{"1": {"fulltext": "", "height": "3818", "width": "2422", "jp2-path": "referenduminamer00ober_0001.jp2"}, "2": {"fulltext": "LIBRARY OF CONGRESS.\\nCliap. Copyrio-ht No.\\nShelf ,,.U_i_.0 2-^3\\nUNITED STATES OF AMERICA.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0002.jp2"}, "3": {"fulltext": "", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0003.jp2"}, "4": {"fulltext": "", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0004.jp2"}, "5": {"fulltext": "f", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0005.jp2"}, "6": {"fulltext": "", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0006.jp2"}, "7": {"fulltext": "THE\\nEEFERENDUM IN AMERICA\\nTOGETHER\\nWITH SOME CHAPTERS ON THE HISTORY OF THE\\nINITIATIVE AND OTHER PHASES OF POPULAR\\nGOVERNMENT^ IN TH ^UNITED STATES\\nBY\\nELLIS PAXSON OBERHOLTZER, Ph. D.\\nSOMETIME FELLOW IN POLITICAL SCIENCE IN THE UNIVERSITY OF PENNSYLVANIA.\\nAuthor of\\nLaw Making- by Popular Votey The Relations Between the Government and the\\nNewspaper Press in the German Empire Etc.\\nNEW YORK\\nCHARLES SCRIBNER S SONS\\n1900", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0007.jp2"}, "8": {"fulltext": "45001\\nL.ibrku y of Con\u00c2\u00abr\u00c2\u00ab\u00c2\u00ab\u00c2\u00ab\\nhwo turns HtCEJiCO\\nSEP 8 1900\\nSECONP COPY.\\nDetiverflrf to\\nmm DIVISION,\\nSEP 18 1900\\n69976\\nCopyright, igoo, by\\nEllis Paxson Oberholtzer", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0008.jp2"}, "9": {"fulltext": "PREFACE\\nThe names, the initiative and the referendum, have been\\nknown, of course, to a few students of government in this\\ncountry and England for many years. It is, however, within\\nonly a very short time that these terms have conveyed a\\nmeaning even to otherwise intelligent and well informed\\nmen. The governments of the Swiss cantons were little un-\\nderstood by foreigners and it was not until the system of re-\\nferring laws to popular vote was introduced into the practice\\nof the Confederation that the subject began to claim anything\\nlike general consideration in the English speaking world.\\nAs for myself, I cannot remember that very much that was\\ndefinite was known of this interesting democratic institution\\nprior to the appearance of a popularly written work on the\\nSwiss Confederation in 1889 by Sir Francis O. Adams, long\\nthe British Minister at Berne, and Mr. C. D. Cunningham.\\nThis book stated discussion in this country, and it soon came\\nto be recognized that law-making by the people was also no\\nstrange thing in the United States. Mr. James Bryce re-\\nferred to the subject in a chapter in The American Com-\\nmonwealth and during the ten years past this feature of the\\nSwiss and American political systems has become familiar\\nto a constantly widening circle of Americans.\\nOur own experience with the referendum was brought to\\nthe notice of readers in university circles by the publication\\nin 1 89 1 of my essay on Law Making by Popular Vote, by\\nthe American Academy of Political and Social Science, which\\nwas followed in 1893 by a somewhat more detailed treatment\\nof the subject in a Monograph on the Referendum, included\\nin the publications of the University of Pennsylvania, Poli-\\ntical Economy and Public Law Series. These studies, though", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0009.jp2"}, "10": {"fulltext": "VI PREFACE\\nappealing necessarily to a rather narrow interest were so\\nkindl} received by students of political institutions in this\\ncountry, England and France that it has encouraged me after\\nthese seven years to return to the subject in the present work.\\nAlthough my earlier studies regarding the referendum\\nhave furnished the frame for some of the chapters of the pres-\\nent volume every sentence, I think, is new and. many of the\\nfacts are from sources which were then but barely tapped. I\\ncannot flatter myself with the hope that such a recital will\\nbe interesting reading to every one, but I have made an effort\\nto keep it from being too dry and insipid to the general\\ntaste.\\nIn seven years very great advances have been made in the\\ndevelopment of the direct principle in law-making not only\\nin this but also in other lands. Mr. Bryce, Mr. W. E. H.\\nLecky, Prof. A. V. Dicey, Mr. A. L. Lowell, Mr. E. L. God-\\nkin and many other writers on constitutional subjects have\\ncarefully and attentively noted these manifestations in our\\npolitical life and indeed in all countries where representative\\ngovernment has been tested and its weaknesses have been re-\\nvealed the system of law-making by direct popular vote has\\ncome to claim a large share of public interest.\\nThe question of introducing the referendum into Belgium\\nwas seriously discussed during the recent constitutional con-\\ntroversy which preceded and accompanied the revision of the\\norganic law of that kingdom. More recently it has engrossed\\npublic attention in Australia in connection with the move-\\nment to unite and federate the various Australian colonies.\\nCoincidently the subject has rapidly gained a place for it-\\nself in Socialist and Labor party platforms in Europe and\\nAmerica. In the United States the demand that the people\\nshould have a larger share in the making of the laws has\\nspread over a great area and through many strata of the\\npopulation. In most of the Western States the referendum\\nhas been taken up with zeal by the advocates of radical\\nsocial reforms in the belief that it is only the representative\\nsystem which stands between them and the realization of", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0010.jp2"}, "11": {"fulltext": "PREFACE vii\\ntheir ideals. Seeing the hght first in the poHtical program\\nof the Farmers AUiance the referendum made its way\\ninto the platforms of the so-called Peoples Party which\\npolled a very large popular vote until its principles, the\\nreferendum with the rest, were transferred almost bodily to\\nthe platforms of the Democratic party. Not a few societies\\nand leagues exist for the purpose of advancing this reform,\\nin the East as well as in the West, and there are not many\\nparts of the country where the referendum is now a strange\\nname even to the common man. That the education of the\\npeople respecting such a subject is, in a way, a gain in a\\ndemocracy it is not possible to doubt, and it leads one to hope\\nthat a question so vitally afTecting our constitutional system\\nmay be still more deeply examined into so that a true idea\\nmay be secured as to the worth of the referendum in contrast\\nwith the older representative type of government which is\\nthe heritage of the Anglo-Saxon race. If, in this work, I shall\\nsucceed in doing ever so little to make the issue clearer in\\nthe minds of those to whom the book may come, I shall feel\\nit an abundant recompense for my somewhat tedious labors\\namong the law books of the American States.\\nIt should be explained that the first two chapters of this\\nwork are the result of a study undertaken long ago in an-\\nother connection when I had hoped that the engagements\\nof life would permit me to complete a constitutional history\\nof the State of Pennsylvania, in the preparation of which\\nI had made more than a beginning. I think, however, that\\nit can not be wholly inappropriate to incorporate these chap-\\nters in this volume since they illustrate some phases of\\npopular government in America of which we all have need of\\nbeing occasionally reminded. These initial chapters will\\nserve, I hope, as an historical background for those which\\nfollow, and will tend, perhaps, to a better understanding of\\nsome developments in the political experience of the United\\nStates of a later time. Lest in these chapters I should be\\naccused of partisanship against Dr. Franklin and in favor of\\nJohn Adams, which is a fate that has been met by not a few", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0011.jp2"}, "12": {"fulltext": "viii PREFACE\\nwriters before me, I wish in advance to disclaim any such\\nintention of prejudice. The student who looks for his sources\\nin regard to this subject will find many of the most valuable\\nof them in John Adams Works and Mr. Adams theories\\nhave found their justification in the course of later events\\nwhile Dr. Franklin s were discredited long ago. There is\\nno desire on the part of this author to take away anything\\nfrom Franklin s glory in any direction or to make his figure\\nappear in any other than an historically correct light. The\\nhistorian has accorded him a high place among his compeers\\nand my only aim here has been to investigate the course of his\\nlife as it bears upon political science, in which respect he was,\\nI think, a mistaken adviser of his fellow men.\\nI wish sincerely to thank my preceptors and friends at the\\nUniversity of Pennsylvania, under whose inspiration this\\nwork was begun, while I was still a student in that institu-\\ntion, for their interest and advice during the progress of\\nthese studies. I desire particularly to name Prof. Edmund\\nJ. James, the President of the American Academy of Political\\nand Social Science, earlier of the University of Pennsylvania,\\nbut now of the University of Chicago Prof. Simon N. Pat-\\nten, of the University of Pennsylvania, and Prof. John Bach\\nMcMaster, of the University of Pennsylvania.\\nI wish, too, to acknowledge the great courtesy of the of-\\nficers of the Pennsylvania Historical Society and of the Law\\nAssociation of Philadelphia, whose valuable collections I\\nhave constantly referred to while engaged in the preparation\\nof these chapters.\\nELLIS P. OBERHOLTZER.\\nPhiladelphia^ August, 1900.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0012.jp2"}, "13": {"fulltext": "CONTENTS\\nCHAPTER I\\nPAGE\\nThe Interplay of French and American Thought in the Eight-\\neenth Century I\\nCHAPTER H\\nThe Downfall of Franklin s Government in Pennsylvania 45\\nCHAPTER HI\\nThe Rise of the Constitutional Convention and the Decline of\\nthe Legislature 69\\nCHAPTER IV\\nThe Referendum on Entire Constitutions 99\\nCHAPTER V\\nThe Amendment of Constitutions by Conventions 128\\nCHAPTER VI\\nThe Amendment of Constitutions by the Legislative Method.... 142\\nCHAPTER VII\\nThe Referendum on Statutes of General Operation within the\\nState when the Vote of the People is Authorized by the\\nState Constitution 173\\nCHAPTER VIII\\nThe Referendum on Statutes of General Operation within the\\nState when no Authorization for the Vote is Contained in the\\nConstitution 200\\nCHAPTER IX\\nThe Local Referendum Bills Affecting the Scope and Form of\\nthe Local Governments 218\\nix", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0013.jp2"}, "14": {"fulltext": "CONTENTS\\nCHAPTER X\\nPAGE\\nThe Local Referendum Loan Bills and Financial Proposals 241\\nCHAPTER XI\\nThe Local Referendum Loan Bills and Financial Proposals\\nContinued) 279\\nCHAPTER XH\\nThe Local Referendum Local Option Liquor Laws and Vexed\\nQuestions 286\\nCHAPTER Xni\\nThe Local Referendum Is It Constitutional 311\\nCHAPTER XIV\\nThe Referendum on City Charters 335\\nCHAPTER XV\\nThe Initiative in America 368\\nCHAPTER XVI\\nThe Referendum vs. the Representative System 390", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0014.jp2"}, "15": {"fulltext": "THE\\nREFERENDUM IN AMERICA", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0015.jp2"}, "16": {"fulltext": "", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0016.jp2"}, "17": {"fulltext": "The Referendum in America\\nCHAPTER I\\nTHE INTERPLAY OF FRENCH AND AMERICAN THOUGHT IN\\nTHE EIGHTEENTH CENTURY\\nThe leaven of political unrest which pervaded the popula-\\ntions of both Europe and America in the latter half of the\\neighteenth century, was responsible for a number of peculiar\\nresults. In all the forms, suggested and actual, at this time,\\nhowever, popular government does not seem to have passed\\nthrough the phase of allowing the people to vote directly by\\nyeas and nays upon their laws, or even upon their constitu-\\ntions, though we find evidences of this in respect of the latter\\ncase, in two of the New England States, and somewhat later\\nin France in the Revolutionary Constitutions of that fate-\\nful period when institutions and traditions in that country\\nwere being swept from their moorings in a storm of revolt\\nfrom which the whole of Europe barely made its escape.\\nThe influence which J. J. Rousseau exerted upon th.e\\nprogress of political events in America, has lately been made\\nthe subject of an interesting examination by Prof. Jellinek,\\nof Heidelberg, and the results arrived at have the effect of\\nreversing some pretty well-grounded opinions on this point.^\\nHe attempts to show that the tendency, at this time, was\\nAdoption and Amendment of Constitutions in Europe and America,\\nby Chas. Borgeaud, Hazen s translation, New York, 1895, pp. 199, 200;\\nLecky, Democracy and Liberty, 1896, Vol. I, p. 277.\\nSee Jellinek, Die Erklarung der Menschen-und Buergerrechte, Leip-\\nzig, 1895.", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0017.jp2"}, "18": {"fulltext": "2 THE REFERENDUM IN AMERICA\\nfrom America to France, rather than in the other direction.\\nIn so far as the Bills of Rights in the various State Constitu-\\ntions^ are concerned, beginning with Virginia s, the case is\\nprobably well made out, and it would appear, quite a long\\ntime ago. There is not a particle of doubt that the French\\nDeclaration of the Rights of Man was helped to its concrete\\nform by the American Declarations of Rights, but it would\\nbe a serious mistake were we altogether to disregard Rous-\\nseau s influence in this connection. Certainly the play of\\nideas of one country upon those of the other was at least\\nmutual, and knowing this, as we do, it becomes an interesting\\nfield of historical study. It is a period of the highest impor-\\ntance in the constitutional experience of America and France.\\nIn the Contrat Social, Rousseau brought to expression sen-\\ntiments that millions of men w^ere beginning to feel. As the\\nphilosopher of equality, of a social system in which age, sex.\\nproperty, knowledge, were of little weight in comparison with\\nthe demands of nature, fantastically worked out and cata-\\nlogued in an a priori way, he was the spokesman for great\\nnumbers of people. Taking men such as they are, and laws\\nsuch as they may be made, Rousseau planned his scheme\\nof government, and yet to a degree beyond any other writer\\nof his time, he it was, perhaps, who took men not as they\\nwere, but as they were not.\\nIn the state in which the system of the NaHtrrecht was ex-\\nemplified in its perfect form, the people were to assemble and\\nsanction their own laws. Jean Jacques gives us his views on\\nthis point in terms not to be mistaken The sovereign\\nhaving no other force but the legislative power, acts only by\\nthe laws and the laws being only the authentic act of the\\ngeneral will (volonfe generate), the sovereign can never act\\nbut when the people are assembled. Some will perhaps think\\nthat the idea of the people assembling is a mere chimera, but\\nif it is so now, it was not so two thousand years ago and I\\nshould be glad to know whether men have changed in their\\nBorgeaud, op. cit., pp. 15 et seq. Op. cit., p. 156.\\nOeMvres, Geneva, 1782, Tome II, p. 3.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0018.jp2"}, "19": {"fulltext": "FRENCH AND AMERICAN THOUGHT 3\\nnature. He tells us that the people of Rome assembled in\\nthe Capitol, and here exercised their sovereign authority, and\\nthat at remoter times the Greeks, the Macedonians and the\\nancient Franks held councils of the people. He seems not\\nto have known of the survival of the folk-mote in some of\\nthe Swiss cantons, where the Lands gemeinde was still a pre-\\nvailing institution, as it is to-day, nor of the town-meeting in\\nthe New England Colonies, his philosophy needing little sup-\\nport drawn from the world about him.\\nRepresentative government with him was an evil, neces-\\nsary sometimes no doubt, but only to be tolerated, never to\\nbe cordially admired. Legislatures were a mark of political\\ndegeneracy. They resulted from a declination of patriotism,\\nin this sense that the people had become unwilling or indis-\\nposed longer to attend to their own affairs. There was bred\\nan activity of private interest, the people refusing to give of\\ntheir time to society, and their direct participation in law\\nm.aking was made difficult also by the immense extent of\\ndominions, a tendency to be deplored since the government\\nthus became undemocratic. The representative system was\\nbrought on by the abuse of government generally; it was\\nnot the outgrowth or expression of the natural political con-\\ndition.^ Deputies were not the representatives of the people.\\nThey could only be regarded as their commissioners. They\\nwere not qualified to conclude upon anything definitively.\\nNo act of theirs, said Jean Jacques, can be a law unless\\nit has been ratified by the people in person and without that\\nratification nothing is a law.\\nOne cannot conceive of Rousseau being other than a rather\\npassionate advocate of the system of submitting laws to pop-\\nular vote, were he with us to-day, though without a ballot sys-\\ntem, which has been a development of more recent years, the\\npossibility of a plebiscite that could serve as a substitute for a\\ncouncil of the people does not seem to have suggested itself\\nto the French philosopher. He did not hesitate to declare\\nthat the happiest people in the world, in his own view, were\\n^Op. cit., p. 165. nbid.", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0019.jp2"}, "20": {"fulltext": "4 THE REFERENDUM IN AMERICA\\na company of peasants sitting under the shade of an oak\\nconducting the affairs of the nation with a degree of wis-\\ndom and equity that do honor to human nature To say\\nthat a writing of jthis kind passed without its influence in\\nAmerica in the years prior to and during the Revolution, is,\\nit would appear, a grave historical error. In America as\\nwell as in Europe, these theories if ma:y be admitted that\\nthey were not Rousseau s in particular, he being but the\\nwriter who expressed them earliest and most pleasingly) soon\\nstruck deep root. The Contrat Social was well known to\\nthe Americans, or at any rate, to the pamphleteers and news-\\npaper writers among them, who were busily engaged with the\\nsubject of government, arousing a popular interest in this\\nbranch of knowledge, which would do great credit to the\\nAmerican democracy in this later time.\\nAlthough British tendencies in respect of government were\\nstrong in the colonies, there was a conviction among the\\nmasses everywhere that men were little better for their\\nwealth, their birth or even for their training and education.\\nThese democratic sentiments were held more obstinately in\\nthe frontier districts than in the large cities, and more\\nstrongly too in parts where the holdings in land were small,\\nthan where they were of larger size, ^he idea was spread\\nfar afield, and the belief took an intenser form as the breach\\nbetween England and America widened, and the seeds of dis-\\ncord were sown, men aligning themselves in increasing num-\\nbers in favor of resistance, independence and the war. If\\ninequality were English, then it was the more unsuitable for\\nthe American patriots. It must be discarded. A new po-\\nlitical scheme must be sought out. There must be a turning\\ntoward France where was held a more liberal philosophy,\\nwhich would afford the people sympathy in their struggles\\naccompanied by an affiliation in sentiment, which was the\\nmore to be cultivated a little later, when French volunteers\\nenlisted in the Continental army, and a political alliance be-\\ntween the nations was definitively established.\\nOp. cit., pp. 179-80.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0020.jp2"}, "21": {"fulltext": "FRENCH AND AMERICAN THOUGHT 5\\nIt was a question which the leaders of the Revolution in\\nAmerica had early to discuss, with the abolition of the colo-\\nnial governments what should come next What should fol-\\nlow the old political order Should independence from Eng-\\nland, the declared equality of men which we find in that fa-\\nmous writing bearing the date of July 4, 1776, and in the\\nBills of Rights of the various State Constitutions, be followed\\nby government most like or most divergent from that to\\nwhich the colonists had been earlier accustomed It was not\\nunnatural for the man of simplest mind, of the least foresight,\\nto declare that what would be in the highest sense satisfactory\\nto the Americans was a government in many essential points\\nquite different from that which they had had hitherto.\\nThere were at least three propositions in respect of the new\\ngovernments. First, the very conservative view which made\\nitself felt in every part of the country, but which was most\\ninfluential in the South.\u00c2\u00ae This faction would have made the\\nStates monarchies or aristocracies, with magistrates serving\\nfor life. Second, the moderate republican view of which John\\nAdams was the ablest and most distinguished representative\\nand third, the ultra-democratic view, which got its chief sup-\\nport from France, and of which Benjamin Franklin was a\\nfriend and defender.\\nDr. Franklin, who had been in London in the interest of\\nthe colonies, met there a young Englishman named Thomas\\nPaine. He was a writer, it was thought, of some ability,\\nand although not professing to be this when he got to Amer-\\nica, but instead, one who had just found a voice, as if in-\\nspired, in this great contest against British power and ag-\\ngression now about to ensue, he did not disappoint his patron,\\nDr. Franklin. In the course of this winter (1775-76),\\nJohn Adams writes in his autobiography,^^ appeared a phe-\\nnomenon in Philadelphia, a disastrous meteor, I mean\\nThomas Paine Hfe almost immediately published a pam-\\nphlet which he called Common Sense, and he continued to\\nCf. John Adams Works, Vol. IV, p. 201.\\nWorks, Vol. II, p. 507.", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0021.jp2"}, "22": {"fulltext": "6 THE REFERENDUM IN AMERICA\\nwrite under this name throughout the war, being employed\\nfor a time by Congress, winning some admirers, but not a\\nfew acquaintances, who regarded him with no more respect\\nthan did Mr. Adams. He afterwards returned to Europe, of-\\nfered his services to the French democrats/^ repHed to\\nBurke s aspersions against the French nation in respect of\\nthe Revolution in a book that he called the Rights of Man,\\nwas elected a citoyen de France and was finally chosen\\nto the Convention where he sat among the members who\\ntook the nickname of the Mountain He was an interna-\\ntional firebrand in very truth, a kind of American Mirabeau\\nwithout the power of declamation, who, however, wrote Eng-\\nlish savagely and unscrupulously, and somehow met with\\nmany attentive readers. Flis Common Sense passed through\\nseveral editions, and appearing as it did when the people\\nwere undecided whether or not to sever their relations with\\nEngland, not knowing, if they should do so, what would\\nfollow, his pamphlet won a degree of popularity beyond any\\nintrinsic worth, so far as we are able to perceive upon a peru-\\nsal of it at the present day.\\nThis pamphlet was an appeal addressed to the inhabitants\\nof America The author revealed himself a revolutionist\\nin every part and member. We have it in our power he\\nsaid, to begin the world over again. A situation similar to\\nthe present hath not happened since the days of Noah until\\nnow. He traced the origins of government in a manner\\nclearly pointing to his familiarity with the Contraf Social,\\nsince Rousseau s happy peasants under the oak were not dif-\\nCf. Letter to the authors of the Republican which was published by\\nCondorcet, in Political Wj-itings of Thomas Paine, Albany, 1794.\\nCf. Borgeaud, op. cit., p. 206.\\nPolitical Writings Common Sense, p. 58 cf Burke s words ad-\\ndressed to the revolutionists in France You chose to act as if you\\nhad never been moulded into civil society, and had everything to begin\\nanew. You began ill because you began by despising everything that\\nbelonged to you. You set up your trade without a capital. If the last\\ngenerations of your country appeared without much lustre in your eyes,\\nyou might have passed them by, and derived your claim from a more\\nearly race of ancestors. Under a pious predilection for those ancestors.