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Full text of "Documents on the state-wide initiative, referendum and recall"

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DOCUMENTS ON THE STATE-WIDE 
INITIATIVE, REFERENDUM, AND RECALL 



TY 



THE MACMILLAN COMPANY 

NEW YORK • BOSTON • CHICAGO 
SAN FRANCISCO 

MACMILLAN & CO., Limited 

LONDON • BOMBAY • CALCUTTA 
MELBOURNE 

THE MACMILLAN CO. OF CANADA, Ltd. 

TORONTO 



DOCUMENTS ON THE STATE-WIDE 

INITIATIVE, 
REFERENDUM AND RECALL 



BY 
CHARLES A. BEARD 

ASSOCIATE PROFESSOR OF POLITICS IN COLUMBIA UNIVERSITY 
AND 

BIRL E. SHULTZ 

INDIANA SCHOLAR IN POLITICAL SCIENCE 
IN COLUMBIA UNIVERSITY 



■BfON UNIVERSITY 

COLLHE Of LIBERAL ARTS 

LIBRARY 



Nefo fgork 

THE MACMILLAN COMPANY 

1912 

All rights reserved 






-e 



Copyright, 1912, 
By THE MACMILLAN COMPANY. 



Set up and electrotyped. Published January, 191 







NrttoootJ $res$s 

J. S. Oushlng Co. — Berwick & Smith Co. 

Norwood, Mass., U.S.A. 



US 



PREFACE 

This volume includes all of the constitutional amendments 
providing for a state-wide system of initiative and referendum 
now in force, several of the most significant statutes elaborating 
the constitutional provisions, all of the constitutional amend- 
ments now pending adoption, six important judicial decisions, 
and certain materials relative to the state-wide recall. While 
no attempt has been made to go into the subject of the initia- 
tive, referendum, and recall as applied to local and municipal 
government, some illustrative papers showing the system in 
ordinary municipalities and commission-governed cities have 
been included. 1 We have published as an appendix the com- 
plete scheme of government suggested by Mr. W. S. U'Ren and 
a committee of Oregon citizens. This is one of the most sug- 
gestive documents to be found in recent American political lit- 
erature, and it will be read with profit in connection with the 
chapters of Mr. Herbert Croly's Promise of American Life deal- 
ing with state government and administration. 

It is obvious that this volume will soon be partially out of 
date if the several projects for the initiative, referendum, and 
recall now pending are adopted. It is hoped, however, that 
new editions may be issued from time to time so that students 
of government may have readily accessible the primary mate- 
rials for the study of these new institutional devices. 

We are indebted to Mr. H. H. Jones, of the Columbia Grad- 
uate School, for valuable aid in reading the proof. We have 

1 Extensive documentary material on the initiative, referendum, and recall 
in commission-governed cities may be found in Beard, Digest of Short Ballot 
Charters. 

V 



y - Preface 



followed the exact language of the official document in every 
case, and must disclaim responsibility for the atrocious gram- 
mar and painful obscurities to be found in the texts, which (it is 
worthy of note) are, with few exceptions, legislative, not initia- 
tive, measures. c A B 

B. E. S. 



Columbia University, 
August, 191 1. 



TABLE OF CONTENTS 

I. INITIATIVE AND REFERENDUM 

PAGE 

Preface v 

Introductory Note i 

I. South Dakota 70 

II. Utah 7 8 

III. Oregon 79 

IV. Nevada 121 

V. Montana 125 

VI. Oklahoma 137 

VII. Maine 162 

VIII. Missouri 168 

IX. Michigan 178 

X. Arkansas 180 

XI. Colorado 181 

XII. California 184 

XIII. Washington (Proposed) 191 

XIV. Nebraska (Proposed) 195 

XV. Idaho (Proposed) 200 

XVI. Wyoming (Proposed) 201 

XVII. Wisconsin (Proposed) 206 

XVIII. North Dakota (Proposed) 210 

XIX. Arizona (Proposed) 230 

XX. New Mexico (Proposed) 234 

XXI. Illinois (Public Opinion Law) 238 

XXII. Texas (Party Initiative) 240 

vii 



viii Table of Contents 

II. THE ST ATE- WIDE RECALL 1 

PAGE 

XXIII. Oregon 242 

XXIV. Arizona (Proposed) 244 

XXV. California 264 

XXVI. Idaho (Proposed) 271 

XXVII. Nevada (Proposed) 272 

III. INITIATIVE AND REFERENDUM IN MUNICIPAL 
GOVERNMENT 

XXVIII. Ohio 274 

IV. INITIATIVE, REFERENDUM, AND RECALL IN 
COMMISSION GOVERNMENT 

XXIX. Iowa 280 

XXX. New Jersey 285 

V. JUDICIAL DECISIONS 
XXXI. Luther v. Borden 291 

XXXII. Kadderly v. Portland (Oregon) 304 

XXXIII. State v. Pacific States Telephone and Telegraph 

Company (Oregon) 310 

XXXIV. Kiernan v. Portland (Oregon) 314 

XXXV. Ex parte Wagner (Oklahoma) 330 

XXXVI. Bonner v. Belsterling (Recall in Texas) . . . 337 

VI. APPENDIX 

The Proposed Oregon System 349 

Ballot Titles for Oregon Election, 1910 384 

Index 391 

1 For North Dakota, see pp. 210, 221. 



DOCUMENTS ON THE STATE-WIDE 
INITIATIVE, REFERENDUM, AND RECALL 



DOCUMENTS ON THE STATE- 
WIDE INITIATIVE, REFEREN- 
DUM, AND RECALL 

INTRODUCTORY NOTE 

The Initiative and Referendum 

The initiative and referendum are no longer of mere aca- 
demic interest. The two devices, in one form or another, 
have been adopted for state- wide purposes by nearly one-fourth 
of the commonwealths of the Union ; and if the system is approved 
in the other states where it has become a serious political issue 
or is already submitted to popular approval, the next decade 
will see it in force in more than one-half of the states. The 
evidence afforded by the following table shows that the initia- 
tive and referendum have been taken out of the realm of specu- 
lation and made subjects of practical consideration for students 
of government and men of affairs. 

I. South Dakota. — Complete system of initiative and referen- 
dum (1898). Machinery finally constituted on March 3, 1899. 

II. Utah. — An amendment establishing the initiative and 
referendum submitted by a fusion legislature and adopted on 
November 6, 1900. The statute has not been provided for 
carrying the amendment into effect because the legislature 
passed into the control of Republican leaders, who repudiated 
the principle which had been approved at the polls. 

III. Oregon. — Constitutional amendment adopted June 2, 
1902. 

IV. Nevada. — Adopted November 8, 1904. Provision was 
made for the referendum only; but an initiative and recall 
amendment is now being submitted to popular vote. 

V. Montana. — Adopted November, 1906. 

VI. Oklahoma. — System embodied in the constitution under 
which the state was admitted to the Union, in 1907. 

b 1 



i State-wide Initiative, Referendum, and Recall 

VII. Maine. — Adopted September 14, 1908. 

VIII. Missouri. — Adopted November 3, 1908. 

IX. Michigan. — The new Michigan constitution which went 
into effect in 1909 included a system of initiative and referen- 
dum applicable only to constitutional amendments and subject 
to such restrictions as to be well-nigh unworkable. Referendum 
on laws at the option of the legislature. 

X. Arkansas. — Adopted September 12, 1910. 

XI. Colorado. — Adopted November 8, 19 10. 

XII. California. — A constitutional amendment providing for 
the initiative, referendum, and recall submitted to the voters at 
a special election on October 10, 191 1, and adopted. 

XIII. Washington. — Constitutional amendment passed in 
January, 191 1, to be submitted to popular vote in November, 
1912. 

XIV. Nebraska. — Initiative and referendum amendment 
approved by the governor March 24, 191 1, to be submitted to 
popular vote in November, 191 2. 

XV. Idaho.— To be submitted to the voters at the next gen- 
eral election — November, 191 2. 

XVI. Wyoming. — To be submitted to the voters at next 
general election — November, 191 2. 

XVII. Wisconsin. — Constitutional amendment passed by 
the legislature in 191 1, but must be approved by the next legis- 
lature before being submitted to popular vote in the election of 
1914. 

XVIII. Arizona. — Complete system of initiative and refer- 
endum included in the constitution under which admission to 
the Union was sought. 

XIX. New Mexico. — The constitution under which New 
Mexico sought admission to the Union makes provision for 
the referendum only. 

XX. North Dakota. — Initiative, referendum, and recall 
passed by the legislature in 191 1 ; to be submitted to 1913 
session for approval previous to reference to popular vote. 

XXI. Illinois. — A public opinion bill making provision for 
securing popular expression on questions of public policy was 
adopted in 1901, and the initiative and referendum have become 
practical issues. 

XXII. Texas. — Party referendum provided by law. 



Introductory Note 3 

In view of all these facts the desirability of coming to some 
conclusion concerning the principles upon which the initiative 
and referendum rest is surely apparent, although it can hardly 
be said that the experience thus far gained in the actual opera- 
tion of the system is sufficient to warrant many dogmatic 
conclusions. Certainly it is useless to dismiss the theme on 
the ground that the proposed devices are a hybrid growth grafted 
upon an ancient system of Anglo-Saxon institutions by short- 
sighted reformers. It is likewise useless to take the doctrinaire 
position that representative government is a sacred thing, in- 
variable in its forms and limitations from the time of Simon de 
Montfort's Parliament down to the last session of the Illinois 
legislature. 

The fact is that representative government has been in the 
process of transformation in the United States from the first 
assembly of burgesses in Virginia in 1619 ; and during the nine- 
teenth century state legislatures have been steadily declining in 
popular esteem. This is not a matter of speculation, for the 
proof of the statement is to be found in the successive constitu- 
tions and constitutional amendments in nearly every important 
state. 

We began our history with a substantially omnipotent legis- 
lature. Our eighteenth-century constitution-makers distrusted 
the executive power on the one hand, and feared the extension 
of the suffrage on the other. Accordingly, they generally vested 
the power of electing the governor in the legislature, fixed his 
term at one year, and seldom gave him the veto power. In 
New York, where the governor was elected by the freeholders 
for a term of three years under the constitution of 1777, his 
veto power was shared by a Council of Revision and his ap- 
pointive power could be exercised only in conjunction with a 
special Council of Appointment. The legislatures created new 
offices at will and elected the incumbents if they pleased ; they 
granted charters to public and private corporations ; and they 
laid taxes and incurred debts at their pleasure. Only a few 



4 State-wide Initiative, Referendum, and Recall 

limitations were imposed upon their law-making authority, for 
the early constitutions were generally brief documents con- 
structing the frame of government and intrusting to the repre- 
sentatives full political power. And further to demonstrate 
public confidence in the legislature, it was stipulated that 
sessions should be frequent. 1 

This state of legislative omnipotence did not last long, how- 
ever, because, in far too many cases, "the representatives of the 
people" betrayed their trust; and, having fallen into the evil 
habit, they found it difficult to throw off the tradition. Those 
who had been first in their advocacy of legislative supremacy 
began to repudiate their own doctrine. Constitutional con- 
vention after constitutional convention left behind it a record of 
distrust in the competence and common honesty of legislatures, 
and exhausted its ingenuity in devising methods for restricting 
the power of the lawmakers for evil. The conventions, being 
elected for the particular purpose and usually composed of more 
disinterested citizens than the ordinary legislature, gave special 
attention to building defences against the unscrupulous manipu- 
lators who were sure to find their way into the state assemblies. 

The contest between the convention and the legislature reminds 
one of the struggle now going on in the field of preparation 
for naval warfare. A new high-powered gun and a particularly 
dangerous projectile are invented ; and straightway the makers 
for armor plate exert their wits in discovering some material 
that will resist the new engine of destruction. When the satis- 
factory armor is invented the makers of guns and projectiles 
labor unceasingly until they have found a still more terrible 
instrument. And so the seesaw goes on. Thus in politics, one 
state convention devises a new constitutional limitation designed 
to thwart a certain kind of corrupt and vicious legislation ; the 
succeeding legislature finds a way through, for, as Mr. Dooley 
remarks, a stone wall is often a triumphal arch to the eye of 

1 For many illustrations given here I have drawn upon my American 
Government and Politics. 



Introductory Note 5 

the experienced. A new convention is called and new constitu- 
tional limitations are invented ; but the legislature proves to be 
as ingenious as ever. 1 

It is not hazardous to say that in every state constitutional 
convention since the opening of the nineteenth century, the 
theme of limitation upon legislative prerogative has been exten- 
sively discussed. In the convention of Kentucky in 1890, 
Mr. Carroll exclaimed, "It is a well-known fact that one of the 
prime causes for the calling of this convention was the abuses 
practised by the Legislative Department of this State; and I 
venture the assertion that, except for the vicious legislation and 
the local and special laws of all kinds and character passed by the 
Legislatures that have met in Kentucky for the past twenty 
years, no proposition to call a constitutional convention could 
ever have received a majority of the votes of the people of 
Kentucky. The people of Kentucky are more in danger from 
abuses by the Legislative Department than they are from abuses 
of any other department of the State Government." 2 

To checkmate legislatures in bartering away, negligently and 
corruptly, charters, franchises, and special privileges, the con- 
stitutions of our important states now generally either forbid 
the legislatures to create corporations by special act, or otherwise 
limit this exercise of legislative power. The present constitution 
of Virginia vests in the corporation commission, appointed by 
the governor, the power to grant all charters and amendments 
of charters for domestic and foreign incorporations. Delaware 
stipulates that general and special incorporation laws must have 
the approval of two-thirds of all the members elected to both 
houses of the legislature. 

To secure publicity in legislative matters, and prevent sinister 

1 It is largely through this contest for popular supremacy over legislative 
incompetence and dishonesty that our state constitutions have grown in 
bulk — conventions have embodied statutes in the constitutions because 
they have been unwilling to trust the state legislatures. 

2 Beard, Readings in American Government and Politics, p. 445. 



6 State-wide Initiative, Referendum, and Recall 

influences from working by secret methods, our newer constitu- 
tions contain provisions controlling legislative procedure. As 
was stated, for instance, in the New York constitutional con- 
vention of 1894, it was a common thing, which happened at every 
session of the legislature, for an apparently insignificant amend- 
ment to be offered on the third reading of a bill, and after being 
adopted in the hurry and confusion of the moment, turn out to 
be a vicious proposition. 1 This practice is the source of that 
section of Article III of the present New York constitution, which 
provides that no bill shall be passed or become a law until it 
shall have been printed and on the desk of the members at least 
three calendar legislative days prior to its final passage, unless 
the governor or the acting governor shall have certified to the 
necessity of its immediate passage. 

Legislatures cannot be given a free hand in laying taxes, 
incurring debts, and making appropriations. This nearly all 
of our states have learned by bitter experience ; and they have 
now written in their constitutions limitations on the extent of the 
taxing power and on the amount of debt which may be incurred. 
For example, the constitution of New York limits the ordinary 
debt of the state to a million dollars, and provides for a popular 
referendum on debts incurred in excess of that amount, except- 
ing debts necessary to suppress insurrection and defend the state 
in war. A study of the limitations to be found in the several 
state constitutions now in force reveals the most astounding in- 
genuity in the devices employed to check legislative extravagance 
and dishonesty. 

In local and special matters our legislatures have been par- 
ticular offenders, and it is now the practice for state constitution- 
makers to include in the fundamental law of the commonwealth 
a long list of subjects on which the legislature is forbidden to pass 
local and private bills. 

While shearing the legislature of its power, our constitution- 
makers have been gaining faith in the executive as the respon- 
1 Heard, Readings in American Government and Politics, p. 466. 



Introductory Note 7 

sible functionary on whose integrity and decent respect for the 
opinions of mankind the public may more safely rely. We have 
seen how the early governors were designedly servants of the 
legislature ; and even a casual survey of our state constitutions 
to-day shows their changed position. In every commonwealth 
in the Union, save North Carolina, the governor enjoys the veto 
power, and in an increasing number of instances he is given the 
power to negative particular items of appropriation bills so that 
he may be the "watch-dog of the treasury." In other ways the 
governor's powers have been constitutionally extended, but the 
limits of his authority are by no means set in the letter of the 
constitutions. 

There can be no doubt that the most popular state governors of 
recent years, — Roosevelt, Hughes, Folk, La Follette, Wilson, — 
whatever may be their individual merits, owe their positions to 
the free way in which they have coerced and checkmated the 
legislatures. It need not be said that their popularity has been 
due altogether to corrupt practices on the part of the respective 
legislatures over which they wielded their sway. The fact is 
that there has been growing up the notion that the legislature is 
inherently unfitted for some of its most important work. 

This notion was voiced by Mr. Gamaliel Bradford in an article 
published in the Evening Post l in 1908 : — 

Consider how our legislatures try to govern. When they meet 
in session there are two houses in each state, varying from fifty 
to three hundred men, all representing different districts and all 
precisely equal. There is nobody there representing the state 
as a whole or the state administration. The only duty of each 
member is to get all he can for his constituents, and he would be 
regarded as impertinent if he interfered with the schemes of 
any of the others. Every member can propose as many measures 
as he pleases upon any subject he pleases, and they are all thrown 
on an equal footing into a number of committees made up by the 
Speaker, who is elected for that purpose, at his discretion ; while 
the legislature, with little discussion, passes what the committees 

1 Reinsch, Readings in American State Government, p. 18. 



8 State-wide Initiative, Referendum, and Recall 

recommend. It is an ideal system for corruption. It was the 
origin of the lobby, that is, a power which, by corrupt methods, 
can induce a mass of conflicting atoms to act together for private 
ends; and out of the lobby is evolved the boss. What the 
government of the state is, that will be the government of the 
cities. 

In addition to these unquestionable proofs that there is a 
decline in public confidence in legislative ability and honesty, 
attention may be drawn to some passages in current history. 
While no one would deny that a great amount of conscientious, 
serious, and honorable work is done in our state legislatures, it 
must be admitted that there is a vague feeling abroad to the 
effect that one can never be certain that any particular legis- 
lature is engaged in the faithful discharge of its duties. Almost 
within the last year the legislatures of New York, Ohio, and 
Illinois have been smirched by exposures and scandals which, in 
spite of the exaggerations, contain a distressing amount of es- 
tablished fact. The Republican legislature of New York was 
hopelessly discredited by the revelations of 1910, and its Demo- 
cratic successor, which went into office under the ancient slogan 
" Peace, Retrenchment, and Reform," by its devotion to party 
and private interests speedily lost the confidence of that portion 
of the public that derives no advantage from the distribution of 
the spoils of office. 

Even such a conservative and respectable paper as the New 
York Times f in an editorial of July 3, 191 1, makes the following 
observation concerning the law-making body of the Empire 
commonwealth : — 

The " combine " — the term has a definite and ugly connotation 
— between the Tammany machine in control of the majority of 
the Legislature and the Old Guard, with a solid block of Repub- 
lican votes, is not novel. Partnerships of that sort have been a 
reliance for Tammany for many years. Tweed ran one of amaz- 
ing efficiency in the Legislature forty years ago, and its wild excur- 
sions culminated in his exposure and downfall. It was but an ex- 
tension of the business arrangement he had formed in this city, 



Introductory Note 9 

which made " Tammany Republicans" a hissing and a byword 
in our political history. The present conspiracy against the rights 
and interests of the public is probably not nearly so formidable 
or so bad, and will undoubtedly be broken up at the polls next 
Fall, but in morals it is the same sort of odious and mischievous 
thing. 

What is particularly bitter and disappointing in the actual 
situation at Albany is that it is the outcome of an honest effort 
by the independent voters of the State to drive bad men from the 
Legislature and put in good ones. And the most unfortunate 
result of this betrayal of the hopes and aims of honest men is 
that it tends strongly to discourage like attempts in the future. 
Respectable and well-meaning men all over the State, and espe- 
cially in this city, are going about saying: "What is the use? 
You only replace one lot of rascals by another, generally worse." 
And there is no denying that the facts give a good deal of support 
to that weary plea. A Legislature under the thumbs of the 
worst Republican managers could hardly have done anything 
worse in its line than the Levy Election bill, or so bad as the 
City Hall Park invasion bill, the finance bills, and the New York 
Charter that will pretty surely be jammed through in the next 
ten days. 

Even if one does not agree entirely with the editor of the 
Times in his severe strictures upon the New York legislature, he 
must admit that opinions of this character are widespread and 
do not spring from any mere partisan prejudices. It is incon- 
trovertible that the popular estimate of the ability and com- 
mon honesty of legislators is by no means high. That the popu- 
lar judgment is often unjust and based upon an exaggeration of 
the facts in any particular case will be conceded. It is needless, 
however, to argue the point as to whether the judgment is alto- 
gether just and righteous; it stands nevertheless. And as a 
psychological fact it must be reckoned with by those who con- 
tend that no fundamental alterations should be made in our 
representative system. 

If we turn from the state legislatures to the legislative bodies 
of our cities, we find the same growing distrust of the representa- 
tive principle. This distrust is likewise to be found recorded 



io State-wide Initiative, Referendum, and Recall 

in legal instruments, as well as in the more or less vague and fluc- 
tuating public opinion of our cities. 

Our new charters, like our state constitutions, are generally 
formidable instruments covering the whole domain of municipal 
organization and restraining on every side the power of municipal 
councils. The great principle of checks and balances, which some 
thought was realized in the bicameral system, has proved a flat 
failure, and most of our larger cities — New York, Chicago, Cleve- 
land, and Cincinnati, for example — now have councils com- 
posed of only a single chamber. 

The Boston Finance Commission in 1907 declared that while 
in the double-chambered council the mistakes of one body might 
be corrected by the other and the unwise exercise of the borrowing 
power by one branch had sometimes been negatived by the other, 
yet "much more frequently improvident loans desired by one 
branch have been added to the similar loans desired by the other 
and incorporated into a single bill and passed." 

Even the single-chambered system which it was hoped would 
give more simplicity and responsibility in municipal government 
has been by no means unqualified in its success, and in some cities, 
notably in New York, the council has been stripped of all its 
important powers over finances and franchises. It may be truly 
said that in New York City the real government is in the hands 
of the Board of Estimate and Apportionment, composed of the 
mayor, the comptroller, the president of the board of alder- 
men, and the presidents of the five boroughs into which the 
city is divided. In Boston, under the new charter, the budget 
is originated by the mayor, and city finances are scrutinized 
by a commission appointed by the governor. In Ohio cities the 
mayor makes up the budgets from estimates furnished by the 
departments, and the council may omit or decrease items but 
cannot increase the total. 

The limitations placed upon municipal councils by charters 
and statutes, similar in character to the constitutional limitations 
imposed upon state legislatures, have by no means rehabilitated 



Introductory Note n 

the councils in the public mind. The widespread adoption of 
the system of commission government for cities is an evidence 
that a considerable portion of the American people have come to 
the conclusion that one way of getting rid of the abuses of 
" representative " government is to abolish the council altogether, 
and substitute for it a commission of a few men elected at large 
and endowed with full legislative and executive powers. 

No further testimony needs to be adduced than that afforded 
by the dry legal record to be found in statutes, charters, and con- 
stitutions, to demonstrate the general dissatisfaction with the 
simple uncontrolled representative system of government. It 
cannot be said, however, that the reaction against legislative 
abuses at once took the form of a movement for direct popular 
control over the legislatures through the initiative and referen- 
dum. On the contrary, it led at first to a long series of experi- 
ments in electoral reforms, in addition to the constitutional 
limitations just described. 

In some quarters the disrepute into which representative 
government had fallen was attributed to the wide extension of 
the suffrage ; but it was found impossible to replace restrictions 
once removed. A number of schemes, however, were devised 
to secure a greater purity at the ballot box : registration laws, 
official elections, bi-partisan election boards, judicial control 
over electoral procedure, and the like. 

In other quarters it was thought that the Australian ballot, 
printed at public expense, would destroy the boss, and improve 
the quality of our legislatures. The cost of printing ballots, 
it was argued, deterred independent men from entering into poli- 
tics and made it impossible for new political organizations op- 
posed to the rings in power to get a foothold in politics. The 
Australian ballot was to be the instrument for the elevation of 
legislatures ; the machine would be put out of business and could 
no longer nominate its corrupt henchmen for the legislatures; 
and at length, as Ostrogorski remarks, the politicians, entrenched 
in assemblies, were intimidated into granting the reform. 



12 State-wide Initiative, Referendum, and Recall 

But the Australian ballot did not prove to be the Wonder- 
working Providence which its advocates had prophesied; and 
almost immediately the cry went up for legislative regulation 
of party organizations. At once there began to come from our 
state legislatures a series of statutes regulating at first the minor 
features of party organization and operation, then extending 
in every direction — culminating in a complete system incor- 
porating the political party in the legal framework of govern- 
ment, making the direct nomination of candidates obligatory, 
and even, in some instances, defraying a portion of party expenses 
from the public treasury. 

Nearly all of the proposals designed to checkmate legislative 
abuses have been based upon the assumption that the hope for 
better government lay in more democracy rather than in less. 
Indeed, the decline of legislative assemblies has been marked by 
a steady extension of democratic principles; and some writers 
have assumed that a corrupt and ignorant electorate based upon 
universal manhood suffrage is responsible for the evil days into 
which we have fallen. As a matter of fact, however, the con- 
nection between the growth of corruption and the extension of 
the suffrage is difficult to establish. Corruption in legislatures 
is older by far than manhood suffrage. Long before the fran- 
chise had been generously widened in the United States, malo- 
dorous practices in legislatures had attracted the attention of 
political chroniclers; and, while it cannot be doubted that in 
some instances the purchase of the poor and ignorant vote has 
been responsible for the election of corrupt legislators, there 
is absolutely no reason for believing that, had the earlier property 
qualifications on the suffrage been retained, our legislative record 
would have been essentially different so far as honesty is con- 
cerned. 

It seems not unreasonable to argue that the corruption and mal- 
practices in our state legislatures which have discredited them in 
the public mind have been due rather to the increased oppor- 
tunities for exploitation offered by the advance of the country 



Introductory Note 13 

in material wealth than to the extension of the suffrage. At all 
events it cannot be shown that corruption is inherent in demo- 
cratic as contrasted with aristocratic institutions; for, turning 
to English experience, we find that the reform of Commons 
and the elimination of the bribery and corrupt practices that 
characterized Parliament in the eighteenth century, have been 
accomplished since the extension of the suffrage. 

However one may view the matter, it is now hardly worth 
while to argue it. We are committed to the great democratic 
principle of a widely extended suffrage, and the history of the 
nineteenth century has been largely a record justifying the ex- 
tension of popular power. 

At the beginning of our history the propertied classes were 
everywhere dominant. The Fathers, notwithstanding the 
rhetorical flourish in the Declaration of Independence, did 
not believe that the right to vote should be given freely to 
all men regardless of the amount of property they owned or the 
religious opinions they entertained. And as for woman suffrage, 
they doubtless held with Blackstone that woman was specially 
favored by the generous provisions of the law which turned over 
all of her earnings and property to her husband, and merged her 
personality in his. At the close of the eighteenth century, in 
nearly every state, the suffrage was limited by the constitution 
or laws to property-owners, generally freeholders and taxpayers. 
The conservative thinkers of the time regarded the owners of 
land as the only safe depositories of political power. Doubtless 
most of them agreed with Mr. Dickinson, who exclaimed in the 
Federal Convention of 1787 that the freeholders were the best 
guardians of liberty, and the restriction of the suffrage to them 
a necessary defence "against the dangerous influence of those 
multitudes without property and without principle with which 
our country like all others will in time abound." * 

In spite of the prophecies of dire evils to come, the suffrage 
was steadily extended in the United States until on the eve of the 
1 Farrand, Records of the Federal Convention, Vol. II, p. 202. 



14 State-wide Initiative, Referendum, and Recall 

Civil War the principle was well-nigh universally adopted that 
every adult male of reasonably settled habitation should be 
entitled to share in political power by exercising his right to vote. 
And since the Civil War the principle has been further extended 
in six states so as completely to enfranchise women. The move- 
ment which secured to woman educational advantages, opened 
the professions to her, gave her control over her own property 
and her earnings, and won recognition for her before the law as 
an independent personality, culminates logically in the extension 
to her of that equality in the field of politics which she now com- 
monly possesses in the domain of civil rights. 

While no one can be blind to the evils which have been as- 
sociated with democracy in the United States and in the Old 
World, no serious student of history, when he compares the long 
train of abuses, brutalities, and disorders connected with the 
rule of kings, priests, and nobles, can doubt for an instant that as 
between democracy and the outworn systems of the past there 
can be no choice. Every branch of law that has been recast under 
the influence of popular will has been touched with enlighten- 
ment and humanity. Compare the brutal criminal codes of old 
Europe with the still imperfect but relatively enlightened codes 
of our own time. Compare the treatment of prisoners, women, 
and children, the education of the youth, and the public insti- 
tutions devoted to general welfare, with those existing before the 
age of democracy. Mr. Bryce's remark that evidences of philan- 
thropy and humanitarianism are mingled in our state politics 
with folly and jobbery " like threads of gold and silver woven 
across a warp of dirty sacking" is true, and yet when one looks 
for evidences of philanthropy and humanitarianism in the folly 
and jobbery that characterized aristocratic and monarchical 
institutions in the old regime, one does not even have the satis- 
faction of getting the gleam of gold and silver across the dirty 
sacking. As Desmoulins declared concerning the excesses of the 
French Revolution, "The blood shed in the cause of liberty was 
as nothing to that spilt by kings and prelates for maintaining 



Introductory Note 15 

their dominions and satisfying their ambitions." With all its 
faults, and they need not be glossed over, democracy is justi- 
fying itself, and every student of history who devotes himself to 
the investigation of institutions and social conditions will find 
encouragement in the record of mankind under democratic 
government, such as it is. 1 

Correlated with the development of the democratic principle 
in the suffrage there has been a steady extension in the political 
activities of the voters. In the beginning of our history as an 
independent nation the voters were practically restricted to the 
single function of choosing representatives and electing officers, 
except in town-meetings. But step by step their functions have 
been enlarged until in nearly every state in the Union they par- 
ticipate in determining public policy in matters great and small. 

Even the principle that state constitutions should be sub- 
ject to popular ratification was not accepted by our first law- 
makers. Only three of the constitutions adopted before 1800 
were submitted to the voters for their direct approval or rejec- 
tion. The Federal Constitution was ratified by conventions 
chosen by the voters in the several states, — this method of 
ratification by conventions being in Chief Justice Marshall's 
opinion "the only manner in which they can act safely, effec- 
tively, and wisely on such a subject." 2 

Nevertheless the vague idea was in the air that constitutional 
provisions should receive popular approval in some form or 
another. For example, the Pennsylvania legislature, in calling 
a new constitutional convention in 1789, declared : "It would be 
expedient, just, and reasonable, that the convention should pub- 
lish their amendments and alterations for the consideration 
of the people, and adjourn at least four months previous to 
confirmation." This recommendation was followed by the 

1 See a brilliant essay by my colleague, Professor James Harvey Robinson, 
" The Spirit of Conservatism in the Light of History," Journal of Philoso- 
phy, Psychology, and Scientific Methods, May n, 1911. 

2 McCulloch v. Maryland, 4 Wheaton, 316. 



1 6 State-wide Initiative, Referendum, and Recall 

constitutional convention, and although, as Professor Dodd 
remarks, 1 these proceedings cannot be regarded as equivalent 
to a formal submission to the people, they do recognize the 
necessity for popular participation. The constitutions of 
Massachusetts (1780) and New Hampshire (1783) were sub- 
mitted to direct popular vote; and in drafting her new con- 
stitution in 1792, New Hampshire followed the earlier prece- 
dent. 

In spite of these examples, however, the idea of popular ratifica- 
tion was slow in taking root, especially outside of New England, 
where it is supposed that the referendum was received more 
favorably because of the practical experience which the people 
had gained in law-making in town meetings. It was not until 
1 82 1, when New York submitted her constitution to popular vote, 
that the referendum appeared in any state outside of New Eng- 
land. Before the opening of the Civil War, however, the principle 
of popular ratification had won favor throughout the country. 
Every constitution adopted between 1840 and i860 was sub- 
mitted to popular approval. 2 The principle was also accepted 
by Congress in passing Enabling Acts for new states. "The 
earlier enabling Acts did not require submission, and their lan- 
guage not only seems to indicate that popular approval was not 
considered necessary, but actually precluded submission." It 
was not until the joint resolution of March 1, 1845, admitting 
Texas to the Union that Congress showed any inclination to 
approve the principle of popular ratification ; and it was not 
until 1857 that popular ratification was specified in an Enabling 
Act — the Act for Minnesota passed on February 26, 1857. 
At length, however, so widely adopted was this principle of popu- 
lar ratification that it led the distinguished authority on state 
conventions, Judge Jameson, to declare that submission of con- 
stitutional provisions to popular ratification was a fundamental 
principle of American public law. 

1 Dodd, Revision and Amendment of State Constitutions, p. 63. 

2 Ibid., p. 65. The details here are taken from this excellent work. 



Introductory Note 17 

While Judge Jameson's conclusion is somewhat sweeping, 
it must be admitted that the later exceptions to the uniform 
practice have been due rather to peculiar circumstances than to 
any abandonment of the general doctrine. Five constitutions 
adopted since 1890 have not been submitted to popular approval 
— Mississippi (1890), South Carolina (1895), Delaware (1897), 
Louisiana (1898), and Virginia (1902) ; but in the case of four 
of these states the reason of this departure from accepted prin- 
ciples is obvious. As Professor Dodd remarks, "The failure to 
submit constitutions to the people in Mississippi, South Carolina, 
Louisiana, and Virginia may perhaps be explained as a neces- 
sary part of the plan to disfranchise the colored population of 
these states, and may on this account be treated as exceptional." 
The reasons for the action in Delaware are not so apparent, but 
it can hardly be said that the single unexplained violation of the 
principle of the referendum would indicate any weakening in the 
doctrine as it is now accepted in the United States. 1 

At the same time the principle of popular ratification was being 
worked out, easier methods of securing the expression of popular 
will in the amendment of constitutions were being devised. 
When the sovereignty of the British Crown and Parliament was 
thrown off, the Revolutionists naturally declared that the popular 
will was the basis of all government. The right of the people to 
alter or abolish, and to institute new forms of government on 
such principles and with such powers as might to them seem most 
likely to effect their safety and happiness was laid down in the 
Declaration of Independence. Notwithstanding this, it was a 
long time before the state constitution-makers came to see that, 
according to this great democratic theory, every fundamental 
law ought to provide for a simple mode of amendment through 
which, from time to time, the electorate might alter or recon- 
struct the government. A number of the early state constitutions 

1 The constitution of Kentucky (1891), after it had been approved by- 
popular vote, was changed by the convention. But this can hardly be re- 
garded as overthrowing the general principle. 
c 



1 8 State-wide Initiative, Referendum, and Recall 

made no provisions whatever for amendment, and nearly all of 
them were put into operation without being submitted to popu- 
lar ratification. This was due to the confusion of the Revolu- 
tionary days during which the constitutions were drafted, to a 
failure to distinguish between constitutions and statutes, and to 
the generally prevailing notion that a convention composed of 
delegates chosen by the electorate had the sovereign power to 
frame new governments. And, as a matter of practice, amend- 
ments were made from time to time, and new constitutions were 
drafted by conventions summoned on the mere call of the legis- 
latures without any higher sanction. This seems to have been 
recognized as a regular method ; for, with the exception of the 
Vermont constitution of 1793, none of the constitutions framed 
before the opening of the nineteenth century provided that 
amendments, whether made by the legislature or a special con- 
vention, should be submitted to popular vote. 

It was therefore only by a gradual process that our constitu- 
tion-makers arrived at anything like the complete and elaborate 
system of amendment to be found in the most carefully prepared 
fundamental laws of our day, such, for example, as that of New 
York. This process, according to Professor J. W. Garner, has 
four stages. In the closing decades of the eighteenth century it 
was the common practice to make no provision at all for amend- 
ments: (1) during the first half of the nineteenth century the 
method of amendment by convention was fairly well developed ; 
(2) immediately preceding and following the Civil War the more 
simple method of alteration through a legislative enactment rati- 
fied by the voters was widely adopted ; (3) during the three or four 
decades immediately following the Civil War the system of double 
amendment through periodic conventions and legislative enact- 
ments popularly ratified was worked out ; and (4) within the last 
decade has come the still more complete and democratic system of 
amendment through the popular initiative and referendum. 

The principle of popular ratification is by no means confined to 
constitutional provisions. As has been noted above, in placing 



Introductory Note 19 

restrictions upon the financial powers of the legislatures, many 
of our state constitutions provide that exceptions to the restric- 
tions may be made if the matters are referred directly to popular 
vote. For example, in New York, the total debt of the state 
is fixed at one million dollars, and additional debts, except 
those incurred to repel invasion, suppress insurrection, and de- 
fend the state in war, can be contracted only when authorized 
by a special law passed by the legislature, submitted to the people, 
and approved by a majority of all the votes for and against it. 
The practice of referring local laws of a special character, such 
as those of selecting county seats or changing county boundaries, 
was early adopted in our history. 

Even if we regard the reference of some statutes as highly ex- 
ceptional, it must be remembered that the difference between 
statute and constitutional law is by no means easy to determine. 
The mere fact that a provision is in a constitution does not make 
it constitutional in character. A comparison of our state con- 
stitutions shows that there is absolutely no concensus of opinion 
in the United States on the principle of discrimination between 
statute and constitutional law. 

The law controlling public service corporations is statutory 
in New York and constitutional in Oklahoma; the salaries of 
judges and high officers are, in some states, fixed by the consti- 
tution, and in other states left to the legislature ; such an im- 
portant matter as civil service reform is in some states statu- 
tory and in New York constitutional. Any one, therefore, who 
accepts the principle that constitutions should be ratified by 
popular vote — and, as we have seen, in spite of the exceptions 
noted, this principle has become a fundamental part of our public 
law — is compelled to admit that the practice of referring statutes 
to popular ratification constitutes no real breach in our legal 
traditions. 

With this brief survey of our institutional development, we 
may now turn with more understanding to a consideration of 



20 State-wide Initiative, Referendum, and Recall 

the place of the initiative and referendum in our public law; 
but at the very outset of our inquiry into this extension of older 
principles, we are confronted by the fact that the system of 
initiative and referendum is by no means a simple, definite, and 
invariable thing which must be adopted in a stereotyped form. 
In fact, a survey of the various schemes now in force or seriously 
proposed in the United States (to say nothing of the possible com- 
binations which one might conjure up in his imagination) shows 
that there are a score or more of forms in which the system may 
be constructed. 

Defined in general, the initiative is a scheme whereby a small 
percentage of the voters may initiate a law and secure its adop- 
tion upon ratification by popular vote ; and the referendum is a 
plan whereby a small percentage of the voters may require the 
reference of any act of the legislature to the electorate for ap- 
proval or rejection. But these general principles may be worked 
out in a variety of special forms : — 

I. The initiative may be separated from the referendum, 
as in Michigan, where constitutional amendments only may be 
initiated by petition and the referendum can be employed only 
when the legislature sees fit to refer one of its acts to the voters. 

II. The initiative or referendum may be restricted to statu- 
tory enactments, leaving judicial control under the state consti- 
tution unaffected. 

III. The initiative or referendum may be employed only in 
the case of constitutional provisions. 

IV. The referendum may be exercised alone at the option 
of the legislature, as is the case in Michigan. 

V. The referendum may be set in motion by an initiative peti- 
tion, — by five per cent of the voters or twenty-five per cent. 

VI. The referendum on constitutions and constitutional 
amendments may be compulsory, as is well-nigh universal in the 
United States to-day. 

VII. The initiative may be coupled with a provision that the 
legislature may submit in addition to any initiated measure 
an optional provision, giving the voters a choice between the 
proposal of the private parties and that which has been debated 
and digested in the legislature. 






Introductory Note 21 

VIII. The initiative may be coupled with a provision that any 
measure initiated which may be adopted by the state legislature 
in due form shall become a law, unless on a petition of the voters 
a referendum is required. 

IX. The number of voters necessary to initiate a constitu- 
tional amendment may be fixed at a definite sum or a percentage 
of the voters, and a larger number may be required to initiate a 
constitutional amendment than is required to initiate an ordi- 
nary statute. For example, in Oklahoma, eight per cent of the 
voters may initiate a legislative measure, while fifteen per cent 
are required to propose amendments to the constitution by 
petition. 

X. A differentiation may be made between the number neces- 
sary to initiate a new measure and the number required to sign a 
referendum petition on an act already passed by the legislature. 

XI. A large number of variations may be made in the number 
of votes necessary to the enactment of any particular provision 
into law. It may be a simple majority of all those voting for or 
against the measure. It may be a simple majority of those voting 
for and against the measure, provided that majority is equiva- 
lent to a certain percentage of all the votes cast for some particu- 
lar officer at a general election. A difference may be made be- 
tween the vote required for the approval of an initiated measure 
and that required on a legislative enactment referred to the voters 
on petition; as, for example, in Oklahoma, where a measure 
referred to the people by the initiative can go into force only when 
approved " by a majority of the votes cast in such election," while 
a legislative measure referred to the people by a referendum 
petition need be approved "by a majority of the votes cast 
thereon and not otherwise." 

XII. The initiative may be restricted, as in the proposed 
Wisconsin constitutional amendment, by a provision to the effect 
that it can apply only to measures which have been introduced 
in regular form in the state legislature — the design of this being 
to secure a certain amount of legislative consideration of any 
measure referred to popular approval. 

XIII. The initiative and referendum may be accompanied by 
provisions designed to secure general publicity and to educate 
the voter, as is the case in Oregon. 

XIV. Finally, the initiative and referendum may take the 
milder form of a public opinion bill such as is provided by the 
Illinois law of 190 1 authorizing the submission of any question to 



22 State-wide Initiative, Referendum, and Recall 

popular vote on the initiative of a certain percentage of voters, 
with the understanding that popular approval of the proposal 
constitutes merely a pious recommendation to the legislature. 

It is obvious from this by no means exhaustive table of varia- 
tions that any one who dogmatically approves or disapproves the 
initiative and referendum will have to define his terms before 
he becomes intelligible. No one in harmony with the spirit of 
American institutions could flatly declare that he was opposed 
to the referendum in any form. Indeed, it can hardly be said 
that a system of initiative and referendum embodies many 
definite principles that can be intelligently discussed without 
any reference to the concrete forms in which it appears. One 
may expound the Maine system or the Michigan system or the 
Oregon system, and give his reasons for approving or disapprov- 
ing it. 

Nevertheless there are certain general propositions which are 
worthy of consideration as forming the bases of criticism and 
discrimination in considering any concrete form of initiative 
and referendum, and it seems worth while to call them to mind, 
although an exhaustive survey cannot be given here. 

In the first place, a provision which authorizes the initiation 
of measures by voters or allows a certain percentage of the elec- 
torate to require a popular referendum on a legislative measure 
is undoubtedly a limitation upon representative government, if 
by representative government we mean that all laws should be 
made simply by representatives duly chosen by the voters. 
And it is one of the most common objections urged against 
the initiative and referendum that they mark the beginning of 
the end of representative government. 

It is natural for the opponents of any proposition to devise 
arguments by driving it to its logical conclusion in every direc- 
tion, and in the case of any principle, this immediately produces 
innumerable incongruities and absurdities. Now, as one repro- 
bates the fanatic who ignores practical considerations and carries 
his doctrines to extreme lengths, so one should reprobate that 



Introductory Note 23 

type of reasoning that opposes the initiative and referendum on 
the ground that it will produce every possible absurdity that can 
be conjured up in the imagination, including the ultimate destruc- 
tion of representative government. To argue that because one 
happens to be going in a given direction at a particular moment he 
is certain to arrive at a point infinitely distant is to ignore the 
fact that neither in daily life nor in the formation of institutions 
does mankind advance continuously in one direction. Indeed, 
the very notion of direction as applied to the development of 
institutions is false and misleading, because in the evolution of 
its institutions a nation may be going in several ''directions" at 
the same time ! 

The initiative and referendum, indeed, no more necessarily 
imply the complete overthrow of the representative principle 
than does judicial control or the executive veto. It is no more a 
violation of that principle to stipulate that the legislature may re- 
fer any measure to popular approval than it is to provide, as does 
the New York constitution, that every financial measure involv- 
ing a public debt beyond a certain limit must be submitted to 
popular vote. It is a matter of degree. Moreover, a study of the 
history of the initiative and referendum in those states where 
they have been in vogue shows that representative government 
is not destroyed. In most states the system has scarcely been 
applied at all, and remains in abeyance to be used whenever any 
considerable portion of the voters think that the legislature has 
failed to do its duty ; and even in Oregon, where the system has 
been most extensively used, the legislature has been by no means 
abolished, or even set on the way to destruction. 

The conclusion seems to be therefore warranted that anxiety 
for the preservation of representative institutions need not lead 
any one into the extreme view that the initiative and referendum 
are incompatible with them. They do not destroy representative 
government ; neither is there any indication nor anything in the 
nature of things showing that they can destroy such govern- 
ment. In view of the fact that the fruit of the average represent- 



24 State-wide Initiative, Referendum, and Recall 

ative body in America is a thousand or two thousand statutes 
a session — a fruit which even the defenders of representative 
government are by no means proud of — it hardly seems possible 
that the necessity of making a livelihood will allow the voters of 
a state to give enough time to law-making to assume the entire 
burden. The real danger is not that representative institutions 
will perish, but that law-making will not receive that critical 
deliberation and technical attention which it is supposed to re- 
ceive in legislative assemblies. 

Before descending, however, into more concrete particulars it 
seems worth while also to examine that other objection to the 
initiative and referendum which is frequently advanced by 
those who fear the violation of the representative principle, 
namely, that it is contrary to that clause of the federal Constitu- 
tion which provides that the United States shall guarantee to 
every state in the Union a republican form of government. 1 
While it need not be supposed that any person convinced of the 
soundness of some form of initiative and referendum will discover 
in them any violation of the federal Constitution, persons already 
convinced of their unsoundness will very probably draw to their 
support the constitutional argument, for it so happens that, owing 
to the uncertain language of that great instrument, a variety 
of constructions, according to one's temper or interests, is gener- 
ally possible. When the Northern states were pressing the pro- 
tective tariff upon the South, the Virginia legislature resolved 
in 1826 "that the imposition of taxes and duties by the Congress 
of the United States for the purpose of protecting and encourag- 
ing domestic manufactures is an unconstitutional exercise of 
power"; 2 and Pennsylvania later replied, it is not strange to 
find, by a resolution "that the Constitution of the United States 
authorizes acts of Congress to protect manufacturers, and that 
the actual prosperity of the country attests to the wisdom of such 
acts." Calhoun in his later years was firmly convinced that a 

1 See below, pp. 291 ff., for judicial decisions. 

2 Ames, State Documents on Federal Relations, p. 142. 



Introductory Note 25 

protective tariff was a violation of the letter and spirit of the 
Constitution, "a violation by perversion, — the most dangerous 
of all because the most insidious and difficult to resist"; while 
Clay felt certain of the constitutionality of protection. 

Every other big issue in American politics — internal improve- 
ments, slavery in the territories, the income tax, and control of 
our dependencies — has involved questions of constitutionality ; 
and men have differed in their views, sometimes on account 
of their party affiliations, sometimes because of the interests 
they represent, and not often, it may be surmised, because of 
any theoretical expositions of the Constitution. It is only natu- 
ral, inasmuch as the Constitution is held in great reverence and 
esteem by the people, that every one who has a cause to oppose or 
defend should seek shelter under the protection of that historic 
and invincible instrument. It takes the place, in our political 
ethics, of a the Throne and Altar" in Great Britain. 

In any inquiry into the meaning of the term " republican," 
as used in the clause in the Constitution which guarantees 
that form of government to each state, we are compelled to 
resort for light to the debates in the Federal Convention and 
to the writings of the men who framed the federal Constitution, 
for the Supreme Court, the final interpreter of questions of 
American federal law, has not yet spoken on this point. 1 The 
proposition does not seem to have been extensively discussed 
in the Federal Convention. It appeared in the Virginia plan 
of a constitution introduced by Mr. Randolph on May 29 in the 
form of a resolution that a republican government and the terri- 
tory of each state ought to be guaranteed by the United States 
to each state. 

Inasmuch as Madison was the author of this particular plan, 
it is important to inquire into his views concerning the nature 

1 For several details on this point I am indebted to an article by Mr. Her- 
bert S. Swan on "Arizona and Republican Government," The Nation, May 
18, 191 1. A case on this point is now pending in the federal Supreme 
Court — Pacific States Telephone and Telegraph Co. v. Oregon. 



26 State-wide Initiative, Referendum, and Recall 

of the terms "republican" and "democratic." Fortunately, an 
answer to this inquiry is speedily found. Madison repeatedly 
defined republicanism in terms of representative government. 
He was perfectly clear also in his distinction between representa- 
tive institutions and what we now call "direct government." 
In the Number 10 of The Federalist, written to demonstrate the 
danger of majority rule and the necessity of checking democracy 
at every point, he sharply defined the two systems. By "a 
pure democracy," he said, "I mean a society consisting of a small 
number of citizens who assemble and administer the government 
in person"; and such democracies, he adds, "have ever been 
spectacles of turbulence and contention ; have ever been found 
incompatible with personal security or the rights of property; 
and have been in general as short in their lives as they have been 
violent in their deaths." He then went on to define a republic 
as "a government in which the scheme of representation takes 
place." This type of government, he declared, promised the cure 
for which they were seeking — that is, the evils of majority rule. 
While it must be admitted from the context of this number of 
The Federalist that Madison did not have in mind any form of 
initiative and referendum as now conceived, it cannot be denied 
that representative government was in his mind the essential 
feature of a republican government. 

This idea was further elaborated in Number 39 of The Feder- 
alist, in which he said : — 

If we resort, for a criterion, to the different principles on which 
different forms of government are established, we may define a 
republic to be, or at least may bestow that name on, a govern- 
ment which derives all its powers directly or indirectly from the 
great body of the people, and is administered by persons holding 
their offices during pleasure, for a limited period, or during good 
behavior. It is essential to such a government, that it be derived 
from the great body of the society, not from an inconsiderable 
proportion, or a favoured class of it; otherwise a handful of 
tyrannical nobles, exercising their oppressions by a delegation of 
their powers, might aspire to the rank of republicans, and claim 



Introductory Note 27 

for their government the honourable title of republic. It is 
sufficient for such a government that the persons administering 
it be appointed, either directly or indirectly, by the people; 
and that they hold their appointments by either of the tenures 
just specified ; otherwise every government in the United States, 
as well as every other popular government that has been or can 
be well organized or well executed, would be degraded from the 
republican character. 

It is not apparent, however, that Madison's views on this 
subject were the accepted views of his contemporaries. Indeed, 
John Adams declared that Madison's distinction between a 
republic and a democracy could not be justified, and added that 
in his opinion "a democracy is as really a republic as an oak is a 
tree, or a temple a building." 1 

Others among Madison's contemporaries differed from him as 
to the essential elements of republican government. Mr. Ran- 
dolph in discussing the proposition in the Convention seemed 
to consider monarchical government as the system with which 
republican government should be contrasted. He said: " A re- 
publican government must be the basis of our national union; 
and no state ought to have it in their power to change its 
government into a monarchy." 2 This was also apparently the 
view of Mr. Gorham, who said: "An enterprising citizen might 
erect the standard of monarchy in a particular state, might 
gather together partisans from all quarters; might extend his 
views from state to state, and threaten to establish a tyranny 
over the whole and the general government be compelled to 
remain an inactive witness of its own destruction." 3 In Mr. 
Wilson's view the object of the clause was "merely to secure the 
state from dangerous commotions, insurrections, and rebellions." 4 

Of the several members who spoke on the subject in the Con- 
vention no one seemed inclined to go into any detail as to what 
constituted republican government. The practice of referring 

1 Life and Works, Vol. X, p. 328. 

2 Farrand, Records of the Federal Convention, Vol. I, p. 206. 

3 Ibid., Vol. II, p. 48. 4 Ibid., p. 47- 



28 State-wide Initiative, Referendum, and Recall 

state constitutions to popular vote had been begun in Massa- 
chusetts and New Hampshire, and no member of the Convention 
seems to have mentioned that as objectionable, although Gouver- 
neur Morris was unwilling to guarantee some of the laws then 
existing in Rhode Island, and Mr. Houston entertained serious 
objections to the constitution of Georgia. 

It is idle to speculate, however, whether they would have 
regarded a system of initiative and referendum, such as that now 
existing in Oregon, as repugnant to the republican form. They 
were not called upon to consider any such a proposition. 

Nevertheless from the tone of the Convention one may rea- 
sonably infer that they would have looked upon such a scheme 
with a feeling akin to horror. Everywhere in the laconic record 
of the proceedings of the Convention preserved by Madison there 
are evidences that one of their chief purposes in framing the fed- 
eral Constitution was to devise a system of checks and balances 
which would effectively prevent direct majority rule in any 
form. Elbridge Gerry declared that in his opinion the evils 
they suffered flowed "from the excess of democracy," adding 
that he had been "too republican : he was still however republi- 
can, but had been taught by experience the danger of the level- 
ing spirit." * Alexander Hamilton believed that the mass of the 
people "seldom judge or determine right," and advocated as a 
check on their representatives a Senate holding for life. 2 Mr. 
Randolph at the beginning of the Convention observed that " the 
general object was to provide a cure for the evils under which the 
United States laboured; that in tracing these evils to their 
origin every man had found it in the turbulence and folly of 
democracy." 3 Madison doubtless summed up the views of the 
Fathers when he said that to secure private rights against major- 
ity factions and at the same time to preserve the spirit and form 
of popular government was the great object to which their inquiry 
had been directed. 4 

1 Farrand, op. cit., Vol. I, p. 48. 2 Ibid., p. 299. 3 Ibid., p. 51. 

4 The Federalist, Number 10. 



Introductory Note 29 

In the face of such evidence, which may be easily multiplied 
by citations from the records of the Convention, The Federalist, 
and other writings of this period, no one has any warrant for 
assuming that the founders of our federal system would have 
shown the slightest countenance to a system of initiative and 
referendum applied either to state or national affairs. If some 
state had possessed such a system at that time, it is question- 
able whether they would have been willing to have compromised 
with it, as they did with the slave states, in order to secure its 
adherence to the Union. Democracy, in the sense of simple 
direct majority rule, was undoubtedly more odious to the most 
of the delegates to the Convention than was slavery. 

When the judges of the Supreme Court are called upon to inter- 
pret the "republican" clause of the Constitution as applied to a 
system of initiative and referendum, it is evident they cannot dis- 
cover what was the intention of the Fathers, for the latter can 
scarcely be said to have had any intention about a matter which 
had not yet come within their ken in anything approaching the 
form which it has now assumed. If the court, however, wishes 
to apply the spirit of the federal Constitution as conceived by its 
framers, it can readily find justification in declaring a scheme of 
statewide initiative and referendum contrary to the principles 
of that great instrument. 

Nevertheless in view of the principles laid down in the case 
of Luther v. Borden and the recent decision of the Oregon court 
in the cases of Kadderly v. Portland and Kiernan v. Portland, 1 
it seems hardly possible that the Supreme Court of the United 
States will declare the system of state-wide initiative and refer- 
endum unconstitutional. In the case of Luther v. Borden, which 
grew out of Dorr's Rebellion in Rhode Island, the court had 
to consider that clause of the federal Constitution under which 
republican government is guaranteed to the states, and Chief 
Justice Taney said: — 

1 These cases are printed below, pp. 291 ff. 



30 State-wide Initiative, Referendum, and Recall 

Under this article of the Constitution it rests with Congress 
to decide what government is the established one in a State. 
For as the United States guarantee to each state a republican 
government, Congress must necessarily decide what government 
is established in the State before it can determine whether it is 
republican or not. And when the senators and representatives 
of a State are admitted into the councils of the Union, the author- 
ity of the government under which they are appointed, as well 
as its republican character, is recognized by the proper consti- 
tutional authority. And its decision is binding on every other 
department of the government, and could not be questioned in a 
judicial tribunal. It is true that the contest in this case did not 
last long enough to bring the matter to this issue; and as no 
senators or representatives were elected under the authority of 
the government of which Mr. Dorr was the head, Congress was 
not called upon to decide the controversy. Yet the right to 
decide is placed there, and not in the courts. 

Following this interpretation, Congress, in allowing the 
representatives and senators from states having the initiative 
and referendum to take their seats, has recognized the govern- 
ments in those states as republican in form ; and this recognition 
is binding upon the courts. 

On the particular issue as to whether a system of initiative and 
referendum is contrary to republican government, we have the 
well-reasoned opinion of an Oregon court, which upheld the new 
scheme. The court said in part : — 

Now, the initiative and referendum amendment does not abol- 
ish or destroy the republican form of government or substitute 
another in its place. The representative character of the gov- 
ernment still remains. The people have simply reserved to them- 
selves a larger share of legislative power, but they have not over- 
thrown the republican form of the government or substituted 
another in its place. The government is still divided into the 
legislative, executive, and judicial departments, the duties of 
which are discharged by representatives selected by the people. 
Under this amendment, it is true, the people may exercise a 
legislative power, and may, in effect, veto or defeat bills passed 
and approved by the legislature and the governor; but the 
legislative and executive departments are not destroyed, nor are 



Introductory Note 31 

their powers or authority materially curtailed. Laws proposed 
and enacted by the people under the initiative clause of the amend- 
ment are subject to the same constitutional limitations as other 
statutes, and may be amended or repealed by the legislature at 
will. 

In the Kiernan case the same court declared that responsibility 
directly to the people constituted the essence of republican gov- 
ernment, and that the system of initiative and referendum con- 
tributed toward the establishment of such responsibility. 

Monarchical rulers, said the court, refuse to recognize their 
accountability to the people governed by them. In a republic 
the converse is the rule ; the tenure of office may be for a short 
or a long period, or even for life, yet those in office are at all 
times answerable, either directly or indirectly, to the people, and 
in proportion to their responsibility to those for whom they may 
be the public agents, and the nearer the power to enact laws and 
control public servants lies with the great body of the people, 
the more nearly does a government take unto itself the form of a 
republic — not in name alone, but in fact. From this it follows 
that each republic may differ in its political system, or in the 
political machinery by which it moves, but so long as the ulti- 
mate control of its officials and affairs of state remains in its 
citizens, it will, in the eye of all republics, be recognized as a 
government of that class. Of this we have many examples in 
Central and South America. 

It becomes, then, a matter of degree, and the fear manifested 
by the briefs filed in this case would seem to indicate, not that we 
are drifting from the secure moorings of a republic, but that our 
State, by the direct system of legislation complained of, is be- 
coming too democratic, advancing too rapidly toward a republic 
pure in form. This, it is true, counsel for petitioner does not 
concede; but under any interpretation of which the term is capa- 
ble, or from any view thus far found expressed in the writings of 
the prominent statesmen who were members of the Constitutional 
Convention, or who figured in the early upbuilding of the Nation, 
it follows that the system here assailed brings us nearer to a State 
republican in form than before its adoption. 

Coming now to less theoretical considerations, we may inquire 
what are the precise objections advanced by those who believe 



32 State- wide Initiative, Referendum, and Recall 

that law-making by a representative assembly is so far superior 
to occasional law-making by popular vote as to warrant the 
unhesitating rejection of the latter. We may preface this in- 
quiry by a sketch of what may be deemed the theory of repre- 
sentative government, which is more or less unconsciously as- 
sumed to be its practice by those who have set themselves against 
the new system. 

A representative assembly consists of delegates apportioned 
among compact and contiguous districts containing as nearly 
as practicable an equal number of inhabitants. Each delegate 
represents a majority of the electors in his district. Thus in the 
legislature of the state is reflected the will of the dominant ma- 
jority for the time being. In this legislature each member is 
free to introduce such bills as he believes to be to the interest of 
the state in general or his constituents in particular. These bills 
are taken up one after the other for careful deliberation, debated 
and scrutinized according to their merits, recast under the influ- 
ence of the light thrown upon them from various angles, and 
finally solemnly engrossed as the mature expression of the legis- 
lative will. Such is the theory of representative government; 
and as so conceived it would be difficult to imagine a more ad- 
mirable instrument for popular government and scientific law- 
making. 

Unfortunately, the practice of representative government is in 
general so far removed from this theoretical ideal as to make it 
scarcely worthy of consideration in discussing the desirability 
of a supplementary system of initiative and referendum. With- 
out bringing under review the gross abuses practised in every 
state in the Union in the distribution of representation, and the 
wholly disproportionate results accruing from the district sys- 
tem of election, we may inquire at once as to what are the general 
methods in the average state legislature. 

Every one knows that a considerable portion of our recent im- 
portant state laws have not been drafted in the legislatures at all, 
but have been prepared at the instance of governors, and often 



Introductory Note 23 

forced through the legislatures under executive pressure. A large 
number of the bills which do not originate in the executive 
chamber are drafted by private parties, sometimes the members 
of societies organized for beneficent purposes, and sometimes by 
the agents of other societies organized as corporations particu- 
larly for private gain. It would be interesting to have a true 
history of all the bills passed in our state legislatures in the past 
decade, in order that we might know exactly how much legis- 
lative wisdom had been exercised in their preparation ! 

Fortunately, as to debates on legislative measures the public 
has access to them, and it is not too much to say that critical, 
searching debate, designed not for partisan display, but for the 
illumination of the subject, is a rare exception. Every one knows 
about the rapid and ill-considered fashion with which legisla- 
tion is driven through in the last few days of the session under 
gavel rule, simply because the organization leaders of the 
assembly have agreed that the job must be done. The truth 
is that the voters of no commonwealth have any opportunity 
for discovering exactly who determines the legislative program 
in their state assembly. 

When considering, therefore, a system of initiative and refer- 
endum, it is the practice of representative government as it now 
prevails in the United States, rather than its theory, which 
should be the basis of making contrasts. Furthermore, in the 
study of the system, its actual operation and reasonably cer- 
tain potentialities should be considered rather than any extreme 
vagaries to which it might lend itself. If one were looking 
for imaginary horrors, one could construct, them out of the 
representative idea as well as out of the direct legislation idea. 

What are the requirements of good legislation ? They are that 
any particular bill should be timely, technically drafted so as 
to secure the will of the electorate, and properly adjusted to the 
social and economic conditions — the habits and aptitudes of the 
particular community to which it is applied. In general, a law 
should be the expression of the matured and deliberate will of a 



34 State-wide Initiative, Referendum, and Recall 

clearly ascertained majority of the voters. But everybody knows 
that this is an ideal rather than a real condition of affairs. The 
actual process in the adoption of any important reform begins 
with a few interested and enlightened persons who draft the proj- 
ect of law; it is then more or less intelligently accepted by a 
small group of the voters in the state ; and then it finally secures 
the legislative majority necessary to its enactment, largely by 
the tacit consent of those who know little or nothing about it. 
If, in real practice we should demand the deliberate and 
carefully formed will of a majority of all the voters of a common- 
wealth or their representatives on every important measure, 
progressive and enlightened legislation would be difficult indeed 
to secure. All that we can ask of a law, in a democracy, in ad- 
dition to the qualities of form and adaptation to the social medium 
mentioned above, is that it shall be reasonably acceptable to 
that vague thing which we call public opinion. 

Now, is there anything inherent in the plan of initiating legis- 
lation by groups of private parties which precludes satisfactory 
expertness in the drafting of measures, or at all events an expert- 
ness equal to that commonly secured in the average state legis- 
lature ? Undoubtedly one may imagine a group of ignoramuses 
drawing together and drafting a legal monstrosity ; but in view 
of the fact that, under the initiative and referendum, private 
persons do not initiate bills unless they are deeply interested in 
the success of their particular measures, there is every reason for 
supposing that they will take proper precautions to employ that 
legal talent which is necessary to secure technical formality. Of 
course, the instance of a measure initiated in Oregon without an 
enacting clause is often cited as an evidence of the inherent stu- 
pidity of popular initiators; but one swallow does not make 
a summer, neither does a considerable group of them, and if 
bad legislation on its technical side were an evidence of stupidity, 
representative government would have to stand with a shamed 
face at the bar of reason. It seems fair to assume that under a 
system of direct legislation where the initiators are bound to run 



Introductory Note 3$ 

the gantlet of opposition and criticism in the public discus- 
sion of their particular measures, special precautions will be taken 
to secure a satisfactory legal form. All that talent and enter- 
prise which is now employed extra-legally in the drafting of bills 
for legislatures may be drawn upon in the drafting of bills for 
popular initiation. No doubt mistakes will be made and have 
been made under a system of popular initiative, and several ludi- 
crous blunders have already been called to public attention. But 
the fact remains that the technical side of legislation may be 
handled in practice quite as well under popular initiation as under 
legislative initiation. 

It must be acknowledged, however, that were the theory of the 
representative system — searching debate and illuminating dis- 
cussion — actually carried out in practice, it would be difficult 
to imagine a system so well adapted to technical perfection in 
law-making. But in the world as one finds it, there seems to be 
as much hope for technically acceptable legislation from groups 
of public-spirited private citizens as from the committee rooms 
of state legislatures where two or three men — generally mediocre 
in character — usually do most of the work that is done there, 
and assume little or no responsibility for their measures. 

Admitting as one must nevertheless, that there are grave dan- 
gers lurking in the possibility of initiation by irresponsible groups 
of private parties, the case for the initiative need not be given up 
as hopeless. Methods may be devised to assure more attention 
to the drafting of bills referred on popular petition. The publica- 
tion of the names of those who actually drafted any bill referred 
by the initiative might be required and reliable sponsors secured. 
Or again, the Wisconsin plan for confining the initiative entirely 
to bills actually introduced in the legislature might help to 
obviate some of the objections laid against the indiscriminate 
drafting of laws. 

Granting that the technical side of law-making may be 
taken care of by the initiative, a measure may not have 
behind it such an effective demand as to warrant its sub- 



$6 State-wide Initiative, Referendum, and Recall 

mission to the voters. It is certain that, where no precau- 
tions are taken to control the method of securing signa- 
tures the initiative petition may not represent any serious 
opinion on the part of those who sign it. Wherever the initia- 
tive is in force, a new trade, that of getting signatures, develops. 

At all times these "signature-getters" keep busy, writes Mr. 
Hendrick, though they are most active during the April and May 
following a legislative session. They are found in practically 
every part of the State. They invade the office-buildings, the 
apartment-houses and the homes of Portland, and tramp from 
farmhouse to farmhouse. Young women, ex-book-canvassers, 
broken-down clergymen, people who in other communities would 
find their natural level as sandwich-men, dapper hustling youths, 
perhaps earning their way through college — all find useful 
employment in soliciting signatures at five or ten cents a name. 
The canvasser bustles into an office, carrying under his arm a 
neat parcel of pamphlets, the covers perhaps embellished with 
colored pictures of the American flag. He gives his victim a few 
minutes to read the printed matter, and then, placing his finger 
on a neatly ruled space, says, "Sign here." Very likely the per- 
son approached will demur. The proposed law is foolish, un- 
necessary — the work of a group of hare-brained cranks. Perhaps 
a protracted argument takes place which may ultimately ramify 
into the fundamental principles of constitutional government. 
Everywhere that the canvassers go there is a flood of talk. There 
is no State in the Union so perpetually argumentative and voluble 
as Oregon. This is especially true when the solicitors are not paid 
workers, but enthusiasts. And at times these workers do not 
receive a cordial welcome ; there are plenty of Oregonians who 
regard the whole system as a nuisance and treat its representa- 
tives accordingly. In other instances people sign petitions 
thoughtlessly — sometimes without reading the measures or 
even understanding their contents. "I could easily get ten 
thousand signatures to a law hanging all the red-haired men in 
Oregon," one cynic on popular government remarked to the 
writer. It is not at all unlikely that he could. The business of 
getting names, as everybody knows, depends more upon the 
individual than upon the merits of the particular case at issue. 
This new profession in Oregon has its well-recognized experts; 
and not infrequently one group of canvassers will return dis- 



Introductory Note 37 

heartened, having absolutely failed in pushing a particular 
measure, only to have another group go out and return with all 
the signatures the law requires. 1 

In view of the facts here disclosed, which are corroborated by 
experience in securing signers for direct primary petitions, the 
number of signatures required for an initiatory petition should 
be large enough to offset the results of the professional name- 
hunters. 

It should be observed also that the advantages which the 
representative system affords in initiation may be combined with 
those of popular initiative, as in the case of Maine, where the 
recognition of the necessity for discussion and technical work in 
good law-making led to the adoption of a scheme whereby the 
legislature may enact a measure of its own to submit to popular 
approval along with the proposal initiated by private enterprise. 
This device, it has been said, "enables the legislature to correct 
faults in proposed legislation. The substitute bill will undoubt- 
edly be far superior to the initiative bill." The possible objec- 
tion here is that the bill advanced by the legislature may not be 
any better than the initiated measure, and may contain "jokers" 
which are not apparent to the public eye. Furthermore it may 
introduce an element of confusion. Nevertheless it does give 
the legislature an opportunity to point out errors in an initiated 
measure and propose corrections. 

It is not on the technical side of bill-drafting that the initiative 
and referendum are open to the most serious objections. The 
other criterion of a good law — adaptation to social and economic 
environment — is not easily met if a measure may be initiated by 
a small group of persons and then put into effect by a minority 
of voters not truly representative of the public opinion of the com- 
munity. Experience with the reference of constitutional amend- 
ments has revealed an inertia and indifference on the part of the 
electorate which make possible legislation by insignificant mi- 
norities where the principle is accepted that a measure shall go 
1 McClnre's, August, 1911, " Law-making by the Voters," B. J. Hendrick. 



38 State-wide Initiative, Referendum, and Recall 

into effect on receiving a majority of the votes cast for and 
against it. 

This lack of intelligent interest, it is said, is amply demonstrated 
by the statistics of the vote on constitutional referenda. 1 In- 
deed, it is easy to give a number of " horrible examples" of con- 
stitutional amendments adopted by insignificant fractions of the 
electorate. An instance commonly cited is the Louisiana election 
of 1906, in which a number of important constitutional amend- 
ments were carried into effect by a vote of only one-sixth of the 
electors. This, of course, is exceptional ; but it frequently 
happens that only thirty or forty per cent of the electors take 
the trouble to vote on constitutional amendments, which often 
means that twenty or twenty-five per cent of the voters enact 
constitutional amendments into law. 

At first glance, these facts would seem to indict not only the 
initiative and referendum, but the practice of referring any 
measure whatever to popular vote. But, as is usually the case 
in statistics, a little analysis is necessary in order to ascertain the 
significance of the figures. According to Dr. Dodd's estimate, 
472 questions were submitted to the voters of the several states 
during the period 1899 to 1908, and of these about 410 were not 
of fundamental and state-wide importance, being in many in- 
stances special and local legislation. Much of this petty con- 
stitutional tinkering is due to the practice of including in the con- 
stitution of the state a mass of detail which really belongs in 
statutes. One is not surprised to find that in Washington in 
1904, for example, only about nineteen per cent of the electors 
took the trouble to vote on a constitutional amendment authoriz- 
ing the state legislature to appoint chaplains for state penal and 
reformatory institutions ; or that only about twenty-five per cent 
of the voters of New York in 1905 cared to express an opinion 
on a constitutional amendment permitting a justice of the ap- 
pellate division to serve in a supreme court. 

1 See the exhaustive tables in the Appendix, Dodd, The Revision and 
Amendment of State Constitutions. 



Introductory Note 39 

Indeed, the smallness of the vote in many instances indicates 
not a lack of interest, but a high degree of intelligence, on the part 
of the voters. It often shows that the voters are aware of the 
fact that they do not know enough about some particular or local 
matter to warrant their expressing an opinion one way or another. 
What does a voter in a lumber camp in the Adirondacks know 
about the advisability of exempting certain bonds in New York 
City from the operation of the debt limit ? Or what does the 
voter on West 7 2d Street in New York City know about the 
desirability of increasing the number of judges in a judicial district 
in a western part of the state ? It is evident, therefore, that in 
order to ascertain the significance of popular voting upon refer- 
enda, every case must be examined on its merits. 

A general survey shows that for every instance of popular 
neglect another can be discovered of striking popular interest. 
Indeed, a careful examination of the figures in the tables cited 
above reveals an astounding amount of interest in a large number 
of the important proposals referred to popular vote ; and this in 
spite of the fact that little or no systematic attempt is made on 
the part of state authorities to bring the significance of the 
amendments to the attention of the voters previous to election 
day. As Professor Dodd remarks, usually there is almost no 
newspaper discussion of amendments of minor importance which 
always constitute the greater portion of the referenda ; and "the 
voter hardly knows that there are amendments to be voted upon 
until he reaches the polls, and after the election is over the result 
is hardly of sufficient interest to be reported." 

Moreover, the proportion of the vote cast on a popular referen- 
dum is ascertained in most cases by comparing it with the total 
vote of the officer who stood highest at the election in which the 
voting on the referendum occurred — often the vote with which 
the referendum total is compared is that cast for President of the 
United States. Now, to any one even casually acquainted with 
the methods of American politics, this is obviously an unfair 
comparison. Everybody knows the strenuous efforts which are 



40 State-wide Initiative, Referendum, and Recall 

brought to bear "to bring out the vote" by beating the highways 
and byways and using carriages and automobiles to gather in the 
lame and the blind and the halt. The popular vote for elective 
offices is by no means an indication of the amount of intelligent 
discrimination which is made on the part of the voters. It would 
be interesting to know just what proportion of the electors 
would come to the polls if the leaders of the political parties 
should make a compact to bring no pressure whatever, mone- 
tary or otherwise, upon them. It is not surprising that, in a 
spectacular fight over personalities, on the results of which de- 
pends the distribution of the spoils of office and the revenues 
accruing from the sale of political privileges, an extraordinarily 
large vote is polled. Instead of being discouraged at the small- 
ness of the vote cast on more or less remote questions of con- 
stitutional law, the friends of democracy really should be en- 
couraged at the surprisingly large number of instances in which 
sixty and seventy and eighty per cent of the voters take advan- 
tage of their opportunity to express an opinion on questions 
referred to them for consideration. 

There is, moreover, no magic significance about having one 
more than one-half of the voters in favor of a legislative proposi- 
tion. Many of those who oppose the initiative and referendum 
on the ground that it may permit legislation by a minority are 
not celebrated as advocates of the principle of simple majority 
rule. In too many cases they proclaim the doctrine of majority 
rule when criticising the initiative and referendum, but overlook 
the principle when they come to reviewing election of United 
States senators by state legislatures, judicial control of legisla- 
tion, and the executive veto. 

Anyone who is prayerfully solicitous for a majority vote in favor 
of every measure enacted into law will have to do some search- 
ing of his heart when examining the vote in our state legislatures. 
What assurance is there that any particular measure passed by a 
state legislature would, if submitted to popular vote, receive the 
approval of more than fifteen or twenty per cent of the electorate ? 



Introductory Note 41 

Every one at all familiar with the operations of American legis- 
latures is too painfully aware of the ways in which measures are 
rushed through under the party whip, or passed as the result of 
group trading in which members vote for measures to which they 
are personally opposed and which are not supported by their 
constituents, in order to receive support from the other side for 
some particular measures of their own. 

Surely it needs no lengthy demonstration to show that there 
is nothing sacred about percentages in elections. Nevertheless, 
legislation by small minorities is, of course, highly undesirable, 
and if a system of initiative and referendum necessarily made 
possible such legislation, it would be open to grave objections. 
In point of fact, however, it is possible to establish, in connection 
with the initiative and referendum, a safeguard against legis- 
lation by small minorities. For example, in Washington, the 
constitutional amendment to be submitted to the voters in 191 2 
provides that "any measure initiated by the people or referred 
to the people as herein provided shall take effect and become the 
law if it is approved by a majority of the votes cast thereon; 
provided that the vote cast upon such question or measure shall 
equal one-third of the total vote cast at such election and not 
otherwise." Obviously this proportion may be increased, if it 
is thought necessary, in order to secure a still wider expression of 
popular opinion ; but in view of the practice of submitting unim- 
portant and special questions, upon which the vote must obvi- 
ously be small, it is undesirable to make too high the percentage 
necessary to carry an amendment into effect. 

The ingenuity of the advocates of the initiative and referen- 
dum is by no means exhausted in the creation of rules as to the 
proportion of the votes necessary to enact a measure into law. 
Believing that the ideal of American government is the creation 
of a great democratic brotherhood on a high plane of intelligent 
cooperation, they prefer rather to establish a scheme of popular 
education in connection with the initiative and referendum. 
In Oregon, for example, the most noteworthy feature of the sys- 



42 State-wide Initiative, Referendum, and Recall 

tern is the recent statute providing for the publication and dis- 
tribution of arguments for and against the propositions submitted 
to the decision of the voters. Under this law the supporters and 
opponents of any particular measure may prepare their argu- 
ments at length ; these arguments are printed by the state (at 
the expense of the private parties concerned), together with the 
measures to be referred to the voters ; and a copy is sent to every 
voter in the commonwealth. It is contended by the friends of 
this system that it has an immense educational value in arousing 
the interest of the people, in securing the consideration of each 
measure on its merits, and in turning the search-light of publicity 
and discussion upon all the important political issues in the 
state. In 1910 the measures referred to the voters and the 
arguments favoring and opposing certain of them constituted a 
booklet of 208 pages, a copy of which was sent by the secretary 
of state to every voter. The arguments are kept within a rea- 
sonable compass by the provision that whoever prepares them 
must pay for their publication at a regular rate. 1 

Doubtless other instrumentalities might be devised by which 
the public interest could be engaged in referenda, and a reason- 
ably sober and deliberate judgment secured upon any particular 
proposal — a judgment which will satisfy those who do not 
expect mathematically correct results in the domain of politics. 
Moreover, if we take the actual vote on referenda in Oregon, 
where the most advanced system of publicity is now in force, we 
must admit that the proportion of votes is as a rule satisfactory 
to the most exacting. In the election of 1910 the vote cast for 
the several measures and constitutional amendments ranged from 
sixty to eighty-seven per cent of the total number of ballots cast 
in that election. The average totals cast for the four state 
offices, governor, secretary of state, state treasurer, and attorney- 
general, was 110,895, or ninety-two per cent of the entire number 
of ballots cast in the election. In drawing comparisons, therefore, 
between the vote on proposals and that cast for candidates, this 

1 See below, p. 94, for illustrative extracts from this pamphlet. 



Introductory Note 



43 



average should be taken as a basis. Thus the vote cast on refer- 
enda ranged from sixty-six to ninety-five per cent of the average 
vote cast for the four most important state offices. 

A study of the following table giving the vote on all of the 
measures submitted in Oregon under the initiative and referen- 
dum, including the election of 1910, reveals a wide variation in 
the extent of popular interest in the several propositions but a 
reasonably satisfactory interest in all of them. 



1904 



1. Direct primary law with direct selection 
of United States Senator * .... 

2. Local-option liquor law 1 

1906 

3. Omnibus appropriation bill, state insti- 
tutions 2 

4. Equal suffrage constitutional amend- 
ment 1 

5. Local-option bill proposed by liquor 
people l 

6. Bill for purchase by State of Barlow toll 
road 1 

7. Amendment requiring referendum on 
any act calling constitutional conven- 
tion x 

8. Amendment giving cities sole power to 
amend their charters l 

9. Legislature authorized to fix pay of state 
printer l 

10. Initiative and Referendum to apply to 
all local, special, and municipal laws l . 

11. Bill prohibiting free passes on railroads 1 

12. Gross-earnings tax on sleeping, refrigera- 
tor, and oil car companies l . . . . 



Yes 



56,205 
43,3 l6 



43,918 
36,902 

35,297 
3i,525 

47,661 
52,567 
63,749 

47,678 
57,28i 

69,635 



No 



i6,354 
40,198 



26,758 

47,075 
45, J 44 
44,527 

i8,75i 
19,852 

9,57i 

i6,735 
16,779 

6,441 



1 Submitted under the initiative. 

2 Submitted under the referendum upon legislative act. 



44 State-wide Initiative, Referendum, and Recall 



1906 



13. Gross-earnings tax on express, telephone, 
and telegraph companies l .... 

1908 

14. Amendment increasing pay of legislators 

from $120 to $400 per session 3 . . . 

15. Amendment permitting location of state 
institutions at places other than the 
capital 3 

16. Amendment reorganizing system of 

courts and increasing supreme judges 
from three to five 3 

17. Amendment changing general election 
from June to November 3 

18. Bill giving sheriffs control of county 
prisoners 2 

19. Railroads required to give public officials 
free passes 2 

20. Bill appropriating $100,000 for armor- 



ies 



21. Bill increasing fixed appropriation for 

state university from $47,500 to 
$125,000 annually 2 

22. Equal suffrage amendment l . . . . 

23. Fishery bill proposed by fish-wheel oper- 
ators 1 

24. Fishery bill proposed by gill-net opera- 
tors * 

25. Amendment giving cities control of 
liquor selling, poolrooms, theatres, etc., 
subject to local-option law l . . . . 

26. Modified form of single-tax amendment 1 

27. Recall power on public officials amend- 
ment l 



Yes 



70,872 

19,691 
4i,97i 

30,243 
65,728 
60,443 
28,856 
33,5o7 

44,n5 
36,858 

46,582 
56,130 



39,442 
32,066 

58,381 



No 



6,360 

68,892 
40,868 

50,591 
18,590 

30,033 
59,4o6 
54,848 

4o,535 
58,670 

40,720 

30,280 



52,346 
60,871 

31,002 



1 Submitted under the initiative. 

2 Submitted under the referendum upon legislative act. 

3 Submitted to the people by the legislature. 



Introductory Note 



45 



1908 



28. Bill instructing legislators to vote for 
people's choice for United States Sena- 
tor l 

29. Amendment authorizing proportional 

representation law * 

30. Corrupt-practices act governing elec- 
tions * 

31. Amendment requiring indictment to be 
by grand jury * 

32. Bill creating Hood River County l . . 

1910 

33. Women's taxpaying suffrage amendment l 

34. Bill for purchase of Eastern Oregon In- 
sane Asylum 3 

35. Act calling a constitutional convention 3 

36. Amendment providing for single legis- 
lative districts 3 

37. Amendment providing that the power of 
taxation be not contracted away 3 . . 

38. Amendment for state and municipal 
ownership of railways 3 

39. Amendment for uniform rule of taxation 3 

40. Bill increasing salary of judge of 8th 
District $1,000 2 

41. Bill creating Nesmith County * . . . 

42. Bill maintaining Oregon Normal School 
at Monmouth l 

43. Bill creating Otis County * 

44. Bill annexing parts of Clackamas to 
Multnomah County l 

45. Bill creating Williams County 1 . . . 

46. Amendment allowing counties to regu- 

late taxes x 



Yes 



69,668 
48,868 
54,042 

52.214 
43,948 

35,270 

5o,i34 
23,143 

24,000 

37,6i9 

32,844 
31,629 

13,161 
22,866 

17,426 

16,250 
14,508 

44,i7i 



No 



21,162 

34,128 

31,301 

28,487 
26,778 

59,o65 

41,504 
59,974 

54,252 

40,172 

46,070 
41,692 

71,503 
60,951 

40,044 
62,016 

69,002 
64,090 

42,127 



1 Submitted under the initiative. 

2 Submitted under the referendum upon legislative act. 

3 Submitted to the people by the legislature. 



46 State-wide Initiative, Referendum, and Recall 



1910 



Yes 



No 



47. Amendment giving municipal local op- 

tion on temperance l 

48. Bill extending the liability of em- 

ployers x 

49. Bill creating Orchard County l . . . 

50. Bill creating Clark County l . . . . 

51. Bill maintaining Eastern Oregon State 
Normal School 1 

52. Bill annexing portion of Washington to 
Multnomah County x 

53. Bill providing for maintenance of South 
Oregon State Normal l 

54. Amendment providing for state prohibi- 

tion of liquor 1 

55. Bill prohibiting sale and governing ship- 
ment of liquor * 

56. Bill creating a commission to examine 
employers' idemnity 1 

57. Bill prohibiting fishing on Rogue River, 
except by angling * 

58. Bill creating Deschutes County x . . . 

59. Bill providing for creation of new towns, 
counties, and municipal districts by a 
majority vote within boundaries of pro- 
posed municipality, and that 30 per cent 
within such territory may petition for 
such election x 

60. Amendment permitting counties to in- 

cur indebtedness beyond $5000 to build 
permanent roads, election to settle 
question l 

61. Bill extending direct primary to presi- 
dential nominations l 

62. Bill creating Board of People's Inspec- 
tors and providing for the publication 
of an official state magazine 1 . . . 



53,321 



37,129 

51,275 
43,353 

29,955 



50,779 



56,258 

15,664 
15,613 


33,943 
62,712 
61,704 


40,898 


46,201 


14,047 


68,221 


38,473 


48,655 


43,540 


61,221 


42,651 


63,564 


32,224 


5i,7i9 


49,712 
17,592 


33,397 
60,486 



42,327 

32,906 
41,624 

52,538 



Submitted under the initiative. 



