogether, that wines, spirits, beers, etc., should not 
 be sold at all as a beverage, and only for medicinal purposes 
 under effective restrictions. Violations of the law were to be 
 heavily penalized. 
 
 The legislatures in many cases, however, were not willing 
 to go to such lengths on their own responsibility, and intro- 
 
ON STATUTES OF GENERAL OPERATION 201 
 
 duced the local option system whereby any community, the 
 county being usually regarded as the unit, could prohibit 
 the liquor trafSc within its own borders, upon a majority 
 vote of the electors residing in the district. This means of 
 repressing the evil was not thought to be far-reaching 
 enough in some States, as liquor was still being introduced 
 surreptitiously over the frontiers of the county which pro- 
 hibited the business from neighboring counties which had 
 voted to continue to license inns and public houses. Thus 
 there was developed a demand for State prohibition laws, 
 which were enacted in a number of States, beginning with 
 Maine in 1851, with a measure that soon came to be widely 
 famous as the " Maine Law ". It was entitled " An act for 
 the suppression of drinking houses and tippling shops ",^ 
 and it was passed by the legislature as a complete and 
 definitive piece of legislation like any ordinary law. " This 
 act ", the legislature declared, " shall take effect from and 
 after its approval by the Governor ". Later, however, in 
 1856, the legislature proposed that the State should return 
 to the license system, but this change of front did not seem 
 to give public satisfaction. Not knowing what policy it 
 ought to pursue regarding the troublesome question, the leg- 
 islature passed a bill in March 1858, " to ascertain the will of 
 the people concerning the sale of intoxicating liquors ".* 
 At a special election to be held in June 1858, the people 
 were asked to choose between the " License Law of 1856 " 
 and the " Prohibitory Law of 1858 ", and to make it known 
 which they preferred. 
 
 That the people were to make or unmake the law in this 
 case while the legislature simply stood by to propose it, is 
 clearly evidenced by a reading of Section 3 of the act which 
 was as follows : " If it shall appear * * * * that upon a ma- 
 jority of the ballots so returned the words ' License Law of 
 1856 ' are written or printed, then the act entitled ' An act 
 for the suppression of drinking houses and tippling shops ', 
 
 'Laws of Maine, 1851, ch. 211, p. 210. 
 'Laws of Maine, 1858, ch. so, p. 61. 
 
202 THE REFERENDUM IN AMERICA 
 
 approved March 25, 1858, is hereby repealed, and the act en- 
 titled ' An act to restrain and regulate the sale of intoxicating 
 liquors, and to prohibit and suppress drinking houses and 
 tippling shops ' approved April 7, 1856, shall thereby be re- 
 vived." The law of 1858 having been approved in the 
 referendum, it was convenient for the legislature in 1867 
 again to pass an act for ascertaining the sense of the people 
 with respect to a measure which it had just adopted, increas- 
 ing the penalties for violations in the hope of making the 
 " prohibition " policy more enforceable. Those in favor of 
 the act were to have the word " yes " printed on their ballots, 
 and those opposed to it the word " no ". If a majority of the 
 ballots so returned had the word " yes " printed or written 
 on them, the act would thereby be repealed.* In this connec- 
 tion it is to be noted that the laws which were submitted to 
 the people of Maine on these two occasions, were technically 
 perfect acts when they left the hands of the legislature. 
 Nothing was said in the laws themselves regarding their 
 coming into force as the result of a contingency, such as the 
 favorable vote of the people in a referendum. The laws were 
 submitted to the electors afterward, by authority derived 
 from separate and distinct acts, which again were complete 
 within themselves, p point it may be of considerable interest to 
 keep in mind until we come to the consideration of some of 
 the legal questions that have been brought out by the courts, 
 in reviewing legislation of this kind. 
 
 Soon after the " Maine law " of 1851 was enacted, and its 
 fame had spread afield, the legislatures of other States were 
 led to follow the interesting, if somewhat radical example of 
 their sister Commonwealth. Prohibitory liquor laws, either 
 with or without the referendum feature, were passed in con- 
 siderable number and variety. The legislature of Vermont 
 in 1852 enacted a measure of this kind, which was to go 
 into effect in March 1853. In the meantime, however, a vote 
 of the people of the State was to be taken as to " their judg- 
 
 " Laws of Maine, 1867, ch. 133. 
 
ON STATUTES OF GENERAL OPERATION 203 
 
 ment and choice in regard to this act " and " if a majority of 
 the ballots shall be ' no ' " then it was not to become effective 
 until December 1853 (instead of in March).* Here, again, 
 there was no direct submission of the law to the people. 
 They were technically to determine only one point, the time at 
 which the act should come into force, though it was under- 
 stood that if they voted " no " the legislature which would be 
 in session again before December, would repeal the law, so 
 that it would be entirely nugatory. In effect it was a sub- 
 mission of the question whether the act should be a law for 
 and during the time intervening from March to December 
 1853, which is hardly distinguishalble from the case of the 
 open reference of the whole subject to the electoral body. 
 The vote was in the affirmative, and the law took effect on 
 the first named of the alternate dates. ^ 
 
 A somewhat similar device was employed by the Michigan 
 legislature in 1853. This legislature approached the great 
 constitutional question, however, with all the sail out- 
 spread. Its law was an act " prohibiting the manufacture of 
 intoxicating beverages and the traffic therein ". The legis- 
 lature distinctly declared that " this act shall be submitted 
 to the electors of this State for their approval or disapproval " 
 at a special election to be held in June 1853. However, it 
 was added that " if it shall appear that a majority of the votes 
 [ballots] cast have thereon ' adoption of the law prohibiting 
 the manufacture of intoxicating beverages and the traffic 
 therein, yes ', this act shall become a law of the State from 
 and after the first day of December 1853 ; but if a majority 
 of the votes cast upon the question have thereon ' adoption 
 of the law, etc. no ', this act shall take effect and become a 
 law of the State from and after the first day of March 
 1870 ".* Here was another odd subterfuge ; the law was a 
 positive law to take effect anyhow, no matter whether the 
 people voted yes or no upon it, but in the one case it should 
 
 ' Laws of Vermont, 1852, p. 19. 
 'Cf. State V. Parker, 26 Vt. p. 357- 
 ' Laws of Michigan, 1853, p. 100. 
 
204 THE REFERENDUM IN AMERICA 
 
 be in force from and after December i, 1853, and in the other 
 case, not until March i, 1870. 
 
 The referendum was attacked by a kind of flank movement, 
 too, in Rhode Island in 1853, when it was again a question of 
 vitalizing a prohibitory liquor law. In the Rhode Island act 
 it was provided that " the legal voters in the several towns " 
 of the State at the annual election for State officers in April 
 (the law was passed in January) should vote " upon the ques- 
 tion of repealing this act ". " In the event of a majority of 
 such ballots being cast in favor of the repeal of this act, the 
 same shall be limited in its operations and have no effect after 
 the tenth day from and after the rising of the General As- 
 sembly at its next May session." ' 
 
 The Iowa legislature in 1855, was much more straight- 
 forward than any which had yet submitted this question to 
 popular vote. It declared simply and plainly that at an elec- 
 tion to be held in April 1855, " the question of prohibiting 
 the sale and manufacture of intoxicating liquors shall be sub- 
 mitted to the legal voters of this State ". The ballots should 
 bear the- words "For the Prohibitory Liquor Law", or 
 " Against the Prohibitory Liquor Law ". If a majority of 
 the votes cast on the subject were for the adoption of the act, 
 it was to take effect on July i, 1855, otherwise it was to be 
 null and void, the latter howexrer only by implication.^ 
 
 The " Maine Liquor Law " was the subject of referenda 
 in several other states of the Union while the same wave of 
 temperance sentiment was sweeping over the country. Al- 
 though it has lately been regarded a much better method to 
 incorporate a proposition for the prohibition of the liquor 
 trade in a constitutional amendment, which reaches the people 
 in such a way that the legality of the submission cannot pos- 
 sibly be brought into question, North Carolina furnishes a 
 rather recent instance of a popular vote upon a statute. In 
 1 88 1 the legislature of that State passed a prohibitory law 
 which was to have " full force and effect " on and after Oc- 
 
 ' Laws of Rhode Island, 1853, p. 232. 
 
 'Laws of Iowa, 1855, p. 58; Santo v. State, 2 Iowa, 165. 
 
ON STATUTES OF GENERAL OPERATION 20S 
 
 tober I, 1881. In August, 1881, however, the sense of the 
 electors was to be taken upon the question of prohibition. If 
 at this election a majority of the votes cast were " against 
 prohibition ", then no person was "to be prosecuted or pun- 
 ished for any violation of this act ". Without using plain 
 words, this was nothing less than a positive repeal of the law, 
 if the people should vote against it in the referendum. 
 
 It is difficult to draw distinctions, in fact, even if these 
 should be possible by appeals to technicalities of language 
 between such cases of law-making by popular vote, and the 
 actual redelegation of power by the legislature, which all 
 students of our law and institutions declare to be a wholly 
 invalid proceeding. 
 
 Another referendum for which no specific authority had 
 been derived from the constitution, was that taken many 
 years ago in California on the question of selecting a " per- 
 manent seat of government " for that State. An act passed 
 by the State legislature in 1850 authorized an election upon 
 this subject.* The people in this case, however, seem to have 
 been regarded by the legislature merely as an advisory body, 
 whose recommendations were not binding upon it. Cali- 
 fornia's "permanent seat of government" was twice changed 
 v/ithin four years in the early days of her career as a State, 
 the first choice having been Vallejo, the second Benicia and 
 the third Sacramento, the present capital. 
 
 One of the boldest attempts ever made to introduce the 
 people as an active factor in law-making, a case which soon 
 came to be of standard authority as a model to be well 
 avoided in the future, in view of the unfriendly judicial opin- 
 ions it immediately evoked, is to be credited to New York. 
 The legislature of that State in March 1849, passed a so- 
 called " Free School Law ". The public system of gratuitous 
 schools had just begun to secure a foothold in this country 
 and it was yet a question with the legislature whether the 
 people ought to be taxed for their own education. This law 
 
 •Laws of California, 1850, p. 412. 
 
2o6 THE REFERENDUM IN AMERICA 
 
 provided that " common schools " should be free to all per- 
 sons between five and twenty-one years of age, residing in the 
 various districts into which the State was divided for pur- 
 poses of school administration. The law, however, was a 
 mere bill or proposal, since the electors were to determine by 
 ballot at the annual election to be held in November, 1849, 
 " whether this act shall or not become a law ". The ballots 
 cast in favor of the adoption of the act were to contain the 
 words : " School — For the New School Law." Those cast 
 against its adoption : " School — ^Against the New School 
 Law." It was specified, moreover, that the ballots should be 
 folded so as to conceal all the words except the word 
 " School ", and " in case a majority of all the votes in the 
 State shall be cast against the New School Law, this act shall 
 be null and void " ; but " in case a majority of all the votes in 
 the State shall be cast for the New School Law, then 
 this act shall become a law and shall take effect imme- 
 diately"." 
 
 The legislature of New Hampshire submitted to the voters 
 of that State in 1880, a question in regard to minority rep- 
 resentation in corporations, a matter it would seem of little 
 general interest to the public. It was proposed that share- 
 holders at elections for directors or managers of corporations 
 should cast " the whole number of votes for one candidate, 
 or distribute them upon two or more candidates, as he may 
 prefer ". The law, however, must be referred to the citizens 
 of the State and be approved by a majority of the electors 
 voting upon it, or otherwise it should be "of no ef- 
 fect "." 
 
 In 1883, in order to feel how the popular pulse beat as to 
 the very disagreeable question of contract labor in the State 
 prisons, the legislature of New York authorized a referendum 
 
 '"Laws of New York, 1849, pp. 192, 561. 
 
 " Laws of New Hampshire, 1879, P- 365- The vote upon this law 
 was 22,560 for, and 10,375 against, a total of 32,935. The whole vote 
 of the State for President in 1880 was 86,174. Cf. State v. Hayes 61 
 N. H..264. 
 
ON STATUTES OF GENERAL OPERATION 207 
 
 on this subject. The trades unions and, other workmen's or- 
 ganizations complained that their labor was being brought 
 into competition with that of the public convicts. This vote 
 was wholly advisory to guide the legislature in its future 
 course. There was presented no law which the people were 
 to accept or reject." The State officers were asked to make 
 a record of the number of votes which had been cast for and 
 against the proposition, and to publish the result for the pub- 
 lic information. Of a somewhat similar nature, though in- 
 tended for the guidance of the Federal rather than the State 
 government, was a vote of the people of Nevada, in 1880, 
 for and against Chinese immigration into the United States. 
 The sense of the electors being made known, the Governor 
 was to memorialize the President and Congress on the sub- 
 ject, in the hope that the referendum would exert an influence 
 upon national legislation.^^ 
 
 California furnishes some cases of a similar kind. 
 For a long time much public sentiment, if rather indefinite in 
 strength, has existed in favor of the election of United States 
 Senators by direct vote of the people instead of by the legis- 
 latures, as is the method at the present time. In 1892 the 
 people of California were authorized to record their views 
 on this point for the information of the President and Con- 
 gress.^* In the same year the California legislature asked 
 for popular advice on a question of State policy, the electors 
 being invited to express their views for or against "an educa- 
 tional qualification requiring every voter to be able to write 
 his name and read any section of the Constitution in the Eng- 
 lish language ".^° 
 
 Likewise in Massachusetts, in 1895, the legislature asked 
 " all persons qualified to vote for school committee '' therefore 
 both men and women, to give in their votes at the next State 
 election, " yes " or " no ", in answer to the following ques- 
 
 "Act of May 25, 1883. — Laws of New York for that year. 
 " Laws of Nevada, 1879, p. 27. 
 " Laws of California, 1891, p. 46. 
 "Ibid., p. 115. 
 
2o8 THE REFERENDUM IN AMERICA 
 
 tion : " Is it expedient that municipal suffrage be granted to 
 women ? " This referendum was quite unofficial, being with- 
 out binding force upon the legislature, which submitted no 
 law but simply requested the people to express their sense on 
 this subject, presumably for legislative guidance later on.^° 
 The legislature in 1894, had asked the justices of the 
 Supreme Court of Massachusetts for their opinion as to the 
 constitutionality of the submission of such a law, and al- 
 though there was some difference in the court, a majority of 
 the judges united in declaring that an act so adopted would 
 be invalid. While this was strictly speaking, not an of- 
 ficial deliverance being intended merely for the legislature's 
 information and advice, it is an admirable review of an im- 
 portant constitutional question. The opinion deterred the 
 legislature from passing a conditional act on this subject, 
 and led it instead to adopt the simple plan of taking the sense 
 of the people on a proposition disconnected with any con- 
 crete law. There is nothing, it would seem, that could pre- 
 vent the legislature from resolving to ask the people for ad- 
 vice. It is perhaps, as constitutional for it to do this, as to 
 ask the Supreme Court or an executive officer of the govern- 
 ment, or any other department, court or body, for an opinion 
 regarding any subject about which they may be presumed to 
 have useful information.^^ 
 
 That there is not a greater number of instances in which 
 the legislatures have submitted general State laws to a vote 
 of the people, and that in those cases at hand, they have gone 
 about the work in so roundabout a way, is due to the hostility 
 which was early encountered in the State courts. As to the 
 constitutionality or unconstitutionality of law-making 
 by popular vote in and for the States, always excepting 
 laws for counties, cities and local districts, there is 
 to-day little difference of opinion. The general prin- 
 
 " Supplement to the Public Statutes of Massachusetts^ 1889-1895, 
 Boston, 1897, p. 1389. 
 
 "For this opinion of the Massachusetts Justices, see 160 Mass., Sup- 
 plement, pp. 586 et leq.' 
 
ON STATUTES OF GENERAL OPERATION 209 
 
 ciple that a body acting under delegated authority can- 
 not redelegate its powers to some other person or body, 
 is a well-settled point in American law. Delegata potestas 
 non potest delegari is a rule the virtue of which no one dis- 
 putes. " Where the sovereign power of the State has located 
 the authority there it must remain," says Judge Cooley, 
 " and by the constitutional agency alone, the laws must be 
 made until the constitution itself is changed. The power to 
 whose judgment, wisdom and patriotism this high preroga- 
 tive has been entrusted, cannot relieve itself of the responsi- 
 bility by choosing other agencies upon which the power shall 
 be devolved, nor can it substitute the judgment, wisdom and 
 patriotism of any other body for those to which alone the 
 people have seen fit to confide this sovereign trust." ^* The 
 American courts have again and again reiterated this prin- 
 ciple, and even where they have admitted that there might be 
 exceptions to the general rule, as in the case of local com- 
 munities, the truth of the fundamental doctrine has never 
 been seriously questioned by any one.^° 
 
 ^'Cooley, Constitutional Limitations, p. 137; cf. also the opinion of 
 the Justices of the Supreme Court of Massachusetts, 160 Mass., Supple- 
 ment. 
 
 " The first important case bearing upon this subject in anjf State came 
 to a decision of the Supreme Court of Delaware in 1847, Rice v. Foster, 
 4 Harr. 479, on a local option liquor law, which was declared to be un- 
 constitutional. Other leading cases are the following : Parker v. Com- 
 monwealth, 6 Barr (Penn.) 507 ; Barto v. Himrod, 4 Seld. (N. Y.) 483 ; 
 Thome v. Cramer, 15 Barb. (N. Y.) 112; C. W. & Z. R. R. Co. v. Clin- 
 ton County, I O. S. 77 ; Boyd v. Bryant, 35 Ark. 69 ; Upham v. Super- 
 visors of Sutter County, 8 Cal. 379 ; Ex-Parte Wall, 48 Cal. 279 ; State 
 v. Wilcox, 42 Conn. 364 ; Maize v. The State, 4 Ind. 342 ; Santo v. State, 
 2 Iowa, i6s ; Geebrick v. State, s Iowa, 491 ; State v. Weir, 33 Iowa, 134; 
 Commonwealth v. Weller, 14 Bush. (Ky.) 218; Fell v. State, 42 Md. 
 71 ; People v. Collins, 3 Mich. 343 ; Alcorn v. Hamer, 38 Miss. 652 ; 
 State V. Hayes, 61 N. H. 264; City of Paterson v. Society for Estab- 
 lishing Useful Manufactures, 4 Zab. (N. J.) 385 ; Morgan v. Monmouth 
 Plank Road Co., 2 Dutch. (N. J.) 99 ; Bank of Chenango v. Brown, 26 
 N. Y. 467 ; Gordon v. State, 46 O. S. 607 ; State v. Swisher, 17 Texas, 
 441. These cases are arranged chronologically and by States in Ober- 
 holtzer. The Referendum in America, 1893, and may there be con- 
 veniently referred to. 
 
2IO THE REFERENDUM IN AMERICA 
 
 In six States only have the higher courts given in their 
 opinions on the direct question of the vaUdity of law-making 
 by popular vote, in respect of measures which apply to the 
 whole State. First and foremost is the opinion called out by 
 the New York Free School Law of 1849, which was, as has 
 been observed already, a mere projet de loi, since the elec- 
 tors were to " determine by ballot at an election to be held 
 in November next whether this act shall or not become 
 a law ". The constitutionality of the law was made the text 
 of opinions by the Supreme Court in three separate judicial 
 districts before it reached the Court of Appeals.^" In two of 
 these districts, all the judges concurring and with full 
 benches, the law was declared to beunconstitutional, andof no 
 effect since it was only the draft of an act referred by a body, 
 whose constitutional function it was to pass it definitively 
 itself, to another body which was unknown to the constitution 
 as a law-giver. In the other district where a different con- 
 clusion was arrived at, there was not a full bench, and there 
 was a dissenting opinion.^^ The New York Court of Appeals 
 to which the law came in 1853, delivered a notable opinion ^^ 
 on this subject, establishing a line of argument which has be- 
 come classic in the theory and practice of the United States. 
 Chief Justice Ruggles in the majority opinion said: 
 
 " The exercise of this power by the people is not expressly 
 and in terms prohibited by the Constitution ; but it is forbid- 
 den by necessary and unavoidable implication. The senate 
 and assembly are the only bodies of men clothed with the 
 power of general legislation. They possess the entire power. 
 The people reserved no part of it to themselves excepting 
 ip regard to laws creating public debt, and can therefore exer- 
 cise it in no other case. * * * The legislature had no power 
 to make such submission, nor had the people the power to 
 
 '° In the seventh district, Johnson v. Rich, 9 Barb. 680 ; in the second 
 district Thome v. Cramer, 15 Barb. 112, and in the fifth district Brad- 
 ley V. Baxter, 15 Barb. 122. 
 
 "Johnson v. Rich, 9 Barb. 680. 
 
 ==Barto V. Himrod, 4 Seld. ((N. Y.) 483. 
 
ON STATUTES OF GENERAL OPERATION 211 
 
 bind each other by acting upon it. They voluntarily sur- 
 rendered that power when they adopted the Constitution. 
 The government of the State is democratic; but it is a rep- 
 resentative democracy, and in passing general laws the 
 people act only through their representatives in the legisla- 
 ture." 
 
 The theory was early developed that a representative law- 
 making body could p'ass a law whose going into effect was 
 made conditional upon the happening of a future contingent 
 event, which might perhaps be the vote of a majority of the 
 electors in its favor. Such legislation was pointed to both 
 in the Federal and State practice, and it has since become 
 quite common, especially with respect to municipalities and 
 local communities in which connection it will receive fuller 
 consideration in another part of this work. It is not ques- 
 tioned that a legislature may pass laws for local districts 
 whose going into effect depends upon a contingency, which 
 contingency is frequently a majority vote of the people in 
 favor of the act. This theory was developed in Massachu- 
 setts as early as in 1826.^* But the question here is this, — 
 can the referendum on laws covering the entire State seek 
 and find the same defense? There is no support for this 
 view in Barto v. Himrod, for in this opinion the New York 
 Court of Appeals said : " The event on which the act was made 
 to take effect was nothing else than the vote of the people on 
 the identical question which the Constitution makes it the duty 
 of the legislature itself to decide. The legislature has no 
 power to make a statute dependent on such a contingency, 
 because it would be confiding to others that legislative discre- 
 tion which they are bound to exercise themselves, and which 
 they cannot delegate or commit to any other man or men 
 to be exercised. They have no more authority to refer such 
 a question to the whole people than to an individual. The 
 people are sovereign, but their sovereignty must be exercised 
 in the mode which they have pointed out in the Constitution." 
 
 ''Wales V. Belcher, 3 Pick. 508. 
 
212 THE REFERENDUM IN AMERICA 
 
 Justice Willard in a separate opinion on the same case, in 
 concluding his argument, forcibly said : " If this mode of leg- 
 islation is permitted, and becomes general, it will soon bring 
 to a close the whole system of representative government 
 which has been so justly our pride. The legislature will be- 
 come an irresponsible cabal, too timid to assume the responsi- 
 bility of law-givers, and with just wisdom enough to devise 
 subtile 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." 
 
 In Iowa, in respect of the prohibitory law which was sub- 
 mitted to the people in 1855, the court took up a similar posi- 
 tion. The highest judicial tribunal of that State in its opin- 
 ion respecting this act said : " The General Assembly cannot 
 legally submit to the people the proposition whether an act 
 should become a law or not ; and the people have no power 
 in their primary or individual capacity to make laws. They 
 do this by representatives. There is no doubt of the au- 
 thority of the legislature to pass an act to take effect upon 
 a contingency. But what is a contingency in this sense and 
 connection? It is some event independent of the will of the 
 law-making power as exercised in making the law or some 
 event over which the legislature has no control. * * * 
 The will of the lawmaker is not a contingency in relation to 
 himself. * * * After a bill has passed the two houses 
 and received the approval of the Governor, and thus becomes 
 a law by the constitution, how could a vote of the people 
 affect it? As well might this court submit the decision of 
 these causes to a vote of the people of the State, or of a judi- 
 cial district, or the Governor his pardoning power." "* 
 
 " Santo V. State, 2 Iowa, 165. It is interesting to note in this connec- 
 tion that the court, although declaring the referendum which was pro- 
 vided for in the law, to have been unconstitutional, upheld the constitu- 
 tionality of the law itself. The judges said it was a complete law, and 
 having been regularly passed by the legislature, and signed by the Gov- 
 ernor, they could regard as invalid only that part of it providing for 
 a vote of the people. The question was not referred to popular vote as 
 
ON STATUTES OF GENERAL OPERATION 213 
 
 The singular method of securing a vote of the people on 
 the prohibitory liquor law of Rhode Island, namely by a refer- 
 endum to decide whether or not an act which was complete 
 when it came from the hands of the legislature should be re- 
 pealed, also led to a judicial opinion. The court here said that 
 the Constitution of the State had vested " in the General As- 
 sembly alone composed of the two houses, the power of enact- 
 ing laws ", and the Assembly could not " call to their aid any 
 other body making the existence of a law depend in whole or 
 in part upon the will of such other body." They held, how- 
 ever, that this law could not be objected to on such a ground 
 for the vote was not for or against the enactment, but for 
 or against the repeal of the law, and the referendum was to 
 have no effect unless it should be favorable to repeal. The 
 citizens voted against the repeal of the act, and the court were 
 of opinion therefore that they were not called upon to take 
 a hand in the matter, though the inference was plain that an 
 adverse decision could have been expected in any other 
 case.^' 
 
 In Michigan on the question of the constitutionality , of 
 the referendum upon a prohibitory liquor law, to determine 
 whether the act should take effect in 1853, or not until 1870, 
 the court was equally divided. All the judges concurred in 
 the proposition that the power of enacting general State laws 
 could not be delegated by the representative body, even to 
 the people themselves. One opinion, however, went out from 
 the view that the favorable vote of the people could be the 
 happening of a future event which was a contingency such as 
 might rightly be named by the legislature. The act was com- 
 plete when it left the hands of the legislature. The people 
 were simply to decide when it should go into effect. It was 
 a positive law in any case, for the only question to be de- 
 termined was whether it should come into force on December 
 
 in the case of the New York Free School Law " whether this act shall 
 or not become a law ", in which event the Iowa court lead us to infer 
 that they v/ould have held the whole act to be unconstitutional. 
 *" Brown I/. Copeland, 3 R. I. 33. 
 
214 THE REFERENDUM IN AMERICA 
 
 I, 1853, or March i, 1870. The other opinion was a vigorous 
 denial that the vote of the people which was required by the 
 law could be regarded as a contingency in any proper sense. 
 Laws to take effect upon the happening of a future event 
 must be complete and positive in themselves, when they 
 passed from the hands of the legislature. It was not per- 
 missible that they should become laws at the will of some 
 " foreign or extraneous power ", which has been asked to 
 determine as regards the expediency of the law itself. Such 
 a determination as to the expediency of the legislature's 
 course, the judges in their opinion said, had here been 
 contemplated, and the act therefore, must be held to be un- 
 constitutional. " This act of the legislature," the leading 
 opinion adverse to the law continued, was " a most flagrant 
 violation of the Constitution, and of our representative sys- 
 tem of government " in whose stead now it was proposed 
 that " a collective democracy, the most uncertain and danger- 
 ous of all governments " should be " arbitrarily substitu- 
 ted ".^» 
 
 In Vermont's prohibitory liquor law of 1852, like Michi- 
 gan's, the point submitted to the people was the date upon 
 which the law should become operative. The Supreme Court 
 declared in this case that the form of the law was such that 
 its coming into force did not depend upon the vote of the 
 people. An adverse vote could have only suspended the 
 operation of the law for a few months. It was a positive act 
 with or without the referendum. This court, however, went 
 much farther than any of the other tribunals. They declared 
 that a favorable vote of the people was a good and sufficient 
 contingency for the going into effect of general State laws, 
 as well as laws affecting local districts. No distinction was 
 drawn between laws for the whole State and laws for the 
 localities. There had been such legislation in free states, the 
 court said, for hundreds of years, and as for its being void and 
 irregular, the opinion continued, it was a singular fact that 
 
 " People V. Collins, 3 Mich. 343. 
 
ON STATUTES OF GENERAL OPERATION 21 S 
 
 " the remarkable discovery should first be made in the free 
 representative democracies of America * * * where the 
 legislators are confessedly the mere agents and instruments 
 of the people, to express their sovereign and superior will to 
 save the necessity of assembling the people in mass ", etc.^' 
 This very democratic opinion is probably without its counter- 
 part among all the decisions in the American courts on the 
 subject of the referendum. In its disregard of the legal bar- 
 riers which the " Fathers " established in this country to 
 save the people from the rule of the crowd, it must be held to 
 rank as a very unusual state paper and one laden with very 
 dangerous sentiments. 
 
 A recent judicial opinion in reference to conditional legis- 
 lation of this kind, was delivered in New Hampshire in 188 1, 
 the law of 1879 allowing minority representation in the boards 
 of directors of corporations having come to the court for re- 
 view. Here the judges drew a very plain distinction between 
 the State and the localities. All our experience, and con- 
 siderations of policy as well, tend to vindicate the theory that 
 the contingency of a favorable vote of the people may be 
 the occasion of the taking effect of a law which the State 
 legislature has passed to apply to a county, town or other 
 local district. " In the organization of State government," 
 however, said the court in the New Hampshire opinion, " for 
 reasons by them deemed sufficient, the people vested the su- 
 preme legislative power not in themselves, but in certain 
 agents as a personal trust. * * * They were of opinion 
 that while there might be good reason for granting to mu- 
 nicipalities a limited power of making local law, it was not 
 wise to attempt to carry on the work of State legislation in 
 town meeting. They might have made an effort to overcome 
 one of the difficulties of that method by authorizing a State 
 committee to propose laws, and requiring the Governor to as- 
 certain and proclaim the result of the popular vote in the 
 manner adopted by the act of 1879 They preferred and they 
 
 "State V. Parker, 26 Vt. 357. 
 
2i6 THE REFERENDUM IN AMERICA 
 
 established a representative republic; and they did not con- 
 fer upon the legislature the power of abolishing it, repeal- 
 ing the second article of the Constitution and changing the 
 supreme law-making body into a committee on proposals. 
 That power the legislature would have if they could transfer 
 from themselves to others the responsibility of passing or re- 
 fusing to pass a law of a non-local character. If the power 
 of general legislation could be conveyed by the act of 1879, 
 to those who might be induced to exercise it in town meeting, 
 all laws could be made and repealed in the same way, and the 
 representative character of the government could easily be 
 extinguished." ^' 
 
 Thus in but one State, Vermont, do we find a higher court 
 that has made a declaration in favor of the system of sub- 
 mitting general State laws to popular vote, when the legis- 
 lature is unable to point to a clause in the constitution which 
 specifically authorizes the submission. In Michigan the 
 court was equally divided on the point. The other decisions 
 are against the proceeding. In both Vermont and Michigan, 
 the issue was not quite direct, because of the technicalities 
 which the legislatures had purposely raised to avoid such a 
 result as that one earlier recorded in New York, in reference 
 to the Free School Law. The people were to determine, not 
 whether the bill should become a law, but the mere point of 
 time when it should become effective. The law when it left 
 the legislature, was a positive law in any case; the people 
 v;ere to decide but this single question: whether it should 
 come into force at once, or at some future time, as for in- 
 stance, nearly twenty years hence, which was the alternate 
 date in Michigan. 
 
 Nevertheless these decisions seem to have availed the ref- 
 erendum very little either in Vermont or Michigan. Justice 
 Pratt, in his opinion against the constitutionality of the 
 Michigan law in 1854, alluding to the unfortunate division in 
 the court, and filled with alarm for the future, said : " This 
 
 " State V. Hayes, 61 N. H. 264. 
 
ON STATUTES OF GENERAL OPERATION 217 
 
 sovereign law of our constitutional system of government 
 [the Constitution] says that the legislature shall make the 
 laws for the State; that this and this only is its legitimate 
 business as a distinct branch of the government. But the 
 members of this constitutional body meet and say we will 
 not be governed by the expressed will of the sovereign. 
 * * * A majority of the electors sanction such an unau- 
 thorized proceeding. * * * -pj^g question is taken to the 
 court of last resort, whose duty it is under the Constitution, 
 to determine the question, but the members of that court are 
 unable to agree, being equally divided, so that no affirmative 
 decision upon it can now be made. In view of such a state of 
 things, what is to be the final result and end of this kind of 
 legislation? Our boasted system of representative govern- 
 ment is to be perverted, and a collective democracy the 
 most uncertain and dangerous of all governments to be arbi- 
 trarily substituted in its stead." ^° Even in Vermont where 
 the court was so well convinced that the people could be in- 
 troduced into the system at the legislature's will to accept or 
 reject State laws, the referendum has not enjoyed any marked 
 development. 
 
 The unconstitutionality of laws of this character is a general 
 principle so firmly established throughout the Union to-day, 
 that the legislature prefers not to run the risk of submitting 
 its acts to popular vote. In the case of prohibitory liquor 
 laws, and other legislative questions of a vexatious char- 
 acter, it is a much more feasible plan, as I have noted on 
 earlier pages, to embody the proposal in an amendment to 
 the State constitution. With the liberalization of our ideas 
 in regard to constitutional law, and the simplification of the 
 process by which amendments may be submitted to popular 
 vote, there is little reason now why the legislature should 
 pursue a course that may bring down upon itself the charge 
 of having misunderstood and violated the charter from which 
 it derives its whole authority. 
 
 " People V. Collins, 3 Mich. 368. 
 
CHAPTER IX 
 
 THE LOCAL REFERENDUM — BILLS AFFECTING THE SCOPE AND 
 FORM OF THE LOCAL GOVERNMENTS 
 
 It is in the counties, cities, towns and the other local dis- 
 tricts of the States, by whatever name they may be designated, 
 that the referendum has reached the fullest measure of its 
 development in America. In no other field is it so laborious 
 for the student to assemble the facts, since the laws govern- 
 ing the localities make very large volumes in every State, and 
 they are being changed at each legislative session. Rules 
 of a general , character are observed in each State, however, 
 in the enactment of such legislation, and all the Constitu- 
 tions have more or less to say for the guidance of the legis- 
 latures. Indeed, in many States, and it is a tendency which 
 has become firmly established in our practice, special legis- 
 lation in regard to localities is being prohibited altogether, 
 or the privilege of passing " special laws " is at any rate 
 being very much curtailed. This again is an important re- 
 striction upon the powers of the legislature, which, as we have 
 seen, has been losing on so many sides, and fewer legislative 
 sessions, shorter sessions and smaller volumes of laws are the 
 most natural and not unwelcome result. The great numbers 
 of private acts which earlier burdened the statute books, and 
 which had reference to separate municipalities, — cities, coun- 
 ties, towns, townships, etc., — meant to serve a purpose in 
 single emergencies, have been superseded by " general laws " 
 in most of the States. It is true that there are some important 
 Commonwealths in which " special laws " are still permitted 
 by the Constitution, but the evils which have crept into the 
 legislative halls through this system, especially with the 
 growth and development of great cities, have become so of- 
 
 218 
 
ON BILLS AFFECTING LOCAL GOVERNMENT 219 
 
 fensive that the tendency against such legislation is very 
 marked, even where it is not made entirely impossible by a 
 constitutional prohibition. The lobbying, log-rolling, " jam- 
 ming " and other abuses of even a worse character have come 
 up in the train of the " special law ", and this kind of legisla- 
 tion has been made a mark therefore for the conventions 
 which in many ways in recent years have done so much to 
 give new form to the State governments. 
 
 The " general law " is a law. which is passed by the legis- 
 lature to apply to all the cities, counties or other local dis- 
 tricts of the State, or to certain classes or groups of cities, 
 counties or districts. By this means it becomes very much 
 more difficult for the legislature to pass a law for a single 
 city or other locality, and it would be impossible for it to do 
 so were it always acting in good faith, obedient to the spirit 
 as well as the letter of the constitution. Some of the devices 
 which are employed to evade this constitutional restriction 
 are very clever, and at the same time very amusing. It is 
 usual for the legislatures when they pass their general laws, 
 to divide the counties and cities into a number of " classes ". 
 This course seems to be quite essential, especially in the case 
 of cities, since these unwieldy giants which have come up to 
 confuse and make more difficult the problems of State ad- 
 ministration often have enormous populations. A very large 
 percentage of the whole population of a State may be urban, 
 and in all likelihood one or two cities will have got such a 
 start over rivals in the State, that they will contain as many as 
 a third or fourth part of the inhabitants of the whole Com- 
 monwealth. A city of 1,000,000 inhabitants cannot be gov- 
 erned by the same organic law as a city of 100,000, and the 
 latter will have needs differing in a material way from those 
 of a municipality which has a population of only 10,000. The 
 State legislature therefore creates " classes ", and it not in- 
 frequently happens that there is but a single city in a class. 
 For instance, in Pennsylvania, cities, for purposes of govern- 
 ment, are divided into three classes: the first made up of 
 cities containing a population of 600,000 or more, the second. 
 
220 THE REFERENDUM IN AMERICA 
 
 of cities below 600,000, but not less than 100,000 inhab- 
 itants, the third, of cities having less than 100,000 inhabitants. 
 Now it so happens that Philadelphia is the only city in the 
 State of the first class, and until a rather recent time Pitts- 
 burg was the only city of the second class, so that while os- 
 tensibly engaged in passing a general law, the legislature 
 though not naming them, could unrestrainedly legislate for 
 Philadelphia and Pittsburg, through laws applying to " all 
 cities of the first class ", and " all cities of the second class "} 
 This arrangement of classes has been held to be within the 
 meaning and intent of the Constitution by the highest court 
 in the State.^ Acts dividing the cities of the State into five 
 and seven classes respectively were, however, declared to 
 be unconstitutional, in that it was carrying the classification 
 too far, thus recognizing a " vicious principle " which ought 
 to be " unhesitatingly condemned ".' 
 
 This " vicious principle ", however, has not always been 
 " condemned " in other States. The number of classes has 
 by no means been confined to three, even where the consti- 
 tutional restraints seem quite as rigid as in Pennsylvania, and 
 the intent to evade the constitutional limitation on the part 
 of the legislature quite as deserving of the courts' disappro- 
 bation. For instance, Missouri recognizes four classes of 
 cities, California six, and Ohio no less than seven, and below 
 these villages and hamlets.* In California the counties of the 
 State are divided by the legislature into no less than fifty- 
 three classes." There are only fifty-seven counties in the en- 
 tire State. More than one county could scarcely find mem- 
 bership in the 46th class, for instance, which includes all 
 counties having a population over 4,930, and under 4,980, or 
 in the 33d class of counties having a population in excess of 
 10,030, and less than 10,070, or in the 49th class containing 
 
 ' Pepper & Lewis, Digest of Pennsylvania Laws, Vol. I, p. 553. 
 
 * Wheeler v. Philadelphia, 77 Pa. 34. 
 "Ayars Appeal, 122 Pa. 266. 
 
 * Giauque's Revised Statutes of Ohio, 7th edition, sec. 1546. 
 
 " Statutes and Amendments to the Codes of California, 1893, p. 384. 
 
ON BILLS AFFECTING LOCAL GOVERNMENT 221 
 
 over 3,700 and under 3,780 inhabitants. . In Ohio also a num- 
 ber of laws pretending to be general have been passed, in 
 which trivial differences of population furnish the basis for 
 the classification, as for example, a law of March 29, 1879, 
 which was to apply to all counties having a population at the 
 Federal census next preceding the passage of the act, of not 
 less than 29,130, nor more than 29,135; and another of May 
 14, 1894, containing a reference to all counties having a 
 population of not less than 31,940 nor more than 31,960, and 
 not less than 35,400 nor more than 35,500. There is some- 
 times even greater definiteness in the act : e. g., a direction to 
 the commissioners of " any county in Ohio containing a popu- 
 lation by the last census of 49,974 ".° Again a law of 1895 in 
 Tennessee was made to apply to counties of not less than 
 30,000 nor more than 34,000 inhabitants, to those of a popula- 
 tion of 55,000 and over, and to such adjoining counties as 
 might have inhabitants numbering 35,100 or over.'' Such in- 
 genious attempts to enact special laws despite constitutional 
 prohibitions have several times reached the courts, and have 
 called forth unfavorable opinions from the judiciary.' 
 
 Again efforts have been made to introduce geographical 
 distinctions in making up the classes, as in Pennsylvania, 
 where a few years ago a law was passed to apply to " all 
 counties in this Commonwealth where there is a population of 
 more than 60,000 inhabitants, and in which there shall be any 
 city incorporated at the time of the passage of this act with a 
 population exceeding 8,000 inhabitants, situate at a distance 
 from the county seat of more than twenty-seven miles by the 
 usually travelled public road ".° This covert designation of 
 Crawford County and the city of Titusville, the Pennsylvania 
 Supreme Court likewise declared to be an unconstitutional 
 device and the judges offered the interesting opinion that 
 
 'Giauque, op. cit., sec. 2107-7. 
 'Acts of Tennessee, 1895, pp. 380-81. 
 
 'See 21 O. S., i; 36 O. S., 481; 53 O. S., 94; S4 O. S., 470; 96 
 Tenn., 696. 
 "Act of Apr. 18, 1878, Pennsylvania Laws, p. 29. 
 
222 THE REFERENDUM IN AMERICA 
 
 there could be no proper classification of cities or counties, 
 except upon the basis of population.^" 
 
 In addition to the important restriction upon the power of 
 the legislatures, which is conveyed in this prohibition of 
 special legislation, there are other prohibitions materially 
 limiting these bodies in this field of their activity, with respect 
 to local communities. The conventions, in their desire to 
 safeguard local interests, and insure local governments 
 against too much legislative interference have conferred upon 
 the counties, cities, etc., a considerable amount of authority, 
 which they are to exercise directly and independently. The 
 agencies of local government within the State therefore act 
 under the Constitution, to a certain degree without the media- 
 tion of the legislature. They can point to the Constitution 
 as the charter from which their powers are directly derived. 
 In those respects, therefore, in which the conventions have 
 laid down definite rules for the local districts, the legislature 
 can act only in a supplementary way. It can still legislate, 
 if not forbidden to do so, but only in filling out the framework 
 which has been set up by the convention, and in. passing laws 
 which are necessary to a proper carrying out of the conven- 
 tion's will. 
 
 In several States indeed there are tendencies at work to free 
 the localities almost altogether from the legislature's au- 
 thority, and to make them separate and self-governing, to a 
 degree never before suggested or contemplated. In four 
 States such a result has been arrived at, with respect to cities, 
 in that they may frame their own charters, — namely, Mis- 
 souri, California, Washington and Minnesota. They are 
 thus created almost independent Commonwealths within the 
 Commonwealth, so to speak, subject, of course, to the general 
 supervision of the State in administrative and judicial matters. 
 The city is empowered to elect its own " Board of Free- 
 holders ", which acts like a constitutional convention. It 
 frames a charter, submits it to the people of the city, and the 
 
 "Commonwealth v. Patton, 88 Pa. 258. 
 
ON BILLS AFFECTING LOCAL GOVERNMENT 223 
 
 legislature's influence over the city's affairs, by this means, is 
 confined within very narrow bounds. It was even proposed 
 in California a few years ago to extend a similar privilege 
 to counties, thus introducing a new principle into another im- 
 portant field of local government. There is risk to-day, in- 
 deed, in view of recent developments in several States of 
 losing sight of the fundamental fact that the municipal and 
 local governments have stood, and in the nature of the case, 
 must certainly continue to stand in very close relation to the 
 State legislature. 
 
 The system of local administration in this country, rural 
 and urban, is a very difficult one for any but the careful stu- 
 dent clearly to understand. There are different methods of 
 dividing and subdividing the burden and the responsibility 
 of local management in the different States. There are dif- 
 ferent units, some larger and some smaller, the result of an 
 historical development. Some bear one name and some an- 
 other, though systematization, taking the Union as a whole, 
 is not at all impossible. Our whole scheme of local govern- 
 ment rests on the idea that by an administration of affairs 
 in local districts, through officers locally chosen, public func- 
 tions can be exercised to better advantage, and with more hope 
 of the people's acquiescing in the result, than if all power 
 emanated from some distant central authority.^^ The power 
 of the law-making agents of the State, the convention and the 
 legislature, over these municipal corporations and local dis- 
 tricts is very great, both theoretically and in actual fact. 
 They are " derivative creations " of the State.^^ There is 
 no limitation upon the power of the legislature in respect of 
 these corporations, except as it is found in the Federal or 
 State Constitutions, though to the latter, as I have already 
 indicated, a considerable number of restraints can now be 
 traced. The legislature in the natural course of things, not 
 only creates, but it can also alter or abolish the local govern- 
 ment, except of course and always as it is limited in the exer- 
 
 " Dillon, Municipal Corporations, 4th ed., 1890, Vol. I, p. 29. 
 "Ibid., p. SS- 
 
2 24 THE REFERENDUM IN AMERICA 
 
 cise of its prerogative by the constitution. But as a result of 
 different influences, chief of them being the convention, the 
 local governmental districts are plainly gaining larger liber- 
 ties. To an extent that was scarcely intended even by those 
 v^fho framed our very liberal system of local government, 
 the communities are coming to be more free from the State 
 capitals, and especially from the State legislatures. Grad- 
 ually political power and influence are being more and more 
 distributed. In other words, we are living in the presence 
 of a movement whose leading characteristic is greater political 
 decentralization. The convention looking about for agents 
 it could trust, has given greater powers to these local corpora- 
 tions, and thus has pressed in upon the legislature from still 
 another side. 
 
 While we before had in this country what we named local 
 self-government, in distinction to some forms abroad which 
 have been evolved as a part of a highly centralized system, 
 we seem to be extending this idea, enlarging our notions in 
 this regard, and making the corporations freer still. Es- 
 pecially marked is the tendency to emancipate large cities from 
 the legislatures as the result of a movement toward what has 
 been popularly called " Home Rule ", and we have the re- 
 markable manifestation, therefore, of municipalities govern- 
 ing themselves, not under charters granted them by the legis- 
 latures, but framed by committees of their own citizens, and 
 adopted by their own citizens by plebiscite, under authority 
 derived from a rival law-making body, the constitutional con- 
 vention. 
 
 There are in this country, as Mr. Bryce has so clearly ex- 
 plained, three general systems of local, government. He has 
 called these the town system, the county system and the mixed 
 system, the latter being one in which neither the town, nor the 
 county is of preponderating influence, though both units are 
 at hand. In New England, the town, of course, forms the 
 basis for all local government, and although there are counties 
 also, these are only loose aggregations of towns. It is in the 
 latter that political interest centers, and they can trace their 
 
ON BILLS AFFECTING LOCAL GOVERNMENT 225 
 
 history back to a time wlien a central colonial or State gov- 
 ernment had not yet been developed. The primary assembly 
 of citizens still meets in each town to legislate upon questions 
 of common importance. In the South, as a development from 
 the plantation system, the county, called in Louisiana the 
 parish, is the predominating unit in local government, while 
 in the central belt of States, the county and town or township, 
 which exist side by side, are contending for the mastery so 
 hotly, that it is difficult to say whether the larger or the 
 smaller area will gain the victory. In those parts of the West 
 where settlers from New England have established them- 
 selves, they have taken with them a love for the town and its 
 mass meeting of citizens, though in many other sections the 
 county, in view of the thinness of the population, and the 
 general disadvantages attending many governments where 
 one would just as well serve the people's few needs, is in the 
 ascendency. 
 
 Existing side by side with these various forms, and coinci- 
 dent in some cases with them, are the municipal corporations, 
 the cities of various classes and grades, the boroughs, villages, 
 incorporated towns and hamlets, which act under charters of 
 more specific derivation. Usually when a certain area is in- 
 corporated, it combines in its new government, with whatever 
 new powers it may have obtained, those formerly exercised 
 over this district by the township. The township govern- 
 ment, therefore, in respect of this territory, ceases to exist, and 
 the village, borough or whatever its name, takes its place. 
 The relations of the new incorporation to the county, how- 
 ever, continue as before. With respect to larger cities, they 
 not infrequently attain such size that they occupy entire 
 counties, or are created into separate counties. Thus the 
 boundaries of not a few of our great municipalities are co- 
 terminous with the counties in which they are situated, the 
 city and county administration being carried on in such a way 
 that to the ordinary citizen the point at which one ceases to 
 act and the other enters upon the fulfillment of its duties, is 
 not readily to be distinguished. 
 
2 26 THE REFERENDUM IN AMERICA 
 
 There are, too, other local districts which have been organ- 
 ized to serve some specific purpose, and which exercise quasi 
 corporate power. One of the most common forms is the 
 school district, a territorial area sometimes coincident with the 
 town or township, though more often having different bound- 
 aries. This exists as its name implies, to further the system 
 of public education, enabling the people to tax and bond them- 
 selves for school purposes. There are likewise " irrigation 
 districts " in arid regions, " sanitary districts " in swampy 
 lands, " levee districts " in States bordering on rivers which 
 overflow their banks, — notably the Mississippi, " road dis- 
 tricts " where it is a question of extending and improving 
 highways, " park districts ", " fire districts ", " fencing dis- 
 tricts ", etc. 
 
 It is a fact, then, beyond dispute, that the legislature 
 has very large and indeed almost unlimited powers 
 over municipal corporations, and the quasi corporations, such 
 as counties, townships, school districts, etc., except as this 
 power is in words withheld from it, or it is restricted in the 
 exercise of its functions by the constitution. The State has 
 created the local governments, and the State acting through 
 its two law-making bodies, the legislature and the convention, 
 is responsible for the general conduct and management of the 
 local corporations. They may be self-governing to a larger or 
 a less extent, according as to the terms of the bill or charter 
 from which their authority is derived. Some are self-govern- 
 ing by title drawn from the legislature, some point to the con- 
 vention as the source of their extensive powers. It is here 
 our special task to indicate to what degree the people have 
 been brought in, by one or the other or both of these bodies, 
 and have become their own law-makers in the various local 
 communities of the United States. 
 
 In the first place, as we shall later see. the distinction which 
 was drawn in the State is valueless in the city, the county and 
 the local district. While in the State, the legislature must 
 point to the constitution if it desires to submit a law to the 
 people, and make its passage depend upon their acceptance 
 
ON BILLS AFFECTING LOCAL GOVERNMENT 227 
 
 of the act, in the matter of laws for the locaHties, the legis- 
 lature has original authority by reason of its comprehensive 
 powers over the corporations which it creates. There are 
 not a few instances in which law-making by popular vote in 
 the local districts is provided for in the State Constitutions, 
 but the legislature can employ the referendum without such 
 definite authorization. The practice of many years en- 
 trenches us in this view, the judiciary has generally given its 
 acquiescence and support to this steadily developing tendency, 
 and the only distinction to be observed in this connection is 
 this, — ^that while a legislature must submit a question of local 
 government to vote of the people when enjoined so to do by 
 the constitution, it can in other cases in which the constitution 
 is silent, act at its own sole discretion. In what classes of 
 subjects, and to what degree legislation by the people has se- 
 cured a foothold in this department of American law, will 
 now be explained. 
 
 In the States, as we have noted, three general classes of 
 subjects have become topics for a direct vote of the people: — 
 First, subjects pertaining to the form, the scope and 
 jurisdiction of the State governments, as in the referenda on 
 the question of calling a constitutional convention, on new 
 constitutions, on the change of State boundaries, and the lo- 
 cation of State capitals; second, subjects having to do with 
 debt, taxation and finance; third, subjects of a vexatious 
 character upon which the people are likely violently to dis- 
 agree, as the regulation or prohibition of the trade in intoxi- 
 cating liquors, the extension of the suffrage, etc. This classi- 
 fication may be conveniently carried down into the local dis- 
 tricts, and we come first to that large group of subjects which 
 have a bearing upon the character, form and jurisdiction of 
 the local governments. 
 
 It will conduce to a more intelligible result if this class be 
 divided into four separate sub-classes of referenda which will 
 be found to relate to the following matters : 
 
 (i) The determination of the area of the local political 
 districts, their boundaries, etc. 
 
2 28 THE REFERENDUM IN AMERICA 
 
 (2) The selection of county seats and sites for court- 
 houses, city halls and other public buildings. 
 
 (3) The selection of a corporate name. 
 
 (4) The choice of a city charter or local government act, 
 and the determination of the particular leg^ form which the 
 government shall take. 
 
 We have (i), therefore, referenda to deterrfiifie local ter- 
 ritorial and boundary questions. In this ^l^sllfere is in the 
 first place a vote of the people in the matter- o^'ftSf ming a new 
 county, or of changing the boundaries of counties already 
 organized. Just as the people of the District of Maine were 
 allowed in 1819 to decide for themselves whether or not they 
 should organize a separate State and part company with 
 Massachusetts, so it is usual for the people of the principal 
 district into which the State is divided for purposes of local 
 administration, — i. e., the county, to determine the question 
 of cutting loose from an older county, and of leading a sep- 
 arate life. In many of the newer States of the West, the or- 
 ganization of new counties takes place very frequently. As 
 the inhabitants increase in number, the counties already in 
 existence are found to be inconveniently large, and it appears 
 desirable and expedient to reduce the liinits of the political 
 districts, and thus consolidate the work of local adminis- 
 tration. 
 
 Sometimes the change of boundaries is not so thorough- 
 going. A separate county is not created, but a part of one 
 county is stricken off, and is added to another county. This 
 referendum, like many that are to follow, had its birth in 
 special acts of the legislature passed to meet specific needs 
 in individual districts. It then came to be a subject for 
 general laws, a uniform process being prescribed in all parts 
 of the State when it was desired to form new counties, and 
 alter the boundaries of old ones. More recently the consti- 
 tutional conventions have taken hold of the question, and as 
 if \o put it securely into the State practice and prevent any 
 failure by the legislature, the Constitutions of twenty States 
 to-day require this referendum, viz: Arkansas, Colorado, 
 
ON BILLS AFFECTING LOCAL GOVERNMENT 229 
 
 Idaho, Illinois, Kentucky, Louisiana, Maryland, Minnesota, 
 Mississippi, Missouri, Nebraska, North Dakota, Ohio, South 
 Carolina, South Dakota, Tennessee, Texas, Utah, West 
 Virginia and Wyoming.^^ It is usual to consult not only the 
 people of the district which is to be created into the new 
 county, or the people of the old county which is to receive the 
 new territory, as the case may be, but also the citizens of that 
 county from which it is proposed that the territory shall be 
 taken away. This rule, however, is not always observed. 
 Often only the qualified electors residing within the limits of 
 the immediate district to be transferred, participate in the ref- 
 erendum. 
 
 Again, when it is a question of abolishing a county govern- 
 ment, and merging or consolidating it with another, the oc- 
 casion is frequently held to call for a vote of the people, and 
 this plebiscite, in several States, is guaranteed by the Consti- 
 tutions. Definite rules are often established by these instru- 
 ments for the guidance of the legislatures in their w.ork of 
 organizing new counties, and in moving county lines. It is 
 sometimes prescribed, for instance, with a view to preventing 
 the people from making too free use of this privilege, that 
 there shall be no, changes which will reduce a county's popu- 
 lation below a certain limit or its area below a certain num- 
 ber of square miles.^* 
 
 In municipal corporations, townships and other local dis- 
 tricts which are of smaller size than the county, the citizens 
 at large often have a voice in deciding territorial questions. 
 In practically all parts of the Union, it is usual to consult 
 
 "A single reference may perhaps suffice. The Constitution of Ne- 
 braska of 1875, art. X, sees. 2 and 3, says : " No county shall be divided 
 or have any part stricken therefrom, without first submitting the ques- 
 tion to a vote of the people of the county, nor unless a majority of all 
 the legal voters of the county voting on the question shall vote for 
 the same. There shall be no territory stricken from any organized 
 county, unless a majority of the voters living in such territory shall 
 petition for such division, and no territory shall be added to any or- 
 ganized county without the consent of the majority of the voters of the 
 county to which it is proposed to be added." 
 
 " Cf . Constitution of South Carolina, art. vii, sees. 3 et seq. 
 
230 THE REFERENDUM IN AMERICA 
 
 their wishes when the people inhabiting any definite area are 
 to be incorporated for purposes of government. Thus, at the 
 beginning of the Hfe of the municipality the people may de- 
 cide what the scope of the corporate powers shall be, and from 
 the hamlet or village upward to the largest city, the refer- 
 endum finds its application. 
 
 When fresh territory is to be added to the district, a vote 
 of the people is very common. When one municipal corpora- 
 tion is to be united with another, it is the almost universal 
 rule to consult directly with the people of the districts which 
 are to be parties to the merger, if not of both municipalities, 
 at any rate of the smaller, whose individuality is likely thus to 
 be swallowed up. We have, therefore, the referenda upon the 
 annexation of one area to another, the extension or reduction 
 of corporate limits and the like, which are provided for in the 
 statutes on local government in nearly all the States. Local- 
 ities which have once been consolidated may be separated 
 again, upon vote of the people. Having once received a 
 charter of organization, the people of a municipal district 
 may decide whether it shall be surrendered. They may vote 
 to remit certain portions of the municipal area to the county. 
 
 Irrigation, sanitary and other local districts organized to 
 carry on local improvements are created, their boundaries are 
 changed, and they are disorganized again by direct vote of 
 the people." New school districts are organized and two or 
 more districts are united by vote of the citizens, sometimes 
 both male and female, in States which have school suffrage 
 for women. In Wyoming^^ and South Carolina^' the Con- 
 stitutions specifically provide that no city or town shall be 
 organized as a corporation, without the consent of its inhabi- 
 tants. The boundaries of " judicial districts " (subdivisions 
 of a county) in Mississippi^' may be changed only after a 
 referendum. The subdivision of townships is often made a 
 
 " California and Idaho afiford a number of statutes in point. 
 '° Constitution of 1889, art. xiii, sec. :c. 
 " Constitution of 1895, art. viii, sec. 2. 
 ^' Constitution of 1890, art. xiv, sec. 260. 
 
ON BILLS AFFECTING LOCAL GOVERNMENT 23' 
 
 subject for popular vote/' and wards in cities are sometimes 
 divided and new wards are created in the same way.^° In 
 Indiana, oddly enough, the people of the entire city rather 
 than of the single ward to be divided, determine the question 
 of the establishment of a new ward." Coming down to po- 
 litical districts still smaller in size, we find that the people vote 
 by referendum in Ohio for the consolidation of the precincts 
 of a township.^^ So general, indeed, is this local plebiscite 
 in its various forms that it may now be regarded as a neces- 
 sary part of the American system of local government, 
 though, of course, since the legislature is in possession of 
 unlimited powers over the local corporations, except as it is 
 restrained by the State constitution, it may usually confer this 
 privilege upon the people or withdraw it from them again 
 at its own pleasure. 
 
 (2) The people of local districts very generally enjoy the 
 right to decide at what point the local government shall be ad- 
 ministered. Thus the unpleasant question of' a choice of site 
 for the county capital is often referred to the people. There 
 are local rivalries and jealousies which might react to the dis- 
 advantage of the members of the legislature, when they 
 sought a re-election, if they should undertake to decide such a 
 matter on their own responsibility, and they are usually well 
 satisfied in this case to make over their functions as the law- 
 makers to some other agent. As the electors of the State are 
 frequently asked to select a site for the State capitol buildings, 
 so the electors of the counties have come to be looked upon 
 as the proper authority to make a choice of county seats. 
 This referendum has become so firmly established in the 
 American practice, that the Constitutions of twenty-two 
 States now contain guarantees on this subject, as follows: 
 Arkansas, California, Colorado, Georgia, Idaho, Illinois, ICan- 
 
 " Cf. Pennsylvania Laws of 1857, p. 93 ; ibid., 1879, p. 52 ; Revised 
 Statutes of Missouri, 1889, p. 1954. 
 
 " Pennsylvania Laws of 1874, p. 230 ; ibid., 1889, p. 277. 
 
 " Horner's Indiana Statutes, 1896, sec. 3038. 
 
 "Revised Statutes of Ohio, 7th ed., 1896, sees. 1398 et seq. 
 
232 THE REFERENDUM IN AMERICA 
 
 sas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, 
 Missouri, Montana, Ohio, South Carolina, South Dakota, 
 Tennessee, Texas, Utah, Washington and Wisconsin. The 
 Constitution of Louisiana of 1898, so recently adopted, says 
 upon this point : " All laws changing parish [county] lines, 
 or removing parish seats, shall before taking effect, be sub- 
 mitted to the electors of the parish or parishes to be affected 
 thereby, at a special election held for that purpose, and the 
 lines or the parish seat shall remain unchanged unless two- 
 thirds of the qualified electors of the parish or parishes af- 
 fected thereby vote in favor thereof at such election." ''* 
 Even in States in which the vote is not made obligatory by 
 constitution the legislatures usually submit county seat ques- 
 tions to the people, and this referendum is now very familiar 
 everywhere. 
 
 In order to minimize the ill effects of too frequent change, 
 devices of different kinds are employed. Thus it is often 
 specified that when the seat of government has once been lo- 
 cated, the question shall not be referred to the people again 
 for a definite number of years. This period may be four 
 years or five years or ten years or even twenty-five years 
 (Indiana) . If the county buildings are of considerable value, 
 checks of other kinds are often introduced as a means of pre- 
 venting a removal of the capital to another town, where new 
 buildings would have to be erected at the taxpayers' expense. 
 The tendency in recent years, as will be explained in my 
 chapter devoted to the Initiative, has been wholly in the direc- 
 tion of restricting the people in the exercise of this privilege. 
 In new communities, the desire of those persons residing in 
 some particular locality to get the seat of government which 
 they believe will enhance the importance of their town, is so 
 great that unless restraint were put upon the people, these 
 county seat contests would be engaging the electors' attention 
 almost constantly. Such restrictions, it is fair to say, how- 
 ever, have been introduced to counteract the very democratic 
 
 " Constitution of Louisiana, art. 278. 
 
ON BILLS AFFECTING LOCAL GOVERNMENT 233 
 
 influence of the initiative rather than of the referendum. So 
 much bitterness has been engendered in the Western States 
 in the struggle for county capitals, that rioting and bloodshed 
 have sometimes been brought into the argument, when words 
 were exhausted, and the whole subject affords chapters which 
 are not very creditable parts of the history of the progress of 
 democratic government in the United States. 
 
 As in the counties, so in other local districts, corporate and 
 ^Mojj-corporate, the choice of the sites of public buildings is 
 a question which is often referred to popular vote. In Phil- 
 adelphia, for instance, when it was desired that a site should 
 be designated for a city hall, which it was proposed to erect, 
 the legislature submitted the question to the people of the 
 city.^* That site receiving a majority of the whole number 
 of votes cast was to be selected. The choice lay between 
 " Penn Square " and " Washington Square ", and it may be 
 of interest to note that the total number of persons voting was 
 84,450, Penn Square receiving 51,625 votes, and Washington 
 Square 32,825. The total vote for Governor in Philadelphia 
 in 1872 was about 118,000, so it is seen that a question of this 
 kind is sometimes capable of arousing a great deal of local 
 interest, as more than 70 per cent, of all the electors voting for 
 Governor in 1872, had voted for the city hall proposition in 
 1870. 
 
 In Kansas, in reference to cities of the first and second 
 classes, which are county seats, there is a general law re- 
 quiring that a proposed change of a court house site from one 
 part of the city to another, shall be submitted to popular 
 vote.^° An election was held in a Pennsylvania township 
 in 1877, to determine upon a site for a poor house,'"' and in 
 Illinois the people of townships vote to change the place of 
 holding their town meetings,^' a matter which of course 
 would be decided by the people anyhow, in all local dis- 
 
 ^ Pennsylvania Laws, 1870, p. 677. 
 
 *" Webb's General Statutes of Kansas, 1897, chapter 27, sec. 2a. 
 
 '"Laws of 1877, p. 40- 
 
 " Starr and Curtis' Annotated Statutes of Illinois, 1896, p. 209. 
 
234 THE REFERENDUM IN AMERICA 
 
 tricts where they still retain their primary assemblies, in com- 
 mon with other questions affecting the local government. 
 
 (3) In local communities there is sometimes a referendum 
 to select a corporate name. Thus in Idaho, by a law of 1891, 
 the name of any town, village or city in the State may be 
 changed only upon a two-thirds majority vote of the electors 
 of the particular district concerned. A special election on 
 this subject must be called upon the presentation to the proper 
 authorities of a petition, signed by a majority of the legal 
 voters of the town, village or city, as the case may be.^^ 
 
 A somewhat similar provision respecting the change of 
 name of local districts is found in the laws of Iowa.''° In 
 Iowa towns the ballots read as follows : " Shall the propo- 
 sition to change the name of to be adopted ? " the 
 
 people voting " yes " or " no ".'" In Kansas also the people 
 may vote upon proposals to change the name of any town, vil- 
 lage, city or township,'^ and in Minnesota the electors of 
 cities and villages possess this privilege. ^^ These are inter- 
 esting instances of the people's direct participation in a kind 
 of law-making which must have a sentimental rather than 
 any real or practical interest for them. 
 
 (4) Again the people of local districts often decide as to 
 the legal form and character of the government under which 
 they are to live, once more, of course, only in so far as the 
 convention or the legislature accords this privilege to them. 
 The most complete and thoroughgoing resignation of func- 
 tions to the whole body of electors in the local communities 
 is met with in the submission to popular vote of city charters 
 and local government acts. There are, for example, refer- 
 enda on " special " acts of incorporation, that is, on acts ap- 
 plying to separate single designated cities where this kind of 
 
 ^* Laws of Idaho, 1890-gi, p. 127. 
 
 ™ Cf. Annotated Code of the State of Iowa, 1897, sees. 461 and 580. 
 
 ^° Ibid.^ sees. 628-629. 
 
 '' Webb's General Statutes of Kansas, 1897, eh. 125, sec. 3. 
 
 "^Laws of Minnesota, 189s, pp. 16 and 641 ; ibid., 1897, P- 510; cf. also 
 Laws of New York, 1897, p. 454 ; Public Laws of North Carolina, 1895, 
 p. 41, and Compiled Laws of Utah, 1888, Vol. I, p. 314. 
 
ON BILLS AFFECTING LOCAL GOVERNMENT 23S 
 
 legislation is still permitted by the State constitution. In 
 States having " general " laws, the people of municipalities 
 decide whether they shall give up a town, village or borough 
 government, and adopt city government, or abandon a special 
 charter under which they have previously acted, and come 
 under the general law ; they may decide too when they have 
 once been incorporated under the general law whether they 
 shall advance or reduce their grade, and enter a new class, 
 thus securing a charter which may perhaps be better adapted 
 to local needs. In some States, as Missouri, California, 
 Washington and Minnesota, there is finally an almost com- 
 plete surrender of the charter-making power to the cities, the 
 people thereof voting to approve or reject the charter, the 
 frame of which their own delegates have prepared. In Cali- 
 fornia, it was lately proposed to give the people of counties 
 similar rights with respect to the framing of their county gov- 
 ernment acts,^' a measure which, had it become a part of the 
 State Constitution, would have marked a new and sweeping 
 development in the annals of local government in the United 
 States. This reform would have rendered each county in 
 the State of California, as well as each city containing a pop- 
 ulation of more than 3,500, in a measure self-governing, and 
 free from the legislature's control. 
 
 Since it illustrates an important phase of American political 
 development, and is a contribution to the great number of 
 panaceas which have been suggested as a cure for the singular 
 maladies afflicting the government of cities in the United 
 States the referendum on city charters is entitled to and will 
 receive separate treatment in a subsequent chapter of this 
 book." 
 
 It is the custom too for many legislatures to submit various 
 kinds of bills which ostensibly or disguisedly amend city 
 charters and the established systems of local government. 
 These are mostly presented as " special laws ", or as laws 
 
 "■ Statutes of California, 1897, p. 641. 
 "Infra, chap. 14. 
 
236 THE REFERENDUM IN AMERICA 
 
 which if nominally " general '' are essentially special in their 
 effect. They are of many different outward types. There 
 are " alternate " laws, the people of a city or county selecting 
 one or the other as they may prefer, and " local option " laws 
 which are " general " for all the localities, but which come 
 into effect only in such districts as may by popular vote agree 
 to adopt them. Many of these laws will appear in our subse- 
 quent classifications, but others, because of the subject matter 
 of which they treat, must be alluded to in this place. 
 
 The recent practice in New Jersey furnishes some notable 
 illustrations. We have, for instance, the act of 1886, con- 
 cerning cities'" which fixes the terms of office of the mayor 
 and the members of the city council, develops the mayor's 
 powers and prescribes his duties in respect of ordinances and 
 resolutions, selects a day for the holding of municipal elec- 
 tions, etc. This is clearly not a regular charter or act of in- 
 corporation though it is in effect an act amending a charter. 
 It is to be forceful in no city until it is submitted to the people 
 thereof, and they shall vote to accept it. By a law passed 
 by the legislature of New Jersey in 1885, a proposition to 
 place the public schools of cities in charge of a " board of 
 education ", which should be newly created and take the place 
 of an older administrative body, was referred to the people. 
 " The board of aldermen or common council " might " submit 
 the question of the acceptance or rejection of the act " to the 
 voters of any city which should express a desire to avail itself 
 of this privilege.'* The question of " removing " the fire 
 and police departments of the cities of New Jersey from 
 " political control " by the creation of boards of commission- 
 ers to be nominated by the mayor, thus materially modifying 
 the scheme of government in those municipalities voting to 
 adopt this policy was left to the arbitrament of the people by 
 a law which passed the legislature of that State in 1885.'' 
 
 Laws of this kind, many of them comprehensive enough to 
 
 *" General Statutes of New Jersey, 1896, p. 575 ; P. L. 1886, p. 361. 
 '" General Statutes of New Jersey, p. 3083. 
 '"Ibid., p. 1551. 
 
ON BILLS AFFECTING LOCAL GOVERNMENT 237 
 
 serve as entire charters, some being financial proposals of un- 
 certain worth, for which the members of the legislature are 
 not desirous of assuming the responsibility, and others mere 
 acts arranging alternate systems of government and admin- 
 istration, abound in the statute books of New Jersey. Such 
 confusion exists in the public corporation law of no other 
 State, and there are conditional acts it would seem to meet 
 almost any conceivable need, which may arise in any town 
 or city in the Commonwealth. 
 
 In Illinois by an act passed in 1895, the people of any city 
 in the State may adopt the provisions of a general law regu- 
 lating and reforming the civil service. In the submission of 
 this law the legislature probably had a mixture of motives.^' 
 There ought to have been, in the first instance, no question 
 about the desirability of such a law, but as it was a reform 
 of which some classes of American politicians seem not to be 
 fond, as it involved some outlay in salaries for certain admin- 
 istrative officers (civil service commissioners) and as it al- 
 tered the city charters, it was passed in a conditional form. 
 
 In Iowa the people may vote upon the proposition to in- 
 crease the number of " supervisors ", as the members of a 
 county administrative board are called, from three to five or 
 seven members. Later the number may be reduced again 
 to five or to three, as the voters may elect.'" Somewhat sim- 
 ilar privileges are enjoyed by the people of the counties of 
 Nebraska,*" and of North Dakota.*^ In certain local districts 
 of Ohio, the electors may determine whether the number of 
 members of the " board of education " shall be increased from 
 three to six, the ballots containing the words " Board — 
 Change " and " Board— No Change ".*^ 
 
 Although it is .rarely that laws bearing upon the important 
 
 ^ Starr and Curtis' Annotated Statutes of Illinois, 2nd ed., 1896, p. 
 826. 
 
 ^Annotated Code of the State of Iowa, 1897, p. 221. 
 " Compiled Statutes of Nebraska, 8th ed., 1897, p. 430. 
 *^ Revised Codes of North Dakota, 1895, sec. 1892. 
 *^ Revised Statutes of Ohio, 7th ed., 1896, sec. 391 1. 
 
238 THE REFERENDUM IN AMERICA 
 
 subject of the administration of justice are passed in a con- 
 ditional form, a few points as to the organization of the 
 courts are sometimes left to the determination of the people. 
 Thus in South Carolina, county courts are established upon 
 popular vote in the counties,*^ and in West Virginia with the 
 assent of a majority of the voters of a county, the county 
 court may be abolished, and may be replaced by another tri- 
 bunal.** In any city of more than 7,000 inhabitants, in Iowa, 
 a " superior court " may be established to take the place of the 
 " police court ".*° The court so created may be abolished 
 again by direct vote of the people.*" 
 
 A law of 1892, in Kentucky, gives the people of counties' 
 a choice as to the character of the county governing board. 
 They may have a " fiscal court " composed of the judge of the 
 county court, and the justices of the peace ofthe county, or 
 a " fiscal court " composed of three commissioners elected 
 scrutin de liste for the whole county for their special task, to- 
 gether with the county judge. A majority of the votes cast 
 upon the question are decisive, and the election on this sub- 
 ject in any county shall not be held oftener than once in every 
 eight years.*^ 
 
 In any town in Massachusetts, containing at least 12,000 
 inhabitants, which may desire to adopt a city government, the 
 people may determine whether the city legislature shall have 
 one chamber or two, and the terms for which the members 
 thereof, and the mayor, shall continue in office.** In cities 
 of Illinois, the question of " minority representation " in the 
 city council is referred to popular vote.*" In Missouri cities 
 of the second class, with the approval of the people, may es- 
 tablish boards of public works, which as their name would 
 
 " Constitution of South Carolina, art. v, sec. i. . 
 " Constitution of 1872, art. viii, sec. 34. 
 *" Code of Iowa, p. 171. 
 *' Ibid., p. 174. 
 
 " Kentucky Statutes, 1894, p. 687. 
 
 "Supplement to the Public Statutes of Massachusetts, 1889, iSgSi 
 p. 623. 
 
 "Annotated Statutes of Illinois, p. 687. 
 
ON BILLS AFFECTING LOCAL GOVERNMENT 239 
 
 imply, are to exercise control over the various public works 
 and buildings within the city limits. These boards may be 
 abolished again on vote of the people in which case the en- 
 terprises under their care revert to other administrative 
 agents.^" 
 
 The electors are sometimes given a hand too in matters 
 pertaining to local administration by the system of " alternate 
 laws ". This kind of conditional legislation is well illus- 
 trated in West Virginia in several acts on the subject of roads. 
 In that State the legislature has definitely prescribed a method 
 by which in the usual course of things, highway affairs are 
 locally regulated. In addition, however, there are as many 
 as three alternate methods provided for, in the laws of 1872- 
 73, 1881, and 1891, respectively, which may be adopted in any 
 county or district in the State when the people thereof vote 
 in favor of the change. Having once accepted the provisions 
 of the alternate law, the electors if they desire, may later vote 
 to discontinue the new system of administration.^^ In Michi- 
 gan the voters decide whether the county or the township 
 shall take charge of the roads,^^ and in Minnesota and in some 
 other States, the people determine whether the county or 
 the town shall care for the poor."' Several other questions 
 having to do more or less directly with the form and char- 
 acter of the local governments are sometimes referred to 
 popular vote, and thus the whole body of citizens put their 
 direct impress upon the legal system by which their common 
 affairs are regulated. 
 
 In many States it is a matter for the people themselves to 
 determine whether or not counties shall be subdivided and or- 
 ganized into townships, and once organized, whether they 
 shall be disorganized again. Mr. Bryce regards this referen- 
 dum as one of the results of the conflict between the county 
 
 °° Laws of Missouri, 1891, p. $2. 
 
 '^Code of West Virginia, 3rd ed., 1891, pp. 338 et seq. 
 " Laws of Michigan, 1893, P- 239. 
 
 "General Statutes of the State of Minnesota, 1894, sec. 1984; cf. 
 Laws of Pennsylvania, 1879, p. 78. 
 
24° THE REFERENDUM IN AMERICA 
 
 and the township system of government in the Middle West 
 where the streams of influence from New England and the 
 South join, and it is uncertain for the time being, which shall 
 have the mastery. In a measure this is true, but it is further- 
 more a natural development in newly settled territory, to pass 
 from the larger to the smaller unit. A sparsely settled dis- 
 trict can naturally manage with a simpler form of government 
 than a community in which men's interests meet and over- 
 lap on every hand. When a county becomes more populous, 
 and public aiifairs engross a larger share of the people's at- 
 tention, the need is felt for a more intensive system of ad- 
 ministration. 
 
 The citizens of the counties often themselves decide when, 
 in their view, the time has arrived for the township system 
 to be introduced. In seven States, — California, Illinois, Mis- 
 souri, Nebraska, North Dakota, Washington and Wyoming, 
 this referendum finds a place in the Constitutions. For ex- 
 ample, the Constitution of Missouri says : " The General As- 
 sembly may provide by general law, for township organiza- 
 tion, under which any county may organize whenever a ma- 
 jority of the legal voters of such county voting at any general 
 election, shall so determine. * * * jjj ^^^^ county which 
 shall have adopted township organization, the question of con- 
 tinuing the same may be submitted to a vote of the electors of 
 such county at a general election, in the manner that shall be 
 provided by law ; and if a majority of all the votes cast upon 
 that question shall be against township organization, it shall 
 cease in said county." °* 
 
 "Constitution of 1875, art. ix, sees. 8 and g. 
 
CHAPTER X 
 
 THE LOCAL REFERENDUM LOAN BILLS AND FINANCIAL PRO- 
 POSALS 
 
 Coming now to the second large class of referenda in com- 
 munities in the United States we find that it includes those 
 in relation to taxation and expenditure and the administra- 
 tion of the local finances. This is a department of public man- 
 agement in which there is room for much abuse, especially in 
 large cities, and as a convenient method, in the first place, 
 of putting a wholesome check upon representative officials 
 and, in the second place, of transferring the responsibility for 
 some rather debatable policy to the shoulders of those upon 
 whom the burden will bear, that is the people at large, this 
 plebiscite has attained a remarkable development in all parts 
 of the Union. The officers of cities, counties and towns in 
 many cases grossly betrayed the trust reposed in them and 
 often heaped up large debts which were contracted on the 
 credit of the community. This debt at times has weighed 
 very heavily upon the ratepayers, and in some cases had 
 wholly to be repudiated, as in a few of the States also, at an 
 earlier period. To avoid the repetition of such scandals and 
 to keep the debt contracting proclivities of city councilmen, 
 county commissioners and other officers entrusted with such 
 powers in reference to the various local communities within 
 proper bounds, the constitutional convention at last took this 
 subject in hand. It has thus come about that there is a 
 large number of constitutional provisions on this topic at 
 the present time, and these have been supplemented by laws 
 passed by the legislatures, until the enactments in this field 
 of legislation are of almost endless variety. There is not a 
 State in the Union in which the electors at large have not been 
 
 241 
 
242 THE REFERENDUM IN AMERICA 
 
 brought in to some extent to balance the representative boards 
 and legislatures, with the object of securing honester and 
 more economical management. In the main the results are 
 considered to have been better, strange as this may seem 
 to those who cannot well conceive of government except as 
 it is embodied in the persons of a few wise and considerate 
 men, than under the old system prior to the time the people 
 were invested with the local veto. 
 
 This referendum appears in at least three separate forms on 
 three large classes of subjects as follows : 
 
 ( 1 ) Loaning the public credit to industrial and other pri- 
 vate companies. 
 
 (2) Expenditure of public money directly by the govern- 
 ment itself. 
 
 (3) The sale or lease of public lands and other public prop- 
 erty. 
 
 The local plebiscite on these three different classes of sub- 
 jects is almost entirely an outgrowth of the latter half of the 
 nineteenth century. A beginning was made with it, how- 
 ever, at a somewhat earlier period in a form which is so char- 
 acteristic that I have put it at the head of the list, namely, 
 (i) The loaning of the public credit to industrial and other 
 private companies organized for the purpose of helping for- 
 ward with the economic development of a given territorial 
 district. The experience has not been the same among all 
 peoples but it was the method in vogue in the self-govern- 
 ing Anglo-Saxon communities of America at first to give as 
 little as possible to the government, retaining for private pur- 
 suit and gain the business of transportaftion, public lighting, 
 the furnishing of a public water supply, etc. The American 
 communities had in the beginning only a bare framework of 
 power. When roads were to be built they were constructed 
 and owned by private companies who charged travellers a 
 fee for passing over them. When streams were to be crossed 
 private persons bridged them and collected tolls of those 
 who wished to reach the other side. The railways and most 
 of the American canals have had a similar history and the 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 243 
 
 government with us — at any rate in the newer communities — 
 until a recent time, has exercised few functions which would 
 make it a competitor in any way with private enterprise. So 
 firmly established was this idea in our polity that it was car- 
 ried to the point of excluding the community from the func- 
 tion of educating the young at government cost, and many 
 other of the state's activities, now rarely brought into ques- 
 tion by anyone, had not yet begun to be exercised. It was 
 argued, on the one hand, that it could not be the duty of 
 the richer and more favored classes to assist in educating the 
 children of the poor, and, on the other hand, that it would 
 be an injustice for government to found and maintain free 
 schools since those citizens who conducted educational in- 
 stitutions for private profit would thus be deprived of a 
 means of personal financial advancement. Ideas in the 
 laissez faire economy so extreme as these have been gen- 
 erally abandoned. But the general question as to the ex- 
 pediency of performing many classes of local functions at 
 the public expense is still a matter which is frequently re- 
 ferred to a direct vote of the taxpayers. 
 
 It was an early stage of the development toward complete 
 state ownership and management to assist private corpora- 
 tions in respect of local works, and the people's participation 
 in voting grants and guarantees to improvement companies of 
 this kind was an interesting phase of the movement. A very 
 early instance of the employment of such a method as a means 
 to an amicable result in the settlement of a question of appro- 
 priating public money in behalf of an internal improvement 
 is furnished by Virginia.^ In 1784 the legislature of that 
 State passed an act which had for its object the deepening 
 of the channel of the James River. Later it was desired still 
 further to open up the interior of the country, to establish, 
 indeed, a complete line of communication from tidewater by 
 way of the James and Jackson Rivers to the Kanawha River 
 and thence to the Ohio and the Mississippi. " A large ma- 
 
 'Acts of Virginia, 1832-33, p. 57. 
 