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0022.jp2"}, "23": {"fulltext": "FRENCH AND AMERICAN THOUGHT 7\\nferent from those Paine called to mind, when he wrote^* that\\nwhen the people of a community were ready for government\\nsome convenient tree will afford them a state house imder\\nthe branches of which the whole colony may assemble to de-\\nliberate on public matters And he continued In this\\nfirst parliament every man by natural right will have a seat.\\nAs the colony increased in size, it would be necessary for\\nthem to agree together to leave the legislative part to be\\nmanaged by a select number chosen from the whole body,\\nwho are supposed to have the same concerns at stake, which\\nthose have who appointed them, and who will act in the same\\nmanner as the whole body would act were they present\\nHe indicated that frequent elections would be necessary, and\\nthat the system of government should be simple By this\\nhe meant that he should favor an assembly of a single\\nchamber, which he, with his friend Franklin, and the other\\nleaders of the Franco-Pennsylvanian Democracy would soon\\nIntroduce into the fundamental law of the State of Pennsyl-\\nvania. He found the weakness of the English Constitution\\nto be its complexity, while Montesquieu and John Adams re-\\ngarded this thing as the chief source of its strength. The\\nthree branches of government, the executive, legislative and\\njudicial, checking each other, in their result he declared to be\\ncontradictions, and the whole system of balances considered\\nin the light of his philosophy, was reduced to a mere ab-\\nsurdity It is true that Adams himself expresses the opin-\\nion that the influence of Paine s pamphlet was not so great\\nas many had considered it;^^ but it was doubtless difficult\\nyour imagination would have realized in them a standard of virtue and\\nwisdom beyond the vulgar practice of the hour s, and you would have\\nrisen with the example to whose imitation you aspired. Respecting your\\nforefathers, you would have been taught to respect yourselves. You\\nwould not have chosen to consider the French as a people of yesterday,\\nas a nation of low-born servile wretches, until the emancipating year\\nof 1789 Works, London, 1815, Vol. V, pp. 82-83.\\nCommon Sense, p. 7 cf. Plain Truth, the pamphlet written in reply\\nto Common Sense, in defence of the English Constitution with its sys-\\ntems of checks and balances, as expounded by Montesquieu.\\nCommon Sense, p. 7. Adams Works, Vol. II, p. 509.", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0023.jp2"}, "24": {"fulltext": "8 THE REFERENDUM IN AMERICA\\nthen, as it would be to-day, to determine how great or little\\nmay be the effect of such a publication at an opportune mo-\\nment. Its publication at any rate, alarmed the Massachusetts\\nleader, as he is free to admit in his review of this period of\\nhis life.^^ He took immediate steps to counteract the hurt-\\nful tendency, as he thought it to be, and we shall now see\\nwith what success, and as a result of how much pains and\\neffort.\\nJohn Adams while attending the sessions of the Conti-\\nnental Congress, conferred with the members from the other\\ncolonies whom he met there regarding the various problems\\nof government which would arise in case of a severance of\\nrelations with Great Britain, and he soon came to be regarded\\nas a leader in American constitutional discussion. Richard\\nHenry Lee, a delegate from Virginia, upon Avhose support\\nin Congress Mr. Adams, as a rule, could certainly rely, was\\nso much impressed by the views of his Massachusetts col-\\nleague, that he asked the latter to reduce his plan to writing,\\nwhich he did in the form of a letter addressed to Mr. Lee\\nfrom Philadelphia, under date of November 15, 1775.^^\\nTaking nature and experience for my guide V^ he said, I\\nhave made the following sketch whereupon he proceeded\\nto state with great lucidity that a legislative, an executive\\nand a judicial power comprehend the whole of what is meant\\nand understood by government It is balancing each of\\nthese three powers against the other two, he added, that\\nthe efforts in human nature towards tyranny can alone be\\nMr. Adams says that he considered Paine s plan for an assembly\\nof one chamber, as flowing from simple ignorance and a mere desire\\nto please the Democratic party in Philadelphia, at whose head were\\nMr. Matlack, Mr. Cannon and Dr. Young. I regretted, however, to see\\nso foolish a plan recommended to the people of the United States, who\\nwere waiting only for the countenance of Congress to institute their\\nState governments. I dreaded the effect so popular a pamphlet might\\nhave among the people, and determined to do all in my power to\\ncounteract the effect of it Works, Vol. II, pp. 507-8.\\nWorks, Vol. IV, pp. 185-187.\\nCf. Rousseau s introduction to his Contrat Social alluded to in this\\nchapter, ante, p. 2.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0024.jp2"}, "25": {"fulltext": "FRENCH AND AMERICAN THOUGHT 9\\nchecked and restrained, and any degree of freedom preserved\\nin the constitution.\\nThe legislature, he said, should consist of a house of\\ncommons which would represent the people, and a coun-\\ncil elected by the house, either from its own members or the\\ncitizens at large, to consist of twelve, sixteen, twenty-four or\\ntwenty-eight persons. Each chamber should have a negative\\non the bills passed by the other. The executive power should\\nbe exercised by a governor chosen annually, triennially or\\nseptennially, as might be preferred, by joint ballot of the\\nhouse of commons and the council. The governor should\\npossess the power of vetoing bills which the legislature had\\npassed. He should appoint civil and military officers, with\\nthe advice and consent of the council, and have command of\\nthe army. The judicial power was to be exercised by judges\\nappointed by the governor, not elected by the people.\\nMr. Adams plan in the main, was for a government such\\nas has to-day, with slight modification, everywhere come to\\nbe the prevailing form in this country. Virginia at that time\\nwas perhaps the most important colony among the thirteen,\\nand naturally much concern was felt as to the result of the\\nconvention which was soon to meet there to arrange for a\\ntransition from a royal, that is the colonial, to an independent\\nrepublican government. Adams, in response to a request for\\na fuller statement of his views on this subject, wrote his\\nThoughts on Government also in the form of a letter to\\na Virginian, which was published early in 1776,^^ and was\\nwidely circulated in Virginia, exerting a very considerable\\ninfluence upon the members of the convention. There\\nwas in Virginia among most of the opulent families of the\\n20 Works, Vol. IV, pp. 193 et seq.\\nWorks, Vol. I, p. 208. See also Letter of Patrick Henry to John\\nAdams, May 20, 1776, Works, Vol. IV, p. 201. Adams pamphlet led to\\nthe publication of another by an unknown author, which was entitled\\nAn address to the convention of the colony and ancient Dominion of\\nVirginia on the subject of government in general, and recommending\\na particular form to their consideration by a native of the colony\\nThis was designed to counteract the popvilar influence of Adams", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0025.jp2"}, "26": {"fulltext": "to THE REFERENDUM IN AMERICA\\nState, a strong bias to aristocracy Adams, in the\\nThoughts on Government which he offered to the Vir-\\nginians, advanced his opinion, against that of the meteor\\nPaine, that the happiness of society is the end of govern-\\nment Paine, following Rousseau, had said that govern-\\nment even in its best state is a necessary evil P There is\\nno good government Mr. Adams continued, but what is\\nrepublican and he pointed to the writings of Sidney, Har-\\nrington, Locke, Nedham, Neville, Burnet and Hoadly, thus\\nindicating the breadth of his reading upon political subjects.\\nThe only valuable part of the British Constitution at the\\ntime he wrote was, he declared, republican. In a large so-\\nciety inhabiting an extensive country, it is impossible that the\\nwhole should assemble to make laws. The first necessary\\nstep then, is to depute power from the many to a few of the\\nmost wise and good and here we have a well-summarized\\nstatement of the representative principle, which he desired\\nshould not be departed from.\\nHe continued his inquiry regarding the proper means of\\nchoosing these representatives, declaring himself specifically\\nopposed to Paine s legislative assembly of a single chamber^*\\nto which he stated his objections under six heads, among\\nthese being the following, that such a body was liable to all\\nthe vices, follies and frailties of an individual being hasty,\\npassionate, enthusiastic, prejudiced as the whim might seize\\nit that it was apt to be avaricious, exempting itself from bur-\\ndens, and putting them on others and that it was ambitious,\\nand would vote to make itself perpetual. He again aimed to\\nimpress it upon his readers, how essential it was to keep the\\nwriting. For this document see Force s Archives, Fourth Series, Vol.\\nVI, cc. 748-754.\\nPatrick Henry s letter to John Adams, Adams Works, Vol. IV,\\np. 201.\\n^Folit. Writings of T. Paine, in pamphlet Common Sense, p. i.\\n2* Works, Vol. Ill, p. 22. Adams writes in his Autobiography about\\nthis time I knew that every one of my friends and all those who were\\nmost zealous for assuming governments, had, at that time, no idea of\\nany other government but a contemptible legislature in one assembly,\\nwith committees for executive, magistrates and judges.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0026.jp2"}, "27": {"fulltext": "FRENCH AND AMERICAN THOUGHT\\nlegislative, executive and judicial departments of the govern-\\nment properly separated, and repeated his suggestions re-\\nspecting the constitution of these various departments, con-\\ntained in his letter of a few months before to Mr. Lee. He\\nexpressed his dissent, too, from the proposition for a frequent\\nrotation of officers which is an error that was soon committed\\nby the Philadelphia democrats in the framing of the first Con-\\nstitution of Pennsylvania and which later became one of the\\nsubjects of strife in the bitter contest that ensued between the\\nConstitutionalists and Anti-Constitutionalists in that State. U/\\nBut Adams, too, was quite as alert to check the royalists\\nand aristocrats, as the single-chamber democrats. On March\\n23, 1776, he wrote a letter to General Gates^^ in which he al-\\nluded to the problem confronting the Americans in a more\\ngeneral way. The difficulty he says in this communica-\\ntion, lies in forming particular constitutions for particular\\ncolonies, and a continental constitution for the whole. Each\\ncolony should establish its own government, and then a\\nleague should be formed between them all.^^ This can be\\ndone only on popular principles and axioms, which are so\\nabhorrent to the inclinations of the barons of the South, and\\nthe proprietary interests in the Middle States, as well as to\\nthat avarice of land, wdiich has made on this continent so\\nmany votaries to Mammon, that I sometimes dread the con-\\nsequences. The influence of Adams and his friends against\\nthe barons of the South in so far as Virginia, the largest\\nof the southern colonies, was concerned, was effectively im-\\npressed upon the convention which framed the first Constitu- 1\\ntion of that State, and in Pennsylvania, a Middle State in\\nwhich the proprietary interests were so strong, they were not\\nthese interests which Adams was to combat in the constitu-\\ntional discussions of the next few years. He was to be con-\\n25 Works, Vol, I, pp. 207-8.\\nThis was done, the league being organized under the Articles of\\nConfederation, of 1777, and although this was in accordance with\\nAdams advice at this time, he later was among the first to perceive the\\nneed of a stronger central government; cf. Thoughts on Govt., Vol. IV,\\np. 200.", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0027.jp2"}, "28": {"fulltext": "12 THE REFERENDUM IN AMERICA\\nfronted by the party which was too democratic, rather than\\ntoo aristocratic. The way was being prepared at Philadel-\\nphia for a constitution, which was the most extraordinary\\never adopted in America, and one of the most impractical\\nwhich men have ever been invited to live under in any part\\nof the world.\\nA little later, Mr. Adams embodied his views in respect of\\na suitable government for the Americans, in a letter to John\\nPenn, with the hope, and it was not a vain one, of exert-\\ning an influence in favor of the English form of government\\nin North Carolina, where, as in Virginia, a convention was\\nabout to meet for the purpose of adopting a State Constitu-\\ntion.^^ His efforts in the same direction were also extended\\ninto other colonies, with no doubtful result.^^\\nConcerning Mr. Adams system of government for the new\\nAmerican States, his grandson, Charles Francis Adams, pays\\na just tribute to the man, when he writes It is very true\\nthat the outline of the system thus recommended contains\\nthe same features in the main, which are found in the colonial\\ncharters of New England, and are in them, taken from the\\nconstitutional forms of the mother country. Mr. Adams had\\nmade them the study of his life, and fully believed that they\\nrested upon general principles of the highest possible value.\\nHe had little of the purely scheming temper that has led some\\nof the noblest minds of the world to devise systems of their\\nown, ingenious, and sometimes imposing, but utterly want-\\ning in practical adaptation to the feelings and habits of those\\nfor whose use they were intended. He had studied Plato,\\nand Montesquieu, Milton, Locke and Harrington quite as\\nWorks, Vol. IV, p. 203.\\nWorks, Vol. I, p. 209. Chas. Francis Adams, in his Life of John\\nAdams says His sentiments were so extensively diffused as ma-\\nterially to guide the public mind in the construction of many of the\\nState Constitutions. The immediate effect was particularly visible\\nin those adopted by New York and North Carolina, the last of which\\nremained unchanged for sixty years, and at the time of its amendment,\\nin 1836, was the only one left of the Constitutions adopted at the Revo-\\nlution.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0028.jp2"}, "29": {"fulltext": "FRENCH AND AMERICAN THOUGHT 13\\nprofitably to avoid their errors as to heed their counsels.\\nThe people though attached by habit to the old\\nforms were very open to receive new impressions. Their\\nideas upon government in general were not a little crude.\\nMr. Adams did not permit himself to be led astray by any\\nof these temptations. Conservative by temperament and\\neducation, he applied his mind to the task of saving whatever\\nexperience had proved to be valuable in the British constitu-\\ntional forms. The skill with which this was done\\nmay be best understood from the result, for it is undeniable\\nthat the success of the constitutions adopted in the respective\\nStates has proved proportionate to the degree of their ap-\\nproximation to the general features of his plan.\\nIn the meantime, Paine and those who entertained his opin-\\nion that British models should be wholly departed from, who\\nwere ready to begin the world over again, and to build it\\nanew on other foundations, were actively making their propa-\\nganda against Mr. Adams, and were achieving a degree of\\nsuccess quite out of proportion to their due. This was par-\\nticularly true in Pennsylvania, which from now on, through-\\nout the Revolution, and until the State constitutional conven-\\ntion met in 1790 and definitely made an end to all these singu-\\nlar notions, was the stronghold of the French party on this\\ncontinent.\\nUpon the loth day of May, 1776, a resolution was passed\\nby the Congress, authorizing the various colonies to insti-\\ntute at their option, new governments. The resolution, to\\nwhich Mr. Adams, by appointment of the Congress, drafted\\na fitting preamble, was as follows That it be recom-\\nmended to the respective assemblies and conventions of the\\nUnited Colonies, where no government sufficient to the ex-\\nigencies of their affairs has been hitherto established, to\\nadopt such government as shall, in the opinion of the people,\\nbest conduce to the happiness and safety of their constitu-\\nents in particular, and America in general.\\nAlready the Virginia Convention had met at Williams-\\nWorks, Vol. I, p. 209.", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0029.jp2"}, "30": {"fulltext": "14 THE REFERENDUM IN AMERICA\\nburgh, and in Pennsylvania where the differences between\\nthe proprietary interests and the more popular interests had\\nbeen prolonged, and where the dissatisfaction of large sec-\\ntions of the people was so great, and the distrust for the aris-\\ntocratic colonial assembly so deeply rooted, steps were imme-\\ndiately taken to establish a new government, as the Congress\\nhad advised. There were at this time in the colony, two\\nbodies almost parallel in authority; the Assembly and the\\nCounty Committees organized by the citizens in 1774, to\\narrange for appointing delegates to Congress, and to con-\\nfer with the Assembly rather gratuitously in respect of\\nquestions of common gravity, so many of which were arising\\nconstantly, by reason of England s attempts to coerce the\\nAmericans. These committees, called at first Committees\\nof Correspondence came later to be known as Committees\\nof Inspection and Observation a name more narrowly de-\\nscriptive of their specific duties and functions. The members\\nwere elected by the people as were the members of the As-\\nsembly, though the bodies were extra-constitutional in every\\nsense, and without authority except in so far as this was de-\\nrived from legislation of the Continental Congress.\\nThere was in the colony, so soon as the resolution of May\\n15, 1776 had been passed, a dread lest the Assembly should\\nundertake to institute a government on its own account, al-\\nthough the members of the proprietary party declared that\\nthe present government was itself sufficient to the exigen-\\ncies of their affairs and that any new government, there-\\nfore, would be superfluous. To avert such a coup, the Phila-\\ndelphia City Committee issued a call for a public meeting, to\\nbe held in the State House Yard on May 20, 1776, which,\\naccording to the newspapers of the time_, was attended by sev-\\neral thousand persons. It was agreed on this occasion that,\\nthe Assembly being incompetent for the task of instituting a\\nnew government, a provincial Convention should be\\nchosen by the people. In order to determine upon the meth-\\nods to be adopted in selecting the members of this Conven-\\ntion, a general conference was called to meet in Philadelphia", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0030.jp2"}, "31": {"fulltext": "FRENCH AND AMERICAN THOUGHT 15\\non June 18. The Philadelphia City Committee, taking the in-\\nitiative in this matter, at once sent out letters which were de-\\nlivered in many cases by its own members, or other deputed\\nrepresentatives to the Committees in the various counties.\\nAt this conference there were 108 duly accredited deputies\\nfrom the different Committees. The body proceeded at once\\nto perfect the arrangements for the provincial Convention,\\nwhich was to meet for the express purpose of forming a\\nnew government q^ the authority of the people\\nonly\\nThe associators or the militiamen, who, in many cases,\\nhad been denied the suffrage heretofore, greatly to their dis-\\nsatisfaction, were now all enfranchised ipso facto by reason\\nof their connection with the army, and all other persons who\\nshould present their votes for members of the Convention,\\nwere required to take an oath of fealty to America, as against\\nGreat Britain. The number of members of the Convention\\nwas fixed at ninety-six, or eight for the city and each county,\\nirrespective of differences in population or wealth. The elec-\\ntions w^ere appointed for July 8, the entire movement being\\nhurried forward so precipitately as to prevent adequate dis-\\ncussion of the project, and the people at a distance from the\\ncity were not even allowed an opportunity to express their\\nopinions in numbers at the polls. One week after the elec-\\ntions or on July 15, the Convention met at the State House\\nin Philadelphia, continuing in session by adjournments, till\\nthe 28th day of the ensuing September. The personnel of\\nthis body is a matter of some interest, in view, of what it pro-\\nceeded to do so soon as it had met. It was composed, of\\ncourse, of the committeemen or those in whom the latter had\\nfull confidence, being an assembly, radical, perhaps, beyond\\nany which had gathered together before in the colonies. The\\nelections had been completely in the hands of the county\\ncommittees, and they had passed off without much excite-\\nm.ent or contest. The main test in the case of candidates at\\nthis time was their loyalty to the cause of independence. Of\\nthe ninety-six delegates, thirty-one had been members", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0031.jp2"}, "32": {"fulltext": "1 6 THE REFERENDUM IN AMERICA\\nof the conference, which had met on June i8. Ten\\nhad been members of the Convention of January, 1775,\\nand eight had sat in the Convention of July 15, 1774-\\nThere were few who had been members of the old proprietary\\nAssembly.^** Nearly all were frontiersmen, since the West-\\nern counties which were being rapidly populated, each had\\na representation in the Convention equal to Philadelphia city.\\nThese delegates were for the most part farmers some of\\nthem millers, that is, proprietors of small grist mills, which\\ncrushed and ground grain by water-power. The pioneer\\nfarming class, imbued with ideas of a singularly democratic\\nkind, predominated in the councils of the Convention. Phil-\\nadelphia was naturally the center for such scholarship as ex-\\nisted at that day in the colony, and it was then the leading\\nAmerican city, being the assembling place of the delegates\\nfrom the different colonies, which soon came to be States, the\\nfirst capital of the Republic. The city s advantage in this\\nrespect was evidenced by the presence in the Convention, in\\nthe Philadelphia delegation, of Benjamin Franklin, who was\\nat once chosen to be the President of the Convention David\\nRittenhouse, James Cannon, a graduate of the University\\nof Edinburgh, and a tutor in the Academy of Philadelphia;\\nOwen Biddle, a member of the Philosophical Society and an\\nastronomer, and George Clymer.\\nIf our records are trustworthy, there were only four law-\\nyers in the Convention, George Ross, of Lancaster, who was\\nelected Vice-President of the Convention, and occupied the\\nThese facts regarding the membership of the convention are\\ngleaned from Dr. W. H, Egle s Biographical Sketches in Pennsylvania\\nMagazine, Vol. Ill, pp. 46 et seq. John Jacobs of Chester County had\\nsat in the Assembly continuously since 1762, and Benjamin Franklin\\nhad of course been a burgess from the city for many years. Benjamin\\nBartholomew had represented Chester County in the Assembly since\\n1772. George Ross had held a seat from Lancaster County since 1768.\\nJohn Wilkinson, of Bucks County, had been in the Assembly but only\\nfor one year, in 1762-3. David Rittenhouse had been elected in 1776.\\nGeorge Clymer and eight others who were members of the Convention,\\nhad been elected to the Assembly just a few weeks before, when the\\nfunctions of that body were about to terminate.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0032.jp2"}, "33": {"fulltext": "FRENCH AND AMERICAN THOUGHT 17\\nchair in Franklin s absence, being the most eminent in the\\nlittle group. There was scarcely any one who could be\\nlooked to to lead the deputies aright, and to act as a balance\\nagainst the rash, the enthusiastic and the ignorant among\\nthe members, for most of those who had knowledge of con-\\nstitutional questions and of statecraft had been left at home,\\nas suspected Tories, or for other reasons were not, unfortu-\\nnately for the early history of the State, called to the task of\\npreparing for it a frame of government.\\nThis Convention, gathered together in haste and panic,\\nonly a fortnight after it had met, on August 2,^^ determined\\nby vote in committee of the whole, that the new government\\nshould be centered in a legislature of but a single chamber.