Introductory Note 



47 



1910 



63. Amendment increasing " Initiative and 

Referendum" and Recall powers of 
people; 25 per cent may recall entire 
legislature; Speaker and President of 
Senate to be elected from outside of 
members ; ten dollars fine for unexcused 
absence from roll-call ; oath of office to 
provide against legislative log-rolling 1 

64. Amendment providing for three-fourths 

of jury verdict in civil cases ; expedit- 
ing court procedure and increasing pow- 
ers of supreme court x 




39,399 



1 Submitted under the initiative. 
2 A study of these tables shows that of the 64 measures, 48 or 75 per cent 
have been proposed by initiative petition, and 25 of them passed. Since 31 
of the 64 measures passed and 25 of the 31 were proposed by initiative peti- 
tion, 80 per cent of the successful measures never had the approval of the leg- 
islature. Moreover, 25 of the 64 measures were amendments to the state con- 
stitution, i.e. 39 per cent have been amendments and 61 per cent bills and 
acts. Of the 25 amendments 12 (48 per cent) were approved. From the 
time of the adoption of the Oregon Constitution, 1859 to 1902, it was not 
amended. Since 1906, or in four years, it has been amended 12 times. The 
process formerly took four years. It can now be done in four months. Of the 
39 bills 19 (48 per cent) were approved. Further, of the 25 amendments 17 
(68 per cent) were by initiative petition, and the other 8 were referred to the 
people by the legislative assembly. Of the 1 2 amendments approved 10 (83 per 
cent) were of the 17 proposed by initiative petition. In other words, 10 out 
of 17, or 58 per cent of the measures the people proposed got through, whereas 
only 2 of the 8 (25 per cent) proposed by the legislature (they must refer 
them to the people, being amendments) met with the approval of the voters. 
The submission of a total of 39 measures at three different elections in Oregon 
cost the state $25,000, or an average of about $780 for each measure. 
At the election in 1908, 19 measures were submitted at a cost to the state of 
$12,362, or an average of about $651 each. Five of these 19 measures were 
submitted without argument. Upon the other 14 measures there were 19 
arguments submitted, for which the authors paid the cost, amounting to 
$3,157. The state election in 1910 cost the state $22,610.61 to submit 32 
measures, or an average of $706.56 to the measure. For this year, the "pub- 
licity pamphlet" cost each registered voter 20 cents in taxes. 



48 State-wide Initiative, Referendum, and Recall 

What proportion of these voters acted after careful examination 
of the measures on which they expressed an opinion, it is impos- 
sible of course to estimate, just as it is practically impossible for 
the citizen to know to what extent any particular bill has been 
deliberately considered in the legislature which passed it. There 
is no reason, however, why a fairly sound and deliberate judgment 
on all important questions of public policy may not be reached 
by the voters during the period in which the measures are pend- 
ing before them for their consideration. The case for this view 
is thus put in short form by the advocates of the system in Ore- 
gon, in a pamphlet entitled People's Power and Public Taxation : — 

As to the alleged burden of measures upon the minds of the 
voters, when submitted to popular vote, and the little time in 
which the voters have to study such measures, compare this 
with the corresponding burden upon the legislature. Of the 
nineteen measures submitted on the ballot at the election in 1908, 
four were submitted by the Legislature of 1907 a little more than 
15 months before they were voted on ; four were sent to the vot- 
ers by referendum petition a little more than 12 months before 
the election ; and eleven were submitted by initiative petition — 
all of them four months before the election and some of them 
more than six months before election ; say, an average of five 
months, or 150 days. For the initiated measures, then, the 
voters had an average of fourteen days and a half to study and 
discuss each measure; and a much longer time for each of the 
referendum measures. Such was the "great burden" upon the 
minds of the voters. Now, take the records of the legislature, 
and compare the burden upon the minds of the legislators: 

In 1909 the state senate was actually in session 28 days of 
the regular session, in which it had to consider 12 veto messages 
from the Governor of bills vetoed after the Legislature of 1907 
adjourned; 262 senate bills; 201 bills passed by the house and 
sent to the senate; 104 senate resolutions and 27 resolutions 
passed by the house ; 10 senate memorials and 10 house memo- 
rials ; making 626 measures, without counting the reading of 
petitions and necessary action upon the Governor's vetoes of 
bills passed at the session of 1909. That is, 626 measures in 28 
days, or an average of a little more than 22 measures a day, as 
against the "great burden" of fourteen days and a half to a 



Introductory Note 



49 



measure, which the voters had for the measures submitted in 
1908. 

Similarly, in the 28 days they were in session, the members of 
the house of representatives had 681 measures to consider, or 
an average of more than 26 a day. 

The experience with the initiative and referendum in South 
Dakota has not been so extensive as that in Oregon, and conclu- 
sions are not so readily drawn as to popular interest in direct 
legislation. The following table of the votes on referenda 
submitted to voters of that State at the election of November, 
1910, shows that eleven out of the twelve propositions submitted 
were defeated. A keen observer of the campaign on these propo- 
sitions thinks that this result is largely due to the activity of 
certain parties, especially interested in the defeat of one or two 
propositions, who filled the newspapers with advertisements 
and plastered the fences with billboards advising the electors 
to "Vote No." The figures are : — 



Renting Lands 

Salary, Attorney-General . . . 

Equal Suffrage 

Debt Limitation 

Revenue Amendment 

New Institutions 

County Option 

Electric Headlights on Locomotives 

"Czar" Law 

Embalmers Law 

Congressional Districts .... 
Militia 




No 

44,220 
52,397 
57,709 
52.233 
52,043 
47,625 
55,372 
48,938 
52,152 
49,546 
47,893 
57,44o 



One of these measures, the law requiring electric headlights for 
locomotives, was a bill passed by the state legislature on which 

1 Beard, Digest of Short Ballot Charters, folio 75,503. The total vote for 
governor was 105,801. 



50 State-wide Initiative, Referendum, and Recall 

the railroads invoked popular referendum. The legislature, 
convinced that the defeat of the proposition at the polls did not 
represent the deliberate judgment of the people, reenacted the 
measure at the session immediately following, and it will again 
be submitted to a referendum. Thus, an apparently salutary 
measure, even if it is adopted by the people at the next election, 
will be deferred for at least four years. Opponents of the ini- 
tiative and referendum will doubtless find no little consolation 
in such an example of public folly ; but it can be duplicated many 
times over by instances in which legislatures have failed to enact 
laws demanded by popular opinion and sound policy. 

If any conclusion on the wisdom of popular voting on laws is 
drawn from an examination of the "yea" and "nay" vote shown 
in the tables above, it will depend almost entirely upon one's 
view of what constitutes wise and sound public policy. Obvi- 
ously, there is no scientific ground upon which contemporary 
political questions can be mathematically and precisely deter- 
mined. In such matters one's conviction is not so much the 
result of ratiocination as of interest and feeling. Whether 
the voters of Oregon have voted wisely on questions referred to 
them, the reader must determine for himself by examining the 
following list of principles which have been established in that 
state since direct government was introduced : x — 

i. That they will not tolerate a return to anything like the 
convention method of making nominations, but will retain their 
direct-primary system until something better is offered. 

2. That they will enforce election by the legislature of that 
candidate for United States Senator in Congress who receives the 
highest number of the people's votes. 

3. Complete prohibition of railroad passes for all persons 
except employees of the railroads. 

4. Abolition of the power of city councils to give away pub- 
lic franchises. 

5. Abolition of the temptation and opportunity to buy or 
sell votes in the legislature. 

1 Formulated by a group of initiative and referendum advocates. 



Introductory Note 51 

6. That the people of every city or town shall have power 
to make and amend their city charters on all local matters at 
their own pleasure, absolutely free from special acts by the 
legislature. 

7. That they will retain the initiative and referendum in 
law-making. 

8. That they will have power to recall any elected public 
officer, from constable to governor, including judges of the 
courts. 

9. That they approve the principle of election of members of 
the legislature by proportional representation, though they have 
not yet agreed on the method. 

10. That they will provide liberally by taxes for support of 
higher education in the State University. 

11. That they will maintain one efficient normal school. At 
the same election they voted to abolish two others created by 
the legislature some years ago. 

12. That corporations having little or no tangible property 
should pay a gross income and license tax. 

13. That the expenditures of any candidate for public office 
shall be limited to practically one-fourth of one year's salary of 
the office he seeks, and the State will provide the greater part 
of the expense for publicity of the merits of candidates and of 
political parties. 

14. That edible fish, especially salmon, shall be conserved in 
the navigable rivers of the State. 

15. That measures of chiefly local interest will be rejected 
if submitted to the voters of the whole state. 

16. Abolition of convention system of electing delegates to 
national conventions, establishing direct election of such dele- 
gates by the voters of the great parties and permitting expression 
by the voters of their choice for party candidates for President 
and Vice-President. 

17. That three-fourths of a jury shall be able to render a ver- 
dict in all civil cases, and court procedure shall be so simplified as 
to discourage appeals to the supreme court for delay and new 
trials because of technical errors, if substantial justice has been 
obtained in the lower court. 

18. That they do not approve state- wide prohibition of the 
manufacture and sale of liquor. 

19. That they have established and will maintain local option 
on the liquor question. 

BOSTON UNIVERSITY 
rni 1 cfiF of LIBERAL ARTS 



52 State-wide Initiative, Referendum, and Recall 

20. That they require a reasonable measure of employers' 
liability for workmen's accidents. 

21. They have granted the people of each county power to 
exempt from all taxation any class or classes of property, subject 
to any general laws approved by the people of the State. 

22. That no citizen shall be tried in a circuit court for crime 
unless accused by a grand jury. 

23. That general election shall be held in November, when 
most other States vote, instead of in June. 

24. That the public credit shall not be used to aid, build, or 
operate private or Government railroads. 

25. That counties may issue bonds to build permanent rail- 
ways. 

26. That private schemes for looting the public treasury can- 
not be worked by the initiative method. 

The Recall 

The movement for the recall has grown out of a lack of confi- 
dence in administrative officials akin to that distrust of legislatures 
which was largely responsible for the establishment of the ini- 
tiative and referendum. The principle upon which it is based 
is simple, namely, that elected officers are merely the agents of 
popular will, and that the electors should have an opportunity 
at all times to pass upon the conduct of their representatives. 
By this system, its advocates expect to establish that steady 
popular control over the administration which was fondly hoped 
would result from the popular election of public officials. 

While apparently simpler than the initiative and referendum, 
the recall really involves problems of organization which go to the 
very root of public administration, already notoriously inefficient 
and irresponsible in the United States. A complete analysis of 
the implications of the system is therefore impossible in a cursory 
survey, to which this introduction is necessarily limited. A few 
of the elements of the problem, however, may be stated. 

No discrimination has yet been made in the popular mind in the 
United States between those offices which may properly be made 
elective and those purely routine offices which have nothing to do 



Introductory Note 53 

with the formulation of public will into policies. The system of 
popular election, all right within limits, has already been carried 
to such an extreme as to defeat its very purpose. The theory itself 
is engaging enough : a number of men are candidates for a public 
office. Each of these candidates entertains certain notions of 
policy with regard to the office he is seeking, and each of them 
has his own standards of efficiency and integrity. The voters 
select the one who most accurately reflects the prevailing public 
sentiment and seems most likely to realize the dominant public 
desire. If he does not carry out the policy which he is expected to 
support, or fails to come up to the standards set by his constitu- 
ents, he is turned out at the expiration of his term (which ought 
theoretically to be a short one in order to give the people a chance 
to express their judgment on the officer with great frequency), 
and some one who more nearly represents the electorate is chosen 
in his stead. Thus in the long run representative democracy 
triumphs and popular control is maintained. To question the 
essential soundness of this view is deemed petty treason by most 
politicians, and the doubter is met with the firm assertion that 
the people may be trusted to elect any officer, local, state, or 
national — an assertion which quite overlooks the fundamental 
fact that electing all of them together is an entirely different 
matter from electing any one of them. 

As a matter of record, the theory of popular . control through 
a multiplicity of elective offices does not work in practice. In the 
case of a large number of officers there is no question of policy 
involved, because their functions are purely ministerial, prescribed 
by statutes, and their discharge of these functions is enforceable 
through the ordinary processes of law. No one has been able to 
discover up to this time why we should select a Republican 
state treasurer to serve with a Socialist state veterinarian ; and 
it is because the results of state elections, so far as most of the 
offices are concerned, are of slight importance to anybody except 
the political experts, that the public is largely indifferent to the 
qualifications of the minor candidates. The real failure of the 



54 State-wide Initiative, Referendum, and Recall 

democratic theory, however, is due to the fact that it is absolutely 
impossible to discriminate wisely among candidates for a large 
number of offices. It is a matter of common knowledge that in 
almost every state election the only candidates who are seriously 
discussed in the press — in other words, the only candidates upon 
whose qualifications and record any light is thrown — are those 
seeking the office of governor, and, in the case of municipal elec- 
tions, that of mayor. The candidates for the minor state offices, 
and, what is infinitely more important, the candidates for the 
city council and the legislature, are generally left in the same fog 
which envelopes the candidates for the position of coroner or clerk 
of the municipal district court. There are of course exceptions 
to this rule, but it applies quite generally throughout the United 
States. 

Now to suppose that adding a system of recall to such a 
complex of public offices — already so large as to bewilder the 
voter — will advance public control over administration, is 
surely flying in the face of what may be reasonably called the 
plain teachings of American political experience. It seems use- 
less to expect popular control through the recall when the inevi- 
table development of political machines has defeated popular 
control in the selection of officers. 

This does not mean, however, that with a simplified ballot and 
the concentration of large responsibility in the hands of a few 
elected officials some form of recall would not only be workable, 
but highly desirable. It would undoubtedly permit a consider- 
able increase in the terms now conceded to public officials, for 
the electors would certainly be willing to relinquish the right 
of frequently passing upon the conduct of their agents at regular 
elections if, at any time, a special election could be called on the 
demand of a considerable portion of the voters. Indeed, the possi- 
bility of lengthening the terms of public officers, a thing highly 
desirable for the sake of efficient administration, will doubtlessly 
commend the recall to the consideration of many students and 
men of affairs who would otherwise be opposed to it in any form. 



Introductory Note $$ 

The recall of judges, however, rests upon a different basis. 
The most "interesting" function of the judges from the point of 
view of the electorate is that of fixing public policy. Judges in 
the United States, unlike the judges of England for instance, are 
not restricted merely to the settlement of disputes between private 
parties ; they are policy-determining officers, because they have 
the power to declare null and void, on principles of constitutional 
law which are scarcely more than general moral precepts, acts 
passed by legislatures and by the initiative and referendum. 
During the period of seven years from 1902 to 1908 the supreme 
courts of the several states declared unconstitutional about five 
hundred statutes. The theory upon which they act, of course, 
is that in declaring a law invalid they are merely interpreting 
the higher law or the supreme will of the people as expressed in 
the state or federal Constitution. 

Now, as Lincoln pointed out in his first inaugural address, 
nearly all the big questions of constitutional law cannot be settled 
at all by reference to the plain letter of the law, and when judges 
declare statutes unconstitutional they usually (except in plain 
and flagrant cases of violation by legislatures) make constitu- 
tional law — in the sense that they read into the constitution 
their view of what the popular will was supposed to be in the enact- 
ment of that constitution. The theory here is that a court of 
five or seven men can more nearly interpret the public will ex- 
pressed in the supreme law than can the members of the legis- 
lature elected by the people. Whatever the theory, the judges, 
as long as they continue to exercise this policy-determining func- 
tion, will be drawn directly into politics ; and it must be expected 
that the same pressure which is brought to bear on other officials 
to secure more popular control will be brought to bear upon 
them. 

The question of the recall of judges was the subject of such an 
elaborate discussion in Congress, occasioned by the demand for 
the admission of Arizona, that it seems worth while to state the 
case for and against the system in the language of the men who 



56 State-wide Initiative, Referendum, and Recall 

may be said fairly to represent the present state of public opinion 
in the country. 

Those who opposed the recall in general took the ground that 
the judiciary should be considered entirely apart from the execu- 
tive and legislative branches of the government, and should not 
be regarded at all as a policy-determining or a political branch 
of the government. Mr. Pickett of Iowa l sharply distinguished 
the judiciary from the executive and legislative branches: 
" Candidates for legislative and executive offices go before the 
people on platforms embodying the principles for which they 
stand, and besides they make declarations as to the policies and 
laws which they will favor or oppose," and thus the people deter- 
mine their legislative and executive policy. Judges, on the 
other hand, he declared, "are not elected on an expression 
in advance as to how they will hold in a certain case, how they 
will construe a constitution or a statute, or whether they will 
or will not support a certain law, be it popular or unpopular." 
The judges, he continued, are not elected to represent the 
people in the sense in which that word is applied in the case of 
legislative and executive officers; but are chosen "to expound, 
construe, and interpret the law and apply it to the facts be- 
fore them," irrespective of popular favor or disfavor. In 
his opinion, the judges are the arbitrators between the people 
on the one hand and the individual on the other, it being 
their duty "to protect under the law the minority or the single 
individual even though he stands alone against the whole people. 
It is their duty to protect the people against the people themselves 
when they overstep the limitations created for their protection." 

This view that the judiciary is the only department of the gov- 
ernment to which the minority can constantly look for protec- 
tion against all majorities, no matter how great, was likewise ad- 
vanced in a speech by Mr. Legare of South Carolina, on May 16, 
in which he said the judiciary "is the only branch to which the 
minority can turn for preservation at all times. The executive 
1 Congressional Record, June 23, 1911. 



Introductory Note 57 

and legislative are supposed to represent the majority, and 
loudly do they proclaim this fact ; but the judiciary is the harbor 
of refuge to which the minority can flee when pursued by the 
majority or by the servants of its making. Destroy this branch 
of the government, and you destroy the only hope of the minor- 
ity, and at the same time you remove all restraint from the 
majority and leave them to be glutted with an unholy and 
uncontrollable power with which they will eventually destroy 
themselves and the country." l 

Indeed, most of the opponents of the recall in Congress seem 
to have felt so strongly on the point of protecting the minority 
that they could hardly restrain the violence of their emotions 
in order to give the appearance of deliberation and reasonableness 
to their arguments. In running through the speeches, especially 
of Mr. Legare of South Carolina and Mr. Littleton of New York, 
one is struck with the resemblance between the dire prophecies 
made as to the outcome of the recall and the prophecies made half 
a century ago as to the effect of popular election on the judi- 
ciary. In the opinion of Mr. Legare and Mr. Littleton the re- 
call, especially as applied to the judiciary, means the enthrone- 
ment of the mob, the degradation of the bench, the destruction 
of safeguards of private rights, and the spread of wreck and 
ruin. 

Both of these gentlemen held that the old form of impeach- 
ment was sufficient to control judges who went astray, and more 
commendable because it guarantees to the judges a fair trial 
by an intelligent jury. In the exercise of the recall, they seem 
to see mobs of "thugs and bums and loafers and sneak thieves 
and criminals" — "a howling mass of men drunk with power 
bent upon doing him [the judge] mischief" — to use the language 
of Mr. Legare, dragging judges from the bench at their sweet will. 
The very thought of recalling an officer without trial, continued 
Mr. Legare, was repugnant "to every sense of human decency. 
It is the rankest kind of political heresy. It is the result of the 
1 Congressional Record, May 17, 1911. 



58 State-wide Initiative, Referendum, and Recall 

blatant, selfish, unreliable, and dangerous teaching of the dema- 
gogue. It is radicalism run rampant ; it is socialism gone mad. 
. . . Once convince an excited populace — and I am speaking 
plainly to you gentlemen of this House — that through the means 
of this recall of the judiciary absolute control of the judges is 
placed directly within their hands, and no human agency can 
prevent their using that power rashly and recklessly at times, and 
there is danger that they will steer the old ship of state direct 
into the maelstrom, and this will mean rebellion and revolution, 
bloodshed and anarchy." 

Mr. Legare then drew upon history for the illustration of the 
principles thus laid down ; and exclaimed that George Washing- 
ton, Abraham Lincoln, William McKinley, and Grover Cleve- 
land would have been recalled in their day — "shorn of power, 
degraded, ruined, and damned for all time, if they had held office 
subject to this recall law." l 

Mr. Littleton thought that the substitution of the recall for 
impeachment would transform an orderly process of regulated 
justice into "a sporadic assault born of hate and disappointment." 
He believed that the judge would be intimidated, and, instead 
of doing justice without fear and favor, would always be "scan- 
ning the ugly faces of an angry mob" and wondering whether 
"among the warring factions" there is the fatal percentage which 
may arraign him before the country. "Suppose," exclaimed 
the speaker, "the recallable judge is sitting to determine a con- 
troversy between employer and employed. Suppose on one side 
is organized labor, and on the other side organized capital. Does 
he meet the grave, economic, and legal questions as the great 
and dauntless minister of justice ? Does he summon to his aid 
the juridical learning of the ages, and invoke the spirit of passion- 
less justice to guide him ? Or does he see in the grim and earnest 
faces of the contestants the imminence of a recall which will put 
him to shame before his neighbors?" 

Mr. Littleton saw in the recall an opportunity to enlist "mis- 
1 Congressional Record, May 17, 191 1. 



Introductory Note 59 

guided malignant passions" against "a stainless judge"; and 
he presented a long list of the elements in the community that 
would be enrolled against the integrity of the judiciary : — 

The lying litigant, he urged, baffled in his mendacious effort 
to subsidize the court to make secure his fabricated cause, lays 
his unscrupulous hand upon his ruthless weapon to strike from 
public esteem the upright judge. 

The culpable confederates of the convicted criminal, auda- 
cious in that freedom which has foiled detection, and angered 
at the thought that tardy justice has overtaken one of their 
members, can assemble and foment the necessary and irrespon- 
sible fraction to put on trial the conservator of public honor. 
The corporate bandit, marauding through the legitimate fields 
of honest commerce, and finally condemned by the firm hand of 
an incorruptible court, can turn its passive chagrin into active 
revenge and summon sufficient of its dependents to write a 
recall. 

The agrarian agitator, whose uplifted hand is always against 
the substance and the symbols of order, unable to write his 
crooked creed into the court's decrees, will call for venal volun- 
teers to rebuke the judge who dared deny his loud protestations. 

The reformer, whose righteous zeal and unbalanced judgment 
make him at once the most attractive and most dangerous of 
men, will find the courts archaic and too rigid bound to serve 
the elastic purpose of his pretentious program, and his honest 
wrath will stir the souls of his faithful followers to issue a recall 
in the name of all political virtue. 

The "boss," who in the flush of full success sits in the shadow 
of the throne, and who even in defeat still reigns a mighty ruler 
in the empire of intrigue, will touch the mysterious sources of 
his unjust powers with deft and secret sign, and swarms of satraps 
will rise in mockery of the voice of an outraged community to 
indict the fearless judge. 

The daring demagogue, whose eager ear catches the first 
sound of discontent, and whose strident voice swells it into a 
volume of protest against oppression, whose whole platform is 
the appropriated grievances of the community, will make of the 
recall a recurring opportunity to put himself in flexible adjust- 
ment with the superficial sentiment of the community. 1 

1 Congressional Record, May 29, 191 1. 



60 State-wide Initiative, Referendum, and Recall 

Then, after portraying the delivery of Christ by Pilate to the 
chief priests, the rulers, and the people, Mr. Littleton concluded, 
in a somewhat strained figure, " God forbid that the sanctuaries 
of justice in this country of America shall ever be ravished by 
the sibilant hiss of a mob crying, Crucify him ! Crucify him !" 

Those members of Congress who favored the recall even in its 
application to the judiciary refused to accept the principle that 
a judicial officer differed in any respect from an ordinary adminis- 
trative officer. In fact, they took the view expounded by Pro- 
fessor Goodnow in his Politics and Administration that there are 
really only two branches of government, legislative and execu- 
tive, and that the function of the judiciary is at bottom merely 
executive. They furthermore emphatically applied the principle 
that a judicial officer was to be regarded as the agent of his 
constituents. "As an abstract proposition," said Senator 
Chamberlain, "why should a judicial officer any more than any 
other public official be independent of the wishes of his constitu- 
ents ? " He went on to argue that the democratic view of gov- 
ernment is that the people do their own thinking and that the 
agent of the people, whether he is a judicial or an executive officer, 
is simply bound to reflect the popular will ; and added that any 
conception of government which placed a representative in a 
position to be indifferent to the wishes of his constituents was 
aristocratic in its character. 1 Mr. Hardy of Texas shared this 
view, 2 and in support of it cited the famous declaration of 
Jefferson: "A judiciary independent of an executive or king 
alone is a good thing, but independence of the will of the nation 
is a solecism, at least in a republican government." 

The advocates of the recall also sought to show that it was no 
innovation in our political practices, but merely a logical out- 
growth of that constitutional principle, in vogue in several of the 
states, which authorizes the legislature to remove judges. Mr. 
Chamberlain devoted considerable attention in his speech to this 
branch of the argument, opening it with a quotation from the 

1 Congressional Record, April 20, 191 1. 2 Ibid., June 1, 191 1. 



Introductory Note 61 

Maryland constitution of 1776 which stipulated that "the chan- 
cellor and judges shall be removed for misbehavior on conviction 
in a court of law, and may be removed by the governor upon the 
address of the general assembly : Provided, That two-thirds of all 
the members of each house concur in such address" — a provision 
which has continued to be a part of the fundamental law of 
Maryland to our time. Mr. Chamberlain also cited similar 
provisions in the Georgia constitution, in the several Virginia 
constitutions since 1830, and in the constitutions of Texas, Dela- 
ware, Connecticut, and other states. The senator then con- 
cluded his survey by inquiring whether this system of removing 
judges, which in some instances does not even provide for a 
hearing, has destroyed the integrity and independence of the 
judiciary of the states in which it is in force. The Texas Con- 
stitution orders the governor to remove the judges of the supreme 
and district courts on the address of two-thirds of each house of 
the legislature for "wilful neglect of duty or other reasonable 
cause"; but, inquires the senator, has the tendency of this sys- 
tem been "to compel the judiciary of that commonwealth to 
decide controversies between citizens to suit the whims of the 
legislative assembly, or to destroy the independence of the 
judiciary ? " 

On the basis of these facts, Mr. Chamberlain contended that 
the power of the recall as applied to the judiciary was not a new 
thing in the history of our public law, and "differs only in the 
Arizona constitution from the constitutions of other states in 
that there is a transference of the power of recall from the legis- 
lature to the people. The principle is the same. If the trans- 
ference of this power to the people tends to destroy the indepen- 
dence of the judiciary, may it not also be claimed that the power 
to exercise it in the case of the legislature tends to destroy that 
independence? Recent developments tend to show that some 
legislative bodies at least are influenced by' the corruptest mo- 
tives, and if they may be corrupted to secure the enactment or 
the defeat of laws, or to secure the election or defeat of senators, 



61 State-wide Initiative, Referendum, and Recall 

may they not be influenced by the same corrupt instrumentalities 
to unseat the judges ? It is safe to say that the tenure of a judge, 
whether appointive or elective, is more secure in the hands of 
the people than in the average legislature of to-day." l Indeed, 
Mr. Cullop went so far as to declare that there was more danger 
in removal by the legislature than in removal by the recall: 
"In one case you go to a partisan legislature to be tried by a 
partisan tribunal, instead of going to the whole people where your 
case can be passed upon without prejudice or partiality." 2 

Senator Owen favored the recall of the judiciary particularly 
on the ground that it would restrict the tendency of judges to 
enact law under the color of interpretation. 3 "Restoring the 
active right of recall of judges," he said, "will go far toward mak- 
ing democratic the Constitution of the United States, and for 
that reason I strongly favor it. When Congress or the people 
have a legal right to recall judges, the judges will respect public 
opinion and general welfare. They will not set aside state or fed- 
eral laws nor legislate under the color of judicial decisions, and 
they will so conduct themselves that the use of the recall will be 
unnecessary." 4 

In support of a similar contention Mr. Hardy of Texas 
quoted the following passages from the vigorous dissent of 
Justice Harlan in the Standard Oil case: — 

In the now not a very short life that I have passed in this 
capital and the public service of the country, the most alarming 
tendency of this day, in my judgment, so far as the safety and 
integrity of our institutions are concerned, is the tendency to 
judicial legislation, so that, when men having vast interests are 
concerned, and they cannot get the law-making power of the 
country which controls it to pass the legislation they desire, 
the next thing they do is to raise the question in some case to 
get the court to so construe the Constitution or the statutes as 

1 Congressional Record, April 20, 191 1. 2 Ibid., May 18, 191 1. 

3 In 191 1, Senator Owen introduced an amendment to the federal Con- 
stitution providing for the recall of federal judges by resolution of Congress. 

4 Congressional Record, June 20, 1911. 



Introductory Note 63 

to mean what they want it to mean. That has not been our 
practice. . . . The court, in the opinion of this case, says that 
this act of Congress means and embraces only unreasonable 
restraint of trade in flat contradiction to what this court has said 
fifteen years ago that Congress did not intend. . . . Practically 
the decision of to-day — I do not mean the judgment — but parts 
of the opinion, are to the effect, practically, that the courts may, 
by mere judicial construction, amend the Constitution of the 
United States or an act of Congress. That, it strikes me, is 
mischievous ; and that is the part of the opinion that I especially 
object to. l 

Mr. Hardy was especially strong in his condemnation of im- 
peachment as a method of removing judges. He cited Jeffer- 
son's statement that impeachment was "not even a scarecrow, " 
and did not check the judges in the usurpation of legislative 
functions. Furthermore, impeachment blackens the character 
of the man impeached, while the exercise of the recall does not 
injure a man's reputation any more than a defeat at the polls. 
Impeachment is a cumbersome and often ineffective instrument 
for the removal of officers who have not committed grievous 
wrongs, but who are on the whole undesirable. "I have seen 
jury trials," remarked Mr. Hardy, "where, were I on the panel, 
I would render the Scotch verdict of 'Guilty, but not proven,' 
and I would acquit the defendant but not keep him in my employ. 
And so we have cases where you cannot properly impeach, where 
you cannot get the evidence to impeach, where through the 
courts full inquiry is blocked, where the servant is so powerful 
he can prevent full investigation ; in such cases must we keep the 
servant?" 

In going carefully through the arguments in Congress on both 
sides of the recall, particularly as applied to the judiciary, one 
cannot help discovering that the clear line of cleavage is on the 
question of how far the judges are to be bound by the will of the 
majority and how far they are to be independent in order to 
defend rights of person and property which are deemed more 

1 Congressional Record, June 1, 191 1, p. 1674. 



64 State-wide Initiative, Referendum, and Recall 

fundamental than constitutions themselves. Democratic sena- 
tors, like Mr. Chamberlain and Mr. Owen, frankly declared 
that they favored democratizing the federal Constitution and 
instituting the principle of majority rule; and the latter espe- 
cially is fully aware that this is a radical departure from the real 
spirit of American government. He declared in his speech of 
June 12 that the Constitution was not thoroughly democratic, 
but "was so drawn by Madison and those who were in the Consti- 
tutional Convention as to allow an unfair power to vest in the 
hands of the minority, and this principle is shown from one 
end of the Constitution to the other." 

The Constitution of the United States, he continued, is not, 
and was not then (1789) in accord with the democratic constitu- 
tions of the various States as they existed at the time of the mak- 
ing of the Constitution of the United States. 

One of the great differences which I will call the attention of 
the Senate to — and I am not going to detain the Senate long — 
is in the matter of the judiciary. Hamilton made the argument 
that the Federal judiciary ought to be appointed for life, and 
he made the argument and backed it up with a fallacious theory, 
which seems to have been quite generally acquiesced in by those 
who have written upon this subject. He based his argument for 
a life judiciary upon the theory that this would be in substantial 
accord with the English system, when, in point of fact, it was 
nothing of the kind. It is true, in the English system the judges 
were appointed for life, but it is also true that the right of recall 
of the English judges was provided for by memorial or resolution 
or address of the Parliament of Great Britain as far back as 
1688. The judiciary of Great Britain does not legislate nor 
declare acts of Parliament null and void. It is responsible to 
Parliament, and not an entirely independent and irresponsible 
power. There is no recall for the Supreme Court of the United 
States, as in Great Britain, and on some more suitable and con- 
venient occasion I will undertake to present to the Senate the 
reasons why I think it unwise to have a judiciary entirely inde- 
pendent of Congress and of the great public opinion of the United 
States. I do not believe in nine men, no matter who they are, 
being put in a position where they can disregard the will of the 
people of the United States and of their representatives in Con- 



Introductory Note 6$ 

gress with comparative impunity. It is one of the ways in 
which the right of the majority to control this country is denied ; 
it is one of the ways in which the Constitution of the United 
States was made undemocratic. 

In advocating the recall as an instrument for democratizing 
this constitution, Mr. Owen declared that he was merely recurring 
to the more liberal principles embodied in the several constitu- 
tions existing at the time of the adoption of the new federal 
system. 1 

Mr. Saunders of Virginia was likewise aware of the departure 
which the recall made from the principles of the Fathers. 2 

The gentleman from New York, he said, and other gentlemen 
from older States of the East, who apparently think that no good 
thing, in the way of new and progressive legislation, can come 
out of the West, quoted at length from the fathers of the Repub- 
lic, from Hamilton, Marshall, and others of the same school, to 
show that the recall was not in the contemplation of these states- 
men, and if offered to them, as a substantive proposition, would 
have been rejected. Granted. There are many modern inno- 
vations that these statesmen would reject. Undoubtedly they 
would view with extreme distrust the application of the recall 
to the judges, and the Oregon plan would be a chamber of 
horrors to them. It would be anathema maranatha to Hamil- 
ton or to Marshall. But the Member from New York, or the 
Member from any other State which elects the judges by popu- 
lar vote, should hesitate to cite these gentlemen as authority 
against the recall. For with equal propriety, they may be cited 
as authority against an elective judiciary. In the contemplation 
of those statesmen it was an abhorrent, almost an unthinkable 
proposition, that a judge should hold his office, at what they 
deemed would be the caprice of the electorate, and at stated 
intervals be required to submit his claims for reelection, to a 
popular vote. The rock upon which they builded the system of 
the Federal judiciary was an appointive judiciary with a life 
tenure. In no other way did they conceive that a fearless, self- 
respecting, upright, and efficient body of judges could be secured. 
But contrary to the anticipations of our forefathers, that plan 

1 Congressional Record, June 20, 191 1. * Ibid. 



66 State-wide Initiative, Referendum, and Recall 

has not been followed. A radically different system of selection 
has been approved in many Commonwealths. In a number of 
States, notably New York, the judges are elected for fixed terms 
by popular vote. 

The advocates of the recall in Congress found outside support 
in Mr. Roosevelt, who declared that time and circumstance might 
warrant the adoption of the recall, although, under normal condi- 
tions, it was inadvisable to apply the principle to the judiciary. 
In his opinion the Massachusetts system, under which judges 
may be removed by the two branches of the legislature and on 
assignment of reasons, was to be preferred to the popular recall. 
However, he thought "the difference between a judicial system 
under which judges are appointed for life and are removable only 
after impeachment, and a system under which judges are elected 
for short terms, is infinitely greater than the difference between 
the latter system — that is, a short-term, elected judiciary with- 
out a recall — and the proposed Arizona system for a short- 
term, elected judiciary with a recall." 

He then added the caution that after all the essential thing to 
consider was not merely the name "recall," but the actual work- 
ing of the system. 

If in any given state the system of an elective or an appointive 
judiciary without a recall has proved in actual practice to work 
badly (as it certainly proved to work badly in California), then 
practical reformers who are working for the betterment of popular 
conditions are quite right in trying to substitute for it some other 
system. The all-important thing is the spirit in which the sys- 
tem is administered. If in any State the adoption of the recall 
was found to mean the subjection of the judge to the whim of the 
mob, then it would become the imperative duty of every good 
citizen, without regard to previous prejudices, to work for the 
alteration of the system. If, on the other hand, in any State 
the judiciary yields to improper influence on the part of special 
interests, or if the judges even, although honest men, show them- 
selves so narrow-minded and so utterly out of sympathy with the 
industrial and social needs brought about by changed conditions 
that they seek to fetter the movement for progress and better- 



Introductory Note 67 

ment, then the people are not to be excused if, in a servile spirit, 
they submit to such domination, and fail to take any measures 
necessary to secure their right to go forward along the path of 
economic and social justice and fair dealing. If our people are 
really fit for self-government, then they will insist upon govern- 
ing themselves. In all matters affecting the Nation as a whole 
this power of self-governing should reside in the majority of the 
Nation as a whole ; and upon this doctrine no one has insisted 
more strongly than I have insisted, for in such case " popular 
rights" becomes a meaningless phrase save as it is translated 
into National rights. 1 

The men who made the ablest argument against the recall 
were under no delusions as to the real function of the judiciary 
in the United States as the defender of the rights and privileges 
of property against the assaults of majorities. Mr. Howland of 
Ohio cited the famous speech of Marshall in which that great 
jurist declared that the judge "should be rendered perfectly 
and completely independent with nothing to control him but 
God and his conscience." 2 In reply to the "demagogue" who 
cries, "You are afraid to trust the people to choose their own 
judges," Mr. Howland recalled the argument made by Rufus 
Choate in the Massachusetts Constitutional Convention of 1853 
against a short tenure of office : — 

It seems to me that such an argument forgets that our political 
system, while it is purely and intensely republican, within all 
theories, aims to accomplish a twofold object, to wit, liberty and 
security. To accomplish this twofold object we have estab- 
lished a twofold set of institutions and instrumentalities — some 
of them designed to develop and give utterance to one ; some of 
them designed to provide permanently and constantly for the 
other; some of them designed to bring out the popular will in 
its utmost intensity of utterance ; some of them designed to se- 
cure life and liberty and character and happiness and property 
and equal and exact justice against all will and against all 
power. 

1 The Outlook, June 24, 191 1, p. 378. 

2 Congressional Record, May 18, 191 1. 



68 State-wide Initiative, Referendum, and Recall 

It is obvious from these passages that a complete discussion of 
the recall as applied to the judiciary would involve an exhaustive 
analysis of the origin and nature of government which cannot 
be made here. Nevertheless, it is apparent that Mr. Choate's 
doctrine that the individual has fundamental personal and 
property rights which are beyond the reach, not only of the 
majority but of the state itself, can be sustained on no other 
theory than that of anarchy. It rests upon a notion as obsolete 
and indefensible as the doctrine of natural rights, and it is as 
unacceptable as the opposite conclusion that fundamental rights 
of person and property should be subject to the will of an inco- 
herent and transient majority. 

The judiciary in the United States is in fact, in view of its 
power over the constitutionality of laws, a political body, and it 
has, in a large number of unquestionable cases, assumed legislative 
power. If the judiciary is to retain this veto over legislation, it 
can hardly expect to escape that movement which is everywhere 
steadily and irresistibly making for direct popular control over 
all policy-determining instrumentalities in government. 1 

The most fundamental objection to the recall is not to its in- 
herent potentialities, but its addition to an already burdensome 
and complicated system of election which has defeated its own 
purpose of securing popular control over administration. If the 
number of elective offices were reduced to those which are " im- 
portant enough to attract and deserve public examination," — 
if the principle of the short ballot were introduced and adminis- 
trative authority concentrated into fewer hands, so that genuine 
responsibility could be secured, the recall, applied under proper 
safeguards as to the number of petitioners, the percentage neces- 
sary for removal, and the period which must elapse before its 
exercise can be invoked, may commend itself not only to be- 
lievers in direct democratic government, but also to many 
who at first thought are unutterably opposed to the so-called 
" progressive movement." 

1 See Goodnow, Social Reform and the Constitution, p. 357 (1911). 



Introductory Note 69 

At all events, in view of the dire prophecies which have been 
made in times past concerning proposals which have proved 
advantageous, or at least harmless, " hard-minded persons," to 
use Professor James' phrase, will not be disposed to view with 
distress the introduction of these new devices — the initiative, 
referendum, and recall. That they will go as far toward solving 
our political problems as the simplification of representative 
government and the introduction of centralized responsibility 
on the part of public officials is certainly open to serious question. 
That representative government, where responsibility and delib- 
eration are secured, is the best instrument for legislative work 
yet devised is scarcely open to argument. Nevertheless, the 
initiative and referendum, especially in important matters, have 
undoubtedly found a permanent place among our institutions. 
That longer terms of office and a freer range of discretion are 
conducive to administrative efficiency is everywhere accepted, 
and the recall seems to offer to democracy the proper safeguards 
against usurpation which will warrant the granting of longer 
terms and larger powers to executive authorities. 

Charles A. Beard. 



I. THE INITIATIVE AND REFERENDUM 

I. South Dakota 

Constitutional Amendment l 

[The following constitutional provision was passed by the legis- 
lature in 1897. The amendment was ratified at the general elec- 
tion held November 8, 1898. The Supreme court of South 
Dakota held the amendment constitutional in the case of State 
ex rel. Lavin et al. vs. Bacon et al., 14 S. D. 394. On March 3, 
1899, the legislature elaborated the machinery for working the 
system. These laws provide for state- wide and local use of the 
initiative and referendum.] 

§ 1. The legislative power shall be vested in a legislature which 
shall consist of a 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 ini- 
tiative or the referendum. 

This section shall not be construed so as to deprive the legis- 
lature or any member thereof of the right to propose any measure. 
The veto power of the executive shall not be exercised as to 

1 Constitution of South Dakota, Revised Codes of South Dakota, 1903, p. 1. 

70 



The Initiative and Referendum 71 

measures referred to a vote of the people. This section shall ap- 
ply 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. 

Elaborating Law — State-Wide l 

§ 21. All measures proposed to the legislature under the 
initiative shall be presented by petition, which petition shall be 
signed by not less than five per cent of the qualified electors of the 
state, and each elector shall add to his signature his place of 
residence, his business, and his post office address. The petition 
shall be filed in the office of the secretary of state, and upon the 
convening of the legislature the secretary of state shall transmit 
to the senate and house of representatives certified copies of all 
of said petitions which may be on file in the office of the secretary 
of state at the convening of said legislature, and whenever a 
measure is proposed during the session of the legislature it shall 
be transmitted by the secretary of state forthwith to the senate 
and house of representatives, and the legislature shall enact and 
submit all of such proposed measures to a vote of the electors of 
the state at the next general election. 

§ 22. If a majority of all the votes cast both for and against 
the measure so enacted and submitted be for the measure, it 
shall then become a law of the State of South Dakota, and shall 
go into effect and be in force immediately after the result shall 
have been determined by the officers authorized by law to deter- 
mine the same. 

§ 23. Any laws which the legislature may have enacted, except 
laws which may be necessary for the immediate preservation of 
the public peace, health and safety, support to the state govern- 
ment and its existing institutions, shall, upon the filing of a 
petition as hereinafter provided, be submitted to a vote of the 

1 Revised Codes of South Dakota, 1903, pp. 5 f. 



J 2 State-wide Initiative, Referendum, and Recall 

electors of the state at the next general election. Said petition 
shall be signed by not less than five per cent of the qualified elec- 
tors of the state, and each elector shall add to his signature his 
place of residence, his business and post-office address, which peti- 
tion shall be filed in the office of the secretary of state within ninety 
days after the adjournment of the legislature which passed such 
laws, and if a majority of all the votes cast both for and against 
the law be for the law, it shall then become a law of this state, 
and shall go into effect and be in force immediately after the re- 
sult shall have been determined by the officers authorized by law 
to determine the same. 

§ 24. Whenever a measure or law of the legislature is submitted 
to the electors, the said measure or law shall be printed upon a 
separate ballot from that upon which the names of the candidates 
for office are printed, but all measures and laws of the legislature 
to be voted upon at the same election shall be printed upon one 
ballot, and each measure and law shall be followed by the words : 
" Shall the above measure or law (as the case may be) become a 
law of this state?" Immediately to the left of which shall be 
printed the words "Yes" and "No," each preceded by a square 
in which the elector may place a cross within such square to indi- 
cate his vote. Each elector desiring to vote "Yes" may place a 
cross within the square before the word "Yes," and those desir- 
ing to vote "No" may place a cross within the square before the 
word "No," and the secretary of state shall prepare and certify 
to the county auditor of each county the measures and laws to be 
voted upon at such general election in the manner and at the same 
time he certifies to said auditor certificates of nominations for 
general elections, and it is hereby made the duty of the board of 
state canvassers to canvass the returns of votes cast for these 
measures and laws, and to declare the result, in the same manner 
and at the same time as other returns are canvassed, and the 
result declared by said board of state canvassers for state 
officers. 

§ 25. The total number of votes cast at the last preceding gen- 



The Initiative and Referendum 73 

eral election shall be, for the purpose of this article, the basis upon 
which the five per cent of the electors shall be determined, and 
the vote upon which said basis shall be made shall be the vote 
cast for governor at such general election. 

§ 26. Every petition to propose a measure must contain the 
substance of the initiative law desired, and must be signed in 
person by the petitioners ; and every petition to submit a law to a 
vote of the electors of the state must be signed in person by the 
petitioners and must describe in said petition the law desired to 
be submitted by setting forth its title, together with the date of 
its passage and approval. 

§ 27. Every person who is a qualified elector may sign a peti- 
tion to propose a measure or submit a law, and any person sign- 
ing any name other than his own to said petition, or any person 
signing such petition who is not a qualified elector of this state, 
shall, upon conviction therefor, be fined in any sum not to exceed 
five hundred dollars or may be imprisoned in the state peniten- 
tiary for a term not to exceed five years ; and the court may, in 
its discretion, impose both such fine and imprisonment. 

Elaborating Law — Local l 

§ 1 2 14. No law, ordinance or resolution, having the effect 
of law, for the government of any city or town passed by the 
legislative body or bodies thereof, except such as are for the im- 
mediate preservation of the public peace, or the public health, 
or safety, or expenditure of money in the ordinary course of the 
administration of the affairs of such public corporation, shall go 
into effect until twenty days after the passage of such law, ordi- 
nance, or resolution, and the words law, ordinance or resolution 
used in this article mean ordinances, resolves, orders, agreements, 
contracts, franchises, and any measure which it is in the power 
of the lawmakers or the electors of any municipality to enact. 

§ 12 15. The qualified electors residing in any city or town 

1 Revised Codes of South Dakota, 1903, pp. 205 ff. 



74 State-wide Initiative, Referendum, and Recall 

may within the said twenty days file a petition with the auditor, 
or other proper officer or clerk thereof, requiring him to submit 
any such law, ordinance, or resolution, to a vote of the electors 
of the political subdivision affected thereby for its rejection or 
approval, at a special election to be held within thirty days 
immediately following the filing of said petition. 

Provided, that in all cases where such petitions are filed at any 
time, not more than three months immediately prior to any elec- 
tion held for the purpose of electing the officers of said city or 
town, such law, ordinance or resolution shall be submitted at 
such election, provided such petitions are filed within sufficient 
time to give the notice above prescribed. 

§1216. If the matter intended to be covered by said petition 
is the whole of said law, ordinance or resolution, said petition 
shall contain the title of the said law, ordinance or resolution 
to be voted on by the electors, and the date of the passage of 
said law, ordinance or resolution by the legislative body of said 
municipal corporation ; but if a portion of said law, ordinance or 
resolution is only intended to be covered by the said petition, 
then the said petition shall contain the title of said law, ordi- 
nance or resolution, the date of its passage, following which that 
portion of said law, ordinance or resolution intended to be cov- 
ered by said petition shall be set out at length, and said petition, 
to be mandatory, shall be signed by at least five per centum 
of the legal voters residing in such city, or town, the percentage 
to be based on the whole number of votes cast for the highest 
executive officer in said city or town, at the election immediately 
preceding the filing of said petition, which said petition shall con- 
form substantially to the provisions of the preceding section, and 
each elector signing the same, shall after his name state his occu- 
pation, residence and post-office address. 

§ 1 21 7. An oath shall be made before a duly qualified officer 
by at least five voters signing said petition, or if more than one, 
each petition, to the effect that said petition is made in good 
faith, and that the affiant verily believes all the signatures to be 



The Initiative and Referendum 75 

genuine, and those of duly qualified voters, which said oath shall 
be substantially and in the following form : — 

State of South Dakota, 

County of , ss. 

being duly sworn, on their oaths, respectively, 

do say that the foregoing petition is made in good faith, and that 
they verily believe all the signatures thereto to be genuine, and 
those of duly qualified voters. 

§ 1 2 18. It shall be the duty of the auditor or clerk of the said 
city or town to cause the entire law, ordinance or resolution set 
forth in said petition to be advertised in one of the newspapers 
published in such municipal corporation at least five days prior 
to such election, which publication shall be daily until such elec- 
tion in one daily paper published within said municipal corpora- 
tion, but if there is no daily newspaper published within such 
municipal corporation, one publication in a legal newspaper 
published in said municipal corporation not less than five nor 
more than twelve days prior to such election, shall be sufficient ; 
Provided, if there is no newspaper published in such municipal 
corporation, then the auditor or clerk shall publish such law, 
ordinance or resolution, by posting or causing to be posted the 
entire law, ordinance or resolution at least five days prior to the 
date of said election at three public places within the limit of 
each voting precinct of said city or town. Provided, further, 
that the publication of said law, ordinance or resolution in the 
said newspaper, or by the said posting as above provided, shall 
contain a notification that on that day of election therein stated, 
the said law, ordinance or resolution will be submitted to the 
referendum, and if a portion of said law, ordinance or resolution 
only is covered by said petition, then a notification as to what 
particular portion of the said law, ordinance or resolution will be 
submitted to the said referendum. 

§ 1 219. It shall be the duty of said auditor or clerk to have 
the ballots printed for the vote upon said law, ordinance or reso- 



j6 State-wide Initiative, Referendum, and Recall 

lution, and cause same to be distributed in the proper proportion 
in each voting precinct, in his city or town in the manner now 
provided for the distribution of ballots by the election laws of 
the state. Any or all questions shall be submitted on a separate 
ballot from those containing the names of the candidates for 
office, and shall be submitted to the people in such form as will 
enable the electors to vote understanding^ upon each question 
presented, and shall conform as near as may be to the manner 
employed to vote upon constitutional amendments. Provided, 
that all questions to be voted upon at the same election may be 
submitted upon the same ballot. 

§ 1220. The auditor or clerk of the said city or town shall pre- 
serve the original of all petitions filed in his office in voting the 
referendum for a period of at least two years from the date follow- 
ing said petition, during which time said petition shall be open 
to public inspection upon reasonable request made. 

§ 1 221. Such law, ordinance or resolution shall not go into 
effect unless approved by a majority of the votes cast for and 
against the same, and shall go into effect immediately after the 
canvassing and determination of the election returns, if approved 
by the electors. 

§ 1222. The appointment of judges and clerks, holding of elec- 
tion, and time of election, the canvassing, counting, returning 
and announcing of a referendary vote on any law, ordinance or 
resolution, and payment of election expenses shall be done in the 
manner already prescribed by law in the case of the election of 
the officers of the municipal corporation to be affected by the 
law, ordinance or resolution in question. 

§ 1223. The right to propose laws, ordinances or resolutions 
having the effect of law, for the government of any city or town 
shall rest with any five per centum of the electors of the political 
subdivision affected, the percentage in each instance to be based 
upon the number of votes cast at the last general election for the 
highest executive officer of such political subdivision held pre- 
viously to the proposal of the law in question. 



The Initiative and Referendum 77 

§ 1224. A proposal for such law, ordinance or resolution shall 
be made by petition to the auditor or clerk of the municipal 
corporation. The petition shall be signed by five per centum of 
the legal voters of any political subdivision affected by such law, 
ordinance or resolution, each elector stating his occupation, resi- 
dence and post-office address, and shall be filed with the auditor 
of said municipal corporation after the manner prescribed by the 
provisions of this article for the petition of the referendum, and 
said petition shall contain in proper form the proposed law, ordi- 
nance or resolution. 

§ 1225. When such petition is filed with the auditor or clerk 
of such municipal corporation, he shall at the first ensuing session 
or special session called submit said proposal to the legislative 
body thereof ; and if the proposal is not adopted, or cannot be 
adopted by reason of want of authority by such legislative body, 
it shall be referred to a vote of the electors of such municipal 
corporation within the time and manner prescribed by this 
article providing for the referendum. 

§ 1226. Such law, ordinance or resolution shall go into effect 
if approved by a majority of the votes cast for and against the 
same. 

§ 1227. The right of any person to vote at any election on any 
proposition submitted to the referendum or initiative may be 
challenged in the same manner and for the same cause as by law 
provided in the case of challenging electors. 

§ 1228. Any person, or persons, violating any of the provisions 
of this article or wilfully failing to execute any of the provisions 
of this article shall be guilty of a misdemeanor, and on conviction 
be fined not less than one hundred dollars nor more than five 
hundred dollars, or by imprisonment not less than thirty days nor 
more than six months, in the county jail, or by both such fine and 
imprisonment, in the discretion of the court. 



78 State-wide Initiative, Referendum, and Recall 

II. Utah 

[An initiative and referendum amendment was adopted by the 
voters of Utah at the general election held November 6, 1900. 
The vote was 19,219 for, to 7786 against. The total vote cast 
at the election was 92,980. The total vote on the amendment 
was 27,005, about 29 per cent of the entire vote. May 8, 191 1, 
the Secretary of State, Mr. Charles S. Tingey, states, "The Legis- 
lature has failed to enact the necessary measures to put the ini- 
tiative and referendum provisions of our constitution in force." 
The amendment follows.] 

Sec. 1. [Power vested in Senate, House and People] The legis- 
lative power of the State shall be vested : 

1. In a Senate and House of Representatives, which shall be 
designated the Legislature of the State of Utah. 

2. In the people of the State of Utah as hereinafter stated : 
The legal voters or such fractional part thereof of the State of 

Utah, 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 any desired legislation and cause the same to be 
submitted to a vote of the people for approval or rejection, or may 
require any law passed by the Legislature (except those laws passed 
by a two-thirds vote of the members elected to each house of the 
Legislature) to be submitted to the voters of the State before 
such law shall take effect. 

The legal voters, or such fractional part thereof, as may be 
provided by law, of any legal subdivision of the State, under such 
conditions and in such manner and within such time as may be 
provided by law, may initiate any desired legislation and cause 
the same to be submitted to a vote of the people of said legal sub- 
division for approval or rejection, or may require any law or ordi- 
nance passed by the law-making body of said legal subdivision 
to be submitted to the voters thereof before such law or ordinance 
shall take effect. 

Sec. 22. [Enacting Clause. Passage and amendments of law.] 
The enacting clause of every law shall be, "Be it enacted by the 



The Initiative and Referendum 79 

Legislature of the State of Utah." Except such laws as may be 
passed by the vote of the electors as provided in subdivision 2, 
section 1 of this article, and such laws shall begin as follows : 
"Be it enacted by the people of the State of Utah." No bill or 
joint resolution shall be passed, except with the assent of the 
majority of all the members elected to each house of the Legisla- 
ture, and after it has been read three times. The vote Upon the 
final passage of all bills shall be by yeas and nays ; and no law 
shall be revised or amended by reference to its title only ; but 
the act as revised, or section as amended, shall be reenacted and 
published at length. 1 

III. Oregon 

[The section (§1) below is an amendment to the original con- 
stitution. It was passed by the Twentieth Legislative Assembly 
(1899) ; re-passed by the Twenty-first Legislative Assembly 
(1901) ; and adopted by the voters on June 2, 1902, by a vote of 
62,024 for, to 5668 against. The total vote at the election was 
90,692, so that 74.6 per cent voted on the amendment. 

Section 1a was proposed by initiative petition, filed in the 
office of the Secretary of State February 3, 1906, and adopted 
by vote of the people, 47,678 for, to 16,735 against, June 4, 
1906. This was 64.7 per cent of the total vote. It went into 
effect by proclamation of the Governor issued June 25, 1906. 

As directed in Section 1, the legislature enacted elaborating 
legislation, February 24, 1903. However, this act was repealed 
February 25, 1907, and the Legislative Assembly enacted a 
substitute law, declaring it an emergency measure. The two con- 
stitutional amendments and the elaborating act of 1907 follow.] 

Constitutional Amendments 2 

§ I. LEGISLATIVE AUTHORITY — STYLE OF BILL — INITIATIVE 
AND REFERENDUM (1902) 

The legislative authority of the State shall be vested in a Legis- 
lative Assembly, consisting of a Senate and House of Representa- 

1 Thorpe, American Charters, Constitutions, and Organic Laws, Vol. VI, 
p. 3734- 2 Constitution of Oregon, 1910 (official). 



80 State-wide Initiative, Referendum, and Recall 

tives, but the people reserve to themselves power to propose laws 
and amendments to the Constitution and to enact or reject the 
same at the polls, independent of the Legislative Assembly, and 
also reserve power at their own option to approve or reject at 
the polls any act of the Legislative Assembly. The first power 
reserved by the people is the initiative, and not more than eight 
per cent of the legal voters shall be required to propose any meas- 
ure by such petition, and every such petition shall include the 
full text of the measure so proposed. Initiative petitions shall 
be filed with the Secretary of State not less than four months 
before the election at which they are to be voted upon. The 
second power is the referendum, and it may be ordered (except 
as to laws necessary for the immediate preservation of the public 
peace, health, or safety), either by the petition signed by five 
per cent of the legal voters, or by the Legislative Assembly, as 
other bills are enacted. Referendum petitions shall be filed 
with the Secretary of State not more than ninety days after the 
final adjournment of the session of the Legislative Assembly 
which passed the bill on which the referendum is demanded. The 
veto power of the Governor shall not extend to measures referred 
to the people. All elections on measures referred to the people 
of the State shall be had at the biennial regular general elections, 
except when the Legislative Assembly shall order a special elec- 
tion. Any measure referred to the people shall take effect and 
become the law when it is approved by a majority of the votes 
cast thereon, and not otherwise. The style of all bills shall be : 
"Be it enacted by the people of the State of Oregon." This 
section shall not be construed to deprive any member of the Legis- 
lative Assembly of the right to introduce any measure. The 
whole number of votes cast for Justice of the Supreme Court at 
the regular election last preceding the filing of any petition for 
the initiative or for the referendum shall be the basis on which the 
number of legal voters necessary to sign such petition shall be 
counted. Petitions and orders for the initiative and for the 
referendum shall be filed with the Secretary of State, and in sub- 



The Initiative and Referendum 81 

mitting the same to the people he, and all other officers, shall be 
guided by the general laws and the act submitting this 
amendment, until legislation shall be especially provided 
therefor. 

§ Id. INITIATIVE AND REFERENDUM ON LOCAL, SPECIAL, AND 
MUNICIPAL LAWS AND PARTS OF LAWS (1906) 

The referendum may be demanded by the people against 
one or more items, sections, or parts of any act of the Legis- 
lative Assembly in the same manner in which such power 
may be exercised against a complete act. The filing of a 
referendum petition against one or more items, sections, or 
parts of an act shall not delay the remainder of that act from 
becoming operative. The initiative and referendum powers 
reserved to the people by this Constitution are hereby fur- 
ther reserved to the legal voters of every municipality and 
district, as to all local, special and municipal legislation, of every 
character, in or for their respective municipalities and districts. 
The manner of exercising said powers shall be prescribed by gen- 
eral laws, except that cities and towns may provide for the manner 
of exercising the initiative and referendum powers as to their 
municipal legislation. Not more than ten per cent of the legal 
voters may be required to order the referendum nor more than 
fifteen per cent to propose any measure, by the initiative, in any 
city or town. 

Elaborating Law (1907) 

Be it enacted by the People of the State of Oregon : 

Section 1. The following shall be substantially the form of 
petition for the referendum to the people on any act passed by 
the Legislative Assembly of the State of Oregon, or by a city 
council : 

WARNING 

It is a felony for any one to sign any initiative or referendum 
petition with any name other than his own, or to knowingly sign 

G 



82 State-wide Initiative, Referendum, and Recall 

his name more than once for the same measure, or to sign such 
petition when he is not a legal voter. 

PETITION FOR REFERENDUM 

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, 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), respectfully 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 Legislative 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 residence and post office are correctly 
written after my name. 

Name , Residence , Post Office 

(If in a city, street and number) 

(Here follow twenty numbered lines for signatures.) 

Section 2. The following shall be substantially the form of 
petition for any law, amendment to the constitution of the State 
of Oregon, city ordinance or amendment to a city charter, pro- 
posed by the initiative : — 

WARNING 

It is a felony for any one to sign any initiative or referendum 
petition with any name other than his own, or to knowingly sign 
his name more than once for the measure, or to sign such petition 
when he is not a legal voter. 



The Initiative and Referendum 83 



INITIATIVE PETITION 

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 constitu- 
tion, 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 (or regular or special 

city 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 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) 

(Here follow twenty numbered lines for signatures.) 

Every such sheet for petitioners' signatures shall be attached 
to a full and correct copy of the title and text of the measure so 
proposed by the initiative petition ; but such petition may be 
filed with the Secretary of State in numbered sections for con- 
venience in handling, and referendum petitions shall be attached 
to a full and correct copy of the measure on which the referendum 
is demanded and ma) 7 be filed in numbered sections in like manner. 
Not more than twenty signatures on one sheet shall be counted. 
When any such initiative or referendum petition shall be offered 
for filing, the Secretary of State, in the presence of the Governor 
and the person offering the same for filing, shall detach the sheets 
containing the signatures and affidavits and cause them all 
to be attached to one or more printed copies of the measure so 
proposed by initiative or referendum petitions; provided, all 
petitions for the initiative and for the referendum and sheets for 



84 State-wide Initiative, Referendum, and Recall 

signatures shall be printed on pages seven inches in width by ten 
inches in length, with a margin of one and three-fourths inches at 
the top for binding; if the aforesaid sheets shall be too bulky 
for convenient binding in one volume, they may be bound in two 
or more volumes, those in each volume to be attached to a single 
printed copy of such measure ; the detached copies of such meas- 
ure shall be delivered to the person offering the same for filing. 
If any such measure shall, at the ensuing election, be approved by 
the people, then the copies thereof so preserved, with the sheets 
and signatures and affidavits, and a certified copy of the Govern- 
or's proclamation declaring the same to have been approved by 
the people, shall be bound together in such form that they may 
be conveniently identified and preserved. The Secretary of State 
shall cause every such measure so approved by the people to be 
printed with the general laws enacted by the next ensuing session 
of the Legislative Assembly, with the date of the Governor's 
proclamation declaring the same to have been approved by the 
people. This act shall not apply to the general laws governing 
the method of determining whether stock of any kind shall be 
permitted to run at large in any county or portion thereof, 
nor to the provisions of the local option liquor laws providing 
methods of determining whether the sale of intoxicating liquors 
shall be prohibited in any county, city, precinct, ward, or district. 
Section 3. Each and every sheet of every such petition con- 
taining signatures shall be verified on the back thereof, in sub- 
stantially the following form, by the person who circulated said 
sheet of said petition, by his or her affidavit hereon and as a part 
thereof : — 

State of Oregon, J 

County of [ss. 

I, , being first duly sworn, say : (Here shall be 

legibly written or typewritten the names of the signers of the 
sheet), signed this sheet of the foregoing petition, and each of 
them signed his name thereto in my presence ; I believe that each 
has stated his name, post office address and residence correctly, 
and that each signer is a legal voter of the State of Oregon and 



The Initiative and Referendum 85 

county of , (or of the city of , as the 

case may be). - 

(Signature and post office address of affiant.) 

Subscribed and sworn to before me this day of , 

A.D., 19. .. 

(Signature and title of officer before whom oath is made, and 
his post office address.) 

The forms herein given are not mandatory, and if substantially 
followed in any petition it shall be sufficient — disregarding cler- 
ical and merely technical errors. 

Section 4. If the Secretary of State shall refuse to accept 
and file any petition for the initiative or for the referendum, any 
citizen may apply, within ten days after such refusal, to the cir- 
cuit court for a writ of mandamus to compel him to do so. If it 
shall be decided by the court that such petition is legally suffi- 
cient, the Secretary of State shall then file it, with a certified copy 
of the judgment attached thereto, as of the date on which it was 
originally offered for filing in his office. On a showing that any 
petition filed is not legally sufficient, the court may enjoin the 
Secretary of State and all other officers from certifying or print- 
ing on the official ballot for the ensuing election the ballot title 
and numbers of such measure. All such suits shall be advanced 
on the court docket and heard and decided by the court as quickly 
as possible. Either party may appeal to the supreme court within 
ten days after a decision is rendered. The circuit court of Marion 
County shall have jurisdiction in all cases of measures to be sub- 
mitted to the electors of the State at large ; in cases of local and 
special measures, the circuit court of the county, or one of the 
counties in which such measures are to be voted upon, shall have 
jurisdiction ; in cases of municipal legislation, the circuit court 
of the county in which the city concerned is situated shall have 
jurisdiction. 

Section 5. When any measure shall be filed with the Secre- 
tary of State to be referred to the people of the State, or of 
any county or district composed of one or more counties, either 



86 State-wide Initiative, Referendum, and Recall 

by the Legislative Assembly or by the referendum petition, and 
when any measure shall be proposed by initiative petition, the 
Secretary of State shall forthwith transmit to the Attorney- 
General of the State a copy thereof, and within ten days thereafter 
the Attorney-General shall provide and return to the Secretary 
of State a ballot title for said measure. The ballot title may be 
distinct from the legislative title of the measure, and shall ex- 
press, in not exceeding one hundred words, the purpose of the 
measure. The ballot title shall be printed with the numbers of 
the measure, on the official ballot. In making such ballot title 
the Attorney-General shall, to the best of his ability, give a true 
and impartial statement of the purpose of the measure, and in 
such language that the ballot title shall not be intentionally an 
argument, or likely to create prejudice, either for or against the 
measure. Any person who is dissatisfied with the ballot title 
provided by the Attorney-General for any measure may appeal 
from his decision to the circuit court, as provided by section 4 
of this act, by petition, praying for a different title and setting 
forth the reasons why the title prepared by the Attorney-Gen- 
eral is insufficient or unfair. No appeal shall be allowed from the 
decision of the Attorney-General on a ballot title, unless the same 
is taken within ten days after said decision is filed. A copy of 
every such decision shall be served by the Secretary of State or 
the clerk of the court, upon the person offering or filing such 
initiative or referendum petition or appeal. Service of such de- 
cision may be by mail or telegraph, and shall be made forthwith. 
Said circuit court shall thereupon examine said measure, hear 
arguments, and in its decision thereon certify to the Secretary of 
State a ballot title for the measure in accord with the intent of 
this section. The decision of the circuit court shall be final. 
The Secretary of State shall print on the official ballot the title 
thus certified to him. 

Section 6. The Secretary of State, at the time he furnishes 
to the county clerks of the several counties certified copies of 
the names of the candidates for state and district offices, shall 



The Initiative and Referendum 87 

furnish to each of said county clerks his certified copy of the bal- 
lot titles and numbers of the several measures to be voted upon 
at the ensuing general election, and he shall use for each measure 
the ballot title designated in the manner herein provided. Such 
ballot title shall in no case exceed one hundred words, and shall 
not resemble, so far as to probably create confusion, any such title 
previously filed for any measure to be submitted at that election ; 
he shall number such measures and such ballot titles shall be 
printed on the official ballot in the order in which the acts re- 
ferred by the Legislative Assembly and petitions by the people 
shall be filed in his office. The affirmative of the first measure 
shall be numbered 300 and the negative 301 in numerals, and the 
succeeding measures shall be numbered consecutively 302, 303, 
304, 305, and so on, at each election. It shall be the duty of the 
several county clerks to print said ballot titles and numbers 
upon the official ballot in the order presented to them by the Sec- 
retary of State and the relative position required by law. Meas- 
ures referred by the Legislative Assembly shall be designated 
by the heading "Referred to the People by the Legislative Assem- 
bly"; measures referred by petition shall be designated "Ref- 
erendum ordered by Petition of the People" ; measures proposed 
by initiative petition shall be designated and distinguished on 
the ballot by the heading "Proposed by Initiative Petition." 

Section 7. The manner of voting upon measures submitted 
to the people shall be the same as is now or may be required and 
provided by law; no measure shall be adopted unless it shall 
receive an affirmative majority of the total number of respective 
votes cast on such measure and entitled to be counted under the 
provisions of this act ; that is to say, supposing seventy thou- 
sand ballots to be properly marked on any measure, it shall not 
be adopted unless it shall receive more than thirty-five thousand 
affirmative votes. If two or more conflicting laws shall be ap- 
proved by the people at the same election, the law receiving the 
greatest number of affirmative votes shall be paramount in all 
particulars as to which there is a conflict, even though such law 



88 State-wide Initiative, Referendum, and Recall 

may not have received the greatest majority of affirmative votes. 
If two or more conflicting amendments to the constitution shall be 
approved by the people at the same election, the amendment which 
receives the greatest number of affirmative votes shall be para- 
mount in all particulars as to which there is conflict, even though 
such amendment may not have received the greatest majority 
of affirmative votes. 

Section 8. Not later than the first Monday, of the third 
month next before any regular general election, nor later than 
thirty days before any special election, at which any proposed 
law, part of an act, or amendment to the constitution is to be 
submitted to the people, the Secretary of State shall cause to be 
printed in pamphlet form a true copy of the title and text of each 
measure to be submitted, with the number and form in which the 
ballot title thereof will be printed on the official ballot. The 
person, committee, or duly authorized officers of any organization 
filing any petition for the initiative, but no other person or or- 
ganization, shall have the right to file with the Secretary of State 
for printing and distribution any argument advocating such 
measure ; said argument shall be filed not later than the first 
Monday of the fourth month before the regular election at which 
the measure is to be voted upon. Any person, committee, or 
organization may file with the Secretary of State, for printing and 
distribution, any arguments they may desire, opposing any meas- 
ure, not later than the fourth Monday of the fourth month im- 
mediately preceding such election. Arguments advocating or 
opposing any measures referred to the people by the Legislative 
Assembly, or by referendum petition, at a regular general elec- 
tion, shall be governed by the same rules as to time, but may be 
filed with the Secretary of State by any person, committee, or 
organization; in the case of measures submitted at a special 
election, all arguments in support of such measure at least sixty 
days before such election. But in every case the person or 
persons offering such arguments for printing and distribution shall 
pay to the Secretary of State sufficient money to pay all the ex- 



The Initiative and Referendum 89 

penses for paper and printing to supply one copy with every copy 
of the measure to be printed by the State; and he shall forth- 
with notify the persons offering the same of the amount of 
money necessary. The Secretary of State shall cause one copy 
of each of said arguments to be bound in the pamphlet copy of 
the measures to be submitted as herein provided, and all such 
measures and arguments to be submitted at one election shall be 
bound together in a single pamphlet. All the printing shall be 
done by the State, and the pages of said pamphlet shall be num- 
bered consecutively from one to the end. The pages of said pam- 
phlet shall be six by nine inches in size, and the printed matter 
thereon shall be set in eight point Roman-faced type, single 
leaded, and twenty-five ems in width, with appropriate heads 
and printed on sized and super-calendered paper twenty-five 
by thirty-eight inches, weighing fifty pounds to the ream. 
The title page of every measure bound in said pamphlet shall 
show its ballot title and ballot numbers. The title page of each 
argument shall show the measure or measures it favors or opposes 
and by what persons or organization it is issued. When such 
arguments are printed he shall pay the State Printer therefor 
from the money deposited with him and refund the surplus, if 
any, to the parties who paid it to him. The cost of printing, 
binding, and distributing the measures proposed and of binding 
and distributing the arguments, shall be paid by the State as a 
part of the state printing, it being intended that only the cost of 
paper and printing the arguments shall be paid by the parties 
presenting the same, and they shall not be charged any higher 
rate for such work than is paid by the State for similar work and 
paper. Not later than the fifty-fifth day before the regular 
general election at which such measures are to be voted upon, 
the Secretary of State shall transmit by mail, with postage 
fully prepaid, to every voter in the State whose address he may 
have, one copy of such pamphlet; provided, that if the Secre- 
tary shall, at or about the same time be mailing any other pam- 
phlet to every voter, he may, if practicable, bind the matter herein 



90 State-wide Initiative, Referendum, and Recall 

provided for in the first part of said pamphlet, numbering the 
pages of the entire pamphlet consecutively from one to the end, 
or he may enclose the pamphlets under one cover. In the case of 
a special election he shall mail said pamphlet to every voter not 
less than twenty days before said special election. 

Section 9. The votes on measures and questions shall be 
counted, canvassed, and returned by the regular boards of 
judges, clerks and officers, as votes for candidates are counted, 
canvassed and returned, and the abstract made by the several 
county clerks of votes on measures shall be returned to the Sec- 
retary of State on separate abstract sheets, in the manner pro- 
vided by section 2833 of Bellinger and Cotton's Annotated Codes 
and Statutes of Oregon, for abstracts of votes for state and county 
officers. It shall be the duty of the Secretary of State, in the 
presence of the Governor, to proceed within thirty days after the 
election, and sooner if the returns be all received, to canvass the 
votes given for each measure ; and the Governor shall forthwith 
issue his proclamation, giving the whole number of votes cast 
in the State for and against each measure and question, and de- 
claring such measures as are approved by majority of those 
voting thereon to be in full force and effect as the law of the State 
of Oregon from the date of said proclamation ; provided, that if 
two or more measures shall be approved at said election which are 
known to conflict with each other or to contain conflicting provi- 
sions he shall also proclaim which is paramount in accordance 
with the provisions of section 7 of this act. 

Section 10. In all cities and towns which have not or may not 
provide by ordinance or charter for the manner of exercising 
the initiative and referendum powers reserved by the constitu- 
tion to the people thereof, as to their municipal legislation, the 
duties required of the Secretary of State by this act, as to state 
legislation, shall be performed as to such municipal legislation by 
the city auditor, clerk or recorder, as the case may be ; the duties 
required of the Governor shall be performed by the mayor as to 
such municipal legislation, and the duties required by this act 






The Initiative and Referendum 91 

of the Attorney-General shall be performed by the city attorney 
as to such municipal legislation. The provisions of this act shall 
apply in every city and town in all matters concerning the opera- 
tion of the initiative and referendum in its municipal legislation 
on which such city or town has not made or does not make con- 
flicting provisions. The printing and binding of measures and 
arguments in municipal legislation shall be paid for by the city 
in like manner as payment is provided for by the State as to 
State legislation by section 8 of this act, and said printing shall 
be done in the same manner that other municipal printing is 
done ; distribution of said pamphlets shall be made to every voter 
in the city, so far as possible, by the city clerk, auditor or recorder, 
as the case may be, either by mail or carrier, not less than eight 
days before the election at which the measures are to be voted 
upon. Arguments supporting municipal measures shall be filed 
with the city clerk, auditor or recorder, not less than thirty days 
before the election at which they are to be voted upon ; opposing 
arguments shall be filed not less than twenty days before said 
election. It is intended to make procedure in municipal legis- 
lation as nearly as practicable the same as the initiative and 
referendum procedure for measures relating to the people of the 
State at large. 

Section 11. Referendum petitions against any ordinance, 
franchise, or resolution passed by a city council shall be signed 
by not less than ten per cent of the voters of said city, and said 
signatures shall be verified in the manner herein provided ; the 
petition shall be filed with the city clerk, auditor, or recorder, as 
the case may be, within thirty days after the passage of such 
ordinance, resolutions or franchise. No city ordinance, resolu- 
tion or franchise shall take effect and become operative until 
thirty days after its passage by the council and approval by the 
mayor, unless the same shall be passed over his veto, and in that 
case it shall not take effect and become operative until thirty 
days after such final passage, except measures necessary for the 
immediate preservation of the peace, health or safety of the 



92 State-wide Initiative, Referendum, and Recall 

city ; and no such emergency measure shall become immediately 
operative unless it shall state in a separate section the reasons 
why it is necessary that it should become immediately operative, 
and shall be approved by the affirmative vote of three-fourths 
of all the members elected to the city council, taken by ayes and 
noes, and also approved by the mayor. 

Section 12. If any ordinance, charter or amendment to the 
charter of any city shall be proposed by initiative petition, said 
petition shall be filed with the city clerk, auditor or recorder, 
as the case may be, and he shall transmit it to the next session 
of the city council. The council shall either ordain or reject the 
same, as proposed, within thirty days thereafter, and if the 
council shall reject said proposed ordinance or amendment, or 
shall take no action thereon, then the city clerk, auditor or re- 
corder, as the case may be, shall submit the same to the voters 
of the city or town at the next ensuing election held therein not 
less than ninety days after the same was first presented to the 
city council. The council may ordain said ordinance or amend- 
ment and refer it to the people, or it may ordain such ordinance 
without referring it to the people, and in that case it shall be 
subject to referendum petition in like manner as other ordinances ; 
if the council shall reject said ordinance or amendment, or take 
no action thereon, it may ordain a competing ordinance or amend- 
ment, which shall be submitted by the city clerk, auditor or 
recorder, as the case may be, to the people of the said city or 
town, at the same election at which said initiative proposal is 
submitted. Such competing ordinance or amendment, if any, 
shall be prepared by the council and ordained within thirty 
days allowed for its action on the measure proposed by initiative 
petition. The mayor shall not have power to veto either of such 
measures. If conflicting ordinances or charter amendments 
shall be submitted to the people at the same election, and two or 
more of such conflicting measures shall be approved by the 
people, then the measure which shall have received the greatest 
number of affirmative votes shall be paramount in all particulars 






The Initiative and Referendum 



93 



as to which there is conflict, even though such measure may not 
have received the greatest majority. Amendments to any city 
charter may be proposed and submitted to the people by the 
city council, with or without an initiative petition, but the same 
shall be filed with the city clerk for submission not less than sixty 
days before the election at which they are to be voted upon, and 
no amendment of a city charter shall be effective until it is ap- 
proved by a majority of the votes cast thereon by the people of 
the city or town to which it applies. The city council may by 
ordinance order special elections to vote on municipal measures. 

Section 13. Every person who is a qualified elector of the 
State of Oregon may sign a petition for the referendum or for 
the initiative for any measure which he is legally entitled to 
vote upon. Any person signing any name other than his own 
to any petition, or knowingly signing his name more than once 
for the same measure at one election, or who is not at the time 
of signing the same a legal voter of this State, or any officer or 
person wilfully violating any provision of this statute, shall, 
upon conviction thereof, be punished by a fine not exceeding $500, 
or by imprisonment in the penitentiary not exceeding two years, 
or by both such fine and imprisonment, in the discretion of the 
court before which such conviction shall be had. 

Section 14. That an act entitled "An act making effective 
the initiative and referendum provisions of Section 1 of Article IV 
of the constitution of the State of Oregon, and regulating elec- 
tions thereunder, and providing penalties for violations of the pro- 
visions of this act," approved February 24, 1903, Laws of Oregon, 
regular session, page 244, be and the same is hereby repealed. 

Section 15. Whereas, there is no law to carry into effect 
the provisions of Section 1, Article IV of the constitution of Ore- 
gon, as to local, special, and municipal legislation, and of Section 
2 of Article XI of the constitution, and because question has been 
raised as to the power of cities to amend their charters without 
an enabling act, and because the act herein repealed is not effec- 
tive, therefore it is the judgment of this Legislative Assembly 



94 State- wide Initiative, Referendum, and Recall 

that an emergency exists, and that it is necessary for the public 
safety that this law shall become operative upon its approval 
by the Governor ; therefore, this act shall take effect and be in 
force immediately upon its approval by the Governor. 

Filed in the office of the Secretary of State February 25, 1907. l 

Pages from a Publicity Pamphlet 

[In accordance with the above act, the Secretary of State 
issued a "Publicity Pamphlet" in 1908 and 1910. Each voter 
received a copy of this voter's text-book fifty-five days before the 
election. The following bill extending the direct primary to 
presidential nominations was adopted Nov. 8, 1910, by a vote of 
43,353 for, to 41,624 against. The bill and the arguments on 
it and on other referenda are given in full in order to illustrate 
how the law-makers are prepared for election day.] 

A BILL 

To be Submitted to the Legal Electors of the State of 
Oregon for their Approval or Rejection 
at THE 
Regular General Election 
to be held 
On the Eighth Day of November, 1910 
To propose by initiative petition a law to amend Section 2 of the 
Direct Primary Nominating Elections Law which was pro- 
posed by initiative petition and approved by the people of 
Oregon at the general election in June, 1904, and printed in 
the volume of the General Laws of Oregon for the year 1905, 
at pages 7 to 50 thereof ; etc. 

By initiative petition filed in the office of the Secretary of State 
July 7, 1910, in accordance with the provisions of Chapter 226, 
General Laws of Oregon, 1907 

Printed in pursuance of Section 8 of Chapter 226, Laws of 1907. 

Secretary of State. 
1 Statutes of the State of Oregon Relating to Elections, pp. 112 ff. 



The Initiative and Referendum 95 

The following is the form and number in which the question will 
be printed on the official ballot : — 



PROPOSED BY INITIATIVE PETITION 

A bill for a law to amend the direct primary 
law by extending its provisions to presiden- 
tial nominations, allowing voters to desig- 
nate their choice for their party candidate 
for President and Vice-President ; for direct 
nomination of party candidates for presi- 
dential electors; for election by party 
voters of delegates to their party national 
nominating conventions, each voter voting 
for one delegate ; for payment of delegates' 
actual traveling expenses, not exceeding two 
hundred dollars for each delegate, and ex- 
tending the publicity rights of candidates in 
the State nominating and general election 
campaign books. Vote YES or NO. 

356. Yes. 

357- No. 

[On Official Ballot, Nos. 356 and 357.] 

A BILL 

For a law to amend Section 2 of the Direct Primary Nominating 
Elections Law which was proposed by initiative petition and 
approved by the people of Oregon at the general election in 
June, 1904, and printed in the volume of the General Laws of 
Oregon for the year 1905, at pages 7 to 50 thereof; to provide 



96 State-wide Initiative, Referendum, and Recall 

for the expression, by the qualified voters of the several po- 
litical parties subject to the said direct primary law, of their 
choice for nomination by their party for President and Vice- 
President of the United States; to provide for and regulate 
direct primary nominating elections for the election of said 
political parties' delegates to their respective national conven- 
tions, and for the payment of such delegates' necessary ex- 
penses, not exceeding two hundred dollars for any delegate ; 
for the nomination of party candidates for the office of presi- 
dential elector; for space in the party and State campaign 
books to set forth the merits of aspirants for election and for 
nomination, and of candidates for the offices of President and 
Vice-President of the United States, of candidates for offices to 
be voted for in the State at large, and of candidates for United 
States Senators and Representatives in Congress. 
Be it enacted by the People of the State of Oregon : 

Section 1. That Section 2 of the Direct Primary Nominating 
Elections Law, which was proposed by initiative petition and 
enacted by the people of Oregon at the general election in June, 
1904, as the same is printed in the volume of the General Laws 
of Oregon for the year 1905, at pages 7 to 50 thereof, be and the 
same is hereby amended to read as follows : 

Section 2. On the forty -fifth day preceding any election (ex- 
cept special elections to fill vacancies, presidential elections, mu- 
nicipal elections in towns or cities having a population of less 
than two thousand, and school elections) at which public officers 
in this State and in any district or county, and in any city having 
a population of two thousand or more at which public officers 
(sic) are to be elected, except as provided in Section 6 of this 
law as to time in certain cities and towns, a primary nominating 
election shall be held in accordance with this law in the several 
election precincts comprised within the territory for which such 
officers are to be elected at the ensuing election, which shall be 
known as the primary nominating election, for the purpose of 
choosing candidates by the political parties, subject to the provi- 



The Initiative and Referendum 97 

sions of this law, for Senator in Congress and all other elective 
State, district, county, precinct, city, ward and all other officers, 
and delegates to any constitutional convention or conventions 
that may hereafter be called, who are to be chosen at the ensuing 
election wholly by electors within this State or any subdivision 
of this State, and also for choosing and electing the county cen- 
tral committee-men by the several parties subject to the provi- 
sions of this law. Provided : 

(a) In the years when a President and Vice-President of the 
United States are to be elected, said primary nominating elec- 
tion shall be held on the forty-fifth day before the first Monday 
in June of said year ; and all laws pertaining to the nomination 
of candidates, registration of voters and all other things incident 
and pertaining to the holding of the regular biennial nominating 
election, shall be enforced and effected the same number of days 
before the first Monday in June that they were under the said 
nominating election law immediately before the change in the 
date of the regular election from the first Monday in June to the 
first Tuesday after the first Monday in November. 