244 THE REFERENDUM IN AMERICA 
 
 jority of the citizens" of Richmond being of opinion that 
 the corporate authorities should " subscribe to the stock " of 
 a company, " the James River and Kanawha Company ", an 
 act was adopted by the Virginia legislature in 1833 authoriz- 
 ing the city to make a subscription of $400,000 to this en- 
 terprise.^ In 1835 a second act conferring authority upon 
 the city to subscribe an additional sum of $250,000 to the 
 stock of the company was passed by the State legislature, 
 again at the expressed desire of the people of Richmond.' 
 In each case tiie city authorities were empowered to borrow 
 money on the credit of the municipality and to tax the citizens 
 in order to raise the necessary funds to pay the interest on the 
 loan and the principal of the same as it should fall due. Al- 
 though these laws were not submitted to the people of Rich- 
 mond by way of the referendum, they were passed in response 
 to petitions very numerously signed, and the principle is so 
 similar that the case is of much interest as indicating how 
 one important class of conditional legislation made its way 
 into the American practice. 
 
 The question of communication was a very serious one as 
 the colonists pushed farther and farther into the interior of 
 the continent. The commercial interests of the country were 
 rapidly expanding, the need for facilities of transport from 
 one section of the Union to another was much greater than 
 was the ability of a financially poor population to satisfy it. 
 Canals were to be constructed wherever water communica- 
 tion was possible. " Turnpikes ", " plank roads " and other 
 highways of public traffic were to be built so that wagoning 
 over the natural, unimproved routes would be less laborious 
 and haulage by horse or mule or ox between the principal 
 points might become a feasible form of commerce. A con- 
 ditional law to the advantage of private turnpike companies 
 was passed by the legislature of Pennsylvania in 1842.^ By 
 
 ' Acts of Virginia, 1832-33, p. 57. 
 
 "Acts of Virginia, 1834-35, p. 70; of. Goddin v. Crump, 8 Leigh, 
 p. 120. 
 * Laws of 1842, p. 233. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 245 
 
 this act whenever " at least twelve taxpayers " of any town- 
 ship should petition the supervisors of public highways to 
 subscribe to the stock of a turnpike company, which pro- 
 posed to construct its roads through the township, the super- 
 visors, after advertising the election in notices posted up at 
 six " of the most noted places " in the township, were obliged 
 to submit to the people the question of " accepting the pro- 
 visions " of the act. At the same time the electors were to 
 decide what sum the township should subscribe to the com- 
 pany. This act in common with some of a similar nature in 
 other States remains unrepealed to this day though elections 
 on the subject in Pennsylvania have been rarely held in re- 
 cent years." The governing boards of counties in Kentucky 
 may take stock in companies organized to construct and 
 operate turnpike, plank and gravel roads within the bounds 
 of these counties, if the people first assent to the levy of a tax 
 to pay for the subscription." The citizens of any township 
 in Michigan, in lieu of an actual grant of money, may vote 
 a plank road company the " right of way " through the town- 
 ship, giving to the company, therefore, the privilege to use 
 the public highways.'' Counties, towns, cities and other local 
 communities exercising fiduciary functions in Minnesota may 
 with the popular assent issue their bonds in exchange for 
 the stock of companies which are organized to construct ca- 
 nals and improve the waterways of that State.' The citizens 
 of counties, cities and towns in Virginia have the less specific 
 privilege of voting a public subscription " to the stock of 
 any internal improvement company " which has been incor- 
 porated by the State legislature." 
 
 When the railway appeared as an agent in the work of in- 
 ternal development, yet larger outlays were required and 
 nearly all the States, in order to help on with railway build- 
 
 " Cf. Brightly's Purdon's Digest of Pennsylvania Laws, 12th ed., 
 1894, p. 2045. 
 'Barbour and Carroll's Kentucky Statutes, 1894, sees. 4734 et seq. 
 'Public Acts of Michigan, 1897, p. 118. 
 ^Statutes of Minnesota, 1894, sees. 1441 et seq. 
 'Code of Virginia, 1887, sec. 1243. 
 
«46 THE REFERENDUM IN AMERICA 
 
 ing, permitted the people to decide whether the local gov- 
 ernments should subscribe \to the stock of the companies on 
 public account. The people in this case, however, as in 
 some others which I shall soon mention, have seerned not to 
 serve as an effective brake upon the too free use of public 
 moneys. Although the theory clearly indicates that those 
 upon whom such a burden will ultimately fall would aim to 
 discourage large expenditures of this kind, the public funds 
 to most men appear to come from an inexhaustible source, 
 and they vote money away with little thought as to how the 
 debt shall be paid. In the presence of a proposition for the 
 construction of a railway through their own county or town 
 the prospects are such as often to induce great liberality to 
 private companies. As a result, grants have been made most 
 unwisely, and the experience of municipalities in nearly all 
 sections of the Union has been very unfortunate. By these 
 local subsidies railways were built which were in no sense 
 profitable as business enterprises. Financial difficulties fol- 
 lowed and involved the counties and cities seriously, so that 
 the legislatures or the conventions in many States have lately 
 prohibited such grants absolutely. The public policy regard- 
 ing railways has undergone a complete volte-face, so that 
 to-day railway corporations must exercise great alertness to 
 defend their own interests in the legislative assemblies, and 
 the tendency is distinctly in the direction of applying restraint 
 to the companies, while there is a growing disposition to look 
 upon the whole business of transportation as one inhering 
 solely in the government as in most European states. 
 
 The subscription abuse was considered to have become so 
 great in Illinois by 1870 that a separate section of the con- 
 stitution was submitted to and adopted by the people of the 
 State. This provision was as follows : " No county, city, 
 town, township or other municipality shall ever become a sub- 
 scriber to the capital stock of any railroad or private corpora- 
 tion or make donation to or loan its credit in aid of such 
 corporation." ^° This is an effectual prohibition upon the 
 
 " Constitution of Illinois of 1870, separate section. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 247 
 
 legislature and prevents it authorizing such grants even by 
 way of the referendum. 
 
 In several States, however, the practice is still permitted 
 and is in general and frequent use. In not a few cases a 
 plebiscite, when it is a question of making public grants to 
 companies, is specifically authorized by the State constitu- 
 tion, as in North Dakota, Nebraska, Tennessee and North 
 Carolina. In North Dakota, for instance, the Constitution 
 says : " Neither the State nor any county, city, township, 
 town, school district or any other political subdivision shall 
 loan, or give its credit, or make donations to or in aid of any 
 individual, association, or corporation, except for necessary 
 support of the poor, nor subscribe to or become the owner 
 of the capital stock of any association, nor shall the State 
 engage in any work of internal improvement unless author- 
 ized by a two-thirds vote of the people." ^^ 
 
 The Constitution of Tennessee says : " The credit of no 
 county, city or town shall be given or loaned to or in aid of 
 any person, company, association, or corporation except upon 
 an election to be held by the qualified voters of such county, 
 city or town and the assent of three-fourths of the votes cast 
 at said election," etc.^^ 
 
 And in Nebraska the Constitution says : " No city, county, 
 town, precinct, municipality or other subdivision of the State 
 shall ever make donations to any railroad or other work of 
 internal improvement unless a proposition so to do shall have 
 been first submitted to the qualified electors thereof at an 
 election by authority of law," etc.^' 
 
 The compiled statutes of Maryland," North Carolina,^' 
 
 "Art. xii, sec. 185. 
 
 " Art. ii, sec. zg. 
 
 "Art. xii, sec. 2; cf. Constitution of Maryland, art. xi, sec. 7, for a 
 similar plebiscite in Baltimore, and Constitution of North Carolina, art. 
 vii, sec. 7. 
 
 "Cf. Laws of Maryland, i8go, p. 430; Laws of 1892, p. 489; Laws 
 of 1894, PP- 202, 884, etc. 
 
 "Cf. Laws of 1887, pp. 82, 157, 191. 21S, 336, 346, 374, 434, 456, 523, 
 528; Laws of 1897, pp. 72, g8, 213, 493, etc. 
 
248 THE REFERENDUM IN AWfERICA 
 
 South Carolina " and Tennessee " contain many recent in- 
 stances of conditional legislation, authorizing public donations 
 and loans to railway companies. In the laws passed at a sin- 
 gle session of the legislature of North Carolina in 1889 I 
 have found fourteen separate special acts by which the ques- 
 tion of making such subscriptions was submitted to the people 
 of local districts in that State. The citizens of townships, 
 towns or cities in Iowa may vote a grant of money to " any 
 railway company which is or may become incorporated under 
 the laws of the State to aid in the construction of a projected 
 railroad with in the State ".^' In Kansas in the same way 
 counties, cities and townships may extend their aid to rail- 
 way companies, if the electors thereof directly approve the 
 appropriation.^" In Louisiana the people of any parish, city 
 or incorporated town have the more general privilege of 
 voting a special tax in benefit of " any work of public im- 
 provement or railway enterprise ".^'* There are elections on 
 the same subject in the counties and other local districts of 
 West Virginia ; ''^ and in Wisconsin donations may be made 
 to railway corporations by a like process.^^ In towns and 
 cities in Iowa the citizens may agree by way of the referendum 
 to donate " to any railway company owning a line of railroad 
 in operation or in process of construction in such city or 
 town sufficient land for depot grounds, engine houses and 
 machine shops ".^' 
 
 Not infrequently the inhabitants of local communities in 
 America are invited to determine whether they will grant a 
 bonus to an industrial or manufacturing company which it is 
 desired shall establish a plant in a certain neighborhood. In 
 
 " Laws of 1894, pp. 949, 1068 ; Laws of 1896, p. 333, etc. 
 
 " Laws of 1897, p. 57 ; Laws of 1890, extra session, p. 73. 
 
 "Annotated Code of Iowa, 1897, sees. 2084 et seq. 
 
 "Webb's General Statutes of Kansas, 1897, chap. 48, sees. 13 et seq., 
 and chap. 70, sec. 70 ; cf. ibid., chap. 37, sec. 73. 
 
 '^ Revised Laws of Louisiana, 1897, p. 373; cf. ibid., p. 374. 
 
 "Warth's Code of West Virctinia, 3rd ed., 1891, p. 284. 
 
 "Sanborn and Berryman's Wisconsin Statutes, 1898, sees. 945-46. 
 
 "Code of Iowa, sees. 885-86; cf. General Statutes of Kansas, chap. 
 70, sees. 107 et seq. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 249 
 
 cities of Kansas the electors may sanction an appropriation 
 of money which shall be used to " encourage the establish- 
 ment of manufactories and such other enterprises as may 
 tend to improve the city ".^* Recently the city of Wilming- 
 ton, in North Carolina, was authorized by the State legislature 
 to hold an election to decide whether the municipality should 
 borrow the sum of $150,000 " to be given as an encourage- 
 ment to new manufacturing enterprises which may be estab- 
 lished within the limits of the city, or enlargements of plants 
 already existing ". The amount in this way granted for this 
 use was to be placed in the hands of the members of a specially 
 constituted board of trustees to be distributed for the best 
 interests of the city to individuals and firms making the 
 necessary guarantees.^" 
 
 Grants to private companies which have in hand the 
 economic development of a district in respect of some one 
 particular industry are also not unfamiliar. Thus the peo- 
 ple of counties or cities in Kansas may vote to subscribe, up 
 to certain definitely limited amounts, to the capital stock 
 of companies mining or boring for coal or natural gas or con- 
 structing artesian wells.^* Townships and certain classes of 
 cities in Kansas may extend the same encouragement to 
 companies engaged in " the manufacture of sugar and syrup 
 out of sorghum cane in their respective localities ", if the 
 electors assent to the expenditure.^' 
 
 Without going to the point of subscribing to the stock of 
 an industrial company, or making it an actual cash donation 
 local governments encourage business enterprises which 
 promise to increase the wealth and prosperity of the com- 
 munity by exempting them from taxation. Here again the 
 people, voting in the referendum, are brought forward to 
 decide as to the advisability of adopting such a course. For 
 example, I may refer to the new Constitution of South 
 
 " General Statutes of Kansas, chap. 37, sec. gs. 
 ^'Laws of North Carolina of 1889, p. 867. 
 " General Statutes of Kansas, chap 36, sec. 5. 
 "Ibid., chap. 132, sees, i et seq. 
 
25° THE REFERENDUM IN AMERICA 
 
 Carolina which says : " Cities and towns may exempt from 
 taxation by general or special ordinance, except for school 
 purposes, manufactories established within their limits for 
 five successive years from the time of the establishment of 
 such manufactories: Provided that such ordinance shall be 
 first ratified by a majority of such qualified electors of such 
 city or town as shall vote at an election held for that pur- 
 pose." "^ In Rhode Island the people residing in towns 
 and cities may also agree to exempt " manufacturing prop- 
 erty " from taxation, the exemption in that State continuing 
 throughout a period of ten years.^° 
 
 In the contest between municipal and private ownership of 
 water works, lighting plants and the like there are instances 
 of public grants to private companies, but here we at once 
 come into another phase of the development. The people 
 are introduced into the system again, and this time in a dif- 
 ferent capacity, not to decide, as before, whether private 
 capital which promises to do much to improve the condition 
 of a neighborhood shall be encouraged to settle there, but 
 whether private capital grown strong shall be given control 
 of immensely valuable natural monopolies. The people were 
 earlier to determine whether a certain amount of money 
 should be expended to aid a struggling enterprise; now 
 they are to fix upon the sum which the company controlling 
 the enterprise shall pay in aid of the municipality. The situa- 
 tion has been reversed and, still not trusting their representa- 
 tives, who in many cases have proven that they were open 
 to pernicious and most dishonest influences, the people them- 
 
 '" Constitution of South Carolina, art. viii, sec. 8. A carpet mill was 
 recently established in Gaflfney, S. C. The question of exempting the 
 factory from taxation for five years was submitted to the people of the 
 town on February 17, 1899, and the proposition was approved by a 
 vote of 273 to 29. 
 
 "General Laws of Rhode Island, 1896, p. 177; cf. Local Acts of 
 Michigan, 1891, p. 50, for an interesting provision of this kind in an 
 act incorporating the city of North Muskegon. Here the exemption 
 was to include taxes for both city and school purposes, as well as water 
 rates for a period of ten years. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 251 
 
 selves have been made the judges of the subject. Thus it is 
 hoped to prevent city authorities from giving away valuable 
 privileges to private lighting and water companies, to or- 
 ganizations of men who wish to use the streets for conveying 
 passengers on the payment of a fee and for laying down or 
 stringing wires for telegraph, telephone and other purposes. 
 From the point of the city paying a private company to set- 
 tle within its limits, to the point of the company making 
 payments to the city for business advantages, seems rather a 
 long step, and one which in this new country it has been very 
 difficult to take. 
 
 Companies, however, have found the exploitation of cer- 
 tain lines of business so profitable in large centres of popula- 
 tion that they not infrequently can spare a share of the gain 
 for the members of city legislatures in return for favorable 
 concessions. This abuse has recently become so great in many 
 parts of the United States that we have turned helplessly to 
 the referendum as a means of securing needed relief. Thus 
 in Iowa we meet with an interesting statutory provision which 
 is couched in the following terms : " No franchise shall be 
 granted, renewed or extended by any city or town for the 
 use of its streets, highways, avenues, alleys or public places 
 for any of the purposes named in the preceding section 
 [telegraphs, telephones and electric street railways] unless a 
 majority of the legal electors voting thereon vote in favor of 
 the same at a general or special election." *" 
 
 In Nebraska a law, relating to cities of the " metropolitan 
 class ", i. e., cities containing more than 80,000 inhabitants, 
 says : " No new franchise shall hereafter be granted, nor 
 any extensions of franchises heretofore granted be lawful, 
 unless an annuity to the city be provided, based upon either 
 a fixed reasonable amount per year or a percentage on the 
 gross earnings of the owners of said franchise, nor until a 
 proposition for the same has been submitted to a vote of the 
 electors of the city at a general city election or a special city 
 election called for that purpose, and to carry such a proposi- 
 
 *• Code of Iowa, sec. 776 ; cf. ibid., sec. 720. 
 
252 THE REFERENDUM IN AMERICA. 
 
 tion it shall require a majority of the electors voting at sucli 
 election." ^^ In any city or village in Wisconsin if ten per 
 cent, of the qualified electors sign a petition in favor of an 
 election on the subject, the question whether the village 
 board or city council shall sell the street railway, lighting, 
 telephone, waterworks or other rights and franchises to the 
 highest bidder must be submitted to the people. In the event 
 of a favorable vote in the referendum, any other method of 
 disposing of these franchises than by competition and sale 
 IS precluded.^^ The electors of any city or village having 
 decided to sell these valuable rights may later revoke their 
 action in the same manner, i. e., by petition and referen- 
 dum.'* In certain cities in Missouri the council may itself 
 grant the original rights to private coinpanies, but these are 
 not to extend over a longer period than twenty years, and 
 expiring, they are not to be renewed without the consent of 
 the people.** The Constitution of Nebraska provides that 
 " no general law shall be passed by the legislature granting 
 the right to construct and operate a street railway within any 
 city, town or incorporated village without first requiring the 
 consent of a majority of the electors thereof ".*° This ref- 
 erendum respecting city franchises has made its appearance 
 among us very recently, but it seems likely to have rather 
 extended use as a means of correcting an evil of wide preva- 
 lence and of real magnitude. 
 
 (2) Another large class of referenda in local communi- 
 ties, separately grouped for convenience' sake, includes such 
 as relate to the expenditure of public moneys, not in aid of 
 or in alliance with private enterprise, but by the government 
 itself for its own general or special purposes in the exercise 
 of its original powers. A government in its corporate and 
 fiduciary capacity may issue bonds against the public credit 
 and sell them in the money markets ; it may contract a tera- 
 
 " Compiled Statutes of Nebraska, sec. 754 ; cf. ibid., sec. 4036. 
 
 "Wisconsin Statutes, 1898, sec. 940J. ^ Ibid. 
 
 "Laws of Missouri, 1891, p. 60. 
 
 "Article on Miscellaneous Corporations, sec. 2. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 253 
 
 porary loan to be repaid out of current revenues ; it may make 
 a direct appropriation, if it has money in hand in the treas- 
 ury; and again it may levy taxes which in the usual case 
 is a government's principal source of income. The peo- 
 ple of local communities are called upon by law to approve 
 or disapprove of all these transactions under varying con- 
 ditions in the various States. They are often asked more- 
 over to give their opinion upon the plain proposition for 
 which the expenditure is to be made, whether it be the pur- 
 chase of waterworks, the erection of a county courthouse or 
 the improvement of a road. To the discretion of the repre- 
 sentative boards or legislatures then is left the whole problem 
 of providing the means to carry forward the specific work 
 which the people have authorized. Sometimes the people 
 vote twice or thrice on what is essentially the same proposi- 
 tion, first to engage in the undertaking, secondly, to incur 
 the debt necessary to execute it, and thirdly, to levy the tax 
 to take care of the debt. So far as we are concerned here, it is 
 no matter in what manner the financial obligation is incurred 
 by the local government ; the principle is the same in all these 
 cases and it will be our object in this place to keep in view 
 simply the one fact — the purpose for which the money is to 
 be expended. 
 
 Very usual is the submission of propositions which involve 
 an outlay by the local governments for the erection of build- 
 ings for county, city or other public purposes and the pur- 
 chase of sites for these structures. In the first place there 
 are buildings which are used by the local government in its 
 exercise of the police power and the administration of jus- 
 tice, as court houses and " town halls ", jails, workhouses 
 and houses of correction. Thus when bonds are to be issued 
 " to build, repair or remodel courthouses, clerks' offices, jails 
 and other public buildings in the several counties of Kentucky 
 or to provide for the building, repairing or remodeling of the 
 same ", there is a referendum.'" Again in Iowa " the board 
 
 " Barbour and Carroll's Kentucky Statutes, 1894, sees. 1872 et seq. 
 
254 THE REFERENDUM IN AMERICA 
 
 of supervisors of a county may not order the erection of a 
 courthouse, jail, poorhouse or other building or bridge when 
 the probable cost will- exceed $5,000, nor the purchase of real 
 estate for county purposes exceeding $2,000 in value until a 
 proposition therefor shall have been first submitted to the 
 legal voters of the county, and voted for by a majority of all 
 persons voting for and against such proposition at a gen- 
 eral or special election ".'' In townships in Iowa the follow- 
 ing question is submitted to the people : " Shall the proposi- 
 tion to levy a tax for the erection of a public hall be 
 adopted ?" '* In Minnesota the council of any city, borough 
 or village with a population not exceeding 10,000 may sub- 
 mit the question of erecting a " city hall, market house, en- 
 gine house, city offices or city prison ".^^ Likewise in Ohio 
 two or more counties, the proposal having first been approved 
 by the electors of the same, may unite to erect and main- 
 tain for their joint use a workhouse in which to utilize the 
 labor of public misdemeanants.^" This referendum in regard 
 to " workhouses " also exists in counties in other States.*^ In 
 certain counties in Georgia the people may decide whether 
 a " reformatory prison " shall be established at the public ex- 
 pense for the purpose of taking care of misdemeanants under 
 sixteen years of age.*^ " Houses of correction " with the 
 same humane end in view are the subject of a plebiscite in the 
 counties of Arkansas.^' 
 With a beneficent interest in the welfare of the people, and 
 
 "Annotated Code of Iowa, 1897, sec. 423; cf. Webb's Statutes of 
 Kansas, 1897, chap. 27, sees. 17-18; Revised Statutes of Florida, 1892, 
 p. 27s ; Revised Codes of North Dakota, 1895, sec. 1923 ; Session Laws 
 of Minnesota, 1895, pp. 693, 699 ; Constitution of Colorado, art. xi, sec. 
 6 ; Constitution of Missouri, art. x, sec. 2 ; Constitution of Michigan, 
 art. X, sec. 9 ; Revised Statutes of Missouri, 1889, p. 278. 
 
 " Code of Iowa, sec. 567 ; cf. Revised Statutes of Ohio, 7th ed., 1896, 
 sec. 1479. 
 
 "'' Statutes of Minnesota, 1894, sec. 1435. 
 
 "Revised Statutes of Ohio, sec. 2107a. 
 
 " Cf. Kentucky Statutes, 1894, sec. 4879; Minnesota Statutes, 1894, 
 sec. 1987. 
 
 "Code of Georgia, 1896, Vol. III. sees. 1192 et seq. 
 
 "Digest of the Statutes of Arkansas, 1894, pp. 382 et seq. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS «SS 
 
 with the object of protecting the incapable and the unfortu- 
 nate, the local governments take charge of the poor. In 
 certain communities in some States expenditure on this 
 account is, however, conditional upon the direct assent of the 
 citizens. Thus " poor farms ", " poor houses " and " poor 
 asylums " are acquired and established by the local govern- 
 ments by way of the referendum ** and- the taxpayers them- 
 selves decide whether they desire to expend so much money 
 as will be required to maintain this branch of the administra- 
 tion. In Ohio " children's homes " may be established in 
 counties in the same manner. These institutions are intended 
 to serve as asylums for orphans or children for whose sup- 
 port parents have failed to provide.*' By an act passed by the 
 legislature of Illinois in 1891 cities are authorized to estab- 
 lish and maintain " non-sectarian public hospitals " to be sup- 
 ported by an annual tax which is to be turned into a " hos- 
 pital fund ". This tax is n^^t to be collected in any city of 
 the State, however, until the people of that city have first 
 given their consent to the levy.*" The purchase of land for 
 the sites of public hospitals is contingent on the popular assent 
 in certain cities of Nebraska,*^ and the erection of market 
 houses in cities and towns is a subject which in other States 
 is sometimes referred to popular vote.*' 
 
 In the exercise of the local governmental function of guard- 
 ing life and property from destruction by fire, questions in 
 relation to the expenditure of public money are often sub- 
 mitted to the people. In many American cities there are 
 " volunteer " fire departments which find their support in the 
 same sentiments that induce private individuals to maintain 
 
 " Cf. Statutes of Minnesota, 1894, sec. 1987 ; Webb's General Statutes 
 of Kansas, 1897, chap. 46, sees, i et seq.; General Statutes of New 
 Jersey, 1896, p. 2522; Revised Codes of North Dakota, 1895, sec. 1495. 
 
 "Revised Statutes of Ohio, sec. 929; cf. ibid., sec. 7821. 
 
 " Starr and Curtis' Annotated Statutes, p. 823 ; cf. Session Laws of 
 Tennessee, 1897, p. 606 ; Acts of Idaho, 1890-91, p. 53. 
 
 " Compiled Statutes of Nebraska, 1897, sec. 1048. 
 
 "Statutes of Minnesota, 1894, sec. 143s; Laws of Maryland, 1892, 
 p. 450- 
 
256 THE REFERENDUM IN AMERICA 
 
 free hospitals and schools, and to raise military companies 
 for the common defence. In the more populous cities pro- 
 tection from fire tends all the while to become a public func- 
 tion and " paid fire departments " are organized as an in- 
 tegral part of. the municipal system receiving their support 
 from the public treasuries. In New Jersey, for instance, the 
 people of cities may. determine by a plebiscite whether they 
 will adopt the paid fire department system and abandon the 
 volunteer service.*" In New Jersey, too, the people of in- 
 corporated towns may vote upon the question of the purchase 
 of steam fire engines. °° The legislature of Maryland recently 
 authorized the ofificers of a town to submit the proposition 
 of expending public money for the erection of a " hose 
 house " ; "^ in another town to consult the people in reference 
 to making a " fire improvement loan " which was to be 
 " applied and used exclusively for the construction of a fire 
 alarm system "."^ In Pennsylvania boroughs the local officers 
 may submit the question of levying a tax and expending the 
 proceeds for the purchase of " hose for fire engine companies 
 as may be. required to furnish the said boroughs with a suf- 
 ficient supply of water for the extinguishment of fires " and 
 for the erection of " fire plugs or hydrants "."*' 
 
 Again, the local governments have developed a function of 
 providing water and light, and in other ways the needs of the 
 people are supplied through the public corporation instead of 
 by private enterprise. Public ownership and control of these 
 businesses in cities are undertaken with the object of supply- 
 ing the necessities of the inhabitants at a reasonable price, 
 and safeguarding them from abuses too likely to develop 
 from a system which permits private companies to operate 
 freely in this field. To take over water works, pumps, mains, 
 gas or electric lighting plants from private companies or to 
 
 "General Statutes of New Jersey, p. 1504. 
 
 "Ibid., p. 1481 ; cf. ibid., p. 1528, and Acts of Idaho, i8go-gi, p. S3- 
 
 " Laws of Maryland, 1890, p. 309. 
 
 " Laws of 1894, p. 72. 
 
 " Brightly's Purdon's Digest, p. 241. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 257 
 
 construct these newly requires a large expenditure of money, 
 and when such a step is contemplated the electors are very 
 often asked to decide as to the advisability of engaging upon 
 so important and responsible a task. In many States there 
 are laws providing for referenda in cities, boroughs and 
 towns on these subjects. One of the most thoroughgoing 
 may be instanced, and this occurs in Iowa where cities and 
 towns are authorized " to purchase, establish, erect, main- 
 tain and operate, within or without the corporate limits, 
 waterworks, gasworks, or electric light or electric power 
 plants with all the necessary reservoirs, mains, filters, streams, 
 trenches, pipes, drains, poles, wires, burners, machinery, ap- 
 paratus and other requisites ". But " no such works or 
 plants shall be authorized, established, erected or purchased, 
 leased or sold unless a majority of the legal electors voting 
 thereon vote in favor of the same at a general or special 
 election ".°* The new Constitution of South Carolina says : 
 " Cities and towns may acquire by construction or purfchase, 
 and may operate, waterworks systems and plants for fur- 
 nishing lights, and may furnish water and lights to individ- 
 uals, firms and private corporations for reasonable com- 
 pensation; provided that no such construction or purchase 
 shall be made except upon a majority vote of the electors 
 in said cities or towns who are qualified to vote on the bonded 
 indebtedness in said cities or towns." °° 
 
 The construction of sewers and drainage systems in cities 
 and towns is also a subject that is sometimes referred to popu- 
 lar vote. As necessary as such sanitary arrangements would 
 seem to be, the installation of a suitable sewerage system is, 
 
 "Annotated Code of Iowa, sec. 720. 
 
 " Art. viii, sec. 5. For similar provisions respecting waterworks or 
 lighting plants compare Starr and Curtis' Annotated Statutes of Illinois, 
 p. 869 ; Session Laws of Pa., 1885, p. 163 ; ibid., iSjgi, p. 90 ; Mills' 
 Annotated Statutes of Colorado, Supplement, 1897, p. 1144; Laws of 
 Connecticut, 1893, p. 380; Acts of Idaho, 1890-91, p. 53; Supplement to 
 the Public Statutes of Massachusetts, 1889-95, p. 484; Annotated Code 
 of Mississippi, 1892, sees. 2948 and 3014, and many others. 
 
2S8 THE REFERENDUM IN AMERICA 
 
 in some cases, made to depend upon the contingency of a 
 favorable vote of the taxpayers.^^ 
 
 There are very many instances which might be cited to 
 illustrate the part the people play in voting money to increase 
 the fertility and cultivability of the soil, to improve the 
 methods of public communication over roads and other high- 
 ways, to facilitate navigation and to assist in the economic 
 development of neighborhoods. The people vote in special 
 " irrigation districts " and other local entities for or against 
 taxation and the expenditure of money to improve arid lands. 
 They vote to drain swampy lands, and to construct embank- 
 ments and levees so that rivers may not overflow, doing 
 damage, during freshets, to the surrounding country.^^ In 
 Texas a tax for the construction of sea walls and breakwaters 
 is the subject of a referendum. The Constitution of that 
 State says : " All counties and cities bordering on the coast 
 of the Gulf of Mexico are hereby authorized upon a vote 
 of two- thirds of the taxpayers therein (to be ascertained as 
 may be provided by law) to levy and collect such tax for 
 construction of sea walls, breakwaters or sanitary purposes 
 as may be authorized by law, and may create a debt for such 
 works and issue bonds in evidence thereof." ^' 
 
 The construction of roads, streets, bridges and pavements 
 and the improvement and repair of the same are subjects upon 
 which the people often vote in local districts. This refer- 
 endum appears in a great variety of forms. We find that in 
 Illinois, for instance, fifty land owners in any township may 
 have an election called on the question of levying a tax not 
 to exceed $i on each $ioo of the assessed valuation of all 
 
 '"Code of Mississippi, 1892, sec. 3014; General Statutes of New Jer- 
 sey, p. 207 ; Acts of Idaho, 1890-91, p. 53. 
 
 " Cf. Acts of California, 1891, p. 147; Laws of Idaho, 1895, pp. 184 
 et seq. ; Webb's General Statutes of Kansas, chap. 79, sees. 71 et seq.; 
 Barbour and Carroll's Kentucky Statutes, sec. 2414; Wolff's Revised 
 Laws of Louisiana, 1897, p. 375 ; ibid., p. 718 ; Code of Mississippi, sec. 
 3014; Session Laws of South Dakota, 1897, p. 219; Shannon's Annctated 
 Code of Tennessee, 1896, sees. 3856 et seq. 
 
 ™ Constitution of Texas, art. xi, sec. 7. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 259 
 
 the taxable property in the township for the purpose " of con- 
 structing and maintaining gravel, rock, macadam or other 
 hard roads ".°* Roads may be improved in the same way in 
 local districts in Indiana *" and in Kentucky.'^ In Minnesota 
 the citizens with their own consent may be taxed for the 
 construction of roads to be used for " steam traction trans- 
 portation ".°^ In Michigan the board of supervisors of any 
 county may authorize a township, " to borrow or raise by tax 
 upon such township any sum of money not exceeding $1,000 
 in any township in any one year to build or repair any roads 
 or bridges in such township " if the assent of the people shall 
 first be obtained.** In States in which the privi- 
 lege of managing turnpikes has been granted away to 
 private companies the citizens may decide whether -the local 
 governments shall take control of the highways, abolishing 
 the toll houses which have become a source of annoyance to 
 travellers. The question of " free turnpikes " is submitted to 
 popular vote in the counties of Kentucky,'* Ohio °' and 
 Indiana."" 
 
 Similarly the people of local districts may decide whether 
 public funds shall be expended for the erection or purchase 
 of bridges. At an earlier day rivers, if sufficiently shallow, 
 were forded ; if deeper, wagons were usually carried over by 
 ferry. These primitive devices were followed by the private 
 bridge for the use of which the owners charged the traveller 
 a fee. Later it came to be a question for the citizens to de- 
 termine whether the community should not own and control 
 the bridges. In several States the people vote to tax them- 
 selves or to issue bonds for this purpose, as in Kentucky, 
 Michigan and Kansas."' In North Carolina there is the 
 
 ™ Starr and Curtis' Annotated Illinois Statutes, p. 3599. 
 "Horner's Indiana Statutes, 1896, sete. 5114CCC. 
 " Barbour and Carroll's Kentucky Statutes, sees. 4742 et seq. 
 "^Statutes of Minnesota, 1894, sees. 1934 et seq. 
 °' Howell's Annotated Statutes of Michigan, 1882, p. 202. 
 "'Laws of Kentucky, 1896, p. 39. 
 ■ " Revised Statutes of Ohio, sec. 4934. 
 ^ Horner's Indiana Statutes, sec. 5107. 
 " Cf. Webb's General Statutes of Kansas, chap. 44, sees. 9 and 24; 
 
26o THE REFERENDUM IN AMERICA 
 
 case of the people being called upon to decide whether bridges 
 which were free shall be converted again into toll bridges. It 
 was believed that the cost of keeping two certain bridges in a 
 county in good repair was burdensome to the taxpayers, 
 whereupon the question of re-establishing toll houses was 
 submitted to popular vote.** In many cities and towns the 
 people are directly consulted in regard to the construction of 
 streets and boulevards.** The creation of indebtedness for 
 the building or maintenance of " board walks along the sea- 
 front " in cities located on or near the Atlantic Ocean, in the 
 State of New Jersey, is a subject for a poll of the people.''° 
 Water courses and the channels of streams are sometimes 
 deepened with the aim of improving navigation when the 
 people declare their willingness to bear this additional ex- 
 pense.'^ 
 
 A park within a city in the strict sense is not a necessity, 
 especially among a people who are still in a very utilitarian 
 stage of civilization. There is a disposition to-day even in 
 some very large American cities to leave it to private bene- 
 factors to establish and maintain public pleasure parks. In 
 the cities of many States, however, the taxpayers may decide 
 whether such an expenditure shall be made on the common 
 account.'^ 
 
 As a means of beautifying the city, as a public healtli 
 measure and for other reasons which are good and sufficient, 
 
 ibid., chap 45, sec. i ; ibid., chap. 46, sec. i ; Kentucky Statutes, sees. 
 1862 et seq. ; Michigan's Annotated Statutes, p. 202; ibid., p. 406; 
 Indiana Statutes, sees. 2880b. et seq., and many others. 
 
 "'Public Laws of 1893, p. 139. 
 
 '" Cf. Code of Mississippi, sec. 3014 ; General Statutes of New Jersey, 
 pp. 2150 and 2156; Acts of Idaho, 1890-91, p. 53; Laws of Colorado, 
 1893, pp. 462-63. 
 
 "Laws of New Jersey, 1896, p. 71. 
 
 '^ Cf. Code of Iowa, sec. 799. 
 
 '- Cf. Laws of Colorado, 1893, pp. 462-63 ; Acts of Idaho, 1890-91, p. 
 53 ; Starr and Curtis' Annotated Statutes of Illinois, p. 852 ; Code of 
 Iowa, sec. 86o-; Webb's General Statutes of Kansas, chap. 42, sees. 57 
 et seq.; Kentucky Statutes, sec. 2854; Compiled Statutes of Nebraska, 
 1897, sec. 1009; General Statutes of New Jersey, pp. 2613 and 2618; 
 Acts of West Virginia, 1893, p. in. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 261 
 
 the city and other local districts sometimes purchase land for 
 cemeteries. Thus in townships in Kansas and Ohio the ques- 
 tion of selling bonds and investing the proceeds in ceme- 
 teries is submitted to popular vote." In the cities and towns 
 of Idaho there is the same referendum.''* In Minnesota in 
 towns, cities, villages and boroughs the people may vote to dis- 
 inter bodies in abandoned cemeteries, to move and reset the 
 tombstones in new grounds and then improve the old ceme- 
 tery lands as public parks.''" In a local district in Ohio the 
 people were recently polled to determine whether certain 
 graveyards, earlier under private control, should be trans- 
 ferred to the trustees of a township.''" 
 
 Public money is also expended in a variety of ways with 
 the object of advancing the general economic development of 
 a community, but in a number of instances the popular assent 
 to the grant which many of the taxpayers may possibly re- 
 gard as an extravagance, must first be obtained. Thus in any 
 city of the first class, in Kansas, the people may authorize a 
 bond issue to an amount not exceeding $20,000 for the pur- 
 pose of prospecting for coal within the city limits.''^ The 
 question of the issue of bonds in like amount to defray the 
 cost of boring or prospecting for coal may be submitted to 
 popular vote in the counties of Nebraska.''* In any county 
 of the State of Washington on the receipt of a petition signed 
 by twenty taxpayers the county commissioners must submit 
 the question of making a public appropriation " for the pur- 
 pose of boring or drilling into the earth for valuable minerals 
 such as coal, oil, gas, salt or any other valuable subterranean 
 production that is supposed to exist in quantities sufficient to 
 justify boring for ".''* The citizens of counties or townships 
 
 "Webb's General Statutes of Kansas, chap. 42, sees. 57 et seq.: Re- 
 vised Statutes of Ohio, 7th ed., sec. 1465. 
 
 "Acts of Idaho, 1890-91, p. 53; cf. Laws of West Virginia, 1893, p. 
 III. "Laws of Minnesota, 1897, p. 23. 
 
 "Laws of Ohio, 1896, p. 736. 
 
 "Webb's General Statutes, chap. 36, sees, i et seq. 
 
 " Compiled Statutes of Nebraska, sec. 2272. 
 
 " Code of Washington, 1896, sec. 2456. 
 
262 THE REFERENDUM IN AMERICA 
 
 in Kansas may vote to assess and collect a " fire tax " which 
 shall be used " to prevent the incursion of prairie fires " by 
 " breaking, plowing, mowing or any other necessary method, 
 burning strips at intervals ", etc.^" In the townships of 
 Minnesota the people may determine " to build and main- 
 tain a fence at or near the township line for the purpose of 
 preventing the spreading of Russian thistles over the lands 
 of the township ",*^ and in the same State the people may 
 curiously vote to tax themselves to an amount not exceeding 
 five mills on each dollar of assessed valuation " to pay for the 
 destruction of grasshoppers and their eggs ".*^ 
 
 In Ohio if a " county agricultural society " and the com- 
 missioners of any county are of opinion that the interests of 
 the society and the county demand an appropriation from the 
 public treasury for the purchase and improvement of the 
 county fair grounds the question may be submitted to popular 
 vote.*' There is a referendum on the same subject in the 
 counties of Kansas.** A law of 1897 authorized the people of 
 counties in Nebraska to vote upon the question of appropriat- 
 ing money to an inter-state exposition.*' In several States 
 the people in their local communities determine whether pre- 
 miums shall be paid from the common treasury for the de- 
 struction of various species of noxious wild animals. In 
 counties in Nebraska the people may vote " For Bounties " or 
 " Against Bounties ", and if bounties are approved of any 
 person presenting the scalps " with the two ears and face 
 down to the nose " to the proper officials, with his oath that 
 the animals were killed within the county where the pre- 
 mium is applied for, will receive $3 for each wolf or mountain 
 lion and $1 for each wild cat or coyote so killed. Any 
 county desiring to be released from the obligation of making 
 
 "■ Webb's General Statutes of Kansas, chap. 170, sees, i et seq. 
 
 " Laws of Minnesota, 1895, p. 633. 
 
 ''' Statutes of Minnesota. 1894, sees. 7885-86. 
 
 "Realised Statutes of Ohio, sec. 3703. 
 
 " Webb's General Statutes, chap. 174, sees, i et seq. 
 
 "' Compiled Statutes of Nebraska, sec. 2303a. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 263 
 
 these payments may later revoke its action by popular 
 vote.'" 
 
 By a law which passed the legislature of Kansas in 1871 
 the question of paying a bounty in counties to encourage the 
 growing of hedges was submitted to popular vote. If the 
 proposition were approved in any county in which the sub- 
 mission was made an annual payment from the county treas- 
 ury of $2 for every forty rods of " osage orange or hawthorn 
 fence " was authorized, for a period of eight years, to the 
 person " successfully growing and cultivating the same ".*' 
 This law was repealed in 1883.°® In 1891 the Nebraska 
 legislature passed an act authorizing the officers of any 
 county, if the proposition were approved by the people at a 
 special election, to issue and sell its bonds to an amount not 
 exceeding $20,000, the proceeds to be used " for the purpose 
 of raising money to purchase grain to be planted and sown 
 in order to raise crops for the year 1891 and for feeding 
 teams used in raising said crops ".*" This interesting bit of 
 socialistic legislation was induced by a serious drought which 
 it was claimed had left many farmers without the means to 
 put their crops in the ground for the next harvest. The 
 legislature had earlier made an unconditional appropriation 
 from the State treasury of $100,000 for the relief of distress 
 arising from the same cause."" In Kansas, by an act passed 
 in 187s, counties were in the same way empowered to bond 
 themselves to an amount varying from $5,000 to $20,000 each 
 according to their population and their presumable ability to 
 bear the burden. These bonds were to be known as " relief 
 bonds " and the funds secured in this manner, in each county 
 which voted at a referendum in favor of the outlay, were to 
 be used for the purpose of supplying the destitute with wheat, 
 
 " Compiled Statutes of Nebraska, sec. 472 ; cf. Howell's Annotated 
 Statutes of Michigan, sec. 2259, for a poll of the people in townships on 
 the payment of bounties for the destruction of wolves and panthers. 
 
 "Session Laws of Kansas, 1871, p. 211 (chap. 91). 
 
 '"Ibid., 1883, chap. 112. 
 
 " Session Laws of Nebraska, 1891, p. 310 (chap. 41). 
 
 ''Ibid., p. 302 (chap. 39). 
 
264 THE REFERENDUM IN AMERICA 
 
 corn, oats and potatoes.'^ This too was a measure induced 
 by a drought and it was meant to assist the poor in respect 
 of the next harvest.*^ 
 
 In at least two States, Pennsylvania and West Virginia, a 
 very odd system is employed. Sheep farmers are compen- 
 sated by way of the referendum for injury inflicted upon 
 their flocks by dogs. By a law of 1878 in Pennsylvania the 
 owners of dogs were annually assessed and taxed fifty cents 
 for each male dog and one dollar for each female dog. The 
 sum thus collected in each county was to go into a " sheep 
 fund " from which payments were to be made from time to 
 time to flock-masters to indemnify them for losses traceable 
 to dogs. The amount in damages due any claimant was to be 
 established by appraisers regularly appointed to this task. 
 The surplus remaining in the county treasury after payment 
 of all necessary sums was to be made over to the school 
 treasurers of the various school districts into which the 
 county was divided. The tax was not to be levied in any 
 county, however, until the electors had voted " For the Sheep 
 Law " or " Against the Sheep Law ", and a majority of them 
 had accepted the provisions of the act. To avoid the too 
 frequent recurrence of elections the people were to be polled 
 on this subject not oftener than once in two years."' Dogs 
 are taxed in the same way in West Virginia, the proceeds 
 being set aside as a fund from which damages will be paid to 
 the owners of sheep whose flocks have suffered from this 
 cause. In forty-six counties of the State the taking effect 
 of the act is made conditional upon a favorable vote of the 
 people at an election " For the Dog Tax " or " Against the 
 Dog Tax ". The law when it has once come into opera- 
 tion in any county may be repealed as it was originally adopted 
 by popular vote."** 
 
 There are not a few instances in which the erection of 
 
 "' General Statutes of Kansas, 1889, sees, i860 et seq. 
 " Cf. State ex rel. v. Osawkee Tv/p., 14 Kan. 418. 
 " Session Laws of Pa., 1878, p. 198. 
 "Code of West Virginia, 3rd ed., 1891, p. 600. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 265 
 
 monuments to soldiers, naval or military heroes and other 
 eminent men is made the subject of a referendum. Thus 
 in Iowa, when a petition which has been signed by " a ma- 
 jority of the members of the Grand Army posts " within any 
 county is presented to the board of supervisors of that county, 
 the proposition to levy a tax to aid in " the erection of a sol- 
 diers' and sailors' monument or memorial hall " must be sub- 
 mitted to popular vote.°^ In counties in Ohio when suf- 
 ficient money has not been privately subscribed for the erec- 
 tion of a monument " in memory of those who died or were 
 killed during the war of 1861 " a referendum may be taken 
 on the question of collecting a county tax for this purpose."" 
 In Wisconsin, upon a favorable vote of the people, any 
 county board may appropriate a sum not exceeding $10,000 
 for a monument or other memorial to the soldiers of the Civil 
 War,®^ and any town, city or village in Wisconsin may, by 
 popular vote, determine " to erect a suitable monument or 
 memorial building to the memory of any such residents 
 thereof as may have lost their lives in the military or naval 
 service of the State or United States, or in rendering great 
 State or national service or in consequence of any such serv- 
 ice ".°* By a law of 1896 the people of certain cities in Ohio 
 may vote a tax for the erection of a monument to General 
 Anthony Wayne.°* In the same State a county tax may be 
 laid, by way of a plebiscite, for a " soldiers' library and 
 armory building " for the use of " posts of the Grand Army 
 of the Republic and kindred and auxiliary organizations ".^'"' 
 By a law of 1869 in New York the legislature extended the 
 right to " the electors of any town at any regular town meet- 
 ing or of any county at any regular election to vote any sums 
 of money to be designated by a majority of all the electors 
 voting at such town meeting or election for the purpose of 
 
 "Code of Iowa, 1897, sec. 435. °^ Revised Statutes oi Ohio, sec. 893. 
 
 " Sanborn and Berryman's Wisconsin Statutes, sec. 670. 
 
 "Ibid., sec. 937. 
 
 "Session Laws of Ohio, 1896, p. 651; cf. ibid,, p. 718. 
 
 *'"Ibid., p. 700. 
 
266 THE REFERENDUM IN AMERICA 
 
 erecting a public monument within such town, or for the 
 county as the case may be, in memory of the soldiers of such 
 town or county or in commemoration of any public person 
 or event "."^ 
 
 In some States the people in their local communities may 
 determine whether they shall pay their " road tax " in money 
 or in labor. To " work out " the tax is a privilege upon 
 which a high value is placed in many rural communities, since 
 it enables the farmers who have few resources besides their 
 tools and implements, their teams and their own muscular 
 strength to escape a money payment. The repairs to the 
 highways are made at a season of the year when the popula- 
 tion is not otherwise busily engaged and, under the direction 
 of a locally designated officer, large parties of men who are 
 thus " working out " their tax may be met at certain periods 
 along the American countryside. That the service rendered 
 by a force of men recruited in this way is in the nature of the 
 case quite poor and ineffective is not a conclusive argument 
 in favor of the abandonment of the system in many parts 
 of our' democracy. If the system is to be abandoned the tax- 
 payers ask that they shall at least be consulted in regard to 
 the change, a right that they have won in lUinois,^"^ Wiscon- 
 sin,!"' and Michigan,"* 
 
 A rather peculiar referendum is met with in North Caro- 
 lina. When convicts are employed in work on the public 
 roads they must be fed and maintained in some manner. In 
 a North Carolina county the citizens were lately asked to 
 decide whether a tax should be laid for the benefit of a fund 
 to be used " for the support of convicts and prisoners and 
 persons owing otherwise non-collectible fines " while thus 
 engaged on the roads in the public service. ^°° 
 
 In the exercise of its benevolent task of caring for the poor 
 
 '" Session Laws of New York, 1869, p. 2056, chap. 855. 
 '°^ Starr and Curtis' Annotated Statutes of Illinois, p. 3586. 
 '™ Sanborn and Berryman's Wisconsin Statutes, sec. 776. 
 "' Howell's Annotated Statutes of Michigan, p. 398. 
 '"Public Laws of North Carolina, 1895, p. 350. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 267 
 
 the local governments sometimes tax the citizens for the pur- 
 chase of a hearse and the erection of a vault in order that 
 no one may be without suitable burial. The proposition that 
 a tax shall be levied for either or both of these purposes is 
 submitted to popular vote in townships and villages in 
 Ohio."' 
 
 A question which is referred to the people of local districts 
 in Ohio with curious frequency is deserving of special re- 
 mark. This concerns the payment of the claims of officers 
 and magistrates, holding positions of local trust, who have lost 
 the public money by investing it in unsound banks and who 
 have been obliged to make up the amount themselves, or their 
 sureties for them, in order to indemnify the public treasury. 
 For instance a township treasurer, one Alpheus Wilson, had 
 placed $1,642.77 in a bank which afterward failed. When 
 the affairs of the institution were wound up it was found that 
 it could pay to its creditors only 80 per cent, of the amount 
 due them. There was thus a deficit in the accounts of Wilson 
 amounting to $328.55. The State legislature was unwilling 
 to relieve the treasurer and his sureties on its own responsi- 
 bility, but declared that this would be done in case a majority 
 of the electors of the township voting on the subject should 
 agree to the peculiar proposition. The people voted then 
 " For the relief of Alpheus Wilson — yes " or " For the relief 
 of Alpheus Wilson— no "."^ 
 
 In the same year a still more curious case of this kind 
 made its appearance in Ohio. This was a proposal for the 
 reimbursement of a supervisor of highways, one Rodney 
 Prentis, who while in office, it was said, had caused " certain 
 parties to be arrested for leaving dead animals unburied near 
 the highway to the annoyance and discomfort of the public 
 and the detriment of the public health ". Later on one of 
 the " parties " in question had instituted a suit at law in a 
 county court against Prentis " for alleged malicious prosecu- 
 tion whereby said Prentis was put to a great expense in de- 
 
 *" Revised Statutes of Ohio, sees. 1485 et seq., 2556- 
 "'Laws of Ohio, 1896, p. 456. 
 
268 THE REFERENDUM IN AMERICA 
 
 fending said cause, and while said action finally terminated 
 in favor of said Prentis, he was, by reason of the insolvency 
 of the plaintiff, compelled to pay a large amount of costs in 
 addition to attorney fees to his counsel ". The people then 
 were to be polled at a township election to find out whether 
 they would pay a sum not to exceed $400 " to reimburse the 
 Rodney Prentis estate ".^"^ In another case a referendum 
 was taken in a township in Ohio for the reimbursement of a 
 firm of builders and contractors who were alleged to have 
 sustained a loss of $500 in the construction of a school 
 house.^°° In 1896 alone tlie legislature of Ohio appears to 
 have passed no less than twelve of these conditional laws for 
 the relief or reimbursement of local officers, or individuals, 
 or firms. This is all a singular commentary on the foresight 
 and talent of local financiers who seem not to be able to 
 adjust matters of this kind without appeals to the State legis- 
 lature, or else it is an odd feature of the American system 
 of party government devised by the politicians in oi'der that 
 they may keep in the good graces of their lieutenants in rural 
 constituencies, which is much more likely to be the true ex- 
 planation of the phenomenon. 
 
 The referendum is also employed quite frequently in ad- 
 justing the salaries of city and other local officers, and in 
 granting pensions to members of the civil service. Thus in 
 Colorado " in cities and towns of not more than 5,000 in- 
 habitants, incorporated under the territorial laws of Colorado 
 or by special charter, the mayor and aldermen, or the trus- 
 tees in places having such officers, shall not receive any 
 compensation for services rendered by them as such mayor, 
 aldermen or trustees, unless the question of paying such 
 mayor, aldermen or trustees for their services shall first be 
 submitted to the legal voters of such city or town, and unless 
 a majority of those voting thereon shall vote in favor 
 
 "'Laws of Ohio, 1896, p. 673. 
 
 ™Ibid., p. 533; cf. Local Acts of Michigan, 1891, p. 865; ibid., 1893, 
 P- 579- 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 269 
 
 thereof ".^^'' The question of increasing the salary of the 
 Mayor of Hagerstown, in Maryland, was recently submitted 
 to a vote of the people of that city.^^^ In New Jersey there 
 are a number of conditional acts of this kind. One refers 
 to the people of cities the question of creating a new office, 
 president of the "board of aldermen, common council or 
 council " who is to receive in salary half as much as the mayor 
 of the same city;^^'' others, the question of increasing the 
 compensation of employees of the fire department ; ^^" others 
 of increasing the pay of persons engaged in the city police 
 service.^^'' In New Jersey, too, the people of cities may de- 
 termine whether pensions shall be granted to police officers 
 and policemen who have reached a certain age and have been 
 in the service of the city for a period of twenty years. ^^° In 
 the cities of Missouri the people may decide whether or not 
 pensions shall be paid to policemen who may have sustained 
 injuries while on public duty.^^" In any town in the State of 
 New York teachers who have taught continuously in the 
 public schools for a period of twenty-five years or more may 
 receive monthly payments from a pension fund, if the tax- 
 payers of the town shall vote in favor of making them such 
 compensation.^^^ 
 
 An annual budget to take the place of the great number of 
 separate appropriation bills, putting science and system into 
 a field where only disorder has reigned hitherto, is gradually 
 making headway in the local governmental practice of the 
 different States. Where this reform has been introduced the 
 referendum is often applied as a kind of penalty on all appro- 
 priation bills which the council or board of government has 
 neglected to include in the general budget. Thus in North 
 
 "» Mills' Annotated Statutes of Colorado, 1891, sec. 4537. 
 
 ™ Session Laws of Maryland, 1894, p. 151. 
 
 "' General Statutes of. New Jersey, p. 500. 
 
 ^"Ibid., pp. 1506, 1519, 1524, 1558. 
 
 '^'Ibid.. pp. 1536, 1537. 1543, IS45, ISS7- '"Ibid., p. IS37- 
 
 ™ Session Laws of Missouri, 1895, P- 236. 
 
 "' Banks and Brothers' Revised Statutes of New York, gth ed., p. 
 
 3089. 
 
270 THE REFERENDUM IN AMERICA 
 
 Dakota, with respect to cities, it is provided that there shall 
 be an " annual appropriation bill " covering all necessary sub- 
 jects, and that " no further appropriations shall be made at 
 any other time within such fiscal year unless the proposition 
 to make each appropriation has been first sanctioned by a ma- 
 jority of the legal voters of such city either by a petition 
 signed by them or at a general or special election duly called 
 for that purpose "."*' Similar provisions occur in the 
 statutes of South Dakota,"' Nebraska,i2» Illinois,^" and 
 Michigan.^^^ An interesting exception to the general pro- 
 hibition is met with in Illinois where upon a two-thirds vote 
 of the council or legislative board in any city or village an 
 appropriation bill may be passed definitively and without a 
 poll of the people, if the money which it carries with it is in- 
 tended for improvements rendered necessary by a " casualty 
 or accident happening after such annual appropriation is 
 made "."' 
 
 In the school administration a prolific field is afforded for 
 the development of the referendum. The progress which has 
 been made in introducing the people as direct agents in legis- 
 lation, in the specially organized school districts and other 
 local governmental subdivisions with which the responsibility 
 for public education rests, is very noteworthy. At a very 
 early time, it having been recognized that gratuitous school- 
 ing of the masses the cost of which was to be borne by the 
 taxpayers, was a rather unusual exercise of public power, 
 the people were asked to declare whether they were in favor 
 of such an extension of local functions. And from the be- 
 ginning onward in the erection of new school buildings, 
 the introduction of new equipment and new and higher 
 courses, the increase of the length of the school term and 
 other proposals which are made from time to time to improve 
 the public school system, involving as they all do a free ex- 
 
 "' Revised Codes of North Dakota, sec. 2262. 
 
 "" Laws of i8go, p. 89. "° Compiled Statutes, p. 196. 
 
 '-' Starr and Curtis' Statutes, p. 726. '" Local Acts of 1891, p. 134. 
 
 ^^ Starr and Curtis' Statutes, p. 726. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 271 
 
 penditure of public money, the taxpayers are called upon to 
 give their assent before fresh financial obligations are in- 
 curred. Thus as early as in 1825, when it was a question of 
 establishing a general system of free primary schools in Mary- 
 land, the local option principle was made use of. The electors 
 of each county of the State when they next voted for delegates 
 to the General Assembly were to declare (it would appear 
 viva voce) whether they were for or against the establish- 
 ment of these schools. The act was to become operative only 
 in counties in which a majority of the votes cast on the propo- 
 sition were In favor of the schools ; in other counties remain- 
 ing void and of no effect. ^^* 
 
 Likewise in Pennsylvania by an act, passed by the State leg- 
 islature in 1836, " to consolidate and amend the several acts 
 relative to a general system of education by common schools " 
 every township, borough or ward in the State was constituted 
 a separate " school district ", the oiEcers of which could tax 
 the inhabitants and exercise other functions. In each district, 
 each year until a favorable majority should be secured for the 
 proposition, the citizens were to deposit their ballots marked 
 " Schools " or " No Schools " in the boxes at the polling 
 booths. In districts in which the proposition had been de- 
 
 '^ Laws of Maryland for 1825, chap. 162, " An act to provide for the 
 public instruction of youth in primary schools throughout this State ". 
 The last two sections of the act were as follows : " Sec. 29, Be it en- 
 acted that at the next election of delegates to the General Assembly 
 every voter, when he offers to vote, shall be required by the judges of 
 election to state whether he is for or against the establishment of primary 
 schools and the said judges shall record the number of votes for and 
 against primary schools and make return thereof to the legislature dur- 
 ing the first week of the session and if a majority of the said votes in 
 any county shall be in favor of the establishment of primary schools, 
 as is therein provided for, then and in that case the said act shall 
 be valid for such county or counties, otherwise of no effect whatever. 
 
 " Sec. 30. And be it enacted that if a majority of the votes of any 
 county in this State shall be against the establishment of primary 
 schools as established by this act then and in that case the said act 
 shall be void as to that county." This law led to one of the most im- 
 portant of the early judicial opinions on " local option '' measures. Cf. 
 Burgess v. Pue, 2 Gill. 11. 
 
272 THE REFERENDUM IN AMERICA 
 
 feated, the people might vote on it again a year later. Dis- 
 tricts which in any year should adopt it could retrace their 
 steps and discontinue the system upon a vote of the people in 
 1837 and every third year thereafter. Where the people had 
 declined to assume the increased obligations children whose 
 parents could not afford to educate them privately were still, 
 however, at this comparatively late period in the State's his- 
 tory not brought up in total ignorance, but were sent to school 
 under a more economical system in obedience to the terms of 
 " an act to provide for the education of the poor gratis ".^"^ 
 Nevertheless such a law gave to those children who availed 
 themselves of this opportunity to obtain a free schooling, a 
 rather opprobrious position in the community as paupers and 
 dependents, and was far from being a general system of public 
 education which the law of 1837 contemplated and which has 
 since been the outgrowth of these modest beginnings. ^^° 
 
 "" Cf. Acts of Assembly of Pa., 1808-9, chap. 114; Acts of Assembly, 
 1855-36, p. 525, sec. 16. 
 
 "° The law of 1836 in Pennsylvania which is to be found in Pa. Acts 
 of Assembly of that year. No. lefr, p. 525, sec. 13, says: "The school 
 directors of every school district which shall not have adopted the 
 common school system shall annually call a meeting of the qualified 
 citizens of the district on the day of election for directors to be held 
 at the usual place of holding township, ward or borough elections by 
 at least six advertisements put up in the most public places in the dis- 
 trict for the space of two weeks ; and the said meeting shall be organ- 
 ized between the hours of one and four o'clock p. m. on the said day, 
 by appointing a. President and the secretary of the board of directors, 
 or in his absence some other member of the board shall perform the 
 duties of secretary to the meeting ; when the meeting is so organized 
 the question of establishing the common school system in the district 
 shall be decided by ballot and the said president and secretary shall 
 perform the duties of tellers to the meeting and shall receive from 
 every person residing within the district qualified to vote at the gen- 
 eral election a written or printed ticket containing the word ' Schools ' 
 or the words ' No Schools ' and shall continue without interruption or 
 adjournment until the electors who shall come to the said election shall 
 have opportunity to give in their respective votes and the said tellers 
 shall count the votes and if a majority shall contain the word 
 ' Schools ' the secretary shall certify the same to the board of directors 
 of the district who shall proceed to establish schools therein agreeably 
 to the provisions of this act, but if a majority shall contain the words 
 ' No Schools ' the secretary shall certify the same to the county com- 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 2 73 
 
 This referendum with respect to school taxes made its ap- 
 pearance at about the same time in other States of the Union. 
 The " Free School Law " which was submitted to the people 
 o'f the State by the legislature of New York in 1849, leading 
 to that notable judicial opinion in Barto v. Himrod,'^' fur- 
 nishes additional evidence that public expenditure on account 
 of the public schools was early regarded as a suitable subject 
 for a popular vote. 
 
 Throughout all the later stages of the development of our 
 system of public education into its present form the people 
 have continued to figure extensively as a law-making agency. 
 There is a polling of the citizens of local districts in reference 
 to the collection of taxes which are to be used to supplement 
 the appropriations for general school purposes received from 
 the treasury of the State. Thus in Arkansas a plebiscite is 
 taken in school districts at the instance of the county court to 
 determine what rate, not in excess of five mills on the dollar, 
 shall be levied " for the support and maintenance of public 
 schools ". This tax would appear to be in benefit of a local 
 fund for general school purposes, and is not to be allocated to 
 any special line of educational work. If the people should 
 refuse to vote this money to the school administration it is to 
 be presumed that public schools would still exist within the 
 district, though their efiSciency would not be so great.^"" A 
 
 missioners of the proper county; and the school directors of every 
 school district which may have adopted the common school system 
 may, if they deem it expedient, call a meeting of the qualified citi- 
 zens of the district on the first Tuesday in May in the year 1837 and 
 on the same day in every third year thereafter, to be held at the usual 
 place of holding township, ward or borough elections, at which time 
 and place an election shall be held to decide by ballot whether the 
 common school system shall be continued or not; the notice for hold- 
 ing said elections to be in conformity with the preceding part of this 
 section; and should there be a majority of the taxable inhabitants of 
 said district in favor of ' No Schools ' the secretary shall certify the 
 same to the county commissioners of the proper county and the opera- 
 tion of the common school system shall be suspended in said district 
 until such time as a majority of the citizens shall otherwise decide." 
 
 >" 4 Seld. 483- 
 
 ™ Sandels and Hill's Digest of the Statutes of Arkansas, 1894, sec. 
 6416; cf. Constitution of Arkansas, art. xiv, sec. 3. 
 
274 THE REFERENDUM IN AMERICA 
 
 supplementary tax for school purposes may be voted by the 
 people of local districts in Georgia. ^^' In Florida, Texas, 
 West Virginia, Kentucky and Missouri there are local elec- 
 tions on the subject of levying taxes which are to supplement 
 the appropriations from the State school fund and place 
 larger sums at the disposal of school officers with a view to 
 raising the standards of instruction and increasing the effi- 
 ciency of this branch of the public administration.^^" 
 
 It will be noted by all who will stop to examine into this 
 subject that a poll of the people in regard to school levies, 
 with its attendant uncertainties, still finds favor to-day only in 
 those sections where the common school system has not yet 
 been established on very firm foundations. Where the pov- 
 erty of the people and their general heedlessness in regard to 
 education is so great that the State legislature hesitates to lay 
 the tax definitively and fix upon its amount, the referendum 
 is an institution whose intrinsic value will not greatly impress 
 any competent student of political forms. It is here a mere 
 device by which the representatives of the people in a democ- 
 racy are enabled to escape their just share of responsibility. 
 
 Furthermore there are referenda with specific ends in view 
 respecting the public school administration, as for instance, on 
 the subject of the purchase of land upon which to erect school 
 buildings, the construction of these buildings and the equip- 
 ment of the same.^'^ As the charges on school account are 
 
 '^ Code of Georgia, 189s, sees. 1399 et seq.; cf. Constitution of 
 Georgia, art. viii, sec. 4. The ballots are ^p contain the words " For 
 local taxation for public schools " or " Against local taxation for public 
 schools ". 
 
 '■"Constitution of Florida, art. xii, sec. 10; Constitution of Texas, 
 art. vii, sec. 3; Sayle's Civil Statutes of Texas, 1888, art. 425a; ibid., 
 ait. 3733 et seq.; supplement to Sayle's Civil Statutes, i888 to 1893, 
 art. 3730; ibid., 3733a et seq.; Code of West Virginia, 3rd ed., 1891, 
 p. 361; Barbour and Carroll's Kentucky Statutes, sees. 4457 et seq.; 
 Constitution of Missouri, art. x, sec. 11. 
 
 "' Sayles' Civil Statutes of Texas, 1888, sec. 3733 ; Laws of California, 
 1891, p. 264; ibid., 1893, pp. 249, 263, 267; Starr and Curtis' Annotated 
 Statutes of Illinois, pp. 36891, 3692; Code of Mississippi, 1892, sec. 3014; 
 Montana Codes, 1895, Vol. I, sees. 1940, 1962 ; Constitution of Colo- 
 rado, art. xi. sec. 7. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 275 
 
 in some measure proportionate to the number of months in 
 the year school is kept, this subject in many communities 
 is also left to the decision of the whole electorate. If the tax- 
 payers desire it teachers will be employed for a longer time 
 and the pupils can therefore be given a more thorough train- 
 ing at the public expense. With increased funds the stand- 
 ards can be raised, the instruction improved and the results 
 will be very much better as measured by the mental develop- 
 ment of the children. Although such a subject, in common 
 with most others affecting public education, would seem to 
 be one which the people en masse are not well qualified to 
 deal with, they are often called in to say yes or no on grave 
 questions of this character. Pecuniary considerations in local 
 districts, where men reside to whom education is a name, in- 
 stead of an experience, are likely to operate actively to prevent 
 the development of an enlightened policy in regard to schools. 
 For instance, in West Virginia it appears that the legislature 
 makes it compulsory for a district to keep school during only 
 four months out of the twelve. On the initiation of the 
 " Board of Education ", or on the petition of twenty voters 
 of any district, the question of extending this period must be 
 submitted to popular vote. The electors who favor the in- 
 crease of time are to vote " For months school ", the 
 
 number desired being supplied, and those opposed to the ex- 
 tension of the period " Against more than four months 
 school ".^'^ This referendum occurs in a number of States. 
 In Illinois it is not lawful in any township " for a board of 
 directors to levy a tax to extend schools beyond nine months 
 without a vote of the people "}^^ 
 
 With the development of the public school system the idea 
 has gained ground that text books should be supplied free of 
 cost to the pupils. Since this policy increases the expense 
 of administration the specific question of free text books is 
 
 '^'Code of West Virginia, 1891, p. 382; cf. Session Laws of West 
 
 Va., 1897, PP- 169. 172- _. ^^ , ^ 
 
 ""Starr and Curtis' Statutes of Illinois, p. 3689; cf. Kentucky Stat- 
 utes, sees. 4457 e* ^^1- 
 
276 THE REFERENDUM IN AMERICA 
 
 sometimes referred to the electors in counties and school dis- 
 tricts, as in South Dakota,^'* Montana^'^ and other States. 
 
 As the school term is increased in length, new courses be- 
 ing added and the standards of instruction heightened, the 
 demand arises for graded schools. Effective results were not 
 to be secured, especially in cities and towns where there are 
 many pupils to be taught, by confining all the children in one 
 room or even in one building and bringing them all before the 
 same teacher or teachers. The " High School " soon made 
 its appearance in our public educational scheme. In cities 
 it now exists almost everywhere and there are sometimes 
 county high schools and township high schools, which are 
 maintained at places in the county or township convenient to 
 the students who are entitled to receive free instruction in 
 rural districts. In many parts of the country, however, it 
 is not regarded as an indispensable feature of the school ad- 
 ministration, and, since the establishment of a graded system 
 means the outlay of a considerable sum of money, the ques- 
 tion is submitted to popular vote. In some cases townships 
 and other local districts, which could not separately afford so 
 great an outlay, unite to establish and maintain high schools. 
 They then use them jointly. The local referendum in respect 
 of high schools occurs in Iowa,^^° California,^^^ West Vir- 
 ginia,"^ Illinois,"" Kansas,"" Kentucky,"^ Nevada,"^ Wis- 
 consin^*' and other States. 
 
 Similarly in the establishment of schools of a still higher 
 or of a special character the public money is sometimes ap- 
 
 "* Session Laws of 1891, p. 237. 
 
 '"^ Session Laws of 1897, p. 61. 
 
 "° Code of Iowa, 1897, sec. 2728. 
 
 "" Laws of California, 1891, pp. 57, 182 ; ibid., 1893, p. 268. 
 
 "° Code of West Virginia, p. 371. 
 
 "° Starr and Curtis' Statutes, p. 3660. 
 
 i» Webb's General Statutes of Kansas, chap. 64. sees, i et seq. 
 
 "' Kentucky Statutes, sec. 4464 ; cf. ibid., 4487, for a peculiar plebis- 
 cite in which only negroes vote on the question of establishing a 
 graded school for colored chldren. 
 
 "'Statutes of Nevada, 1895, p. 28. 
 
 "' Sanborn and Berryman's Statutes, 1898, p. 384. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 277 
 
 propriated subject to the popular approval. The Constitution 
 of Kentucky says : " No sum shall be raised or collected for 
 education other than in common schools until the question of 
 taxation is submitted to the legal voters and the majority of 
 the votes cast at said election shall be in favor of such taxa- 
 tion ".^** In Illinois, in such counties as have not yet taken 
 up township organization, the question of founding and main- 
 taining a county " Normal School ", in which to educate and 
 fit teachers fou their profession, is submitted to popular vote. 
 In other counties in Illinois representative officials may act 
 upon their own initiative in the establishment of such 
 schools."^ In North Carolina by a law of 1891, elections 
 were authorized in cities and towns in respect of a subscrip- 
 tion of money to a newly established " Normal and Industrial 
 School for White Girls 'V*® and in South Carolina similar 
 subscriptions might be made on authority of the people of 
 counties, cities or towns in benefit of a branch of the State 
 University to be known as " The Winthrop Normal and 
 Industrial College of South Carolina "}" 
 
 Akin to this referendum on school questions is another in 
 respect of public libraries. The free hbrary as a government 
 establishment is a still later development than the free school. 
 The value of rooms to which the people may freely go in order 
 to read, and of loan libraries, from which they may take out 
 books to peruse them at their leisure in their homes, is in many 
 communities not fully understood. Where such advantages 
 are appreciated it is often felt that it may be left to private 
 benefactors to supply the people with library facilities. As 
 in respect of universities and establishments of higher learning 
 when private donations are forthcoming the government is 
 disinclined to enlarge its sphere and add to its obligations. 
 In many communities in which it is pretty well recognized that 
 a public library would be a desirable thing there is fear that 
 
 "' Constitution of Kentucky, sec. 184. 
 
 "° Starr and Curtis' Statutes, p. 3733. 
 
 "" Session Laws of North Carolina, 1891, p. 126. 
 
 '"Revised Statutes of South Carolina, 1894, Vol. I, p. 397. 
 
278 THE REFERENDUM IN AMERICA 
 
 the taxpayers would not care to be charged with the expense 
 and thus in cities, towns, townships and other local districts 
 the referendum comes into play. In Illinois when a petition 
 which bears the sigfnatures of fifty or more legal voters is 
 presented to the ofi&cers of any incorporated town, village or 
 township requesting that an election be held to determine 
 whether a tax not exceeding two mills on the dollar shall be 
 levied therein for establishing and maintaining a free public 
 library the proposition must be submitted to popular vote.^*' 
 The same question is referred to the people of local districts 
 in many other States as in lowa,^*" Kansas,^^" Michigan,^''^ 
 Minnesota,^°^ Missouri,^" New Jersey,^"* New York,^" 
 Ohio,^"" and Utah.^°' In New York the people of local dis- 
 tricts may vote upon the question of appropriating a sum of 
 money in aid of private libraries on the condition that these 
 libraries shall be kept open for the public's free use.^''' 
 
 "'Starr and Curtis' Statutes, p. 2531. 
 
 "° Code of Iowa, sec. 727. 
 
 i5» Webb's Statutes, chap. 39, sec. 28, and chap. 42, sec. $3. 
 
 ^'- Howell's Annotated Statutes, 1882, p. 1362. 
 
 '°° Statutes of Minnesota, 1894, sec. 1425. 
 
 ^" Session Laws, 1897, p. 50. 
 
 '" General Statutes, 1896, pp. 1950, 1953 and 1956. 
 
 "^ Banks and Brothers' Revised Statutes, gth ed., p. 1490. 
 
 "' Revised Statutes of Ohio, sec. 1476. 
 
 "" Laws of 1896, p. 144. 
 
 "'Banks and Brothers' Revised Statutes, p. 1490. 
 
CHAPTER XI 
 
 THE LOCAL REFERENDUM LOAN BILLS AND FINANCIAL PRO- 
 POSALS CONTINUED 
 
 There is a tendency constantly at work among munici- 
 palities and other local governments impelling them to in- 
 crease the public indebtedness excessively. With a view to the 
 prevention of overissues of bonds, extravagant expenditures 
 and too free a use of the taxing power, the constitutional con- 
 ventions, as I have noted already, not infrequently take the 
 matter in hand. Definite limits are established beyond which 
 local governments may not go in debt-making and these pro- 
 visions are often of a general character applying to all forms 
 of indebtedness, no matter what the specific purpose of the 
 loan. As a method of applying restraint to the local councils 
 and boards, and the State legislatures as well, since the latter 
 might give too much play to the communities in this particu- 
 lar, we have gone behind these agents and have put our pro- 
 hibitions in the constitutions. One of the most thorough- 
 going of these constitutional provisions, in so far as the refer- 
 endum has been employed and has become a feature of the 
 plan, occurs in the Constitution of North Carolina. This 
 provision is as follows : " No county, city, town or other 
 municipal corporation shall contract any debt, pledge its faith 
 or loan its credit, nor shall any tax be levied or collected by 
 any officers of the same, except for the necessary expenses 
 thereof, unless by a vote of the majority of the qualified 
 electors therein ".^ 
 
 In Colorado no city or town may make a loan of any amount 
 whatsoever except for the purpose of securing a suitable water 
 supply for the citizens until the proposition shall first have 
 been approved by popular vote. The aggregate amount of 
 
 •Art. vii, sec. 7. 
 
 279 
 
28o THE REFERENDUM IN AMERICA 
 
 the outstanding debt of any such municipality shall never ex- 
 ceed a sum equal to three per cent, of the assessed valuation 
 of its taxable property.^ In Louisiana, likewise, all propo- 
 sitions to " incur debt and issue negotiable bonds therefor " 
 must be submitted to popular vote and, being approved by the 
 people, loans may be contracted " to the extent of one-tenth 
 of the assessed valuation of the property within said municipal 
 corporation, parish, drainage district ", etc.* In West Vir- 
 ginia counties, cities and other local districts may incur in- 
 debtedness with the approval of the people, but in no case may 
 the aggregate amount of such indebtedness be in excess of 
 five per cent, of the assessed valuation, of the taxable property 
 in these districts.* 
 
 In some States the provisions on this subject are not quite 
 so far-reaching. Within certain limits local officers may con- 
 tract debt at their own pleasure. It is only when these limits 
 are passed that the referendum is employed. Of these various 
 provisions the most usual is that which restricts the local 
 governments in the creation of debt in any one year to a sum 
 not exceeding " the income and revenue for that year ". Ex- 
 penditures or loans for any purpose in excess of this amount 
 are made illegal, except with the approval of the people, by 
 the Constitutions of six States, — California," Utah,' Ken- 
 tucky,' Idaho,^ Missouri,* and Wyoming.^" In Pennsyl- 
 vania the debt of municipalities and other local districts is 
 definitely limited at seven per cent, of the assessed valuation, 
 in special cases at ten per cent. Under no circumstances 
 shall the debt be allowed to pass this limit, and every propo- 
 sition to increase it to a point beyond two per cent, of the 
 assessed valuation in any district must have the approval of 
 the people.^^ In the local districts of Georgia proposals to 
 
 ■•Art. xi, sec. 8. 'Constitution of Louisiana, art. 281. 
 'Constitution of West Virginia, art. x, sec. 8; cf. Constitution of 
 South Carolina, art. viii, sec. 7. 
 •Art. xi. sec. 18. 'Art. xiv, sec. 3. 
 'Sec. 157. 'Art. viii, sec. 3. 
 •Art. X, sec. 12. "Art. xvi, sec. 4. 
 " Constitution of Pennsylvania, art. ix, sec. 8. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 281 
 
 create a debt in excess of one-fifth of one per cent., but not 
 higher than seven per cent, (in special cases ten per cent.) 
 of the assessed valuation must be submitted to popular vote ;^^ 
 in the State of Washington beyond one and a half per cent, 
 but not exceeding five per cent, (ten per cent, in special 
 cases). ^^ In Montana " no county shall incur any indebted- 
 ness or liability for any single purpose to an amount exceed- 
 ing $10,000 without the approval of a majority of the electors 
 thereof voting at an election to be provided by law ".^* 
 
 In West Virginia county officers are put under restraint 
 in the assessment and collection of taxes. Except for a few 
 purposes which are enumerated in the Constitution, taxes 
 in excess of 95 cents per $100 of valuation in any one year 
 must be authorized by popular vote.^^ In the counties of 
 Illinois the limit is 75 cents per $100 of valuation and pro- 
 posals for a higher tax rate must be approved by the people.^' 
 The same referendum occurs in counties in Nebraska, when 
 it is a question of making the rate higher than $1.50 per $100 
 of the assessed valuation.^'' 
 
 The loan bill and bond elections are very familiar in cities 
 and other local political districts in all parts of the United 
 States. While the people are, in general, a rather efifective 
 restraining influence upon officers who might otherwise heap 
 up indebtedness inordinately, they are not a certain safe- 
 guard. They have a habit of forgetting one year what loans 
 they have authorized the year before, and are in no sense well 
 fitted to judge when a community's bonded debt is overstep- 
 ping the limit which prudent financiers would establish for it. 
 A city's population, its resources and its ability to meet its 
 obligations conveniently are not far from fixed quantities. 
 That the people know nothing of all this need not be said. 
 They do not know how much debt has been voted before, what 
 
 " Constitution of Georgia, art. vii, sec. 7. 
 
 " Constitution of Washington, art. viii, sec. 6. 
 
 " Constitution of Mtontana, art. xiii, sec. s. 
 
 "Constitution of West Virginia, art. x, sec. 7. 
 
 " Constitution of Illinois, art. ix, sec. 8. 
 
 " Constitution of Nebraska, art. ix, sec. 5. 
 
282 THE REFERENDUM IN AMERICA 
 
 provision has been made for meeting it as it falls due, or how 
 much in safety the district could properly carry. The consti- 
 tutional conventions recognize this fact in a general way when 
 they fix definite limits to the debt as, for instance, five per 
 cent, or seven per cent, of the assessed valuation. 
 
 When the voters of a city are asked to assent to a loan of 
 one, or five, or twelve million dollars, they in the best case 
 consider how it is to be expended, as for instance, for free 
 libraries, new streets or an improved water supply. If they 
 individually feel the need of these improvements and have 
 reason to think that their lot will be made more happy thereby 
 they are very likely to vote for the loan. Often no considerar 
 tions as good as these are at hand. At a recent election on 
 the question of borrowing a large sum of money in Phila- 
 delphia, to be applied to improvements in different parts of 
 the city, purely local and selfish considerations made them- 
 selves felt. Those parts of the city which were to be directly 
 benefited by the loan returned large majorities for it while 
 in other sections it was viewed with curious indifference. 
 Not a few electors who, upon being asked how they had voted 
 on the proposition, explained in all seriousness that they had 
 cast their ballots in favor of the bill because they believed it 
 would put more money in circulation and give the poor a 
 chance to secure some of it. The professional politicians are 
 usually to be found on the side of a loan bill for they know 
 that whenever a large sum of money is to be paid out by the 
 city, for no matter what purpose, there will be opportunities 
 for them and their friends to enrich themselves at the public 
 expense. 
 
 However, one rather important distinction must be noted. 
 While the average voter cares very little whether his city has 
 a debt of $10,000,000 or $100,000,000, since he does not ag- 
 gravate himself with a thought of how it is eventually to be 
 paid, he as a rule approaches a proposition to increase the tax 
 rate in a very different frame of mind. It is of course true 
 that every loan means a heavier burden of taxation, if not at 
 once, at some future time. The postponement of the evil day 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 283 
 
 is however very seductive to the taxpayer. He will look on 
 indifferently while bonds are issued in large sums but it is an- 
 other matter altogether when a direct proposal is made to him 
 for an increase of the tax rate, say, from $1 to $1.25 on each 
 $100 of the assessed value of his property. No matter how 
 good the purpose for which the additional revenues are 
 needed taxpayers will vigorously resist this open attempt to 
 induce them to make over a larger portion of their substance 
 to the " state ". 
 
 As with other referenda, so with these in respect of finan- 
 cial subjects, a majority of the votes cast on the proposition 
 is usually decisive. The approval of a larger number of elec- 
 tors, as two-thirds, must however be secured to validate any 
 increase in the local debt in some of the States, where it is 
 desired to make the conditions more difificult in order the 
 better to protect the public credit. 
 
 (3.) Coming finally to the last sub-class of the referenda 
 upon financial subjects in local communities we find that the 
 people are sometimes consulted, too, with respect to the sale 
 or lease of property which is vested in, or is commonly held 
 by them in a corporate political capacity. The citizens have 
 voted in many cases to determine whether they shall be 
 taxed to acquire this property ; they are now to decide whether 
 it shall be sold or otherwise alienated by the community. In 
 the former case there was a mixture of sentiments inducing 
 the referendum, the chief of which was a fear lest the people 
 disapprove of the new taxes that may be laid perhaps for 
 rather questionable purposes, and will later vote to retire from 
 office those who have imposed these charges upon them. If 
 the people can be made to incur these obligations themselves 
 at their own instance and on their own responsibility repre- 
 sentative officers may escape much unpleasant blame. But 
 in the case of a referendum on the sale of lands and other 
 public property the controlling motive seems to be another. 
 Here, as with a poll Of the people on the question of granting 
 franchises and concessions to private water and lighting com- 
 panies in cities, the people are introduced as a brake upon the 
 
284 THE REFERENDUM IN AMERICA 
 
 local councils and boards which are too prone inconsiderately 
 to dispose of valuable holdings of this kind. 
 