^^\\nThe warnings which John Adams had uttered with so much\\ncourage and earnest conviction, and which had had their\\neffect in Virginia, and were being heeded in other of the new\\ncommonwealths, fell upon deaf ears in the capital city of the\\nUnited Colonies, the city of Franklin, and of Thomas Paine.\\nThe debates upon the Frame, or that part of the Consti-\\ntution following the Bill of Rights which was adopted on\\nAugust 16, began on August 21, and continued until Septem-\\nber 5. The Frame was published in pamphlet form on\\nSeptember 10, though it was not printed in the newspapers\\nuntil a few days later. It was desired that it should be cir-\\nculated among the people for their consideration, it was said,\\nand yet on September 16, the Convention resumed its ses-\\nsions and hastened to adopt the draft, which it did on Septem-\\nber 28, promulgating it at once as the Constitution of the\\nState. It was said with great truth afterward, when it was\\nalleged that the people had not had a hand in determining\\nwhether they desired to live under such a form of govern-\\nment, that the pamphlets had scarcely got outside the city\\nMinutes of the Convention, Philadelphia, 1776, p. 18.\\nIt is noteworthy that in the national government, in so far as there\\nwas yet one at hand, no division of powers existed. All the powers\\nof government, legislative, executive and judiciary, were at that time\\n(1776) collected in one centre, and that centre was Congress. Adams\\nAutobiography, Works, Vol. Ill, p. 87.", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0033.jp2"}, "34": {"fulltext": "1 8 THE REFERENDUM IN AMERICA\\nbefore the Convention met again, and proceeded to ratify its\\nearlier work. This was not a consultation with the people,\\na reference to them of the important question of whether or\\nnot they should have one constitution or another a question\\nwhich, in Massachusetts and New Hampshire, and elsewhere\\nin America, was coming now to be regarded as one that the\\nelectors should determine in their town meetings, and at the\\nlocal polling places.\\nVery few changes were made in the original frame in those\\ndays from September i6, when the Convention resumed\\nits debates, to September 28, when Benjamin Franklin and\\nthe other members, except those who were so much dissatis-\\nfied with the work as to refuse thus to endorse it, placed their\\nsignatures upon the document, indicating that it was the su-\\npreme law of the new State. The most peculiar feature of\\nthe new government, though it embraced other odd schemes\\nwhich will be spoken of later on in this description of a strange\\nphase of democracy in America, was the unicameral legisla-\\nture of which we have never since had an example in the\\nAmerican States, and which is a prevailing part of the scheme\\nof government in no important community to-day, though the\\nworld has been recently reminded of the possibility of a re-\\nturn to greater simplicity in this respect in England, where\\nthe Radicals have, with more or less seriousness_, proposed\\nthe abolishment of the House of Lords. Although this sub-\\nject had earlier been discussed in the Convention without\\nconvincing the majority party of the error of their general\\ncourse, a final effort in behalf of a bicameral legislature had\\nUnder these conditions, a writer in the Pennsylvania Packet, Feb-\\nruary 13, 1779, said, that only a few people of Philadelphia and its\\nneighborhood could have the least opportunity of examining it or offer-\\ning their remarks, which were little regarded, and the Constitution after\\ncirculating a few days, in print, about the streets of Philadelphia, was\\nfinally adopted with scarce any material amendments See also Resolu-\\ntions of Town Meeting to protest against the Constitution, Phila., Oct.\\n21, 22, 1776.\\nLecky, Democracy and Liberty, Vol. I, pp. 361 et seq. Cf. Articles\\nin London Times on Leeds and the Lords Sept. 13 and 14, 1894, and\\nThe Reform of the House of Lords Nov. 28, 29, 30, 1894.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0034.jp2"}, "35": {"fulltext": "FRENCH AND AMERICAN THOUGPIT 19\\nbeen made by the friends of the EngHsh system of checks\\nand balances only a few days before the adjournment of the\\nbody. The motion to amend the frame in this respect, and\\nto establish two houses instead of one, was offered by Mr.\\nRoss, the Vice-President of the Convention, on September\\n16, and it was seconded by Mr. Clymer of Philadelphia, two\\nof the leading minds in the Convention. It was decided,\\nthough the Minutes are silent as to the vote on this subject,\\nthat further debate upon this point should be precluded, since\\nit had been fully discussed before. There was to be but a\\nsingle house; conviction seemed to prevail among the mem-\\nbers in respect of this feature of the government. The su-\\npreme legislative power as the Constitution describes it,\\nwas to repose in a house of representatives of the freemen\\nof the Commonwealth or State of Pennsylvania whose\\nmembers were to be chosen annually in the counties, each\\ncounty at first returning an equal number, though the basis of\\nrepresentation was soon to be changed to the more equitable\\none of taxable inhabitants.\\nUpon this single assembly was conferred almost absolute\\npower. As every suggestion regarding a Senate, appeared\\nin the eyes of the Pennsylvania democrats to be a movement\\nto establish an odious House of Lords, an upper house,\\nwhose very name was inconsistent with the principles of\\nequality, so the term Governor smacked too, of royalty, the\\nroyal and proprietary colonies in America all having had\\nGovernors. They would therefore have no officer known by\\nthis name, and none, indeed, of any kind who should stand\\nas an obstacle between the people and the State. For the\\npeople were the State, and the State was the people. Like\\nPaine, who said in his Common Sense, that he took his rule\\nfrom a principle in nature which no art can overturn, viz\\nthat the more simple a thing is, the less liable it is to be dis-\\nordered, and the easier repaired when disordered V^ the\\nframers of the Constitution of Pennsylvania would put no\\nCf. Minutes of the Convention, p. 51.\\nConstitution, sec. 2. Common Sense, p. 8.", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0035.jp2"}, "36": {"fulltext": "20 THE REFERENDUM IN AMERICA\\nclog upon the wheels of government. Therefore there should\\nbe no Governor, and no one exercising the powers of a Gov-\\nernor. There should be a plural executive, to be called the\\nSupreme Executive Council, in which was vested the su-\\npreme executive power and this body was to have a\\nPresident, who was to be called the President of the State of\\nPennsylvania, in true republican form. The councilors\\nwere to exert no legislative power whatsoever and they did\\nnot constitute a second house. They, with their President,\\nhad no negative upon the legislature, and were not even au-\\nthorized to offer their advice concerning the passage of any\\nlaw, except in so far as this may have been contemplated\\nwhen it was provided that the Council should prepare busi-\\nness to be laid before the Assembly. Each county was to\\nelect one councilor to serve for a term of three years. As\\nthere were then twelve counties, it was at first a body there-\\nfore of twelve members. One third of the Council was re-\\nnewed annually, four seats being vacated each year. In the\\nConstitution of our very squeamish democrats, as if an apol-\\nogy were needed, the following explanation of this system is\\nfound By this mode of election and continual rotation,\\nmore men will be trained to public business, there will in\\nevery subsequent year be found in the Council a number of\\npersons acquainted with the proceedings of the foregoing\\nyears, whereby the business will be more consistently con-\\nducted, and moreover, the danger of establishing an incon-\\nvenient aristocracy will be effectually prevented.\\nBy the original draft of the Constitution, which was\\nprinted in Philadelphia in September, the Assembly in addi-\\ntion to its other extensive powers, was to elect nine men from\\noutside its own membership to compose the Council.*^ By\\nthis deviation from the original plan, which resulted in the\\nCouncil being made elective by the people, the Assembly was\\n^^Constitution, sec. 3. Sec. 20. Sec. 19.\\nPennsylvania Gazette, Sept. 18, 1776. The proposed p-lan or frame\\nof government for the Commonwealth or State of Pennsylvania\\nsec. 18.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0036.jp2"}, "37": {"fulltext": "FRENCH AND AMERICAN THOUGHT 21\\ndeprived of a very considerable part of its authority over the\\nexecutive department of the government, though it was still\\ncharged with the task of meeting annually with the members\\nof the Council, and of electing by joint ballot from the latter\\nbody, the presiding executive officers of the State, a President\\nand a Vice-President.*- The State treasurer was to be ap-\\npointed by the Assembly, and the delegates to the general\\nAmerican Congress were similarly chosen, which was the pre-\\nvailing method in other States at that time. It could elect,\\nremovable at its own pleasure, a register of wills and re-\\ncorder of deeds, in the city, and in each county, and im-\\npeach every officer of state, whether judicial or executive\\nthe proceedings to be heard before the President and Vice-\\nPresident, and a quorum of the Council.** The judges of the\\nsupreme court who were to be appointed by the Council,\\ncould be removed at any time by the Assembly for misbe-\\nhavior Justices of the peace who were elected by the\\npeople in the city and counties, could in the same way be dis-\\nplaced by the Assembly for misconduct\\nHere, in respect of the judiciary the principle of the sep-\\naration of powers, which Mr. Adams contended for was\\ngrossly violated. That the judges should be removable by\\nthe legislature for misbehavior was a rule calculated to\\nbring about a subserviency in the courts which was gravely\\ncontemplated by conservative men. That the Assembly\\nshould be unchecked by a second house, a governor or any\\nauthority equal in power and dignity in the legislative de-\\npartment of the government, w^as occasion for real alarm,\\nbut that the courts of justice, too, w^ere to be subordinate to\\nthis suprem.e single chamber, was a remarkable circumstance.\\nIt is true, there was a fanciful plan by which the work of\\nthe Assembly could be reviewed at periods of seven years.\\nThen the people of each county and the city were to elect a\\nbody to be called a Council of Censors.*^ This Council was to\\nSec. 19. Sec. 34. Sec. 22. Sec. 2z.\\nSec. 30,\\nCf. Rousseau, Contrat Social. Rousseau s chapter on Censors must", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0037.jp2"}, "38": {"fulltext": "2 2 THE REFERENDUM IN AMERICA.\\nmeet and discuss the question whether during the septennial\\nperiod which had just been passed through, the Constitution\\nhad been preserved inviolate in every part, and whether the\\nlegislative and executive branches of the government have\\nperformed their duty as guardians of the people, or assumed\\nto themselves or exercised other or greater powers than they\\nare entitled to by the Constitution They were to examine\\ninto the collection and expenditure accounts of the govern-\\nment, to call for papers and records, pass public censures\\norder impeachments and recommend the Assembly to re-\\npeal such laws as appear to them to have been enacted con-\\ntrary to the principles of the Constitution\\nThe Assembly was, indeed, restricted in one important re-\\nspect. It was specifically denied the power to add to, alter,\\nabolish or infringe any part of this Constitution although\\nthe tendency in the United States in a few years, was to set\\nin strongly in the direction of giving the State legislatures\\nthis right, usually, it is true, only after the assent of the\\npeople has been expressed in a plebiscite, yet solely upon the\\ninitiation of the legislature. In Pennsylvania, the Council\\nof Censors w\u00c2\u00a3.s the only body which could start the machinery\\nfor a change in the Constitution, be it ever so small. By a\\ntwo-thirds vote the censors could summon a convention, and\\nthis body might then amend the fundamental law of the\\nState, in the same manner in which it had been originally\\nestablished.\\nIn order that there might be no suspicion of an hereditary\\nsystem in office-holding, there was to be frequent rotation in\\nthe civil service. Thus any person who had served as a\\ncouncilor for three successive years, that is for one term,\\nwas not to be capable of holding this office again for four\\nyears afterwards. Representatives in the Assembly were\\nnot to continue in their offices more than four years in any\\nhave suggested this very odd device to the Pennsylvanians when they\\nwere seeking for a government which would make them wholly free of\\nEnglish constitutional usage.\\n*\u00c2\u00abSec. 47. Sec. 9. Sec. 19.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0038.jp2"}, "39": {"fulltext": "FRENCH AND AMERICAN THOUGHT 23\\nseven/^ and the terms of certain other officers were also lim-\\nited by the Constitution.^^\\nIt has always been a matter of interest among those who\\nhave written of the early political history of Pennsylvania\\nfew, unfortunately, in number to inquire what precisely\\nwere the influences which led the Convention to adopt such a\\nsystem of government, when none of the other colonies\\nturned away so lightly from custom, tradition and the advice\\nof good authorities on constitutional subjects. It is true that\\nGeorgia and Vermont in the next year, 1777, adopted con-\\nstitutions which in respect of the single house of legislature,\\nat least, followed the Pennsylvania plan.^^ But an examina-\\ntion of these instruments will show that they differ in some\\nrather important respects from the first Constitution of Penn-\\nsylvania. Vermont, on account of a territorial question, was\\nnot one of the original States, being admitted to the Union\\nonly in 1791, after the adoption of the Federal Constitution,\\nwhen the confederation had made way for the federation,\\nthe Staatenbund for the Bun,desstaat. Vermont had its Gov-\\nernor and Lieutenant-Governor, instead of a President and\\nVice-President. There was a Council in lieu of a second\\nhouse, which was without the power of vetoing legislation,\\nhowever, quite as in Pennsylvania. Nevertheless, it was pro-\\nvided in Vermont, and this was a difference of some im-\\nportance, that to the end that laws before they are enacted\\nmay be more maturely considered, and the inconveniency of\\nhasty determination as much as possible prevented, all bills\\nof public nature shall be first laid before the Governor or\\nCouncil, for their perusal and proposals of amendment\\nIn Pennsylvania, the only suggestion that delay might be ex-\\npedient, was contained in a provision which placed the re-\\nsponsibility with the people, rather than with the councilors.\\nSec. 8.\\nFor instance, sheriffs and coroners in counties, sec. 31.\\nCf. Adams Works, Vol. II, p. 508, Matlack, Cannon, Young and\\nPaine had influence enough to get their plan adopted in Georgia and\\nVermont, as well as Pennsylvania\\nCon. of Vermont, 1777, sec. xiv.", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0039.jp2"}, "40": {"fulltext": "24 THE REFERENDUM IN AMERICA\\nThis clause was as follows: All bills of public nature shall\\nbe printed for the consideration of the people before they\\nare read in General Assembly the last time for debate and\\namendment, and except on occasions of public necessity, shall\\nnot be passed into laws until the next session of Assem-\\nbly The Governor, Lieutenant-Governor and Treasurer\\nin Vermont, were to be elected by the people annually, instead\\nof by the Assembly as in Pennsylvania.^^ The councilors in\\nVermont were elected by scrutin de liste, that is, on a general\\nticket, while in Pennsylvania each county returned one\\nmember. The unusual feature in the Pennsylvania Consti-\\ntution regarding a Council of Censors was carried over into\\nthe Constitution of Vermont.^^ As in Pennsylvania, the\\ncensors were to meet every seven years, and for the same pur-\\npose, to ascertain whether the Constitution had been pre-\\nserved inviolate in every part etc. The members of thebody,\\nhowever, were again to be elected on a general state ticket,\\ninstead of by counties as in Pennsylvania. This peculiar in-\\nstitution was continued in the later Constitutions of Vermont,\\nand it survived, indeed, until 1870, when the section was\\nfinally abrogated.^^ By this method many conventions were\\nassembled, and a number of amendments made in the funda-\\nmental law of the State.\\nSo early as in 1786, the Constitution of Vermont of 1777\\nwas modifi ed in an important way, and it was declared\\nspecifically in that year that the legislative, executive\\nand judiciary departments shall be separate and distinct, so\\nthat neither exercise the powers properly belonging to the\\nother A Senate in name and in fact, was, however, not\\nSec. 15, Pennsylvania Constitution.\\nIt is true that the councilors sat and voted with the Assembly in\\nthe election of a President and Vice-President in Pennsylvania, but as\\nthere were seventy-two assemblymen, and only twelve councilors, the\\ncouncil was not a very great force. The Assembly, however, was re-\\nstricted in its choice to two of the twelve members of the Council. The\\nConstitution forbade their going outside that body for candidates.\\nCon. of Vermont, sec. xvii. Ibid., sec. xliv.\\nAmendments to the Constitution of Vermont, art. xxv, sec. iv.\\nConstitution of 1786, chap. II, sec. 6.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0040.jp2"}, "41": {"fulltext": "FRENCH AND AMERICAN THOUGHT 25\\nintroduced into the legislative system of the State, until\\ni836.\u00c2\u00ab^\\nLoolcing briefly at the Constitution adopted in Georgia\\nin 1777, which lasted until 1789, we find that it too deviated\\nfrom the Pennsylvania example. It was a carelessly framed\\ndocument. Though this was not true in any sense, it was\\nstated in plain language that the legislative, executive and\\njudiciary departments shall be separate and distinct, so that\\nneither exercise the powers properly belonging to the oth-\\ner The Council was elected by the Assembly from its\\nown body, being virtually therefore a committee of the\\nhouse. The Governor, bravely called by this name, was\\nalso an assemblyman, annually elected to the high post by his\\ncolleagues. The Council was not without legislative power,\\nthough this was only advisory. It was provided in the Con-\\nstitution that all laws and ordinances shall be sent to the\\nexecutive council after the second reading, for their perusal\\nand advice The bills submitted to it were to be returned\\nto the Assembly by the councilors, with the latter s remarks\\nthereon, within five days,^^ and then came a ceremony, which\\nto the disciples of liberty and equality in Pennsylvania would\\nhave been distasteful to the last degree A committee from\\nthe Council sent with any proposed amendments to any law\\nor ordinance, shall deliver their reasons for such proposed\\namendments, sitting and covered; the whole house at that\\ntime except the speaker uncovered It is sufficiently plain\\nin face of the provision establishing this undemocratic rite,\\nthat the Georgian democrats were not firmly grounded in\\nthe new principles of government, as they had lately been\\nexpounded in Philadelphia. But the single house in Georgia\\nwas to be abolished in 1789, and another Constitution was\\nadopted, in which it was declared explicitly at the very be-\\nginning of the instrument that the legislative power shall\\nbe vested in two separate and distinct branches; to wit, a\\nAmendments, art. iii. Art. i.\\n^^Art. ii. ^*Art. xxiii.\\nArt. viil. ^\u00c2\u00aeArt. xxvii.", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0041.jp2"}, "42": {"fulltext": "26 THE REFERENDUM IN AMERICA\\nSenate and House of Representatives, to be styled the Gen-\\neral Assembly\\nHow, now, was it that this peculiar system was instituted\\nin Pennsylvania, and who was responsible for its origin? In\\ngeneral, as has been noted already, there are two facts to be\\nconsidered in explaining the existence of this radically\\ndemocratic feeling in Pennsylvania, and it was not confined\\nto this State alone. Even in Massachusetts, where John\\nAdams influence was greatest, and the Constitution which\\nhe framed has survived to this day, with some relatively\\nslight amendments, there was a considerable body of senti-\\nment favorable to a single house. These two facts were,\\nfirst, the presence in the conventions of large numbers of the\\nfrontiersmen, who had had contests in colonial days with the\\nwealthier property-owning classes, living in or near the cities.\\nThus in Pennsylvania, there had been a hostile feeling for\\nmany years between these elements, owing to the belief gen-\\nerally entertained, that those who could were not paying a\\ndue proportion of the public charges, in order to defend and\\nadvance the interests of all the people, especially those re-\\nsiding in the Western counties, who came frequently in\\ncontact with the Indians. Secondly, there was a conviction,\\nthat when the colonies were freeing themselves from Eng-\\nland, they should discard English government in toto, and\\nthis feeling was intensified by the presence in every com-\\nmunity of bodies of men called Tories, who still continued\\nfriendly to the motherland, and at once came to be regarded\\nwith distrust, when they were not indeed the subjects of great\\npopular odium. Their influence, in so far as they were\\nable to exert any, was, of course, against new constitutions of\\nevery kind in the first instance, and then against those which\\nwere most democratic. It is thus that it was possible for the\\nArt. i, sec. i.\\nJames Madison in The Federalist, no. xlix, says that the early con-\\nstitutions of the American States were formed in the midst of a\\nuniversal ardor for new and opposite forms, produced by the universal\\nresentment and indignation against the ancient government", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0042.jp2"}, "43": {"fulltext": "FRENCH AND AMERICAN THOUGHT 27\\nenthusiasts in Pennsylvania to do what they had done in the\\nConvention, and now to wage their remarkable campaign in\\nits defence which continued throughout the war, and up to\\nthe years 1789 and 1790, when the Constitution, thoroughly\\ndiscredited, was superseded by another of the general Amer-\\nican type.\\nAs for the scholastic and academic side of the movement,\\nwhich gave Pennsylvania this Constitution, it has always been\\nthe custom, and very rightfully indeed, to associate Benjamin\\nFranklin s name with the single-chamber legislative system.\\nThere, however, has been a certain element of doubt respect-\\ning the actual part which Dr. Franklin took, in inflicting\\nupon the State this novel and highly original scheme of\\ngovernment. There is no room for question, that his\\nleanings were wholly in the direction of a single house,\\nthough in the real work of framing the Constitution, he\\nseems not to have had more than an advisory part. He was\\nthe President of the Convention, but he was not regularly in\\nattendance at the sessions. He appended his signature to the\\ninstrument, and before the Convention adjourned, a resolution\\nwas passed by the body, thanking him for the honor he had\\nconferred upon it by filling the chair during the debates on\\nthe most important parts of the Bill of Rights and Frame of\\nGovernment, and for his able and disinterested advice\\nthereon There were others, however, who were con-\\ncerned in the actual draft and these in so far as they have been\\nnamed were Timothy Matlack,^^ James Cannon, Dr. Thomas\\nYoung, Thomas Paine and George Bryan, the last three not\\nhaving been members of the Convention at all, but the leadino-\\nspirits in a small junta, which first by the name of the Whig\\nSociety, and later the Constitutional Society, battled for their\\nMinutes of the Convention, p. 67.\\nTimothy Matlack was originally a member of the Society of Friends,\\nbut in the Revolution left the sect and became a Free Quaker or\\nFighting Quaker It is said that he wore his sword in the streets\\nof Philadelphia. When asked what its use was, he replied, It is to\\ndefend my property and my liberty", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0043.jp2"}, "44": {"fulltext": "28 THE REFERENDUM IN AMERICA\\nbeloved principles as valiantly as did La Rochefoucauld, Con-\\ndorcet, Mirabeau and the other friends of a single legislative\\nassembly and unrestricted popular government throughout\\na contemporary period in France.