(b) When candidates for the offices of President and Vice- 
President of the United States are to be nominated, every quali- 
fied elector of apolitical party subject to this law shall have oppor- 
tunity to vote his preference, on his party nominating ballot, 
for his choice for one person to be the candidate of his political 
party for President, and one person to be the candidate of his 
political party for Vice-President of the United States, either 
by writing the names of such persons in blank spaces to be left on 
said ballot for that purpose, or by marking with a cross before 
the printed names of the persons of his choice, as in the case of 
other nominations. The names of any persons shall be so printed 
on said ballots solely on the petition of their political supporters 
in Oregon, without such persons themselves signing any petition, 
signature or acceptance. The names of persons in such political 
party who shall be presented by petition of their supporters for 
nomination to be party candidates for the office of President or 



98 State-wide Initiative, Referendum, and Recall 

Vice-President of the United States, shall be printed on the nomi- 
nating official ballot, and the ballots shall be marked, and the 
votes shall be counted, canvassed and returned in like manner 
and under the same conditions as to names, petitions and other 
matters, as far as the same are applicable, as the names and peti- 
tions of aspirants for the party nominations for the office of 
Governor and for United States Senator in Congress are or may- 
be by law required to be marked, filed, counted, canvassed and 
returned. 

(c) The members of the political parties subject to this law 
shall elect their party delegates to their national conventions for 
the nomination of their party candidates for President and 
Vice-President of the United States, and shall nominate candi- 
dates for their party presidential electors at such nominating 
election. The Governor shall grant a certificate of election to 
each of the delegates so elected, which certificates shall show the 
number of votes received in the State by each person of such dele- 
gate's political party for nomination as its candidate for Presi- 
dent and Vice-President. Nominating petitions for the office 
of delegate to the respective party national conventions, to be 
chosen and elected at said nominating election, shall be sufficient 
if they contain a number of signatures of the members of the 
party equal to one per cent of the party vote in the State at 
the last preceding election for Representative in Congress ; pro- 
vided that not more than five hundred signatures shall be required 
on any such petition. Every qualified voter shall have the right 
at such nominating election to vote for the election of one person 
and no more to the office of national delegate for his party, and to 
vote for the nomination of one aspirant and no more for the office 
of presidential elector as the candidate of his party. A number 
of such candidates equal to the number of delegates to be elected 
by each party which is subject to the provisions of this law, re- 
ceiving, respectively, each for himself, the highest number of 
votes for such office, shall be thereby elected. Every political 
party subject to the provisions of this law shall be entitled to 



The Initiative and Referendum 99 

nominate, at said nominating election, as many candidates for 
the office of presidential elector as there are such officers to be 
elected ; that number of aspirants in every such party who shall 
receive, respectively, each for himself, the highest number of votes 
of his party for that nomination, shall be thereby nominated as a 
candidate of his political party for the office of presidential elector. 

(d) Every delegate to a national convention of a political 
party recognized as such organization by the laws of Oregon, 
shall receive from the State treasury the amount of his travelling 
expenses necessarily spent in actual attendance upon said con- 
vention, as his account may be audited and allowed by the Sec- 
retary of State, but in no case to exceed two hundred dollars 
for each delegate; provided, that such expenses shall never be 
paid to any greater number of delegates of any political party 
than would be allowed such party under the plan by which the 
number of delegates to the Republican National Convention was 
fixed for the Republican party of Oregon in the year 1908. The 
election of such national delegates for political parties not sub- 
ject to the Direct Primary Nominating Elections Law shall be 
certified in like manner as nominations of candidates of such 
political parties for elective public offices. Every such delegate 
to a national convention to nominate candidates for President 
and Vice-President, shall subscribe an oath of office that he will 
uphold the Constitution and laws of the United States and of the 
State of Oregon, and that he will, as such officer and delegate, to 
the best of his judgment and ability, faithfully carry out the 
wishes of his political party as expressed by its voters at the time 
of his election. 

(e) The committee or organization which shall file a petition 
to place the name of any person on the nominating ballot of their 
political party to be voted for by its members for expression of 
their choice for nomination as the candidate of such party for 
President or Vice-Presedent of the United States, shall have the 
right, upon payment therefor, to four pages of printed space in 
the campaign books of such political party provided for by Sec- 



ioo State-wide Initiative, Referendum, and Recall 

tions 4 and 5 of the law proposed by initiative petition and 
enacted by the people of Oregon at the general election in June, 
1908, entitled, "A bill to propose by initiative petition a law to 
limit candidates' election expenses ; to define, prevent and pun- 
ish corrupt and illegal practices in nominations and elections; 
to secure and protect the purity of the ballot; to amend Sec- 
tion 2775 of Bellinger and Cotton's Annotated Codes and Statutes 
of Oregon ; to provide for furnishing information to the electors 
and to provide the manner of conducting contests for nominations 
and elections in certain cases," as printed on pages 15 to 38 of 
the General Laws of Oregon for the year 1909. In this space 
said committee shall set forth their statement of the reasons why 
such person should be voted for and chosen by the members of 
their party in Oregon and in the Nation as its candidate. Any 
qualified elector of any such political party who favors or opposes 
the nomination of any person by his own political party as its 
candidate for President or Vice-President of the United States, 
may have not exceeding four pages of space in his aforesaid party 
nominating campaign book, at a cost of one hundred dollars per 
printed page, to set forth his reasons therefor. 

(/) Every person regularly nominated by a political party, 
recognized as such by the laws of Oregon, for President or Vice- 
President of the United States, or for any office to be voted for 
by the electors of the State at large, or for Senator or Repre- 
sentative in Congress, shall be entitled to use four pages of printed 
space in the State campaign book provided for by Sections 6 and 7 
of the above entitled "Law to limit candidates' election expenses ; 
to define, prevent and punish corrupt and illegal practices in 
nominations and elections; to secure and protect the purity of 
the ballot; to amend Section 2775 of Bellinger and Cotton's 
Annotated Codes and Statutes of Oregon; to provide for fur- 
nishing information to the electors and to provide the manner 
of conducting contests for nominations and elections in certain 
cases," as printed on pages 15 to 38 of the volume of the General 
Laws of Oregon for 1909. In this space, the candidate, or his 



The Initiative and Referendum 101 

supporters with his written permission filed with the Secretary 
of State, may set forth the reasons why he should be elected. 
No charge shall be made against candidates for President and 
Vice-President of the United States for this printed space. The 
other candidates above named shall pay at the rate of one hun- 
dred dollars per printed page for said space, and said payment 
shall not be counted as a part of the ten per cent of one year's 
salary that each candidate is allowed to spend for campaign pur- 
poses. If this bill shall be approved by the people the title of 
the bill shall stand as the title of the law. 

ARGUMENT 

(affirmative) 

SUBMITTED BY 

THE PEOPLE'S POWER LEAGUE OF OREGON 

in favor of the measure designated on the official ballot as follows : 

PROPOSED BY INITIATIVE PETITION 

A bill for a law to amend the direct primary 
law by extending its provisions to presiden- 
tial nominations, allowing voters to desig- 
nate their choice for their party candidates 
for President and Vice-President; for di- 
rect nomination of party candidates for 
presidential electors ; for election by party 
voters of delegates to their party national 
nominating conventions, each voter voting 
for one delegate ; for payment of delegates' 
actual travelling expenses, not exceeding 
two hundred dollars for each delegate, and 
extending the publicity rights of candidates 
in the State nominating and general elec- 
tion campaign books. Vote YES or NO. 

356. Yes. 

357- No. 



102 State-wide Initiative, Referendum, and Recall 

THE PEOPLE'S POWER LEAGUE OF OREGON 

offers this argument to explain and advocate the approval by the 
people of the following measures ! proposed by the League by 
initiative petitions : — 

Official Ballot No. 356. — A bill for a law to extend the Direct 
Primary Nominating Elections Law to presidential campaigns 
and nominations, to delegates to national conventions and to 
presidential electors by amending Section 2. 

Official Ballot No. 360. — A constitutional amendment to 
provide a plan for the election of members of the Legislative 
Assembly by proportional representation ; increase the people's 
initiative, referendum and recall powers; prevent log-rolling, 
hasty legislation and abuse of the emergency clause, and generally 
to provide for such organization of the Legislative Assembly as 
will fairly represent the people of Oregon and obtain performance 
of legislative duties. 

Official Ballot No. 358. — A bill for a law to provide for impar- 
tial inspection and reports on State and local public offices, and 
publication of such reports, and of general news of progress in 
government, in the Oregon Official Gazette magazine to be mailed 
free to every registered voter. 

Official Ballot No. 362. — A constitutional amendment to 
allow three-fourths of a jury to render a verdict in civil cases, and 
to generally simplify court procedure, especially appeals to the 
Supreme Court. 

The following list gives the names of the officers, executive 
committee, and members of the People's Power League : — 

Officers 

Ben Selling, of Portland .... President 
George M. Orton, of Portland . . Vice-President 
B. Lee Paget, of Portland . . . Treasurer 
W. S. U'Ren, of Oregon City . . Secretary 
1 See above, p. 46 for the vote on these measures. 



The Initiative and Referendum 103 

Executive Committee 

Henry Hahn Will Daly C. H. Gram 

[and eleven others] 

Members 

Henry E. McGinn J. P. Rasmussen V. R. Hyde 

[and eighty others] 

This league is largely composed of the same group of men who 
proposed the initiative and referendum amendment in 1902, the 
direct primary law in 1904, and home rule for cities and other 
measures of the People's Power League of 1906, and the recall 
and other People's Power measures in 1908. Its object is to 
perfect the direct power of the voters of Oregon over their State 
and local government in all its branches and officers. Many of 
our members were with Mr. Ed. Bingham in 1890 in his agitation 
for the Australian ballot law and the registration law in 1899. 

We believe the approval of the above four measures by the 
people will greatly strengthen and improve the necessary prac- 
tical methods by which the voters of Oregon will be able to 
quickly, directly and effectively use their supreme power over 
the officers as well as the laws of our State and local government, 
and at the same time to have accurate and full knowledge of the 
subjects on which they act. 

DIRECT PRIMARY LAW AMENDMENT 

The purpose of the bill extending the Direct Primary Nomina- 
tions Law to presidential campaigns and nominations is to increase 
the people's power in four ways : — 

1. Giving voters the right to express upon the official ballots, in 
the primaries, their choice for their party candidates for Presi- 
dent and Vice-President (Section 2b). 

2. Allowing all members of the political parties that are sub- 
ject to the direct primary law to elect their party delegates to 
their national conventions (Section 2c). 



104 State-wide Initiative, Referendum, and Recall 

3. Giving party voters the power to nominate their party can- 
didates for presidential electors (Section 2c). 

4. Extending the publicity rights of candidates in the party 
and State campaign books provided for by the corrupt practices 
law and including the above named classes of candidates for 
party nominations (Section 2e). 

The people of Oregon have learned, and those in other states 
are learning, that the power to nominate is more important than 
the power to elect. When members of a party give the power of 
nomination to a few delegates in a convention, they open the door 
for selfish interests, combinations and fraud to control the con- 
vention. To delegate the power of nomination is to encourage 
carelessness among the voters. The system of convention nomi- 
nations often causes the candidate to feel under greater obliga- 
tion to the delegates and bosses than he does to the people. 
The candidate who is responsible to all the voters will give better 
service to the people than one who is under obligations to a party 
boss, a political machine or a few delegates. 

Under the convention system, as is well known, a very few 
men make up the "slate" in the primaries, and delegates to state 
and national conventions are often chosen long before the nomi- 
nating conventions are held. It is well known, too, that men 
who oppose a political machine are very seldom selected as dele- 
gates to a state or national convention. 

The people of Oregon and of some other states have found that 
direct nominations of candidates for city, county and state offi- 
cers are of benefit to the people. The extension of the direct 
primary system to candidates for President and Vice-President 
would be of much greater advantage to the people because of the 
great power of these officers. 

In Mexico to-day we see the result of a great federal political 
machine controlled by the President. Under the convention sys- 
tem of appointing delegates to the national conventions it is 
possible for the same result to be brought about by the power 
of our President to control office-holders and build a huge politi- 



The Initiative and Referendum 



105 



cal machine, with which he may dictate the nomination of his 
successor. This will be impossible if the people elect and in- 
struct their own delegates and pay the necessary travelling ex- 
penses. The total expense to the State could not exceed eight 
thousand dollars at the 191 2 election. It should be worth more 
than that to the earners of three dollars a day or less to make it 
possible that they should be represented by men of their own 
class in the national conventions that nominate the party candi- 
dates for President and Vice-President. It should be worth more 
than that to the man whose income is more than three dollars a 
day to know that the State and his political party are not de- 
prived of the services of any citizen because he cannot afford to 
pay his travelling expenses to the convention, and also to know 
that every class of citizens within the party had an equal chance 
to be fairly represented among the delegates from Oregon who 
help to nominate the party candidates for President and Vice- 
President. 

In the interest of American liberty and progress, the taking 
over by the people of the United States of this direct power to 
nominate the candidates for President and Vice-President, is of 
the utmost importance. No other power has so great influence 
on the daily lives and prosperity of the citizens as the President. 
He is as much more important than any State officers as the 
Governor is more important than the county judge. Oregon has 
already developed the steps necessary for the application of 
the principle of direct nominations, and now it remains only to 
extend and apply these principles to the nomination of President 
and Vice-President and the election of delegates to the respective 
national conventions. When this shall be done by the Nation, 
the people of the United States may directly exert and control 
all the influence and power nationally that the people of Oregon 
now have in the nomination and election of local candidates for 
office. The other States will very quickly follow the example of 
any State that succeeds in the practical application of these prin- 
ciples in its election laws. 



106 State-wide Initiative, Referendum, and Recall 

people's power legislative amendment 

The proposed amendment of Article IV of the Constitution, if 
approved by the voters, will increase the people's power ; further 
restrict the powers of the legislature and of city councils ; give 
legislators a salary equal to fair wages for their time, so that any 
qualified farmer, clerk, teacher or wage-worker can afford to 
serve in the legislature; secure election of legislators by equal 
proportions of the votes cast instead of by mere pluralities or 
actual minorities ; prevent log-rolling, hasty legislation, abuse of 
the emergency clause and wasteful increase of appropriations. 

Increase of People's Power. — The initiative and referendum 
are extended to every form of legislative act, ordinance and reso- 
lution. Power to alter, amend or repeal any law is expressly 
reserved by the people. The recall power of the people is in- 
creased (in Section 3) by giving them the right to recall the whole 
Legislative Assembly, or the Senate, or the House of Representa- 
tives, or any Senators or Representatives. The amendment 
increases the local initiative and referendum powers of the people. 

Abuse of the Emergency. — Section ic provides that no emer- 
gency law or ordinance can be made by the legislature or a city 
council unless three-fourths of all the members elected vote for 
the emergency on a separate roll call, and provides for referendum 
petitions against emergency measures ; also, that an emergency 
shall not be declared on any measure creating or abolishing any 
office or to change the salary, term or duties of any officer. 
Section ic prohibits the legislature or city council from amending 
or repealing any law or ordinance enacted by the people unless 
three-fourths of the members of the legislature, or a city council, 
vote for the repeal or amendment of the law or ordinance, as the 
case may be. 

By Section id every attempt to grant a franchise or use of 
roads, streets or any other public property is subject to referen- 
dum by petition. No partly private corporation, like a rail- 
road company, will be able to condemn property in towns or 



The Initiative and Referendum 107 

cities, and a purely private corporation cannot be allowed to 
condemn any property. 

Term and Salary of Legislators. — Section 2 provides that 
Senators and Representatives shall be elected for a term of six 
years, and abolishes the "hold-over" system for Senators. 
Section 28 provides that each Senator and each Representative 
shall receive an annual salary of $350 and the amount of his 
necessary fares in going to and returning from the State 
Capital. 

Is $350 a year too much to pay a legislator ? This amendment 
will be approved or rejected by the voters who get $3 a day or 
less. Four out of five wage-workers, teachers, and farmers of 
Oregon do not make more than $3 a day. These men can be 
elected by the proportional system of elections, but they cannot 
serve in the legislature for $60 a year. A campaign generally 
takes about thirty days of a candidate's time, and if he is elected 
the session takes about forty more. As a rule, his campaign will 
cost him not less than $100 ; expenses at Salem, $100 ; loss of 
seventy days at $3 a day means a loss of $210; total cost of 
serving the people for one session, $410, and the State pays him 
now $120 for two years; so the net average loss to the member 
is $290. Every additional day the legislator gives to the State's 
business is that much more loss to himself. 

Can the people afford to deprive themselves of the services of 
a qualified citizen because he is too poor to make the sacrifice 
now necessary to serve them ? Four out of five of the voters of 
Oregon cannot afford to be candidates for the legislature. Are 
the teachers, farmers, and wage-workers who get $3 a day less 
intelligent or patriotic than the men who get $10 or $15 a day? 
Is it strange that most members of the legislature are lawyers, 
bankers, merchants and doctors, or professional politicians? 
The salary makes no difference to them. They would be glad 
to take the office without any salary. Surely $350 a year is not 
more salary than is necessary to make it possible for all classes of 
bread-winners to be represented in the legislature of Oregon. 



108 State-wide Initiative, Referendum, and Recall 

The reason for the six-year term is that a member of the legis- 
lature is far more useful in his second than in his first session ; 
and one who has served several sessions is more useful than a 
new member. If this amendment is adopted, every member will 
serve six years unless he is so much of a failure that his people at 
home recall him. State Senators are now elected for four years, 
and the Senate is generally believed to be a more efficient body 
than the House, but it is because of the Senators' longer experi- 
ence and not because of greater natural ability. 

The British House of Commons is one of the most efficient 
legislative bodies in the world. Its members are elected for 
seven years, but they cannot be recalled as the Oregon legislature 
can be if the voters approve this amendment. With the exten- 
sive recall power reserved by the people in this amendment, 
there can be no harm from the six-year term, and the people will 
have all the advantages of the efficiency that comes from long 
experience in legislative work. Annual sessions of the legislature 
are provided because if appropriations are made for only one year 
at a time, the legislators can estimate closely the State's actual 
needs and expenses, but where the appropriation is for two years, 
a good margin must be left for unforeseen expenses, and this is a 
temptation to extravagance. The difference will more than pay 
for the yearly session. 

Proportional Representation. — The amendment provides (Sec- 
tion 4) that any candidate for State Representative shall be elected 
if he is voted for by one-sixtieth of the voters of the State, and 
that any candidate for State Senator shall be elected if he is 
voted for by one-thirtieth of the voters of the State. Section 4a 
provides for the nomination of candidates for the Senate and 
House. Every voter will have the right to vote for one candidate 
for State Representative and no more, and for one candidate for 
State Senator and no more (Section 4a). No change whatever 
is made in the present form of the ballot, or the manner of voting, 
nor in the counting of the ballots by the precinct judges and county 
clerks. Section 4b tells how the votes are to be canvassed by the 



The Initiative and Referendum 109 

Secretary of State for all the candidates for the legislature, and 
the work in his office is very simple. 

Let us take, for example, the general election of 1908 and sup- 
pose that the whole number of votes cast in the State by the dif- 
ferent parties for Representatives in the Legislative Assembly is 
the same as at that election for Representatives in Congress. 
The abstract in the Secretary of State's office of votes for Repre- 
sentatives in the Legislative Assembly would show a total of 
110,252 votes; he would divide that number by 60, being the 
number of Representatives to be elected, and the quotient 
would be the number of votes necessary to insure the election of 
one Representative; it is called the "quota," and in this case 
would be 1837 votes. The Secretary of State would then use 
the quota to divide the total number of votes received by all the 
candidates of the Republican party in the State; that is, he 
would divide 67,468 votes by the quota 1837 ; the result shows 
that the Republican party would have 36 full quotas of votes and 
be thereby entitled to 36 seats for Representatives by full quotas, 
and would have a remainder of 1336 votes. Thirty-six Republi- 
cans would thus be elected by full quotas, beginning with that 
Republican candidate who had the highest number of votes for 
himself and going downward to the one who had the thirty-sixth 
highest number of votes for himself. In this particular example 
the Republican party would also be entitled to one seat for its 
remainder of 1336 votes, and this would be given to the candi- 
date of that party having the next highest number of votes for 
himself, so that the 37 Republican candidates, the lowest of 
whom received a higher number of votes than any of the re- 
maining 23 Republican candidates, would thereby be elected. 
The 23 Republican candidates having the lowest number of votes 
would be defeated. 

The Secretary of State would treat the votes and candidates 
of the other parties in exactly the same manner. The Demo- 
crats have 28,706 votes, which divided by the quota of 1837 would 
show that party entitled to 15 seats by full quotas and there would 
be a remainder of 1 151 votes. 



no State-wide Initiative, Referendum, and Recall 

This would be the second highest remainder and the Demo- 
crats would take one seat for that. The 16 Democrats who had 
personally, each for himself, the highest number of Democratic 
votes, would be thereby elected, and the remaining 44 Demo- 
cratic candidates would be defeated. The Socialists have 8204 
votes, which would entitle that party to four seats by full quotas 
and leave a remainder of 836 votes. The Prohibitionists have 
5874 votes, which would entitle that party to three seats by 
full quotas and would leave a remainder of 363 votes. In this 
example 58 Representatives would be elected by full quotas of 
votes in four different parties and two seats must be filled by 
remainders; these two seats are distributed as above stated to 
the different parties having the highest remainders, beginning 
with that one whose remainder is nearest to the full quota of 
1837 votes. 

The work would be no more difficult in the Secretary of State's 
office if the vote were split up among a dozen different parties, 
but the system forces the existing parties to put forth as candi- 
dates their very best men ; for that reason and because every 
new opinion in any party is able by this system at every election 
to elect its own just proportion of the party members, propor- 
tional representation satisfies in very great degree the demands 
that under the plurality system cause the continual effort to 
create new political parties. But the system proposed by this 
amendment insures the election of any independent or new party 
candidate for Representative who receives one-sixtieth of the 
whole vote of the State. 

The process is exactly the same for the election of State Sena- 
tors (Section 4e), except that the whole number of votes is to 
be divided by thirty instead of by sixty, because only thirty 
Senators are to be elected. 

The theory under the plurality system is that the member 
when elected becomes the Representative of those who opposed 
as well as those who elected him. It is impractical and wrong ; 
and legislators refuse to take any stock in it. Where the plural- 



The Initiative and Referendum 



ii i 



ity that elects a legislator wants one thing, and the divided major- 
ity that failed to defeat him does not want that thing, it is impos- 
sible for that member to represent both sides ; nevertheless, the 
divided majority composed of many minorities has a right to 
representation ; and under this simple plan of proportional rep- 
resentation these minorities will be fairly represented by mem- 
bers of their own choice. 

There is nothing in the amendment to prevent each party 
from nominating in the State a full list of sixty candidates for 
the office of Representative, but the smaller parties are not likely 
to do so because there will be no advantage in the sacrifice. For 
example, Clackamas County is a typical nominating district 
and the Representative section of the ballot at the general elec- 
tion would look something like this : — 



FOR REPRESENTATIVE 



VOTE FOR ONE 



64 Brown, C. H. 

65 Smith, D. C. 

66 Young, D. C. 

67 Lyte, R. A. 

68 Allen, A. C. 

69 White, R. M. 

70 Linn, E. C. 

71 Green, F. T. 

72 Arnold, G. R. 



73 
74 
75 



Daly, T. C. 
Little, O. A. 
Taylor, R. C. 



Republican 



Democrat 



Socialist 



Prohibitionist 



The following- is an example of the Secretary of State's official 
canvass, except that he would give the names of the successful 
candidates of each party : — 



ii2 State- wide Initiative, Referendum, and Recall 





Candidates 
in the 

State 


Whole No. 
of Votes 

FOR ALL 

Candidates 


Quotas, or 
Number of 
6oths of the 
Whole Vote 


Remainder 

of Votes 

for Each 

Party 


Republican 

Democrat 

Socialist . . . . . 
Prohibitionist .... 


60 
60 
60 
60 


67,468 

28,706 

8,204 

5,874 


36 
15 

4 
3 


1336 

856 
363 




240 


110,252 


58 


3,686 



Each organization is entitled to as many seats as it has full 
quotas of votes; and in the above example the four different 
organizations get fifty-eight seats by full quotas, two get seats 
by the highest remainders, and thus the sixty seats are filled. 

Section 10 provides that the Speaker of the House must be 
chosen by the members but he shall not be a member. He shall 
not appoint standing committees and shall have no vote. The 
purpose is to obtain a Speaker who shall be a non-partisan pre- 
siding officer and nothing more than that. He is to have no more 
power than the presiding officer of the German Reichstag or 
the British House of Commons. The President of the Senate is 
to be chosen by the Senators in the same way and to have the 
same power and no more authority in the Senate. These offi- 
cers will thus have no important committee places to trade for 
their own election, and therefore will be chosen by the members 
solely for their qualifications and fairness. 

Hasty Legislation. — The six-year term leaves no excuse for 
hasty legislation. When a bill is introduced it is placed on the 
calendar and may be passed at any session during the six-year 
term of that legislature, so that there will be plenty of time for 
study of the bill. If a bill is introduced after the twentieth day 
of a session it shall not be passed at that session unless it is an 
emergency measure. (See Section 31.) 



The Initiative and Referendum 113 

Log-rolling. — Section 30 revises the oath to be taken by a 
legislator, and is designed to prevent log-rolling and legislation 
by caucus. The experience of the people of Oregon with State- 
ment No. 1 gives reason to believe that most of the legislators 
will keep that oath. 

Section 33, relating to clerks for the Senate and House com- 
mittees, will probably save $10,000 a year to the people of Oregon, 
as compared with the present practice. 

OFFICIAL GAZETTE BILL 

The purpose of this bill is to establish a publicly-owned maga- 
zine, or official gazette, to tell the people of Oregon about their 
State and local government, and to create a board of three 
People's Inspectors of Government, who shall edit the gazette 
and perform the duties defined in Sections 2, 3 and 4 of the bill. 
Sections 3 and 4 tell what is to be published in the gazette. 
Section 7 tells how the (3) People's Inspectors of Government 
are to be elected in 191 2 and thereafter, and Section 6 how they 
are to be appointed this year if the voters approve this bill. 
Section 8 provides for the expenses and salaries of the inspectors. 
The gazette is to be mailed free to every registered voter; ex- 
pense of publishing the gazette is limited to $1 a year for each 
registered voter, and will probably not exceed 60 cents per voter. 

How can all the voters get all the important news of govern- 
ment? Congress publishes the Congressional Record, which 
tells what is said in Congress but does not give the much more 
important information as to what is done; the Department of 
Agriculture prints thousands of valuable reports for free distribu- 
tion ; the Treasury Department prints statistical abstracts and 
other important news, and the Interstate Commerce Commission 
publishes valuable reports ; and from all of these the daily and 
weekly newspapers get important information that they publish 
as news for their readers. The Governor and all other public 
officers make reports, which are printed once in two years and 
1 



H4 State-wide Initiative, Referendum, and Recall 

distributed free ; but long, detailed tables of statistics make up 
the greater part of these reports. The census bulletins are dis- 
tributed free, and the newspapers publish as news many columns 
from the census reports. 

The city of Denver, Colorado, publishes "Denver Municipal 
Facts" every week, and distributes the paper to the voters free. 
San Francisco publishes a paper called the " Municipal Report," 
which is distributed free. The purpose of all these reports is to 
give information to the voters concerning their government, but 
most of these publications are in some degree partisan. All of 
them together give only a little of the important news of govern- 
ment and to only a very few of the voters. 

Oregon publishes a pamphlet of measures to be voted on, with 
arguments in favor of and against the measures, and mails it 
free to every registered voter. The proposed Oregon Official 
Gazette is an extension of the State pamphlet idea in that it is 
to be printed every two months, and differs from the other ex- 
periments in providing for absolutely non-partisan reports and 
all the news of government for all the voters, by officers who have 
no other duties than those defined in the proposed bill, who will 
get their offices, their authority and their appropriations directly 
from the people, and are responsible directly to the people and 
to no one else. 

Need for Inspectors. — The people of Oregon pay $11,888,639.89 
(almost twelve million dollars) every year of direct public taxes 
on property ; they pay also at least another million dollars for 
poll and occupation taxes and licenses. These sums do not in- 
clude any of the indirect taxes the people of Oregon pay to sup- 
port the national government. Many business men say that if 
the State, county, city and district governments of Oregon were 
managed under an efficient business system, the people could 
get better public service for eight million dollars than they now 
get for thirteen million dollars. 

A number of different plans have been published showing how 
an efficient business organization of State, city and county gov- 



The Initiative and Referendum 115 

ernments could be made to save the taxpayers at least five million 
dollars a year. The gazette, going every two months to every 
voter, will give the people ample opportunity to consider and 
discuss such proposals. 

By such comparison of ideas and criticism of measures as will 
be possible in the gazette, the people will make a system for 
applying business principles to government business. The sav- 
ings by such a system in one year would pay the cost of the 
gazette for fifty years at the estimated rate of expense. 

Need for the Official Gazette. — To show the necessity for an 
official gazette, which would be owned and controlled by the 
people of Oregon, we quote the following from the New York 
Evening Post of June 9, 19 10 : — 

As a protest against the daily journalism with which Boston 
is now favored or afflicted, one hundred and thirty-nine citizens 
have supplied the capital for a new weekly entitled the Boston 
Common, six issues of which have now appeared. No person is 
permitted to subscribe for less than $100 or more than $1000 
worth of stock, and the names of the stockholders can be had on 
application at the office. The purpose of this weekly is thus 
stated : — 

"The motive of the organization is to publish for Boston and 
New England a weekly journal of politics, industry, letters and 
criticism, the primary purpose of which is public service rather 
than private profit, and to secure for this publication absolute 
freedom from partisanship, sectarianism, prejudice and the con- 
trol and muzzling of influence." 

It is undubitably a serious state of affairs when 139 citizens, 
with no desire to enter journalism as a business venture, find it 
necessary to indict not only the ability of the press but its trust- 
worthiness. It is evident that not one of Boston's many news- 
papers has convinced this group of men of its freedom from party 
or personal bias and from a malign counting-room influence. 

In this connection we respectfully commend to all the voters 
of Oregon the following "General Report of the Committee on 
Legislation" which was unanimously approved and adopted by 
the Oregon State Grange, May 17, 1910: — 



1 1 6 State-wide Initiative, Referendum, and Recall 

We do most earnestly urge the members of our order and the 
voters of Oregon, under all circumstances and at all times, to 
advocate and vote for every measure which will increase the power 
of the people of Oregon to control every department of their 
government, especially in applying just methods of taxation and 
the prudent spending of public money. The voters can never get 
too much or too direct power of self-government, nor become too per- 
fect in its practice. 

That "knowledge is power" is as true in the science and busi- 
ness of government by the people for the people as it is in any 
other science or business. Through the proposed gazette maga- 
zine, every citizen can get knowledge of government that no citi- 
zen can possibly get without it, and can get reliable information 
every two months about every department of our State and local 
government. The people cannot get this information now from 
any source, and they cannot get it in the future unless they pay 
for it themselves as a public undertaking. 

This bill for the People's Inspectors of Government and Edi- 
tors of the Gazette, to be mailed to every registered voter, was 
most bitterly condemned by the Lawyers' State Bar Association 
at Portland in May, iqio. About thirty-five out of more than 
500 members were present. The light that such a magazine 
would give all the citizens about the ways that are dark and the 
tricks that are profitable to street railroads and other public 
service corporations is reason enough for the fierce opposition 
to this bill by all the corporation lawyers, and especially those 
at the head of the State Bar Association. 

JUDICIARY AMENDMENTS 
ARTICLE VII 

The purpose of this amendment is to remove restrictions on the 
power of the people to make a law for any kind of court they 
want ; to allow the people and the legislature to transfer to the 
circuit court the law and probate business of the county judge in 
counties where that can be done to good advantage ; to simplify 



The Initiative and Referendum 117 

procedure on appeals to the Supreme Court and remove the pre- 
text for new trials in those cases in which substantial justice is 
done by the verdict and judgment, but in which the trial court 
may have made a technical mistake; or if the verdict is just 
and the judgment is not, to make it the duty of the Supreme Court 
to enter the proper judgment, if that can be done, instead of send- 
ing the case back for a new trial ; to allow the Supreme Court 
to take original jurisdiction in important cases of habeas corpus, 
mandamus and quo warranto, the latter being used principally 
to try the title to offices ; to prevent mistrials and hung juries, 
by allowing three-fourths of a jury to render a verdict in civil 
cases. The amendment also removes the constitutional restric- 
tions on the power of the people and the legislature over the 
offices of the county clerk, the sheriff, the county judge, and the 
district attorney. 

Many states now allow a majority of the jury in civil cases to 
render a verdict. Usually three-fourths of the jury is required to 
render a verdict. No state has gone back to the old system of 
unanimous verdict in civil cases, after having experience with 
the majority verdict. 

President Taft, speaking at St. Louis on the American Court 
Procedure, said : — 

No, all I am appealing for is justice and a square deal — not 
especially for myself ; indeed, I am in a position where I can get 
along better than some of the rest without it ; but I am appealing 
for justice in dealing with all classes. 

I said all classes. Of course, practically, it is pretty hard to 
give it. To our Socialistic friends, who are engaged in decrying 
our present institutions, I could furnish a good deal better 
ground for their complaints than they give themselves. I have 
talked about this before, and it is not a new theme with me. J 
think if they were to object to our administration of justice and the 
delays in it arising from the traditional methods pursued in courts, 
by which the man with the longest purse has the advantage, because 
the litigation is drawn out, they would be getting, as the children 
say, " pretty warm " in reaching a subject that will bear full discus- 
sion, and upon which we shall have to have a very decided reform. 



1 1 8 State-wide Initiative, Referendum, and Recall 

Every voter knows of hung juries in civil cases, followed by new 
trials, appeals to the Supreme Court, reversals and another new 
trial, and perhaps yet another appeal to the Supreme Court. 
There have been such cases in the Oregon courts. One purpose 
of this amendment is to make that kind of injustice impossible 
in which the corporation or the rich man wins because of the 
longest purse. 

Respectfully submitted to the electors of Oregon by the 

People's Power League of Oregon. 



ARGUMENT 
(negative) 

SUBMITTED BY 
E. W. McCOMAS, L. WOLDENBERG, E. J. SOMMERVILLE, R. R. 

Corey, Geo. W. Hyatt, Frank E. Alley, W. H. Ragsdale, 
R. H. DeArmond, J. W. Donnelly, C. C. Wilson, C. N. 
McArthur, L. L. Mann, Timothy Mahoney, J. C. Smith 
and Ben Petigrow, 

opposing the measure designated on the official ballot as follows : 

PROPOSED BY INITIATIVE PETITION 

A bill for a law to amend the direct primary 
law by extending its provisions to presiden- 
tial nominations, allowing voters to designate 
their choice for their party candidate for 
President and Vice-President; for direct 
nomination of party candidates for presi- 
dential electors ; for election by party voters 
of delegates to their party national nominat- 
ing conventions, each voter voting for one 
delegate ; for payment of delegates' actual 
travelling expenses, not exceeding two hun- 



The Initiative and Referendum 



119 



dred dollars for each delegate, and extending 
the publicity rights of candidates in the State 
nominating and general election campaign 
books. Vote YES or NO. 

356. Yes. 

357- No. 



THE PEOPLE ARE URGED TO VOTE "NO" ON THIS 
MEASURE FOR THE FOLLOWING REASONS: — 

1. The delegates to political conventions are not public offi- 
cials, but are representatives of their respective political parties, 
and the taxpayers of the State should not be called upon to pay 
railroad fare, hotel bills, etc. for these junketing trips. If this 
measure is approved, there will be an additional burden of 
several thousand dollars heaped upon the shoulders of the tax- 
payers every four years. 

2. This bill is unfair in that it recognizes only the Republican 
and Democratic parties. The Socialists, Prohibitionists, and 
members of other parties are not recognized. If members of these 
last named parties go to conventions, they must do so at their 
own expense, while the Republicans and Democrats can ride in 
Pullman cars and stay at high-priced hotels at the expense of the 
taxpayers. 

3. If this bill is approved, the time of the regular primary elec- 
tion will be changed from September to April, during presidential 
election years, but it will be held in September during other years. 
This would be an unbusinesslike arrangement, and would confuse 
and disarrange our entire code of election laws, resulting in great 
inconvenience to the Secretary of State, the county clerks and 
other officials; besides this, the proposed arrangement would, 
during presidential election years, keep the State in the throes 
of a political campaign from early spring until November. Ex- 



120 State-wide Initiative, Referendum, and Recall 

perience has proved that campaigns should be as brief as pos- 
sible and that business conditions are unsatisfactory when they 
are extended over a period of several months. 

The people of Oregon, at the last State election, voted to 
change the primary election from April to September and the 
regular election from June to November. Now a group of men, 
who are constantly shouting about the "will of the people," 
wish to open up a question upon which the people have already 
expressed themselves. 

4. There is no certainty that the national convention would 
seat delegates selected under the proposed arrangement. The 
national committee of each party usually makes its own rules and 
regulations governing the selection of delegates. 

5. This measure is proposed by a group of men whose leaders 
are disgruntled because they were not sent as delegates to the 
Chicago convention in 1908. They assume to themselves all 
political virtue and purity, looking upon those who do not agree 
with their fads and schemes as undesirable citizens. They are 
now attempting to vent their spleen upon the taxpayers of 
Oregon. 

The public good demands the rejection of this measure and you are 
respectfully urged to vote "NO" by the undersigned citizens 
and taxpayers. 

E. W. McComas, Pendleton. L. Woldenberg, Canyon City. 

E. J. Sommerville, Pendleton. R. R. Corey, Baker City. 

Geo. W. Hyatt, Enterprise. Frank E. Alley, Roseburg. 

W. H. Ragsdale, Moro. R. H. DeArmond, Ontario. 

J. W. Donnelly, Condon. C. C. Wilson, Nyssa. 

C. N. McArthur, Portland. L. L. Mann, Pendleton. 

Timothy Mahoney, Portland. J. C. Smith, Grants Pass. 
Ben Petigrew, Portland. 



The Initiative and Referendum 121 



IV. Nevada 

[Article XIX of the constitution of Nevada, establishing the 
referendum, was proposed and passed at the Twentieth Session 
of the Legislature, March 15, 1901 {Statutes of 1901, p. 139); 
agreed to and passed at the Twenty-first Session of the Legisla- 
ture, March 3, 1903 ; and ratified by the voters at the general 
election of November 8, 1904. The total vote at this election 
was 12,050. The total vote on the amendment was 5185, of 
which 4393 were for, and 792 against. By an act approved 
March 24, 1909, the legislature elaborated the referendum 
amendment of 1904. In 1909 and 191 1 the legislature elaborated 
the referendum provisions and also enacted initiative and 
recall amendments. These amendments will be submitted to 
the voters for ratification at the next general election.] 

The Referendum (adopted 1904) l 

Section i. Whenever ten per centum or more of the voters 
of this State, as shown by the number of votes cast at the last 
preceding general election, shall express their wish that any law 
or resolution made by the Legislature be submitted to a vote of 
the people, the officers charged with the duty of announcing and 
proclaiming elections, and of certifying nominations, or questions 
to be voted on, shall submit the question of the approval or 
disapproval of said law or resolution to be voted on at the next 
ensuing election wherein a state or congressional officer is to be 
voted for, or wherein any question may be voted on by the 
electors of the entire State. 

Sec. 2. When a majority of the electors voting at a state elec- 
tion shall by their votes signify approval of a law or resolution, 
such law or resolution shall stand as the law of the State and shall 
not be overruled, annulled, set aside, suspended, or in any way 
made inoperative except by the direct vote of the people. When 
such majority shall so signify disapproval the law or resolution so 
disapproved shall be void and of no effect. 

1 Constitution of the State of Nevada (Official), p. 59. 



122 State-wide Initiative, Referendum, and Recall 

Referendum — Elaborating Law l 

An Act to provide for submitting certain Acts of the Legislature 
for approval by the qualified electors of the State of Nevada in 
accordance with the referendum provisions of the Constitution. 

Section i. Whenever ten per centum or more of the voters 
of this State, as shown by the number of votes cast at the last 
preceding general election for Justice of the Supreme Court, 
shall express their wish that any law or resolution made by the 
Legislature be submitted to the vote of the people, they shall 
file with the Secretary of State, not less than four months before 
the time set for such general election, a petition, which petition 
shall contain the names and residences of at least ten per cen- 
tum of the voters of this State, demanding that a referendum vote 
be had by the people of the State at the next general election upon 
the bill or resolution on which the referendum is demanded. 

Sec. 2. The names of the electors so petitioning need not all be 
upon one petition, but maybe contained in one or more petitions, 
but each petition must be verified by at least one of the voters 
who has signed such petition, and such voter making such 
verification must swear that the persons signing said petition are 
qualified voters of this State. Said petition may be verified upon 
information and belief. 

Sec. 3. That upon receipt of said petition by the Secretary 
of State he shall file the same, and at the next general election 
shall submit the question of the approval or disapproval of said 
law or resolution to the people of the State to be voted upon at 
the next ensuing election wherein any State or Congressional 
officer is to be voted for, or wherein any question may be voted 
upon by the electors of the entire State. And the Secretary of 
State shall certify the said law to the several County Clerks in 
this State, and they shall publish the same in accordance with the 
provisions of law requiring the said County Clerks to publish 

1 Election Laws (1909), p. 89. 



The Initiative and Referendum 123 

questions and constitutional amendments which are to be sub- 
mitted for popular vote. 

Sec. 4. That the title of the Act shall be set out on the ballot, 
and the question printed upon the ballot for the information 
of the voter shall be as follows : Shall the Act (setting out the 
title thereof) be approved ? And the votes cast upon such ques- 
tions shall be counted and canvassed as are the votes for State 
officers counted and canvassed. 

Sec. 5. When a majority of the electors voting at a State 
election shall by their vote signify approval of a law or resolution, 
such law or resolution shall stand as the law of the State, and 
shall not be overruled, annulled, set aside, suspended or in any 
way made inoperative, except by a direct vote of the people. 
When a majority shall so signify disapproval, the law or resolu- 
tion so disapproved shall be void and of no effect. 

Initiative and New Referendum Amendment. 
{Pending Adoption) 1 

SENATE SUBSTITUTE FOR ASSEMBLY JOINT AND CONCURRENT 
RESOLUTION NO. 7 

Approved March 22, 1909. D. S. Dickerson, Lieutenant 
and Acting Governor. 
Approved February 1, 191 1. Tasker L. Oddie, Governor. 

Senate Joint and Concurrent Resolution Proposing to 
Amend Article Nineteen of the Constitution by Adding 
to Said Article Section Three, Relating to the Initia- 
tive and Referendum, and the Powers thereby Conferred 
upon the Qualified Electors. 

Resolved by the Senate, the Assembly concurring, That section 
three be added to article nineteen of the constitution of the State 
of Nevada, said section so added to read as follows : — 

1 Official copy from Secretary of State. For the Recall Amendment 
see below page 272. 



124 State-wide Initiative, Referendum, and Recall 

Section 3. The people reserve to themselves the power to 
propose laws and the power to propose amendments to the con- 
stitution and to enact or reject the same at the polls, independent 
of the legislature, and also reserve the power at their option to 
approve or reject at the polls, in the manner herein provided, 
any act, item, section or part of any act or measure passed by the 
legislature, and section one of article four of the constitution 
shall hereafter be construed accordingly. The first power 
reserved by the people is the initiative, and not more than ten 
per cent (10 %) of the qualified electors shall be required 
to propose any measure by initiative petition, and every such 
petition shall include the full text of the measure so proposed. 
Initiative petitions, for all but municipal legislation, shall be 
filed with the secretary of state not less than thirty (30) days be- 
fore any regular session of the legislature ; the secretary of state 
shall transmit the same to the legislature as soon as it convenes 
and organizes. Such initiative measure shall take precedence 
over all measures of the legislature except appropriation bills, 
and shall be enacted or rejected by the legislature, without change 
or amendment, within forty (40) days. If any such initiative 
measure so proposed by petition as aforesaid, shall be enacted 
by the legislature and approved by the governor in the same 
manner as other laws are enacted, same shall become a law, but 
shall be subject to referendum petition as provided in section 
one and two of this article. If said initiative measure be rejected 
by the legislature, or if no action be taken thereon within said 
forty (40) days, the secretary of state shall submit same to the 
qualified electors for approval or rejection at the next ensuing 
general election ; and if a majority of the qualified electors voting 
thereon shall approve of such measure it shall become a law and 
take effect from the date of the official declaration of the vote ; 
an initiative measure so approved by the qualified electors shall 
not be annulled, set aside, or repealed by the legislature within 
three (3) years from the date said act takes effect. In case the 
legislature shall reject such initiative measure, said body may, 



The Initiative and Referendum 125 

with the approval of the governor, propose a different measure 
on the same subject, in which event both measures shall be sub- 
mitted by the secretary of state to the qualified electors for ap- 
proval or rejection at the next ensuing general election. The 
enacting clause of all bills proposed by the initiative shall 
be: "The People of the State of Nevada enact as follows." 
The whole number of votes cast for justice of the supreme court 
at the general election last preceding the filing of any initiative 
petition shall be the basis on which the number of qualified 
electors required to sign such petition shall be counted. The 
second power reserved by the people is the referendum, which 
shall be exercised in the manner provided in sections one and 
two of this article. The initiative and referendum powers in this 
article provided for are further reserved to the qualified electors 
of each county and municipality as to all local, special and 
municipal legislation of every character in or for said respective 
counties or municipalities. The legislature may provide by law 
for the manner of exercising the initiative and referendum powers 
as to county and municipal legislation, but shall not require a 
petition of more than ten per cent (10 %) of the qualified 
electors to order the referendum, and not more than fifteen per 
cent (15 %) to propose any municipal measure by initiative. 
If the conflicting measures submitted to the people at the next 
ensuing general election shall both be approved by a majority of 
the votes severally cast for and against each of said measures, 
the measure receiving the highest number of affirmative votes 
shall thereupon become a law as to all conflicting provisions. 
The provisions of this section shall be self-executing, but legis- 
lation may be especially enacted to facilitate its operation. 

V. Montana 

[The constitutional amendment providing for the initiative 
and referendum was approved by the Governor, March 2, 1905. 
It was ratified by the voters at the general election held in No- 
vember, 1906. The vote was 36,374 for and 6616 against, or a 



126 State-wide Initiative, Referendum, and Recall 

total vote of 42,990. The total vote cast at the election was 
56,041. The amendment and the elaborating act, approved 
by the Governor, March 2, 1907, follow.] 

Constitutional Amendment (1906) * 

An Act Entitled, "An Act for the submitting to the qualified 
electors of the State of Montana, an Amendment to Article V 
of the Constitution of the State of Montana, relating to the 
Legislative Department and providing for Direct Legislation and 
Reference of Laws." 
Be it enacted by the Legislative Assembly of the State of Montana: — 

Section i. 

There shall be submitted to the qualified electors of the State 
of Montana, at the next general election, the following amend- 
ment to Section I, Article V, of the constitution of the State of 
Montana : — 

That Section I, Article V, of the constitution be, and the same 
is hereby amended so as to read as follows : — 

Section I. The Legislative Authority of the State shall be 
vested in a Legislative Assembly, consisting of a Senate and 
House of Representatives ; but the people reserve to themselves 
power to propose laws, and to enact or reject the same at the 
polls, except as to laws relating to appropriations of money, and 
except as to laws for the submission of constitutional amendments, 
and except as to local or special laws, as enumerated in Article V, 
Section 26, of this constitution, independent of the Legislative 
Assembly; and also reserve power at their own option, to ap- 
prove or reject at the polls, any Act of the Legislative Assembly, 
except as to laws necessary for the immediate preservation of the 
public peace, health or safety, and except as to laws relating to 
appropriations of money, and except as to laws for the submission 
of constitutional amendments, and except as to local or special 

1 Official copy secured from the Secretary of State. 



The Initiative and Referendum 127 

laws, as enumerated in Article V, Section 26, of this Constitution. 
The first power reserved by the people is the Initiative and eight 
per cent of the legal voters of the State shall be required to pro- 
pose any measure by petition ; provided, that two-fifths of the 
whole number of the Counties of the State must each furnish 
as signers of said petition eight per cent of the legal voters in 
such county, and every such petition shall include the full text 
of the measure so proposed. Initiative petitions shall be filed 
with the Secretary of State, not less than four months before the 
election at which they are to be voted upon. 

The second power is the Referendum, and it may be ordered 
either by petition signed by five per cent of the legal voters of the 
State, provided that two-fifths of the whole number of the 
counties of the State must each furnish as signers of said petition 
five per cent of the legal voters in such County ; or, by the Legis- 
lative Assembly as other Bills are enacted. 

Referendum petitions shall be filed with the Secretary of State, 
not later than six months after the final adjournment of the Ses- 
sion of the Legislative Assembly which passed the Bill on which 
the Referendum is demanded. The veto power of the Governor 
shall not extend to measures referred to the people by the Legisla- 
tive Assembly or by Initiative Referendum petitions. 

All elections on measures referred to the people of the State 
shall be had at the biennial regular general election, except when 
the Legislative Assembly, by a majority vote, shall order a spe- 
cial election. Any measure referred to the people shall still be 
in full force and effect unless such petition be signed by fifteen 
per cent of the legal voters of a majority of the whole number of 
the counties of the State, in which case the law shall be inoperative 
until such time as it shall be passed upon at an election, and the 
result has been determined and declared as provided by law. The 
whole number of votes cast for Governor at the regular election 
last preceding the filing of any petition for the Initiative or Refer- 
endum, shall be the basis on which the number of the legal peti- 
tions and orders for the Initiative and for the Referendum shall 



128 State-wide Initiative, Referendum, and Recall 

be filed with the Secretary of State ; and in submitting the same 
to the people, he, and all other officers, shall be guided by the 
General Laws and the Act submitting this amendment, until 
Legislation shall be especially provided therefor. The enacting 
clause of every law originated by the Initiative shall be as follows : 
"Be it enacted by the People of Montana :" — 

This Section shall not be construed to deprive any member of 
the Legislative Assembly of the right to introduce any measure. 

Section 2. 

That separate Official Ballots be used at the general 
election, to be held in November, 1906, and shall have 
printed thereon the words: "For the Amendment to the Con- 
stitution providing for Direct Legislation and Reference of 
Laws," and the words, "Against the Amendment to the Consti- 
tution providing for Direct Legislation and Reference of Laws." 
It shall be the duty of the Legislative Assembly to enact Legis- 
lation suitable for carrying this amendment into effect. 

Section 3. 

All Acts or parts of Acts in conflict with this Act are hereby 
repealed. 

Section 4. 

This Act shall take effect and be in full force from and after 
its passage and approval by the Governor. 

Elaborating Act (1907) 

INITIATIVE AND REFERENDUM 1 

Section 106. Form of petition for referendum. 

Section 107. Form of petition for initiative. 

Section 108. Clerk to verify signatures to petitions. 

Section 109. Notice to governor and proclamation. 

1 Election Laws of the State of Montana, pp. 48 ff. 



The Initiative and Referendum 129 

Section no. Secretary of state to certify measures to be voted 

on. Printing ballots. 

Section in. Manner of voting. 

Section 112. Printing and distribution of measures to be voted 

on. 

Section 113. Canvass of votes. 

Section 114. Who may petition. False signatures. Penalties. 

Section 115. Referred bills not effective until approved. 

106. Form of petition for referendum. — The following shall 
be substantially the form of petition for the referendum to the 
people on any act passed by the Legislative Assembly of the 
State of Montana. 

WARNING 

Any person signing any name other than his own to this peti- 
tion or signing the same more than once for the same measure at 
one Election, or who is not, at the time of signing the same, a 
legal voter of this State, is punishable by a fine not exceeding 
Five Hundred Dollars ($500.00) or imprisonment in the peni- 
tentiary not exceeding two years or by both such fine and 
imprisonment. 

PETITION FOR REFERENDUM 

To the Honorable , Secretary of State for the 

State of Montana : — 

We, the undersigned citizens and legal voters of the State of 
Montana, respectfully order that Senate (House) Bill Number 
entitled (title of Act), passed by the Legis- 
lative Assembly of the State of Montana, at the regular (special) 
session of said Legislative Assembly, shall be referred to the 
people of the State for their approval or rejection, at the regular, 

general, or special election to beheld on the day of , 

19. ., and each for himself says: I have personally signed this 
petition ; I am a legal voter of the State of Montana ; and my 



130 State-wide Initiative, Referendum, and Recall 

residence, postoffice address and voting precinct are correctly 
written after my name. 

Name Residence 

Postoffice address 

If in city, street and number 

Voting Precinct 

(Here follow numbered lines for signatures.) 

107. Form for petition for initiative. — The following shall be 
substantially the form of petition for any law of the State of 
Montana proposed by the initiative : — 

WARNING 

Any person signing any name other than his own to this peti- 
tion or signing the same more than once for the same measure at 
one Election, or who is not, at the time of signing the same, a legal 
voter of this State, is punishable by a fine not exceeding Five 
Hundred Dollars ($500.00) or imprisonment in the penitentiary 
not exceeding two years or by both such fine and imprisonment. 

PETITION FOR INITIATIVE 

To the Honorable , Secretary of State of the 

State of Montana : — 

We, the undersigned legal voters of the State of Montana, 
respectfully demand that the following proposed law shall be 
submitted to the legal electors of the State of Montana, for their 
approval or rejection, at the regular general or special election 

to be held on the day of , 190. ., and each for 

himself says : — 

I have personally signed this petition, and my residence, post- 
office address, and voting precinct are correctly written after 
my name. 

Name Residence 

Postoffice address 

If in city, street and number 

Voting Precinct 

(Numbered lines for names on each sheet.) 



The Initiative and Referendum 131 

Every such sheet for petitioner's signature shall be attached 
to a full and correct copy of the title and text of the measure so 
proposed by initiative petition ; but such petition may be filed 
with the Secretary of State in numbered sections, for convenience 
in handling, and referendum petitions may be filed in Sections 
in like manner. 

108. Clerk to verify signatures to petitions. — The County 
Clerk of each county in which any such petition shall be signed 
shall compare the signatures of the electors signing the same with 
their signatures on the registration books and blanks on file in 
his office, for the preceding general election, and shall thereupon 
attach to the sheets of said petition containing such signatures, 
his certificate to the Secretary of State, substantially as follows : 

State of Montana, ) 
County of ) 

To the Honorable , Secretary of State for Mon- 
tana : — 

I, , County Clerk of the County of 

hereby certify that I have compared the signatures on (number of 
sheets) of the referendum (initiative) petition, attached hereto, 
with the signatures of said electors as they appear on the regis- 
tration books and blanks in my office; and I believe that the 
signatures of (names of signers) numbering (number of genuine 
signatures) are genuine. As to the remainder of the signatures 
thereon, I believe that they are not genuine, for the reason that 
and I further certify that the fol- 
lowing names ( ) do not appear on the registration 

books and blanks in my office. 

Signed 

County Clerk. 

(Seal of Office) By 

Deputy 

Every such certificate shall be prima facie evidence of the facts 
stated therein, and of the qualifications of the electors whose 



132 State- wide Initiative, Referendum, and Recall 

signatures are thus certified to be genuine, and the Secretary of 
State shall consider and count only such signatures on such peti- 
tions as shall be so certified by said county clerks to be genuine ; 
Provided, that the Secretary of State may consider and count 
such of the remaining signatures as may be proved to be genuine, 
and that the parties so signing were legally qualified to sign such 
petitions, and the official certificate of a Notary Public of the 
County in which the signer resides shall be required as to the 
fact for each of such last named signatures ; and the Secretary of 
State shall further compare and verify the official signatures and 
seals of all notaries so certifying with their signatures and seals 
filed in his office. Such notaries' certificates shall be substan- 
tially in the following form : — 



State of Montana, 

v ss. 



County of I 

I, , a duly qualified and acting Notary Public 

in and for the above named county and state, do hereby certify : 
that I am personally acquainted with each of the following named 
electors whose signatures are affixed to the annexed petition, and 
I know of my own knowledge that they are legal voters of the 
State of Montana, and of the county and precincts written after 
their several names in the annexed petition, and that their resi- 
dence and postoffice address is correctly stated therein, to-wit : 
(Names of such electors.) 

In Testimony Whereof I have hereunto set my hand and Offi- 
cial Seal this day of , 190 . . . 



Notary Public, in and for 

County, State of Montana. 



The County Clerk shall not retain in his possession any such 
petition, or any part thereof, for a longer period than two days 
for the first two hundred signatures thereon, and one additional 
day for each two hundred additional signatures, or fraction thereof, 
on the sheets presented to him, and at the expiration of such time 



The Initiative and Referendum 133 

he shall forward the same to the Secretary of State, with his 
certificate attached thereto, as above provided. The forms herein 
given are not mandatory, and if substantially followed in any 
petition, it shall be sufficient, disregarding clerical and merely 
technical errors. 

109. Notice to Governor and proclamation. — Immediately 
upon the filing of any such petition for the referendum or the 
initiative with the Secretary of State, signed by the number of 
voters and filed within the time required by the Constitution, he 
shall notify the Governor in writing of the filing of such petition, 
and the Governor shall forthwith issue his proclamation, an- 
nouncing that such petition has been filed, with a brief statement 
of its tenor and effect. Said proclamation shall be published four 
times for four consecutive weeks in one daily or weekly paper 
in each county of the State of Montana. 

no. Secretary of State to certify measures to be voted on. 
Printing ballots. — The Secretary of State, at the same time 
that he furnishes to the County Clerks of the several counties 
certified copies of the names of the candidates for state and county 
offices, shall furnish to said county clerks his certified copy of the 
titles and numbers of the various measures to be voted upon at the 
ensuing general or special election, and he shall use for each meas- 
ure, a title designated for that purpose by the Legislative As- 
sembly, Committee, or organization presenting and filing with 
him the act, or petition for the initiative or the referendum or 
in the petition or Act ; provided, that such title shall in no case 
exceed 100 words, and shall not resemble any such title previously 
filed for any measure to be submitted at that election, which shall 
be descriptive of said measure, and he shall number such meas- 
ures ; and such title shall be printed on a separate official ballot 
in the order in which the Acts referred by the Legislative Assem- 
bly and petitions by the people shall be filed in his office. The 
affirmative of the first measure shall be numbered 300 and the 
negative 301, in numerals, and the succeeding measures shall be 
numbered consecutively 302, 303, 304, 305, and so on at each 



134 State-wide Initiative, Referendum, and Recall 

election. It shall be the duty of the several county clerks to 
print said titles and numbers upon a separate official ballot, in the 
order presented to them by the Secretary of State, and the rela- 
tive position required by law. Measures proposed by the ini- 
tiative shall be designated and distinguished from measures pro- 
posed by the Legislative Assembly by the heading "Proposed 
Petition for Initiative." 

in. Manner of voting. — The manner of voting measures 
submitted to the people shall be : By marking his ballot with a 
cross on diagram opposite and to the left of the proposition for 
which he desires to vote. 



□ 

□ 

□ 
□ 



For the Initiative Measure No. . . 
Against Referendum Measure No, 
For Referendum Measure No 



Against Initiative Measure No. 



112. Printing and distribution of measures to be voted on. — 
The Secretary of State shall, not later than the first Monday of 
the third month next before any general or special election, at 
which any proposed law is to be submitted to the people, cause 
to be printed a true copy of the title and text of each measure 
to be submitted, with the number and form in which the question 
will be printed on a separate official ballot. The paper to 
be used for the covers of such pamphlets shall be twenty 
by twenty-five inches, and fifty pounds weight to the ream. 
The persons, committees, or duly authorized officers of any 
organization filing any petition for the initiative, but no other 
person or organization, shall have the right to place with the 
Secretary of State for distribution, any pamphlets advocating 
such measure, not later than the first Monday of the fifth month 



The Initiative and Referendum 135 

before the regular general or special election at which the 
measure is to be voted on ; any person, committee or organiza- 
tion opposing any measure may place with the Secretary of 
State for distribution any pamphlets they may desire, not 
later than the first Monday of the fourth month immediately 
preceding such election ; as to pamphlets advocating or opposing 
any measure referred to the people by the Legislative Assembly, 
they shall be governed by the same rules of time, but they may be 
placed with the Secretary of State by any person, committee or 
organization; Provided, that all such pamphlets shall be fur- 
nished to the Secretary of State in sheets of uniform size, as fol- 
lows : Size of pamphlet page to be six inches wide by nine inches 
long ; size of type page to be twenty-six ems pica wide, by forty 
ems pica long, set in long primer of ten-point type, and printed 
on sized and supercalendered paper, twenty-five by thirty-eight 
inches, weighing fifty pounds to the ream. All such pamphlets 
shall be furnished to the Secretary of State at the sole expense 
of the persons interested, and without cost to the State. In no 
case shall the Secretary of State be obliged to receive any such 
pamphlets unless a sufficient number is furnished to supply one 
to every legal voter in the State, but in such case, he shall forth- 
with notify the persons offering the same of the number required. 
The Secretary of State shall cause one copy of each of said pam- 
phlets to be bound in with his copy of the measures to be sub- 
mitted as herein provided. The title page of every such pam- 
phlet shall show the official numbers for and against, and the ballot 
title of the measure to which it refers, and whether it is intended 
to favor or oppose such measure and by whom it is issued. The 
Secretary of State shall distribute to each County Clerk, before 
the second Monday in the third month next preceding such 
regular general election, a sufficient number of said bound 
pamphlets to furnish one copy to every voter in his county. 
And each county clerk shall be required to mail to each registered 
voter in each of the several counties in the State at least one copy 
of the same, within thirty days from the date of his receipt of the 



136 State-wide Initiative, Referendum, and Recall 

same from the Secretary of State. The mailing of said bound 
pamphlets shall be a part of the official duty of the County Clerk 
of each of the several counties and his official compensation shall 
be full compensation for this additional service. The Secretary 
of State shall not be obliged to receive or distribute any pam- 
phlets advocating or opposing any measure unless the same shall 
be filed with him within the time herein provided. 

113. Canvass of votes. — The votes on measures and ques- 
tions shall be counted, canvassed, and returned by the regular 
boards of judges, clerks, and officers as votes for candidates are 
counted, canvassed, and returned, and the abstract made by the 
several county clerks of votes on measures shall be returned to 
the Secretary of State on separate abstract sheets in the manner 
provided by Sections 598 (1440) and 599 (1441), of the Political 
Code for abstracts of votes for State officers. It shall be the 
duty of the State Board of Canvassers to proceed within thirty 
days after the election, and sooner if the returns be all received, 
to canvass the votes given for each measure, and the Governor 
shall forthwith issue his proclamation, which shall be published 
in two daily newspapers printed at the capital, giving the whole 
number of votes cast in the State for and against each measure 
and question, and declaring such measures as are approved by a 
majority of those voting thereon to be in full force and effect as 
the law of the State of Montana, from the date of said proclama- 
tion designating such measures by their titles. 

114. Who may petition. False signature. Penalties. — 
Every person who is a qualified elector of the State of Montana 
may sign a petition for the referendum or for the initiative. 
Any person signing any name other than his own to such petition 
or signing the same more than once for the same measure at one 
election, or who is not at the time of signing the same a legal 
voter of this state, or any officer or any person wilfully violating 
any provision of this statute, shall, upon conviction thereof, be 
punished by a fine not exceeding Five Hundred Dollars ($500.00) 
or by imprisonment in the penitentiary not exceeding two years, 



The Initiative and Referendum 137 

or by both such fine and imprisonment in the discretion of the 
court before which such conviction shall be had. 

115. Referred bills not effective until approved. — A Bill 
passed by the Legislative Assembly and referred to popular 
vote at the next general election, or at a special election, shall 
not be in effect until it is approved at such general or special 
election by a majority of those voting for and against it. 

VI. Oklahoma 

[The Oklahoma constitution was ratified September 17, 1907; 
the open vote was, 180,333 f° r > 73>°59 against. By proclama- 
tion of President Roosevelt, Oklahoma was admitted to the 
Union, November 16, 1907.] 

Constitutional Provisions Relative to the Initiative and Referendum. 1 

Section i. The Legislative authority of the State shall be 
vested in a Legislature, consisting of a Senate and a House of 
Representatives; but the people reserve to themselves the 
power to propose laws and amendments to the Constitution and 
to enact or reject the same at the polls independent of the Legis- 
lature, and also reserve power at their own option to approve or 
reject at the polls any act of the Legislature. 

Sec. 2. The first power reserved by the people is the initiative, 
and eight per centum of the legal voters shall have the right to 
propose any legislative measure, and fifteen per centum of the 
legal voters shall have the right to propose amendments to the 
Constitution by petition, and every such petition shall include 
the full text of the measure so proposed. The second power is the 
referendum, and it may be ordered (except as to laws necessary 
for the immediate preservation of the public peace, health, or 
safety), either by petition signed by five per centum of the legal 
voters or by the Legislature as other bills are enacted. The ratio 

1 Thorpe, American Charters, Constitutions, and Organic Laws, Vol. VII, 
pp. 4278 ff. 



138 State-wide Initiative, Referendum, and Recall 

and per centum of legal voters hereinbefore stated shall be based 
upon the total number of votes cast at the last general election 
for the State office receiving the highest number of votes at such 
election. 

Sec. 3. Referendum petitions shall be filed with the Secretary 
of State not more than ninety days after the final adjournment 
of the session of the Legislature which passed the bill on which 
the referendum is demanded. The veto power of the Governor 
shall not extend to measures voted on by the people. All elec- 
tions on measures referred to the people of the State shall be 
had at the next election held throughout the State, except when 
the Legislature or the Governor shall order a special election 
for the express purpose of making such reference. Any measure 
referred to the people shall take effect and be in force when it shall 
have been approved by a majority of the votes cast thereon and 
not otherwise. 

The style of all bills shall be : "Be it Enacted By the People of 
the State of Oklahoma." 

Petitions and orders for the initiative and for the referendum 
shall be filed with the Secretary of State and addressed to the 
Governor of the State, who shall submit the same to the people. 
The Legislature shall make suitable provisions for carrying into 
effect the provisions of this article ; and, if the Legislature shall 
fail to make such provisions, or shall make inadequate provisions, 
then the Governor of the State shall, by executive order, make 
such rules as may be necessary to carry these provisions into 
effect. 

Sec. 4. The referendum may be demanded by the people 
against one or more items, sections, or parts of any act of the 
Legislature in the same manner in which such power may be 
exercised against a complete act. The filing of a referendum 
petition against one or more items, sections, or parts of an act 
shall not delay the remainder of such act from becoming operative. 

Sec. 5. The powers of the initiative and referendum reserved 
to the people by this Constitution for the State at large, are 



The Initiative and Referendum 139 

hereby further reserved to the legal voters of every county and 
district therein, as to all local and special legislation and action 
in the administration of county and district government in and 
for their respective counties and districts. 

The manner of exercising said powers shall be prescribed by 
general laws, except that Boards of County Commissioners may 
provide for the time of exercising the initiative and referendum 
powers as to local legislation in their respective counties and 



NOTE. 

Lines thirteen to sixteen on page 138 should read "Any 
measure referred to the people by the initiative 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 
referred to the people by the referendum shall take effect and 
be in force when it shall have been approved by a majority of 
the votes cast thereon and not otherwise." 



ui luc uiiueu oiaies. 

Sec. 8. Laws shall be provided to prevent corruption in 
making, procuring, and submitting initiative and referendum 
petitions. 

Elaborating Acts 

[April 16, 1908 the legislature proceeded to enact the details 
of the system. The Supreme Court 1 decided that the initiative 
and referendum powers in the state constitution were not self- 
executing until such legislation was passed. The bill of 1908 
extended the initiative and referendum to municipalities. Por- 
tions of it have been repealed by the legislatures of 1909, 1910, and 

1 Ex parte Wagner, 21 Okla. 33 : 95 Pac. 435, below, p. 330. 



138 State-wide Initiative, Referendum, and Recall 

and per centum of legal voters hereinbefore stated shall be based 
upon the total number of votes cast at the last general election 
for the State office receiving the highest number of votes at such 
election. 