 More jealously guarded than some other forms of public 
 property are the " school lands " which the Congress of the 
 United States, in pursuit of its policy with respect to the 
 public lands, made over to the States for the benefit of educa- 
 tion. " Section number 16 " in each township was regarded 
 as school land and when this section was not available for the 
 grant equivalent transfers were made to the State. This land 
 was vested in the townships, each holding its share for the use 
 of its common schools, and it was sometimes a condition of 
 the grant that neither the section nor any part of it should 
 ever be sold except with the consent of the inTiabitants. 
 Thus by the act of Congress of February 15, 1843, i" reference 
 to the school lands of Illinois, Arkansas, Louisiana and 
 Tennessee it was provided that these lands in any township 
 " shall in no wise be sold without the consent of the inhabit- 
 ants of such township or district to be obtained in such 
 manner as the legislatures of said States shall by law di- 
 rect "." 
 
 Two methods have been employed with the object of se- 
 curing the assent of the people to a sale, the petition and the 
 referendum. Thus in Illinois^* and Arkansas"" the popular 
 sense regarding this question is secured by circulating a pe- 
 tition for the signatures of the citizens; while in Indiana,^^ 
 Ohio,'" Alabama,"' and Louisiana,"* a vote of the people of 
 the township at a referendum, in which the ballots bear the 
 words " Sale " or " No Sale ", or their equivalents, is requi- 
 site. 
 
 The people are sometimes directly consulted also in regard 
 
 " United States Statutes at Large, Vol. V, p. 600. 
 " Starr and Curtis' Statutes, p. 3719. 
 " Sandels and Hill's Statutes, sees. 71 14 et seq. 
 " Horner's Indiana Statutes, sees. 4329 et seq. 
 "Revised Statutes of Ohio, sees. 1418 et seq. 
 " Code of Alabama, sees. 363s et seq. 
 
 ''Wolff's Revised Laws of Louisiana, sec. 2958; cf. Telle v. School 
 Board, 44 La. An. p. 365. 
 
ON LOAN BILLS AND FINANCIAL PROPOSALS 285 
 
 to the lease of school lands, as in Indiana.'"' This referendum 
 has found its way into the Constitution of at least one State, 
 Kansas.^" 
 
 Public property of other kinds — not lands — is sometimes 
 vested in the people of a community in this special manner, 
 a legal sale being possible only after a petition requesting that 
 this course shall be taken, has been signed by a large number 
 of the inhabitants, or an election is held and the people vote in 
 favor of the sale. In the counties of Kansas poor asylums 
 or poor farms which represent a value in excess of $3,000 
 may be sold or leased only by way of the referendum.*' In 
 Missouri in cities of the " first class " the " municipal assem- 
 bly " may pass an ordinance for the sale or lease of " any of 
 the parks, places or squares " of the city. However " no 
 such sale or lease shall be made by the municipal assembly 
 unless the ordinance providing therefor be submitted to a 
 vote of the qualified voters of the city for ratification at a gen- 
 eral election, and be ratified by a majority of the qualified 
 voters of the city ".** Any township in Ohio may sell " real 
 estate or buildings which it does not need ", if the people of 
 the district indicate their approval of the policy.*" An act 
 passed by the legislature of Ohio in 1887 authorized a poll 
 of the people in the city of Cincinnati on the question of sell- 
 ing a line of railway which had been under the ownership and 
 control of the commonalty.^" 
 
 "Horner's Indiana Statutes, sec. 4329; cf. Acts of Tennessee, 1889, 
 p. 72. 
 
 ^ Constitution of Kansas, art. vi, sec. 5. 
 "Webb's Statutes of Kansas, chap. 156, sec. 37. 
 "Revised Statutes of Missouri, 1889, p. 348. 
 "Revised Statutes of Ohio, sec. 1481. 
 "Ibid., sec. 9868. 
 
CHAPTER XII 
 
 THE LOCAL REFERENDUM LOCAL OPTION LIQUOR LAWS AND 
 
 VEXED QUESTIONS 
 
 We have arrived now finally at the third and last general 
 class in the scheme which was originally mapped out for the 
 discussion of this subject. In this class are embraced the 
 referenda on vexed questions of various kinds regarding 
 which the people hold very opposite opinions and are likely 
 violently to disagree. I have noted in my remarks con- 
 cerning some of the earlier classes of local referenda, 
 more particularly those on financial questions, that many of 
 these proposals are essentially of a disagreeable and vexing 
 character. The legislature hesitates either to enact or to re- 
 fuse to enact a certain measure. It would be criticized by 
 partisans no matter what policy it should adopt. The legis- 
 lators say then to the people : " We will refer this question to 
 you. You elect us and we represent you. In this matter we 
 will submit the law directly to you and if you are in favor of 
 it you may pass it ; if, however, you are opposed to it you will 
 reject it. In any case you cannot blame us." 
 
 The most familiar type of conditional legislation of this 
 kind in local communities relates to the control and prohi- 
 bition of the traffic in intoxicating liquors. In the local dis- 
 tricts, as in the States, the referendum in respect of this sub- 
 ject enjoys a wide application and it has been in common use 
 for more than fifty years. This local veto, a majority of the 
 electors in a county, a township or a borough having the 
 power to decide whether or not liquors shall be sold therein, 
 has come to be looked upon as an almost necessary feature of 
 American government. It is generally approved by writers 
 
 286 
 
ON LIQUOR LAWS AND VEXED QUESTIONS 287 
 
 on constitutional subjects and by the courts, and lacking this 
 method it would be difficult to suggest another which would 
 be so satisfactory to great bodies of the people who are the 
 bone and sinew of the American democracy. Whether an 
 attempted regulation of the habits of men with respect to what 
 they eat and drink is a perilous attack on individual rights 
 without which no society can have native strength and original 
 purpose, or whether it is not, there is a general disposition 
 to say to the drinker or the dram seller on the one side that he 
 must conform to the wishes of the majority, and to the tee- 
 totaler and the reformer of mankind on the other that he must 
 do the same thing. Constitutional thinkers familiar with our 
 practice will remark, whether they are individualists or advo- 
 cates of state intervention, that a community has the un- 
 doubted " right " to prohibit the sale of liquors inside its 
 borders, if the people at a plebiscite express their approval of 
 this policy. Such a community is held to possess the 
 " right ", even without a direct vote of its inhabitants in favor 
 of prohibition, in the regular exercise of the police power. 
 Through its appointed agents liquor selling may be restricted 
 by the local corporation ; it may also be forbidden, but the lat- 
 ter is a course which the legislature on its own responsibility 
 will rarely authorize the officers of a county, a township or 
 other local district to pursue until public sentiment shall be- 
 come much more nearly unanimous than it is to-day. 
 
 The referendum affords a most convenient way out of a 
 disagreeable predicament, for by our " local option " system 
 a " general law " may be enacted by the legislature and may 
 stand upon the statute book permitting a vote of the people 
 whenever certain conditions shall be fulflHed, and it still re- 
 mains there even though not a single district in the State has 
 chosen to avail itself of the privilege. It enforces or repeals 
 itself automatically according as the sentiment of the electors 
 with the passage of time may undergo change regarding this 
 question. A more elastic form of legislation it would be hard 
 to devise, and a more ingenious method of escape from the bit- 
 ter attacks of the teetotalers on the one hand and of the users 
 
2(88 THE REFERENDUM IN AMERICA 
 
 of liq.Hors and the pablicans on the other can scarcely be con- 
 ceived. It is pleasant to encounter the hostility of neither 
 faction, as politicians in this country very well know, and the 
 temperance " campaigns " draw political lines so closely and 
 divide social classes so sharply that any device by which a 
 legislator may pass the charge of bias or bad faith back again 
 to the people, from whom it emanates, finds a cordial welcome. 
 Out of such conditions the " local option " principle with 
 respect to subjects of this kind in this country has been a 
 natural development. 
 
 One of the earliest of the local option laws in reference to 
 the sale of liquors which I have been able to find was passed 
 by the legislature of the State of Pennsylvania in 1846. 
 There were' probably local option liquor laws applying to 
 single and separate counties prior to that time, but this date 
 marks with approximation the beginning of the history of 
 this referendum in the United States. The Pennsylvania law 
 of 1846 took into account no larger units than boroughs, 
 wards of cities and townships and these only in some eighteen 
 cpunties, the names of which were distinctly specified. The 
 elections were to be annual commencing with 1847. The 
 ballots were to contain the words " For the sale of liquors " 
 or " Against the sale of liquors ". If a majority of the 
 votes cast on the proposition were in favor of the sale, inns 
 and taverns were to be licensed as they had earlier been; if, 
 however, a majority of the votes cast were against the sale 
 the traffic would be declared to be a " public nuisance " and 
 it would be prohibited and penalized.^ 
 
 A similar law, of application to the separate counties of 
 Delaware, was passed by the legislature of that State in 1847. 
 The people in that year and at any subsequent annual election, 
 when a number equal to one-fourth of those voting at the last 
 preceding election should request it in writing, were to deposit 
 ballots bearing the words " License " or " No License " in 
 " a box provided for that purpose ". In any county voting 
 
 ^Session Laws of Penna., p. 248; cf. ibid., p. 431. 
 
ON LIQUOR LAWS AND VEXED QUESTIONS 289 
 
 " No License " the sale of alcoholic beverages became, ipso 
 facto, a punishable offense.^ 
 
 From this time forward " local option " laws on the sub- 
 ject of liquor licenses gained ground rapidly and steadily 
 despite occasional unfavorable opinions from the State su- 
 preme courts. To-day there are such laws in perhaps half 
 the States of the Union, the system having met with much 
 favor in the South^ where it has spread irresistibly. There 
 are " License " and " No License " elections also in New 
 England, notably in Massachusetts and Connecticut, where 
 the principle has the support of a public sentiment which is 
 as intelligent as any in the United States. 
 
 In three States, Florida, Texas and Delaware, this refer- 
 endum is guaranteed to the people in their local communities 
 by the Constitutions. Thus in Florida the Constitution pro- 
 vides as follows : " The Board of County Commissioners of 
 each county in the State, not oftener than once in every two 
 years, upon the application of one-fourth of the registered 
 voters of any county, shall call and provide for an election in 
 the county in which application is made to decide whether 
 the sale of intoxicating liquors, wines or beer shall be pro- 
 hibited therein, the question to be determined by a majority 
 vote of those voting at the election called under this section," 
 etc' 
 
 The Constitution of Texas prescribes that " the legislature 
 shall at its first session enact a law whereby the qualified 
 voters of any county, justice's precinct, town, city or such sub- 
 division of a county, as may be designated by the commis- 
 sioners' court of said county, by a majority vote from time 
 to time may determine whether the sale of intoxicating liquors 
 shall be prohibited within the prescribed limits ".* 
 
 The new Constitution of Delaware declares : " The Gen- 
 
 ' Session Laws of Delaware, p. 178. This law was declared un- 
 constitutional by the State Court of Errors and Appeals in the notable 
 opinion Rice v. Foster, 4 Harr. 479. 
 
 'Constitution of 1885, art. xix, sec. i. 
 
 'Constitution of 1876, art. xvi, sec. 20. 
 
ago THE REFERENDUM IN AMERICA 
 
 eral Assembly may from time to time provide by law for the 
 submission to the vote of the qualified electors of the several 
 districts of the State, or any of them mentioned in section 2 
 of this article [i. e., four districts, — Sussex county, Kent 
 county, the city of Wilmington and the rural and remaining 
 portions of New Castle county, the State containing only 
 three counties] the question whether the manufacture and safe 
 of intoxicating liquors shall be licensed within the limits 
 thereof; and in every district in which there is a majority 
 against license no person, firm or corporation shall thereafter 
 manufacture or sell spirituous, vinous or malt liquors, except 
 for medicinal or sacramental purposes within said district, 
 until at a subsequent submission of such question, a majority 
 of votes shall be cast in said district for license." The As- 
 sembly must submit the prohibition question in any district 
 whenever a majority of the members of each house of the 
 legislature of Delaware for that district request that an 
 election shall be held on this subject. '' 
 
 General local option liquor laws are to-day to be found 
 on the statute books of the following States: Arkansas, 
 Connecticut, Florida, Georgia, Kentucky, Massachusetts, 
 Michigan, Minnesota, Mississippi, Missouri, Montana, New 
 York, North Carolina, Ohio, South Dakota, Texas, Virginia, 
 and Wisconsin. Such laws have earlier been in force in other 
 States but have now been repealed. Furthermore many 
 States to-day have special laws authorizing a plebiscite on this 
 subject in separate local districts, as New Jersey, Pennsyl- 
 vania, Colorado, Alabama, West Virginia and Maryland. In 
 several States, too, general and special laws exist side by side. 
 
 Concerning the general laws it may be noted that some 
 apply to counties, and others only to smaller districts — sub- 
 divisions of counties. There is local option with the county 
 as the unit in Arkansas," Florida,' Georgia,' Michigan,* 
 
 ' Constitution of 1897, art- xiii, sec. i. 
 
 ' Sandels and Hill's Digest of Arkansas Statutes, p. 1115. 
 ^Revised Statutes of Florida, p. 329. 'Code of Georgia, sec. 1541. 
 •Howell's Annotated Statutes, Supplement 1885-1890, pp. 3173 et sea. 
 
ON LIQUOR LAWS AND VEXED QUESTIONS 291 
 
 Mississippi,!" Montana." There is local option in the coun- 
 ties, and as well and at the same time in the cities, towns, pre- 
 cincts, wards and other constituent parts of counties in Ken- 
 tucky," Missouri," North Carolina," Texas,!^ and Vir- 
 ginia.!° There is local option on this subject in towns, town- 
 ships and in districts smaller than the county only, in Con- 
 necticut," Massachusetts," Minnesota," New York,"" and 
 Wisconsin.'^ 
 
 A method employed rather generally in the South, where 
 the county is the chief territorial unit for purposes of local 
 government, makes it possible for election districts and pre- 
 cincts to secure " prohibition " even though the whole county 
 and the contiguous districts in the same county vote " for 
 license ". It is provided that when the people of the entire 
 county, that is of all thq election precincts added together, 
 shall vote against the sale of liquors then none shall be sold 
 in any part of the county. However, if the vote of the people 
 of the entire county shall be " for the sale " there may still 
 be no licenses granted in such precincts of the county as have 
 returned majorities for prohibition. This is a saving feature 
 of the law in Arkansas, Florida, North Carolina, Texas, and 
 Virginia, which appears to indicate that it was framed in the 
 interest of the temperance element rather than of the " saloon 
 keeper ". The legislature, though desiring to avoid any ap- 
 pearance of friendliness or unfriendliness to either party, here 
 seems to err on the side of those who would close the inns and 
 
 " Code of Mississippi, sees. 1609 et seq. 
 
 ^^ Political Code, sees. 3180 et seq. 
 
 '^ Barbour and Carroll's Kentucky Statutes, sees. 2554 et seq. 
 
 "Revised Statutes of Missouri, p. 1050. 
 
 ^^ Code of North Carolina, sees. 3 113 et seq. 
 
 " Supplement to Sayles' Civil Statutes, 1888 to 1893, Title 63, art 
 
 3227. 
 
 " Code of Virginia, 1887, p. 200. 
 
 " General Statutes, 1888, sec. 3050. 
 
 ^* Public Statutes of Massachusetts, 1882, pp. 524-23. 
 
 ^"Statutes of Minnesota, 1894, sees. 1266, 1990. 
 
 "Laws of 1896, p. 57; cf. ibid., 1897, p. 216. 
 
 "Sanborn and Berryman's Wisconsin Statutes, sec. 1565*. 
 
292 THE REFERENDUM IN AMERICA 
 
 drinking shops since a rule is adopted which does not " work 
 both ways ". If the county votes " no license " the sale of 
 liquors is prohibited everywhere. If the vote is "for license " 
 the trade is permitted only in such precincts of the county as 
 have given local majorities in favor of the trafiSc.^^ 
 
 It is interesting to observe with what limit of frequency 
 these local option elections may be held. In some States the 
 laws contain no specific restrictions on this subject. The 
 plebiscite is taken at the initiation of local officers, or of a 
 certain percentage of the electors, who may at any time sign 
 and present a petition in favor of an election. If the vote 
 be in the affirmative the law remains in force until similar 
 steps are taken for another referendum and the people deter- 
 mine to repeal it, and resume the status quo ante with respect 
 to the liquor selling business. If the vote be in the negative 
 licenses, of course, continue to be issued until at some future 
 time a " no license " majority is secured. 
 
 By the laws of several States, however, definite periods are 
 prescribed at which the elections may or shall take place. 
 Thus in the cities and towns of Massachusetts and in North 
 Carolina annual elections are contemplated. In Arkansas, 
 Florida, Michigan, Montana, New York, Ohio, Texas and 
 Virginia the referendum may be taken not oftener than once 
 in two years. With a view to reducing the confusion and 
 curtailing the expense of frequent pollings Kentucky and 
 Mississippi have fixed the period at three years, while Georgia 
 and Missouri do not permit an election more frequently than 
 once in four years. In towns in New York four separate 
 propositions are submitted to the people with reference to the 
 sale of liquors. The electors are to decide (i) whether 
 liquors shall be sold to be drunk on the premises ; (2) whether 
 liquors shall be sold when they are not to be drunk on the 
 premises; (3) whether liquors shall be sold on a pharma- 
 cist's or physician's prescription ; (4) whether liquors shall be 
 
 '" Cf . Sandels and Hill's Arkansas Statutes, p. 1115; Revised Statutes 
 o£ Florida, p. 329; Code of North Carolina, sees. 31 13 et seg. ; Supp. 
 to Sayles' Civil Statutes of Texas, art. 3227 ; Code of Virginia, p. 300. 
 
ON LIQUOR LAWS AND VEXED QUESTIONS 293 
 
 sold by hotel keepers. If the election results affirmatively 
 with respect to any or all of these propositions licenses must 
 accordingly be granted to applicants by the proper officers.^' 
 
 The ballots, it may also be of interest to observe, bear 
 various words and phrases : " For Selling " or " Against 
 Selling " in Florida ; " For the Sale " or " Against the Sale " 
 in Georgia and Mississippi ; " Prohibition " or " License " 
 in North Carolina ; " For License " or " Against License " 
 in Wisconsin ; " For Prohibition " or " Against Prohibition " 
 in Texas ; " Shall licenses be granted for the sale of intoxi- 
 cating liquors in this town (or city)?" "Yes" or "No" 
 in Massachusetts. The method of submitting this question, 
 as well as other propositions of the kind is being amended 
 from time to time as changes are made in our ballot systems. 
 The object always is to find a descriptive phrase which, while 
 being concise, will at the same time make it easy for the voter 
 at once to distinguish the propositions and deposit his 
 " ticket " or put his cross on the ballot paper as intelligently 
 and as expeditiously as possible. 
 
 In the same way when it is a question of not entirely pro- 
 -hibiting the liquor trade in local districts, but only of regu- 
 lating it, the referendum, has occasionally found application. 
 In two States, Wisconsin and New Jersey, the people may de- 
 termine how large a fee shall be collected from innkeepers 
 and the proprietors of tippling shops, and " saloons ". 
 " High license " as a method of reducing the evils of intem- 
 perance has had many advocates in this country. By a high 
 tax it is hoped to restrict the business within certain definite 
 bounds by materially limiting the number of places of sale. 
 In Wisconsin, for instance, electors of cities, villages and 
 towns may, by popular vote, determine the amount of the 
 license fee, though the election must not be held in the same 
 community oftener than once in three years. In towns when 
 the sum paid hitherto has been $100 the people may vote to 
 increase it to $250 or $400, as they may select. In cities, vil- 
 
 "New York Laws of 1896, p. 57; ibid., 1897, p. 216. 
 
294 THE REFERENDUM IN AMERICA 
 
 lages, etc., when the fee has been earlier fixed at $2CX), the 
 people may choose between increases to $350 or $500. Choice 
 is always to be made from among three different sums, and it 
 is provided " that if the highest amount voted for does not 
 receive a plurality of the votes cast, then the votes cast for 
 such amount shall be considered as having been cast for the 
 next lower amount and shall be so counted "."* 
 
 In cities, boroughs, towns or townships in New Jersey on 
 the receipt of a petition signed by a certain number of citizens 
 asking that not less than a specified sum of money shall be 
 collected of applicants for liquor licenses local officers must 
 
 arrange for a plebiscite. The people are to vote " For $ 
 
 license fee " (the amount named in the petition being inserted 
 
 in the blank space on the ballot) or " Against $ license 
 
 fee "." 
 
 Very recently socialistic experiments in relation to the 
 liquor trade have been undertaken in several States. These 
 have assumed a form akin to the so-called Gothenburg and 
 other Scandinavian systems. Some of the American schemes 
 of regulation have involved the state still more closely in the 
 business. A state monopoly is created and official dispen- 
 saries are established, alcoholic beverages being sold by 
 agents appointed by the government who act in obedience to 
 definite rules. Such a scheme of public management in refer- 
 ence to the whole State has lately been introduced in South 
 Dakota, by an amendment to the Constitution approved by 
 the people at the autumn elections in 1898.^° In counties, 
 cities and towns in South Carolina in which the sale of liquors 
 has earlier been prohibited by law elections may be held on 
 the question of adopting the dispensary plan as an alternate 
 system.^' In the neighboring State of North Carolina there 
 
 "Sanborn and Berryman's Statutes, 1898, sec. 1548b. 
 
 "General Statutes of New Jersey, p. 1810. 
 
 " Session Laws of South Dakota of 1897, P- 88 ; cf. Constitution of 
 South Carolina^ art. viii, sec. 11. 
 
 "Laws of South Carolina of 1893, p. 434; ibid., 1894, P- 721; ibid,, 
 1896, p. 129. 
 
ON LIQUOR LAWS AND VEXED QUESTIONS 295 
 
 have been local elections, also, respecting the establishment 
 of dispensaries with a view to putting the liquor trade under 
 municipal control.^' 
 
 Somewhat similar to local option on the prohibition ques- 
 tion is the referendum which exists in a considerable number 
 of the Western and Southern States in respect of the building 
 of fences and the restraint of domestic animals. Although 
 this is a matter which touches the finances of private citizens, 
 it certainly is not a form of public expenditure such as the con- 
 struction of a town hall, a jail, a school house or a road. On 
 the other hand, it is, of course, a financial proposition pure 
 and simple when " fencing districts " are organized and the 
 citizens resident therein tax or bond themselves to build a 
 fence about the whole district in order to protect their lands 
 from stock roaming over unfenced territory, as in Arkansas. 
 This case, however, is exceptional.^' It is a subject upon 
 which men are certain to entertain very dififerent opinions 
 as in the case of the sale of intoxicating liquors and being 
 essentially a vexed question it is rightly included in this, 
 rather than the preceding chapter. 
 
 It is the rule at the " common law " which is the back- 
 ground for all our legal canons on this subject that another's 
 cattle and domestic animals go abroad at their owner's risk, 
 whether there are fences to hinder them or not. It is enough 
 that the animals being at large should damage another per- 
 son's property. The laws which have been passed by the 
 various State legislatures on this subject are in modification 
 of this well established rule, and the optional " Stock Laws ", 
 " Herd Laws " and " Fence Laws " are meant to give the 
 citizens of counties, townships and other local districts the op- 
 portunity to decide whether practical conditions in many 
 American communities do not demand a rather dififerent 
 policy. In new communities, as so many have been and still 
 are in the United States, it is expensive for large landowners 
 
 '» Public Laws of North Carolina, 189s, p. 310. 
 
 ™Ct. Sandels and Hill's Dige&t of the Statutes of Arkansas, 1894, 
 P- 443- 
 
«96 THE REFERENDUM IN AMERICA 
 
 to build fences either for the purpose of confining their own 
 animals or for keeping out the herds of their neighbors. All 
 interests then are likely to agree to let live stock run at large, 
 the respective owners employing their own guards and 
 herdsmen at a less cost to themselves than it would be were 
 they to enclose their fields and pastures. 
 
 When the two interests, agricultural and pastoral, are 
 brought into close juxtaposition, however, important differ- 
 ences are likely soon to arise among the inhabitants. Civili- 
 zation moves forward. If an owner has beautiful grounds 
 about his home he desires that they shall not be overrun and 
 damaged by other men's roving stock. He desires that his 
 fields of growing grain, his pastures, so soon as they are cul- 
 tivated and cease to be mere natural tracts, his gardens and 
 his orchards shall not be feeding places for others' herds and 
 flocks. He wants a guarantee also that his own animals shall 
 not be associated against his will with the males of other 
 owners lest there shall be a mixture of breeds. Thus what 
 was at first in a primitive, pastoral community a tolerable, 
 even a satisfactory condition, becomes with the division and 
 subdivision of land into smaller parcels a matter of serious 
 concern. The richer and more well-to-do farmers are willing 
 to enclose their lands and pen up their stock. They wish their 
 neighbors to do the same thing, a policy however which in 
 the democratic local communities of America is certain to meet 
 with strong resistance. The poor man wants to escape the 
 expense of building a fence. If he does build one it is likely 
 to be a cheap structure and ineffective for its purpose. He 
 is likely too to keep it in poor repair, so that it is no longer 
 " horse high, bull strong and pig tight ", a test legally estab- 
 lished in rural sections many years ago. He may desire to 
 keep and breed cows, sheep, hogs or poultry when he has no 
 land of his own, merely a small tenement in some industrial 
 village, or a house and " lot " by the roadside. He then 
 turns his animals loose so that they may forage for a living 
 in the roads and streets, in vacant wood lots, forests and other 
 open spaces which are not enclosed within strong fences. 
 
ON LIQUOR LAWS AND VEXED QUESTIONS 297 
 
 This is the most aggravating phase of the whole development 
 and it creates classes in nearly all rural communities. The 
 richer farmer is arrayed against the " poor man " who wants 
 to keep his cow and his hog and let them run at large in the 
 public streets and commons. Since the politicians in the 
 State legislatures are afraid to incur the displeasure of the 
 " poor men " in their constituencies just as they are afraid 
 of the temperance element, they try to escape their rightful 
 share of responsibility by submitting the whole question to 
 popular vote. 
 
 There are general optional laws on this subject to-day in 
 Arkansas,'" Georgia,*^ lowa,'^ Kansas,'' Kentucky,'* Minne- 
 sota,'^ Mississippi," Missouri," New Jersey," North Caro- 
 lina,'" Oregon," Rhode Island," Texas," and West Vir- 
 ginia.*' Besides these there are special laws relating to sepa- 
 rate districts which are named in the legislative acts in Ala- 
 bama, Maryland, Virginia and several other States.** The 
 
 " Sandels and Hill's Digest of the Statutes of Arkansas, pp. 443, 1570. 
 Here the optional feature is enforced through a written petition signed 
 by a majority of the qualified electors of the district, instead of by 
 an actual poll of the people by ballot. 
 
 " Code of Georgia, sees. 1777 et seq. 
 
 "Annotated Code of Iowa, sec. 444. 
 
 "General Statutes of Kansas, chap. 137, sees, i et seq.; ibid., chap. 
 137, sees. 54 et seq.; ibid., chap. 138, sees. 6 et seq.; ibid., chap. 138, 
 sees. 10 et seq. 
 
 " Barbour and Carroll's Kentucky Statutes, sees. 4646 et seq. 
 
 " Statutes of Minnesota, sec. 941. 
 
 " Code of Mississippi, sees. 2056 et seq. ; cf. Session Laws of Missis- 
 sippi, 1896, p. 145. 
 
 '^Revised Statutes of Missouri, pp. 186 et seq. 
 
 " General Statutes of New Jersey, pp. 59, 60. 
 
 "Code of North Carolina, 1883, sees. 281 et seq.; Public Laws of 
 North Carolina, 189S, P. 54 ; ibid., p. 537. 
 
 " Codes and General Laws of Oregon, 1892, p. 1501 ; Session Laws of 
 
 1893. P- 89- 
 
 " General Laws of Rhode Island, 1896, p. 420. 
 
 " Constitution of 1876, art. xvi, sec. 23 ; Sayles' Revised Civil Stat- 
 utes, 1888, articles 4592 et seq. 
 
 " Code of West Virginia, pp. 593, 1034. 
 
 " Cf. Session Laws of Pa. of 1885, p. 142, and Frost v. Cherry, 122 
 Pa. 417. 
 
298 THE REFERENDUM IN AMERICA 
 
 tendency as might be expected is toward definitive legisla- 
 tion which will prohibit cattle from running at large abso- 
 lutely thus marking a return to the common law rtale.*^ 
 As population increases and the interests of the people mul- 
 tiply a haphazard system has less and less to commend it, and 
 the demand is for an unalterable and a just rule which shall 
 apply to all parts of the State uniformly. That animals should 
 be allowed to run at large to molest the lands of any person 
 who has not taken the precaution to put strong fences around 
 them is an untenable claim. An immemorial Anglo-Saxon 
 practice and the sense of what is appropriate, orderly and 
 right are wholly on the side of a policy of restraint of live 
 stock so soon as a community passes out from that primitive 
 social condition which has induced men to look temporarily 
 with toleration upon a different legal system. 
 
 As with local option respecting the granting of liquor 
 licenses, so in regard to the building of fences various terri- 
 torial units are selected within which the poll of the people 
 may be taken, according as the county or the town system 
 is of predominating influence in giving form and char- 
 acter to local government within a State. Counties, towns, 
 townships, villages, " militia districts " and " magisterial dis- 
 tricts " are all designated as units, and frequently in the same 
 State provision is made for a plebscite in both the larger, 
 and the smaller district. Animals of several species come 
 within the purview of these rather curious optional laws. 
 They are made to include not only horses and cattle but also 
 hogs, and sheep and sometimes goats and geese as well. In 
 other cases the term " stock " has a more restricted meaning, 
 being limited to " cattle, horses, mules and asses " as in Iowa. 
 In several States the scope of the proposal to restrain domestic 
 animals is defined in the petition for the election, which must 
 be signed by a certain number of citizens before the plebis- 
 cite can be taken. Any one or more species may be desig- 
 
 " Thus Illinois in 1895 which had earlier had an optional law on this 
 subject repealed it. Starr and Curtis' Statutes, and ed., 1896, p. 398; 
 ibid., ist ed., 1885, p. 279. 
 
ON LIQUOR LAWS AND VEXED QUESTIONS 299 
 
 nated in the petition and the election is held upon the ques- 
 tion of restraining these animals only. In other cases there 
 are two separate stock laws both of which are optional, one 
 relating to horses and neat cattle, the other to hogs, sheep and 
 sometimes goats. Thus in Arkansas, Mississippi and Texas 
 hogs, sheep and goats are specially provided for. Hogs and 
 sheep are in a category to themselves in Missouri^ while in 
 Oregon and Kansas a referendum may be separately taken 
 with respect to swine. In communities where other kinds of 
 live stock are still allowed to go at large, there is often little 
 disposition to be lenient with hogs which are a source of great 
 annoyance to careful husbandmen. Geese may also be re- 
 strained from running outside their owners' enclosures upon 
 a vote of the people in West Virginia and Rhode Island. As 
 with " License " and " No License " elections in local dis- 
 tricts, so too with the stock laws there is fear that the poll 
 may be taken too often. In Georgia, North Carolina and 
 Texas stock and fence law elections may not take place 
 more frequently than once in any one year; in Kentucky 
 not oftener than once in fotir years. 
 
 An odd variation in this form of referendum in the Amer- 
 ican States is met with in Iowa. Here in counties four sepa- 
 rate propositions may be submitted to popular vote: (i) 
 whether stock shall be restrained from running at large ab- 
 solutely and at all times. (2) Whether stock shall be re- 
 strained from running at large between sunset and sunrise? 
 (3) Whether stock shall be restrained from running at large 
 from the first day of (inserting the name of the month) in 
 each year until the first day of (inserting the name of the 
 month) following? (4) Whether stock shall be restrained 
 from running at large between sunset and sunrise from the 
 first day of (name of month) in each year until the first day 
 of (name of month) following?*' By this means the electors 
 may compel owners to enclose their stock at night time while 
 farmers cannot be on guard, and at certain seasons of the 
 year when the crops are in the ground and when a general 
 *" Annotated Code of Iowa, sec. 444. 
 
300 THE REFERENDUM IN AMERICA 
 
 trampling over the open fields would do them serious injury. 
 In Kansas also there is a " Night Herd Law ", owners of 
 domestic animals in local districts at the expressed desire of 
 a majority of the citizens being obliged to pen up their 
 stock.*'' West Virginia adds yet another modification to this 
 peculiar local plebiscite with an optional law for the re- 
 straint of bulls over one year old, buck sheep over four 
 months old and boars over two months old. Animals of these 
 special classes are to be kept within enclosures by their 
 owners in districts in which the people decide in favor of such 
 a local policy. 
 
 Here again the ballots contain various words and phrases : 
 in Georgia, " Fence " or " No Fence " ; Kansas, " For the 
 Herd Law " or " Against the Herd Law " ; Mississippi, Texas 
 and West Virginia, " For a Stock Law " or " Against a Stock 
 Law " ; North Carolina, " Stock Law " or " No Stock Law " ; 
 Oregon, " For Running at large — Yes " or " For Running at 
 large — No " ; Kentucky, " For the Running at large of Cat- 
 tle (or the species designated in the petition) in 
 
 county " or " Against the Running at large of Cattle, etc., 
 
 in county " ; Alabama, " Stock at Large " or " No 
 
 Stock at Large ". 
 
 When a " lawful fence " which will form a more efifective 
 barrier than a mere boundary line is to be built, it becomes 
 a question of importance to determine of what material it 
 shall be composed. In two cases that have come to my notice 
 this is a subject for a polling of the people. In Texas the 
 electors of any county or subdivision of a county may de- 
 termine " by a majority vote whether or not three barbed 
 wires without a board or plank shall constitute a lawful 
 fence ".*' In Kansas elections may be held in counties to 
 decide whether a certain " Hedge Law " shall be adopted. 
 If it shall be approved by the people osage orange hedge lines 
 become a " lawful fence ".*® 
 
 " Cf. Webb's General Statutes of Kansas, chap. 137, sees, i et seq. 
 "Revised Statutes of the State of Texas, 1895, p. 999. 
 " General Statutes of Kansas, chap. 153, sees. 37 et seq. 
 
ON LIQUOR LAWS AND VEXED QUESTIONS 301 
 
 A singular instance of lack of definite moral or political 
 purpose in a legislature is met with in Maryland. In 1890 the 
 General Assembly of that State enacted a conditional law 
 respecting the taking oi oysters with scoops, " scrapes " or 
 dredges in " the waters of Somerset county ", i e., in a por- 
 tion of Chesapeake Bay. The proposition was to protect 
 these valuable beds from those who would ruthlessly destroy 
 them, and thus preserve the business of catching oysters in 
 this district for the tongmen whose methods are more com- 
 patible with the perpetuation of this useful species of shell 
 fish. The boats belonging to dredgers were to be seized, for- 
 feited and sold for the benefit of the school fund and the 
 owners and captains were to be placed under arrest and 
 committed to a public " house of correction ". Before going 
 into force, however, the law would needs be approved by the 
 voters of nine election districts in the county, the ballots 
 having printed on them the words, " For prohibiting the 
 taking of oysters with scrapes or dredges " and " Against 
 prohibiting the taking of oysters with scrapes or dredges ".^° 
 
 Another peculiar shifting of responsibility regarding a 
 question upon which a legislature might be expected to be 
 able of itself to pass a definitive judgment is to be noted in 
 connection with Sunday observance. Thus the Germans of 
 St. Louis desired the privilege of drinking beer on Sunday. 
 As the introduction of what is often called the " Continental 
 Sunday " was strongly opposed by other elements in the 
 community, the legislature of Missouri in 1857 passed a law 
 enacting that " the corporate authorities of the different cities 
 in the county of St. Louis shall have the power, whenever a 
 
 ™ Laws of Maryland, 1890, p. 832. The Supreme Court of Maryland 
 declared this law to be unconstitutional on technical grounds, in that 
 authority was conferred upon the citizens of nine districts of a county 
 to enact a law which affected " the common right of the people of the 
 whole State". Vide Bradshaw v. Lankford, 73 Md. 428. Nevertheless 
 the legislature re-enacted the law in 1894 in a slightly modified form, 
 retaining that feature of it which required a referendum, this time, 
 however, submitting the measure to a vote of the people of the entire 
 county instead of a few of the smaller component districts. Cf. Laws of 
 Maryland of 1894, p. 908. 
 
302 THE REFERENDUM IN AMERICA 
 
 majority of the legal voters of the respective cities in said 
 county authorize them so to do, to grant permission for the 
 opening of any establishment or establishments within the 
 corporate limits of said cities for the sale of refreshments 
 of any kind (distilled liquors excepted) on any day in the 
 week ".^^ A similar referendum has been proposed several 
 times in late years as a means of arriving at an agreeable re- 
 sult with respect to the moot point of selling liquor on the 
 Christian Sabbath day in New York city, where a very con- 
 siderable body of sentiment has developed in favor of a less 
 rigorous application of the Sunday laws. 
 
 I am impelled to refer in this connection also to recent 
 Canadian experience in the city of Toronto from which can 
 be drawn an instance I have failed to find in the municipal 
 law of the United States. The legislature of the Province of 
 Ontario in 1892 passed an act incorporating " The Toronto 
 Railway Company " and conferring upon it rights and powers 
 to operate street railways in that city. It was specified, how- 
 ever, that no street car should ever be run by the company 
 on Sunday unless the question should first be referred to the 
 people of the city and they should assent to the proposal. It 
 appears that the elements in the city opposed to " Sunday 
 cars " succeeded in limiting the company's business to six 
 days in the week until 1898.°^ Then an agreement was en- 
 tered into by which the company bound itself not to run its 
 cars beyond a certain definite speed while passing churches 
 during the hours when meetings were in progress, not to ring 
 gongs in proximity to places of worship and not to deprive 
 any of its employees of one full day's rest in every seven. 
 This contract hedged the company about with so many re- 
 strictions that the Sabbatarians were outvoted, though they 
 alleged afterward that this result had been attained through 
 the aid of irreligious elements and the Jews. They there- 
 
 " Laws of Missouri of 1856-57, p. 673. 
 
 "^ The question was submitted at three separate elections, on January 
 4, 1892, August 2, 1893, and May 15, 1897. The proposal was rejected 
 at the first two pollings but accepted at the third, in 1897. 
 
ON LIQUOR LAWS AND VEXED QUESTIONS 303 
 
 upon began a systematic 'boycott of the company and it is 
 stated that the residents of Toronto, even when on their way 
 to church, have put themselves to the greatest inconvenience 
 in order to avoid riding on the Sunday street cars. On other 
 days of the week they have patronized the company's lines 
 as before. Many of those who have regarded this Sunday 
 service as a desecration of the Sabbath are eager, it is said, 
 for another election on the subject when they confidently 
 expect that there will be a more Christian result. In no tem- 
 perance " fight " under a local option law in an American 
 town or village could more unpleasantness and personal 
 feeling be injected into an electoral campaign.^' 
 
 For a long time organizations of Socialists and labor 
 unions have demanded that legislatures should make eight 
 hours a legal day's work. As the first step they have insisted 
 that the government should set the example by paying those 
 whom it itself employs a full day's wage for an eight-hour 
 day. These influences having made themselves a source of 
 political strength in Massachusetts the legislature of the State 
 in 1899 was induced to pass a conditional law on the subject, 
 thus submitting an embarrassing issue to the people of the 
 cities and towns, without compromising itself by showing 
 favor on either side."* 
 
 " Cf. Laws of Ontario for 1892, p. 888 ; ibid., 1894, p. 450 ; ibid., 
 1897, pp. 618 et seq. I am informed by Mr. J. J. Cassidey of Toronto 
 that the opposition to the Sunday cars, as might be expected is grad- 
 ually dying out, while the people of the city are now very generally 
 riding in them. It is unlikely, therefore, that the privilege which the 
 company has won after so long a contest will be withdrawn from it 
 again, since the convenience of the service has come to be appreciated 
 by the citizens. 
 
 "Acts and Resolves of Mass., 1899, p. 299. The full text of this 
 curious law is as follows: "Be it enacted, etc. — Sec. 1, Eight hours 
 shall constitute a day's work for all laborers^ workmen and mechanics 
 now employed or who may hereafter be employed by or on behalf 
 of any city or town in this Commonwealth. Sec. 2, All acts and parts 
 of acts inconsistent herewith are hereby repealed. Sec. 3, This act shall 
 not take effect in any city or town until accepted by a majority of the 
 voters voting thereon at an annual election. Such vote shall be taken 
 by ballot. When so accepted this act shall take effect from the date 
 of such acceptance." 
 
304 THE REFERENDUM IN AMERICA 
 
 A peculiar referendum has made" its way into the municipal 
 law of the State of Massachusetts with the recent develop- 
 ment of electric street railways. While there is assumed to 
 be no valid objection to the use of the streets by companies 
 propelling cars by electricity when they carry passengers, and 
 not goods or luggage commonly classed as freight or express 
 matter, their rights respecting the transport of the latter are 
 sometimes extended upon popular vote. Thus the legislature 
 of Massachusetts enacts that " the Northampton Street Rail- 
 way Company may act as a common carrier of small parcels 
 provided said company shall not so act in the city of North- 
 ampton, or in any town until authorized to do so by a two- 
 thirds vote of the voters of said city or town present and 
 voting thereon at an annual or special election held for that 
 purpose ".■"* 
 
 A company authorized to operate an electric street rail- 
 way line through the cities of Taunton and Brockton in 
 Massachusetts is placed under the same restriction in respect 
 of a parcels service.^" In cities and towns of less than 25,000 
 inhabitants in Louisiana the streets must be kept altogether 
 free from car lines unless the people shall approve of the 
 grants to companies applying for the right of way. Any 
 railroad or other corporation desiring " to use and occupy 
 the streets and alleys " of a town or city or " to obstruct 
 the same or any part thereof with buildings necessary to and 
 used by said corporations " must seek the direct popular 
 sanction. ^^ On a favorable vote of the people Boston street 
 railway companies were authorized to replace tracks on 
 Tremont and Boylston streets in that city which had earlier 
 been removed in obedience to an order of the Boston Transit 
 Commission. °* Occasionally, too, a proposition " to close " 
 a street or alley in a city or town is submitted to popular 
 vote.'* In the city of Youngstown, O., the question of ma- 
 
 ""Acts of Mass., 1896, p. 394. "Acts of Mass., 1896, p. 494. 
 
 "'Laws of Louisiana, 1896, p. 113. 
 
 "* Acts and Resolves of Mass., 1899. p. 390. 
 
 "' Cf. Laws of Maryland of 1890, p. 303. 
 
ON LIQUOR LAWS AND VEXED QUESTIONS S^S 
 
 king a grant to a street car company to run its lines over a 
 new bridge was recently the subject of a referendum.*" 
 Before this question could be submitted to the people a pe- 
 tition must issue from the owners of more than half of the 
 land fronting on the street through which the cars would 
 run. They must declare that in their opinion the railway 
 would be a benefit to them, or at any rate, would do no harm 
 to their interests in contiguous property. 
 
 We meet, too^ with a case of still another kind in Kansas 
 where the aesthetic sense of the people in local communities 
 is put in the balance and weighed against a narrow pecuniary 
 interest. In counties the citizens in their wisdom may decide 
 whether the owners of land bordering on public highways 
 shall keep their hedges " cut and trimmed down to not over 
 five feet high except trees not less than sixteen feet apart, 
 and hedges necessary as a protection to orchards, vineyards 
 and feed lots"-; also whether these owners shall "cut the 
 weeds " in the public highways lying next their lands " before 
 they go to seed ", a measure which is of much practical im- 
 port to agriculturists, as well as being in the interest of a 
 cleaner and prettier countryside."^ 
 
 The Ohio legislature recently authorized a peculiar local 
 referendum. For some years inventors have been engaged 
 in their experiments with " voting machines ", i. e., mechan- 
 ical contrivances for receiving and recording votes. So uni- 
 versal has the application of machinery now become, and so 
 generally has it substituted man's manual processes in many 
 different fields that there is immediate prospect of an entire 
 revolution also in our voting systems. In a number of 
 States these machines have already been introduced in a pro- 
 visional way and other States seem to have the change in 
 contemplation. As a method of keeping correct account of 
 the number of votes cast, and of furnishing the returns to 
 the election officers quickly and accurately after the polls 
 close, this mechanical device is held to possess many im- 
 
 '" Laws of Ohio of 1896. p. 620. 
 
 "Webb's General Statutes of Kansas, chap. 153, sees. 47 et seq. 
 
3o6 THE REFERENDUM IN AMERICA 
 
 portant advantages. In Ohio, however, the State legislature 
 did not desire to endorse the new invention unqualifiedly, nor 
 yet to allow the local boards to do so. It passed a law there- 
 fore in 1898 authorizing the officers whose task it is in 
 cities, villages, towns, precincts or other local divisions of the 
 State to supply ballots and other equipment for elections, to 
 submit to the people of these districts, a proposition for the 
 purchase and use of the machines. These officers should take 
 note of the vote and govern themselves accordingly in obe- 
 dience to the popular will.°^ 
 
 There are conditional laws too on the subject of a reform 
 of the civil service in cities which is so essential to the proper 
 administration of the government that only timidity and 
 weakness on the part of a legislature would lead it to submit 
 such a question to popular vote.'^ The legislature of Ne- 
 braska desiring to introduce the Swiss systems of the initia- 
 tive and the referendum into cities and other local districts 
 of the State did not, however, have the full courage of its 
 convictions. It only passed the law contingent upon its later 
 submission to and approval by the people in the various 
 local communities."* Recently in Wisconsin a law to regu- 
 late the nomination of candidates at party meetings or cau- 
 cuses, a measure of a type likely soon to become more fa- 
 miliar in this country, devised with the view of " reforming 
 the primaries " and of reclaiming popular government in 
 America from its enemies was referred to the people of cer- 
 tain cities of the State. If this were a reform in our political 
 practice of which we had need the legislature could have had 
 no valid motive in submitting the proposition to any other 
 authority. Only lack of conviction, a desire to evade respon- 
 sibility, and avoid offense to unworthy elements in the elec- 
 torate, will explain conditional legislation of this kind.°° 
 
 The discussion of this subject, as it relates to acts of the 
 
 "^ Session Laws of Ohio, 1898, p. 277. 
 
 " Cf. Starr and Curtis' Illinois Statutes, p. 826. 
 
 "'Compiled Statutes of Nebraska, p. 591. 
 
 "'Sanborn and Berryman's Wisconsin Statutes, chap, s, sec. m. 
 
ON LIQUOR LAWS AND VEXED QUESTIONS 307 
 
 State legislature in reference to specific matters submitted 
 to popular vote in local districts^ having now been brought 
 to a conclusion it is of a very great deal of interest to record 
 the progress of a movement to introduce the referendum in 
 a general form into the local governmental practice of this 
 country. Just as South Dakota alone is the pioneer with a 
 general referendum on State laws, so Iowa, California and 
 Nebraska, as well as South Dakota, have taken up an ad- 
 vanced position with respect to a general referendum on local 
 by-laws passed by the local legislature. It will be advisable 
 at this point to draw a very, clear distinction between two 
 kinds of local laws. Thus far our treatment of the local 
 referendum has related for the most part to laws in regard 
 to local districts which have been passed by the State legisla- 
 ture. In South Dakota, Iowa, California and Nebraska, 
 however, the referendum applies to laws which originate 
 with the local boards and assemblies. While it is held that 
 the legislature may submit laws of concern to local com- 
 miinities to the people thereof and make their going into 
 effect depend upon a favorable vote at the referendum, no 
 local board, or council can make such a submission of a 
 proposition except it receives direct and explicit authori- 
 zation from one or other of the law-making agents of the 
 State, the constitutional convention or the legislature. In 
 South Dakota, Iowa, California and Nebraska, it must be 
 noted, such a privilege has been conferred upon the local 
 legislative committees and assemblies in general terms, and 
 their power to exercise it is not open to question. In Iowa, 
 for instance, it appears that the " Board of Supervisors " 
 or governing board of any county, may, on its own initia- 
 tion, or must, when petitioned so to do by at least one fourth 
 of the voters of the county, submit to popular vote either at 
 a regular or at a special election " the question whether 
 money may be borrowed to aid in the erection of any public 
 buildings, and the question of any other local or police regula- 
 tion not inconsistent with the laws of the State ". The 
 " regulation ", or ordinance must be advertised for four 
 
3o8 THE REFERENDUM IN AMERICA 
 
 weeks in some newspaper printed in the county, or if there 
 be no newspaper, it may be legally published by posting it 
 up for thirty days " in at least one of the most public places 
 in each township in the county and in addition in at least five 
 among the most public places in the county ". Propositions 
 and local measures adopted in this manner may also be re- 
 scinded upon the initiation of the people and a subsequent 
 referendum in which a majority of the electors of the county 
 shall vote in favor of such rescission.*^ 
 
 Likewise in California on the presentation of a paper or 
 papers bearing the signatures of the legal voters of any 
 county " equal in number to fifty per cent, of the votes cast 
 at the last preceding general election ", the Board of Super- 
 visors must submit to the people any ordinance for whose 
 submission the petition makes a request. *'' The new free- 
 holders' charter of San Francisco, recently framed to super- 
 sede a charter and the amendments thereto which had been 
 received direct from the State legislature, provides for a poll 
 of the people on city ordinances and charter amendments 
 when an election on these measures is petitioned for by a 
 prescribed numbei of citizens. All bills to grant franchises 
 to private companies " for the supply of light or water, or 
 for the lease or sale of any public utility, or for the pur- 
 chase of land of more than $50,000 in value must be sub- 
 mitted to the electors " of San Francisco. This referendum 
 is compulsory and no petition is necessary."' 
 
 The Legislature of Nebraska recently introduced the in- 
 itiative and the referendum in that State, on by-laws in 
 cities and " other municipal subdivisions " (counties, towns, 
 villages, school districts, etc.) in the Swiss form and by the 
 Swiss name. Any ordinance, order, resolve, agreement, 
 contract or other legislative measure which is proposed by 
 15 per cent, of the voters of a city or other local district 
 
 " Code of Iowa, sees. 443 et seq. 
 «' Statutes of California of 1893, p. 348. 
 
 " Charter for the City and County of San Francisco, rSpS, art. ii, 
 sees. 20, 21 and 22. 
 
ON LIQUOR LAWS AND VEXED QUESTIONS 309 
 
 must be submitted to the people thereof at a regular election. 
 If a greater number, or at least 20 per cent, of the electors, 
 sign the petition a special election to decide the question may 
 be held. Respecting ordinances which have been initiated 
 by the local legislatures themselves and have been duly en- 
 acted by these bodies, none shall go into force until thirty 
 days after its passage. If within that time a petition signed 
 by 15 per cent, of the voters of the city or other local district, 
 asking for a referendum on the subject, is presented to the 
 duly authorized officers it must be submitted to popular vote 
 at a regular election; again if the number signing the pe- 
 tition equals 20 per cent, of the voters a special election may 
 be called. Urgent measures relating to the " preservation 
 of public peace or health ", however, are expressly excepted 
 from these provisions. Furthermore the mayor and city 
 council, without waiting to receive a petition, may at any 
 time at their own instance call an election in regard to any 
 question upon which they desire advice from the citizens at 
 large. The entire law is itself conditioned upon its direct 
 acceptance by the people in the various cities, counties, towns, 
 etc., of Nebraska. The referendum thus curiously is itself 
 the subject of a referendum.** 
 
 The recent amendment to the Constitution of South Da- 
 kota which introduces the Swiss initiative and referendum 
 in respect of State laws, to which allusion has been made in 
 an earlier chapter, is also of application to municipalities. It 
 contemplates that five per cent, of the voters in any local 
 district may originate and have submitted to popular vote, 
 any local ordinance which may suggest itself to them, and 
 also that five per cent, of the electors may demand a refer- 
 endum on any law which has already been passed by the local 
 governing board or council.'"' 
 
 It is to be noted in summarizing this particular section 
 of our subject that the referendum on local questions in the 
 counties of Iowa and California is purely an American de- 
 
 "" Compiled Laws of Nebraska, pp. 588 et seq. 
 '"Session Laws of South Dakota, 1897, pp. 88-89. 
 
3IO THE REFERENDUM IN AMERICA 
 
 velopment In line with ouf own tendencies and traditions. 
 In San Francisco, Nebraska and South Dakota, on the other 
 hand, it is clearly an importation, an adaptation of the Swiss 
 system for which American politicians of a certain type have 
 lately expressed so much interest and admiration. Their 
 agitations are now beginning to bear fruit in many parts of 
 the " Great West ". 
 
CHAPTER XIII 
 
 THE LOCAL REFERENDUM IS IT CONSTITUTIONAL? 
 
 Having traced the historical development of law-making 
 by popular vote as it bears directly upon local government 
 in the United States we come at once to the consideration 
 of another question — the regularity and validity of the 
 system, especially from the view-point of the courts. 
 We have to inquire if the referendum on local laws 
 in local communities i§ constitutional. It has been noted 
 already in another place that the weight of judicial 
 opinion is quite strongly against the submission of laws 
 to popular vote, when they are general State laws of 
 application to the entire State. On a plain issue of 
 this kind the courts, so far as they have gone in the matter, 
 are disposed to discourage conditional legislation of such a 
 character, on the ground that it is a delegation of power to 
 a foreign body which is not known to the constitution. 
 When the constitution of a State specifically declares that the 
 law-making power shall repose in a representative legislature 
 under definite conditions and regulations, it is assuredly not 
 competent for the legislature to decline to perform the task 
 to which it has been assigned and pass it on to some other 
 agent. Nevertheless various methods of evading the rule 
 have gradually come into vogue in the course of the develop- 
 ment of local government in the United States, and although 
 there can be little disagreement as to the unconstitutionality 
 of the submission to popular vote of a general State law, 
 such as the New York Free School Law of 1849,^ there are 
 roundabout means to an end. 
 
 A discussion of the question of the constitutionality of the 
 ^ Cf. Barto v. Himrod, 4 Seld. 483. 
 
 3" 
 
312 THE REFERENDUM IN AMERICA 
 
 referendum excepts those cases, of course, in which the repre- 
 sentative legislatures divide the legislative power with the 
 citizens at large by authority derived from the State consti- 
 tution. Although the referendum may still be out of harmony 
 with our unwritten English law which places the legislative 
 power of the State in the hands of representatives, on the 
 theory that a few of the wisest and most capable can legislate 
 more intelligently than the whole unorganized electorate, 
 it is at any rate " constitutional " in the American sense, if 
 the written constitutions expressly confer such a right upon 
 the people. 
 
 We are to discuss the case, however, of laws which are 
 passed by the State legislature subject to later ratification 
 by popular vote, when no authorization for such a submission 
 is contained in the constitution, and when the measures apply 
 to local subdivisions of the State. The question is then as 
 to the constitutionality of " local option " laws, an expressive 
 designation for legislation of this kind, in popular parlance, 
 though without reason, restricted to prohibitory liquor laws 
 which are referred to the electors in counties, towns and other 
 local districts. It need scarcely be said that the term may 
 have a very much wider use and it is convenient to extend 
 its meaning and scope in this place. There are various kinds 
 of local option laws, and I refer here not to the subject of the 
 law, but to the form in which it is submitted to popular vote. 
 There is the case ( i ) of special laws passed by the legislature 
 with respect to some locality particularly designated. These 
 laws are very numerous in the few States in which special 
 legislation is still permitted. Thus an act adopted by the 
 legislature of Maryland, providing for the issue of bonds 
 in a certain town for the purpose of enabling the municipal 
 authorities to subscribe to the capital stock of a railway com- 
 pany, prescribes that it shall be referred to the people and 
 " if a majority of the votes " given in at the election on the 
 question shall be " in favor of this act then the same shall 
 forthwith go into effect".^ A law recently enacted by the 
 ' Laws of Maryland, 1894, p. 884. 
 
IS THE LOCAL REFERENDUM CONSTITUTIONAL? 313 
 
 legislature of Massachusetts provides that " so much of this 
 act as authorizes the submission of the question of its accep- 
 tance to the legal voters of said city shall take effect upon its 
 passage but it shall not take further effect unless accepted 
 by the legal voters of said city as herein prescribed ".' Of 
 course a very large number of cases of this kind might be 
 cited. The legislature thus clearly submits a local law to 
 another agent not clothed by the constitution with law-ma- 
 king power, i. e., the people in a body. The legislature en- 
 acts no law ; it merely submits a project of a law, unless, if 
 you choose, it definitively enacts that portion of the measure 
 which prescribes a method by which the referendum shall be 
 taken, a distinction not very important or valuable. 
 
 (2.) We have the general local option laws which apply to 
 all the counties, townships or other local districts of the State 
 (with perhaps a few designated exceptions). These laws 
 exist in almost endless variety and relate to the location of 
 county seats, the sale of liquors, the restraint of live stock, 
 the issue of bonds for many purposes, the levy of taxes, the 
 choice of methods of administration in reference to the poor 
 and with regard to the roads, and other questions of local 
 management. These too are not laws when they leave the 
 legislature's hands. They are mere projects of laws. They, 
 however, relate to a large number of possible districts, any 
 one or more of which may bring the measure into force 
 within the bounds of that particular locality. If it is not 
 adopted, however, even by one single district, the act still 
 retains its place on the statute books of the State until it is 
 repealed or amended by the same power which placed it 
 there, namely the legislature. It operates, in a sense, auto- 
 matically in that any eligible locality on its own initiation, 
 through popular petition or through its representative offi- 
 cers, may make a request for a poll of the people on the sub- 
 ject. If the necessary majority is secured the law comes into 
 force within that one local district and remains in force until 
 it is repealed, by local procedure when that is permitted, or 
 'Acts of Massachusetts, 1896, p. 312. 
 
314 THE REFERENDUM IN AMERICA 
 
 by the State legislature. For example a law of this kind 
 in South Dakota passed in 1891 provides : " If a majority 
 of the electors at any election shall have voted in favor of the 
 proposition then all the provisions of this act shall apply to 
 and be in force in such county [the county in which the vote 
 is taken] . But if a majority of such electors shall have voted 
 against such proposition then the provisions of this act shall 
 not apply to such county ".* A recent law in Missouri says : 
 " This act shall be in force and take effect only in such 
 counties as shall adopt the same by a majority of the quahfied 
 voters who shall vote for or against its adoption "." 
 
 In order to avoid unfavorable judicial opinions various 
 subterfuges are sometimes employed with the result of chang- 
 ing the issue verbally, if not actually and in fact. Thus it 
 is sometimes specified that the act shall " take effect imme- 
 diately ", but that its provisions " shall remain inoperative " 
 until the law is assented to by a majority of the legal electors 
 of those districts to which it is meant to apply.' Again the 
 proposition sometimes is not to ratify a law, but to abolish 
 certain provisions of the State code, or to repeal a law already 
 definitively enacted by the legislature.' In Missouri I have 
 found a law which prescribes that " the provisions of this 
 article are hereby suspended in the several counties in this 
 State until a majority of the legal voters of any county voting 
 at any general or special election called for that purpose shall 
 decide to enforce the same in such county ". Here, curiously 
 enough, the poll of the people is taken, not to enact the law, 
 but to decide whether it shall be enforced.* 
 
 (3.) There is local option also according to what may be 
 denominated the " New Jersey plan ", because of the ex- 
 tended use of this kind of conditional legislation in that State. 
 This is essentially a dishonest form of law-making inasmuch 
 
 * Laws of South Dakota, 1891, p. 27. 
 ' Session Laws of 1893, p. 227. 
 ' Cf. New Jersey Laws of 1897, p. 449. 
 
 ' Cf. Revised Codes of North Dakota, sec. 1550, and Pennsylvania 
 Laws of 1885, p. 142. 
 'Revised Statutes of Missouri, 1889, p. 186. 
 
IS THE LOCAL REFERENDUM CONSTITUTIONAL? S'S 
 
 as it professes to be general in its application to ihe localities, 
 while it in reality is wholly special, creating great confusion 
 and conflict in a field in which uniformity is much to be de- 
 sired. A law framed to meet a need in some particular in- 
 stance which has been brought to the attention of certain 
 members of the State legislature is passed in reference to 
 cities, boroughs or other local districts. This law is " ac- 
 cepted " or " rejected " by the electors in a referendum. At 
 some recent sessions of the New Jersey State legislature 
 such conditional acts have been passed in great numbers. 
 Being without general applicability either in subject matter 
 or intent such legislation can only be looked upon as vicious 
 both in principle and practice. It injects great uncertainty 
 into municipal government which above all things should 
 be stable, pursuing a definite administrative course. It opens 
 the way to constant change in charters and local government 
 acts which, even if they are first submitted to the 
 people of the districts to be affected by them, should 
 the latter desire to avail themselves of the opportunity 
 to adopt the provisions of such a law, is not the less 
 a source of needless disorganization. Conditional acts 
 of this kind have been passed in rapid succession by 
 the legislature of New Jersey in reference to the water 
 supply of cities, the drainage systems, roads, streets, 
 parks, the salaries of civil officials, taxation, indebtedness, 
 the purchase of land, etc., — all subject to a vote of acceptance 
 by the people of separate localities. Even the most super- 
 ficial and hasty consideration of these measures will serve 
 to indicate their special character and confirm us in our view 
 of the nature of this kind of legislation." And New Jersey 
 is not alone among the American States in submitting laws 
 of this class to popular vote. 
 
 (4.) The " alternate law " is a type which is made familiar 
 
 *Cf. General Statutes of New Jersey, 1896, pp. 49s, 500, 508, S35. S39. 
 S7S, 617, 640, 646, 729, 739, 774, 785, 1504, 1506, 1S19, 1524, 1536, 
 IS37. 1543, IS4S. IS48, iSSi, 1557. '558. 2209, 221 1, 2618, 2951, 3085. 
 Session Laws of New Jersey of 1896, p. 43 ; ibid., 1897, p. 449. 
 
3i6 THE REFERENDUM IN AMERICA 
 
 in the legal system of several States. By this method laws 
 are submitted in alternate forms. The legislature in this case 
 is perhaps more than a proposer of the law. It has already 
 taken definitive action in that it prescribes rules and regu- 
 lations to govern the subject at ordinary times, offering, how- 
 ever, an alternate law to the qualified voters of the localities 
 which they may adopt if they like. Upon a favorable vote 
 in any district this alternate law comes into force instead of 
 the definitive law earlier enacted by the legislature. Such 
 a system prevails in West Virginia for instance as regards 
 the management of the public roads. ^^ In one sense nearly 
 all local option laws are alternate laws. The plebiscite on 
 the subject of the prohibition of the sale of alcoholic liquors 
 for instance has this form, since if the proposal to close the 
 dram shops be defeated the license law remains in force. 
 There is some law on the subject in nearly every mentionable 
 case. Even though the people should accept none of the new 
 legislation proposed to them there would not be a complete 
 lack of legal system. From this point of view, therefore, in 
 reality if not in name, all local option laws are " alternate 
 laws". 
 
 It may be said of course of all these distinctions that 
 they relate entirely to unimportant details of form. I said 
 this at the outset, and although other modifications in the 
 textual form of conditional laws in this country could be 
 introduced into this classification I incline to the belief that 
 this is a sufficiently accurate division of the subject to illus- 
 trate the general character of such legislation as it refers to 
 local communities in Ihe United States. Whether the laws 
 submitted to the people are special or general, relate to one 
 district or possibly fifty or sixty, are submitted as definite 
 single propositions or as whole acts. Whether they are " alter- 
 nate laws " or laws which the people may directly enact or 
 indirectly enact by repealing some existent provisions of a 
 code which has earlier been passed by a representative legis- 
 lature, the result is always the same from the point of view 
 
 "Cf. Code of West Virginia, 3rd ed., 1891, pp. 332, 338, 344. 
 
IS THE LOCAL REFERENDUM CONSTITUTIONAL? 3^7 
 
 of political science. There are legal differences for the jurist 
 and fine quibbles for the practical lawyer^ but technicali- 
 ties aside, it is in all these cases quite as if it were stated 
 explicitly in connection with each separate law : " This act 
 shall not take effect until it shall have first been ratified by the 
 
 qualified voters of county (city, village, township, 
 
 etc.)." 
 
 The question now to be determined is whether or not legis- 
 lation of this kind referred to the people of the various gov- 
 ernmental subdivisions of a State by the legislature of the 
 State is constitutional. When the written State constitution 
 specifically provides that such a subject as the location of a 
 county seat, the changing of a county boundary line, the an- 
 nexation of one municipality by another, the restraint of live 
 stock, the prohibition of the sale of alcoholic beverages and 
 so forth, shall be submitted to the qualified electors no one 
 for a moment doubts the legality of this process. When, 
 however, there is no such specific provision in the constitu- 
 tion, a very important legal question arises, and it requires 
 careful historical consideration before we shall be able to 
 come to a fair judgment of the case. 
 
 Of the large number of judicial decisions from the highest 
 State courts on the subject of law-making by popular vote, 
 much the greater part relate to laws in reference to local dis- 
 tricts submitted to a vote of the people of those local districts, 
 being therefore directly in point at the present stage of our 
 discussion. Measures in reference to the whole State, sub- 
 mitted to the people of the whole State, have been passed 
 upon by the courts scarcely a half dozen times in the entire 
 history of this government and the subject in this one of its 
 aspects has been discussed already in its proper connection 
 on an earlier page. Very few opinions were delivered prior 
 to 1850, since legislation of this kind before that time was 
 not common in this country. What did exist was not of a 
 character to arouse animosity and lead to a test of strength 
 between contending social forces until conditional laws came 
 to be passed, levying higher taxes on the people in order to 
 
3i8 THE REFERENDUM IN AMERICA 
 
 carry out public improvement, and prohibiting the Hquor 
 traffic, thus depriving some men of their means of obtaining 
 a livelihood and interfering with other men's forms of indulg- 
 ence and established manners of life. Local option laws re- 
 specting taxation and the prohibition of liquor selling are 
 to be credited with having called forth the vast majority of 
 American judicial opinions on the referendum. 
 
 Before 1850 I note eight opinions from the highest courts 
 of eight different States in which the question of the validity 
 of the local referendum is more or less fully considered and 
 reviewed. Of these eight, three relate to the prohibition of 
 the liquor trade, three to taxation or the public subscription 
 of stock to private companies, and two to other questions of 
 local government. In six of the eight cases the validity of 
 this method of submitting local laws to popular vote was 
 afHrmed and in two, both cases arising out of local option 
 liquor laws, it was denied. The first of the eight opinions 
 was delivered by the Supreme Court of Massachusetts in 
 1826 (Wales V. Belcher, 3 Pick., 508). A law passed by the 
 Massachusetts State legislature had referred the question of 
 the jurisdiction of certain courts in Boston to a vote of the 
 people of the city. A point having been raised in regard to 
 the constitutionality of such legislation the Supreme Court 
 said : " This objection [to the law] for aught we see stands 
 unsupported by any authority or sound judgment. Why 
 may not the legislature make the existence of an act depend 
 upon the happening of any future event? Constitutions 
 themselves are so made ; the representative body in convention 
 or other form of assembly fabricates the provisions, but they 
 are nugatory unless at some future time they are accepted by 
 the people. Statutes incorporating companies are made to 
 derive their force from the previous or subsequent assent of 
 the bodies incorporated. A tribunal peculiar to some section 
 of the commonwealth may be thought by the legislature to be 
 required for the public good and yet may not be acceptable 
 to the community over which it is established. We see no 
 
IS THE LOCAL REFERENDUM CONSTITUTIONAL? 319 
 
 impropriety, certainly no unconstitutionality, in giving the 
 people the opportunity to accept or reject its provisions." 
 
 In an opinion from the Court of Appeals of Virginia in 
 1837 (Goddin v. Crump, 8 Leigh, 120), in a case arising 
 from a law which gave to the people of the city of Rich- 
 mond the right to assent to or reject a proposition for the 
 public subscription of stock to a canal company the same 
 principle was affirmed. In Maryland in 1844 (Burgess v. 
 Pue, 2 Gill., 11), the highest court of the State delivered an 
 opinion favorable to a local option law which levied a tax 
 for school purposes. In Illinois in 1848 (People ex rel. v. 
 Reynolds, 5 Gilm., i ) , a case growing out of a law to divide a 
 county, and in Kentucky in 1849 (Talbot v. Dent, 9 B. Mon., 
 526), in an opinion induced by another act authorizing a 
 municipality to subscribe to the stock of a private company 
 the courts again sustained the legitimacy of this kind of 
 legislation. 
 
 In June, 1847, in Delaware, however, the Court of Errors 
 and Appeals took up a new position and in unqualified terms 
 pronounced against the constitutionality of a local option 
 liquor law which had been passed by the legislature of the 
 State in the preceding February (Rice v. Foster, 4 Harr., 
 479). The entire subject was thoroughly reviewed in its 
 fundamentals. Direct legislation by the people was con- 
 trasted with the representative system of government. The 
 legislative power of the State being vested in the General 
 Assembly by the constitution, the judges declared that the 
 people could not " resume or exercise any portion of it ". 
 " To do so ". the court continued, " would be an infraction 
 of the constitution and a dissolution of the government". 
 Moreover if the problem were considered on its federal side 
 the Constitution of the United States provided that Congress 
 should guarantee to each State " a republican form of govern- 
 ment ". This provision prohibited any State from establish- 
 ing a " democracy ", which would be a natural result were 
 laws submitted to popular vote, a policy which would " de- 
 
320 THE REFERENDUM IN AMERICA 
 
 molish the whole frame and texture of our representative 
 form of government and prostrate everything to the worst 
 species of tyranny and despotism, the ever-varying will of an 
 irresponsible multitude ". The Delaware judges did not per- 
 ceive, or at rate failed to recognize in their opinion, any dis- 
 tinction between laws of a general character relating to the 
 whole State and submitted to the people of the whole State, 
 and local option laws. They in fact denied the whole con- 
 tention, declaring that if the legiskture could refer one sub- 
 ject to a vote of the people it could just as well so refer all 
 subjects. There was in the court's view no middle ground 
 which might be occupied harmoniously with the established 
 system of government in the American States. 
 
 A very few months later, in November, 1847, the highest 
 court in Pennsylvania passed judgment on a local option 
 liquor law similar to that which had drawn forth the notable 
 decision in Delaware. This court also denied the whole 
 proposition generally and without qualification or reserve 
 (Parker v. Commonwealth, 6 Barr., 507). The opinion put 
 the court so far out of line with later developments respecting 
 this subject indeed, that they were led to declare, that, for the 
 legislature to surrender the law-making power to the citizens 
 at large in the local communities, was even less permissible 
 than for it to resign its functions in favor of the people of 
 the whole State. " It is a duty [i. e., the duty of making 
 laws] which cannot be transferred by the representative ", 
 the judges said, " no not even to the people themselves, for 
 they have forbidden it by the solemn expression of their will 
 that the legislative power shall be vested in the General 
 Assembly ; much less can it be relinquished to a portion of the 
 people who cannot even claim to be the exclusive depositories 
 of that part of the sovereignty retained by the whole com- 
 munity ". 
 
 A local option liquor law of precisely the same character 
 led to an important' opinion by the Supreme Court of Ver- 
 mont in 1849 (Bancroft v. Dumas, 21 Vt., 456). The court 
 here took a quite opposite view of the question and, as re- 
 
IS THE LOCAL REFERENDUM CONSTITUTIONAL? 321 
 
 gards the general proposition, declared that it was " in ac- 
 cordance with the theory of our government that all our laws 
 should be made in conformity to the wishes of the people ". 
 It could " surely then be no objection to a law that it is ap- 
 proved by the people ". Passing to a more specific treatment 
 of the subject the court continued : " We believe that it 
 has never been doubted that it is competent for the legislature 
 to constitute some tribunal or body of men to designate 
 proper persons for innkeepers and retailers of ardent spirits " 
 and " if the legislature could legally and constitutionally sub- 
 mit the question of whether licenses should be granted to the 
 determination of a portion of the people [i. e., to the mem- 
 bers of some local board or tribunal], could they not with 
 equal if not greater propriety submit it to the decision of the 
 whole people " ? Continuing the court explained that " laws 
 are often passed and, by the terms of the statute, made to take 
 effect upon the happening of some event which is expected 
 to occur ", but they were " not aware that such laws for that 
 reason had been regarded as invalid". 
 
 From 1850 onward stripping the various decisions re- 
 specting laws of this kind of needless verbiage and techni- 
 cality, which have been called forth in specific instances for 
 one reason or another not germane to the discussion, some 
 conclusions may be arrived at of a rather absolute character 
 as regards the trend of judicial opinion on the subject of the 
 referendum in the United States. In nearly all the States 
 in the Union the courts have considered and discussed this 
 question, and the tendency has been distinctly favorable to 
 this kind of legislation. Since 1850 we find opinions in only 
 four States which are adverse to law-making by popular vote 
 in local districts. These are California, Indiana, Iowa and 
 Texas, Iowa being the most notable for the number of de- 
 cisions in which the court have consistently followed their 
 own precedents. The leading cases in which unfavorable 
 opinions have been delivered in the four States named are 
 Ex-parte Wall" in California; Maize v. The State" and 
 "48 Cal. 279. "4 Ind. 342. 
 
322 THE REFERENDUM IN AMERICA 
 
 Greencastle Township, etc. v. Black" in Indiana ; Geebrick v. 
 State,'* State v. Weir^' and Weir v. Cram'' in Iowa; State v. 
 Swisher^^ in Texas. As Rice v. Foster and Parker v. Com- 
 monwealth, in Delaware and Pennsylvania respectively, date 
 from a period anterior to 1850, so all the later cases except 
 one California, one Missouri and two Iowa cases are earlier 
 than i860. The most recent of the opinions, and also one 
 of the most vigorous in the series, is that in the case of Ex- 
 par te Wall in California in 1874. As the opinion in Parker 
 V. Commonwealth in Pennsylvania was soon modified, and 
 in 1874 in Locke's Appeal'* directly reversed, so there has 
 been a like tendency at work in other States. The line of 
 argument which the court had laid down in Indiana in 
 Maize v. The State, etc., was gradually departed from until 
 in Groesch v. The State,'" quite new ground was found. 
 State V. Swisher in Texas was directly overruled in 1883 by 
 the Court of Appeals,^" and in California both prior to and 
 since the opinion in the case of Ex-parte Wall there have 
 been decisions in favor of the referendum in municipalities 
 and other local districts. In Iowa where a view hostile to the 
 constitutionality of such laws has been most persistently held, 
 it having been reasserted by the court on many different 
 occasions, there have been not infrequent departures from the 
 general principle. The court on account of their vacillating 
 policy with respect to this subject have been led into many 
 conflicting opinions. Geebrick v. State and the later cases 
 would seem finally to have been reversed in 1895 in State 
 ex rel. Witter v. Forkner, 94 Iowa, i, when there was a thor- 
 ough judicial review of a prohibitory liquor law which was 
 known as the " Mulct Law ", a kind of legislative subter- 
 fuge for " local option ", as regards the sale and manufacture 
 of alcoholic beverages. Unless another tendency should 
 later set in, there is then every reason for the belief that, 
 
 " S Ind. 557. " s Iowa, 491. 
 
 "33 Iowa, 134. "37 Iowa, 649. 
 
 " 17 Texas, 441. " 72 Penn. 491. 
 
 "42 Ind. S47. "° 14 Tex. Court of Appeals, 
 
 SOS. 
 
IS THE LOCAL REFERENDUM CONSTITUTIONAL? 3*3 
 
 supported by the weight of authority of more than a half 
 century, the referendum regarding local matters in American 
 communities is now a valid and constitutional part of our 
 system of government in every one of the forty-five States. 
 
 It is to be noted, furthermore, of these various adverse 
 opinions that nearly all were called forth by local option liquor 
 laws, as in Rice v. Foster, Parker v. Commonwealth, State 
 V. Swisher, Geebrick v. State, State v. Weir, and Maize v. 
 The State. If these opinions were disregarded the American 
 State courts would be in virtual unanimity respecting this 
 question. The student who has read after the judges that 
 occupy the benches in our highest State courts must conclude 
 that they are not without personal bias in a consideration of 
 this subject. They are wont to regard this as an occasion 
 when their own views respecting the liquor-selling question, 
 which has aroused so much bitter feeling in American com- 
 munities, should be consulted, and the law in the case is there- 
 fore accorded a secondary place. There is no escape from 
 the thought that such opinions as Ex-parte Wall were directly 
 induced by the personal interest of the judges who if they 
 had been asked to pass upon a local option stock law, for in- 
 stance, would have found no ground .for their vigorous de- 
 fence of constitutional forms. When these additional facts 
 are properly considered the evidence from the records of the 
 courts seems the less entitled to bear heavily against the sys- 
 tem of law-making by popular vote in local districts in this 
 country.''^ 
 
 But it is of interest to inquire a little farther as to the 
 grounds taken by the courts in these various opinions. The 
 adverse decisions are, of course, based on the general prin- 
 ciple enunciated in Rice v. Foster, which certainly holds in 
 respect of laws not of a local character that might be sub- 
 mitted to the people of the entire State. The courts in these 
 cases have failed to recognize any distinction between legis- 
 lation for the State and legislation for local districts of the 
 State, and have declared in more or less definite terms that the 
 " Cf. Oberholtzer, op. cit., pp. 103, et seq. 
 
324 THE REFERENDUM IN AMERICA 
 
 legislature, being constituted a body whose specific function 
 it is to propose, discuss, deliberate upon and pass laws to 
 apply to the districts under its jurisdiction, cannot resign its 
 place in favor of any other tribunal whatsoever, not even the 
 people themselves. Up to this point all authorities are in 
 agreement, but important modifications are subsequently 
 introduced into the argument in nearly all the States, as we 
 have just noted, so that the local referendum has gained a 
 secure foothold throughout the Republic. These exceptions 
 to the general rule are taken mainly on the following grounds, 
 viz : 
 
 (i.) That laws may be passed whose going into effect is 
 made to depend upon a contingency such as the happening 
 of a future event, or the fulfillment of a prescribed condition. 
 This contingency then it is argued, may as well be a favorable 
 vote of the people as anything else. 
 
 (2.) That laws in reference to a municipality or local dis- 
 trict may be enacted by the legislature at will, except as 
 limits are established in the State constitution — and by reason 
 of the legislature's extensive powers in this direction, which 
 it is not able to exercise without the co-operation of some 
 mediate authority, it may call to its aid the citizens at large. 
 It is customary to delegate powers with respect to local gov- 
 ernment to designated agents such as the commissioners of 
 counties, the trustees of towns, the mayors and councils of 
 cities, the judges of local courts and the officers of townships. 
 If such authority can be conferred upon agents of this kind 
 why may not others be appointed, as for instance, the whole 
 body of voters? 
 
 Respecting the first line of argument which leads us to a 
 deviation from the rule, the theory that a contingency may 
 exist, that there may be a condition precedent to the law's 
 taking effect which if it is not met will prevent it from taking 
 effect, there are many opinions tending to support the view. 
 The Federal practice has been pointed to as furnishing ex- 
 amples of legislation passed in a conditional way, its going 
 
IS THE LOCAL REFERENDUM CONSTITUTIONAL? 3^5 
 
 into force being dependent upon the happening of some fu- 
 ture event. One of the first cases of this kind on record, 
 Wales .V. Belcher, supra, which was decided in Massachu- 
 setts in 1826, drew forth an opinion from the Supreme Court 
 of that State of much interest in this connection. The court 
 said that a law might recognize the existence of a con- 
 tingency and that this contingency might be the acceptance 
 by the people of the provisions of the act. The judges asked, 
 " Why may not the legislature make the existence of any act 
 depend upon the happening of any future event ? " and 
 added : " Constitutions themselves are so made ; the repre- 
 sentative body in convention or other form of assembly fabri- 
 cates the provisions, but they are nugatory unless at some 
 future time they are accepted by the people. Statutes incor- 
 porating companies are made to derive their force from the 
 previous or subsequent assent of the bodies incorporated ", 
 etc. 
 
 " Statutes incorporating companies ", it is well to remem- 
 ber, are by no means the only laws which depend upon the 
 occurrence of a future event. One of the most common 
 forms is a statute which is to go into effect on some future 
 day. The contingency in this case, though the similitude 
 be a little strained, is the arrival of a certain date. Such a 
 case has been very frequently cited by the State courts in the 
 development of this principle, since it was announced in 1826 
 in Massachusetts and applied in defence of the referendum 
 in the American States. There are many laws furthermore, 
 and their constitutionality is not called into question on this 
 account, which contemplate that certain acts shall be per- 
 formed by local magistrates and administrative boards. If 
 these conditions are met and fulfilled the act goes into effect ; 
 if not it remains in whole or in part a dead letter. Thus to 
 cite only one concrete instance, among many which might 
 be named, it was provided in a law recently adopted by the 
 legislature of North Dakota, that " the last five sections shall 
 take effect and be in force in each county in this State only 
 
326 THE REFERENDUM IN AMERICA 
 
 upon a resolution to that effect being adopted by the board 
 of county commissioners thereof "}- A law in reference to 
 the capture of sturgeon in the Delaware River, approved by 
 the legislature of New Jersey in 1895, provided in its final 
 section " that this act shall take effect when similar acts shall 
 have been passed by the legislatures of the States of Delaware 
 and Pennsylvania".^^ Many similar cases might be men- 
 tioned and this method of enacting laws is indeed so usual 
 that it has furnished a basis of great strength for the judicial 
 view that the contingency may as well be the assent of the 
 people to the law as any other event or circumstance. 
 