\\nWhat Franklin s part in the work really was, those who\\nlived at the time have not been very willing to state, though\\nevidence has later been adduced in sufficient quantity to im-\\nplicate him seriously in the framing of the peculiar instru-\\nment. Dr. Franklin s position, not only in America, but in\\nthe world at large, was somewhat unusual. He had been in\\nFrance on at least two occasions prior to his long residence\\nthere of some nine years, while the Revolution was in prog-\\nress in America, when he represented the new States, an\\nimportant mission upon which he embarked shortly after the\\nPennsylvania Convention had adjourned. The first two\\nvisits were made in 1767 and 1769, while he was abroad in\\nthe colonial behalf, defending the American cause at Lon-\\ndon. He seems to have developed a sincere interest while\\nIn speaking of Paine s Common Sense, Mr. Adams says that parts\\nof the latter were merely meant to please the Democratic party in\\nPhiladelphia, at whose head were Mr. Matlack, Mr. Cannon and Dr.\\nYoung. Matlack, Cannon, Young and Paine had influence enough,\\nhowever, to get their plan adopted in substance in Georgia and Ver-\\nmont, as well as Pennsylvania Works of Jno. Adams, Vol. II, pp.\\n507-8. The bill of rights is taken almost verbatim from that of Vir-\\nginia, which was made and published two or three months before that\\nof Philadelphia was begun it was made by Mr. Mason, as that of\\nPennsylvania was by Timothy Matlack, James Cannon and Thomas\\nYoung and Thomas Paine. Ihid. Vol. Ill, p. 220. Cf. Ihid. Vol. IX,\\npp. 617-62^. Alexander Graydon in the Memoirs of His Own Time, Phila-\\nj delphia, 1846, p. 285, says that the Constitution of Pennsylvania was\\nunderstood to have been principally the work of Mr. George Bryan, in\\nconjunction with a Mr. Cannon, a schoolmaster; and it was severely\\nreprobated by those who thought checks and balances necessary to the\\nlegitimate distribution of the powers of government. Doctor Franklin\\nwas also implicated in the production Mr. Bryan, Graydon explains,\\nwas a native Irishman, and it is suggested that on this account he was\\nopposed to the English system of government. He was later a Vice-\\nPresident and then President of the State, holding other offices under\\nthe Constitution, in the defence of which he was always very loyal.\\nCf. article in Pennsylvania Gazette, Oct. 30, 1776.\\nHale, Franklin in France, Boston, 1887, Vol. I, pp. 6 et seq.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0044.jp2"}, "45": {"fulltext": "FRENCH AND AMERICAN THOUGHT 29\\nin Paris in the Physiocratie and made the acquaintance\\nof old Dr. Quesnay/^ the elder Mirabeau, Turgot, Dupont\\nde Nemours, with whom his friendship was of long dura-\\ntion, Dubourg, who translated Franklin s works into French,\\nand others of the Economistes members of that singular\\nsect, who met together and constructed imaginary wealth out\\nof imaginary land, and carried politics and social economy\\ninto one of the strangest phases upon which it has ever en-\\ntered. They declared that the peasant, the tiller of the soil,\\nwas the only producer in society, and Franklin s mind seems\\nto have been in so receptive a condition in respect to political\\nsubjects, that he embraced the cult, or at any rate in a char-\\nacteristic manner led his French friends to think that he was\\none of their number. Little doubt can remain on this point,\\nwhen we consider his letter to Dupont of July 28, 1768, in\\nwhich he acknowledges the receipt of the latter s book on the\\nPhysiocratie for here he says that on reading the work\\nhe received a great deal of instruction from it, that he is\\nperfectly charmed with the principles of the new phil-\\nosophy which he declares he sincerely wishes to grow\\nand increase till it becomes the governing philosophy of the\\nhuman species as it must be that of superior beings in better\\nworlds\\nHis interest in the various eccentric movements in the\\nFrench intellectual life of the time, seems to have been deep,\\nand they awakened in him no sentiments of mental revolt such\\nas other men would have felt, as, for instance, Mr. Adams,\\nwhose political principles were founded on historical knowl-\\nedge, and were well and strongly defined. It was thus in\\nrespect of a single house, and his other visionary and very\\ndemocratic views on the subject of government, for which he\\ncannot escape responsibility in the case of the first Constitu-\\ntion of Pennsylvania. There is enough historical testimony\\nto-day to link his name closely to the names of the other\\nHe was ordained a knight of the order by the laying on of\\nhands by Dr. Quesnay. Adams Works, Vol. I, p. 661,\\nHale, op. cit. Vol. I, pp. 13, 14.", "height": "3681", "width": "2351", "jp2-path": "referenduminamer00ober_0045.jp2"}, "46": {"fulltext": "30 THE REFERENDUM IN AMERICA\\nmen who took a more direct part in the work of writing and\\nadopting the Constitution, and this testimony w.e may pro-\\nceed briefly to present.\\nWe are told that Frankhn s participation in it or appro-\\nbation of it [the work of the Pennsylvania Convention]\\nwas roundly asserted by its fautors Mr. Matlack, who\\nwas in a position to know a great deal concerning the early\\nhistory of the Constitution, wrote in the year 1779, in a politi-\\ncal controversy with Richard Bache, that it was largely the\\nwork of Mr. Bache s venerable father-in-law, Franklin.\\nHe adds, and Mr. Matlack was present on that occasion:\\nWhen the debate was nearly closed. Dr. Franklin was re-\\nquested by the Convention to give his opinion on the point,\\nand he declared it to be clearly and fully in favor of a legis-\\nlature to consist of a single branch as being much the safest\\nand best.\\nThere was a little anecdote generally related at the\\ntime, which we will repeat, as Mr. Adams gives it in one\\nof his useful and interesting political studies. The President\\nof the Convention having been requested for his opinion\\nupon the subject of the number of houses of which a legis-\\nlature should consist, rose and said that two assemblies ap-\\npeared to him like a practice he had somewhere seen, of\\ncertain wagoners who, when about to descend a steep hill\\nwith a heavy load, if they had four cattle, took ofif one pair\\nfrom before, and, chaining them to the hinder part of the\\nwagon, drove them up hill, while the pair before, and the\\nweight of the load overbalancing the strength of those be-\\nhind, drew them slowly and moderately down the hill\\nGraydon s Memoirs, p. 285.\\nTimothy Matlack in an open letter to Mr. Bache in Pennsylvania\\nPacket, March 30, 1779.\\nDefence of the Constitutions of the United States of America,\\nAdams Works, Vol. IV, p. 390. This anecdote is related too by Gray-\\ndon, Memoirs, p. 285 The Doctor, perhaps a sceptic in relation to\\nforms of government, and ever cautious of committing himself, had\\nthrown out an equivoque about a wagon with horses drawing in op-\\nposite directions as upon the adoption of the Federal Constitution,", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0046.jp2"}, "47": {"fulltext": "FRENCH AND AMERICAN THOUGHT 31\\nWhat moral Franklin meant to point by his story it would\\nbe difficult to say with definiteness, and so inconclusive is\\nthis piece of evidence, that perhaps it might well be disre-\\ngarded altogether. So carefully had Franklin concealed his\\nviews from one who should have had unusual means of\\nknowing them, that in 1787, John Adams, in ascribing to\\nFranklin a sentiment favorable to a single house, spoke of it\\nas the latter s reputed opinion I say reputed Mr.\\nAdams explains, because I am not able to affirm that it is\\nreally his. It is, however, so generally understood and re-\\nported, both in Europe and America, that his judgment was\\nin opposition to two assemblies, and favorable to a single one,\\nthat in a disquisition like this it ought not to be omitted.\\nFranklin s arrival in France late in the year 1776, whither\\nhe went as one of the officially deputized agents of the Amer-\\nican Congress, to secure the sympathy, and if possible the\\nactive aid of that nation for the colonies in their struggle\\nagainst the English crown, was the occasion of many flat-\\ntering marks of attention. The friends whom he had made\\non his earlier visits, had not forgotten him. His writings\\nhad been widely circulated in Europe, and there were few\\nwho did not know his name, and were not prepared cordially\\nto welcome him as the representative of the people who had\\nso lately declared themselves an independent nation. He was\\nhonored by the Academy of Sciences in Paris. D Alembert,\\nthe mathematician and philosopher, Condorcet, the philoso-\\npher and encyclopaedist, Turgot, the man of letters, public\\nfinance and statecraft, the Duke de La Rochefoucauld, and\\nhe told a pleasant story of a self-complacent French lady who nad\\nalways found herself in the right. But whether he meant by his rustic\\nallusion to show his approbation to checks or otherwise, is an enigma\\nthat has never been solved. The anecdote is repeated also by Jared\\nSparks, in his Life of Franklin, Works, Vol. I, 1840, p. 409. Also by\\nLaboulaye, Histoire Politique des Etats Unis, Paris, 1855, Tome I,\\np. 367-\\n^Defence, Vol. IV, p. 389-\\nLouis-Alexandre, Due de La Roche-Guyon et de La Rochefoucauld\\nd Anville was born in 1743. He was the son of the great-granddaughter\\nof the Duke de La Rochefoucauld, who was the author of the Maximes.\\nh", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0047.jp2"}, "48": {"fulltext": "32 THE REFERENDUM IN AMERICA\\nmany other leaders of that elegant and visionary school in\\nliterature and science, of which Rousseau, Diderot and Vol-\\ntaire were still more distinguished representatives, received\\nle grand Franklin as the living precursor of the new\\nsocial order, of which they had written and said so much.\\nHe was looked to as one of the chiefs of the new democracy,\\nthe leading tenet of whose creed was human equality, and\\nuniversal brotherhood, a great idealist movement, world en-\\ncompassing, comparable in some degree to the socialist cos-\\nmopolitanism that we are confronted with to-day. He at-\\ntired himself in what was believed to be true democratic\\nsimplicity. With his fur-hat and other odd articles of rai-\\nment, the enthusiastic disciples of J. J. Rousseau saw in him\\na living image of the old heroes and philosophers of Greece\\nand Rome.^\u00c2\u00b0 The American Constitutions, and especially\\nthat of Pennsylvania, were translated into French. One col-\\nlection was published in Switzerland so- early as in\\n1778,^^ and another in 1783 at Franklin s own sug-\\ngestion, and under his personal direction, by the Duke de\\nLa Rochefoucauld.^^ Franklin having been the Presi-\\ndent of the Pennsylvania Convention, the Constitution of\\nthat State was looked upon as the embodiment of his\\nown views. Whether it was the truth or not there is nowhere\\na record that would tend to show that he tried to disabuse\\nthe minds of his admirers in France of this idea. Europe\\nwas allowed to draw the inference that the Constitution was\\nhis own work, and as Adams has somewhere said, it was by\\nremaining passive, and by permitting others by indirection, to\\narrive at their conclusions without his saying yes or no, that\\nShe made her home the assembling place for philosophers and economists\\nof the eighteenth century and like her son numbered among her friends\\nmany notable personages,\\nCf. Lecky, History of England in the i8th Century, New York, 1882,\\nVol. IV, p. 52 Benjamin Franklin, Chef de la Democratie Americaine\\npar M. Belot, Lyons, 1886, p. 5.\\nJellinek, Die Erkldrung der Menschen-iind Buergerrechte, p. 10.\\nCf. Larousse, Dictionnaire Universel under La Rochefoucauld\\nBorgeaud, Etahlissement et Revision des Constitutions en Ainerique et\\nen Europe, Paris, 1893, p. 27,", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0048.jp2"}, "49": {"fulltext": "FRENCH AND AMERICAN THOUGHT 33\\nthe American philosopher increased his fame and reputa-\\ntion. There was no doubt in France then, and there is Uttle\\namong historians there to-day, that he was the real author of\\nthis document. It was everywhere in Europe a subject\\nof admiration by those who were identified with the literary\\nmovement which was preparing the way for the French\\nRevolution, and which was then at the height of its author-\\nity,\u00c2\u00ae^ and they were the leaders of the Revolution who at\\nFranklin s death stopped in the midst of their horrible career\\nof tyranny and murder to eulogize his memory.\\nA meeting was arranged in Paris between Voltaire and\\nFranklin, of which there are different versions. These two\\napostles of liberty, the old French patriarch, and the simple\\nfriend of the people from America, the first to give their\\nliterary theories practical form in the new republic of Penn-\\nsylvania, embraced each other amid the plaudits of a large\\nnumber of onlookers.** The interest which the liberal writers\\nof Europe had expressed in Pennsylvania, however, accord-\\ning to Laboulaye, antedated Franklin s appearance upon the\\nscene in Paris. William Penn had been regarded as a law-\\ngiver so wise and tolerant, that now it was the most natural\\nthing in the world for the State to abolish the representative\\nsystem, which it had almost done in the Constitution of\\n1776, and to restore the people to all their natural rights\\nand privileges. It was Penn s peculiar service to the liberal\\ncause, we are told, which explains and justifies the admira-\\ntion of the last century for the Republic of Pennsylvania.\\nPenn was for the writers of the eighteenth century a phil-\\nosopher rather than the leader of a sect. Philadelphia was the\\ncity of toleration; Pennsylvania was the promised land of\\nthe philosophers. h jj^ ^^q words, what Utopia was\\nCf. Mignet, Vie de Franklin, 12th edition, Paris, 1885, pp. iii\\net seq. P. A. Changenr, Comment on devient un homme, 1894, p. 256,\\nLaboulaye, Hlstoire Politique des Etats Unis, Tome I, pp. 367 et seq.\\nA most dramatic account of this incident is contained in Belot,\\nBenjamin Franklin, Chef de la Democratie Americaine, Lyons, 1886.\\nCf. Adams Works, Vol. Ill, p. 147, and Life of Voltaire by Con-\\ndorcetj Oeuvres Complete, Vol. C, p. 161.", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0049.jp2"}, "50": {"fulltext": "34 THE REFERENDUM IN AMERICA\\nto Thomas More and Salentum to Fenelon, Pennsylvania\\nwas to Voltaire\\nIt was about this time, too, that a print had appeared\\nin France. It was sent on to America, having been designed\\nand executed, it is said, by a celebrated hand It was\\nentitled Doctor Franklin, Crowned by Liberty It ex-\\nhibited a bust of Franklin being crowned by laurel leaves.\\nAt his right hand was a globe with the Continent of America\\nin view. In the background and leaning on the globe, was\\na figure which was described in the newspapers of the period\\nas the genius of the Doctor with the sword of justice in\\nits right hand, while in its left hand, falling open over the\\nglobe, was a scroll upon which was inscribed the words Con-\\nstitution of the government of Pennsylvania\\nTo me it does not appear likely that the French philoso-\\nphers were wholly indebted to Pennsylvania for their opin-\\nions in respect of government, as enthusiastically as they\\nreceived Franklin s Constitution, and studied it as the true\\nexpression of democracy. It scarcely seems safe, therefore,\\nto go so far as Professor Jellinek would take us, by infer-\\nence at least, in making America the leader in the democratic\\nmovement of the eighteenth century, since Turgot, Condorcet\\nand the Duke de La Rochefoucauld were scarcely the dis-\\nciples of Franklin. They were his friends, because it would\\nappear of what they thought he represented, not for what\\nthey actually knew about his politics. He was influenced,\\nin all likelihood, very much more by them than they by him,\\na conclusion from which there is no apparent avenue of\\nescape.\\nIt was Turgot that in March, 1778, wrote a letter to Dr.\\nRichard Price, an English political writer, who had taken\\nan interest in constitutional subjects at this time, attacking\\nthe American Constitutions, in that there was an unreason-\\nLaboulaye, op. cit. Tome I, pp. 370-71. See, too, Voltaire s amus-\\ning apostrophe to the Quakers in his Dictionnaire Philosophiqiie,\\nArticle on the Quakers.\\nArticle in Pennsylvania Packet, March 30, 1779. Op. cit.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0050.jp2"}, "51": {"fulltext": "FRENCH AND AMERICAN THOUGHT 35\\nable imitation of the usages of England Different bodies\\nwere established, the sovereignty was divided, and they had\\nthen tried to balance these different authorities. But one\\nConstitution, that of Pennsylvania, seems to have met with\\nM. Turgot s admiration.\u00c2\u00ae\u00c2\u00ae It was this letter which led Adams\\nto write his spirited Defence of the Constitutions of the\\nUnited States of America against the attack of M. Turgot\\netc., a work in three volumes, which exerted an important\\ninfluence in the Federal Convention of 1787. It is an\\nhistorical writing upon which the author expended a very\\ngreat deal of effort, while representing the American States\\nat London.\\nAdams Works, Vol. IV, p. 278.\\nIn a letter to John Taylor Mr. Adams says M. Turgot had seen\\nonly the Constitutions of New York, Massachusetts and Maryland, and\\nthe first Constitution of Pennsylvania. His principal intention was to\\ncensure the three former. The drift of my whole work was to\\nvindicate these three Constitutions against the reproaches of that great\\nstatesman, philosopher and really excellent man, whom I well knew\\nWorks, Vol. VI, p. 486. Again he says Franklin, Turgot, Roche-\\nfoucauld and Condorcet, under Tom. Paine, were the great masters of\\nthat academy [the School of folly]. Ihid., Vol. VI, p. 403. No-\\nwhere else has Adams summed up his work in combating the French\\nphilosophy so well as in the following passages: In 1775 and 1776\\nthere had been great disputes in Congress and in the several States,\\nconcerning a proper constitution for the several States to adopt for\\ntheir government. A Convention in Pennsylvania had adopted a govern-\\nment in one representative assembly, and Dr. Franklin was the President\\nof that Convention. The Doctor, when he went to France in 1776,\\ncarried with him the printed copy of that Constitution, and it was im-\\nmediately propagated through France that this was the plan of govern-\\nment of Mr. Franklin. In truth, it was not Franklin, but Timothy\\nMatlack, James Cannon, Thomas Young, and Thomas Paine, who were\\nthe authors of it. Mr. Turgot, the Duke de La Rochefoucauld, Mr.\\nCondorcet and many others, became enamored with the Constitution\\nof Mr. Franklin. And in my opinion, the two last owed their final and\\nfatal catastrophe to this blind love. In 1780, when I arrived in France,\\nI carried a printed copy of the report of the Grand Committee of the\\nMassachusetts Convention, which I had drawn up and this became an\\nobject of speculation. Mr. Turgot, the Duke de La Rochefoucauld,\\nand Mr. Condorcet and others, admired Mr. Franklin s Constitution,\\nand reprobated mine. Mr. Turgot in a letter to Dr. Price, printed\\nin London, censured the American Constitution as adopting three\\nbranches in imitation of the Constitution of Great Britain. The inten-", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0051.jp2"}, "52": {"fulltext": "-A 36 THE REFERENDUM IN AMERICA\\nMirabeau followed Turgot in a pamphlet enforcing the\\nviews of the latter in respect of the merit of a simple cen-\\ntralized government. Condorcet s sympathy with the same\\nphilosophy is not to be mistaken^ and his sentiments may\\nbe gleaned from more than one of his writings. The Duke\\nde La Rochefoucauld was a firm believer in the same prin-\\nciples and in his Eulogy of Franklin in 1790, in speaking of\\nthe American philosopher s political views, gave him un-\\nmeasured praise for the authorship of the Pennsylvania\\nConstitution. The Duke on this occasion said Franklin\\nalone disengaging the political machine from those multiplied\\ntion was to celebrate Franklin s Constitution and condemn mine. I\\nunderstood it, and undertook to defend my Constitution, and it cost me\\nthree volumes. In justice to myself, however, I ought to say that it\\nwas not the miserable vanity of justifying my own Avork, or eclipsing\\nthe glory of Mr. Franklin s that induced me to write. I never thought\\nof writing till the Assembly of Notables in France had commenced a\\nrevolution with the Duke de La Rochefoucauld and Mr. Condorcet at\\ntheir head, who I knew would establish a government in one assembly,\\nand that I knew would involve France and all Europe in all the horrors\\nwe have seen carnage and desolation for fifty, perhaps for a hundred,\\nyears. At the same time every western wind brought us news of town\\nand county meetings in Massachusetts, adopting Mr. Turgot s ideas,\\ncondemning my Constitution, reprobating the office of governor, and the\\nassembly of the Senate, as expensive, useless and pernicious, and not\\nonly proposing to toss them off, but rising in rebellion against them.\\nIn this situation I was determined to wash my hands of the blood that\\nwas about to be shed in France, Europe and America, and show to the\\nworld that neither my sentiments nor actions should have any share in\\ncountenancing or encouraging any such pernicious, destructive and fatal\\nschemes. j \u00e2\u0096\u00a0y^g.s personally acquainted with Mr. Turgot, the\\nDuke de La Rochefoucauld and Mr. Condorcet. They were as amiable,\\nas learned and as honest men as any in France. But such was their\\ninexperience in all that relates to free government, and so obstinate\\ntheir confidence in their great characters for science and literature,\\nthat I should trust the most ignorant of our honest town meeting\\norators to make a Constitution, sooner than any or all of them John\\nAdams letter to Samuel Perley, June 19, 1809, Works, Vol. IX, pp. 621\\net seq. Cf. ibid., Vol. IV, p. 389.\\nSee particularly Quatres lettres d un Bourgeois de Nezv Haven, sur\\nI Unite de la Legislation which drew out Adams Discourses on Davila.\\nThese four letters are published in the first velume of Mazzei s Re-\\ncherches historiqties et politiques sur les Etats Unis de I Amerique sep-\\ntentrionale cf. also Condorcet s Eloge de Franklin.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0052.jp2"}, "53": {"fulltext": "FRENCH AND AMERICAN THOUGHT 37\\nmovements, and admired counterpoises that rendered it so\\ncomplicated, proposed the reducing it to the simpHcity of a\\nsingle legislative body. This grand idea startled the legisla-\\ntors of Pennsylvania, but the philosopher removed the fears\\nof a considerable number, and at length determined the\\nwhole to adopt a principle which the national assembly has\\nmade the basis of the French Constitution In a note to\\nthe above passage in the printed edition of his oration, the\\nDuke de La Rochefoucauld, on the subject of a single legis-\\ntive assembly, added the following remarks Franklin was\\nthe first who dared to put this idea into practice. The respect\\nthe Pennsylvanians entertained for him induced them to\\nadopt it; but the other States were terrified at it, and even\\nthe Constitution of Pennsylvania has since been altered. In\\nEurope this opinion has been more successful.\u00c2\u00ae^ When I had\\nthe honor to present to Franklin the translations of the Con-\\nstitutions of America the minds of people on this side the\\nAtlantic were scarcely better disposed toward it than those\\non the other side and if we except Dr. Price in England, and\\nTurgot and Condorcet in France, no man who applied him-\\nself to politics agreed in opinion with the American phil-\\nosopher. I will venture to assert that I was of the small\\nnumber of those who were struck with the beauty of the\\nsimple plan he traced, and that I saw no reason to change\\nmy opinion when the national assembly led by the voice of\\nthose deep thinking and eloquent orators who discussed that\\nimportant question, established it as a principle of the French\\nConstitution that legislation should be confided to a single\\nbody of representatives. It will not perhaps be deemed un-\\npardonable to have once mentioned myself at a time when the\\nhonor I have of holding a public character makes it my duty\\nto give an account of my sentiments to my fellow citizens.