Sec. 3. Referendum petitions shall be filed with the Secretary 
of State not more than ninety days after the final adjournment 
of the session of the Legislature which passed the bill on which 
the referendum is demanded. The veto power of the Governor 



~~~~k „x^ ^v/viowua kjl Luis cuuL.ie; unci, 11 tne .Legislature snail 
fail to make such provisions, or shall make inadequate provisions, 
then the Governor of the State shall, by executive order, make 
such rules as may be necessary to carry these provisions into 
effect. 

Sec. 4. The referendum may be demanded by the people 
against one or more items, sections, or parts of any act of the 
Legislature in the same manner in which such power may be 
exercised against a complete act. The filing of a referendum 
petition against one or more items, sections, or parts of an act 
shall not delay the remainder of such act from becoming operative. 

Sec. 5. The powers of the initiative and referendum reserved 
to the people by this Constitution for the State at large, are 






The Initiative and Referendum 139 

hereby further reserved to the legal voters of every county and 
district therein, as to all local and special legislation and action 
in the administration of county and district government in and 
for their respective counties and districts. 

The manner of exercising said powers shall be prescribed by 
general laws, except that Boards of County Commissioners may 
provide for the time of exercising the initiative and referendum 
powers as to local legislation in their respective counties and 
districts. 

The requisite number of petitioners for the invocation of the 
initiative and referendum in counties and districts shall bear 
twice, or double, the ratio to the whole number of legal voters 
in such county or district, as herein provided therefor in the State 
at large. 

Sec. 6. Any measure rejected by the people, through the 
powers of the initiative and referendum, cannot be again proposed 
by the initiative within three years thereafter by less than twenty- 
five per centum of the legal voters. 

Sec. 7. The reservation of the powers of the initiative and 
referendum in this article shall not deprive the Legislature of 
the right to propose or pass any measure, which may be con- 
sistent with the Constitution of the State and the Constitution 
of the United States. 

Sec. 8. Laws shall be provided to prevent corruption in 
making, procuring, and submitting initiative and referendum 
petitions. 

Elaborating Acts 

[April 16, 1908 the legislature proceeded to enact the details 
of the system. The Supreme Court 1 decided that the initiative 
and referendum powers in the state constitution were not self- 
executing until such legislation was passed. The bill of 1908 
extended the initiative and referendum to municipalities. Por- 
tions of it have been repealed by the legislatures of 1909, 19 10, and 

1 Ex parte Wagner, 21 Okla. 33 : 95 Pac. 435, below, p. 330. 



140 State- wide Initiative, Referendum, and Recall 

191 1. The entire elaborating bill and the successive partial 
changes follow.] 

Elaborating Act — 1908 

AN ACT 1 

To Provide for Carrying into Effect the Initiative and Referendum 
Powers Reserved by the People in Articles Five and Eighteen of 
the Constitution of the State of Oklahoma; to Regulate Elections 
Thereunder and to Punish Violations of This Act. 
Be it Enacted by the People of the State of Oklahoma : — 

SECTION I. (REFERENDUM PETITION) 

The Referendum petition shall be substantially as follows : — 

PETITION FOR REFERENDUM 

To the Honorable , Governor of Oklahoma or 

(To the Honorable , Mayor, Chairman of County 

Commissioners, or other chief executive officer as the case may 
be, of the city, county or other municipal corporation, of ) : 

We, the undersigned citizens and legal voters of the State of 

Oklahoma (or district of , county of 

or city of as the case may be) respectfully 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 legislature of the State of Okla- 
homa, at the regular or (special) session of said legislature, 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, or special elec- 
tion to be held on the day of , a.d. 

19 . . , and each for himself says : I have personally signed this 

1 Oklahoma Session Laws 1907-1908, pp. 440 ff. 



The Initiative and Referendum 141 

petition ; I am a legal voter of the State of Oklahoma (district 

of , county of , city of , 

as the case may be) my residence and postoffice are correctly 
written after my name. 

Referendum petitions shall be filed with the Secretary of 
State not more than ninety days after the final adjournment of 
the session of the Legislature which passed the bill on which the 
referendum is demanded. (This for State referendum. For 
county, city or other municipality the length of time shall be 
three months.) 

The question we herewith submit to our fellow voters is : Shall 
the following bill of the Legislature be vetoed ? 
Name Residence Postoffice 

If in city, street and number. 

(Here follow twenty numbered fines for signatures.) 

SECTION 2. (INITIATIVE PETITION) 

The form of Initiative Petition shall be substantially as fol- 
lows : — 

INITIATIVE PETITION 

To the Honorable , Governor of Oklahoma, or 

(To the Honorable Mayor, Chairman of County 

Commissioners, or other chief executive officer, as the case may 
be, for the city, county or other municipality) : We the under- 
signed citizens and legal voters of the State of Oklahoma (and 

of the district of , county of , or city 

of , as the case may be), respectfully order that the 

following proposed law, or (amendment to the constitution, 
ordinance or amendment to the City Charter, as the case may 
be), shall be submitted to the legal voters of the State of Okla- 
homa, district of , county of , or city 

of , as the case may be), for their approval or re- 
jection at the regular general election or (regular or special city 



142 State-wide Initiative, Referendum, and Recall 

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 Oklahoma (and of the 

district of , county of , city of , 

as the case may be) ; my residence and postoffice are correctly 
written after my name. The time for filing this petition expires 
nine months from (insert date when petition is to be opened for 
signatures) . (This for state Initiative. For county, city or other 
municipality, the length of time shall be three months.) The 
question we herewith submit to our fellow voters is : Shall the 
following bill (or proposed amendment to the constitution or 
resolution) be adopted. 

(Insert here an exact copy of the title and text of the measure.) 
Name Residence Postoffice 

If in city, street and number. 

(Here follow twenty numbered lines for signatures.) 

SECTION 3. (PAMPHLETS) 

Each Initiative Petition and each Referendum Petition shall 
be duplicated for the securing of signatures, and each sheet for 
signatures shall be attached to a copy of the petition. Each 
copy of the petition and sheets for signatures is hereinafter 
termed a pamphlet. On the outer page of each pamphlet shall 
be printed the word "Warning," and underneath this in ten point 
type, the words : "It is a felony for any one to sign an initiative 
or referendum petition with any name other than his own, or 
knowingly to sign his name more than once for the measure, or to 
sign such petitions when he is not a legal voter." Not more than 
twenty signatures on one sheet shall be counted. When any 
such initiative or referendum petition shall be offered for filing, 
the Secretary of State in the presence of the Governor and the 
person offering the same for filing shall detach the sheets con- 
taining the signatures and affidavits and cause them all to be 
attached to one or more printed copies of the measure so proposed 



The Initiative and Referendum 143 

by initiative or referendum petition ; provided, all petitions for 
the initiative and referendum and sheets for signatures shall be 
printed on pages seven inches in width, by ten inches in length, 
with a margin of one and three-fourths inches at the top for bind- 
ing; if the aforesaid sheets shall be too bulky for convenient 
binding in one volume they may be bound in two or more volumes, 
those in each volume to be attached to a single printed copy of 
such measure; the detached copies of such measures shall be 
delivered to the person offering the same for filing. If any 
measure shall, at the ensuing election, be approved by the people, 
then the copies so preserved, with the sheets of signatures and 
affidavits, and a certified copy of the Governor's proclamation 
declaring the same to have been approved by the people, shall be 
bound together in such form that they may be conveniently iden- 
tified and preserved. The Secretary of State shall cause every 
such measure approved by the people to be printed with the 
general laws enacted at the next ensuing session of the Legislature 
with the date of the Governor's proclamation declaring the same 
to have been approved by the people. 

SECTION 4. (VERIFICATION OF SIGNATURES) 

Each and every sheet of every such petition containing signa- 
tures shall be verified on the back thereof, in substantially the 
following form, by the person who circulated said sheet of said 
petition, by his or her affidavit thereon and as a part thereof : — 



State of Oklahoma, , 

1 ss. 



1a, J 

County of , J 

I, , being first duly sworn, say : (Here shall be 

legibly written or typewritten the names of the signers of the 
sheet) signed this sheet of the foregoing petition and each of them 
signed his name in my presence ; I believe that each has stated 
his name, postoffice address and residence correctly, and that 
each signer is a legal voter of the State of Oklahoma, and County 
of , or of the city of , (as the case may 



144 State-wide Initiative, Referendum, and Recall 

be) Signature and postoffice address of affiant. Subscribed 

and sworn to before me this day of a.d. 

19. . (Signature and title of the officer before whom the oath is 
made, and his postoffice address.) 

SECTION 5. (FILING AND NUMBERING PETITIONS) 

Each order for a direct ballot by the voters that is filed with the 
Secretary of State by initiative petition, referendum petition and 
by the Legislature, shall be numbered consecutively, each in a 
series by itself, beginning with one, to be continued year after 
year, without duplication of numbers. 

SECTION 6. (SUFFICIENCY OF PETITION. RIGHT OF APPEAL. 
SPEEDY TRIAL ASSURED) 

Whenever an initiative petition or referendum petition shall be 
filed with the Secretary of State, he shall at once proceed to 
examine into its sufficiency. If any one desires to appear for or 
against it he shall receive testimony and arguments. Whenever 
such petition applies to a measure upon which the initiative or 
the referendum is invoked for the State at large, his decision may 
be appealed from to the Supreme Court of the State, and the 
case shall have precedence over all others. If the court is 
adjourned it shall be immediately convened. In all other cases 
said appeal shall be to the District Court of any county in which 
a petition was circulated, and said District Court may hear and 
determine same in term time or vacation. The appellants shall 
serve upon the Secretary of State written notice of appeal, and 
said Secretary shall thereupon transmit to the clerk of the court 
such of the original papers and documents in the case as may be 
specified, by the appellant or appellee. In case the court shall 
decide the petition is insufficient, it shall state in what respect it 
is insufficient and return the petition to the committee of peti- 
tioners for correction, which corrections may be made, and the 
petition returned to the Secretary of State, within five days, and 



The Initiative and Referendum 145 

when so corrected and returned the petition shall be considered 
filed as of the date that the original petition was presented for 
filing. No objection to the sufficiency of any petition shall be 
considered unless the same shall have been made in writing, and 
filed within five days after the filing of the petition. 1 

SECTION 7. (TITLE OF MEASURE) 

When any measure shall be filed with the Secretary of State to 
be referred to the people of the State,, or of any county or district 
composed of one or more counties, either by the Legislature or 
by the referendum petition, and when any measure shall be pro- 
posed by initiative petition, the Secretary of State shall forthwith 
transmit to the Attorney General of the State a copy thereof, and 
within ten days thereafter the Attorney General shall provide 
and return to the Secretary of State a ballot title for said measure. 
The ballot title may be distinct from the legislative title of the 
measure and shall express in not exceeding one hundred words, 
the purpose of the measure. The ballot title shall be printed 
with the number of the measure, on the official ballot. In making 
such ballot title the Attorney General shall to the best of his 
ability, give a true and impartial statement of the purpose of the 
measure, and in such language that the ballot title shall not be 
intentionally an argument, or likely to create prejudice, either for 
or against the measure. Any person who is dissatisfied with the 
ballot title provided by the Attorney General for any measure 
may appeal from his decision to the Supreme or other court as 
provided by Section Six of this Act, by petition, praying for a 
different title and setting forth the reason why the title prepared 
by the Attorney General is insufficient or unfair. No appeal 
shall be allowed from the decision of the Attorney General on a 
ballot title, unless the same be taken within five days after said 
decision is filed. A copy of every such decision shall be served 
by the Secretary of State or the Clerk of the Court upon the 

1 Amended in 1910 and 1911. See below, p. 154 and p. 161. 
L 



146 State-wide Initiative, Referendum, and Recall 

person offering or filing such initiative or referendum petition or 
appeal. Service of such decision may be by mail or telegraph, 
and shall be made forthwith. The court shall thereupon exam- 
ine said measure, hear arguments and in its decision thereon cer- 
tify to the Secretary of State a ballot title for such measure in 
accord with the intent of this section. The decision of the court 
shall be final. The Secretary of State shall print on the official 
ballot the title thus certified to him. 1 

SECTION 8. (PROCLAMATION BY GOVERNOR) 

Whenever a petition is accepted and its title has been decided 
upon the Secretary of State shall, in writing, notify the Gov- 
ernor, who forthwith shall issue a proclamation setting forth the 
substance of the measure and the date of the referendum vote. 

section 9. (publication of text of measure. copies for 
distribution) 

The Secretary of State shall submit to the State, or public 
printer, a copy of the title and text of each measure presented 
by initiative petition, referendum petition, and by the Legisla- 
ture. Printed copies shall be supplied the document rooms, from 
time to time, and the chief of each shall supply copies to appli- 
cants and in such quantities as demanded, provided reasonable 
assurance is given that they will be placed singly in the hands of 
the people. 

SECTION IO. (PUBLICATION OF OFFICIAL BALLOT. DISTRIBUTION 

OF COPIES) 

At as early a day as is practicable the Secretary of State shall 
transmit to the State, or public printer, copy for the official 
referendum ballot, indicating the styles of type. The sample 
ballot shall be of colored paper, and there shall be placed at the 

1 For Amendment of 1910, see below, p. 154. 






The Initiative and Referendum 147 

head in bold type the words "State Question" (or Questions) 
and the following: "Official Referendum Ballot to be used 
(date) issued by order of the Legislature." The questions shall 
be printed in the order they were filed with the Secretary of 
State except that each competing measure which the Legislature 
may desire to submit shall immediately follow the one it aims 
to supplant. Measures proposed by initiative petition shall be 

designated "Proposed by Initiative Petition Number ; " 

measures proposed by referendum petition shall be designated 

" Proposed by Referendum Petition Number ;" 

(and each competing measure proposed by the Legislature in 
place of an initiative petition shall be headed "Proposed by the 

Legislature in place of Initiative Petition Number ") 

Where the Legislature submits a competing question a brief 
catch-line shall be placed over both and below both shall be 

placed the words "I Vote for Initiative Petition Number ; " 

"I vote for the measure proposed by the Legislature in place of 

Initiative Petition Number ; " "I vote against 

both. ..." Second choice as to measure may be made. 

Where a question is submitted without a competing one there 
shall be placed over it a brief catch-line, and at the close of the 
question there shall be added, "Shall it be adopted ?" 

Yes. No. 

Or shall it be repealed. 

Yes. No. 

The voters shall be directed to express their will by placing a 
cross (X) in the square and to the right of the word expressing their 
choice. There shall be a provision for second choice. 

SECTION II. (PREPARATION OF ARGUMENTS) 

Arguments shall be prepared for and against each measure to 
be submitted to a direct vote of the people of the state, the length 



148 State-wide Initiative, Referendum, and Recall 

of the arguments not to exceed two thousand words for each side, 
and which one-fourth may be in answer to opponents' arguments. 
For one side the arguments shall be prepared by a joint committee 
of the House and Senate, and for the other by a committee repre- 
senting the petitioners. Where the Legislature submits a com- 
peting bill the argument against it shall be prepared by the com- 
mittee that prepared the affirmative of the opposing bill. Where 
the Legislature submits any other question the argument for the 
negative shall be prepared by a committee representing the mem- 
bers in the Legislature who voted against the substance of the 
measure. 

SECTION 12. (TIME FOR PREPARING ARGUMENTS) 

The first part of each argument shall be completed not later 
than two weeks after the Governor's announcement of the sub- 
mission of the measure. Twenty-five copies shall be filed with 
the Secretary of State, who shall at once deliver twenty-three 
copies to the chairman of the opposing committee. Each com- 
mittee shall file its answer within two weeks. Provided, how- 
ever, that in no case. shall the time be so great as to bring the 
completion of the arguments nearer than one hundred days before 
any regular election nor later than forty days before any special 
election at which the measure is to be voted upon. Where the 
time for preparing the arguments is less than four weeks the time 
shall be divided equally between the two parts. 

SECTION 13. (PRINTING AND DISTRIBUTION OF TEXT OF MEAS- 
URES, SAMPLE OF BALLOTS AND ARGUMENTS) 

Before the mandatory primary election held prior to each 
general election held throughout the State, at which any proposed 
law, part of an act, or amendment to the Constitution is to be 
submitted to the people, the Secretary of State shall forward or 
cause to be forwarded, to the County Clerk of each county in this 
State, a sufficient number of the pamphlets hereinafter described, 



The Initiative and Referendum 149 

with which to supply each and every voter of his county and an 
additional number equal to ten per centum of such number of 
votes ; and, at the time of furnishing the primary election sup- 
plies, said county clerk shall furnish each election inspector his 
quota for each precinct wherein a primary election is to be held, 
a sufficient number of copies of the text of each measure to be 
submitted to popular vote; also a copy of the arguments for 
and against such measures, and a copy of the official ballot, 
bound together in a single pamphlet with a table of contents. 
The pages shall be numbered consecutively, the title page of 
every measure bound in the pamphlet shall show its ballot title 
and ballot number. The title page of each argument shall indi- 
cate the measure it favors or opposes, the names of the com- 
mittee, and whom they represent ; and it shall be the duty of 
said inspector to furnish to each and every voter on said primary 
election day a copy of the same. All copies of said pamphlets 
remaining after said primary election, shall be preserved by said 
inspector and be by him distributed to electors, unsupplied with 
such pamphlets. Provided, however, when the Legislature or 
the Governor shall order a special election for the express pur- 
pose of making such reference, the Secretary of State shall, not 
later than forty days before any such special election, forward 
such pamphlets to the county clerk of each county, who shall 
in like manner immediately distribute them to the election in- 
spectors for the election precincts of his county, and said inspector 
shall, within five days, convoke, hold or cause to be held, a public 
meeting of the electors of his district and distribute, or cause to 
be distributed, such pamphlets to the assembled voters; and 
use all other diligent means of distributing them to all the voters 
of such election precinct. 

SECTION 14. (PUBLICATION OF BALLOTS BY COUNTY CLERKS) 

The Secretary of State at the time he furnishes to the county 
clerks of the several counties certified copies of the names of the 



150 State-wide Initiative, Referendum, and Recall 

candidates for State and district offices, shall furnish to each of 
said county clerks a certified copy of the referendum ballot. It 
shall be the duty of the several county clerks to print said ballot 
titles and numbers upon the official ballot in the order presented 
to them by the Secretary of State and in the relative position 
required by law. 

SECTION 15. (RESUBMISSION-CONFLICTING PROGRAMS) 

Where there are competing measures and neither receive a 
majority of the votes cast for and against, the one receiving the 
greatest number of votes shall, if it has received more than one- 
third of the votes cast for and against both bills, be submitted by 
itself at the next general election. If two or more conflicting 
laws shall be approved by the people at the same election, the 
law receiving the greatest number of affirmative votes shall be 
paramount in all particulars as to which there is a conflict, even 
though such law may not have received the greatest majority 
of affirmative votes. If two or more conflicting amendments to 
the Constitution shall be approved by the people at the same elec- 
tion, the amendment which receives the greatest number of 
affirmative votes shall be paramount in all particulars as to which 
there is a conflict, even though such amendment may not have 
received the greatest majority of affirmative votes. 

SECTION 16. (CANVASS AND RETURN OF VOTES) 

The votes on measures and questions shall be counted, canvassed 
and returned by the regular board of judges, clerks and officers, as 
votes for candidates are counted, canvassed and returned, and 
the abstract made by the several county clerks of votes on meas- 
ures shall be returned to the Secretary of State on separate 
abstract sheets, in the manner provided for abstract of votes for 
State and county officers. It shall be the duty of the Secretary 
of State, in the presence of the Governor to proceed within thirty 
days after the election, and sooner if the returns be all received, 
to canvass the votes given for each measure ; and the Governor 






The Initiative and Referendum 151 

shall forthwith issue his proclamation giving the whole number 
of votes cast in the State for and against each measure and ques- 
tion, and declaring such measures as are approved such majority 
of those voting thereon as required by the Constitution to be in 
full force and effect as the law of the State of Oklahoma from the 
date of said proclamation, provided, that if two or more measures 
shall be approved at said election which are known to conflict 
with each other, or to contain conflicting provisions he shall also 
proclaim that which is paramount in accordance with the pro- 
visions of Section Fifteen of this Act. 1 

SECTION 17. (PROCEDURE IN MUNICIPALITIES) 

In all cities, counties and other municipalities which do not 
provide by ordinance or charter for the manner of exercising the 
initiative and referendum powers reserved by the Constitution 
to the whole people thereof, as to their municipal legislation, the 
duties required by the Governor and Secretary of State, by this 
Act, as to state legislation, shall be performed as to such munici- 
pal legislation by the chief executive and the chief clerk ; and 
the duties required by this Act of the Attorney- General shall be 
performed by the attorney for the county, district, or other 
municipality. The provisions of this act including those relat- 
ing to preparation of arguments shall apply to every city and 
town in all matters concerning the operation of the initiative and 
referendum in its municipal legislation, on which such city or 
town has not made or does not make conflicting provisions. 
The printing and binding of measures and their distribution shall 
be paid for by the city in like manner as payment is provided for 
by the state as to state legislation by this Act, except that de- 

1 Be it Enacted by the People of the State of Oklahoma : Section I, 
Whenever any measure shall be initiated by the people in the manner pro- 
vided by law, or whenever the referendum shall be demanded against any 
measure passed by the Legislature, the Governor shall have the power, in his 
discretion, to call a special election to vote upon such question. Approved 
March 11, 1909. Session Laws oj Oklahoma, 1909, p. 270. 



152 State-wide Initiative, Referendum, and Recall 

livery shall not be less than eight days before the election at 
which the measures are to be voted upon. The arguments 
shall be completed not less than twelve days before the election 
at which they are to be voted upon. It is intended to make the 
procedure in municipal legislation as nearly as practicable, the 
same as the initiative and referendum procedure for measures 
relating to people of the state at large. 

SECTION 18. (MUNICIPALITIES TO FOLLOW PROCEDURE FOR STATE) 

The signatures to each referendum petition against any ordi- 
nance, or resolution, passed by a municipal legislative body shall 
be verified in the manner provided in section four of this Act. The 
petition shall be filed with the chief executive officer within thirty 
days after the passage of such ordinance or resolution. No ordi- 
nance or resolution of a municipal legislature shall become opera- 
tive until thirty days after its passage and approval by the 
executive officer, unless the same shall be passed over his veto 
and in that case it shall not take effect and become operative until 
thirty days after such final passage except such measures neces- 
sary for the immediate preservation of peace, health, or safety ; 
and no such emergency measure shall become immediately opera- 
tive, unless it shall state, in a separate section, the reasons why it 
is necessary that it shall become immediately operative, and the 
question of emergency shall be ruled upon separately and be 
approved by the affirmative vote of three-fourths of all the 
members elected to the city council taken by ayes and noes, and 
the whole measure be approved by the executive officer. 

SECTION 19. (MUNICIPAL LEGISLATIVE BODY MAY SUBMIT 
COMPETING MEASURE) 

Each measure proposed within a municipality by initiative 
petition and referendum petition shall be filed with the chief clerk 
of the municipality. Along with each initiative measure the 
municipal legislature may submit a competing bill or resolution. 



The Initiative and Referendum 153 

If conflicting ordinances or charter amendments shall be sub- 
mitted to the people at the same election, and two or more of 
such conflicting measures shall be approved by the people, then 
the measure which shall have received the greatest number of 
affirmative votes shall be paramount in all particulars as to 
which there is conflict, even though such measure may not have 
received the greatest majority. Amendments to any municipal 
charter may be proposed and submitted to the people by the 
municipal legislature, with or without any initiative peti- 
tion but the same shall be filed with the chief clerk for sub- 
mission not less than sixty days before the election at which they 
are to be voted upon, and no amendment of a municipal charter 
shall be effective until it is approved by a majority of the votes 
cast thereon by the people of the city or town to which it applies. 
The municipal legislature may order a special election to vote 
on a municipal measure. 

SECTION 20. (WHO MAY FILE PETITIONS AND VOTE. PENALTIES) 

Every person who is a qualified elector of the State of Oklahoma 
may sign a petition for the referendum or for the initiative for 
any measure for which he is legally entitled to vote upon. Any 
person signing any name other than his own to any petition, or 
knowingly signing his name more than once for the same measure 
at one election, or who is not at the time of signing the same a 
legal voter of this state, or whoever falsely makes or wilfully 
destroys a petition or any part thereof, or who signs or files any 
certificate or petition, knowing the same or any part thereof to be 
falsely made, or suppresses any certificate or petition or any part 
thereof which has been duly filed or who shall violate any provi- 
sion of this statute, or who shall aid or abet any other person in 
doing any of said acts ; or any officer or any person violating 
any provision of this statute, shall upon conviction thereof be 
punished by a fine of not exceeding five hundred dollars or by 
imprisonment in the penitentiary not exceeding two years, or 



154 State-wide Initiative, Referendum, and Recall 

by both such fine and imprisonment in the discretion of the court 
before which such conviction shall be had. 

SECTION 21. (SUFFICIENCY OF PROCEDURE) 

The procedure herein prescribed is not mandatory, but if 
substantially followed will be sufficient. If the end aimed at 
can be attained and procedure shall be sustained, clerical and 
mere technical errors shall be disregarded. 

That this Act take effect from and after its passage and ap- 
proval. 

Approved April 16th, 1908. 

Partial Change of Procedure, 1910 1 

A BILL ENTITLED 

An Act carrying into effect Provisions relating to the Initiative and 
Referendum ; prescribing the Method of Procedure for Submitting 
and Voting for Proposed Amendments to the Constitution and 
other Propositions, and prescribing the Method of Appeals from 
Petitions Filed or from the Ballot Title; repealing Sections 6, 7 
and 16, Article One, Chapter Forty-four of the Session Laws of 
Oklahoma, 1 907-1 908. 
Be it Enacted by the People of the State of Oklahoma : — 

Section 1. Sections 6 and 7 of article I, chapter 44, Session 
Laws of 1907-1908, are hereby expressly repealed. 

Sec. 2. When a citizen or citizens desire to circulate a petition 
initiating a proposition of any nature, whether to become a 
statute law or an amendment to the constitution, or for the pur- 
pose of invoking a referendum upon legislative enactments, such 
citizen or citizens shall, when such petition is prepared, and before 
the same is circulated or signed by electors, file a true and exact 
copy of same in the office of the Secretary of State, and within 
sixty days after the date of such filing the original petition shall 
be filed in the office of the Secretary of State, and no petition not 
1 See above, p. 146. 



The Initiative and Referendum 155 

filed in accordance with this provision shall be considered. When 
such original petition is filed in said office it shall be the duty of 
the Secretary of State to forthwith cause to be published in at 
least one newspaper of general circulation within the State, a 
notice setting forth the date of such filing. Any citizen of the 
State may, within ten days, by written notice to the Secretary 
of State and to the party or parties who filed such petition, pro- 
test against the same, whereupon the Secretary of State shall 
fix a day, not sooner than five days thereafter, at which he will 
hear testimony and arguments for and against the sufficiency of 
such petition. A protest filed by any one hereunder may, if 
abandoned by the party filing same, be revived within five days 
by any other citizen. After such hearing the Secretary of State 
shall decide whether such petition be in form as required by the 
statutes, and his decision shall be subject to appeal to the Supreme 
Court of the State, and such court shall give such cause precedence 
over all others. Provided, Such appeal must be taken within 
ten days after the decision of the Secretary of State has been 
made. If the court be at the time adjourned, the Chief Justice 
shall immediately convene the same for such hearing. It shall 
be the duty of the appellants to serve notice upon the Secretary 
of State, in writing, of such appeal. Whereupon said Secretary 
of State shall immediately transmit all papers and documents on 
file in his office relating to such petition to such court. If the 
court shall adjudge such petition insufficient the parties respon- 
sible for same shall have the right to correct or amend their peti- 
tion to conform to the opinion of the court, provided said amend- 
ment or change is made within five days. No objection to the 
sufficiency of a petition shall be considered unless the same shall 
have been made and filed as herein provided. 

Sec. 3. When a measure is proposed as a constitutional amend- 
ment by the Legislature, when the referendum is ordered against 
any measure passed by the Legislature, or when any measure is 
proposed by initiative petition, whether as an amendment to 
the constitution or as a statute law., it shall be the duty of the 



156 State-wide Initiative, Referendum, and Recall 

parties submitting such proposition to prepare and file one copy 
of same with the Secretary of State and one copy with the At- 
torney-General of the State, such copies to contain a ballot title 
of not exceeding one hundred words, which shall be a gist of the 
proposition without containing any argument or prejudicial 
statement either for or against such measure. Within three days 
after the filing of such copy and ballot title with the Attorney- 
General, such official shall, in writing, notify the Secretary of 
State as to whether or not such proposed title is in legal form and 
in harmony with the law. Should such title not be in proper form, 
in the opinion of the Attorney-General, it shall be the duty of that 
official to, within said three days, prepare and file a title which 
does conform to the law. Within five days after the receipt of 
the notice of approval by the Attorney-General, or of a revised 
or amended title from such official, the Secretary of State shall 
transmit to the Secretary of the State Election Board an attested 
copy of the pending proposition, including such approved title ; 
Provided, however, that should an appeal be prosecuted within 
the time specified by this act, from such ballot title, then the 
Secretary of State shall certify to said Secretary of the State 
Election Board the title which is finally approved by the court. 
If the measure is such as to require its being printed upon the 
ballots of a district or of the entire State, the State Election Board 
shall have supervision of such printing. If the measure is such 
as must appear upon ballots printed in the several counties of 
the State, or any portion of same, it shall be the duty of the State 
Election Board to transmit, within ten days, true copies of such 
ballot title to the chairman or secretary of all the county election 
boards of the counties in which such measure is to be voted upon, 
and such county boards shall supervise such printing. 

Sec. 4. Any person who is dissatisfied with the wording of 
the ballot title prepared, as hereinbefore provided, may, within 
ten days after the same is filed as aforesaid, appeal to the Supreme 
Court by petition in which shall be offered a substitute title for 
the one appealed from. Upon the hearing of such appeal the 



The Initiative and Referendum 157 

court may correct or amend the title before the court, or may 
draft a new one which will conform to this act. 

Sec. 5. Notice of the appeal provided for in the foregoing 
section shall be served upon the Attorney-General and upon the 
party who filed such title, or on any of such parties, at least five 
days before such appeal is heard by the court. The Attorney- 
General shall, and any citizen interested may, defend the title 
appealed from. Other procedure upon such appeals shall be 
the same as is prescribed for appeals from petitions filed as set 
forth in section 2 hereof. 

Sec. 6. Whenever any measure or proposition is submitted to 
a vote by the initiative or referendum, it shall be the duty of the 
official counters of the precinct to make and transmit to the 
county election board the returns thereof in the same manner 
that they make their returns in the case of an election of public 
officers, transmitting to such county election board a certificate 
of the total number of electors voting in such election ; and the 
county election board shall keep a record showing such total 
number of votes cast in each of such precincts as shown by such 
returns. Should the proposition be one covering the State at 
large, or any district therein, or be of such other nature as to 
require it, the county election board shall certify the result of 
such election to the State Election Board in the same manner as 
it certifies the result of election for public officers, and such county 
election board shall transmit to the State Election Board a cer- 
tificate showing the total number of votes cast at such election. 
It shall be the duty of the State Election Board to keep a record 
of all such election returns made to it under the provisions of this 
section. 

Sec. 7. Section 1, article 16, chapter 44, Session Laws of 
1 907-1 908, is hereby expressly repealed. 

Article II 

Section 1. If the Legislature should desire to ascertain the 
sentiment of the people upon any proposed amendment to the 



158 State -wide Initiative, Referendum, and Recall 

constitution, it may, by concurrent resolution, suggest to the citi- 
zens of the State such proposition as an amendment to the 
constitution. Such resolution shall set forth the proposed amend- 
ment in full and should the citizens of the State proceed to initiate 
such proposition within one year thereafter, then it shall be the 
duty of the Secretary of State, when the required petitions have 
been filed in his office, to cause an attested copy thereof to be filed 
with the chairman of the State Election Board, together with a 
certificate of the fact that the proposition was originated by con- 
current resolution of the Legislature, setting forth such resolution. 

Sec. 2. All propositions first suggested to the people by the 
Legislature, as provided by section 1 of this article, shall be 
printed by such election board, and they shall have the supervi- 
sion of the printing of the ballots, for such proposed amendment, 
and such proposition shall be printed either on a separate and 
independent ballot or upon the ballot upon which the names of 
candidates appear, should such election occur upon the day when 
candidates are being voted for. Provided, however, that the 
State Election Board shall not be empowered to change the form 
of any ballot as prescribed by the Legislature, should such title 
be printed upon ballots containing the names of candidates. If 
separate ballots are used at such election for county candidates, 
only local propositions can be printed thereon. All state-wide 
or district propositions shall be printed only upon the State 
ballots. Such election board shall cause the said title of each 
proposition to be printed, followed by the words "for the amend- 
ment," which words shall be in a separate paragraph and at least 
one-fourth of an inch below such title. Said words shall have 
no distinguishing marks about them. 

Sec. 3. Any person having ballots, or sample ballots, outside 
the election inclosure either at the time of or before the election, in 
which is printed the said ballot title, and which were not printed 
by order of the State Election Board and furnished him by the 
inspector of elections, shall be deemed guilty of a misdemeanor 
and upon conviction shall be fined not less than twenty-five 



The Initiative and Referendum 159 

dollars ($25.00), nor more than five hundred dollars ($500.00), 
and imprisonment in the county jail not less than thirty days nor 
more than ninety days. Any person printing or distributing 
sample or extra ballots not authorized by the State Election 
Board, and which contain such ballot title, shall be deemed guilty 
of a misdemeanor and upon conviction shall be fined not less 
than fifty dollars ($50.00) nor more than five hundred dollars 
($500.00), and imprisonment in the county jail not less than 
ninety days nor more than twelve months ; Provided, That noth- 
ing herein shall prevent newspapers from publishing in their 
papers educational ballots, provided the same shall not be of the 
same size as are the official ballots. 

Sec. 4. Electors shall vote upon all propositions submitted 
under the provisions of this act, and which were first suggested by 
concurrent resolution of the Legislature, in the following manner : 

Should the elector desire to vote for the proposed amendment 
he shall leave the words, "for the amendment," intact without 
erasing same. But should he desire to vote against such propo- 
sition he shall strike out the words, a for the amendment," with 
a pencil mark. When such words are so erased after any propo- 
sition, the ballot shall be recorded as having been cast against 
the same, and whenever they are not so erased, such ballot shall be 
recorded as having been voted for such proposition. 

Sec. 5. On all other questions, propositions or proposed amend- 
ments, whether presented by initiative or referendum petition, 
the same shall be voted for as is provided by the general act of 
the State Legislature of 1907-1908, known as "An act for the 
carrying into effect initiative and referendum powers reserved 
by the people in articles 5 and 18 of the constitution of the State of 
Oklahoma, to regulate elections thereunder, and to punish viola- 
tions of this act," the same being section 3682 of the Compiled 
Laws of Oklahoma, 1909, by Snyder. 

Sec. 6. It shall be the duty of the election officers to make out 
separate abstract sheets upon which the returns relating to pro- 
posed amendments shall be certified, each proposition appearing 



160 State-wide Initiative, Referendum, and Recall 

in an abstract to itself. It shall be the duty of the State Election- 
Board to certify to the Governor, immediately upon the receipt 
of all the returns upon any such proposition, the result thereof, 
and upon the receipt of such certificate, from said board, it shall 
be the duty of the Governor to issue his proclamation giving the 
whole number of votes cast in the State or any district and de- 
claring the results of the vote upon any proposition. 

Sec. 7. The duties of any nature whatsoever, which, by the 
Session Law of Oklahoma, 1907-1908, entitled, "An act to pro- 
vide for carrying into effect the initiative and referendum powers 
reserved by the people in articles 5 and 18 of the constitution of 
the State of Oklahoma, to regulate elections thereunder, and to 
punish violators of this act," imposed upon the Secretary of 
State, shall be hereafter performed by the State Election Board, 
provided such board is continued in existence. Should such 
board be discontinued, the duties herein imposed upon the same 
shall be performed by the Secretary of State. All duties imposed 
by said act of 1 907-1 908 upon county clerks shall hereafter be 
performed by the county election board, provided such board is 
continued in existence, otherwise, the duties herein imposed upon 
the county election boards shall be performed by the county clerks. 
The duties imposed upon precinct election officers by said act 
shall be performed by precinct election boards and the official 
counters, respectively, provided such election board and official 
counters are retained as precinct election boards. Should they 
be discontinued, the duties imposed upon them by this act shall 
be performed by the regularly chosen precinct election officers. 

Passed by the Senate March 10, 1910. 

J. C. Graham, 
President Pro Tempore of the Senate. 

Passed by the House of Representatives March 17, 1910. 

Ben F. Wilson, 
Speaker of the House of Representatives. 
Approved March 17, 1910. 
C. N. Haskell, Governor. 



The Initiative and Referendum 161 

Partial Change of Procedure — 191 1 1 

A BILL 

Entitled an act amending Section 2 of Article 1, Chapter 66 of the 
Session Laws of 19 10, the same being a bill entitled "An Act 
carrying into effect provisions relating to the Initiative and Refer- 
endum, prescribing the Method of Procedure for submitting and 
voting proposed amendments to the Constitution, and other Propo- 
sitions, and Prescribing the Method of Appeal from Petitions 
filed or from the Ballot," etc. 

Be it Enacted by the People of the State of Oklahoma : — 

Section 1. That Section 2 of Article 1, Chapter 66 of the 
Session Laws of 1910 be, and the same is, hereby amended to 
read as follows : — 

Section 2. When a citizen, or citizens, desire to circulate a 
petition initiating a proposition of any nature, whether to be- 
come a statute law or an amendment to the constitution, or for 
the purpose of invoking a referendum upon legislative enactments, 
such citizen or citizens shall, when such petition is prepared, and 
before the same is circulated or signed by electors, file a true 
and exact copy of the same in the office of the Secretary of State, 
and within ninety days after the date of such riling, the original 
petition shall be filed in the office of the Secretary of State, and 
no petition not filed in accordance with this provision shall be 
considered. When such original petition is filed in said office it 
it shall be the duty of the Secretary of State to forthwith cause 
to be published in at least one newspaper of general circulation 
within the state, a notice setting forth the date of such filing. Any 
citizen of the State may, within ten days, by written notice to the 
Secretary of State and to the party or parties, who filed such 
petition, protest against the same at which time he will hear tes- 
timony and argument for and against the sufficiency of such peti- 
tion. A protest filed by any one hereunder may, if abandoned 

1 See above, pp. 146 and 154. 

M 



1 62 State-wide Initiative, Referendum, and Recall 

by the party filing same, be revived within five days by any other 
citizen. After such hearing the Secretary of State shall decide 
whether such petition be in form as required by the statutes, and 
his decision shall be subject to appeal to the Supreme Court 
of the State, and such court shall give such cause precedence over 
all others, provided, such appeal must be taken within ten days 
after the decision of the Secretary of State has been made. If 
the court be at the time adjourned, the Chief Justice shall imme- 
diately convene the same for such hearing. It shall be the duty 
of the appellants to serve notice upon the Secretary of the State, 
in writing of such an appeal. Whereupon said Secretary of State 
shall immediately transmit all papers and documents on file in 
his office relating to such petition to such court. If the court 
shall adjudge such petition insufficient the parties responsible 
for same shall have the right to correct or amend their petition 
to conform to the opinion of the court, provided said amendment 
or change is made within five days. No objection to the suffi- 
ciency shall be considered unless the same shall have been made 
and filed as herein provided. 

VII. Maine 

[The amendment introducing the initiative and referendum 
in Maine was approved March 20, 1907. It was ratified by the 
voters at the general election held September 14, 1908. As yet, 
the initiative has not been used. However the referendum was 
invoked on three acts of the Legislature in 19 10, and in each case 
the action taken by the Legislature was not sustained.] 

Constitutional Amendment 

Resolves proposing an amendment to article four of the con- 
stitution of the state of Maine, establishing a people's veto through 
the optional referendum, and a direct initiative by petition and 
at general or special elections. 

Resolved, That the following amendment to the constitution of 
this state be proposed for the action of the legal voters of this 
state in the manner provided by the constitution, to wit : — 



Hi 

z 

< 


DO 

I 




The Initiative and Referendum 163 

Part first of article four is hereby amended as follows, namely : 

By striking out all of section one after the word ' Maine ' 
in the third line thereof, and inserting in lieu thereof the follow- 
ing words 'But the people reserve to themselves power to propose 
laws and to enact or reject the same at the polls independent 
of the legislature,' and* also reserve power at their own option to 
approve or reject at the polls any act, bill, resolve or resolution 
passed by the joint action of both branches of the legislature, 
and the style of their laws and acts shall be " Be it enacted by 
the people of the state of Maine," ' so that said section as 
amended shall read as follows, namely : — 

'The legislative power shall be vested in two distinct branches, 
a house of representatives and a senate, each -to have a negative 
on the other, and both to be styled the legislature of Maine, but 
the people reserve to themselves power to propose laws and to 
enact or reject the same at the polls independent of the legisla- 
ture, and also reserve power at their own option to approve or 
reject at the polls any act, bill, resolve or resolution passed by the 
joint action of both branches of the legislature, and the style of 
their laws and acts shall be, 'Be it enacted by the people of the 
state of Maine.' 

Part third of article four is hereby amended as follows, namely : 

By inserting in section one, after the words "biennially and" 
in the second line thereof, the words 'with the exceptions here- 
inafter stated,' so that said section shall read as amended : — 

'The legislature shall convene on the first Wednesday of 
January, biennially, and, with the exceptions hereinafter stated, 
shall have full power to make and establish all reasonable laws 
and regulations for the defence and benefit of the people of this 
state, not repugnant to this constitution nor to that of the 
United States.' 

Part third of article four is further amended by adding to said 
article the following sections to be numbered from sixteen to 
twenty-two inclusive, namely : 

'Sec. 16. No act or joint resolution of the legislature, except 



164 State-wide Initiative, Referendum, and Recall 

such orders or resolutions as pertain solely to facilitating the per- 
formance of the business of the legislature, of either branch, or 
of any committee or officer thereof, or appropriate money therefor 
or for the payment of salaries fixed by law, shall take effect until 
ninety days after the recess of the legislature passing it, unless in 
case of emergency (which with the facts constituting the emer- 
gency shall be expressed in the preamble of the act), the legisla- 
ture shall, by a vote of two-thirds of all the members elected to 
each house, otherwise direct. An emergency bill shall include 
only such measures as are immediately necessary for the pres- 
ervation of the public peace, health or safety; and shall not 
include (1) an infringement of the right of home rule for munici- 
palities, (2) a franchise or a license to a corporation or an indi- 
vidual to extend longer than one year, or (3) provision for the sale 
or purchase or renting for more than five years of real estate.' 

'Sec. 17. Upon written petition of not less than ten thousand 
electors, addressed to the governor and filed in the office of the 
secretary of state within ninety days after the recess of the legis- 
lature, requesting that one or more acts, bills, resolves or resolu- 
tions, or part or parts thereof, passed by the legislature, but not 
then in effect by reason of the provisions of the preceding section, 
be referred to the people, such acts, bills, resolves, or resolutions 
or part or parts thereof as are specified in such petition shall not 
take effect until thirty days after the governor shall have an- 
nounced by public proclamation that the same have been ratified 
by a majority of the electors voting thereon at a general or spe- 
cial election. As soon as it appears that the effect of any act, 
bill, resolve, or resolution or part or parts thereof has been sus- 
pended by petition in manner aforesaid, the governor by public 
proclamation shall give notice thereof and of the time when such 
measure is to be voted on by the people, which shall be at the next 
general election not less than sixty days after such proclamation, 
or in case of no general election within six months thereafter the 
governor may, and if so requested in said written petition therefor, 
shall order such measure submitted to the people at a special 



The Initiative and Referendum 165 

election not less than four nor more than six months after his 
proclamation thereof. 

1 Sec. 18. The electors may propose to the legislature for 
its consideration any bill, resolve or resolution, including bills 
to amend or repeal emergency legislation but not an amendment 
of the state constitution, by written petition addressed to the 
legislature or to either branch thereof and filed in the office of the 
secretary of state or presented to either branch of the legislature 
at least thirty days before the close of its session. Any measure 
thus proposed by not less than twelve thousand electors, unless 
enacted without change by the legislature at the session at which 
it is presented, shall be submitted to the electors together with 
any amended form, substitute, or recommendation of the legisla- 
ture, and in such manner that the people can choose between the 
competing measures or reject both. When there are competing 
bills and neither receives a majority of the votes given for or 
against both, the one receiving the most votes shall at the next 
general election to be held not less than sixty days after the first 
vote thereon be submitted by itself if it receives more than one- 
third of the votes given for and against both. If the measure 
initiated is enacted by the legislature without change, it shall not 
go to a referendum vote unless in pursuance of a demand made in 
accordance with the preceding section. The legislature may order 
a special election on any measure that is subject to a vote of the 
people. The governor may, and if so requested in the written 
petitions addressed to the legislature, shall, by proclamation, 
order any measure proposed to the legislature by at least twelve 
thousand electors as herein provided, and not enacted by the 
legislature without change, referred to the people at a special elec- 
tion to be held not less than four or more than six months after 
such proclamation, otherwise said measure shall be voted upon at 
the next general election held not less than sixty days after the 
recess of the legislature, to which such measure was proposed. 

'Sec. 19. Any measure referred to the people and approved 
by a majority of the votes given thereon shall, unless a later date 



1 66 State-wide Initiative, Referendum, and Recall 

is specified in said measure, take effect and become a law in 
thirty days after the governor has made public proclamation of 
the result of the vote on said measure, which he shall do within 
ten days after the vote thereon has been canvassed and deter- 
mined. The veto power of the governor shall not extend to any 
measure approved by vote of the people, and any measure ini- 
tiated by the people and passed by the legislature without change, 
if vetoed by the governor and if his veto is sustained by the legis- 
lature shall be referred to the people to be voted on at the next 
general election. The legislature may enact measures expressly 
conditioned upon the people's ratification by a referendum vote.' 

'Sec. 20. As used in either of the three preceding sections 
the words " electors" and "people" mean the electors of the 
state qualified to vote for governor ; " recess of the legislature" 
means the adjournment without day of a session of the legisla- 
ture ; " general election " means the November election for choice 
of presidential electors or the September election for choice of 
governor and other state and county officers; "measure" 
means an act, bill, resolve or resolution proposed by the people, 
or two or more such, or part or parts of such, as the case may be ; 
"written petition" means one or more petitions written or printed, 
or partly written and partly printed, with the original signatures 
of the petitioners attached, verified as to the authenticity of the 
signatures by the oath of one of the petitioners certified thereon, 
and accompanied by the certificate of the clerk of the city, town or 
plantation in which the petitioners reside that their names appear 
on the voting list of his city, town or plantation as qualified to 
vote for governor. The petitions shall set forth the full text of 
the measure requested or proposed. The full text of a measure 
submitted to a vote of the people under the provisions of the 
constitution need not be printed on the official ballots, but, until 
otherwise provided by the legislature, the secretary of state shall 
prepare the ballots in such form as to present the question or 
questions concisely and intelligibly.' 

'Sec. 21. The city council of any city may establish the 



The Initiative and Referendum 167 

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 refer- 
endum shall not take effect until ratified by vote of a majority 
of the electors of said city, voting thereon at a municipal elec- 
tion. Provided, however, that the legislature may at any time 
provide a uniform method for the exercise of the initiative and 
referendum in municipal affairs.' 

'Sec. 22. Until the legislature shall enact further regulations 
not inconsistent with the constitution for applying the people's 
veto and direct initiative, the election officers and other officials 
shall be governed by the provisions of this constitution and of the 
general law, supplemented by such reasonable action as may be 
necessary to render the preceding sections self -executing.' 

Resolved, That all the foregoing is proposed to be voted upon as 
one amendment, and not as two or more several amendments. 

Resolved, That the aldermen of cities, the selectmen of towns 
and the assessors of the several plantations in this state are hereby 
empowered and directed to notify the inhabitants of their re- 
spective cities, towns, and plantations in the manner prescribed 
by law to vote at the meeting in September in the year one thou- 
sand nine hundred and eight upon the amendment proposed in 
the foregoing resolutions, and the question shall be 

"Shall the constitution be amended as proposed by a reso- 
lution of the legislature providing for the establishment of a 
people's veto through the optional referendum and a direct ini- 
tiative by petition and at general or special elections?" and the 
inhabitants of said cities, towns and plantations shall vote by 
ballot on said question, those favoring the amendment voting 
"yes" and those opposing voting "no" upon their ballots, and 
the ballots shall be received, sorted, counted, and declared in 
open ward, town and plantation meetings and lists of the votes 
so received shall be made and returned to the office of the secre- 
tary of state, in the same manner as votes for governor and 
members of the legislature, and the governor and council shall 



1 68 State-wide Initiative, Referendum, and Recall 

count the same and make return to the next legislature, and if it 
shall appear that a majority of the votes are in favor of the amend- 
ment, the constitution shall be amended accordingly. 

Resolved, That the secretary of state shall prepare and furnish 
to the several cities, towns and plantations, ballots and blank 
returns in conformity to the foregoing resolves accompanied by 
a copy thereof. 

VIII. Missouri 

[Mr. Roach, Secretary of State, writes as follows (May, 191 1) : 
" The Initiative and Referendum Amendment to the constitution 
of Missouri was adopted, by a popular vote of 177,615 for, to 147,- 
290 against, at the general election held November 3, 1908. The 
enabling act followed at the session of the General Assembly that 
convened in January, 1909. In the general election of 1910, two 
proposed constitutional amendments were submitted under the 
said act ; the one prohibiting sale and manufacture of intoxicating 
liquor in the state being lost by a vote of 207,281 for, to 425,406 
against; the other providing for a 3-cent tax on $100 for support 
of the University being lost by a vote of 181,659 for, to 344,274 
against. Constitutional amendments have always been sub- 
mitted to popular vote under the constitution of this State, 
the only distinction attaching to the above mentioned being that 
they were initiated by popular petition instead of by resolution 
of the General Assembly. 

"No statute law has yet been proposed under the act, nor has 
one passed by the Legislature been referred. No pamphlet pub- 
lication is issued by the State. Experience on which to base criti- 
cism is yet too limited. There is no public agitation for repeal of 
the law."] 

The Constitutional Amendment l 

The legislative authority of the State shall be vested in a 
legislative assembly, consisting of a senate and house of represent- 
atives, but the people reserve to themselves power to propose 
laws and amendments to the Constitution, and to enact or reject 
the same at the polls, independent of the legislative assembly, and 
also reserve power at their own option to approve or reject at the 

1 Constitution of the State of Missouri (Official, 1909), pp. 38 f. 



The Initiative and Referendum 169 

polls any act of the legislative assembly. The first power re- 
served by the people is the initiative, and not more than eight 
per cent of the legal voters in each of at least two-thirds of the 
congressional districts in the State shall be required to propose 
any measure by such petition, and every such petition shall in- 
clude the full text of the measure so proposed. Initiative peti- 
tions shall be filed with the Secretary of State not less than four 
months before the election at which they are to be voted upon. 
The second power is the referendum, and it may be ordered (ex- 
cept as to laws necessary for the immediate preservation of the 
public peace, health or safety and laws making appropriations 
for the current expenses of the State government, for the main- 
tenance of the state institutions and for the support of public 
schools) either by the petitions signed by five per cent of the legal 
voters in each of at least two-thirds of the congressional districts 
in the State, or by the Legislative Assembly, as other bills are 
enacted. Referendum petitions shall be filed with the Secretary 
of State not more than ninety days after the final adjournment 
of the session of the legislative assembly which passed the bill 
on which the referendum is demanded. The veto power of the 
governor shall not extend to measures referred to the people. 
All elections on measures referred to the people of the State shall 
be had at the biennial regular general elections, except when the 
legislative assembly shall order a special election. Any measure 
referred to the people shall take effect and become the law when 
it is approved by a majority of the votes cast thereon, and not 
otherwise. The style of all bills shall be : "Be it enacted by the 
people of the State of Missouri." This section shall not be con- 
strued to deprive any member of the legislative assembly of the 
right to introduce any measure. The whole number of votes cast 
for Justice of the Supreme Court at the regular election last pre- 
ceding the filing of any petition for the initiative, or for the refer- 
endum, shall be the basis on which the number of legal voters 
necessary to sign such petition shall be counted. Petitions and 
orders for the initiative and for the referendum shall be filed with 



170 State-wide Initiative, Referendum, and Recall 

the Secretary of State, and in submitting the same to the people he, 
and all other officers, shall be guided by the general laws and the 
act submitting this amendment, until legislation shall be especially 
provided therefor. 

The Elaborating Law 

[In 1909, the Legislature passed the following act providing the 
procedure for the initiative and referendum.] 

INITIATIVE AND REFERENDUM I FORM OF PROCEDURE GOVERNING 
THE ADOPTION OF SAME l 

An Ad to provide the forms of petition for the referendum and ini- 
tiative, with warning order; for verification of signatures, affida- 
vit to petitions and minimum number of signatures to be filed with 
secretary of state, to provide for filing of petitions and for judicial 
proceedings thereon; to provide for certifying ballot titles to county 
clerks and for printing the same; to provide for manner of voting 
on measures, and what measure may be paramount in case of 
conflict; to provide for canvass and returns of votes on measures 
and for proclamation on paramount measures; to provide penalty 
for violation of this act; to define term " county clerks" as used 
herein; and to repeal conflicting acts. 

Section 

1. Form of petition to refer. 6. Secretary to certify to 

2. Form of petition to initiate county clerks, how. 

an act. 7. Voting on initiative and 

3. Verification of petition referendum subjects — 

sheets. how done. 

4. Secretary of state to file pe- 8. Votes, how counted and 

titions, when — may be canvassed, 

mandamused, when. 9. Who may sign petitions. 

5. Duties of secretary of state 10. Term county clerks to in- 

and attorney-general re- elude city election boards, 

lating to petitions. 11. Inconsistent acts repealed. 

1 Laws, Missouri, 1909, Initiative and Referendum, pp. 554 ff. 



The Initiative and Referendum 171 

Be it enacted by the General Assembly of the State of Missouri, as 
follows : — 
Section 1. Form of petition to refer. — The following shall 
be substantially the form of petition for the referendum to the 
people on any act passed by the general assembly of the State of 
Missouri. 

WARNING 

It is a felony for any one to sign any initiative or referendum 
petition with any name other than his own, or to knowingly sign 
his name more than once for the same measure, or to sign such 
petition when he is not a legal voter. 

PETITION FOR REFERENDUM 

To the Honorable , secretary of state for the 

state of Missouri : We, the undersigned, citizens and legal voters 

of the state of Missouri (and the county of ), 

respectfully order that the senate (or house) bill No , en- 
titled (title of act) passed by the general assembly 

of the state of Missouri, at the regular (special) session of said 
general assembly, shall be referred to the people of the state, 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 Missouri and county of ; my resi- 
dence and postoffice are correctly written after my name. 

Name , Residence , Postoffice 

(If in a city, street and number.) 

(Here follow numbered lines for signatures.) 

Sec. 2. Form of petition to initiate an act. — The follow- 
ing shall be substantially the form of petition for any law or 
amendment to the Constitution of the State of Missouri, pro- 
posed by the initiative. 

WARNING 

It is a felony for any one to sign any initiative or referendum 



172 State-wide Initiative, Referendum, and Recall 

petition with any name other than his own, or to knowingly sign 
his name more than once for the measure, or to sign such petition 
when he is not a legal voter. 

INITIATIVE PETITION 

To the Honorable , secretary of state for the 

state of Missouri : — 

We, the undersigned, citizens and legal voters for the state of 
Missouri, and of the county of , respectfully de- 
mand that the following proposed law (or amendment to the 
Constitution, as the case may be), shall be submitted to the legal 
voters of the state of Missouri, for their approval or rejection, at 

the regular general (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 Missouri 

and of the county of ; my residence and postoffice 

are correctly written after my name. 

Name , Residence , Postoffice 

(If in a city, street and number.) 

(Here follow numbered lines for signatures.) 

Every such sheet for petitioners' signatures shall be attached 
to a full and correct copy of the title and text of the measure so 
proposed by the initiative petition ; but such petition may be 
filed with the secretary of state in numbered sections, for conven- 
ience in handling, and referendum petitions shall be attached to 
a full and correct copy of the measure on which the referendum is 
demanded, and may be filed in numbered sections in like manner : 
Provided, that the minimum number of petitioners to either an 
initiative or referendum petition, when filed with the secretary of 
state, shall be five per cent of the legal voters in each of at least 
two-thirds of the congressional districts in the state. When any 
such initiative or referendum petition shall be offered for filing, 
the secretary of state, in the presence of the governor and the 
person offering the same for filing, shall detach the sheet con- 



The Initiative and Referendum 173 

taining the signatures and affidavits and cause them all to be 
attached to one or more printed copies of the measure so proposed 
by initiative or referendum petition ; the detached copies of 
such measure shall be delivered to the person offering the same 
for filing. If any such measure shall, at the ensuing election, be 
approved by the people, then the copies thereof so preserved, 
with the sheets and signatures and affidavits, and a certified copy 
of the governor's proclamation, declaring the same to have been 
approved by the people, shall be bound together in such form 
that they may be conveniently identified and preserved. The 
secretary of state shall cause every such measure so approved by 
the people to be printed with the general laws enacted by the 
next ensuing session of the general assembly, with the date of the 
governor's proclamation declaring the same to have been approved 
by the people. 

Sec. 3. Verification of petition sheets. — Each and every 
sheet of every such petition containing signatures shall be veri- 
fied in substantially the following form by the person who cir- 
culated said sheet of said petition, by his or her affidavit thereon 
and as part thereof : — 



''Jss. 



State of Missouri, 
County of 

I, , being duly sworn, say (here shall be legibly 

written or typewritten the name of the signers of the sheet), 
signed this sheet of the foregoing petition, and each of them signed 
his name thereto in my presence ; I believe that each has stated 
his name, postoffice address and residence correctly, and that 
each signer is a legal voter of the state of Missouri and county 
of 

(Signatures and postoffice address of affiant.) 

Subscribed and sworn to before me this day of 

A.D. 19. .. 

(Signature and title of officer before whom oath is made and 
his postoffice address.) 



174 State-wide Initiative, Referendum, and Recall 

The forms herein given are not mandatory, and if substantially 
followed in any petition it shall be sufficient, disregarding clerical 
and merely technical errors. 

Sec. 4. Secretary of state to file petitions, when — may be 
mandamused, when. — If the secretary of state shall refuse to 
accept and file any petitions for the initiative or for the referen- 
dum, any citizen may apply, within ten days after such refusal, 
to the circuit court for a writ of mandamus to compel him to do so. 
If it shall be decided by the court that such petition is legally 
sufficient, the secretary of state shall then file it, with a certified 
copy of the judgment attached thereto, as of the date on which 
it was originally offered for filing in his office. On showing that 
any petition filed is not legally sufficient, the court may enjoin 
the secretary of state and all other officers from certifying or 
printing on the official ballot for the ensuing election the ballot 
title and numbers of such measure. All such suits shall be 
advanced on the court docket and heard and decided by the court 
as quickly as possible. Either party may appeal to the supreme 
court within ten days after a decision is rendered. The circuit 
court of Cole county shall have jurisdiction in all such cases. 

Sec. 5. Duties of secretary of state and attorney-general 
relating to petitions. — When any measure shall be filed with the 
secretary of state, to be referred to the people thereof by the 
referendum petition, and when any measure shall be proposed 
by the initiative petition, the secretary of state shall forthwith 
transmit to the attorney-general of the state a copy thereof, and 
within ten days thereafter the attorney-general shall provide 
and return to the secretary of state a ballot title for said measure. 
The ballot title may be distinct from the legislative title of the 
measure, and shall express, in not exceeding one hundred words, 
the purpose of the measure. The ballot title shall be printed 
with the number of the measure on the official ballot. In making 
such ballot title the attorney-general shall, to the best of his 
ability, give a true and impartial statement of the purpose of the 
measure, and in such language that the ballot title shall not be 



The Initiative and Referendum 175 

intentionally an argument likely to create prejudice either for 
or against the measure. Any person who is dissatisfied with the 
ballot title provided by the attorney-general for any measure 
may appeal from his decision to the circuit court, as provided 
by section 4 of this act, by petition, praying for a different 
title, and setting forth the reasons why the title prepared by 
the attorney-general is insufficient or unfair. No appeal 
shall be allowed from the decision of the attorney-general 
on a ballot title unless the same is taken within ten days 
after said decision is filed. A copy of every such decision 
shall be served by the secretary of state or the clerk of the court, 
upon the person offering or filing such initiative or referendum 
petition or appeal. Service of such decision may be by mail or 
telegram, and shall be made forthwith. Said circuit court shall 
thereupon examine said measure, hear arguments, and in its 
decision thereon certify to the secretary of state a ballot title 
for the measure in accord with the intent of this section. The 
decision of the circuit court shall be final. The secretary of state 
shall print on the official ballot the title thus certified to him. 

Sec. 6. Secretary to certify to county clerks, how. — The 
secretary of state, at the time he furnishes to the county clerks 
of the several counties certified copies of the names of the candi- 
dates of state and county offices, shall furnish to each of said 
county clerks his certified copy of the ballot title and numbers 
of the several measures to be voted upon at the coming general 
election, and he shall use for each measure the ballot title desig- 
nated in the manner herein provided. Such ballot title shall 
in no case exceed one hundred words, and shall not resemble, so 
far as probably to create confusion, any such title previously filed 
for any measure to be submitted at that election ; he shall num- 
ber such measures, and such ballot titles shall be printed on the 
official ballot in the order in which the acts referred by the general 
assembly and petitions by the people shall be filed in his office. 
It shall be the duty of the several county clerks to print said 
ballot title and numbers upon the official ballot in the order pre- 



176 State-wide Initiative, Referendum, and Recall 

sented to them by the secretary of state and the relative position 
required by law. Measures referred by petition shall be desig- 
nated "Referendum ordered by the petition of the people"; 
measures proposed by initiative petitions shall be designated and 
distinguished on the ballot by the heading " Proposed by initia- 
tive petition." 

Sec. 7. Voting on initiative and referendum subjects, how 
done. — The manner of voting upon the measures submitted to 
the people shall be the same as is now or may be required and 
provided by law; no measure shall be adopted unless it shall 
receive an affirmative majority of the total number of respective 
votes cast on such measures and entitled to be counted under 
the provisions of this act. If two or more conflicting laws shall 
be approved by the people at the same election, the law receiving 
the greatest number of affirmative votes shall be paramount 
in all particulars as to which there is a conflict, even though such 
law may not have received the greatest majority of affirmative 
votes. If two or more conflicting amendments to the Constitu- 
tion shall be approved by the people at the same election, the 
amendment which receives the greatest number of affirmative 
votes shall be paramount in all particulars as to which there is a 
conflict, even though such amendment may not have received 
the greatest majority of affirmative votes. 

Sec. 8. Votes, how counted and canvassed. — The votes on 
measures and questions shall be counted, canvassed and re- 
turned by the regular boards of judges, clerks and officers as 
votes for candidates are counted, canvassed and returned, and 
the abstract made by the several county clerks of votes on meas- 
ures, shall be returned to the secretary of state on separate 
abstract sheets, in the manner provided for abstract of votes 
for state and county officers. It shall be the duty of the secre- 
tary of state, in the presence of the governor, to proceed within 
thirty days after the election, and sooner if the returns be all 
received, to canvass the votes given for each measure ; and the 
governor shall forthwith issue his proclamation, giving the whole 



The Initiative and Referendum 177 

number of votes cast in the state for and against each measure 
and question, and declaring such measures as are approved by 
majority of those voting thereon to be in full force and effect 
as the law of the state of Missouri from the date of said proclama- 
tion : Provided, that if two or more measures shall be approved 
at said election which are known to conflict with each other or to 
contain conflicting provisions, he shall also proclaim which is 
paramount in accordance with the provisions of section 7 of this 
act. 

Sec. 9. Who may sign petitions. — Every person who is a 
qualified elector of the state of Missouri may sign a petition for 
the referendum or for the initiative of any measure on which he 
is legally entitled to vote upon. Any person signing any name 
other than his own to any petition, or knowingly signing his 
name more than once for the same measure at one election, or 
who is not at the time of signing the same a legal voter of this 
state, or any officer or person wilfully violating any provision of 
this statute shall, upon conviction thereof, be punished by a fine 
not exceeding five hundred dollars ($500) or by imprisonment 
in the penitentiary not exceeding two years or by both such fine 
and imprisonment. 

Sec. 10. Term county clerks to include city election boards. — 
That the term "county clerks" in this act shall be construed to 
include the board of election commissioners for the city of Saint 
Louis and the board or similar officer or officers in any other city 
in this state, so far as the same relates to any act or duty re- 
quired to be performed in said city like to that required of or 
with such county clerks in this act in the respective counties 
of the state. 

Sec. n. Inconsistent acts repealed. — All acts or parts of 
acts in conflict with the provisions of this act are hereby repealed. 

Approved, June 12, 1909. 



178 State-wide Initiative, Referendum, and Recall 

IX. Michigan l 

[The constitution adopted in 1908 provided that the Legis- 
lature might refer bills to the voters, and that the initiative might 
be used for constitutional amendments. These provisions follow.] 

Art V, Sec. 38. 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 referred 
shall become law unless approved by a majority of the electors 
voting thereon. 

Art. XVII, Sec. 2. Amendments may also be proposed to 
this constitution by petition of the qualified electors of this state 
but no proposed amendment shall be submitted to the electors 
unless the number of petitioners therefor shall exceed twenty 
per cent of the total number of electors voting for secretary of 
state at the preceding election of such officer. All petitions shall 
contain the full text of any proposed amendment, together with 
any existing provisions of the constitution which would be altered 
or abrogated thereby. Such petitions shall be signed at the 
regular registration or election places at a regular registration or 
election under the supervision of the officials thereof, who shall 
verify the genuineness of the signatures and certify the fact that 
the signers are registered electors of the respective townships 
and cities in which they reside, and shall forthwith forward the 
petitions to the secretary of state. All petitions for amendments 
filed with the secretary of state shall be certified by that officer 
to the legislature at the opening of its next regular session ; 
and, when such petitions for any one proposed amendment shall 
be signed by not less than the required number of petitioners, he 
shall also submit the proposed amendment to the electors at 
the first regular election thereafter, unless the legislature in joint 
convention shall disapprove of the proposed amendment by a 
majority of the members elected. The legislature may, by a like 

1 Legislative Manual, 1909, pp. 566 ff. 



The Initiative and Referendum 179 

vote, submit an alternative or a substitute proposal on the same 
subject. The action of the legislature shall be entered on the 
journal of each house, with the yeas and nays taken thereon. 
But no amendment to this section may be proposed in the manner 
prescribed. 

If a majority of the electors qualified to vote for members of 
the legislature voting thereon shall ratify and approve any such 
amendment or amendments, the same shall become a part of 
the constitution : Provided, That for any amendment proposed 
under this section, the affirmative vote shall be not less than one- 
third of the highest number of votes cast at the said election for 
any office. In case alternatives proposed on the same subject 
are submitted at the same election, the vote shall be for one of 
such alternatives or against such proposed amendments as a 
whole. If the affirmative vote for one proposed amendment is 
the required majority of all the votes cast for and against such 
proposed amendments, it shall become a part of the constitu- 
tion. If the total affirmative vote for such alternative proposed 
amendments is the required majority of all the votes for and 
against them, but no one proposed amendment receives such 
majority, then the proposed amendment which receives the 
largest number of affirmative votes shall be submitted at the 
next regular election, and if it then receives the required majority 
of all the votes cast thereon it shall become a part of the consti- 
tution. The legislature shall enact appropriate laws to carry 
out the provisions of this section. 

Sec. 3. All proposed amendments to the constitution sub- 
mitted to the electors shall be published in full, with any existing 
provisions of the constitution which would be altered or abrogated 
thereby, and a copy thereof shall be posted at each registration 
and election place. Proposed amendments shall also be printed 
in full on a ballot or ballots separate from the ballot contain- 
ing the names of nominees for public office. 



180 State-wide Initiative, Referendum, and Recall, 



X. Arkansas 1 

[The Legislature of Arkansas adopted an initiative and refer- 
endum amendment on February 19, 1909. It was ratified by 
the voters at the general election held September 12, 19 10, and 
is as follows.] 

The legislative powers of this state shall be vested in a Gen- 
eral Assembly, which shall consist of a Senate and a House of 
Representatives, but the people of each municipality, each county, 
and of the state reserve to themselves power to propose laws and 
amendments to the Constitution and to enact or reject the same 
at the polls as independent of the legislative assembly, and also 
reserve power at their own option to approve or reject at the 
polls any act of the legislative assembly. 

The first power reserved by the people is the Initiative, and 
not more than 8 per cent of the legal voters shall be required to 
propose any measure by such petition, and every such petition 
shall include the full text of the measure so proposed. Initia- 
tive petitions shall be filed with the Secretary of State not less 
than four months before the election at which they are to be 
voted upon. 

The second power is the Referendum, and it may be ordered 
(except as to laws necessary for the immediate preservation of 
the public peace, health or safety) either by the petition signed 
by 5 per cent of the legal voters or by the legislative assembly 
as other bills are enacted. Referendum petitions shall be filed 
with the Secretary of State not more than ninety days after the 
final adjournment of the session of the legislative assembly which 
passed the bill on which the referendum is demanded. The veto 
power of the Governor shall not extend to measures referred to 
the people. All elections on measures referred to the people of 
the State shall be had at the biennial regular general elections, 
except when the legislative assembly shall order a special 

1 Acts of Arkansas, 1909, pp. 1238 ff. 



The Initiative and Referendum 



ibi 



election. Any measure referred to the people shall take effect 
and become a law when it is approved by a majority of the votes 
cast thereon and not otherwise. 

The style of all bills shall be, "Be it enacted by the State of 
Arkansas." This section shall not be construed to deprive any 
member of the legislative assembly of the right to introduce any 
measure. The whole number of votes cast for Governor at the 
regular election last preceding the filing of any petition for the 
Initiative or the Referendum shall be the basis on which the 
number of legal votes necessary to sign such petition shall be 
counted. Petitions and orders for the Referendum and Ini- 
tiative shall be filed with the Secretary of State, and in submitting 
the same to the people he and all other officers shall be guided 
by the general election laws and the acts submitting this amend- 
ment until legislation shall be specially provided therefor. 

XL Colorado 

[At an extraordinary session and as an emergency measure, the 
Colorado Legislature passed an initiative and referendum amend- 
ment on September 2, 1910. It was adopted November 8, 1910, 
by a vote of 89,141 for, to 28,698 against,or a majority of 60,443.] 

The Constitutional Amendment 1 

An Act to submit to the qualified voters of the state of Colorado an 
amendment to Section 1 of Article V of the constitution of the 
state of Colorado, providing for the initiative and referendum. 

Be it Enacted by the General Assembly of the State of Colorado : — 

Section 1. There shall be submitted to the qualified electors 
of the State of Colorado, at the next general election for members 
of the General Assembly for their approval or rejection, the fol- 
lowing constitutional amendment, which, when ratified by a 
majority of those voting thereon, shall be valid as part of the 
Constitution. 

1 Session Laws of Colorado, 1910, pp. 11 ff. 



1 82 State-wide Initiative, Referendum, and Recall 

Section 2. That Section 1 of Article V of the Constitution 
of the State of Colorado be so amended as to read as follows : — 

Section 1. The legislative power of the State shall be vested 
in the General Assembly consisting of a Senate and House of 
Representatives, both to be elected by the people, but the people 
reserve to themselves the power to propose laws and amendments 
to the Constitution and to enact or reject the same at the polls 
independent of the General Assembly, and also reserve power at 
their own option to approve or reject at the polls any act, item, 
section or part of any act of the General Assembly. 

The first power hereby reserved by the people is the Initia- 
tive, and at least eight per cent of the legal voters shall be re- 
quired to propose any measure by petition, and every such peti- 
tion shall include the full text of the measure so proposed. 
Initiative petitions for State legislation and amendments to the 
Constitution shall be addressed to and filed with the Secre- 
tary of State at least four months before the election at which 
they are to be voted upon. 

The second power hereby reserved is the Referendum, and 
it may be ordered, except as to laws necessary for the immediate 
preservation of the public peace, health, or safety, and appropria- 
tions for the support and maintenance of the department of 
state and state institutions, against any act, section or part of 
any act of the General Assembly, either by a petition signed by 
five per cent of the legal voters or by the General Assembly. 
Referendum petitions shall be addressed to and filed with the 
Secretary of State not more than ninety days after the final 
adjournment of the session of the General Assembly, that passed 
the bill on which the referendum is demanded. The filing of a 
referendum petition against any item, section or part of any act 
shall not delay the remainder of the act from becoming operative. 
The veto power of the Governor shall not extend to measures 
initiated by or referred to the people. All elections on measures 
referred to the people of the State shall be held at the biennial 
regular general election, and all such measures shall become the 



The Initiative and Referendum 183 

law or a part of the Constitution, when approved by a majority 
of the votes cast thereon, and not otherwise, and shall take effect 
from and after the date of the official declaration of the vote 
thereon by proclamation of the Governor, but not later than 
thirty days after the vote has been canvassed. This section 
shall not be construed to deprive the General Assembly of the 
right to enact any measure. The whole number of votes cast for 
Secretary of State at the regular general election last preceding 
the filing of any petition for the initiative or referendum shall be 
the basis on which the number of legal voters necessary to sign 
such petition shall be counted. 

The Secretary of State shall submit all measures initiated by 
or referred to the people for adoption or rejection at the polls, 
in compliance herewith. The petition shall consist of sheets 
having such general form printed or written at the top thereof 
as shall be designated or prescribed by the Secretary of State; 
such petition shall be signed by qualified electors in their own 
proper persons only, to which shall be attached the residence ad- 
dress of such person and the date of signing the same. To each 
of such petitions, which may consist of one or more sheets, shall 
be attached an affidavit of some qualified elector, that each signa- 
ture thereon is the signature of the person whose name it purports 
to be, and that to the best of the knowledge and belief of the 
affiant, each of the persons signing said petition was at the time 
of signing a qualified elector. Such petition so verified shall be 
prima facie evidence that the signatures thereon are genuine and 
true and that the persons signing the same are qualified electors. 
The text of all measures to be submitted shall be published as 
constitutional amendments are published, and in submitting the 
same and in all matters pertaining to the form of all petitions the 
Secretary of State and all other officers shall be guided by the 
general laws, and the act submitting this amendment, until legis- 
lation shall be especially provided therefor. 

The style of all laws adopted by the people through the Ini- 
tiative shall be, "Be it Enacted by the People of the State of 
Colorado." 



184 State-wide Initiative, Referendum, and Recall 

The initiative and referendum powers reserved to the people 
by this section are hereby further reserved to the legal voters of 
every city, town and municipality as to all local, special and 
municipal legislation of every character in or for their respective 
municipalities. The manner of exercising said powers shall be 
prescribed by general laws, except that cities, towns and munici- 
palities may provide for the manner of exercising the initiative 
and referendum powers as to their municipal legislation. Not 
more than ten per cent of the legal voters may be required to 
order the referendum, nor more than fifteen per cent to propose 
any measure by the initiative in any city, town or municipality. 

This section of the Constitution shall be in all respects self- 
executing. 

Section 3. Each elector voting at said election and desirous 
of voting for or against this amendment shall deposit in the bal- 
lot box a ticket whereon shall be printed or written the words, 
"For the amendment to Section one of Article V of the Constitu- 
tion providing for the initiative and referendum," and "Against 
the amendment to Section one of Article V of the Constitution 
providing for the initiative and referendum," and shall indicate 
his or her approval or rejection of the proposition by placing 
a cross (X) after one of such sentences. The vote cast for the 
adoption or rejection of said amendment shall be canvassed and 
the result determined in the manner provided by the laws of the 
State of Colorado for the canvass of votes for Representative in 
Congress. 

Section 4. In the opinion of the General Assembly an emer- 
gency exists, therefore this act shall take effect on and after its 
passage. 

XII. California 

[The Legislature of California passed initiative, referendum 
and recall amendments on February 20, 191 1, and they were 
adopted by an overwhelming vote on October 10, 191 1. The 
initiative and referendum amendment follows. For the recall 
see below, p. 264.] 



The Initiative and Referendum 185 

The Constitutional Amendment l 

Senate Constitutional Amendment No. 22. A resolution to propose 
to the people of the State of California an amendment to the con- 
stitution of said state, by amending section 1 of article 4 thereof, 
relating to legislative powers, and reserving to the people of the 
State of California the power to propose laws, statutes and amend- 
ments to the constitution and to enact the same at the polls, inde- 
pendent of the legislature and also reserving to the people of the 
State of California the power to approve or reject at the polls any 
act or section or part of any act of the legislature. 
The legislature of the State of California, at its regular session 
commencing on the 2d day of January, 191 1, two-thirds of all 
the members elected to each of the two houses of said legislature 
voting in favor thereof, hereby propose that section 1 of article 4 
of the constitution of the State of California, be amended so as 
to read as follows : — 

Section 1. The legislative power of this state shall be vested 
in a senate and assembly which shall be designated "The legis- 
lature of the State of California," but the people reserve to them- 
selves the power to propose laws and amendments to the con- 
stitution, and to adopt or reject the same, at the polls independent 
of the legislature, and also reserve the power, at their own option, 
to so adopt or reject any act, or section or part of any act, passed 
by the legislature. 

The enacting clause of every law shall be "The people of the 
State of California do enact as follows :" — 

The first power reserved to the people shall be known as the 
initiative. Upon the presentation to the secretary of state of a 
petition certified as herein provided to have been signed by quali- 
fied electors, equal in number to eight per cent of all the votes 
cast for all candidates for governor at the last preceding general 
election, at which a governor was elected, proposing a law or 
amendment to the constitution, set forth in full in said petition, 

1 Official copy from the office of the Secretary of State. See below, p. 264, 
for recall amendment. 



1 86 State-wide Initiative, Referendum, and Recall 

the secretary of state shall submit the said proposed law or amend- 
ment to the constitution to the electors at the next succeeding 
general election occurring subsequent to ninety days after the 
presentation aforesaid of said petition, or at any special election 
called by the governor in his discretion prior to such general 
election. All such initiative petitions shall have printed across 
the top thereof in twelve point black-face type the following : 
"Initiative measure to be submitted directly to the electors." 

Upon the presentation to the secretary of state, at any time 
not less than ten days before the commencement of any regular 
session of the legislature, of a petition certified as herein provided 
to have been signed by qualified electors of the state equal in 
number to five per cent of all the votes cast for all candidates 
for governor at the last preceding general election, at which a 
governor was elected, proposing a law set forth in full in said 
petition, the secretary of state shall transmit the same to the 
legislature as soon as it convenes and organizes. The law 
proposed by such petition shall be either enacted or rejected 
without change or amendment by the legislature, within forty 
days from the time it is received by the legislature. If any law 
proposed by such petition shall be enacted by the legislature it 
shall be subject to referendum, as hereinafter provided. If any 
law so petitioned for be rejected, or if no action is taken upon it 
by the legislature within said forty days, the secretary of state 
shall submit it to the people for approval or rejection at the next 
ensuing general election. The legislature may reject any meas- 
ure so proposed by initiative petition and propose a different one 
on the same subject by a yea and nay vote upon separate roll 
call, and in such event both measures shall be submitted by the 
secretary of state to the electors for approval or rejection at the 
next ensuing general election or at a prior special election called 
by the governor, in his discretion, for such purpose. All said 
initiative petitions last above described shall have printed in 
twelve point black-face type the following: "Initiative measure 
to be presented to the legislature." 



The Initiative and Referendum 187 

The second power reserved to the people shall be known as the 
referendum. No act passed by the legislature shall go into ef- 
fect until ninety days after the final adjournment of the session 
of the legislature which passed such act, except acts calling elec- 
tions, acts providing for tax levies or appropriations for the usual 
current expenses of the state, and urgency measures necessary 
for the immediate preservation of the public peace, health or 
safety, passed by a two-thirds vote of all the members elected to 
each house. Whenever it is deemed necessary for the immediate 
preservation of the public peace, health or safety that a law shall 
go into immediate effect, a statement of the facts constituting 
such necessity shall be set forth in one section of the act, which 
section shall be passed only upon a yea and nay vote, upon a 
separate roll call thereon ; provided, however, that no measure 
creating or abolishing any office or changing the salary, term or 
duties of any officer, or granting any franchise or special privilege, 
or creating any vested right or interest, shall be construed to be 
an urgency measure. Any law so passed by the legislature and 
declared to be an urgency measure shall go into immediate effect. 

Upon the presentation to the secretary of state within ninety 
days after the final adjournment of the legislature of a peti- 
tion certified as herein provided, to have been signed by qualified 
electors equal in number to five per cent of all the votes cast 
for all candidates for governor at the last preceding general 
election at which a governor was elected, asking that any act or 
section or part of any act of the legislature, be submitted to the 
electors for their approval or rejection, the secretary of state 
shall submit to the electors for their approval or rejection, such 
act, or section or part of such act, at the next succeeding general 
election occurring at any time subsequent to thirty days after 
the filing of said petition or at any special election which may 
be called by the governor, in his discretion, prior to such regular 
election, and no such act or section or part of such act shall go 
into effect until and unless approved by a majority of the quali- 
fied electors voting thereon ; but if a referendum petition is filed 



1 88 State-wide Initiative, Referendum, and Recall 

against any section or part of any act the remainder of such act 
shall not be delayed from going into effect. 

Any act, law or amendment to the constitution submitted to 
the people by either initiative or referendum petition and ap- 
proved by a majority of the votes cast thereon, at any election, 
shall take effect five days after the date of the official declaration 
of the vote by the secretary of state. No act, law or amendment 
to the constitution, initiated or adopted by the people, shall be 
subject to the veto power of the governor, and no act, law or 
amendment to the constitution, adopted by the people at the 
polls under the initiative provisions of this section, shall be 
amended or repealed except by a vote of the electors, unless 
otherwise provided in said initiative measure ; but acts and laws 
adopted by the people under the referendum provisions of this 
section may be amended by the legislature at any subsequent 
session thereof. If any provision or provisions of two or more 
measures, approved by the electors at the same election, conflict, 
the provision or provisions of the measure receiving the highest 
affirmative vote shall prevail. Until otherwise provided by law, 
all measures submitted to a vote of the electors, under the provi- 
sions of this section, shall be printed, and together with argu- 
ments for and against each such measure by the proponents and 
opponents thereof, shall be mailed to each elector in the same 
manner as now provided by law as to amendments to the con- 
stitution, proposed by the legislature ; and the persons to prepare 
and present such arguments shall, until otherwise provided by 
law, be selected by the presiding officer of the senate. 

If for any reason any initiative or referendum measure, pro- 
posed by petition as herein provided, be not submitted at the 
election specified in this section, such failure shall not prevent 
its submission at a succeeding general election, and no law or 
amendment to the constitution, proposed by the legislature, shall 
be submitted at any election unless at the same election there 
shall be submitted all measures proposed by petition of the 
electors, if any be so proposed, as herein provided. 



The Initiative and Referendum 189 

Any initiative or referendum petition may be presented in 
sections, but each section shall contain a full and correct copy 
of the title and text of the proposed measure. Each signer shall 
add to his signature his place of residence, giving the street and 
number if such exist. His election precinct shall also appear on 
the paper after his name. The number of signatures attached 
to each section shall be at the pleasure of the person soliciting 
signatures to the same. Any qualified elector of the state shall 
be competent to solicit said signatures within the county or city 
and county of which he is an elector. Each section of the peti- 
tion shall bear the name of the county or city and county in 
which it is circulated, and only qualified electors of such county 
or city and county shall be competent to sign such section. Each 
section shall have attached thereto the affidavit of the person 
soliciting signatures to the same, stating his own qualifications 
and that all the signatures to the attached section were made in 
his presence and that to the best of his knowledge and belief 
each signature to the section is the genuine signature of the per- 
son whose name it purports to be, and no other affidavit thereto 
shall be required. The affidavit of any person soliciting signa- 
tures hereunder shall be verified free of charge by any officer 
authorized to administer oaths. Such petitions so verified shall 
be prima facie evidence that the signatures thereon are genuine 
and that the persons signing the same are qualified electors. 
Unless and until it be otherwise proven upon official investiga- 
tion, it shall be presumed that the petition presented contains 
the signatures of the requisite number of qualified electors. 

Each section of the petition shall be filed with the clerk or 
registrar of voters of the county or city and county in which it 
was circulated, but all said sections circulated in any county 
or city and county shall be filed at the same time. Within 
twenty days after the filing of such petition in his office the said 
clerk, or registrar of voters, shall determine from the records of 
registration what number of qualified electors have signed the 
same, and if necessary the board of supervisors shall allow said 



190 State-wide Initiative, Referendum, and Recall 

clerk or registrar additional assistants for the purpose of examin- 
ing such petition and provide for their compensation. The said 
clerk or registrar, upon the completion of such examination, shall 
forthwith attach to said petition, except the signatures thereto 
appended, his certificate, properly dated, showing the result 
of said examination and shall forthwith transmit said petition, 
together with his said certificate, to the secretary of state and also 
file a copy of said certificate in his office. Within forty days 
from the transmission of the said petition and certificate by the 
clerk or registrar to the secretary of state, a supplemental peti- 
tion identical with the original as to the body of the petition, but 
containing supplemental names, may be filed with the clerk or 
registrar of voters, as aforesaid. The clerk or registrar of voters 
shall within ten days after the filing of such supplemental petition 
make like examination thereof, as of the original petition, and 
upon the completion of such examination shall forthwith attach 
to said petition his certificate, properly dated, showing the result 
of said examination, and shall forthwith transmit a copy of said 
supplemental petition, except the signatures thereto appended, 
together with his certificate, to the secretary of state. 

When the secretary of state shall have received from one or 
more county clerks or registrars of voters a petition certified as 
herein provided to have been signed by the requisite number of 
qualified electors, he shall forthwith transmit to the county clerk 
or registrar of voters of every county or city and county in the 
state his certificate showing such fact. A petition shall be deemed 
to be filed with the secretary of state upon the date of the receipt 
by him of a certificate or certificates showing said petition to be 
signed by the requisite number of electors of the state. Any 
county clerk or registrar of voters shall, upon receipt of such copy, 
file the same for record in his office. 

The duties herein imposed upon the clerk or registrar of voters 
shall be performed by such registrar of voters in all cases where 
the office of registrar of voters exists. 

The initiative and referendum powers of the people are hereby 



The Initiative and Referendum 191 

further reserved to the electors of each county, city and county, 
city and town of the state, to be exercised under such procedure 
as may be provided by law. Until otherwise provided by law, 
the legislative body of any such county, city and county, city 
or town may provide for the manner of exercising the initiative 
and referendum powers herein reserved to such counties, cities 
and counties, cities and town, but shall not require more than 
fifteen per cent of the electors thereof to propose any initiative 
measure nor more than ten per cent of the electors thereof to 
order the referendum. Nothing contained in this section shall 
be construed as affecting or limiting the present or future powers 
of cities or cities and counties having charters adopted under the 