 A statement of this line of argument which is perhaps as 
 clear and direct as any to be found in the Reports of any of 
 the State supreme courts comes from the Virginia Court of 
 Appeals. The opinion was delivered so long ago as in 1855 
 (Bull V. Read, 13 Gratt., 78). The case grew out of an act 
 establishing a system of free schools, if the inhabitants of a 
 particular district of a county should vote to accept the pro- 
 visions of the law. The court in their review of the subject 
 on this occasion said : " It will be conceded that the legis- 
 lature may provide that an act shall not take effect until some 
 future day named, or until the happening of some particular 
 event, or in some contingency thereafter to arise, or upon 
 the performance of some specified condition. The exigencies 
 of the government may frequently require laws of this char- 
 acter, and to deny to the legislature the right so to frame 
 them would be unduly to qualify and impair the powers 
 plainly and necessarily conferred. Accordingly we find 
 this a familiar feature in the legislation both of the na- 
 tional and State governments. . . . The Non-Intercourse 
 acts of March i, 1809, May i, 1810, and May 2, 181 1, 
 were expressly made to depend upon the course that 
 might be adopted by England and France with regard 
 to the edicts promulgated by them, to be made known 
 by proclamation of the president. And the principle 
 
 ''' Revised Codes of the State of North Dakota, 1895, sec. 1732. 
 ''General Statutes of New Jersey, pp. 1 593-94- 
 
IS THE LOCAL REFERENDUM CONSTITUTIONAL? 32? 
 
 of this mode of legislation was sustained by the Su- 
 preme Court, Brig Aurora v. United States, 7 Cranch, 
 382. Nothing is more common than for an act of assembly 
 to be made to commence upon a future day. The code of 
 1849 is an instance of the kind. All acts of incorporation 
 are, in effect, acts to take effect upon a future event, the ac- 
 ceptance of the corporators; for without their consent the 
 corporate body cannot be created. The various acts making 
 subscriptions on the part of the State to works of internal 
 improvement when a certain amount shall be raised by pri- 
 vate subscriptions are of this character. The several acts 
 authorizing the Baltimore and Ohio Railroad Company to 
 construct their road through the territory of Virginia con- 
 tain the same feature. Such was the character of the act of 
 March 3, 1835, which authorized the county courts to dis- 
 pense with the first and second sections of the act in their 
 respective counties and reinstate the road law of 1819. Such 
 also was the act of February 3, 1846, accepting the county 
 of Alexandria upon its retrocession. Instances of the same 
 kind might be multiplied indefinitely. Now if the legislature 
 may make the operation of its act depend on some con- 
 tingency thereafter to happen, or may prescribe conditions, 
 it must be for them to judge in what contingency or upon 
 what condition the act shall take effect. They must have the 
 power to prescribe any they may think proper; and if the 
 condition be that a vote of approval shall first be given by 
 the people affected by the proposed measure it is difficult 
 to see why it may not be as good and valid as any other 
 condition whatever. There can be no inherent vice in the 
 nature of such a condition which shall serve to defeat the 
 act when it would be legal and effectual if made to depend 
 upon some other event." 
 
 The subject was so thoroughly reviewed by the courts 
 years ago that in recent opinions the fact that a contingency 
 may exist, and that a favorable vote of the people of a local- 
 ity may constitute that contingency, is in the nature of a well 
 established maxim. Thus in 1895 in Mississippi, Lum v. 
 
328 THE REFERENDUM IN AMERICA 
 
 Vicksburg, 72 Miss., 950, the court distinctly declared " that 
 a law may become operative upon the happening of a future 
 event, although that contingency may be the result of an 
 election by the people, and that this is too well settled gen- 
 erally, and in this State particularly, to be now again con- 
 sidered by us ". 
 
 In Michigan, to mention but one more recent instance, 
 the Supreme Court in 1890, Feek v. Township Board, 82 
 Mich., 393, said : " The legislature in conferring upon the 
 board the authority to pass such order [i. e., an order pro- 
 hibiting the liquor business] had the right to prescribe the 
 conditions under which it might be exercised; and this con- 
 dition is that the majority of the legal voters vote in favor 
 of the proposition. . . Numerous authorities might be cited 
 to show that it is legal and competent for the legislature 
 to provide that a law shall go into effect upon the happening 
 of a contingency, some of which are cited in the brief of the 
 Attorney-General. The proposition is too clear to need the 
 citation of authorities." '* 
 
 As regards the second line of argument which rests upon 
 the admittedly large powers possessed by the State legis- 
 
 " Some of the leading cases in the different States in which this 
 theory has been developed in addition to those which may have been 
 already named are the following: Fell u. State, 42 Md. 71 ; Trammel v. 
 Bradley, 37 Ark. 374; Blanding v. Burr, 13 Cal. 343; Ex parte Wall, 48 
 Cal. 279 ; Mayor and Council of the City of Brunswick v. Finney, 54 
 Ga. 317; Groesch v. The State, 42 Ind. S47 ; Santo v. State, 2 Iowa, 
 165; Geebrick v. State, 5 Iowa, 491 ; Taylor v. McFadden, 84 Iowa. 262; 
 Noffzigger v. McAllister, 12 Kan. 250; State ex rel. v. Hunter, 38 Kan. 
 578; Slack V. Maysville and Lexington Railroad Co., 13 B. Mon. i; 
 Commonwealth v. Weller, 14 Bush. 218; Roos v. State, 6 Minn. 291; 
 Alcorn v. Hamer, 38 Miss. 652 ; Schulherr v. Bordeaux, 64 Miss. 59 ; 
 Lammert v. Lidwell, 62 Mo. 188 ; State ex rel. Maggard v. Pond, 93 
 Mo. 606 ; State v. Noyes, 10 Foster, 279 ; C. W. & Z. R. R. Co. v. Clin- 
 ton County, I O. S. 77 ; Gordon v. The State, 46 O. S. 607 ; Moers v. 
 City of Reading, 21 Penn. 188; Locke's Appeal, 72 Penn. 491; John- 
 son V. Martin, 75 Tex. 33 ; 14 Texas Court of Appeals, 505 ; State v. 
 O'Neill, 24 Wis. 149 ; Smith v. City of Janesville, 26 Wis. 291 ; Dowling 
 V. The Lancashire Insurance Company, 92 Wis. 63 ; In re Village of 
 North Milwaukee, 93 Wis. 616; Trustees of Paris Township v. Cherry 
 et al., 8 O. S. 564; Peck v. Weddell, 17 O. S. 271 ; State ex rel. Wil- 
 cox, 45 Mo. 458 ; Manly v. City of Raleigh, 4 Jones Eq. 370. 
 
IS THE LOCAL REFERENDUM CONSTITUTIONAL? 3^9 
 
 latures with reference to municipal and quasi-municipal cor- 
 porations the reasoning is very direct. The legislature, be- 
 ing unable to exercise its authority without the co-operation 
 of local agents which are designated to attend to affairs of 
 local administration, it is an easy step to change the agents. 
 If these powers are already entrusted to selectmen, trustees, 
 commissioners, supervisors, mayors and members of councils 
 and other representative officers and local boards it is not far 
 to go to the whole body of electors. In New. England the 
 voters assembled in town meeting are permitted by the legis- 
 lature to make determinations in regard to many matters 
 pertaining to local government, elsewhere usually left to the 
 discretion of a few representatve officers. The referendum 
 provides a method, where the town meeting does not exist, 
 of collecting the sentiments of the people and of introducing 
 them en masse as a tribunal in local government. This 
 argument deduced from the legislature's extensive rights 
 over municipalities is based also upon grounds of expediency, 
 since the submission of such laws to local officers and bodies 
 is held greatly to conduce to the proper administration of 
 local affairs which, in the nature of the case, are often so 
 special in character as to make suitable action on the part of 
 a law-giver stationed at some distant post not very feasible. 
 A judge or a local board is authorized to determine whether 
 licenses for the sale of liquor shall be granted. Why then, 
 it is asked, may not all the electors in the district to be af- 
 fected by the order decide this question? An officer or sev- 
 eral officers are authorized to decide whether a certain tax 
 shall be laid, whether a county boundary line shall be changed 
 or a county seat removed, whether one town shall be annexed 
 to another for purposes of government. Why may not such 
 questions be referred to some other authority, namely, to the 
 voters themselves? 
 
 To how large an extent considerations of expediency, 
 rather than those of law, have had to do with this develop- 
 ment in the United States, will appear from the following 
 opinions in which this theory as to the power of the kgis- 
 
330 THE REFERENDUM IN AMERICA 
 
 lature over municipalities as an explanation and defence of 
 the referendum, seems to have been fairly stated. As early 
 as in 1844 the highest court in Maryland in Burgess v. Pue, 
 2 Gill, 19, a case arising out of a law to tax the people in aid 
 of free schools said : " We think there was no validity in the 
 constitutional question which was raised by the appellee's 
 counsel in the course of his argument, relative to the com- 
 petency of the legislature to delegate the power of taxation 
 to the taxable inhabitants for the purpose of raising a fund 
 foi the diffusion of knowledge and the support of primary 
 schools. The object was a laudable one, and there is nothing 
 in the constitution prohibitory of the delegation of the power 
 of taxation in the mode adopted to effect the attainment of 
 it ; we may say that grants of similar powers to other bodies 
 for political purposes have been coeval with the constitu- 
 tion itself, and that no serious doubts have ever been enter- 
 tained of their validity. It is therefore too late at this day 
 to raise such an objection." 
 
 The Supreme Court of Louisiana in 1853, Police Jury v. 
 McDonogh, 8 La. An., 341, in an opinion induced by an act 
 authorizing local districts upon a vote of the people to sub- 
 scribe to the stock of internal improvement companies, said: 
 " The right of the legislature to delegate the power of taxa- 
 tion for local purposes to municipal authorities is established 
 in this State, and in our sister States, by an uninterrupted 
 train of legislative precedents and judicial decisions. The 
 necessity and propriety of such delegation are obvious. The 
 supreme jurisdiction has not leisure nor information to take 
 cognizance of and manage all the matters which concern a 
 particular locality. The interests of a particular town or 
 county are best understood and can be best administered by 
 its inhabitants, or persons of their choice selected under legis- 
 lative authority. Our own statute books and those of our 
 sister States are filled with acts creating these political cor- 
 porations whose powers are emanations from the legislative 
 will and subject to be enlarged or curtailed by that will from 
 time to time, as the wisdom of the legislature may dictate. 
 
IS THE LOCAL REFERENDUM CONSTITUTIONAL? 33^ 
 
 ... If the legislature could constitutionally confer on the 
 police jury authority to pass a taxing ordinance, it would 
 seem rather a safeguard against oppression than the reverse 
 to qualify the power of requiring it to be exercised with 
 the approbation of a majority of those who are to bear the 
 burden. Certainly one would be inclined, with much show 
 of reason, to suppose that a system sanctioned by the legis- 
 lative will and tested by a long experience in one of the oldest 
 States in this Union — a State which was amongst the fore- 
 most in the struggle for constitutional liberty — could not 
 well be inconsistent with the principles of representative 
 government. If we look to Massachusetts how do we find 
 municipal matters managed there? If any change is to be 
 introduced into the existing state of things, or if they wish to 
 undertake any new enterprise, the selectmen are obliged to 
 refer to the source of their power. If, for instance, a school 
 is to be established the selectmen convoke the whole body of 
 the electors on a certain day at an appointed place ; they ex- 
 plain the urgency of the case ; they give their opinion on the 
 means of satisfying it, on the probable expense, and the site 
 which seems most favorable. The meeting is consulted on 
 these several points; it adopts the principle, marks out the 
 site, votes the rate and confides the execution of the resolu- 
 tion to the selectmen. The system practiced in Massachu- 
 setts is not uilknown in other States. ... It seems to us a 
 matter of surprise that the caution of the legislature in its 
 grant of the taxing power should be made a subject of re- 
 proach." 
 
 The Court of Appeals of Kentucky in 1874, Anderson v. 
 Commonwealth, 13 Bush., 485, in a case in which the special 
 subject brought forward for review was a local option liquor 
 law, said : " Wc agree that the question of license or no 
 license is one properly of local police and may be constitu- 
 tionally left to the decision and discretion of the lawfully 
 created agencies representing and acting for the local public 
 to be immediately affected by the retail liquor traffic, such as 
 the county courts and the municipal authorities of towns 
 
332 THE REFERENDUM IN AMERICA 
 
 and cities. And further that the legislature may create other 
 agencies to determine this local question, and that it is no 
 constitutional objection to the agencies created by the act 
 under consideration that they are composed of the body of 
 the qualified voters of the city, town or civil district in which 
 the necessary steps may be taken to test the sense of such 
 voters on the subject of such retail traffic." 
 
 The whole topic was considered in a very satisfactory 
 manner from an historical point of view in Maryland in 1891, 
 Bradshaw v. Lankford, 73 Md., 428. The court's opinion 
 was as follows : " It can hardly be necessary to say that by 
 the Constitution of this State the power to enact laws belongs 
 to the General Assembly, composed of the senate and the 
 house of delegates ; and this being so it is a well settled prin- 
 ciple of constitutional law that the power thus delegated can- 
 not be redelegated to the people themselves. Our govern- 
 ment is a representative government and to the members of 
 the General Assembly the people have confided the power 
 to pass such laws as they, in the exercise of this judgment, 
 may deem best for the public interests ; and they have no 
 power to substitute the judgment of others in matters of 
 legislation for the judgment of those to whom this sovereign 
 trust has been committed. But fundamental as this principle 
 may be it is subject to certain qualifications, some of which 
 are well recognized both in this country and in England. 
 No one questions the power of the legislature to charter 
 municipal corporations and to confer upon such corporations 
 the power to pass laws and ordinances in regard to matters 
 pertaining to local legislation. And it seems to be quite well 
 settled in this country at least that, not only may the mu- 
 nicipal authorities themselves pass such laws and ordinances, 
 but the legislature may refer laws in regard to local affairs 
 to the voters of the municipality for their acceptance or re- 
 jection. Upon the same principle counties, although pos- 
 sessing the general powers of municipal corporations under 
 special charters, are regarded as quasi corporations and it 
 
IS THE LOCAL REFERENDUM CONSTITUTIONAL ? 333 
 
 seems to be well settled that questions of local concern, 
 whether, for instance, a county seat once located shall be re- 
 moved elsewhere, or whether the county shall subscribe to 
 a particular improvement, — these and other like questions 
 of local legislation may be referred to the voters of the 
 county for decision. Upon the same principle, too, it has 
 been held in this State that laws passed under the pplice 
 powers of the State regulating or forbidding the sale of in- 
 toxicating drinks, commonly known as local option laws, 
 may be submitted to the voters of an election district of a 
 county and the operation of such laws made to depend upon 
 the result of a popular vote in said district." ^^ 
 
 A general study of the various deliverances of the courts 
 touching the constitutionality of the submission of subjects 
 of local government to popular vote will develop the fact 
 that the contingency theory, and the theory based upon the 
 legislature's power in reference to municipalities, as well as 
 the related consideration as to the expediency of a central and 
 distant body submitting questions of purely local concern to 
 the people who are to be directly affected by them in order 
 that administration may be more smooth and effective, bear- 
 ing with the least possible harshness upon the inhabitants, 
 are closely interwoven. The judges pass almost impercept- 
 ibly from one to the other and whatever their own individual 
 views may be as to the law in the case, they are at any rate 
 compelled to recognize that conditional legislation of this 
 kind has existed in all parts of the Republic from the founda- 
 tion of the government. Whether there is in a strict judicial 
 sense justification for it or not, it is here and it must be reck- 
 oned with as a part of us. A great weight of precedent and, 
 perhaps other important considerations which are not em- 
 pirical, can be appealed to in its defence. The town meet- 
 
 '^ For other cases in which this line of reasoning is pursued, cf. God- 
 din V. Crump, 8 Leigh, 120 ; Slack v. Maysville and Lexington R. R., 
 Co., 13 B. Mon. I ; State v. Wilcox, 42 Conn. 364; Caldwell v. Barrett, 
 73 Ga. 604; City of Paterson c. Society for Establishing Useful Manu- 
 factures, 4 Zab. 38s. 
 
334 THE REFERENDUM IN AMERICA 
 
 ing and the referendum are factors in the American system 
 of local government which will remain with us long after 
 the jurist has ceased to seek the grounds for these interesting 
 political institutions. 
 
CHAPTER XIV 
 
 THE REFERENDUM ON CITY CHARTERS 
 
 One of the most serious of the problems which confront 
 us in the field of government in the United States is met with 
 in our large cities. In these great metropolitan districts of so 
 recent a development there have grown up difficulties with 
 which our type of government has yet seemed unable to cope. 
 The large populations of modern cities and the diverse social 
 interests of all these multitudes of people, coming into con- 
 flict as they must to a much greater extent than in rural dis- 
 tricts since they must live so close together within a very 
 limited territorial area, have developed a set of problems that 
 put the present machinery of government to a severe test. 
 It is not too much to say that our experiments in the main 
 have been entirely unsuccessful up to this time, though there 
 is hope that within a not very long period the whole system 
 may be reorganized in such a way as to insure very much bet- 
 ter results. In what manner this end is to be attained it is 
 difficult to foresee, but all observant persons are convinced 
 that our system to-day is notably deficient in certain im- 
 portant particulars vital to the honest and proper manage- 
 ment of city affairs. 
 
 The whole political machinery is not infrequently seized 
 hold of by corrupt elements in the city who conduct the elec- 
 tions, occupy the offices and administer public affairs to serve 
 their own private ends. They are restrained very often, it is 
 true, from adopting too bold a course, and, at times, even are 
 constrained to present for leading offices the names of can- 
 didates whom citizens holding to higher standards may con- 
 scientiously support. When pressed hard by an aroused pub- 
 lic sentiment the office-holding cliques will sometimes make 
 
 335 
 
33^ THE REFERENDUM IN AMERICA 
 
 important concessions to save themselves from a defeat which 
 might sweep them from position entirely. Occasionally, 
 indeed, by dint of strenuous endeavor good citizens who 
 encounter peculiar opposition and obloquy in carrying on 
 their patriotic work are able to organize their fellow voters 
 against the more ignorant and the less honest factions. But 
 these get their living from the offices they fill and it is one 
 of the most difficult matters, except at unusual times, to dis- 
 lodge them. The good citizens from among whom leaders 
 of talent and force have risen up must return to their own 
 pursuits, and so soon as the pressure of an outraged public 
 sentiment is removed the same elements make their appear- 
 ance again and resume their places as before in arrogant 
 defiance of the forces which stand for better government. 
 The cost and sacrifice of such a campaign by men who must 
 neglect their private affairs and run the gauntlet of un- 
 pleasant criticism by interested partisans and a hireling press 
 is so great and the victory so temporary, it is not to be won- 
 dered at that the task is seldom undertaken. It has 
 seemed to be better and easier for us to bear with a very 
 great deal of inefficient, if not positively bad and mischievous, 
 government in cities rather than keep ourselves on guard con- 
 stantly against these strong elements that are always at hand 
 to break through the gates of virtue. 
 
 Much of the merit or demerit of a city gfovemment has 
 been held to reside in the city charter, the grant of powers 
 received from the State legislature of which each city in this 
 country except Washington is the creation, the latter city 
 standing under Federal supervision by reason of its being 
 the national capital. In the main, in pursuance of some un- 
 written law, each American city is organized after the same 
 pattern as the Federal and State governments, i. e., like the 
 England of Montesquieu's time. It has been adjudged 
 needful, for some reason, to give a city government three 
 separate departments — executive, legislative and judicial. 
 American publicists have seemed to recognize no other type 
 of government and to this fact it is, at least in some degree, 
 
ON CITY CHARTERS 337 
 
 due that our failures in this field have been so notably dis- 
 creditable. This peculiar tripartite division of powers in 
 cities has been remarked upon by many excellent students of 
 our institutions * and at last there seems to be a distinct 
 tendency at work to correct some of these inherited miscon- 
 ceptions as to the form that should properly be given to a 
 great municipal corporation. The mayor's hands are being 
 strengthened constantly and there is a movement afoot to 
 centralize power in a few officers in a manner that some 
 earlier exponents of our democratic system might have re- 
 garded as quite inconsistent with the rules of popular self- 
 government. The movement toward a competent civil serv- 
 ice under the direction of some central authority is, how-, 
 ever, steadily going forward and there will not probably be 
 any backward step when it comes to be fully understood how 
 great is the need in cities of capable administrators who are 
 held directly responsible to a few authorities possessing real 
 power over them. It is an instance in which the " checks 
 and balances " of government are grotesquely out of place, 
 if past experience in this country is to serve us as a guide. 
 In this view, too, there is much positive corroboration com- 
 ing from Europe where greater success in municipal govern- 
 ment is being achieved by methods that we have been too slow 
 to adopt. 
 
 Nevertheless it is possible to commit serious error if we 
 rely too fully on forms and insist upon a certain kind of 
 charter as the only means to good government. A great deal 
 else must be considered, though to avoid impracticable and 
 unworkable systems is, of course, an initial obligation. Pan- 
 aceas in government have not yet been discovered, and al- 
 though for this reason too much stress has been laid on 
 what is called the " Home. Rule " principle as a corrective 
 for present evils, it is in any event a very interesting devel- 
 opment and one that is to claim our special attention in this 
 
 ' Cf. Bryce, op. cit., Vol. I, pp. 623-24 ; Lowell, Governmenti and Par- 
 ties in Continental Europe, Vol. II, p. 300. 
 
33^ THE REFERENDUM IN AMERICA 
 
 chapter in so far as it has come to involve a direct vote of 
 the people on their city charters. 
 
 It is alleged that the population of a city is often so great 
 and its requirements so specific that it might better be a 
 " free city ", holding relations with the Federal govern- 
 ment directly instead of only mediately and through the 
 State of which it is now a part. The interests of the rural 
 and urban portions of" the State are so different that a legis- 
 lature common to both can minister well to the needs of 
 neither section of the population. Although the importance 
 of local self-government has been recognized from the be- 
 ginning in the United States, the power of the State legis- 
 lature over a municipality is so absolute that gross abuses 
 may easily creep in. The legislature grants not only the 
 general charter of incorporation from which the city derives 
 its self-governing powers, but it may pass bills from time 
 to time amending that charter and may withdraw it altogether 
 at its pleasure, supplanting it with another except as restraint 
 may be found in the State constitution. The interferences 
 of the legislatures in city government have been so frequent 
 and disturbing in recent years that a general effort to check 
 the tendency has been made, either by constitutional provi- 
 sion or by force of precedent upheld by public sentiment, 
 with very interesting results in more than one State of the 
 Union. There has sprung up a desire for Home Rule, the 
 city being allowed to govern itself instead of being gov- 
 erned to so large an extent from the State capital by bills 
 and charters. Home Rule, indeed, has become a very 
 popular " cry " and it is plain, of course, that a serious evil 
 is at hand when the legislatures make improper use of their 
 power, as they can be convicted of doing in nearly all the 
 States in which large cities exist. 
 
 To go so far, however, as to recommend that the cities 
 should be entirely emancipated from the supervision of the 
 State is a quite untenable position, though there is a marked 
 tendency for the cities to seek protection of the constitu- 
 tional conventions which do not meet so often, rather than 
 
ON CITY CHARTERS 339 
 
 place themselves so fully as formerly under the direction 
 of the legislatures. To find some middle ground between 
 complete independence and absolute dependence is a prob- 
 lem that in many States we are now trying to solve. It must 
 be admitted that we are still passing through the experimental 
 stages of the development and have not yet come to any 
 result which may be regarded as generally satisfactory. And 
 most of all it is important to keep the fact in mind that while 
 this reform may have in view a great evil, and may really 
 close one avenue to mischievous municipal government, 
 others are likely still to remain open. If there is Home Rule 
 there must be methods at home to secure proper and ef- 
 ficient public administration, else home rule will not be better 
 than rule at a greater distance. If the responsibility is to be 
 shifted, and what has formerly been done by the legislature 
 even though it was poorly done, is now to be prohibited to it 
 there must be some capable body to stand in its stead. Here 
 it seems we are undertaking to introduce the whole electorate, 
 the citizens at large, whose power is exercised through the 
 referendum. The people are brought into our system, to 
 supplement the legislature either ( i ) by accepting or vetoing 
 a charter or local government act which the legislature may 
 submit to them; or (2) by approving or rejecting the char- 
 ter as it is received from some local body designated to draft 
 it, in those States in which an attempt has been made by 
 constitutional means wholly to eliminate the influence of 
 the legislature. 
 
 It is a very usual practice for some one high legal au- 
 thority or a committee of leading citizens to whom the task 
 may be assigned by common assent of the people inhabiting 
 the city, to prepare a charter which is then introduced into 
 the State legislature as a bill and is regularly passed as an 
 incorporation act without change, or at any rate, with very 
 slight amendment and modification. It is but another step 
 to submit the charter to a vote of the people of the city who 
 are in future to be governed by it. Oddly enough this ref- 
 erendum is more usual in small than in large cities. The vote 
 
34° THE REFERENDUM IN AMERICA 
 
 upon abandoning village or town organization in favor of 
 incorporation as a city under a general law is in effect such 
 a referendum. It is known in this case that if the poll shall 
 be favorable to the proposition the terms of a specific law, 
 will apply to the city ipso facto without more ado. Sim- 
 ilarly when the people of a city of a certain class vote to 
 advance its grade to another class, as when a third-class city 
 becomes a second-class city in States in which cities are all 
 brought under general laws, it is in effect a referendum upon 
 a charter. 
 
 We may pass these cases, however, which have been 
 treated fully enough in an earlier chapter, and consider those 
 instances specifically in which the people of a city vote 
 directly to accept or reject a particular charter which has 
 been submitted to them by the State legislature. For ex- 
 ample, in Massachusetts various special acts for the in- 
 corporation of towns and cities, or acts revising charters 
 previously granted, are referred to popular vote. In 1896 
 an act to amend the charter of the city of Everett contained 
 the following provision : " This act shall be submitted to the 
 voters of the city of Everett who shall vote ' yes ' and ' no ' 
 upon the question of the acceptance of the several sections at 
 the annual State election in the present year and only such 
 sections shall take effect as shall, at such election, be accepted 
 by the affirmative votes of a majority of the voters voting on 
 the several sections at said election." * Incorporation acts 
 for cities in Massachusetts in recent years have frequently 
 been submitted to popular vote.' 
 
 In Maryland also it is not uncommon for the legislature to 
 submit incorporation acts or amendments to the charters 
 of towns and cities,* and in Tennessee the same practice is 
 followed in certain cases which have been brought to my 
 notice. The charter of the city of Harriman which was 
 
 "Acts of Massachusetts, 1896, p. 301. 
 
 'Cf. Acts of Massachusetts, 1896, pp. 205, 312, 364, 394, 419; Acts 
 of 1897, pp. 124, 191, 265. 
 * Laws of i8go, p. 118; Laws of 1894, p. 887; Laws of 1896, p. 608. 
 
ON CITY CHARTERS 34i 
 
 passed by the legislature in 1891 " was not to become ef- 
 fective until it had been ratified by popular vote. The law 
 said : " This act shall go into effect and be enforced from 
 and after its passage, the public welfare requiring it, to the 
 extent that it is hereby made the duty of the sheriff of Rome 
 County, in person or by one of his deputies, to hold on the 
 nineteenth day of May, 1891, at some public place within 
 the boundaries defined in art. i, sec. 2, of this act .... an 
 election at which all persons qualified to vote at the first 
 election provided for in art. iv, sec. 4, shall be entitled to 
 vote, and the question shall be voted upon whether this 
 charter shall be accepted or not, and those of such voters who 
 favor the acceptance of this charter shall deposit their bal- 
 lots ' For Charter ' and those who oppose the acceptance of 
 • this charter shall deposit their ballots ' Against Charter ', 
 and if a majority of such voters shall vote in favor of the 
 acceptance of this charter, then this act from and after the 
 canvassing of said returns, etc., shall go into effect and be 
 in force in every part thereof." 
 
 In Oregon, likewise, charters of municipal corporations 
 are sometimes submitted to the people. Thus an act to in- 
 corporate the city of Roseburg says : " This act shall be sub- 
 mitted to the legal voters of the city of Roseburg at a 
 special election .... at which said election the ballots shall 
 be written or printed as follows : ' New Charter — ^Yes ', 
 ' New Charter — No '. If a majority of the ballots cast shall 
 read ' New Charter — Yes ', then this act shall immediately 
 go into effect."' 
 
 Furthermore in Vermont acts of incorporation are very 
 frequently referred to the citizens residing within the dis- 
 trict to be incorporated,^ and in Rhode Island in a law to 
 establish " the city of Johnston " it was provided that " this 
 
 "Acts of 1891, p. 93- 
 
 'Laws of 1893, p. 458; cf. ibid.,, pp. 119, 228, 452, 504- 
 ' Cf . Laws of 1884, pp. 191, 203, 212; Laws of 1886, pp. 172, 184, 
 183 ; Laws of 1888, p. 260 ; Laws of 1890, pp. 79, 85, 92, 109, 121 ; Laws 
 of 1892, pp. 156. 174, 213; Laws of 1896, pp. 212, 22s, 239, 247. 
 
342 THE REFERENDUM IN AMERICA 
 
 act shall be submitted for acceptance to the qualified voters 
 of the town of Johnston ".* An act to amend and reenact 
 the charter of the city of Sistersville, in West Virginia, 
 which was passed in 1895, was not to take effect " until it 
 be ratified by a majority of the legal voters within the cor- 
 porate limits of said town of Sistersville ".* 
 
 In all these States yielding the cases which have just been 
 cited, however, a poll of the people is the exception rather 
 than the rule. It is in Louisiana that, a general system has 
 been evolved and introduced into the legislative procedure 
 in respect of charters, — in Louisiana that the legislature has 
 voluntarily surrendered to the people of towns and cities, 
 New Orleans alone excepted, the right to determine under 
 what kind of a local government act they shall be organized. 
 The steps which lead up to the referendum in this State 
 are as follows: (i) The preparation of a charter by means 
 not known to the law, presumably by a private organization 
 of men, or a committee of citizens. (2) The presentation 
 of this charter to the mayor and council of the town or city 
 accompanied by a petition " signed by a majority of the 
 property owners residing within the corporate limits " ask- 
 ing that the proposed new charter shall be submitted " to the 
 duly qualified electors " to be adopted or rejected by them. 
 (3) An election to be held within ninety days from the date 
 of the filing of the petition, preceded by notices published 
 in the newspapers. If a majority of the votes cast at this 
 election are in favor of the new charter the law provides that 
 " it shall become the charter of said city or town and be duly 
 promulgated as such by the mayor ".^" 
 
 In like manner when the charters of towns and cities 
 
 - (barring New Orleans) are to be altered or changed it is 
 
 contemplated that the amendments shall be submitted to 
 
 popular vote. Whenever a petition is received by the officers 
 
 of the city " signed by one-third or more of the property 
 
 'Laws of Rhode Island, 1897, chap. 516. 
 
 'Acts of West Virginia, 1895, p. 139. 
 
 "Wolff's Revised Laws of Louisiana, 1896, p. 567; cf. ibid., p. 566. 
 
ON CITY CHARTERS 343 
 
 taxpayers " asking for a change in or an amendment of the 
 charter the proposition must be referred to the people. If 
 more than one amendment be submitted at the same time 
 the means must be at hand for the voters to express their 
 views in regard to each proposal separately. " If a majority 
 of the qualified electors at such election shall approve and 
 ratify such amendment or amendments ", the law provides 
 that, " the same shall be appropriately numbered and become 
 a part of the charter and be proclaimed as such by the 
 mayor or other executive head ".^^ 
 
 It is of interest to note that the legislature here reserves 
 to itself no veto power over these charters which towns 
 and cities may adopt on their own initiation for their own 
 government. It is assumed of course that the charters will 
 be in harmony with general State laws; that a municipality 
 will not actually make itself an imperium in imperio, acting 
 over the head of the regularly established State govern- 
 ment. Other agencies — such as the courts — failing to apply 
 the necessary restraints a way would still be open to the 
 legislature and one very near its hand. It could at any time 
 repeal the law and enact such other legislation respecting 
 towns and cities as the situation might seem to demand. In 
 no conceivable case could a town or city under this system 
 attain that position of independence which would release 
 it from the supreme authority and sovereignty of the State 
 legislature in the sense that this singular result has been 
 attained in Missouri, California, Washington and Minne- 
 sota where the constitutions in specific terms take the char- 
 ter-making power entirely out of the hands of the legis- 
 lature and place it with local agents. To charters which 
 are framed by local bodies and submitted to the people under _ 
 authority derived from the State constitutions the discussion 
 will immediately pass. 
 
 There was injected into our legal system when the con- 
 vention met to frame a new constitution for Missouri in 
 187s an entirely new principle, which though it has already 
 
 " Wolff's Rev. Laws of La., p. 565. 
 
344 THE REFERENDUM IN AMERICA 
 
 been accepted with greater or less modification in four 
 States, can not yet be said to have got itself firmly estab- 
 lished in the American practice. This is because of the 
 conflict between authorities which is certain to be engen- 
 dered by a change so radical and complete. This reform was 
 nothing less than putting the city in a position in which it 
 holds direct relations with the constitutional convention in- 
 stead of with the legislature. The city adopts its own 
 charter according to certain definite rules prescribed in the 
 constitution. The legislature's authority in a sense ceases, 
 or is at any rate suspended, and although many questions 
 calling for judicial interpretation, which tend to confuse the 
 whole subject, have arisen from time to time, municipalities 
 in some States have actually won a high degree of autonomy 
 by this method. 
 
 The provision which found its way into the Missouri 
 Constitution of 1875 was especially designed to benefit St. 
 Louis. At that time the government of the city was viewed 
 with dissatisfaction by very many people. Not only was it 
 desired to eliminate the influence of the State legislature, 
 in so far as it might be expedient to do so, but it was hoped 
 that a plan, could be devised to separate the county of St. 
 Louis from the city of St. Louis, the two governments being 
 at that time co-extensive. The proposition finally took this 
 form — that the people of St. Louis should elect thirteen 
 citizens to serve as a " Board of Freeholders ". Not only 
 should this board draft and propose a city charter, but it 
 was to be its duty also to prepare a " Scheme " for the sepa- 
 ration of the city and county governments, the adjustment 
 of their relations and so forth. To ratify the " Scheme " 
 and charter the assent of a majority of all those electors 
 voting on the two subjects at a special election called for 
 this purpose was necessary, and this vote both propositions 
 received on August 22, 1876, when the referendum was 
 held.^^ It was further provided in the Constitution that 
 
 " Constitution of Missouri, art. ix, sees. 20-25 : State ex rel. v. Sut- 
 ton, 3 Mo. App. 388 : State ex rel. v. Finn, 4 Mo. App. 347. 
 
ON CITY CHARTERS 345 
 
 amendments to the charter, if they were not presented more 
 frequently than once in two years, might be proposed by 
 " the law-making authorities of the city ". They would be- 
 come a part of the charter if they were approved by three- 
 fifths of those citizens voting on the subject at a general or 
 special election.^^ 
 
 Lest the city might consider itself too nearly free under 
 this system, framing and adopting its own charter and 
 amending the instrument as occasion might require, pro- 
 cesses which hitherto had been solely within the province 
 of the legislature, the convention made an important declara- 
 tion. It announced in specific language that " notwithstand- 
 ing the provisions of this article, the General Assembly shall 
 have the same power over the city and county of St. Louis 
 that it has over other cities and counties of this State ",^* 
 and also that the " charter and amendments shall always be 
 in harmony with and subject to the Constitution and laws 
 of Missouri ". 
 
 Furthermore, a section of a general character was inserted 
 in the Constitution of Missouri of 1875, extending the 
 privilege of framing and adopting a freeholder's charter 
 to any city in the State having a population of more than 
 100,000, which rank Kansas City afterward attained. In 
 this connection the convention declared again that the char- 
 ter should " always be in harmony with and subject to the 
 Constitution and laws of the State ".^' 
 
 There are ideas here which are not in agreement in spite 
 of an appeal for harmony. The machinery is provided by 
 which a city may make itself independent of the legislature, 
 yet it is declared expressly that the legislature shall still 
 exercise its authority as before, i. e., shall pass laws for the 
 municipality. In Missouri's experience with the freeholders' 
 charter, -vi^hich in the case of St. Louis dates from 1876, 
 and with reference to Kansas City from 1889, a considerable 
 body of opinion on this point has been handed down by the 
 
 " Constitutron of Missouri, art. ix, sec. 22. " Ibid., art. ix, sec. 25. 
 "Ibid., art. ix, sec. 16; cf. Acts of Missouri of 1887, p. 42. 
 
346 THE REFERENDUM IN AMERICA 
 
 courts. Although many questions touching the conflict of 
 authority are still to be decided, a number of issues have 
 been disposed of. The legislature has gradually succeeded in 
 regaining nearly all its former power over these two cities. 
 The privilege, which it was thought would prove so valuable, 
 has been reduced to a rather empty form, as is fully evi- 
 denced by the large number of State laws for the govern- 
 ment of city aflfairs that now stand side by side with, and 
 are superior in authority to the city-made charters and 
 ordinances. The Supreme Court of Missouri in 1889 said: 
 " The legislative power of the State is vested in a senate and 
 a house of representatives, and, when it is declared that 
 any city of the required population may frame and adopt 
 a charter for its own government, the right thus granted and 
 the charter adopted is subject to legislative control. The 
 proposition that when any such city has adopted a charter 
 it is out of and beyond all legislative influence cannot be 
 sustained ".^* 
 
 The Supreme Court earlier in 1884 speaking in the same 
 sense said : " It is argued that inasmuch as these sections 
 authorized the voters of the city of St. Louis to frame and 
 adopt a charter for the government of the city which, when 
 adopted in the manner therein provided, should take the place 
 of and supersede the charter theretofore granted by the legis- 
 lature and all amendments thereto, as to all matters of local 
 self-government, an imperium in imperio was created and 
 as to such matters the city was emancipated from State and 
 legislative control It is true that constitutional au- 
 thority was given to the people of the city to frame and 
 adopt a charter which should supersede the charter and all 
 amendments to it in existence at the time of its adoption, 
 but the idea that it was thereby intended to create a sover- 
 eignty and deny to the State the right of control is, we 
 think, completely overthrown by the limitations contained 
 in the Constitution itself "." 
 
 " State ex rel. Kansas City v. Field, gg Mo. 353. 
 " Ewing -t/. Hoblitzelle, 85 Mo. 64. 
 
ON CITY CHARTERS 347 
 
 Although there are some opinions which seem to indicate 
 a deviation from this principle, the rule in Missouri is fairly 
 set forth in the declaration given above, and " general 
 laws " of very many sorts in reference to many different 
 subjects are passed. by the legislature which in intent and in 
 effect profoundly influence municipal government in St. 
 Louis and Kansas City." 
 
 The second State to adopt a constitutional provision per- 
 mitting cities to frame their own charters was California. The 
 convention which met in 1879 to prepare a new consti- 
 tution for that State determined to extend to San Francisco 
 the same privileges which were already enjoyed by St. Louis. 
 The proposition led to much discussion in the convention 
 and, although it had been approved by the " Committee on 
 City, County and Township Organization " to which such 
 matters were regularly referred, it met with considerable 
 opposition from those who pretended to fear that San Fran- 
 cisco would thus be enabled to cut loose from the rest of the 
 State. " This is the boldest kind of an attempt at seces- 
 sion," one delegate said in the convention, and another pro- 
 posed an amendment to the article to the effect that the 
 city should receive from the State " all the privileges and 
 consideration accorded to the most favored nations ", and 
 that the legislature should provide " a duly accredited min- 
 ister as representative of the State in the said city ".^" So 
 much feeling hostile to the scheme was developed that an 
 amendment had to be accepted by those members of the 
 convention in charge of the measure and it was arranged 
 that the charter, after being approved by the people of the 
 city, should be submitted to the legislature — an important 
 modification of the plan — which, however, must accept or 
 reject the instrument " as a whole without power of altera- 
 tion or amendment ". 
 
 " For additional cases throwing light on this point in Missouri, see 
 Kansas City ex rel. v. Scarritt, 127 Mo. 642; State ex rel. Ziegenhein 
 V. Railroad, 117 Mo. i; State v. Bennett, 102 Mo. 356; Westport v. 
 Kansas City, 103 Mo. 141. 
 
 " Oberholtzer, op cit., p. 93. 
 
348 THE REFERENDUM IN AMERICA 
 
 This section of the Constitution as it was adopted by the 
 convention, the people of the State ratifying it at the polls, 
 was to apply to " any city containing a population of more 
 than 100,000 ", therefore to San Francisco only. The city 
 might elect a board of fifteen freeholders (thirteen in Mis- 
 souri) who should frame a charter to be submitted after- 
 ward to popular vote. If it were approved by a majority of 
 the electors voting on the question of its acceptance or re- 
 jection, it must be sent to the State legislature which must 
 approve or reject it as a whole " by a majority vote of the 
 members elected to each house ". If it were ratified and 
 became the charter of the city it could be amended " at in- 
 tervals of not less than two years " on the initiation of the 
 city's legislative body, should the proposed changes be ap- 
 proved by a three-fifths vote of the people and later by the 
 State legislature as in the case of the original charter.^" 
 
 Although San Francisco had failed to avail herself of this 
 privilege in respect of her charter, the legislature proposed 
 a constitutional amendment to the people of the State in 
 1886 reducing the limit of population from 100,000 to 
 10,000. This amendment was adopted at a special election 
 held on April 27, 1887, and opened the way to important 
 changes in the fundamental law of a number of the less 
 populous cities of California. At an election in 1890 the 
 privilege was still further extended to include any city in 
 the State containing " more than 3,500 inhabitants ". The 
 freeholders' charter was thus brought within the reach of 
 every municipality in California, except the villages and the 
 smaller corporations, for whose government less anxiety is 
 felt by those who interest themselves in city problems in the 
 United States. 
 
 The first city in California to adopt a freeholders' char- 
 ter was Los Angeles. The city's initial attempt to take 
 advantage of this privilege, however, was unsuccessful in 
 that the charter when it was submitted to the people was re- 
 jected and another Board of Freeholders had to be elected. 
 
 " Art. xi, sec. 8, as it stood before it was amended. 
 
ON CITY CHARTERS 349 
 
 The second board drafted a charter upon which a referen- 
 dum was taken on October 20, 1888."^ The State legislature 
 ratified it on January 31, 1889, and it at once became the 
 charter of the city, superseding acts earlier passed by the 
 State legislature. On November 6, 1888, the people of Oak- 
 land, Cal., approved a freeholders' charter which was sub- 
 mitted to them. Stockton followed with a charter which 
 was ratified by the people of that city on November 20, 1888, 
 while San Diego in December, 1888, elected freeholders 
 who prepared a charter which was accepted by the people 
 at a referendum held on March 2, 1889. Sacramento, the 
 capital city of the State, adopted a freeholders' charter at 
 an election in May, 1892.^'' Grass Valley was the first city 
 m the State having less than 10,000 inhabitants to undertake 
 self-government. This was in the year 1893, and it was 
 closely followed by Napa, Eureka and two larger cities, 
 Berkeley and San Jose. In 1899 three charters were pre- 
 sented for and received the approval of the legislature, these 
 being for San Francisco,^' a city which had voted on this 
 question on repeated occasions, Vallejo ^* and Santa 
 Barbara.'"' 
 
 Up to this time the approval of the legislature has never 
 been withheld from a charter which the people of a city have 
 first ratified, though a favorable vote on the charter in the 
 referendum within the city itself is by no means easy to 
 secure. It has been especially difficult in San Francisco to 
 present the draft of a charter which the people would accept. 
 The first attempt of this kind was made in 1880 very soon 
 after the new Constitution of California was adopted, and 
 only at the fifth election on this subject eighteen years later, 
 or in 1898, was a majority vote obtained in favor of a new 
 body of fundamental law for that city. These elections 
 were held on September 8, 1880, March 3, 1883, April 12, 
 
 "The vote was 2642 for the charter and 1890 against it. 
 =« Statutes of California of 1893, p. 545- 
 " Statutes of California of 1899, p. 241. 
 '^ Ibid., p. 370- " ^^''^■' P- 448. 
 
35° THE REFERENDUM IN AMERICA 
 
 1887, November 3, 1896, and May 26, 1898. Each time a 
 board of freeholders had been elected which, sitting and 
 deliberating and voting like a small constitutional conven- 
 tion, prepared and proposed a charter for San Francisco. 
 The charter submitted in 1880 was overwhelmingly defeated. 
 The total vote polled was 23,398, of which only 4,144 ballots 
 were in favor of the charter, while 19,143 were cast 
 against it, the rest of the ballots being " blanks ". It is 
 stated that " the most active opposition to the charter of 
 1880 was on account of a provision introduced in the chapter 
 relating to the health department, which provided that from 
 and after the year 1885 no human body should be buried 
 within six miles of the city hall. This would have closed 
 eleven cemeteries within the city limits. The opposition 
 was led by the Roman Catholic Church, and it was more 
 effective than any other force in insuring the defeat of the 
 charter "}^ 
 
 The second charter which was submitted in 1883 met 
 spirited opposition from the professional politicians who are 
 thought to have " counted it out " — i. e., it was defeated after 
 the polls were closed. " The returns were unaccountably 
 slow in coming in, and the later returns were all against the 
 charter. The reports from the first 59 precincts showed a 
 majority of 1,000 for the charter, the final returns gave 32 
 against the instrument in a total vote of 18,764 "."' Four 
 years later, in 1887, when the third charter was submitted to 
 the people it was foredoomed to failure in the view of most 
 persons, though it called out a larger number of votes than 
 either of the other two charters. The majority against it 
 at the election was about 4,000 votes. There was then a 
 lull in charter making in San Francisco for several years. 
 The next charter was drafted in time for its submission to 
 the people at a special election which was to have been held 
 on April 16, 1895, but the poll was delayed until the general 
 election in 1896, when there were 15,879 ballots cast for the 
 
 °° San Francisco Argonant of November i, 1897. 
 " Ihid. 
 
ON CITY CHARTERS 35 ^ 
 
 charter and 17,978 against it, there having been a majority 
 on the wrong side, therefore, of more than 2,0CK) votes. The 
 total number of votes polled for candidates at this election 
 was 64,815. Thus it appears that every other person who 
 voted for individual candidates for office had so little interest 
 in the subject of the charter that he did not declare himself 
 either for or against it.^° It was believed that the attention 
 of the voters had been diverted by larger issues. A con- 
 viction spread therefore that when next a charter should be 
 drafted, it should be submitted at a special, rather than a 
 general election, and the fifth attempt was made on May 
 28, 1898, when a majority of about 2,000 votes was re- 
 corded in favor of the document, so that the long and tedious 
 contest between the " politicians " and the friends of good 
 government in San Francisco was at last brought to an end. 
 The charter was ratified by the State legislature at its session 
 of 1899. It went into effect on January i, 1900, and a better 
 era in the political life of the city is now confidently looked 
 forward to. From the beginning the elements in control 
 of the political machine in San Francisco have steadily op- 
 posed the charters which have been drafted by the free- 
 holders. They have expressed a preference for the old sys- 
 tem of taking municipal law from the State legislature, a 
 method which they understood and by which they could 
 secure for themselves large benefits. It is scarcely to be ex- 
 pected that they will not discover a mode after a while of 
 advantaging by the freeholders' charter, but they will at any 
 rate be under the rather unpleasant necessity of conducting 
 some experiments with popular government in another and 
 an unfamiliar form. 
 
 The new charter was supported by a number of clubs and 
 
 " In a letter from the office of the mayor of San Franciisco, explain- 
 ing the small vote for this charter, I am told : " The interest of the citi- 
 zens, being centered on the national ticket and the local ticket, naturally 
 diverts attention from the charter and, as a consequence, the one which 
 was passed was presented at a special election at which there was no 
 other issue and experience has shown us that this is the only way an 
 instrument of this kind can be adopted." 
 
352 THE REFERENDUM IN AMERICA 
 
 organizations devoted to municipal reform and the campaign 
 in its behalf was ably led and actively prosecuted. The 
 " Citizens' Charter Association " issued an address to the 
 people in which they said : " We appeal to all good citizens 
 to endorse the work of their freeholders elected last De- 
 cember and thus crystallize in'iu law an honest eflort to save 
 San Francisco from the rule of the bosses, the water, lighting 
 and railroad corporations and allied interests which have 
 daily dealings with the city government and which have in 
 the past and will in the future, unless they are restrained, 
 debauch our politics, rob the people and paralyze the orderly 
 operation of the law. . . . The people can amend it from 
 time to time if it prove defective; but they can never have a 
 new charter offered to them except by again invoking the 
 elaborate machinery required by the constitution for the sub- 
 mission of a freeholders' charter. This is the fifth charter 
 offered to the people. Give it a fair trial and thus do your 
 duty to your municipality." 
 
 It is this charter which introduces the initiative and the 
 referendum of the Swiss pattern into the city practice, and 
 makes other striking reforms in municipal government, the 
 working out of which students of political institutions in this 
 country will watch with attention and close interest. Thus 
 while San Francisco was the first city to put forth an effort 
 to secure " Home Rule " in California it isj at this writing, 
 among the last in the State to have availed itself of tlie 
 privilege extended it by the constitution. 
 
 Some interesting points in connection with these self- 
 governing cities of California have been brought out in the 
 judicial opinions emanating from the higher State courts. 
 The Constitution of the State provided that a charter, when 
 it had been approved by the people of the city should be 
 " submitted to the legislature for its approval or rejection ", 
 and if accepted by a majority vote of the members elected 
 to each house it should become the charter of such city. 
 The question arose as to whether the charter should not also 
 be approved by the Governor as in the case of ordinary bills. 
 
ON CITY CHARTERS 353 
 
 Four charters had been accepted by the Cahfornia legis- 
 lature in 1889 and in each instance this was done by joint 
 resolution. It was argued in behalf of Los Angeles that 
 approval by this method would not suffice. The signature 
 of the Governor of the State should be required as in the 
 case of ordinary legislation. The Supreme Court to which 
 the question came for a decision drew attention to the spe- 
 cific statement in the constitution that the charters should be 
 " submitted to the legislature ". Now the Governor was no 
 part of the legislature. He was a part of the general law- 
 making authority of the State, but this was one thing and 
 the legislature was another and a different thing.''" There- 
 fore the process had been a regular one and the one that 
 had been contemplated by the framers of the constitution. 
 This section of the constitution in the course of its various 
 changes and editings was later amended in this particular. 
 It was specified that the charter should be " submitted to the 
 legislature for its approval or rejection. . . . Such 
 approval may be made by concurrent resolution and if ap- 
 proved by a majority vote of the members elected to each 
 house it shall become the charter of such city ", etc. Lan- 
 guage so plain will avoid any further question with respect 
 to this interesting, if rather technical point. 
 
 In California as in Missouri, it has been difficult to deter- 
 mine just how comprehensive are the powers of the State 
 legislature over cities which have adopted freeholders' 
 charters. To lay down definite rules regarding this matter 
 seems to be quite out of the question. In the nature of the 
 case the task is rendered well nigh impossible. Some rather 
 distinctive results have been arrived at, however, in Cali- 
 fornia by reason of the careless wording of the constitution, 
 as it left the hands of the convention in 1879. In one sec- 
 tion, for instance, the constitution declares that "cities and 
 towns heretofore or hereafter organized, and all charters 
 thereof framed or adopted by authority of this constitution, 
 shall be subject to and controlled by general laws ".'" This 
 
 » Brooks V. Fischer, 79 Cal. 173. "Art. xi, sec. 6. 
 
354 THE REFERENDUM IN AMERICA 
 
 statement appeared however to be in conflict with the sec- 
 tion which extended to cities the right to frame their own 
 charters, free from the intervention of the legislature. In 
 1890 this seeming contradiction drew forth an opinion from 
 the Supreme Court of the State. The legislature had passed 
 a general law in reference to streets to apply to all the cities 
 of California. Los Angeles, having provisions of a different 
 kind in the freeholders' charter which the peopl'e had re- 
 cently approved and the legislature had ratified, desired ex- 
 emption from the law, but this was refused. The court 
 said : " A charter like the one under which the city of Los 
 Angeles exists is subject to general laws and a statute like 
 the one now attacked is a general law within the meaning 
 of the constitution. It is useless to discuss the propriety 
 of allowing the legislature to interfere by general laws with 
 the local affairs of a city. The constitution so provides in 
 plain terms and so far as the courts of the State are con- 
 cerned this must settle the controversy. If the power given 
 the legislature to enact laws of this kind is an evil affecting 
 the rights of the city government the remedy is by amend- 
 ment of the constitution ".'^ 
 
 Acting upon the advice of the court the people of the cities 
 concerned were not long in seeking this remedy. Los An- 
 geles was not alone in her dissatisfaction at being put under 
 so much restraint. San Diego and other cities which had 
 adopted freeholders' charters in order to get free of the in- 
 terfering legislation of the General Assembly were ready to 
 declare that such a restriction went far to nullify the advan- 
 tages of the new system. And so in fact it did. The consti- 
 tution declared that the charter which the freeholders framed 
 should be " consistent with and subject to the constitution 
 and laws of this State ", that it should be " approved by a 
 majority vote of the members elected to each house " of the 
 State legislature. But it also declared that the charter so 
 adopted " shall supersede any existing charter and all amend- 
 ments thereof and all special laws inconsistent with such 
 " Davies v. City of Los Angeles, 86 Cal. 37. 
 
ON CITY CHARTERS 3SS 
 
 charter ", while elsewhere in the constitution it was provided, 
 as we have noted, that all charters " framed or adopted by 
 authority of this constitution shall be subject to and con- 
 trolled by general laws ". How were such inharmonious 
 provisions to be brought into agreement? The proposition 
 was to amend the constitution by striking out the word 
 " special ", which I have italicized, so that this clause thence- 
 forth would read : " And supersede any existing charter 
 and all amendments thereof and all laws inconsistent with 
 such charter ", the presumption being that " all laws " would 
 include " inconsistent ", general laws as well as those of a 
 " special " nature. This amendment was approved by the 
 legislature on March 19, 1891, and was submitted to the 
 people of the State who adopted it November 8, 1892, by a 
 vote of 114,617 to 42,076. 
 
 The California cities by this amendment were led to believe 
 that they would enter upon an era of fuller emancipation 
 from the influence of the State legislature. Though to a 
 degree they have been disappointed in this hope, they never- 
 theless occupy a unique position among their sister munici- 
 paHties in this country. The Supreme Court of California 
 in defining the rights of the cities in this particular in a 
 recent opinion said : " In all matters which may affect the 
 State at large or whenever any legislation is in its judgment 
 appropriate for all parts of the State it [the legislature] 
 possesses all the legislative power of the State that has not 
 been specifically denied to it, and upon whatever subjects 
 its power to pass a general law exists such general law must 
 be the controlling rule of action in all parts of the State and 
 over all its citizens ". A subject of this general character 
 the court held the public school system to be. The laws in 
 reference to public education are of general and uniform 
 application, even in cities which have framed their own 
 charters and may have adopted other and conflicting pro- 
 visions regarding this question.^^ There can be no escape 
 from the conclusion that the position taken by the Judges 
 
 " Kennedy v. Miller. 97 Cal. 429. 
 
3S6 THE REFERENDUM IN AMERICA 
 
 in this case is thoroughly sound, and also no escape from 
 another conclusion namely, that absolute rules in this field 
 cannot be wisely established. To make a city wholly free 
 from the State legislature's control is a foolish ideal, as 
 wrong in principle and theory, as it would be impracticable 
 in its realization. 
 
 When the convention met in 1889 to draft a constitution 
 for the new State of Washington, California's Constitution 
 was looked upon as a valuable source of legal and political 
 forms for its neighbor commonwealth on the Pacific coast. 
 Many members of the convention had received their civic 
 training in California and among the features which they 
 desired to introduce in the Washington Constitution was this 
 section in reference to freeholders' charters in cities. After 
 a rather prolonged discussion of the subject by the delegates, 
 a provision quite similar to that which is found in the Consti- 
 tutions of Missouri and California was adopted, to apply to 
 any city in the State containing a population of at least 
 20,000. With this figure as a minimum it was provided that 
 a board of fifteen freeholders should be elected to draft a 
 charter and refer it to the people of the city for their ap- 
 proval or rejection. If it should be approved by a majority 
 of those electors voting on the subject at a general or special 
 election it would come into effect at once as in Missouri. In 
 Washington there was no provision like that in California, 
 requiring that the charter should be referred to the State 
 legislature for its approval also. Amendments might be 
 proposed by " the legislative authority " of the city, and they 
 became parts of the organic law of the municipality when 
 they were ratified by a majority vote of the people as in the 
 case of the original charter.^^ Seattle; Tacoma, Spokane, 
 and perhaps one or two other cities, have adopted freeholders' 
 charters, in the manner prescribed by the constitution, and 
 the experience of a few years has furnished useful testimony 
 as to the value of this important municipal reform. 
 
 "Constitution of Washington, art. xi, sec. lo; cf. Ballinger's Codes 
 and Statutes of the State of Washington, sees. 734 et eeq. 
 
ON CITY CHARTERS 357 
 
 Patterning its work after a similar provision in California 
 the convention in the State of Washington fell into the same 
 errors and inconsistencies which in the former State it has 
 been necessary to correct by constitutional amendment. 
 The constitution provided that the charter which the city 
 should frame for its own government should be " consistent 
 with and subject to the constitution and laws of the State ". 
 It declared furthermore that all charters adopted by au- 
 thority of the constitution including freeholders' charters 
 should " be subject to and controlled by general laws ", 
 going on to specify that the freeholders' charter when 
 adopted by a vote of the people should " supersede any ex- 
 isting charter including amendments thereto and all special 
 laws inconsistent with such charter ". This of course is 
 an exact literal transcript of the corresponding provision 
 in the Constitution of California prior to the amendment of 
 that instrument in 1892. By general laws the State legis- 
 lature may circumvent the constitutional guaranty to the 
 cities and prevent the attainment of the very object which 
 the makers of the constitution all the while had in view. Up 
 to this time, however, no organized effort has been made in 
 Washington to find a remedy such as has been sought out 
 and applied in California. 
 
 The Supreme Court of the State has been called upon sev- 
 eral times to fix a boundary of authority between the State 
 legislature and the new semi-independent city, but without 
 marked success. We are asked to remember for example 
 that these provisions in regard to cities are " somewhat un- 
 usual and extraordinary provisions and that they are indirect 
 restrictions on the power of the legislature which can pre- 
 scribe rules for the government of every municipal corpor- 
 ation but these "^*- The court on several occasions, how- 
 ever, has upheld the legislature in measures to restrain the 
 cities frorri exercising their independent powers in respect 
 of general State matters. In denying the right of the city of 
 Tacoma tO' establish a special tribunal and clothe it with 
 
 "* State ex rel. Snell v. Warner, 4 Wash. 773. 
 
3S8 THE REFERENDUM IN AMERICA 
 
 power to try contested election cases the Supreme Court 
 efifectually discredited the claim that cities which had 
 adopted freeholders' charters were invested " with all the 
 authority to legislate upon local matters that had theretofore 
 been exercised by the legislature ".^^ 
 
 And again when it was necessary to call attention to the 
 fact that the right of eminent domain still adhered to the 
 State government, even after the cities had taken advantage 
 of this provision of the constitution and had become in a 
 measure self-governing, the court said : " Because the con- 
 stitution permits certain cities to frame charters for their 
 own government is no sufficient reason for their assuming 
 a branch of the sovereignty of the State which has no ele- 
 ment of municipal government in it.^° 
 
 The fourth State to permit cities to frame their own 
 charters under constitutional guaranty is Minnesota which 
 has only very recently introduced this reform into her sys- 
 tem. At the general election in 189^ the people of the State 
 by a vote of 107,086 to 58,312 adopted a constitutional 
 amendment which conferred a large degree of independence 
 upon the cities (and villages) of Minnesota. The amend- 
 ment was itself amended respecting some slight details in 
 1898. There are several interesting and notable features 
 of the system as it has been worked out in Minnesota which 
 differentiate it from the corresponding provision in Missouri, 
 California and Washington. There is absolutely no mini- 
 mum as to population. " Any city or village " may frame 
 its own charter which it is to receive from a board of fifteen 
 freeholders. This board, however, is to be a permanently 
 constituted body appointed by the district judges of the ju- 
 dicial district in which the city or village is situated, instead 
 
 " State V. Superior Court, 14 Wash. 604. 
 
 " Tacotna v. The State, 4 Wash. 64 ; cf. State ex rel. Wiesenthal v. 
 Denny, 4 Wash. 135; State ex rel. Snell v. Warner, 4 Wash. 773; Sey- 
 mour V. Tacoma, 6 Wash. 138; Howe v. Barto, 12 Wash. 627; State ex 
 rel. Seattle ■:'. Carson, 6 Wash. 250. 
 
ON CITY CHARTERS 359 
 
 of being elected by the people as in the other States. The 
 freeholders are appointed for six years (by the original 
 amendment of 1896 for life) and vacancies by reason of ex- 
 piring terms or for any other cause are filled in the manner 
 in which the members were first chosen. The board must 
 " always contain its full complement of members ". The 
 charter must be submitted to the people and a four-sevenths 
 majority vote is necessary for its ratification. The board 
 of freeholders also proposes and submits charter amend- 
 ments which are adopted when ratified by three-fifths of 
 those voting upon them at a city election, though five per 
 cent of the legal voters of any city or village may originate 
 and can compel the freeholders to refer any desired amend- 
 ment to popular vote. 
 
 Neither the charter nor an amendment needs the approval 
 of the legislature. State supervision and control over the 
 municipality are secured by other means. It is provided 
 in the first place that the charter shall be " in harmony with 
 and subject to the constitution and the laws of the State ". 
 It shall " supersede any existing charter and amendments 
 thereof ", but it is expressly permitted of the legislature, if 
 it selects to avail itself of the privilege, to pass general laws 
 which shall be in force in the cities and villages coincidently 
 with the freeholders' charters. Four classes of cities may be 
 legislated for in this general way (three classes by the orig- 
 inal provision of 1896). These are as follows: (i) Cities 
 having more than 50,000 inhabitants; (2) cities having 
 50,000 and not less than 20,000 inhabitants; (3) cities con- 
 taining a population of 20,000, and not less than 10,000, and 
 (4) cities containing 10,000 or a less number of inhabitants. 
 These general laws with respect to the cities within any given 
 class are to be " paramount while in force to the provisions 
 relating to the same matter included in the local charter 
 herein provided for ". In no case and under no circum- 
 stance shall a provision of a local charter or any ordinance 
 passed by its authority " supersede any general law of the 
 
360 THE REFERENDUM IN AMERICA 
 
 State defining or punishing crimes or misdemeanors ". In 
 this field the State is to be supreme.'^ 
 
 As indicating an attempt to exercise a certain restraint over 
 the city and as illustrating the persistency with which we 
 cling to old forms in local government in the United States, 
 it is interesting to note a provision in this new section of the 
 Constitution of Minnesota, specifying that in any charter 
 submitted to the people by these boards of freeholders the 
 scheme of government shall include " a mayor or chief 
 magistrate and a legislative body of either one or two 
 houses ". If there are two houses " at least one of them 
 shall be elected by general vote of the citizens ". 
 
 Summarizing and recapitulating a little, we find that in 
 all four of the States in which the cities may adopt their own 
 charters-^Missouri, California, Washington and Minnesota 
 — these instruments are framed by a " Board of Freehold- 
 ers ", i. e., a comrhittee of citizens of the municipal district 
 for which the new scheme of government is intended. This 
 board is composed of fifteen members, except in the case of 
 Missouri where thirteen suffice. In all the States but Min- 
 nesota this body is elected by the people of the city with the 
 single special task of drafting a charter. In Minnesota the 
 members are appointed by the local judges and the board 
 is a permanent body the members serving for a term of six 
 years, reappointments being made and vacancies being filled 
 by the same authority. 
 
 The privilege is restricted to cities containing a certain 
 definite number of inhabitants, except in Minnesota where 
 all cities and villages, no matter what their size, may frame 
 their own charters. In California the lowest limit is a pop- 
 ulation of 3,500 (earlier 10,000 and still earlier 100,000) ; 
 in Washington 20,000 and in Missouri 100,000. In all 
 four States the charters, being drafted, are submitted to the 
 people for their approval, a simple majority vote sufficing 
 in St. Louis and in California and Washington, a four- 
 
 " Constitution of Minnesota, art. iv, sec. 36 ; General Lawg of Minne- 
 sota for 1897, P- 507; cf. ibid., p. v and pp. 473 et seq. 
 
ON CITY CHARTERS 3^1 
 
 sevenths majority being necessary in cities of Missouri other 
 than St. Louis (Kansas City) and in Minnesota. In one 
 State, California, the charter when it has been adopted by 
 the people must be subsequently referred to the State legis- 
 lature, though for its " approval or rejection as a whole " 
 without power of alteration or amendment in details. 
 Amendments to the charter in three States — Missouri, Cal- 
 ifornia and Washington — ^may be proposed by the " legisla- 
 tive authority " of the city and in the fourth, Minnesota, by 
 the permanently constituted board of freeholders or by five 
 per cent of the legal voters of the municipality. The 
 amendments must be submitted to the people of the city, as 
 were the original charters, and must be approved by them, 
 a three-fifths vote being necessary in Missouri, California 
 and Minnesota, a simple majority sufficing in the State of 
 Washingtoh. In CaUfornia amendments like the charters 
 must be ratified by the State legislature. 
 
 The freeholders' charters are subject to " general laws " 
 of the State legislature by express provision in Minnesota, 
 and by fair implication in Missouri and Washington. In 
 California the constitutional amendment of 1892 has made 
 the cities more free than they earlier were, though in the 
 nature of the case they are still under the legislature's 
 supervision in respect of general State matters. In no one 
 of the four States up to this time have the boundaries be- 
 tween State and local authority been clearly defined and 
 appeals to the courts are frequent with a view to determining 
 disputed points which constantly arise. 
 
 It is interesting in this connection to consider a measure 
 looking to the greater independence of cities from the in- 
 fluence of the State legislature which was lately adopted 
 in New York. The convention which met to revise the 
 Constitution of that State in 1894 was appealed to in behalf 
 of the larger cities whose local affairs were being greatly 
 disturbed by legislative interferences, and there were some 
 of the delegates who would have been willing to go so far 
 along the line of Home Rule as to introduce a provision per- 
 
362 THE REFERENDUM IN AMERICA 
 
 mitting municipalities to frame their own charters. A 
 number of amendments relative to Home Rule for cities 
 were proposed by various delegates to the convention. At 
 least two of these propositions were derived directly from 
 the Constitutions of Missouri, California and Washington.^' 
 Such a step, however, seemed like a long one. There were 
 many of the more conservatively minded who desired that 
 this subject should be approached from another direction, 
 and a scheme therefore was devised which is in fuller har- 
 mony with the representative system of government. 
 
 The cities of the State are divided into three classes. The 
 first class includes all cities having a population of 250,000 
 or more; the second class, cities having 50,000 inhabitants, 
 but less than 250,000; the third class all cities containing 
 less than 50,000 inhabitants. The legislature may pass gen- 
 eral laws for all the cities of the State, or for all the cities of 
 a certain class, at will without consultation with any local 
 authority, but in respect of special laws which relate to one 
 city or several cities (not all) of a class the measures must 
 be first transmitted to the particular municipality or munic- 
 ipalities affected by the proposed legislation. When any 
 such bill, whether it be a charter, a bill to amend a charter, 
 or any other special law relating to city government, has 
 been passed by both houses of the legislature it is sent to 
 the mayor of the city to which it refers. He is not author- 
 ized to submit the bill to popular vote, but he can arrange 
 for a public hearing, when all persons who have an interest 
 in the subject may appear to present their objections to the 
 measure should they have any. In all cities of the State, 
 except those of the first class, where the matter is entirely 
 in his own hands, the mayor is to act concurrently with the 
 local legislative body in performing this unusual function, 
 and within fifteen days in the name of the city he must return 
 the bill to the State legislature with his approval or his veto. 
 
 " Cf. Proposed Constitutional Amendments of the New York Con- 
 stitutional Convention, Vol. I, no. 113 by Mr. Tucker, and no. 139 by 
 Mr. Turner. 
 
ON CITY CHARTERS 3^3 
 
 If the legislature has already adjourned and the session has 
 terminated the bill with the mayor's certificate is sent to the 
 Governor. Should the bill be accepted by the locality to 
 which it relates, it is still subject to the Governor's veto. He 
 may disregard the legislature's and the city's wishes in such 
 a matter if he believes his course to be for the welfare of 
 the State. Should the bill be disapproved of by the mayor 
 or should it be held by that officer beyond the constitutional 
 limit of time — fifteen days — ^it may nevertheless again be 
 passed by the legislature. Then too, however, it is still sub- 
 ject to the action of the Governor, as are other bills. It is 
 provided furthermore that any such special law shall plainly 
 indicate in its title whether it has been " accepted by the 
 city ", or whether it has been " passed without the accept- 
 ance of the city ".'" 
 
 Of all the devices which have been proposed as a 
 means of protecting American cities from the undue inter- 
 ference and the increasing meddlesomeness of the State leg- 
 islatures, whose members through ignorance or lust of power 
 and gain, have driven us to the point of seeking these im- 
 portant constitutional reforms, the system so recently 
 adopted in New York will most commend itself to the judg- 
 ment of careful students of this subject. As universal as 
 the prohibition of it has become in the past quarter century, 
 we are beginning to realize that in the very nature of things 
 special legislation for localities is sometimes necessary. 
 There are matters of local administration which cannot be 
 satisfactorily brought under a general head. For the good 
 of the city or other community which the system was in- 
 vented and designed to protect special laws are demanded. 
 To prohibit them was a temporary expedient and a makeshift 
 at best. It was an outgrowth of the irrepressible conflict 
 between the constitutional convention and the legislature 
 which has been in progress for so many years. " The leg- 
 islature has shown a marked incapacity to perform the great 
 tasks heretofore assigned it, therefore we will restrict it in 
 •" Constitution of New York as amended in 1894, art. xii, sec. a 
 
364 THE REFERENDUM IN AMERICA 
 
 the exercise of its authority and distribute the power among 
 other agents/' argued the makers of the constitutions. It 
 was perceived that great evils had crept into the system of 
 government within the States by reason of the development 
 of modern cities. Through their influence there was a 
 lowering of moral standards in the legislatures, and a serious 
 interference with a natural working out of political problems 
 in these great urban districts as well as in the rural parts of 
 the State. The conventions sought, therefore, to divide all 
 legislation of this kind into two kinds, general and special 
 legislation. What the legislature desired to do in respect 
 of the different localities under its authority the constitu- 
 tions required it to embody in general laws which should 
 apply not to one specific city, but to all cities or localities 
 of a general class. 
 
 I have noted in earlier chapters to what dishonest subter- 
 fuges this prohibition has led. Classes have been created 
 which contain but a single city or a single county, and al- 
 though we may dismiss the subject by throwing the blame 
 upon the legislature which takes this course in order to evade 
 the plain intent and purpose of the law and resume its old- 
 time activity as a creator of evil and confusion in local gov- 
 ernment, there is no escaping the thought that the legislature 
 is only seeking to do that which it ought to do, and that 
 which there is real need that it should do. No 
 well informed person would contend that the legis- 
 lature is not the rightful custodian of this authority 
 under our system of government. Municipal corporations 
 are the creations of the State legislatures except in so far 
 as this relation has been altered by recent changes in the 
 State constitutions. In the natural course of events we 
 cannot conceive of the legislatures having lost any consider- 
 able part of the full measure of their authority over the 
 municipalities if the power had not been abused, and gross 
 blunders had not been committed in the field of local gov- 
 ernment. It was an extreme measure which may have had 
 justification in the seriousness of the evil it was meant to 
 
ON CITY CHARTERS S^S 
 
 correct, though it bears some resemblance to the case of the 
 owner barricading the windows and ^oors of his house to 
 keep out marauders, while he must himself enter it by the 
 chimney. 
 
 As the prohibition of special laws was a radical step we 
 must regard the attempt of Missouri, California, Washing- 
 ton and Minnesota to solve this problem in the same light. 
 A charter for a city might as well be adopted by the mem- 
 bers of a board of freeholders elected by the citizens, if they 
 were persons competent to frame such a charter, as by any 
 other committee of persons. But experience has demon- 
 strated that the city to a greater or a less extent must still be 
 subject to the legislative and institutional system of the State 
 within which it is situated and of which it is a part. In 
 every instance it is recognized that the charter so adopted 
 must be " consistent with and subject to the constitution 
 and laws of the State ". Our better judgment tells us, and 
 theory and experience enforce us in the opinion that the city, 
 however great a degree of independence it may have appar- 
 ently attained, cannot be really free of the legislature's super- 
 vising control. Many subjects must still be regulated by 
 uniform laws and judicial opinion has been very generally 
 on the side of the legislature whenever conflict of authority 
 has arisen between the city and the State. 
 
 No other view can be entertained despite the fact that 
 State laws oftentimes appear to be onerous to local interests 
 which, being partially freed from outside restraint, would 
 prefer a still larger measure of independence. The free- 
 holders' charter which the people adopt by a plebiscite, it 
 must be acknowledged, is yet passing through its experi- 
 mental stages and although it marks a tendency, it cannot 
 be said to be an ultimate thing. That, to avoid needless dis- 
 putes as to authority which the judiciary must constantly 
 arbitrate, some device is required is evident when Minne- 
 sota's recent suggestion is taken into account. In that 
 State it is plainly recognized that the city must be under the 
 legislature's direction as before, and the constitution provides 
 
366 THE REFERENDUM IN AMERICA 
 
 that, though tUtey may have their freeholders' charters cities 
 must at the same time Hve under " general laws ", which in 
 their own province are to be " paramount while in force to 
 the provisions relating to the same matter included in the 
 local charters." There can be no dispute here, for whenever 
 the local charter and the general law overlap and conflict the 
 constitution states specifically that the general law shall have 
 the precedence. 
 
 There is still, by the Minnesota system, however, no room 
 for special legislation in reference to cities. To find a 
 system harmonizing this idea with the idea of Home Rule, 
 by which municipalities may in some degree determine the 
 character of the laws passed for their own government, has 
 been reserved for New York. In New York since the con- 
 stitution was revised in 1894 the enactment of special laws 
 relative to cities is permitted of the legislature, but these laws 
 as bills must be referred to the municipal authorities of the 
 city which is directly affected by them. The mayor of the 
 city may give the bill submitted to him a public hearing and 
 he may veto it, if he sees fit, though his veto is without any 
 effect if the legislature chooses to pass the measure over his 
 negative and the governor chooses to sign it. It becomes 
 a law anyhow, though in that event it is expressly declared 
 in its title, for the information of all whom it may concern, 
 that it was " passed without the acceptance of the city ". 
 This constitutional provision legally opens the way to special 
 legislation, when the State legislature may adjudge such 
 laws to be needful. It requires that all such acts shall be 
 referred to the regularly delegated officials within each city, 
 whose government the legislature proposes to change, 
 though it recognizes the supreme authority of the legislature, 
 the governor and other agencies to which the general wel- 
 fare has been committed by the sovereign people, when it 
 provides a method for the enactment of the law in spite of 
 possible petty local hostility. 
 
 Thus while some difficulties are put in the way of special 
 legislation for cities it is not made wholly impossible. The 
 
ON CITY CHARTERS 3^7 
 
 reference of the bill to the locality to be affected by it affords 
 an opportunity for public discussion of the subject, and 
 should it really be an unworthy measure, it is reasonable to 
 think — ^at least this is the underlying theory — that it could 
 not be so easily passed a second time in the face of local dis- 
 approval. Whatever the final Outcome of this interesting 
 contest between the city and the State, regarding municipal 
 government, it is plain that we are all the while tending 
 toward results which promise soon to be more definite, and 
 it may be hoped more satisfactory to all the important inter- 
 ests involved. If New York has taken a step in this direc- 
 tion and has proven herself wise beyond her sister States 
 m the treatment of this question her example, it may be 
 inferred, will be generally followed throughout the country 
 within a very few years. 
 
CHAPTER XV 
 
 THE INITIATIVE IN AMERICA 
 
 Up to this point we have been devoting our attention chiefly 
 to the referendum, an institution which is clearly of ancient 
 lineage in the United States, but which recently has been ma- 
 king history for itself in some parts of the Union at a par- 
 ticularly rapid rate. Only incidental allusions have been 
 made to the right of the people themselves to initiate legisla- 
 tion, a subject which is to be considered in a general way 
 in the present chapter. It would seem that the referendum 
 could scarcely exist anywhere without the initiative, and the 
 experience of the American States certainly does not mark 
 them out as exceptions to the rule in this respect. In 
 Switzerland the one is closely associated with the other and 
 whenever a reformer of our constitutional system in the 
 United States, of whom there are now so many, proposes 
 the referendum, as a means of clearing the atmosphere of 
 much that is evil in our political life, he in the same 
 breath asks that the initiative shall be given a trial also. 
 
 The initiative and the referendum, the initiative being 
 mentioned logically first, have been introduced as insepar- 
 able parts of a whole into the legislative practice of South 
 Dakota, Nebraska, California, Iowa and the city of San 
 Francisco and they exist together in fact, if not in name,, in 
 nearly all the States of the Union. For what is the system 
 of petition for the passage of a law but the initiative? It 
 is true that the dearly bought right of the people to petition 
 their kings and governors for a redress of grievances, of 
 which we still see many surviving forms even in free states, 
 is not the right of initiative. A petition more or less nu- 
 merously signed by citizens for the enactment of a law or the 
 
 368 
 
THE INITIATIVE 369 
 
 repeal of a law is merely an appeal to a legislature, the mem- 
 bers of which will afterward do quite as they please regard- 
 ing this matter when the time comes for definite action on 
 their part. But the system which has long been with us in 
 the New England towns and in our local communities or- 
 ganized according to the representative principle, prescribing 
 that a certain number of citizens may unite in a petition in 
 favor of some local policy — the laying out of a new road, the 
 vacating of a street or the enclosure of domestic animals, is 
 the initiative in one of its true forms. This needs no partic- 
 ular demonstration, whether the petition of the citizens inter- 
 ested in the settlement of this local question enacts the ordi- 
 nance and executes the by-law of its own force and at once, 
 or whether it merely brings the subject before the people 
 so that they can vote upon it in the town-meeting or by way 
 of the referendum. In a very great number of cases there 
 must be a moment set when, a local ordinance or administra- 
 tive measure shall come into effect; the enacting authority 
 must name some condition which shall be fulfilled before the 
 vote can be ordered, and the referendum taken. The legisla- 
 ture which desires that its laws in respect of localities shall 
 be self-operating, and which cannot pretend to determine 
 on its own account small details of government in a munici- 
 pality or other political subdivision of a State, prefers to 
 commit the task to the people themselves, rather than to 
 local boards and officers. 
 
 The referendum has been described as a condition prece- 
 dent to the taking effect of a law; the initiative is a condi- 
 tion precedent to the referendum. The referendum, itself 
 in the nature of a contingency, is made to depend upon a 
 contingency, and that is the filing with representative local 
 officials of a petition signed by a definite number of persons, 
 asking that the citizens residing within a given district shall 
 have the opportunity to say yea or nay on the proposition 
 that it shall be governed by the terms of a certain local by- 
 law which the State legislature has proposed. Thus a pre- 
 scribed number of signatures from ten to several thousand, 
 
37° THE REFERENDUM IN AMERICA 
 
 according to the size of the district, its population, the de- 
 sire to encourage or discourage the taking of the vote, the 
 whims of the legislatures and other controlling influences 
 and circumstances, must be secured in a locality before the 
 election can be held. Sometimes the requirement is for a 
 petition signed by a definite number of persons, as ten free- 
 holders, one hundred qualified voters, two hundred resident 
 taxpayers, etc. Again the law may require a certain per- 
 centage of the whole number of qualified electors registered 
 within the district, or of the electors voting at the last elec- 
 tion as ID per cent, 15 per cent, 20 per cent, 25 per cent; 
 or the literal condition may be one-tenth, one-fourth, one- 
 third, two-fifths, three-fifths, a majority or even three- 
 fourths of the legal voters. The legislature instead of enact- 
 ing the law, requiring the referendum to be taken on a cer- 
 tain fixed date, on regularly recurring dates, or on the mo- 
 tion of local judges, commissioners, mayors and boards, 
 places upon the shoulders of the people themselves the re- 
 sponsibility of deciding when the time has come for an 
 election on the subject. The prohibition of special legis- 
 lation in recent years and the restriction of the State legis- 
 latures' activities, in respect of localities, to " general laws " 
 have exerted a powerful influence to forward this develop- 
 ment. For if the legislature cannot adopt the laws which 
 are required by any particular community, and the need for 
 such legislation still exists, the natural tendency is toward 
 the enactment of the great codes of general laws now made 
 so familiar to us in many of the States. These codes have 
 become so comprehensive as to include almost any possible 
 case which from time to time may arise out of the exi- 
 gencies of local government. The legislature passes the 
 laws without saying whether or not they are needed by all, 
 or by any one of the communities to which they purport 
 to relate. It does not even go so far as to say that the laws 
 shall be submitted to the people in the various districts, 
 for elections are expensive and troublesome and should be 
 avoided when they are likely to fulfil no purpose. An ordi- 
 
THE INITIATIVE 37 1 
 
 nance which would be useful to one community might be with- 
 out applicability to another, and, furthermore, while without 
 direct interest for a locality at one time might at another time, 
 a few years hence, be of much practical importance to the 
 same locality. The legislature being unable to decide these 
 matters for itself, — whether any given ordinance should be 
 made to apply to the localities or not and if so to which 
 ones, and when, finds a simple way out of its many difficulties 
 in the signed petition, or the initiative. Shall the law which 
 has been passed by the State legislature apply to a particular 
 locality? The people will decide by the referendum. When 
 shall the referendum be taken ? The people will decide by the 
 initiative. 
 