\\nFrance will not relapse into a more complex system, but will\\nassuredly acquire the glory of maintaining that which she\\nhas established, and give it a degree of perfection^ which,\\nRochefoucauld himself soon after met his death from a mob, as a\\nresult of the success which the opinion gained in France.", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0053.jp2"}, "54": {"fulltext": "3^ THE REFERENDUM IN AMERICA\\nby rendering a great nation happy, will attract the eyes and\\nthe applauses of all Europe, and of the whole world.\\nSuch eloquent words would have better graced a worthier\\ncause than this one, which had already been wholly dis-\\ncredited in Pennsylvania, and was leading France into a\\nperiod, the darkest and gloomiest in her whole history. The\\nsympathy the members of this group felt, the one for the\\nother, is indicated in Franklin s correspondence in a letter\\ndated Paris, February 8, 1786,^^ after his return to America,\\nand his election to the Presidency of Pennsylvania, which the\\nConstitutionalists and Anti-Constitutionalists united\\nin, asking him to accept.^ In complimenting Franklin upon\\nthe resolution he had shown in the face of the demands which\\nhad been made upon him, and transmitting the friendly re-\\ngards of Condorcet, the Duke de La Rochefoucauld said\\nI know that two powerful and nearly equal parties support\\ndifferent principles as the basis of the Constitution; but no-\\nbody is better qualified than yourself to conciliate both of\\nthem, and to obtain not perhaps the Constitution, most\\nabsolutely perfect, but at least, as Solon said, the best which\\nyour fellow citizens are able to bear. This is the critical\\nmoment for the Americans. The return of peace and the\\ncertainty of independence demand of them a general revision\\nof their laws, and the formation of new, codes, no longer a\\nservile imitation of the laws of England, but dictated by rea-\\nson, conformed to their actual situation, and adapted to insure\\nthe happiness of states and individuals. In legislation you\\nmust be the teachers of the world.\\nIn two letters to his friend in France, M. LeVeillard, who\\nMemoirs of the Life and Writings of Beiijamin Franklin, by Wm.\\nTemple Franklin, London, 1818. Vol. I, p. 303. Temple Franklin says\\nhere that the Pennsylvania Constitution of 1776 may be considered\\nas a digest of Dr. Franklins principles of government. The single\\nlegislature and the plural executive appear to have been his favorite\\ntenets.\\n\u00c2\u00b03 Sparks, Vol. X, p. 247.\\nCf. Letter of Franklin to the Duke de La Rochefoucauld, Phila.,\\nApril 15, 1787, in Temple Franklin s Collection Vol. II, p. 97.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0054.jp2"}, "55": {"fulltext": "FRENCH AND AMERICAN THOUGHT 39\\nwas another loyal adherent of the same philosophy, Franklin\\nexpresses his views regarding the plan for two chambers in\\nthe Federal system, as arranged for by the new Constitution\\nof the United States, of 1787. In the first letter, he says I\\nam of opinion with you that the two chambers were not\\nnecessary, and I disliked some other articles that are in the\\nproposed plan And in the second letter he says As\\nto the two chambers, I am of your opinion that one alone\\nwould be better, but, my friend, nothing in human affairs and\\nschemes is perfect, and perhaps this is the case of our opin-\\nions/\\nIf any further evidence were needed to indicate what\\nwere Franklin s sympathies at the time of the adoption of\\nthe Pennsylvania Constitution, or what they had come to be\\nas a result of his long residence in France, it should be sup-\\nplied in a paper attributed to Franklin, and published as his\\nin William Temple Franklin s collection of his writings,\u00c2\u00ae\\nunder the rubric Queries and Remarks on a paper entitled\\nHints for the members of the Convention These\\nHints were originally published in a newspaper appearing\\nin Carlisle, Pa., being reprinted in the Federal Gazette,\\nNovember 3, 1789, and also in some of the other\\nPhiladelphia journals. The articles were signed A\\nFarmer and were strongly written arguments for a re-\\nvision of the Constitution of the State of Pennsylvania, so\\nthat its form would be put in harmony with the other Amer-\\nican governments. To these a reply, ascribed to Dr. Franklin,\\nwas addressed, and it is a defence of the Constitution of 1776,\\nso vigorously worded that if it is an authentic document,\\nwhich, from its style it would appear to be, there can be no\\nquestion raised hereafter as to Franklin s true position re-\\nspecting two legislative chambers.\u00c2\u00ae*\\nLetter to LeVeillard, dated Phila., April 22, 1788, in Temple Frank-\\nlin, Vol. I, p. 391.\\nLetter to LeVeillard, Phila., Oct. 24, 1788, ibid. Vol. I, pp. 395-96.\\nVol. I, Appendix no. 9.\\nThe writer has been tinable to find these Queries and Remarks", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0055.jp2"}, "56": {"fulltext": "40 THE REFERENDUM IN AMERICA\\nAssuming that Franklin was the author of this paper,\\nwhich it seems perfectly safe to do, we find that here agam\\nhe defended the plural executive, and doubted the expediency\\nof placing a single individual in such a place of power as\\nthe Governor s seat. It was desired that Pennsylvania should\\nhave a Governor like the other States, a system which\\nFranklin professed to think would gravely imperil demo-\\ncratic institutions. In order to secure independence and\\nstability of administration it had been asserted that the\\nchief magistrate should be beyond the reach of every annual\\ngust of folly and of faction Does not this reasoning\\nFranklin inquired, aim at establishing a monarchy at least\\nfor life, like that of Poland?\\nIn respect of the legislature of two chambers, Franklin\\npointed to the unfortunate experiences which the colony had\\nhad with a second branch, in which the proprietary family\\nand the aristocratic element were often successful in defeat-\\ning the popular will. The influence which the unusually pro-\\nlonged and bitter contests with the proprietors had exerted\\nupon Franklin s mind, and no doubt upon the minds of many\\nother men who were now the advocates of a single house of\\nassembly in Pennsylvania, is here clearly indicated. How\\nmany delays, he says, and what great expenses were oc-\\ncasioned in carrying on the public business, and what a train\\nof mischiefs, even to the preventing of the defence of the\\nprovince during several years, when distressed by an Indian\\nwar, by the iniquitous demand that the proprietary property\\nshould be exempt from taxation He predicted long dis-\\nputes between the chambers, were there two co-equal in\\nauthority, and pointed to the experience in some neighboring\\nStates, where with two bodies serious deadlocks then existed.\\nThe rather amusing suggestion was offered that so Httle\\npublic wisdom might be at hand, that were it divided be-\\namong any of the other collections of Franklin s writings. As the paper\\nis so positive and unequivocal in its language, an investigation as to its\\nsource would be an interesting historical study.\\nCf. Laboulaye, op. cit., Tome I, p. z^y.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0056.jp2"}, "57": {"fulltext": "FRENCH AND AMERICAN THOUGHT 41\\ntween two houses, each would perhaps be too weak to\\nsupport a good measure or obstruct a bad one The pres-\\nence of a plural legislature in England was due, he argued,\\nto the pre-existing prevalence of an odious feudal system\\nThe proposal that the two branches should be elected by dif-\\nferent interests, one representing wealth, the other being a\\nmore popular body, he found to be contrary to the spirit of\\nall democracies With two houses there was an assump-\\ntion that wdsdom is the necessary concomitant of riches\\nHe illustrated his dislike of two chambers by telling another\\ncharacteristic anecdote. Has not the famous political fable\\nof the snake with two heads and one body some useful in-\\nstructions contained in it he inquired. She was going\\nto a brook to drink, and in her way was to pass through a\\nhedge, a twig of which opposed her direct course. One head\\nchose to go on the right side of the twig, the other on the left,\\nso that time was spent in the contest, and before the decision\\nwas completed, the poor snake died of thirst\\nFranklin concluded this rather passionate defence of the\\nexisting Constitution of Pennsylvania as follows I am\\nsorry to see a disposition among some of our people to com-\\nmence an aristocracy, by giving the rich a predominancy in\\ngovernment, a choice peculiar to themselves in one half the\\nlegislature to be proudly called the upper house, and the other\\nbranch chosen by the majority of the people degraded by the\\ndenomination of the lower, and giving to this upper house a\\npermanency of four years, and but two to the lower I hope,\\ntherefore, that our representatives in the Convention will not\\nhastily go into these innovations, but take the advice of the\\nprophet, Stand in the old ways, view the ancient paths.\\nConsider them well and be not among those that are given to\\nchange\\nIt would be hard to think of any quotation of which\\nFranklin was so fond, more inappropriate in this connection,\\nthan an appeal now to stand in the old ways if he meant\\nthis to be an argument for the retention of a Constitution\\nwhich w^as one fabric of innovations. Throughout all these", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0057.jp2"}, "58": {"fulltext": "4^ THE REFERENDUM IN AMERICA\\nthirteen years since it had been adopted, the chief objection\\nto it had been that it was new, and in total disaccord with the\\nhabits, desires and traditions of the British people, of which\\nthe Pennsylvanians were still a living branch. The Declara-\\ntion of Independence had not made them over again. It\\nwas not more possible then, than it is to-day, to create con-\\nstitutions, and to introduce legal and political forms which\\nhave no basis in the empirical knowledge of men as they con-\\nduct themselves, in reference to other men as members of\\nsociety. Therefore, we may conclude, if our testimony here\\nis trustworthy, that whether or not Franklin had a direct part\\nin originally framing the Constitution of Pennsylvania of\\n1776, he was at any rate a loyal defender of its principles.\\nFranklin s character in a general way is a hackneyed\\ntheme. Considerations as to his life and influence do not\\nconcern us here, except as they tend to show the close connec-\\ntion which existed between French and American thought at\\nthis period, thus giving us a clearer insight into a most pe-\\nculiar phase of the development of popular government in this\\ncountry. It seems to be accepted that what Franklin achieved\\nin France, in securing that nation s aid in behalf of the colo-\\nnies, was not due to his friendship for two chambers or one\\nchamber of legislature, or liberty or the French school of\\nphilosophy, which then appears to have had no representative\\nin the government, M. Turgot having already been dismissed\\nfrom his high place in the state. In the cabinet of Louis\\nXVI. generosity of spirit or sympathy with liberty was not\\neven thought of as a motive for the alliance with the\\nAmerican states. France s course was determined on in\\norder to humiliate and break the power of Great Britain.\\nThere may have been other considerations which impelled\\nFrench volunteers to cross the ocean and enlist under the\\nAmerican standard, but that is quite a different matter. It\\nwould be a mistake not to make allowance for the fact that\\nFranklin s universal reputation as a philosopher, had con-\\nstituted him a much more useful representative of this gov-\\nChas. Francis Adams Life of John Adams Works, Vol. I, p. 309,", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0058.jp2"}, "59": {"fulltext": "FRENCH AND AMERICAN THOUGHT 43\\nernment in France, than he otherwise could have been. How\\nhis fame had been gained, would form a rather curious study,\\nthough it could not affect the result, and history has definitely\\nassigned him a high place among the founders of the Ameri-\\ncan nation. To regard him as a scientist and philosopher,\\nwhich was the habit of the time, would reflect very greatly\\nupon the state of the development of science and philosophy\\nin the i8th century. Neither, of course, then enjoyed a very\\nhigh position, as we understand the terms to-day. The\\nphysicists would scarcely now claim Dr. Franklin as an ex-\\nponent of their science, and yet he was regarded by large\\nnumbers of people at that time, as a greater one than Newton.\\nNo one would think of placing Franklin s name among the\\nimmortals in a history of philosophy, a peer of Leibnitz, for\\ninstance, with whose name his was often coupled also.\\nIf philosophy is the science of all the sciences, as we are\\ndisposed to think to-day, it is not likely that Dr. Franklin\\ncould have been a master in this great empire of knowledge.\\nHis own early education was deficient, as Mr. Charles Francis\\nAdams somewhere observes in explanation of Franklin s\\nerratic ideas on many subjects. If we view him as a po-\\nlitical philosopher, Mr. Adams words seem almost too chari-\\ntable, and yet among philosophers, none then appeared to\\nhave more general appreciation and respect, either in this\\ncountry or in Europe. He was himself the member of\\nlearned societies abroad, and nearly all his friends in France\\nwere proposed for and elected to membership in his Philo-\\nsophical Society in Philadelphia. His scientific reputation\\nwas truly a phenomenon as Mr. John Adams says in one\\nof his amusing estimates of the man.^*^^ Leibnitz, Newton,\\nFrederick of Prussia and Voltaire, all seemed like lesser stars\\nin the firmament to great multitudes of people. The fe-\\nAdams Works, Vol. I, p. 649, Appendix, Adams letter to Boston\\nPatriot in 181 1.\\nHis name was familiar to government and people, to kings,\\ncourtiers, nobility, clergy and philosophers, as well as plebeians, to\\nsuch a degree that there was scarcely a peasant or a citizen, a valet de\\nchambre, coachman or footman, a lady, chambermaid or a scullion in a", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0059.jp2"}, "60": {"fulltext": "*4 THE REFERENDUM IN AAIERICA\\nmale sex knew his name in connection with the service\\nhe rendered them in increasing their assurance during thun-\\nderstorms, by reason of the iron points which he placed upon\\nbuildings to lead the lightning down. The printers all\\nclaimed him as one of their guild, and they eulogized\\nhim in whatever country newspapers were published. He\\nwas looked upon as the friend of all churches, and again\\nas a French atheist. In politics he was always a friend of\\ngovernment in its most popular forms, a politician wherever\\nhe turned, rather than a scientist or a great statesman whose\\nwork will live through time, as universally familiar as his\\ncontemporaries were with his name. It would be a serious\\nerror, therefore, to underestimate Franklin s influence in\\nAmerica and in France and to allege that he was not a power-\\nful factor in shaping the political ideas of his fellow men,\\nwho, in many circles, respected him so highly, if we can show\\nthat he had definite convictions in regard to the philosophy\\nof government, which has been the sole object of the studies\\nthat have resulted in my writing the present chapter.\\nkitchen, who was not familiar with it, and who did not consider him a\\nfriend to human kind. When they spoke of him, they seemed to think\\nthat he was to restore the golden age. To develop that com-\\nplication of causes which conspired to produce so singular a phenom-\\nenon, is far beyond my means or forces. Perhaps it can never be done\\nwithout a complete history of the philosophy and politics of the\\neighteenth century. Such a work would be one of the most important\\nthat ever was written much more interesting to this and future ages,\\nthan the Decline and Fall of the Roman Empire splendid and use-\\nful as that is. Works, Vol. I, p. 660.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0060.jp2"}, "61": {"fulltext": "CHAPTER II\\nTHE DOWNFALL OF FRANKLIN s GOVERNMENT IN PENNSYL-\\nVANIA\\nThe Pennsylvania Constitution of 1776 was destined to\\nhave an unusually chequered career, all of which may be only\\nbriefly outlined here. A considerable number of the members\\nof the Convention had refused to sign it, in this way express-\\ning their dissatisfaction with the instrument. Among the\\nnumber were George Ross, the Vice-President of the Con-\\nvention, who presided in Franklin s absence, and George\\nClymer. Very vigorous opposition to the Constitution was\\ndeveloped in Philadelphia, so soon as the frame of govern-\\nment was made public. Thomas McKean, who was the\\nPresident of the provincial conference from which the conven-\\ntion derived its powers, and of whom it was said that without\\nbook or written document of any kind, he one night drew up\\nan instrument of government, which, with very little change,\\nwas approved and adopted as the Constitution of the State\\nof Delaware,^ John Dickinson, Dr. Benjamin Rush, Col-\\nonel John Bayard and James Wilson, to name but a few of the\\neminent men of the city numbered among the Anti-Consti-\\ntutionalists, openly expressed their dissent with the new\\nprinciples. Public meetings were called, and were largely\\nattended, resolutions were adopted, and many objections to\\nthe new Constitution were stated in extenso. It was declared\\nThat the said Constitution differs not only unnecessarily\\nfrom that to which the people have been accustomed, but in\\nmany important articles from every government that has\\nlately been established in America on the authority of the\\npeople, from the sentiments of the honorable Continental\\nCalled for this reason the Lycurgus of Delaware State Cf.\\narticle in Pennsylvania Gazette, October 30, 1776.\\n45", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0061.jp2"}, "62": {"fulltext": "46 THE REFERENDUM IN AMERICA\\nCongress respecting government, from those of the most dis-\\ntinguished authors who have deHberately considered that\\nsubject\\nIt was proposed in order to defeat the purposes of the Con-\\nvention, and secure, if possible, another government, that\\nat the first election under the Constitution, which was to\\noccur on November 5, 1776, the electors and election officers\\nshould refuse to take an objectionable oath of fealty to the\\nState which the Convention had prescribed f that the assem-\\nblymen when they should be elected, should not take an offen-\\nsive religious oath, which was too liberal, and was considered\\nto look toward atheism.* It was recommended that council-\\nors should not be chosen at the elections in November, of\\nwhich officers it will be noted each county was to return one.\\nThe new Assembly, it was declared, ought to have full pow-\\ners to make such alterations and amendments in the Consti-\\ntution as the members might consider to be necessary and\\nproper.^\\nAs a consequence, in the elections of November in Phila-\\ndelphia city and Philadelphia county, the oaths were omit-\\nted, and councilors were not chosen, quite in accordance\\nwith the plan which had been concertedly agreed upon.\\nAnti-Constitutional candidates were elected to the Assembly,\\nand it was understood that when they met they should at\\nonce proceed to a revision of the Constitution. From other\\nparts of the State, however, candidates who viewed the Con-\\nstitution with greater favor, were returned, though it is said\\nIf that not more than 2,000 voters exercised the suffrage\\nthroughout the entire State.\u00c2\u00ae\\nResolutions of meeting in the State House yard, Philadelphia, Octo-\\nber 21-22, 1776; of. Pennsylvania Gazette, October 23, 1776.\\nSection 40 of Constitution. Also ordinance of convention, in Minutes\\nof Convention, p. 56.\\nSec. 10 of the Constitution; cf. Resolutions of the meeting in the\\nState House yard, sec. 26.\\nIbid.\\nThis Constitution was no sooner published, than it was reprobated\\nby a great body of the people. Some of the members of the convention", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0062.jp2"}, "63": {"fulltext": "DOWNFALL OF FRANKLIN S GOVERNMENT 47\\nWhen the Assembly met the opponents of the Constitu-\\ntion were strong enough, to effect one thing at least. By\\nrefusing to take their seats, they could prevent the house from\\norganizing. John Dickinson, who led the Anti-Constitution-\\nalists, seeing that there was no prospect of amending the\\nConstitution through the Assembly, early in the session made\\nthe following proposition\\nOn behalf of myself and of others of my constituents, I\\nagree that we will consent to the choice of a Speaker, sit with\\nthe other members, and pass such acts as the public affairs\\nmay require, provided that the other members, the majority,\\nwill agree to call a free convention for a full and fair repre-\\nsentation of the freemen of Pennsylvania, to meet on or\\nbefore the day of January next, for the purpose of re-\\nvising the Constitution framed by the late Convention, and\\nmaking such alterations and amendments therein as shall\\nby them be thought proper/ etc. The proposal having not\\nbeen received with favor by the majority of the members,\\nwho composed it were insulted upon returning to their respective coun-\\nties. Unfortunately for the State, General Howe invaded New Jersey,\\nand pointed towards an attack upon the capital of Pennsylvania about\\nthe time fixed upon by the convention for the election of an assembly\\nto execute the Constitution. A government of some kind became neces-\\nsary to collect the force of the State to resist the approaching enemy.\\nAbout two thousand voters only appeared in favor of an assembly.\\nThe members chosen took their seats, and after setting aside several\\nparts of the Constitution which they had previously sworn to main-\\ntain, they undertook to execute the parts of it which remained. So\\nobnoxious was the Constitution to the best men in the State, that the\\nExecutive Council, after tempting a number of them with the first of-\\nfices in the government to no purpose, were obliged to call a Chief\\nJustice and an Attorney General from the neighboring States.\\nPennsylvania Packet, Feb. 2, 1779. It was in vain that some men of\\nmore prudence and foresight in the convention objected to many parts\\nof the proposed Constitution in every stage of its progress. It was car-\\nried as it now appears, in heat and in haste. Necessity, the tyrant s\\nuseful plea, was urged for carrying it into immediate execution, with-\\nout submitting it to the discussion or sovereign sanction of the people.\\nScarce a twentieth part of the people would countenance the Consti-\\ntution by giving a vote under it at the first election. Article in Penn-\\nsylvania Packet, Feb. 6, i779-", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0063.jp2"}, "64": {"fulltext": "48 THE REFERENDUM IN AMERICA\\nDickinson and several of his colleagues withdrew from the\\nhouse, which had the result of breaking a quorum.\\nThe situation was so grave, however, by reason of the ap-\\nproach of the British army, that the Continental Congress,\\nin the absence of any organized authority in the State,\\nthreatened to intervene and establish a provisional govern-\\nment. The contending factions therefore agreed to elect a\\nspeaker, and proceed to the transaction of business, though\\nDickinson and his immediate following still refused to occupy\\ntheir seats. Writs were issued by the speaker in February,\\n1777, for the election of members in their places. Council-\\nors and other officers were also chosen at special elections,\\nand on March 5, 1777, the Council and the Assembly, having\\nmet together in the manner contemplated by the Constitu-\\ntion, elected the first President and Vice-President of the\\nState, and they were inducted into office with some cere-\\nmony.\\nThis appearance of vigor in the new government, however,\\ndid not have the effect of allaying the popular uneasiness and\\ndistrust, and the agitation for a new Constitution was soon\\nrenewed. The Whig Society, of which Paine, Cannon and\\nYoung were active members, was organized to oppose the\\nanti-constitutional movement. In the spring of 1777, the\\nthreatening attitude of the British army once again occa-\\nsioned alarm to Congress, and on April 14 it was resolved\\nthat the subject was so important as to require Congressional\\nsuperintendency and oversight. On April 15 a committee\\nof Congress to which the matter had been referred, reported\\nthat the executive authority of the Commonwealth of Penn-\\nsylvania is incapable of any exertion adequate to the present\\ncrisis which the Anti-Constitutionalists at once took to be\\nan absolute condemnation of the new government. Weak-\\nness and languor are apparent in every part of the govern-\\nment. There is no regular administration of justice, whereby\\nThomas Wharton, Jr., councilor for Philadelphia County, was elected\\nPresident, and George Bryan, councilor for Philadelphia city, Vice-\\nPresident.