provisions of section eight of article eleven of this constitution. 

In the submission to the electors of any measure under this 
section, all officers shall be guided by the general laws of this 
state, except as is herein otherwise provided. 

This section is self-executing, but legislation may be enacted 
to facilitate its operation, but in no way limiting or restricting 
either the provisions of this section or the powers herein reserved. 

XIII. Washington [Proposed] 

[An. initiative and referendum amendment to the Constitution 
of Washington was passed by the House February 14, ion,and 
by the Senate March 1, 1911. It was approved by the Governor 
March 10, 191 1, and will be submitted to the voters for ratifica- 
tion at the general election to be held in November, 191 2.] 

Proposed Constitutional Amendment l 

An Act to amend section 1 of article 11 of the Constitution of the 
State of Washington, relating to legislative powers, providing 
for the initiative and referendum, and striking section 31 of 
said article 11, relating to the time when laws take efect. 

Be it enacted by the Legislature of the State of Washington : — 
Section i. That at the general election to be held in this 

state on the Tuesday next succeeding the first Monday in No- 
1 Session Laws, 191 1, chapter 42. 



192 State-wide Initiative, Referendum, and Recall 

vember, 191 2, there shall be submitted to the qualified electors 
of the state for adoption and approval of [or] rejection an amend- 
ment to article II of the Constitution of the State of Washington, 
relating to legislative powers, by striking from article II all of 
sections 1 and 31, and inserting in lieu thereof as section 1 the 
following, so that the same shall read as follows : — 

Article II, section 1. The legislative authority of the State of 
Washington shall be vested in the legislature, consisting of a 
senate and house of representatives, which shall be called the 
legislature of the State of Washington, but the people reserve to 
themselves the power to propose bills, laws, and to enact or reject 
the same at the polls, independent of the legislature, and also 
reserve power, at their own option, to approve or reject at the 
polls any act, item, section or part of any bill, act or law passed 
by the legislature. 

(a) Initiative : The first power reserved by the people is the 
initiative. Ten per centum, but in no case more than fifty 
thousand, of the legal voters shall be required to propose any 
measure by such petition, and every such petition shall include 
the full text of the measure so proposed. Initiative petitions 
shall be filed with the secretary of state not less than four months 
before the election at which they are to be voted upon, or not 
less than ten days before any regular session of the legislature. 
If filed at least four months before the election at which they are 
to be voted upon, he shall submit the same to the vote of the 
people at the said election. If such petitions are filed not less 
than ten days before any regular session of the legislature, he 
shall transmit the same to the legislature as soon as it convenes 
and organizes. Such initiative measure shall take precedence 
over all other measures in the legislature except appropriation 
bills and shall be either enacted or rejected without change or 
amendment by the legislature before the end of such regular 
session. If any such initiative measure shall be enacted by the 
legislature it shall be subject to the referendum petition, or it 
may be enacted and referred by the legislature to the people for 



The Initiative and Referendum 193 

approval or rejection at the next regular election. If it is rejected 
or if no action is taken upon it by the legislature before the end 
of such regular session, the secretary of state shall submit it to 
the people for approval or rejection at the next ensuing regular 
general election. The legislature may reject any measure so 
proposed by initiative petition and propose a different one dealing 
with the same subject, and in such event both measures shall be 
submitted by the secretary of state to the people for approval or 
rejection at the next ensuing regular general election. When 
conflicting measures are submitted to the people the ballots shall 
be so printed that a voter can express separately by making one 
cross (X) for each, two preferences, first, as between either meas- 
ure and neither, and secondly, as between one and the other. If 
the majority of those voting on the first issue is for neither, both 
fail, but in that case the votes on the second issue shall neverthe- 
less be carefully counted and made public. If a majority voting 
on the first issue is for either, then the measure receiving a major- 
ity of the votes on the second issue shall be law. 

(b) Referendum. The second power reserved by the people is 
the referendum, and it may be ordered on any act, bill, law, or any 
part thereof passed by the legislature, 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, either by petition signed by the required 
percentage of the legal voters, or by the legislature as other bills 
are enacted. Six per centum, but in no case more than thirty 
thousand, of the legal voters shall be required to sign and make a 
valid referendum petition. 

(c) No act, law, or bill subject to referendum shall take effect 
until ninety days after the adjournment of the session at which 
it was enacted. No act, law, or bill approved by a majority of 
the electors voting thereon shall be amended or repealed by the 
legislature within a period of two years following such enactment. 
But such enactment may be amended or repealed at any general 
regular or special election by direct vote of the people thereon. 

o 



194 State-wide Initiative, Referendum, and Recall 

(d) The filing of a referendum petition against one or more 
items, sections or parts of any act, law or bill shall not delay the 
remainder of the measure from becoming operative. Referen- 
dum petitions against measures passed by the legislature shall be 
filed with the secretary of state not later than ninety days after 
the final adjournment of the session of the legislature which 
passed the measure on which the referendum is demanded. The 
veto power of the governor shall not extend to measures initiated 
by or referred to the people. All elections on measures referred 
to the people of the state shall be had at the biennial regular 
elections, except when the legislature shall order a special elec- 
tion. Any measure initiated by the people or referred to the 
people as herein provided shall take effect and become the law if it 
is approved by a majority of the votes cast thereon : Provided, 
That the vote cast upon such question or measure shall equal 
one-third of the total votes cast at such election and not other- 
wise. Such measure shall be in operation on and after the thir- 
tieth day after the election at which it is approved. The style 
of all bills proposed by initiative petition shall be: "Be it 
enacted by the people of the State of Washington." This sec- 
tion shall not be construed to deprive any member of the legis- 
lature of the right to introduce any measure. The whole number 
of electors who voted for governor at the regular gubernatorial 
election last preceding the filing of any petition for the initiative 
or for the referendum shall be the basis on which the number of 
legal voters necessary to sign such petition shall be counted. All 
such petitions shall be filed with the secretary of state, who shall 
be guided by the general laws in submitting the same to the peo- 
ple until additional legislation shall especially provide therefor. 
This section is self-executing, but legislation may be enacted 
especially to facilitate its operation. 

The legislature shall provide methods of publicity of all laws 
or parts of laws, and amendments to the constitution referred 
to the people with arguments for and against the laws and amend- 
ments so referred, so that each voter of the state shall receive the 



The Initiative and Referendum 195 

publication at least fifty days before the election at which they are 
to be voted upon. 

Sec. 2. The secretary of state shall cause the amendment 
proposed in section 1 of this act to be published for three months 
next preceding the said election therein described in some weekly 
newspaper in every county where such newspaper is published 
throughout the state. 

Sec. 3. There shall be printed on all ballots provided for the 
said election, the words : — 

"For the proposed amendment of section 1 of article II of the 
constitution of the State of Washington, relating to legislative 
powers and providing for the initiative and referendum." 

"Against the proposed amendment of section 1 of article II 
of the constitution of the State of Washington, relating to legis- 
lative powers, and providing for the initiative and referendum." 

"For the proposed amendment of article II of the constitution 
of the State of Washington, by striking section 31 therefrom, 
which relates to the time when laws take effect." 

"Against the proposed amendment of article II of the consti- 
tution of the State of Washington, by striking section 31 there- 
from, which relates to the time when laws take effect." 

Sec. 4. If it shall appear from the ballots cast at the said 
election that a majority of the qualified electors voting upon 
the question of the adoption of the said amendment have voted 
in favor of the same, the governor shall make proclamation of the 
same in the manner provided by law, and the said amendment 
shall be held to have been adopted and to have been a part of the 
constitution from the date of such proclamation. 

XIV. Nebraska (Proposed) 

[The Legislature of Nebraska passed a joint resolution on 
March 17, 191 1, providing for the submission of an initiative and 
referendum amendment to the state constitution. The resolution 
was approved by the Governor, March 24, 191 1. The electors 
will vote on the proposition at the regular election in November, 
191 2. The amendment is to be self-executing, on proclamation 



196 State-wide Initiative, Referendum, and Recall 

by the Governor, if it receives a majority of the votes cast at 
the election. The copy here is certified under the seal of the 
secretary of state of Nebraska, April 24, 1911.] 

An Act for a joint resolution proposing amendment to Section 1 and 
Section 10, Article 3 of the Constitution of the State of Nebraska, 
and supplementing Article entitled "Amendments" 
Be it Resolved and Enacted by the Legislature of the State of Ne- 
braska : — 

Section 1. That at the general election for state and legisla- 
tive officers to be held on the Tuesday succeeding the first 
Monday in November, 191 2, the following provisions be pro- 
posed and submitted as amendment to Section 1 and Section 10 
of Article 3 of the Constitution of the State of Nebraska : — 

Section 2. That Section 1 of Article 3 of the Constitution of 
the State of Nebraska is hereby amended to read as follows : — 

Section 1. The legislative authority of the state shall be 
vested in a legislature consisting of a senate and house of repre- 
sentatives, but the people reserve to themselves power to propose 
laws, and amendments to the constitution, and to enact or reject 
the same at the polls independent of the legislature, and also 
reserve power at their own option to approve or reject at the 
polls any act, item, section or part of any act passed by the 
legislature. 

Section 1 A. The first power reserved by the people is the 
initiative. Ten per cent of the legal voters of the state, so dis- 
tributed as to include five per cent of the legal voters in each of 
two-fifths of the counties of the state, may propose any measure 
by petition, which shall contain the full text of the measure so 
proposed. Provided, that proposed Constitutional Amendments 
shall require a petition of fifteen per cent of the legal voters of 
the State distributed as above provided. Initiative petitions 
(except for municipal and wholly local legislation) shall be filed 
with the Secretary of State and be by him submitted to the voters 
at the first regular state election held not less than four months 
after such filing. The same measure, either in form or in essen- 



The Initiative and Referendum 197 

tial substance, shall not be submitted to the people by initiative 
petition (either affirmatively or negatively) oftener than once 
in three years. If conflicting measures submitted to the people 
at the same election shall be approved, the one receiving the high- 
est number of affirmative votes shall thereby become law as to 
all conflicting provisions. The Constitutional limitations as to 
scope and subject matter of statutes enacted by the legislature 
shall apply to those enacted by the initiative. 

Section 1 B. The second power reserved is the referendum. 
It may be ordered by a petition of ten per cent of the legal 
voters of the state, distributed as required for initiative petitions. 
Referendum petitions against measures passed by the legislature 
shall be filed with the Secretary of State within ninety days after 
the legislature enacting the same adjourns sine die or for a 
period longer than ninety days : and elections thereon shall be 
had at the first regular state election held not less than thirty 
days after such filing. 

Section 1 C. The referendum may be ordered upon any act, 
except acts making appropriations for the expenses of the state 
government, and state institutions existing at the time such act 
is passed. When the referendum is ordered upon an act or any 
part thereof it shall suspend its operation until the same is ap- 
proved by the voters; provided, that emergency acts, or acts 
for the immediate preservation of the public peace, health, or 
safety shall continue in effect until rejected by the voters or 
repealed by the legislature. Filing of a referendum petition 
against one or more items, sections, or parts of an act shall not 
delay the remainder of the measure from becoming operative. 

Section 1 D. Nothing in this section shall be construed to 
deprive any member of the legislature of the right to introduce 
any measure. The whole number of votes cast for governor at 
the regular election last preceding the filing of any initiative or 
referendum petition shall be the basis on which the number of 
legal voters required to sign such petition shall be computed. 
The veto power of the governor shall not extend to measures 



198 State-wide Initiative, Referendum, and Recall 

initiated by or referred to the people. All such measures shall 
become the law or a part of the constitution when approved by a 
majority of the votes cast thereon, provided, the votes cast in 
favor of said initiative measure or part of said Constitution 
shall constitute thirty-five per cent (35 %) of the total vote 
cast at said election, and not otherwise, and shall take effect 
upon proclamation by the governor, which shall be made within 
ten days of the completion of the official canvass. The vote upon 
initiative and referendum measures shall be returned and can- 
vassed in the same manner as is prescribed in the case of presi- 
dential electors. The method of submitting and adopting 
amendments to the constitution provided by this section shall 
be supplementary to the method prescribed in the article of this 
constitution, entitled "Amendments" and the latter shall in no 
case be construed to conflict herewith. This amendment shall be 
self-executing, but legislation may be enacted especially to facili- 
tate its operation. In submitting petitions and orders for the 
initiative and the referendum, the Secretary of State and all other 
officers shall be guided by this amendment and the general laws 
until additional legislation shall be especially provided therefor ; 
all propositions submitted in pursuance hereof shall be submitted 
in a nonpartisan manner and without any indication or sugges- 
tion on the ballot that they have been approved or endorsed by 
any political party or organization, and provided further that 
only the title of measures shall be printed on the ballot and when 
two or more measures have the same title they shall be numbered 
consecutively in the order of filing with the Secretary of State and 
including the name of the first petitioner. 

Section 3. That Section 10, of Article 3, of the Constitution 
of the state of Nebraska be amended to read as follows : — 

Section 10. The style of all bills shall be " Be it enacted by the 
people of the State of Nebraska," and no law shall be enacted 
except by bill. No bill shall be passed by the legislature unless 
by assent of a majority of all the members elected to each house 
of the legislature and the question upon final passage shall be 



The Initiative and Referendum 199 

taken immediately upon its last reading and the yeas and nays 
shall be entered upon the journal. 

Section 4. That at said election on the Tuesday succeeding 
the first Monday in November, 191 2, on the ballot of each elector 
voting thereat there shall be printed or written the words: 
"For proposed amendment to the constitution reserving to the 
people the right of direct legislation through the initiative and 
referendum," and "Against proposed amendment to the constitu- 
tion reserving to the people the right of direct legislation through 
the initiative and referendum." And if a majority of all voters 
at said election shall be in favor of such amendment the same 
shall be deemed to be adopted. The returns of said election upon 
the adoption of this amendment shall be made to the state can- 
vassing board and said board shall canvass the vote upon the 
amendment herein in the same manner as is prescribed in the 
case of presidential electors. If a majority of the votes cast at 
the election be in favor of the proposed amendment the governor, 
within ten days after the result is ascertained, shall make proc- 
lamation declaring the amendment to be part of the constitu- 
tion of the state, and when so declared the amendment herein 
proposed shall be in force and self-executing. 

M. R. Hopewell, 

President of the Senate, 
Attest : 

Wm. H. Smith, 

Secretary of the Senate. 
John Kuhl, 
Speaker of the House of Representatives. 
Attest : 

Henry C. Richmond, 
Chief Clerk of the House of Representatives. 
Approved March 24, 191 1. 

Chester H. Aldrich, 
Governor. 



200 State-wide Initiative, Referendum, and Recall 

XV. Idaho (Proposed) 

[The 191 1 session of the Idaho Legislature passed initiative, 
referendum and recall (not including the judiciary) amendments 
to the state constitution. (See below, p. 271, for the recall amend- 
ment.) The electors will vote on these measures at the next 
general election in the state — November, 191 2.] 

Referendum Amendment 1 

Be it Resolved By the Legislature of the State of Idaho : — 

Section 1. That Section 1 of Article 3 of the Constitution of 
the State of Idaho be amended by adding thereto the following : 
The people reserve to themselves the power to approve or reject 
at the polls any act or measure passed by the Legislature. This 
power is known as the Referendum, and legal voters may, under 
such conditions and in such manner as may be provided by Acts 
of the Legislature, demand a referendum vote on any act or 
measure passed by the Legislature and cause the same to be sub- 
mitted to a vote of the people for their approval or rejection. 

Section 2. The question to be submitted to the electors of the 
State shall be in form as follows, to-wit : "Shall Section 1 of 
Article 3 of the Constitution of the State of Idaho be so amended 
as to give the people the power (under conditions to be hereafter 
prescribed by act of the Legislature) to propose a referendum 
vote on any act or measure passed by the State Legislature and 
to approve or reject the same at the polls, independent of the 
Legislature?" 

Section 3. The Secretary of State is hereby authorized to 
make publication of this constitutional amendment in each 
county for at least six consecutive weeks prior to the next general 
election in not less than one newspaper of general circulation 
published in each county. 

Passed Senate, February 17, 191 1. 
Passed House, February 24, 191 1. 

Official copy. 



The Initiative and Referendum 201 



Initiative Amendment 

Be it Resolved by the Legislature of the State of Idaho : — 

Section 1. That Section 1 of Article 3 of the Constitution of 
the State of Idaho be amended by adding thereto the following : 
The people reserve to themselves the power to propose laws, and 
enact the same at the polls independent of the Legislature. This 
power is known as the initiative, and legal voters may, under 
such conditions and in such manner as may be provided by Acts 
of the Legislature, initiate any desired legislation and cause the 
same to be submitted to the vote of the people at a general elec- 
tion for their approval or rejection, provided that legislation thus 
submitted shall require the approval of a number of voters equal 
to a majority of the aggregate vote cast for the office of Governor 
at such general election, to be adopted. 

Sec. 2. The question to be submitted to the electors of the 
state shall be in form as follows: "Shall Section 1 of Article 3 
of the Constitution of the State of Idaho be so amended as to give 
the people power (under conditions to be hereafter prescribed 
by acts of the Legislature) to propose laws of their own initiative 
and enact the same at the polls independent of the Legislature ? " 
Section 3. The Secretary of State is hereby authorized to 
make publication of this constitutional amendment in each 
county for at least six consecutive weeks prior to the next gen- 
eral election in not less than one newspaper of general circula- 
tion published in each county. 

Passed Senate, February 17, 191 1. 
Passed House, February 24, 191 1. 

XVI. Wyoming (Proposed) 1 

[The following act providing for the submission of a constitu- 
tional amendment relative to the initiative and referendum in 
Wyoming was approved on February 18, 191 1. It will be sub- 
mitted to the voters at the election in November, 19 12.] 

1 Session Laws, 191 1, pp. 71 ff. 



202 State-wide Initiative, Referendum, and Recall 

An Act to submit to the qualified voters of the State of Wyoming 
an amendment to Section i of Article 3 of the Constitution of 
the State of Wyoming, providing for the initiative and refer- 
endum, and for the manner of submitting to the voters laws and 
amendments to the Constitution. 
Be It Enacted by the Legislature of the State of Wyoming : — 
Shall be Submitted. 

Section 1. The following constitutional amendment shall be 
submitted to the qualified electors of the State of Wyoming at 
the next general election [November, 191 2] for their approval or 
rejection, and when ratified by a majority of the electors voting 
at said election the same shall be valid as a part of the Constitu- 
tion. 
People May Approve or Reject. 

Sec. 2. That Section 1 of Article 3 of the Constitution of the 
State of Wyoming be so amended as to read as follows : — 

"Section 1. The legislative power of the state shall be vested 
in a Senate and House of Representatives, which shall be desig- 
nated 'The Legislature of the State of Wyoming,' but the people 
reserve to themselves the power to propose laws and amendments 
to the Constitution and to enact or reject the same at the polls, 
and also reserve power at their option to approve or reject at the 
polls any act of the Legislature. 
Initiative — Twenty-five Per Cent Required. 

"The first power hereby reserved by the people is the initiative, 
and at least twenty-five per cent of the legal voters shall be re- 
quired to propose any measure by petition, and every such peti- 
tion shall include the full text of the measure so proposed. Ini- 
tiative petitions for state legislation and amendments to the Con- 
stitution shall be addressed to and filed with the Secretary of 
State at least four months before the election at which they are 
to be voted upon. 
Referendum — Provisions of Same. 

"The second power hereby reserved is the referendum, and 
it may be ordered, except as to appropriations, against any act 



The Initiative and Referendum 203 

of the Legislature after it has become a law either by the ap- 
proval of the Governor or his failure to veto, either by petition 
signed by not less than twenty-five per cent of the legal voters 
or by the Legislature. Referendum petitions shall be addressed 
to and filed with the Secretary of State not more than ninety 
days after the final adjournment of the session of the Legislature 
that passed the bill on which the referendum is demanded. The 
filing of a referendum petition against any act shall not affect 
the validity of the act until disapproved by the people as herein- 
after provided. The veto power of the Governor shall not extend 
to measures initiated and passed by the people, but laws passed 
by initiative shall be subject to amendment and repeal as other 
statutes. All elections on measures referred to the people of 
the state shall be held at the biennial general election. Each 
measure submitted to the people by the initiative as a law shall 
become a law when approved by a majority of the votes cast 
thereon, and not otherwise, save that no measure shall become a 
law unless it shall receive in its favor the votes of not less than 
one-third of the electors voting at such election. 
Shall Become Part of Constitution — When. 

" Each measure submitted to the people by initiative as a part 
of the Constitution shall become a part of the Constitution when 
approved by a majority of the electors voting at such election, 
and not otherwise, and such laws and parts of the Constitution 
when approved as above stated shall take effect from and after 
the date of the official declaration of the vote thereon by proclama- 
tion of the Governor, but not later than thirty days after the vote 
has been canvassed. 
One-third of Electors Must Vote. 

"Each statute submitted to the electors on referendum shall 
remain in full force as if not so submitted, unless a majority of the 
votes cast thereon shall be against such statute, but no law sub- 
mitted by referendum shall be declared defeated unless at least 
one-third of the electors voting at such election shall cast their 
votes against the same. 



204 State-wide Initiative, Referendum, and Recall 

On Regular Ballot — Constitutional Amendments on Separate 
Ballot. 

"Every measure submitted to the people, whether by the legis- 
lature or by initiative or by referendum, to become a law, shall be 
submitted on a regular ballot which contains the names of candi- 
dates for office ; constitutional amendment shall be submitted to 
the people upon a separate ballot. 
Basis Determined. 

"This section shall not be construed to deprive the Legislature 
of the right to enact any measure. The whole number of votes 
cast for Secretary of State at the regular general election last 
preceding the filing of any petition for the initiative or referen- 
dum shall be the basis on which the number of legal voters neces- 
sary to sign such petition shall be determined. 
Secretary of State Shall Submit — Signatures Must Be Veri- 
fied. 

"The Secretary of State shall submit all measures initiated by, 
or referred to the people for adoption or rejection at the polls, in 
compliance herewith. The petition shall consist of sheets hav- 
ing such general form written or printed at the top thereof, as 
shall be designated or prescribed by the Secretary of State; 
such petition shall be signed by qualified electors, in their own 
proper persons only, to which shall be attached the residence 
address of such person and the date of signing the same. To 
each of such petitions, which may consist of one or more sheets, 
shall be attached affidavits by three separate qualified electors, 
that each signature thereon is the signature of the person whose 
name it purports to be, and that to the best of the knowledge and 
belief of the affiant each of the persons signing said petition so 
verified was, at the time of signing, a qualified elector. Such 
petition so verified shall be prima facie evidence that the signa- 
tures thereon are genuine and true, and that the persons signing 
the same are qualified electors. The text of all measures to be 
submitted shall be published as constitutional amendments are 
published, and in submitting the same and all matters pertaining 



The Initiative and Referendum 205 

to the form of all petitions, the Secretary of State and all other 
officers shall be guided by the Constitution and general laws, and 
the act submitting this amendment, until legislation in harmony 
herewith shall be especially provided therefor. 
Each Measure Voted for Separately. 

"Each separate measure, whether a law or a constitutional 
amendment, shall be voted upon separately, and no general mark 
either at the head or elsewhere on any official ballot shall be 
counted as voting separately on any measure. 
Must Contain Enacting Clause. 

"The style of all laws adopted by the people through the ini- 
tiative shall be, 'Be It Enacted by the People of the State of 
Wyoming.' 

"This section of the Constitution shall be, in all respects, self- 
executing." 
Ballot Must Contain — How Voted. 

Sec. 3. The general ballot upon which are the names of the 
candidates for offices at the next general election shall have printed 
or written thereon the words, "For the amendment to Section 1 
of Article 3 of the Constitution, providing for the initiative and 
referendum, and for the manner of submitting to the voters laws 
and amendments to the Constitution," and "Against the amend- 
ment to Section 1 of Article 3 of the Constitution, providing for 
the initiative and referendum, and for the manner of submitting 
to the voters laws and amendments to the Constitution." Each 
elector voting at said election who desires to indicate his or her 
approval or rejection of the proposition for said constitutional 
amendment shall indicate the same by a cross (X) after one of 
such sentences so as to indicate his or her approval or rejection. 
The vote cast for the adoption or rejection of said amendment 
shall be canvassed and the result determined in the manner pro- 
vided by the laws of the State of Wyoming for the canvass of 
votes for Representative in Congress, save and except that said 
amendment shall be declared carried only when approved by a 
majority of the electors, and not otherwise. 



206 State-wide Initiative, Referendum, and Recall 

Sec. 4. This act shall take effect and be in force from and after 
its passage. 

Approved February 18th, 191 1. 

XVII. Wisconsin (Proposed) 

[The following amendment to the constitution of Wisconsin was 
passed by the legislature at the 191 1 session. It must be repassed 
by the next legislature before being submitted to popular vote.] l 

[Jt. Res. No. 36, A.] 

Joint Resolution to amend section 1, of article IV of the constitution, 
to give to the people the power to propose laws and to enact or 
reject the same at the polls, and to approve or reject at the polls 
any act of the legislature; and to create section 3, of article XII 
of the constitution, providing for the submission of amendments to 
the constitution upon the petition of the people. 

Resolved by the Assembly, the Senate concurring, That section 1, 
of article IV of the constitution, be amended to read : — 

Section i. i. The legislative power shall be vested in a 
senate and assembly, but the people reserve to themselves power, as 
herein provided, to propose laws and to enact or reject the same 
at the polls, independent of the legislature, and to approve or reject 
at the polls any law or any part of any law enacted by the legislature. 
The limitations expressed in the constitution on the power of the 
legislature to enact laws, shall be deemed limitations on the power of 
the people to enact laws. 

2. a. Any senator or member of the assembly may introduce, by 
presenting to the chief clerk in the house of which he is a member, in 
open session, at any time during any session of the legislature, any 
bill or any amendment to any such bill; provided, that the time for so 
introducing a bill may be limited by rule to not less than thirty legis- 
lative days. 

b. The chief clerk shall make a record of such bill and every amend- 
ment offered thereto and have the same printed. 

1 Official copy furnished by Mr. Gale Lowrie, in the Legislative Reference 
Library of Wisconsin. 



The Initiative and Referendum 207 

3. A proposed law shall be recited in full in the petition, and shall 
consist of a bill which has been introduced in the legislature during 
the first thirty legislative days of the session, as so introduced; or, 
at the option of the petitioners, there may be incorporated in said 
bill any amendment or amendments introduced in the legislature. 
Such bill and amendments shall be referred to by number in the 
petition. Upon petition filed not later than four months before 
the next general election, such proposed laws shall be submitted to a 
vote of the people, and shall become a law if it is approved by a 
majority of the electors voting thereon, and shall take effect and be 
in force from and after thirty days after the election at which it is 
approved. 

4. a. No law enacted by the legislature, except an emergency law, 
shall take effect before ninety days after its passage and publica- 
tion. If within said ninety days there shall have been filed a peti- 
tion to submit to a vote of the people such law or any part thereof, 
such law or such part thereof shall not take effect until thirty days 
after its approval by a majority of the qualified electors voting thereon. 

b. An emergency law shall remain in force, notwithstanding such 
petition, but shall stand repealed thirty days after being rejected 
by a majority of the qualified electors voting thereon. 

c. An emergency law shall be any law declared by the legislature 
to be necessary for any immediate purpose by a two-thirds vote of 
the members of each house voting thereon, entered on their journals 
by the yeas and nays. No law making any appropriation for 
maintaining the state government or maintaining or aiding any 
public institution, not exceeding the next previous appropriation 
for the same purpose, shall be subject to rejection or repeal under this 
section. The increase in any such appropriation shall only take 
effect as in case of other laws, and such increase, or any part thereof, 
specified in the petition may be referred to a vote of the people upon 
petition. 

5. If measures which conflict with each other in any of their 
essential provisions are submitted at the same election, only the 
measure receiving the highest number of votes shall stand as the 
enactment of the people. 



208 State-wide Initiative, Referendum, and Recall 

6. The petition shall be filed with the secretary of state and shall 
be sufficient to require the submission by him of a measure to the 
people when signed by eight per cent of the qualified electors calcu- 
lated upon the whole number of voles cast for governor at the last 
preceding election, of whom not more than one-half shall be resi- 
dents of any one county. 

7. The vote upon measures referred to the people shall be taken at 
the next election occurring not less than four months after the filing 
of the petition, and held generally throughout the state pursuant to 
law or specially called by the governor. 

8. The legislature shall provide for furnishing electors the text of all 
measures to be voted upon by the people. 

q. Except that measures specifically affecting a subdivision of 
the state may be submitted to the people of that subdivision, the legis- 
lature shall submit measures to the people only as required by the 
constitution. 

Be it further resolved by the assembly, the senate concurring, 
That article XII of the constitution be amended by creating a 
new section to read : — 

Section 3. 1. a. Any senator or member of the assembly may 
introduce, by presenting to the chief clerk in the house in which he 
is a member, in open session, at any time during any session of 
the legislature, any proposed amendment to the constitution 
or any amendment to any such proposed amendment to the 
constitution ; provided, that the time for so introducing a pro- 
posed amendment to the constitution may be limited by rule to 
not less than thirty legislative days. 

b. The chief clerk shall make a record of such proposed amend- 
ments to the constitution and any amendment thereto and have 
the same printed. 

2. Any proposed amendment to the constitution shall be re- 
cited in full in the petition and shall consist of an amendment 
which has been introduced in the legislature during the first 
thirty legislative days, as so introduced, or, at the option of the 
petitioners, there may be incorporated therein any amendment 



The Initiative and Referendum 209 

or amendments thereto introduced in the legislature. Such 
amendment to the constitution and amendments thereto shall be 
referred to by number in the petition. Upon petition filed not 
later than four months before the next general election, such 
proposed amendment shall be submitted to the people. 

3. The petition shall be filed with the secretary of state and 
shall be sufficient to require the submission by him of a proposed 
amendment to the constitution to the people when signed by 
ten per cent of the qualified electors, calculated upon the whole 
number of votes cast for governor at the last preceding election 
of whom not more than one-half shall be residents of any one 
county. 

4. Any proposed amendment or amendments to this constitu- 
tion, agreed to by a majority of the members elected to each of 
the two houses of the legislature, shall be entered on their journals 
with the yeas and nays taken thereon, and be submitted to the 
people by the secretary of state upon petition filed with him signed 
by five per cent of the qualified electors, calculated upon the 
whole number of votes cast for governor at the last preceding 
election of whom not more than one-half shall be residents of 
any one county. 

5. The legislature shall provide for furnishing the electors the 
text of all amendments to the constitution to be voted upon by 
the people. 

6. If the people shall approve and ratify such amendment or 
amendments by a majority of the electors voting thereon, such 
amendment or amendments shall become a part of the constitu- 
tion, from and after the election at which approved ; provided, 
that if more than one amendment be submitted they shall be 
submitted in such manner that the people may vote for or against 
such amendments separately. 

7. If proposed amendments to the constitution which conflict 
with each other in any of their essential provisions are submitted 
at the same election, only the proposed amendment receiving the 
highest number of votes shall become a part of the constitution. 



210 State-wide Initiative, Referendum, and Recall 

XVIII. North Dakota 

[In 1907 the legislature of North Dakota passed a constitutional 
amendment providing for the initiative and referendum, but it 
was not adopted by the 1909 session, in accordance with the 
requirements of the Constitution of the State, and hence it was 
not submitted for popular ratification. In the 1910 primary 
campaign the Progressive Republicans adopted the initiative and 
referendum as a plank in their platform and the party ratified 
it in the campaign following. At the last session of the legis- 
lature the five following resolutions were passed and referred to 
the 1913 session for adoption or rejection. Any one of these 
resolutions so adopted will then be referred to the voters in the 
1914 election. The texts here are from The Session Laws of 

IQII.] 

CHAPTER 85 
(S. B. No. 281 — Bessesen) 

Concurrent Resolution {The Recall) 

Concurrent Resolution for an Amendment to the Constitution 
of the State of North Dakota, Providing for the Recall of Public 
Officers by the People. 

Be it Resolved by the Senate of the State of North Dakota, the House 
of Representatives Concurring : — 

That the following Proposed Amendment to the Constitution of 
the State of North Dakota is Agreed to and Referred to the 
Legislative Assembly to be Chosen at the Next General Elec- 
tion in said State for the Approval, to be by Said Last Mentioned 
Legislative Assembly Submitted to the Qualified Electors of 
the State for Approval or Rejection, in Accordance with the 
Provisions of Section 202 of the Constitution of the State of 
North Dakota. 
Amendment. The constitution of the state of North Dakota 

is amended by the addition of the following article : — 

Article. — Every public officer in North Dakota is subject 

as herein provided, to recall by the legal voters of the state or of 

the electoral district from which he is elected. There shall be 



The Initiative and Referendum 211 

required twenty-five (25) per cent, but no more, of the number of 
electors who voted in his district at the preceding election for 
justice of the supreme court to file their petition demand- 
ing his recall by the people. They shall set forth in said 
petition the reasons for said demand. If he shall offer his resig- 
nation it shall be accepted and take effect on the day it is offered, 
and the vacancy shall be filled as may be provided by law. If he 
shall not resign within five days after the petition is filed, a 
special election shall be ordered to be held within twenty days in 
his said electoral district to determine whether the people will 
recall said officer. On the sample ballot at said election shall be 
printed in not more than two hundred words the reason for de- 
manding the recall of said officer as set forth in the recall petition, 
and in not more than two hundred words the officer's justi- 
fication of his course in office. He shall continue to perform the 
duties of his office until the result of said special election shall be 
officially declared. Other candidates for the office may be 
nominated to be voted for at said special election, the candidate 
who shall receive the highest number of votes shall be deemed 
elected for the remainder of the term, whether it be the person 
against whom the recall petition was filed or another. The recall 
petition shall be filed with the officer with whom a petition for 
nomination to such office should be filed, and the same officer 
shall order the special election when it is required. No such pe- 
tition shall be circulated against any officer until he has actually 
held his office six months, save and except that it may be filed 
against a senator or representative in the legislative assembly 
at any time after fifteen days from the beginning of the first 
session after his election. After one such petition and special 
election, no further recall petition shall be filed against the same 
officer 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. Such additional legislation 
as may aid the operation of this section shall be provided by the 



212 State- wide Initiative, Referendum, and Recall 

legislative assembly, including provision for payment by the 
public treasury of the reasonable special election campaign 
expenses of such officer. But the words "the legislative assem- 
bly shall provide," or any similar or equivalent words in this 
constitution or any amendment thereto shall not be construed 
to grant to the legislative assembly any exclusive power of law- 
making nor in any way to limit the initiative and referendum 
powers reserved by the people. 

CHAPTER 86 

(S. B. No. 84 — Plain) 

Providing Direct Legislation 

A Concurrent Resolution Amending the Constitution of the State 
of North Dakota, Relating to the Legislative Department and 
Providing for Direct Legislation; the Proposing of Constitu- 
tional Amendments, and Reference of Laws. 

Be It Resolved by the Senate of the State of North Dakota, the House 

of Representatives Concurring : — 

That the following amendment to the constitution of the state 
of North Dakota be referred to by Legislative Assembly to be 
chosen at the next general election in said state, and, if approved 
by the last named legislative assembly, the same be submitted 
to the qualified electors of the state for approval or rejection, in 
accordance with the provisions of Section 202 of the Constitution 
of the State of North Dakota. 

Amendment to the Constitution. That Section 25 of Ar- 
ticle 2 of the constitution of the state of North Dakota is hereby 
amended to read as follows : — 

25. The legislative authority of the state of North Dakota 
shall be vested in a legislative assembly consisting of a senate 
and a house of representatives, but the people reserve to them- 
selves the power to propose laws and amendments to the state 
constitution and to enact and approve or reject the same at the 



The Initiative and Referendum 213 

polls, except as to local or special laws, as enumerated in Sec- 
tion 70 of Article 2 of this constitution, independently of the legis- 
lative assembly ; and also reserve the power, at their own option, 
to approve or reject and annul at the polls any act, item, section 
or part of any act or measure passed by the legislative assembly 
except as to laws relating to appropriation of money, and except 
as to local or special laws, as enumerated in Section 70 of Article 
2 of this constitution. The first power reserved by the people is 
the initiative. Any measure or constitutional amendment may 
be proposed by the people by initiative petition, signed by not 
less than ten per cent, or if an amendment to the constitution 
not less than fifteen per cent of the legal voters in each county of 
at least one-half of the counties of the state. Any such petition 
shall contain the full text of the proposed measure. Such peti- 
tions shall be filed with the secretary of state not less than four 
months prior to the election at which they are to be voted on, or 
not less than twenty days after the opening session of the legis- 
lative assembly to which such petitions are to be presented. 
The secretary of state shall transmit the same to the house of 
representatives of such legislative assembly on the first day of the 
session thereof, or not later than ten days after the same are 
filed. Measures or amendments to the constitution so proposed 
shall take precedence over all other measures in the legislative 
assembly, except appropriation bills, and shall be either enacted 
or rejected by the legislative assembly without amendment, at 
that session. Any such measure or amendment, if enacted 
or agreed to by the legislative assembly, shall be subject to refer- 
endum upon a petition as hereinafter provided, or it may be 
referred to the people by the legislative assembly for approval 
or rejection. In the event that it is rejected, or if no action is 
taken upon it by the legislative assembly at that session, the 
secretary of state shall submit it to the people for approval or 
rejection at the next general election. The legislative assembly 
may propose a different measure or constitutional amendment to 
accomplish the same purpose, whereupon both measures, or both 



214 State-wide Initiative, Referendum, and Recall 

amendments, shall be submitted by the secretary of state to 
the people for approval or rejection at the next ensuing general 
election. If conflicting measures or amendments are submitted 
to the people at a general election and each receives a majority 
of the votes cast for and against the same respectively, then the 
one receiving the highest number of affirmative votes shall be 
thereby deemed enacted and approved and all others rejected. 
When any measure so approved at the polls, as provided herein, 
is a constitutional amendment, it shall be referred to the next leg- 
islative assembly, and should such amendment be approved by a 
majority of the members elected to each house thereof, such 
amendment shall become a part of the constitution of the state. 
If such amendment be rejected by the next legislative assembly, 
it shall again be submitted to the people at the next general 
election for approval or rejection, and if the said amendment the 
second time receives a majority of all the votes cast thereon at 
such election, it shall become a part of the constitution of the 
state. The second power reserved is the referendum, or the 
power to order any act, item, or part of any act of the legislative 
assembly to be referred to the people for their approval or rejec- 
tion at the polls. A referendum may be ordered as to any meas- 
ure or any part, item or section of any measure passed by the 
legislative assembly upon a majority vote of the members elect 
thereof, or by a petition signed by at least ten per cent of the 
legal voters in each county of at least one-half of the counties 
of the state, whereupon such act, measure, part or parts thereof 
so ordered shall be suspended until the referendum vote shall 
determine whether or not the law is sustained or defeated, pro- 
vided, that when it is necessary for immediate preservation of 
the public health, peace or safety that a law become effective 
without delay, such necessity and the facts creating the same, shall 
be stated in one section of the bill, and if upon aye and nay vote 
in each house of the legislative assembly, two thirds of all the 
members-elect thereto shall vote on a separate roll call in favor of 
such law going into instant operation on account of the necessity 



The Initiative and Referendum 215 

for the same, such law shall become operative upon approval by 
the governor, and shall not be subject to a referendum. The ref- 
erence to the people of one or more items, sections or parts of any 
duly enacted act or emergency law shall not delay the remainder 
of that act or law from becoming operative. All referendum 
petitions shall be filed with the secretary of state within ninety 
days after the final adjournment of the session of the legislative 
assembly which passed the measure upon which the referendum 
is demanded. The veto power of the governor shall not extend 
to measures initiated by, or referred to and approved by the 
people. All elections on measures referred to the people shall 
be had at biennial regular general elections, unless provisions be 
made by law for a special election on such measures. Any 
measure thus referred to the people shall become a law when it is 
approved by a majority of the votes cast thereon, and not other- 
wise, and shall be in force from the date of the official declara- 
tion of the vote by the state board of canvassers. The enacting 
clause of all measures initiated by the people shall be; "Be it 
enacted by the people of North Dakota." The basis for the 
computation of the number of signatures required for any ini- 
tiative or referendum petition shall be the total vote cast for 
governor at the last general election in the counties where such 
petitions are signed. 

The section shall not be construed to deprive any member of 
the legislative assembly of the right to introduce any measure. 

The secretary of state and all other officers shall be guided 
by the general laws and this act in filing and submitting initiative 
and referendum petitions until legislation shall be enacted there- 
for. 

This amendment shall be self-executing, but laws may be 
enacted for the purpose of facilitating its operation. 



216 State-wide Initiative, Referendum, and Recall 

CHAPTER 89 

(S. B. No. 153 — Gibbens) 

Concurrent Resolution 

A Concurrent Resolution Amending the Constitution of the 
State of North Dakota, Providing for the Future Amendment 
Thereof. 

Be It Resolved by the Senate of the State of North Dakota, the House 
of Representatives Concurring : — 

§ 1. That the following proposed amendment to section 202 of 
article 15 of the constitution of the state of North Dakota, be 
referred to the legislative assembly to be chosen at the next 
general election in the state of North Dakota to be, if approved 
by said last mentioned legislative assembly, submitted to the 
qualified electors of the state for approval or rejection in accord- 
ance with the provisions of section 202 of the constitution of the 
state of North Dakota. 

Amendment. Article 15, section 202 of the constitution of 
the state of North Dakota is amended so as to read as follows : 

§ 202. This constitution may be amended as follows : — 

First. Any amendment or amendments to this constitution 
may be proposed in either house of the legislative assembly; 
and if the same shall be agreed to by a majority of the members 
elected to each of the two houses, such proposed amendment 
shall be entered on the journal of the house with the yeas and 
nays taken thereon, and referred to the legislative assembly 
to be chosen at the next general election, and shall be published, 
as provided by law, for three months previous to the time of mak- 
ing such choice, and if in the legislative assembly so next chosen 
as aforesaid such proposed amendment or amendments shall be 
agreed to by a majority of all members elected to each house, 
then it shall be the duty of the legislative assembly to submit 
such proposed amendment or amendments to the people in such 






The Initiative and Referendum 217 

manner and at such times as the legislative assembly shall pro- 
vide; and if the people shall approve and ratify such amend- 
ment or amendments by a majority of the electors qualified to 
vote for members of the legislative assembly voting thereon, 
such amendment or amendments shall become a part of the con- 
stitution of this state. If two or more amendments shall be sub- 
mitted at the same time they shall be submitted in such manner 
that the electors shall vote for or against each of such amend- 
ments separately. 

Second. Any amendment or amendments to this constitu- 
tion may also be proposed by the people by the filing with the 
secretary of state, at least six months previous to a general elec- 
tion, of an initiative petition containing the signatures of at least 
twenty-five per cent of the legal voters in each of not less than 
one-half of the counties of the state. When such petition has 
been properly filed the proposed amendment or amendments 
shall be published as the legislature may provide for three months 
previous to the general election, and shall be placed upon the 
ballot to be voted upon by the people at the next general elec- 
tion. Should any such amendment or amendments proposed by 
initiative petition and submitted to the people receive a major- 
ity of all the legal votes cast at such general election, such amend- 
ment or amendments shall be referred to the next legislative 
assembly and should such proposed amendment or amendments 
be agreed upon by a majority of all the members elected to each 
house, such amendment or amendments shall become a part 
of the constitution of this state. Should any amendment or 
amendments proposed by initiative petition and receiving a 
majority of all the votes cast at the general election as herein 
provided, but failing to receive approval by the following legis- 
lative assembly to which it has been referred, such amendment 
or amendments shall again be submitted to the people at the next 
general election for their approval or rejection as at the pre- 
vious general election. Should such amendment or amendments 
receive a majority of all the legal votes cast at such succeeding 



ai 8 State-wide Initiative, Referendum, and Recall 

general election, such amendment or amendments at once be- 
come a part of the constitution of this state. Any amendment 
or amendments proposed by initiative petition and failing of 
adoption as herein provided, shall not be again considered until 
the expiration of six years. 

CHAPTER 93 

(S. B. No. 5 — Bessesen) 
Concurrent Resolution 

A Concurrent Resolution for an Amendment to the Constitution 

Providing for the Initiative and Referendum. 
Be It Resolved by the Senate of the State of North Dakota, the House 

of Representatives Concurring : — 

That the following amendment to the constitution of the state 
of North Dakota, providing for the initiative and referendum, 
shall be referred to the next legislative assembly to be chosen 
at the next general election in said state, and with the approval 
of said legislative assembly be submitted to the qualified elec- 
tors for adoption or rejection, in accordance with the provisions 
of section 202 of the constitution of the state of North Dakota. 

Amendment. Section 25 of Article 2 of the constitution of 
the state of North Dakota is hereby amended to read as follows : 

§ 25. The legislative authority of the state of North Dakota 
shall be vested in a legislative assembly consisting of a senate 
and house of representatives, but the people reserve to themselves 
power to propose laws and to enact or reject the same at the 
polls, independent of the legislative assembly, and also reserve 
power, at their own option, to approve or reject at the polls any 
act, item, section or part of any act or measure passed by the 
legislative assembly. The first power reserved by the people 
is the initiative, or the power to propose measures for enactment 
into laws, and at least ten per cent of the legal voters to be se- 
cured in a majority of the counties of this state shall be required 
to propose any measure by initiative petition, and every such 



The Initiative and Referendum 219 

petition shall include the full text of the measure so proposed. 
Initiative petitions shall be filed with the secretary of state not 
less than thirty days before any regular session of the legislative 
assembly ; he shall transmit the same to the legislative assembly 
as soon as it convenes. Such initiative measure shall take 
precedence over all other measures in the legislative assembly 
except appropriation bills, and shall be either enacted or re- 
jected without change or amendment by the legislative as- 
sembly within forty days. If any such initiative measure shall 
be enacted by the legislative assembly it shall be subject to 
referendum petition or it may be referred by the legislative 
assembly to the people for approval or rejection. If it is re- 
jected or no action is taken upon it by the legislative assembly 
within said forty days, the secretary of state shall submit it to 
the people for approval or rejection at the next ensuing regu- 
lar general election. The legislative assembly may reject any 
measure so proposed by initiative petition and propose a differ- 
ent one to accomplish the same purpose, and in any such event 
both measures shall be submitted by the secretary of state to the 
people for approval or rejection at the next ensuing regular elec- 
tion. If conflicting measures submitted to the people at the next 
ensuing election shall be approved by a majority of the votes 
cast for and against the same, the one receiving the highest num- 
ber of affirmative votes shall thereby become valid and the other 
shall thereby be rejected. The second power is the referendum, 
or the power to order any act, item, or part of any act to be re- 
ferred to the people for their approval or rejection at the polls, 
and it may be ordered (except as to laws necessary for the im- 
mediate preservation of the public peace, health or safety), as 
to any measure or any parts, items or sections of any measure 
passed by the legislative assembly either by a petition signed by 
ten per cent of the legal voters of the state from a majority of the 
counties or by the legislative assembly, if a majority of the mem- 
bers elect vote therefor. When it is necessary for the immediate 
preservation of the public peace, health or safety that a law shall 



220 State-wide Initiative, Referendum, and Recall 

become effective without delay, such necessity and the facts 
creating the same shall be stated in one section of the bill, and 
if upon aye and no vote in each house two-thirds of all the mem- 
bers elected to each house shall vote on a separate roll call in 
favor of the said law going into instant operation for the imme- 
diate preservation of the public peace, health or safety, such law 
shall become operative upon approval by the governor. 

The filing of a referendum petition against one or more items, 
sections or parts of an act shall not delay the remainder of that 
act from becoming operative. Referendum petitions against 
measures passed by the legislative assembly shall be filed with the 
secretary of state not more than ninety days after the final ad- 
journment of the session of the legislative assembly which passed 
the measure on which the referendum is demanded. The veto 
power of the governor shall not extend to measures referred to the 
people. All elections on measures referred to the people of the 
state shall be had at biennial regular elections, except as provision 
may be made by law for a special election or elections. Any 
measure referred to the people shall take effect when it is ap- 
proved by a majority of the votes cast thereon and not otherwise 
and shall be in force from the date of the official declaration of 
the vote. 

The enacting clause of all the initiative bills shall be "Be it 
enacted by the people of the state of North Dakota." This sec- 
tion shall not be construed to deprive any member of the legis- 
lative assembly of the right to introduce any measure. The 
whole number of votes cast for secretary of state at the regular 
election last preceding the filing of any petition for the initiative 
or for the referendum shall be the basis on which the number of 
legal votes necessary to sign such petition shall be counted. 

Petitions and orders for the initiative and for the referendum 
shall be filed with the secretary of state, and in submitting the 
same to the people he and all other officers shall be guided by the 
general laws and the act submitting this amendment until legis- 
lation shall be specially provided therefor. 



The Initiative and Referendum 221 

This amendment shall be self-executing, but legislation may 
be enacted to facilitate its operation. 

CHAPTER 94 

(H. B. No. 237 — Doyle of Foster and Ployhar) 

Concurrent Resolution 

A Concurrent Resolution for Amendment of the Constitution Pro- 
viding for the Initiative and Referendum, and the Provisions 
Thereof j the Recall of Public Officers and Future Amendments 
to the Constitution. 

Be It Resolved by the House of Representatives of the State of 
North Dakota, and the Senate Therein Concurring : — 
That the following amendments to the constitution of the state 
of North Dakota be referred to the legislative assembly to be 
chosen at . the next general election, be published, and upon 
agreement to by the legislative assembly so next chosen as 
aforesaid, be submitted to the people at the general election in 
the year 1914 for approval or rejection, in accordance with the 
provisions of section 202 of the constitution of the state of 
North Dakota. 

Amendments. Section twenty-five (25), fifty-seven (57), 
fifty-eight (58), fifty-nine (59), and sixty-five (65) of article two 
(2) and section 201 of article fourteen (14), and section 202 of 
article fifteen (15) of the constitution of the state of North Da- 
kota shall be and are hereby amended to read as follows : — 

§ 25. The legislative authority of the state shall be vested in 
a legislative assembly, consisting of a senate and house of repre- 
sentatives, but the people reserve to themselves the power : 
First to propose laws, legislative measures, resolutions and 
amendments to the constitution and to enact and approve or 
reject the same at the polls independent of the legislative as- 
sembly or the governor (except that amendments to the con- 
stitution shall be once referred to the legislative assembly) and 
Second, at their own option, to order submitted to them, and to 



222 State-wide Initiative, Referendum, and Recall 

enact, approve and confirm or reject and annul at the polls any 
act, measure or resolution, or item, section, part or parts of any 
such as submitted to, proposed, enacted or rejected by the legis- 
lative assembly, or vetoed by the governor. 

The power first above reserved by the people is the Initiative 
and the second is the Referendum. Every initiative petition 
shall include the full text of the measure proposed, and not more 
than eight per cent, nor in any case more than twenty thousand 
(20,000) legal electors, shall be required to petition for and propose 
any measure to compel it to be submitted to the people at the 
polls, independent and regardless of, or notwithstanding non- 
enactment thereof by, the legislative assembly, or veto by the 
governor; providing that the initiative petition proposing an 
amendment or amendments to the constitution shall be signed 
by not more than 1 5 per cent of the legal electors in at least one- 
half of the counties of the state. Not more than five per cent, 
nor in any case more than ten thousand (10,000) legal electors, 
shall be required to petition and propose any measure or resolu- 
tion for enactment or agreement by the legislative assembly, or 
to order and employ the referendum power as to initiative meas- 
ure or resolution so submitted, or as to any other act, measure 
or resolution, or part thereof, as herein provided under the second 
power reserved by the people. All initiative petitions for meas- 
ures, except for municipal and wholly local legislation, shall be 
filed in the office of the secretary of state not less than four months 
prior to the election at which they are to be voted on, or, within 
twenty days after the opening session of the legislative assembly ; 
and whenever so filed and not submitted to vote at the election 
last preceding, shall be transmitted to the house of representa- 
tives at the opening session thereof (except proposed constitu- 
tional amendments approved at the preceding election shall be 
transmitted to the state senate together with any not voted on), or 
within ten days after filing ; provided, none shall be so transmitted 
after the thirtieth day of the term. Initiative measures shall 
take precedence over all others in such legislative assembly ex- 



The Initiative and Referendum 223 

cept appropriation bills and constitutional amendments referred 
by the people or a preceding legislative assembly, and shall be 
enacted, referred or rejected, without amendment, by the legisla- 
tive assembly at that term. If enacted, such measures shall be 
subject to referendum. If not enacted and not entitled hereby 
to be submitted to vote, then the legislative assembly, as it enacts 
other bills, may refer such proposed measures to the electors 
either alone or together with any to the same purpose and end, 
proposed and preferred by the legislative assembly. Whenever 
it shall be necessary for the immediate preservation of the public 
peace, health or safety that a law shall become effective, without 
delay, such necessity shall be stated in a separate section, and if, 
by a vote of yeas and nays, three-fourths of all members elected 
to each house, city council or commission, as the case may be, 
shall vote on a separate roll call, in favor of the measure going 
into instant operation because necessary for the immediate pres- 
ervation of the public peace, health or safety, such law shall 
become operative upon approval by the governor or mayor, as 
the case may be ; provided, that an emergency shall not be so 
declared in any measure creating or abolishing any office, or to 
change the salary, term or duty of any officer, or in disposing of 
any lands and natural resources belonging to the state. 

Referendum petitions or orders shall be filed in the office of 
the secretary of state not less than ninety days after the final 
adjournment of the legislative assembly which passed or to 
which was referred the measure on which referendum is de- 
manded. A referendum petition ordering submitted an emer- 
gency law shall not affect the same until said law is rejected and 
annulled at the polls, whereupon such law, item, section or part 
thereof so submitted shall be repealed. The filing of a referen- 
dum petition ordering submitted one or more items, sections or 
parts of any duly enacted act, legislative measure, resolution or 
ordinance shall not delay the remainder, not so ordered, from 
becoming operative. 

Whenever the purpose and object sought, stated and contained 



224 State-wide Initiative, Referendum, and Recall 

in conflicting or competing measures or resolutions submitted 
to the people, shall be affirmatively approved by a majority of 
the votes cast for and against such measures or resolutions, then 
the measure or resolution, embodying the purpose or object so 
approved, which received the largest number of affirmative votes, 
shall thereby become the law or constitutional amendment and 
all others shall thereby be rejected and repealed. 

The veto power of the governor or mayor shall not extend to 
measures initiated by or referred to or enacted by the people. 

All elections on general, local and special measures referred to 
the people of the state or of any locality shall be had at the bi- 
ennial regular general elections, except when otherwise provided 
by law, but counties, cities and towns may provide for special 
elections on their municipal and wholly local legislation. 

In case of laws, chiefly of local interest, whether submitted 
by initiative or referendum petition or by the legislative assem- 
bly, as for example, the division or creation of counties or creation 
of new or additional offices or officers, the same shall be submitted 
to, voted on and approved or rejected only by the people of the 
counties chiefly interested. 

Any measure submitted to the people at the polls, shall become 
enacted, be and become the law when it is approved by a ma- 
jority of the votes cast thereon (except as herein provided con- 
flicting or competing measures are submitted) and shall be in 
force and effect and become operative upon date of the certified 
statement of such vote by the state board of canvassers. 

Proposed amendments to the constitution shall in all cases be 
submitted to the people for approval or rejection. 

No statute, ordinance or resolution approved and enacted by 
vote of the electors shall be amended, repealed or in any particu- 
lar nullified by any subsequent legislation by the legislative 
assembly, city council or commission, except by a three-fourths 
vote of all members elected thereto, taken by yeas and nays. 

The enacting clause of all initiative bills shall be "Be it 
enacted by the people of the state of North Dakota." And of all 



The Initiative and Referendum 225 

ordinances "Be it ordained by the people of (name of munici- 
pality). This section shall not be construed to deprive any mem- 
ber of the legislative assembly, city council or commission, of the 
right to introduce any measure, nor shall this amendment be 
construed to limit in any degree the inherent right of petition 
to any person or persons. 

The whole number of votes cast for the office of secretary of 
state at the regular election last preceding the filing of any ini- 
tiative or referendum petition shall be the basis on which the 
number of legal electors necessary to sign such petition shall be 
computed. 

It shall be the duty of the secretary of state to submit to the 
electors at the polls all measures proposed and ordered by peti- 
tions or referred by the legislative assembly, so entitled and filed 
in his office, and to transmit all others to the legislative assembly 
in accordance herewith, and he and all other officers shall be 
guided by the general laws, the act submitting this amendment 
and the terms hereof until legislation shall be especially provided. 

It shall be the duty of the legislative assembly to which this 
amendment is referred to make provision by law for its execution 
in accordance herewith, in anticipation of its ratification by the 
people. 

All original initiative petitions shall be returned to or filed in 
the office of the secretary of state by the secretary of the senate 
not later than ten days after the final adjournment of that branch 
of the legislative assembly, with endorsement thereon, or, se- 
curely attached thereto, showing full and complete record of the 
action taken relative thereto in either and both houses of the 
legislative assembly and its final disposition thereof. 

The initiative and referendum powers are hereby further re- 
served to the electors of each municipality and district, as to all 
local, special and municipal legislation of every character, in and 
for their respective municipalities and districts. The provisions 
of this section shall apply as far as maybe made applicable to city 
councils, and commission forms of city government. 
Q 



226 State-wide Initiative, Referendum, and Recall 

Every extension, enlargement, grant or conveyance of a fran- 
chise or of any right, property, easement, lease or occupation of, 
or in any road, street, alley or park, or any part thereof, or in any 
real property owned by a municipal corporation, whether the 
same be made by statute, ordinance, resolution or otherwise, shall 
be subject to referendum by petition. 

Until general laws shall prescribe the manner of exercising the 
initiative and referendum powers as to their municipal legislation, 
cities and towns may provide by ordinance therefor. But not 
more than ten per cent of the legal electors may be required to 
order the referendum, not more than fifteen per cent to propose 
any measure by initiative in any city or town, and petitions for 
such measures ordering any submitted shall be filed with such 
officers within the county, city or district as is by law provided 
for the filing of petitions for nomination of candidates for public 
office. 

This amendment shall be self-executing, but legislation may be 
enacted especially to facilitate its operation. 

§ 57. Any bill may originate in either house of the legislative 
assembly, and a bill so originating, passed by one house may be 
amended by the other. 

§ 58. No law shall be passed by the legislative assembly ex- 
cept by a bill adopted by both houses, and no bill shall be so 
altered and amended on its passage through either house as to 
change its original purpose. 

§ 59. The enacting clause of every law originating in the legis- 
lative assembly shall be as follows : "Be it enacted by the Legis- 
lative Assembly of the State of North Dakota." 

§ 65. No bill (other than that approved and enacted by the 
people at the polls) shall become a law except by a vote of a 
majority of all the members elect in each house, nor unless, on its 
final passage in the legislative assembly, the vote be taken by 
yeas and nays, and the names of those voting be entered on the 
journal. 

The words "Legislative Assembly shall pass," "Legislative 



The Initiative and Referendum 227 

Assembly shall provide," "approve," etc., or words similar or 
equivalent in this constitution or any amendments thereto, 
wherever occurring, shall not be construed to grant to the legis- 
lative assembly any exclusive power of legislating, nor in any 
way to limit the initiative and referendum reserved by the 
people. 

article xrv 

§ 201. No person shall be liable to impeachment twice for the 
same offence. 

§ 201 A. Every public officer in North Dakota is subject as 
herein provided, to recall by the legal voters of the state or of the 
electoral district from which he is elected. There may be re- 
quired thirty per cent, but not more, of the number of electors 
who voted in his district at the preceding election for the office of 
secretary of state to file their petition demanding his recall by the 
people. They shall set forth in said petition the reasons for said 
demand. If he shall file an offer of his resignation, it shall be 
accepted and take effect on the day it is filed, and the vacancy 
shall be filled as may be provided by law. If he shall not resign 
within five days after the petition is filed, a special election shall 
be ordered to be held within twenty days in his said electoral 
district to determine whether the people will recall said officer. 

On the sample ballot at said election shall be printed in not 
more than two hundred words, the reason for demanding the 
recall of said officer as set forth in the recall petition, and in not 
more than two hundred words, the officer's justification of his 
course in office. He shall continue to perform the duties of his 
office until the result of said special election shall be officially 
declared. Other candidates for the office, previously nominated, 
may be voted for at said special election. The candidate who 
shall receive the highest number of votes shall be deemed elected 
for the remainder of the term, whether it be the person against 
whom the recall petition was filed, or another. The recall peti- 
tion shall be filed with the officer with whom a petition for nomi- 



228 State-wide Initiative, Referendum, and Recall 

nation to such office should be filed, and the recalled officer's 
resignation, should he resign, shall be filed with the same officer, 
and the same officer shall order a special election when it is 
required. No such petition shall be circulated against any officer 
until he has actually held his office six months, save and except 
that it may be filed against a senator or representative in the 
legislative assembly or a member of the city council, or com- 
mission or mayor at any time after five days from the beginning 
of his term of office. 

After one such petition and special election, no further recall 
petition shall be filed against same officer 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 of its expenses for the preceding special 
election. Such additional legislation as may aid the operation 
of this section shall be provided by law, including provision for 
payment by the public treasury of the reasonable special election 
campaign expenses of such officer. 

article xv 

FUTURE AMENDMENTS 

§ 202. Any amendment or amendments to this constitution 
may be proposed in either house of the legislative assembly, or 
by the people by initiative petition. Every initiative petition 
shall include the full text of the amendment or amendments 
proposed and shall be filed in the office of the secretary of the 
state not less than four months prior to the election at which such 
proposed amendment or amendments shall be voted on. 

When any measure, act or resolution, or item, section or part 
or parts of any such (irrespective of source) proposed as an 
amendment or amendments to this constitution, and published 
as provided by law, for three months previous to any general 
state election, and at such election, shall be approved by a ma- 
jority of the electors voting thereon, and, without amendment, 



The Initiative and Referendum 



229 



such proposed and approved amendment or amendments shall 
be agreed to and confirmed by a majority of the members elected 
to each of the two houses of the next legislative assembly, the 
same shall be entered in the journals of the two houses with the 
yea and nay vote and names of the members voting thereon; 
then and thereby such amendment or amendments shall become 
a part of the constitution of this state. 

If not agreed to and confirmed by the legislative assembly at 
that term, without amendment, then such proposed and approved 
amendment or amendments shall be submitted, by the secre- 
tary of state, a second time to the electors at the ensuing regular 
general election, or special election, provided by law. And, if 
the same shall be the second time approved and ratified by a 
majority of the electors voting thereon, then and thereby such 
amendment or amendments, shall become a part of the constitu- 
tion of this state. Or, if the legislative assembly shall agree to 
any amendment or amendments, (excepting any approved at the 
last preceding election, above provided for) the same shall be en- 
tered in both journals with the yea and nay vote as aforesaid, and 
it shall be the duty of the legislative assembly to refer the same 
to the people for approval or rejection at the ensuing general elec- 
tion, or at a special state election, provided by law; and such 
proposed amendment or amendments shall be published as afore- 
said and be submitted to the electors at the polls ; and if approved 
and confirmed by a majority of the electors voting thereon, then 
and thereby such amendment or amendments shall become a 
part of the constitution of this state. 

All amendments submitted to the voters and approved as 
herein shall be effective and operative as a part of the constitution 
on the date of the certified statement of such vote by the state 
board of canvassers. If two or more amendments shall be sub- 
mitted at the same election they shall be submitted in such man- 
ner that the electors shall vote for or against such amendment 
separately ; but may be presented, designated and identified on 
the ballot as provided by law. 



230 State-wide Initiative, Referendum, and Recall 

No convention shall be called to amend or propose amend- 
ments to this constitution, or to propose a new constitution, 
unless the law providing for such convention shall first be ap- 
proved by the people on a referendum vote at a regular general 
election. 

XIX. Arizona (Proposed) 

[The convention which framed the Arizona constitution met at 
Phoenix from October 10 to December 9, 1910. The constitu- 
tion was ratified February 27, 1911 by a vote of 12,187 for, to 
3822 against. On August 8-10, Congress adopted a joint resolu- 
tion admitting Arizona on condition that an amendment except- 
ing judicial officers from the operation of the recall provision 
should be submitted to the voters at the time of electing the 
state officers. This resolution was vetoed by President Taft on 
August 15, 191 1. See below, pp. 245, 256.] 

The Initiative and Referendum Provisions l 

Section i. (i) The legislative authority of the State shall be 
vested in a legislature, consisting of a senate and a house of rep- 
resentatives, but the people reserve the power to propose laws 
and amendments to the constitution and to enact or reject such 
laws and amendments at the polls independently of the legisla- 
ture ; and they also reserve, for use at their own option, the power 
to approve or reject at the polls any act, or item, section, or part 
of any act, of the legislature. 

(2) The first of these reserved powers is the initiative. Under 
this power 10 per cent of the qualified electors shall have the right 
to propose any measure, and 15 per cent shall have the right to 
propose any amendment to the constitution. 

(3) The second of these reserved powers is the referendum. 
Under this power the legislature, or 5 per cent of the qualified 
electors, may order the submission to the people at the polls of 
any measure, or item, section, or part of any measure, enacted 

1 Constitution of Arizona, Senate Document, 61 st Congress, 3d Session, 
No. 798, pp. 5 ff. For the recall provision see below, pp. 244, 263. 



The Initiative and Referendum 231 

by the legislature, 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 gov- 
ernment and State institutions; but to allow opportunity for 
referendum petitions no act passed by the legislature shall be 
operative for 90 days after the close of the session of the legisla- 
ture enacting such measure, except such as require earlier opera- 
tion to preserve the public peace, health, or safety, or to provide 
appropriations for the support and maintenance of the depart- 
ments of the State and of State institutions : Provided, That no 
such emergency measure shall be considered passed by the legis- 
lature unless it shall state in a separate section why it is neces- 
sary that it shall become immediately operative and shall be 
approved by the affirmative votes of two-thirds of the members 
elected to each house of the legislature, taken by roll call of ayes 
and nays, and also approved by the governor ; and should such 
measure be vetoed by the governor it shall not become a law 
unless it shall be approved by the votes of three-fourths of the 
members elected to each house of the legislature, taken by roll 
call of ayes and nays. 

(4) All petitions submitted under the power of the initiative 
shall be known as initiative petitions, and shall be filed with the 
secretary of state not less than four months preceding the date 
of the election at which the measures so proposed are to be voted 
upon. All petitions submitted under the power of the referen- 
dum shall be known as referendum petitions, and shall be filed 
with the secretary of state not mere than 90 days after the final 
adjournment of the session of the legislature which shall have 
passed the measure to which the referendum is applied. The 
filing of a referendum petition against any item, section, or part 
of any measure shall not prevent the remainder of such measure 
from becoming operative. 

(5) Any measure or amendment to the constitution proposed 
under the initiative, and any measure to which the referendum is 
applied, shall be referred to a vote of the qualified electors, and 



232 State-wide Initiative, Referendum, and Recall 

shall become law when approved by a majority of the votes cast 
thereon and upon proclamation of the governor, and not other- 
wise. 

(6) The veto power of the governor shall not extend to initia- 
tive or referendum measures approved by a majority of the quali- 
fied electors. 

(7) The whole number of votes cast for all candidates for 
governor at the general election last preceding the filing of any 
initiative or referendum petition on a State or county measure 
shall be the basis on which the number of qualified electors required 
to sign such petition shall be computed. 

(8) The powers of the initiative and the referendum are hereby 
further reserved to the qualified electors of every incorporated 
city, town, and county as to all local, city, town, or county 
matters on which such incorporated cities, towns, and counties 
are, or shall be empowered by general laws to legislate. Such 
incorporated cities, towns, and counties may prescribe the man- 
ner of exercising said powers within the restrictions of general 
laws. Under the power of the initiative 15 per cent of the quali- 
fied electors may propose measures on such local, city, town, or 
county matters, and 10 per cent of the electors may propose the 
referendum on legislation enacted within and by such city, town, 
or county. Until provided by general law, said cities and towns 
may prescribe the basis on which said percentages shall be com- 
puted. 

(9) Every initiative or referendum petition shall be addressed 
to the secretary of state in the case of petitions for or on State 
measures, and to the clerk of the board of supervisors, city clerk, 
or corresponding officer in the case of petitions for or on county, 
city, or town measures ; and shall contain the declaration of each 
petitioner, for himself, that he is a qualified elector of the State 
(and in the case of petitions for or on city, town, or county 
measures, of the city, town, or county affected), his post-office 
address, the street and number, if any, of his residence, and the 
date on which he signed such petition. Each sheet containing 



The Initiative and Referendum 233 

petitioners' signatures shall be attached to a full and correct 
copy of the title and text of the measure so proposed to be ini- 
tiated or referred to the people, and every sheet of every such 
petition containing signatures shall be verified by the affidavit 
of the person who circulated said sheet or petition, setting 
forth that each of the names on said sheet was signed in the 
presence of the affiant and that in the belief of the affiant each 
signer was a qualified elector of the State, or in the case of a 
city, town, or county measure, of the city, town, or county affected 
by the measure so proposed, to be initiated or referred to the 
people. 

(10) When any initiative or referendum petition or any meas- 
ure referred to the people by the legislature shall be filed, in 
accordance with this section, with the secretary of state, he shall 
cause to be printed on the official ballot of the next regular general 
election the title and number of said measure, together with the 
words "Yes" and "No" in such manner that the electors may 
express at the polls their approval or disapproval of the measure. 

(11) The text of all measures to be submitted shall be pub- 
lished as proposed amendments to the constitution are published, 
and in submitting such measures and proposed amendments the 
secretary of state and all other officers shall be guided by the 
general law until legislation shall be especially provided therefor. 

(12) If two or more conflicting measures or amendments to the 
constitution shall be approved by the people at the same election, 
the measure or amendment receiving the greatest number of 
affirmative votes shall prevail in all particulars as to which there 
is conflict. 

(13) It shall be the duty of the secretary of state, in the 
presence of the governor and the chief justice of the supreme 
court, to canvass the votes for and against each such measure or 
proposed amendment to the constitution within thirty days after 
the election, and upon the completion of the canvass the governor 
shall forthwith issue a proclamation, giving the whole number of 
votes cast for and against each measure or proposed amendment, 



234 State-wide Initiative, Referendum, and Recall 

and declaring such measures or amendments as are approved 
by a majority of those voting thereon to be law. 

(14) This section shall not be construed to deprive the legis- 
lature of the right to enact any measure. 

(15) This section of the constitution shall be, in all respects, 
self-executing. 

Sec. 2. The legislature shall provide a penalty for any wilful 
violation of any of the provisions of the preceding section. 

XX. New Mexico (Proposed) 

[Following the act of Congress approved June 20, 1910, to 
enable the people of New Mexico to form a constitution and state 
government, a constitutional convention met at Sante Fe, from 
October 3 to November 21, 19 10. The constitution was ratified 
by the people of New Mexico January 21, 1911 by a vote of 
31,742 for, to 13,399 against. The provisions of the constitution 
relating to the Referendum and method of amendment follow. 
On August 8-10, Congress passed a joint resolution admitting 
New Mexico on condition that an amendment relative to the 
Amendment Clause of the new Constitution be submitted to 
the voters. See below, pp. 245 flf.] 

Article 4. — Legislative Department l 

Section i. The legislative power shall be vested in a senate 
and house of representatives which shall be designated the 
Legislature of the State of New Mexico, and shall hold its ses- 
sions at the seat of government. 

The people reserve 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. 

1 The Constitution of New Mexico, House of Representatives Document, 
61st Cong., 3d Sess., No. 1369, pp. 11 ff. 



The Initiative and Referendum 235 

Petitions disapproving any law, other than those above expected, 
enacted at the last preceding session of the legislature, shall be 
filed with the secretary of state not less than four months prior 
to the next general election. Such petitions shall be signed by 
not less than ten per centum of the qualified electors of each of 
three-fourths of the counties and in the aggregate by not less 
than ten per centum of the qualified electors of the state, as shown 
by the total number of votes cast at the last preceding general 
election. The question of the approval or rejection of such law 
shall be submitted by the secretary of state to the electorate at 
the next general election ; and if a majority of the legal votes cast 
thereon, and not less than forty per centum of the total number 
of legal votes cast at such general election, be cast for the rejec- 
tion of such law, it shall be annulled and thereby repealed with 
the same effect as if the legislature had then repealed it, and such 
repeal shall revive any law repealed by the act so annulled; 
otherwise, it shall remain in force unless subsequently repealed 
by the legislature. If such petition or petitions be signed by not 
less than twenty-five per centum of the qualified electors under 
each of the foregoing conditions, and be filed with the secretary 
of state within ninety days after the adjournment of the session 
of the legislature at which such law was enacted, the operation 
thereof shall be thereupon suspended and the question of its 
approval or rejection shall be likewise submitted to a vote at the 
next ensuing general election. If a majority of the votes cast 
thereon and not less than forty per centum of the total number 
of votes cast at such general election be cast for its rejection, it 
shall be thereby annulled ; otherwise, it shall go into effect upon 
publication of the certificate of the secretary of state declaring 
the result of the vote thereon. It shall be a felony for any per- 
son to sign any such petition with any name other than his own, 
or to sign his name more than once for the same measure, or to 
sign such petition when he is not a qualified elector in the county 
specified in such petition ; provided, that nothing herein shall be 
construed to prohibit the writing thereon of the name of any 



236 State-wide Initiative, Referendum, and Recall 

person who can not write, and who signs the same with his mark. 
The legislature shall enact laws necessary for the effective exercise 
of the power hereby reserved. 

Article 19. — Amendments 

Section i. Any amendment or amendments to this constitu- 
tion may be proposed in either house of the legislature at any 
regular session thereof, and if two-thirds of all members elected 
to each of the two houses voting separately, shall vote in favor 
thereof, such proposed amendment or amendments shall be en- 
tered on their respective journals with the yeas and nays thereon ; 
or any amendment or amendments to this constitution may 
be proposed at the first regular session of the legislature held 
after the expiration of two years from the time this constitution 
goes into effect, or at the regular session of the legislature con- 
vening each eighth year thereafter, and if a majority of all the 
members elected to each of the two houses voting separately at 
said sessions shall vote in favor thereof, such proposed amend- 
ment or amendments shall be entered on their respective journals 
with the yeas and nays thereon. The secretary of state shall 
cause any such amendment or amendments to be published in at 
least one newspaper in every county of the State where a 
newspaper is published, once each week, for four consecutive 
weeks, the last publication to be not less than two weeks prior 
to the next general election, at which time the said amendment 
or amendments shall be submitted to the electors of the State 
for their approval or rejection. 

If the same be ratified by a majority of the electors voting 
thereon and by an affirmative vote equal to at least forty per 
centum of all the votes cast at said election in the State and in at 
least one-half of the counties thereof, then, and not otherwise, 
such amendment or amendments shall become part of this con- 
stitution. Not more than three amendments shall be submitted 
at one election and if two or more amendments are proposed, they 
shall be so submitted as to enable the electors to vote on each of 



The Initiative and Referendum 237 

them separately; provided, that no amendment shall apply to 
or affect the provisions of sections one and three of article seven 
hereof on elective franchise and sections eight and ten of article 
twelve hereof on education unless it be proposed by vote of 
three-fourths of the members elected to each house. 

Sec. 2. Whenever, during the first twenty-five years after the 
adoption of this constitution the legislature by a three-fourths 
vote of the members elected to each house, or after the expiration 
of said period of said twenty-five years by a two-thirds vote of the 
members elected to each house, shall deem it necessary to call a 
convention to revise or amend this constitution, they shall sub- 
mit the question of calling such convention to the electors at the 
next general election, and if a majority of all the electors voting 
at said election in the State and in at least one-half of the counties 
thereof shall vote in favor of calling a convention, the legislature 
shall at the next session provide by law for calling the same. 
Such convention shall consist of at least as many delegates as 
there are members of the house of representatives. 

The constitution adopted by such convention shall have no 
validity until it has been submitted to and ratified by the 
people. 

Sec. 3. If this constitution be in any way so amended as to 
allow laws to be enacted by direct vote of the electors, the laws 
which may be so enacted shall be only such as might be enacted 
by the legislature under the provisions of this constitution. 

Sec. 4. When the United States shall consent thereto, the 
legislature, by a majority vote of the members in each house, may 
submit to the people the question of amending any provision of 
article 2 1 of this constitution on compact with the United States 
to the extent allowed by the act of Congress permitting the same, 
and if a majority of the qualified electors who vote upon any such 
amendment shall vote in favor thereof, the said article shall be 
thereby amended accordingly. 

Sec. 5. The provisions of section one of this article shall not 
be changed, altered, or abrogated in any manner except through a 



238 State-wide Initiative, Referendum, and Recall 

general convention called to revise this constitution as herein 
provided. 

XXI. Illinois 

[The following act 1 providing for securing an expression of 
public opinion on measures was passed by the Illinois legislature 
in 1 901.] 

1. Petition — duty of election officers.] [§ 428, Ch. 46, 
R. S.] That on a written petition signed by 25 per cent of the 
registered voters of any incorporated town, village, city, town- 
ship, county or school district ; or 10 per cent of the registered 
votes [voters] of the State, it shall be the duty of the proper elec- 
tion officers in each case to submit any question of public policy 
so petitioned for, to the electors of the incorporated town, village, 
city, township, county, school district or State, as the case may 
be, at any general or special election named in the petition : 
Provided, such petition is filed with the proper election officers, in 
each case not less than sixty (60) days before the date of the elec- 
tion at which the question or questions petitioned for are to be 
submitted. Not more than three propositions shall be submitted 
at the same election, and such propositions shall be submitted 
in the order of its [their] filing. 

2. Form of ballot.] [§ 429, Ch. 46, R. S.] Every question 
submitted to electors shall be printed in plain, prominent type, 
upon a separate ballot, in form required by law, the same as a 
constitutional amendment or other public measure proposed to 
be voted upon by the people. 

Voting under the Public Opinion Law 

[This statement is taken from Senate Document, No. 603, 61st 
Cong., 2d Sess.] 

The petitions that have been circulated and filed, and the ques- 
tions that have been voted upon under the Illinois Public Opinion 
law include the following : — 

1 Illinois Election Laws (1910), p. 80. 



The Initiative and Referendum 



2 39 



FIRST PETITION (109,418 SIGNATURES) 

[Vote of Chicago, April 1, 1902] 



Municipal ownership of gas and electric light . 
Municipal ownership of street railways . . . 
Direct nomination of candidates 




Initiative and referendum on state laws amendment 
to state laws 

Initiative and referendum for counties, cities, towns, 

etc I 390,972 

Direct election of United States Senators . . . . | 451,319 




21,364 
27,998 

17,654 



SECOND PETITION (146,134 SIGNATURES) 
[Vote of State, November 4, 1902] 



87,654 

83,377 

76,975 



THIRD PETITION (131, 417 SIGNATURES) 
[Vote of Chicago, April 5, 1904] 



Immediate municipal ownership of street railways . 
Police power licenses and good service instead of 

franchises 

Direct election, Chicago school board 



121,957 

120,863 
116,617 



50,807 

48,200 
57,729 



FOURTH PETITION (137, 842 SIGNATURES) 

[Vote of State, November 8, 1904] 



Direct primaries 

People's veto or referendum (local) 
Home rule in taxation 



590,976 
535,5oi 
476,780 



78,446 

95,420 

140,896 



FIFTH PETITION, FOR CHICAGO 



Proposed franchise to Chicago City Railway 
Any franchise to Chicago City Railway . . 
Any franchise to any company 



64,39i 
60,020 

59,oi3 



150,785 
i5i,974 
152,135 



240 State-wide Initiative, Referendum, and Recall 

Since the foregoing was compiled Chicago has had another 
election, at which four questions were submitted to the people. 
The manner in which the people of Chicago improved this op- 
portunity elicited this comment from the Record-Herald : — 

The referendum vote on the four propositions that were sub- 
mitted to the electorate of the entire city shows conclusively 
that the people of Chicago can make an intelligent and discrimi- 
nating use of this instrument of good government. It answers 
effectively the sneers of those who habitually assert that the 
voters, like a flock of sheep, will approve anything. 

The extent of popular interest may be shown in the fact that 
out of about 180,000 voters who went to the polls in the city pre- 
cincts, from 115,000 to 145,000 voted on each of the propositions. 
That is a proportion of the total vote that is very satisfactory. 

On the proposition to revise the charter the vote stood 101,000 
to 45,000. On the "gas rate" proposition it was 124,000 to 
20,000, and on the forest preserve proposition (city precincts 
only), it was 82,000 to 55,000. 

XXII. The Texas Party Initiative l 

[By an act passed in 1908, the legislature of Texas made 
the following provision for taking a party vote on measures.] 

Whenever delegates are to be selected by any political party 
to any State or county convention by primary election or pri- 
mary convention or candidates are instructed for or nominated, 
it shall be the duty of the chairman of the county or precinct 
executive committee of said political party upon the application 
of ten per cent of the members of said party (who are legally 
qualified voters in said county or precinct) to submit at the time 
and place of selecting said delegates any proposition, desired to 
be voted upon by said voters, and the delegates selected at that 
time shall be considered instructed for whichever proposition 
for which a majority of the votes are cast ; provided, that the 
number of voters belonging to said political party shall be de- 

1 The Terrell Election Law (1908), p. 29, sec. 140. 



The Initiative and Referendum 241 

termined by the votes cast for the party nominee for Governor 
at the preceding election; and provided further, that said 
application is filed with the county or precinct chairman at least 
five days before the tickets are to be printed, and the chairman 
may require a sworn statement that the names of said applicants 
are genuine. 



II. THE STATE-WIDE RECALL 

XXIII. Oregon 

[Oregon was the first state to adopt the recall of all state officers 
including the judiciary. The following constitutional amendment 
was proposed by initiative petition and adopted by the voters at 
the general election held June i, 1908. The vote on this measure 
was 58,381 for, to 31,002 against.] 

The Constitutional Amendment 1 

Article II of the Constitution of the State of Oregon shall be, and 
hereby is, amended by adding thereto at the end of said article 
a new section, which shall be numbered Section 18 of said 
Article II and shall be as follows : — 

Section 18. Every public officer in Oregon is subject, as herein 
provided, to recall by the legal voters of the State or of the elec- 
toral district from which he is elected. There may be required 
twenty-five per cent, but not more, of the number of electors who 
voted in his district at the preceding election for justice of the 
Supreme Court to file their petition demanding his recall by the 
people. They shall set forth in said petition the reasons for said 
demand. If he shall offer his resignation, it shall be accepted and 
take effect on the day it is offered, and the vacancy shall be filled 
as may be provided by law. If he shall not resign within five 
days after the petition is filed, a special election shall be ordered 
to be held within twenty days in his said electoral district to de- 
termine whether the people will recall said officer. On the sample 
ballot at said election shall be printed in not more than two hun- 
dred, words, the reasons for demanding the recall of said officer as 
set forth in the recall petition, and in not more than two hundred 

1 Official copy from the Secretary of State. 
242 



The State-wide Recall 243 

words, the officer's justification of his course in office. He shall 
continue to perform the duties of his office until the result of said 
special election shall be officially declared. Other candidates 
for the office may be nominated to be voted for at said special 
election. The candidate who shall receive the highest number 
of votes shall be deemed elected for the remainder of the term, 
whether it be the person against whom the recall petition was 
filed, or another. The recall petition shall be filed with the officer 
with whom a petition for nomination to such office should be filed, 
and the same officer shall order the special election when it is 
required. No such petition shall be circulated against any officer 
until he has actually held his office six months, save and except 
that it may be filed against a senator or representative in the 
legislative assembly at any time after five days from the begin- 
ning of the first session after his election. After one such petition 
and special election, no further recall petition shall be filed against 
the same officer 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. Such additional 
legislation as may aid the operation of this section shall be pro- 
vided by the Legislative Assembly, including provision for pay- 
ment by the public treasury of the reasonable special election 
campaign expenses of such officer. But the words "the Legisla- 
tive Assembly shall provide" or any similar or equivalent words 
in this Constitution or any amendment thereto, shall not be con- 
strued to grant to the Legislative Assembly any exclusive power 
of law-making nor in any way to limit the initiative and referen- 
dum powers reserved by the people. 



244 State-wide Initiative, Referendum, and Recall 

XXIV. Arizona (Proposed) 
[The recall provisions of the Arizona Constitution follow.] 

Article VIII. — Removal from Office 1 

I. RECALL OF PUBLIC OFFICERS 

Section i. Every public officer in the State of Arizona, hold- 
ing an elective office, either by election or appointment, is subject 
to recall from such office by the qualified electors of the electoral 
district from which candidates are elected to such office. Such 
electoral district may include the whole State. Such number of 
said electors as shall equal 25 per cent of the number of votes 
cast at the last preceding general election for all of the candidates 
for the office held by such officer may by petition, which shall be 
known as a recall petition, demand his recall. 

Sec. 2. Every recall petition must contain a general statement, 
in not more than 200 words, of the grounds of such demand, and 
must be filed in the office in which petitions for nominations to the 
office held by the incumbent are required to be filed. The sig- 
natures to such recall petition need not all be on one sheet of 
paper, but each signer must add to his signature the date of his 
signing said petition, and his place of residence, giving his street 
and number, if any, should he reside in a town or city. One of 
the signers of each sheet of such petition, or the person circulat- 
ing such sheet, must make and subscribe an oath on said sheet 
that the signatures thereon are genuine. 

Sec. 3. If said officer shall offer his resignation, it shall be 
accepted, and the vacancy shall be filled as may be provided by 
law. If he shall not resign within five days after a recall petition 
is filed, a special election shall be ordered to be held not less than 
20 nor more than 30 days after such order to determine whether 
such officer shall be recalled. On the ballots at said election 
shall be printed the reasons as set forth in the petition for de- 
1 Senate Document, No. 798, 61st Cong., 3d Session, pp. 18 f. 



The State-wide Recall 245 

manding his recall, and, in not more than 200 words, the officer's 
justification of his course in office. He shall continue to perform 
the duties of his office until the result of said election shall have 
been officially declared. 

Sec. 4. Unless he otherwise request, in writing, his name shall 
be placed as a candidate on the official ballot without nomination. 
Other candidates for the office may be nominated to be voted for 
at said election. The candidate who shall receive the highest 
number of votes shall be declared elected for the remainder of the 
term. Unless the incumbent receive the highest number of votes 
he shall be deemed to be removed from office upon qualification of 