 Instances are so innumerable that it is a matter of chance 
 in selecting even leading forms. A few will have to suffice 
 since it is a subject so closely bound up with the referendum 
 that to cover the field fully again in this place would be but 
 a repetition of much that has been said in earlier chapters. 
 The initiative occurs in connection with propositions to in- 
 corporate cities and villages, to " advance " or " reduce " 
 their grade, to organize levee districts and irrigation dis- 
 tricts, to loan the public credit and issue bonds, to levy taxes 
 for special purposes, to change city and county boundary 
 lines, to remove county seats, to make the enclosure of 
 various species of live stock obligatory, to prohibit the 
 manufacture or traffic in alcoholic liquors, to sell public 
 lands and to enact a great variety of by-laws and enforce 
 many dififerent regulations having to do with local manage- 
 ment. 
 
 In reference to local option liquor laws, for instance, we 
 find that in Connecticut twenty-five " legal voters " of any 
 town may cause an election to be held " to determine whether 
 any person shall be licensed to sell spirituous and intoxicat- 
 ing liquors in said town ".^ The law having been adopted 
 the same number of petitioners may later demand that an- 
 
 • General Statutes of Connecticut, 1888, sec. 3050. 
 
372 THE REFERENDUM IN AMERICA 
 
 other vote be taken to decide whether or not it shall be re- 
 scinded. In Florida " one-fourth of the registered voters " 
 of any county may call for an election within the county on 
 the subject of " prohibition " ;''■ in Georgia one-tenth of the 
 voters " who are qualified to vote for members of the General 
 Assembly in any county in this State " ; '' in Minnesota ten 
 or more legal voters in any township ; * in Mississippi, one- 
 third of the qualified voters of any county ; ° in Missouri, 
 one-tenth of the qualified voters of any county ; ° in Mon- 
 tana one-third of the qualified electors in the counties ; ' in 
 North Carolina one-fourth of the qualified voters of any 
 county, town or township ; " in Texas 250 voters of any 
 county or fifty voters of any justice's precinct, city, town 
 or other subdivision of the county ; " in Virginia one- fourth 
 of those voting at the preceding regular November election 
 in any county, corporation (city), town or magisterial dis- 
 trict ; ^° in Wisconsin ten per cent of the number of votes 
 cast for governor at the last general election in any town, 
 village or city.^^ On the receipt of a petition signed by 
 twelve qualified voters of a city, village or town in Wiscon- 
 sin the officers thereof must submit the question as to the 
 sum, greater or less, which shall be paid by dealers for 
 liquor licenses. '^^ Likewise in New Jersey a vote is taken to 
 fix the license fee upon the filing of a petition which has been 
 signed by at least one-fifth of the legal electors of any town- 
 ship, town, borough or city voting at the last previous elec- 
 tion for Governor of the State.^* 
 
 ^Revised Statutes of Florida, 1892, p. 329. 
 
 'Code of the State of Georgia, i8gs, sees. 1541 et seq. 
 
 * Statutes of Minnesota, 1894, sec. 1990. 
 
 ''Annotated Code of Mississippi, 1892, sees. 1609 et seq. 
 
 'Revised Statutes of Missouri, 1889, p. 1050. 
 
 ' Montana Codes, 1895, sees. 3180 et seq. 
 
 'Code of North' Carolina, 1883, sees. 3113 et seq. 
 
 "Supplement to Sayles' Civil Statutes, 1888-1893, tit. 63, art. 3227, 
 
 "Code of Virginia, 1887, p. 200. 
 
 " Sanborn and Berryman's Wisconsin Statutes, 1898, sec. 15653. 
 
 "Ibid., sec. iS48b. 
 
 " General Statutes of New Jersey, 1896, p. 1810. 
 
THE INITIATIVE 373 
 
 The people's right of initiative in respect of changes in 
 the sites of county capitals also claims our interest. Thus 
 in Arkansas one-third of the legal voters of a county sign- 
 ing a petition to that effect may call an election to decide the 
 question of removing the county seat.^* In California this 
 referendum in any county requires a petition signed by 
 voters equal in number to a majority of the votes cast at 
 the last preceding general election ; ^^ in Colorado a majority 
 of the taxpayers ; ^^ in Florida one-third of the registered 
 voters ; " in Georgia two-fifths of the " poll-taxpayers " ; ** 
 in Illinois two-fifths of the legal voters of the county ; ^^ in 
 Indiana forty per cent of the whole number of legal voters 
 of any county ; ^° in Kansas a majority, or three-fifths, or 
 two-thirds of the legal voters, according to the value of 
 the buildings which are already in use by the county and 
 which it is proposed shall be abandoned ; ^^ in Kentucky 
 twenty-five per cent of the votes cast at the last general 
 election for county officers. ^^ 
 
 The laws permitting the people of counties and other 
 local districts to determine whether or not live stock shall 
 be allowed to run at large are also brought to a vote through 
 the initiative. In Georgia the election may be held in any 
 county when fifty freeholders petition for it, and in any 
 militia district on the receipt of the signatures of fifteen free- 
 holders.^' In Iowa on the same subject the petition must 
 be signed by one- fourth of the legal voters of a county ; "* in 
 Kentucky by lOO voters in any county or twenty voters in 
 
 " Sandels and Hill's Digest of the Statutes of Arkansas, pp. 393 
 et seq. 
 " Statutes of 1893, p. 346. 
 
 " Supplement to Mills' Annotated Statutes, p. 307. 
 "Revised Statutes of Florida, 1892, p. 281. 
 " Code of the State of Georgia, 1895, sec. 391. 
 "Starr and Curtis' Statutes of Illinois, i8g6, p. 11 17. 
 " Horner's Indiana Statutes, 1896, sees. 4232 et seq. 
 " Webb's General Statutes of Kansas, 1897, chap. 26, sees, i et seq, 
 " Barbour and Carroll's Kentucky Statutes, 1894, sees. 915 et seq. 
 "Code of the State of Georgia, sec. 1777. 
 '^Annotated Code of Iowa, 1897, sec. 444. 
 
374 THE REFERENDUM IN AMERICA 
 
 any magisterial district, (a subdivision of a county) ; ^° in 
 Missouri lOO householders in any county or twenty-five 
 householders in a township ; "^ in North Carolina one-fifth 
 of the qualified voters in any county, township or " dis- 
 trict or territory whether the boundaries of said district 
 follow township lines or not " ; ^' in North Dakota one-third 
 of the qualified electors of a county ; ^* in Oregon loo or 
 more legal voters of a county.^* 
 
 In any county in California the board of supervisors may 
 submit the question of establishing a county high school 
 upon receiving a petition signed by " fifty or more qualified 
 electors and taxpayers of said county ".^" The same number 
 of signers may require a poll of the people on this subject 
 in the counties of Nevada.'^ Fifty voters in any school 
 township in Illinois may demand an election on the question 
 of establishing a township high school.'^ Two hundred 
 voters in any county of Ohio may cause a referendum to be 
 taken on the question of levying a tax to found a " children's 
 home " for poor orphans, and children for whose support 
 parents are unable or unwilling to provide.*' In Utah in 
 cities of the first class i,ooo, in cities of the second class 250 
 and in cities of the third class and towns fifty " qualified 
 voters and property taxpayers ", signing a petition therefor 
 may require that a referendum be taken on a proposition to 
 assess a tax for a free public library.'* Twenty-five signa- 
 tures suffice to secure an election in any town in the State 
 of New York on a proposal to pay to public school teachers 
 a regular civil pension or allowance after twenty-five years 
 
 " Barbour and Carroll's Kentucky Statutes, sec. 4646. 
 
 "Revised Statutes of Missouri, 1889, p. 186. 
 
 "Code of North Carolina, 1883, sec. 281 1. 
 
 "Revised Codes of the State of North Dakota, 189s, sees. 1550 et seq, 
 
 "Laws of Oregon of 1893, p. 89. 
 
 "Statutes of i8gi, p. 57- 
 
 " Statutes of Nevada, 1895, p. z8. 
 
 " Starr and Curtis' Annotated Statutes, p. 3660. 
 
 "Revised Statutes of Ohio, 7th ed., i8g6, sec. 929. 
 
 "Laws of 1896, p. 144. 
 
THE INITIATIVE 375 
 
 of continuous service.^' Fifty taxpayers in any county in 
 Nebraska can demand an election on the question of paying 
 bounties for the destruction of wolves, wild cats, coyotes 
 and mountain lions.^" One hundred voters in any county 
 in West Virginia can compel the local authorities to take a 
 poll of the people on the proposition to tax dogs, the pro- 
 ceeds of the levy to be used for indemnifying the owners 
 of sheep whose flocks have been attacked and injured by 
 dogs.^' In the cities and villages of Wisconsin ten per cent of 
 the " duly qualified electors " may initiate and cause a vote to 
 be taken on a local by-law to regulate the sale of street rail- 
 way, water, lighting and other public franchises.^' An act in- 
 troducing new rules respecting the civil service in cities in 
 Illinois requires a petition which is signed by i,ooo voters.^" 
 County courts in West Virginia on the receipt of a petition 
 containing the signatures of loo voters must submit a propo- 
 sition for " an alternative method of constructing and keep- 
 ing in repair the county roads ".*" 
 
 Innumerable instances of this kind, similar in principle 
 if varying in matters of detail, might be cited here, though 
 it could add little to the discussion of this branch of our 
 subject. As well might I have referred to a thousand other 
 cases as to these. But to name a greater number of examples 
 would be as tedious as it would be devoid of useful purpose, 
 for enough has certainly been said to indicate how widely 
 and generally the initiative is employed in this country, and 
 how necessary a feature of our system of local govern- 
 ment it has everywhere become, especially in the Western 
 States. Sometimes, it should be remarked, the initiation 
 of a measure which the legislature has proposed to the 
 localities is not left solely to the people, but the law pro- 
 vides that the county commissioners or other local repre- 
 
 ^ Revised Statutes of New York, gtli ed., p. 3089. 
 
 " Compiled Statutes of Nebraska, 1897, p. 73. 
 
 "Code of West Virginia, 3rd ed., 1891, p. 600. 
 
 " Sanborn and Berryman's Wisconsin Statutes, sec. 940J. 
 
 '" Starr and Curtis' Statutes, p. 826. 
 
 " Code of West Virginia, 3rd ed., p. 332. 
 
376 THE REFERENDUM IN AMERICA 
 
 sentative officials " may ", or upon receipt of a petition 
 signed by, say fifteen per cent of the qualified electors of 
 the county, " must " submit the question to popular vote. 
 When this provision occurs in the law local magistrates may 
 of course anticipate a petition, acting in the matter on their 
 own responsibility without authorization from any other 
 source. 
 
 The American experience with this institution has taught 
 us some lessons and not least useful among them is one which 
 has been emphasized in Kansas, Indiana, Kentucky and 
 Arkansas, though the same tendency is manifested in other 
 States. The initiative has sometimes proven itself too em- 
 barrassingly democratic, even as measured by the standards 
 of our very liberal political system of which it has now be- 
 come so familiar a part. When important questions which 
 closely affect the public welfare are to be determined the 
 legislature has found it advisable to hedge in upon the privi- 
 lege. In respect of subjects upon which the people might 
 ask for a plebiscite too frequently it has become necessary 
 to apply some effective restraints. Just as with the referen- 
 dum when increased majorities, e. g., a three-fifths or a 
 two-thirds vote is demanded, and when elections on the same 
 subject oftener than once in, say, two or five years are pro- 
 hibited, so with the initiative devices are employed to lessen 
 its democratic influence and force. If there is reason to 
 think that the people will make too free a use of the right 
 to call elections on local propositions the number of signa- 
 tures which must be appended to the petition is increased. 
 If there is no such prospect the number is always smaller. 
 In not a few cases more signatures must be secured for the 
 petition than the number of votes needed subsequently to 
 pass the measure in the referendum. Thus the people are 
 effectively held in check since it is no easy task, especially in a 
 large and populous community, to secure a long list of 
 signatures unless there is serious purpose behind the move- 
 ment, and a general desire that an election should be held. 
 
 Kansas furnishes a striking instance directly in point. 
 
THE INITIATIVE 377 
 
 The people of this country seem to be almost wholly lacking 
 in a genius for quietly and properly attending to the small 
 duty of choosing locations for their county capitals. In 
 many States of the West they have made it plain that they 
 are not disposed happily to submit to the decree of any repre- 
 sentative body respecting the choice of a site for the county 
 buildings. Bloody riots led by the defenders of the claims 
 of rival towns have not infrequently occurred. In most 
 States the constitutional convention or the legislature now 
 refers the whole subject to the people of the respective 
 counties, authorizing them to place the buildings at what- 
 ever spot may seem to them, in their wisdom, to be best 
 suited for such a purpose. Nevertheless unfortunate dif- 
 ferences still arise from time to time and wherever too great 
 freedom is allowed to the people in this matter there are 
 likely to be unpleasant if not serious consequences. The 
 problem is simply this, to find some method by which any 
 group of speculators in land whose pecuniary interests 
 centre about a certain town can be prevented from subor- 
 dinating the public welfare to their private ends. In nearly 
 all the States the number of signatures which must be as- 
 sembled on a petition for a county-seat election is relatively 
 high and the referendum can be taken not oftener than once 
 in a rather long period of years. The method employed in 
 Kansas is novel and ingenious. A simple majority of the 
 legal electors of a county signing a petition for the removal 
 of the county seat can demand an election on the subject 
 when the buildings on the present site have cost the county 
 less than $i,ooo. If, however, they shall have cost $2,000 
 or more a petition signed by three-fifths of the electors is 
 requisite, and if more than $10,000, and if they have been 
 in one place continuously for at least eight years the names 
 of two-thirds of the qualified voters in the county must be 
 secured. In the latter case, furthermore, the proposition 
 when it is submitted to the people in the referendum must 
 be approved by not less than a three-fifths vote.*^ In 
 '^ Webb's General Statutes of Kansas, chap. 26, sees, i et seq. 
 
378 THE REFERENDUM IN AMERICA 
 
 Georgia a petition for a poll of the people on the question of 
 removing a county seat must be signed by two-fifths of the 
 " poll-taxpayers " and in the referendum which follows a 
 two-thirds majority vote is required. Moreover the elec- 
 tion cannot be held more frequently than once in five years. *^ 
 None of these restraints seems to be quite so rigorous, 
 however, nor does any manifest so much psychological 
 knowledge of men as the system by which the signers of a 
 petition for an election are made to deposit from their own 
 private purses a sum of money to reimburse the county for 
 any loss which may thereby be entailed. As a means of put- 
 ting a brake on popular ignorance and precipitancy this is 
 a rather new development in a democracy. It hnds its close 
 counterpart in South Carolina where after struggling for a 
 long time with the lynching evil and finding our system of 
 government barren of remedies, we have turned upon the 
 people whom we have not been able to check through the 
 church, the school or the courts and have told them that if 
 they cannot wait for the established judicial agencies to take 
 their natural course with a prisoner or suspect they shall be 
 held financially responsible for the results of their venge- 
 ful folly. The convention which framed the Constitution 
 of South Carolina of 1895 puts the pecuniary burden of a 
 lynching upon the taxpayers of the county in which it oc- 
 curs. The Constitution provides that " in all cases of lynch- 
 ing when death ensues the county where such lynching takes 
 place shall .... be liable in exemplary damages of not less 
 than $2,000 to the legal representatives of the person 
 lynched ". As the counties in which such savage outbreaks 
 occur are usually not wealthy the hope is entertained that 
 the taxpayers who may compose the mob will hereafter re- 
 flect a little before assisting to break open the jail door or 
 throw the rope over the tree-limb at a Carolina " lynching 
 party ", and that taxpayers who are not members of the 
 mob will use their utmost endeavors to dissuade their neigh- 
 
 " Code of Georgia, 1895, sees. 377 et seq. 
 
THE INITIATIVE 379 
 
 bors from taking a step which may prove to be pecuniarily 
 so expensive to them all. If such a law would seem to give 
 an exaggerated importance to the material motives in men 
 It will be well to remember, perhaps, that the true test is 
 found m results. The need is for restraint of popular im- 
 pulse and passion while holding fast to democratic forms, 
 and to attain this end taxation, if as potent, may be quite as 
 defensible as any other method. 
 
 So likewise when it is necessary to hold the people at bay 
 in the initiation of legislation, while still allowing them to 
 retain and exercise this right, they are sometimes made 
 financially liable for their indiscreet deeds. In Arkansas, 
 when in 1893 it appeared to be expedient to modify the rule 
 of 1873 by which one-third of the qualified voters of any 
 county might order an election on the question of remov- 
 ing the county seat, pecuniary checks were introduced. In 
 1893 it was enacted that in any county in Arkansas having 
 a court house which " originally cost $10,000 or more or a 
 court house and jail which together originally cost $10,000 
 or more" the petitioners for a removal of the county seat 
 should deposit with the treasurer of the county " $5,000 in 
 United States currency ". This sum was to be used by the 
 county " in erecting a new court house ", if the people at 
 the election should vote in favor of a change of site. If, 
 however, the vote were against the proposed change the sum 
 which had been deposited by the signers of the petition must 
 be made good to them again. Moreover as a further dis- 
 couragement to frequent elections on this subject it is pro- 
 vided in Arkansas that when a county seat has once been 
 removed in compliance with the act its location shall not be 
 changed a second time until after the expiration of ten 
 
 years *^ 
 
 In Indiana also some very severe restrictions hedge about 
 the initiative and the referendum in respect of the relocation 
 of county seats. Ey a law of 1885 no capital is to be removed 
 
 •' Sandels and Hill's Dizest of the Statutes of Arkansas, ^894, p. 396. 
 
380 THE REFERENDUM IN AMERICA 
 
 and, relocated until it has been in its present site for at least 
 twenty-five years. When the appraised value of the county 
 buildings exceeds $20,000 a change of site is altogether pro- 
 hibited. In permissible cases forty per cent of the whole 
 number of legal voters of any county signing a petition 
 therefor may demand a referendum on this subject if they 
 first deposit with the county commissioners a deed for at 
 least two acres of ground as a site for the new buildings, 
 with legal evidence of the validity of the title to the land, 
 an affidavit that the signatures to the petition are genuine, 
 the sum of $200 to pay for architect's plans and a bond made 
 payable to the State of Indiana to cover the expenses of the 
 election. Moreover in the referendum which follows no less 
 than seventy per cent of the votes cast must be in favor 
 of the change of site in order to make it valid, a series of 
 difficult conditions which perhaps could but rarely be ful- 
 filled." 
 
 Similarly in Kentucky by the " local option " law of 1894 
 a number of signers equal to twenty-five per cent of the 
 votes cast at the last election may ask for a poll of the peo- 
 ple on the question of prohibiting the liquor trade in counties, 
 cities, towns and other local districts of the State. But it is 
 provided that the county court shall not issue an order au- 
 thorizing the taking of the vote " until the persons signing 
 the petition have deposited with the county judge in money 
 an amount sufficient to pay for printing or posting 
 advertisements as provided for [in the law] and the fees 
 of the clerk making entries in the order book ". And in 
 no case may the election on this subject be held oftener than 
 once in three years.*' In local elections for the restraint 
 of domestic animals the Kentucky legislature also requires 
 a deposit of money. The law declares that " no polls shall 
 be opened unless the petitioners shall deposit with the 
 county court at the time the petition is filed an amount 
 
 "Horner's Indiana Statutes, sees. 4232 et seq.; of. ibid., sees. 4235b 
 et seq. 
 
 " Barbour and Carroll's Kentuekv Statutes, sec. 2559. 
 
THE INITIATIVE 381 
 
 sufficient in the judgment of the court to defray the ex- 
 penses of the election upon this question ".*° 
 
 The initiative has a place in our local political practice 
 in still another form. It occurs with the referendum in the 
 cases which we have just noted; sometimes too it occurs 
 alone. In many instances the contingency which attends 
 the taking effect of a law in respect of localities is merely 
 a petition containing the signatures of a majority, or other 
 prescribed number of citizens. This is a very old form of the 
 initiative in America. It was a method of taking the popular 
 sense before the referendum had yet appeared on the scene 
 and it can well be asked why when the law requires a peti- 
 tion which is signed by at least a majority of the citizens, 
 the same number that usually suffices to adopt a measure in 
 the referendum, it should also be adjudged necessary to poll 
 the people on the subject? There is probably no answer to 
 this question except this — ^that our system has been found 
 to be too democratic and while not desiring to abolish it 
 entirely we have had to introduce devices to make its opera- 
 tion less easy and smooth. It is much harder to get the 
 signatures of a majority of the citizens of any but the 
 smallest communities than it is to secure the votes of the 
 same number of men at a public election. Again it is much 
 harder to get the names of two-thirds of the voters than 
 of a simple majority and to couple the petition with the 
 referendum and say that one must follow the other, adding, 
 perhaps, that the petitioners shall advance enough money to 
 pay the cost of taking the vote before the election will be 
 advertised, is to put a most effective check upon " gov- 
 ernment by the people ". So much has been said in recent 
 years in regard to the desirability of making direct legis- 
 lation by the citizens easy since they, being the theoretical 
 source of government, can do us no wrong that such a mani- 
 festation is of peculiar interest. It is an instance perhaps in 
 which the people have locked their own wheels. 
 
 " Kentucky Statutes, see. 4647 ; cf. Sandels and Hill's Arkansas Stat- 
 utes, sec. 7277, and Compiled Statutes of Nebraska, 1897, pp. 1391-92. 
 
382 THE REFERENDUM IN AMERICA 
 
 Initiation by a small percentage of the voters — a number 
 less than a majority — is a natural accompaniment of the 
 referendum in local matters. It serves to render the system 
 self-operating, and to a degree automatic, in that the peti- 
 tion determines when the referendum which the legislature 
 has authorized shall be taken. It is a mere formal proceeding 
 saying nothing for or against the adoption of the law. The 
 law is accepted or rejected by the people later on, they being 
 the law-makers when they vote upon it in the referendum. In 
 the case of the petition which is not followed by a poll of the 
 citizens it is, as it were, the initiative and the referendum 
 combined in one. The people are still the law-makers, but 
 they sanction the law simply by signing their names on a 
 sheet of paper instead of by depositing their ballots at a poll- 
 ing station. Thus in any county in Arkansas a majority of 
 the taxpayers signing a petition may require the county court 
 to purchase a farm and erect upon it a house of correction 
 for misdemeanants convicted of petit crimes.*'' In Arkansas, 
 school lands, i. e., the sixteenth section of any " congressional 
 township ", may be sold on authority derived from a written 
 petition which is signed " by a majority of the male inhab- 
 itants of such township ".** In counties and subdivisions of 
 counties in Arkansas on receipt of a petition requesting that 
 this be done, signed by a majority of the qualified electors, 
 the county must grant an order obliging owners to enclose 
 their live stock. The order may be rescinded again by the 
 same process.*" In Illinois a petition containing the signa- 
 tures of two-thirds of the legal voters of a township will 
 validate the sale of school lands without a poll by ballot. The 
 names must be affixed in the presence of two adult citizens 
 of the township both of whom, witnessing the document, must 
 make affidavit as to the genuineness of the signatures.^" In 
 Kansas a petition signed by two-thirds of the legal voters of 
 any county makes effective within the county a legislative 
 
 *' Digest of Arkansas Statutes, p. 382. 
 "Ibid., sec. 71 14. "Ibid., sees. 7274 et seq. 
 '" Starr and Curtis' .Annotated Statutes, p. 3719. 
 
THE INITIATIVE 3^3 
 
 provision in regard to the enclosure of domestic animals." 
 By a law of 1896 two-thirds of the qualified voters of Vicks- 
 burg, Miss., signing a petition therefor could require that 
 bonds be issued on the credit of the city to an amount not 
 exceeding $25,000 to defray the expense of erecting buildings 
 for the Medical Department of the University of Missis- 
 sippi.''^ In Nevada a majority of the taxpayers, or tax- 
 payers representing a majority of the taxable property in 
 cities, unincorporated towns and school districts may join in 
 petitioning for a tax to raise money to establish and main- 
 tain free public libraries."' Instances of this kind in the 
 various States are by no means rate, the sense of the people 
 in regard to propositions and local ordinances being taken 
 usually, however, by ballot at the polling places, a much more 
 convenient method of securing an expression of public opin- 
 ion. 
 
 There are then, as we have seen, three courses open to the 
 State legislature when it desires to legislate for a locality, 
 and it cannot, or is itself imwilling to pass a definitive law. 
 ( I ) It may make the going into effect of the law depend upon 
 the will of local representative officials. (2) It may require 
 a polling of the people of the district to be affected by the 
 act, the latter coming into force or not, according as the 
 vote is in favor of or against the measure. The legislature 
 (a) may itself fix a certain date when the referendum shall 
 be taken ; or (b) it may require the election to be held on the 
 initiation of a certain number of the citizens of the district 
 concerned who shall petition for the vote; or (c) it may re- 
 sign to local officers the duty of determining when the 
 people shall be polled respecting any given subject. (3) 
 And finally the legislature may specify that the conditional 
 act which it passes shall go into effect in a local district when 
 a majority of the legal electors residing therein have signed 
 a paper and petitioned for the enforcement of the law. 
 
 "Webb's General Statutes of Kansas, chap. 138, sees. 6 et seq. 
 
 ==Laws of 1896, chap. 118. 
 
 ''' Statutes of Nevada of 1895, p. 79. 
 
384 THE REFERENDUM IN AMERICA 
 
 These three forms often exist side by side in the same 
 State. They are not inconsistent. To determine which shall 
 be employed in any given case is a question of expediency and 
 of the existing custom in the matter, — often too it would 
 seem of pure chance. In respect of many classes of subjects 
 local representative officials decide when the law shall be- 
 come operative within the locality; respecting many others, 
 as we have noted on earlier pages, the referendum with or 
 without the initiative is employed, and in not a few cases the 
 presentation of a petition signed by a majority of the citi- 
 zens without a vote by ballot is the condition which the legis- 
 lature attaches to a law's going into effect. 
 
 But it will be said of course that a petition of this kind is 
 not the initiative of the true Swiss type. The petition is not 
 the initiative in the form that the advocates of this feature of 
 popular government desire to see it introduced into this coun- 
 try. The right of initiation includes the right to demand a 
 vote of the people, not only on laws already proposed or 
 passed by the representative legislature, but also on new 
 measures. The right of initiation is the right to initiate the 
 law as well as the election for and against the law. It is 
 a democratic agency by which a minority party and elements 
 which are without representation in the legislature may force 
 the latter's hand and compel if to submit any desired measure 
 to popular vote. The initiative is a lever by which the people 
 may exert power upon their " governors ", even if these be 
 no other persons than those whom the people at intervals 
 themselves elect. Such is the purpose of the reform as it 
 comes recommended to us by the democratic-socialist leaders 
 of whom we now have so many in the United States. Very 
 well. We have the initiative in this form in America also; 
 in some States it is true only as a result of considerable agi- 
 tation of the subject on the part of these outspoken advocates 
 of " direct legislation " as in South Dakota, Nebraska and 
 San Francisco, but also as a natural development of our towr 
 meeting principle as in Iowa and California."* 
 
 " Ante, pp. 307 et seq. 
 
THE INITIATIVE 3^5 
 
 By an amendment to the Constitution which was adopted 
 by the people in 1898 " both the initiative and the referen- 
 dum, closely patterned after the Swiss forms were introduced 
 into the political practice of South Dakota. The system was 
 further worked out and developed by an act passed by the 
 South Dakota legislature in 1899. ■** In that State the people 
 may demand that a vote be taken on all laws which have been 
 approved by the legislature except those of immediate 
 urgency. If a number of electors equal to five per cent of 
 the votes cast for Governor at the last preceding general 
 election file a petition with the secretary of state within ninety 
 days after the adjournment of the legislature, asking that 
 any law which it may have passed during that session shall 
 be submitted to the people of the State, a referendum must 
 be taken on the question of the adoption or rejection of the 
 measure. Not only this but five per cent of the electors of the 
 State may propose any measure that they may deem to be for 
 the public welfare and the legislature receiving the petition 
 must submit it to popular vote. In either case the petition, 
 whether for a vote on a new law which the people have pro- 
 posed, or on a law already passed by the legislature, must be 
 signed by the citizens in person and in addition to the name 
 must give the place of residence, the occupation and the post 
 office address of each individual signer of the paper. The 
 petition, too, must contain the substance of the law upon 
 which it is desired that the referendum shall be taken. A 
 majority of all the votes cast both for and against the measure 
 is decisive, and if the law is approved in the referendum it 
 goes into effect at once.°' In the same way in South Dakota 
 by-laws and ordinances passed by the local legislative bodies 
 for the government of their respective towns and cities, ex- 
 cept " emergency measures ", are submitted to a vote of the 
 people in the municipalities to be affected by them. Qualified 
 electors of the municipality equal to five per cent of the 
 votes cast for the " highest executive officer " of the city or 
 
 " Session Laws of South Dakota, 1897, p. 88. 
 "Session Laws of 1899, pp. 121 et seq. "Ibid. 
 
386 THE REFERENDUM IN AMERICA 
 
 town at the last general election may propose an ordinance 
 arid have it voted on by the people, as they may also demand 
 within a certain period after its passage a poll of the people 
 on any by-law already enacted by the local representative 
 assembly. A majority of the votes cast will approve the 
 measure, the rules respecting the filing of the petition and the 
 taking of the vote being in all essential respects similar to 
 those which prevail when the initiative and the referendum 
 apply to the State at large.°^ 
 
 By the new charter of the city of San Francisco a num- 
 ber of electors equal to fifteen per cent of the votes cast at 
 the last preceding election may propose local ordinances and 
 demand a poll of the people upon them. Any such ordinance 
 must be set forth and described in the petition and if it is 
 approved by a majority of those who attend at the polling 
 booths and vote on the proposition it at once becomes a law 
 of the city. It is specifically required that " the signatures 
 to the petition need not all be appended to one paper ", and 
 each signer in writing his name must add his place of resi- 
 dence " giving the street and number ", so that he may be 
 identified. It is specially provided also that the local repre- 
 sentative legislature shall not repeal or amend measures 
 which the people thus adopt, but it may on its own initiation 
 submit to popular vote propositions for the rescission or 
 amendment of such laws."" 
 
 Coming to Nebraska, the law which was passed by the 
 legislature of that State in 1897 introduces the initiative and 
 the referendum by those names, and in the Swiss form, for 
 cities and " other municipal subdivisions of the State ", a des- 
 ignation which we are told includes counties, villages, towns 
 and school districts. In these local districts fifteen per cent 
 of the voters may demand a vote on any proposed ordinance 
 at a general election ; twenty per cent may have the subject 
 submitted at a special election. If the local representative 
 legislature alters or amends the initiated measure, after it is 
 
 ''Session Laws of South Dakota, iSgg, pp. 121 et seq. 
 '" Charter of San Francisco, art. ii, chap, i, sec. 20. 
 
THE INITIATIVE 387 
 
 received and before it is submitted to popular vote, the orig- 
 inal ordinance and the amended bill shall together be referred 
 to the people, so that they may make their choice or, if it be 
 their will, reject both propositions. In the same manner a 
 referendum may be demanded on any by-law proposed and 
 passed by the local legislative boards, — ^at a regular election 
 by a petition signed by fifteen per cent of the voters of the 
 city, county, etc., and at a special election by a petition con- 
 taining the signatures of twenty per cent, of the voters. 
 " Urgent ordinances " are excepted from the provisions of 
 the act and may be passed definitively to go into effect at 
 once.'" 
 
 Of a purely American development, the outgrowth of na- 
 tive conditions existing before the wave of Swiss influence 
 swept over the country, is the initiative as we find it in Cali- 
 fornia and Iowa. A law of California contains the following 
 interesting provision : " Whenever there shall be presented to 
 the board of supervisors a petition or petitions signed by legal 
 voters of said county equal in number to fifty per cent of 
 the votes cast at the last preceding general election, asking 
 that an ordinance to be set forth in such petition be submitted 
 to a vote of the qualified voters hi such county it shall be the 
 duty of the board of supervisors by due proclamation to 
 submit such proposed ordinance to the vote of the qualified 
 voters of such county. The election shall be conducted and 
 the returns canvassed in all respects as provided by law for 
 the conducting of general elections and canvassing the re- 
 turns thereof. If a majority of the votes cast upon such 
 ordinance shall be in favor of the adoption thereof the board 
 of supervisors shall proclaim such fact and thereupon such 
 ordinance thus adopted shall have the same and equal force 
 and effect as though adopted and ordained by the board of 
 supervisors." '^ 
 
 This " board of supervisors " is a body composed of five 
 members who are elected by the people of each county by the 
 
 "Compiled Statutes of Nebraska, 1897, pp. 588 et seq. < 
 
 " Statutes and Amendments to the Code of California, 1893, p. 348. 
 
388 THE REFERENDUM IN AMERICA 
 
 system, to borrow the French term, of scrutin d'arrondisse- 
 ment and not scrutin de liste, the latter being the method 
 usually employed in making choice of county government 
 boards in the American States. The supervisors hold office 
 for four years and to them are committed very extensive 
 legislative and administrative powers with respect to local 
 matters of various kinds. 
 
 Likewise in the State of Iowa the board of supervisors 
 may submit to the people of any county at a regular election, 
 or a special election to be called for that purpose, " the ques- 
 tion whether money may be borrowed to aid in the erection 
 of any public buildings and the question of any other local or 
 police regulation not inconsistent with the laws of the State ". 
 Propositions for the repeal of local regulations may be re- 
 ferred to the people by the board of supervisors in the same 
 manner. Furthermore the board " shall ", i. e., it must sub- 
 mit " the question of the adoption or rescission of such a 
 measure when petitioned therefor by one-fourth of the voters 
 of the county ". Whether the vote is taken on the motion of 
 the board or of the people themselves " on being satisfied that 
 a majority of votes were cast in favor of the proposition " the 
 supervisors " shall cause the 'same and the result of the vote 
 to be entered at large in the minute book and the proposition 
 shall take effect and be in force thereafter ".^^ 
 
 Summarizing these results for the initiative we find, there- 
 fore, that one State, South Dakota, grants the people the right 
 of initiative on the large matter of State laws. The petition 
 must be signed by a number of electors equal to five per 
 centum of the votes cast for Governor at the last preceding 
 general election, while with respect to the initiative in local 
 districts on local by-laws and ordinances the showing is as 
 follows :'^ 
 
 "Annotated Code of the State of Iowa, 1897, sees. 443 et seq. 
 
 "' It must be noted always of course that the initiative and the ref- 
 erendum on municipal laws in South Dakota, Nebraska, California, 
 Iowa and San Francisco apply to local laws locally enacted, not to local 
 laws received from the State legislature such as we have been con- 
 sidering in the earlier part of this chapter. Cf. ante, p. 307. 
 
THE INITIATIVE 
 
 389 
 
 Unit. 
 South Dakota.. Cities and towns, 
 
 Nebraska. Cities, counties, 
 
 towns, villages, 
 school districts, 
 etc. 
 
 California Counties. 
 
 Iowa Counties. 
 
 San Francisco.. .City. 
 
 Number of petitioners necessary to 
 initiate. 
 
 Five per cent of the votes cast at 
 
 the last election. 
 Fifteen per cent of the voters for 
 
 a general election ; 20 per cent 
 
 if the submission is to be made 
 
 at a special election. 
 Fifty per cent of the votes cast 
 
 at the last election. 
 One fourth of the votes cast at the 
 
 last election. 
 Fifteen per cent of the votes cast 
 
 at the last election. 
 
 The fact must be kept in mind therefore that if the refer- 
 endum is not unknown to our political system in the United 
 States, so likewise is the initiative no stranger among our 
 institutions. Both have been developing side by side until 
 they have become familiar to us by general usage in all but 
 every State in the great American Republic. 
 
SUPPLEMENTARY CHAPTERS 
 
 COVERING THE YEARS FROM 1900 TO 1911 
 CHAPTER XVI 
 
 THE INITIATIVE AND THE REFERENDUM IN THE STATES 
 
 The nineteenth century closed with the initiative and 
 referendum intrenched in the Constitution of only one State, 
 South Dakota, but with a pertinacious agitation in progress 
 in all parts of the Union. The ferment, of which the Far- 
 mers' Alliance movement was a prominent manifestation, 
 and which came to influence and alter the entire form and 
 character of the Democratic party, set forward on every side 
 the work of the advocates of direct legislation. This essay, 
 when it was published in 1893, and upon its revision in 1900, 
 was meant to indicate to what extent the submission of laws 
 to popular vote was a native institution. Investigators in 
 the field of comparative politics were pointing curious fingers 
 at the initiative and referendum in Switzerland. It was 
 made clear by such writers as Mr. Bryce and Woodrow 
 Wilson that our political practice provided cases of popular 
 law-making quite as interesting to the world, and it was my 
 task to study the subject and state i^^ what certain particu- 
 lars there was experience of this character in the annals of 
 our American commonwealth. It was not a Tendenzwerk, 
 a work with a tendency or a purpose, though it has been 
 used at times in support of the movement to extend the 
 range of direct and unhindered democracy. No point was 
 intended except the making clear that to our political sys- 
 tem law-making assemblies of all the people, and the refer- 
 
 391 
 
392 THE REFERENDUM IN AMERICA 
 
 ring of laws to the people by representative legislatures, are 
 not at all foreign, to which fact was added advice to the 
 effect that if this development were to be continued it could 
 well be gradual on the lines we ourselves had laid down. 
 
 Such a process, however, would be too slow for the Ameri- 
 can "reformer." He has always the hope of bringing other 
 men to his point of view by the passage of laws — to make 
 them honest and temperate, and clean and healthy by law — 
 to make them, if they are poor, well-to-do by law — to take 
 their wealth from them, if they are rich, and scatter it among 
 less-favored persons by the agencies of government. If he 
 cannot bring about his end through the governors, courts, 
 and legislatures of our properly established system he will 
 set aside, or at any rate modify, the system, and put in its 
 place some other which, in his view, promises to be speedier 
 and less refractory in operation. The "reformer" is with- 
 out particular interest in the history, or the regular progress 
 out of history, of institutions; his interest inclines him to 
 change, often only for the sake of change, and more often 
 for the sake of bringing in an era of policies which he con- 
 ceives will work for the personal advantage of him and of 
 members of his social class. The initiative and the ref- 
 erendum, to which has now been added the recall, i. e., the 
 removal of a public ofi&cer by vote of the people and the 
 election of his successor, were in the hands of the "reformer" 
 at the end of the century. They were bludgeons with which 
 he hoped to be able to beat the heads of the slower-going 
 parts of the population — the college-trained, the reflecting, 
 the established property-holding parts of the nation; and 
 the movement is still in progress. To what lengths it will 
 be carried it would be hazardous even to guess. It is the 
 author's purpose in the pages which follow to describe 
 what has been done since 1900 to engraft these democratic 
 forms upon the political system of the United States. 
 
 The initiative and referendum amendment to the Con- 
 stitution of South Dakota was passed by the legislature in 
 1897, and adopted by the people in November, 1898, by a 
 
INITIATIVE AND REFERENDUM IN THE STATES 393 
 
 vote of 23,816 yeas and 16,483 noes. In that State tke 
 people expressly reserve to themselves "the right to pro- 
 pose measures, which measures the legislature shall enact 
 and submit to a vote of the electors," and the further right 
 "to require that any laws which the legislature may have 
 enacted" shall be submitted to the people, except such as 
 can be considered "necessary for the immediate preserva- 
 tion of the public peace, health, or safety, support of the 
 State government and its existing institutions." Five per 
 cent of the voters, signing their names to petitions, may 
 propose a law which the legislature is bound to submit. 
 The same number of petitioners can compel the submission 
 of any law which the legislature has initiated and enacted of 
 its own motion.' The petition for the referendum must be 
 filed in the office of the Secretary of State within ninety 
 days after the adjournment of that session of the legislature 
 at which the law was passed, and a majority of those electors 
 voting on the subject decide the question of its adoption 
 or rejection. The Governor may not exercise his veto power 
 in reference to measures submitted to a vote of the people. 
 The submission is made only at general elections. The 
 ballot reads: "Shall the above measure or law (as the case 
 may be) become a law of this State." Immediately to the 
 left is printed the words "Yes" and "No," each preceded 
 by a square in which the elector is asked to place a cross to 
 indicate his choice.^ 
 
 The new constitutional provision was without use until 
 1908 when four measures were submitted to popular vote. 
 The people circulated and filed papers, in accordance with 
 their right of initiative, asking the legislature to submit a 
 local option liquor law. Should twenty-five or more legal 
 freehold voters in any township, town, or city have the right 
 to order an election on the question of granting permits to 
 sell intoxicating liquors ? Should ten per cent of the voters 
 of a county have this right in reference to a county ? ' 
 
 ^ Ante, pp. 174-5. 'Political Code of S. D., 1903, sees. 21-7. 
 
 'Session Laws of 1907, p. 369. 
 
394 THE REFERENDUM IN AMERICA 
 
 The people at the same time were requested to express 
 their views on the subject of three laws which the legislat- 
 ure had enacted on its own authority, and for which more 
 than five per cent of the voters had demanded a referendum. 
 On February 20 the legislature had passed and on Feb- 
 ruary 25, 1907, the Governor had signed a bill prohibiting 
 under penalty any theatrical or kindred performances in 
 South Dakota on Sunday. The advocates of liberal Sunday 
 laws joined in a petition for an election and their papers 
 were filed with the Secretary of State on May 24.* 
 
 On March 6 the legislature passed and on March 8, 
 1907, the Governor signed a bill to curb the operations of 
 the divorce lawyers. Hereafter any plaintiff in divorce pro- 
 ceedings must have been " an actual resident in good faith " 
 for one year within the State and for three months within 
 the county before the action shall be instituted. The peti- 
 tion was filed on May 14.' 
 
 On March 7, 1907, the legislature passed and the Gov- 
 ernor signed a bill making it unlawful to kill quail within 
 the State for a period of more than five years, or before 
 October i, 1912. The petition was filed on June 4, 1907.° 
 The going into operation of all three laws was suspended 
 until they could be submitted to popular vote. The result 
 at the election in 1908 was as follows: 
 
 FOR AGAINST TOTAL VOTE 
 
 Local option liquor law 39>07S 41,405 80,480 
 
 Divorce law 60,211 38,794 99,ooS 
 
 Quail law 65,340 32,274 97,6i4 
 
 Sunday law 48,378 48,006 96,384 
 
 The three laws which had been originated by the legis- 
 lature were adopted, two by decisive majorities, and the 
 local option liquor law, initiated by the people, was defeated. 
 The total vote for Governor at the same election was 1 13,904, 
 so that the proportion of all the electors voting for candi- 
 dates who voted for laws ranged from about 70 to 87 per 
 cent. 
 
 ' Session Laws of 1907, p. 470. ' Ibid., p. 197. • Ibid., p. 338. 
 
INITIATIVE AND REFERENDUM IN THE STATES 395 
 
 At the next general election, in November, 1910, six laws 
 were submitted to the voters of South Dakota. One of 
 these was initiated by the people — a county local option 
 liquor law, similar to that which had been disapproved of in 
 1908. Obstinate in defeat, the prohibitionists again peti- 
 tioned the legislature on this subject.' The other five 
 laws submitted at this election related to the following 
 subjects: 
 
 The organization, maintenance, equipment, and regula- 
 tion of the State militia.' 
 
 The compulsory placing by railway companies of electric 
 or other head-lights of not less than 1500 candle power on 
 locomotive engines of passenger trains, and of such candle 
 power as the railroad commissioners should prescribe on 
 goods and other trains operated within the State.' 
 
 Giving the Governor the right to remove all officers not 
 liable to impeachment and all elective county, township, city, 
 municipal, and precinct officers except members of legis- 
 lature " for misconduct, or malfeasance, or crime, or misde- 
 meanor in office, or for drunkenness or gross incompetency, 
 or habitual or wilful neglect of duty.'"" 
 
 Dividing the State into Congressional districts." 
 
 Requiring embalmers to be licensed by the State board of 
 health after training and demonstrations of proficiency " by 
 operations on cadaver," and to place their names and regis- 
 tered numbers on boxes containing corpses offered for ship- 
 ment within the State." 
 
 The vote upon these six laws in South Dakota in 1910 
 was as follows: 
 
 FOR AGAINST TOTAL VOTE 
 
 Local option 42,416 S5>372 97i788 
 
 Head-lights 37,9i4 49.938 87,852 
 
 Suspension from office 32,160 52.152 84,312 
 
 Embalmers 34.56° 49.496 84,056 
 
 Congressional districts 26,918 48,883 75.8oi 
 
 Militia 17.852 57.440 7S.292 
 
 ' Laws of 1909, p. 34. " Ibid., p. 54. ' Ibid., p. 28. 
 
 i» Ibid., p. 181. " Ibid., p. 347- " Ibid., p. 28. 
 
396 THE REFERENDUM IN AMERICA 
 
 Thus every one of the submitted proposals was defeated 
 by majorities ranging from 12,000 to 40,000. The total vote 
 for Governor was 105,812, so that from 71 to 92 per cent 
 of the voters participated in the election on the subject of 
 laws. 
 
 At the same election six constitutional amendments, one 
 of them proposing to confer suffrage on women, were sub- 
 mitted to the people. All of these, except one in reference 
 to renting the public lands, were defeated by majorities 
 running from 11,000 to 23,000, in a total vote about equal 
 to that which was cast for the six statutes. 
 
 The initiative and the referendum in South Dakota in 
 relation to cities and towns may be similarly invoked by 
 five per cent of the voters. Petitions for the reference to 
 the people of laws, ordinances, or resolutions passed by 
 the local representative legislature must be filed with 
 the auditor or clerk of the corporation within twenty days 
 after its passage. These new rights have been made 
 use of in a number of instances in municipal districts in 
 the State.*' 
 
 Following South Dakota the people of Utah, on Novem- 
 ber 6, 1900, adopted an amendment to their Constitution 
 which had been proposed by the legislature. It was 
 arranged that the legal voters of the State, or "such frac- 
 tional part thereof, ... as may be provided by law, under 
 such conditions and in such manner and within such time 
 as may be provided by law," may initiate legislation, and 
 cause the same to be referred to the people for their adop- 
 tion or rejection. A "fractional part" of the electors might 
 furthermore "require any law" passed by the legislature, 
 unless it may have been by a two-thirds vote of the mem- 
 bers of each house, to be submitted to the people. On sim- 
 ilar terms the initiative and the referendum were authorized 
 in "legal subdivisions" of the State. Up to this time, how- 
 ever, the legislature has failed to enact the laws necessary 
 
 " For the process of invoking the initiative and referendum in cities and towns 
 in South Dakota, see Political Code, sees. 1214-28. 
 
INITIATIVE AND REFERENDUM IN THE STATES 397 
 
 to render the provision in the Constitution available. Be- 
 cause no " fractional part" of the voters competent to invoke 
 the new right has been named the provision remains ineffec- 
 tive." 
 
 Meanwhile Oregon, the State in which the most enthusi- 
 asm for direct legislation has been evidenced and the most 
 experience with it has been gained, was busily engaged in 
 the work of changing its Constitution." The initiative and 
 referendum amendment passed two successive legislatures, 
 those of 1899 and 1901, and was adopted by the people on 
 June 2, 1902, by a vote of 62,024 to 5,668. Here as in 
 South Dakota the legislative power of the State is vested in 
 a bi-cameral representative assembly, but the people "re- 
 serve to themselves" the right to propose and enact laws, 
 and to call for a vote upon laws which have been enacted 
 by the representative body. They may also initiate consti- 
 tutional amendments, thus introducing a new feature into 
 the general scheme for direct popular government in Amer- 
 ica. In Oregon legal voters equal in number to at least 
 eight per cent of the number voting for Justice of the Su- 
 preme Court at the last preceding regular election may pro- 
 pose a law or a constitutional amendment in petitions filed 
 with the Secretary of State. Five per cent of the voters 
 may cause a referendum to be taken on laws which have 
 been enacted by the legislature, if the request is made within 
 ninety days after its adjournment. The legislature itself 
 at wish may upon its own motion make any law which it 
 shall pass depend for its going into effect upon an affirma- 
 tive vote of the people. There is exception only for laws 
 "necessary for the immediate preservation of the public 
 peace, health, or safety." The veto power of the Governor 
 is withheld, the submission of laws may be at special as well 
 as regular elections and a law is considered to have been 
 
 " Art. vi, sec. i of Constitution of Utah. 
 
 " In the hands of what varieties of mentally unstable citizens the movement 
 was may be gathered from the articles of Burton J. Hendrick in McClure's Maga- 
 zine, beginning July, 1911. 
 
398 THE REFERENDUM IN AMERICA 
 
 approved when it receives "a majority of the votes cast 
 thereon." " 
 
 In 1906, by way of the initiative, the people of Oregon by 
 further amendment of their Constitution extended these pop- 
 ular rights to local districts. Fifteen per cent of the electors 
 may initiate ordinances and ten per cent may cause a vote 
 to be taken upon measures which have been passed by the 
 local legislature. At the same time it was made possible in 
 the State to invoke the referendum on the subject of any item 
 or part of a law, as well as in reference to the entire law." 
 
 The modus operandi in all these cases has been clearly 
 developed and stated by the legislature. The petition for 
 the referendum must follow this form: 
 
 " To the Honorable , Secretary of State for the 
 
 State of Oregon (or the Honorable clerk, auditor 
 
 or recorder, as the case may be, of the city of ) : 
 
 "We the undersigned citizens and legal voters of the 
 
 State of Oregon (and the district of , county of 
 
 , or city of , as the case may be) respect- 
 fully order that the Senate (or House) Bill No , 
 
 entitled (title of act, and if the petition is against less than 
 the whole act then set forth here the part or parts on which 
 the referendum is sought), passed by the legisla- 
 tive assembly of the State of Oregon, at the regular (special) 
 session of said legislative assembly, shall be referred to the 
 
 people of the State (district of , county of 
 
 or city of, as the case may be) for their approval or rejection 
 
 at the regular (special) election to be held on the 
 
 day of A. D. 19.., and each for himself says: I 
 
 have personally signed this petition; I am a legal voter of 
 
 the State of Oregon, and (district of , county of 
 
 , city of , as the case may be) ; my resi- 
 dence and post-office are correctly written after my name. 
 
 "Name Residence Post-ofl&ce 
 
 "(If in a city, street and number.)" 
 
 "Art. iv, sec. i of Constitution of Oregon as amended in 1902. 
 " Art. iv, sec. la. 
 
INITIATIVE AND REFERENDUM IN THE STATES 399 
 
 The initiative petition must be circulated and filed in sub- 
 stantially this form: 
 
 "To the Honorable , Secretary of State for the 
 
 State of Oregon (or to the Honorable , clerk, audi- 
 tor or recorder, as the case may be, for the city of ) : 
 
 "We the undersigned citizens and legal voters of the State 
 
 of Oregon (and of the district of , county of , 
 
 or city of , as the case may be) respectfully demand 
 
 that the following proposed law (or amendment to the Con- 
 stitution, ordinance or amendment to the city charter as the 
 case may be) shall be submitted to the legal voters of the 
 
 State of Oregon (district of , county of , 
 
 or city of , as the case may be) for their approval 
 
 or rejection at the regular general election (regular or special 
 
 city election) to be held on day of , A. D., 
 
 19. ., and each for himself says: I have personally signed 
 this petition; I am a legal voter of the State of Oregon 
 
 (and of the district of , county of , city of 
 
 as the case may be) ; my residence and post-office 
 
 are correctly written after my name. 
 
 "Name Residence Post-office 
 
 " (If in a city, street and number.) " 
 
 The sheets for signatures must be of a specified uniform 
 size. Both initiative and referendum petitions must be 
 attached to full and correct copies of the measures upon 
 which a vote of the people is sought. Each sheet, which 
 may not contain more than twenty names, must be accom- 
 panied on its back by an affidavit of that man or woman 
 who may have circulated it that the signatures are genuine 
 and that the addresses are correctly stated. The Secretary 
 of State upon receiving the petitions shall transmit a copy 
 to the Attorney-General of the State, who within ten days 
 must provide a "ballot title" for the measure. This must 
 express, " in not exceeding one hundred words, the purpose 
 of the measure," and is to be printed on the ballot. If the 
 impartiality of the language of the title is questioned, and 
 
400 THE REFERENDUM IN AMERICA 
 
 it seems likely "to create prejudice either for or against the 
 measure," appeal may be had to the circuit court whose deci- 
 sion shall be final. Measures submitted by the legislative 
 assembly are designated by the heading, "Referred to the 
 People by the Legislative Assembly"; those submitted in 
 response to petition, by the heading, "Referendum Ordered 
 by Petition of the People"; those which the people have 
 originated, by the words, "Proposed by Initiative Petition." 
 
 Provision is made for the education of the electors on the 
 subject of the laws concerning which their opinion is asked. 
 Any person, committee, or organization may frame an "argu- 
 ment" for or against a measure. If they be forwarded to the 
 Secretary of State within the period specified by law, accom- 
 panied by a sum of money sufficient to pay the cost of the 
 paper and the printing, the Secretary of State shall bind 
 the arguments, together with the text of the measures and 
 the ballot titles, and distribute a copy of the pamphlet by 
 mail, postage prepaid, to each voter in Oregon. 
 
 When the returns are received, and the votes are can- 
 vassed, the Governor issues a proclamation stating which 
 measures have been approved and which have been re- 
 jected, and declaring those which have been approved "in 
 full force and effect as the law of the State of Oregon from 
 the date of said proclamation." A similar process is em- 
 ployed in relation to the initiative and referendum in local 
 districts." Under this provision of her Constitution Oregon 
 has thus far voted upon sixty-four laws, two in 1904, eleven 
 in 1906, nineteen in 1908, and thirty-two in 1910. 
 
 The two laws upon which the people voted on June 6, 
 1904, were of their own initiation. One was a direct pri- 
 mary law, which, with other reforms in procedure, threw 
 into the hands of the people the choice of United States 
 senators. The other was a county local option liquor law. 
 Both were adopted, the first by a large majority. 
 
 Two years later, in June, 1906, when eleven propositions 
 
 " Session Laws of 1907, p. 398, amending the system which was devised in 
 1903 and contained in Session Laws of that year, p. 244. 
 
INITIATIVE AND REFERENDUM IN THE STATES 401 
 
 were referred to the people, ten were by initiative and one 
 by referendum petition. 
 
 The referendum petition related to a law passed at the 
 legislative session of 1905, appropriating money for the 
 maintenance of several State institutions, including the in- 
 sane asylum, the penitentiary, the university, the agricult- 
 ural college, and the deaf-mute, the blind, and the normal 
 schools. The law was approved. 
 
 Five of the measures initiated by the people were consti- 
 tutional amendments, the most important of these being a 
 proposal to give women the franchise. The sponsor for 
 this measure was the Oregon Equal Suffrage Association, 
 which caused an "argument" to be distributed to the voters, 
 as did an organization formed to combat it, the Oregon 
 State Association Opposed to the Extension of Suffrage to 
 Women. Both were societies led and largely composed of 
 women. The amendment was defeated. 
 
 The second of the amendments was a proposition to -give 
 the people larger powers in the adoption and alteration of 
 the State Constitution, which, as might be expected, proved 
 very acceptable to them. It was adopted by a large ma- 
 jority. 
 
 The third amendment was also plainly in the interest of 
 direct popular rule. It proposed a guarantee to the people 
 of "exclusive power to enact and amend their charters" in 
 cities and towns. In other words, it was a plan for munic- 
 ipal "home rule," in force in one form or another for 
 several years in various Western commonwealths, including 
 California, Washington, Missouri, and Minnesota. This 
 amendment was approved by a majority of more than 
 30,000. 
 
 The fourth of these propositions for changing the Consti- 
 tution, brought to a vote of the people upon initiative peti- 
 tion, provided for the election or appointment of an experi- 
 enced State printer whose work should be regulated by law. 
 To this idea there was almost no opposition. 
 
 The fifth amendment of popular origin provided for the 
 
402 THE REFERENDUM IN AMERICA 
 
 use of the referendum on items and parts of bills as well as 
 on entire measures, and in local communities as well as in 
 the State at large. The proposal was approved by a large 
 majority. 
 
 Of the statutes initiated by the people and submitted to 
 popular vote in June, 1906, two had to do with the taxa- 
 tion of "foreign corporations." One of these levied a tax 
 in the form of a license equal to three per cent of the gross 
 receipts of express companies and two per cent of the gross 
 income of telephone and telegraph companies doing bus- 
 iness within the State. The other measure proposed that 
 the State take three per cent from the earnings of sleep- 
 ing-car and refrigerator-car companies as well as from oil 
 companies, i. e., "foreign" corporations engaged in the bus- 
 iness of buying and selling petroleum. These laws, mani- 
 festly aimed at the large telegraph and express companies, 
 the Pullman company, the Standard Oil Company, and 
 other corporations, were adopted. Both were approved by 
 a vote of about ten to one. The tax is to be paid annually 
 and ten per cent is to be added in case of the company's 
 failure to make the return, so that the measures indicate a 
 serious and not unnatural desire on the part of the people 
 to shift their pecuniary burdens to other shoulders. These 
 are particularly fine examples of the kind of laws which 
 may be expected from the people acting directly in a mass. 
 Another statute submitted to the people at this election 
 proposed some changes in the local option law of 1904, 
 "giving anti-prohibitionists and prohibitionists equal privi- 
 leges." The number of voters competent to demand an 
 election upon the subject in any local district was made 
 thirty instead of ten per c^nt, and other changes in the 
 interest of the liquor trade were proposed, but the people 
 rejected them by a majority of 10,000. 
 
 At the same time a statutory proposal that the State 
 should own and control the important Mount Hood and 
 Barlow road, and abolish tolls upon it, was submitted to the 
 people. Of this plan, however, they also disapproved. 
 
INITIATIVE AND REFERENDUM IN THE STATES 403 
 
 Still another statute proposed by petition made it unlaw- 
 ful for railway and other public-service companies to grant 
 passes, franks, or other free rights, a very drastic measure 
 guarded by penalties. This proposal warmly appealed to 
 the voters and they approved it by a majority of more than 
 40,000. 
 
 Of the ten measures initiated by the people seven were 
 approved and three rejected. The largest majority against 
 a measure was 17,000; the largest majority for a measure 
 about 64,000 — in the case of the laws to tax sleeping-car, 
 telegraph, oil, and other compaiiies. The interest in all the 
 subjects submitted to the people was large; from 67 to 87 
 out of every 100 men who voted for Governor at the election 
 of 1906 marked the ballots for or against the legislative 
 proposals. Eighty-seven per cent exhibited an interest in 
 woman suffrage; 83 per cent in prohibition; 80 per cent 
 in the heavy taxation of foreign corporations. 
 
 It is feasible to assign the nineteen measures submitted 
 in 1908 to general classes. Several were local measures 
 and, properly considered, not matters for the attention of 
 the people of the whole State, as, for example, the proposal 
 to form a new county. Four were advocated by the so- 
 called People's Power League, which introduced the initia- 
 tive and referendum into Oregon in the first instance, and 
 stood ready to extend favor to a number of kindred schemes. 
 In 1908 these direct-government democrats supported the 
 recall, proportional representation, the corrupt practices act 
 and the bill for the popular election of United States sena- 
 tors. The organization was powerful and all four proposals 
 were adopted. 
 
 Two rival fishery interests, the gill net and the wheel 
 men, presented bills, each acrimoniously charging the other 
 with improper motives. The people rather naturally, and 
 wisely, it would seem, convinced that "canned fish won't 
 spawn," resolved to restrain both classes of destroyers." 
 
 Three measures aroused the resentment of the "Patrons 
 
 M See Pamphlet of Arguments for 1908. 
 
404 THE REFERENDUM IN AMERICA 
 
 of Husbandry" and the " Grange," whose selfish views, how- 
 ever, were not permitted to prevail. It was argued against 
 the appropriation of $100,000 for new armories that it 
 would be an aid to the State militia which was used "in the 
 settlement of disputes between large corporations and their 
 employees." Without these large corporations the troops 
 would not be needed. To extend such favors to the militia 
 would open the way to "endless graft in the future." 
 
 The "Patrons of Husbandry" opposed the appropriation 
 for the university. They argued that the institution was 
 not poor since it had "recently employed a man to coach 
 its foot-ball team, paying him $1,500 for a little more than 
 two months' ' instruction,' and boasted in the Portland papers 
 that it was the largest salary ever paid in the North-west 
 to a foot-ball coach." They alleged that the "American 
 common school" was "the head of our educational system" 
 rather than the university. They relied upon "the intelli- 
 gence, integrity, and good judgment of the common people 
 of Oregon" to defeat the law. 
 
 They also opposed (quite vainly) the bill requiring rail- 
 road companies to give free transportation to State officers 
 when engaged in State business, observing, not without 
 reason, that a little while before, in 1906, the people had 
 approved an anti-pass law. Why should they in 1908 vote 
 for a "compulsory pass law" ? ^^ 
 
 Of the single-tax scheme, which was defeated, a single- 
 tax society was the sponsor. The "home rule" liquor- 
 selling and pool-room law, which was also defeated, was 
 contrived in the interest of the liquor trade. The amend- 
 ment guaranteeing every man a grand-jury indictment, 
 which was carried by a large majority, was defended by a 
 committee whose members were concerned lest America 
 should suffer the "despotism of Russia." This curse would 
 soon fall upon the republic. "The time," said the men who 
 supported- the measure, "will inevitably come when wealth 
 and great interests will seek to shut the mouth of every man 
 
 ™ Pamphlet of Arguments. 
 
INITIATIVE AND REFERENDUM IN THE STATES 405 
 
 who is against them." Oregon must defend this "great 
 fundamental principle of personal liberty." ^' 
 
 The measure proposing to increase the compensation of 
 the members of the legislature was foredoomed. It was 
 disapproved of by a vote of more than three to one. 
 
 A little examination of the thirty-two measures submitted 
 to the people of Oregon in 1910 discloses a number of inter- 
 esting facts. In the first place, despite the confusion which 
 must have possessed the minds of 99 out of every 100 voters 
 of the State because of the great number and conflicting 
 variety of the submitted measures, the result indicates a 
 checking of the current of folly. A disposition to reprove 
 the People's Power League and other inventors of patent 
 schemes of government has appeared. Of the four meas- 
 ures for which the League furnished arguments two were 
 defeated, while the other two were adopted by very small 
 majorities. Its scheme to extend the provisions of the 
 direct primary law so as to permit the voters to express their 
 choice for President and Vice-President, presidential elec- 
 tors and delegates to national party nominating conven- 
 tions, was approved by a majority of less than 2,000. Its 
 scheme for a verdict by three-fourths of a jury, the avowed 
 purpose of which was to make impossible "that kind of 
 injustice" wherein "the corporation or the rich man wins 
 because of the longest purse," fared but little better. The 
 majority was about 5,000. The revolutionary proposal of 
 the League that legislative sessions should be annual, that 
 senators and representatives should be elected for six-year 
 terms, that the presiding ofl&cers of the two houses should 
 not be members of the legislative assembly but should be 
 invited in from the outside, that the entire membership of 
 each or both houses should be recalled on petition and a 
 vote of no confidence, etc., etc., was disapproved. The 
 same fate befell an extraordinary contrivance known as a 
 "Board of People's Inspectors of Government, ".a kind of 
 council of censors which was to examine the books of public 
 
 " Pamphlet of Arguments. 
 
4o6 THE REFERENDUM IN AMERICA 
 
 officials and to publish a bi-monthly official State magazine 
 wherein it might inform the public in regard to its findings. 
 
 The League had better fortune with two measures which 
 it opposed — one to authorize the calling of a constitutional 
 convention, intended to bring order out of the chaos in 
 which headless popular rule is involving all law in Oregon; 
 the other repealing, or at any rate essentially modifying, the 
 proportional representation law which the people had ap- 
 proved in 1908. Both measures were rejected. 
 
 A measure similar to those espoused by the League and 
 tending in the direction of a socialistic order was that author- 
 izing the State, if it liked, to sell bonds for the construction 
 of railways. The scheme was devised to free the State from 
 "railroad monopoly" and open the way for public owner- 
 ship. " The amendment," said Mr. U'Ren^^ and those allied 
 with him in advocating it, " is but one more step in line with 
 the people's resumption of those great fundamental powers 
 which naturally belong to them. There is no greater power," 
 they continued, " than the control of the nation's highways, 
 and no power which it is more important that the people 
 should preserve." This measure met with disapproval. 
 
 A scheme conceived in the same spirit, meant to establish 
 the liability of employers of men engaged in hazardous 
 occupations, was approved. It was a "call of the plain 
 people to the plain people for relief." A counter-scheme, 
 authorizing the appointment of a board of commissioners 
 to report upon the subject, denounced by the advocates of 
 the other law as "a mere pretext or blind" to "head them 
 off," was rejected. 
 
 In 1906 and 1908 the people had rejected woman suffrage 
 bills. In 1910 they were called upon to do so again. 
 
 In 1904, 1906 and 1908 the people were asked to vote 
 upon the liquor question in one or another form and hear 
 
 '''W. S. tJ'Ren, of Oregon City, called "the legislative blacksmith" of Oregon 
 (American Magazine, 1908, vol. 65, pp. 527—40). During Woodrow Wilson's 
 tour of the West in 19 11 he found that Oregon had two capitals, one at Salem and 
 the other "under the hat of Mr. U'Ren" {Public Ledger, Philadelphia, June 6, 
 1911). 
 
INITIATIVE AND REFERENDUM IN THE STATES 407 
 
 ;he arguments of the saloon and anti-saloon leagues: this 
 lid not save them from three prohibition laws in 1910. 
 Two "State-wide" laws were voted down, while a measure 
 sroposing to take cities out of local option counties and 
 ?ive them "home rule" on the question was approved. 
 
 Eight bills to create new or change the boundaries of old 
 :ounties, which caimot rightly be matters for the voters of 
 :he whole State, were referred to the people who, perhaps 
 aecause of their annoyance at being disturbed by such pro- 
 Dosals, rejected them all by very large majorities. The ex- 
 ;use for the submission of such measures was that no sim- 
 pler method of creating counties was at hand.^' To remedy 
 :his particular defect a general law was proposed, but with 
 ;his, too, the people would have nothing to do. 
 
 The people voted to support one normal school and not 
 ;o support two others. For a scheme to add $1,000 annually 
 :o the salary of a circuit judge, a trifling matter it would 
 seem for a vote of the State, they of course had no enthusi- 
 ism. Nearly 60,000 out of 85,000 electors declined to be 
 I party to this extravagance. 
 
 Three amendments to the Constitution on the subject of 
 ;axation, which it was expected would stand or fall together, 
 became separated. One was adopted and two were re- 
 jected. Their sponsor was the State Federation of Labor, 
 vhose principal object was the repeal of the poll-tax, the 
 'most odious and unjust of all taxes." An affirmative vote 
 :or the measures advocated by the Federation would give 
 ' the plain people the greatest of all powers of government 
 jxcept the initiative and referendum." They would here- 
 ifter "manage their own pocket-books," and get "more 
 Dread-and-butter profits from the government than they 
 lad in the past."^* 
 
 Some consistency was displayed by the people on the sub- 
 ect of fish protection, for they approved of forbidding the 
 ;asting of nets in the Rogue River, despite the protests of 
 
 23 Speech of Senator Bourne in United States Senate, February 27, 1911. 
 " Arguments in Pamphlet for 1910. 
 
4o8 THE REFERENDUM IN AMERICA 
 
 the canners who considered the contemplated course a grave 
 infringement of their rights. 
 
 The following table will indicate the vote polled at the four 
 elections on laws in Oregon:^' 
 
 PER- 
 CENTAGE 
 OF TOTAI. 
 MAJOR- MAJOR- VOTE FOR 
 ITY AP- ITY RE- CANDI- 
 
 1904. — Total vote, 99,315: ""^^ '"' proving jecting dates 
 
 Direct primary bill " . . . 56,205 16,354 39,851 73 
 
 Local option liquor bill ° . . 43,316 40,198 3,118 84 
 
 1906. — Total vote, 96,751: 
 
 Omnibus appropriation bill 
 
 for maintenance of State 
 
 institutionsi> 43,918 26,758 17,160 73 
 
 Woman suffrage amendment" 36,928 46,971 10,043 87 
 
 Local option bill proposed by 
 
 the liquor interests' . . . 35,397 45.144 9.747 83 
 
 Bill proposing State purchase 
 
 of the Barlow toll road " . 31,525 44,525 13.000 79 
 
 Amendment requiring a refer- 
 endum on any act calling a 
 
 constitutional convention" . 47,661 18,751 28,910 69 
 
 Amendment establishing home 
 
 rule for cities" 52,567 19,942 32,625 75 
 
 Amendment authorizing the 
 
 legislature to fix the pay of 
 
 the State printer' .... 63,749 9,571 54,178 76 
 
 Amendment for initiative and 
 
 referendum on local laws" . 47,778 16,735 ' 3'.043 67 
 
 Bill to prohibit free passes on 
 
 railroads" 57,281 16,779 40,502 76 
 
 Bill to place a gross-earnings 
 
 tax on sleeping, refrigerator, 
 
 and oil car companies" . . 69,635 6,440 63,195 79 
 
 Bill to place a gross-earnings 
 
 tax on express, telegraph, 
 
 and telephone companies" . 70,872 6,360 64,512 80 
 
 1908. — Total vote, 116,614: 
 
 Amendment to increase pay 
 of legislators from $120 to 
 $400 per session" .... 19,691 68,892 49,20i 76 
 
 26 Made up from Initiative and Referendum, by C. B. Galbreath, tables in 
 speeches of Senator Bourne of May 5, 19 10, and February 27, 1911, and pamphlets 
 of "arguments." 
 
INITIATIVE AND REFERENDUM IN THE STATES 409 
 
 PER- 
 CENTAGE 
 OF TOTAL 
 MAJOR- MAJOR- VOTE FOR 
 
 ITY AP- ITY RE- CANDI- 
 YiSG NO PROVING JECTING DATES 
 
 Amendment to permit State 
 institutions to be located at 
 places other tiian the cap- 
 ital of the States .... 41,975 40,868 1,107 7^ 
 
 Amendment reorganizing the 
 courts and increasing the 
 number of judges" . . . 30,243 S°>59^ 20,348 69 
 
 Amendment changing the date 
 of the general election from 
 June to November= . . . 65,728 18,500 47,138 72 
 
 Bill giving sheriffs the control 
 of county prisoners'" . . . 60,443 3°>°33 3°A^° 78 
 
 Bill requiring railroads to give 
 free passes to public ofiBcials'' 28,856 59,406 30,550 76 
 
 Bill appropriating $100,000 
 for armories'- 33.507 54,848 21,341 76 
 
 Bill to increase the annual ap- 
 propriation to the State uni- 
 versity to $i25,oooi» . . . 44,115 40,53s 3.580 72 
 
 Woman suffrage amendment' 36,858 58,670 21,812 82 
 
 Fishery bill proposed by fish- 
 wheel men" - 46,582 40,720 5,862 75 
 
 Fishery bill proposed by gill- 
 net men" 56,130 30,280 25,850 74 
 
 Amendment giving cities con- 
 trol of liquor-selling, pool- 
 rooms, theatres, etc., sub- 
 ject to the provisions of the 
 local option law .... 39,442 52,346 12,904 79 
 
 Single-tax amendment" . . 32,066 60,871 28,805 80 
 
 Amendment providing for the 
 recall" 58,381 31.002 27,379 77 
 
 Bill instructing members of 
 the legislature to heed the 
 will of the people in electing 
 United States senators" . . 69,668 21,162 48,506 78 
 
 Amendment providing for pro- 
 portional representation" . 48,868 34,128 14,740 71 
 
 Bill limiting expenditure of 
 money in political cam- 
 paigns (corrupt practices 
 act)" 54,042 31,301 22,741 73 
 
 Amendment requiring indict- 
 ment by grand-jury" . . . 52,214 28,487 23,727 69 
 
410 
 
 THE REFERENDUM IN AMERICA 
 
 
 
 PER- 
 
 
 
 CENTAGE 
 
 
 
 OF TOTAL 
 
 HAJOK- 
 
 MAJOR- 
 
 VOTE FOR 
 
 ITY AP- 
 
 ITY RE- 
 
 CANDI- 
 
 PROVING 
 
 JECTING 
 
 DATES 
 
 Bill to create Hood River 
 
 County 43.948 
 
 26,778 17,170 
 
 1910. — Total vote, 120,248: 
 
 Woman suffrage amendment' 
 
 Act establishing branch insane 
 asylum in eastern Oregon' 
 
 Act calling convention to re- 
 vise State Constitution" . . 
 
 Amendment providing sepa- 
 rate election districts for 
 members of the General 
 Assembly" 
 
 Amendment repealing re- 
 quirement that all taxes shall 
 be "equal and uniform" " . 
 
 Amendment authorizing estab- 
 lishment of railroad districts 
 and purchase and construc- 
 tion of railroads" .... 
 
 Amendment authorizing uni- 
 form taxation "except on 
 property not specifically 
 taxed," etc." 
 
 Act increasing judge's salary 
 in eighth judicial districf" . 
 
 Bill to create Nesmith County 
 
 Bill to maintain State normal 
 school at Monmouth" . . 
 
 Bill to create Otis County . 
 
 Bill changing boundaries of 
 Clackamas and Multnomah 
 Counties* 
 
 Bill to create Williams County 
 
 Amendment abolishing poll- 
 tax" : 
 
 Amendment giving cities and 
 towns special rights under 
 the local option law" . . 
 
 Bill to fix liability of employ- 
 ers" 
 
 Bill to create Orchard County" 
 
 Bill to create Clark County" . 
 
 Bill to maintain normal school 
 at Weston" 
 
 35,270 59,065 
 
 50.135 41.504 8,630 
 23.143 59.974 
 
 24,000 54,252 
 
 37,619 40,172 
 
 13,161 71,503 
 22,866 60,591 
 
 50,191 40,044 10,147 
 17,426 62,016 
 
 16,250 69,002 
 14,508 64,090 
 
 44,171 42.127 2,044 
 
 53,321 50,779 2,542 
 
 56,258 33,943 22,315 
 
 15,664 62,712 
 
 15,613 61,704 
 
 61 
 
 23,795 78 
 
 76 
 
 36,831 69 
 
 30,252 65 
 
 2,553 64 
 
 32,844 46,070 13,226 65 
 
 31,629 41,692 
 
 10,063 
 
 61 
 
 58,342 
 37.725 
 
 70 
 69 
 
 44,590 
 
 75 
 66 
 
 52.752 
 49.582 
 
 71 
 65 
 
 72 
 
 86 
 
 •■•,-• 75 
 47,048 65 
 46,091 64 
 
 40,898 46,201 5,303 72 
 
INITIATIVE AND REFERENDUM IN THE STATES 411 
 
 PER- 
 CENTAGE 
 OF TOTAL 
 MAJOR- MAJOR- VOTE FOR 
 
 ITY AP- ITY RE- CANDI- 
 YES NO PROVING JECTING DATES 
 
 Bill to change boundaries of 
 Washington and Multnomah 
 Counties" 14,047 68,221 S4>i74 68 
 
 Bill to maintain normal school 
 
 at Ashland" 38,473 48,655 10,182 72 
 
 Amendment prohibiting the 
 
 liquor trafific in Oregon" . 43,540 61,221 17,681 87 
 
 Bill to m^ke prohibition 
 
 amendment effective" . . 42,651 63,564 20,913 87 
 
 Bill creating a board to draft 
 
 an employers' liabiUty lav(r» 32,224 51,719 10,495 69 
 
 Bill to prohibit seine, trap, or 
 
 wheel fishing in Rogue River" 49,712 33,397 16,315 69 
 
 Bill to create Deschutes 
 
 County" 17,592 60,486 42,894 65 
 
 Bill for general law under 
 which new counties may be 
 created, or county bounda- 
 ries changed" 37,129 42,327 5,198 66 
 
 Amendment permitting coun- 
 ties to incur indebtedness 
 beyond $5,000 to build 
 roads" 5^,275 32,906 18,369 70 
 
 Bill extending the direct pri- 
 mary law to allow voters to 
 express their choice for Pres- 
 ident and Vice-President, 
 presidential electors and 
 delegates to national con- 
 ventions" 43,353 41,624 1,729 71 
 
 Bill to create the "Board of 
 People's Inspectors of Gov- 
 ernment" " 29,955 52,538 22,583 68 
 
 Amendment extending initia- 
 tive, referendum and recall, 
 making terms of members 
 of legislature six years, etc." 37,031 44,366 7,335 67 
 
 Amendment providing for ver- 
 dict of three-fourths of jury 
 in civil cases" 44,538 39,399 5,^39 69 
 
 * Initiated by the people. 
 
 ■■Acts or constitutional amendments submitted in answer to petition of 
 the people. 
 
 " Acts or constitutional amendments submitted by the legislature upon 
 its ovra motion. 
 
412 THE REFERENDUM IN AMERICA 
 
 Several facts are gleaned from this experience. The 
 64 questions which were submitted to the people in four 
 elections in Oregon embraced 26 constitutional amendments 
 and 38 simple legislative proposals. Forty-eight bills and 
 constitutional amendments were initiated by the people, 10 
 were submitted by the legislature and 6 were acts of the 
 legislature submitted in response to popular petition. 
 Thirty-one measures were approved: 25 of these were sub- 
 mitted by way of the initiative, 3 by way of the referendum, 
 while 3 were acts sent to the people by the legislature. 
 
 The smallest vote cast in the four elections was on a local 
 measure in 1908. The total was 70,726. The advocates 
 of the reform observe with pride that this was 61 per cent 
 of the highest vote cast for any officer at the same election. 
 The largest vote polled was on the "State-wide" prohibi- 
 tion law in 1910 when the total was 106,215, ^7 P^^ cent 
 of the whole number voting for the leading candidate. It 
 is stated that the 64 measures were supported or opposed 
 by 71 different organizations of citizens. At the election in 
 1908, when 19 measures were submitted to the people, the 
 pamphlet containing the text of all the measures to be voted 
 on, together with the arguments for and against them, oc- 
 cupied 128 pages. In 19 10, with 32 measures before the 
 people, it was a book of 208 pages. It was indexed and 
 called for the close study of the voters. The State expended 
 for its share of the printing and for distributing the pamphlet 
 in '1910 less than 20 cents for each registered voter. The to- 
 tal cost of the books containing the 64 measures submitted 
 in four elections has been $47,610,61. The 71 private or- 
 ganizations were under an estimated additional expense of 
 $125,000, which is not considered to have been large in view of 
 the fact that six of the measures related to the prohibition of 
 the liquor trade and three to woman suffrage, subjects which 
 as a rule call out a great deal of animated discussion. No spe- 
 cial election (which can be authorized only by the legislative as- 
 sembly) has yet been held to vote upon measures in Oregon.^" 
 
 ^ Speech of Senator Bourne, February 14, igri. 
 
INITIATIVE AND REFERENDUM IN THE STATES 413 
 
 The progress of the referendum was arrested in 1903, for 
 in both Massachusetts and Missouri, in which States con- 
 stitutional amendments were pending, the friends of the 
 system met with defeat. In Massachusetts a scheme to 
 authorize 50,000 qualified voters, together with fifteen sena- 
 tors and a majority of the members of the House of Repre- 
 senta,tives, to initiate constitutional amendments passed the 
 General Court in 1903.^' It failed of passage in the follow- 
 ing year and was therefore not submitted to the people. 
 In Missouri the General Assembly proposed a constitu- 
 tional amendment authorizing 10 per cent of the electors 
 to demand a referendum upon any act or part of an act 
 passed by the legislature, 15 per cent to initiate laws and 
 20 per cent to initiate amendments of the Constitution.^ 
 The people disapproved of the scheme when it was referred 
 to them at the election in November, 1904. 
 
 On the other hand, at the same election in 1904, after 
 having passed the legislatures of 1901 and 1903, a constitu- 
 tional amendment was adopted by the people of Nevada, 
 introducing the referendum into the practice of that State. 
 Ten per cent of the voters may call for the submission of 
 "any law or resolution made by the legislature." A'major- 
 ity of those voting can approve or annul the measure. The 
 only experience yet had with this provision of the Constitu- 
 tion was in the case of an act providing for the organization 
 and maintenance of the Nevada State police, which passed 
 the legislature on January 29, 1908. After serious labor 
 troubles at Goldfields, which resulted in the interposition of 
 Federal troops, if was determined to create a State constab- 
 ulary body of 250 men. The law carried with it an appro- 
 priation of $150,000.^° The labor party element circulated 
 a petition for a referendum which was filed with the Secre- 
 tary of State, and at the election in November, 1908, there 
 were 9,954 votes for and 9,078 votes against the law. It 
 
 '' Session Laws for that year, p. 583. 
 
 ^ Session Laws of 1903, p. 280. 
 
 2» Session Laws of Nevada, 1908, p. 20. 
 
414 THE REFERENDUM IN AMERICA 
 
 was therefore declared to have been adopted.^ Nevada 
 is still without the initiative in State matters, the referendum 
 on items and parts of acts and the local initiative and refer- 
 endum. These supplementary measures have been twice 
 approved by the legislature, and if adopted by the people 
 at the next general election will be incorporated in the State 
 Constitution. 
 
 Montana, another State imbued with the spirit of the 
 frontier, instituted the reform in 1906. Here the people 
 may originate legislation, "except as to laws relating to 
 appropriations of money and except as to laws for the sub- 
 mission of constitutional amendments and except as to local 
 or special laws as enumerated in Article V, Section 26.'"' 
 
 The referendum may be invoked on acts which the legis- 
 lature has passed, "except as to laws necessary for the im- 
 mediate preservation of the public peace, health, or safety," 
 and appropriation bills and those classes of special legis- 
 lation excepted by the clause relating to the initiative. 
 
 A number of voters equal to 8 per cent of the votes cast 
 at the last election for Governor, if this percentage of sign- 
 ers is obtained in each of at least two-fifths of the whole 
 number of counties, can propose a law for submission to 
 the people. Five per cent of the voters, under like restric- 
 tions, may demand a referendum upon laws which originate 
 in and are enacted by the representative assembly. If the 
 petition for a referendum is signed by 15 per cent of the 
 voters in a majority of the whole number of counties the 
 law to which the petition relates will remain inoperative 
 until after the election. The legislature may also submit 
 its acts to popular vote upon its o^s'n motion. The Governor 
 is denied the veto power in reference to submitted measures, 
 the elections may be regular or special and a majority of 
 those voting upon a subject is decisive. 
 