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0064.jp2"}, "65": {"fulltext": "DOWNFALL OF FRANKLIN S GOVERNMENT 49\\nthe enemies of our country may be punished and its friends\\nprotected said a number of petitioners who addressed the\\nPresident of the Executive Council and the Board of War\\nfor the State of Pennsylvania on May 6, 1777. They\\nasked therefore that as soon as the Assembly shall meet, ap-\\nplication be made to them to recommend the election of a new-\\nConvention for the purpose of altering and amending the\\nConstitution The Board of War, Richard Bache, Chair-\\nman, on May 14, replied to its petitioners that it heartily ap-\\nproved of the proposition as a salutary and necessary\\nmeasure\\nThe Supreme Executive Council itself on June 11, ad-\\ndressed the Assembly as the Board of War had done a few\\ndays earlier. In this communication, the councilors de-\\nclared that they are sorry to find the present Constitution\\nof the State so dissatisfactory to any of the well-affected in-\\nhabitants thereof, and would gladly concur in any suitable\\nand safe measure for the removal of this uneasiness that they\\nare of the opinion this might be greatly attained by ta-\\nking the sense of the majority of the electors throughout the\\ncounties on the important question whether a Convention be\\nholden at some proper time to reconsider the frame of gov-\\nernment formed by the late Convention that to fix the exact\\nmode of obtaining the mind of the majority on the subject\\nmost properly belongs to their representatives that the\\nCouncil hope that if some suitable mode of advising and get-\\nting the people at large to declare themselves, and if this were\\nadvised and published at this time, great ease and relief would\\nthereby be given to some persons who are dissatisfied as\\naforesaid and that unanimity in the common cause so neces-\\nsary at this time, will be promoted\\nEven the Whig Society, which of course engaged itself in\\nan effort to defeat the movement for a new Constitution, was\\nnow favorable to a plebiscite on this subject, as it or its suc-\\nA State Military Board appointed by the Supreme Executive Councih\\nThere -was also a Navy Board\\nColonial Records, Vol. XI, p. 220,", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0065.jp2"}, "66": {"fulltext": "5\u00c2\u00b0 THE REFERENDUM IN AMERICA\\ncessor, the Constitutional Society, did not find it expedient\\nto be at a later date.^^ The Whig Society asked the Assem-\\nbly if the worst happened, at least to take the necessary steps\\nfor collecting the sense of the State previous to any such\\nrecommendation i. e., a recommendation to the people\\nto elect a new Convention. The Assembly on June 12 en-\\ntered upon the immediate consideration of the project, and\\nresolved that it would recommend it to the inhabitants of the\\nCommonwealth to give their sense of the present dispute re-\\nspecting the calling of a Convention A committee was ap-\\npointed to devise and propose a plan by which this sense\\nshould be ascertained, and the Assembly upon receiving its\\nreport, determined on June 17 to submit the question to the\\npeople, their answer to be given directly by a yea and nay\\nvote.\\nIt is of interest to note how this early plebiscite in Pennsyl-\\nvania was to be taken. The freemen of each township,\\nborough, ward or other local district, when they next chose\\ntheir inspectors for the election of members of the Assem-\\nbly, were to select commissioners one for each local dis-\\ntrict. The duties of these commissioners were rather\\nambiguously defined in the law as follows\\nTo go to the house or place of residence of each and every\\nfreeman entitled to vote for members of General Assembly\\nwithin their respective townships, boroughs, wards or dis-\\ntricts, or to take some other opportunity of meeting with\\nthem. The said commissioner shall ask each and every of\\nthe said freemen whether he desires that a convention be now\\ncalled, and the freeman shall give in writing on a scroll or\\npiece of paper, his vote or answer, which he shall put into a\\nbox provided for that purpose, which he shall keep shut and\\nin his own possession, and return the same on or before the\\ntenth day of November to the sheriff of the city or county\\nto which he belongs, or in case of the death, sickness or ab-\\nsence of the sheriff, to the coroner, who, with the assistance\\nof the said commissioner, shall examine the said box or bag,\\nCf. infra, p. 53.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0066.jp2"}, "67": {"fulltext": "DOWNFALL OF FRANKLIN S GOVERNMENT 51\\nand cast up the number of votes therein contained on each\\nside of the question, and the sheriff or coroner shall deliver to\\nsuch commissioner a certificate of the said numbers, and\\nalso return a true account thereof, under the hands and seals\\nof the said sheriff or coroner, and of the said commissioner^\\nto the next General Assembly at their first sitting.\\nAs the State soon became the center for the military opera-\\ntions of a considerable portion of the British army, the pleb-\\niscite could not be taken^ but with the evacuation of Phila-\\ndelphia by the enemy in 1778, expressions of dissatisfaction\\nwith the Constitution were immediately renewed. In No-\\nvember, 1778, the subject was again brought before the As-\\nsembly, and on the 28th day of that month, the house passed\\nresolutions stating that whereas divers petitions had been\\npresented to former assemblies suggesting inconveniencies\\nin the present Constitution and form of government and\\nasking for a submission of the question to the people, and\\nwhereas resolutions providing for such a vote had earlier been\\nagreed to, but the invasion of the State and other circum-\\nstances had prevented it being carried into effect, another\\nattempt would be made to get an expression of public opinion\\nin April, 1779. The people were to vote by ballot the slips\\nof paper containing the words For a Convention or\\nAgainst a Convention as the preference of the voter\\nmight dictate. The members of the Convention were to be\\nselected at the same time, so that the people would not be\\nput to the inconvenience of a second meeting should a\\nmajority of the ballots be unfavorable to the existing Con-\\nstitution. The Convention, in case the people should sanction\\nit, was to meet at Lancaster on June i, 1779.\\n12\\nJournals of the Assembly, p. 145.\\nJournals of the Assembly, pp. 246-47. This resolution, which was\\npassed November 28, 1778, provided, That the people throughout this\\nState qualified to vote for members of Assembly, do meet at the usual\\nplaces of election since the late happy revolution, on the 25th day of\\nMarch next, and choose judges and inspectors as by law directed in\\ncase of representatives. And the said judges and inspectors being so\\nchosen and sworn as at the election of representatives, shall provide", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0067.jp2"}, "68": {"fulltext": "52 THE REFERENDUM IN AMERICA\\nWere the vote favorable to a Convention, it was provided\\nthat that body should determine on nine separate points.\\nThose most vitally affecting the character of the Constitution,\\nrelated to the division of governmental powers; whether\\nthe legislature in the future should consist of one house or\\ntwo whether the executive authority should be strengthened\\nand given a position more independent of the Assembly;\\nwhether the judiciary should continue to be the servant of the\\nAssembly, and whether the anomaly called the Council of\\nCensors might not better be abolished. It was still in Phila-\\ndelphia that the most dissatisfaction was expressed in refer-\\nence to the Constitution.^^ It was now, as at a later time,\\na favorite mode of defending the Constitution against\\nevery attack upon it to say that those who most desired to\\nchange it were Tories John Dickinson, James Wilson\\nand Richard Bache, all were accused of their Tory inclina-\\ntwo boxes for the city and each district of every county and on the\\nfirst Tuesday of April next they shall receive the votes of the free-\\nmen qualified at the time of said election by law, to vote as aforesaid,\\nmaking at the same time a list of the voters names, and put into\\none box all the votes for and against a convention, the voters in favor\\nof a convention writing on their tickets For a Convention and those\\nagainst it Against a Convention and in the other box they shall put\\nthe votes for the members of such convention as that^ if the majority\\nof votes should be in favor of a convention, the minority may not be\\nprecluded from a choice in the persons who are to compose it, or the\\npeople put to the inconvenience of a second meeting These boxes\\nafter the meeting had adjourned were to be sealed, and delivered by the\\nelection officers to the sheriffs at the court houses of the respective\\ncounties, who then should take them up to the Assembly where the\\nboxes would be opened, and the ballots counted. If a majority of votes\\nshall appear to be against a convention, then no further proceedings\\nshall be had, but if a majority of votes shall be for a convention, the\\nAssembly shall then proceed to open the boxes containing the names\\nof the members for the city and county, and shall declare the six\\nhighest in number from each city and county to be the members to rep-\\nresent the said city and county in convention.\\nCf. Pennsylvania Packet, Jan. 21, 1779. A correspondent replying\\nto the assertion that a majority of the citizens of Philadelphia were in\\nfavor of the Constitution, said that nothing could be farther from the\\ntruth and added that at every general election held in this city\\nsince the formation of the present Constitution, Anti-Constitutional men;-\\nbers have been returned,", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0068.jp2"}, "69": {"fulltext": "DOWNFALL OF FRANKLIN S GOVERNMENT 53\\ntions, whenever they exerted themselves in behalf of a change\\nin the system of government in Pennsylvania.^*\\nThis very cheap and successful method of campaigning\\nwas used with effect against John Adams and other Amer-\\nicans, very loyal and in the highest degree useful to their\\ncountrymen, who could well afford to let their enemies stamp\\nand fume if their services could be of any value in saving the\\nnew nation from such a democratic upheaval as was soon to\\nfall to the lot of the foolish people of France. It was not the\\nTories who were leading the movement against this unright-\\neous Constitution, but, a great branch of the Whig or Amer-\\nican party, for the Tories were safely enough shut out from\\nany part in political affairs during this period. The Whig\\nparty in Pennsylvania was cloven through and through on\\nthe constitutional issue, being almost equally divided in num-\\nbers into the Constitutional and the Anti-Constitutional, or\\nso-called Republican factions, an alignment which con-\\ntinued until the new convention met in 1790, when the gov-\\nernment of the State was made to conform to the common\\nAmerican model.\\nThe Constitutionalists conducted such a campaign through\\nthe counties, circulating petitions and assembling the names\\nof remonstrants against the plebiscite which had been set for\\nApril, 1779, that the Assembly weakened at the last moment,\\nalthough the resolution authorizing the vote of the people\\nhad been passed unanimously by the same Assembly in the\\npreceding November.^^\\nDickinson defended himself in a public address, Pennsylvania\\nPacket, Dec. 31, 1782; James Wilson in Pennsylvania Packet, October\\n17, 1780. Cf. Article of Timothy Matlack in Pennsylvania Packet,\\nMarch 30, 1779, for an attack upon Mr. Bache, at that time President\\nof the so-called Republican Society an Anti-Constitutional Club.\\nFamiliar methods were used in the country districts to prejudice\\nthe people against the convention. Assertions were made, as they were\\nafterward and before, that it was an attempt to establish a hateful\\nHouse of Lords cf. Address of Republican Society, signed by\\nRichard Bache, Chairman, Pennsylvania Packet, March 25, 1779, in\\nwhich he asked Were you not told when the petitions were presented\\nto you that the opposition to the Constitution arose and was supported", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0069.jp2"}, "70": {"fulltext": "54 THE REFERENDUM IN AMERICA\\nThe members of the Assembly, it was said, had taken the\\noath to support the Constitution, as it was prescribed that\\nthey should do in that instrument, and yet they had inconsist-\\nently voted for a convention to change it.^\u00c2\u00ae If change were\\nneeded, there was a method by which this could be effected,\\nnamely, through the Council of Censors. A convention\\ncalled by any other authority would be extra-constitutional.^^\\nA single remonstrance containing the names of 3743 inhabi-\\ntants of Lancaster County, was received in the Assembly,^^\\nand altogether signatures to the number of 16,000, at least,\\nseem to have been secured,^ enough in any case to induce\\nthe house on February 27, 1779,, only a few weeks before the\\ndate fixed for the plebiscite to rescind its earlier action by a\\nvote of 47 yeas to 7 nays.^*^ Whereas a very considerable\\nnumber of the inhabitants of this Commonwealth are much\\ndissatisfied with the said resolution, the Assembly declared\\nin its repealer it had been induced to change its order for a\\npopular vote, and thus the issue was postponed again, though\\nthe discussion was happily allowed to subside in some degree\\nuntil the Council of Censors held its first regular meeting in\\n1783-84, when the argument was revived with all its orig-\\ninal and indeed an increased asperity.\\nIt was the time of the fantastic and the elegant in political\\nphilosophy, when the facts of life and the experience of the\\nhuman race must take a place subordinate to style of expres-\\nsion and flowing language, which were often used to disguise\\nonly by a junta of gentlemen in Philadelphia, who wished to trample\\nupon the farmers and mechanics, to establish a wicked aristocracy, and\\nintroduce a House of Lords, hoping to become members of it?\\nPennsylvania Packet, Feb. 4, 1779.\\nIbid., March 2, 1779. Ibid.\\nAddress of Richard Bache, Pennsylvania Packet, March 25, 1779.\\nHere it is admitted that 16,000 signatures were received, though it was\\nsaid that these represented only a third or fourth part of the inhab-\\nitants of the State, to which there was the pleasant retort that the other\\ntwo-thirds or three-fourths were Tories. Cf. Address to the people by\\nthe minority members of the Council of Censors, Pennsylvania Packet,\\nJan. 27, 1784.\\nJournals of the Assembly, pp. 323-324.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0070.jp2"}, "71": {"fulltext": "DOWNFALL OF FRANKLIN S GOVERNMENT 55\\npleasant idealistic illusions. The Roman Censors were to\\nmeet every seven years, a romantic period, as a contem-\\nporary newspaper writer observed.^^ The literary age which\\nproduced Rousseau, Diderot, d Alembert, Condorcet and even\\nFranklin with all his rustic crudity was an age of elegance.\\nThe Pennsylvania Constitution was a product of this literary\\napriorism, and after tasting of the viands we must feel some-\\nwhat nauseated as Adams did when he had attended this\\nstrange feast in France. I am no enemy of elegance Mr,\\nAdams explained, but I say no man has a right to think of\\nelegance till he has secured substance, nor then to seek more\\nof it than he can afford.\\nIn 1783 when the date had arrived for each county to\\nreturn two members to the Council of Censors, whose duty it\\nwould be to ascertain whether or not the Constitution had\\nbeen preserved inviolate in every part the two parties\\nin Pennsylvania put forth strenuous efforts. The Anti-Con-\\nstitutionalists seemed at first to be triumphant. It was al-\\nleged, however, that in Philadelphia, soldiers from other\\nStates, quartered in the city, had been allowed to vote that\\nthey were assembled together by beat of drum on the day of\\nthe election, and marched with officers at their head toward\\nthe State House that the judges and inspectors were over-\\nawed that the officers of the army attended at the win-\\ndows with their swords in their hands, and the sergeants\\nwere employed in distributing tickets etc.^^ By a vote of\\nfourteen to seven, however, the Council of Censors deter-\\nmined that the election of two censors for the city of Phila-\\ndelphia was agreeable to the laws of this State and by\\nfourteen to eight that there was no legal cause for setting\\naside the said election\\n\u00e2\u0096\u00a0^^This term was doubtless suggested by the septennial parliamentary\\nperiod in England, and seems to have been an idea, therefore, of Brit-\\nish rather than French lineage.\\nWorks, Vol. I, p. 433.\\nPetition to the Council of Censors by certain Constitutionalists in\\nPhiladelphia, Pennsylvania Packet, January 10, 1784. Also Journal of\\nthe Council of Censors, p. 22.", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0071.jp2"}, "72": {"fulltext": "56 THE REFERENDUM IN AMERICA\\nUpon the announcement of this decision the eight mem-\\nbers in the minority issued a long manifesto or protest,\\nwhich was entered on the minutes of the Council,^* the Presi-\\ndent of which was F. A. Muhlenberg, afterward the first\\nSpeaker of the House of Representatives of the United\\nStates. The censors instead of setting themselves to the task\\nof determining whether or not the Constitution had been\\npreserved inviolate and the various departments of the\\ngovernment had kept themselves within their rightful limits,\\nat once took measures looking to a call for a new convention.\\nThe Council could issue such a call, of course, on a vote of its\\nmembers. The Constitutionalists had been the loudest in\\ntheir appeals to the Constitution, as a means of accomplish-\\ning its own reform in 1778 and 1779, but they now resisted\\nthe movement with all the force they could command.^^ The\\nreport of the Committee on the Defects and Alterations of\\nthe Constitution was a masterly statement of the various\\narguments against the Pennsylvania Constitution, and it de-\\nserves a high place among the archives of government on this\\ncontinent.\\nRespecting the single house of assembly, the report de-\\nclared that the Constitution in this detail was materially\\ndefective A body of men upon whose action there was\\nno veto, was a source of danger in the state first, because if\\nit should happen that a prevailing faction in that body were\\ndesirous of enacting unjust and tyrannical laws, there would\\nbe no check upon their proceedings and second, because\\nan uncontrolled power of legislation will always enable the\\nbody possessing it to usurp both the judicial and the executive\\nauthority, in which case no remedy would remain to the\\npeople but by a revolution.\\nThe division of the executive authority among so many\\npersons namely, the various members of the Executive\\nCouncil, who with the formation of new counties had in-\\nJournal of the Conncil of Censors, p. 26.\\nCf. an address to the people in Pennsylvania Packet, January 27,\\n1784. -^Packet, Jan. 24, 1784; Journal of Council, pp. 53 et seq.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0072.jp2"}, "73": {"fulltext": "DOWNFALL OF FRANKLIN S GOVERNMENT 57\\ncreased until they now numbered thirteen, was also regarded\\nas a defect. Some of the principal reasons for their opinion\\nwere developed in the committee s report, and it was alleged\\nthat the constant sitting of a Council was expensive and bur-\\ndensome that a numerous body of men does not possess the\\ndecision necessary for action in sudden emergencies; that if\\nthe Council be weak or wicked in its action, there is no\\nindividual so accountable to the public as every man ought to\\nbe in such cases that since the President is chosen by the\\njoint ballot of the Council and Assembly if a prevailing\\nfaction should ever happen in the Assembly, so as to lead a\\nconsiderable majority, the President thus chosen will have\\nnothing to fear from the legislature, and by influencing the\\nCouncil, would possess exorbitant authority without being\\nproperly accountable for the exercise of it\\nIn respect of the judiciary, it was said that this needed re-\\nform also, in the sense that now the terms were too short, the\\nSupreme Court judges being commissioned for seven years\\nonly, and being removable at any time by the Assembly for\\nmisbehavior This was looked upon as a grave mistake\\nin political policy, for if the Assembly should pass an un-\\nconstitutional law, and the judges have virtue enough to re-\\nfuse to obey it, the same Assembly could instantly remove\\nthem The rotation of offices of inferior kinds, as provided\\nfor in the Constitution, the committee conceived to be an\\nerror, and this point was argued in a manner to do great\\ncredit to our ablest advocates of civil service reform at a\\nlater day.\\nThe committee proposed that there should henceforth be a\\nlegislature of two houses, to be called the Legislative\\nCouncil and the Assembly These together should be\\ndenominated The General Assembly of Pennsylvania\\nThe Council was alluded to as the first branch in order\\nto avoid the distinctions of upper and lower which\\nmany considered so objectionable. Both houses were to be\\nelected by the people, though on separate apportionments, the\\nunits of population in the case of the Council being larger", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0073.jp2"}, "74": {"fulltext": "58 THE REFERENDUM IN AMERICA\\nthan for the Assembly. The assemblymen were to be elected\\nannually the councilors for periods of three years, one-third\\nreturning every year, in the general manner, later made so\\nfamiliar to us in the Federal system, in respect of the United\\nStates Senate, it being as well the usual method employed\\nin nearly all the State governments.\\nAs for the executive power, there was to be a Governor\\nannually chosen by the people. Each house, of course, was\\nto have a negative on the measures of the other, and the\\nGovernor would possess a veto in reference to the work of\\nboth. The Governor was to appoint the judges, who were to\\nhold office indefinitely, during good behavior a point,\\nhowever, which the Assembly was no longer to determine\\nupon its own responsibility. The Council of Censors, which\\nwas the object of much ridicule, was to be abolished.\\nThis report was adopted by the Council of Censors, by a\\nvote of twelve to nine, which was less than the constitutional\\ntwo-thirds majority requisite to call a new Convention,\\nwherefore the Council shortly adjourned, or suspended its\\ndeliberations to use its own term in this connection, in order\\nto allow the question to be debated well by the people. The\\nnine members who had dissented from the report issued a\\nstatement in defence of their course. In this peculiar docu-\\nment they said The alterations proposed will introduce\\na form of government much more expensive, burdensome\\nand complicated; but what we dread more than expense\\nand delay, they tend to introduce among the citizens, new and\\naristocratic ranks, with a chief magistrate at their head,\\nvested with powers exceeding those which fall to the ordinary\\nlot of kings. We are sufficiently assured that the good people\\nof Pennsylvania most ardently love equal liberty, and that\\nthey abhor all attempts to list one class of citizens above the\\nheads of the rest, and much more the elevating any one citizen\\nto the throne of royalty. And herein we are confident we\\nspeak not only the language of our constituents, but that we\\nproclaim also the voice of God and nature.\\nJournal of Council, p. 75.