his successor. In the event that his successor shall not qualify 
within five days after the result of said election shall have been 
declared, the said office shall be vacant and may be filled as pro- 
vided by law. 

Sec. 5. No recall petition shall be circulated against any officer 
until he shall have held his office for a period of six months, except 
that it may be filed against a member of the legislature at any 
time after five days from the beginning of the first session after 
his election. After one recall petition and election no further 
recall petition shall be filed against the same officer during the 
term for which he was elected unless petitioners signing such peti- 
tion shall first pay into the public treasury which has paid such 
election expenses, all expenses of the preceding election. 

Sec. 6. The general election laws shall apply to recall elections 
in so far as applicable. Laws necessary to facilitate the operation 
of the provisions of this article shall be enacted, including provi- 
sion for payment by the public treasury of the reasonable special- 
election campaign expenses of such officer. 

President Tafls Veto on the Recall l 

[After lengthy debates, Congress on August 8-10 passed a 
resolution admitting Arizona and New Mexico to the Union on 
condition that an amendment to the provision in the Arizona 

Congressional Record, August 15, 1911. 



246 State-wide Initiative, Referendum, and Recall 

constitution relating to recall and an amendment to sections of 
the New Mexico constitution relating to future amendments be 
specially submitted to the voters of the respective territories 
for ratification or rejection. On August 15, 191 1, President 
Taft vetoed this resolution and sent to Congress the following 
message.] 

To the House of Representatives : — 

I return herewith, without my approval, House joint resolu- 
tion No. 14, "To admit the Territories of New Mexico and 
Arizona as States into the Union on an equal footing with the 
original States." 

Congress, by an enabling act approved June 20, 1910, provided 
for the calling of a constitutional convention in each of these 
Territories, the submission of the Constitution proposed 
by the convention to the electors of the Territory, 
the approval of the Constitution by the President and 
Congress, the proclamation of the fact by the President, and the 
election of State officers. Both in Arizona and New Mexico- 
conventions have been held, Constitutions adopted and ratified 
by the people, and submitted to the President and Congress. 
I have approved the Constitution of New Mexico, and so did 
the House of Representatives of the Sixty-first Congress. The 
Senate, however, failed to take action upon it. I have not 
approved the Arizona constitution, nor have the two houses of 
Congress, except as they have done so by the joint resolution 
under consideration. The resolution admits both Territories 
to Statehood with their constitutions, on condition that at the 
time of the election of State officers New Mexico shall submit to 
its electors an amendment to its new constitution altering and 
modifying its provision for future amendments, and on the further 
condition that Arizona shall submit to its electors, at the time of 
the election of its State officers, a proposed amendment to its 
constitution by which judicial officers shall be excepted from the 
section permitting a recall of all elective officers. 

If I sign this joint resolution, I do not see how I can escape 



The State-wide Recall 247 

responsibility for the judicial recall of the Arizona Constitution. 
The joint resolution admits Arizona with the judicial recall, but 
requires the submission of the question of its wisdom to the 
voters. In other words, the resolution approves the admission of 
Arizona with the judicial recall, unless the voters themselves 
repudiate it. Under the Arizona Constitution all elective officers, 
and this includes county and State judges, six months after their 
election, are subject to the recall. It is initiated by a petition 
signed by electors equal to 25 per cent of the total number of 
votes cast for all the candidates for the office at the previous 
general election. Within five days after the petition is filed 
the officer may resign. Whether he does or not, an election en- 
sues in which his name, if he does not resign, is placed on the 
ballot with that of all other candidates. The petitioners may 
print on the official ballot 200 words showing their reasons for 
recalling the officer, and he is permitted to make defence in the 
same place in 200 words. If the incumbent receives the highest 
number of the votes, he continues in his office ; if not, he is re- 
moved from office and is succeeded by the candidate who does 
receive the highest number. 

This provision of the Arizona Constitution, in its application 
to county and State judges, seems to me so pernicious in its effect, 
so destructive of independence in the judiciary, so likely to sub- 
ject the rights of the individual to the possible tyranny of a popu- 
lar majority, and therefore to be so injurious to the cause of free 
government, that I must disapprove a Constitution containing 
it. I am not now engaged in performing the office given me in 
the enabling act already referred to, approved June 20, 19 10, 
which was that of approving the Constitutions ratified by the 
peoples of the Territories. It may be argued from the text of 
that act that in giving or withholding the approval under the 
act, my only duty is to examine the proposed Constitution, and 
if I find nothing in it inconsistent with the federal Constitution, 
the principles of the Declaration of Independence, or the ena- 
bling act, to register my approval. But now I am discharging 



248 State-wide Initiative, Referendum, and Recall 

my Constitutional function in respect to the enactment of laws, 
and my discretion is equal to that of the houses of Congress. I 
must therefore withhold my approval from this resolution if in 
fact I do not approve it as a matter of governmental policy. Of 
course, a mere difference of opinion as to the wisdom of details 
in a State Constitution ought not to lead me to set up my opinion 
against that of the people of the Territory. It is to be their 
government, and, while the power of Congress to withhold or 
grant Statehood is absolute, the people about to constitute a 
State should generally know better the kind of government and 
Constitution suited to their needs than Congress or the Executive. 
But when such a Constitution contains something so destructive 
of free government as the judicial recall, it should be disapproved. 

A government is for the benefit of all the people. We believe 
that this benefit is best accomplished by popular government, 
because in the long run each class of individuals is apt to secure 
better provision for themselves through their own voice in 
government than through the altruistic interest of others, how- 
ever intelligent or philanthropic. The wisdom of ages has taught 
that no government can exist except in accordance with laws and 
unless the people under it either obey the laws voluntarily or are 
made to obey them. In a popular government the laws are made 
by the people — not by all the people — but by those supposed 
and declared to be competent for the purpose, as males over 
twenty-one years of age, and not by all of these — but by a 
majority of them only. Now, as the government is for all the 
people, and is not solely for a majority of them, the majority 
in exercising control either directly or through its agents is bound 
to exercise the power for the benefit of the minority as well as the 
majority. 

But all have recognized that the majority of a people, unre- 
strained by law, when aroused and without the sobering effect 
of deliberation and discussion, may do injustice to the minor- 
ity or to the individual when the selfish interest of the majority 
prompts. Hence arises the necessity for a Constitution by 






The State-wide Recall 249 

which the will of the majority shall be permitted to guide the 
course of the government only under controlling checks that 
experience has shown to be necessary to secure for the minority 
its share of the benefit to the whole people that a popular govern- 
ment is established to bestow. A popular government is not a 
government of a majority, by a majority, for a majority of the 
people. It is a government of the whole people, by a majority 
of the whole people under such rules and checks as will secure a 
wise, just, and beneficent government for all the people. 

It is said you can always trust the people to do justice. If 
that means all the people and they all agree, you can. But 
ordinarily they do not all agree, and the maxim is interpreted to 
mean that you can always trust a majority of the people. 
This is not invariably true ; and every limitation imposed by the 
people upon the power of the majority in their Constitutions 
is an admission that it is not always true. No honest, clear- 
headed man, however great a lover of popular government, can 
deny that the unbridled expression of the majority of a com- 
munity converted hastily into law or action would sometimes 
make a government tyrannical and cruel. Constitutions are 
checks upon the hasty action of the majority. They are the self- 
imposed restraints of a whole people upon a majority of them to 
secure sober action and a respect for the rights of the minority, 
and of the individual in his relation to other individuals, and in 
his relation to the whole people in their character as a State or 
government. 

The Constitution distributes the functions of government into 
three branches — the legislative, to make the laws ; the execu- 
tive, to execute them ; and the judicial, to decide in cases arising 
before it the rights of the individual as between him and others 
and as between him and the government. This division of govern- 
ment into three separate branches has always been regarded as a 
great security for the maintenance of free institutions, and the 
security is only firm and assured when the judicial branch is 
independent and impartial. The executive and legislative 



250 State-wide Initiative, Referendum, and Recall 

branches are representative of the majority of the people which 
elected them in guiding the course of the government within the 
limits of the Constitution. They must act for the whole people, 
of course ; but they may properly follow, and usually ought to 
follow, the views of the majority which elected them in respect 
to the governmental policy best adapted to secure the welfare 
of the whole people. 

But the judicial branch of the government is not representa- 
tive of a majority of the people in any such sense, even if the mode 
of selecting judges is by popular election. In a proper sense, 
judges are servants of the people ; that is, they are doing work 
which must be done for the government, and in the interest of all 
the people, but it is not work in the doing of which they are to 
follow the will of the majority, except as that is embodied in 
statutes lawfully enacted according to constitutional limitations. 
They are not popular representatives. On the contrary, to 
fill their office properly, they must be independent. They must 
decide every question which comes before them according to 
law and justice. If this question is between individuals, they 
will follow the statute, or the unwritten law, if no statute ap- 
plies, and they take the unwritten law growing out of tradition 
and custom from previous judicial decisions. If a statute or 
ordinance affecting a cause before them is not lawfully enacted, 
because it violates the Constitution adopted by the people, then 
they must ignore the statute and decide the question as if the 
statute had never been passed. 

This power is a judicial power, imposed by the people on the 
judges by the written constitution. In early days, some argued 
that the obligations of the constitution operated directly on the 
conscience of the Legislature and only in that manner, and that 
it was to be conclusively presumed that whatever was done by the 
Legislature was constitutional. But such a view did not obtain 
with our hardheaded, courageous, and far-sighted statesmen and 
judges, and it was soon settled that it was the duty of judges in 
cases properly arising before them to apply the law and so to 



The State-wide Recall 251 

declare what was the law, and that if what purported to be statu- 
tory law was at variance with the fundamental law, i.e., the con- 
stitution, the seeming statute was not law at all, was not binding 
on the courts, the individuals, or any branch of the government, 
and that it was the duty of the judges so to decide. This power 
conferred on the judiciary in our form of government is unique 
in the history of governments and its operation has attracted and 
deserved the admiration and commendation of the world. It 
gives to our judiciary a position higher, stronger, and more 
responsible than that of the judiciary of any other country, and 
more effectively secures adherence to the fundamental will of 
the people. 

What I have said has been to little purpose if it has not shown 
that judges to fulfill their functions properly in our popular gov- 
ernment must be more independent than in any other form of 
government, and that need of independence is greatest where 
the individual is one litigant, and the State, guided by the 
successful and governing majority, is the other. In order to 
maintain the rights of the minority and the individual and to 
preserve our constitutional balance we must have judges with 
courage to decide against the majority when justice and law 
require. 

By the recall in the Arizona Constitution, it is proposed to give 
to the majority power to remove arbitrarily and without delay 
any judge who may have the courage to render an unpopular 
decision. By the recall it is proposed to enable a minority of 
25 per cent of the voters of the district or State, for no prescribed 
cause, after the judge has been in office six months, to submit the 
question of his retention in office to the electorate. The petition- 
ing minority must say on the ballot what they can against him in 
200 words, and he must defend as best he can in the same space. 
Other candidates are permitted to present themselves and have 
their names printed on the ballot, so that the recall is not based 
solely on the record or the acts of the judge, but also on the ques- 
tion whether some other and more popular candidate has been 



252 State-wide Initiative, Referendum, and Recall 

found to unseat him. Could there be a system more ingeniously 
devised to subject judges to momentary gusts of popular passion 
than this ? 

We cannot be blind to the fact that often an intelligent and 
respectable electorate may be so roused upon an issue that it will 
visit with condemnation the decision of a just judge, though 
exactly in accord with the law governing the case, merely because 
it affects unfavorably their contest. Controversies over elec- 
tions, labor troubles, racial or religious issues, issues as to the con- 
struction or constitutionality of liquor laws, criminal trials of 
popular or unpopular defendants, the removal of county seats, 
suits by individuals to maintain their constitutional rights in 
obstruction of some popular improvement — these and many 
other cases could be cited in which a majority of a district elec- 
torate would be tempted by hasty anger to recall a conscientious 
judge if the opportunity were open all the time. 

No period of delay is interposed for the abatement of popular 
feeling. The recall is devised to encourage quick action, and to 
lead the people to strike while the iron is hot. The judge is treated 
as the instrument and servant of a majority of the people and 
subject to their momentary will, not after a long term in which 
his qualities as a judge and his character as a man have been sub- 
jected to a test of all the varieties of judicial work and duty so as 
to furnish a proper means of measuring his fitness for continuance 
in another term. On the instant of an unpopular ruling, while 
the spirit of protest has not had time to cool and even while an 
appeal may be pending from his ruling in which he may be sus- 
tained, he is to be haled before the electorate as a tribunal, with 
no judicial hearing, evidence, or defence, and thrown out of office 
and disgraced for life because he has failed, in a single decision, 
it may be, to satisfy the popular demand. 

Think of the opportunity such a system would give to un- 
scrupulous political bosses in control as they have been in control 
not only of conventions but elections ! Think of the enormous 
power for evil given to the sensational, muckraking portion of 



The State-wide Recall 253 

the press in rousing prejudice against a just judge by false charges 
and insinuations the effect of which in the short period of an elec- 
tion by recall it would be impossible for him to meet and offset ! 
Supporters of such a system seem to think that it will work only 
in the interest of the poor, the humble, the weak, and the op- 
pressed : that it will strike down only the judge who is supposed 
to favor corporations and be affected by the corrupting influence 
of the rich. Nothing could be further from the ultimate result. 

The motive it would offer to unscrupulous combinations to 
seek to control politics in order to control the judges is clear. 
Those would profit by the recall who have the best opportunity 
of arousing the majority of the people to action on a sudden 
impulse. Are they likely to be the wisest or the best people in a 
community ? Do they not include those who have money enough 
to employ the firebrands and slanderers in a community and the 
stirrers-up of social hate? Would not self-respecting men well 
hesitate to accept judicial office with such a sword of Damocles 
hanging over them ? What kind of judgments might those on 
the unpopular side expect from courts whose judges must make 
their decisions under such legalized terrorism? The character 
of the judges would deteriorate to that of trimmers and time- 
servers, and independent judicial action would be a thing of the 
past. As the possibilities of such a system pass in review, is it 
too much to characterize it as one which will destroy the judi- 
ciary, its standing, and its usefulness ? 

The argument has been made to justify the judicial recall that 
it is only carrying out the principle of the election of the judges 
by the people. The appointment by the Executive is by the 
representative of the majority, and so far as future bias is con- 
cerned there is no great difference between the appointment and 
the election of judges. The independence of the judiciary is 
secured rather by a fixed term and fixed and irreducible salary. 
It is true that when the term of judges is for a limited number 
of years and reelection is necessary, it has been thought and 
charged sometimes that shortly before election in cases in which 



254 State-wide Initiative, Referendum, and Recall 

popular interest is excited, judges have leaned in their decisions 
toward the popular side. 

As already pointed out, however, in the election of judges for 
a long and fixed term of years, the fear of popular prejudice as 
a motive for unjust decisions is minimized by the tenure on the 
one hand, while the opportunity which the people have, calmly 
to consider the work of a judge for a full term of years in deciding 
as to his reelection, generally insured from them a fair and reason- 
able consideration of his qualities as a judge. While, therefore, 
there have been elected judges who have bowed before unjust 
popular prejudice, or who have yielded to the power of political 
bosses in their decisions, I am convinced that these are excep- 
tional, and that, on the whole, elected judges have made a great 
American judiciary. But the success of an elective judiciary 
certainly furnishes no reason for so changing the system as to 
take away the very safeguards which have made it successful. 

Attempt is made to defend the principle of judicial recall by 
reference to States in which judges are said to have shown them- 
selves to be under corrupt corporate influence, and in which it is 
claimed that nothing but a desperate remedy will suffice. If the 
political control in such States is sufficiently wrested from cor- 
rupting corporations to permit the enactment of a radical Con- 
stitutional amendment, like that of judicial recall, it would seem 
possible to make provision, in its stead, for an effective remedy 
by impeachment in which the cumbrous features of the present 
remedy might be avoided, but the opportunity for judicial hear- 
ing and defence before an impartial tribunal might be retained. 
Real reforms are not to be effected by patent short-cuts, or by 
abolishing those requirements which the experience of ages has 
shown to be essential in dealing justly with every one. Such 
innovations are certain in the long run to plague the inventor or 
first user, and will come readily to the hand of the enemies and 
corrupters of society after the passing of the just popular indig- 
nation that prompted their adoption. 

Again, judicial recall is advocated on the ground that it will 



The State-wide Recall 255 

bring the judges more into sympathy with the popular will and 
the progress of ideas among the people. It is said that now 
judges are out of touch with the movement toward a wider democ- 
racy and a greater control of governmental agencies in the in- 
terest and for the benefit of the people. The righteous and just 
course for a judge to pursue is ordinarily fixed by statute or clear 
principles of law, and the cases in which his judgment may be 
affected by his political, economic, or social views are infrequent. 
But even in such cases, judges are not removed from the people's 
influence. Surround the judiciary with all the safeguards pos- 
sible, create judges by appointment, make their tenure for life, 
forbid diminution of salary during their term, and still it is im- 
possible to prevent the influence of popular opinion from color- 
ing judgments in the long run. Judges are men, intelligent, 
sympathetic men, patriotic men, and in those fields of the law 
in which the personal equation unavoidably plays a part, there 
will be found a response to sober popular opinion as it changes 
to meet the exigency of social, political, and economic changes. 

Indeed, this should be so. Individual instances of a hide- 
bound and retrograde conservatism on the part of courts in deci- 
sions which turn on the individual economic or sociological views 
of the judges may be pointed out ; but they are not many, and 
do not call for radical action. In treating of courts we are deal- 
ing with a human machine, liable like all the inventions of man 
to err, but we are dealing with a human institution that likens 
itself to a divine institution, because it seeks and preserves jus- 
tice. It has been the cornerstone of our gloriously free govern- 
ment in which the rights of the individual and of the minority 
have been preserved, while governmental action of the majority 
has lost nothing of beneficent progress, efficacy, and directness. 
This balance was planned in the Constitution by its framers, and 
has been maintained by our independent judiciary. 

Precedents are cited from State Constitutions said to be equiva- 
lent to a popular recall. In some, judges are removable by a 
vote of both houses of the Legislature. This is a mere adoption 



256 State-wide Initiative, Referendum, and Recall 

of the English address of Parliament to the Crown for the removal 
of judges. It is similar to impeachment in that a form of hearing 
is always granted. Such a provision forms no precedent for a 
popular recall without adequate hearing and defence, and with 
new candidates to contest the election. 

It is said the recall will be rarely used. If so, it will be rarely 
needed. Then why adopt a system so full of danger ? But it 
is a mistake to suppose that such a powerful lever for influencing 
judicial decisions and such an opportunity for vengeance because 
of adverse ones, will be allowed to remain unused. 

But it is said that the people of Arizona are to be become an in- 
dependent State when created, and even if we strike out judicial 
recall now, they can reincorporate it in their constitution after 
Statehood. To this I would answer that in dealing with the 
courts, which are the cornerstone of good government, and in 
which not only the voters, but the non-voters and non-residents, 
have a deep interest as a security for their rights of life, liberty, 
and property, no matter what the future action of the State may 
be, it is necessary for the authority which is primarily responsible 
for its creation to assert in no doubtful tones the necessity for an 
independent and untrammeled judiciary. 

William H. Taft. 

The White House, August 15, 191 1. 

Joint Resolution for the Admission of Arizona and 
New Mexico 

[Congress at once took up President Taft's veto measure, 
and passed the following substitute resolution, which was ap- 
proved August 21, 191 1.] 

Resolved by the Senate and House of Representatives of the 
United States of America in Congress assembled, That the Terri- 
tories of New Mexico and Arizona are hereby admitted into the 
Union upon an equal footing with the original States, in accord- 
ance with the terms of an Act entitled "An Act to enable the 



The State-wide Recall 257 

people of New Mexico to form a constitution and State govern- 
ment and be admitted into the Union on an equal footing with 
the original States; and to enable the people of Arizona to 
form a constitution and State government and be admitted 
into the Union on an equal footing with the original States" 
commonly called the enabling Act approved June twentieth, 
nineteen hundred and ten, and upon the terms and conditions 
hereinafter set forth. The admission herein provided for shall 
take effect upon the proclamation of the President of the United 
States, when the conditions explicitly set forth in this joint 
resolution shall have been complied with, which proclamation 
shall issue at the earliest practicable time after the results of 
the election herein provided for shall have been certified to the 
President, and also after evidence shall have been submitted to 
him of the compliance with the terms and conditions of this 
resolution. 

The President is authorized and directed to certify the adop- 
tion of this resolution to the governor of each Territory as soon 
as practicable after the adoption hereof, and each of said gov- 
ernors shall issue his proclamation for the holding of the first 
general election as provided for in the constitution of New 
Mexico heretofore adopted and the election ordinance numbered 
two adopted by the constitutional convention of Arizona, 
respectively, and for the submission to a vote of the electors of 
said Territories of the amendments of the constitutions of said 
proposed States, respectively, herein set forth in accordance 
with the terms and conditions of this joint resolution. The 
results of said elections shall be certified to the President by the 
governor of each of said Territories ; and if the terms and con- 
ditions of this joint resolution shall have been complied with, 
the proclamation shall immediately issue by the President an- 
nouncing the result of said elections so ascertained, and upon 
the issuance of said proclamation the proposed State or States 
so complying shall be deemed admitted by Congress into the 
Union upon an equal footing with the other States. 



258 State-wide Initiative, Referendum, and Recall 

Sec. 2. That the admission of New Mexico shall be subject to 
the terms and conditions of a joint resolution approved Feb- 
ruary sixteenth, nineteen hundred and eleven, and entitled 
"Joint resolution reaffirming the boundary line between Texas 
and the Territory of New Mexico." 

Sec. 3. That before the proclamation of the President shall 
issue announcing the result of said election in New Mexico, and 
at the same time that the State election aforesaid is held, the 
electors of New Mexico shall vote upon the following proposed 
amendment of their State constitution as a condition precedent 
to the admission of said State, to wit : — 

"Article XIX of the constitution, as adopted by the electors 
of New Mexico at an election held on the twenty-first day of 
January, anno Domini nineteen hundred and eleven, be, and the 
same is hereby, amended so as to read as follows : — 

"'Article XIX. 
"'amendment. 

"'Section i. Any amendment or amendments to this con- 
stitution may be proposed in either house of the legislature at 
any regular session thereof; and if a majority of all members 
elected to each of the two houses voting separately shall vote in 
favor thereof, such proposed amendment or amendments shall 
be entered on their respective journals with the yeas and nays 
thereon. 

"'The secretary of state shall cause any such amendment or 
amendments to be published in at least one newspaper in every 
county of the State, where a newspaper is published once each 
week, for four consecutive weeks, in English and Spanish when 
newspapers in both of said languages are published in such coun- 
ties, the last publication to be not more than two weeks prior 
to the election at which time said amendment or amendments 
shall be submitted to the electors of the State for their approval 
or rejection; and the said amendment or amendments shall be 



The State-wide Recall 259 

voted upon at the next regular election held in said State after 
the adjournment of the legislature proposing such amendment 
or amendments, or at such special election to be held not less 
than six months after the adjournment of said legislature, at 
such time as said legislature may by law provide. If the same 
be ratified by a majority of the electors voting thereon such 
amendment or amendments shall become part of this constitu- 
tion. If two or more amendments are proposed, they shall be 
so submitted as to enable the electors to vote on each of them 
separately: Provided, That no amendment shall apply to or 
affect the provisions of sections one and three of Article VII 
hereof, on elective franchise, and sections eight and ten of 
Article XII hereof, on education, unless it be proposed by vote 
of three-fourths of the members elected to each house and be 
ratified by a vote of the people of this State in an election at 
which at least three-fourths of the electors voting in the whole 
State and at least two-thirds of those voting in each county in 
the State shall vote for such amendment. 

"'Sec. 2. Whenever, during the first twenty-five years after 
the adoption of this constitution, the legislature, by a three- 
fourths vote of the members elected to each house, or, after the 
expiration of said period of twenty-five years, by a two-thirds 
vote of the members elected to each house, shall deem it neces- 
sary to call a convention to revise or amend this constitution, 
they shall submit the question of calling such convention to the 
electors at the next general election, and if a majority of all the 
electors voting on such question at said election in the State 
shall vote in favor of calling a convention the legislature shall, 
at the next session, provide by law for calling the same. Such 
convention shall consist of at least as many delegates as there 
are members of the house of representatives. The constitution 
adopted by such convention shall have no validity until it has 
been submitted to and ratified by the people. 

"'Sec. 3. If this constitution be in any way so amended as 
to allow laws to be enacted by direct vote of the electors the 



160 State- wide Initiative, Referendum, and Recall 

laws which may be so enacted shall be only such as might be 
enacted by the legislature under the provisions of this constitu- 
tion. 

"'Sec. 4. When the United States shall consent thereto, the 
legislature, by a majority vote of the members in each house, 
may submit to the people the question of amending any pro- 
vision of Article XXI of this constitution on compact with the 
United States to the extent allowed by the Act of Congress 
permitting the same, and if a majority of the qualified electors 
who vote upon any such amendment shall vote in favor thereof 
the said article shall be thereby amended accordingly. 

"'Sec. 5. The provisions of section one of this article shall 
not be changed, altered, or abrogated in any manner except 
through a general convention called to revise this constitution 
as herein provided.'" 

Sec. 4. That the probate clerks of the several counties of 
New Mexico shall provide separate ballots for the use of the 
electors at said first State election for the purpose of voting 
upon said amendment. Said separate ballots shall be printed 
on paper of a blue tint, so that they may be readily distinguished 
from the white ballots provided for the election of county and 
State officers. Said separate ballots shall be delivered only to 
the election officers authorized by law to receive and have the 
custody of the ballot boxes for use at said election and shall be 
delivered by them only to the individual voter and only one 
ballot to each elector at the time he offers to vote at the said 
general election, and shall have the initials of two election 
officers of opposite political parties written by them upon the 
back thereof. Said separate ballot shall not be marked either 
for or against the said amendment at the time it is handed to 
the elector by the election officer, and if the elector desires to 
vote upon said amendment, the ballot must be marked by the 
voter, unless he shall request one of the election officers to 
mark the same for him, in which case such election officer so 
called upon shall mark said ballot as such voter shall request. 



The State-wide Recall 261 

Any elector receiving such ballot shall return the same before 
leaving the polls to one of the election judges, who shall imme- 
diately deposit the same in the ballot box whether such ballot 
be marked or not. No ballots on said amendment except those 
so handed to said electors and so initialled shall be deposited in 
the ballot box or counted or canvassed. Said separate ballots 
shall have printed thereon the proposed amendment in both 
the English and the Spanish language. There shall be placed 
on said ballots two blank squares with dimensions of one-half 
an inch and opposite one of said squares shall be printed in 
both the English and the Spanish language the words "For 
constitutional amendment," and opposite the other blank 
square shall be printed in both the English and Spanish language 
the words "Against constitutional amendment." 

Any elector desiring to vote for said amendment shall mark 
his ballot with a cross in the blank square opposite the words 
"For constitutional amendment," or cause the same to be so 
marked by an election officer as aforesaid, and any elector 
desiring to vote against said amendment shall mark his ballot 
with a cross in the blank square opposite the words "Against 
constitutional amendment," or cause the same to be so marked 
by an election officer as aforesaid. 

Sec. 5. That said ballots shall be counted and canvassed by 
said election officers, and the returns of said election upon said 
amendment shall be made by said election officers direct to the 
secretary of the Territory of New Mexico at Santa Fe, who, with 
the governor and chief justice of said Territory, shall constitute 
a canvassing board ; and they, or any two of them, shall meet 
at said city of Santa Fe on the third Monday after said election 
and shall canvass the same. If a majority of the legal votes 
cast at said election upon said amendment shall be in favor 
thereof, the said canvassing board shall forthwith certify said 
result to the governor of the Territory, together with the state- 
ment of votes cast upon the question of the ratification or re- 
jection of said amendment; whereupon the governor of said 



262 State-wide Initiative, Referendum, and Recall 

Territory shall by proclamation declare the said amendment a 
part of the constitution of the proposed State of New Mexico, 
and thereupon the same shall become and be a part of said 
constitution; but if the same shall fail of such majority, then 
Article XIX of the constitution of New Mexico as adopted on 
January twenty-first, nineteen hundred and eleven, shall remain 
a part of said constitution. 

Except as herein otherwise provided, said election upon this 
amendment shall be in all respects subject to the election laws 
of New Mexico now in force. 

Sec. 6. That the fifth clause of section two of "An Act to 
enable the people of New Mexico to form a constitution and 
State government and be admitted into the Union on an equal 
footing with the original States; and to enable the people of 
Arizona to form a constitution and be admitted into the Union 
on an equal footing with the original States," approved June 
twentieth, anno Domini nineteen hundred and ten, be, and the 
same is hereby, amended so as to read as follows : — 

" Fifth. That said State shall never enact any law restricting 
or abridging the right of suffrage on account of race, color, or 
previous condition of servitude." 

Sec. 7. That before the proclamation of the President shall 
issue, announcing the result of said election in Arizona, and at 
the same time that the State election is held, as aforesaid, the 
electors of Arizona shall vote upon and ratify and adopt the 
following proposed amendment to their State constitution as a 
condition precedent to the admission of said State, to wit : — 

" Section one of Article VIII of the constitution of the State 
of Arizona, adopted by the electors of said State at an election 
held on the ninth day of February, anno Domini nineteen hun- 
dred and eleven, be, and the same is hereby, amended so as to 
read as follows : — 



The State-wide Recall 263 

"' Article VIII. — Removal from Office. 

"'i. RECALL OF PUBLIC OFFICERS. 

"'Section i. Every public officer in the State of Arizona, 
except members of the judiciary, holding an elective office, 
either by election or appointment, is subject to recall from such 
office by the qualified electors of the electoral district from 
which candidates are elected to such office. Such electoral dis- 
trict may include the whole State. Such number of said electors 
as shall equal twenty-five per centum of the number of votes 
cast at the last preceding general election for all of the candi- 
dates for the office held by such officer may by petition, which 
shall be known as a recall petition, demand his recall. ' " 

The ballots to be provided for said first State election shall 
have printed thereon this proposed amendment and there shall 
be placed on said ballots two blank squares with dimensions of 
one-half an inch and opposite one of said squares shall be printed 
the words "For constitutional amendment" and opposite the 
other blank square shall be printed the words "Against consti- 
tutional amendment." 

Any elector desiring to vote for said amendment shall place 
a cross in the blank square opposite the words "For constitu- 
tional amendment," and those desiring to vote against such 
amendment shall place a cross in the blank square opposite the 
words "Against constitutional amendment," and said ballots 
shall be counted and canvassed by the election officers of said 
State authorized by law to count and canvass the ballots cast 
at the election for State officers ; and the returns of said elec- 
tion upon said amendment shall be made by said election officers 
direct to the secretary of the Territory of Arizona at Phcenix, 
who, with the governor and chief justice of said Territory, shall 
constitute a canvassing board, and they, or any two of them, 
shall meet at said city of Phcenix on the third Monday after 
said election and shall canvass the same. If a majority of the 
legal votes cast at said election upon said amendment shall be 



264 State-wide Initiative, Referendum, and Recall 

in favor thereof, the said canvassing board shall forthwith certify 
said result to the governor of the Territory, together with the 
statement of votes cast upon the question of the ratification or 
rejection of said amendment ; whereupon the governor of said 
Territory shall, by proclamation, declare the said amendment 
a part of the constitution of the proposed State of Arizona and 
thereupon the same shall become and be a part of said consti- 
tution ; and if the said proposed amendment to section one of 
Article VIII of the constitution of Arizona is not adopted and 
ratified as aforesaid then, and in that case, the Territory of 
Arizona shall not be admitted into the Union as a State, under 
the provisions of this Act. 

Except as herein otherwise provided said election upon this 
amendment shall be in all respects except as to the educational 
qualifications of electors subject to the election laws of Arizona 
now in force. 

Approved, August 21, 191 1. 

XXV. California 

[The Legislature of California at the session, beginning Janu- 
ary 2, 191 1, passed an amendment providing for the recall of all 
elective public officers. The amendment passed the Senate on 
February 24, 191 1, and the Assembly on March 7, 191 1. This 
amendment together with an initiative and referendum amend- 
ment was adopted by an overwhelming majority at a special elec- 
tion held October 10, 191 1. The initiative, referendum and re- 
call have already been extended to municipal corporations by an 
act passed by the 191 1 Legislature. The provisions of the state- 
wide recall amendment follow.] 

Senate Constitutional Amendment No. 23. A resolution to propose 
to the people of the State of California an amendment to the con- 
stitution of the state by adding a new article thereto to be numbered 
Article XXIII, providing for the recall by the electors, of public 
officials. 

The legislature of the State of California, at its regular session 
commencing on the second day of January, 191 1, two-thirds of all 



The State-wide Recall 265 

the members elected to each of the two houses of said legislature 
voting in favor thereof, hereby proposes that a new article be 
added to the constitution of the State of California to be num- 
bered Article XXIII thereof, to read as follows : — 

Article XXIII 

Section i. Every elective public officer of the State of Cali- 
fornia may be removed from office at any time by the electors 
entitled to vote for a successor of such incumbent, through the 
procedure and in the manner herein provided for, which pro- 
cedure shall be known as the recall, and is in addition to any 
other method of removal provided by law. 

The procedure hereunder to effect the removal of an incum- 
bent of an elective public office shall be as follows : A petition 
signed by electors entitled to vote for a successor of the incum- 
bent sought to be removed, equal in number to at least twelve 
per cent of the entire vote cast at the last preceding election for 
all candidates for the office which the incumbent sought to 
be removed occupies ; provided, that if the officer sought to be re- 
moved is a state officer who is elected in any political subdivision 
of the state, said petition shall be signed by electors entitled to 
vote for a successor to the incumbent sought to be removed, equal 
in number to at least twenty per cent of the entire vote cast at 
the last preceding election for all candidates for the office which 
the incumbent sought to be removed occupies, demanding an 
election of a successor to the officer named in said petition, shall 
be addressed to the secretary of state and filed with the clerk, or 
registrar of voters, of the county or city and county in which the 
petition was circulated ; provided, that if the officer sought to be 
removed was elected in the state at large such petition shall be 
circulated in not less than five counties of the state, and shall be 
signed in each of such counties by electors equal in number to 
not less than one per cent of the entire vote cast, in each of said 
counties, at said election, as above estimated. Such petition 
shall contain a general statement of the ground on which the 



i66 State-wide Initiative, Referendum, and Recall 

removal is sought, which statement is intended solely for the 
information of the electors, and the sufficiency of which shall not 
be open to review. 

When such petition is certified as is herein provided to the 
secretary of state, he shall forthwith submit the said petition, 
together with a certificate of its sufficiency, to the governor, who 
shall thereupon order and fix a date for holding the election, not 
less than sixty days nor more than eighty days from the date of 
such certificate of the secretary of state. 

The governor shall make or cause to be made publication of 
notice for the holding of such election, and officers charged by 
law with duties concerning elections shall make all arrangements 
for such election and the same shall be conducted, returned, and 
the result thereof declared, in all respects as are other state elec- 
tions. On the official ballot at such election shall be printed, in 
not more than two hundred words, the reasons set forth in the 
petition for demanding his recall. And in not more than three 
hundred words there shall also be printed, if desired by him, the 
officer's justification of his course in office. Proceedings for the 
recall of any officer shall be deemed to be pending from the date 
of the filing with any county, or city and county clerk, or regis- 
trar of voters, of any recall petition against such officer ; and 
if such officer shall resign at any time subsequent to the filing 
thereof, the recall election shall be held notwithstanding such 
resignation, and the vacancy caused by such resignation, or 
from any other cause, shall be filled as provided by law, but the 
person appointed to fill such vacancy shall hold his office only 
until the person elected at the said recall election shall 
qualify. 

Any person may be nominated for the office which is to be 
filled at any recall election by a petition signed by electors, 
qualified to vote at such recall election, equal in number to at 
least one per cent of the total number of votes cast at the last 
preceding election for all candidates for the office which the in- 
cumbent sought to be removed occupies. Each such nominating 



The State-wide Recall . 267 

petition shall be filed with the secretary of state not less than 
twenty-five days before such recall election. 

There shall be printed on the recall ballot, as to every officer 
whose recall is to be voted on thereat, the following question : 
" Shall (name of person against whom the recall petition is 
filed) be recalled from the office of (title of the office) ?" following 
which question shall be the words "yes" and "no" on separate 
lines, with a blank space at the right of each, in which the voter 
shall indicate, by stamping a cross (X), his vote for or against 
such recall. On such ballots, under each such question, there 
shall also be printed the names of those persons who have been 
nominated as candidates to succeed the person recalled, in case 
he shall be removed from office by said recall election ; but no 
vote cast shall be counted for any candidate for said office unless 
the voter also voted on said question of the recall of the person 
sought to be recalled from said office. The name of the person 
against whom the petition is filed shall not appear on the ballot 
as a candidate for the office. If a majority of those voting on said 
question of the recall of any incumbent from office shall vote 
"No," said incumbent shall continue in said office. If a major- 
ity shall vote "Yes," said incumbent shall thereupon be deemed 
removed from such office, upon the qualification of his successor. 
The canvassers shall canvass all votes for candidates for said 
office and declare the result in like manner as in a regular election. 
If the vote at any such recall election shall recall the officer, then 
the candidate who has received the highest number of votes for 
the office shall be thereby declared elected, for the remainder of 
the term. In case the person who received the highest number 
of votes shall fail to qualify within ten days after receiving the 
certificate of election, the office shall be deemed vacant and shall 
be filled according to law. 

Any recall petition may be presented in sections, but each 
section shall contain a full and accurate copy of the title and 
text of the petition. Each signer shall add to his signature his 
place of residence, giving the street and number, if such exist. 



268 State-wide Initiative, Referendum, and Recall 

His election precinct shall also appear on the paper after his 
name. The number of signatures appended to each section shall 
be at the pleasure of the person soliciting signatures to the same. 
Any qualified elector of the state shall be competent to solicit 
such signatures within the county, or city and county, of which he 
is an elector. Each section of the petition shall bear the name of 
the county, or city and county in which it is circulated, and only 
qualified electors of such county or city and county shall be com- 
petent to sign such section. Each section shall have attached 
thereto the affidavit of the person soliciting signatures to the same 
stating his qualifications and that all the signatures to the 
attached section were made in his presence and that to the best 
of his knowledge and belief each signature to the section is the 
genuine signature of the person whose name it purports to be ; 
and no other affidavit thereto shall be required. The affidavit 
of any person soliciting signatures hereunder shall be verified 
free of charge by any officer authorized to administer an oath. 
Such petition so verified shall be prima facie evidence that the 
signatures thereto appended are genuine and that the persons 
signing the same are qualified electors. Unless and until it is 
otherwise proven upon official investigation, it shall be presumed 
that the petition presented contains the signatures of the requisite 
number of electors. Each section of the petition shall be filed 
with the clerk, or registrar of voters, of the county or city and 
county in which it was circulated ; but all such sections circulated 
in any county or city and county shall be filed at the same time. 
Within twenty days after the date of filing such petition, the clerk, 
or registrar of voters, shall finally determine from the records 
of registration what number of qualified electors have signed the 
same; and, if necessary, the board of supervisors shall allow 
such clerk or registrar additional assistants for the purpose 
of examining such petition and provide for their compensation. 
The said clerk or registrar, upon the completion of such examina- 
tion, shall forthwith attach to such petition his certificate, prop- 
erly dated, showing the result of such examination, and submit 



The State-wide Recall 269 

said petition, except as to the signatures appended thereto, to the 
secretary of state and file a copy of said certificate in his office. 
Within forty days from the transmission of the said petition and 
certificate by the clerk or registrar of voters to the secretary of 
state, a supplemental petition, identical with the original as to 
the body of the petition but containing supplemental names, may 
be filed with the clerk or registrar of voters, as aforesaid. The 
clerk or registrar of voters shall within ten days after the filing 
of such supplemental petition make like examination thereof 
as of the original petition, and upon the conclusion of such exami- 
nation shall forthwith attach to such petition his certificate, 
properly dated, showing the result of such examination, and shall 
forthwith transmit such supplemental petition, except as to the 
signatures thereon, together with his said certificate, to the 
secretary of state. 

When the secretary of state shall have received from one or 
more county clerks, or registrars of voters, a petition certified 
as herein provided to have been signed by the requisite number of 
qualified electors, he shall forthwith transmit to the county clerk 
or registrar of voters of every county or city and county in the 
state a certificate showing such fact ; and such clerk or registrar 
of voters shall thereupon file said certificate for record in his office. 

A petition shall be deemed to be filed with the secretary of 
state upon the date of the receipt by him of a certificate or certifi- 
cates showing the said petition to be signed by the requisite num- 
ber of electors of the state. 

No recall petition shall be circulated or filed against any officer 
until he has actually held his office for at least six months ; save 
and except it may be filed against any member of the state legis- 
lature at any time after five days from the convening and or- 
ganizing of the legislature after his election. 

If at any recall election the incumbent whose removal is sought 
is not recalled, he shall be repaid from the state treasury any 
amount legally expended by him as expenses of such election, and 
the legislature shall provide appropriation for such purpose, and 



270 State-wide Initiative, Referendum, and Recall 

no proceedings for another recall election of said incumbent shall 
be initiated within six months after such election. 

If the governor is sought to be removed under the provisions 
of this article, the duties herein imposed upon him shall be 
performed by the lieutenant governor; and if the secretary of 
state is sought to be removed, the duties herein imposed upon 
him shall be performed by the state controller ; and the duties 
herein imposed upon the clerk or registrar of voters, shall be 
performed by such registrar of voters in all cases where the office 
of registrar of voters exists. 

The recall shall also be exercised by the electors of each county, 
city and county, city and town of the state, with reference to the 
elective officers thereof, under such procedure as shall be provided 
by law. 

Until otherwise provided by law, the legislative body of any 
such county, city and county, city or town may provide for the 
manner of exercising such recall powers in such counties, cities 
and counties, cities and towns, but shall not require any such re- 
call petition to be signed by electors more in number than 
twenty-five per cent of the entire vote cast at the last preceding 
election for all candidates for the office which the incumbent 
sought to be removed occupies. Nothing herein contained shall 
be construed as affecting or limiting the present or future powers 
of cities or counties or cities and counties having charters adopted 
under the authority given by the constitution. 

In the submission to the electors of any petition proposed 
under this article all officers shall be guided by the general laws 
of the state, except as otherwise herein provided. 

This article is self-executing, but legislation may be enacted 
to facilitate its operation, but in no way limiting or restricting 
the provisions of this article or the powers herein reserved. 



The State-wide Recall 271 

XXVI. Idaho (Proposed) l 

[The following recall provision was passed on March 1, 191 1, 
and will be submitted to the voters at the general election in 
November, 1912.] 

Be It Resolved by the Legislature of the State of Idaho : — 

Section 1. That Article 6 of the Constitution of the State of 
Idaho be amended by adding thereto Section 6, which shall read 
as follows : — 

Section 6. Every public officer in the State of Idaho, excepting 
the Judicial officers, is subject to recall by the legal voters of the 
State or of the Electoral District from which he is elected. The 
Legislature shall pass the necessary laws to carry this provision 
into effect. 

Section 2. The question to be submitted to the electors of the 
State at the next general election shall be in form as follows: 
"Shall Article 6 of the Constitution of the State of Idaho be 
amended by adding thereto Section 6 so as to reserve to the people 
of the State, or any Electoral District therein, the right to recall 
any public officer except Judicial officers in the State or said 
Electoral District ? " 

Section 3. The Secretary of State is hereby authorized to make 
publication of this Constitutional Amendment in each county for 
at least six (6) consecutive weeks prior to the next general elec- 
tion in at least one (1) newspaper of general circulation published 
in each county. 

Passed House, February 24, 1911. 
Passed Senate, March 1, 1911. 

1 Official copy. 



272 State-wide Initiative, Referendum, and Recall 

XXVII. Nevada (Proposed) l 

[The following recall provision has been duly passed by the 
Nevada legislature and will be submitted to the voters in No- 
vember, 191 2. See above, p. 121.] 

No. 4 — Senate Substitute for Assembly Joint and Concurrent 
Resolution No. 8, proposing that section nine be added to article 
two of the constitution of the State of Nevada. 
[Approved March 22, 1909] 
[Approved February 2, 191 1] 

Resolved by the Senate, the Assembly concurring, That section 
nine be added to article two of the constitution of the State of 
Nevada, to read as follows : — 

Section 9. Every public officer in the State of Nevada is 
subject, as herein provided, to recall from office by the qualified 
electors of the state, or of the county, district, or municipality, 
from which he was elected. For this purpose not less than twenty- 
five per cent (25 %) of the qualified electors who vote in the 
state or in the county, district, or municipality electing said officer, 
at the preceding election, for justice of the supreme court, 
shall file their petition, in the manner herein provided, demand- 
ing his recall by the people ; they shall set forth in said petition, 
in not exceeding two hundred (200) words, the reasons why said 
recall is demanded. If he shall offer his resignation, it shall be 
accepted and take effect on the day it is offered, and the vacancy 
thereby caused shall be filled in the manner provided by law. 
If he shall not resign within five (5) days after the petition is filed, 
a special election shall be ordered to be held within twenty days 
(20) after the issuance of the call therefor, in the state, or county, 
district, or municipality electing said officer, to determine 
whether the people will recall said officer. On the ballot at said 
election shall be printed verbatim as set forth in the recall peti- 
tion, the reasons for demanding the recall of said officer, and in 

1 Official copy. 



The State-wide Recall 273 

not more than two hundred (200) words, the officer's justification 
of his course in office. He shall continue to perform the duties of 
his office until the result of said election shall be finally declared. 
Other candidates for the office may be nominated to be voted 
for at said special election. The candidate who shall receive 
the highest number of votes at said special election shall be 
deemed elected for the remainder of the term, whether it be the 
person against whom the recall petition was filed, or another. 
The recall petition shall be filed with the officer with whom the 
petition for nomination to such office shall be filed, and the same 
officer shall order the special election when it is required. No 
such petition shall be circulated or filed against any officer until 
he has actually held his office six (6) months, save and except 
that it may be filed against a senator or assemblyman in the 
legislature at any time after ten (10) days from the beginning 
of the first session after his election. After one such petition 
and special election, no further recall petition shall be filed against 
the same officer during the term for which he was elected, unless 
such further petitioners shall pay into the public treasury from 
which the expenses of said special election have been paid, the 
whole amount paid out of said public treasury as expenses for the 
preceding special election. Such additional legislation as may 
aid the operation of this section shall be provided by law. 1 

1 For the North Dakota recall provision (proposed), see above, pp. 210, 



III. INITIATIVE AND REFERENDUM IN MUNICIPAL 
GOVERNMENT 

XXVIII. Ohio 1 

[The initiative and referendum are extended to cities in most of 
the states having the state-wide system. In a few states, they 
are also extended to counties. However, in a number of states 
not having the state- wide initiative and referendum or the 
commission form of city government this plan has been added 
to the regular city government. A satisfactory example is the 
law in force in Ohio. Governor Harmon succeeded in forcing 
the legislature of 191 1 to adopt the following bill approved 
June 14, 1911.] 

A BILL 

To provide for the initiative and referendum in municipal 
corporations 

Be it enacted by the General Assembly of the State of Ohio : — 

Section i. Ordinances providing for and declaratory of any 
and all powers of government which the general assembly has del- 
egated or may hereafter delegate to any municipal corporation, in 
accordance with the provisions of the constitution, and also 
ordinances repealing other ordinances, may be proposed to the 
council of any municipal corporation for passage by initiative 
petition signed as hereafter provided by thirty per cent of the 
qualified voters of such municipality, which petition is to be filed 
with the clerk of such municipal corporation within 120 days after 
the date of the first signature thereon. Any proposed ordinances 
so petitioned for, shall be submitted by said clerk to the council 
for its action thereon at its next meeting. If within sixty days 

l Laws of Ohio (1911), pp. 521 ff. 
274 



In Municipal Government 275 

after its first submission to the council, said ordinance is not 
passed by the council without change or amendment, it shall be 
the duty of the clerk within ten days after the expiration of said 
sixty days to certify said proposed ordinance to the officers hav- 
ing control of the elections in such municipal corporation, who 
shall cause the question of the passage of such ordinance to be 
submitted to the vote of the electors of such municipal corpora- 
tion at the next regular election; provided, however, that 
same shall not become operative until it shall have been submitted 
and receive the majority of the vote cast at such election. 

The highest total vote cast for the office of mayor at the regular 
municipal election immediately preceding the filing of such peti- 
tion shall be the basis upon which the number of signatures of 
qualified electors of such municipal corporation required upon the 
aforesaid petitions, shall be determined. If a majority of those 
voting on said ordinance are in favor of same, it shall become a 
valid ordinance of said municipal corporation from the date of the 
determination of the vote, and shall not be subject to the veto 
of the mayor ; and said ordinance shall be recorded and published 
in the same manner as other ordinances of said municipality. 

Section 2. Any ordinance, resolution or other measure of a 
municipal corporation, granting a franchise creating a right, 
involving the expenditure of money or exercising any other power 
delegated to such municipal corporation by the general assembly, 
shall be submitted to the qualified electors for their approval or 
rejection in the manner herein provided, if within thirty days 
after the passage or adoption of such ordinance, resolution or 
measure by the council, there be filed with the clerk of such mu- 
nicipal corporation, a petition or petitions signed by fifteen per cent 
of the qualified electors of such municipal corporation as determined 
by the highest number of votes cast for the office of mayor at such 
municipal election immediately preceding, ordering the sub- 
mission of such ordinance, resolution or measure to the vote of the 
electors of such municipal corporation. Within ten days after 
the filing of such petition or petitions with the clerk as aforesaid, 



276 State-wide Initiative, Referendum, and Recall 

such clerk shall certify such ordinance, resolution or other measure 
to the officer or officers having control of elections in such munici- 
pal corporation who shall submit such ordinance, resolution or 
other measure to the vote of the electors of such municipal cor- 
poration at the next general election. 

No resolution, ordinance, or measure of any municipal cor- 
poration, creating a right, involving the expenditure of money, 
granting a franchise, conferring, extending or renewing a right 
to use of the streets, or regulating the use of the streets for water, 
gas, electricity, telephone, telegraph, power or street railways, 
or other public or quasi-public utility shall become effective in 
less than sixty days after its passage, during which time, if peti- 
tions signed by fifteen per cent of the qualified electors of such 
municipal corporation as determined by the highest number of 
votes cast for the office of mayor of such municipal corporation 
at the municipal election immediately preceding, are filed with 
the clerk of such municipal corporation petitioning for the sub- 
mission of any such ordinance or resolution to a vote of the people, 
such clerk shall certify the fact of the filing of such petition to the 
officers having control of the elections in such municipal corpora- 
tion, who shall cause said resolution or ordinance to be voted on 
at the next regular election ; Provided, however, that at least 
thirty days' notice of the election upon such ordinance, resolu- 
tion or measure must be given, when such election is to be 
held. 

Section 3. All other acts of city council not included among 
those specified in section 2 of this act, shall also remain inopera- 
tive for sixty days after passage and may be submitted to popu- 
lar vote in the manner herein provided, except that any act, not 
included within those specified in section 2 of this act, as remain- 
ing inoperative for sixty days, and which is declared to be an 
emergency measure, and receiving a three-fourths majority in 
council of such municipal corporation may go into effect imme- 
diately and remain in effect until repealed by city council or by 
direct vote of the people as herein provided. 



In Municipal Government 277 

Section 4. The form of petition for the referendum to the 
people on any act of a city council shall be substantially as 
follows : — 

NOTICE 

It is a misdemeanor for any one to sign any initiative or refer- 
endum petition with any name other than his own or knowingly 
to sign his name more than once for the same measure, or to 
sign such petition when he is not a qualified elector. 

To , clerk of : 

We, the undersigned, electors of of , 

respectfully order that council ordinance No , entitled 

shall be referred to the electors for their approval 

or rejection, at the regular election to be held on the day 

of , a.d. 19 . . , and each for himself says : I know 

the contents of and have personally signed this petition and 

my residence is correctly stated opposite my name. 

Name , Residence , Date of signature. 

Here place as many lines as convenient for the placing of 
signatures, places of residence and date of signature, under the 
respective headings indicated. 

The form of petition for any ordinance proposed by the ini- 
tiative shall be substantially the same as for referendum peti- 
tions, except that in place of number and title of the ordinance 
passed by council, shall be inserted, the text of the proposed 
ordinance. 

Petitions may be filed in numbered sections accompanied by 
the affidavit of the person or persons circulating same, which 
affidavit shall be in substantially the following form : — 
State of Ohio, County of ss. : — 

I, being first duly sworn, say : The signatures 

upon the petitions herewith attached were made in my presence ; 
I believe that each signer is a qualified elector and has stated 
his name and address correctly. 

Signature and address of affiant 



278 State-wide Initiative, Referendum, and Recall 

Subscribed and sworn to before me by this 

day of , a.d 

Signature and title of officer before whom oath is made together 
with such officer's seal, if the use of same be otherwise required 
by law. 

The forms herein given are not mandatory, and if substantially 
followed in any petition it shall be sufficient, regardless of clerical 
and technical errors. 

Section 5. Ordinances, resolutions or other measures referred 
by petition shall be designated, " Referendum ordered by petition 
of the electors" ordinances or other measures proposed by ini- 
tiative petition shall be designated by the heading, "Proposed 
by initiative petition." 

The manner of voting upon ordinances, resolutions or other 
measures submitted to the electors, and upon ordinances, resolu- 
tions or other measures proposed by initiative and submitted 
to the electors, shall be the same as is now or may hereafter be 
required and provided by law ; no ordinance or other measure 
shall be adopted unless it shall receive an affirmative majority 
of the total number of the lawful and effective votes cast at 
such election and entitled to be counted under the provisions 
of this act ; separate ballots shall be provided and so printed as 
to permit a vote for or against each ordinance or measure sub- 
mitted in accordance with the order of the petition or petitions 
demanding such submission and for or against each ordinance or 
measure proposed by initiative petition ; and all ordinances and 
measures passed by council or ordinances and measures proposed 
by initiative petition, so submitted, shall be indicated on the 
ballots by the title of such ordinance or measure passed by the 
council, or the title of the proposed ordinance or measure given 
in the petitions asking for the popular vote upon the same. 

Every person who is a qualified elector of the state of Ohio, 
may lawfully sign any of the petitions mentioned in this act, for 
an initiative or referendum vote, in the municipality where he is 



In Municipal Government 279 

entitled to vote. Any person signing any name other than his 
own to any petition, or knowingly signing his name more than 
once upon a petition or petitions for a referendum election upon 
the same ordinance or measure or upon a petition or petitions 
proposing the same ordinance or measure, at one election, or who 
is not at the time of signing his name a qualified elector of the 
city, or any officer or any person wilfully violating any provision 
of this statute, shall be punished by a fine not exceeding one 
hundred dollars or by imprisonment in the county jail or work- 
house not exceeding six months, or both. 

Section 6. If any section or portion of this act shall for any 
reason be declared to be unconstitutional, such invalidity shall 
not affect any other section or portion hereof. 

All laws and parts of laws in conflict herewith are hereby repealed. 



IV. INITIATIVE, REFERENDUM, AND RECALL IN 
COMMISSION GOVERNMENT 

XXIX. Iowa 

[The provisions of the Iowa law passed in 1907 (under which 
the Des Moines plan is organized), relative to the initiative, ref- 
erendum, and recall, are as follows.] l 

Sec. 18. The holder of any elective office may be removed at 
any time by the electors qualified to vote for a successor of such 
incumbent. The procedure to effect the removal of an incumbent 
of an elective office shall be as follows : A petition signed by 
electors entitled to vote for a successor to the incumbent sought 
to be removed, equal in number to at least 25 per cent of the 
entire vote for all candidates for the office of mayor 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, which petition 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 officer competent to administer oaths that 
the statements therein made are true as he believes, and that 
each signature to the paper appended is the genuine signature of 
the person whose name it purports to be. Within 10 days from 
the date of filing such petition the city clerk shall examine and 
from the voters' 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 pur- 

1 Beard, Digest of Short Ballot Charters, folio 51,206. 
280 



In Commission Government 281 

pose ; 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 within 10 
days from the date of said certificate. The clerk shall, within 
10 days after such amendment make like examination 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 deemed to be sufficient, the 
clerk shall submit the same to the council without delay. If the 
petition shall be found to be sufficient, the council shall order 
and fix a date for holding the said election not less than 30 days 
or more than 40 days from the date of the clerk's certificate to the 
council that a sufficient petition is filed. 

The council shall make, or cause to be made, publication of 
notice and all arrangements for holding 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 with- 
out 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 receives 
the highest number of votes the incumbent shall thereupon be 
deemed removed from the office upon qualification of his suc- 
cessor. In case the party who receives the highest number of 
votes should fail to qualify, within 10 days after receiving noti- 
fication of election, the office shall be deemed vacant. If the 
incumbent receives the highest number of votes he shall continue 
in office. The same method of removal shall be cumulative and 
additional to the methods heretofore provided by law. 

Sec. 19. Any proposed ordinance may be submitted to the 
council by petition signed by electors of the city equal in number 



282 State-wide Initiative, Referendum, and Recall 

to the percentage hereinafter required. The signatures, veri- 
fication, authentication, inspection, certification, amendment, 
and submission of such petition shall be the same as provided for 
petitions under section 18 hereof. 

If the petition accompanying the proposed ordinance be signed 
by electors equal in number to 25 per cent of the votes cast for 
all candidates for mayor at the last preceding general election, 
and contains a request that the said ordinance be submitted to a 
vote of the people if not passed by the council, such council shall 
either — 

(a) Pass said ordinance without alteration within 20 days after 
attachment of the clerk's certificate to the accompanying peti- 
tion, or 

(b) Forthwith after the clerk shall attach to the petition ac- 
companying such ordinance his certificate of sufficiency, the 
council shall call a special election, unless a general municipal 
election is fixed within 90 days thereafter, and at such special or 
general municipal election, if one is so fixed, such ordinance shall 
be submitted without alteration to the vote of the electors of 
said city. 

But if the petition is signed by not less than 10 nor more than 
25 per cent of the electors, as above defined, then the council 
shall, within 20 days, pass said ordinance without change, or 
submit the same at the next general city election occurring not 
more than 30 days after the clerk's certificate of sufficiency is 
attached to said petition. 

The ballots used when voting upon said ordinance shall con- 
tain these words : " For the ordinance " (stating the nature of 
the proposed ordinance) and "Against the ordinance" (stating 
the nature of the proposed ordinance). If a majority of the 
qualified electors voting on the proposed ordinance shall vote 
in favor thereof, such ordinance shall thereupon become a valid 
and binding ordinance of the city ; and any ordinance proposed 
by petition, or which shall be adopted by a vote of the people, 
cannot be repealed or amended except by a vote of the people. 



In Commission Government 283 

Any number of proposed ordinances may be voted upon at the 
same election, in accordance with the provisions of this section ; 
but there shall not be more than one special election in any 
period of six months for such purpose. 

The council may submit a proposition for the repeal of any such 
ordinance or for amendments thereto, to be voted upon at any 
succeeding general city election ; and should such proposition so 
submitted receive a majority of the votes cast thereon at such 
election, such ordinance shall thereby be repealed or amended 
accordingly. Whenever any ordinance or proposition is required 
by this act to be submitted to the voters of the city at any elec- 
tion, the city clerk shall cause such ordinance or proposition to be 
published once in each of the daily newspapers published in said 
city, such publication to be not more than 20 nor less than 5 days 
before the submission of such proposition or ordinance to be 
voted on. 

Sec. 20. No ordinance passed by the council, except when 
otherwise required by the general laws of the State or by the 
provisions of this act, except an ordinance for the immediate 
preservation of the public peace, health, or safety, which contains 
a statement of its urgency and is passed by a two-thirds vote of 
the council, shall go into effect before 10 days from the time of its 
final passage ; and if during said 10 days a petition signed by elec- 
tors of the city equal in number to at least 25 per cent of the entire 
vote cast for all candidates for mayor at the last preceding gen- 
eral municipal election at which a mayor w T as elected, protesting 
against the passage of such ordinance, be presented to the coun- 
cil, the same shall thereupon be suspended from going into 
operation, and it shall be the duty of the council to reconsider 
such ordinance; and if the same is not entirely repealed, the 
council shall submit the ordinance, as is provided by subsection 
(b) of section 19 of this act, to the vote of the electors of the city, 
either at the general election or at a special municipal election 
to be called for that purpose ; and such ordinance shall not go mto 
effect or become operative unless a majority of the qualified 



284 State-wide Initiative, Referendum, and Recall 

electors voting on the same shall vote in favor thereof. Said 
petition shall be in all respects in accordance with the provisions 
of said section 19, except as to the percentage of signers, and be 
examined and certified to by the clerk in all respects as is therein 
provided. 

Sec. 21. Any city which shall have operated for more than 
six years under the provisions of this act may abandon such 
organization hereunder and accept the provisions of the general 
law of the State then applicable to cities of its population, or if 
now organized under special charter, may resume said special 
charter by proceeding as follows : — 

Upon the petition of not less than 25 per cent of the electors of 
such city a special election shall be called, at which the following 
proposition only shall be submitted : " Shall the city of (name the 
city) abandon its organization under chapter — of the acts of 
the thirty-second general assembly and become a city under the 
general law governing cities of like population, or if now or- 
ganized under special charter, shall resume said special charter ? " 

If a majority of the votes cast at such special election be in 
favor of such proposition, the officers elected at the next suc- 
ceeding biennial election shall be those then prescribed by the 
general law of the State for cities of like population, and upon the 
qualification of such officers such city shall become a city under 
such general law of the State ; but such change shall not in any 
manner or degree affect the property, right, or liabilities of any 
nature of such city, but shall merely extend to such change in its 
form of government. 

The sufficiency of such petition shall be determined, the elec- 
tion ordered and conducted, and the results declared, generally as 
provided by section 18 of this act, in so far as the provisions 
thereof are applicable. 

Sec. 22. Petitions provided for in this act shall be signed by 
none but legal voters of the city. Each petition shall contain, in 
addition to the names of the petitioners, the street and house 
number in which the petitioner resides, his age, and length of 






In Commission Government 285 

residence in the city. It shall also be accompanied by the affi- 
davit of one or more legal voters of the city stating that the sign- 
ers thereof were, at the time of signing, legal voters of said city, 
and the number of signers at the time the affidavit was made. 



XXX. New Jersey 

[The 191 1 Legislature of New Jersey, under the leadership 
of Governor Woodrow Wilson, adopted the commission form of 
government for cities, April 25, 191 1. Each city can decide 
for itself whether or not it desires to avail itself of the plan. Elec- 
tions are to be held if twenty per centum of the voters at the last 
election so petition. The plan must be favored by a majority 
of those voting at the election, and this majority must be equal 
to "at least thirty per centum of the votes cast for members of 
the General Assembly at the last general election." The ini- 
tiative, referendum, and recall features of the New Jersey plan 
follow.] 

RECALL 

15. The holder of any elective office may be removed at any 
time by the electors qualified to vote for a successor of such 
incumbent. The procedure to effect the removal of an incum- 
bent of an elective office shall be as follows : A petition signed 
by the electors entitled to vote for a successor to the incumbent 
sought to be removed, equal in number to at least twenty-five 
per cent of the entire vote at the last preceding general election 
demanding an election of a successor of the person sought to be 
removed, shall be filed with the city clerk, which petition 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 resi- 
dence, giving the street and number. One of the signers of each 
such paper shall make an oath before an officer competent to 
administer oaths that the statement therein made is true as he 
believes, and that each signature to the paper appended is the 



286 State-wide Initiative, Referendum, and Recall 

genuine signature of the person whose name it purports to be. 
Within ten days from the date of filing such petition the city clerk 
shall examine, ascertain whether or not said petition is signed by 
the requisite number of qualified electors, 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 insuffi- 
cient, it may be amended within ten days from the date of said 
certificate. 

The clerk shall, within ten days after such amendment, make 
like examination of the amended petition, and if this certificate 
shall show the same to be insufficient, it shall be returned to the 
person filing the same, without prejudice to the filing of a new 
petition to the same effect. If the petition shall be deemed to 
be sufficient, the clerk shall submit the same to the board of 
commissioners without delay. 

If the petition shall be found to be sufficient the board of 
commissioners shall, if the officer sought to be removed shall not 
resign within five days after the date on the clerk's certificate, 
order and fix a date for holding the said election, not less than 
thirty days or more than forty days from the date on the clerk's 
certificate to the board of commissioners that a sufficient petition 
is filed. 

The board of commissioners shall make, or cause to be made, 
publication of notice and all arrangements for holding such elec- 
tion, 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 de- 
clared elected. At such election, if some other person than the 
incumbent receives the highest number of votes the incum- 
bent shall thereupon be deemed removed from the office upon 



In Commission Government 287 

qualification of his successor. In case the person who receives 
the highest number of votes should fail to qualify within ten 
days after receiving notification of election, the office shall be 
deemed vacant. If the incumbent receives the highest number 
of votes, he shall continue in office. The same method of removal 
shall be cumulative and additional to the methods heretofore 
provided by law. No person who has been recalled from an 
elective office, or who has resigned from such office while recall 
proceedings were pending against him, shall be appointed to any 
office within one year after such recall or resignation. 

No recall petition shall be filed against any officer until he has 
actually held his office for at least twelve months, and but one 
recall petition shall be filed against the same officer during his 
term of office. 

INITIATIVE 

16. Any proposed ordinance may be submitted to the board 
of commissioners by petition signed by electors of the city equal 
in number to the percentage hereinafter required. The sig- 
natures, verification,' authentication, inspection, certification, 
amendment and submission of such petition shall be the same as 
provided for petitions under the last section. 

If the petition accompanying the proposed ordinance be signed 
by electors equal in number to fifteen per centum of the votes 
cast at the last preceding general election, and contains a request 
that the said ordinance be submitted to a vote of the people if 
not passed by the board of commissioners, such board of com- 
missioners shall either — 

(a) Pass said ordinance without alteration within twenty 
days after attachment of the clerk's certificate to the accompany- 
ing petition, or, 

(b) Forthwith, after the clerk shall attach to the petition 
accompanying such ordinance his certificate of sufficiency, the 
board of commissioners shall call a special election, unless a 
general municipal election is fixed within ninety days thereafter, 



288 State-wide Initiative, Referendum, and Recall 

and at such special or general municipal election, if one is so fixed, 
such ordinance shall be submitted without alteration to the vote 
of the electors of the city. 

But if the petition is signed by not less than ten nor more than 
fifteen per centum of the electors, as above defined, then the 
board of commissioners shall, within twenty days, pass said 
ordinance without change, or submit the same at the next general 
city election occurring not more than thirty days after the clerk's 
certificate of sufficiency is attached to said petition. 

The ballots used when voting upon said ordinance shall con- 
tain these words : " For the ordinance " (stating the nature of the 
proposed ordinance) and "Against the ordinance" (stating the 
nature of the proposed ordinance). If a majority of the qualified 
electors voting on the proposed ordinance shall vote in favor 
thereof, such ordinance shall thereupon become a valid and 
binding ordinance of the city ; and any ordinance proposed by 
petition, or which shall be adopted by a vote of the people, 
cannot be repealed or amended except by a vote of the 
people. 

Any number of proposed ordinances may be voted upon at the 
same election in accordance with the provisions of this section ; 
but there shall not be more than one special election in any period 
of six months for such purpose. 

The board of commissioners may submit a proposition for the 
repeal of any such ordinance or for amendment thereto, to be 
voted upon at any succeeding general city election, and should 
such proposition so submitted receive a majority of the votes 
cast thereon at such election, such ordinance shall thereby be 
repealed or amended accordingly. Whenever any ordinance or 
proposition is required by this act to be submitted to the voters 
of the city at any election, the city clerk shall cause such ordi- 
nance or proposition to be published once in at least one of the 
newspapers published in said city; such publication to be not 
more than twenty nor less than five days before the submission 
of such proposition or ordinance to be voted on. 



In Commission Government 289 



REFERENDUM 

17. No ordinance passed by the board of commissioners, ex- 
cept when otherwise required by the general laws of the State 
or by the provisions of this act, except an ordinance for the im- 
mediate preservation of the public peace, health or safety, which 
contains a statement of its urgency and is passed by a two-thirds 
vote of the board of commissioners, shall go into effect before ten 
days from the time of its final passage ; and if during said ten 
days a petition signed by electors of the city equal in number to 
at least fifteen per centum of the entire vote cast at the last pre- 
ceding general municipal election, protesting against the passage 
of such ordinance, be presented to the board of commissioners, 
the same shall thereupon be suspended from going into operation, 
and it shall be the duty of the board of commissioners to re- 
consider such ordinance ; and if the same is not entirely repealed, 
the board of commissioners shall submit the ordinance, as is pro- 
vided by sub-section b of section sixteen of this act, to the vote 
of the electors of the city, either at the general election or at a 
special municipal election to be called for that purpose ; and such 
ordinance shall not go into effect or become operative unless a 
majority of the qualified electors voting on the same shall vote 
in favor thereof. Said petition shall be in all respects in accord- 
ance with the provisions of said section sixteen, except as to the 
percentage of signers, and be examined and certified to by the 
clerk in all respects as therein provided. Any ordinance or meas- 
ure that the board of commissioners or the qualified electors of 
the city shall have authority to enact, the board of commissioners 
may of its own motion submit to the electors for adoption or 
rejection at a general or special municipal election, in the same 
manner and with the same force and effect as is provided in this 
act for ordinances or measures submitted on petition. At any 
special election called under the provisions of this act, there shall 
be no bar to the submission of other questions to a vote of the 
electors in addition to the ordinances or measures herein provided 
u 



290 State-wide Initiative, Referendum, and Recall 

for, if said other questions are such as may legally be submitted to 
such election. If the provisions of two or more measures ap- 
proved or adopted at the same election conflict, then the measure 
receiving the highest affirmative vote shall control. 



V. JUDICIAL DECISIONS 

XXXI. Luther v. Borden 
(7 Howard, 1, 1848) 

[The meaning of Art. IV, Sec. 4 of the federal Constitution 
relative to republican government came before the Court in 
the case of Luther v. Borden in 1848 ; and the Court held that it 
is for Congress to decide what government is established in a 
state and whether that government is republican.] 

Taney, C. J., delivered the opinion of the court. 

This case has arisen out of the unfortunate political differences 
which agitated the people of Rhode Island in 184 1 and 1842. 

It is an action of trespass brought by Martin Luther, the 
plaintiff in error, against Luther M. Borden and others, the de- 
fendants, in the Circuit Court of the United States for the Dis- 
trict of Rhode Island, for breaking and entering the plaintiff's 
house. The defendants justify upon the ground that large 
numbers of men were assembled in different parts of the State for 
the purpose of overthrowing the government by military force, 
and were actually levying war upon the State; that, in order 
to defend itself from this insurrection, the State was declared by 
competent authority to be under martial law ; that the plaintiff 
was engaged in the insurrection ; and that the defendants, being 
in the military service of the State, by command of their superior 
officer, broke and entered the house and searched the rooms for 
the plaintiff, who was supposed to be there concealed, in order 
to arrest him, doing as little damage as possible. The plaintiff 
replied, that the trespass was committed by the defendants of 
their own proper wrong, and without any such cause ; and upon 
the issue joined on this replication, the parties proceeded to trial. 

291 



292 State-wide Initiative, Referendum, and Recall 

The evidence, offered by the plaintiff and the defendants, is 
stated at large in the record ; and the questions decided by the 
Circuit Court, and brought up by the writ of error, are not such as 
commonly arise in an action of trespass. The existence and au- 
thority of the government, under which the defendants acted, was 
called in question ; and the plaintiff insists, that, before the acts 
complained of were committed, that government had been 
displaced and annulled by the people of Rhode Island, and that 
the plaintiff was engaged in supporting the lawful authority 
of the State, and the defendants themselves were in arms 
against it. 

This is a new question in this court, and certainly a very grave 
one ; and at the time when the trespass is alleged to have been 
committed, it had produced a general and painful excitement in 
the State, and threatened to end in bloodshed and civil war. 

The evidence shows that the defendants, in breaking into the 
plaintiff's house and endeavoring to arrest him, as stated in the 
pleadings, acted under the authority of the government which was 
established in Rhode Island at the time of the Declaration of Inde- 
pendence, and which is usually called the charter government. 
For when the separation from England took place, Rhode Island 
did not, like the other States, adopt a new constitution, but con- 
tinued the form of government established by the charter of 
Charles II in 1663 ; making only such alterations, by acts of the 
legislature, as were necessary to adapt it to their condition and 
rights as an independent State. It was under this form of gov- 
ernment that Rhode Island united with the other States in the 
Declaration of Independence, and afterwards ratified the Con- 
stitution of the United States and became a member of this 
Union ; and it continued to be the established and unquestioned 
government of the State until the difficulties took place which 
have given rise to this action. 

In this form of government, no mode of proceeding was pointed 
out by which amendments might be made. It authorized the 
legislature to prescribe the qualification of voters, and in the 



Judicial Decisions 293 

exercise of this power the right of suffrage was confined to free- 
holders, until the adoption of the constitution of 1843. 

For some years previous to the disturbances of which we are 
now speaking, many of the citizens became dissatisfied with the 
charter government, and particularly with the restriction upon 
the right of suffrage. Memorials were addressed to the legis- 
lature upon this subject, urging the justice and necessity of a 
more liberal and extended rule. But they failed to produce the 
desired effect. And thereupon meetings were held and associa- 
tions formed by those who were in favor of a more extended 
right of suffrage, which finally resulted in the election of a con- 
vention to form a new constitution to be submitted to the people 
for their adoption or rejection. This convention was not au- 
thorized by any law of the existing government. It was elected 
at voluntary meetings, and by those citizens only who favored 
this plan of reform ; those who were opposed to it, or opposed to 
the manner in which it was proposed to be accomplished, taking 
no part in the proceedings. The persons chosen as above men- 
tioned, came together and framed a constitution, by which the 
right of suffrage was extended to every male citizen of twenty-one 
years of age, who had resided in the State for one year, and in the 
town in which he offered to vote, for six months, next preceding 
the election. The convention also prescribed the manner in 
which this constitution should be submitted to the decision of the 
people ; permitting every one to vote on that question who was 
an American citizen, twenty-one years old, and who had a per- 
manent residence or home in the State, and directing the votes 
to be returned to the convention. 

Upon the return of the votes, the convention declared that the 
constitution was adopted and ratified by a majority of the people 
of the State, and was the paramount law and constitution of 
Rhode Island. And it communicated this decision to the gov- 
ernor under the charter government, for the purpose of being 
laid before the legislature ; and directed elections to be held for 
a governor, members of the legislature, and other officers under 



294 State-wide Initiative, Referendum, and Recall 

the new constitution. These elections accordingly took place, 
and the governor, lieutenant-governor, secretary of state, and 
senators and representatives thus appointed, assembled at the 
city of Providence on May 3, 1842, and immediately proceeded 
to organize the new government, by appointing the officers and 
passing the laws necessary for that purpose. 

The charter government did not, however, admit the validity 
of these proceedings, nor acquiesce in them. On the contrary, 
in January, 1842, when this new constitution was communicated 
to the governor, and by him laid before the legislature, it passed 
resolutions declaring all acts done for the purpose of imposing 
that constitution upon the State to be an assumption of the 
powers of government, in violation of the rights of the existing 
government and of the people at large ; and that it would main- 
tain its authority and defend the legal and constitutional rights 
of the people. 

In adopting this measure, as well as in all others taken by the 
charter government to assert its authority, it was supported 
by a large number of the citizens of the State, claiming to be a 
majority, who regarded the proceedings of the adverse party as 
unlawful and disorganizing, and maintained that, as the existing 
government had been established by the people of the State, no 
convention to frame a new constitution could be called without 
its sanction ; and that the times and places of taking the votes, 
and the officers to receive them, and the qualification of the voters, 
must be previously regulated and appointed by law. 

But notwithstanding the determination of the charter govern- 
ment, and of those who adhered to it, to maintain its authority, 
Thomas W. Dorr, who had been elected governor under the new 
constitution, prepared to assert the authority of that government 
by force, and many citizens assembled in arms to support him. 
The charter government thereupon passed an act declaring the 
State under martial law, and at the same time proceeded to call 
out the militia, to repel the threatened attack, and to subdue those 
who were engaged in it. In this state of the contest, the house 



Judicial Decisions 295 

of the plaintiff, who was engaged in supporting the authority of 
the new government, was broken and entered in order to arrest 
him. The defendants were, at the time, in the military service 
of the old government, and in arms to support its authority. 

It appears, also, that the charter government, at its session of 
January, 1842, took measures to call a convention to revise the 
existing form of government; and after various proceedings, 
which it is not material to state, a new constitution was formed 
by a convention elected under the authority of the charter gov- 
ernment, and afterwards adopted and ratified by the people ; the 
times and places at which the votes were to be given, the persons 
who were to receive and return them, and the qualification of the 
voters, having all been previously authorized and provided for 
by law passed by the charter government. This new govern- 
ment went into operation in May, 1843, at which time the old 
government formally surrendered all its powers ; and this con- 
stitution has continued ever since to be the admitted and estab- 
lished government of Rhode Island. 

The difficulties with the government, of which Mr. Dorr was 
the head, were soon over. They had ceased before the consti- 
tution was framed by the convention elected by the authority 
of the charter government. For after an unsuccessful attempt 
made by Mr. Dorr, in May, 1842, at the head of a military force, 
to get possession of the State arsenal at Providence, in which he 
was repulsed, and an assemblage of some hundreds of armed men 
under his command at Chepatchet in the June following, which 
dispersed upon the approach of the troops of the old government, 
no further effort was made to establish it ; and until the consti- 
tution of 1843 went into operation, the charter government con- 
tinued to assert its authority and exercise its powers, and to 
enforce obedience, throughout the State, arresting and impris- 
oning, and punishing, in its judicial tribunals, those who had 
appeared in arms against it. 

We do not understand, from the argument, that the constitu- 
tion, under which the plaintiff acted, is supposed to have been in 



296 State-wide Initiative, Referendum, and Recall 

force after the constitution of May, 1843, went into operation. 
The contest is confined to the year preceding. The plaintiff 
contends that the charter government was displaced, and ceased 
to have any lawful power, after the organization, in May, 1842, 
of the government which he supported ; and although that gov- 
ernment never was able to exercise any authority in the State, nor 
to command obedience to its laws or to its officers, yet he insists 
that it was the lawful and established government, upon the 
ground that it was ratified by a large majority of the male people 
of the State of the age of twenty-one and upwards, and also by a 
majority of those who were entitled to vote for general officers 
under the then existing laws of the State. The fact that it was 
so ratified was not admitted ; and at the trial in the Circuit Court 
he offered to prove it by the production of the original ballots, 
and the original registers of the persons voting, verified by the 
oaths of the several moderators and clerks of the meetings, and 
by the testimony of all the persons so voting, and by the said 
constitution ; and also offered in evidence, for the same purpose, 
that part of the census of the United States for the year 1840 which 
applies to Rhode Island; and a certificate of the secretary of 
state of the charter government, showing the number of votes 
polled by the freemen of the State for the ten years then last 
past. 

The Circuit Court rejected this evidence, and instructed the 
jury that the charter government and laws under which the de- 
fendants acted were, at the time the trespass is alleged to have 
been committed, in full force and effect as the form of govern- 
ment and paramount law of the State, and constituted a justi- 
fication of the acts of the defendants as set forth in their pleas. 

It is this opinion of the Circuit Court that we are now called 
upon to review. It is set forth more at large in the exception, but 
is in substance as above stated ; and the question presented is 
certainly a very serious one. For, if this court is authorized to 
enter upon this inquiry as proposed by the plaintiff, and it should 
be decided that the charter government had no legal existence 



Judicial Decisions 297 

during the period of time above mentioned, if it had been annulled 
by the adoption of the opposing government, then the laws passed 
by its legislature during that time were nullities; its taxes 
wrongfully collected ; its salaries and compensation to its officers 
illegally paid ; its public accounts improperly settled ; and the 
judgments and sentences of its courts in civil and criminal cases 
null and void, and the officers who carried their decisions into op- 
eration answerable as trespassers, if not in some cases as criminals. 

When the decision of this court might lead to such results, it 
becomes its duty to examine very carefully its own powers before 
it undertakes to exercise jurisdiction. 

Certainly, the question which the plaintiff proposed to raise 
by the testimony he offered has not heretofore been recognized 
as a judicial one in any of the State courts. In forming the con- 
stitutions of the different States, after the Declaration of Inde- 
pendence, and in the various changes and alterations which have 
since been made, the political department has always deter- 
mined whether the proposed constitution or amendment was 
ratified or not by the people of the State, and the judicial power 
has followed its decision. In Rhode Island, the question has 
been directly decided. Prosecutions were there instituted against 
some of the persons who had been active in the forcible opposi- 
tion to the old government. And in more than one of the cases 
evidence was offered on the part of the defence similar to the 
testimony offered in the Circuit Court, and for the same pur- 
pose ; that is, for the purpose of showing that the proposed con- 
stitution had been adopted by the people of Rhode Island, and 
had, therefore, become the established government, and conse- 
quently that the parties accused were doing nothing more than 
their duty in endeavoring to support it. 

But the courts uniformly held that the inquiry proposed to be 
made belonged to the political power and not to the judicial; 
that it rested with the political power to decide whether the 
charter government had been displaced or not ; and when that 
decision was made, the judicial department would be bound to 



298 State-wide Initiative, Referendum, and Recall 

take notice of it as the paramount law of the State, without 
the aid of oral evidence or the examination of witnesses ; that, 
according to the laws and institutions of Rhode Island, no such 
change had been recognized by the political power ; and that the 
charter government was the lawful and established government of 
the State during the period in contest, and that those who were 
in arms against it were insurgents, and liable to punishment. 
This doctrine is clearly and forcibly stated in the opinion of the 
Supreme Court of the State in the trial of Thomas W. Dorr, 
who was the governor elected under the opposing constitution, 
and headed the armed force which endeavored to maintain its 
authority. 

Indeed, we do not see how the question could be tried and judi- 
cially decided in a State court. Judicial power presupposes an 
established government capable of enacting laws and enforcing 
their execution, and of appointing judges to expound and adminis- 
ter them. The acceptance of the judicial office is a recognition of 
the authority of the government from which it is derived. And 
if the authority of that government is annulled and overthrown, 
the power of its courts and other officers is annulled with it. 
And if a State court should enter upon the inquiry proposed in 
this case, and should come to the conclusion that the government 
under which it acted had been put aside and displaced by an 
opposing government, it would cease to be a court, and be inca- 
pable of pronouncing a judicial decision upon the question it 
undertook to try. If it decides at all as a court, it necessarily 
affirms the existence and authority of the government under 
which it is exercising judicial power. 



Upon what ground could the Circuit Court of the United States, 
which tried this case, have departed from this rule, and dis- 
regarded and overruled the decisions of the courts of Rhode 
Island ? Undoubtedly the courts of the United States have cer- 
tain powers under the Constitution and laws of the United States 



Judicial Decisions 299 

which do not belong to the State courts. But the power of de- 
termining that a State government has been lawfully established, 
which the courts of the State disown and repudiate, is not one of 
them. Upon such a question the courts of the United States 
are bound to follow the decisions of the State tribunals, and must 
therefore regard the charter government as the lawful and estab- 
lished government during the time of this contest. 

Besides, if the Circuit Court had entered upon this inquiry, by 
what rule could it have determined the qualification of voters 
upon the adoption or rejection of the proposed constitution, un- 
less there was some previous law of the State to guide it ? It is 
the province of a court to expound the law, not to make it. And 
certainly it is no part of the judicial functions of any court of the 
United States to prescribe the qualification of voters in a State, 
giving the right to those to whom it is denied by the written and 
established constitution and laws of the State, or taking it away 
from those to whom it is given ; nor has it the right to determine 
what political privileges the citizens of a State are entitled to, 
unless there is an established constitution or law to govern its 
decision. 

And if the then existing law of Rhode Island, which confined the 
right of suffrage to freeholders, is to govern, and this question is 
to be tried by that rule, how could the majority have been ascer- 
tained by legal evidence, such as a court of justice might law- 
fully receive ? The written returns of the moderators and clerks 
of mere voluntary meetings, verified by affidavit, certainly would 
not be admissible; nor their opinions or judgments as to the 
freehold qualification of the persons who voted. The law requires 
actual knowledge in the witness of the fact to which he testifies 
in a court of justice. How, then, could the majority of freeholders 