 '» The methods to be employed in submitting acts to popular vote were set forth 
 in a law of March 24, 1909. — Session Laws for that year, p. 249. 
 
 '" Just as the legislature has been prohibited from making special laws in ref- 
 erence to a large variety of enumerated subjects, so are the people restricted in ref- 
 erence to these subjects. 
 
INITIATIVE AND REFERENDUM IN THE STATES 41 S 
 
 By statutory legislation not founded upon constitutional 
 authority the right of the initiative and referendum ,has 
 been extended to towns and cities in Montana.^^ Elaborate 
 methods similar to those found in the Oregon law of 1903, 
 including the distribution of arguments for and against the 
 submitted laws, are prescribed/' but up to this time the 
 people of the State have made no use of their privilege. 
 
 Oklahoma entered the Union in 1907, and its very long 
 Constitution contained many radical provisions, the initia- 
 tive and the referendum among the number. Eight per 
 cent of the legal voters of the State voting at the last gen- 
 eral election may propose laws; 15 per cent may propose 
 constitutional amendments; 5 per cent, or the legislature 
 on its own motion, may invoke the referendum on laws 
 or parts of laws, unless these are such as are "necessary 
 for the immediate preservation of the public peace, health, 
 or safety." The Governor's power to veto submitted meas- 
 ures is withheld. The submission may be made at either 
 regular or special elections. Any measure referred to the 
 people on initiative petition "shall take effect and be in 
 force when it shall have been, approved by a majority of the 
 votes cast in such election." Any measure submitted on 
 referendum petition " shall take effect and be in force when 
 it shall have been approved by a majority of the votes cast 
 thereon and not otherwise." Any measure rejected by the 
 people cannot again be proposed by way of the initiative 
 until after three years, except upon petition of 25 per cent 
 of the legal voters.'* 
 
 The initiative and the referendum are also guaranteed 
 to the people of counties and districts " as to all local legisla- 
 tion," '^ and to municipal corporations. In counties and 
 districts 16 per cent can invoke the initiative and 10 per 
 cent the referendum; in municipal corporations the pro- 
 portion is 25 per cent for an exercise of either right.'° The 
 legislature, as it was directed to do in the Constitution, has 
 
 32 Session Laws of 1907, p. 416. " Ibid., p. 116. 
 
 " Art. V, sees. 1-8. " Art. v, sec. 5. " Art. xviii, sec. 4. 
 
4i6 THE REFERENDUM IN AMERICA 
 
 laid down rules for making the system effective. These are 
 similar to the rules which are in use in Oregon/' though 
 some variant provisions are to be noted. The arguments 
 are printed and distributed at the sole expense of the State. 
 While in Oregon and Montana no limitation is placed upon 
 the length of the arguments, except what is provided by 
 the requirement that the private committees and organiza- 
 tions presenting them shall pay the cost of printing, Okla- 
 homa stipulates that the statements shall not exceed 2,000 
 words on either side.^' 
 
 Oklahoma began practical experience with the system in 
 1908. A law, initiated by the people, authorizing the school 
 lands of the State to be sold to homesteaders, was rejected 
 by a vote of 96,745 to 110,840. A mere question of policy 
 was also submitted upon the motion of the legislature. 
 This was as curious a proposal as has ever been referred to 
 the electorate in America. It was a proposal for the estab- 
 lishment of a "New Jerusalem," which should serve as a 
 capital city "to be owned and controlled by and the lots 
 therein sold for the benefit of the State." ^'' It was contended 
 by the advocates of the scheme, in their "argument" in the 
 pamphlet prepared for distribution to the voters, that since 
 "no city is entitled to any special privileges over any other 
 city of the State at the hands of the State," and since "the 
 State is not morally nor in equity pledged to assist any city 
 by establishing within its midst a capital site," a position 
 enforced by the example of the United States in choosing a 
 place for the national capital at Washington," Oklahoma 
 should establish this model community. It was to be lo- 
 cated "near the centre of the State" on a site selected "with 
 
 " Compiled Laws, 1909, p. 869 et seq. 
 
 ^ For a discussion of this subject, cf. Dodd, Revision and Amendment of State 
 Constitutions, p. 169 et seq. 
 
 " Session Laws, 1907—8, pp. 775—6. 
 
 " How much historical learning is possessed by the people residing on some por- 
 tions of our frontier may be gleaned by a reading of this passage in the "argu- 
 ment": "We have precedent for this policy in the constitutional convention 
 which framed the Constitution of the United States. The convention directed the 
 selection of the District of Columbia," 
 
INITIATIVE AND REFERENDUM IN THE STATES 417 
 
 reference to the topography of the country, drainage, health, 
 picturesque grandeur and supply of pure water." The 
 money acquired by the sale of building lots could be ex- 
 pended in the construction of streets, parks and fine build- 
 ings. No steam railway would be permitted " to enter the 
 city and mar its beauty." The picture was painted in lively 
 colors, and 117,441 persons voted yes and 75,792 no on the 
 question.^' The measure was submitted in answer to a 
 joint resolution and "merely for advisory purposes." " 
 
 At the same election three constitutional amendments 
 were submitted by the legislature, one to establish State 
 liquor sales agencies, the second to adopt the Torrens land 
 title registration system in use in Australia and in some 
 American States, the third to enable the people by majority 
 vote to choose a city to serve as the "permanent capital" 
 of the State. Constitutional amendments, whether initi- 
 ated by the people or the legislature, must be approved by 
 "a majority of all the electors voting" at the election, i. e., 
 a majority of all those voting for candidates, always a 
 much larger number than vote for laws. In 1908 the total 
 vote was 252,022, a majority of which would be 126,012. 
 Though two of the amendments — those providing for the 
 adoption of the Torrens land system and the permanent 
 location of the capital — were approved by majorities of 
 30,506 and 48,419 respectively, they were not adopted. The 
 more favored proposal received only 120,352 aflSrmative 
 votes. 
 
 Two initiated measures were submitted to the people at 
 a special election on June 11, 19 10. The members of the 
 convention which framed the Constitution of Oklahoma, 
 desirous, it would seem, of laying an interfering hand upon 
 the greatest possible number of subjects, had adopted this 
 provision : 
 
 " The argument offered by the Joint Committee of the First Legislature of 
 Oklahoma is throughout a very humorous State paper, both by reason of the 
 views it advances and the manner in which they are expressed. 
 
 « In re Initiative Petition No. 2, 26 Oklahoma, p. 548. 
 
4i8 THE REFERENDUM IN AMERICA 
 
 "Neither shall any railroad company, transportation com- 
 pany, or transmission company organized under the laws in 
 this State consolidate by private or judicial sale or other- 
 wise with any railroad company, transportation company, or 
 transmission company organized under the laws of any 
 other State or of the United States." *^ 
 
 The need of changing such a provision was soon felt. 
 In 1910 the question was submitted to a vote of the people 
 who rejected the proposal by a large majority— 53,784 for 
 and 108,205 against. On another proposal to locate the State 
 capital, submitted at the same election, there were 96,515 
 affirmative and 64,501 negative votes. Since it was a special 
 election and candidates were not the subject of a vote of the 
 people the constitutional difficulty in regard to a "majority 
 of all the electors voting" at the election was obviated. The 
 Supreme Court, however, declared the election null and 
 void.** Only about 160,000 people voted on the two ques- 
 tions, approximately 64 per cent of those who would vote 
 for Governor in the following November. 
 
 Another special election was held on August 2, 1910, with 
 the purpose of disfranchising the negroes by means of a 
 "grandfather clause." This was a constitutional amend- 
 ment, initiated by the people at the suggestion of the legis- 
 lature and designed to put Oklahoma in a class with several 
 Southern States. The provision requires an educational test 
 for the exercise of the franchise, bat excepts the descendants 
 of those whose lineal ancestors were entitled to vote on or 
 before January i, 1866. This proposal proved to be very 
 attractive and no less than 241,000 voters appeared at the 
 polls. It was passed by a majority of 29,221. 
 
 At the general election in November, 1910, six questions 
 were submitted to the people. Two of these were constitu- 
 tional amendments submitted by the legislature: one pro- 
 posed a distribution of taxes levied upon corporations for the 
 benefit of the schools, the other proposed the repeal of the ob- 
 
 " Art. ix, sec. 9. 
 
 " State of Oklahoma Roster of State and County OfEcers. 
 
INITIATIVE AND REFERENDUM IN THE STATES 419 
 
 jectionable Section 9 of Article IX in regard to the railroads, 
 and the establishment in its place of a provision to facili- 
 tate their consolidation. Two more amendments had been 
 initiated by the people, one for woman suffrage, the other 
 for local option on the liquor question. At the same time 
 a referendum, in answer to popular petition, was taken on 
 a general election law. The "New Jerusalem" plan for a 
 model city was again submitted to the people. The vote 
 upon these six proposals was as follows: 
 
 MAJORITY MAJORITY PER- 
 YES NO APPROVING REJECTING CENTAGE 
 
 Tax distribution amendment 101,636 43,133 58,503 57 
 
 Railroad amendment . . . 83,169 55,175 27,994 54 
 
 New Jerusalem plan . . . 84,336 118,899 34,533 80 
 
 Woman suffrage amendment 88,808 117,736 39,88o 85 
 
 Local option amendment . . 105,041 126,118 20,077 9^ 
 
 Election law 80,146 106,459 26,313 70 
 
 Here were two propositions upon which few more than 
 half of the people who appeared at the polls cast their votes, 
 while upon two others, the always attractive woman's fran- 
 chise and liquor law questions, the percentages were 85 and 
 91 respectively. Two of the amendments were approved by 
 a majority of those voting on the subjects, but did not take 
 their places in the Constitution because the number of elec- 
 tors supporting the measures were not equal to " a majority 
 of all the electors" voting at the election.*^ 
 
 Meanwhile two States, Illinois and Delaware, were experi- 
 menting with what has been called the "advisory referen- 
 dum," which consists in submitting questions to the people 
 with a view to advising the legislature on the subject of the 
 popular will. On May 11, 1901, the legislature of Illinois 
 enacted that 10 per cent of the registered voters of the State 
 and 25 per cent of the registered voters of any incorporated 
 town, village, city, township, county, or school district might 
 petition the "proper election officers" for a submission of 
 "any question of public policy." Not more than three 
 
 « A provision in the Constitution very cordially condemned by the friends of 
 direct legislation. See, for instance, George J. King, in Equity, 1911, p. 64. 
 
420 THE REFERENDUM IN AMERICA 
 
 propositions could be referred to the people at any one time. 
 The law is impracticable and it has remained ineffective.*" 
 
 In 1906 the Delaware legislature submitted this question 
 to the people: 
 
 "Shall the General Assembly of the State of Delaware 
 provide a system of advisory initiative and advisory refer- 
 endum?" " 
 
 The proposal was approved by a vote of 17,248 to 
 2,162, but the legislature has never taken steps to give 
 effect to the expressed popular will. 
 
 The initiative and the referendum found a foothold in the 
 East in 1908 when Maine adopted them in a modified form." 
 
 It is provided that no act except " such orders or resolu- 
 tions as pertain solely to facilitating the performance of the 
 business of the legislature," or appropriating money there- 
 for, or for the payment of salaries fixed by law, shall take 
 effect until ninety days after the adjournment of the legis- 
 lature, unless it be in case of emergency on vote of two- 
 thirds of the members of the legislature. Such emergency 
 measures shall be held to include "only such measures as 
 are immediately necessary for the preservation of the public 
 peace, health, or safety." If petitions signed by 10,000 elec- 
 tors are received before the lapse of ninety days the laws 
 shall be submitted to the people for their adoption or rejec- 
 tion. 
 
 Twelve thousand electors signing petitions may propose 
 laws but not constitutional amendments, which are spe- 
 cifically excepted. If these measures are enacted without 
 change by the legislature there is no election. But if the 
 legislature shall refuse to approve a measure which the peo- 
 ple have originated it is referred to the people, either alone 
 or in connection with a competing measure which may, per- 
 haps, have been proposed by the representative assembly as 
 an alternate choice. Furthermore the legislature may enact 
 
 ^^ Revised Statutes^ 1909, p. 1066. 
 
 " Session Laws of 1905, p. 85. 
 
 '* The vote on the constitutional amendment was 53,785 for and 24,543 against. 
 
INITIATIVE AND REFERENDUM IN THE STATES 421 
 
 measures "expressly conditioned upon the people's ratifi- 
 cation by a referendum vote." A majority of those voting 
 on the subject determine the result. 
 
 Cities may adopt the initiative and the referendum in re- 
 gard to municipal afifairs, if the ordinance authorizing them 
 be first submitted to and adopted by the people. The legis- 
 lature at any time, at its own desire, may provide a uniform 
 method for direct law-making in the municipal districts of 
 the State.'* 
 
 Maine made use of its new privilege for the first time in 
 September, 1909, when the people called for the referendum 
 on three laws: 
 
 (i) An act "making uniform the standard relating to the 
 percentage of alcohol in intoxicating liquors," i. e., making 
 the United States revenue standard of one per cent the 
 State standard.^" 
 
 (2) An act "to divide the town of York and establish the 
 town of Gorges. " " 
 
 (3) An act authorizing the reconstruction of the bridge 
 crossing Portland harbor, and connecting Portland and 
 South Portland, at a cost of $500,000, to be shared by the 
 county and two railroad companies.''^ 
 
 The vote was as follows: 
 
 FOR AGAINST 
 
 First measure 3i.°93 40i47S 
 
 Second measure 19.692 34>722 
 
 Third measure 21,251 29,851 
 
 Here, as in so many cases, most of the popular enthusiasm 
 spent itself on the. liquor-drinking question. Yet at this 
 election, of 141,031 persons who voted for Governor only a 
 little more than half, 71,568, gave their attention to the 
 liquor law. Still fewer had anything to say about the two 
 local laws which were manifestly not matters justifying an 
 appeal to the voters of the entire State. Only 51,102 cared 
 whether Portland bridge was reconstructed or not; only 
 
 « Session Laws, 1907, p. 1476. ™ Session Laws, 1909, p. 314. 
 
 n Ibid., p. 785. 52 Ibid., p. 792- 
 
422 THE REFERENDUM IN AMERICA 
 
 54,414 about the fate of the new town of Gorges — 36 and 
 39 per cent respectively. 
 
 In Missouri, where the people had defeated a constitu- 
 tional amendment in relation to the initiative and the refer- 
 endum in 1904, the legislature revived the subject in 1907.°^ 
 The amendment when it was submitted this time — in 
 November, 1908 — was approved. Laws and constitutional 
 amendments may be initiated by eight per cent of the legal 
 voters "in each of at least two- thirds of the Congressional 
 districts in the State." Submission of laws enacted by the 
 legislature may be demanded within ninety days by five per 
 cent of the voters drawn from at least two-thirds of the Con- 
 gressional districts, or the legislature, if it wish, may refer 
 any law to the people on its own motion. Exception is 
 made for "laws necessary for the immediate preservation of 
 the public peace, health or safety, and laws making appro- 
 priations for the current expenses of the State government, 
 for the maintenance of the State institutions and for the 
 support of public schools." ^* 
 
 The system is made operative by legislation enacted in 
 1909.^^ The State's experience at this writing has been 
 confined to two proposals for amending the Constitution, 
 which were submitted to the people on initiative petition in 
 1910. Both were rejected. One, for the prohibition of the 
 liquor trade, was defeated by a vote of 207,281 to 425,406; 
 the other, which proposed a State tax for the benefit of the 
 University of Missouri, failed of adoption by a vote of 181,659 
 to 344,274. The total vote for Governor in Missouri in 
 1908 was 715,717 and for judge of the Supreme Court in 
 1910, 671,763. It appears that 632,687 of the 671,763 per- 
 sons voting for judge cast their ballots for or against the 
 prohibition amendment, always the most engaging of sub- 
 mitted proposals, while but 525,933 voters expressed them- 
 selves for or against the measure in favor of the university. 
 More than 100,000 men who loved or loved not the bottle 
 
 ^ Session Laws of 1907, p. 452. 
 
 '< Art. IV, sec. 57. ^ Revised Statutes, 1909, sees. 6747-56. 
 
INITIATIVE AND REFERENDUM IN THE STATES 423 
 
 and glass, though the ballot was before them, did not care 
 enough about the university to draw a line through the 
 word "yes" or the word "no." At the same election nine 
 amendments which originated in the legislature were sub- 
 mitted to the people, and they were all rejected in the same 
 way in the wake of prohibition. The smallest vote for any 
 of these amendments was 485,225 on a local tax question; 
 the largest 521,117 on a bond issue to erect and equip a new 
 State capitol. 
 
 A new Constitution for the State of Michigan was adopted 
 by the people in November, 1908. It contains some pro- 
 visions which authorize a considerable enlargement of the 
 popular share in law-making in that State, though it is 
 doubtful if they will have practical use. Article V, Section 
 38, of the new Constitution provides: 
 
 "Any bill passed by the legislature and approved by the 
 Governor, except appropriation bills, may be referred by 
 the legislature to the qualified electors, and no bill so re- 
 ferred shall become a law unless approved by a majority of 
 the electors voting thereon." 
 
 The people are also given a conditional right of initiative 
 respecting constitutional amendments. A number of voters 
 equal to twenty per cent of those voting for Secretary of 
 State at the last preceding election of that oflScer may unite 
 in a petition for the submission of a proposal for a change in 
 the Constitution. Unless a majority of members in joint con- 
 vention of both houses of the legislature oppose the measure 
 it shall then be referred to the people. The legislature, if 
 it shall choose this course, may submit an alternative pro- 
 posal.'-' 
 
 In 1 9 10 the people of Arkansas adopted a constitutional 
 amendment introducing the initiative and the referendum 
 into the legislative system of that State. The plan in the 
 main follows that which is in use in Oregon. Eight per 
 cent of the electors may propose new laws and five per 
 cent can demand referenda on laws which have been en- 
 's Art. xvii, sec. ■^. 
 
424 THE REFERENDUM IN AMERICA 
 
 acted by the legislature. In the referendum exception is 
 made for laws which are "necessary for the immediate pres- 
 ervation of the public peace, health or safety." The peti- 
 tion must be filed within ninety days after the adjournment 
 of the legislative session. Submission may be made at reg- 
 ular or special elections, and a measure will be considered 
 to have been approved when it receives "a majority of the 
 votes cast thereon." 
 
 The right of the people to initiate legislation covers con- 
 stitutional amendments as well as statutes, and both the 
 initiative and the referendum may be employed in counties 
 and municipalities as well as in the State at large." The 
 amendment was adopted on November 8, 1910. An "en- 
 abling act" was passed by the legislature of 1911. 
 
 In 1910 the initiative and the referendum were adopted in 
 great haste in Colorado. At an extra session the legislat- 
 ure, on September 2, referred a constitutional amendment 
 to the people who approved it in November. The vote for 
 the measure was 89,141; the vote against it, 28,696. This 
 amendment introduces the system in its favorite form. The 
 initiative may be invoked by eight per cent of the legal 
 voters on the subject of both laws and constitutional amend- 
 ments; the referendum by five per cent of the legal voters. 
 The referendum petition must be presented within a period 
 of ninety days following the adjournment of the legislature. 
 It may apply to entire acts or to items and parts of acts. 
 The legislature itself may refer an act to the people. Ex- 
 ceptions are made for "laws necessary for the immediate 
 preservation of the public peace, health or safety, and appro- 
 priations for the support and maintenance of the depart- 
 ment of State and State institutions." Cities, towns and 
 municipalities are vested with similar powers. Ten per 
 cent can order the referendum and fifteen per cent can pro- 
 pose any measure in the local districts.^' 
 
 The Arizona convention of 1910, in framing a constitu- 
 
 " Session Laws of 1909, p. 1238. 
 
 ^ Laws of Extra Session, 1910, p. 11. 
 
'INITIATIVE AND REFERENDUM IN THE STATES 425 
 
 tion for the new State, whose admission to the Union has 
 been sought at Washington, adopted provisions on the sub- 
 ject of the initiative and the referendum. Ten per cent of 
 the voters may propose laws and 15 per cent constitutional 
 amendments. Five per cent may order the submission of 
 any measure which the legislature has passed, "except laws 
 immediately necessary for the preservation of the public 
 peace, health or safety or for the support and maintenance 
 of the departments of the State government and State insti- 
 tutions." These must be approved by a two-thirds vote 
 of the members, and, if vetoed by the Governor, by three- 
 fourths of the members of each house. Ninety days are 
 allowed for the filing of petitions. Provision is made also 
 for the popular initiation of measures and their submission 
 to the people in cities, counties and towns.°° 
 
 The Constitution of New Mexico of 1910, under which 
 that territory asks to be made a State, provides for the ref- 
 erendum but not for the initiative. To the people is re- 
 served the power "to disapprove, suspend and annul any 
 law enacted by the legislature, except general appropriation 
 laws; laws providing for the preservation of the public 
 peace, health or safety; for the payment of the public debt 
 or interest thereon, or the creation or funding of the same, 
 except as in this Constitution otherwise provided; for the 
 maintenance of the public schools or State institutions, and 
 local or special laws." Petitions in disapproval of any law 
 not embraced in these specified classes, which has been 
 passed at any session of the legislature, shall be filed with 
 the Secretary of State not less than four months prior to the 
 next general election. Ten per cent of the voters of each 
 of three-fourths of the counties, and in the aggregate not 
 less than 10 per cent of the voters of the State, as measured 
 by the votes cast at the last preceding election, may demand 
 a submission of the measure to the people. If 25 per cent 
 of the voters sign the petition under the same conditions, 
 and it be filed within ninety days after the adjournment of 
 
 59 Art. IV, sec. i. 
 
426 THE REFERENDUM IN AMERICA 
 
 the session at which the law was passed, the going into effect 
 of that law shall be suspended until an election has been 
 held. A majority of those voting, if the number be not less 
 than 40 per cent of the total number of votes cast, can 
 annul any law which is referred to the people.™ 
 
 In the past two or three years the popular ferment, which 
 earlier made its influence felt solely in the Democratic party, 
 has extended to disturb the Republican party in many States, 
 and the movement in behalf of the initiative and the refer- 
 endum has been much set forward on this account. The 
 right of direct legislation has come to be thought an indis- 
 pensable feature of a "Progressive" policy, and the country 
 is in the midst of a development which is essentially altering 
 the character of our State governments. At elections in 
 1911 or 1912 constitutional amendments embodying the in- 
 itiative and the referendum are to be voted on by the people 
 of California, Nevada, Washington, Wyoming, Nebraska, 
 Idaho, North Dakota, and Indiana. "' In Wisconsin a sim- 
 ilar amendment has passed one legislature and awaits the 
 approval of the next before going to the people. 
 
 The proposal has been before the legislatures of many 
 other States, and unless the current shall soon change the 
 movement will be brought to comprehend a large portion 
 of the Mississippi Valley and the Pacific coast region, with 
 sallies here and there in all probability into the East. A 
 still wider, field is being covered by the initiative and the 
 referendum as applied to towns, cities and local districts, a 
 topic which is now to be considered in detail. 
 
 »Art. IV, sec. 1. 
 
 •1 The provision in Indiana is incorporated in a new Constitution which the 
 legislature has submitted to the people. It is permissive only. Article VII, Sec- 
 tion 20, reads as follows: 
 
 "The General Assembly shall from time to time take such steps as may be 
 necessary for the codification of the laws of the State, and on petition of 25 per cent 
 of the qualified electors of the State at the last general election the General Assem- 
 bly may adopt laws providing for the initiative, referendum and recall both of 
 State and local application. But no bill for the recall of the judiciary shall ever 
 be passed." 
 
CHAPTER XVII 
 
 THE LOCAL REFERENDUM; HOME RULE FOR CITIES) COM- 
 MISSION GOVERNMENT, ETC. 
 
 In 1900 two States, South Dakota and Nebraska, had 
 completed general arrangements for using the initiative and 
 the referendum in municipal districts. The Constitution of 
 South Dakota provided that in the towns and cities of that 
 State 5 per cent of the voters might invoke the right to 
 originate local resolutions and ordinances and to demand the 
 submission to the people of any measure already enacted 
 by the local representative legislative body.' 
 
 Nebraska had reached a similar end by a general law of 
 the legislature passed without constitutional authority. In 
 that State 20 per cent of the voters in counties, cities, towns, 
 villages and other local districts could invoke either the 
 initiative or the referendum.^ The system continues to be 
 in force in both South Dakota and Nebraska. Of the States 
 which have since adopted the initiative and the referendum 
 in State matters — Utah in 1900, Oregon in 1902, Montana 
 in 1906, Oklahoma in 1907, Maine in 1908, Missouri in 
 1908, Arkansas in 1910, Colorado in 1910 — several have 
 also provided for the submission of laws in municipal dis- 
 tricts. The list includes Utah, Oregon (by a constitutional 
 amendment adopted in 1906), Oklahoma, Maine, Arkansas 
 and Colorado. 
 
 The entire provision in Utah's Constitution, as has been 
 explained, remains ineffective for lack of enabling legisla- 
 tion. 
 
 In Oregon, by the constitutional amendment of 1906, the 
 twin rights are reserved to the "legal voters of every munici- 
 
 < Ante, p. 309. 'Anle, pp. 308-9. 
 
 427 
 
428 THE REFERENDUM IN AMERICA 
 
 t 
 
 pality and district as to all local, special and municipal legis- 
 lation of every character in or for their respective munici- 
 palities and districts." Fifteen per cent of the voters can 
 propose a measure and ten per cent can cause a law to be 
 referred to the people in the towns and cities of Oregon.' 
 Arrangements precisely similar to those which have been 
 mlade for the State at large are at hand to govern munici- 
 palities. The duties of the Secretary of State in reference 
 to the work in the State are performed in local districts by 
 the city auditor, clerk or recorder, as the case may be; of 
 the Governor, by the mayor; of the Attorney-General, by 
 the city attorney. The arguments are printed and distrib- 
 uted to all the voters by the city, the persons offering the 
 arguments bearing a share of the expense sufficient to cover 
 the cost of the paper and printing. In short, as the law 
 declares : " It is intended to make the procedure in munic- 
 ipal legislation as nearly as practicable the same as the ini- 
 tiative and referendum procedure for measures relating to 
 the people of the State at large." * 
 
 The city of Portland has gone beyond any rival in its use 
 of the privileges in local districts in Oregon. In June, 
 1907, no less than 21 charter amendments and ordinances 
 were submitted to popular vote. In June, 1909, a vote 
 was taken on 35 measures. Of these 27 were proposed 
 by the city council, 7 by initiative petition and one by 
 referendum petition. Thirteen were approved and 22 were 
 rejected.' At the election in June, 191 1, 24 measures were 
 referred to the people — 8 by initiative petition and 2 by 
 referendum petition, while the rest were submitted by the 
 council. 
 
 The legislature of Montana, whose constitutional amend- 
 ment, adopted in 1906, makes no reference to municipal 
 districts, when determining the modus operandi of the initia- 
 tive and the referendum in State matters, devised a sys- 
 
 ' Art. IV, sec. la. * Session Laws of 1907, p. 398. 
 
 ' A record of the vote on these various measures may be found in Equity, 1909, 
 p. 98. 
 
THE LOCAL REFERENDUM 429 
 
 tem of submitting laws and proposals for laws in cities and 
 towns. Eight per cent and five per cent of the voters may 
 invoke the initiative and the referendum respectively. Or- 
 dinances for which petitions are filed need not be sent to the 
 people if the city or town council shall adopt them without 
 change. If they decline to do this there is an election. The 
 provision for the referendum excepts emergency measures. 
 Submission on initiative and referendum petition is at reg- 
 ular elections, unless the council otherwise directs or unless 
 the paper be signed by at least 15 per cent of the quahfied 
 electors, when special elections m.ay be held. The council 
 on its own motion may submit its acts to the people. ° 
 
 In counties and local districts, other than municipal cor- 
 porations, in Oklahoma the Constitution requires twice that 
 number of signatures, which suffices in the State at large. 
 Therefore, 16 per cent and 10 per cent of the voters can 
 invoke the initiative and the referendum respectively.' In 
 cities not less than 25 per cent must sign the petition for an 
 election on an ordinance, whether it be by way of the initi- 
 ative or the referendum. In the case of the initiative an 
 election can be avoided if the council shall pass the bill as 
 it comes to it from the petitioners. ' No franchise can ever 
 be granted, extended, or renewed under any circumstances 
 without the approval of the people.' In counties, cities 
 and towns arguments may be prepared and distributed as 
 in the State. Indeed, the State practice is closely followed 
 in the local district. Emergency measures, which are ex- 
 cepted from the provisions relating to the referendum, to 
 become immediately operative must be adopted by three- 
 fourths of all the members of the city council and be signed 
 by the executive officer of the district. Along with initiated 
 measures the municipal legislature may submit "competing 
 bills or resolutions " and the people may make .their choice.' 
 
 The amendment in Maine provides for the initiative and 
 the referendum in cities in the following terms: 
 
 6 Session Laws of 1907, p. 416. ' Art. V, sec. 5. » Art. XVIII, sec. 4. 
 9 Compiled Laws, 1909, p. 874. 
 
430 THE REFERENDUM IN AMERICA 
 
 "The city council of any city may establish the initiative 
 and referendum for the electors of such city in regard to its 
 municipal affairs, provided that the ordinance establishing 
 and providing the method of exercising such initiative and 
 referendum shall not take- effect until ratified by vote of a 
 majority of the electors of said city, voting thereon at a 
 municipal election; provided, however, that the legislature 
 may at any time provide a uniform method for the exercise 
 of the initiative and referendum in municipal affairs."'" 
 
 The provision relating to this subject recently added to 
 the Constitution of Arkansas contains an intimation of the 
 right of the people to vote upon their local laws if the legis- 
 lature shall develop the subject. "The legislative power of 
 this State," the amendment reads, "shall be vested in a 
 General Assembly, which shall consist of the Senate and 
 House of Representatives, but the people of each munici- 
 pality, each county and of the State reserve to themselves 
 power to propose laws," etc., etc." 
 
 The amendment adopted in 1910 in Colorado confers the 
 new power upon each city, town and municipality in the 
 State "as to all local, special, and municipal legislation of 
 every character in or for their respective municipalities." 
 Ten per cent must sign the referendum petition and 15 per 
 cent the initiative petition. 
 
 The legislature of California at the session of 191 1 (with- 
 out constitutional authority so to do) conferred the right to 
 use the initiative and the referendum upon the counties of 
 the State. Ten per cent may initiate ordinances to be sub- 
 mitted at regular and 20 per cent at special elections. The 
 referendum, except upon emergency measures passed by a 
 four-fifths vote, may be invoked by a petition signed by 20 
 per cent of the voters.'^ A general law for municipal cor- 
 porations not acting under Home-Rule charters established 
 the referendum in cities on petition of 25 per cent and the init- 
 iative on the filingof the signatures of 15 and 30 per cent of the 
 
 '» Session Laws of 1907, p. 1480. " Session Laws of 1909, p. 1238. 
 
 " Session Laws of 1911, pt. i, p. 577. 
 
THE LOCAL REFERENDUM 431 
 
 voters for general andspecialelectionsrespectively." The au- 
 thors of any initiated measure in counties or cities may submit 
 an argument not exceeding 300 words inlength, whichistobe 
 printed on the sample ballot issued for the election. Those 
 who are opposed to the measure are granted the same privilege. 
 
 A law in Ohio, also a product of the session of 191 1, 
 provides that 30 per cent of the voters of any municipal 
 corporation may initiate ordinances and cause them to be 
 submitted to the people; while 15 per cent, petitioning there- 
 for, may compel the submission of acts of the city council." 
 
 A law in Wisconsin, passed in 191 1, gives the right to 25 
 per cent of the voters in cities and counties to petition for 
 ordinances to be submitted at a special election. If but 
 15 per cent sign, the measures await a regular election. 
 Twenty per cent of the electors may invoke the referendum. 
 
 The result for those States which have adopted the initia- 
 tive and the referendum in local matters by general law may 
 be summarized as follows: initiative sefeeendum 
 
 PER CENT PER CENT 
 
 South Dakota S S 
 
 Nebraska zo 20 
 
 Oregon 15 10 
 
 Montana 8 5 
 
 Oklahoma 
 
 In counties and districts 16 10 
 
 In cities 25 25 
 
 Maine Facultative 
 
 Arkansas Facultative 
 
 Colorado IS 1° 
 
 Wisconsin 
 
 General election IS ^° 
 
 Special election 25 20 
 
 Ohio 30 IS 
 
 California (counties) 
 
 General election 10 20 
 
 Special election . . . . ^ 20 20 
 
 California (cities) 
 
 Regular election IS ^S 
 
 Special election 30 25 
 
 In five of these States — Nebraska, Montana, California, 
 Ohio and Wisconsin — as we have seen, the rights are con- 
 's Ibid., p. 359. " Act approved by Governor Harmon, June 14, igii. 
 
432 THE REFERENDUM IN AMERICA 
 
 ferred by general laws which do not rest upon constitutional 
 provision. In the other States the practice is supported by- 
 constitutional guarantee. 
 
 Coincident with this movement has come a considerable 
 development of the tendency which the legislatures have 
 shown to make charters and pass special laws, containing 
 provisions calling for a vote of the people, for cities and other 
 local districts. The conditions in these respects, however, 
 are not sufl&ciently different from those prevailing in 1900 
 to make any further study of the subject especially profitable. 
 Where the general right to exercise the initiative and the ref- 
 erendum is conferred by the legislature in this or that city, 
 or class of cities, notice can very well be taken of the event. 
 The course is now often followed in all parts of the country — 
 North, South, East and West. Unwilling, perhaps, to try the 
 experiment of direct legislation in the whole State and to 
 limit its own powers in so material a way the legislature 
 looks with favor upon the plan to introduce the people into 
 the local scheme and to put restraint upon the representa- 
 tive law-making bodies in towns and cities." No complete 
 roster of such instances can well be offered. The number is 
 large. For example, in Delaware, in 1907, the legislature 
 passed a law authorizing ten per cent of the voters of Wil- 
 mington to petition the mayor and council "asking for the 
 submission to the people of the said city of any question re- 
 lating to the affairs of the said . city for an expression of 
 opinion thereon." If any such question shall be approved 
 by a majority of those voting on the subject, and if "the 
 subject be within the corporate powers of the said ipayor 
 and council of Wilmington, or of any department or branch 
 thereof, then it shall be the duty of the city council, or of any 
 commission, or any other ofl&ci&l or oflBicials of the city of 
 Wilmington having jurisdiction therein, to adopt without un- 
 necessary delay such ordinances, rules or regulations as may 
 be necessary for putting into effect the popular will thus 
 
 '= Some of the cities whose cases are cited here are organized under commission 
 government acts of which more is to be said in a later part of this chapter. 
 
THE LOCAL REFERENDUM 433 
 
 expressed." Failure of city ofl&cials to perform this duty is 
 made a misdemeanor punishable by a fine "at the discre- 
 tion of the trial court" and by removal from ofl&ce. The 
 recreant ofl&cial furthermore is rendered ineligible to hold 
 any position in the gift of the city government for a period 
 of five years/" 
 
 Under this act five proposals were submitted to and ap- 
 proved by the voters of Wilmington by large majorities in 
 June, 1907, as follows: 
 
 1. "Shall the mayor and council memorialize the 
 next legislature of the State to enact a law enabling the 
 people of Wilmington to govern themselves, delegating to 
 the mayor and council, subject to the initiative and refer- 
 endum, as full powers of government for municipal pur- 
 poses as are vested in the Governor and legislature for 
 State purposes ? 
 
 2. "Shall the mayor and council memorialize the next 
 legislature of the State to enact a law providing for Wilming- 
 ton the system of assessment of real estate which is now in 
 operation in New York ? 
 
 3. "Shall such ordinance be passed as will require the 
 publication of a minute and accurate detailed statement of 
 the receipts and expenditures of the city ? 
 
 4. "Shall such ordinance be passed as will require the 
 bonding of assessors and collectors by reliable surety com- 
 panies and the prompt settlement of the account of said 
 assessors and collectors? 
 
 5. " Shall such ordinances, rules or regulations be adopted 
 and enforced as will require the railroad company using the 
 streets of Wilmington to make such repairs to the streets as 
 are prescribed by their franchises and to make such im- 
 provements to their cars as will afford to the public efficient 
 and convenient service?" 
 
 Upon the third proposition only has the council of 
 the city chosen to act. An ordinance" requiring a minute 
 and detailed published statement of the revenues and 
 
 " Session Laws of 1907, p. 154. 
 
434 THE REFERENDUM IN AMERICA 
 
 expenditures of the city was approved on September 14, 
 1907." 
 
 To some cities in Michigan the legislature has granted 
 charters which contain provisions on the subject of the ini- 
 tiative and the referendum. For instance, in Grand Rap- 
 ids, by charter of 1905, 12 per cent of the voters may initiate 
 charter amendments, which, if adopted by the people, are 
 then submitted for approval to the State legislature. Twelve 
 per cent of the voters may demand a referendum on ordi- 
 nances, franchise grants and contracts involving an expendi- 
 ture of more than $25,000. The people of the city have 
 several times invoked their new rights. They have peti- 
 tioned for the initiative on ordinances as well as on 
 charter amendments; for a system of popular recall of 
 elective and appointive officers, and for other demo- 
 cratic measures.'* The State legislature, however, did 
 not approve of the suggestions which were made to it by 
 the city. 
 
 In 191 1 two cities in North Carolina, Wilmington and 
 Greensboro, received from the legislature charters contain- 
 ing grants of power to use the initiative and the referendum." 
 In Wilmington a petition signed by a number of electors 
 equal to 10 per cent of the votes cast for all candidates 
 for mayor at the last preceding primary election, praying 
 for the enactment of an ordinance, can cause a bill for such 
 ordinance to be submitted to the people at the next general 
 election in the city. If the signatures of 35 per cent are 
 obtained a special election may be held on the subject. All 
 ordinances, except urgency measures, which must be passed 
 by a two-thirds vote of the council, may be submitted to 
 the people of the city. Thirty-five per cent "protesting" 
 against the enactment of an ordinance can cause its going 
 into effect to be suspended, and if the council shall not upon 
 
 " A letter from the office of the mayor says that the publication is made "in 
 book form, and not one person in a hundred would take the time to read it." 
 
 " Local Acts of Michigan for 1905, p. 798; Direct Legislation through the In- 
 itiative and the Referendum, by Herbert S. Bigelow. 
 
 ^^ Both were commission government acts. 
 
THE LOCAL REFERENDUM 435 
 
 reconsideration "entirely repeal" it, it is referred to the 
 people. 
 
 In Greensboro 10 per cent can initiate an ordinance to be 
 submitted at a general election and 25 percent at a special 
 election. Twenty-five per cent may invoke the referendum. 
 
 A number of cities in Texas are acting under charters in 
 which the initiative, the referendum and the recall find a 
 place. Dallas has been a pioneer in the development of the 
 system. By the charter of 1907, 500 voters can compel the 
 authorities of the city to submit any franchise question. 
 Five per cent of the voters can initiate any ordinance and 
 cause the submission of the question at the next regular elec- 
 tion. If 15 per cent sign the petition and the legislative 
 authority of the city — a board of commissioners — does not 
 pass the measure, for which appeal is made, without amend- 
 ment within twenty days, it is submitted to the people at a 
 special election. Fifteen per cent of the voters can within 
 a period of thirty days following the enactment of an ordi- 
 nance petition for its submission to popular vote unless it 
 be an emergency measure. Its going into effect is thereupon 
 suspended. If upon reconsideration it be not repealed an 
 election is held and a majority of those voting determine 
 whether it shall become a law.^° 
 
 In Fort Worth 15 per cent of the voters can invoke the 
 initiative or the referendum.^' The charter of the city of 
 Amarillo contains provisions similar to those of Dallas.^^ 
 In Austin 25 per cent of the voters can initiate ordinances, 
 or call for referenda upon ordinances, unless they be cer- 
 tain designated urgency measures.^^ In Beaumont 8 per 
 cent can require the submission of initiated measures at 
 a general election and 20 per cent at a special election. 
 Twenty per cent may invoke the referendum.^^ In Mar- 
 shall the percentage for both classes of petitions is 25.^= In 
 
 «> Special Laws of Texas, 1907, p. 568. 
 
 2' Special Laws of Texas, 1905, p. 265; cf. ibid., 1907, p. 127; Hid., 1909, p. 283. 
 
 ^Ibid., 1909, p. 822. ^Ihid., 1909, p. 8. 
 
 " Ibid., 1909, p. 649. 26 Ibid., 1909, p. 85. 
 
436 THE REFERENDUM IN AMERICA 
 
 a number of cities which do not have the general initiative 
 and referendum a vote of the people on franchise questions 
 is guaranteed.^' This movement in Texas, during the ses- 
 sion of 191 1, was checked by the Governor, who took a firm 
 stand in opposition to the initiative and the referendum 
 features of city charters. On February 21, 1911, he vetoed 
 the charter of Texarkana which contained provisions simi- 
 lar to those to be found in the Dallas charter of 1907. His 
 line of reasoning will be noted in the final chapter of this 
 book. 
 
 In several cities in Florida the people have been intro- 
 duced into the system in a prominent way. For example, 
 the city of Miami has both the initiative and the referendum 
 by laws passed by the legislature in 1905, 1907 and 1909. 
 Ten per cent of the registered voters may originate a meas- 
 ure which, unless it be adopted by the city council without 
 change, must be submitted at the next regular election. If 
 a number equal to 15 per cent of the registered voters sign 
 the petition a special election can be held inside of 60 days; 
 25 per cent signing can bring about a submission of the 
 measure even though "it involves the repeal or the amend- 
 ment of a measure adopted by the electorate." Similar pro- 
 vision is made for the referendum. The city council may 
 submit questions to "a vote of its constituent electots" at 
 general and special elections. Ordinances, unless an emer- 
 gency exists, do not go into effect until the lapse of 40 days. 
 If within that time 10 per cent petition for a vote of the 
 people the measure must be repealed or submitted at a reg- 
 ular or special election. If 15 per cent sign their names to 
 the petition the measure will remain void and inoperative 
 until and unless it be adopted at the election. Twenty-five 
 per cent may cause to be resubmitted a measure which has 
 once been the subject of a vote of the people of the city.^' 
 
 2«See, for instance, Houston, ibid., 1905, p. 141; Denison, ibid., 1907, p. 342; 
 Greenville, ibid., 1907, p. 271. 
 
 " Laws of Florida, 1909, pp. 527-8; cf. ibid., 1907, pp. 534-6; ibid., 1905, p. 
 =73- 
 
THE LOCAL REFERENDUM 437 
 
 In several towns and cities, such as Gainesville, Willis- 
 ton, Alachua and Archer, very liberal powers are given to 
 the people on the subject of the amendment of the charters 
 granted them by the legislature. In the act relating to 
 Gainesville it is provided: 
 
 " The existing charter and charter provisions of the city 
 of Gainesville may be at any time amended, or abolished 
 and repealed, and an entire new charter and charter pro- 
 visions, or amendments of those existing, may be adopted 
 and established, fixing and defining as fully and completely 
 as could be done by legislative enactment the powers and 
 duties of the municipality, and providing for and regulat- 
 ing the exercise of such powers and duties, or the numbers, 
 powers, duties, terms of office and manner and time of election 
 or appointment of any or all city offices may be amended and 
 changed by ordinance adopted by the affirmative vote of not 
 less than two-thirds of all the members of the city council, 
 and approved by the mayor, or passed over his veto, 
 and, at a general municipal election, approved by the affirm- 
 ative vote of a majority of the votes cast upon such propo- 
 sition." 
 
 It is stated furthermore: 
 
 "The mayor and the city council of the city, together 
 with the electors thereof, are hereby, in the manner above 
 stated, authorized from time to time to exercise the most 
 complete local self-government as to all municipal affairs, 
 and are hereby authorized, in the manner above provided, 
 to alter and amend their municipal charter, and to change 
 by increase or by limitation the powers and duties of the 
 municipality and of its officers, to the same extent that such 
 powers and duties could be changed, extended or limited by 
 act of the legislature; the only limitation upon such power 
 being that the municipality shall not acquire any rights 
 other than those properly pertaining to local municipal 
 governments." ^' 
 
 In Braidentown and St. Petersburg 25 per cent of the 
 
 ^ Laws of Florida, 1907, pp. 399-400. 
 
438 THE REFERENDUM IN AMERICA 
 
 electors can initiate local ordinances. Charter amendments 
 must be submitted to the people in Braidentown.^" 
 
 In the law by which the legislature of Nevada granted a 
 charter to the city of Reno, in 1905, is found a provision 
 authorizing the initiative. Upon the receipt of a petition 
 signed by 15 per cent of the voters in favor of any ordi- 
 nance it may be submitted to the people at the next general 
 election. If the signatures amount to a number equal to 30 
 per cent a special election may be called. The council may 
 submit an alternative proposal for the choice of the people.^" 
 
 Some charters in Massachusetts contain provisions on the 
 subject of the initiative and the referendum. In Haverhill, 
 by a law passed by the legislature in 1908, 10 per cent of 
 the voters can initiate an ordinance. If the municipal coun- 
 cil does not enact, it without change it goes to the people at 
 the next annual city election. If 25 per cent sign the peti- 
 tion and the council shall fail to pass the measure it must be 
 submitted at a special election. Twenty-five per cent of the 
 voters can call for a referendum on any ordinance which has 
 been enacted by the municipal council. If it be not reconsid- 
 ered and repealed the measure is submitted to popular vote.^' 
 The charter of the city of Gloucester, passed at the same session 
 of the legislature, contains essentially similar provisions.'^ 
 
 In Connecticut when the legislature gave a charter to the 
 city of New London it was provided that, if within fifteen 
 days after the passage of any by-law or ordinance, the mayor, 
 or five members of the common council, or thirty voters, 
 should demand a referendum on such by-law or ordinance 
 it must be submitted to the people. Approval consists 
 in an afiirmative vote of a majority of those taking part in 
 the election on the question.'' A similar provision is con- 
 tained in the charter of the city of New Britain.'* 
 
 ^ Ibid., 1909, pp. 330, 610. 
 
 '"Statutes of Nevada of 1905, pp. 128-9. 
 
 " Session Laws of Massachusetts, 1908, p. 542. 
 
 ''Ibid., p. 719. 
 
 83 Session Laws of Connecticut, 1905, chap. 329. 
 
 "Ibid., igos, chap. 411. 
 
THE LOCAL REFERENDUM 439 
 
 The initiative and the referendum have made much prog- 
 ress in the so-called Home Rule charters, i. e., in the charters 
 which are framed by conventions or boards of freeholders, 
 and are adopted either quite without reference to the legis- 
 lature or after a submission of the scheme of government to 
 that body for its confirmation and approval. In 1900, the 
 movement in favor of Home Rule was going forward rapidly. 
 Since that time the municipal reformers have run off in 
 another direction and have busied themselves in introduc- 
 ing the so-called commission system of government. Never- 
 theless, in a decade much has been done to extend the area 
 of Home Rule, both in those States earlier favoring it and 
 in new territory. Missouri, California, Washington and 
 Minnesota had adopted the system before 1900. In Mis- 
 souri the use to be made of it is not large, because of the 
 high limit set for the population in cities which may avail 
 themselves of the privilege. In Minnesota upward of a 
 dozen municipalities are governed under freeholders' char- 
 ters. In Washington in ten years the number using this 
 system has been considerably extended. In California quite 
 a score of cities have Home Rule. San Francisco, Vallejo 
 and Santa Barbara, whose charters were approved by the 
 legislature in 1899,^^ were followed in 1901 by Fresno and 
 Pasadena; in 1903, by Salinas City, Watsonville and Santa 
 Rosa; in 1905, by San Bernardino; in 1907, by Santa Mon- 
 ica, Alameda, Santa Cruz, Long Beach and Riverside; in 
 1909, by Palo Alto and Richmond. 
 
 The initiative and the referendum are in most cases feat- 
 ures of the California charters, beginning with San Fran- 
 cisco in 1899,^° and a number of those of earlier adoption 
 have been amended in this particular. The provisions are 
 various. As the system appeared in California in the char- 
 ter of San Francisco it took the simple form of an election 
 in answer to a petition signed by "a number of voters equal 
 to 15 per centum of the votes cast at the last preceding State, 
 or city and county election, asking that an ordinance to be 
 
 « Ante, p. 349. " Ante, p. 308. 
 
440 THE REFERENDUM IN AMERICA 
 
 set forth in such petition be submitted to a vote of the elec- 
 tors of the city and county." A majority of the votes cast 
 upon the ordinance was decisive. This right would seem to 
 apply to ordinances already passed by the representative 
 assembly of the city as well as to new measures. The sub- 
 mission of ordinances granting franchises was made obliga- 
 tory. This general system was followed in California until 
 Los Angeles adopted a number of charter amendments in 
 1903. In this city it was specified that the voters might 
 initiate measured in the following manner: 
 
 If 15 per cent signed a petition in favor of an ordinance 
 it should be promptly passed by the council "without alter- 
 ation," or be submitted to the people at a special election. 
 If the names of as many as 5 per cent, but not so many 
 as 15 per cent, were found on the petition the subject 
 should await the next general municipal election. Separate 
 referendum clauses stipulated that, except emergency meas- 
 ures which must have received a two-thirds vote of the 
 council, no law passed by the council should go into effect 
 for thirty days after its passage. But if 7 per cent of the 
 voters petitioned for a submission of the measure, its go- 
 ing into effect would be suspended until it should be re- 
 considered by the council and "entirely repealed." If it 
 were not repealed it should be submitted to the people at a 
 general or special election.^' 
 
 Since 1903 the charter provisions of the cities of California 
 have usually taken this form. Frequently there are special 
 provisions in relation to the lease or sale of public utilities. 
 In most cases it is necessary to submit charter amendments 
 to the people. In a number of cities the people may initi- 
 ate these amendments. To check the tendency toward too 
 much petitioning and too many elections it is sometimes 
 stipulated that a larger percentage, as for example, 25 or 
 even 40 per cent, shall be required to effect resubmission. 
 Sometimes the council is authorized to submit ordinances 
 to the people on its own motion. 
 
 "Session Laws, 1903, pp. 572-4. 
 
THE LOCAL REFERENDUM 441 
 
 The varying provisions may be generally classified as 
 follows: 
 
 San Francisco . . . 
 
 Vallejo 
 
 Fresno 
 
 Pasadena: 
 
 General election 
 Special election . 
 
 Los Angeles: 
 
 General election 
 Special election 
 
 San Diego: 
 
 General election 
 Special election . 
 
 Sacramento: 
 
 General election 
 Special election . 
 
 San Bernardino: 
 
 General election 
 Special election 
 
 Santa Monica: 
 
 General election 
 Special election . 
 
 Alameda: 
 
 General election 
 Special election . 
 
 Santa Cruz: 
 
 General election 
 Special election . 
 
 Eureka: 
 
 General election 
 Special election . 
 
 Long Beach: 
 
 General election 
 Special election . 
 
 Riverside: 
 
 General election 
 Special election . 
 
 Santa Barbara:, 
 
 General election 
 Special election . 
 
 Palo Alto: 
 
 General election 
 Special election . 
 
 PERCENTAGE 
 
 PERCENTAGE 
 
 FOR 
 
 roR 
 
 INITIATIVE 
 
 REFERENDUM 
 
 IS 
 
 IS 
 
 IS 
 
 IS 
 
 IS 
 
 IS 
 
 ro 
 
 10 
 
 30 
 
 30 
 
 5 
 
 7* 
 
 IS 
 
 7 
 
 S 
 
 7* 
 
 IS 
 
 7 
 
 10 
 
 10* 
 
 IS 
 
 10 
 
 30 
 
 30* 
 
 30 
 
 30 
 
 2S 
 
 25* 
 
 30 
 
 2S 
 
 10 
 
 10* 
 
 20 
 
 10 
 
 10 
 
 10* 
 
 2S 
 
 10 
 
 10 
 
 10* 
 
 2Q 
 
 10 
 
 10 
 
 25* 
 
 3° 
 
 2S 
 
 10 
 
 10* 
 
 IS 
 
 10 
 
 10 
 
 10* 
 
 20 
 
 10 
 
 10 
 
 10 
 
 20 
 
 20 
 
442 THE REFERENDUM IN AMERICA 
 
 PERCENTAGE PERCENTAGE 
 
 rOR FOR 
 
 INITIATIVE REFERENDUM 
 
 Berkeley: 
 
 General election 5 lo* 
 
 Special election 15 10 
 
 Richmond: 
 
 General election 10 10 
 
 Special election 25 25 
 
 * General or special election at option of council. 
 
 Missouri, California, Washington and Minnesota were 
 joined in 1902 by Colorado. At the election in November 
 of that year the people adopted a constitution permitting 
 Denver, and cities of the first and second class generally, 
 to frame their own charters. Twenty-one taxpayers are 
 elected members of a charter convention which adopts a 
 scheme of government. This is submitted to popular vote, 
 and if it is approved it becomes the charter of the city. If 
 it is rejected a new convention is chosen. The members of 
 such a body are elected on a general ticket, i. e., by the 
 method known as scrutin de liste, not by wards or districts. 
 
 To Denver, and each city adopting a charter in this man- 
 ner, the initiative and the referendum are guaranteed by 
 the Constitution. Five per cent of the quahfied electors 
 may petition the council " for any measure or charter amend- 
 ment or for a charter convention", and the proposal must be 
 referred to the people at the next general election. If the 
 petitioners number 10 per cent, submission may be made 
 at a special election. The council may submit an alterna- 
 tive proposition. In addition each charter shall provide 
 for a referendum on measures passed by the council.'* Den- 
 ver, Colorado Springs, Junction City and perhaps other 
 municipalities have availed themselves of their constitu- 
 tional privilege. 
 
 In 1906 Oregon adopted a constitutional amendment, 
 proposed by initiative petition, introducing the Home Rule 
 charter into that State. Provision is made as follows: 
 
 "The legislative assembly shall not enact, amend or repeal 
 
 " Constitution of Colorado, art. xx, sees. 4-6. 
 
THE LOCAL REFERENDUM 443 
 
 any charter or act of incorporation for any municipality, 
 city or town. The legal voters of every city and town are 
 hereby granted power to enact and amend their municipal 
 charter subject to the Constitution and criminal laws of the 
 State of Oregon." 
 
 Oklahoma entered the Union in 1907 with a similar pro- 
 vision in its Constitution. Any city containing more than 
 2,000 inhabitants "may frame a charter for its own govern- 
 ment consistent with and subject to the laws of this State." 
 The process includes the election of a board of freeholders, 
 two from each ward, who shall within 90 days prepare and 
 propose a charter which shall be then published in the news- 
 papers and submitted to the people of the city at either a gen- 
 eral or a special election. If it receive the votes of a majority 
 of those voting on the question the charter is sent to the 
 Governor " for his approval," and, it is added, " the Governor 
 shall approve the same if it shall not be in conflict with the 
 Constitution and laws of this State." It then becomes " the 
 organic law" of the city, and shall "supersede any existing 
 charter and all amendments thereof, and all ordinances in- 
 consistent with it." The legislative authority of the city 
 may at any time call an election of freeholders, and must do 
 so when 25 per cent of the number of voters participating in 
 the last preceding municipal election petition for it. The 
 people have both the initiative and the referendum on the 
 subject of charter amendments.'" 
 
 Michigan became allied with the municipal Home Rule 
 movement when it adopted its new Constitution in 1908, the 
 eighth State to favor the system. The privilege is given in 
 these terms: 
 
 "Under such general laws the electors of each city and 
 village shall have power and authority to frame, adopt and 
 amend its charter, and, through its regularly constituted 
 authority, to pass all laws and ordinances relating to its 
 municipal concerns, subject to the Constitution and general 
 laws of this State."" 
 
 " Art. xviii, sees. 3a, 3b, 4e; cf. Session Laws of 1908, p. 190. 
 '"Art. viii, sec. 21. 
 
444 THE REFERENDUM IN AMERICA 
 
 The legislature at the session of 1909 laid down rules for 
 making this provision of the Constitution effective. Cities 
 not hitherto incorporated may vote to become incorporated, 
 at the same time choosing nine "electors," or members of 
 a "charter commission." These shall convene within 10 
 days, frame a charter within 90 days and submit it to the 
 people. If the work of the commission is rejected, and 300 
 voters petition for a new charter commission it may be 
 elected and convened; if not, the old body reassembles and 
 the proceedings continue until a result which is satisfactory 
 to the people is attained. In a city earlier incorporated its 
 representative legislative body may authorize the election of 
 a charter commission; it must do so if a number of voters 
 equal to 20 per cent of those voting for the " executive ofl&cer " 
 at the last preceding election petition therefor. In such a 
 city one " elector " is chosen for each ward and three at large. 
 The work of the commission is submitted to popular vote. 
 All charter amendments must be approved by the people. 
 They can be initiated by a petition signed by 20 per cent 
 of the voters. "Every amendment to a charter before its 
 submission to the electors," the law provides, "and every 
 charter before the final adjournment of the commission 
 shall be transmitted to the Governor of the State. If he 
 shall approve it, he shall sign it; if not, he shall return the 
 charter to the commission and the amendment to the legis- 
 lative body of the city with his objections thereto, which shall 
 be spread at large on the journal of the body receiving them 
 and it shall reconsider it." If upon such reconsideration 
 two-thirds of the members elect agree to pass it the measure 
 shall again be submitted to the people, and if it be approved 
 it becomes a law, the Governor notwithstanding. Afi&rming 
 the injunction in the Constitution the legislature stipulates 
 that " no provision of any city charter shall conflict with or 
 contravene the provisions of any general law of the State." " 
 
 Similar procedure is prescribed for the adoption of village 
 charters. They, too, are framed by commissions whose 
 work is submitted to the Governor. ^^ 
 
 " Session Laws, igog, pp. 497-511. '^Ihid., p. 486. 
 
THE LOCAL REFERENDUM 445 
 
 The decade has produced little that is new in the process 
 except the provision that the charters adopted by the local 
 boards or conventions shall be submitted to the Governor. 
 Missouri, Washington, Oregon, Minnesota and Colorado, 
 expressly or by implication, require the cities to frame char- 
 ters which are not in conflict with the Constitution and laws 
 of the States, but are helpless to prevent such a conflict ex- 
 cept by appeal to the courts. In California the charters 
 are submitted to the legislature for its confirmation and rati- 
 fication. Oklahoma and Michigan require the charter com- 
 mission to submit its work to the Governor of the State. In 
 Oklahoma he must approve the charter if it is not incon- 
 sistent with general laws; in Michigan a way is provided for 
 passing it over his veto. 
 
 In an increased number of cases the legislature by general 
 or special laws, of its own motion, without constitutional 
 direction to this effect, has authorized cities to frame their 
 own charters. For example, the Wisconsin legislature in 
 1907 conferred such a privilege upon cities of the first class, 
 i. e., cities of a population in excess of 150,000. Each city 
 of this class should elect a "charter convention" made up 
 of delegates representing all political parties. "Such con- 
 vention," it is provided, "shall make a study of the needs 
 of cities of the first class with respect to charter legisla- 
 tion to the end that it shall be able to present to the next 
 legislature a measure or measures that shall confer 
 upon cities of the first class a comprehensive Home Rule 
 charter." ^ 
 
 Thus the Home Rule charter has moved forward without 
 gaining, or perhaps deserving, much increased esteem. It 
 seems to be in a relatively weaker position than it was ten 
 years ago, chiefly because of the failure to devise any suit- 
 able method of putting the locally made charter into har- 
 mony with the general system of State government. The 
 conflict which arises constantly calls for the interposition o£ 
 
 " Session Laws, 1907, p. 206. 
 
446 THE REFERENDUM IN AMERICA 
 
 the courts." In such independence there is obvious danger, 
 and the entire field of pubHc law in the separate common- 
 wealths which compose the nation is, because of the Home 
 Rule charter and kindred political devices, in unexampled 
 confusion. Nor does it seem fair to think that good order 
 can soon be re-established while the people voting at the polls 
 are looked to as the supreme aiid final authority as law- 
 givers. For the educated jurist we are substituting some 
 urgent reformer, whose defence is foimd in the fact that the 
 "people" at an election have ratified his acts. 
 
 The progress of the Home Rule charter has been checked 
 by another device for making men perfect in large cities — 
 the commission form of government, which, since its debut 
 in Galveston, Texas, in 1901, has run a rapid course. What 
 its eventual fate may be is not for any discreet chronicler to 
 prophesy. The general system has to commend it some- 
 thing which has been lacking in most of our schemes of 
 municipal government hitherto. The large city, as we know, 
 is a modern growth. Our methods of administration did 
 not keep pace with the requirements of the people residing 
 in these crowded urban communities. When we devised a 
 city charter it was drafted along the lines of the Constitu- 
 tion of the United States and of the separate States with the 
 tri-partite division of powers. The city was to be a minia- 
 ture United States — a miniature Massachusetts, New York 
 or Pennsylvania. The system was ill adapted to the use, and 
 any student of European institutions knew that sooner or 
 later America must make some approach to the standards of 
 other countries. A conviction that there must be respon- 
 sible heads charged with the great tasks of government, if 
 it was to be conducted on business-like principles, led thirty 
 years ago to a movement which bore fruit. The charter of 
 
 " Cf. "City Made Charters," by M. R. Maltbie, in Yak Review, XIII, p. 380. 
 Efforts to make the city still more free in California and to divest it almost entirely 
 of State oversight were put forth in 1902 and igo6 when the constitutional pro- 
 vision relating to Home Rule was further amended. The present section is the 
 fifth on the subject to be included in the Constitution of California. 
 
THE LOCAL REFERENDUM 447 
 
 Philadelphia in 1887, and of other cities at about the same 
 time, reflected this conviction on the part of competent 
 authorities. We could not at once make city administra- 
 tion a learned profession employing trained experts, who 
 possessed great influence, served for long periods and were 
 called from place to place because of their skill, but we could 
 extend the term of the mayor and could concentrate author- 
 ity in his hands in the belief that, by the rule of human nat- 
 ure, if responsibility were increased it would be more wisely 
 bestowed, and that if power were enlarged it would be more 
 soberly exercised. At least so much could be done without 
 violating the spirit and traditions of democracy. 
 
 The result was soon disappointing and other patentees 
 of other panaceas have come forward to claim the field for 
 their devices. The commission government men are the 
 last to appear. They have a government which is clear of 
 some of the needless confusion of the old tri-partite scheme. 
 Indeed, it abolishes the separate executive and the separate 
 legislative body and sets up instead a few commissioners, 
 usually five, who directly attack the work in hand — the 
 administration of the city's various affairs. Were it not 
 linked with the free and general popular veto, the commis- 
 sioners, if they were honest and competent men, could be 
 expected to develop city government to. some new height in 
 America, but nearly everywhere their acts and movements 
 are subject to the impulses of the voters expressed at direct 
 elections, and any valuable results will be impossible. 
 
 The " Galveston Plan," as it has been so generally denom- 
 inated ever since its adoption in 1901, took this form: 
 The Governor of the State appointed three commissioners; 
 the people of Galveston chose two more, and the five formed 
 the "Board of Commissioners of the City of Galveston." 
 Each commissioner must be over 25 years of age, a citizen 
 of the United States, and for five years preceding his appoint- 
 ment or election a resident of Galveston. He should hold 
 office for two years. One of the number was designated 
 president of the board, but was given no important power 
 
448 THE REFERENDUM IN AMERICA 
 
 not shared by his colleagues. No mayor, no council were 
 found in the scheme. The commissioners became "the 
 successors of the mayor and aldermen of the said city of 
 Galveston." The board was "vested with the power and 
 charged with the duty of making all laws or ordinances not 
 inconsistent with the Constitution and laws of this State 
 touching every object, matter and subject within the local 
 government instituted by this act." It also could appoint 
 a number of officers, including a treasurer, an attorney, a 
 recorder, etc. The salary of each commissioner, except the 
 president, was fixed at $500 per annum. The president, it 
 was specified, should receive $3,000 annually, and should 
 devote at least six hours a day to the duties of his office. 
 The work was divided. One commissioner was to be des- 
 ignated "Police and Fire Commissioner"; another "Com- 
 missioner of Streets and Public Improvements"; another 
 "Water Works and Sewerage Commissioner"; another 
 " Commissioner of Finance and Revenue," The president 
 was to be the "executive officer" of the city with the duty of 
 seeing that all the laws were enforced. "All legislative 
 sessions" of the board, "whether regular or called," 
 were to be "open to the public." Regular meetings 
 were to be held once a week, and special meetings could 
 be called by the president or by any two members of the 
 board.*' 
 
 This general plan has been somewhat modified as the 
 system of commission government has spread. • Sometimes, 
 indeed usually, the presiding officer is called mayor instead 
 of president, and the board of commissioners is called the 
 council, in order not to introduce changes of too grave a 
 kind. Sometimes the board is composed of only three; 
 sometimes of a greater number than five commissioners. 
 In some cases the terms of all the commissioners expire to- 
 gether; in others, at different times. The tendency has been 
 in the direction of making the salaries of the commission- 
 ers more nearly equal to that of the mayor or president, 
 
 " Special Laws of Texas, 1901, p. 104. 
 
THE LOCAL REFERENDUM 449 
 
 and to require them to devote their entire time to their 
 municipal duties. 
 
 From Galveston the system extended to other cities in 
 Texas, and it seems now to be at the height of its vogue. 
 In November, 1909, it was reported that fifty cities in the 
 United States were governed by commission, and a year 
 later the number was about one hundred. Since that time 
 many other municipalities have voted to adopt the system." 
 In Iowa, Kansas, North Dakota, South Dakota, New Jer- 
 sey, Texas, Mississippi, Wyoming, Minnesota, Illinois, 
 Wisconsin, South Carolina, Louisiana, Kentucky and prob- 
 ably elsewhere, by very recent action, there are general 
 laws under which cities may be incorporated according to 
 the commission plan, and in many other commonwealths 
 the legislature has by special act given the same form of 
 government to individual cities. There is, of course, noth- 
 ing to prevent Home Rule cities from adopting this instead 
 of some other type of government, and in several instances, 
 in California, Oklahoma, Minnesota, Colorado and Wash- 
 ington, they have done so. 
 
 In many if not most of these commission government laws 
 the initiative, the referendum and the recall of officers by 
 petition and election, when they are adjudged recreant to 
 their duties, are characteristic and, in the view of the prin- 
 cipal advocates of the system, essential features. Govern- 
 ment by commission consists, therefore, at this time in 
 government by five men who may make laws and regula- 
 tions, subject to the advice of those who are disposed to 
 occupy themselves in circulating petitions, as long as their 
 course meets with the approval of these or a similar body 
 of petitioners. 
 
 The general law in Iowa calls for the election of a com- 
 mission—one member called a mayor and the other four 
 councilmen — who serve for two years. All franchises, as is 
 usual in commission cities, are the subject of a compulsory 
 vote of the people. Twenty-five per cent of the voters 
 
 « Proceedings of Buffalo Conference for Good City Government, p. 246. 
 
450 THE REFERENDUM IN AMERICA 
 
 may initiate an ordinance which, if it be not passed by the 
 council, without change, is referred to the people at a special 
 election. If ten per cent have signed the petition the meas- 
 ure awaits a general election. Twenty-five per cent of the 
 voters may "protest" against a law passed by the council, 
 unless it be an emergency measure. It must then be re- 
 considered and "entirely repealed," or else be submitted to 
 popular vote.^' 
 
 Under the general law in Kansas, which provides for 
 city government by five commissioners in cities of the first 
 class, 25 per cent may initiate ordinances to be submitted 
 at special elections and 10 per cent at regular elections.^' 
 In cities of the second class, 40 per cent may initiate ordi- 
 nances for special elections and 10 per cent for general elec- 
 tions. Twenty-five per cent may demand a referendum 
 upon measures which have been passed by the board of 
 commissioners, unless they fall within the class known as 
 emergency measures.^' 
 
 In North Dakota there are no general provisions in the 
 commission government act relating to the initiative or the 
 referendum.™ 
 
 In South Dakota, however (the Constitution requiring 
 this in reference to all cities), five per cent of the voters may 
 petition and cause an election to be held on the subject of 
 any law, ordinance or resolution passed by the commission- 
 ers, except emergency measures. Five per cent may in like 
 manner propose local laws." 
 
 General powers were in 1909 conferred by the legislature 
 of Minnesota upon the Home Rule cities of that State, 
 authorizing them to introduce into their charters provisions 
 in regard to the initiative and the referendum.'*^ 
 
 In Mississippi three or five men may serve as an "alder- 
 
 " Session Laws of 1907, chap. 48. 
 
 " General Statutes, p. 287; Laws of 1907, chap. 114. 
 
 *^ General Statutes, pp. -361-2; Laws of 1909, chap. 82. 
 
 "> Session Laws of 1907, p. 38. 
 
 '■' Session Laws of 1907, p. 96. 
 
 ^''Revised Laws of Minnesota, Supplement, 1909, p. 116. 
 
THE LOCAL REFERENDUM 451 
 
 manic body," one of whom shall be called the mayor. The 
 people may vote to adopt or discontinue the form of govern- 
 ment as in other States, and upon franchise questions, but 
 popular participation in larger ways is not provided for.^^ 
 
 The South Carolina law provides for the initiation of meas- 
 ures by 20 per cent of the voters. The board of commis- 
 sioners or council must either pass the proposed ordinance 
 within two weeks after the petition is filed or call a special 
 election, at which it shall be submitted to popular vote. If 
 the council shall fail to act within the prescribed fortnight 
 it becomes "a valid ordinance" of the city without an elec- 
 tion. The referendum may be invoked by the like filing of 
 a petition signed by 20 per cent of the voters.^* 
 
 In Louisiana, where commissions of three and five per- 
 sons were authorized by the legislature of 1910, ordinances 
 may be proposed by ^^ per cent of the voters. The refer- 
 endum can be invoked within ten days after the passage of 
 a law by the council by 33 per cent of the voters. If it is 
 not reconsidered and "entirely repealed" it must be sub- 
 mitted to popular vote.^^ 
 
 In Kentucky ordinances may be "protested" by 25 per 
 cent of the voters. They must then be reconsidered and 
 repealed by the board of commissioners, or be submitted to 
 popular vote. Twenty-five per cent can also initiate meas- 
 ures which must be passed by the board, or else be referred 
 to the people for their adoption or rejection.^" 
 
 In Illinois, which adopted the plan in 1910 for all villages 
 and cities of a population not exceeding 200,000, 25 per 
 cent of the voters may petition for an ordinance, which, if 
 it be not passed by the commissioners without alteration, 
 must be submitted to the people at once. If the signatures 
 do not amount to 25 per cent but reach a total of 10 per 
 cent the question awaits a regular election. Within a period 
 of thirty days 10 per cent of the voters may petition for a ref- 
 erendum upon any measure which has been passed by the 
 
 " Session Laws, 1908, p. loi. ^* Session Laws of 1910, p. 523 
 
 =5 Session Laws of 1910, p. 512. ^^ Session Laws of 1910, p. 163. 
 
452 THE REFERENDUM IN AMERICA 
 
 commissioners. If it be not "entirely repealed" it is sub- 
 mitted to the people. Exception is made for emergency 
 measures. ^^ 
 
 In Wisconsin, by the law of 1909, establishing the com- 
 mission form of government, where a mayor and two coun- 
 cilmen, a board of three members, direct municipal affairs, 
 20 per cent of the voters can invoke the referendum on all 
 ordinances, unless they be of an urgent character.^' At 
 the session of 1911 the legislature amended the commission 
 government law in order to introduce the initiative and the 
 recall. Twenty-five per cent of the voters may cause a 
 special election to be held upon any proposed ordinance; 
 when the petition is signed by 15 per cent the measure may 
 be referred to the people of the city at a regular election. 
 
 The commission act of Wyoming was passed at the ses- 
 sion of 191 1. It provides that 25 per cent may initiate 
 ordinances to be submitted at general or special elections. 
 Thirty-five per cent can demand the referendum on acts of 
 the council. ^° 
 
 Under the New Jersey law 15 per cent of the voters may 
 cause a special election to be held on any proposed ordi- 
 nance; if only 10 per cent sign the petition the measure 
 awaits a general election. Fifteen per cent of the voters 
 can demand a referendum on measures passed by the board 
 of commissioners. °° 
 
 Galveston, Houston, Dallas, Des Moines, Cedar Rapids 
 and Leavenworth have been models for the advocates of 
 this form of government for several years, while Keokuk, 
 Memphis, Fort Worth, Wichita; Haverhill and Gloucester, 
 in Massachusetts; and Tacoma are also pointed to by the 
 reformers with satisfaction. The development is active 
 principally in the Western and Southern States, where what 
 has come to be called "Progressive" is understood and ap- 
 preciated. The movement is so closely bound up with the 
 
 " Session Laws of 1910, p. 12. 
 
 •* Session Laws of 1909, chap. 448. m Session Laws of 1911, p. ii8. 
 
 " Bill approved by Governor Woodrow Wilson, April 25, ign. 
 
THE LOCAL REFERENDUM 453 
 
 initiative, the referendum and the recall that its spread is 
 due for the most part to the industry of the zealots who 
 are working to overthrow our entire representative system. 
 They have done much to achieve their ends; they will likely 
 do more before their progress is arrested, and we are called 
 upon to record a return to the paths our fathers trod. 
 
CHAPTER XVIII 
 
 THE RECALL 
 
 To complete the work of destruction which the direct 
 government agitators have in hand, nothing was needed but 
 the right to organize a party to turn duly designated officials 
 out of place and to set up others in their stead. If the law- 
 making power is to be taken out of the hands of representa- 
 tives with the excuse that the people have exhibited no talent 
 for electing suitable men to represent them, why may not 
 the other two main departments of our government be as- 
 sailed in the same spirit? There is no inconsistency in the 
 step: it is merely a question whether our system shall be 
 quietly surrendered under the assault, or whether we shall 
 defend our sober traditions and our conservative principles. 
 If the legislature is to go, then, why not the Governor and 
 the courts also? One is as much entitled to reverence as 
 another, but because of the final character of the action of 
 the judiciary we have looked upon it with especial venera- 
 tion. What has been said in its praise and defence could 
 not easily be recorded for preservation in one place. It has 
 been regarded as the bulwark of our republican institutions. 
 Trusting other agents less, we have burdened our judges 
 with many extra-judicial duties, as, for instance, in the lay- 
 ing out of roads and the granting of licenses to sell liquor. 
 Slighting and disrespectful reference to the judge is gener- 
 ally deplored. He is a man in whom learning is presumed 
 and who has usually possessed it. His robes of office are 
 to be kept spotless. He is the court of last appeal. We 
 made him appointive so that he would be above the reach 
 of the people. When he became, in some communities, 
 an officer elected at the polls we gave him a long term and 
 
 454 
 
THE RECALL 455 
 
 he was assured of a continuance in his place. All parties, 
 boss and reformer, acquiesced in the view that he should be 
 without risk of disturbance in order that justice might be 
 administered as carefully, exactly and fearlessly as humanity 
 will allow. On the frontiers of our civilization it was the 
 community without judges or respect for law of any kind 
 which received and merited our reproach. When mobs 
 shot negroes, hanged horse-thieves and stage-robbers and 
 lynched the despoilers of homes without trial, and often 
 upon the merest suspicion, fortified by racial or other hates, 
 it was a state of society deserving of general contempt. The 
 proper agents of law were set up; they were terrorized and 
 were unable at times to perform their duties, but the con- 
 quest over disorder was gained and the area of civilization 
 was enlarged. 
 
 Now all that has been achieved is the subject of attack. 
 The independent makers, administrators, interpreters and 
 enforcers of the law are to become the puppets of the peo- 
 ple, to obey their changing whims or else to surrender their 
 places to those who shall be more willing to follow popular 
 direction. And why is this done? Because, it is said, of 
 the corruption of legislators, governors and judges, because 
 of the inability of the people to choose from among their 
 number honest and intelligent men to represent them in the 
 halls of government. The people have failed once; they 
 are to be given the opportunity to fail again in a larger sphere 
 in a more menacing way. 
 
 The "recall," as it has come to be designated, not be- 
 cause an oflScer is recalled to his duties on account of some 
 merit which he may have possessed, but because he is taken 
 from his seat and returned to the ranks of citizenship, made 
 its appearance in the local field in Los Angeles in 1903. 
 From what particular source it emanated is not positively 
 known. That it came from the same socialistic group of 
 agitators who have been working in behalf of direct leg- 
 islation, and who first made themselves prominent while 
 the Farmers' Alliance movement was flourishing, is certain. 
 
4S6 THE REFERENDUM IN AMERICA 
 
 Some of their leaders were studying the experience of Swit- 
 zerland, and there side by side with the initiative and the 
 referendum, in some of the cantons, they found this device 
 for getting rid of unacceptable incumbents of office.^ That 
 a method should be at hand for removing an ofl&cer who 
 proves himself grossly unfitted for the trust which has been 
 confided in him is a well-known axiom of government. That 
 it should not be easy to bring such proceedings is also axio- 
 matic, and with the object of serving the necessary end, un- 
 der safeguard, impeachment trials were instituted. How 
 different regular trial of this kind is from the signing of peti- 
 tions by some faction or party among the people needs not 
 to be said. The recall is another thing; it assumes another 
 form. The provision in the charter of Los Angeles, which 
 was adopted by the people of the city on December r, 1902, 
 and approved by the legislature of the State of California 
 on January 30, 1903, reads as follows: 
 
 " The holder of any elective ofl&ce may be removed at any 
 time by the electors qualified to vote for a successor of such 
 mcumbent. The procedure to effect the removal of an in- 
 cumbent of an elective ofl[ice shall be as follows : A petition 
 signed by electors entitled to vote for a successor to the in- 
 cumbent sought to be removed equal in number to at least 
 25 per centum of the entire vote for all candidates for the 
 ofl&ce, the incumbent of which is sought to be removed, cast 
 at the last preceding general municipal election, demanding 
 an election of a successor of the person sought to be removed, 
 shall be filed with the city clerk; provided that the petition 
 sent to the council shall contain a general statement of the 
 grounds for which the removal is sought. The signatures 
 to the petition need not all be appended to one paper, but 
 each signer shall add to his signature his place of residence, 
 giving the street and number. One of the signers of each 
 such paper shall make oath before an ofificer competent to 
 administer oaths that the statements therein made are true, 
 and that each signature to the paper appended is the genu- 
 
 ' Yale Review, XVIII, pp. 206-9. 
 
THE RECALL 457 
 
 ine signature of the person whose name purports to be there- 
 unto subscribed. Within ten days from the date of filing, 
 such petition the city cleric shall examine and from the great 
 register ascertain whether or not said petition is signed by 
 the requisite number of qualified electors, and, if necessary, 
 the council shall allow him extra help for that purpose, and 
 he shall attach to said petition his certificate showing the 
 result of said examination. If by the clerk's certificate the 
 petition is shown to be insufficient it may be amended with- 
 in lo days from the date of said certificate. The clerk 
 shall within lo days after such amendment make like exam- 
 ination of the amended petition, and if his certificate shall 
 show the same to be insufficient, it shall be returned to the 
 person filing the same without prejudice, however, to the 
 filing of a new petition to the same effect. If the petition 
 shall be found to be sufficient, the clerk shall submit the 
 same to the council without delay. If the petition shall be 
 found to be sufficient the city council shall order and fix a 
 date for holding the said election not less than 30 days, nor 
 more than 40 days, from the date of the clerk's certificate 
 to the council that a sufficient petition is filed. 
 
 "The city council shall make, or cause to be made, pub- 
 lication of notice and all arrangements for holding of such 
 election; and the same shall be conducted, returned and 
 the result thereof declared in all respects as are other city 
 elections. The successor of any officer so removed shall 
 hold office during the unexpired term of his predecessor. 
 Any person sought to be removed may be a candidate to 
 succeed himself and unless he requests otherwise in writing 
 the clerk shall place his name on the official ballot without 
 nomination. In any such removal election the candidate 
 receiving the highest number of votes shall be declared 
 elected. At such election, if some other person than the 
 incumbent shall receive the highest number of votes the 
 incumbent shall thereupon be deemed removed from the 
 office upon qualification of his successor. In case the party 
 who receives the highest number of votes should fail to qual- 
 
4S8 THE REFERENDUM IN AMERICA 
 
 ify within lo days after receiving notification of election, 
 the office shall be deemed vacant. If the incumbent re- 
 ceives the highest number of votes he shall continue in 
 office." 
 
 This provision, with some modification, has come to be 
 included in the charters of most of the cities enjoying Home 
 Rule in California. San Diego followed Los Angeles in 
 1905, requiring the same percentage of names on the peti- 
 tions — 25. San Bernardino requires 30 per cent; Pasa- 
 dena, 25; Fresno, 51; Santa Monica, 40; Alameda, 25; 
 Santa Cruz, 25; Long Beach, 40; Riverside, 25; Santa, 
 Barbara, 25; Palo Alto, 20; Berkeley, 20; Richmond, 25. 
 
 In some of these cities, as in Alameda and Santa Cruz, 
 the right of recall is made to include appointive as well as 
 elective officers. "The term of each office, elective or ap- 
 pointive," says the charter, "shall be limited to the good 
 behaviour of the holder thereof." It is plausibly asserted in 
 defence of the recall of elective officers that, since they were 
 chosen by the people, it should be possible for the people 
 to remove them if their course is unsatisfactory. They 
 are but agents; when their acts are not to the liking of their 
 principals they can be dismissed. Election to perform cer- 
 tain well-defined duties for a term is in the nature of a con- 
 tract between the employer and the employed which the 
 employer may violate if he reserves this right; but what ba- 
 sis of reason is there for the recall by the people of officers in 
 whose choice they have directly had no hand? This is a 
 problem for the ratiocinative mind of a direct-government 
 philosopher. It will doubtless be defended on the broad 
 ground that the people are the source of all government and 
 that they can do no wrong.^ 
 
 By a general law passed by the legislature of California 
 in 191 1, in which the initiative and the referendum were 
 made to apply to counties, the right to recall " the holder of 
 any elective office of any county" was granted to the people. 
 