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0074.jp2"}, "75": {"fulltext": "DOWNFALL OF FRANKLIN S GOVERNMENT 59\\nThe majority, under Mr. Muhlenberg s leadership, on their\\nside, issued an address to the people of Pennsylvania, which\\nwas adopted in the Council by a vote of twelve to ten. In this\\naddress it was stated that the minority of the Council did not\\nrepresent one-third of the people in the State. Each county\\nhaving equal representation, that is, two members, some of\\nthe least populous parts of the State acquired an undue\\nstrength. The address was a careful and rational statement\\nof the case from the point of view of well informed and con-\\nservative men, and the people were asked seriously to con-\\nsider the question of calling a new convention, making known\\nto the Council their sentiments regarding the proposition\\nbefore it should reassemble in a few months.^^\\nThe minority in the Council hereupon published a counter\\nmemorial to the people, which for rough democratic convic-\\ntion, has perhaps never been excelled by any political docu-\\nment ever penned in this country. These fearless friends\\nof popular rights appealed to the people in the following\\nterms Let no artful addresses of those aspiring despots\\nwho wish to establish and fill an upper house of lords amongst\\nyou, that they may thereby more effectually teach you sub-\\nmission to your betters, prevail with you to give up a Consti-\\ntution which is the admiration of Europe, which attracts the\\nattention of every friend of equal liberty in the world, and\\nwhich will continue to brighten and grow, illustrious as long\\nas the lamp of science shall irradiate the Western world, and\\nthe genius of liberty protect its hardy sons from the en-\\ncroachments of arbitrary power. The object which these\\ndespots desired to attain, our democrats explained, was\\nthe establishment of an upper house to accommodate the\\nbetter sort of people, and to vest them with full power to pre-\\nvent any law from passing which a number of honest farmers\\nfrom the country may judge to be salutary and beneficial to\\nthe State And not only was the Senate a dangerous anti-\\npopular device, but your Governor or King (for it matters\\nJournal of Council, p. 77.\\n^^Pennsylvania Packet, Jan. 27, 1784.", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0075.jp2"}, "76": {"fulltext": "6o THE REFERENDUM IN AMERICA\\nnot by what name you may call him) would have absolute\\npower to put a negative on any bill which both houses may\\nagree to enact whereby you may finally despair of eve-r\\nhaving it in your power, without bloodshed, to counteract an\\nambitious tyrant at the head of your government The\\npublic, too, was gravely assured that the Governor would\\nhave greater legislative authority than the Kings of Great\\nBritain while there would be established in the State an\\nodious aristocratic nobility\\nPetitions and remonstrances were circulated assiduously by\\nthe two parties, and so hotly was the campaign prosecuted,\\nthat later in the year when the censors met again, the Con-\\nstitutionalists had got control of the Council. Some vacan-\\ncies which had occurred in the membership, had been filled.\\nA few members who had earlier been in favor of a conven-\\ntion, were now against it, and on September i6, 1784, it was\\nresolved by a vote of fourteen to ten that there does not\\nappear to this Council an absolute necessity to call a con-\\nvention to alter, explain or amend the Constitution and in\\nan address to the people, on September 24, 1784, the censors\\nannounced that this action had been taken because of the\\ngreat number of remonstrances which they had received.\\nIn the election of members of the Assembly which followed,\\nthe Constitutionalists won a signal victory, securing a major-\\nity of twenty in the house,^^ which took occasion soon after\\nit met, to express its firm attachment to the Constitution,\\nthat great bulwark of equal liberty\\nFranklin, who for nine years had been encouraging the\\nCf, Pennsylvania Packet, Feb. 12, 1784.\\nJournal of Council, p. 163. Journal, p. 177.\\nIn this campaign the constitutional issue was again confused with\\nthe question of loyalty to the general American cause. An attempt had\\nbeen made to modify the so-called Test Laws by which many\\nQuakers and others suspected of Tory affiliations, were excluded from\\na part in the State government. As the Anti-Constitutionalists had been\\nidentified with the movement to liberalize these laws, the radicals were\\nthe better able to conduct a successful campaign in the autumn of 1784.\\n^Pennsylvania Packet, Dec. 27, 1784.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0076.jp2"}, "77": {"fulltext": "DOWNFALL OF FRANKLIN S GOVERNMENT 6i\\nPennsylvania Constitutionalists from the European shore/\\narrived in Philadelphia again in September, 1785. He was\\naccorded a generous welcome. Among other marks of at-\\ntention, he was presented with an address from the Consti-\\ntutional Society. A committee of fifteen members of this\\norganization appeared before him, and in their address they\\nsaid It would be endless to enumerate the great variety of\\ninstances m which you have benefited the State of Penn-\\nsylvania in former times and of late; before the late glori-\\nous Revolution, and since. We cannot, however, omit to\\nexpress the high veneration with which we view you as the\\nfather of our free and excellent Constitution. In this great\\nwork we persuade ourselves that you, in conjunction with the\\nother patriots of the Convention, over which you presided,\\nhave erected a stronghold to the sacred cause of liberty,\\nwhich will long continue as it has hitherto done, to resist the\\nassaults of all its enemies, and if anything of human con-\\ntrivance could attain to immortality, we would fondly flatter\\nourselves that it might remain forever. To this little sect\\nof enthusiasts who clung to their doctrines with the faith\\nthat belongs to a religion, Franklin made a characteristic\\nresponse Your friendly congratulations on my safe return\\nto our country, are extremely obliging. In the services you\\nare pleased so kindly to remember I had great and able assist-\\nance from others. My principal merit, if I may claim any in\\npublic affairs, is that of having been always ready and willinp-\\nto receive and follow good advice. I think myself happy in\\nreturning to live under the free Constitution of this Common-\\nwealth, and hope with you that we and our posterity may\\nlong enjoy it.\\nElections for the Executive Council and Assembly were\\nFranklin wrote to a friend in Philadelphia under date of March 19,\\n1780: The disputes about the Constitution seem to have- subsided. It\\nis much admired here and all over Europe, and will draw many families\\nof fortune to settle under it, as soon as there is peace. Pennsylvania\\nPacket, Jan. 27, 1784.\\n^^Pennsylvania Packet, Sept. 19, 1785.\\nIbid., Sept. 19, 1785.", "height": "3671", "width": "2361", "jp2-path": "referenduminamer00ober_0077.jp2"}, "78": {"fulltext": "62 THE REFERENDUM IN AMERICA\\nagain pending, and the Constitutional Society at once made\\nDr. Franklin its candidate for the Council, to represent\\nPhiladelphia city, to which office he was elected. When\\nthe Assembly and Council met to choose a President for the\\nState for the ensuing year, Franklin, as it was planned that\\nhe should be, when he was placed in the Council, was\\nelevated to this position. The proclamation of his election,\\nwe are told, was made at the Court House amidst a great\\nconcourse of people, who expressed their satisfaction by re-\\npeated shouts Both parties united in doing him this\\nhonor, and his election appears to have been unanimous, ex-\\ncept for his own vote, a circumstance which afforded him\\nmuch satisfaction, as he mentioned the fact in his correspond-\\nence with the Duke de La Rochefoucauld, and with his other\\nfriends in France.^^ In the same way he was re-elected to the\\noffice in 1786, and in 1787, when, upon completing his third\\nyear, he, by the terms of the Constitution, could serve no\\nlonger, and retired to private life, being congratulated by his\\nFrench friends for the fortitude he had shown at his great\\nage, in taking up the reins of government in a turbulent\\nState.**^\\nWith the establishment of the Federal Constitution, pub-\\nlic attention was directed to its form, which followed Adams\\nEnglish type, and was so far out of sympathy with the prin-\\nciples which were contended for with such zeal in\\nPennsylvania and France. The conviction deepened in\\nPennsylvania that Franklin s Constitution must be changed.\\nThe Constitutionalists, consistent to the end, opposed the\\nadoption of the Federal Constitution because of its aris-\\ntocratic character. They were not particularists as were the\\nStates rights men who opposed the Constitution of the\\nUnited States, on the ground that the federation would be so\\nmuch stronger than the individual members which composed it.\\nPacket, Oct. 31, 1785.\\nC\u00c2\u00a3. Temple Franklin s Collection, Vol. II, p. 97.\\nC\u00c2\u00a3. Letter of the Duke de La Rochefoucauld, Sparks Works of,\\nFranklin, Vol. X, p. 247.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0078.jp2"}, "79": {"fulltext": "DOWNFALL OF FRANKLIN S GOVERNMENT 63\\nThey were social theorists who contended that society would\\nsuffer that men would be ground under a weight of complex\\ngovernmental machinery, and that classes would be formed,\\nundoing all the good which had been gained by a return to\\nRousseau s state of nature. The Assembly of Pennsylvania,\\nin 1787, had voted to authorize an election for members of\\na State Convention to ratify the Federal Constitution. About\\na score of the Pennsylvania Constitutionalists opposed this\\nmovement with a pertinacity worthy of some useful cause.\\nThey absented themselves from the Assembly, in order to\\nbreak a quorum^ and thus prevent the transaction of public\\nbusiness. They complained that two of their body were\\nseized by a number of citizens of Philadelphia, who had col-\\nlected together for that purpose, their lodgings were violently\\nbroken open, their clothes torn, and after much abuse and in-\\nsult they were forcibly dragged through the streets of Phila-\\ndelphia to the State House, and there detained by force\\nthat in the presence of the majority they were treated\\nwith the most insulting language [by the crowd in the gal-\\nlery] while the house so formed proceeded to finish their\\nresolutions\\nThese martyrs to the liberal cause now issued an Address\\nto the People after the manner of the time, in which they\\nexplained how great was their opposition to a Constitution,\\nsuch as that one was which a State Convention would soon\\nbe called together to ratify, with its two houses, including\\nits aristocratic Senate, the Federal Judiciary and other\\nfeatures so hostile to the spirit of true democracy.*^ Such\\nproceedings, it may be noted, are not very unlike many\\nwhich were to ensue in France during the period when gov-\\nernment was concentrated in a single house of legislature in\\nthat country.\\nThe Constitutional party in Pennsylvania, when the Fed-\\nPennsylvania Packet, Oct. 4, 1787. Cf. Minutes of the Eleventh\\nGeneral Assembly of Pennsylvania, p. 244.\\nPennsylvania Packet, Oct. 4, 1787. Cf. Address of the dissenters in\\nthe Convention^ Ibid., Dec. 18, 1787.", "height": "3661", "width": "2330", "jp2-path": "referenduminamer00ober_0079.jp2"}, "80": {"fulltext": "64 THE REFERENDUM IN AMERICA\\neral Constitution had been adopted, found itself a small\\nprotesting minority, not in one State, but in thirteen, in a\\nwhole nation. The battle had now been won. The English\\nConstitution, fitting in as it did with the traditions, the\\ncharacter, the empirical details of the whole American civ-\\nilization, had triumphed at last. The Constitution of Eng-\\nland, of Montesquieu, of John Adams, of Massachusetts,\\nVirginia, New York and Maryland, and nearly all the Amer-\\nican States, had become the Constitution of the nation, and\\nPennsylvania must now leave her isolated place, and join\\nher sister States, conforming to the general model which\\nRoss and Clymer, and McKean and Wilson, and Dickinson\\nand Muhlenberg, the loyal ten in the Council of Censors of\\n1784, and many another friend of the Commonwealth had\\nstriven for, against such singular and mighty odds.*^\\nWhat remained was but a slight detail, a resolution of\\nthe Assembly, an election of delegates, a convention. On\\nMarch 26, 1789, by a vote of forty-one to sixteen, resolu-\\ntions were passed by the Assembly recalling the fact that\\nthe people had the inherent right to alter their governments,\\nchoosing their own method, wherefore the people of the\\ncounties were recommended to elect members to a convention\\nequal to the number of members returned to the Assembly.**\\nThe Executive Council was now a great inconvenience. With\\nthe addition of counties, it had come to have a membership\\nof nineteen. It was spoken of as an absurdity of the most\\nglaring kind while its chief object was said to be to\\nshelter the most active and mischievous characters from that\\nresponsibility which they owe to the people, and prevent\\nthem from being individually obnoxious to legal punishments\\nBy this event [the adoption of the Constitution of the United\\nStates] the Constitutional party of Pennsylvania was laid at the feet\\nof the Republicans, who, now triumphant under the appellation Federal-\\nists, overwhelmed their adversaries with the short-lived odium of Anti-\\nFederalism. Graydon, Memoirs, p. 342.\\nCf Pennsylvania Packet, March 23, 1789. for the text of an address\\nto the people, which was introduced in the Assembly, buc was not\\nadopted. Also Ibid., March 24, 1789.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0080.jp2"}, "81": {"fulltext": "DOWNFALL OF FRANKLIN S GOVERNMENT 65\\nfor any reprehensible proceedings The dissentient\\nmembers of the Assembly, who still clung faithfully to the\\nConstitution, filed the reasons for their opposition to the\\ncourse of the majority. They alleged again that the legis-\\nlature was exceeding its authority when it issued a call for\\na convention, that the Council of Censors would soon meet\\nonce more, when a change might be made, if it were ad-\\njudged to be necessary, through constitutional channels. This\\nwas described as the fourth attempt of the aristocratic\\nparty to betray you into a voluntary surrender of your lib-\\nerties by the destruction of that free and equal Constitu-\\ntion, which an overborne minority in your Assembly is no\\nlonger able to preserve Petitions were again circulated\\nfor the signatures of the Constitutionalists, but when the\\nAssembly reconvened in the autumn, a resolution was passed\\nby a vote of thirty-nine to seventeen finally sanctioning the\\nconvention, which was called to meet in Philadelphia, Novem-\\nber 4, 1789,^^ and this was the Constitution of 1776 s last\\ndeath throe.\\nOnce the convention had met, there was not for a moment\\na question as to the fate of the single house, the weak and\\ndivided executive, the subservient judiciary, and the Council\\nof Censors. They were consigned to the constitutional lum-\\nber-room, from which they are not likely soon again to be\\nbrought forth.\\n^Pennsylvania Packet, March 24, 1789.\\n^Uhid., April i, 1789. f J.\\nThe resolution declared, that having taken effectual measures for\\nsatisfying themselves of the sense of the good people of the Common-\\nwealth thereon, they are well assured from the petitions referred to\\nthem, from inquiries made, and from information given by the sev-\\neral members, that a large majority of the citizens of this State etc.,\\ndesire a convention. The petitions were supplemented by the observa-\\ntions of members of the Assembly, who, during the recess, had mixed\\nwith their constituents thus having an opportunity to judge well of\\nthe state of public sentiment upon this subject. Furthermore, the\\nmem-bers in their capacity as the people s representatives, combined with\\nthese considerations a conviction of their own, independently arrived\\nat that the measure is in itself right and necessary", "height": "3661", "width": "2330", "jp2-path": "referenduminamer00ober_0081.jp2"}, "82": {"fulltext": "66 THE REFERENDUM IN AMERICA\\nIn passing, it is difficult not to stop a moment to ask and\\nwonder whether or not such a struggle for the system of\\nchecks and balances, and the division of the executive, legis-\\nlative and judicial functions of a government really brought\\nwith it its true rewards. With the recent development of\\ncabinet government beginning as it did in England, and\\nspreading until it now girdles the globe, we cannot but inquire\\nwhether the battle which Adams fought was v/orth the fight-\\ning. It seems clear to us now that we, catching the sub-\\nstance, unformed and plastic, of the English Constitution,\\nas we found it at the end of the eighteenth century, fixed it\\nrigidly in our written instruments of government until we\\nare to-day in a position isolated from all the world. Our\\nPresident and our Governors, are like King George III, with\\ntheir personal cabinets. Our legislatures are the legislatures\\nof England a hundred years ago.*^ We with our written\\nconstitutions have been standing still, while England has\\ngone forward developing her system of responsible cabinet\\ngovernment, which is the subject of so much admiration\\nwherever British political institutions are understood and\\nappreciated.\\nIt would be difficult though, it seems to me, to overestimate\\nthe service which Adams, Hamilton and the fathers of the\\nAmerican constitutional system performed in saving us from\\nunchecked popular rule, by leading the people away from\\nthe consequences of such teachings as Rousseau s, and those\\nwhich the whole French race soon went in pursuit of, head-\\nlong to their ruin. The results here could not have been the\\nsame, for the conditions were so different. They, however,\\nwould have been absolutely blighting, anarchic and bad. We\\nhad declared that all men were free and equal, but we did not\\nact fully up to our expressed convictions. The people did\\nnot legislate; they still delegated this power to their repre-\\nCf. C. Ellis Stevens, Sources of the Constitution of the United\\nStates, New York, 1894, pp. 148 et seq. Bryce, American Common-\\nwealth, 3d Edition, Vol. I, pp. 34 et seq.; Lecky, Democracy and Liberty,\\nVol, I, p. p.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0082.jp2"}, "83": {"fulltext": "DOWNFALL OF FRANKLIN S GOVERNMENT 67\\nsentatives, who, even in Pennsylvania, were to be persons\\nmost noted for wisdom and virtue\\nWe did not, except in a few instances, as notably in Penn-\\nsylvania, commit our political fortunes to a single body of\\ndeputies, as they soon did in France we retained the English\\nsystem of checks, balances, vetoes and negatives born not of\\na belief that all men were equally capable as social and polit-\\nical beings, but of one quite different, that they were unequal\\nindeed, many being capricious, passionate, hasty, irrational,\\nambitious, egoistic, masses of men often exhibiting these\\nsymptoms after a manner that segregated individuals do not.\\nIt was John Adams glory that he at the beginning of the\\nconstitutional contest in America, when the royal and pro-\\nprietary governments had not yet been overthrown, under-\\nstood all this, and spoke out in fearless tones against the\\ndangers which lurked in the rule of the multitude. His\\nbiographer, Mr. Charles Francis Adams, has justly said:\\nNobody has done so much to prove the fatal effect of vest-\\ning power in great masses in any single agency. No one has\\nshown so clearly the necessity of enlisting the aid of the\\nvarious classes of society to the support of a common cause,\\nby giving to each of them a legitimate field of exertion.\\nFor the service that it was to us in the early days of our\\nexperiments with independent government in America, and\\nfor what we still confidently expect of it, we must cherish the\\nsystem as a very noble inheritance. Not until we are con-\\nvinced that the evils which have developed in our political\\nlife, and which are putting the virtue of our civil institu-\\ntions to so sore a test, are induced by the system rather than\\nby the inherent shortcomings of men in democracies, should\\nwe be willing to turn from the course which history and ex-\\nperience have marked out for us. To inject into our heritage\\nto-day, principles and political forms which trace another\\nlineage, would result no more happily than the French effort\\nat the end of the eighteenth century to discard history, and\\nPennsylvania Constitution, sec. 7.\\nWorks, Vol. I, p. 435.", "height": "3661", "width": "2330", "jp2-path": "referenduminamer00ober_0083.jp2"}, "84": {"fulltext": "68 THE REFERENDUM IN AMERICA\\nlay the foundations of the future on strange lines. Every\\nempirical sentiment, and all the teachings of modern science,\\ncombine to bring home to reasoning men this one great fact\\nwhich will live as long as the world lasts and human govern-\\nment endures.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0084.jp2"}, "85": {"fulltext": "CHAPTER III\\nTHE RISE OF THE CONSTITUTIONAL CONVENTION AND THE DE-\\nCLINE OF THE LEGISLATURE\\nAlthough an unfriendly newspaper critic had alleged that\\nit was ridiculous for the thirteen United States of America\\nto maintain an Ambassador in England at the enormous ex-\\npense of, perhaps, eight or ten guineas per day for no other\\nvisible purpose than to write a eulogium on the British gov-\\nernment under the sham pretence of vindicating the Amer-\\nican Constitutions Mr. Adams Defence of these Con-\\nstitutions against the attack of M. Turgot exerted a very\\ngreat influence when it appeared, well supplementing the\\nwork which he, and those who thought with him, had earlier\\ndone in behalf of the system of checks and balances in the\\nUnited States. So well established were these views, how-\\never, by the time the Federal Convention met that the advo-\\ncates of a single chamber were an insignificant force.\\nMadison wrote in the Federalist in 1788 respecting a legis-\\nlature of two houses This is a precaution founded on such\\nclear principles and now so well understood in the United\\nStates that it would be more than superfluous to enlarge on\\nit. 2\\nIn other States than Pennsylvania there had also been a\\ntendency toward the simpler forms, and notably in Massa-\\nchusetts, where John Adams himself drafted the first consti-\\ntution, it having been adopted by the convention as it came\\nfrom his pen without material amendment. It has survived\\nto this day in its fundamental form though as the years have\\nrolled along some changes have been dictated by modified\\nconditions and circumstances. Adams Constitution is still\\n^Pennsylvania Packet, October 5, 1787.\\nThe Federalist, p. 292.\\n69", "height": "3661", "width": "2330", "jp2-path": "referenduminamer00ober_0085.jp2"}, "86": {"fulltext": "76 THE REFERENDUM IN AMERICA\\nthe Constitution of Massachusetts, though 119 years have\\npassed over its head, a remarkable tribute to the poHtical\\nwisdom of its author which is contrasted in a striking way\\nwith the brief and unhappy life of Franklin s a priori scheme\\nof government in Pennsylvania. Even Samuel Adams is\\nsaid to have been inclined toward a single house of legis-\\nlature in Massachusetts,^ and later as the people s discontent\\nspread, with the severer financial conditions which were\\nbrought on by the war, they, dissatisfied and unable to trace\\ntheir ills to the true source, made it an occasion to demand a\\nmore democratic form of government. For instance, at the\\nconvention in Hampshire County that met in 1786, just prior\\nto Shay s Rebellion which the State government, as it\\nhad been constituted, was fortunately strong enough to cope\\nwith in a summary way, it was asserted that the Senate was\\na most obnoxious feature of the Constitution. Since it\\nseemed to be a restraint upon the insurgents mischievous\\ndesigns, they desired that the second house should be abol-\\nished.* An insurrection in New Hampshire also evidenced\\nmuch popular dissatisfaction in that State. Changes in the\\nConstitution were desired since the existing government had\\nproven itself strong enough to prevent the realization of the\\nplans of certain agitators for unlimited issues of paper money\\nand a more equal distribution of property.\\nIt was these outbreaks, Adams tells Franklin, which really\\nset him to the task of writing his Defence of the American\\nConstitutions The work was suggested, he says, by the\\nlate popular frenzy in Massachusetts and New Hampshire\\nA government of three departments and a legislature of two\\nhouses in order to prevent a regime of disorder under the\\nleadership of a passionate convention without checks of any\\nsort this is the only sense Mr. Adams adds, in which\\nI am or ever was a republican.