have been determined in a judicial proceeding ? 



Moreover, the Constitution of the United States, as far as it 
has provided for an emergency of this kind, and authorized the 



300 State-wide Initiative, Referendum, and Recall 

general government to interfere in the domestic concerns of a 
State, has treated the subject as political in its nature, and placed 
the power in the hands of that department. 

The fourth section of the fourth article of the Constitution of 
the United States provides that the United States shall guarantee 
to every State in the Union a republican form of government, and 
shall protect each of them against invasion ; and on the applica- 
tion of the legislature or of the executive (when the legislature 
cannot be convened) against domestic violence. 

Under this article of the Constitution it rests with Congress to 
decide what government is the established one in a State. For 
as the United States guarantee to each State a republican gov- 
ernment, Congress must necessarily decide what government is 
established in the State before it can determine whether it is 
republican or not. And when the senators and representatives of 
a State are admitted into the councils of the Union, the authority 
of the government under which they are appointed, as well as 
its republican character, is recognized by the proper constitutional 
authority. And its decision is binding on every other department 
of the government, and could not be questioned in a judicial 
tribunal. It is true that the contest in this case did not last 
long enough to bring the matter to this issue ; and as no senators 
or representatives were elected under the authority of the govern- 
ment of which Mr. Dorr was the head, Congress was not called 
upon to decide the controversy. Yet the right to decide was 
placed there, and not in the courts. 

So, too, as relates to the clause in the above-mentioned article 
of the Constitution, providing for cases of domestic violence. 
It rested with Congress, too, to determine upon the means proper 
to be adopted to fulfil this guarantee. They might, if they had 
deemed it most advisable to do so, have placed it in the power of 
a court to decide when the contingency had happened which 
required the federal government to interfere. But Congress 
thought otherwise, and no doubt wisely; and by the act of 
February 28, 1795, provided, that, "in case of an insurrection in 



Judicial Decisions 301 

any State against the government thereof, it shall be lawful for 
the President of the United States, on application of the legisla- 
ture of such State or of the executive, when the legislature cannot 
be convened, to call forth such number of the militia of any other 
State or States, as may be applied for, as he may judge sufficient 
to suppress such insurrection." 

By this act, the power of deciding whether the exigency 
had arisen upon which the government of the United States is 
bound to interfere, is given to the President. He is to act upon 
the application of the legislature, or of the executive, and conse- 
quently he must determine what body of men constitute the 
legislature, and who is the governor, before he can act. The 
fact that both parties claim the right to the government cannot 
alter the case, for both cannot be entitled to it. If there is an 
armed conflict, like the one of which we are speaking, it is a case 
of domestic violence, and one of the parties must be in insurrection 
against the lawful government. And the President must, of 
necessity, decide which is the government, and which party is 
unlawfully arrayed against it, before he can perform the duty 
imposed upon him by the act of Congress. 

After the President has acted and called out the militia, is a 
Circuit Court of the United States authorized to inquire whether 
his decision was right ? Could the court, while the parties were 
actually contending in arms for the possession of the government, 
call witnesses before it, and inquire which party represented a 
majority of the people ? If it could, then it would become the 
duty of the court (provided it came to the conclusion that the 
President had decided incorrectly) to discharge those who were 
arrested or detained by the troops in the service of the United 
States, or the government which the President was endeavoring 
to maintain. If the judicial power extends so far, the guarantee 
contained in the Constitution of the United States is a guarantee 
of anarchy, and not of order. Yet if this right does not reside 
in the courts, when the conflict is raging — if the judicial power 
is, at that time, bound to follow the decision of the political, it 



302 State-wide Initiative, Referendum, and Recall 

must be equally bound when the contest is over. It cannot, 
when peace is restored, punish as offences and crimes the acts 
which it before recognized, and was bound to recognize, as 
lawful. 

It is true that in this case the militia were not called out by the 
President. But upon the application of the governor under the 
charter government, the President recognized him as the execu- 
tive power of the State, and took measures to call out the militia 
to support his authority, if it should be found necessary for the 
general government to interfere ; and it is admitted in the argu- 
ment that it was the knowledge of this decision that put an end 
to the armed opposition to the charter government, and pre- 
vented any further efforts to establish by force the proposed 
constitution. The interference of the President, therefore, by 
announcing his determination, was as effectual as if the militia 
had been assembled under his orders. And it should be equally 
authoritative. For certainly no court of the United States, with 
a knowledge of this decision, would have been justified in recog- 
nizing the opposing party as the lawful government, or in treat- 
ing as wrongdoers or insurgents the officers of the government 
which the President had recognized, and was prepared to sup- 
port by an armed force. In the case of foreign nations, the 
government acknowledged by the President is always recognized 
in the courts of justice. And this principle has been applied by 
the act of Congress to the sovereign States of the Union. 

It is said that this power in the President is dangerous to 
liberty, and may be abused. All power may be abused if 
placed in unworthy hands. But it would be difficult, we think, 
to point out any other hands in which this power would be more 
safe, and at the same time equally effectual. When citizens of 
the same State are in arms against each other, and the constituted 
authorities unable to execute the laws, the interposition of the 
United States must be prompt, or it is of little value. The ordinary 
course of proceedings in courts of justice would be utterly unfit for 
the crisis. And the elevated office of the President, chosen as he 



Judicial Decisions 303 

is by the people of the United States, and the high responsibility 
he could not fail to feel when acting in a case of so much moment, 
appear to furnish as strong safeguards against a wilful abuse of 
power as human prudence and foresight could well provide. At 
all events, it is conferred upon him by the Constitution and laws 
of the United States, and must, therefore, be respected and en- 
forced in its judicial tribunals. 



Much of the argument on the part of the plaintiff turned upon 
political rights and political questions, upon which the court has 
been urged to express an opinion. We decline doing so. The 
high power has been conferred on this court, of passing judgment 
upon the acts of the State sovereignties, and of the legislative 
and executive branches of the federal government, and of deter- 
mining whether they are beyond the limits of power marked out 
for them respectively by the Constitution of the United States. 
This tribunal, therefore, should be the last to overstep the boun- 
daries which limit its own jurisdiction. And while it should 
always be ready to meet any question confided to it by the Con- 
stitution, it is equally its duty not to pass beyond its appropriate 
sphere of action, and to take care not to involve itself in discus- 
sions which properly belong to other forums. No one, we believe, 
has ever doubted the proposition that, according to the institu- 
tions of this country, the sovereignty in every State resides in the 
people of the State, and that they may alter and change their 
form of government at their own pleasure. But whether they 
have changed it or not, by abolishing an old government, and 
establishing a new one in its place, is a question to be settled by 
the political power. And when that power has decided, the 
courts are bound to take notice of its decision, and to follow it. 

The judgment of the Circuit Court must, therefore, be 
affirmed. 



304 State-wide Initiative, Referendum, and Recall 

XXXII. Kadderly et al. v. City of Portland et al. 

(Supreme Court of Oregon, December 21, 1903, 74 Pacific 
Reporter, 710, 719) 

[The decision in this case was rendered by Justice Bean. All 
of the opinion dealing directly with the initiative and referendum 
is printed here. The other points in the case decided by the 
court dealt with the questions as to whether the constitutional 
amendment establishing the initiative and referendum in Oregon 
had been legally adopted, and whether certain portions of the 
charter of Portland were invalid under the provisions of the 
Oregon constitution.] 

Nor do we think the amendment void because in conflict with 
section 4, art. 4, of the Constitution of the United States, guaran- 
teeing to every state a republican form of government. The 
purpose of this provision of the Constitution is to protect the 
people of the several states against aristocratic and monarchical 
invasions, and against insurrections and domestic violence, and 
to prevent them from abolishing a republican form of govern- 
ment. Cooley, Const. Lim. (7th Ed.) 54; 2 Story, Const. 
(5th Ed.) § 181 5. But it does not forbid them from amending 
or changing their Constitution in any way they may see fit, so 
long as none of these results is accomplished. No particular 
style of government is designated in the Constitution as repub- 
lican, nor is its exact form in any way prescribed. A republican 
form of government is a government administered by representa- 
tives chosen or appointed by the people or by their authority. 
Mr. Madison says it is "a government which derives all its powers 
directly or indirectly from the great body of the people, and is 
administered by persons holding their offices during pleasure, for 
a limited period, or during good behavior." The Federalist, 302. 
And in discussing the section of the Constitution of the United 
States now under consideration, he says: "But the authority 
extends no further than to a guaranty of a republican form of 
government, which supposes a preexisting government of the 



Judicial Decisions 305 

form which is to be guaranteed. As long, therefore, as the exist- 
ing republican forms are continued by the states, they are guaran- 
teed by the federal Constitution. Whenever the states may 
choose to substitute other republican forms, they have a right 
to do so, and to claim the federal guaranty for the latter. The 
only restriction imposed on them is that they shall not exchange 
republican for anti-republican constitutions." Id. 342. Now, 
the initiative and referendum amendment does not abolish or 
destroy the republican form of government, or substitute another 
in its place. The representative character of the government 
still remains. The people have simply reserved to themselves a 
larger share of legislative power, but they have not overthrown 
the republican form of the government, or substituted another in 
its place. The government is still divided into the legislative, 
executive, and judicial departments, the duties of which are dis- 
charged by representatives selected by the people. Under this 
amendment, it is true, the people may exercise a legislative power, 
and may, in effect, veto or defeat bills passed and approved by the 
Legislature and the Governor ; but the legislative and executive 
departments are not destroyed, nor are their powers or authority 
materially curtailed. Laws proposed and enacted by the people 
under the initiative clause of the amendment are subject to the 
same constitutional limitations as other statutes, and may be 
amended or repealed by the Legislature at will. The veto power 
of the Governor is not abridged in any way, except as to such laws 
as the Legislature may refer to the people. The provision of the 
amendment that " the veto power of the governor shall not extend 
to measures referred to the people" must necessarily be confined 
to the measures which the Legislature may refer, and cannot 
apply to acts upon which the referendum may be invoked by 
petition. The Governor is required, under the Constitution, to 
exercise his veto power, if at all, within five days after the act 
shall have been presented to him, unless the general adjourn- 
ment of the Legislature shall prevent its return within that 
time, in which case he shall exercise his right within five days after 
x 



306 State-wide Initiative, Referendum, and Recall 

the adjournment. He must necessarily act, therefore, before 
the time expires within which a referendum by petition on any 
act of the Legislature may be invoked, and before it can be 
known whether it will be invoked or not. Unless, therefore, he 
has a right to veto any act submitted to him, except such as 
the Legislature may specially refer to the people, one of the safe- 
guards against hasty or ill-advised legislation which is everywhere 
regarded as essential is removed — a result manifestly not con- 
templated by the amendment. 

This brings us to the question as to whether the legislative 
declaration that the Portland charter was necessary for the pres- 
ervation of the public peace, health, and safety is conclusive on 
the courts. Under the initiative and referendum amendment, 
laws "necessary for the immediate preservation of the public 
peace, health, or safety" are excepted from its operation. As to 
them, the action of the legislative and executive departments is 
conclusive and final, so far as their enactment is concerned. No 
power is reserved to the people to approve or disapprove them. 
They are not subject to the referendum amendment, and as to 
them the powers of the other departments of the government de- 
rived from the Constitution are unaffected. The legislative as- 
sembly may, in its discretion, put them into operation through 
an emergency clause, as provided in section 28, art. 4, of the Con- 
stitution, or it may allow them to become laws without an emer- 
gency clause ; the necessity or expediency of either course being a 
matter for its exclusive determination. As to all other laws the 
amendment applies, and they cannot be made to go into opera- 
tion for 90 days after the adjournment of the session at which 
they were adopted, or until after approval by the people if the 
referendum is invoked. Section 28, art. 4, of the Constitution, 
giving the legislative assembly power to put any law into force 
upon approval by declaring an emergency, has been modified 
by the amendment of 1902, so as to exclude from the power to de- 
clare an emergency all laws except those necessary for the imme- 
diate preservation of the public peace, health, or safety. So far, 



Judicial Decisions 307 

all are agreed. But the vital question is, what tribunal is to de- 
termine whether a law does or does not fall under this classifica- 
tion ? Are the judgment and findings of the legislative assembly 
conclusive, or are they subject to review by the courts? The 
inquiry is much simplified by bearing in mind that the exception 
in the constitutional amendment is not confined to such laws as 
the legislative assembly may legally enact by virtue of the police 
powers of the state, or to those alone that may affect the public 
peace, health or safety. The police power is limited to the im- 
position of restraints and burdens on persons and property, in 
order to secure the general comfort, health, and prosperity of 
the state. Tiedeman, Lim. Pol. Power, § 1. But the language 
of the constitutional amendment is broader, and includes all 
laws, of whatsoever kind, necessary for the immediate preserva- 
tion of the public peace, health or safety, whether they impose 
restraints on persons and property, or come strictly within the 
police powers, or not. The laws excepted from the operation of 
the amendment do not depend alone upon their character, but 
upon the necessity for their enactment in order to accom- 
plish certain purposes. As to such laws, the amendment of 
1902 does not in any way abridge or restrict the power of the 
Legislature, which, by the insertion of a proper emergency 
clause, may unquestionably cause them to go into effect 
upon approval by the Governor. As the Legislature may exer- 
cise this power when a measure is in fact necessary for the purposes 
stated, and as the amendment does not declare what shall be 
deemed laws of the character indicated, who is to decide whether a 
specific act may or may not be necessary for the purpose ? Most 
unquestionably, those who make the laws are required, in the 
process of their enactment, to pass upon all questions of expe- 
diency and necessity connected therewith, and must therefore 
determine whether a given law is necessary for the preservation 
of the public peace, health, and safety. It has always been the 
rule, and is now everywhere understood, that the judgment of 
the legislative and executive departments as to the wisdom, 



308 State-wide Initiative, Referendum, and Recall 

expediency, or necessity of any given law is conclusive on the 
courts, and cannot be reviewed or called in question by them. 
It is the duty of the courts, after a law has been enacted, to de- 
termine in a proper proceeding whether it conflicts with the fun- 
damental law, and to construe and interpret it so as to ascertain 
the rights of the parties litigant. The powers of the courts do 
not extend to the mere question of expediency or necessity, but, 
as said by Mr. Justice Brewer, " they are wrought out and fought 
out in the Legislature and before the people. Here the single 
question is one of power. We make no laws. We change no 
constitutions. We inaugurate no policy. When the Legislature 
enacts a law, the only question which we can decide is whether 
the limitations of the Constitution have been infringed upon." 
Prohibitory Am. Cas., 24 Kan. 700, 706. The amendment 
excepts such laws as may be necessary for a certain purpose. The 
existence of such necessity is therefore a question of fact, and the 
authority to determine such fact must rest somewhere. The 
Constitution does not confer it upon any tribunal. It must 
therefore necessarily reside with that department of the govern- 
ment which is called upon to exercise the power. It is a ques- 
tion of which the Legislature alone must be the judge, and, when 
it decides the fact to exist, its action is final. Biggs v. McBride, 
1 7 Or. 640, 21 Pac. 878, 5 L. R. A. 115 ; Umatilla Irrigation Co. v. 
Barnhart, 22 Or. 389, 30 Pac. 37 ; Gentile v. State 29 Ind. 409; 
Wheeler v. Chubbuck, 16 111. 361 ; Sutherland, St. Const. 108. 
In this view we are supported by the Supreme Court of South 
Dakota. In 1898 an amendment to the Constitution of that 
state was adopted by the people ; similar in many respects to the 
amendment now under consideration; and, so far as the laws 
exempted from its operation are concerned, the language of the 
two amendments is identical. In State ex rel. v. Bacon, 14 S. D. 
394, 404, 85 N. W. 225, the court say in referring to this amend- 
ment : "It will be observed that the law of 1901 which we are 
considering not only declares that an emergency exists, but also 
that the 'provision is necessary for the immediate preservation 



Judicial Decisions 309 

and support of the existing public institutions of this state.' It 
seems to have been uniformly held under Constitutions contain- 
ing an emergency clause, and providing that laws containing 
such a clause shall take effect as therein directed, that the 
action of the Legislature in inserting such a clause is conclusive 
upon the courts. (Citing authorities.) No reason occurs to us 
why the same rule should not apply to the act in question. The 
Legislature having declared that the provisions of that act are 
necessary for the immediate preservation and support of the 
existing public institutions of the state, that declaration is con- 
clusive upon this court, and brings this class clearly within the 
exception contained in section 1 (as amended) of article 3 of the 
Constitution." 

But, it is argued, what remedy will the people have if the 
Legislature, either intentionally or through mistake, declares 
falsely or erroneously that a given law is necessary for the purposes 
stated ? The obvious answer is that the power has been vested 
in that body, and its decision can no more be questioned or re- 
viewed than the decision of the highest court in a case over which 
it has jurisdiction. Nor should it be supposed that the Legisla- 
ture will disregard its duty, or fail to observe the mandates of the 
Constitution. The courts have no more right to distrust the 
Legislature than it has to distrust the courts. The Constitution 
has wisely divided the government into three separate and dis- 
tinct departments, and has provided that no person charged with 
official duties under one of these departments shall exercise any 
of the functions of another, except as in the Constitution expressly 
provided. Const, art. 3, § 1. It is true that power of any kind 
may be abused when in unworthy hands. That, however, would 
not be a sufficient reason for one coordinate branch of the gov- 
ernment to assign for attempting to limit the power and authority 
of another department. If either of the departments, in the 
exercise of the powers vested in it, should exercise them erro- 
neously or wrongfully, the remedy is with the people, and must 
be found, as said by Mr. Justice Strahan in Biggs v. McBride, 
supra, in the ballot box. 



310 State-wide Initiative, Referendum, and Recall 

We are of the opinion, therefore, that the findings and declara- 
tions of the Legislature that the act of 1903 for the incorporation 
of the city of Portland was necessary for the immediate preserva- 
tion of the public peace, health, and safety are conclusive on the 
courts, and consequently the charter was not subject to the ref- 
erendum power, and was in force and effect from and after its 
approval. 

This disposes of the most important questions in the case. The 
result is, first, that the initiative and referendum amendment was 
legally proposed and adopted ; second, that it is not in conflict 
with the provisions of the Constitution of the United States 
guaranteeing to every state a republican form of government; 
and, third, that the question whether a law is necessary for the 
immediate preservation of the public peace, health, or safety, 
and consequently excepted from the operations of the amendment, 
is a legislative, and not a judicial question. 

XXXIII. State v. Pacific States Telephone & Telegraph 

Company 

[This is the important case on the initiative and referendum 
now (October, 191 1) pending before the Supreme Court of the 
United States.] 

(99 Pacific Reporter, 427) 

(Supreme Court of Oregon. Feb. 2, 1909.) 

Appeal from Circuit Court, Multnomah County; John B. 
Cleland, Judge. 

Action by the State against the Pacific States Telephone & 
Telegraph Company to recover a 2 per cent tax on the gross re- 
ceipts of the defendant. From a judgment for plaintiff after 
sustaining a demurrer to the answer, defendant appeals. Affirmed. 

This is an action by the state against the Pacific States Tele- 
phone & Telegraph Company to recover 2 per cent of the gross 
receipts of such company for the year 1906. The case is as 
follows: In 1903 the Legislature passed an act requiring all 



Judicial Decisions 311 

corporations domestic and foreign, doing business in the state, 
to pay an annual license fee of from $10 to $200, according to 
their capital stock. Laws 1903, p. 39. In 1906 there was pro- 
posed by an initiative petition, and adopted by the people in 
June of that year, pursuant to the provisions of the initiative 
and referendum amendment to the Constitution, and without 
reference to the Legislature, an act requiring telephone and tele- 
graph companies to pay a license of 2 per cent per annum on the 
gross receipts of the company, and requiring such corporations to 
make annual statements to the state treasurer of the amount 
of such receipts as a basis for such tax. The defendant corpora- 
tion is an Oregon concern and made the returns, required by the 
act, for the year 1906, but refused to pay the tax thereon, and 
hence this suit. It answered the complaint, denying liability 
on the grounds : (1) That the initiative act requiring it to pay 
such license or tax was never approved by the Governor, nor 
submitted to him for his approval ; (2) that the defendant has 
paid the annual license fee required by the act of 1903, and also 
all state, county, and school taxes levied upon all of its property, 
" including its franchise to do business," and therefore the act of 
1906 is unconstitutional and void because violative of section 
32, art. 1, of the state Constitution, requiring that "all taxation 
shall be equal and uniform" ; (3) that the initiative and referen- 
dum amendment to the Constitution, under which the act of 
1906 was proposed and adopted, is unconstitutional and void, 
because repugnant to sections 2, 3, 4, and 8 of article 1, section 1 
of article 2, sections 3 and 4 of article 4, article 5, article 6, and 
section 1 of the fourteenth amendment to the Constitution of 
the United States ; and also to Act. Cong. Feb. 14, 1859, c. 33, 
11 Stat. 383, admitting Oregon to the Union, and the act ap- 
proved June 1, 1789 (chapter 1, § 3, 1 Stat. 23, Rev. St. U. S. 
§ 1836 (U. S. Comp. St. 1901, p. 1256). Other grounds of objec- 
tion are set forth in paragraphs 24, 25, 26, and 27 of the answer, 
but were stricken out on application of the defendant. The 
plaintiff demurred to the new matter pleaded in the answer, on the 



312 State-wide Initiative, Referendum, and Recall 

ground that it did not constitute a defence to the cause of action 
stated in the complaint. The demurrer was sustained, judg- 
ment rendered in favor of plaintiff, and defendant appeals. 

Chas. H. Carey, for appellant. A. M. Crawford, Atty. Gen., 
and A. S. Bennett, for the State. 

Bean, J. (after stating the facts as above). The question 
whether an initiative measure is subject to the veto power of the 
Governor was decided in State v. Kline, 50 Or. 426, 93 Pac. 237, 
and that case is conclusive here. What is said on the subject in 
Kadderly v. Portland, 44 Or. 118, 146, 74 Pac. 710, 75 Pac. 222, 
was in answer to the point that the initiative and referendum 
amendment deprived the Governor of a veto power over acts 
of the Legislature and had no reference to measures proposed by 
the initiative. The annual license fee required by the act of 
1903 to be paid by corporations is a business or excise tax on the 
right to be or exercise the powers of a corporation, and is in no 
sense a tax on property ; nor is it a tax on the business or fran- 
chise which the corporation, when organized, may exercise. 
Am. S. & R. Co. v. People, 34 Colo. 240, 82 Pac. 531 ; Delaware 
R. R. Tax, 18 Wall. 206, 21 L. Ed. 888 ; Home Ins. v. New York, 
134 U. S. 594, 10 Sup. Ct. 593, 33 L. Ed. 1025. 

The right to be a corporation, or do business as such, rests 
entirely within the discretion of the state, and it may therefore 
require it to pay a specified sum each year, or at stated intervals, 
for the privilege. The payment of such fee or tax, however, 
does not exempt the corporation from other forms of taxation. 
It may be also required to pay a tax on its tangible property and 
a tax on its intangible property or franchise ; the latter to be in 
proportion to its income or measured in any other way the law- 
making power may adopt. 27 Enc. Law, 932 ; 57 L. R. A. 98, 
note. "The State," says Mr. Justice Field, "may impose taxes 
upon the corporation as an entity existing under its laws, as 
well as upon the capital stock of the corporation, or its separate 
corporate property ; and the manner in which its value shall be 
assessed and the rate of taxation, however arbitrary or capricious, 



Judicial Decisions 313 

are mere matters of legislative discretion. It is not for us to 
suggest in any case that a more equitable mode of assessment or 
rate of taxation might be adopted than the one prescribed by the 
Legislature of the state. Our only concern is with the validity 
of the tax. All else lies beyond the domain of our jurisdiction. " 
18 Wall. 231, 21 L. Ed. 888. See, also, Maine v. Grand Trunk Ry. 
Co., 142 U. S. 217, 12 Sup. Ct. 121, 35 L. Ed. 994. Among the 
elements of corporate taxable values are the franchise, capital 
stock in the hands of the corporation, the tangible corporate 
property, and shares of stock in the hands of individual holders ; 
and all of the authorities agree that a tax upon the franchise, 
whether based on income or measured in some other manner, and 
a tax on the tangible corporate property, is not double taxation. 
Cooley on Taxation, 406; Commissioners v. Tobacco Co., 116 
N. C. 441, 21 S. E. 423 ; Home Ins. Co. v. New York, 119 U. S. 
129, 8 Sup. Ct. 1385, 30 L. Ed. 350; Commonwealth v. New 
England Slate & Tile Co. 13 Allen (Mass.), 391 ; Commonwealth 
v. Railroad Co., 150 Pa. 234, 24 Atl. 609; Wil. Col. & Augusta 
R. R. Co. v. Board of Commissioners of Brunswick Co., 72 N. C. 
10; State Tax Ry. on Gross Receipts, 15 Wall. 284, 21 L. Ed. 
164. Nor does the fact that plaintiff may have paid all taxes 
assessed and levied on its property "including the value of its 
franchise," render invalid the law levying a tax on its gross in- 
come. At the time the assessment and levy alluded to were 
made, there was no law specifically requiring the franchise of a 
corporation to be assessed, nor providing the manner of estimat- 
ing the value thereof, and clearly a law on the subject regularly 
enacted could not be rendered nugatory or invalid by local 
assessors including in the value of corporate property their 
estimate of the value of the franchise. 

Whether the initiative and referendum amendment to the 
Constitution is invalid, because repugnant to the provisions of 
the Constitution of the United States, was thoroughly argued 
to and considered by this court in Kadderly v. Portland, and 
the views of the court as then and now entertained are indicated 



314 State-wide Initiative, Referendum, and Recall 

in the opinion filed in that case, and it is needless to restate them 
at this time. 

It follows from these views that the judgment of the court 
must be affirmed, and it is so ordered. 



XXXIV. Kiernan v. City of Portland et al. 
(112 Pacific Reporter, p. 402) 

Supreme Court of Oregon. Dec. 31, 19 10. 

1. Municipal Corporations (§ 64) — Initiative and Ref- 
erendum Provisions. 

Const, art. n, § 2, as amended June 4, 1906, provides that 
corporations may be formed only under general laws, but shall 
not be created by the legislative assembly by special laws, and, 
further, that " the legislative assembly shall not enact, amend, or 
repeal any charter, or act of incorporation for any municipality, 
city or town," and that "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 Oregon." 
Held, that the first sentence of section 2 places no restriction on 
the Legislature as to the enactment of general laws, except that 
no special laws creating or affecting municipalities shall be 
enacted by the Legislature, the exception reserving to the 
legislative department the right, whether by the people 
directly through the initiative, or indirectly through the Legis- 
lature, to enact general laws on the subject, indicating that 
the inhibition in the next sentence has reference only to special 
laws. / 

2. States (§ 4) — "Republican Form of Government." 
The term "republican," as used in the federal constitutional 

provision (article 4, § 4) guaranteeing to every state a republican 
form of government, means a government by the citizens en masse 
acting directly, though not personally, according to rules estab- 
lished by the majority. 



Judicial Decisions 315 

3. Statutes (§ ZS 1 A) — Initiative and Referendum Pro- 
visions — Municipal Corporations — Republican Form of 
Government. 

Const, art. 1, as amended June 4, 1906 (section 1 a), provides 
that initiative and referendum powers reserved in the people are 
also reserved to the legal voters of any municipality and dis- 
trict, as to all local, special, and municipal legislation. Section 2 
provides that the legal voters of every city and town are granted 
power to enact and amend their municipal charter, subject to the 
Constitution and criminal laws of Oregon. Held, that such pro- 
visions did not deprive the state of a republican form of govern- 
ment, in violation of Const. U. S. art. 47, § 4, in that they were a 
deprivation of legislative power to enact, amend, or repeal a city 
charter, or act of incorporation, since the sovereign power to 
legislate residing in the people may be exercised either directly 
by the initiative, or referendum, or indirectly by the Legislature, 
without in any way endangering the republican form of govern- 
ment. 

King, J. The principal point suggested by the petition for 
rehearing is the contention that the people of Oregon have no 
power, by constitutional provision or otherwise, to deprive the 
Legislature of the sovereign power to enact, amend, or repeal any 
charter or act of incorporation for any city or town, and any 
attempt so to do is void. The constitutional provisions, amend- 
ing article n, adopted in June, 1906, known as the "Charter 
Amendments," are as follows : — 

" Section 1 a. The referendum may be demanded by the people 
against one or more items, sections, or parts of any act of the legis- 
lative assembly in the same manner in which such power may be 
exercised against a complete act. The filing of a referendum 
petition against one or more items, sections, or parts of an act 
shall not delay the remainder of that act from becoming opera- 
tive. The initiative and referendum powers reserved to the 
people by this Constitution are hereby further reserved to the 
legal voters of every municipality and district as to all local, 



3 16 State-wide Initiative, Referendum, and Recall 

special, and municipal legislation, of every character, in or for 
their respective municipalities and districts. The manner of 
exercising said powers shall be prescribed by general laws, except 
that cities and towns may provide for the manner of exercising 
the initiative and referendum powers as to their municipal legis- 
lation. Not more than ten per cent of the legal voters may be 
required to order the referendum, nor more than fifteen per cent 
to propose any measure, by the initiative, in any city or town. 

" Sec. 2. Corporations may be formed under general laws, but 
shall not be created by the legislative assembly by special laws. 
The legislative assembly shall not enact, amend, or repeal 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 Oregon." 

It will be observed from the first sentence in section 2 that no 
restriction is placed upon the Legislature with respect to the 
enactment of general laws ; the exception being that no special 
laws creating or affecting the municipalities shall be enacted by 
the Legislature. Under all the rules of construction, this excep- 
tion reserves to the legislative department the right, whether by 
the people directly through the initiative, or indirectly through 
the Legislature, to enact general laws upon the subject, making it 
clear that the inhibition in the next sentence has reference to 
special laws. 

In Farrell v. Port of Portland, 52 Or. 582, 586, 98 Pac. 145, it is 
held that the initiative amendments to the Constitution, bearing 
upon the creation and government of municipalities, including 
section 1 of article 11, must be construed together. In consider- 
ing the effect of section 2, art. 11, it is there said : "But this sec- 
tion and the language used in it should not be construed alone. 
It is a part of the initiative and referendum scheme first inaugu- 
rated by the amendment of 1902, and subsequently enlarged and 
extended by the amendments of 1906. All these amendments, 
so far as they refer to the same subject-matter, should be read 



Judicial Decisions 317 

together, and be so interpreted as to carry out the purpose of 
the people in adopting them, regardless of the technical construc- 
tion of some of the language used." Since the above is the rule 
regarding the various amendments taken as a whole, much stronger 
must be the reason for reading and construing together all the 
sentences in the one section, from which it is obvious that the 
only restriction placed upon the Legislature by section 2 per- 
tains to the passage of special laws affecting municipalities. These 
agencies of the state are thereby enabled to enact such local 
measures, to revise existing local laws, and to exercise their 
powers affecting them, and thus carry out their general scope and 
purpose, so long as they are not inconsistent with the Constitution 
of the state, or of the United States, and are in harmony with all 
the special laws and general laws of the state constitutionally 
enacted. Straw v. Harris, 54 Or. 424, 443, 103 Pac. 777. The 
language following the above excerpt from page 587 of 52 Or., 
98 Pac. 145, of the opinion of Farrell v. Port of Portland, con- 
cerning the limitations placed by the amendment upon the Legis- 
lature, must be interpreted in the light of the questions there under 
consideration, from which it is manifest reference was had only 
to special laws affecting municipalities. The so-termed " general 
initiative and referendum scheme," there alluded to, and whether 
it is in violation of this provision of the federal Constitution, 
is fully considered and determined adversely to petitioner's con- 
tention in Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 
222, and State v. Pacific States Tel. & Tel. Co., 52 Or. 163, 99 
Pac. 427, and there held to be not in conflict or inconsistent 
therewith. Other cases impliedly if not expressly sustaining this 
position are : Farrell v. Port of Portland, 52 Or. 582, 98 Pac. 145 ; 
Straw v. Harris, 54 Or. 424, 103 Pac. 777 ; Haines v. City of 
Forest Grove, 54 Or. 443, 103 Pac. 775 ; State v. Langworthy, 
104 Pac. 424. 

The question, however, as to whether the people may, by 
constitutional amendment, reserve to themselves the right to 
enact any law to the exclusion of the Legislature, and, by such 



3 1 8 State-wide Initiative, Referendum, and Recall 

method, delegate to municipalities powers not subject to abridg- 
ment, change, limitation, or recall by special acts of the legisla- 
tive assembly, was not directly involved in any of the cases above 
cited. It would seem, however, that the views and conclusions 
reached in the decisions named necessarily dispose of this fea- 
ture, but since counsel for petitioner insists that such disposal 
has not been made, and presents his contention in good faith, 
we will, at the possible expense of repetition of views announced 
in the above cases, consider the points thus presented. To 
begin, article 4, § 4, Const. U. S., reads "The United States shall 
guarantee to every state in this Union a republican form of gov- 
ernment, and shall protect each of them against invasion ; and 
on application of the Legislature, or of the executive (when the 
Legislature cannot be convened), against domestic violence." 
In Luther v. Borden, 7 How. 1, 48, 12 L. Ed. 581, the court ob- 
serves : "Moreover, the Constitution of the United States, as far 
as it has provided for an emergency of this kind, and authorized 
the general government to interfere in the domestic concerns of a 
state, has treated the subject as political in its nature, and placed 
the power in the hands of that department. The fourth section 
of the fourth article of the Constitution of the United States pro- 
vides that the United States shall guarantee to every state in the 
Union a republican form of government, and shall protect each of 
them against invasion ; and on the application of the Legislature 
or of the executive (when the Legislature cannot be convened) 
against domestic violence. Under this article of the Constitu- 
tion, it rests with Congress to decide what government is the 
established one in a state. For as the United States guarantee 
to each state a republican government, Congress must necessa- 
rily decide what government is established in the state before it 
can determine whether it is republican or not. And when the 
senators and representatives of a state are admitted into the 
councils of the Union, the authority of the government under 
which they are appointed, as well as its republican character, is 
recognized by the proper constitutional authority. And its 



Judicial Decisions 319 

decision is binding on every other department of the government, 
and could not be questioned in a judicial tribunal." See, also, 
Cooley, Const. Lim. (6th Ed.), pp. 42, 45 ; Texas v. White, 7 Wall. 
700, 730, 19 L. Ed. 227; Taylor v. Beckham, 178 U. S. 548, 20 
Sup. Ct. 890, 1009, 44 L. Ed. 1 187, and 6 Mich. Law Review, 304, 
where authorities sustaining the above view are collated. We 
have an illustration of the principles announced in Luther v. 
Borden in the admission of Oklahoma as a state. Before its 
statehood was recognized, Oklahoma had adopted, as a part of its 
Constitution, the initiative and referendum law-making system, 
patterned after the Oregon plan, regardless of which its senators 
and representatives were " admitted into the councils of the 
Union," and "the authority of the government under which they 
were appointed, as well as its republican character, is recognized 
by the proper constitutional authority," thus determining that 
state, with its comparatively new legislative system, to be re- 
publican in form. This recent historical precedent should in 
itself be adequate to set at rest the temporarily mooted question 
in hand. 

This court, however, has heretofore taken jurisdiction of cases 
of this character (Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 
Pac. 222 ; State v. Cochrane, 105 Pac. 884), and, owing to the 
importance of the points presented, we will proceed to a considera- 
tion thereof. To ascertain whether taking from the Legislature 
and delegating to the municipalities, or to the localities affected, 
local self-government, or a right to enact, maintain, and alter 
their charters as the Legislature formerly did, and whether the 
taking from the Legislature the right to make special laws upon 
the subject violates this provision of the national Constitution, 
makes it important that we first ascertain what is meant by a 
republican form of government. It is an expression which all 
assume to understand, yet, judging from the many unsuccessful 
attempts of eminent statesmen and writers to give it a clear 
meaning, it would seem the phrase is not susceptible to being 
given a precise definition. Expecially is this true when sought 



320 State- wide Initiative, Referendum, and Recall 

to be applied to the Constitution of different states, concerning 
which Mr. James Madison, a member of the Constitutional Con- 
vention, said : " ... If we resort for a criterion to the different 
principles on which different forms of government are estab- 
lished, we may define a republic to be, or may at least bestow 
that name on, a government which derives all its powers directly 
or indirectly from the great body of the people, and is adminis- 
tered by persons holding their offices during pleasure for a lim- 
ited period or during good behavior. It is essential to such 
government that it be derived from the great body of society, 
and not from any inconsiderable portion or a favored class of 
it. . . ." The Federalist (Hamilton, Ed.), paper 39, p. 301. 
Another and more pointed definition appears in Chisholm v. 
Georgia, 2 Dall. 419, 457, 1 L. Ed. 440, by Mr. Justice Wilson, a 
member of the Constitutional Convention, who, but a short time 
after the adoption of the federal Constitution, in adverting to 
what is meant by a republican form of government, remarked : 
"As a citizen, I know the government of that state (Georgia) to 
be republican, and my short definition of such a government — 
one constructed on this principle, that the supreme power resides 
in the body of the people." From which it follows that the con- 
verse must be true ; that is to say, any government in which the 
supreme power resides with the people is republican in form. 
See, also, Mr. Justice Wilson's remarks to the same effect, reported 
in 5 Elliott's Debates, 160. 

Measured in the light of the above, it is difficult to conceive of 
any system of law-making coming nearer to the great body of the 
people of the entire state, or by those comprising the various 
municipalities, than that now in use here, and, being so, we are 
at a loss to understand how the adoption and use of this system 
can be held a departure from a republican form of government. 
It was to escape the oppression resulting from governments con- 
trolled by the select few, so often ruling under the assumption 
that " might makes right," that gave birth to republics. Monar- 
chal rulers refuse to recognize their accountability to the people 



Judicial Decisions 321 

governed by them. In a republic the converse is the rule. The 
tenure of office may be for a short or a long period, or even for 
life, yet those in office are at all times answerable, either directly 
or indirectly, to the people, and in proportion to their responsi- 
bility to those for whom they may be the public agents, and the 
nearer the power to enact laws and control public servants lies 
with the great body of the people, the more nearly does a gov- 
ernment take unto itself the form of a republic — not in name 
alone, but in fact. From this it follows that each republic may 
differ in its political system or in the political machinery by 
which it moves, but, so long as the ultimate control of its officials 
and affairs of state remain in its citizens, it will in the eye of all 
republics, be recognized as a government of that class. Of this 
we have many examples in Central and South America. It be- 
comes then a matter of degree, and the fear manifested by the 
briefs filed in this case would seem to indicate, not that we are 
drifting from the secure moorings of a republic, but that our state, 
by the direct system of legislation complained of, is becoming too 
democratic — advancing too rapidly towards a republic pure 
in form. This, it is true, counsel for petitioner does not concede, 
but under any interpretation of which the term is capable, or 
from any view thus far found expressed in the writings of the 
prominent statesmen who were members of the Constitutional 
Convention, or who figured in the early upbuilding of the nation, 
it follows that the system here assailed brings us nearer to a state 
republican in form than before its adoption. Mr. Thomas 
Jefferson, in 18 16, when discussing the term republic, defined and 
illustrated his view thereof as follows: "Indeed, it must be 
acknowledged that the term ' republic ' is of very vague applica- 
tion in every language. Witness the self-styled republics of 
Holland, Switzerland, Genoa, Venice, Poland. Were I to assign 
to this term a precise and definite idea, I would say, purely and 
simply, it means a government by its citizens in mass, acting 
directly and not personally, according to rules established by the 
majority, and that every other government is more or less repub- 



322 State-wide Initiative, Referendum, and Recall 

lican in proportion as it has in its composition more or less of 
this ingredient of the direct action of the citizens." Writings 
of Thomas Jefferson, vol. 15, p. 19. It is well known that at the 
time of the adoption of the federal Constitution there existed in 
some of the Atlantic states a system of local government, known 
as "New England towns," in which the people had the right to 
legislate upon various matters, the masses assembling at stated 
periods for that purpose, all of which was within the knowledge 
of those composing the Constitutional Convention. After 
observing that a true republic, under his definition, would neces- 
sarily be restrained to narrow limits, such as in a New England 
township, and that the next step in use at that time was through 
the representative system, Mr. Jefferson pointed out that the 
further the officials of state or nation are separated from the 
masses proportionately less does such state or government retain 
the elements of a republic, and on page 23 concludes: "On this 
view of the import of the term 'republic,' instead of saying, as has 
been said, that it may mean anything or nothing, we may say 
with truth and meaning that governments are more or less re- 
publican, as they have more or less of the element of popular 
election and control in their composition ; and believing, as I do, 
that the mass of citizens is the safest depository of their own rights 
and especially, that the evils flowing from the duperies of the 
people, are less injurious than those from the egoism of their 
agents, I am a friend to that composition of government which 
has in it the most of this ingredient." The observations quoted 
are in full accord with the recorded views of all the writers and 
statesmen of that time, when the intention of the framers of our 
national Constitution was fully understood, in the light of which 
it seems inconceivable that a state, merely because it may evolve 
a system by which its citizens become a branch of its legislative 
department, co-ordinate with their representatives in the Legisla- 
ture, loses caste as a republic. The extent to which a Legislature 
of any state may enact laws is, and always has been, one of de- 
gree, depending upon the limitations prescribed by its constitu- 






Judicial Decisions 323 

tion; some constitutions having few and others many limitations. 
But in all states, whatever may be the restriction placed upon 
their representatives, the people, either by constitutional amend- 
ment or by convention called for that purpose, have had, and 
have, the power to directly legislate, and to change all or any 
laws so far as deemed proper — limited only by clear inhibitions 
of the national Constitution. Cooley, Const. Lim. (6th Ed.) 44. 
An examination of our state Constitution, as first adopted, 
discloses many restrictions upon the law-making department, 
among which is a provision to the effect that no amendment 
thereto should be submitted to the people for ratification until 
after it passed two successive sessions of the Legislature. In 
course of time, an amendment under this provision was legally 
submitted and adopted by a majority vote of the people, by which 
the people reserved the right to change the Constitution or 
any part thereof without awaiting this legislative formality, the 
validity of which is not open to doubt. Is it not possible, indeed, 
is it not practicable, then, for the people further to restrict the 
power of their representatives to legislate upon matters of public 
interest, and in so doing are they not, and even under the old 
system were they not, directly legislating ? This system of direct 
legislation has been in common use throughout the various state 
governments since their inception, but until the adoption of the 
initiative and referendum amendments no one was heard to assert 
that an amendment to the Constitution of a state merely because 
of depriving the Legislature of some law-making power or powers 
held by it at the adoption of the national Constitution was void 
on the grounds of being inconsistent with a republican form of 
government. The absurdity of such a contention, if made, would 
at once be obvious. But, viewed from any standpoint, such is 
the logical sequence of appellant's contention to the effect, that 
because the people have, by constitutional amendment, reserved 
the exclusive right to enact special laws concerning municipalities 
and by constitutional amendment have delegated to municipal 
corporations the right to exercise such powers as before were 



324 State-wide Initiative, Referendum, and Recall 

only within the province of their representatives, through the 
Legislature, to delegate, violates the provision of the federal 
Constitution, guaranteeing to our state a republican form of gov- 
ernment. In other words, it is argued that the right of the city of 
Portland to legislate upon matters of municipal concern, to pro- 
vide for the exercise of its right of eminent domain, to build 
bridges, etc., would be in harmony with the above provision of 
the federal Constitution, if delegated by the people through their 
representatives, but not so if done directly by them through the 
initiative. In brief, the effect of this argument is that the people 
may legally do indirectly by the mere enactment of a law what 
they cannot do directly by constitutional amendment. The 
statement of this contention should be sufficient for its 
answer. 

We held in Straw v. Harris, 54 Or. 424, 103 Pac. 777, that a 
state could not by amendment of its fundamental laws or other- 
wise, except in the manner provided in section 3, art. 4, Const. 
U. S., delegate to any municipality or subdivision of the state 
prerogatives not subject to recall, that so to do would, in effect, 
be the creation of a state within a state, and that, so long as the 
Legislature is not precluded by the Constitution from enacting 
general laws affecting them, it may by that method amend, modify, 
or even abolish municipal corporations, and that even should this 
power be removed from the Legislature there must remain with 
the people a right to do so, if not by enacting a law to that effect, 
then by the former system of direct legislation, consisting in the 
adopting of amendments to the Constitution, known as the fun- 
damental laws of the state, and that this right of state govern- 
ment to retain control of these agencies and department of state 
cannot be surrendered, but must always remain somewhere 
within the reach of that source of all power — the people. We 
held, and still hold, to this view, not on the ground that to hold 
otherwise would be destructive of a republican form of govern- 
ment, but because to do so would in effect permit a state within 
a state and accordingly violate section 3, art. 4, of the federal 



Judicial Decisions 325 

Constitution, the first paragraph of which reads: "New states 
may be admitted by the Congress into this Union ; but no new 
state shall be formed or erected within the jurisdiction of any 
other state ; nor any state be formed by the junction of two or 
more states, or parts of states, without the consent of the Legis- 
latures of the states concerned, as well as of the Congress." 
Suppose our law-making department should pass an ex post facto 
act, or a bill of attainder, such purported laws would be void, 
not because of being subversive of a republican form of govern- 
ment, but by reason of some express inhibition against legislation 
of that character contained in another section of the federal Con- 
stitution. If the national Constitution permitted or provided 
for the creation of a state within a state, could it be said that by 
reason thereof the state thus created would be unrepublican in 
form ? Under section 3 of article 4, above quoted, states may be 
divided and new ones created, the limitation being that no states 
shall be created within a state, but the creation of new states 
under that section has never been considered an unrepublican 
step. Should our state attempt to surrender its powers to an 
executive for life, with the provision that upon his death his 
authority should pass by entailed inheritance to his son or other 
relative, and at the same time, by constitutional change or other- 
wise, further surrender any right to alter the system, except with 
the consent of such executive, it would lose its republican form, 
and in effect become a local monarchy within the Union, thereby 
furnishing an example of a violation of section 4, art. 4, of the 
federal Constitution. But, so long as the people retain the 
power within themselves to conduct and manage the affairs of 
state — either directly or indirectly — a republican form of 
government is maintained, and comes within the provision of the 
federal Constitution guaranteeing the same, being circumscribed 
in its powers only by the provisions of such Constitution. The 
effect of petitioner's contention is that any attempt on the part 
of the state to enact and enforce a law which may be in conflict 
with any provision of the national Constitution is not void 



326 State-wide Initiative, Referendum, and Recall 

because in conflict or inconsistent with the special provision vio- 
lated, but because it deprives the state of its republican form 
of government, and this seems to be the character of reasoning 
adopted by the majority in People v. Johnson, 34 Colo. 143, to 
which we are cited as sustaining petitioner's view. In that case 
the question was whether the consolidation of the city and county 
of Denver, the boundaries ot which were made coterminous, abol- 
ished the city government, as distinguished from county govern- 
ment, thereby giving to such organization home rule to the extent 
of permitting it to do as the constitutional amendment of 1902 
provided might be done — enact all local laws, and elect such offi- 
cers at such times as deemed advisable, concerning which it was 
held by the majority that the city and county governments, al- 
though covering the same territory, remained separate and distinct, 
requiring different officers to be selected for each, and in a different 
manner, as before the change. The reason for the conclusion ap- 
pears to be on account of other provisions in the Constitution of 
Colorado, the majority not recognizing the rule invoked without 
exception in all other jurisdictions, including ours, that Constitu- 
tions with amendments must be construed as a whole, and that 
when two constructions are possible, one of which takes away the 
meaning of a section, and another giving effect to all the provisions, 
the latter must prevail. State v. Cochrane, 105 Pac. 884 ; Farrell, 
v. Port of Portland, 52 Or. 582, 98 Pac. 145. In an able and ex- 
haustive dissenting opinion in that case by Mr. Justice Steele, con- 
curred in by Mr. Justice Gunter, it is made clear that a federal 
question (such as here presented) was not involved ; that the 1902 
amendment of Colorado's Constitution was not inconsistent 
with section 4, art. 4, of the federal Constitution. After demon- 
strating that the conclusion announced by the majority " over- 
looks the fundamental rule in the construction of Constitutions 
and statutes that a special provision controls the general one and 
that both may stand . . ." (People ex rel. Atty. Gen. v. John- 
son, 34 Colo. 189, 193, 86 Pac. 233, 249), at the close of his opinion 
(page 193) it is observed: "Wherever the question has been 



Judicial Decisions 327 

presented, the courts have given effect to the wishes of the people 
and sustained the power to establish the form of government here 
provided as not being in violation of the federal Constitution, 
and not in excess of the powers of the people to so provide in their 
organic law. And it is to be regretted that this court felt in 
duty bound to undo the work of the charter convention and to 
deny the people of this city and county the right to provide for a 
simple and economical plan of government as directed by the 
Constitution." Our holding is that the state may, by constitu- 
tional provisions, directly delegate to municipalities any powers 
which it, through the Legislature, could formerly have granted in- 
directly. All the prerogatives attempted to be exercised by 
Portland in the construction of the Broadway bridge formerly 
could have been granted by the Legislature, and the power to 
provide therefor, having been delegated to the city by amend- 
ment to our organic laws, is valid, and the right to exercise such 
powers will continue until such time as changed by general enact- 
ments of the law-making department of our state, provision for 
which may be made by the Legislature by general laws, applying 
alike to all municipalities of that class, or by the people through 
the initiative, by the enactment of either general or special 
laws on the subject. Cooley, Const. Lim. (6th Ed.) 41, 45 ; Hop- 
kins v. Duluth, 81 Minn. 189, 83 N. W. 536; In re Pfahler, 150 
Cal. 71, 88 Pac. 270, 11 L. R. A. (N. S.) 1092 ; Ex parte Wagner, 
21 Okl. 33, 95 Pac. 435 ; State v. Field, 99 Mo. 352, 12 S. W. 802 ; 
Kansas v. Marsh, 140 Mo. 458, 41 S. W. 943 ; Kadderly v. Port- 
land, 44 Or. 118, 74 Pac. 710, 75 Pac. 222 ; State v. Pacific States 
Tel. &Tel. Co., 53 Or. 163, 99 Pac. 427 ; Straw v. Harris, 54 Or. 
424, 103 Pac. 777 ; City of McMinnville v. Hownestine, 109 
Pac. 81. 

In a public address prepared by Hon. Frederick V. Holman, 
attached to and filed as an appendix to petitioner's brief, it is 
argued that our previous holding in Hall v. Dunn, 52 Or. 475, 97 
Pac. 811, 25 L. R. A. (N. S.) 193, and Straw v. Harris, 54 Or. 
424, 103 Pac. 777, to the effect that we have but one law-making 



32& State-wide Initiative, Referendum, and Recall 

department, composed of two separate and distinct law-making 
bodies — (i) The people, acting directly through the initiative ; 
and (2) the people acting indirectly through the Legislature — 
either of which in a manner provided by law may undo the work 
of the other, and necessarily must lead to disastrous results, 
etc., in that an act passed by the first may immediately on the 
convening of the Legislature be repealed, and one enacted by the 
legislative assembly may also be rescinded through either the ini- 
tiative or the referendum. But that objection applies only to 
the question of expediency, with regard to which the lawmakers, 
and not the courts, are concerned. It might not be inappropri- 
ate, however, to observe that the same objection may with equal 
force apply to all legislative bodies. Our Legislature to convene 
next week can, if it so chooses, repeal all the laws (not included 
in constitutional amendments) enacted at the recent November 
election, and also undo the work of the last legislative assembly. 
Again, two years later or earlier a special session of the Legisla- 
ture might be called, and enact many laws, and the day follow- 
ing its adjournment the newly elected Legislature could be con- 
vened and repeal all the laws going into effect the preceding day. 
The same may also be said of Congress, but this is seldom, if ever, 
urged as an argument against a representative system, or alluded 
to as indicating that our government is becoming unrepublican 
in form. In the appendix mentioned, it is observed that under 
our system, as interpreted by this court, we have four legislative 
bodies in place of two: (1) The Legislature; (2) the people of 
the whole state ; (3) the people of a municipality ; (4) the com- 
mon council or commissioners. This suggestion, however, 
overlooks the fact that in the above-cited cases advertence was 
made only to legal departments of the state, and not to municipal 
or other minor and quasi legislative bodies. The fallacy of this 
illustration (like many others to which our attention is directed, 
and which will not be specifically discussed) is obvious. The 
observation to the effect that under the interpretation given by. 
this court to the charter amendments cities may invade the do- 



Judicial Decisions 329 

main of state legislation to the extent, if desired, of condemning 
state property (such as capitol buildings, etc.) has no justifica- 
tion, either in the language of the charter amendments, or in 
anything said in any opinion of this court in interpreting such 
amendments. Many of the statements in our former opinions 
bearing upon points here presented are adverted to as dictum, and 
like contention is also made respecting our holding in the case 
at hand, to the effect that it is unnecessary to obtain the consent 
of the Port of Portland before the bridge in question may be 
constructed. The points decided, determining the status of the 
Port of Portland in the matter, were all forcibly presented in the 
briefs and at the oral argument, and the effect of the conclusion 
reached by this court was that, taking either horn of the di- 
lemma, appellant's position is untenable. It cannot, therefore, 
be said that our views upon either point are dicta, and the same 
may be remarked of much, if not all, of the numerous like refer- 
ences to previous adjudications by this court (as in Straw v. 
Harris and other cases) in which the views alluded to as dicta 
hold adversely to the wishes and contention of the writers of 
petitioner's brief, and the appendix thereto. On what is dicta 
and the effect thereof see Kirby v. Boyette, 118 N. C. 244, 254, 24 
S. E. 18 ; Buchner v. C. M. & N. W. Ry. Co., 60 Wis. 264, 19 
N. W. 56 ; Kane v. McCown, 55 Mo. 181 ; Ocean Beach Ass'n v. 
Brinley, 34 N. J. Eq. 438; 26 Am. & Eng. Ency. L., 165, 171 ; 
Florida Cent. Ry. Co. v. Schutte, 103 U. S. 118, 143, 26 L. Ed. 327. 
The terms " Obiter dicta," "dictum," etc., like the phrase 
"technicalities of the law," are too often invoked by counsel to 
express disapprobation of some proposition of law militating 
against their contention. 

Numerous other points are presented upon which the views of 
this court are requested. Some of them, however, were disposed 
of in* our former opinions herein, to which we still adhere, and 
those remaining, even though not specifically adverted to, are 
included in the above considerations. 

The petition for rehearing is denied. 



330 State-wide Initiative, Referendum, and Recall 

XXXV. Ex parte Wagner 
(95 Pacific Reporter, 435) 

Supreme Court of Oklahoma. April 27, 1908. 

1. Constitutional Law — Initiative and Referendum. 
The initiative and referendum provisions in the Constitution 

(article 5, §§ 1, 2, 3, 4, 5, and article 18, §§ 4, 5) are not in con- 
flict with the Constitution of the United States (section 4, art. 4) 
guaranteeing to every state a republican form of government. 

2. Same — Enforcement of Provisions. 

Said provisions as contained therein are not self-executing, 
but are made effective by an act of the Legislature approved 
April 16, 1908. 

3. Municipal Corporations — Ordinances — Petition for 
Referendum. 

Until said provisions were made effective by legislation, a 
petition for a referendum filed with the chief executive officer 
of a municipality of the first class was of no effect. 

4. Habeas Corpus — Violation of Ordinance — Petition 
for Referendum. 

An ordinance having been passed and published, and thereafter 
a petition for referendum filed, with the mayor of Kingfisher, and 
afterwards said relator being convicted in said municipal court 
for an alleged violation after the filing of said petition, he is not 
entitled to be discharged from said conviction. 

(Syllabus by the Court.) 

Application of C. L. Wagner for a writ of habeas corpus. Writ 
denied. 

On December 5, 1907, the mayor and council of the city of 
Kingfisher, Old., passed an ordinance, No. 118, entitled "An 
ordinance providing for a levy and collection of a license tax on 
certain trades, occupations, callings, businesses and avocations, 
and regulating the same and providing penalties for violations 
thereof." The ordinance provided for the punishment of per- 






Judicial Decisions 331 

sons engaged in business without having paid a license tax as 
prescribed by said ordinance. On December 12, 1907, the ordi- 
nance was published in the official organ of said city. On De- 
cember 18, 1907, a petition signed by 25 per cent of the qualified 
voters of said city, demanding a referendum vote on said ordi- 
nance, and requesting that same be held in abeyance until such 
election was held at which said ordinance could be voted upon 
and approved or rejected by the electors of said city, was filed with 
the mayor thereof. On December 20, 1907, relator, C. L. Wag- 
ner, was tried and found guilty of violating said ordinance, and 
adjudged to pay a fine and costs of the action. The relator 
refused to pay the fine, and for that reason was committed to the 
city jail by the respondent, George H. Brown, the marshal of 
said city, under a commitment issued by the police court on the 
judgment rendered against said relator. The relator alleges in 
his petition that ever since that date he has been restrained of his 
liberty under said commitment. Thereafter, on the 2d day of 
January, 1908, application was made to this court for a writ of 
habeas corpus for the purpose of determining whether or not he 
was lawfully restrained of his liberty, and the same was issued 
on said date, made returnable on the nth day of January, 1908. 
The ordinance was in due form, and there is no allegation against 
its validity, but the contention is that by virtue of said petition 
filed for a referendum vote that the same was held in abeyance 
until the next city election. George H. Brown, marshal of said 
city, as respondent, made his return to said writ, showing that 
he held the relator under a commitment issued by the police 
court of said city on a judgment of conviction for the violation 
of said ordinance. The facts as heretofore set out were admitted 
on a hearing of this cause. 

C. G. Horner and P. S. Nagle, for relator. 

John T. Bradley, Jr., for respondent. 

Williams, C. J. (after stating the facts as above). The ques- 
tion raised in this case is whether or not a petition demanding a 
referendum vote upon an ordinance duly passed by a city of the 



332 State-wide Initiative, Referendum, and Recall 

first class after the same had taken effect and was in force, such 
demand having been presented to and filed with the chief execu- 
tive officer of such city after such ordinance had been pub- 
lished, suspends the force and effect of said ordinance until the 
next municipal election. Of course, the question necessarily 
arises as to whether or not the different sections in the Constitu- 
tion providing for the initiative and referendum are valid, and 
were in force and effect or self-executing on the 18th day of 
December, a.d. 1907, the date on which the petition demanding a 
referendum on said ordinance was filed with the mayor of the 
city of Kingfisher. The initiative and referendum provisions, 
relating, not only to the affairs of the state, but also to counties 
and cities, are taken substantially from the Constitution of 
Oregon. The Supreme Court of that state, in the case of Kad- 
derley v. Portland, 44 Or. 119, 74 Pac. 720, 75 Pac. 222, has held 
that the same are not in conflict with section 4, art. 4, Const. 
U. S., guaranteeing to every state a republican form of govern- 
ment. 

The next question is : Were said provisions self-executing on 
the 18th day of December, a.d. 1907 ? The Supreme Court of 
Oregon, in the case of Stevens v. Benson (Or.), 91 Pac. 577, held 
that the initiative and referendum provisions as contained in 
the Oregon Constitution were self executing. The only difference 
between the provisions in that Constitution and those of this 
state is that in the former it is provided that, in submitting 
such petitions to the people, the Secretary of State and all other 
officers shall be guided by the general laws and the act submitting 
the initiative and referendum amendment to the people for 
adoption or rejection until legislation shall be especially provided 
therefor — clearly indicating that it was the intention in adopting 
the Oregon amendment that the same should then and there be- 
come self-executing. This clause does not appear in the Okla- 
homa Constitution. Substantially such provision was contained 
therein prior to the time that the constitutional convention re- 
assembled after the proposed Constitution had been provided 



Judicial Decisions 333 

to be submitted to the people for adoption or rejection. When 
the convention reconvened, in order to obviate any possible 
objection that might be made by the President of the United 
States to the same, wherein it was required by section 4, art. 4, 
Const. U. S., and the terms of the enabling act (Act June 16, 
1906, c. 3335, 34 St. 267) to be republican in form, and not in 
conflict with the provisions of said act, that part was eliminated, 
leaving it to the Legislature to carry same into effect. There 
was undoubted wisdom and precaution in that act. If the ene- 
mies of the principle of the initiative and referendum in popular 
government had been able to convince the department of justice 
of the federal government that such provisions of the initiative, 
and referendum, when adopted by a state, rendered such state 
government unrepublican in form, still it remained that until 
the Legislature acted that the principle was not self-executing in 
the Oklahoma Constitution. And, until the Legislature enacted 
measures carrying it into effect, the federal government had 
less right or reason to complain, and that was one of the reasons 
for such action assigned at the time ; for, if that contention against 
the provisions of the Constitution or to the initiative and referen- 
dum had been sustained, yet, as the same were not self-executing 
in that Constitution, reason and consideration of the rights of 
the people of the proposed state should certainly have impelled 
the promulgation of the proclamation of the admission of the 
state into the Union. For, when the act of Legislature had 
been passed carrying same into effect, then the question could in 
due and proper time have been raised that such act was in 
conflict with section 4, art. 4, Const. U. S., and been declared void, 
and by such course preserved the supremacy of the Constitution 
of the United States, and at the same time vouchsafe the right 
of local self-government to over one million of citizens. 

The Legislature, carrying out the intention of the constitutional 
convention with commendable fidelity, have enacted what is 
known as House Bill No. 174, entitled " An act to carry into effect 
the initiative and referendum powers reserved by the people in 



334 State-wide Initiative, Referendum, and Recall 

articles 5 and 18 of the Constitution of the state of Oklahoma, to 
regulate elections thereunder, and to punish violations thereof," 
which was approved by the Governor on the 16th day of April, 
a.d. 1908, thereby making absolutely complete and effective said 
provisions of said Constitution. See Reg. Sess. Laws Or. 1903, 
p. 244; Sess. Laws Or. 1907, p. 398. This is a very comprehen- 
sive act, providing fully for the forms of petition, both initiative 
and referendum, and for review of the action of the Secretary of 
State by the Supreme Court, whose judgment shall be final and 
binding upon such officer, and provisions in detail are contained 
for the holding of such election. Sections 17, 18, and 19 of the 
same act relate to municipalities. In said section 17 it is pro- 
vided that in all cities, counties, and other municipalities which 
do not provide by ordinance or charter for the manner of exer- 
cising the initiative and referendum powers reserved by the Con- 
stitution to the whole people thereof, as to their municipal legis- 
lation, the duties required of the Governor and Secretary of State 
by this act, as to state legislation, shall be performed as to such 
municipal legislation by the chief executive and the chief clerk 
of such municipality ; and the duties required in this act of the 
Attorney General shall be performed by the attorney for the 
county, district, or other municipality. 

In the case of Taylor v. Hutchinson et al., 145 Ala. 207, 40 
South, 109, the court says : — 

"Our Constitution contains many instances of non-self-exe- 
cuting provisions. In these cases there is always some indication 
that something is left for the Legislature to do, or there is some- 
thing in the nature of the provision that renders such legislation 
necessary." 

In the case of Willis v. Mabon,48 Minn. 140, 50 N. W. n 10, 16 
L. R. A. 281, 31 Am. St. Rep. 626, discussing the question as to 
whether or not a provision of the Constitution of that state was 
self-executing, the court said : — 

"The question in every case is whether the language of a 
constitutional provision is addressed to the courts or to the Legis- 



Judicial Decisions 335 

lature. Does it indicate that it was intended as a present enact- 
ment, complete in itself as definite legislation, or does it contem- 
plate subsequent legislation to carry it into effect? This is to 
be determined both from a consideration of the language used 
and of the intrinsic nature of the provision itself. If the nature 
and extent of the right conferred and of the liability imposed is 
fixed by the provision itself, so that they can be determined by 
examination and construction of its own terms, and there is no 
language used indicating that the subject is referred to the Legis- 
lature for action, then the provision should be construed as self- 
executing." 

See, also, Acme Dairy v. City of Astoria (Or.) , 90 Pac. 1 53 ; Swift 
& Co. v. City of Newport News, 105 Va. 108, 52 S. E. 821, 3 
L. R. A. (N. S.) 404 ; Logan et al. v. Parish of Ouachita, 105 La. 
499, 29 South, 975. Section 3, art. 5, Const. (Bunn's Ed. § 55), 
relating to the initiative and referendum provision, provides that 
"The Legislature shall make suitable provision for carrying into 
effect the provisions of this article." This especially indicates 
that it was not the intention of the constitutional convention that 
said articles should become effective until made so by act of the 
Legislature. In determining whether or not a provision of the 
Constitution is self-executing, we would consider the language in 
the light of the surrounding circumstances and conditions under 
which it was adopted, with a view of ascertaining the intention of 
the parties framing it. We accordingly conclude that on the 18th 
day of December, a.d. 1907, the provisions in our Constitution 
relating to the initiative and referendum were not self-executing, 
and that they did not become effective until the 16th day of 
April, a.d. 1908, when the act of the Legislature heretofore re- 
ferred to was approved by the Governor of the state. 

It is evident that if the provisions of article 5, relating to the 
initiative and referendum, were not self-executing on December 
18, 1907, that section 4, art. 18, was also not self-executing, and it 
results as a matter of course that the petition demanding a refer- 
endum vote on the ordinance, filed with the mayor of the city of 



336 State-wide Initiative, Referendum, and Recall 

Kingfisher on the 18th day of December, a.d. 1907, was without 
effect, and did not operate to supersede or suspend any ordinance. 
The fact that since that date the Legislature of this state has en- 
acted a comprehensive and valid law carrying into effect all of the 
provisions of the initiative and referendum as reserved and con- 
tained in the Constitution could not give any validity to such 
petition as that would have a retroactive effect or in the nature 
of an ex post facto law. Hence it is not necessary, in order prop- 
erly to dispose of this case, to determine whether or not, after a 
city or municipality passes an ordinance and it becomes effective, 
a petition demanding the referendum on such ordinance there- 
after being filed with the proper officer, in accordance with the 
charter or ordinance of said city, or with the general laws of the 
state, would have the effect to supersede or suspend the operation 
of such ordinance until the next municipal election. That ques- 
tion is not now properly before this court for determination ; 
it being admitted that the ordinance under which this relator 
was prosecuted was properly enacted and published and other- 
wise valid. The only question before this court now is whether 
or not the demand for the referendum on such ordinance had the 
effect to supersede or suspend said ordinance. Having reached 
the conclusion that at the time such ordinance was passed and 
published the provisions in the Constitution relating to the ini- 
tiative and referendum not being self-executing, although the 
same have since then been carried into effect by legislation, would 
not entitle the relator to the relief prayed for. 

Writ of habeas corpus denied. 

Turner and Dunn, J. J., concur. Kane and Hayes, J. J., 
concur in the conclusion denying the writ. 



Judicial Decisions 337 



XXXVI. Bonner v. Belsterling (138 Southwestern 
Reporter, 571) 

(Supreme Court of Texas. June 23, 191 1) 

1. Municipal Corporations (§ 154 1 ) — Officers — "Re- 
moved" — Recall. 

A recall is a method of removal of officers, within Dallas city 
charter, providing that elective officers may be "removed" in a 
manner therein provided. 

[Ed. Note. — For other cases, see Municipal Corporations, 
Cent. Dig. § 350; Dec. Dig. § 154. 1 

For other definitions, see Words and Phrases, vol. 7, pp. 6078- 
6081 ; vol. 8, p. 7784.] 

2. Municipal Corporations (§ 211 1 ) — Municipal Officers 
— Board of Education — Removal. 

The members of the board of education of the city of Dallas, 
created by the charter placing the control of the city public schools 
in a board of education, composed of a president and six members, 
who shall be elected and hold their office for a specified term and 
until their successors are elected and qualified, are officers of 
the city, and are not within Const, art. 5, § 24, authorizing the 
judges of the district court to remove enumerated county officers 
and other county officers and the Legislature may provide for 
the removal of the members of the board otherwise than by the 
judges of the district court. 

[Ed. Note. — For other cases, see Municipal Corporations, 
Cent. Dig. §§ 567-57°; D ec Dig. § 211. 1 ] 

3. States (§ i 1 ) — Municipal Corporations (§ 64 1 ) — Repub- 
lican Form of Government — Government of Cities. 
Except as limited by the federal Constitution, the people of 

Texas may adopt any form of government, and, subject to the 
limitations of the federal and state Constitutions, the Legislature 
may confer on any municipality any power that it may see fit to 
give. 

[Ed. Note. — For other cases, see States, Cent. Dig. § 1 ; 
Dec. Dig. § 1 j 1 Municipal Corporations, Cent. Dig. §§ 156, 157; 
Dec. Dig. § 64. 1 ] 

1 For other cases, see same topic and section number in Dec. Dig. & 
Am. Dig. Key No. Series & Rep'r. Indexes. 
z 



33% State-wide Initiative, Referendum, and Recall 

4. States (§ 4 1 ) — Municipal Corporations (§ 64 1 ) — Re- 
publican Form of Government" — Recall Provision in 
Municipal Charter. 

A recall provision in a city charter, vesting the powers of gov- 
ernment in the people and constituting all inhabitants of the city 
a body politic, is not violative of the Const. U. S. art. 4, § 4, 
guaranteeing to every state a " republican form of government," 
which merely means a government by the citizens in mass, acting 
directly, and not personally, according to the rules established 
by the majority. 

[Ed. Note. — For other cases, see States, Cent. Dig. § 2 ; 
Dec. Dig. § 4 ; x Municipal Corporations, Cent. Dig. §§ 156, 157 ; 
Dec. Dig. § 64. 1 

For other definitions, see Words and Phrases, vol. 8, p. 7785.] 

5. Constitutional Law (§ 43 1 ) — Due Process of Law — 
Removal of Officers. 

A city officer elected subject to the recall provision in the 
charter may not urge that his removal from office by a recall 
deprives him of the benefit of his term of office without due 
process of law ; he not securing the right to hold the office contrary 
to the wishes of the people electing him. 

[Ed. Note. — For other cases, see Constitutional Law, Cent. 
Dig. § 41 ; Dec. Dig. § 43. 1 ] 

6. Municipal Corporations (§ 67 1 ) — Officers — Term of 
Office — Legislative Power. 

Under Const, art. 16, § 30, declaring that the duration of office, 
not fixed by the Constitution, shall never exceed two years, the 
Legislature in creating a municipality need not make the term 
of office two years, but it may fix the term at any time not ex- 
ceeding two years, and the Legislature may grant to the people 
of the municipality the right to remove by a recall any officer fail- 
ing to discharge his duty in a manner satisfactory to the people of 
the municipality. 

[Ed. Note. — For other cases, see Municipal Corporations, 
Cent. Dig. §§ 161-165 5 Dec. Dig. § 67. 1 ] 

7. Officers (§ 67 1 ) — Removal — " Officers of the State." 
Const, art. 15, § 7, requiring the Legislature to provide for the 

trial and removal from office of all "officers of the state," when 
considered in connection with article 5, § 24, providing for the 

1 For other cases, see same topic and section number in Dec. Dig. & 
Am. Dig. Key No. Series & Rep'r. Indexes. 






Judicial Decisions 339 

removal of county officers, relates only to state officers and does 
not prohibit the removal from office of an officer of a city by recall. 

[Ed. Note. — For other cases, see Officers, Cent. Dig. §§ 161- 
165 ; Dec. Dig. § 67.] 

Dibrell, J., dissenting. 

Error from Court of Civil Appeals of Fifth Supreme Judicial 
District. 

Actions by Shearon Bonner and by one Lefevre against E. L. 
Belsterling and others. There were judgments of the Court of 
Civil Appeals (137 S. W. 1154) affirming judgments for defend- 
ants in each case, and plaintiff in each case brings error. Affirmed. 
Meador & Davis, A. B. Flanary,and E. G. Senter,for plaintiffs 
in error. Jas. J. Collins, Lee Richardson, and Lawther & Wor- 
sham, for defendants in error. 

Brown, C. J. The city of Dallas has a population exceeding 
10,000 and by special act of the Thirtieth Legislature of Texas 
(Sp. Acts 1907, c. 71), and by the amendment of its charter by 
the Thirty-First Legislature (Sp. Acts 1909, c. 93 ; Sp. Acts 1909 
[2d Called Sess.] c. 14), it was created a municipal corporation. 
Section 1 of article 5 of the charter provides for a board of educa- 
tion in this language : — 

"The city public schools shall be under the management and 
control of a board of education, composed of a president and six 
members, who shall be elected on the first Tuesday of April, 1908, 
and at a regular election to be held biennially thereafter on the 
first Tuesday of April, and shall hold their offices for two years 
and until their successors are elected and qualified. Any 
vacancy occurring in the board of education shall be filled by an 
election to be held by said board, and the person elected shall 
hold office for the unexpired term. The members of said board 
shall serve without compensation, shall have exclusive control of 
the public schools of the city of Dallas, and shall have full and 
ample authority, in accordance with the provisions hereof, to 
provide necessary school buildings and facilities, and to open and 
conduct a sufficient number of schools to meet the wants of the 



340 State-wide Initiative, Referendum, and Recall 

scholastic population of the city of Dallas, so far as they can do 
so by prudent and judicious application of the means made sub- 
ject to their administration and management. Among the pow- 
ers hereby conferred on said board of education, the following 
are for greater certainty enumerated : To contract for, lease and 
purchase lots, and to construct buildings for school purposes, 
and to make all needed repairs and alterations in same ; to fur- 
nish said school buildings with all appropriate furniture, fixtures 
and apparatus; to sell or dispose of school property when the 
same is necessary or advisable ; to lay off the city into such school 
districts as, in the judgment of the said board, shall be proper ; 
to increase or diminish said districts, and to change the boun- 
daries thereof at pleasure ; to employ superintendents, teachers 
and such other persons as may be necessary, and to fix their com- 
pensation and prescribe their duties, and to establish all such 
regulations and rules deemed necessary by the board to provide 
and maintain an efficient system of public schools in the city of 
Dallas. The board of commissioners, when levying the annual 
tax for the fiscal year, shall levy an ad valorem tax of one-fourth 
of one per centum of the taxable value of the city of Dallas for 
that fiscal year, and said tax, when collected, shall be deposited 
with the city treasurer by the board of commissioners to the 
credit of the school fund, which said sum, together with all sums 
received from the state, county and other school funds, shall be 
held by the city treasurer subject to the order and disbursement of 
the board of education, and shall be paid out upon warrants is- 
sued by order of said board of education, audited by the city 
auditor and signed by the president and secretary of the board 
of education." 

Article 9 of the charter provides: "The holder of an elective 
office may be removed at any time by the qualified voters of the 
city of Dallas. The procedure to effect the removal of an in- 
cumbent of an elective office shall be as follows : A petition signed 
by the qualified voters of said city, equal in number to at least 
35 per cent of the entire vote cast for candidates for the office of 



Judicial Decisions 341 

mayor on the final ballot at the last preceding general municipal 
election, demanding the election of a successor of the person 
sought to be removed, shall be filed' with the city secretary; 
provided, that the petition sent to the board of commissioners 
shall contain a general statement of the grounds for which removal 
is sought." 

It is conceded that the recall election was conducted according 
to the charter, and it is therefore unnecessary to copy that por- 
tion which prescribes the manner of proceedings in such elections. 

After the enactment of the charter and the amendment 
thereof, to wit, on the 5th day of April, 1910, an election was 
held under the terms of the charter for members of the board of 
education, and C. C. Lane was elected president ; H. D. Audrey, 
Robert N. Watkin, Shearon Bonner, petitioner herein, L. K. 
Wright, John W. George, and John C. Mann were elected mem- 
bers of the said board, all of whom were duly installed according 
to the requirements of the law. On the nth day of August, 
1910, another election was held, and John W. George and J. C. 
Mann were removed from the said board, and J. D. Carter and 
J. B. McCraw were elected and installed as such, and thereafter, 
on the 4th day of April, 191 1, there was another recall election 
held under and in compliance with the provisions of article 9 of 
the city charter, at which E. A. Belsterling was elected president, 
and J. D. Carter, John B. McCraw, M. A. Turner, W. A. Goode, 
and Frank Gilbert were chosen as members of the board of edu- 
cation to succeed those previously named, including the plain- 
tiff Shearon Bonner. 

Shearon Bonner instituted this suit against the appellees in 
the district court of Dallas county for the purpose of obtaining 
restoration to the office from which he had been removed by the 
recall, and also to obtain a mandatory injunction requiring the 
parties who were elected at the recall election to surrender their 
said offices. The judge of the district court sustained a general 
demurrer to the petition and dismissed the case, which judgment 
was affirmed by the Court of Civil Appeals of the Fifth district. 



34 2 State-wide Initiative, Referendum, and Recall 

Counsel for the plaintiff in error assert that the recall provision 
of the charter of the city of Dallas is violative of the Constitution 
of the United States in many respects, and that it is also violative 
of the Constitution of the state of Texas in 15 particulars. We 
do not feel called upon to discuss separately each of the objections 
made to the validity of the charter. We have examined each one 
of them sufficiently to satisfy ourselves that they are not of 
sufficient importance to require a separate discussion ; therefore 
we overrule such as are not distinctly treated in this opinion. 

It is claimed that the recall is a method of removing the officers 
of the city of Dallas, and is violative of article 5, § 24, of the state 
Constitution, which reads as follows: "County judges, county 
attorneys, clerks of the district and county courts, justices of the 
peace, constables, and other county officers, may be removed by 
the judges of the district court for incompetency, official miscon- 
duct, habitual drunkenness, or other causes defined by law, upon 
the cause therefor being set forth in writing, and the finding of its 
truth by a jury." 

[1] It is claimed that the members of the board of education 
of the city of Dallas are county officers, and that they are there- 
fore embraced within the article of the Constitution above copied, 
and cannot be removed in the manner attempted. The language 
of article 9 of the charter distinctly says that all elective officers 
may be "removed" in the manner therein provided. We are of 
opinion that the recall is a method of removal, and, so regarding it, 
we will proceed to inquire whether the officers involved in this 
proceeding come within the provision of the Constitution above 
copied. If they are within the designation, "other county offi- 
cers," the proceeding for removal provided by the Constitution 
might be held to be exclusive, and that the Legislature could not 
authorize such removal by the recall method, but it is not neces- 
sary to decide that question. 

In Hendricks v. State, 20 Tex. Civ. App. 178, 49 S. W. 705, 
the Court of Civil Appeals for the First district held that a trus- 
tee of a school district was an officer of the county, within the 



Judicial Decisions 343 

meaning of section 24 of article 5 of the state Constitution, and 
subject to removal by the district court. In that case the district 
was a subdivision of a county, and the trustee derived his author- 
ity solely from the general law which applied to the county. He 
was therefore an officer in the county and of the county in the 
same sense as was a justice of the peace. The court properly 
held that he was subject to removal under the article above 
stated. 

In Kimbrough v. Barnett, 93 Tex. 301, 55 S. W. 120, this court 
answered the following question, which was certified to it by the 
Court of Civil Appeals of the First district, "Is the position of 
superintendent of the public schools of the city of Houston an 
office for which a suit may be maintained in the district court ?" 
To that question this court answered as follows: "We answer 
the first question in the affirmative. The position of superin- 
tendent of the free schools in the city of Houston is an office, 
and the lawful incumbent of it would have a right of action to 
recover it or its emoluments in case he was unlawfully deprived 
of the benefit. State v. Catlin, 84 Tex. 48 [19 S. W. 302]." 
It will be observed that the question to be answered embraced 
only one proposition ; that is, Was the position of superintendent 
of public schools of the city of Houston an office for which suit 
might be maintained in the district court ? The answer which 
is copied above fully and completely answered that question, and 
in the course of the discussion this court said : "We think there 
can be no doubt that a school trustee of an independent school 
district in this state is a county officer, as was held in the case of 
Hendricks v. State, 20 Tex. Civ. App. 178 [49 S. W. 705]." 

[2] The board of education of the city of Dallas was created 
and its powers and duties prescribed by article 5 of the chapter 
of the said city hereinbefore copied. The board derives its 
existence and all of the authority it possesses from the charter, 
which operates only within the limits of the city. By the provi- 
sions of the charter, the board had entire control of the school 
fund and of the property; in fact, of everything pertaining 



344 State-wide Initiative, Referendum, and Recall 

thereto. The auditor of the city is required to pass upon all 
accounts of the said board, and no act of the board has any refer- 
ence whatever to the county or its officers. The relation of the 
board of education to the county is only incidental to its being 
a part of the system of free schools of the state. We therefore 
conclude that the members of the board of education are officers 
of the city of Dallas, and not of the county of Dallas. Gertum v. 
Board of Officers, 109 N. Y. 174, 16 N. E. 328 ; Throop on Public 
Officers, § 27. The members of the board of education being of 
the city were not within the terms of article 5, § 24, of the Con- 
stitution, and it was within the power of the Legislature to pro- 
vide for their removal otherwise than by the judge of a district 
court. 

[3] Except as limited by the Constitution of the United States, 
the people of Texas have the right to adopt any form of govern- 
ment which they may prefer, and, subject to the same limita- 
tions and such limitations as may be found in the state 
Constitution, the Legislature may confer upon any municipal 
government any power that it may see fit to give. Brown 
v. City of Galveston, 97 Tex. 1, 75 S. W. 488; Telegraph & 
Telephone Co. v. Dallas, 134 S. W. 321. 

[4] But is is claimed that the recall provision of the city of 
Dallas is a violation of article 4, § 4, of the Constitution of the 
United States, which we here copy: "The United States shall 
guarantee to every state in this Union a republican form of 
government." 

Counsel for the defendants in error have made an exhaustive 
research for authorities upon this question, and by the citations 
in their admirable brief have made the examination of the ques- 
tion comparatively easy. 

As to the meaning of the phrase, " Republican form of govern- 
ment," there is no better authority than Mr. Jefferson, who, in 
discussing the matter, said: "Indeed, it must be acknowledged 
that the term 'republic' is of very vague application in every 
language. Were I to assign to this term a precise and definite 



Judicial Decisions 345 

idea, I would say, purely and simply, it means a government by its 
citizens in mass, acting directly and not personally, according to 
rules established by the majority ; and that every other govern- 
ment is more or less republican in proportion as it has in its 
composition more or less of this ingredient of the direct action of 
the citizens. ... On this view of the import of the term 're- 
public,' instead of saying, as has been said, that it may mean any- 
thing or nothing, we may say with truth and meaning that 
governments are more or less republican as they have more or 
less of the element of popular election and control in their com- 
position ; and believing, as I do, that the mass of the citizens 
is the safest depository of their own rights, and especially that the 
evils flowing from the duperies of the people are less injurious 
than those from the egotism of their agents, I am a friend to that 
composition of government which has in it the most of this 
ingredient." 

We could quote and cite any number of authorities, using the 
brief of the learned counsel for the defendants in error, but we 
deem it unnecessary to multiply them, and will proceed to exam- 
ine the provisions of the charter with a view of determining if 
it fulfills the definition given by Mr. Jefferson ; and, if it does, it is 
not obnoxious to the provisions of the federal Constitution as 
above quoted. 

In the charter of the city of Dallas, all of the powers of gov- 
ernment — that is, the sovereignty of the municipality — are 
vested in the people, which powers are exercised by representa- 
tives of the people ; that is, officers elected by the voters. The 
charter of the city of Dallas vests the power of government in 
the people by these words: "Section 1. Corporate Name. All 
inhabitants of the city of Dallas, Dallas county, Texas, as the 
boundaries and limits of said city* are herein established or may be 
hereafter established, shall be a body politic, incorporated under, 
and to be known by, the name and style of the 'City of Dallas/ 
with such powers, rights and duties as herein provided." 

It will be observed that the people who reside within the de- 



346 State-wide Initiative, Referendum, and Recall 

scribed limits of the city of Dallas constitute the city, and to 
them is intrusted the powers of government. The sovereignty 
of the municipal government, its powers by which its affairs are 
conducted, are vested in the masses of the people, just as is re- 
quired to constitute a republican form of government, and the 
other requirements to fulfill the definition are met in the charter 
by the several provisions for the election of officers named therein. 
That the city of Dallas is strictly republican in form of govern- 
ment is not questioned, if the recall be eliminated. But it is said 
that with the recall provision, it ceases to be republican. How 
this can be is not made plain to us. With the recall provision 
in the charter, the people are still invested with the sovereign 
power of the municipality, and they are intrusted with the selec- 
tion of their representatives, who are to administer the city 
government. It occurs to us that there is a greater degree of 
sovereignty with the people with the recall of their representa- 
tives than would otherwise be the case ; in fact, the right of recall 
asserts in a larger degree the right of representation; that is, 
representation in fact of the will and wishes of the voters. This 
enlargement of the control of the masses does not make the gov- 
ernment less republican. 

The policy of reserving to the people such power as the recall, 
the initiative, and the referendum is a question for the people 
themselves in framing the government, or for the Legislature in 
the creation of municipal governments. It is not for the courts 
to decide that question. We are unable to see from our viewpoint 
how it can be that a larger measure of sovereignty, committed 
to the people by this method of government, and a more certain 
means of securing a proper representation in any way militates 
against its character as a republican form of government, and 
that it is thereby rendered in any sense obnoxious to the provi- 
sion of the Constitution of the United States. 

[5] Article 16, § 30, of the state Constitution reads : "The dura- 
tion of all offices not fixed by the Constitution shall never exceed 
two years," etc. It is claimed that the recall by the citizenship 



Judicial Decisions 347 

of a city deprives the officer of the benefit of his term of office 
without due process of law. If the officer had been elected to the 
office and the law were changed subsequently, there might be 
some ground for making such an argument, but in this case the 
law provided for the recall at the time the plaintiff in error was 
elected to his office, and he took it upon the condition that the 
people might remove him from office, and he cannot now be heard 
to say that he had been deprived of his office without due process 
of law, for, in fact, the proceeding is just what he contracted for 
when he accepted the office. It seems to be in the mind of some 
of the counsel that an officer has some kind of secured right to 
hold an office contrary to the will and wishes of the people he 
represents, but we are of opinion that he has no more right, as a 
matter of good morals, to hold such office under such circum- 
stances than any employe or agent has to continue in the dis- 
charge of his duty for which he has been employed when he 
ceases to give satisfaction, except that under the Constitution and 
laws as they have heretofore existed in this state such an officer 
could not be removed upon a failure on his part to give satisfaction 
in the discharge of his duties, but must be guilty of some offense 
to justify the removal under the constitutional provisions which 
are in effect in this state. 

[6] In the creation of the municipal corporation, the Legisla- 
ture was not bound to make the term of office two years; it 
might have made it to extend to any time not exceeding two 
years ; and we conclude what we have to say in expressing the 
view again, that we have so frequently stated, that the people 
of the city of Dallas were invested with the sovereign power of 
the city by virtue of the grant of the charter to them, and that 
the Legislature has the power to grant to them the right to re- 
move, by process of the recall provision, any officer who failed 
to discharge his duty in a manner satisfatory to the people of 
that city. 

[7] Section 7, art. 15, of the Constitution, reads : "The Legis- 
lature shall provide by law for the trial and removal from office 



348 State-wide Initiative, Referendum, and Recall 

of all officers of this state, the modes for which have not been 
provided in this Constitution." It is objected that the removal 
by recall is violative of that section, because it does not provide 
for a trial of the officer. The section applies only to " officers 
of the state." In the connection in which it is used, the language 
must be held to refer to the class of officers treated of in that sec- 
tion, but omitted therefrom. We are of opinion that "officers 
of the state" have the same signification as "state officer." 
In article 5, § 24, the removal of all county officers had been pro- 
vided for, and the language of section 7 of article 15 had the 
effect to include all state officers not included in that article. 
The objection is not sound, and is overruled. 

The facts and questions of law are practically the same in 
cause No. 2,295, Lefevre v. Belsterling, this day decided, and this 
opinion applies to both cases. 

It is ordered that the judgments of the district court and Court 
of Civil Appeals in each case be affirmed. 

Dibrell, J. I regret that I am not able to agree with a ma- 
jority of the court in their disposition of this case, but, on account 
of the fact that the court is on the eve of adjournment, I will not 
have time to express my views on the questions involved. I 
consider the questions presented in this case of great importance, 
calling for a construction of more than one provision of the Con- 
stitution of this state, and affecting the form of our government. 

I will reduce to writing my views for this dissent, and file 
later on. 



VI. APPENDIX 
The Proposed Oregon System 1 

[The following is a draft of a plan for a reform in the government of Oregon 
prepared by Mr. W. S. U'Ren and a group of Oregon citizens.] 

There are 47 boards and commissions created to enforce the laws 
and manage the business of the State of Oregon. In addition to these 
we have the governor, secretary of state, state treasurer, superintend- 
ent of instruction, state printer, attorney-general, commissioner of 
labor, 34 sheriffs, unknown numbers of deputies, police, and constables, 
11 district attorneys and 37 deputies. Every one is in a great degree 
independent of all others and of everybody else. 

There is no one officer who is responsible to the people of the State 
for the enforcement of the state laws and the efficient management of 
the state business. The constitution says that the governor " shall take 
care that the laws of the State be faithfully executed," but gives him 
no power beyond that of making recommendations. No successful 
private business is conducted so carelessly as American public business 
and it is generally admitted that the state and county governments 
are seldom successful either in enforcing the laws or giving the tax- 
payers good value for their money. 

At some general elections in Oregon the voters must choose from 20 
to 39 officers. The number varies in different counties and districts 
and at different elections. The offices range in importance from county 
surveyor to governor and United States Senator. The usual number of 
candidates varies from about 80 to 170. In such a crowd is it any 
wonder that many grafters and incompetents are elected? The 
average citizen is compelled to vote according to his party brand be- 
cause he cannot possibly have knowledge of the unfit among so many 
candidates for so many offices. 

The plan herein proposed contemplates the election of only the most 
important officers. After the general election in 19 14 the lowest 

1 Senate Document, No. 603 ; 61st Cong., 2d Sess., pp. 145 ff. 
349 



350 Appendix 

number to be voted for by any elector at a general election would be 5, 
including United States Senator and Representatives in Congress, and 
the highest number at any general election would be 8 ; the subordinates, 
clerks, and other employees would be appointed by the chief officers 
so elected by the people. 

The plan is criticised by some Americans, who say it is "equivalent 
to a monarchical form of government," in that it provides for appoint- 
ment of the secretary of state, treasurer, and other cabinet officers, 
and of the sheriffs and district attorneys by the governor ; also for the 
abolition of 46 of the 47 commissions now supposed to govern Oregon. 

The President appoints the United States marshals and district 