 'For Alameda, see California Session Laws, 1907, pp. 1101-2; Santa Cruz, 
 ibid., 1155-6. 
 
THE RECALL 459 
 
 The petition must be signed by 20 per cent of the voters." 
 By a general law in reference to municipal corporations in 
 the State (not acting under freeholders' charters) 25 per cent 
 can petition for the removal of "the holder of any elective 
 office" in such municipalities.'' 
 
 From California the recall has spread into adjoining 
 ground. From the city it has extended to the State. It 
 now finds a place in the Constitution of Oregon, and will 
 soon be the subject of popular vote in Nevada, California 
 (to cover State as well as city matters), Wisconsin, Idaho, 
 Washington and other commonwealths. Arizona has offered 
 herself at the doors of Congress with a constitution in which 
 the recall finds a place in one of its most radical forms. 
 
 The constitutional amendment in Oregon, which was in- 
 itiated by the people on petition and submitted to, and 
 adopted by, them at the election in June, 1908, calls for the 
 removal of every elective officer in the State " from constable 
 to governor,"' including the judges of the courts. Twenty- 
 five per cent of the voters in the district for justice of the 
 Supreme Court can cause an election to be held on the sub- 
 ject of dismissal. If the officer against whom the petition 
 is aimed does not resign within 5 days after it is filed, the 
 proceedings begin. A special election is ordered within 20 
 days. The ballot contains in not more than 200 words the 
 reasons for demanding the recall, and within similar com- 
 pass "the officer's justification of his course in office." He 
 may be a candidate for re-election; there may be other 
 nominees. Whoever receives the highest number of votes 
 shall serve "for the remainder of the term." It is stipu- 
 lated that no petition shall be circulated against any officer 
 until he has been in place for, six months, "save and except 
 that it may be filed against a senator or representative in the 
 legislative assembly at any time after 5 days from the be- 
 ginning of the first session after his election." It is further 
 stipulated that " after one such petition and special election 
 
 ' Session Laws, 1911, p. 577. • Ibid., p. 359. 
 
 ' A phrase in use by the direct-government men. 
 
46o THE REFERENDUM IN AMERICA 
 
 no further recall petition shall be filed against the same ofScer 
 during the term for which he was elected unless such further 
 petitioners shall first pay into the public treasury, which has 
 paid such special election expenses, the whole amount of its 
 expenses for the preceding special election." " 
 
 The pending amendment in Nevada is framed on quite 
 similar lines. The petition must be signed by 25 per cent 
 of the voters. "Every public of&cer" in the State is sub- 
 ject "to recall" from his office "by the qualified electors 
 who vote in the State or in the county, district or munici- 
 pality from which he was elected." Judicial as well as 
 administrative and legislative officers fall within the pur- 
 view of this measure.' 
 
 The California amendment which, together with an in- 
 itiative and referendum amendment, was passed at the ses- 
 sion of 191 1, and is to be made the subject of a special elec- 
 tion in October, 1911, provides for the recall of all elective 
 officers including judges of the courts, and in local districts 
 as well as in the State at large. The petition must be signed 
 by electors "equal in number to at least 12 per cent of the 
 entire vote cast at the last preceding election for all candi- 
 dates for the office which the incumbent sought to be re- 
 moved occupies," except in the case of "State officers" 
 elected in "any political subdivision of the State," when the 
 petition must have the signatures of 20 per cent of the voters. 
 Two hundred words may be employed in explaining on the 
 ballot the reasons for recall, while the officer assailed may 
 respond in 300 words. More elaborate processes than have 
 hitherto been invented for the exercise of this new power will 
 be inserted in the Constitution of California if this amend- 
 ment shall be approved by the people of the State.' 
 
 The provisions in the Arizona Constitution, which have 
 brought the question to Washington and made it an issue 
 
 ' Art. ii, sec. i8, of Constitution. 
 
 ' Session Laws of 1909, p. 345. The amendment was repassed in igii and is 
 to be submitted to the people in 1912. 
 ' Senate Con. Amendment No. 23. 
 
THE RECALL 461 
 
 in a field as broad as the republic, follow Oregon's pattern, 
 and they have been devised, as are most of the provisions 
 regarding the initiative, the referendum and the recall, by^ 
 a small junta of men who are pursuing this subject with the 
 faith of the proselytes of some religion. Twenty-five per 
 cent may cause a recall election to be held in the State or 
 in any district. Each party to the controversy may develop 
 his case in 200 words. The petitioners must pay the cost 
 of a second election to displace the same officer.' 
 
 The Wisconsin amendment, which has passed one legis- 
 lature and awaits the action of the next before it can be re- 
 ferred to the people, briefly declares: 
 
 "The legislature shall provide for the removal by recall 
 from office by the qualified electors of the electoral district 
 in which any officer is elected of every public officer in the 
 State of Wisconsin holding an elective office, except judicial 
 officers." 
 
 The pending Idaho amendment also leaves the subject to 
 the legislature, and in mandatory terms as in Wisconsin. It 
 is provided that " every public officer in the State of Idaho, 
 excepting the judicial officers," shall be "subject to recall 
 by the legal voters of the State or of the electoral district 
 from which he is elected." The legislature is commanded— 
 it " shall pass the necessary laws to carry this provision into 
 effect." ^° 
 
 A great impetus has been given to this particular move- 
 ment by making the recall a feature of the commission form 
 of government in cities. Nearly everywhere, like the ini- 
 tiative and the referendum, it goes hand in hand with the 
 commission charter. The general laws of Iowa, Kansas, 
 Minnesota, New Jersey, Wyoming, South Carolina, South 
 Dakota, Wisconsin, Louisiana and Illinois provide for the 
 recall in cities. 
 
 In Iowa, for instance, one of the first States to treat this 
 subject in a general act, a number equal to 25 per cent of 
 
 ' Art. viii. 
 
 '" House Joint Resolution No. 19, passed March, 1911. 
 
462 THE REFERENDUM IN AMERICA 
 
 those who voted for mayor at the last election may petition 
 for the recall of "the holder of any elective office." The 
 city clerk within 10 days examines the signatures. The 
 case is then submitted to the council, i. e., the five commis- 
 sioners, and a date is fixed for the election "not less than 30 
 days or more than 40 days from the date of the clerk's cer- 
 tificate to the council that a sufficient petition is filed." The 
 person whom the petitioners seek to remove may be a can- 
 didate to succeed himself. If another is chosen the incum- 
 bent is displaced, and the candidate receiving the highest 
 number of votes serves for the unexpired term.^' 
 
 In Illinois the petition to the clerk of the city which must 
 be signed by 75 per cent of the voters reads as foUows: 
 
 "We, the undersigned electors of the city or village of 
 (name of city or village), entitled to vote for a successor to 
 {name of person), an incumbent of the office of (name of 
 office), in said city or village, do hereby demand an election 
 of a successor to said (name of person), for the following 
 reasons, to wit: (Here state reasons in not more than 200 
 words.) 
 
 Name 
 
 House Number (if any) 
 
 Street 
 
 Date of Signing." 
 
 The clerk certifies the signatures within 10 days, the coun- 
 cil orders an election in not less than 30 nor more than 40 
 days, unless the official assailed chooses to resign within 
 5 days. after the filing of the petition, in which case the 
 council fills the vacant place. It is provided that "no re- 
 call or removal petition shall be filed against any officer until 
 he has actually held office for at least twelve months." An 
 officer who has been recalled shall not for a year subsequently 
 be appointed or elected to any office in the city.'^ 
 
 The mayor and councilmen are alone subject to recall in 
 
 " Session Laws, 1907, chap. 48. '2 Session Laws of 1910, pp. 31-34. 
 
THE RECALL 463 
 
 South Carolina," which is the case also in South Dakota," 
 and in Wisconsin by the terms of the law of 1911. 
 
 The States having general commission government acts 
 may be classified on the subject of percentages for recall 
 petitions as follows: 
 
 PER CENT 
 
 Iowa 25 
 
 Illinois yc 
 
 Minnesota Home Rule. To be fixed by the boards 
 
 of freeholders. 
 
 Kansas ... 25 
 
 South Carolina 20 
 
 Wisconsin One-fourth of those voting for Gover- 
 nor at the last election. 
 
 Louisiana 33 . 
 
 New Jersey 25 
 
 South Dakota 15 
 
 Wyoming 25 
 
 By a general law of the legislature of 191 1 in Wisconsin, 
 applying to non-commission government cities, it is pro- 
 vided that " any city officer holding an elective office, whether 
 by election or appointment, may be removed at any time 
 after he has actually held office for six months." The peti- 
 tion must be signed by electors "equal in number to at least 
 one-third of the entire vote cast in such city for all candidates 
 for Governor at the last preceding general election." 
 
 The legislature of the State of Washington in 1907, by a 
 general law relating to cities of the second class, provided 
 for the recall of councilmen in such cities. The petition 
 for an election must be signed by three-fifths of the qualified 
 voters of the ward represented by the officer whose dis- 
 placement is sought." 
 
 The recall in cities incorporated by special law is far from 
 unusual. It is mostly met with in charters granting mu- 
 nicipalities the commission form of government. The new 
 charter of the city of Greensboro, North Carolina, specifies 
 that any elective officer may be removed by a majority vote 
 
 " Session Laws, 1910, p. 53. 
 
 " Session Laws, 1907, p. 100. " Session Laws, 1907, p. 629. 
 
464 THE REFERENDUM IN AMERICA 
 
 after the filing of a petition signed by 25 per cent of the 
 voters.'" The petition in Wilmington, which received its 
 charter from the same legislature, must be signed by 35 per 
 cent." 
 
 Some cities of Texas which have the recall require peti- 
 tions to be signed as follows: 
 
 PER CENT 
 
 Dallas 35 " 
 
 Fort Worth 20" 
 
 Amarillo 35™ 
 
 Austin 25" 
 
 Corpus Christi One-third of those voting for mayor 
 
 at the last election.'^ 
 
 Marshall 35^ 
 
 • Palestine . . 252? 
 
 In Denison only the mayor may be recalled. There it 
 is provided by charter: "Whenever the mayor of the city 
 of Denison, Texas, shall fail in the performance of his duties 
 through neglect, misconduct or inability, said mayor shall 
 be removed from office." Twenty per cent of the voters 
 may sign a petition and call for an election of a "suitable 
 mayor," ^^ The ballot takes this or a similar form: 
 
 "For the Removal of 
 
 From the Ofl&ce of 
 
 For Removal 
 Against Removal." 
 (The voter crossing out one or the other line in indica- 
 tion of his choice.) ^° 
 
 In the charter granted to the city of Lewiston, in Idaho, in 
 
 1907, it was provided that 25 per cent of the voters might 
 
 petition for an election to remove "any elective ofiicer." ^' 
 
 In Haverhill, Massachusetts, organized in 1908, under the 
 
 " Sec. 52. " Sec. 20 of charter. 
 
 " Special Laws, 1907, p. 56S. " Ihid., 127. 
 
 *> Ibid., 822. » Special Laws, 1909, p. 8. 
 
 22 7ijU, p. 333. '^ Ibid., p. go. 
 
 2' Ibid., p. 579. 2i> Special Laws, 1907, p. 342. 
 
 2' As, for instance, in Corpus Christi, Special Laws, 1909, p. 333. 
 
 2' Session Laws of 1907, pp. 358-60. 
 
THE RECALL 465 
 
 commission form of government, 25 per cent of the voters 
 may call for an election to remove any elective ofi&cer.^ 
 In the new charter of Lynn a similar provision appears.^ 
 
 In Gardiner, Maine, under a special act establishing 
 commission government in that city, there is the recall on 
 petition of 25 per cent of the voters.^" 
 
 A number of Home Rule cities in Washington, as, for 
 example, Seattle and Tacoma, and in Colorado and Okla- 
 homa, as well as in California, have provisions in their char- 
 ters authorizing the recall. 
 
 The instances of this kind multiply at each session of 
 the legislatures in States in which special laws for cities 
 are not forbidden, and will likely continue to do so until a 
 turn in the present political tide sets in. What has been the 
 harvest ? Practical experience in this field is not yet large, 
 but the recall has had use in a number of cases. Los Ange- 
 les, which was the first community to authorize the system, 
 is believed to have made the first application of the principle 
 on September 16, 1904. A member of the common council 
 of that city, J. P. Davenport by name, was made the subject 
 of serious charges. Some of them concerned an alleged 
 alliance with the "liquor interests" and corruption attend- 
 ing the location or enlargement of a slaughter-house in a 
 residential district. The effective complaint, however, was 
 that involving him in a contract for city printing given to the 
 Times, a non-union newspaper, since the object of a das- 
 tardly dynamite plot resulting in the loss of many lives. 
 The typographical union circulated the petitions. The whole 
 city was brought into the campaign, although but one ward 
 voted on the question. The opposition united upon a Dr. 
 Houghton, who ousted Davenport by a vote of 2,338 to 
 1,584 after a warm contest.'' 
 
 Los Angeles was again a pioneer in 1909. It was the 
 first city to institute recall proceedings against a mayor. 
 
 s* Session Laws of Massachusetts, 1908, chap. S74- 
 
 » Ibid., 1910, p. 592. '° Session Laws of Maine, 1911, p. 295. 
 
 » New York Independenl, vol. 58, p. 69. 
 
466 THE REFERENDUM IN AMERICA 
 
 TKe victim was one Arthur C. Harper, who, it was said, had 
 been elected by and was the representative of the "wide-open- 
 town element and the political rings." ^^ The newspapers 
 had for some time employed themselves in making sensa- 
 tional exposures on the subject of social vice. The mayor, 
 it was alleged, did not enforce the laws. He and various 
 delinquent police officers were arraigned by the grand-jury. 
 The chief of police who, it was asserted, was in collusion 
 with the mayor was appointed by that ofi&cer to be the head 
 of the board of public works, which during the next few 
 years would superintend the expenditure of some thirty 
 millions of dollars. The storm broke. Petitions were pre- 
 pared and put into the hands of men and wdmen, commit- 
 tees, associations and clubs. In a fortnight enough were 
 obtained for an election, and the opposition nominated 
 George Alexander to enter the lists against Harper. The 
 election was fixed for March 26. The campaign grew so 
 warm that on March 9 the head of the board of public 
 works resigned. The mayor, after endeavoring vainly to 
 stay the current, left his office two days later and departed 
 the city. The council filled his place by a temporary ap- 
 pointment to cover the intervening period of eleven days. 
 The field was open for Mr. Alexander, who was elected by 
 a large majority over a Socialist candidate.^' 
 
 Early in 191 1 the mayors of the two principal cities of 
 Washington were removed by virtue of the recall provisions 
 in their charters. The mayor of Seattle, Hiram C. Gill, 
 had been in office less than a year, but on an unfortunate day 
 he appointed a man named Wappenstein to be his chief of 
 police. The women of Washington had just been enfran- 
 chised, and they, concluding that Gill and Wappenstein were 
 in league with vice — even charging that the privileges were 
 being sold for the profit of public officers — petitioned for an 
 election to recall the mayor. A reform organization called the 
 Public Welfare League nominated George W. Billing, and 
 on February 7 the issue was joined. Gill had been elected 
 
 '2 Ibid., 66, p. 861. » Outlook, 91, p. 571. 
 
THE RECALL 467 
 
 by a plurality of about 3,300 votes. His total vote was about 
 18,000. By the enfranchisement of the women the number 
 of registered voters within a year had been nearly doubled. 
 Gill now received some 25,000 votes and the chief oppos- 
 ing candidate. Billing, 31,000. Only a few months passed 
 before petitions were circulated to oust Billing, and 
 at this writing an election to recall him from office is in 
 prospect. 
 
 On April 19, 191 1, the mayor of Tacoma, A. V. Fawcett, 
 was recalled, and at subsequent elections the four commis- 
 sioners were compelled to run the gantlet of public opinion. 
 A Welfare League was organized in the city, which enjoys 
 both Home Rule and a commission form of government. 
 The mayor and the commissioners were charged with "gross 
 incompetency," alliance with the "saloons" and with other 
 offences, the women joining actively in the campaign. The 
 vote to recall the mayor was barely decisive. At the first 
 election, there being three candidates, no one had a majority. 
 At the second election Fawcett received some 10,000 votes; 
 his opponent, W. W. Seymour, the successful candidate, 
 less than 1,000 more. The four commissioners for whose 
 recall the petitioners asked were Nicholas Lawson, Com- 
 missioner of Light and Water; Ray Freeland, Commis- 
 sioner of Finance; L. W. Roys, Commissioner of Public 
 Safety; and Owen Woods, Commissioner of Public Works. 
 Two elections were necessary in the case of these officers 
 also. Two of the four commissioners were recalled, Law- 
 son by a majority of 363 and Roys by a majority of 3,689. 
 Woods and Freeland were allowed to keep their places. 
 They were returned by majorities of 6,145 ^^^ 2,447 '^^- 
 spectively. 
 
 In Oregon, where all is fluid and the perfectionists are 
 at work endeavoring to make themselves the citizens of a 
 new Arcadia, the use of the recall is becoming frequent. 
 The mayor of Junction City was recalled in 1909 by a vote 
 of four to one "for not enforcing the laws." " The second 
 
 " W. S. U'Ren; see also Equity, XII, p. 36. 
 
468 THE REFERENDUM IN AMERICA 
 
 application of the right was made in a smaller city, Esta- 
 cada, and the proceedings resulted in the people voting out 
 of office all their elective agents except the recorder. The 
 grounds for the recall were as follows: 
 
 "First. — They have conducted and managed the business 
 affairs of the city in an unsatisfactory manner, diverting the 
 different city funds and applying them unlawfully to the 
 payment of certain debts not in the class for which said fund 
 was created. 
 
 " Second. — They have repudiated the city's indebtedness 
 by their refusal to provide for and pay the interest on such 
 bonds. 
 
 "Third. — They have and still continue to spend the city's 
 funds in a manner not approved of by your petitioners. 
 
 " Fourth. — By their acts and arbitrary manner they have 
 conducted the city in such a manner that your petitioners 
 believe they will involve the city in costly litigation." 
 
 A recall petition was filed against the mayor of Ashland, 
 but he received a vote of confidence and retained his office. 
 A member of the city council of Portland was recalled at the 
 regular municipal election in June, 191 1, because of alleged 
 devotion to private interests. 
 
 In 191 1 a petition was circulated to displace the county 
 Judge, two county commissioners and the county assessor in 
 Lane County, Oregon, the signatures of the farmers being 
 obtained while they were at the county town celebrating the 
 Fourth of July. The petitions indicate what are considered 
 to be proper grounds for the recall of such officers. That 
 directed against the judge and the commissioners alleged 
 of each officer: 
 
 "That he is incompetent to perform the duties of judge 
 or commissioner of Lane County, Oregon. 
 
 "That he has wilfully ignored the express choice of the 
 majority of the taxpayers in the several road districts as to 
 the appointment of supervisors, and has wilfully and know- 
 ingly named unsuitable persons to fill these offices in many 
 instances. 
 
THE RECALL 469 
 
 "That he has squandered over $125,000 during the year 
 1910 in unscientific road construction with scarcely any 
 permanent. beneficial results to the citizens of Lane County, 
 Oregon. 
 
 "That he has utterly ignored the expressed wishes of the 
 taxpayers of Lane County, demanding that road construc- 
 tion be put upon a permanent scientific basis by issuing 
 bonds and eliminating from the present assessments the 
 item of road construction, thus reducing the present levy 
 from ten mills to six mills." 
 
 The petition against the assessor contained these allega- 
 tions: 
 
 "That he is incompetent to perform the duties of assessor 
 of Lane County, Oregon. 
 
 "That he has made an unequal, unjust and unfair assess- 
 ment of taxable property of said county. 
 
 "That he has wilfully failed, infused and neglected to 
 assess the property of said county at its true cash value, tak- 
 ing into consideration the improvements on the land and in 
 the surrounding country, the worth of soil, its convenience 
 to transportation lines, public roads and other local advan- 
 tages of a similar or different kind, and taking into consid- 
 eration its earning power. 
 
 "That in numerous instances properties similarly sit- 
 uated and of equal value have been assessed by him at dif- 
 ferent and unequal rates of value. 
 
 "That he has cast aspersions upon the motives of tax- 
 payers who called a public meeting to protest the fairness of 
 his assessments and has endeavored in the public prints to 
 intimidate them." ^^ 
 
 In 191 1 a petition was put into circulation in Roseburg, 
 in Douglas County, asking for the recall of Circuit Judge 
 Coke, who presided at a murder trial in a manner unsatis- 
 factory to a number of citizens. It is charged that he was 
 unduly lenient in his view of the law and the facts, wherefore 
 the prisoner was acquitted. This result being not to the 
 
 « Portland Daily Journal, July 4, 1911. 
 
470 THE REFERENDUM IN AMERICA 
 
 liking of the petitioners, they ask that an election shall be 
 held to determine whether or not he shall continue to occupy 
 his of&ce. The petitioners allege that in the trial of this 
 case Judge Coke had "demonstrated his gross incompetency 
 and unfairness by giving to the jury in said case, at the in- 
 stance and request of the defendant's attorneys, unfair and 
 erroneous instructions as to the law, intended to bias the 
 jury in favor of the defendant and secure an acquittal, and 
 did so bias the jury and cause an acquittal, while at the 
 same time he (the said John S. Coke) failed and refused 
 to give the jury fair and legal instructions which were asked 
 by the prosecution, all of which contributed and brought 
 about the defeat of the ends of justice." ^° 
 
 Soon there will be a large body of experience upon which 
 to make up a judgment in regard to the recall. The exer- 
 cise of such a right will be infectious, and we may be quite 
 certain that it will be indulged in frequently with the result, 
 of necessity, of reducing the influence and subtracting from 
 the honor of public ofl&ce. It is a blow aimed at the dignity 
 of all public life. 
 
 '* Whether the movement to displace Judge Coke shall succeed or not it may 
 likely do so in some other case under very similar circumstances. The success or 
 failure of the proceedings in no way affects the truth of these observations in the 
 Philadelphia Press (July 6, 1911): 
 
 "The position of judge is certainly not a happy one in Oregon if he must try 
 every case in a way to please both sides. How can he do it ? Unless he accom- 
 plishes the impossible and satisfies both plaintiff and defendant, both the prosecu- 
 tion and the defence, he creates a party against himself and that party, whichever 
 it may be, need not be very strong to agitate for his recall and compel the judge 
 to defend his seat and perhaps to turn him out of it. 
 
 "The recall as applied to judges is an absurd, impractical and foolish proposi- 
 tion. It sins grievously against the plainest dictates of sound public policy. A 
 judge who must consider the immediate effect of his decision on his popularity, 
 who knows that he remains on the bench only 30 long as his decisions find favor 
 with the majority, is in no position to administer justice impartially, without fear 
 or favor. Such a precarious hold on his office would tend to make the judge timid 
 and hesitating. The bench would quickly deteriorate under such a tenure. Ore- 
 gon may experiment with it if she will, but the system flies in the face of reason and 
 does violence to common-sense." 
 
 President Taft's pronouncement on the subject of the recall of judges in his 
 veto of the Arizona statehood bill was made after this chapter was written and 
 in print. 
 
CHAPTER XIX 
 
 THE REFERENDUM VS. THE REPRESENTATIVE SYSTEM 
 
 The representative system faces a grave crisis in its his- 
 tory, and it will soon be, if it is not now, necessary for those 
 who have understanding and appreciation of the spirit of 
 this form of government to come forward in its defence. 
 The task which John Adams and others performed in the 
 eighteenth century needs to be re-performed. The phil- 
 osophical move nent led by J. J. Rousseau, which had for 
 its natural consequence the upheavals in the latter part of 
 the eighteenth century, was a mere vague and fanciful appeal 
 for a new political order, in which the people would receive 
 back their own from unauthorized agents who had got into 
 control of the machinery of government and maintained 
 themselves there through the complexity of the political 
 organization. It was a protest aimed against monarchical 
 forms, as these were the forms which then prevailed nearly 
 everywhere. Although primary assemblies were spoken of 
 as the ideals in government, it was not supposed, even by 
 Rousseau himself, that Paris or France could be ruled by a 
 town meeting, and a ballot system of the modern type had 
 not yet been devised. The people were still to act through 
 representatives, albeit as a necessary evil from which it was 
 thought there could be no escape, at any rate in populous 
 countries of a large territorial area. The result was a de- 
 mand for a representative system with the elimination of 
 kings, governors and indeed all magistrates who were not 
 directly elected by the people and were not directly respon- 
 sible to them. The struggle which followed was between 
 those who wished to organize this representative system 
 after two different plans. The radical wing declared its 
 
 471 
 
472 THE REFERENDUM IN AMERICA 
 
 preference for a government by an unchecked convention of 
 a single house which was to be legislature, executive and 
 judiciary combined in one. The other wing, led so ably in 
 this country by John Adams, aimed to give the new govern- 
 ment a more complex form so that it might withstand the 
 first gust and effectually perform the great tasks set for it to 
 do, while at the same time owing the necessary responsi- 
 bility to the people. That this contest was a bitter and pro- 
 longed one, I think I have shown in this essay, in some early 
 chapters from the constitutional history of Pennsylvania 
 where the struggle centred on this continent. England, un- 
 moved by the storms which have shaken France, has gone 
 forward by a gradual process developing a type of govern- 
 ment greatly admired in all parts of the world. Our own 
 government, especially as a Federal model, has attracted 
 much attention, and in one form or another the representa- 
 tive system, with the main features of a congress or parlia- 
 ment elected by the people, and a president or king with a 
 cabinet which is usually responsible to the parliament, has 
 spread over the civilized earth, being incorporated in all the 
 leading Constitutions of Europe, America, Africa, Austral- 
 asia and even in Japan. 
 
 Although parliamentary government has been so widely 
 introduced and has now so generally come to supersede 
 other forms of government in which the people are not di- 
 rectly represented in a legislature, the system is not without 
 its weaknesses. These have manifested themselves in a 
 great variety of ways. They have pressed themselves on 
 the attention of thinking men throughout a long period of 
 years in many different lands, and it is natural that some cor- 
 rective should be eagerly sought. It is very generally under- 
 stood that any system in which the people are not represented 
 in a parliament, and by which they must take and obey such 
 laws as others make for them, is quite distasteful to most 
 modern populations. If such tractable peoples can be found, 
 and they are willing peaceably to be governed by a few men, 
 it is not to be denied that the state may be so organized as 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 473 
 
 very much to advance the social interests of the inhabi- 
 tants. In recent years the progress made by the Russian 
 nation and by the Germans, among whom there are still 
 traces of arbitrary power adhering to the crown, has been 
 very great. A government which anticipates the people's 
 wants and provides for them can do a great deal to advance 
 civilization in one way or another. A great modern social- 
 istic engine, it can carry roads and railways into wildernesses, 
 erect telegraph and telephone lines, build schools, markets, 
 hospitals, post-offices, and even employ the people in fac- 
 tories, mines and on public works, so as to create an appear- 
 ance of prosperity and thrift. Whether it is not better for 
 a race to work out its own destiny without aids of this kind 
 remains an open question which social philosophers will 
 long continue to discuss. It is a fact, however, that when a 
 people have once come to know and to appreciate the privi- 
 lege of being able freely to advance without the aids or inter- 
 ferences of a power which is set up over their heads it is 
 hard to get them again to submit -with good grace to any 
 body of rulers or bureaucrats, no matter how much the lat- 
 ter may protest that they are working solely in the public 
 ' interest. In the presence of great modern standing armies 
 under strict organization, revolutionary sentiments may be 
 suppressed and the "state" may pursue its course more or 
 less independent of public opinion. These, however, are 
 not the conditions which should naturally rule in a society, 
 and a representative system of popular government is to- 
 day a factor which must be reckoned with nearly everywhere. 
 The evils which have developed in this system are not 
 small ones. Dangerous groups in parliaments, such as 
 those which gather under the name "socialist," the advo- 
 cates of unsound forms of currency, the thoughtless popu- 
 lar leaders who clamor for a war of conquest in order to 
 please the multitude and ride back on a wave of public en- 
 thusiasm to another term of office, the selfish and the dis- 
 honest who would use the government to enrich themselves 
 personally and the class which they represent, the "boss" 
 
474 THE REFERENDUM IN AMERICA 
 
 and his men who are the curse of the system in America — 
 all these are manifestations which cause the reflective to 
 pause and tremble for the future of representative govern- 
 ment. If a legislature chosen by the people is to develop 
 traits like these there are plainly very great evils at hand for 
 which we are justified in seeking some drastic remedy. If 
 the people cannot select from among themselves delegates 
 who are above a desire to overturn the present social order, 
 or to perpetuate themselves in ofiice, or to steal from the 
 state and from society, or to cheapen the currency, or to pre- 
 cipitate a war for the sake of the excitement and exhilara- 
 tion that it yields to the lowest classes of the inhabitants, 
 parliamentary government must indeed have passed through 
 the day of its greatest glory and usefulness. 
 
 These evils, however, are evils of the people's own making. 
 Such abominations are an accurate reflection of their own 
 minds and morals, but many, doubting this, declare the 
 system to be at fault and wish to see it changed so that the 
 people may have a more direct part in political procedure.' 
 
 The boss system is undeniably very bad. It is extra- 
 constitutional in every sense of the word. Its disgraceful 
 features have been emphasized for a long time by politicians 
 and the writers in magazines and newspapers. They have 
 
 ' Similar suggestions are made in other countries. The principal authorities 
 on this subject are as follows: 
 
 J. M. Vincent, State and Federal Government of Switzerland, Baltimore, 1891 ; 
 A. L. Lowell, Governments and Parties in Continental Europe, 1896, Vol. II, pp. 
 240 et seq., and "The Referendum in Switzerland and America," Atlantic Monthly 
 for April, 1894, p. 517; E. L. Godkin, Some Unforeseen Tendencies of Democracy, 
 1898, pp. 138 et seq.; James Bryce, The American Commonwealth, chap, xxxix; 
 Woodrow Wilson, The State, pp. 489-90; J. R. Commons, Proportional Repre- 
 sentation, 1896, pp. 186 etseq.; G. Bradford, The Lesson of Popular Government, 
 Vol. II, pp. 189 et seq.; A. B. Hart, "Vox Populi in Switzerland," New York Na- 
 tion, Vol. 59, p. 193; New York Nation, Vol. 58, p. 206; W. F. Dodd, Revision 
 and Amendment of State Constitutions; C. S. Lobingier, The People's Law; Adams 
 and Cunningham, The Swiss Confederation, London, 1889; W. E. H. Lecky, 
 Democracy and Liberty, London, 1896, Vol. I, pp. 277 et seq.; Maine on Popular 
 Government, 1886, pp. 41, 68, 95-6; E. A. Freeman, Growth of the English Con- 
 stitution, chap. I, for an account of the Swiss Landsgeraeinde; C. B. Roylance- 
 Kent in MacMillan's Magazine, Vol. 69, p. 15; National Review for FebruEuy, 
 March and April, 1894; London Spectator, Vol. 72, p. 188, and Vol. 73, pp. 234, 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 475 
 
 raised a hue and cry about " corruption." The wrong seems 
 greater, possibly, than it really is. The politicians advocate 
 "reform for votes"; the editors, "reform for circulation."^ 
 Still more potent factors in the situation are the socialistic 
 classes, greatly increased in strength in the past few years. 
 Millions who do not answer to the socialist name are touched 
 with the philosophy. They have listened to and have been 
 influenced to a greater or less extent by the propaganda. 
 They raise up and dignify the "plain people," the "common 
 people"; they secretly or openly revile the rich man and 
 the corporation who, it is alleged, control legislatures, 
 governors and courts. Both of the great political parties 
 are at present in some degree dominated by these influ- 
 ences, and the movement has probably not yet run its 
 allotted course. 
 
 A variety of corrective movements have been instituted. 
 The people have been brought into the system in a larger 
 way with a view to applying a remedy; in the first place, 
 through the development of the powers of the convention 
 which submits its constitutions to popular vote. These 
 constitutions have come to include a large body of provisions 
 and specifications respecting so many various subjects, and 
 restrict the legislature to such brief and infrequent sessions 
 that the field of its activity was long ago very sensibly lim- 
 ited. The tendency to restrict the legislature's power for 
 
 ■ 
 
 494; speech by A. J. Balfour reported in the London Times of Feb. 5, 1894; A. 
 V. Dicey, "The Defence of the Union," Contemporary Review, Vol. 61, p. 314; 
 Le Referendum en Suisse par Simon Deploige, avocat, precede d'une lettre sur le 
 Referendum en Belgique par J. Van Den Heuvel, Brussels, 1892 — English trans- 
 lation published in London in 1898; J. Signorel, Etude de legislation comparle 
 sur le referendum legislatif, Paris, 1896, a work of 470 pages "crowned" by the 
 Faculty de Droit of Paris in 1894; Borgeaud, ElaUissement et Rhiision des Con- 
 stitutions, Paris, 1893; Saleilles, in Revue du Droit Public, September-October, 
 1894, pp. 345 etseq.; Numa Droz, Etudes et Portraits Poliiiques, Geneva, 1895, and 
 "The Referendum in Switzerland," in the Contemporary Review of March, 1895; 
 E. de Laveleye, Le Gouvemement dans le Democralie, Vol. II, pp. 146 et seq.; Bor- 
 geaud, Histoire du Plebiscite, 1887; A. H. F. Lefroy, The Law of Legislative Power 
 in Canada, Toronto, 1898, pp. 244-59, 49S-96; Miss Lilian Tomn, "The Refer- 
 endum in Australia and New Zealand," Contemporary Review, Vol. 72, p. 242. 
 s A phrase used by the late Richard Watson Gilder. 
 
476 THE REFERENDUM IN AMERICA 
 
 mischief by a long constitution, which states specifically 
 what that body may and may not do, reached its height in 
 Louisiana in 1898 with a document containing not less than 
 43,000 words. Oklahoma's Constitution in 1907 nearly ap- 
 proached Louisiana's in length with about 40,000 words. 
 The new Virginia Constitution of 1902 contains some 33,000 
 words. The movement to curb the legislature in another 
 way by reducing the number and limiting the length of 
 the sessions has also advanced. From the biennial session 
 Mississippi in 1890 advanced to a quadrennial session with 
 a special session limited to 30 days in the interval, two years 
 after the adjournment of the regular session.^ Alabama 
 followed Mississippi's example in 1901. The legislature 
 may meet once in four years, and then for not more than 
 50 days.* The Governor may call special sessions, but in 
 these " there shall be no legislation upon subjects other than 
 those designated in the proclamation." ' 
 
 The movement in this direction has probably been checked 
 by the general attack on the representative system through 
 the initiative, the referendum and the recall. The newer 
 Constitutions indicate a return to normal length, and in the 
 amendment which was initiated and defended, though in- 
 effectively, by the People's Power League in Oregon annual 
 sessions were again proposed. With this change of tend- 
 ency, however, comes no improvement in the position of the 
 constitutional contention. The distinction between con- 
 stitutional law — law which has something near permanent 
 form — and statutory law had already quite disappeared in 
 most of the American States. The convention's noble and 
 unique place in our political scheme is now seriously men- 
 aced on a new side. 
 
 The people entered the system by another avenue with 
 the direct vote upon constitutional amendments. These 
 have grown more numerous as the Constitutions have 
 changed their character, and the legislatures have become 
 weak and timid, preferring to refer what they fear to enact. 
 
 3 Ante, p. 80. < Sec. 48. ' Sec. 76. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM , 477 
 
 The method of amendment has been much simplified. The 
 convention as the author of amendments has practically 
 vanished from our scheme. It was superseded by the legis- 
 lature. The amount of amending and altering of State Con- 
 stitutions which went forward earlier was large, but sincd 
 the process has been made easy the volume has greatly in- 
 creased. The approval of a proposed amendment by two 
 successive legislatures before it was submitted to the people, 
 and passage by a larger vote than a simple majority in the 
 legislature or by the people, were devices intended to em- 
 phasize the fact that the Constitution was something apart 
 from other things within reach of the law-maker. The 
 removal of these restraints has had the effect of putting our 
 whole constitutional system in flux. As if this were not 
 enough the referendum States are now quite generally giv- 
 ing the people the right to originate constitutional amend- 
 ments as well as statutes. Any charlatan, if he can obtain 
 enough signers to his petition, can bring forward a plan 
 for changing the Constitution. Amendments in such States 
 as Oregon and Missouri now go to the people through two 
 avenues — popular petition and the legislature. The tinker 
 is always busy, and the fruit of his activity is a deranged body 
 of provisions — a confused, inconsistent code which bears 
 no relation, except in the extremes of its variance, to the 
 Constitution of a more estimable period in American his- 
 tory. Mr. Dodd, in his work on the revision and amend- 
 ment of Constitutions, finds that no less than 472 constitu- 
 tional questions, nearly all amendments, were submitted to 
 the people in the various States in the decade ending with 
 the year 1908.° 
 
 ' Of the situation in Oregon Charles H.Carey, of the Portland bar, recently said: 
 " In Oregon we now permit the Constitution to be amended at will. Formerly it 
 required not only the majority of all of the electors (meaning the majority of the 
 greatest number participating in the election) to change the Constitution, but the 
 proposed amendment was required to be agreed to by a majority of all of the mem- 
 bers elected to each house in two successive legislative assemblies; now a bare 
 majority of those voting on the measure at any general election is sufficient to carry 
 the proposition, though but a minority vote on it. Formerly two years and a half 
 
478 THE REFERENDUM IN AMERICA 
 
 Practically the same methods are to be employed here- 
 after in a number of States for enacting both statutes and 
 constitutional amendments. Mr. Dodd observes, in con- 
 firmation of a prediction made several years ago by Mr. A. 
 Lawrence Lowell, that the people have now not only gained 
 an ascendency over the legislature but also over the judicial 
 department of the representative government. A statutory 
 measure initiated by petition is perchance declared to be un- 
 constitutional, i. e., in conflict with some provision of the 
 State Constitution. The court may spare itself the trouble. 
 It is now wholly at the mercy of the electorate, which can 
 either recast its measure in the form of a constitutional 
 amendment — since one subject is as fit to go into the Con- 
 stitution as another — or else enact an amendment denying in 
 general terms the power of the court to reverse the action of 
 the people.^ In one more particular, therefore, is democ- 
 racy being released from the checks which were established 
 for it. The courts go with the legislature and the constitu- 
 tional convention, which has created them both, as a great 
 independent power, is itself in danger of disappearing from 
 our political scheme. 
 
 Along a third line — the first being the vote upon whole Con- 
 stitutions and the second the vote upon constitutional amend- 
 ments — have the people been brought in to modify the rep- 
 resentative system. Restricted as they have been to a con- 
 stantly narrowing field of activity, it is yet provided that the 
 legislatures shall submit to the popular vote a number of 
 matters, such as measures to borrow money on the State's 
 credit, banking acts and bills to remove State capitals. In 
 
 in time at the least and the deliberations of four legislative groups, besides the 
 vote of the majority of the people, was the requisite; novp in three months' time 
 an amendment, perhaps prepared in a secret manner by a single individual, sub- 
 mitted practically without opportunity for debate, certainly without opportunity 
 for pruning, polishing or enlarging, and generally not even read by the voter, may 
 be adopted by a mere minority of the electors. I say that this condition imposes 
 new and grave responsibilities upon our citizens. Let them beware lest in seeking 
 greater flexibility in the fundamental law of the State they throw away the precious 
 heritage of their liberties." — Galbreath, Initiative and Referendum, pp. 47-48. 
 ' Dodd, op. cit., pp. 251-8; Lowell, Governments and Parlies, II, pp. 296-7. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 479 
 
 one State, South Dakota, in 1898, the right of the people to 
 vote upon all kinds of statutory legislation following peti- 
 tion was established. They were authorized by constitu- 
 tional amendment to propose laws as well as to pass upon 
 measures coming from their representatives, the initiative 
 and the referendum of Switzerland introduced under those 
 names. In a few years the movement has extended to include 
 Utah, Oregon, Nevada, Montana, Oklahoma, Maine, Mis- 
 souri, Arkansas and Colorado, and other States promise 
 very soon to give the voters the general power of enacting 
 laws of their own devising and of vetoing laws made by their 
 representatives. 
 
 A fourth avenue entered by the people is that opened to 
 them by the legislature, both with and without constitu- 
 tional guarantee, in relation to local government acts and 
 ordinances. There has been a very great extension of di- 
 rect popular power in cities, towns and other local districts 
 within a few years. 
 
 In one way 01 another, therefore, the tendency to place 
 responsibility upon the shoulders of new agents has gone 
 forward until the books on American government will soon 
 have to be rewritten. 
 
 The constitutional side of the question calls for careful 
 consideration. It is certain that if no special authoriza- 
 tion to submit a subject to the citizens is contained in the 
 Constitution the legislature of the State is without the power 
 to call for a referendum on general State laws. To the 
 legislature the people have delegated the law-making power, 
 and it is not competent for it to re.-delegate its authority to 
 any 'other body, not even to pass it back again to the people 
 themselves. This is a well-established principle in Amer- 
 ican public law. 
 
 On the other hand, respecting acts which relate to the 
 management of the people's common affairs in the local 
 political districts, the legislature is held to have more ex- 
 tensive powers. It may and does submit, without specific 
 authorization derived from the State Constitution, laws es- 
 
48o THE REFERENDUM IN AMERICA 
 
 tablishing the boundaries of cities, towns, counties, etc., 
 fixing local capitals and seats of government, levying taxes 
 and contracting loans for local purposes, exercising the 
 police power with reference to the liquor trafific and the 
 running at large of live-stock, and in relation to many other 
 different subjects. In this case the courts conceive that the 
 legislature does not delegate its authority as a law-maker, 
 and distinctions are drawn between laws to apply to the 
 whole State and to be voted on by the people of the whole 
 State, and laws applying to and submitted in the separate 
 local subdivisions of the State. 
 
 There is one limitation here which it is worth while to 
 observe and it is this : that it is not competent for the legis- 
 lature at its pleasure to treat subjects of State and local 
 legislation as if they were interchangeable. The legislature 
 of Massachusetts in 1894 asked the justices of the Supreme 
 Court of that State for their opinion upon two important 
 questions, as follows: 
 
 " (i) Is it constitutional in an act granting to women the 
 right to vote in town and city elections to provide that such 
 act shall take effect throughout the commonwealth upon its 
 acceptance by a majority vote of the voters of the whole 
 commonwealth ? 
 
 "(2) Is it constitutional to provide in such act that it 
 shall take effect in a city or town upon its acceptance by a 
 majority of the voters of such city or town?" 
 
 In this opinion a majority of the justices recognized that 
 a law applying to the whole State referred in this manner to 
 popular vote would in general be unconstitutional as a re- 
 delegation of power, while, on the contrary, a law rela'ting 
 to a local district would usually be held to be constitutional. 
 Nevertheless the subject of the local law must be one that 
 ■ lends itself properly to local treatment. Changing the con- 
 ditions upon which citizens shall exercise the franchise is 
 not a subject of this kind. Such a proposition could not 
 be submitted in local districts, the adoption of the law being 
 made optional with the people in their separate communi- 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 481 
 
 ties. The justices, therefore, answered both questions in 
 the negative. 
 
 The courts have made use of two main lines of argument 
 in justification of the submission of laws to popular vote in 
 local districts. In the first place it is argued that a legislat- 
 ure may pass a law contingent upon the happening of a 
 future event, or the fulfilment of a specified condition, e. g., 
 the arrival of a certain future date when the law is to go into 
 effect, or the performance of some act by other parties or 
 individuals. This condition, it is conceived, may also be a 
 favorable vote of the people. Of this legal theory much has 
 been made in many States, throughout a long series of im- 
 portant decisions, and it finds some support in several lead- 
 ing Federal cases.* If such a condition may be an affirma- 
 tive vote of the people of a city or county one is impelled to 
 ask why it may not as well be a vote of the people of a State, 
 in which case, however, the argument seems in general to 
 have won no favor in the courts. In the face of such odd 
 distinctions no other impression is created by a study of the 
 various judicial opinions bearing on this subject than the 
 existence of a belief that a limit must be set somewhere to 
 a practice which in the end may carry us a perilous distance 
 away from the principles of representative government. 
 For this reason the courts have seemed willing to accept the 
 contingency theory in the one case while they have rejected 
 it in the other. 
 
 As for the second argument urged in defence of the refer- 
 endum on local government acts, it is developed from the 
 fact that the legislature is in possession of extensive powers 
 over municipalities and the local political subdivisions of the 
 State. This theory appears to rest on a more substantial 
 basis. The city, the county and the other local govern- 
 mental districts are the creations of the State through its 
 agent the legislature. The legislature may do with them 
 very much as it likes except as it has been limited in plain 
 
 ' Cf. Cargo of the Brig Aurora v. United States, 7 Cranch, 382; Field v. Clark, 
 143 U. S., 649. 
 
482 THE REFERENDUM IN AMERICA 
 
 terms by the State Consitution. If it is desired that the city 
 shall be governed by one person, or a committee of persons, 
 it is undoubtedly its right to make such a rule and to enforce 
 it. City, county and town affairs are administered in obedi- 
 ence to laws and in accord with principles which are very 
 diverse. The legislature certainly does not go outside its 
 constitutional bounds when it passes an act respecting local 
 government which is to be submitted to a vote of the people. 
 Legally it is as competent for it to put the responsibility 
 for the management of local affairs on the shoulders of the 
 people as a whole, as upon a mayor, a board of aldermen, 
 a commission or any other local agency. It is argued, too, 
 that it is expedient for the legislature to submit many local 
 questions to popular vote, those for instance upon which the 
 people are likely to disagree such as financial proposals and 
 laws for the prohibition of the liquor trade. If rules are to 
 be established by a distant authority for a local district it 
 is in the highest sense desirable that there should be an 
 assurance of the acquiescence of the people in them. This 
 acquiescence is the more likely if the citizens have been 
 allowed to vote on the subject by way of the referendum. 
 
 It is, of course, to be understood that the local government 
 in its turn, through its representative legislature — city coun- 
 cil, village trustees, etc — may not submit its own by-laws ad 
 libitum except upon authority expressly derived from the 
 State (through the legislature or the convention). This 
 would be a re-delegation of power for which there could be 
 no legal justification. The municipal corporation or other 
 local political district is a derivative creation. When it is 
 assigned a task it can no more pass it on to another body, as 
 for instance to the people, than can the legislature itself. 
 The general rule that the legislature may not re-delegate 
 the law-making power, with the well-recognized exception to 
 the rule that the submission of local government acts to pop- 
 ular vote is no such re-delegation of authority on whatever 
 grounds the courts may seek to justify it, is firmly grounded 
 in the American practice. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 483 
 
 It is not unlikely, however, that some attempts may be 
 made to modify this rule under the political pressure which 
 is being brought to bear upon the courts by those laboring to 
 overthrow the representative system. Recent opinions in- 
 dicate some turning away from the old paths. The presence 
 of the initiative and the referendum in a general form as an 
 issue before the courts has led and will lead to new argu- 
 ments, and in all probability to new conclusions. A strange 
 feature suddenly admitted into a system of government will 
 be welcomed or repelled, according as it is liked or disliked 
 by those who are called upon to express judgment concern- 
 ing it. 
 
 That there has been and may be some division of opinion 
 on the two points, (i) that general State laws may not be 
 submitted to the people without constitutional authority, 
 and (2) that local acts submitted in local districts do not 
 fall within the prohibition, is emphasized by the Supreme 
 Courts of Texas and Wisconsin. Each court has taken a 
 position on the weaker side. The Texas decision of 1911, 
 Ex parte Famsworth,° arose from the initiative and ref- 
 erendum clauses in the city charter of Dallas. The court 
 gave no attention to the theory respecting the large powers 
 possessed by the legislature over the municipality, or of the 
 contingency theory which has so often been used to justify 
 the submission of ordinances to the people in local districts. 
 It is true that the question at issue did not concern the ref- 
 erence of one law or class of laws, but a general grant to in- 
 itiate and finally pass upon all legislation of whatever kind 
 within the municipality. The court evidently concluded that 
 this was going too far, and supported by a good deal of prec- 
 edent — Texas being a State which earlier occupied a radi- 
 cal position in denial of the right to re-delegate legislative 
 power — plainly declared that the method was. inadmissible. 
 This is a government, it said, of a division and distribution 
 of powers. It is a representative democracy in contradis- 
 tinction to a social or pure democracy on the one hand, 
 
 » 13s S. W. Reporter, 535. 
 
484 THE REFERENDUM IN AMERICA 
 
 and government by minority on the other. To transfer 
 the enactment of laws to the people is "directly subversive 
 of our constitutional form of government, and can only be 
 upheld when expressly authorized by some provisions to 
 be found in the Constitution itself." Continuing, the court 
 said: "If the legislature may authorize referendum, then 
 the result of such referendum would or could suspend legis- 
 lative acts, or even the Constitution itself. This is not to be 
 entertained. The legislature only may suspend laws by 
 virtue of . . . the Constitution, but it cannot suspend the 
 Constitution, nor can it authorize any other department of the 
 government, municipal or State, to suspend any law. . . . 
 To hold that a law could be suspended by the referendum or 
 enacted by the referendum would or might easily result in 
 the deprivation of our citizenship of life, liberty or property 
 without due process of law. . . . Such a proceeding would 
 condemn, without charges or specifications, without a hear- 
 ing or the forms of a trial, in the absence of evidence, with- 
 out a jury or even without a court to be exercised only by 
 the secret inquisition of the ballot-box. . . . The courts 
 were ordained for the purpose of the trial of causes, award- 
 ing to the citizenship tribunals in which their matters may 
 be tried and adjusted. Referendum refuses a hearing. It 
 takes the place of the constituted judiciary and tries the 
 rights of property through the ballot-box. By this means 
 every officer in the State from governor to constable may 
 be ousted from office and declared incompetent or corrupt 
 without charges, evidence or trial. . . . Ours is a country of 
 law, and whenever a man is affected in his life, liberty or 
 property he has the right to resort to some legal tribunal 
 where those matters can be honestly and fairly adjudi- 
 cated." 
 
 Governor Colquitt, of Texas, on February 21, 191 1, in 
 vetoing a bill granting to the city of Texarkana a charter 
 containing the initiative, referendum and recall features, 
 followed the ruling of the Supreme Court. He said: "Ac- 
 cording to my conception of our system of government the 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 485 
 
 initiative, referendum and recall are repugnant to the prin- 
 ciples underlying it." Direct democracy was known to the 
 founders of our government; they rejected its mischiefs. 
 The three devices strike "at the very vitality of our repub- 
 lican system." They are "socialistic," and make a "com- 
 plete departure from the system of government established 
 by the fathers of the republic." The recall as a method of 
 removing corrupt men from office is "even more dangerous." 
 A public officer "charged with corruption is entitled to a 
 trial on the charges against him." The recall tries and con- 
 victs him "contrary to the provisions of the Constitution." " 
 
 The Wisconsin opinion, State v. Frear, deals directly with 
 the case of the legislature referring a general State law to the 
 people without specific authority for the act. In 1903 a 
 direct primary law was passed with this condition: 
 
 "The question whether the foregoing provisions of this 
 act shall take effect, and be in force, shall be submitted to 
 the people of this State in the manner provided by law for 
 the submission of an amendment to the Constitution at the 
 next general election to be held in November, 1904. If ap- 
 proved by a majority of the votes cast upon that question 
 it shall go into effect, and be in force from and after such 
 ratification by the people; otherwise it shall not take effect 
 or be in force." ^* 
 
 The law was approved. Its constitutionality was brought 
 into question, and in April, 1910, the State Supreme Court 
 delivered an opinion" which is little in harmony with the 
 general trend of interpretation on this subject. Again and 
 again have State courts denied the legislature's right to enact 
 laws of this character, and, although there has been some 
 slight division of sentiment, the burden of judgment through- 
 out the Union, as we have seen, has condemned the prac- 
 tice of submission as a very plain re-delegation of power. 
 Wisconsin, however, has been in the minority, as, for in- 
 
 i" Texas Legislative Record, House Journal, p. 913. 
 " Session Laws, 1903, chap. 451. 
 « 142 Wis., 320. 
 
486 THE REFERENDUM IN AMERICA 
 
 Stance, in the old cases of State v. O'Neill" and Smith v. 
 Janesville/'' and the court kept to its course. 
 
 It was said that while the legislature "may not delegate 
 its power to make a law it can make a law to become opera- 
 tive on the happening of a certain contingency, or on the 
 ascertainment of a fact upon which the law. makes or in-, 
 tends to make its own action depend." This may be the 
 approval of the law by a majority of the electorate voting on 
 the question. It was said furthermore (contrary to good 
 precedent) that no reason existed " for applying &. different 
 rule to a local law from that applicable to one not local," 
 and Wisconsin, therefore, takes a position on the "extreme 
 left" of this question, to use a phrase borrowed from the 
 European parliaments. The court was manifestly actuated 
 by some political feeling, for it went out of its way to say 
 (though the direct legislation advocates have never asserted 
 a right to refer laws to popular vote without definite con- 
 stitutional authority) that the approval of the "referendum 
 principle" would not "tend to make legislators shirk re- 
 sponsibility and become cowardly and corrupt. . . . Courts 
 cannot presume that legislative power will be abused, nor 
 that legislators, otherwise inclined to be honest and fearless, 
 will become craven and dishonest simply because the right 
 of referendum is upheld." This declaration was ohiter dic- 
 tum in every sense of the word. 
 
 An excellent separate opinion by Justice Marshall, in 
 which he "very reluctantly" concurred on the ground of 
 stare decisis, exhibits a thorough knowledge of the history of 
 the subject. He distinctly dissented from the view that 
 " there is no logical distinction between a local act to become 
 law in prcesenti, but be operative only in such localities as 
 by popular vote adopt it, and a general act presently pro- 
 posed by the legislature to be a law when approved by pop- 
 ular vote." Justice Marshall would have preferred to join 
 his colleagues, if it had been possible, in overruling Smith 
 V. Janesville to make the law of his State "harmonize with 
 
 " 24 Wis., 149. " 26 Wis., 291. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 487 
 
 that of the country generally." The court would be war- 
 ranted in this course, he believed, "to save an important 
 constitutional principle," especially when it would not re- 
 sult in disturbance of "any rule of property." He thought 
 it dangerous for a court to refuse to correct an early mis- 
 take on a great question of constitutional law. Consistency 
 was good yet it was not so "priceless," said this judge, "but 
 what it were better to sacrifice it in some instances than to 
 purchase it in exchange for a fundamental principle." 
 
 The Massachusetts legislature in 1907 passed a similar 
 general law "to provide for suitably rewarding certain vet- 
 eran soldiers and sailors." Pensions were to be paid them 
 if the people of the State approved of this use of the public 
 money. Governor Guild, quoting the opinion of the Su- 
 preme Court furnished the legislature upon request on the 
 subject of a woman suffrage law in 1894,*^ and a later opin- 
 ion, Brodbine v. Revere," vetoed it. He could not even for 
 the sake of the "volunteer of 1861" give his "official ap- 
 proval to an act containing provisions which the supreme 
 judicial court have pronounced unconstitutional." " 
 
 With a view to putting restraint upon the direct legisla- 
 tion men and of reducing the violence of their reforms, appeal 
 has lately been taken to the courts on other grounds. There 
 is emphatically no legal objection to the initiative, the ref- 
 erendum and their boon companion, the recall, if they are 
 employed either in the State or in the local district of the 
 State by authority of constitutional provision. It has been 
 concluded, therefore, that direct government may be some- 
 how in conflict with section 4 of article iv of the Constitu- 
 tion of the United States, which guarantees "to every State 
 in this Union a republican form of government." " 
 
 It is difficult to see how such a view can be sustained, 
 although the claim is entitled to consideration. The non- 
 
 " 160 Mass. 586. '" 182 Mass. 600. " Message, June 10, 1907. 
 
 IS The idea that the submission of laws may be "unrepublican" is not foreign 
 to the older opinions of the State courts, as, for instance, Rice v. Foster in Dela- 
 ware in 1847. — Ante, p. 319. 
 
488 THE REFERENDUM IN AMERICA 
 
 sense which is uttered in regard to what is and what is not 
 repubhcan has encumbered the newspaper and the stump 
 speech for generations. That a republic is this and is 
 never the other thing; that this policy is consistent with, 
 the other inimical to, the republican system are assertions 
 iterated and reiterated. To the abolitionist it was unre- 
 publican to hold negroes in bondage; to the negrophile it is 
 unrepublican to deny the franchise to any man because of 
 his color; to the woman suffragist it is unrepublican to make 
 sex a bar to the exercise of the franchise; the horse or 
 some other species of being, if he could speak, would con- 
 demn his condition, very probably, as unrepublican. Jury 
 practice, taxation, the apportionment of representatives, this 
 law or that are unrepublican. Haiti, Peru, Bolivia, France 
 and Mexico are republics, but their governments are "un- 
 republican." In one part of the world republican govern- 
 ment is a " farce " ; in another it is Heaven's dew, as superior 
 to that of England, or of any other king-ridden state, as 
 what we hope for in the life to come is to our present poor 
 mortality. It may be said that the initiative, the referen- 
 dum and the recall are unrepublican; the advocates of these 
 thrifty nostrums can retort that the representative system in 
 its present form is unrepublican. The boss, the trust, cor- 
 porate interests, they will say, are unrepublican. Such as- 
 sertion and counter-assertion will bring no one anywhere. 
 A learned German jurist has framed these definitions: 
 
 "A republic is that form of government in which the 
 sovereignty resides in the whole people and in which the 
 representative of the people is a president or a board. The 
 ofi&cer standing at the head of a republic is ruler and sub- 
 ject at the same time. 
 
 " Monarchy is that form of government in which the rep- 
 resentative of sovereignty stands at the head of the state by 
 reason of his own indigenous, independent, historical and 
 traditional right, in which he is not, perhaps, the charged 
 representative of the entire people, but draws his authority 
 rather out of a right of which he is the personification. The 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 489 
 
 sovereign here is always only the ruler, never at the same 
 time a subject." '" 
 
 The republic may take on this or that character. It will 
 adapt itself, like the monarchy, to the conditions and cir- 
 cumstances of the nation whose uses it is designed to serve, 
 or it will fall. If it is made out of the whole cloth, without 
 regard for fact, it will soon become an historical memory. 
 It will disappear ingloriously, perhaps amid bloodshed and 
 revolution. Of such republics the world has had many and 
 will doubtless have many more. Whatever is of greatest 
 value in a government — and especially true is this maxim in 
 reference to a democratic government — is that which flows 
 naturally out of a people's experience. They are accustomed 
 to types and forms. They have social and political habits 
 which are grounded in deeply rooted racial traits. To dis- 
 regard the teachings of history in this respect is to invite 
 social friction which may lead to serious disorder, as expe- 
 rience with government running through many centuries 
 tends abundantly to show. The American republic has 
 been not wholly unsuccessful because it was founded with 
 some attention to the character and needs of its citizens. 
 The first two chapters of this work contain an historical 
 account of the struggle which went forward between a band 
 of theorists and a group of erudite men, steeped in our good 
 English traditions, in Pennsylvania, and, when the Consti- 
 tution of the United States came to be adopted, in a much 
 larger field. The Pennsylvania scheme for government by 
 a single house of legislature was discarded in favor of a 
 government of three departments — legislative, executive and 
 judicial — a government of checks and balances. It was 
 made to withstand the gusts of faction and to serve the 
 requirements, not of one man or set of men for a day, but 
 of a nation of men from generation to generation. 
 
 The initiative, referendum and recall of Switzerland advo- 
 cated by a junta of theorists to-day will, in all probability, 
 meet with no better fortune than the scheme which a simi- 
 
 1" From the Collegien of the late Prof. Dambach of the University of Berlin. 
 
490 THE REFERENDUM IN AMERICA 
 
 lar group of impracticables endeavored to make prevail in 
 this country in the eighteenth century. How can the move- 
 ment be checked on the ground that it is " unrepublican " ? 
 The Supreme Court of the United States, wiser than the 
 newspaper and the stump speaker, has been loath to enter 
 into any extended discussion of so difficult a subject. In 
 1874 Chief- Justice Waite, delivering the opinion of the court, 
 said: 
 
 " The guarantee is of a republican form of government. 
 No particular government is designated as republican; 
 neither is the exact form to be guaranteed in any manner 
 especially designated. Here, as in other parts of the in- 
 strument, we are compelled to resort elsewhere to ascertain 
 what was intended. 
 
 "The guarantee necessarily implies a duty on the part of 
 the States themselves to provide such a government. All 
 the States had governments when the Constitution was 
 adopted. In all the people participated to some extent 
 through their representatives elected in the maimer specially 
 provided. These govenmients 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 unmis- 
 takable evidence of what was republican in form within the 
 meaning of that term as employed in the Constitution." ^ 
 
 Again in 1891 the court, through Chief- Justice ■ Fuller, 
 said: 
 
 " By the Constitution a republican form of government is 
 guaranteed to every State in the Union and the distinguish- 
 ing feature of the form is the right of the people to choose 
 their own officers for governmental administration and pass 
 their own laws in virtue of the legislative power reposed in 
 representative bodies whose legitimate acts may be said to 
 be those of the people themselves." ^' 
 
 These statements are clear upon two points: 
 
 (i) That the governments of all of the original States, 
 
 " Minor v. Happersett, 21 Wall., 162. 21 In re Duncan, 139 U. S., 449. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 491 
 
 as widely different as Pennsylvania and Massachusetts, were 
 republican in form; ergo that any government similarly 
 organized will have this form. 
 
 (2) That "the distinguishing feature" of republican gov- 
 ernment as it exists for us under the guarantee of the Con- 
 stitution is a government by representatives elected by the 
 people. 
 
 But this "distinguishing feature," it may be held — and 
 very likely with propriety — will continue to "distinguish" 
 our form of government after it shall have been modified 
 by the initiative, the referendum and the recall. 
 
 The text-book writers also associate the idea of repre- 
 sentative government with republican government,^^ and 
 appeal is taken to the debates of the Constitutional Conven- 
 tion, to the Federalist and to the writings of the "Fathers," 
 to Webster, Calhoun and the leaders of the Civil War period 
 for a definition of the meaning of the language of the Con- 
 stitution. But can any one doubt, if there had been tele- 
 graphs and railroads to bring the people near together, and 
 a modem ballot system, that the single-chamber democrats 
 in Permsylvania would have carried their theories to their 
 logical conclusion and introduced direct government in 
 some form in that State ? Would Pennsylvania then have 
 been excluded from the Union? It is not reasonable to 
 think that more than a very few would have considered the 
 system unrepublican. The good Federal leaders would 
 have condemned it, but upon different and much better 
 grounds. 
 
 There is external and internal evidence that what was in 
 the minds of those who placed these words in the Consti- 
 tution was a wish to protect the States against monarchical 
 tendencies from within or without. It was a general guar- 
 antee that there should be no monarchy within the larger 
 republic. In the same section of the Constitution there are 
 allusions to invasion and domestic violence. No king should 
 come in to rule; no domestic despot should establish his 
 
 » Cooley, Story, Bouvier, WUloughby, etc. 
 
492 THE REFERENDUM IN AMERICA . 
 
 authority. It was a guarantee against " tyranny," from the 
 side on which danger at that time lay. The new repubhc 
 should not be disturbed by the patrons and disciples of the 
 monarchical system from which the people had just been 
 freed. It seems to be reading more into the words than any 
 one who voted for them in the Constitutional Convention, 
 or the ratifying bodies in the States, can ever have intended, 
 and we can well look to other sources for our protection 
 against these Western invaders of our institutions. 
 
 The State courts, however, are discussing the question 
 pro and con and there will soon be a much larger body of 
 material bearing upon the subject. It is expected, indeed, 
 that no long time will elapse before there shaU be a Federal 
 deliverance on this question. In Oregon, where the advo- 
 cates of direct legislation are in complete control of all 
 branches of the government, the court has subserviently 
 affirmed the constitutionality of the system. No kind of 
 erudition has been exhibited and no detailed examination 
 of the opinions, therefore, is required. 
 
 In Kadderly v. Portland in 1903^' the Oregon court held 
 — probably with right — that the initiative and the referen- 
 dum do not abolish or destroy a republican form of govern- 
 ment or establish another in its place. Its republican char- 
 acter remains; the people simply "reserve to themselves" 
 a larger share of power. This opinion was affirmed in 
 1909 in Oregon v. Pacific States Telephone and Telegraph 
 Company ,^^ and was further developed in 1910 in Kiernan 
 V. City of Portland.^^ Here, quoting James Wilson, who 
 defined a republic as a government constructed on the prin- 
 ciple "that the supreme power resides in the body of the 
 people," ^° and Thomas Jefferson, who said that the word 
 meant a government "by its citizens in mass acting directly 
 and not personally according to rules established by the 
 majority," it was emphatically asserted that Oregon had 
 not departed from the true path. 
 
 2244 Oregon, 118. i" 53 Oregon, 162. ^6 n 2 Pacific, 402. 
 
 M Chisholm v. Ga., 2 Dall., 457. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 493 
 
 Other States yield recent opinions which bear ^pon the 
 same subject, notably Oklahoma, California, Colorado, 
 Minnesota, and in a similar sense. Oklahoma has but fol- 
 lowed Oregon in Ex parte Wagner,^' and well enforces the 
 argument with the assertion that the provisions were a part 
 of its Constitution when the State came into the Union. An 
 enabling act was passed for the State on June 16, 1906. 
 Certain stipulations were made by Congress. It was re- 
 quired that the government to be established by the Consti- 
 tution should be "republican in form." A convention met, 
 a constitution containing the initiative and the referendum 
 was adopted and on November 16, 1907, President Roose- 
 velt, declaring " the said Constitution and government of the 
 proposed State of Oklahoma" to be "republican in form," 
 proclaimed Oklahoma a State of the United States. Here is 
 Federal precedent upon which the courts of this as well as 
 of other States introducing direct government will be likely 
 to rely. 
 
 In In re Pf abler, in California in 1906, arising out of the 
 Home Rule charter of Los Angeles, a distinction was made, 
 it would seem properly. The United States guaranteed to 
 "every State" a republican form of government, a provision 
 which could not be held to prohibit the direct exercise of 
 legislative power by the people of a subdivision of a State 
 in strictly local affairs. It was well known when the Con- 
 stitution was adopted that the town-meeting system pre- 
 vailed in some of the States. There was no intention of 
 calling into question the validity of this system. The court 
 added that in reaching this conclusion it did not wish "to 
 be understood as intimating that the people of a State may 
 not reserve the supervisory control as to general State legis- 
 lation afforded by the initiative and referendum without vio- 
 lating this provision of the Constitution," i. e., art. iv, sec. 4. 
 This question had not arisen and did not call for any direct 
 expression of the judgment of the court.^* 
 
 The Minnesota court in 1900, in Hopkins v. City of Du- 
 
 2' 21 Okla., 33. ^' 150 Cal., 71; cf. 137 S. W., p. 1154. 
 
494 , THE REFERENDUM IN AMERICA 
 
 luth/° another case arising out of a Home Rule charter, it 
 was held that the purpose of the Federal guarantee was only 
 to protect a union founded on republican principles against 
 aristocratic and monarchical innovations. "The Federal 
 as well as the State government is representative in char- 
 acter, although the people do not directly vote upon the 
 adoption of the laws by which they are governed. Yet it 
 cannot be said that, if they were able to do so, a provision 
 to effectuate that purpose would not be republican. We ap- 
 prehend that a little reflection must satisfy any one that the 
 advantage of providing local self-government by the voters 
 directly interested through a referendum is abstractly, as 
 well as concretely, more republican than through represent- 
 atives of the people in the legislature, many of whom are 
 not at all interested in the affairs of the given locality. . . . 
 The test of republican or democratic government is the 
 will of the people expressed in majorities under the proper 
 forms of law. ... So long as the ultimatum of decision is 
 left to the will of the people at the ballot-box, it [the govern- 
 ment] is essentially republican." 
 
 In Colorado in 1903, in People v. Sours, the court in re- 
 viewing a case which had arisen out of the Home Rule char- 
 ter of Denver found in this method of local administration 
 "nothing subversive of the State government or repugnant 
 to the Constitution of the United States." ^° 
 
 These opinions point to the conclusion that a distinction 
 may be drawn between the initiative and the referendum 
 in the State at large and in the local districts of the State. 
 The "republican form" of government which the federation 
 guarantees is guaranteed to the States, not to towns and 
 cities within the States. It may be safely asserted that to 
 enlarge the powers of the people in reference to their local 
 affairs is not in derogation of any principle of republican 
 
 2" 81 Minn., 189. 
 
 5° 31 Col., 369. See also Bonner v. Belsterling, 138 S. W., p. 571, arising out 
 of a recall election in 1911 in Dallas, Tex. Here the court declares that the 
 recall is not unrepublican in the sense in which this term is used in the Consti- 
 t'.ition of the United States. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 495 
 
 government. Whether or not it may be so in a State in 
 relation to State affairs is another question. Oregon and 
 Oklahoma, the latter relying upon the proclamation admit- 
 ting it into the Union, assert that they have introduced no 
 constitutional changes which are unrepublican, and other 
 courts, both State and Federal, will be in need of following 
 their example, if the system which is coming into so much 
 favor is to go unhindered on its way. 
 
 As a writer in. the J ale Law Journal has lately said, this 
 system may be "impracticable, for people collectively are 
 extremely incapable of properly discussing matters of legis- 
 lation"; it may even be dangerous, but it is difficult to see, 
 how it can be declared to be out of harmony with the repub- 
 lican form of government guaranteed to the States by the 
 Federal Constitution.'' The action of Arizona, asking to 
 become a State under a constitution which not only author- 
 izes the initiative and the referendum but also the recall of 
 elective ofl&cers, including judges, has brought the question 
 before Congress and the country at large in another form. 
 It has been asserted that such features of the proposed 
 system make it unrepublican. On the other hand, it is 
 asserted, quite as emphatically, that Arizona is within its 
 rights. If the territory is admitted to the Union it will have 
 a government not different from what Oregon's has recently 
 become and from what, from present appearances, we shall 
 soon have in other Western States. I should be disposed to 
 include these new political devices, and much else that we 
 know to be latently evil if not actively menacing, under the 
 name "republican." Nothing but arbitrary definitions are 
 at hand for our protection. 
 
 Congress has a better defence for refusal to admit a State 
 in evidence afforded by the conduct of its people that they 
 are yet ill-fitted for the business of self-government. The 
 Constitution says that "new States may be admitted by the 
 
 " Vol. XIII, p. 248. This is a subject which has been vigorously discussed in 
 the legal periodicals; see particularly Central Law Journal, Vol. 56, pp. 247, 444; 
 Vol. 68, p. 387; Vol. 72, pp. 169, 354. 
 
496 THE REFERENDUM IN AMERICA 
 
 Congress into this Union." ^^ It is not stipulated what the 
 conditions qualifying a candidate for statehood shall be. It 
 is simply a right to be exercised as Congress shall see fit, and 
 the history of the multiplication of States and the expansion 
 of the Union reveals a good deal of valuable precedent. 
 That the community applying for admission should be 
 possessed of the genius of self-government in a degree as- 
 suring the federation of some increase of strength by the 
 arrangement can well be a leading motive of Congress. It 
 will occur to most minds that the political system of a new 
 State should be made to conform rather closely on general 
 lines with that of the older States of the Union. If the type 
 of this government be representative it will be accounted to 
 be a more or less perilous experiment to introduce into the 
 Union a State which is to be governed according to direct 
 democratic principles. Simple precaution would forbid rev- 
 olutionary changes in the type in favor of democracy no 
 less than in the opposite direction. The Congress when it 
 admits a State must decide not only whether its govern- 
 ment is "republican in form," but the larger question — 
 whether or not for this or that reason, or class of reasons, 
 it is desirable to let it come into the family of States at all. 
 "Common prudence," says the present Attorney- General of 
 the United States, "requires careful scrutiny of a new appli- 
 cant" for the honors of statehood "in order to determine 
 whether or not its electorate is properly qualified to maintain 
 stable and peaceable conditions under the particular form 
 of republican government which it proposes to adopt." ^ 
 A State which legally expedites divorce proceedings, favors 
 prize-fighting, condones or actually authorizes polygamy, 
 administers law by night-riders, burns and mutilates ne- 
 groes, hangs horse-thieves to trees at the cross-roads, and 
 substitutes mobs for regularly constituted trial courts can be 
 no proud member of the Union. The civilization of a com- 
 
 *2 Art. iv, sec. 3. 
 
 2' "New States and Constitutions," an address before the Law School of Yale 
 University, by George W. Wickersham, p. 7. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 497 
 
 munity which will put judges in such a position that they 
 are unable to administer their ofl&ces without fear or favor, 
 and exhibits no respect for the system whereby honorable re- 
 sults have been attained in the maintenance of social order, 
 can well be adjudged defective, and its citizens can be asked 
 with no injustice to remain outside the Union until their 
 condition shall improve. 
 
 This course is the more necessary when it is considered 
 how little control the Federal government can exercise over 
 the State after its admission is an accomplished fact. Con- 
 gress may prescribe conditions to be met before it can come 
 into the Union. Various rules were made for the Southern 
 States before they were permitted to come back into the 
 Union after the Civil War, and the constitutional discussion 
 of the time is filled with allusions to the rights of Congress 
 with reference to the States. They were returned to their 
 respective positions with the understanding that they would 
 have regard for the provisions of the Fourteenth and Fif- 
 teenth Amendments of the Constitution. The suffrage was 
 not to be deniqd or abridged "by any State on account of 
 race, color or previous condition of servitude." Yet what 
 is this in the Constitution of Louisiana but an abridgment 
 of the suffrage on these accounts ? — 
 
 "No male person who was on January i, 1867, or at any 
 date prior thereto, entitled to vote under the Constitution or 
 statutes of any State of the United States wherein he then 
 resided, and no son or grandson of any such person not less 
 than twenty-one years of age at the date of the adoption of 
 this Constitution [1898] . . . shall be denied the right to 
 register and vote in this State by reason of his failure to 
 possess the educational or property qualification prescribed 
 by this Constitution." 
 
 The ignorant and poor black man is barred from voting; 
 the ignorant and poor white man not at all, because he or 
 his father or grandfather was entitled to vote before Janu- 
 ary I, 1867.'* Similar provisions are found in the Constitu- 
 
 « Art. 197, sec. 5. 
 
498 THE REFERENDUM IN AMERICA 
 
 tions of other Southern States and are clearly in violation of 
 the terms under which they were received back into the 
 Union and, it would seem, of the plain terms of the Federal 
 Constitution itself. 
 
 Can it have been intended when it was determined that 
 the suffrage should be denied to none " on account of race, 
 color or previous condition of servitude" that in one county 
 in Mississippi with a population in 1910 of about 8,000 white 
 persons and 11,700 negroes there should be only 25 or 
 30 black voters in 1908? In another county with 30,000 
 negroes only about 175 were registered voters. The clerk 
 of a court in a county in North Carolina with 5,700 white 
 and 6,700 colored inhabitants asserts that a negro has never 
 voted in the county. In a district in Mississippi with a 
 population of 190,885 only 2,091 votes were cast in 1906 for 
 the representative in Congress, John Sharp Williams, now 
 Senator Williams.'^ 
 
 It was recently required by Congress in reference to 
 Utah that the applicant for statehood should adopt a govern- 
 ment "republican in form and make no distinction in civil 
 or political rights on account of race or color, except as to 
 Indians not taxed, and not to be repugnant to the Consti- 
 tution of the United States and the principles of the Dec- 
 laration of Independence"; furthermore, "that perfect tol- 
 eration of religious sentiment shall be secured and that no 
 inhabitant of said State shall ever be molested in person or 
 property on account of his or her mode of religious worship: 
 Provided that polygamous or plural marriages are forever 
 prohibited." In article iii of the Constitution of Utah 
 this prohibition is found, but, as Attorney-General Wicker- 
 sham observes, by the twenty-third article of the same Con- 
 stitution two-thirds of the members of each house of the 
 legislature and a majority of the electors of the State voting 
 on the proposition may at any time change this as well as 
 any other provision of the instrument.'" The ordinance 
 
 " Stephenson, Race Distinctions in American Law, pp. 320-21. 
 36 "New States and Constitutions," pp. 25-26. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 499 
 
 has not been amended; the members of the Mormon 
 Church know whether or not the agreement has been 
 honestly kept. 
 
 In 1907 Oklahoma entered the Union under definite con- 
 ditions. The enabling act provided that the Constitution 
 of the new State " shall be republican in form and make no 
 distinction in civil or political rights on account of race or 
 color, and shall not be repugnant to the Constitution of the 
 United States and the principles of the Declaration of Inde- 
 pendence." It was required, furthermore, that the State 
 should "never enact any law restricting or abridging the 
 right of suffrage on account of race, color or previous con- 
 dition of servitude." The capital was established tempo- 
 rarily at Guthrie, from which place Congress stipulated that 
 it should not be removed prior to 1913, when it might be 
 located permanently by a vote of the electors. 
 
 In August, 1910, the people added a "grandfather clause" 
 to the Constitution aimed at the disfranchisement of the 
 negro, in violation of the pact with the Federal government; 
 in December of the same year this shameless sister removed 
 the capital from Guthrie to Oklahoma City without a vote 
 of the people in total disregard of the agreement under which 
 she was given her place in the family of States. The Su- 
 preme Court by a vote of three to two in Coyle v. Smith" 
 supports the legislature. "It being within the discretion of 
 Congress to determine when a new State shall be admitted 
 into the Union," the justice in delivering the opinion said, 
 "it has the arbitrary power, as preliminary to such admis- 
 sion, to require a State to insert a certain provision in its 
 Constitution or to enact such provision as a law by ordinance, 
 but it is not within the power of Congress to require that 
 such be done so as to be irrevocable on the part of the State 
 without the consent of Congress when it relates to the local, 
 municipal or police concern of the State, and it is not em- 
 braced within any of the delegated powers of the national 
 government." In vigorous dissenting opinions justices ar- 
 
 » 113 Pac, 944- 
 
Soo THE REFERENDUM IN AMERICA 
 
 gued that communities as well as individuals " ought invio- 
 lably to observe their compacts and their promises." ^* 
 
 Whatever may be the future of the initiative and the ref- 
 erendum in the American States it will always be necessary 
 to take account of several basic facts of which great bodies 
 of the people seem often to be tmmindful. These are of 
 various sorts, but they may all be resolved into one primary 
 fact which has to do with the manifest inequality of men. 
 All are clearly not endowed with the political genius to 
 an equal degree. All are not equally intelligent, moral or 
 capable. The whole social and economic order testifies to 
 this inequality, as 'do our biological progress and evolution 
 which go forward only because of the existence of this im- 
 portant fundamental principle. 
 
 It was Rousseau who desired to simplify government and 
 legislate by an unchecked convention, in order to bring the 
 state back to a condition as near as possible to that ideal 
 original form in which the citizens met together under an 
 oak tree and made their own laws. John Adams and other 
 patriots in this country successfully combated such theo- 
 ries in the American States and organized a government of 
 checks and balances. In all States where universal suf- 
 frage has been introduced there is a certain presumption of 
 human equality and we usually grant the theory a good deal 
 of indulgence in the belief that democracy is, for us at least, 
 the most expedient and perhaps the only practicable form 
 of government. We in America, however, have so organ- 
 ized the state that the people as a mass do not draft their 
 own laws, or generally adopt them. They do not in a body 
 execute or administer the la\^s; nor again do they interpret 
 them and adjust conflicting interests in the courts of jus- 
 tice. All these functions adhere to representatives whom 
 
 " The sight of the Oklahoma court reading lessons in law and morals to the 
 United States Government, which but two or three years before had created the 
 State (and not without misgivings), is amusing to say the least of it. A reading 
 of the Supreme Court reports, the session laws and other State papers of a com- 
 monwealth, the names of whose leading officials are set down in print as Pete 
 and Bill and Ben, may be recommended to those in search of American humor. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 501 
 
 the people themselves elect, or who are chosen at second 
 hand by agents directly elected by the people. We look to 
 the people under our system, so to organize themselves in 
 their various local districts, neighbors with neighbors, that 
 they will choose to represent them men of more than average 
 capability and men who can creditably represent them. 
 All the stockholders of a private company, or the members 
 of a private association or a church are not fitted equally 
 well to conduct its affairs. It should be a matter of pride 
 with them, however, as well as a matter of self-interest, 
 that the very best men available for the service should be 
 put forward into places of responsibility and leadership. 
 This is what we have assumed would occur in each politi- 
 cal precinct under the representative system to the end that 
 the wisest men and the most honest men, having been re- 
 turned from each community, would co-operate in the work 
 of public management. That we are a long way from hav- 
 ing realized our hopes and dreams it takes no extraordinary 
 insight to perceive, but that we should for this reason turn 
 to Switzerland and borrow her devices is a proposal finding 
 little favor in well-settled minds. 
 