attorneys ; all the United States judges and officers of the Army and 
the Navy ; the postmasters, local customs and internal-revenue col- 
lectors, and a host of others. Not counting soldiers and sailors, the 
President directly or indirectly appoints and controls more than 
350,000 officers and employees of the United States. 

Another says that the governor might build a political machine. 
That is as much as to say that the people of Oregon are too ignorant 
or too selfish for self-government. 

Ten years ago the people of Oregon were in bondage to the political 
parties, bosses, and machines. It was commonly charged that 
nominations were bought from convention delegates, as well as elec- 
tions from legislators. It was not denied that the highest offices were 
shamelessly sold for money and political favors. Within that ten 
years the citizens of Oregon have conquered from the political parties 
and bosses the power to make their constitution, laws, and ordinances ; 
to directly nominate candidates for elective public office ; to order a 
recall election and discharge any public officer. The people of the 
United States have none of these powers. It is unthinkable that the 
men of Oregon will submit to machine government or official tyranny. 
No punishment has been invented to fit the cowardly crime of men 
having these powers who would yet allow their public servants to rob 
them of liberty. 

If the people of Oregon cannot protect their liberties with the direct 
powers they have, then, where is the boasted freedom of the American 
people? They have none of those great powers possessed by the 
voters of Oregon. 

If the national plan of one elective chief executive would be bad for 



Appendix 351 

Oregon, then the state plan ought to be good for the nation. How 
would it do to require the people to elect the United States marshals, 
the postmasters, the Secretary of War, the national Secretary of 
State, and all the other officers, and then make each one of them as 
independent of the President and of each other, as our sheriffs, district 
attorneys, state treasurer, secretary of state, and all our other state 
and county officers, are independent of the governor and of each other. 

But the State of Oregon, besides its political duty to protect the life 
and liberty of every citizen, is also a great business corporation. Every 
citizen is a stockholder owning one share in the corporation of Oregon. 
The management of a private corporation is important to its stock- 
holders because it controls a part of their property and is supposed 
to return them a cash dividend every year. But the government 
business corporation of Oregon in its various forms is of infinitely 
greater importance, because every year its officers take in taxes on 
average of about one thirty-third of all the property of all its citizens. 
The tax payment increases every year. 

Under the present system the taxpayers get the maximum of politics 
and the minimum of business. The proposed plan is intended to pro- 
duce the maximum of business and the minimum of politics for the 
public money. There has been little or no improvement in the business 
system of Oregon's state and county governments for fifty years past. 

It is written that "there is safety in a multitude of counselors," and 
the people of Oregon have applied this principle by giving to every 
citizen an equal vote by the initiative and referendum in making or 
rejecting state and local laws. But no one has ever said there is vic- 
tory in a multitude of generals, or business success in a crowd of general 
managers. 

As to public business, "a crowd of general managers" is no dream. 
Every elected officer is practically a general manager in his own depart- 
ment. Every state institution buys its own supplies and keeps its own 
accounts. Most of the elected county officers buy the supplies for their 
offices ; even the road supervisors are practically supreme in their dis- 
tricts, and in very many cases absorb more than half of the road tax for 
themselves and their familes and teams. Discussing this phase of the 
subject recently, a farmer said that our state and county governments 
are like a farm without a foreman, but with half a dozen hired men, 
each practically safe from discharge for two or four years, and every 



352 Appendix 

one doing as he pleases in his own department and getting good wages 
all the time, no matter how much the farm loses every year. 

In all the forms of cooperation for the general welfare in business, 
when the stockholders and directors have made the rules or approved 
the plans, the execution is intrusted wholly to one man, the president 
or general manager of the corporation. When the pioneers were 
traveling across the plains, every train elected a wagon boss or captain, 
and so long as he held his office it was his sole duty to enforce the train 
rules, and he was intrusted with power sufficient for that purpose. 

The President and Congress spent much time and money deciding 
on the kind of canal to be built and whether it should be at Panama or 
Nicaragua, but when their decision was made there was no question 
about whether one chief engineer or a dozen should have charge of the 
construction work. 

Suppose the stockholders of the Southern Pacific Railroad should 
decide to run the railroad business by electing their president, general 
passenger agent, and other heads of departments, making each one 
supreme in his office and independent of all others, and make a com- 
plete change every four years like the people of Oregon do with nearly 
all their public officers and employees. When would the Southern 
Pacific stockholders get a dividend? When would the bondholders 
get their interest? Probably about as soon as the Oregon citizens 
will get low taxes and good roads under the present system of state and 
county governments. 

It is not the fault of the public officers in Oregon. Most of them are 
honest and fairly competent. But the law does not organize them for 
"team work" for the common good. Faithful and competent work is 
no promise of promotion or of continuance in the public service, be- 
cause the "system" nearly always turns them out after a two or four 
years' term. 

But the Oregon citizen in his private business and private corpora- 
tions organizes for intelligently directed "team work," and when he 
gets a first-class hired man keeps and promotes him as long as possible. 
The American citizen in his private business and corporation is among 
the most successful of men. 

Why would it not be good to apply the principles of American pri- 
vate business to the business of American state and county govern- 
ment? 



Appendix 353 

This plan centralizes the state executive power toward the people. 
If the governor proves unfit for his office, recall him. If the appro- 
priations are extravagant, the governor and the people will be to blame, 
because he, or they, could have ordered the referendum if the legisla- 
ture raised his estimates. If the state business is badly or wastefully 
managed, it will be the governor's fault, because he can remove the 
ignorant or extravagant officers. If the state laws are not faithfully 
executed, the governor will be responsible, because he will be able to 
appoint and can remove the sheriffs and district attorneys. And the 
governor can be discharged at any time by the people. 

If the legislature is ignorant, vicious, or unfaithful, the voters will 
be able to discharge the whole body, or either house, or any guilty 
members. 

If the county business is badly managed, one man will be responsible, 
the county business manager. If the plans for county business are 
not good, the voters of the county will be able to recall any or all of the 
county board of directors. 

If the governor fails, or refuses to remove an insolent or unfaithful 
officer, the people of his district can discharge the officer and the 
people of the State can discharge the governor. 

The people have struggled through the centuries for efficient methods 
as well as the right to govern themselves, but even the seers have not 
dreamed of a people's automatic government that would be always 
efficient, honest, and free. Eternal vigilance is the price of liberty, 
and American experience proves it is also the price of success for the 
taxpayers on the business side of the Government. 

FURTHER EXPLANATION 

The people of Oregon pay more than $8,500,000 in taxes every year. 
It is an average of more than $68 for every registered voter. For 
this we get state government, county government, city government, 
and schools. Do we pay too much for what we get ? Nearly every one 
says we do, but why and where is the money wasted ? No one knows, 
exactly. We have no people's inspectors of government ; no regular 
examinations of public offices; no well-informed, unselfish, or non- 
partisan criticism of any department of the government ; no plain, 
comprehensive system of brief reports delivered to our citizens. We 
do not have these things for any office or department of our state, 



354 Appendix 

county, or city governments. Could a railroad or any other great 
business corporation be run successfully in this slipshod manner ? 

The legislative assembly is often spoken of on the street and in the 
press as though it was a sort of public enemy. The courts are by no 
means free from criticism. Every department of our Government 
is commonly believed to be extravagant and wasteful in the use of 
public money. And yet, with all this complaint, the citizens and 
taxpayers have no authentic information; no exact knowledge, nor 
any practical means of informing themselves about the doings of their 
public officers. A remedy for this evil must be found and applied. 

We hold that it would be economy for the taxpayers to furnish every 
registered voter, at frequent intervals and in readable form, the fullest 
possible authentic information concerning every office and every depart- 
ment of the state and local governments. Every voter should have 
knowledge and interest every day and all the time in his government ; 
a great interest for three or four weeks of a "hot campaign" once in two 
or four years is not enough, because he cannot possibly inform himself 
in so short a time. 

It is commonly believed that the average farmer and business man, 
and even the average private corporation, gets as much value in busi- 
ness for from 40 to 60 cents as our state and local governments get for 
$1. It is not unusual to hear a man of experience say, in speaking of 
the county, "I could take half the money and get better results if I 
could run it on business principles like I do my own affairs." 

There is experience to justify this opinion. In the period from Janu- 
ary to July, 1902, when the business that is now done by the county 
clerk's office in Multnomah County was done in three departments by 
an elected recorder of conveyances, an elected clerk of the circuit 
court, and an elected county clerk, the receipts were $13,968.50; 
expenses, $23,928.97. It cost $1.71 to do a dollar's worth of clerical 
work and get the money. In the period from January to June, 1908, 
with the three offices consolidated in one, the receipts were $31,355 ; 
the expenses were $20,200.51. It cost 64 cents for the county to do 
the work and get in one dollar under Mr. Field's management of the 
business of the three departments consolidated in one. 

Multnomah County is getting more work for 38 cents than it used to 
get under the old system for $1. The direct nomination law, by elimi- 
nation of the party bosses and of the machines, is in some degree 



Appendix 3$$ 

responsible for the saving, but we believe it is in equal degree due to the 
concentration of executive responsibility and power in the hands of 
one man. Of course we do not overlook the fact that the county clerk 
is a very able man and thoroughly loyal to the public interest. 

We believe the general principles of the executive department of our 
National Government furnish the best form yet devised for American 
use, and if applied to our state executive department, with some ad- 
ditions taken from the British plan, we think Oregon would get very 
much better results than from the present form. 

Because the people of Oregon now have the initiative, the referen- 
dum, and the recall, and thereby have supreme, direct, and effective 
control over all their public servants and the making of all but the 
national laws, there need be no fear that executive officers can destroy 
or reduce our political rights and liberties. We can protect our liber- 
ties for ourselves. 

As to public information. — We propose a board of three people's 
inspectors of government, to be elected by the people, and to be as 
nearly nonpartisan as judges of the supreme court. Let them edit 
an official gazette and mail it to every registered voter in the State. 
Let the gazette be devoted wholly to the science of government, but 
especially to its administration in the Oregon state and local govern- 
ments. Let it publish the inspectors' reports on every department and 
office of the state and local governments, general reports of chief offi- 
cers, letters from the people and the public servants and news of gov- 
ernment in other states and nations. It would cost about 60 cents 
per year for each registered voter. It should not accept commercial 
advertising. 

Legislator's right to question governor and cabinet. — Mem- 
bers of the legislature may question the governor and cabinet officers 
concerning any part of the administration of the government and exe- 
cution of the laws. Answers must be given. This is the parliamentary 
practice, and one of the results is that our American legislative white- 
washing investigation committees are practically unknown. 

Emergency and referendum on emergency measures. — The 
legislative assembly has abused its power to repeal initiative laws and 
use the emergency clause on bills. Our amendment would require 
three-fourths of all the members elected to vote for the emergency 
clause on a roll call separate from the passage of the bill ; it also allows 



356 Appendix 

the filing of a referendum petition against the bill ; also a three-fourths 
vote to amend or repeal any measure approved by vote of the people ; 
it also allows filing a referendum petition against a bill notwithstanding 
the emergency clause ; in that case the bill would be in operation until 
the next regular general election, when, if the people should vote "no," 
the bill would be repealed. These new limitations on the power of the 
legislature apply also to city councils. 

Logrolling. — We offer an amended oath of office pledging the 
members against the practice. An action is authorized by any ten 
citizen freeholders against any bill alleging that it was passed by log- 
rolling, or secret methods, and if the jury renders a verdict that they 
believe from the evidence the bill was passed by such prohibited 
schemes and trades, it cannot take effect unless it is approved by refer- 
endum vote of the people at the next general election. The complaint 
must be filed in the court within ten days after the bill is passed. 

The governor and his cabinet are given seats on the floor of both 
houses with the right to speak and introduce measures, and especially 
general appropriation bills for the maintenance of the state government 
and existing institutions. Very much of the logrolling is now centred 
about the appropriation bills. The foregoing, with the people's in- 
spectors on duty in each house and reporting to the people ; the open 
committee rooms ; longer term of six years for members ; the disso- 
lution power in the hands of the people, and election of persons for 
speaker of the house and president of the senate who are not members, 
and whose principal duty and power is to preside, we believe ought to 
greatly reduce the evil of logrolling and trading votes. 

Hasty legislation. — Another of the principal causes that justify 
criticism of the legislature is the hasty, crude, heedless, and uncon- 
sidered character of much of its work, especially the rush to pass bills 
in the last few days of the session. We think this evil will be greatly 
reduced by the following provisions : The long term of members with 
the experience thereby gained ; the annual sessions ; bills introduced 
after the tenth day of the session not to be passed at that session; 
the public committee meetings and hearings during the session as well 
as in the vacations, and written notice of meetings to every one who 
has notified the committee of a desire to be heard on the measure; 
the $10 deduction from any member's salary for every time he is not 
present at roll call. 



Appendix 357 

Annual salary for senators and representatives. — The 
State should not permit any citizen to serve in any office without 
reasonable wages. It is now deprived of all opportunities for legisla- 
tive services from many farmers, laborers, mechanics, school teachers, 
and others of Oregon's best and most thoughtful citizens. These 
men cannot aspire to the office of senator or representative without 
great sacrifices, because the wages are not sufficient to pay the legiti- 
mate and necessary expenses of the campaign and of living during the 
session. The wages should be sufficient to enable any person who 
earns $5 a day in his own business to serve and pay all necessary 
expenses and the wages of a substitute in his business at home, and 
have his own wages while he serves in the legislative work. For that 
reason we propose a salary of $350 a year. 

No gerrymandering. — We propose a system of proportional 
representation of parties and independents in the election of members 
of the legislature, combining general local distribution of the nomina- 
tions, with an accurate .allotment to each political party of a number 
of members which bears the same proportion to the whole number of 
senators and representatives that the votes of the party bear to the 
whole number of votes cast in the State. The plan is equally fair to 
all independent candidates. If this system had been in operation 
at the general election in 1908, and each of the political parties had cast 
the same number of votes in the different counties for representative in 
the legislative assembly that were cast for representatives in Congress, 
the distribution of seats would have been 37 to the Republicans, 16 
to the Democrats, 4 to the Socialists, and 3 to the Prohibitionists, and 
the same proportion of the seats in the state senate. The distribution 
of seats to the different counties would have been almost exactly as it 
was in 1908, but each party would have had its fair share for the State. 

Executive. — We suggest giving the governor the power to appoint 
and remove his cabinet and all subordinate officers through whom he 
must execute the laws. The President of the United States has this 
power for the nation and as to district attorneys and marshals. We do 
not require that his appointments or removals be confirmed by the sen- 
ate, because experience has proven that it takes a very large part of a 
senator's time, often gets up very ugly and bitter local contests, and 
is of no real value in securing competent officers. Thus the governor 
will be wholly responsible. Require the appointment of a state busi- 



3$8 Appendix 

ness manager, subject to the governor, whose duty it shall be to see 
that the dollars and cents business of the State is done on business 
principles. Allow the people of any county the right by recall petition 
and special election to order the recall of any sheriff or district attorney 
appointed to serve in their county. 

Governor may order referendum on his bills. — The recom- 
mendations of the President to Congress as well as of the governor to 
the legislature are often treated with contempt. The experience of 
President Roosevelt and of Governor Hughes are recent examples. 
Therefore we propose to take away the veto power and give the gov- 
ernor and cabinet seats on the floor of both houses ; give the governor 
the right to introduce measures, and especially the general appropria- 
tion bills for the maintenance of the state government and existing 
state institutions ; allow the governor and the cabinet officers to speak 
on administration measures and the governor the right to order the 
referendum on any measure he introduces which does not pass. If the 
legislature passes a bill for the same subject differing from the govern- 
or's, give him the right to order the referendum on both measures, so 
that the people may choose between them. The governor is not al- 
lowed to succeed himself. This will help him to give all his time to 
public business. 

Civil service. — Except the governor's cabinet, no appointed officer 
shall be transferred, promoted, or removed at any time for personal, 
political, or partisan reasons. The purpose is to have appointed public 
servants hold their positions as long as they are competent, efficient, 
and faithful, just as they do in private business. 

County government. — Elect a board of three directors. Require 
that they hire a business manager for the county and that he shall do 
all the business of the county under their supervision. Do not elect 
any other county officers except the county judge. Allow the county 
business manager to hold his office while his services are satisfactory 
to the board. Let his salary be in the discretion of the board, subject to 
reduction on referendum vote by the people of the county. The legisla- 
ture is not given power to change salaries of county officers. That 
is left to the county board of directors and the voters of the county. 

We believe we have briefly stated the important changes offered, 
without going into the details^ for which the measures must be care- 
fully studied. 



Appendix 359 

CREATION OF A BOARD OF PEOPLE'S INSPECTORS OF GOVERNMENT, ETC. 

A Bill for an act to create a board of people's inspectors of government ; 

to provide for the publication and circulation of an official gazette ; 

to fix the salaries and define the powers and duties of said board 

of inspectors, and making an appropriation. 

Be it enacted by the people of the State of Oregon : — 

Section i. Three inspectors of state and local government — 
Official gazette. — A board of three "people's inspectors of gov- 
ernment," which shall be their official title, is hereby established and 
by virtue of their office they shall be the editors of the Oregon Official 
Gazette. The official gazette shall be published by the State from the 
state printing office not later than the second Friday of every second 
month, beginning with January, a.d. 191 i, with extra numbers when 
necessary, and in such form as to be entitled to entry under the postal 
laws and transmission through the United States mails as second-class 
matter. 

Sec. 2 . Duty of inspectors to investigate. — It is the duty of the 
board of inspectors to have at least one of their number present at all 
times of every session in each house of the legislative assembly ; to be 
watchful for any defect or imperfection in the state and local systems 
of government ; to investigate the management of every public office 
and of every institution supported wholly or partly by public funds, 
and every department of the state and local governments, as often as 
may be necessary. They shall conduct all these inspections and in- 
vestigations and perform all the duties of their offices, and report 
through the gazette, solely for the information of the citizens, without 
motive or desire for personal or partisan advantage. 

Sec. 3. Duty of inspectors as editors of gazette. — The in- 
spectors shall publish in the gazette, without unnecessary delay, their 
own reports ; brief and comprehensive reports furnished by the gov- 
ernor concerning the affairs of the different departments of the state 
government; similar reports concerning the county government by 
the chief executive county officers ; similar reports for cities by the 
mayors; reports from local district officers that the editors may con- 
sider of local or general interest; letters and communications from 
citizens and public officers on all matters of common interest relating to 
government; letters and information concerning our National Gov- 



360 Appendix 

ernment and law-making and the action of our Representatives and 
Senators in Congress ; the results of important experiments and de- 
velopments in the science of government by other nations, States, 
counties, and cities ; all publications which may be required by law 
to be mailed to every registered voter, which publishing shall be a suffi- 
cient compliance with such laws ; other matters which they believe 
will advance the general welfare. If any citizen or officer shall 
offer a communication which the board does not consider of sufficient 
interest for publication, he may pay at reasonable column rates, to be 
fixed by the board, for the publication of not exceeding three columns 
in any issue. The board shall not publish any malicious, libelous, or 
personally abusive communications. The board shall so edit the 
gazette that only matters of general interest shall be published in the 
edition that is mailed to all voters, and that matters of local interest 
shall be included in the editions going only to the locality interested. 

Sec. 4. Subscribers to gazette — Who shall be considered. — 
The head of every family who is a registered voter, every registered 
voter who is not a member of a family, and every Oregon taxpayer shall 
be considered subscribers to the gazette, and it shall be mailed to them 
at public expense. The gazette shall not be a commercial enterprise 
nor a general newspaper, and its editors shall not seek to give the 
general news, nor accept commercial advertising. The subscription 
price to be paid by those who wish the gazette and are not Oregon 
registered voters or taxpayers shall be $1 per year, payable in advance. 
As nearly as practicable, the editors shall correct the list of addresses 
from month to month and sell printed copies thereof to any person at 
cost on demand. 

Sec. 5. Election of inspectors — Duty of legislature to 
provide for. — If this bill shall be approved by the people it shall 
be the duty of the legislative assembly to forthwith provide for the 
election of said three inspectors from the State at large. The method 
of election shall be such that any candidate who is the choice of so 
many as one-third of the electors of the State actually voting for in- 
spectors shall thereby be elected. The voter shall be authorized to 
write on his ballot the figure 1 opposite the name of the candidate who 
is his first choice, the figure 2 opposite the name of the candidate who 
is his second choice, and the figure 3 opposite the name of the candidate 
who is his third choice, and so on in the order of his preference for the 



Appendix 361 

said office of inspector. It is intended that, if practicable, every ballot 
shall be effective in the election of one candidate who is the personal 
preference of the elector who cast the ballot. The board shall be 
chosen at the regular general election in a.d. 191 2 to serve two years 
and at the regular general election in a.d. 1914, and thereafter said 
inspectors shall be chosen when the governor is elected and for the 
same term for which he shall be elected. 

Sec. 6. Salaries and appointment of first three inspectors. 
— Said inspectors shall receive a salary of $3,000, per annum and all 
necessary traveling expenses, payable quarterly. If this bill shall be 
approved by the people, within thirty days thereafter the Order of 
Grangers and Patrons of Husbandry of Oregon, the Federated Trades 
Convention of Oregon representing organized labor, and the assembled 
presidents of the boards of trade and chambers of commerce in Oregon 
may severally, for each organization, recommend to the governor the 
names of three persons for appointment to said office of inspector to 
serve until their successors are elected and qualified as provided herein. 
The governor shall appoint one of each three of the persons so recom- 
mended, if any. If either of such organizations shall fail within said 
time to recommend three persons for such office the governor shall 
immediately thereafter make an appointment without such recom- 
mendation. 

Sec. 7. Inspectors' authority, expenses, and appropriation. — 
The inspectors shall devote their time exclusively to the public service 
and the performance of their official duties. The bills for the expenses 
and salaries of said board and the bills for the publication of the gazette 
shall be audited by the secretary of state or state auditor and shall be 
paid from the general fund. The total amount to be paid for any 
year shall not exceed a sum equal to $1 for each registered voter in 
Oregon. Said inspectors shall have authority to demand the produc- 
tion for their examination of ail public books, documents, cash and 
securities in the possession or under the control of any public officer 
at all reasonable hours and without previous notice. The board is 
hereby authorized to expend such sums as may be necessary, not ex- 
ceeding $15,000 yearly for expert accountants and other assistance in 
making investigations. If such sum is not sufficient the board is 
hereby authorized to apply to the people, by initiative petition, for 
such amount as they believe they need. The board shall not apply to 



362 Appendix 

the legislative assembly for any appropriation. It is intended that 
these inspectors shall be independent of all other officers and powers 
except the sovereign people of Oregon; that they shall not receive 
official favors nor incur official obligations to any public servant nor 
any private citizen or corporation. 

SUGGESTED AMENDMENTS TO THE CONSTITUTION OF OREGON 

Article IV of the constitution of the State of Oregon shall be, and 
the same hereby is, amended to read as follows : — 

Article IV 

Sec. 1. Legislative authority. — The legislative authority of 
the State shall be vested in the legislative assembly, consisting of a 
senate and house of representatives, but the people reserve to themselves 
the power to propose legislative measures, resolutions, laws, and amend- 
ments to the constitution, and to enact or reject the same at the polls, 
independent of the legislative assembly, and also reserve power, at their 
own option, to approve or reject at the polls any act, item, section, 
or part of any resolution, act, or measure passed by the legislative 
assembly. 

Sec. 1 a. Initiative. — The first power reserved by the people is 
the initiative, and not more than 8 per cent, nor in any case more than 
50,000, of the legal voters shall be required to propose any measure by 
such petition, and every such petition shall include the full text of the 
measure so proposed. Initiative petitions for all but municipal legis- 
lation shall be filed with the secretary of state not less than four 
months before the election at which they are to be voted upon. If 
conflicting measures submitted to the people shall be approved by a 
majority of the votes severally cast for and against the same, the one 
receiving the highest number of affirmative votes shall thereby become 
law as to all conflicting provisions. Proposed amendments to the 
constitution shall in all cases be submitted to the people for approval 
or rejection. 

Sec. ib. Referendum. — The second power is the referendum, and 
it may be ordered on any measure or resolution passed by the legislative 
assembly, either by petition signed by the required percentage of the 
legal voters, or by the legislative assembly as other bills are enacted. 
Not more than 5 per cent, nor at any time more than 30,000, of the 



Appendix 363 

legal voters shall be required to sign and make a valid referendum 
petition. 

Sec. ic. Emergency. — If it is necessary for the immediate pres- 
ervation of the public peace, health, or safety that a law or ordinance 
shall become effective without delay, such necessity shall be stated in 
one section, and if upon yea-and-no vote three-fourths of all the 
members elected to each house or city council, as the case may be, shall 
vote on a separate roll call in favor of the measure going into instant 
operation because it is necessary for the immediate preservation of the 
public peace, health, or safety, such law shall become operative upon 
being filed in the office of the secretary of state. It shall be neces- 
sary to state in such section the facts which constitute the emergency. 
If a referendum petition be filed against such emergency measure, it 
shall be a law until it is voted upon by the people, and if it is then re- 
jected by a majority of those voting upon the question, such emergency 
measure shall be thereby repealed. No statute, ordinance, or resolu- 
tion approved by vote of the people shall be amended or repealed by the 
legislative assembly or any city council except by three-fourths vote 
of all the members elected. The provisions of this section apply to 
city councils. 

Sec. id. Local initiative and referendum. — The initiative and 
referendum powers of the people are hereby further reserved to the 
legal voters of each municipality and district as to all local, special, 
and municipal legislation of every character in or for their respective 
municipalities and districts. In case of laws chiefly of local interest, 
as the creation of new counties or of new or additional judges or other 
officers or offices, referendum by petition shall be for approval or re- 
jection by the people of the district interested. Cities and towns may 
provide for the manner of exercising the initiative and referendum 
powers as to their municipal legislation. Not more than 10 per cent 
of the legal voters may be required to order the referendum nor more 
than 1 5 per cent to propose any measure by the initiative in any city 
or town. 

Sec. ie. General provisions. — The filing of a referendum peti- 
tion against one or more items, sections, or parts of any act, legislative 
measure, resolution, or ordinance shall not delay the remainder of the 
measure from becoming operative. Referendum petitions against 
measures passed by the legislative assembly shall be filed with the 



364 Appendix 

secretary of state not later than ninety days after the final adjourn- 
ment of the session of the legislative assembly which passed the 
measure on which the referendum is demanded. Referendum peti- 
tions shall be filed in like manner on adjournment of the legislative 
assembly at any time for a period longer than ninety days.jjThe veto 
power of the governor or mayor shall not extend to measures initiated 
by or referred to the people. All elections on general, local, and spe- 
cial measures referred to the people of the State or any locality shall 
be had at the biennial regular general elections, except when the legis- 
lative assembly shall order a special election ; but counties, cities, and 
towns may provide for special elections on their municipal legislation 
proposed by their citizens or local legislative bodies. Any measure 
initiated by the people or referred to the people as herein provided 
shall take effect and become the law if it is approved by a majority 
of the votes cast thereon, and not otherwise. Such measure shall be 
in operation on and after the thirtieth day after the election at which 
it is approved. The style of all bills shall be "Be it enacted by the 
people of the State of Oregon," and of ordinances "Be it ordained by 
the people of" (name of municipality). The style of charter amend- 
ments shall be similar to that used for constitutional amendments. 
This section shall not be construed to deprive any member of the legis- 
lative assembly or of a city council of the right to introduce any meas- 
ure. The whole number of electors who voted for justice of the su- 
preme court at the regular election last preceding the filing of any 
petition for the initiative or for the referendum shall be the basis on 
which the number of legal voters necessary to sign such petition shall 
be counted. Petitions and orders for the initiative and referendum 
shall be filed with the secretary of state, or in municipal elections such 
other officers as may be provided by law. In submitting the same to 
the people he and all other officers shall be guided by the general laws 
until additional legislation shall be especially provided therefor. This 
section is self-executing, but legislation may be enacted especially to 
facilitate its operation. 

Sec. 2. Number of senators, representatives, and term of 
office. — The senate shall consist of 30 members, and the house of 
representatives of 60 members and no more. They shall be nominated, 
apportioned, and elected in such manner and from such districts as 
may be provided by law, but districts shall be composed of contiguous 



Appendix 365 

territory. The term of office for senators shall be six years, and the 
term of office for representatives shall be six years, both beginning 
with the general election of 191 2, at which time all such offices shall be 
vacant, and 30 senators and 60 representatives shall be chosen. The 
term shall begin the day next after their general election. 

Sec. 3. People may recall legislative assembly and elect 
new. — The people reserve the right to recall either or both houses of 
the legislative assembly, and at the same time to elect a new house or 
senate, or both, as the case may be. 

Sec. 3a. Petition for recall of legislative assembly — Spe- 
cial election. — If at any time a petition shall be filed with the secre- 
tary of state signed by a number of legal voters equal to not less than 
25 per cent of the whole number of electors who voted for justice of 
the supreme court at the last preceding general election, and such peti- 
tion shall demand the recall of the legislative assembly, or either house 
thereof , stating the reasons therefor in not more than two hundred words, 
the secretary of state shall immediately order a special general elec- 
tion throughout the State, to take place in not less than sixty nor more 
than ninety days from the date of filing said petition. 

Sec. 3b. Purpose of special election for recall of legislative 
assembly. — Such election shall be to decide whether the legislative 
assembly or the house against which the petition is filed shall be re- 
called, and also to choose the senators and representatives of a new 
legislative assembly, or of a new house or senate, as the case may be, 
if a majority of those voting vote for such recall. 

Sec. 3c. What shall be printed on recall special ballots. — 
There shall be printed on the ballots for such election, first, the usual 
forms and instructions to voters ; second, a statement of the reasons 
offered by the petitioners for said recall in not exceeding two hundred 
words ; third, a statement, if any is offered by the legislative assembly, 
of the reasons against said recall in not exceeding two hundred words ; 
fourth, the question and answers : — 

"Shall the legislative assembly, house of representatives, senate, as 
the case may be, be dissolved ? 

"Yes." 

"No." 

The names of candidates for senators and representatives shall be 
printed on the ballot in like manner as at the regular election, including 



366 Appendix 

the names of the sitting members who do not refuse to be candidates. 
If a recall petition shall be filed against one or more members for the 
same cause from the same nominating district, the election shall be in 
that district only unless the reason given for the recall petition is re- 
fusal to obey an instruction from the State. 
Sec. 3d. Legislative assembly recalled if majority vote yes. 

— If a majority of the whole number of the electors who vote on the 
question vote "Yes," the legislative assembly, or either house thereof, 
as the case may be, shall be thereby recalled and the newly elected 
senators and representatives shall take their seats in the new legisla- 
tive assembly to fill the unexpired term of the one recalled. If a 
majority vote "No," the sitting senators and representatives are 
thereby continued in office. 

Sec. 3c Filing recall petition suspends legislative functions 

— Exception. — The filing of such a recall petition shall operate as a 
complete suspension from office of all the senators and representatives 
against whom it is filed, and of all the powers of said legislative as- 
sembly, except as herein provided. Said legislative assembly shall not, 
nor any of its members, meet or pretend to do any business whatever, 
and shall have no power to meet or to do any business whatever, unless 
the returns of the special election as canvassed shall show that it, or 
the house against which the petition was filed, is continued in office 
by the people ; except only, that in case of emergency, caused by war, 
insurrection, or great national calamity, the governor may convene 
the members of the said legislative assembly in special session, to act 
on questions arising by reason of said emergency, but they shall have 
no power or authority to act on any other question or subject. This sec- 
tion is self-executing, but laws may be enacted to facilitate its operation. 

Sec. 4. How senators and representatives to be chosen. — 
Senators and representatives shall be chosen by the legal electors, by 
such method of proportionate representation of all the voters that, as 
nearly as may be practicable, any one-sixtieth of all the citizens of the 
State voting for one person for representative shall insure his election, 
and any one-thirtieth of the citizens of the State voting for one person 
for senator shall insure his election ; until otherwise provided by law 
the method shall be as follows : — 

Sec. 4a. Nominations — Petitions — Party name on pledges 
on ballots. — Candidates for the office of senator or representative 



Appendix 367 

shall be nominated in districts now provided for their election, but 
they shall be elected by the electors from the State at large. Each 
candidate's name shall be printed on the official ballot in the district 
or districts where he is nominated, but in no other. Any elector in 
any district may vote for a candidate in any other district by writing 
or sticking on his ballot the name and political party, position, or 
pledge of the candidate voted for. No candidate for nomination shall 
circulate his petition nor pay for its circulation outside of the nominat- 
ing district where he resides. Every candidate for senator or repre- 
sentative at the general election has the right to have printed with his 
name on the official ballot not exceeding twelve words to state his 
political party, position, or pledges to the people on any questions of 
public policy. Every qualified elector may vote for one candidate 
for representative and one candidate for senator in the legislative 
assembly. 

Sec. 4b. Count, canvass, and return of votes. — The votes for 
the election of senators and representatives in the legislative assembly 
shall be counted, canvassed, and returned in like manner as such votes 
are now counted, canvassed, and returned in the election of senators 
and representatives from districts composed of two or more counties. 

Sec. 4c. Number of votes necessary to insure members' 
election. — The whole number of votes cast in the State for all can- 
didates for representative shall be divided by sixty, being the number 
to be chosen, and the quotient will be the number of votes necessary 
to insure the election of one representative. 

Sec. 4d. Seats — How divided among party and independent 
candidates. — The whole number of votes received in the State by all 
the candidates of each party and by independent candidates for repre- 
sentative shall be severally divided by said quota of election; the 
quotients will be the number of representative seats to which each party 
is entitled, and that number of the party candidates who have received, 
each for himself the full quota or nearest to the full quota of voters, 
shall be thereby elected. Any independent candidate who receives 
for himself a quota of votes shall be thereby elected. The seat or 
seats which cannot be allotted to any party or independent candidates 
for full quotas shall be given to the several political parties or inde- 
pendent candidates having the highest remainders, in the order of such 
high remainders, until the sixty seats are filled. 



368 Appendix 

Sec. 4c Vote for senators divided by thirty for quota. — 
The votes for candidates for senators in the legislative assembly shall 
be treated in like manner as the votes for representatives, save only 
that the whole number of votes cast in the State for candidates for 
senators shall be divided by thirty to obtain the quota necessary to 
insure the election of a senator. This section is self-executing, but 
laws may be enacted to facilitate its operation. 

Sec. 5. Vacancies in legislative assembly. — How filled. — 
If any vacancy shall occur in the office of senator or representative in 
the legislative assembly, it shall be filled by seating the qualified candi- 
date from the same party as that of the retiring officer who received 
for himself nearer to the quota of votes than any candidate of his 
party who was not seated, except vacancies created by recall. 

Sec. 6. Qualifications of senators or representatives. — 
No person shall be a senator or representative who is not a citizen of the 
United States at the time of his election, nor unless he shall be at least 
21 years of age, and a resident of the State at least five years before 
the election. 

Sec. 7. Members' right of interpellation. — Every member 
shall have the right to question the governor or any officer of the 
cabinet concerning any act, plan, measure, or contemplated act or 
plan of the administration, and the governor or cabinet officer shall be 
obliged to answer without unnecessary delay, except in case that im- 
mediate answer in the opinion of the governor might be prejudicial to 
the public interest or the public service, and upon such statement the 
answer may be delayed until the danger is past. 

Sec. 8. When and what part of appropriations immediately 
available. — Appropriations for the maintenance of the state gov- 
ernment and all existing public institutions, and all institutions aided 
by state funds, not exceeding the amount of any previous appropria- 
tion for the same purpose, shall take effect and be available at once, 
but any increase in any such appropriation shall be subject to the 
referendum by petition, except in the emergency of war, insurrection, 
or great natural calamity. 

Sec. 9. Members — When free from arrest — Words uttered 
in debate. — Senators and representatives in all cases, except for 
treason, felony, or breaches of the peace, shall be privileged from arrest 
during the session of the legislative assembly, and in going to and re- 



Appendix 369 

turning from the same ; and shall not be subject to any civil process 
during the session of the legislative assembly, nor during the fifteen 
days next before the commencement thereof. Nor shall a member, for 
words uttered in debate in either house, be questioned in any other 
place. 

Sec. 10. Annual sessions of legislative assembly. — The ses- 
sions of the legislative assembly shall be held annually at the capital of 
the State, commencing at such dates as may be provided by law. 

Sec. 11. Election of officers — Judge of qualifications, etc. 
— Presiding officers not members. — Each house, when assembled, 
shall choose its own officers, judge of the election, qualifications and 
returns of its own members, determine its own rules of proceeding, and 
sit upon its own adjournment ; but neither house shall, without the 
concurrence of the other, adjourn for more than two days, nor to any 
other place than that in which it may be sitting. The presiding officers 
shall not be members nor hold any other office at the same time, and 
shall be chosen by their respective houses. They shall not appoint 
standing committees, and shall have no voice or vote on legislative 
business. They shall preside over the sessions of the body by which 
they are chosen, shall hold office during its pleasure, and shall have 
such powers as may be conferred upon them by their respective houses 
not contrary to the provisions of this article. 

Sec. 12. Quorum — Time for organization. — Two-thirds of 
each house shall constitute a quorum to do business, but a smaller 
number may meet, adjourn from day to day, and compel the attendance 
of absent members. A quorum being in attendance, if either house 
fail to effect an organization within the first five days thereafter, the 
members of the house so failing shall be entitled to no compensation 
from the end of the said five days until an organization shall have been 
effected. 

Sec. 13. Journal — When yeas and nays to be entered. — 
Each house shall keep a journal of its proceedings. The yeas and nays 
on any question, shall, at the request of any two members, be entered, 
together with the names of the members demanding the same, on the 
journal : Provided, that on a motion to adjourn, it shall require one- 
tenth of the members present to order the yeas and nays. 

Sec. 14. When sessions and committee meetings may be secret. 
— The doors of each house and all committees shall be kept open except 

2B 



370 Appendix 

only in such cases as in the opinion of either house require secrecy, 
but in every such case the yeas and nays shall be entered on the jour- 
nal. Committees may sit during vacation and shall be liberal in al- 
lowing public hearings on measures ; the chairman shall notify in writ- 
ing all persons who advise the committee of their desire to be heard on 
any measure in its charge. 

Sec. 15. Punishment of members. — Either house may punish 
its members for disorderly behavior, and may, with the concurrence 
of two-thirds, expel a member, but not a second time for the same 
cause. 

Sec. 16. Punishment of a person not a member. — Either house, 
during its session, may punish by imprisonment any person not a 
member, who shall have been guilty of disrespect to the house, by 
disorderly or contemptuous behavior in its presence, but such impris- 
onment shall not at any time exceed twenty-four hours. 

Sec. 17. General powers. — Each house shall have all powers 
necessary for a branch of the legislative department of a free and 
independent State. 

Sec. 18. Bills — Where to originate. — Bills may originate in 
either house, but may be amended or rejected in the other, except 
that bills for raising revenue shall originate in the house of representa- 
tives. 

Sec. 19. Reading of bills — Vote on final passage — Filed 
with secretary of state. — Every bill shall be read by sections, on 
three several days in each house, unless, in case of emergency, two- 
thirds of the house where such bill may be pending shall, by a vote of 
yeas and nays, deem it expedient to dispense with this rule; but 
the reading of a bill by sections on its final passage shall in no case be 
dispensed with, and the vote on the passage of every bill or joint reso- 
lution shall be taken by yeas and nays. Every measure, when finally 
passed, shall be filed in the office of the secretary of state. 

Sec. 20. Subject and title of act. — Every act shall embrace 
but one subject and matters properly connected therewith, which 
subjects shall be expressed in the title. But if any subject shall be 
embraced in an act which shall not be expressed in the title, such act 
shall be void only as to so much thereof as shall not be expressed in 
the title. 

Sec. 21. Act to be plainly worded. — Every act and joint reso- 



Appendix 371 

lution shall be plainly worded, avoiding, as far as practicable, the use 
of technical terms. 

Sec. 22. Mode of revision and amendment. — No act shall ever 
be revised or amended by mere reference to its title, but the act re- 
vised or section amended shall be set forth and published at full length. 

Sec. 23. What local and special laws prohibited. — The legis- 
lative assembly shall not pass special or local laws in any of the fol- 
lowing enumerated cases — that is to say : — 

1. Regulating the jurisdiction and duties of justices of the peace and 
of constables. 

2. For the punishment of crimes and misdemeanors. 

3. Regulating the practice in courts of justice. 

4. Providing for changing the venue in civil and criminal cases. 

5. Granting divorces. 

6. Changing the names of persons. 

7. For laying, opening, and working on highways, and for election or 
appointment of supervisors. 

8. Vacating roads, town plats, streets, alleys, and public squares. 

9. Summoning and impaneling grand and petit jurors. 

10. For the assessment and collection of taxes for state, county, 
township, or road purposes. 

11. Providing for supporting common schools, and for the preserva- 
tion of school funds. 

12. In relation to interest on money. 

13. Providing for opening and conducting the elections of state, 
county, or township officers, and designating the places of voting. 

14. Providing for the sale of real estate belonging to minors or other 
persons laboring under legal disabilities by executors, administrators, 
guardians, or trustees. 

15. When a general law can be made applicable. 

Sec. 24. Suits against the State. — Provision may be made by 
general law for bringing suit against the State, as to all liabilities 
originating after or existing at the time of the adoption of this con- 
stitution ; but no special act authorizing such suit to be brought, or 
making compensation to any person claiming damages against the 
State, shall ever be passed. 

Sec. 25. Majority necessary to pass a bill — Bill to be signed 
by presiding officers. — A majority of all the members elected to 



372 Appendix 

each house shall be necessary to pass every bill or joint resolution; 
and all bills and joint resolutions so passed shall be signed by the pre- 
siding officers of the respective houses. 

Sec. 26. Protest by member. — Any member of either house shall 
have the right to protest, and have his protest, with his reasons for 
dissent, entered on the journal. 

Sec. 27. What statutes public laws. — Every statute shall be 
a public law unless otherwise declared in the statute itself. 

Sec. 28. When act to take effect. — No act shall take effect 
until ninety days from the end of the session at which the same shall 
have been passed, except in cases of emergency, which shall be de- 
clared as provided in section ic of this article. 

Sec. 29. Compensation of members. — Members of the legislative 
assembly shall receive for their services an annual salary of $350, 
payable at the end of each regular session. Each member shall re- 
ceive the amount of necessary fares he shall actually pay in going to 
and returning from the place of meeting on the most usual route. 
The presiding officers of the legislative assembly shall receive $500 
per annum, with a member's allowance for travel. 

Sec. 30. Members not eligible to other offices. — No senator 
or representative shall, during the time for which he may have been 
elected, be eligible to any office the election to which is vested in the 
legislative assembly ; nor shall he be appointed to any civil office of 
profit which shall have been created, or the emoluments of which 
have been increased during such term, but this latter provision shall 
not be construed to apply to any officer elective by the people. 

Sec. 31. Oath of members — Pledge against logrolling. — 
The members of the legislative assembly shall, before they enter on 
the duties of their respective offices, take and subscribe the following 
oath of office or affirmation : — 

"I do solemnly swear (or affirm, as the case may be) that I will sup- 
port the Constitution of the United States and of the State of Oregon, 
and that I will faithfully discharge the duties of senator (or representa- 
tive, as the case may be) according to the best of my ability. I do 
further affirm and promise the voters of the State of Oregon that dur- 
ing my term of office in acting or voting as such officer upon any meas- 
ure I will always vote solely on my judgment that the bill or resolu- 
tion will or will not advance the general welfare and without reference 



Appendix 373 

to the vote, action, or caucus of members on that or any other meas- 
ure, and without any understanding (except my public pledges to the 
people or instructions from the people) in any form with any member 
or person that I will aid or be friendly to a measure in" which he is 
interested because he will or may be inclined to aid one in which I am 
interested." Such oath may be administered by the governor or a 
judge of the supreme court. 

Sec. 32. Time when bills may be passed — What bills not to 
be passed at the same session they are introduced. — when a 
bill is introduced it shall be placed upon the calendar and may be 
acted upon any time during the life of that legislative assembly, except 
that bills introduced after the tenth day of any session shall not be 
passed at that session, unless they are emergency measures. 

Sec. 33. Punishment for member failing to vote on roll call. 
— Ten dollars shall be deducted from the salary of any member for 
every time he fails to vote on a roll call unless excused by yea-and-nay 
vote of a majority of all the members of his house. 

Sec. 34. Clerks and stenographers for legislative assem- 
bly. — The presiding officer shall make requisition from day to day 
on the secretary of state or the state business manager for such clerical 
and stenographic assistance as his house may need. This shall not 
apply to the reading and calendar clerks. 

Sec. 35. Majority of members may call special session. — A 
majority of the members elected to each house may at any time unite 
in calling a special session of the legislative assembly. 

Sec. 36. Seats in each house for people's inspectors. — Seats 
and desks shall be provided on the floor of each house for the people's 
inspectors of government, if such shall be created by law. 

Sec. 37. Citizens' action against bill passed by trading or 
logrolling — Proceedings — Referendum. — Any ten citizen free- 
holders shall have the right to unite in bringing an action in the circuit 
court at the seat of government against any measure within ten days 
after it is passed by the legislative assembly, alleging that the same 
was passed by bargaining, trading, logrolling, or other forms of undue 
influence. Summons and a copy of the complaint shall be served upon 
the attorney-general and the presiding officers of both houses as other 
process is served. The attorney-general shall defend the action, but 
senators and representatives may employ assistant counsel. The case 



374 Appendix 

shall be advanced on the docket if necessary and tried within twenty 
days after the close of the session. The verdict of the jury shall be on 
preponderance of evidence. If the jury finds from the evidence that 
they believe the bill was passed by any undue influence, that verdict 
shall be filed with the secretary of state ; and as to such measure the 
verdict shall have the same effect as a petition for the referendum; 
said bill shall be referred to the people by the secretary of state for 
approval or rejection at the next regular general election. Senators, 
representatives, officers, and other persons may be subpcenaed and 
compelled to testify after the close of the session, but they shall not 
be prosecuted criminally or civilly for any action to which they shall 
testify. 

Sec. 38. Repeal of conflicting provisions. — Any provisions of 
the constitution and laws of Oregon in conflict with this amended article 
are hereby repealed in so far as they conflict herewith. 



Article V of the constitution of the State of Oregon shall be, and the 
same hereby is, amended to read as follows : — 

Article V 

Section i. Executive power — One term only — Qualifica- 
tions — Decision on tie election. — The chief executive power of 
the State shall be vested in the governor, who shall hold his office for 
the term of six years and shall not be eligible to succeed himself. The 
governor shall be elected by the qualified electors of the State in such 
manner as may be provided by law, at the regular general election 
A.d. 1914, and every six years thereafter. The legislative assembly shall 
pass upon the election returns and declare the result. Contested elec- 
tions for governor shall be determined by the legislative assembly in 
such manner as may be provided by law. The governor shall take 
his office on the first Monday after the organization of the legislature 
in January following the election. If two or more persons shall have 
an equal and the highest number of votes for governor, the two houses 
of the legislative assembly at the next regular session thereof shall 
forthwith in joint session by a majority vote proceed to elect one of 
said persons governor. The governor shall devote his time exclu- 
sively to the public service. 



Appendix 375 

Sec. 2. Who not eligible for governor. — No person except a 
citizen of the United States shall be eligible to the office of governor nor 
unless he shall have attained the age of 30 years and have been a resi- 
dent of the State of Oregon five years next preceding his election. Ex- 
cept as may be otherwise provided in this constitution, no person 
shall hold any other office and at the same time fill the office of governor. 

Sec. 3. Vacancy in office — Filled by legislative assembly. — 
In case of removal of the governor from his office or of his death, resig- 
nation, or inability to perform the duties of his office for any cause 
except a recall by the people, the secretary of state shall be governor 
until the office is filled by the legislative assembly, which shall forth- 
with convene and in joint session choose a governor by a majority 
vote, who shall hold the office until the next regular general biennial 
election, when the people shall elect a governor to fill the unexpired 
term, except when that is the regular election to choose the governor 
for a full regular term. 

Sec. 4. Governor commander in chief military and naval 
forces. — The governor shall be the commander in chief of the mili- 
tary and naval forces of this State and may call out such forces to 
execute the laws, to suppress insurrection, or to repel invasion. 

Sec. 5. Appoints sheriffs and district attorneys — Must 

TAKE CARE THAT LAWS ARE FAITHFULLY EXECUTED. — The governor 

shall take care that the laws of this State be faithfully executed. He 
shall be commander in chief of all the forces maintained to protect 
the State and enforce its laws. He shall appoint a sheriff and dis- 
trict attorney for each county at a total cost for salaries, including 
deputies, not exceeding that now paid in the State, until such time as 
an increase may be allowed by law. He shall have power to suspend 
or remove any officer he appoints and such suspension or removal shall 
not be subject to appeal ; but in every such case he shall file his order 
of suspension or removal with the secretary of state, and also the rea- 
sons therefor upon written demand of the person suspended or removed, 
or he may do so without such demand. All local officers appointed 
by the governor shall be subject to recall petition and a special election 
for their discharge by the people of their county or district in like 
manner as though they were elected. In case of such recall by elec- 
tion, the governor shall make another appointment, and shall not 
reappoint the recalled officer to any position. 



376 Appendix 

Sec. 6. Governor appoints cabinet officers — State auditor 
to be elected. — The governor shall appoint the attorney-general, the 
secretary of state, state treasurer, state printer, superintendent of 
public instruction, secretary of labor, and the state business manager, 
who shall constitute the cabinet, together with such other cabinet 
officers as may be provided by law. They shall hold office during the 
governor's pleasure. These officers shall perform such duties as may 
be required by this constitution and the general laws, or ordered by the 
governor. A state auditor shall be chosen by the legal voters of the 
State at the general election in November, a.d. 191 2, to serve two 
years. At the general election in November, a.d. 1914, a state auditor 
shall be elected for a term of six years. The auditor's regular term of 
office shall be six years and his duties, powers, and salary shall be fixed 
by law. No person who has not had at least five years' experience as 
accountant or auditor shall be eligible or allowed to file his petition as a 
candidate for that office. 

Sec. 7. Salaries of governor and cabinet officers. — The 
governor and the members of the cabinet shall receive such annual 
salaries as may be allowed by law, but no such salary shall be increased 
by a law with the emergency declaration. The state printer's salary 
shall be $4000 a year, until otherwise provided by law. They shall be 
citizens of the United States and of Oregon and shall have resided in 
the State not less than five years before their appointment, except that 
the governor shall not be limited to citizens of Oregon in employing the 
state business manager. 

Note. — Judges of the supreme court are allowed by law $4,500 a 
year, governor $5,000, secretary of state $4,500, state treasurer $4,500, 
attorney-general $3,600, superintendent of public instruction $3,000, 
commissioner of labor statistics $3,000 a year. The state printer does 
not receive a salary, but is supposed to make a great deal more than 
any other officer in the State. 

Sec. 8. State business manager — Duties — Salary. — The 
state business manager, subject always to the governor's approval, 
shall so organize, consolidate, supervise, direct, and manage the busi- 
ness departments and affairs of the State (these being such as deal 
largely with money and money's worth) as to obtain the highest pos- 
sible efficiency in the State's service and full value for the public money. 
He shall give counsel as to business matters when called upon by the 



Appendix 377 

chief officers of counties and other local governments. He shall advise 
the governor in writing of all possible opportunities and practical plans 
for the betterment of the public service, business, and the methods and 
laws of its administration, both for the state and local governments. 
The governor is authorized to make such rules and regulations as may- 
be expedient to obtain these results, subject always to the constitution 
and laws of Oregon, and the decisions of the courts that any such rule 
or regulation is in contravention of the constitutional rights and liber- 
ties of citizens. The state business manager shall perform such other 
duties as may be required by law or ordered by the governor. The 
governor is authorized from time to time to allow and agree to such 
salary for the state business manager as will be sufficient to get the best 
man for the position, but subject always to reduction by the people 
on referendum vote. 

Sec. 9. Boards and commissions abolished — Governor re- 
sponsible — May make rules for conduct of business. — From 
time to time, and before the first day of September, 191 1, the governor 
shall complete taking over the control of the organization and man- 
agement of all state institutions, state business, and public functions 
now wholly or partly governed or managed by boards or commissions. 
He may retain and continue such boards and commissions as he desires 
as counselors and advisers, but he shall have full power to manage and 
organize and shall be wholly and alone responsible to the people for 
results. No new boards or commissions shall be created by law to as- 
sume or have any power or responsibility for the faithful execution 
of any laws of the State, unless the law creating such new board or com- 
mission shall first be approved by the people on referendum vote. That 
the governor may be enabled promptly and successfully to perform the 
duties required by this article, all statutes creating such boards, com- 
missions, and state institutions, or that provide for their management, 
are hereby declared to have only the force of rules and regulations, 
which the governor is authorized to change from time to time during 
recess of the legislative assembly until the end of the year 191 2, in 
accordance with the provisions of section 8 of this article, as to rules and 
regulations for the management of state business. The board of rail- 
road commissioners shall be excepted from the provisions of this article. 

Sec. 10. Governor's power to appoint and remove officers 
and employees — Reasons for. — Appointment, transfer, promotion, 



378 Appendix 

or removal of any officer or employee because of personal preference or 
dislike or for political or party advantage, or because of membership 
in a party, or for any reasons of partisanship is hereby prohibited. All 
the governor's cabinet officers except the state business manager are 
excepted from this section. On every appointment, transfer, promo- 
tion, or removal of a public officer or employee the officer making the 
same shall certify that he makes it wholly for the good of the public 
service, and not because of personal preference, friendship, favor, or 
dislike, nor because of or for the advantage of any political party, 
faction, or association; nor on account of membership or political 
activity in any political party or organization. 

Sec. ii. Governor and cabinet seats in both houses legis- 
lative ASSEMBLY — DUTIES — GOVERNOR MAY ORDER REFERENDUM 

in certain cases. — The governor and his cabinet shall have seats 
on the floor of both houses of the legislative assembly, and when that 
body is sitting it shall be his duty and that of the members of the cabinet, 
but not necessarily together, to attend at least one session of each 
house each week. The governor shall have the right to introduce 
any measure or resolution in the house of representatives. It shall 
be his duty to introduce the appropriation bills for the maintenance of 
the state government and of existing state institutions. These meas- 
ures shall be known as administration measures. The governor and 
members of the cabinet shall have the right to speak and to move for 
administration measures. The governor may appeal from the action 
or failure of the legislative assembly to act on any administration 
measure to a referendum vote of the people, and he is hereby author- 
ized at his option to order the referendum in such cases at the next 
ensuing regular general election, that the voters may choose between 
the governor's and the legislature's measure. The governor and the 
members of his cabinet shall, when in attendance on either house, an- 
swer all questions that may be put to them in writing by members 
concerning the administration of the government or any department 
thereof, save that when such answers, if made public, might give in- 
formation that would be prejudicial to the public interest upon the 
governor's statement of that fact the answer may be withheld until 
the emergency is past. 

Sec. 12. Governor may convene legislature. — The governor 
may, on extraordinary occasions, convene the legislative assembly by 



Appendix 379 

proclamation, and shall state to both houses when assembled the 
purpose for which they shall have been convened. 

Sec. 13. Governor transacts business with officers — May 
require information. — He shall transact all necessary business with 
the officers of government and may require information in writing 
from them upon any subject relating to the duties of their various 
offices. 

Sec. 14. Reprieve, pardons, etc. — He shall have power to grant 
reprieves, commutations, and pardons, after conviction, for all offenses 
except treason, subject to such regulations as may be provided by law. 
Upon conviction for treason he shall have power to suspend the exe- 
cution of the sentence until the case shall be reported to the legislative 
assembly at its next meeting, when the legislative assembly shall 
either grant a pardon, commute the sentence, direct the execution of 
the sentence, or grant a further reprieve. He shall have power to 
remit fines and forfeitures, under such regulations as may be prescribed 
by law ; and shall report to the legislative assembly at its next meet- 
ing each case of reprieve, commutation, or pardon granted and the 
reasons for granting the same ; and also the names of all persons in 
whose favor remission of fines and forfeitures shall have been made and 
the several amounts remitted. 

Sec. 15. Power to fill certain vacancies by appointment. — 
When, during the recess of the legislative assembly, a vacancy shall 
happen in any office, the appointment to which is vested in the legis- 
lative assembly ; or when at any time a vacancy shall have occurred 
in any other state office, or in the office of judge of any court, the gov- 
ernor shall fill such vacancy by appointment, which shall expire when 
a successor shall have been elected and qualified. 

Sec. 16. Commissions. — All commissions shall issue in the name 
of the State, shall be signed by the governor, sealed with the seal of the 
State, and attested by the secretary of state. 

Sec. 17. When this amendment takes effect — Repeal of 
conflicting provisions. — If this amendment shall be adopted, the 
secretary of state, state treasurer, state printer, attorney-general, 
superintendent of public instruction, labor commissioner, whose title 
shall be secretary of labor, who shall be chosen at the general election 
in November, a.d. iqio, shall be members of the governor's cabinet 
during the time for which they shall be elected ; but in all other re- 



380 Appendix 

spects this amendment shall be in force from the thirtieth day after 
its adoption by the people. Any provisions of this constitution or of 
the laws of Oregon in conflict herewith are hereby repealed in so far 
as they conflict with this amendment. 



Article VI of the constitution of the State of Oregon shall be, and 
the same hereby is, amended to read as follows : — 

Article VI 

Section 1. County business — Boards of directors — Com- 
pensation — Term of office — Recall. — The legal voters of each 
county shall choose a board of three directors of county business to 
serve for four years. Their official title shall be the "Board of direc- 
tors for the county of ." The first election of directors shall be 

at the November election, a.d. 191 2, for four years; thereafter their 
term of office shall be six years, beginning with the board to be elected 
in November, 19 16, subject always to recall petition. More than one 
of the members may be included in one recall petition if the causes of 
complaint are the same. The legislative assembly shall forthwith pro- 
vide by law for the election of the board from the county at large. 
The method of election shall be such that any candidate who is the 
choice of so many as one-third of the electors of the state actually 
voting for directors shall thereby be elected. The voter shall be au- 
thorized to write on his ballot the figure 1 opposite the name of the 
candidate who is his first choice, the figure 2 opposite the name of 
the candidate who is his second choice, and the figure 3 opposite the 
name of the candidate who is his third choice, and so on in the order 
of his preference, for said office of director. It is intended that, if 
possible, every ballot shall be effective in the election of one candidate 
who is the personal preference of the elector who cast the ballot. The 
directors shall receive such compensation as is now paid to the county 
commissioners until that shall be changed by the voters of the 
county. 

Sec. 2. Duty of directors — Power — County business mana- 
ger. — It is the duty of the board of directors to plan and order all 
the public affairs and interests of the county. The board shall make 
all expedient rules and regulations for the successful, efficient, and 



Appendix 381 

economic management of all county business and property, subject 
to the constitution and laws, and subject also to the vote of the people 
of the county. The board shall employ a county business manager, 
who shall be the chief executive of the county. He shall be a citizen 
of the United States, but the board shall not be limited to Oregon in 
seeking a man for the position. 

Sec. 3. Salary of county business manager and other employ- 
ees — Fixed by directors, subject to vote of people. — The 
salary of the county business manager and of all other county em- 
ployees shall be in the discretion of the board of directors except in so 
far as the same may be fixed from time to time by the legal voters of 
the county. No salaries of county officers shall be fixed by the legis- 
lative assembly. All subordinate officers and employees of the county 
shall be employed by the county business manager, except only that 
the board shall either audit the county bills or appoint a county audi- 
tor. The county business manager shall not be a member of the board. 
The county judge, justices of the peace, and constables, so long as the 
law provides for such officers, shall not be within the jurisdiction of 
the county business manager, nor of the board of directors, and their 
compensation shall be as now provided by law until changed by vote 
of the people of the county. 

Sec. 4. County and other local officers and employees. — 
State, district, county, township, precinct, and city officers and em- 
ployees shall be such as may be provided by law, and vacancies shall 
be filled in such manner as may be required by law. 

Sec. 5. When this amendment takes effect. — If this amend- 
ment shall be adopted, the county officers who are in office or are elected 
at the November election, 19 10, may perform the duties of their offices 
until the end of that two-year term, but they shall do so under the 
direction of the county business manager. This amendment shall be 
in force as to all matters save the election, employment, and discharge 
by the county business manager of such officers as may be in office or 
elected by the people at the general election, 19 10. 

Sec. 6. Repeal of conflicting provisions. — All provisions of 
the constitution and laws of Oregon in conflict with this article are 
hereby abrogated in so far as they conflict herewith. 

Article VII of the constitution of the State of Oregon shall be, and 
the same hereby is, amended to read as follows : — 



382 Appendix 

Article VII 

Section 1. Judicial power of State — In whom vested. — 
The judicial power of the State shall be vested in one supreme court 
and in such other courts as may from time to time be created by law. 
The judges of the supreme and other courts shall be elected by the 
legal voters of the State or of their respective districts for a term of 
six years, and shall receive such compensation as may be provided 
by law, which shall not be diminished during the term for which they 
are elected. 

Sec. 2. Courts and judicial system. — The courts, jurisdiction, 
and judicial system of Oregon, except so far as expressly changed by 
this amendment, shall remain as at present constituted until otherwise 
provided by law. But the supreme court may take original jurisdic- 
tion in mandamus, quo warranto, and habeas corpus proceedings. 

Sec. 3. Legislative assembly not to declare emergency on 

CERTAIN BILLS — SALARIES OF JUDICIAL OFFICERS. — The legislative 

assembly shall not declare an emergency on any bill creating or abol- 
ishing any judicial office, or increasing the number of judges, or in- 
creasing or diminishing the salaries, or changing the term of any judi- 
cial officer. 

Sec. 4. Appeals — Decision of supreme court. — Upon appeal 
of any case to the supreme court, either party may have attached to 
the bill of exceptions the whole testimony, the instructions of the 
court to the jury, and any other matter material to the decision of the 
appeal. If the supreme court shall be of opinion, after consideration 
of all the matters thus submitted, that the judgment of the court 
appealed from was such as should have been rendered in the case, such 
judgment shall be affirmed, notwithstanding any error committed 
during the trial ; or if, in any respect, the judgment appealed from should 
be changed, and the supreme court shall be of opinion that it can decide 
on what judgment should have been entered in the court below, it shall 
direct such judgment to be entered in the same manner and with like 
effect as decrees are now entered in equity cases on appeal to the 
supreme court. 

Sec. 5. Opinions of supreme court — What shall be printed. 
— Only such opinions of the supreme court shall be printed as decide 
new questions of law, or the meaning and construction of the statutes 



Appendix 383 

and the constitution of Oregon and of the United States, or that reverse 
former decisions of the court. 

Sec. 6. Jurors — Grand jury. — In civil cases three-fourths of 
the jury may render a verdict. The legislative assembly shall so pro- 
vide that the most competent of the permanent citizens of the county 
shall be chosen for jurors ; and out of the whole number in attendance 
at the court, seven shall be chosen by lot as grand jurors, five of whom 
must concur to find an indictment. But provision may be made by 
law for drawing and summoning the grand jurors from the regular 
jury list at any time, separate from the panel of petit jurors, and for 
the sitting of the grand jury during vacation as well as session of the 
court, as the judge may direct. No person shall be charged in any 
circuit court with the commission of any crime or misdemeanor defined 
or made punishable by any of the laws of this State, except upon indict- 
ment found by a grand jury: Provided, however, That any district 
attorney may file an amended indictment whenever an indictment has, 
by a ruling of the court, been held to be defective in form. 

Sec. 7. Official delinquencies. — Public officers shall not be 
impeached; but incompetency, corruption, malfeasance, or delin- 
quency in office may be tried in the same manner as criminal offenses, 
and judgment may be given of dismissal from office, and such further 
punishment as may have been prescribed by law. 

Sec. 8. Oath of office. — Every judge of the supreme court, be- 
fore entering upon the duties of his office, shall take and subscribe, and 
transmit to the secretary of state, the following oath : — 

"I, , do solemnly swear (or affirm) that I will support the 

Constitution of the United States, and the constitution of the State of 
Oregon, and that I will faithfully and impartially discharge the duties 
of a judge of the supreme and circuit courts of said State, according 
to the best of my ability, and that I will not accept any other office, 
except judicial offices, during the term for which I have been elected." 



BALLOT TITLES FOR THE INITIATIVE AND 

REFERENDUM MEASURES IN OREGON, 

ELECTION OF NOVEMBER 8, 1910. 



Women's taxpaying suffrage amend- 
ment, granting to taxpayers, regard- 
less of sex, the right of suffrage. 

Vote YES or NO. 



300. 



Yes. 



35,270 



301. 



No. 



59,o6s 



An act authorizing the purchase of a 
site for and the construction and 
maintenance of a branch insane asy- 
lum to be located, in the discretion of 
the board of trustees of the Oregon 
State Insane Asylum, at or within 
five miles of either of the following 
cities, to-wit : Baker City, Pendleton, 
or Union, in Eastern Oregon, to be 
called "The Eastern Oregon State 
Hospital." 

Vote YES or NO. 



302. 



Yes. 



50,134 



303- 



No. 



41,504 



An act to elect, on the first Monday in 
June, 191 1, delegates to a constitu- 
tional convention, to be held on the 
second Monday in October, 191 1, for 
revising the Constitution of the State, 
and providing for submission of the 
proposed Constitution, so revised, to 
the legal voters of the State for adop- 
tion or rejection on the first Monday 
in April, 1912. 

Vote YES or NO. 



304- 



Yes. 



23,143 



305- 



No. 



59,974 



For amendment of Sections 6 and 7, Ar- 
ticle IV, of the Constitution of this 
state, to provide a separate district 
for the election of each State Senator 
and each State Representative. 

Vote YES or NO. 



306. 



Yes. 



24,000 



307. 



No. 
2C 



For an amendment of Section 32, Ar- 
ticle I, of the Constitution of Oregon, 
by omitting the words, "and all taxa- 
tion shall be equal and uniform," and 
inserting in lieu thereof, the words, 
"taxes shall be levied and collected 
for public purposes only, and the 
power of taxation shall never be 
surrendered, suspended, or contracted 
away." 

Vote YES or NO. 



308. 



Yes. 



37,619 



309. 



No. 



40,172 



For amendment of the Oregon Constitu- 
tion, Article IX (XIX) authorizing 
the creation of railroad districts and 
the purchase and construction of 
railroads, or other highways by the 
State, counties, municipalities, and 
railroad districts, creation of liens 
upon property or levying taxes for 
the payment of the same. 

Vote YES or NO. 



310. 



Yes. 



32,844 



311. 



No. 



46,070 



For amendment of Section 1 of Article 
IX of the Constitution of the State 
of Oregon, directing a uniform rule of 
taxation "except on property specifi- 
cally taxed," authorizing the levy 
and collection of taxes for State pur- 
poses ^ and for county and other 
municipal purposes upon different 
classes of property, and apportioning 
State taxes among the several coun- 
ties as county obligations. 

Vote YES or NO. 



312. 



Yes. 



31,629 



54,252 313. 
385 



No. 



41,692 



3 86 



Ballot Titles 



An act providing for the payment of 
$1000 annually to the Judge of the 
Eighth Judicial District, by Baker 
county, in addition to the annual 
salary of $3000 received by him from 
the State. 

Vote YES or NO. 



314- 



Yes. 



13,161 



315. 



No. 



71,503 



A bill for an act to create the County of 
Nesmith out of a portion of the north- 
ern part of Douglas county and the 
southern part of Lane county; pro- 
viding for its organization, fixing the 
salaries of the officers thereof, and for 
adjusting finances between the three 
counties. 

Vote YES or NO. 



316. 



Yes. 



22,866 



3i7. 



No. 



60,951 



A bill for a law to provide for the per- 
manent support and maintenance of 
Oregon Normal School at Monmouth, 
Polk county, Oregon, by levying an 
annual tax of one-twenty-fifth of a 
mill on the dollar upon all the taxable 
property within the State of Oregon. 
Vote YES or NO. 



318. 



Yes. 



50,191 



319. 



No. 



40,044 



A bill for a law creating the County of 
Otis, Oregon, out of territory now 
included in the counties of Harney, 
Malheur and Grant, providing for its 
organization and for the adjustment 
of finances and transferring of records 
between the several counties affected 
by the proposed law. 

Vote YES or NO. 



320. 



321. 



Yes. 



No. 



17,426 



62.016 



A bill for a law to annex a portion of the 
northern part of Clackamas county, 
Oregon, to Multnomah county, Ore- 
gon, and providing for transcribing 
and transferring the records of the 
territory proposed to be annexed, and 
for adjustment of finances between 
the two counties. 

Vote YES or NO. 



322. 



Yes. 



16,250 



323. 



No. 



69,002 



A bill for an act to create the County of 
Williams out of a portion of Lane and 
Douglas counties, Oregon ; providing 
for its organization ; fixing the salaries 
of the officers thereof ; and for adjust- 
ment of finances between the three 
counties. 

Vote YES or NO. 



324- 



Yes. 



14,508 



325- 



No. 



64,090 



For constitutional amendment provid- 
ing for the people of each county to 
regulate taxation and exemptions 
within the county, regardless of con- 
stitutional restrictions or State stat- 
utes, and abolishing poll or head tax. 
Vote YES or NO. 



326. 



Yes. 



44,i7i 



327. 



No. 



42,127 



For constitutional amendment giving to 
cities and towns exclusive power to 
license, regulate, control, suppress, 
or prohibit the sale of intoxicating 
liquors within the municipality. 

Vote YES or NO. 



328. 



329- 



Yes. 



No. 



53,32i 



5o,779 



Ballot Titles 



387 



A bill for a law requiring protection for 
persons engaged in hazardous em- 
ployment, denning and extending the 
liability of employers, and providing 
that contributory negligence shall not 
be a defense. 

Vote YES or NO. 



33o. 



Yes. 



56,258 



33i. 



No. 



33,943 



A bill for an act to create the County of 
Orchard out of the northeastern por- 
tion of Umatilla county, Oregon ; pro- 
viding for its organization ; fixing the 
salaries of the officers thereof; and 
for adjustment of the finances between 
the two counties. 

Vote YES or NO. 



332. 



Yes. 



:5,664 



333- 



No. 



62,712 



A bill for an act to create the County of 
Clark out of the northern portion of 
Grant county, Oregon ; providing for 
its organization; fixing the salaries 
of the officers thereof ; and for adjust- 
ment of finances between the two 
counties. 

Vote YES or NO. 



334- 



Yes. 



15,613 



335- 



No. 



61,704 



A bill for a law providing for the perma- 
nent support and maintenance of the 
Eastern Oregon State Normal School 
at Weston, Umatilla county, Oregon, 
by levying an annual tax of one- 
twenty-fifth of a mill on the dollar 
upon all the taxable property within 
the State of Oregon. 

Vote YES or NO. 



336. 



337- 



Yes. 



No. 



40,898 



46,201 



A bill for a law to annex a portion of the 
territory in the eastern part of Wash- 
ington county, Oregon, to Multno- 
mah county, Oregon, and providing 
for a transcript of the records of the 
territory annexed to be made and 
recorded in Multnomah county. 

Vote YES or NO. 



338. 



Yes. 



14,047 



339- 



No. 



68,221 



A bill for a law providing for the perma- 
nent support and maintenance of the 
Southern Oregon State Normal School 
at Ashland, Jackson county, Oregon, 
by levying one-twenty-fifth of a mill 
on the dollar on all taxable property 
in the State of Oregon therefor, and 
limiting instruction therein to those 
subjects promoting efficiency in the 
art of teaching. 

Vote YES or NO. 



340- 



Yes. 



38,473 



34i. 



No. 



48,655 



An amendment of Section 35 of Article I 
of the Constitution of the State of 
Oregon, prohibiting the manufacture 
and sale of intoxicating liquors and the 
traffic therein within the State of 
Oregon, on and after the first day of 
July, a.d. 191 1, excepting for medici- 
nal, scientific, sacramental, and me- 
chanical purposes. 

Vote YES or NO. 



342. 



Yes. 



43,540 



343- 



No. 



61,221 



A bill for a law to prohibit, prevent, and 
suppress the manufacture, sale, pos- 
session, exchange, or giving away of 
intoxicating liquors within the State 
of Oregon, except for specific pur- 
poses ; to govern the shipment of the 
same, declaring what is intoxicating 
liquor within the State of Oregon, 
and providing penalty for violation of 
the act. 

Vote YES or NO. 



344- 
345- 



Yes. 

No. 



42,651 
63,564 



3 88 



Ballot Titles 



A bill for an act creating a Board oi 
Commissioners of nine members to 
examine the subject of employees' 
indemnity for injuries sustained in the 
course of their employment, and to 
prepare a measure to be presented to 
the legislature governing the same, 
and report to the Governor of the 
State on or before the ist day of 
February, ign, and appropriating 
$1000 for purposes of the act. 

Vote YES or NO. 



346- 



Yes. 



32,224 



347- 



No. 



5i,7i9 



A bill for an act prohibiting the taking of 
fish from the waters of Rogue River, 
or of any of its tributaries, by any 
means, except with hook and line, 
commonly called angling. 

Vote YES or NO. 



348. 



Yes. 



49,712 



349- 



No. 



33,397 



A bill for a law to create the County of 
Deschutes, Oregon, out of the north- 
west portion of Crook county, 
Oregon; providing for its organiza- 
tion, the salaries of its officers ; and 
settlement of the finances between the 
proposed county and Crook county. 
Vote YES or NO. 



35o. 



Yes. 



17,592 



351. 



No. 



60,486 



A bill for an act providing for the crea- 
tion of new towns, counties and muni- 
cipal districts (excepting drainage and 
irrigation districts of less than one 
county) or changing the boundaries 
of existing counties by a majority 
vote of the legal voters of the terri- 
tory within the boundaries of the 
proposed municipality, and providing 
that 30 per cent of the number of legal 
voters within such territory may peti- 
tion for the creation of a new munici- 
pal corporation, and providing for the 
appointment of officers and adjust- 
ment of the finances of the new cor- 
poration, and the method of procedure 
to create the same. 

Vote YES or NO. 



352. 
353- 



Yes. 
"No7 



37,i2Q 
42,327 



An amendment of Section 10 of Article 
XI of the Constitution of the State of 
Oregon, permitting counties to incur 
indebtedness beyond $5000 to build 
permanent roads, and providing that 
debts for permanent roads may be 
incurred on approval of a majority 
of those voting on the question. 

Vote YES or NO. 



354- 



Yes. 



5i,275 



355- 



No. 



32,906 



A bill for a law to amend the direct pri- 
mary law by extending its provisions 
to presidential nominations, allowing 
voters to designate their choice for 
their party candidate for President 
and Vice-President ; for direct nomi- 
nation of party candidates for presi- 
dential electors ; for election by party 
voters of delegates to their party 
national nominating conventions, each 
voter voting for one delegate; for 
payment of delegates' actual travel- 
ing expenses, not exceeding two hun- 
dred dollars for each delegate, and 
extending the publicity rights of 
candidates in the State nominating 
and general election campaign books. 
Vote YES or NO. 

356. Yes. 43,353 

357- No. 41,624 

A bill for a law creating a board of 
people's inspectors of government, 
providing for publication of an official 
State magazine, said board to be the 
editors and publishers thereof, the 
printing to be done by the State 
Printer; all books of public officials 
subject to examination by the board 
of inspectors and reports thereof pub- 
lished in said magazine ; all expenses 
of the board for printing and publica- 
tion of magazine salaries, etc., not to 
exceed one dollar for each registered 
voter in the State ; the magazine shall 
be mailed every two months to each 
registered voter at public expense. 
Vote YES or NO. 



358. 



359- 



Yes. 



No. 



29,955 



52,538 



Ballot Titles 



389 



For an amendment of Article IV, Con- 
stitution of Oregon, increasing initia- 
tive, referendum, and recall powers 
of the people; restricting use of 
emergency clause and veto power on 
State and municipal legislation; re- 
quiring proportional election of mem- 
bers of Legislative Assembly from the 
State at large, annual sessions, and in- 
creasing members' salaries and terms 
of office; providing for election of 
Speaker of House and President of 
Senate, outside of members, restrict- 
ing corporate franchises to twenty 
years; providing ten dollars penalty 
for unexcused absence from any roll 
call, and changing form of oath of 
office to provide against so-called leg- 
islative logrolling. 

Vote YES or NO. 



360. 
361. 



Yes. 



No. 



37,031 



44,366 



For amendment to the Constitution of 
the State of Oregon, providing for 
verdict by three-fourths of jury in 
civil cases, authorizing grand juries 
to be summoned separate from the 
trial jury, permitting change of judi- 
cial system by statute, prohibiting 
retrial where any evidence to support 
verdict; providing for affirmance of 
judgment on appeal notwithstanding 
error committed in lower court, direct- 
ing Supreme Court to enter such 
judgment as should have been entered 
in lower court; fixing terms of Su- 
preme Court ; providing judges of all 
courts be elected for six years, and 
increasing jurisdiction of Supreme 
Court. 

Vote YES or NO. 



362. Yes. 



363. No. 



44,538 



39,399 



INDEX 



Adams, John, on meaning of word 
"democracy," p. 27. 

Amendments, constitutional, evolution of 
in states, p. 18 ; by initiative and refer- 
endum, see Initiative and Referendum. 

Arizona, debate on admission of, pp. 55 
ff. ; initiative and referendum provi- 
sions, pp. 23 ff . ; recall provisions pro- 
posed by constitutional convention, 
pp. 244 f . ; recall provisions stipulated 
by Congress, pp. 263 f . ; resolution 
for admission, pp. 256 ff. ; veto of 
constitution, pp. 245 ff. 

Arkansas, initiative and referendum 
amendment, p. 180. 

Australian ballot, p. 11. 

Ballot, increase in complexity of, p. 15; 
effect of recall on, p. 68. 

Bicameral system in cities, p. 10. 

Bills, drafting of, p. 33. 

Blackstone on woman's position, p. 13. 

Bonner v. Belsterling, pp. 337 ff. 

Bradford, Gamaliel, criticism of legisla- 
ture, p. 7. 

Bryce, James, state politics, p. 14. 



California, adopted constitutional 

amendments, initiative and referen- 
dum, pp. 184 ff . ; recall, pp. 264 ff. 
Cases cited, see Judicial Decisions. 
Chamberlain, Senator, on recall of 

judges, pp. 60 ff . 
Choate, Rufus, on independence of 

judges, p. 67. 
Colorado, initiative and referendum 

constitutional amendment adopted, 

pp. 181 ff. 
Commisson government, cause of 

growth, p. 10; in Iowa, pp. 280 ff. ; 

in New Jersey, pp. 285 ff. Federal constitution, see Constitution 

Constitution, federal, power of minority Federalist, The, on meaning of "democ- 

under, p. 64; ratification of, p. 15; racy," pp. 26 ff. 

reverence for, p. 25. I Federal judiciary, see Judiciary. 

391 



Constitutional convention (federal), de- 
bate on meaning of word "republi- 
can," p. 25; Dickinson on suffrage, 
P- 13- 

Constitutionality of initiative and refer- 
endum, pp. 29 ff., 291 ff. 

Constitutions, limitations on power of 
legislatures in, p. 6; ratification of, 
PP- 15, 17- 

County government, proposed Oregon 
plan, pp. 358 ff., 380 ff. 

Courts, Taft on delays of, p. 117. 

Cullop, Rep., on recall of judges, p. 62. 

Declaration of Independence, p. 17. 

Delegates to National Convention, 
expenses of, in Oregon, p. 99. 

Democracy, compared with Old World 
conditions, p. 14 ; Hamilton on, p. 14 ; 
humanizing influences of, p. 14; suc- 
cess of, p. 15. 

"Denver Municipal Facts," p. 114. 

Des Moines, Iowa, commission govern- 
ment law, pp. 280 ff. 

Dickinson on suffrage, p. 13. 

Direct legislation, see Initiative. 

Direct primary, cause of agitation for, 
p. 12; importance of, p. 104; presi- 
dential, pp. 101 ff., 119 ff. ; presiden- 
tial in Oregon, pp. 95 ff. 



Emergency clause in acts, abuse and 
proposed remedy in Oregon, p. 106. 

Executive, confidence in, p. 7 ; early fear 
of, p. 3 ; power, in Oregon proposed 
plan, pp. 349 ff., 357, 374 ff.; veto 
power of, in New York, p. 3 ; without 
veto power in North Carolina, p. 7. 

Ex parte Wagner, pp. 330 ff. 



39 2 



Ind 



ex 



Gazette, proposed in Oregon, pp. 113 ff., 

US, 360. 
Gerrymander, proposed plan to prevent, 

in Oregon, p. 357. 
Goodnow, F. J., on the function of the 

judiciary, p. 60. 
Gorham, on republican government, 

p. 27. 
Government, plan for efficient, p. 69. 
Governor, see Executive. 
Governors, cause of popularity, p. 7. 

Hamilton, Alexander, on republican 

government, pp. 28, 65. 
Harlan, Justice, on judicial legislation, 

p. 62. 
Harmon, Judson, supporter of Ohio 

plan, pp. 274 ff. 
House of Commons, p. 108. 

Idaho, initiative and referendum amend- 
ment proposed, pp. 200 ff . ; recall 
amendment proposed, p. 271. 

Illinois, public opinion law, pp. 238 ff. 

Impeachment, p. 63. 

Initiative, competing measure by legis- 
lature, p. 37; definition of, p. 20; 
drafting of bills, p. 34 J illustrations of, 
pp. 94 ff . ; use of, as compared with 
referendum, p. 47 ; see Initiative and 
Referendum. 

Initiative and Referendum, Arizona pro- 
visions, pp. 230 ff . ; Arkansas provi- 
sions, p. 180; California provisions, 
pp. 184 2.; Colorado provisions, 
pp. 181 ff . ; commission government 
provisions, pp. 28 ff. 287 ff . ; consti- 
tutionality of, pp. 29 ff., 304 ff. ; 
effect on minority legislation, p. 40; 
effect on representative government, 
pp. 22 ff . ; experience limited, p. 13; 
extent of adoption, pp. 1 ff . ; forms of, 
pp. 20 ff . ; Idaho proposed provisions, 
pp. 205 ff . ; Iowa provisions for, in 
commission government, p. 281 ; lack 
of danger in, p. 69 ; map of, see fron- 
tispiece ; Maine provisions, pp. 162 ff . ; 
Michigan provisions, pp. 178 ff . ; 
Montana provisions, pp. 126 ff. ; 
municipal government provisions, 
pp. 274 ff. ; Nebraska proposed pro- 
visions, pp. 195 ff. ; Nevada provisions, 



pp. 120 ff. ; New Jersey provisions 
for, in commission government, pp. 
287 ff. ; North Dakota proposed 
provisions, pp. 210 ff. ; number of 
signatures, p. 37 ; Oklahoma provi- 
sions, pp. 137, 139, 159, 161 ; 
opinions of founders of government 
as to, p. 29; Oregon provisions, pp. 
79, 81 ff. ; publicity of bills, p. 41 ; 
solicitors for signatures, p. 36; South 
Dakota provisions, pp. 70, 73 ; 
Utah provisions, p. 78 ; vote under, 
pp. 38 ff. ; in Oregon, p. 43 ; in South 
Dakota, p. 49; Washington proposed 
provisions, pp. 191 ff . ; Wisconsin 
proposed provisions, pp. 206 ff. ; 
Wyoming proposed provisions, pp. 
201 ff. 

Inspector of government, proposed Ore- 
gon plan, pp. 114, 359 ff- 

Interpellation, in proposed Oregon plan, 
p. 368. 

Iowa commission government law, 
pp. 280 ff. 

Jefferson on republican government, 

P- 344- 

Journalism, p. 115. 

Judicial decisions, Bonner v. Belsterling, 
PP- 337 ff- 1 case pending in United 
States Supreme Court, p. 310. Ex 
parte Wagner, pp. 330 ff . ; Kadderly 
v. City of Portland, pp. 304 ff . ; 
Kiernan v. City of Portland, pp. 314 
ff. ; Luther v. Borden, pp. 291 ff. ; 
State v. Pacific States Telephone and 
Telegraph Co., pp. 310 ff- 

Judicial legislation, Harlan on, p. 
62. 

Judiciary, advantages in the Oregon 
plan, p. 117; debate in Congress, 
pp. 55 ff. ; federal, pp. 65, 68; 
Goodnow on, p. 60 ; Harlan on, p. 62 ; 
independence of, p. 67 ; proposed 
Oregon plan, pp. 382 ff. ; recall of, 
pp. 55 ff. ; Roosevelt on, p. 66. 

Jury, in Oregon, p. 117. 

Kadderly v. City of Portland, pp. 304 ff. 
Kentucky, abuses by legislature in, p. 5. 
Kiernan v. City of Portland, pp. 31, 
314 ff- 



Index 



393 



Legare, Rep., on the judiciary, p. 56. 

Legislation, judicial, p. 62 ; proposed 
Oregon plan to prevent hasty legisla- 
tion, p. 112; requirements of, p. 33. 

Legislature, abuses by, in Kentucky, p. 5 ; 
constitutional limitations on power of, 
pp. 5 ff . ; contest with the convention, 
p. 4; effect of Australian ballot on, 
pp. 11 ff. ; history of decrease of confi- 
dence in, pp. 3 ff . ; lack of judgment of 
members of, pp. 48, 62 ; New York 
legislatures of igio and 191 1, and New 
York Times on, p. 8 ; proposed Oregon 
plan, pp. 108, 362 ff . ; reasons for 
lack of confidence in, pp. 12 ff. 

Lincoln, Abraham, on the judiciary, 
P- 55- 

Littleton, Martin W., on recall of 
judges, pp. 58 ff. 

Logrolling, proposed Oregon plan to 
prevent, pp. 113, 356, 373. 

Luther v. Borden, pp. 29 ff., 293 ff . 

Madison, James, on representative gov- 
ernment, pp. 26 ff. 

Maine, initiative and referendum amend- 
ment adopted, pp. 162 ff . ; sample 
ballot, 1910, p. 162. 

Michigan, initiative and referendum con- 
stitutional provisions, pp. 178 ff. 

Missouri, initiative and referendum 
amendment adopted, pp. 168 ff. 

Montana, initiative and referendum 
constitutional provisions, pp. 126 ff. 

Municipal government, pp. 9 ff. ; initia- 
tive and referendum in, pp. 274 ff. 

"Municipal Report," San Francisco, 
p. 114. 

National convention, delegates to, under 
Oregon plan, p. 99. 

Nebraska, initiative and referendum 
amendment, pp. 195 ff. 

Nevada, initiative and referendum provi- 
sions, pp. 121 ff. ; proposed recall 
amendment, p. 272. 

New Jersey, commission government 
law, pp. 285 ff. 

New Mexico, amendment scheme pro- 
posed by Congress, pp. 258 ff. ; joint 
resolution for admission, pp. 256 ff. ; 



proposed provisions, pp. 234 ff . ; veto 

of constitution, pp. 245 ff. 
New York, power of veto in executive, 

P- 3- 
New York City, Board of Estimate and 

Apportionment, p. 10. 
New York Evening Post, on necessity for 

an Official Gazette, p. 115. 
New York Times, on New York legisla- 
ture of 1911, p. 8. 
Nominations, see Direct Primary. 
North Carolina, veto power, p. 7. 
North Dakota, proposed amendments 

for initiative and referendum, pp. 

210 ff. ; for recall, pp. 210, 221 ff. 

Official publications, "Denver Municipal 
Facts," p. 114; Oregon publicity 
pamphlet, p. 94 ; Oregon Gazette, pro- 
posed, pp. 113 ff., 360 ff. ; "Municipal 
Report," San Francisco, p. 114. 

Ohio, statute for initiative and referen- 
dum in cities, pp. 274 ff. 

Oklahoma, constitutional provisions for 
initiative and referendum, pp. 137 ff . ; 
elaborating acts, pp. 139, 153, 161 ; 
Ex parte Wagner, pp. 330 ff. 

Oregon, initiative and referendum provi- 
sions, pp. 79 ff., 81 ff . ; judiciary 
system, p. 107 ; jury procedure, p. 117 ; 
Kadderly v. City of Portland, pp. 
304 ff . ; Kiernan v. City of Portland, 
pp. 314 ff. ; political results of reforms, 
p. 50 ; presidential primary, pp. 95 ff . ; 
publicity pamphlet, pp. 41, 94 ff. ; 
ballot titles, 1910, pp. 384 ff. ; State v. 
Pacific States Telephone and Tele- 
graph Co., pp. 310 ff. ; vote on meas- 
ures since 1904, p. 42 ; U'Ren's pro- 
posed plan, — county government, 
PP- 358, 380 ff., executive functions, 
PP- 357, 374 fi\, Gazette, p. 360, 
inspectors of government, pp. 114, 
359 ff., judiciary, pp. 382 ff., pre- 
vention of abuse of emergency clause, 
p. 112, prevention of gerrymander, 
P- 357. prevention of hasty legisla- 
tion, p. 112, prevention of logrolling, 
pp. 113, 356, and 373, punishment 
for legislators' failure to vote, p. 373, 
Speaker not member of House, p. 112. 

Owen, Senator, on recall of judges, p. 62. 



394 



Index 



Pickett, Rep., on the judiciary, p. 56. 
Popular election, theory of, p. 53. 
President, Oregon plan for, nomination 

pp. 99 ff- 

Presidential direct primary, pp. 95 ff., 
101 ff., 119 ff. 

Primaries, see Direct Primary. 

Proportional representation, a preventa- 
tive of the gerrymander, p. 357. 

Proposed Oregon plan, see Oregon. 

Publications, see Official. 

Publicity pamphlet, in Oregon, pp. 41 ff ., 
94 fl. 

Public opinion law in Illinois, p. 238. 

Randolph, on what is representative 

government, p. 27. 
Ratification of constitutions, pp. 15 and 

17- 

Recall, and the short ballot, p. 54; 
Arizona proposed provision, pp. 244 ff . ; 
Arizona provision inserted by Con- 
gress, pp. 263 ff . ; California provi- 
sion, pp. 264 ff . ; commission govern- 
ment plan in Iowa, pp. 280 ff. ; com- 
mission government plan in New 
Jersey, pp. 285 ff. ; constitutionality 
of, pp. 337 ff • ; debate in Congress on, 
pp. 55 ff. ; effect on ballot, p. 68; 
efficiency of, with long term, p. 108; 
Idaho proposed provision, p. 271; 
Iowa commission government pro- 
visions, pp. 280 ff. ; judges, pp. 55 ff., 
245 ff . ; danger in, considered p. 69 ; 
Legare on, p. 56; Littleton on, 
p. 58; movement for, pp. 52 ff. ; 
Nevada proposed provision, p. 272; 
New Jersey commission government 
provisions, p. 285 ; North Dakota 
proposed provisions, pp. 210 ff., 
221 ff. ; Oregon provisions, p. 242; 
Pickett on, p. 56 ; Roosevelt on, p. 66 ; 
Taft's veto message, pp. 245 ff. 

Referendum, definition of, p. 20; sec 
Initiative and Referendum. 

Republican government, defined in The 
Federalist, pp. 25 ff. ; evolution of, p. 3 ; 
failure in the early state and mu- 
nicipal governments, pp. 3 ff., 9 ff. ; 
initiative and referendum under, 
pp. 24 ff. ; opinions of Madison, Ran- 
dolph, Gorham, Wilson, and Adams 



on, pp. 26 ff. ; practice of, p. 32; 
theory of, p. 32; The Federalist on, 
pp. 25 ff. 
Roosevelt, Theodore, on the recall, p. 66. 

Sample ballots, Maine, p. 162; Oregon, 
p. 79. 

San Francisco, "Municipal Report," 
p. 114. 

Saunders, Rep., on the recall, p. 65. 

Short ballot, necessity for, p. 54. 

South Dakota, experience with initiative 
and referendum, p. 49; amendment 
providing for initiative and referen- 
dum, p. 70; elaborating law, state- 
wide, p. 71; elaborating law, local, 

pp. 73 ff- 

Speaker, powers of in Oregon proposed 
plan, p. 112. 

State v. Pacific States Telephone and 
Telegraph Co., pp. 310 ff. 

Statutory law, comparison with constitu- 
tional law, p. 19. 

Suffrage, effect of its extension, pp. 12 ff. ; 
Dickinson on, p. 13; opinion of 
founders of the government on, p. 13. 

Taft, W. H., on judicial procedure, 
p. 117 ; recall veto, pp. 245 ff. 

Texas, Bonner v. Belsterling, pp. 337 ff. ; 
statute for party initiative, p. 240. 

U'Ren, W. S., see Oregon, proposed 
plan for, pp. 349 ff. 

Utah, initiative and referendum amend- 
ment adopted, p. 78. 

Veto power of executive, in New York, 
p. 3 ; in North Carolina, p. 7. 

Vote in Oregon, p. 42. 

Voters, interest of, pp. 37 ff . ; judgment 
of, p. 48. 

Washington, initiative and referendum 

amendment proposed, pp. 191 ff. 
Wilson, Woodrow, author of New Jersey 

plan, pp. 285 ff. 
Wisconsin, initiative and referendum 

amendment proposed, pp. 206 ff. 
Wyoming, initiative and referendum 

amendment proposed, pp. 201 ff. 



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