 The disadvantages and defects of any system of law- 
 making by the mass of the people are just what they always 
 were and must always be. It is said that quite new things 
 are being discovered in the Arcadia "where rolls the Ore- 
 gon." The leaders of the movement call our attention to 
 the direct primary law, the corrupt practices act, the exten- 
 sion of the use of the initiative and the referendum by later 
 amendment of the Constitution, the right to recall public 
 officials, Home Rule for cities, the direct election of dele- 
 gates to party conventions, proportional representation, pro- 
 hibition of the granting oif railway passes, verdicts by three- 
 fourths of a jury in civil cases, popular election of United 
 States senators (in violation of the spirit if not of the exact 
 terms of the Federal Constitution). While these reforms are 
 all radical they are reforms, and by reformers are held to be 
 right per se. On the other side it is urged in behalf of the 
 
502 ■ THE REFERENDUM IN AMERICA 
 
 people as conservators that in six years they have three times 
 rejected proposals to enfranchise women. They have voted 
 down the scheme to prohibit the liquor trade in the State at 
 large, but have approved of prohibition in local districts at 
 the option of the people. They have voted to protect fish 
 in the Columbia and other rivers, to support State institu- 
 tions by public taxes, and have had the judgment to change 
 the time of holding general elections within the State from 
 June to November in order to make the practice conform 
 with that of most of the other States. Thirty-one enthu- 
 siastic friends of direct legislation in Oregon, including the 
 State's two United States senators, declare over their names 
 that " the people are giving more and more attention to the 
 measures submitted. Both the teachers knd pupils in the 
 public schools are taking an ever-increasing interest in pub- 
 lic questions and in studying the science of government." 
 They are of the opinion that "government by party bosses 
 and political machines is completely abolished." ^' 
 
 Instead of the old "machine" they have established their 
 own — the Grange — the Federation of Labor — the People's 
 Power League. For the old bosses they have brought them- 
 selves forward as new bosses. The "science of govern- 
 ment," which they are teaching in their schools, is informa- 
 tion about a variety of schemes for changing the face of the 
 world. It consists in a condemnation of the teachings of 
 history and the introduction of devices by which clubs of 
 farmers, fishermen, orchardmen and graziers, flattered and 
 cajoled by a few leaders, can control the policy of the gov- 
 ernment, both local and State. 
 
 It will be found even in Oregon that laws must be writ- 
 ten, advocated and passed as the result of the labors of a 
 few men. Whether they be called "bosses" or something 
 else, they will have the character of leaders and controllers, 
 and there are many citizens, probably, who would prefer to 
 have their affairs directed by a forceful, if not too scrupu- 
 
 ^ See Senator Bourne's speech in the United States Senate of February 14, 
 1911; also speeches of May 5, 1910, and February 27, 1911. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 503 
 
 lous, business man, who, whatever else may be thought of 
 him, has been brought to his position by hard experience, 
 than by some visionary socialist. And how could the bene- 
 fit be permanent in New York or Philadelphia, for example, 
 or in any similar community? Does any experienced ob- 
 server believe that "machines" which assemble large ma- 
 jorities for candidates at the bosses' bidding could not pass 
 and defeat laws in the same manner ? The history of the 
 submission of measures to make loans and increase the 
 debt of Philadelphia in the past few years, affecting, as they 
 do, the pecuniary fortunes of every property-holding citi- 
 zen, should be conclusive on this point. They are approved 
 upon the order of the political managers without the slight- 
 est popular contest. 
 
 The direct legislation leaders have taken control of the 
 government in Oregon against the protest of many of the 
 State's ablest and most intelligent citizens. By a number 
 of members of the bar in particular is this attack upon the 
 legal system regretted. Charles H. Carey, of Portland, in 
 an address before the Oregon Bar Association, reviewing 
 the dangers of the initiative and the referendum, urges that 
 restraints be at once placed upon the exercise of this new 
 popular power, if its exercise shall continue to be permitted 
 at all. "If the initiative is to be upheld as a part of our 
 plan of government," he says, "it should be so limited as to 
 insure against worse evils than those it was designed to cor- 
 rect." '" 
 
 Frederick V. Holman, also a member of the Portland bar, 
 speaking in Chicago in igij, said: "We find that the so- 
 called reserve power is greatly abused; that measures in 
 overwhelming numbers, and many of them loosely drawn, 
 are being put upon the ballot; that the percentage of those 
 who do not participate in direct legislation is increasing; 
 that lack of intelligent grasp of many measures is clearly 
 indicated; that legislation is being enacted by minorities to 
 the prejudice of the best interests of the majority, and that 
 
 " Galbreath, Initiative and Referendum, p. 48. 
 
S04 THE REFERENDUM IN AMERICA 
 
 the Constitution itself is being freely changed with reckless 
 disregard of its purpose and character." ^^ 
 
 The Portland Oregonian, a leading newspaper of the 
 State, at first favorable to the new system of law-making, 
 said in 1908: 
 
 "That both initiative and referendum within proper lim- 
 its might be useful was the belief of large numbers who 
 joined in voting for their adoption, yet who did not foresee 
 that they would fall into the hands of faddists, sophists, 
 schemers, doctrinaires of all sorts, who would appeal to 
 them against representative government and methods of 
 ordinary legislation. They were adopted under the impres- 
 sion that they were to be the medicine of the Constitution 
 cautiously administered when occasion might require; not 
 its daily bread. . . . They encourage every group of hobby- 
 ists, every lot of people burning with whimsical notions to 
 propose initiative measures or to interpose objections through 
 referendum appeals. They have the effect practically of 
 abolishing Constitution and laws altogether; or, at least, of 
 keeping people who would defend the stability and orderly 
 progress of society always on guard, always under arms for 
 their defence. All this is bringing Oregon under observa- 
 tion from every part of the United States. And not to her 
 credit either. . . . The whole of this modern scheme of 
 setting aside Constitution and laws, and of forcing legisla- 
 tion without debate or opportunity of amendment turns out 
 badly, because it gives the cranks of the country an oppor- 
 tunity which they have not self-restraint enough to forego. 
 Careless people, or people who do not like to be bothered 
 with importunity, sign the petitions to get rid of the solici- 
 tors, and when the election comes on the proposal is likely 
 to be neglected by the body of voters and carried by the 
 votes of the comparatively few enthusiasts who favor it, 
 reinforced by the votes of those who may mark their ballots 
 ignorantly, or mechanically, withput understanding the mat- 
 ter at all." '^ 
 
 " Ibid., p. 50. « February i6, 1908. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 505 
 
 Again the Oregonian said: 
 
 "It was not intended that representative government 
 should be abohshed by the new system; but it has been 
 abolished by it. Any group of persons, from the cave of 
 Adullam, or other groups of persons of ill-arranged intel- 
 lects, can propose initiative measures or call the referendum; 
 and there is danger always that the crudest measures may 
 pass into law through the inattention of the voters, or that 
 proper legislative measures may be turned down through 
 the referendum. The situation is the crank's paradise. 
 ... It could not have been supposed there would be so 
 many groups of persons devoted to strange and multifari- 
 ous crazes. . . . Representative government after all is a 
 pretty good thing. Oregon will yet return to it." *^ 
 
 In Los Angeles an ordinance was adopted by the council 
 to restrain vice in connection with dancing-halls. Represent- 
 atives of the classes who frequented and profited from these 
 resorts easily obtained the necessary number of signatures 
 for a referendum, and those having an active interest in the 
 subject succeeded in voting the law down. The good citi- 
 zen, unconcerned, or, at any rate, too much occupied with 
 his own affairs to give the election his care, remained at 
 home as he always will, unless unusual incentives impel 
 him to another course.^* 
 
 In January, 1905, the legislature of Oregon appropriated 
 to the State university $62,500 a year for two years. A 
 referendum petition was filed at once and the vote was de- 
 layed until June, 1906, nearly a year and a half. " During 
 that time," says Frederick V. Holman, a regent of the insti- 
 tution, "the moneys of the university became exhausted, 
 and it would have been compelled to close its doors had not 
 the professors agreed to continue their duties and to receive 
 no pay if the referendum was successful." Fortunately 
 there was "a small majority" in favor of the law. Two 
 years later when the legislature gave the university a con- 
 
 *' March 10, 1908, quoted by Galbreath, pp. 42-45. 
 " Central Law Journal, Vol. 73, p. 37. 
 
5o6 THE REFERENDUM IN AMERICA 
 
 tinuing appropriation of $125,000 a year petitioners again 
 attacked the law. "The moneys again were exhausted and 
 the professors again agreed to receive no pay if the refer- 
 endum was successful." In June, 1908, nearly a year and 
 a half after the bill passed the legislature, the vote was 
 taken with the following result:" 
 
 Whole number o£ voters 105,298 
 
 For the appropriation 44,iiS 
 
 Against the appropriation 4°. 535 
 
 Majority of votes for appropriation 3.580 
 
 Percentage of voters not concerned 19.6 
 
 A referendum would have been demanded on the law 
 appropriating money for the Lewis and Clark Centennial 
 Exposition, if the movement to obtain signatures to the 
 petition had not been frowned upon severely by citizens 
 /who could rise above the petty considerations which in- 
 fluence the mind of the small taxpayer. In Portland there 
 is an organization which contracts to provide signatures to 
 initiative and referendum petitions at regular published 
 rates — three to five cents per name.*' 
 
 The conclusions of Woodrow Wilson are those of other 
 candid and qualified students of the subject. He says: 
 
 "The vote upon most measures submitted to the ballot 
 is usually very light; there is not much popular discussion, 
 and the referendum by no means creates that quick interest 
 in affairs which its originators had hoped to see it excite. 
 It has dulled the sense of responsibility among legislators 
 without, in fact, quickening the people to the exercise of 
 any real control in affairs. . . . Where it [the initiative] 
 has been employed it has not promised either progress or 
 enlightenment, leading rather to doubtful experiments and 
 to reactionary displays of prejudice than to really useful leg- 
 islation. ... A government must have organs; it cannot 
 act inorganically by masses. It must have a law-mak'ng 
 
 " Galbreath, pp. 49-50. 
 
 " Yale Law Journal, Vol. XVIII, p. 40. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 507 
 
 body; it can no more make law through its voters than it 
 can make law through its newspapers." " 
 
 In Oregon the vote upon laws, as compared with the vote 
 for candida.tes, is larger, as measured by the standards in 
 the Eastern States, because of the private associations which 
 are at work to agitate the questions before the people. The 
 interest is awakened in country places. Without a large city 
 population, yet in such thickly settled urban districts as the 
 State does possess, the submitted measures are neglected.*' 
 
 The proportion of those voting for candidates who also 
 vote for measures at the same elections has varied from 61 
 to 87 per cent. On 43 of the 64 measures submitted in 
 Oregon since 1904 only 75 or less than 75 out of 100 men 
 who went to the polls voted yes or no. In Oklahoma little 
 more than 50 per cent of those voting for candidates have 
 voted upon laws in some recent cases; in Maine less than 
 40 per cent. For constitutional amendments the recent re- 
 searches of Mr. Dodd are conclusive. On the 472 consti- 
 tutional questions which he finds to have been submitted 
 to the people of the States in the decade 1899-1908 the vote 
 was usually very small. The record is the same in all parts 
 of the Union. In California, in 1904, when 6 amendments 
 were submitted to the people, none received more than 40 
 per cent of the vote; in 1906, when 14 amendments were 
 submitted, the lowest percentage was 30 and the highest 33. 
 In Colorado, in 1900, one amendment received only 19 per 
 cent of the vote for candidates. In Connecticut 3 amend- 
 ments, in 1905, varied from 18 to 22 per cent; 4 in Florida, 
 in 1900, from 24 to 32 per cent; 7 in the same State, in 1904, 
 from 22 to 30 per cent; 8 in New Jersey, in 1903, from 11 to 
 12 per cent; 7 in New York, in 1905, from 25 to 30 per 
 cent; 3 in Pennsylvania, in 1901, from 27 to 30 per cent; 
 2 in Virginia, in 1901, from 10 to 11 per cent. An amend- 
 
 " The State. Revised ed., 1898, pp. 311, 313; Constitutional Government in 
 the United States, pp. 104, 188— 191. 
 
 " "In what are called the slum districts and precincts iie vote on measures is 
 commonly a comparatively small percentage of the vote for officers." — From the 
 circular republished in Senator Bourne's speech of Feb. 14, 1911. 
 
5o8 THE REFERENDUM IN AMERICA 
 
 ment in Indiana, in 1906, received about 8 per cent of the 
 vote for candidates; and one in Ohio, in 1903, only 6 per cent. 
 
 Of the whole number of amendments recorded the vote 
 on only 8 reached or exceeded 90 per cent of the vote for 
 candidates. As many as 240 received less than half the 
 vote cast for candidates. ^° 
 
 The large percentages in the referendum States, as in the 
 vote everywhere upon constitutional amendments, are at- 
 tained, in relation to proposals for the enfranchisement of 
 women and the prohibition of the liquor trade. The aver- 
 age man knows whether he wishes his wife to vote or not; 
 whether he wishes to drink his whiskey or beer. On such 
 an issue he has feelings and convictions which will cause 
 him to mark his ballot. Of the ordinary legislative ques- 
 tion he can have little knowledge in the nature of the case. 
 No amount of reading of thick pamphlets of arguments, to 
 which he must turn with reluctance, if at all, will convey to 
 his mind any intelligent idea of the respective merits or de- 
 merits of 32 laws which were submitted to his attention in 
 the State of Oregon in 1910, or of the 35 or 24 ordinances 
 submitted in the city of Portland in 1909 and 1911 respec- 
 tively. This is direct legislation run wild. The "plain 
 people," the "common people," whom the pamphleteers 
 aim to seduce in Oregon, may find much pleasure tempo- 
 rarily in bringing discomfiture to what they call the " inter- 
 ests" — to the rich man and the corporation and to capital 
 and capitalists generally. The fanaticism of the socialist 
 is not easily restrained and may lead to much zealous 
 voting on laws not normally very interesting. But he is 
 prodded to his duty by ambitious leaders. Human nature 
 will reassert itself and the people will return to their old 
 grooves. The work of changing democracy is no less a 
 task than the changing of man himself, and this will prob- 
 ably not be done in a day, even under the favoring skies 
 beyond the Mississippi. 
 
 The defence is properly set up for a representative form 
 
 " Revision and Amendment of State Constitutions, by W. F. Dodd, Appendix. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 509 
 
 of government with a division of powers, that it protects 
 the rights of minorities. The majority of the people may 
 not directly attack the interests of the minority. Yet in 
 the use of the initiative, the referendum and the recall what 
 is seen ? The minority often absolutely controls the major- 
 ity. Indeed it seems to be assumed that this is their right. 
 In the form in which the direct law-making power is now 
 conferred upon the people, especially in local government 
 acts, this idea is dominant. If a number of electors, say 
 10 or 15 per cent of the number of those voting at the last 
 election for candidates, propose a law it is stipulated that 
 this law shall be passed "without alteration" by the repre- 
 sentative legislative authority. Only if it be not enacted 
 at the behest of this relatively small number of voters is it 
 submitted to the people. In the same way in the case of 
 the referendum 10 or 20 per cent can "protest" against the 
 passage of a law which must then be "reconsidered" by the 
 legislature. If the law upon reconsideration be not "en- 
 tirely repealed" a vote is taken. All this machinery is in 
 the interest of the minority. The initiated or referred laws 
 are passed by a majority of those voting on the subject 
 which, if in a rare case it reaches 90 per cent of those vot- 
 ing for candidates, seldom attains anything like this propor- 
 tion. In only 14 out of 32 cases in the last election in Ore- 
 gon did the percentage rise to 70 or more than 70. When 
 the percentage is so large as 70, 36 per cent of the voters can 
 enact a law. Mr. Dodd's compilations for the decade end- 
 ing with 1908 in reference to constitutional amendments 
 show that on 240 out of 472 questions submitted to the 
 people the vote was less than 50 per cent. Here in the best 
 case 26 per cent of the voters could and actually did adopt 
 laws.- Two amendments were adopted in Virginia in 1901 
 by 6 and 7 per cent of the voters of the State respectively.^" 
 Governor Colquitt, of Texas, points out in vetoing the 
 Texarkana government bill that the proposed charter re- 
 ceived the votes of only 155 out of 1,126 qualified poll-tax 
 
 M Dodd, op. cit., p. 341. 
 
5IO THE REFERENDUM IN AMERICA 
 
 paying voters — io8 for and 47 against its adoption. Little 
 more than 10 per cent, therefore, endorsed a charter of 
 which the boast was made that it had the approval of the 
 people. 
 
 Attorney- General Wickersham pursues this line of argu- 
 ment with interesting results in reference to Arizona. He 
 computes that the total voting population of the territory 
 is approximately 45,323. There were cast for the Constitu- 
 tion with which it asks to enter the Union 12,187, affirmative 
 and 3,822 negative votes in a total of 16,009, being about 
 35 per cent of the whole number of voters. The vote for 
 the Constitution was less than 27 per cent.'^ 
 
 The Constitution provides that 15 per cent of those voting 
 for Governor at the last preceding general election may ini- 
 tiate laws. The Attorney-General says: "Thus, if we should 
 assume that the total of the vote cast for all candidates for 
 Governor at the last preceding election was that cast upon 
 the proposition to adopt this proposed Constitution, viz., 
 16,009, tben th£ Constitution could be amended on the pro- 
 posal of 15 per cent of that number, or 2,402 votes — that is, 
 less than 1.2 per cent of the whole population, or about 5.25 
 per cent of the whole body of qualified electors of the State, 
 and carried by a majority of the 16,009 votes cast, that is, 
 by 8,005 votes — or indeed, for that matter, by any smaller 
 number which might constitute a majority of the votes cast 
 on the proposition to amend." ^^ 
 
 The quality of mind of the agitator for direct legislation 
 may be understood by a reference to the pages of his peri- 
 odical publications.^' That the junta of lobbyists who are 
 imposing this form of government upon the country are 
 restless changers without respect for the authority of his- 
 tory is made very plain. Their ultimate object is some- 
 thing far beyond the initiative and the referendum. These 
 
 " Upon this showing, says Attorney-General Wickersham, Congress "may well 
 consider" whether or not the territory "gives evidence of that capacity for self- 
 government which is so essential to the maintenance of free institutions." 
 
 '= Address before Yale Law School, pp. 40-41. 
 
 '' See, for instance, Eqtnty. 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM 511 
 
 are but the means to an end— the thorough renovation of 
 society. A perusal of the Oregon pamphlets confirms this 
 view. The times have favored the agitation. Plausibly ad- 
 vanced as a popular check upon political corruption and 
 corporate greed, which are at the moment so much feared 
 and disliked, the machinery of the initiative, the referendum 
 and the recall are to be used, if possible, for socialistic pur- 
 poses much closer to the heart of their inventors. The pro- 
 visions in the State Constitution and in the commission 
 government laws follow definite formulae. They are shaped 
 by common smiths in a common shop, outside of the legis- 
 latures which are asked to pass the acts, and always there 
 is the one defence that it is government by the people. This 
 has been the stalking-horse of democracy since the begin- 
 ning. "You do not trust the people, in whom even by 
 your own definition sovereignty resides," is the retort which 
 the objector always receives. It is always the people — the 
 people who have brought on three of the wars in which the 
 nation can feel the least pride, who have repeatedly attacked 
 proper money systems, who in ignorance and on impulse 
 have wrecked and ruined, praised, canonized and created 
 measures and men — a, series of mistakes as long as history 
 itself. The people who acclaim a captain who sinks a hulk 
 in a Cuban harbor to block the way of an enemy's war-ships, 
 a commodore who sweeps a decrepit fleet from the China 
 seas, an explorer who returns to tell of his achievements at 
 the north pole, after a while tire of their heroes. What 
 they would do on one day they will often repent of the next, 
 for which reason a government of checks and balances, of 
 reversal and veto was devised, recommended and adopted. 
 It was not intended that the process should be simple. In- 
 stead virtue was found in its very complexity. The wheels 
 were not to run too smoothly and rapidly in order to allow 
 of time for reflection, discussion and the exercise of judg- 
 ment. That there would be failures now and then on the 
 side of caution and conservatism was anticipated. It would 
 be better to err in this than in the other way. It is better 
 
SI2 THE REFERENDUM IN AMERICA 
 
 in such a business to do too little than too much. We did 
 not wish the people to come together in mass-meeting to 
 make and execute and interpret their own laws. The prin- 
 ciple was rejected. It was determined that good results 
 were not to be expected from this kind of an unregulated 
 expression of public opinion. Agencies must be established. 
 The people, if they would, must choose the "wisest and 
 best" among their number to represent them, and to per- 
 form necessary public duties under such rules and regula- 
 tions as might be established. Another course, to any one 
 familiar with the subject, would seem to be as impracticable 
 as it is inexpedient. Under this system statesmen appear. 
 Intelligent men are clothed with responsibility and power, 
 and they develop the ability to attract and lead the people. 
 Men like Washington and Lincoln, Daniel Webster, Henry 
 Clay and John C. Calhoun, were not the products of any 
 political system in which bodies of mediocre men with hob- 
 bies robbed the legislature of its dignity and authority, and 
 subjected executive, legislative and judicial officers to the 
 fear of recall when they pursued a course distasteful to 
 some fraction of the electorate. Only timid, shambling, 
 ineffective men can come out of a system which strips pub- 
 lic office of character and authority and makes it directly 
 subservient to popular whim. 
 
 It was argued a few years ago, and those who led the 
 movement obtained a respectful hearing, that the electorate 
 was too large, but, beyond the disfranchisement of the negro 
 in the South, nothing came of the agitation. The alien, 
 it was said, should not be permitted to vote too soon after 
 his arrival in the country. Educational and other tests 
 should be established to make the suffrage a thing of more 
 value. Those who had the right to vote should be compelled 
 to go to the polls. The apathetic were the source of our 
 political tribulations. The bosses were buying and herd- 
 ing the ignorant and the corruptible, who ought not to be 
 enfranchised, and were carrying the elections, while men of 
 virtue and talent and utility were neglecting their public 
 
REFERENDUM VS. REPRESENTATIVE SYSTEM $13 
 
 duties. This movement seemed to be founded in reason. 
 It commended itself to our intelligence, but all it meant has 
 apparently now been forgotten. If it were revived we should 
 be told that we were "afraid of the people," who can "do 
 no wrong." Their voice is the "voice of God." It is a 
 government "of the people, by the people, for the people." 
 Alien, negro, the poorest, the least informed are not only to 
 vote for our representatives; they are actually to make the 
 laws, administer the laws, adjudicate the meaning of laws 
 and drive out of place those whom we may succeed in a fort- 
 unate hour in electing to perform these duties. All this 
 may be "republican" and "democratic"; fortunately, how- 
 ever, it is un-American, un-English. It is in conflict with 
 the spirit and traditions of our political system, as will soon 
 be perceived by growing numbers of men. While the people 
 are subject to sudden impulse and at times commit the 
 most serious mistakes they have seldom erred through years 
 in the long run on the question of great fundamental princi- 
 ples. When they come to understand the purposes of these 
 "reforms," and can see beyond the present to the end, it is 
 safe to predict that there will be a readjustment of opinion 
 as radical as the movement by which our standards have 
 been so ruthlessly deranged. 
 
INDEX 
 
 Academy of Sciences in Paris, 
 honors of, shown to Frankhn, 
 
 31- 
 
 Adams, Charles Francis; his trib- 
 ute to John Adams, 12. 
 
 Adams, John; his moderate re- 
 publican views, 5; his views of 
 Paine, 5-8; his scheme of gov- 
 ernment for the American States, 
 7-12; his warnings disregarded 
 in Pennsylvania, 17, 21; his 
 Constitution in Massachusetts, 
 26, 69, 70, 105; his view of 
 Franklin, 31, 43; his defence 
 of the American Constitutions 
 against Turgot's attack, 34, 35, 
 69, 70, 71; ambassador to Eng- 
 land, 69; his services to Amer- 
 ica, 66, 67, 471, 472. 5°°- 
 
 Adams, Samuel, views of, regard- 
 ing single chamber system, 70. 
 
 Alabama, limit of legislative ses- 
 sion in, 81; submission of con- 
 vention question in, 132; amend- 
 ment of Constitution by the 
 legislative mode in, 148, 150, 
 151; school lands in, 284; fence 
 laws in, 297, 300. 
 
 Alameda, initiative and referen- 
 dum in, 439, 441; recall in, 
 
 458- 
 Amendment of State Constitu- 
 tions, by conventions, 128-141; 
 by legislative mode, 137, 142- 
 172; made easier, 476-477; small 
 vote on, 507-5(59. 
 
 Anderson v. Commonwealth, 331. 
 
 "Anti-Constitutionalists" in Penn- 
 sylvania, II, 38, 45, 55, 100, 
 102. 
 
 Arizona, constitution of, 424-425, 
 495; initiative and referendum 
 in, 425; local referendum in,43o; 
 recall proposed in, 459, 460-461 ; 
 recall in, vetoed, 470; popular 
 lethargy in, 510. 
 
 Arkansas, amendment of Consti- 
 tution of, 151, 157; division of 
 counties in, 228; choice of 
 county sites in, 231, 373, 379; 
 loans in local districts of, 254; 
 school tax in, 273; school lands 
 in, 284, 382; local option liquor 
 law in, 290, 29T, 292; fence 
 laws in, 297, 299, 382; purchase 
 of local lands in, 382; initiative 
 and referendum in, 423-424, 427, 
 479; local referendum in, 431. 
 
 Australia, ballot system of, 165. 
 
 Bache, Richard; his opposition to 
 the first Constitution of Penna., 
 30, 49; his alleged Tory inclina- 
 tions, 52. 
 
 Ballot system, necessary to the 
 referendum, 3, no, in, 491; 
 in Penna., no, in; of Austra- 
 lia, 165. 
 
 Bancroft v. Dumas, 320. 
 
 Banks, laws regarding, submitted 
 to popular vote, 191, 192, 193. 
 
 Barto V. Himrod, 211, 273. 
 
 S15 
 
5i6 
 
 INDEX 
 
 Bayard, Col. John; his opposi- 
 tion to the first Constitution of 
 Penna., 45. 
 
 Berkeley, freeholders' charter in 
 city of, 349; initiative and refer- 
 endum in, 442; recall in, 458. 
 
 Biddle, Owen, a member of the 
 Penna. Convention of 1776, 16. 
 
 Biennial sessions of state legis- 
 latures, 79, 80, 81. 
 
 Bills of Rights in America, 2, 5. 
 
 "Boss" government in America, 
 
 473-474, 502. 503- 
 Boston, representative system in, 
 109; street railway tracks in, 
 
 304- 
 
 Bounties; for the scalps of wild 
 animals, 262; for hedges, 263. 
 
 Bradshaw v. Lankford, 332. 
 
 Bridges, public control of, 259. 
 
 Brig Aurora v. United States, 327. 
 
 Brodbine v. Revere, 487. 
 
 Bryan, George, one of the fram- 
 ers of the first Constitution of 
 Penna., 27. 
 
 Bryce, James, views of, on Con- 
 stitutional Conventions, 98, 115, 
 116; on local government in the 
 United States, 224; on the refer- 
 endum, 391. 
 
 Budget, annual, in cities, 269. 
 
 Bull V. Read, 326. 
 
 Burgess v. Rice, 319, 330. 
 
 Burnet, influence of writings of, 10. 
 
 California, special legislation in, 
 85; rules governing parliament- 
 ary procedure in, 85; amend- 
 ment of Constitution of, 151; 
 woman suffrage in, i6o; re- 
 moval of state capital in, 162, 
 178,179,205; amendment elec- 
 tions in, 167, 170, 172; finan- 
 cial referendum in, 183, 185; 
 
 advisory referendum in, 207; 
 classes of cities and counties 
 in, 220, 221; "Home Rule" 
 for cities in, 222, 235, 347-3S6, 
 360, 361. 362, 439-442; Home 
 Rule for counties in, 223, 235; 
 choice of county sites in, 231, 
 373; township system in, 240; 
 high schools in, 276, 374; limit 
 of debt of local districts of, 280; 
 initiative and referendum in, 
 307, 309, 368, 384, 387, 426, 
 430, 431; judicial opinions on 
 lawmaking by popular vote in, 
 321, 322, 323; recall in cities of, 
 456, 459; recall in counties of, 
 458-459; recall in state of, 460. 
 
 Canals, public aid to, 243, 244. 
 
 Cannon, James; a member of the 
 Penna. Convention of 1776, 16, 
 27, 48. 
 
 Capital, state, selection of site for, 
 119, 176-179; removal of, in 
 California, 162, 178, 205; in 
 Texas, 176; in Oregon, 177, 
 178; in Kansas, 177; in Colo- 
 rado, 177, 178; in South Da- 
 kota, 177; in Montana, 178; in 
 Georgia, 178; in Idaho, 178; 
 in Minnesota, 178; in Missis- 
 sippi, 178; in Nebraska, 178; in 
 Washington, 178; in Wyoming, 
 178; in Pennsylvania, 178; in 
 Oklahoma, 416, 417, 418, 419, 
 499. 
 
 Carey, Charles H., 503. 
 
 Cedar Rapids, 452. 
 
 Cemeteries, purchase of land for, 
 260, 261. 
 
 Charters for cities, 222, 223, 224, 
 234, 23s. 335 -367. 434 et seq. 
 
 Checks and balances in govern- 
 ment, 7, 8, 67, 72, 198, 472, 489, 
 
INDEX 
 
 517 
 
 Chinese immigration in Nevada, 
 207. 
 
 Cities, government of, 219-224, 
 234-236,335-367; sites for pub- 
 lic buildings in, 233; selection 
 of name for, 234; special legis- 
 lation for, 236, 237; failure of 
 the representative system in, 
 
 241, 335-337. 363-364, 434 et 
 seq. 
 Clymer, George; a member of the 
 Penna. Convention of 1776, 16, 
 
 19, 45- 
 
 Colorado, limit of legislative ses- 
 sion in, 82; amendment of Con- 
 stitution of, 151, 157; woman 
 suffrage in, 160; amendment 
 elections in, 167; choice of cap- 
 ital site in, 177, 178; poll of 
 people in, on loan for capitol 
 buildings, 188, 189; poll of peo- 
 ple on tax questions in, 189, 
 190; on the division of counties 
 in, 228; on choice of county 
 sites in, 231, 373; on mayors' 
 salaries in, 268; on limit of 
 debt in local districts of, 279; 
 initiative and referendum in, 
 424, 427, 479; local referendum 
 in, 430, 431; Home Rule char- 
 ters in, 442, 445; recall in cities 
 of, 465; Supreme Court of, on 
 referendum, 494. 
 
 Colorado Springs, charter of, 442. 
 
 Colquitt, Governor, 484-485, 509. 
 
 Commission government, 434, 
 446-453; recall a feature of, 
 461-463. 
 
 "Common Sense," Paine's, 5, 6, 
 7,8. 
 
 Condorcet; his advocacy of single 
 chamber government in France, 
 28, 36, 37; his friendship with 
 Franklin, 31, 37. 
 
 Confederate pensions, 161. 
 
 Connecticut, first Constitution of, 
 referred to popular vote, 112; 
 plan for amending Constitution 
 of, 146, 147, 152; amendment 
 elections in, 166; local option 
 in, 289, 290, 291, 371, 372; city 
 government in, 438. 
 
 Constitutions, state, growing length 
 and changed character of, 87, 88, 
 89, 94, 96, 99, 100, 155, 156, 
 158, 475-476; who makes them, 
 116, 117; referendum on, 99- 
 127; the amendment of, 93, 
 94, 128-172, 476-477, 507-509; 
 length of life of, 94, 95, 96, 99. 
 
 Constitutional convention, rise to 
 power of the, 71-98; local dis- 
 tricts seeking protection of, 222, 
 
 224, 33^1 363, 364; is it a 
 sovereign body? 124-126; pow- 
 er of, in adopting and amend- 
 ing constitutions, 128-141; high 
 character of, 97, 98, 117; in- 
 creased powers of, 475; position 
 of, attacked, 476. 
 
 "Constitutionalists" in Pennsyl- 
 vania, II, 38, 53, 56, 58, 59, 60, 
 62, 65. 
 
 "Constitutional Society" in Penn- 
 sylvania, 27, 50, 61. 
 
 Continental Congress, 8, 13, 21, 
 48, 78. 
 
 Contingent event,, what consti- 
 tutes a, in law-making, 211, 
 324-328, 333, 481, 486. 
 
 "Contrat Social," influence of, in 
 America, 2, 3, 6. 
 
 Convict labor in New York, 206- 
 207. 
 
 Cooley, Judge, views of, on dele- 
 gation of legislative power, 209. 
 
 Corrupt Practices act in Oregon, 
 403, 501. 
 
Si8 
 
 INDEX 
 
 Council of Censors in Pennsyl- 
 vania, 21, 22, 52, S4-6o, 65, 128, 
 129, 143; in Vermont, 24, 129, 
 
 152- 
 Council of Revision in New York, 
 
 79, "8, 131, 139. 
 Counties, classification of, in Cali- 
 fornia, 220, 221; Home Rule 
 for, in California, 223, 235; as 
 local government units, 224, 
 225; division of, 228, 229, 407; 
 selection of capitals of, 231-233, 
 373, 377-380; organization of, 
 into townships, 239-240; refer- 
 endum in, in Oklahoma, 429; 
 referendum in, in California, 430; 
 referendum in, in Wisconsin, 
 
 431- 
 Coyle V. Smith, 499. 
 
 D'Alembert; his friendship with 
 Franklin, 31. 
 
 Dallas, city government of, 435, 
 452; recall in, 464; government 
 of, under review by Supreme 
 Court, 483-484. 
 
 Dambach, Professor, 489. 
 
 Declaration of Independence, 5, 
 42, rp2. 
 
 Declaration of the Rights of Man 
 in France, 2. 
 
 Delaware, first Constitution of, 45, 
 78; biennial sessions in, 80; last 
 convention in, 96; Constitution 
 of, not submitted to the people, 
 113, 116, 122; constitutional pro- 
 vision regarding conventions in, 
 130; submission of convention 
 question in, 132, 134, 135; 
 amendment of Constitution of 
 1776, 136, 140, 142-145; amend- 
 ment of later Constitutions of, 
 150; local option law in, 288-289; 
 judicial opinion on law-making 
 
 by popular vote in, 319; ad- 
 visory referendum in, 419-420; 
 local referendum in, 432. 
 
 Delegated authority not to be re- 
 delegated, 209, 479, 482, 483- 
 484. 
 
 Democratic party, radicalism in, 
 426. 
 
 Denison (Tex.), recall in, 464. 
 
 Denver, charter of, 442. 
 
 Des Moines, charter of, 452. 
 
 Dickinson, John; his opposition to 
 the first Constitution of Penna., 
 
 45, 47, 48, 52- 
 Diderot, 32. 
 Direct primary laws, 400, 403, 405, 
 
 SOI. 
 Divorce in South Dakota, 394. 
 Dogs, laws to tax, 264. 
 Dubourg, Franklin's friendship 
 
 with, 29. 
 Dupont, Franklin's friendship with, 
 
 29. 
 
 EcoNOMiSTES, Franklin's interest 
 in the, 29. 
 
 Educational test for suflfrage, in 
 Mississippi, 120; in South Caro- 
 lina, 121; in Delaware, 122; in 
 Louisiana, 123, 497-498; in 
 California, 207; in Oklahoma, 
 418, 499; in other states, 497- 
 498. 
 
 Employers' Liability Laws, 406. 
 
 Enabling acts for admission of 
 states, 112, 495-499. 
 
 England, constitutional forms of, 
 carried over to America, 7, 10, 
 13, 26, 35, 38, 64, 66, 77; how 
 the American system differs 
 from that of, 116, 142. 
 
 Equality of men, doctrine of, 
 500-501. 
 
 Erie canal, improvement of, 185. 
 
INDEX 
 
 S19 
 
 Estacada (Oregon), recall in, 
 468-469. 
 
 Eureka, freeholders' charter in city 
 of, 349, 441. 
 
 Executive power; how exercised, 
 in American states, 9, 78, 79; 
 in Pennsylvania, 20, 56, 57, 58, 
 64, 106; restraint on, by the 
 constitutional convention, 87. 
 
 Ex parte Farnsworth, 463-484. 
 
 Ex parte Wagner, 493. 
 
 Ex parte Wall., 321-323. 
 
 Farmers' Alliance Movement, 391. 
 
 Federal Constitution (United 
 
 States), 35, 62, 63, 64, 69, 71, 
 
 I 77, 79. 121, 156, 487-500- 
 
 Federation of Labor, 407. 
 Feek v. Township Board, 328. 
 Fence laws in local districts, 295- 
 
 300, 373-374- 
 
 Financial credit; of states, 84, 
 182-191; of localities, 84, 241- 
 285. 
 
 Fire, protection from, in cities, 255. 
 
 Fish protection in Oregon, 403- 
 404, 407-408. 
 
 Florida, limit of legislative session 
 in, 81; adoption of Constitution 
 of, in 1839, 113, 120; amend- 
 ment of Constitution of, 151; 
 school tax in, 274; local option 
 in, 289, 290, 291, 292, 293, 372; 
 choice of county sites in, 373; 
 city government in, 436-438. 
 
 Folkmote in Switzerland, 3, 108. 
 
 Fort Worth, city government in, 
 435, 452; recall in, 464. 
 
 France, revolutionary Constitu- 
 tions in, I, 37, 76; influence 
 of, in constitutional matters in 
 America, 4 et seq.; single cham- 
 ber system in, 28, 62, 63, 67, 71; 
 Franklin in, 28-39, ^2; policy 
 
 of, toward America, 42; con- 
 stitutional conventions in, 75; 
 plebiscite in, 102. 
 
 Franchises for private companies, 
 in cities, 250-252, 308, 429. 
 
 Franklin, Benjamin; democratic 
 views of, 5; president of the 
 Pennsylvania convention of 
 1776, 16, 18, 27; part taken by, 
 in frammg the first Constitution 
 of Pennsylvania, 27, 28, 30, 42, 
 61; his years in France, 28-34; 
 his friendship with the French 
 philosophers, 36-39; president 
 of Pennsylvania, 38, 62; his 
 defense of the Pennsylvania 
 Constitution, 38-42; his uni- 
 versal reputation as a philoso- 
 pher, 42-44; his return to 
 America, 60-6 r. 
 
 Freeholders' charters for cities, 
 343-361- 
 
 Fresno, charter of, 439, 441; recall 
 in, 458. 
 
 Fuller, Chief Justice, 490. 
 
 Galveston, city government of, 
 
 446-448, 452. 
 Gardiner (Me.), recall in, 465. 
 Geebrick v. State, 322, 323. 
 General elections, 135, 164-169. 
 General laws for cities and local 
 
 districts, 219, 235, 287, 3S3-359, 
 
 361, 371- 
 Georgia, first Constitution of, 25; 
 annual legislative sessions in, 80; 
 number of Constitutions in, 95; 
 reference of Constitution of, to 
 popular vote, 112; constitutional 
 conventions in, 129, 140, 143; 
 amendment of Constitution of, 
 145, 151; confederate pensions 
 in, 161; removal of capital in, 
 178; choice of county sites in. 
 
520 
 
 INDEX 
 
 231. 373. 378; public buildings 
 in local districts of, 254; school 
 tax in, 274; limit of debt in local 
 districts of, 280; local option 
 law in, 290, 292, 293, 372; fence 
 laws in, 297, 299, 300, 373. 
 
 Germany, Constitution of, 77; 
 political system of, 473. 
 
 Gloucester (Mass.), city govern- 
 ment of, 438, 452. 
 
 Goddin v. Crump, 319. 
 
 "Grandfather Clauses"; see Edu- 
 cational Test for Suffrage. 
 
 Grand Rapids, referendum in, 434. 
 
 Grange, political influence of, 404. 
 
 Grass Valley, freeholders' charter 
 for city of, 349. 
 
 Greencastle Township v. Black, 
 322. 
 
 Greensboro, commission govern- 
 ment in, 434, 435; recall in, 463. 
 
 Groesch v. The State, 322. 
 
 Guild, Governor, 487. 
 
 Hamilton, Alexander; his serv- 
 ices to America, 66. 
 
 Harrington, influence of writings 
 of, 10, 12. 
 
 Haverhill, city government of, 438, 
 452; recall in, 464-465. 
 
 Hedge Law in Kansas, 300, 305. 
 
 Herd Laws, 295-300. 
 
 Hoadly, influence of writings of, 10. 
 
 Holman, F. V., 503, 505. 
 
 "Home Rule" for cities, 222-224, 
 337-361, 401, 439-446, 449. 502. 
 
 Hopkins v. City of Duluth, 493- 
 494. 
 
 House of Lords in England, pro- 
 posed abolishment of, 18. 
 
 Houston, city government of, 452. 
 
 Idaho, limit of legislative session 
 in, 82; submission of Constitu- 
 
 tion in, 113; amendment of 
 Constitution of, 151; woman 
 suffrage in, 160; removal of 
 capital of, 178, 179; financial 
 referendum in, 184; referen- 
 dum on rate of taxation in, 190; 
 division of counties in, 229; 
 choice of county sites in, 231; 
 selection of names of towns and 
 cities id, 234; loans for ceme- 
 teries in, 261; limit of debt in 
 local districts of, 280; referen- 
 dum proposed in, 426; recall 
 proposed in, 459, 461. 
 
 Illinois and Michigan Canal, sale 
 or lease of, 188. 
 
 Illinois, length of Constitution of, 
 87; number of Constitutions of, 
 95; suffrage proposition in, 119; 
 amendment of Constitution of, 
 151, 157; financial referendum 
 in, 183, 184, 185; lease of canal 
 in, 188; poll of people on ex- 
 penditure for newcapitolin, 188; 
 banking laws in, 191, 192; par- 
 tition of counties in, 229; choice 
 of county sites in, 231, 373; town 
 meetings in, 233; reform of 
 civil service in, 237, 375; city 
 councils in, 238; township sys- 
 tem in, 240; public aid to rail- 
 ways in, 246; expenditure for 
 hospitals in local districts of, 
 255; road tax in, 258, 266; city 
 budgets in, 270; high schools 
 in, 276, 374; normal schools in, 
 277; library tax in, 278; limit 
 on tax rate in, 281 ; school lands 
 in, 284, 382; judicial opinion on 
 law-making by popular vote in, 
 319; advisory referendum in, 
 419; commission government in, 
 449, 451; recall in cities of, 461, 
 463. 
 
INDEX 
 
 521 
 
 Indiana, method of amending Con- 
 stitution of, 152, 157; choice of 
 county sites in, 232, 373, -379; 
 road tax in, 259; free turnpikes 
 in, 259; school lands in, 284; 
 judicial opinion on law-making 
 by popular vote in, 321-323; 
 referendum proposed in, 426. 
 
 Industrial companies, public aid 
 for, 248-250. 
 
 In re Duncan, 490. 
 
 In re Pf abler, 493. 
 
 Internal improvements, 242-248. 
 
 Iowa, suffrage proposition in, 119; 
 propositions submitted to people 
 of, 120; submission of conven- 
 tion question in, 133; amend- 
 ment of Constitution of, 152; 
 financial referendum in, 183, 
 184; banking laws in, 191, 192; 
 prohibition law in, 204, 212; 
 choice of name of cities and 
 towns in, 234; county govern- 
 ment boards in, 237; public aid 
 to railways in, 248; franchises 
 in cities of, 251; public build- 
 ings in local districts of, 253- 
 254; waterworks and lighting 
 plants in cities of, 257; tax for 
 monuments in, 264; high schools 
 in, 276; library tax in, 278; fence 
 kws in, 297, 299, 373; initiative 
 and referendum in, 307, 309, 
 368, 384, 388; judicial opinion 
 on law-making by popular vote 
 in, 321-323; commission govern- 
 ment in, 449-450; recall in cities 
 of, 461, 463. 
 
 Irrigation districts, 226, 258. 
 
 Jameson, Judge; his views on 
 constitutional conventions, 73, 
 76, 77, 87-89, 97, 98, 116, 127. 
 
 Jefferson, Thomas, 492. 
 
 Jellinek; his studies regarding 
 America and France, i, 2, 34. 
 
 Judges, recall of, 454-455, 461; 
 Taft on recall of, 470. 
 
 Judiciary, place of, in system of 
 government in American States, 
 9. 2i> 52, 57, 58, 65; conven- 
 tion's restrictions on the, 87; 
 referendum in reference to the, 
 in local districts, 238; respect for, 
 
 454-455- 
 Junction City (Oregon), recall in, 
 467. 
 
 Kadderly v. Portland, 492. 
 
 Kansas, limit of legislative session 
 in, 82; suffrage proposition in, 
 119; amendment of Constitution 
 in, 151, 157; woman suffrage 
 in, 160; amendment elections 
 in, 167; site of state capital 
 in, 177; financial referendum 
 in, 184; banking laws in, 192; 
 choice of county sites in, 231, 
 373, 377; sites for public build- 
 ings in cities of, 233; selection 
 of name for cities and towns of, 
 234; public aid to railways in, 
 248; public aid to industrial 
 companies in, 249; free bridges 
 in, 259; cemeteries in, 261; en- 
 couragement of coal-mining in, 
 261; fire tax in, 262; hedge 
 bounty in, 263; appropriations 
 for poor in counties of, 263; high 
 schools in, 276; library tax in, 
 278; school lands in, 285; poor 
 farms in, 285; fence laws in, 
 297, 299, 300; hedge law in, 
 305; commission government in, 
 449, 450; recall in cities of, 461, 
 463. 
 
 Kansas City, charter of, 345-347, 
 361. 
 
522 
 
 INDEX 
 
 Kent, Chancellor, views of, on sub- 
 mission of Constitutions, 130. 
 
 Kentucky, limit of legislative ses- 
 sion in, 81, 82; special legislation 
 in, 85; length of Constitution 
 of, 88; constitutional conven- 
 tion in, 96; no submission of 
 Constitution in, 113, 116, 125, 
 126; submission of convention 
 question in, 130, 133, 134, 140; 
 amendment of Constitution of, 
 15!) 157; financial referendum 
 in, 184; partition of counties in, 
 229; choice of county sites in, 
 232, 373; county government 
 boards in, 238; public grants to 
 road companies in, 245; public 
 buildings in local districts of, 
 253; road tax in, 259; free turn- 
 pikes in, 259; free bridges in, 
 259; school tax in, 274, 277; 
 high schools in, 276; limit of 
 debt in local districts of, 280; 
 local option in, 290, 291, 292, 
 380; fence laws in, 297, 299, 
 300, 373, 382; judicial opinion 
 on law-making by popular vote 
 in, 331; commission government 
 
 in, 449. 451- 
 Keokuk, commission government 
 
 in, 452- 
 Kiernan v. City of Portland, 492. 
 
 Labor questions submitted, in 
 New York, 206-207; ^ Massa- 
 chusetts, 303. 
 
 Landsgemeinde, in Switzerland, 3, 
 108. 
 
 La Rochefoucauld, the Duke de; 
 his advocacy of the single cham- 
 ber system, 28, 36, 37, 38; his 
 friendship with Franklin, 31, 32, 
 62. 
 
 Leavenworth, 452. 
 
 Lee, Richard Henry, his views on 
 government, 8. 
 
 Legislatures, Rousseau's theories 
 regarding, 3; Adams' theories 
 regarding, 8, 9, 67, 68; decline 
 of power of, in the American 
 states, 71 et seq.; rights of, in 
 framing constitutions, 73-75; in 
 the election of magistrates, 78, 
 79; biennial sessions of the, 
 79-81; limit of length of ses- 
 sions of, 81-83; limit of field of 
 activity of, 84-86, 218, 219, 222; 
 attacks of, on conventions, 91, 
 92, 93; degeneracy of, 9.7, 156, 
 158, 186, 219, 286, 363, 364; 
 constitutional amendment by 
 the, 141-172; delegation of au- 
 thority by, 173, 209, 479, 482, 
 483-484; power of the, over local 
 governments, 223, 224, 328-333. 
 
 Leibnitz, Franklin compared with, 
 
 43- 
 
 Le Veillard, his friendship with 
 Franklin, 38, 39. 
 
 Lewis and Clark Centennial, 506. 
 
 Lewiston (Idaho), charter of, 464. 
 
 Libraries, taxation for, 277, 278. 
 
 Lighting, franchises for, 251, 252; 
 plants for, as municipal enter- 
 prises, 256, 257. 
 
 Liquor legislation, in states, 159, 
 160, 161, 200-205, 394, 400, 404, 
 406-407, 417, 419, 421, 422, 502; 
 in local districts, 286-294, 318- 
 323, 371, 372; large vote on 
 questions affecting, 508. 
 
 Live stock, restraint of, in local 
 districts, 295-300. 
 
 Locke, John Adams' studies of, 
 12. 
 
 Locke's Appeal, 322. 
 
 Long Beach, charter of, 439; re- 
 call in, 458. 
 
INDEX 
 
 523 
 
 Los Angeles, freeholders' charter 
 in. 348, 353, 354, 440, 441; re- 
 call in, 455-458, 465-466; ex- 
 perience of, with referendum, 
 SOS- 
 Lottery, in Louisiana, 160; in Ne- 
 vada, 160-161; in New Jersey, 
 161. 
 
 Louisiana, length of Constitution 
 of, 88; efforts of legislature of, 
 to bind convention of, 91, 92; 
 number of constitutions in, 95; 
 constitutional convention in, 96; 
 no submission of Constitution 
 in, 113-116, 138; disfranchise- 
 ment of negroes in, 123, 124, 140, 
 497; amendment of Constitu- 
 
 ' tion in, 151; lottery amendment 
 in, 160; .confederate pensions 
 in, 161; leasing out of convicts 
 in, 161; amendment elections 
 in, 170; partition of counties in, 
 229; choice of county sites in, 
 232; public aid to railways in, 
 248; limit of debt in local dis- 
 tricts of, 280; school lands in, 
 284; right of way for street-car 
 lines in, 304; judicial opinion on 
 law-making by popular vote in, 
 330; popular vote on city char- 
 ters in, 342, 343; commission 
 government in, 449, 451; recall 
 in cities of, 461, 463. 
 
 Lowell, A. L., 478. 
 
 Lum V. Vicksburg, 327. 
 
 Lynching, methods of restricting, 
 
 378. 
 Lynn, recall in, 465. 
 
 Madison, James, views of, re- 
 garding single chamber gov- 
 ernment, 69. 
 
 Magistrates, election of, by the 
 state legislatures, 78, 79. 
 
 Maine, constitutional commission 
 in, 94; first Constitution of, 
 referred to popular vote, 112; 
 amendment of Constitution of, 
 149, 151, 154; legislative repre- 
 sentation in, 195; separation of, 
 from Massachusetts, 96, 228; 
 prohibition law in, 201-202, 213, 
 214; referendum in, 420-421, 
 427, 479; local referendum in, 
 429-430, 431. 
 
 Maize v. The State, 321, 322, 323. 
 
 Majority, meaning of, 153; power 
 
 of, 155- 
 
 Maryland, salutary example of 
 first Constitution of, 64, 107; 
 biennial sessions in, 80; limit 
 of legislative session in, 81; 
 submission of convention ques- 
 tion in, 133; amendment of 
 Constitution of, 142, 143, 144, 
 151; civil service in, 162; par- 
 tition of counties in, 229; pub- 
 lic aid for railroads in, 247, 
 312; expenditure for city fire 
 department in, 256; salary of 
 mayor in, 269; free schools in, 
 271; fence laws in, 297; oyster 
 law in, 301; judicial opinion 
 on law-making by popular vote 
 in. 319. 330, 332; incorporation 
 of towns and cities in, 340. 
 
 Massachusetts, reference of first 
 Constitution of, to popular vote, 
 18, 103, 104, 105, no, III, 114, 
 118; sentiment in favor of sin- 
 gle chamber in, 69-71; early 
 Constitutions of, 74, 75; feat- 
 ures of first Constitution of, 78, 
 143; annual legislative sessions 
 in, 80; proxy system in, 109; 
 submission of convention ques- 
 tion in, 128, 129; amendment 
 of Constitution of, by the leg- 
 
524 
 
 INDEX 
 
 islature, 147, 152; amendment 
 elections in, 167; Maine's sep- 
 aration from, 196; municipal 
 suffrage for women in, 208; con- 
 tingency theory in, 211; city 
 government in, 238; local op- 
 tion in, 289-293; eight-hour day 
 in, 303; rights of electric street 
 railways in, 304; form of sub- 
 mission of local laws in, 313; ju- 
 dicial opinion on referendum in, 
 318, 325, 480, 487; town-meet- 
 ing system in, 331; incorpora- 
 tion of towns and cities in, 340; 
 referendum defeated in, 413; 
 city charters in, 438; state law 
 referred to people in, 487. 
 
 Matlack, Timothy; a framer of 
 the first Constitution of Penn- 
 sylvania, 27, 30. 
 
 McKean, Thomas; his opposition 
 to the first Constitution of Penn- 
 sylvania, 45. 
 
 Memphis, commission government 
 in, 452. 
 
 Michigan constitutional commis- 
 sion in, 94; reference of Con- 
 stitution of, to popular vote, 112; 
 submission of convention ques- 
 tion in, 133; amendment of Con- 
 stitution of, 151, 154; removal 
 of capital of, 179; financial ref- 
 erendum in, 183; banking laws 
 in, 191, 192; prohibition law 
 in, 203, 204, 216; choice of 
 county sites in, 232; laws re- 
 garding roads in, 239, 245, 259, 
 266; city budgets in, 270; library 
 tax in, 278; local option law 
 in, 290, 292; judicial opinion on 
 referendum in, 328; referendum 
 in, 423; local referendum in, 
 434; Home Rule charters in, 
 443-444, 445- 
 
 Milton, John, Adams' studies of, 12. 
 
 Minnesota, amendment ■ of Con- 
 stitution of, 151; amendment 
 elections in, 161, 162, 167, 169, 
 171; removal of state capital 
 of, 178; financial referendum 
 in, 187, 190, 191; Home Rule 
 for cities of, 222, 235, 358, 361, 
 439, 442, 445; partition of coun- 
 ties in, 229; choice of county sites 
 in, 232; selection of name of 
 cities and towns in, 234; road 
 laws in, 239, 259; public aid to 
 canal companies in, 245; loans 
 for public buildings in local dis- 
 tricts of, 254; loans for ceme- 
 teries in, 261; fence laws in, 
 262, 297; library tax in, 278; 
 local option law in, 290, 291, 
 372; commission government 
 in, 449, 450; recall in cities of, 
 461, 463; opinion of Supreme 
 Court of, 493-494- 
 
 Minor v. Happersett, 490. 
 
 Minorities, rights of, 509. 
 
 Minority representation, in cor- 
 porations in New Hampshire, 
 206, 215; in cities in Illinois, 
 238. 
 
 Mirabeau; his advocacy of the sin- 
 gle chamber system in France, 
 28, 36. 
 
 Mississippi, quadrennial legislative 
 sessions in, 80; length of Consti- 
 tution of, 88; number of consti- 
 tutions in, 95; new Constitution 
 in, 96; no submission of Con- 
 stitution in, 113-116, 120, 125, 
 126, 138, 140; suffrage test in, 
 120, 121, 498; amendment of 
 Constitution in, 151; removal of 
 capital of, 178; division of coun- 
 ties in, 229; division of judicial 
 districts in, 230; choice of county 
 
INDEX 
 
 525 
 
 sites in, 232; local option law iji, 
 290, 292, 293, 372; fence laws 
 in, 297, 299, 300; judicial opin- 
 ion on referendum in, 327; uni- 
 versity of, 383; commission gov- 
 ernment in, 449, 450-451. 
 
 Missouri, length of Constitution of, 
 87; number of constitutions of, 
 95; submission of convention 
 question in, 132; amendment of 
 Constitution of, 151, 161; finan- 
 cial referendum in, 184, 185; 
 banking laws in, 192; classifi- 
 cation of cities in, 220; Home 
 Rule for cities of, 222, 235, 343- 
 347. 360, 361, 439, 442, 445; di- 
 vision of counties in, 229; choice 
 of coimty sites in, 232; boards 
 of public works in cities of, 239; 
 township system in, 240; city 
 franchises in, 252; pensions to 
 policemen in, 269; school tax in, 
 274; library tax in, 277; limit 
 of debt in local districts of, 280; 
 sale of parks in, 285; local option 
 law in, 290-292, 372; fence laws 
 in, 297, 299, 374; Sunday law 
 in, 301; conditional legislation 
 in, 314; referendum defeated in, 
 413; referendum adopted and 
 used in, 422-423, 427, 479; con- 
 stitutional amendments in, 477. 
 
 Monarchy, character of, 488-489. 
 
 Montana, limit of legislative ses- 
 sion in, 81; length of Constitu- 
 tion of, 88; amendment of Con- ■ 
 stitution of, 151, 157; removal 
 of captial in, 178; financial ref- 
 erendum in, 184; rate of state 
 taxation in, 190; choice of county 
 sites in, 232; school tax in, 276; 
 limit of debt in local districts of, 
 281; local option law in, 290- 
 292, 372; adopts referenduna. 
 
 414-41S, 427, 479; local refer- 
 endum in, 428-429, 431. 
 
 Montesquieu, influence of, in 
 America, 7, 12, 64, 142. 
 
 Monuments, tax to erect, 264, 265. 
 
 Mormon Church, 498-499. 
 
 Muhlenberg, F. A.; President of 
 council of censors in Pennsyl- 
 vania and opponent of single 
 chamber system, 56, 59, 64. 
 
 Municipal government, failures in, 
 84, 363, 364; legislature's pow- 
 ers regarding, 328-333, 338, 
 399. 479-480, 481-482; prob- 
 lems of, in America, 335-367. 
 
 Napa, freeholders' charter of city 
 of, 349. 
 
 Napoleon, plebiscites of, 400. 
 
 Nebraska, limit of legislative ses- 
 sion in, 82; parliamentary pro- 
 cedure in, 85; submission of 
 convention question in, 132; 
 amendment of Constitution of, 
 151; liquor licenses in, 161; 
 amendment elections in, 162, 
 170; removal of capital in, 178; 
 division of counties in, 229; 
 county government boards in, 
 237; township system in, 240; 
 public aid for railroads in, 247; 
 city franchises in, 251, 252; pub- 
 lic aid for hospitals in, 255; 
 encouragement of coal-mining 
 in, 261; aid for exposition in, 
 262; bounties for wolves in, 
 262, 375; bonds to relieve poor 
 in counties of, 263; city budgets 
 in, 270; limit on tax rate in, 
 281; initiative and referendum 
 in, 306-310, 368, 384, 386, 389, 
 426, 427, 431. 
 
 Nedham, influence of, in America, 
 10. 
 
526 
 
 INDEX 
 
 Negro suflfrage, 119, 120-124, 194, 
 497-498. 
 
 Nevada, method of amending 
 Constitution of, 152; lottery in, 
 160; Chinese immigration in, 
 207; high schools in, 276, 374; 
 referendum in, 413-414, 426, 
 479; city government in, 438; 
 recall in, 459. 
 
 Neville, influence of, in America, 10. 
 
 New England, democratic system 
 of government in, i, 3, 106-110, 
 
 329- 
 
 New Hampshire, first Constitu- 
 tions of, 18, 74, 78, 105-107, 
 no. III, 118; insurrection in, 
 70; length of Constitutions 
 of, 88; amendment of Consti- 
 tution of, 129, 133, 143, 14s, 
 150; amendment elections in, 
 166; minority representation in 
 corporations in, 206, 215; consti- 
 tutionality of the referendum in, 
 215. 
 
 New Jersey, annual legislative ses- 
 sions in, 80; constitutional com- 
 mission in, 94; method of amend- 
 ing Constitution of, 152; woman 
 suffrage in, 160; amendment 
 elections in, 165, 166; financial 
 referendum in, 183, 184; special 
 laws for cities in, 236, 237; city 
 fire department systems in, 256; 
 tax for board walks in seaside 
 cities of, 260; salaries of local 
 officers in, 269; library tax in, 
 278; high license in, 293, 294, 
 372; fence laws in, 297; local 
 option in, 315; what may be a 
 contingency in, 326; commission 
 government in, 449, 452; recall 
 in cities of, 461, 463. 
 
 "New Jerusalem" in Oklahoma, 
 416-417, 419. 
 
 New Mexico, constitution of, 425; 
 
 initiative and referendum in, 
 
 425-426. 
 Newton, Franklin compared to, 
 
 43- 
 
 New York, features of first Con- 
 stitution of, 78; annual legisla- 
 tive sessions in, 80; constitu- 
 tional commission in, 94; last 
 constitutional convention in, 96, 
 98, 119; Constitution of 1821 
 in, 112, 118, 130, 131, 139; suf- 
 frage proposition in, 119; sub- 
 mission of convention question 
 in, 133; amendment by legisla- 
 tive mode in, 148, 152; finan- 
 cial referendum in, 183-185; 
 free-school law in, 205, 206, 210, 
 216, 273, 311; convict labor in, 
 206, 207; tax for monuments in, 
 265; pensions for school teach- 
 ers in, 269, 374; library tax in, 
 278; local option in, 290-292; 
 freedom of cities in, 361-363, 
 366, 367. 
 
 New York City, Sunday laws in, 
 302. 
 
 Non-Intercourse Acts, 326. 
 
 North Carolina, first Constitution 
 of, 12; submission of later Con- 
 stitution of, to popular vote, 
 112; amendment of Constitu- 
 tion of, 151; financial referen- 
 dum in, 186, 187; prohibition 
 law in, 204-205; public aid for 
 
 ■ railroads in, 247-248; public aid 
 to industrial companies in, 249; 
 free bridges in, 259; convicts on 
 roads in, 266; normal school in, 
 277; limit of debt in local dis- 
 tricts of, 279; local option law 
 in, 290-293, 372; liquor dispen- 
 saries in, 294; fence laws in, 297, 
 299, 300, 374; city government 
 
INDEX 
 
 527 
 
 in, 434; restrictions on suffrage 
 in, 498. 
 North Dakota, limit of legislative 
 session in, 81; submission of 
 debatable propositions in, 119; 
 method of amending Constitu- 
 tion of, 152; financial referen- 
 dunl in, 187; woman suffrage 
 in, 194; division of counties in, 
 229; comity government boards 
 in, 237; township system in, 
 240; public aid for raibroads in, 
 247; city budgets in, 270; what 
 may be a contingency in, 325; 
 fence; law in, 374; referendum 
 proposed in, 426; commission 
 government in, 449, 450. 
 
 Oakland, freeholders' charter in 
 city of, 349- 
 
 Ohio, amendment of Constitution 
 of, 152, 155; banking laws in, 
 191, 192; classification of cities 
 in, 220; special legislation for 
 cities in, 221; division of coun- 
 ties in, 229; choice of county 
 sites in, 232; boards of educa- 
 tion in, 237; public buildings in 
 local districts of, 254, 285; re- 
 lief of poor in local districts of, 
 255; free turnpikes in, 259; cem- 
 eteries in, 261; public money 
 for county fair grounds in, 262; 
 tax for monuments in, 265; 
 hearse tax in, 267; reimburse- 
 ment of local officials in, 267, 
 268; library tax in, 278; school 
 lands in, 284; sale of railway in, 
 285; local option law in, 290, 
 292; voting machines in, 305; 
 children's homes in, 374; refer- 
 endum in cities of, 431. 
 
 Oklahoma, referendum in, 415- 
 419, 427, 479; fixing capital of, 
 
 416-419; local referendum in, 
 429, 431; Home Rule charters 
 in, 443, 445; recall in cities of, 
 465; opinion of Supreme Court 
 of, 493; violates faith, 499. 
 
 Ontario, Sunday law in, 302. 
 
 Oregon, limit of legislative session 
 in, 82; suffrage proposition in, 
 119; method of amending Con- 
 stitution of, 152; state capital 
 of, 177, 178; fence laws in, 297, 
 299, 300, 374; incorporation acts 
 in, 341; initiative and referen- 
 dum in, 397-412, 427, 479; lo- 
 cal referendum in, 427-428, 431; 
 Home Rule charters in, 442- 
 443> 445 ; recall in, 459, 467-470; 
 amending Constitution of, 477; 
 opposition to referendum in, 
 477-478; opinion of Supreme 
 Court of, 492; results of refer- 
 endum in, 501-508. 
 
 Oysters, law for protection of, in 
 Maryland, 301. 
 
 Paine, Thomas; his activity in 
 America and France, 5, 6, 7, 8, 
 
 i3> 27, 48. 
 Palo Alto, charter of, 439, 441, 
 
 458- 
 
 Parker v. Commonwealth, 320, 
 322, 323. 
 
 Parks, tax for, in cities, 260. 
 
 Parliamentary government, 472. 
 
 Pasadena, charter of, 439, 441. 
 
 Patrons of Husbandry, 403-404. 
 
 Pennsylvania, democratic feeling 
 in, during the Revolution, 7 et 
 seq.; adoption of first Constitu- 
 tion of, 11-13, 17-22, 27-34 et 
 seq.; county committees in, 14; 
 provincial conference in, 14, 15; 
 first constitutional convention in, 
 14-18; Franklin's defence of 
 
528 
 
 INDEX 
 
 first Constitution of, 38-41; op- 
 position to and downfall of Con- 
 stitution of, 45 et seq.; second 
 Constitution of, 64, 65; method 
 of amending first Constitution 
 of, 74, 128, 129; length of Consti- 
 tutions of, 87; number of Con- 
 stitutions of, 95; no submission 
 of first Constitution of, 101, 102, 
 107, 128; ballot system in, no, 
 111; method of amending pres- 
 ent Constitution of, 152; amend- 
 ment elections in, 166, 170; re- 
 moval of state capital in, 178; 
 classification of cities in, 219, 
 220; special legislation in, 221; 
 poor-house sites in, 233; road 
 law in, 244; dog tax in, 264; 
 free schools in, 271, 272; limit 
 of debt in local districts of, 280; 
 local option law in, 288; con- 
 stitutionality of referendum in, 
 
 320- 
 
 Penn, William, admiration of views 
 of, in France, ^^. 
 
 Pensions to civil officials, 269. 
 
 People, as their own law makers, 
 117, 170-172, 232, 233, 281, 282, 
 376-380; indifference and apa- 
 thy of, 166-172, 507-510. 
 
 People ex rel. v. Reynolds, 319. 
 
 People V. Sours, 494. 
 
 People's Power League in Oregon, 
 403- 
 
 Petition, right of, loi ; its lilieness 
 to the initiative, 368, 369. 
 
 Philadelphia, the first capital of 
 the united colonies, 16; a cen- 
 tre of opposition to the first Con- 
 stitution of Pennsylvania, 52; 
 city government of, 220, 447; 
 choice of site for city hall in, 
 233; election on loan bill in, 
 282. 
 
 Philosophical Society, in Phila- 
 delphia, 43. 
 
 "Physiocratie," Franklin's interest 
 in the, 28. 
 
 Plato, Adams' studies of, 12. 
 
 Plymouth colony, proxy system in, 
 109, no. 
 
 Police Jury v. McDonough, 330. 
 
 Political Philosophy, what is, 72. 
 
 Political Science, what is, 72. 
 
 Poor, relief of, 254, 255, 263, 266. 
 
 Portland, initiative and referen- 
 dum in, 428, 508. 
 
 Price, Dr.; his advocacy of the 
 single chamber system, 34, 37. 
 
 " Progressive policies," 426, 452. 
 
 Prohibition of liquor trade; in 
 states, 118, 119, 159, 165, 166, 
 170, 200-205, 212-214, 394) 400, 
 404, 406-407, 417, 419. 421. 422, 
 502, 508; in local districts, 286- 
 
 293- 
 
 Proportional representation in 
 Oregon, 403, 405-406, 501. 
 
 Proprietary government; in mid- 
 dle states, n; in Pennsylvania, 
 14, 40. 
 
 Proxy system in New England, 109. 
 
 Public buildings, loans for; in 
 states, 188, 189; in local dis- 
 tricts, 253, 254. 
 
 Public lands, sale or lease of, 
 283-285. 
 
 Public opinion, influence of, 117, 
 198. 
 
 Public ownership in Oregon, 406. 
 
 QuESNAY, Dr., Franklin's friend- 
 ship with, 29. 
 
 Railways, public aid for, 245- 
 
 248. 
 Recall, 392, 434, 454-470. 
 Reno, city government of, 438. 
 
INDEX 
 
 529 
 
 Representative government, na- 
 ture of, 3, 9," 70, 97, 198, 212, 
 214, 21S-217, 311, 312, 319, 390, 
 391; decline of, 96, 97, 241, 242, 
 
 250, 251, 335-337- 
 "Republican" government, 124, 
 
 125, 174, 198, 3i9> 453, 454, 47i, 
 473-474, 483-485, 487-495, 5o<>- 
 501, 509- 
 
 Republican party, radicalism in, 
 426. 
 
 Repudiation of public debt, 182, 
 241. 
 
 Rhode Island, annual legislative 
 sessions in, 80; constitutional 
 commission in, 93; representa- 
 tive system in, no; submission 
 of first Constitution of, to popu- 
 lar vote, 112; method of amend- 
 ing Constitution of, 152, 153; 
 financial referendum in, 183, 
 184; prohibitory liquor law in, 
 204, 213; industrial companies 
 in, 250; fence laws in, 297, 299; 
 incorporation acts in, 341. 
 
 Rice V. Foster, 319, 322, 323. 
 
 Richmond (Cal.), charter of, 439, 
 442, 458- 
 
 Rittenhouse, David; a member 
 of the Pennsylvania Constitu- 
 tion of 1776, 16. 
 
 Riverside, charter of, 439, 441, 458. 
 
 Roads, laws regarding, in West 
 Virginia, 239; public grants to 
 companies engaged in building, 
 244; public construction of, 258, 
 259; "working out" the tax for, 
 266. 
 
 Roosevelt, President, 493. 
 
 Roseburg (Oregon), recall in, 469- 
 470. 
 
 Ross, George, in Pennsylvania 
 convention of 1776, 16, 19, 45. 
 
 Rotation of offices, 11, 22, 57. 
 
 Rousseau; his influence on politi- 
 cal thought in America, i, 2, 3, 
 4, 24, 32, 34, 66, 471-472, 500- 
 
 Rush, Benjamin; his opposition to 
 the first Constitution of Pennsyl- 
 vania, 45. 
 
 Russia, political system of, 473. 
 
 Sacramento, freeholders' charter 
 
 in, 349, 441- 
 
 Salaries of civil officers, adjust- 
 ment of, 86, 268, 269. 
 
 Salinas City, freeholders' charter 
 in, 439. 
 
 San Bernardino, freeholders' char- 
 ter in, 439, 458. 
 
 San Diego, freeholders' charter in, 
 
 349, 354, 441, 458- 
 San Francisco, freeholders' char- 
 ter in, 347-352; initiative and 
 referendum in, 308, 310, 384, 
 
 386, 389, 439, 441- 
 San Josd, freeholders' charter in, 
 
 349- 
 
 Santa Barbara, freeholders' char- 
 ter in, 349. 
 
 Santa Cruz, freeholders' charter in, 
 439, 441, 458. 
 
 Santa Monica, freeholders' char- 
 ter in, 439, 441, 458. 
 
 Santa Rosa, freeholders' charter 
 
 in, 439- 
 Schools, legislation for, 205, 206, 
 
 210, 226, 243, 270-277, 284. 
 Seattle, freeholders' charter in, 
 
 356; recall in, 465, 466-467. 
 Secession conventions in the South, 
 
 76, 95, 112, 120, 144. 
 Senators, election of, by popular 
 
 vote, 207, 403. 
 Sewerage system, loans in behalf 
 
 of, 257. 
 Shay's Rebellion, in Massachu- 
 setts, 70. 
 
53° 
 
 INDEX 
 
 Sheep, laws to protect, 264. 
 
 Sidney, influence of, in America, 
 10. 
 
 Single chamber government, 7, 10, 
 II, 17, 18-21, 23, 24, 26, 30-41, 
 52-58, 64, 65, 69-72, 96. 
 
 Single Tax in Oregon, 404. 
 
 Socialists, interest of, in the ref- 
 erendum, 404-407, 473, 475, 
 505, 510-511- 
 
 South Carolina, first Constitutions 
 of, 74, 78; annual legislative 
 sessions in,- 80; last convention 
 in, 96; no submission of Con- 
 stitution of, 113, 114, 116, 140; 
 educational test in, 121; amend- 
 ment of Constitution of, 145, 
 150; financial referendum in, 
 185; division of counties of, 
 229; incorporation of tovi^ns and 
 cities in, 230; choice of county 
 sites in, 232; county courts in, 
 238; public aid to railways in, 
 248; taxation of industrial com- 
 panies in, 249; waterworks and 
 lighting plants in, 257; normal 
 school in, 277; liquor dispen- 
 saries in, 294; IjTiching evil in, 
 378; commission government in, 
 449, 451; recall in cities of, 461, 
 463. 
 
 South Dakota, limit of legislative 
 session in, 82; length of Consti- 
 tution of, 88; submission of de- 
 batable propositions in, 118, 
 119; amendment of Constitu- 
 tion of, 151; woman suffrage in, 
 
 160, 195; liquor legislation in, 
 
 161, 290, 294; amendment elec- 
 tions in, 171; initiative and ref- 
 erendum in, 174, 175, 307, 309, 
 310, 368, 384, 385, 388, 389, 
 391-396, 427, 431, 479; state 
 capital site in, 177; choice of 
 
 county sites in^232; city bud- 
 gets in, 270; school tax in, 276; 
 commission government in, 449, 
 450; recall in cities in, 461, 463. 
 
 Sovereignty, where it resides, 72. 
 
 Special elections, 135, 164-169. 
 
 Special legislation, 84, 85, 218- 
 221, 236, 237, 363-366, 370. 
 
 Spokane, freeholders' charter for, 
 356. 
 
 States, admission of, to Union, 
 495-500. 
 
 State ownership of utilities, 242, 
 243, 406. 
 
 State ex rel. Witter v. Forkner, 
 322. 
 
 State V. Frear, 485. 
 
 State V. O'Neill, 486. 
 
 State V. Swisher, 322, 323. 
 
 State V. Weir, 322, 323. 
 
 Statutes, poll of the people on 
 general state, 173 et seg. 
 
 St. Louis, Sunday laws in, 301; 
 charter of, 344-347, 360- 
 
 Stock laws, 295. 
 
 Stockton, freeholders' charter in, 
 
 349- 
 Suffrage, regulation of the, 99, 
 
 100, 1 18-123, IS9, 160, 193-195, 
 
 207, 208. 
 Sunday Laws, in St. Louis, 301; 
 
 in New York, 302; in Toronto, 
 
 302, 303; in South Dakota, 394. 
 Switzerland, primary assemblies 
 
 in cantons of, 3, 108; force of 
 
 example of, in America, 100, 
 
 169. 
 
 Tacoma, freeholders' charter in, 
 356, 357, 452; recall in, 465, 
 467. 
 
 Taft, President, veto message of, 
 470. 
 
 Talbot V. Dent, 319. 
 
INDEX 
 
 531 
 
 Taxation, rate of, in Colorado, 
 i88, 189; in Montana, 190; in 
 Idaho, 190; in Utah, 190; in 
 local districts, 282, 283. 
 
 Tennessee, limit of legislative ses- 
 sion in, 83; submission of Con- 
 stitution of, to popular vote, 112; 
 convention question in, 130, 132; 
 method of amending Constitu- 
 tion of, 153, 157; special laws 
 in, 221; division of counties in, 
 229; choice of county sites in, 
 232; public aid for railroads in, 
 247, 248; school lands in, 284; 
 public incorporation acts in, 
 340. 
 
 Texarkana, charter of, 436, 484, 
 509. 
 
 Texas, limit of legislative session 
 in, 83; number of Constitutions 
 in, 95; amendment of Constitu- 
 tion of, 151; confederate pen- 
 sions in, 161; amendment elec- 
 tions in, 166, 168, 170; site of 
 state capital in, 176; choice of 
 site for university in, 180; divi- 
 sion of counties in, 229; choice 
 of coimty seats in, 232; sea walls 
 in, 258; school taxes in, 274; 
 local option in, 289-293, 372; 
 fence laws in, 297, 299, 300; city 
 charters in, 435-436; Governor 
 of, condemns referendum, 436; 
 commission government in, 449; 
 recall in cities of, 464, 484-485; 
 opinion of Supreme Court of, 
 483-484. 
 
 Tories, influence of, on constitu- 
 tional development in America, 
 17, 26, 52, S3, lor. 
 
 Toronto, Sunday laws in, 302, 303. 
 
 Torrens land registry system, 41 7. 
 
 Town meeting in New England, 3, 
 108-110. 
 
 Township, as a local unit, 225, 240. 
 
 Town, the, as a unit of local gov- 
 ernment, 224, 225. 
 
 Tramway companies, franchises 
 for, 251, 252. 
 
 Trial by jury, 162. 
 
 Turgot; his advocacy of the sin- 
 gle chamber system, 29, 34, 37, 
 42, 69, 7r. 
 
 Turnpikes, public aid to, 244, 245, 
 2S9- 
 
 United States Senators, popular 
 election of, 403. 
 
 Universities, choice of sites for, 
 179-181; money for, in Oregon 
 and Missouri, 404, 422, 505- 
 506. 
 
 U'Ren, W. S., 406. 
 
 Utah, submission of convention 
 question' in, 131; amendment 
 of Constitution of, 151; rate 
 of taxation in, 190; division 
 of counties in, 229; choice of 
 county sites in, 232; library tax 
 in, 278, 374; limit of debt in 
 local districts of, 280; referen- 
 dum in, 396-397, 427, 479; re- 
 ligious restrictions in Constitu- 
 tion of, 498. 
 
 Vallejo, freeholders' charter of 
 city of, 349, 439, 441. 
 
 Vermont, early Constitutions of, 
 23, 24; number of Constitutions 
 in, 95; ballot system in, 11 1; 
 submission of Constitution of, 
 to popular vote, 112; council 
 of censors in, 129; submission 
 of convention question in, 133; 
 method of amending Constitu- 
 tion of, 152, 157; prohibition 
 law in, 202, 203, 214, 216, 217; 
 constitutionality of referendum 
 
532 
 
 INDEX 
 
 m, 321; public incorporation 
 acts in, 341. 
 Veto power of governor, 175, 352, 
 
 353, 363- 
 
 Virginia, Bill of Rights of, 2; first 
 Constitution of, 9, 10, 11, 13, 74, 
 107; biennial sessions in, 80 
 limit of legislative session in, 82 
 length of Constitution of, 87 
 method of amending Constitu- 
 tion of, 152; legislative repre- 
 sentation in, 195; retrocession of 
 land to, by Congress, 197, 327; 
 aid to canals in, 243, 244; inter- 
 nal improvements in, 245; local 
 option law in, 290-292, 372; 
 fence laws in, 297; constitution- 
 ality of referendum in, 319, 
 326. 
 
 Voltaire, meeting of, with Frank- 
 lin, 33- 
 
 Voting machines, 305. 
 
 Waite, Chief Justice, 490. 
 
 Wales V. Belcher, 318, 325. 
 
 Washington, length of legislative 
 session in, 82; length of Con- 
 stitution of, 188; debatable 
 propositions submitted in, 119; 
 amendment of Constitution of, 
 151; woman suffrage in, 160; 
 state capital site in, 178; finan- 
 cial referendum in, 184; Home 
 Rule for cities in, 222, 235, 356, 
 
 357,36°: 361, 439, 441, 445; re- 
 call in, 463, 465, 466-467; choice 
 of county sites in, 232; township 
 system in, 240; encouragement 
 of coal-mining in, 261; liinit of 
 debt in local districts of, 281; 
 referendum proposed in, 426. 
 Waterworks, franchises of com- 
 panies to operate, 251, 252; as 
 municipal enterprises, 256, 257. 
 
 Watsonville, freeholders' charter 
 
 in, 439- 
 
 Webster, Daniel, views of, on 
 Constitutions, 94, 147. 
 
 Weir V. Cram, 322. 
 
 West Virginia, limit of legislative 
 session in, 82; submission of 
 convention question in, 132; 
 amendment of Constitution of, 
 151; legislative representation 
 in, 196; annexation of territory 
 by, 197; division of counties in, 
 229; county courts in, 238; al- 
 ternate road laws in, 239, 316, 
 375; pubHc aid to railways in, 
 248; dog taxes in, 264, 375; 
 school taxes in, 274, 275; high 
 schools in, 276; limit of debt in 
 local districts of, 280; tax rate 
 in, 281; fence laws in, 297, 299, 
 300; public incorporation acts 
 in, 342. 
 
 Whig party, division of, in Penn- 
 sylvania, 53. 
 
 Whig Society in Pennsylvania, 27, 
 48-50. 
 
 Wichita, commission government 
 in, 452. 
 
 Wickersham, Attorney-General, 
 496, 498, 510. 
 
 Wilmington (Del.), referendum in, 
 
 432-433- 
 
 Wilmington (N. C), commission 
 government in, 434, 464. 
 
 Wilson, James; his opposition to 
 the first Constitution of Penn- 
 sylvania, 45, 52; views of, on 
 republican government, 492. 
 
 Wilson, Woodrow, opinions of, on 
 referendum, 391, 506-507. 
 
 Wisconsin, submission of conven- 
 tion question in, 132; method of 
 amending Constitution of, 152; 
 banking laws in, 191, 192; negro 
 
INDEX 
 
 S33 
 
 suffrage in, 193; choice of county 
 sites in, 232; public aid to rail- 
 ways in, 248; city franchises in, 
 252, 375; tax for soldiers' me- 
 morials in, 265; road tax in, 
 266; high schools in, 276; local 
 option in, 290, 291, 293, 372; 
 high license in, 293, 372; reform 
 of primaries in, 306; referendum 
 proposed in, 426; referendum in 
 cities and counties of, 431; Home 
 Rule in, 445; commission gov- 
 ernment in, 449, 452; recall in, 
 459, 461; recall in cities of, 461, 
 463; opinion of Supreme Court 
 of, 483, 485-487. 
 Woman suffrage, icxj, 118, 159, 
 160, 194, 19s, 207, 208, 396, 
 401, 406, 419, 480, 502, 508. 
 
 Wyoming, limit of legislative ses- 
 sion in, 82; amendment of Con- 
 stitution of, 151; site of state 
 capital in, 178, 179; sites for 
 buildings of public institutions 
 in, 181, 182; financial referen- 
 dum -in, 184, 187; division of 
 counties in, 229; organization 
 of cities and towns in, 230; 
 township system in, 240; limit 
 of debt in local districts of, 280; 
 referehdum proposed in, 426; 
 commission government in, 449, 
 452; recall in cities of, 461, 
 463- 
 
 Young, Dr. Thomas; one of the 
 framers of the Pennsylvania 
 Constitution of 1776, 27, 48. 
 
i iM I n i I 111 1 ii|,iiiiiii,'ip' It, vwhh iffii 
 
 KjliiliijlilimJiililiiiilliiiHllilHlllilli'