^ In recalling this period of\\n\u00c2\u00abJohn Adams Works, Vol. I, pp. 286-7; also Vol. IX, p. 618.\\nG. L. Austin, History of Massachusetts, Boston, 1876, p. 365.\\nSparks Works of Franklin, Vol. X, p. 284 a letter to Franklin from\\nLondon, dated January 27, 1787.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0086.jp2"}, "87": {"fulltext": "THE CONVENTION AND THE LEGISLATURE 7^\\nhis life afterward, in 1809, Mr. Adams referred to the anxiety\\nwhich he felt while his Defence was in preparation, lest\\nthe dispersion of extreme democratic sentiments in Massa-\\nchusetts should lead to total anarchy, and wrote: Every\\nwestern wind brought us news of town and county meetings\\nin Massachusetts adopting Mr. Turgot s ideas, condemning\\nmy Constitution, reprobating the office of governor and the\\nassembly of the senate as expensive, useless and pernicious,\\nand not only proposing to toss them off but rising in rebellion\\nagainst them. In this situation I was determined to wash my\\nhands of the blood that was about to be shed in France, Eu-\\nrope and America and show to the world that neither my sen-\\ntiments nor actions should have any share in countenancing\\nor encouraging any such pernicious, destructive and fatal\\nschemes All over America, indeed, though nowhere to so\\nmarked a degree as in Pennsylvania, the friends of extremely\\ndemocratic forms were a very active force. Thoroughly\\nbeaten and discredited as they were by the adoption of the\\nFederal Constitution, and by the lessons which all the world\\ncould draw from the dire occurrences of the French Revolu-\\ntion, the same elements continued to exert an influence on\\nAmerican politics for many years.\\nConvinced as the best minds then were, and as we still\\nmust be in looking back over the history of the Ameri-\\ncan States, that their constitutional development was natural\\nand proper only so long as it conformed to those empirical\\nprinciples which Adams so clearly perceived and so ably de-\\nfended, there have come up in course lately some things that\\ncontrast rather curiously with earlier events. The growth of\\nthe influence of the constitutional convention is unquestiona-\\nbly one of the most remarkable manifestations in the field of\\npopular government in the L^nited States to-day. The con-\\nvention has been gaining strength year by year and has been\\nabsorbing powers that it earlier did not possess until the leg-\\nislature with its boasted two chambers, once the centre of so\\npeculiar a constitutional contest, is to-day little more than a\\nAdams Works, Vol. IX, pp. 621, et seq.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0087.jp2"}, "88": {"fulltext": "72 THE REFERENDUM IN AMERICA\\nshadow of its former self. One of the three departments of\\ngovernment, the legislative, expressed itself through the leg-\\nislature which has now had to divide its honors with another\\nlegislative agency, the convention. This convention, oddly\\nenough, is an assembly of a single chamber, from which the\\nfounders of the government strove so diligently to keep us\\nfree. How we have come through this development it will\\nbe my task in this chapter to demonstrate.\\nThere has never been the slightest doubt in the minds of\\npublicists who have written of our institutions as to where\\nsovereignty resides. It resides with the people. They are the\\noriginal source of the government s authority; it is with\\nthem as the object of its activities that the state exists. They,\\nsomewhat in the way of a great abstraction, serve us as a\\nbackground for our political thinking, and from them the\\nvarious agencies of the government are traced out historically\\ninto their present forms. Political philosophy devotes it-\\nself to exploring the field and defining, in so far as it can do\\nthis, the frontiers of government, laying out the bounda-\\nries of the state in relation to whatever else exists in\\nour social system. Political science, taking these frontiers\\nas they have been established, looks to the problem of or-\\nganizing the state, of giving to it a definite position in the so-\\ncial scheme, of appointing its agents and assigning to each\\nits suitable tasks. We have noted how at great pains the\\nAmerican governments were held to three main departments,\\nthe legislative for enacting the law, the judicial for expound-\\ning and interpreting it and the executive for carrying it into\\neffect. The people as the sovereign power had delegated to\\nthese agencies, one checking the other, in order to secure sta-\\nbility and equipoise thus, as it were, putting a spine in the\\ncreature that it would not fall with every turn of the wind\\nthe authority to act in their name as the government and the\\nstate.\\nNow, how does the State constitution fit into this system,\\nand in what relation does the convention, which framed it,\\nstand to these other agencies of the government? The", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0088.jp2"}, "89": {"fulltext": "THE CONVENTION AND THE LEGISLATURE 73\\nAmericans turned to a written constitution in the most nat-\\nural way, and again chiefly because they were at grouiid\\nEngHshmen, or, at any rate, colonists gone out from the\\nBritish Islands, carrying with them their grants and charters\\nin which were guaranteed to them the rights they prized so\\nhighly. It is true that England herself had not then, and\\nstill to-day has not a written constitution. Throughout the\\ncolonial period, however, in the struggle with the crown and\\nthe proprietors it w^as, with the American colonists, a ques-\\ntion of securing from England fresh concessions, and not\\nany of a chimerical kind but those which were couched in\\ndefinite terms and which the delegates, who often sought\\nthem in person, could bring home with them in writing\\nacross the ocean.\\nIt was a development perhaps not quite so natural that\\nthese constitutions should be framed by conventions, i. e. by\\nbodies of delegates separately chosen to do this important\\nwork, rather than that the task be intrusted to the regular\\nlegislature which has created and continues to build up the\\nEnglish Constitution. But it is necessary to consider the\\nfact that when the colonies broke loose from their\\nEnglish moorings, the aristocratic assemblies and royal\\ngovernors could no longer be safely utilized. These were fol-\\nlowed by conventions, or provincial conferences, or con-\\ngresses, however they may have been denominated. As\\nJameson, in his classic work on Constitutional Conventions,\\nclearly points out, these bodies were of the revolutionary\\ntype exercising powers of various kinds not only framing\\nnew constitutions, but also electing magistrates and members\\nof the general Congress, enacting statute law on a wide vari-\\nety of topics and providing for the common defense. They\\ngot their authorization through force, i. e., lacking other\\nmeans, the stronger party in the colonies allovv^ed these bod-\\nies of delegates to step in and do what was considered to be\\nexpedient to establish and perpetuate the principles which\\nthis stronger party valued and held to be dear. Some of\\nthe first constitutions were framed by the same bodies which", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0089.jp2"}, "90": {"fulltext": "74 THE REFERENDUM IN AMERICA\\nacted regularly as legislatures, as in New Hampshire in the\\ncase of the Constitution of 1776, and in Virginia a few\\nmonths later and with hardly an exception the bodies which\\nframed the constitutions enacted also a considerable amount\\nof ordinary legislation to serve temporary ends, even when\\ncalled for the single purpose of devising a form of govern-\\nment with the expectation that they would adjourn and make\\nway for other agents so soon as their special task had been\\nperformed.\\nAlthough it was early less clear than it has since come to\\nbe that a convention should not enact statute or municipal\\nlaw, the belief was even then well grounded that the legis-\\nlature should not mix in with the work of making the con-\\nstitutional and fundamental law of a State. The legislature\\nof Massachusetts in 1778, acting on its own responsibility,\\nhad framed a Constitution which was submitted to the town\\nmeetings. The people rejected it because they were led to\\nthink that it had been prepared in an irregular way, that is,\\nby the legislature rather than by a convention specially cho-\\nsen for the work. Almost immediately afterward the people\\nof Massachusetts voted to delegate the task to a convention\\nand the Constitution framed by this body met with popular\\napproval. In South Carolina where the Constitutions of\\n1776 and 1778 were framed by the legislature the Supreme\\nCourt declared that the form of government was no\\nmore than any other legislative act The same authority\\nthat made it could repeal it again whenever it chose.\\nIn but one or two instances at that early time was\\nthe legislature authorized either to make or propose\\namendments to the constitution after it had been pro-\\nmulgated as the organic law of the State, and then only\\nunder severe limitations. In one State, at least, Pennsyl-\\nvania, where the Assembly was given large and various pow-\\ners in respect of other matters such authority was in specific\\nterms prohibited to the legislature. The Constitution de-\\nclared that the legislature should have no right to add to,\\nCf. 2 McCord s R., p. 354-", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0090.jp2"}, "91": {"fulltext": "THE CONVENTION AND THE LEGISLATURE 75\\nalter, abolish or infringe any part of this Constitution By\\nthe differentiation of these two functions of statute law-ma-\\nking and constitutional law-making another check, or bal-\\nance, was introduced into our system, and how separate and\\ndistinct have been the careers of the convention for enact-\\ning the fundamental law and of the legislature for enacting\\nordinary legislation is emphasized very strongly by a study\\nof the later history of the development of political institutions\\nin our American States.\\nWithin a comparatively recent time, however, another ten-\\ndency has manifested itself and our earlier discussions as to\\nthe relation which should exist between the convention and\\nthe legislature have developed new aspects. Much interest-\\ning material is afforded the student in this field of inquiry.\\nIt has been asserted by the members of some of the conven-\\ntions, and they have been upheld in the view by justices of\\ncertain State courts, delivering official or unofficial opin-\\nions on the subject, that the conventions are over and beyond\\nall law. These bodies are sometimes looked upon as ex-\\ntraordinary agents exercising extraordinary powers, being\\nnot a part of the system of State government but the author\\nof it, and therefore independent of any other agent the peo-\\nple may establish. It has been argued that when the conven-\\ntion meets the State is again resolved into its original parts,\\na notion borrowed of course from France, analogies being\\ndrawn between our own and the French constituent assem-\\nblies of revolutionary types. When the convention meets,\\nthe people, it is said, take back to themselves all the authority\\nthey ever delegated, i. e. to the State government, but a re-\\nsiduary portion of course since certain enumerated powers\\nhave been made over to the Federal government which may\\nbe resumed again only by means of a separate Federal pro-\\ncess.\u00c2\u00ae Such a view, however, must be regarded as wholly\\nConstitution of 1776, sec. 9.\\nCf. Tenth Amendment of the Federal Constitution Jameson, Con-\\nstitutional Conventions, 4th ed., p. 87 Cooley, Principles of Constitu-\\ntional Law, pp. 29-30.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0091.jp2"}, "92": {"fulltext": "76 THE REFERENDUM IN AMERICA\\nuntenable in the face of the evidence and argument adduced\\nby Judge Jameson.^^ It is the accepted theory to-day, as a\\nresult of our development and experience in respect of con-\\nventions, that they must co-operate, in a way at least, with\\nthe other agencies of government which the sovereign soci-\\nety has established. It is necessary to the regular and or-\\nderly working out of our system that the legislature, which\\nhas been aptly called the sentinel on duty shall put into\\nmotion the machinery for the assembling of the convention\\nand shall perhaps also in some measure prescribe the bounds\\nwithin which it may act. Precedents upon this point are now\\nso numerous that no other view can be allowed and conven-\\ntions which were assembled on their own authority, responsi-\\nble to no established organ of the State, would be mere mass\\nmeetings, akin only to those of 1776, of the secession and\\nreconstruction periods in this country, and of 1789 and af-\\nter in France. Such conventions might become a source of\\nvery serious danger and, were these unbridled assemblies a\\npart of our scheme of government, the days of the American\\ndemocracy could be reckoned near their end. The conven-\\ntion, if precedent is followed and good counsel from our\\nhistory and experience are sought, will never gain such ascen-\\ndency over the legislature and the other agencies of govern-\\nment as to get entirely free of reasonable restraints.\\nIt is of much theoretical interest to speculate in regard to\\nthe instability of our institutions were the convention to\\ngain unwonted power at the expense of the other agencies\\nof government. But it must be of a great deal more actual\\npresent importance to us to note how the convention is ma-\\nking head against these rival agencies, and particularly the\\nlegislature, from another side where the ramparts are not so\\nhigh nor so well defended. No tendency among all those\\nwhich are at work in the domain of government upon this\\nVon Hoist s opinion is divergent cf. Apendix C of Jameson s\\nwork on Constitutional Conventions cf. also Reports of cases before a\\nleading State court, both confirmatory of Jameson. Wells v. Bain, 75\\nPa. 39; and Woods Appeal, 75 Pa. 59. Jameson, op. cit., p. 365.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0092.jp2"}, "93": {"fulltext": "THE CONVENTION AND THE LEGISLATURE 77\\nside of the Atlantic Ocean is more striking and none should\\nclaim a larger share of our interest and concern. It is a\\nsilent and gradual revolution which is bringing the State\\nlegislatures into a condition of relative impotency. By any\\nrightful interpretation of the term a constitution must be\\nconsidered to be an outline of the principles of government.\\nIt is a statement of essential and fundamental facts regard-\\ning the organization of the state. Our own Federal Con-\\nstitution is a type of what a written constitution should be,\\na charter that clearly defines the greater and more general\\nrelations between the sovereign society and the agencies by\\nwhich its authority is outwardly made manifest. The Eng-\\nlish Constitution, though unwritten, is no less real. It is\\nperfectly definable. It embraces no rules in respect of the\\ntraffic in wines, spirits and beer; provisions in regard to the\\ngranting of free passes on railways are foreign to it, as are\\nalso rules concerning the legal rate of interest on loanable\\nmoney, newspaper libel, the duello or the lottery which we\\nso often find to-day in American State Constitutions. The\\nConstitutions of Germany, Switzerland and France are not\\nrepositories for legislation regarding comparatively trivial\\nafifairs. By the constitution of a commonwealth, Jame-\\nson says, is meant primarily its make-up as a political or-\\nganization, that special adjustment of instrumentalities,\\npowers and functions by which its form and operation are\\ndetermined. Again this high authority says A con-\\nvention is authorized to embody in the constitution general\\nprovisions establishing principles, but leaving details depend-\\nent on considerations of temporary expediency to be deter-\\nmined by the legislature. For these reasons we find that\\nlegislation of this kind is called the fundamental law or\\nthe organic law It has a character of its own inviolable\\nin the minds of all men who are trained to recognize the\\nsimplest of legal and political distinctions. How ruthlessly\\nwe have leveled these barriers that divide two great classes\\nJameson, p.\\nIbid., p. 429.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0093.jp2"}, "94": {"fulltext": "78 THE REFERENDUM IN AMERICA\\nof law it will be my task here now in a general way to indi-\\ncate.^*\\nAt first the legislatures were left a very wide field for\\ntheir activities. To them was given comparative freedom\\nto fill out the skeleton of government, to put in the flesh, and\\nfibre. They indeed exercised very extensive powers which\\nwere not legislative in any true sense. They, in many cases,\\nchose the Governors, or Presidents, of the States. They\\nthus exerted an important control over the executive depart-\\nment of the government. Such privileges seem to have been\\nenjoyed by the legislatures of all the States during the Rev-\\nolutionary period, except Massachusetts and New York. The\\nlegislatures chose, not only the Governors, but also the Gov-\\nernors Councils in a great many States, as well as other\\nState executive and administrative officers, such as the\\nState Treasurer and the Secretary of the Commonwealth.\\nThe State legislatures elected the delegates to the Continental\\nCongress. The judges of the higher courts were appointed\\nby the legislature as was the Attorney-General or public\\nprosecutor, and in some cases, as in Delaware,^^ the judges\\nof the county courts were chosen by the same power. The\\nlegislature sometimes even selected the members of the second\\nhouse or Senate, which is to say that the legislature was\\nelected by the people as a single house, and, either resolved\\nitself into two chambers afterward, as was the case, for in-\\nstance, in South Carolina, or went outside of its own body,\\nas in New Hampshire, selecting the members of a second\\nhouse from the people of the State at large. To the legis-\\nlature w^as sometimes entrusted also the duty of appointing\\nthe officers of the State s land and naval forces, as by the\\nfirst Constitutions of Delaware and New Hampshire. The\\nlegislature was in no case subject to an executive veto ex-\\nIn recent years attention has been frequently directed to this de-\\nvelopment cf. Bryce, op. cit., Vol. I, pp. 443 et seq. Borgeaud, op. cit.,\\npp. 39 et seq.; Lowell, Governments and Parties in Continental Europe,\\n1897, Vol. II. p. 293.\\nConstitution of 1776, art. xii.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0094.jp2"}, "95": {"fulltext": "THE CONVENTION AND THE LEGISLATURE 79\\ncept in Massachusetts and New York, the Governor applying\\nthe negative in the former State, and a Council of Revision,\\ncomposed of the Governor, the chancellor and the judges of\\nthe Supreme Court, in the latter commonwealth.\\nNo long time elapsed, of course, until the people acted di-\\nrectly in the choice of their Governors and Congressmen in\\nall the States of the Union. Councilors came to be officers\\nin the personal cabinets of the Governors, following the ex-\\nample set by the Federal Constitution, or else were elected\\nby the people. The judges became either appointive by the\\nGovernors or elective by the people. The appointment of\\nthe officers of the State militia was added to the Governor s\\nprerogatives. In short, the various State legislatures were\\nsoon shorn of nearly all their powers in the selection of mag-\\nistrates, becoming simple law-making bodies, which it is their\\nfunction to be, of two chambers one having a negative upon\\nthe other, the Governor possessing a veto upon the action ol\\nboth.\\nThis was a natural and legitimate development which was\\ncertain to ensue so soon as the various governments were\\nfairly organized, and the example of Massachusetts and New\\nYork, and above all of the Federal Constitution, was at hand\\nand could be pointed to as embodying a type system for the\\nfree States of this continent. Another and a less natural\\nmovement to curtail the powers of the legislature was\\naimed against it in its capacity as a law-making body and\\nwas begun by its rival in the law-making field, the constitu-\\ntional convention. It was through the offices of the conven-\\ntion, of course, that the legislature had been stripped of its\\nauthority in the choice of magistrates, but the first great ad-\\nvance made against the legislature in the more recent move-\\nment to lop off its powers was the change from annual to\\nbiennial sessions. Earlier it was the universal rule in the\\ndifferent States to elect the members of the legislature every\\nyear. If this were not the custom respecting both branches,\\nit was so at least with respect to the lower house or more\\npopular branch of the legislative assembly. The legisla-", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0095.jp2"}, "96": {"fulltext": "So THE REFERENDUM IN AMERICA\\nture was not only elected each year, but it met annually also,\\nand this system prevailed with no exceptions until we were\\nwell along in this century. Among the original States of\\nthe Union making this change may be named Delaware\\nwhich introduced biennial sessions in 1831.^^ Maryland made\\nthe change in 1846 and Virginia in 1850, returning to an-\\nnual sessions in 1870, but again abandoning the system in\\nfavor of a session every second year in 1876. Now all the\\nforty-five States of the Union have amended their Consti-\\ntutions in favor of biennial legislative sessions, or in many\\ninstances, as in the newer States, have never known any\\nother system, except New York, Massachusetts, New Jer-\\nsey, Rhode Island, South Carolina and Georgia. The\\nGeorgia Convention of 1877 provided for meetings of the\\nlegislature every second year instead of annually, as had\\nbeen the rule before, but in 1892 upon the initiation of the\\nlegislature, the Constitution was amended and the annual\\nmeeting was restored to the political practice of the State.^\u00c2\u00ae\\nThis seems to be the only case in which a real desire has been\\nmanifested for a return to the system of annual legislative\\nsessions and the tendency in all parts of the Union has been\\nsteadily in the other direction. In those few States in which\\nthe legislatures still convene annually, and, notably in New\\nYork and New Jersey, there is no concealment of the public\\ndistrust for these bodies, while the conviction seems to grow\\nthat it would be a very much better arrangement should they\\nmeet less frequently. Indeed in one State, Mississippi, by\\nthe Constitution of 1890^^ the convention has gone yet a\\nstep farther, providing for regular legislative sessions only\\nonce in four years. In the interval, however, two years af-\\nter the adjournment of the regular session, a special session\\nmay be called but this may not continue for a longer term\\nthan thirty days.\\n^^Constitution of 1831, art. ii, sec. 4.\\nAmendments to the Constitution of 1776, art. xxvi,\\nArt. ii, sec. 4, paragraph 3, of the Constitution.\\nGeorgia Laws, 1890-91, pp. 55-6. Sec. 36.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0096.jp2"}, "97": {"fulltext": "THE CONVENTION AND THE LEGISLATURE 8i\\nThus we note that in nearly all the States of the Union\\nthe convention has reduced by one half the activity and power\\nof the legislature as a law-making agency, and this, despite\\nthe fact that our social life to-day is more complex than ever\\nbefore, the communities more populous, and human require-\\nments correspondingly greater, while political philosophy is\\nall the time extending the field of government and giving\\norganized society a hand in an increasing number of our\\nworldly affairs.\\nThe change from annual to biennial sessions, however, is\\nnot by any means the only curtailment of the legislature s\\npowers recently effected through the instrumentality of the\\nconstitutional convention. Not only does the convention\\nbind the legislature to a single session in two years, unless,\\nof course, the Governor should convene an extra, or special\\nsession, but it fixes a limit to the number of days during\\nwhich that session shall last. This is a very late develop-\\nment in the constitutional practice of the States, and the re-\\nsult has been attained in several ingenious ways. The sim-\\nplest method is to place an absolute limit upon the length of\\nthe session. For instance, the Constitution of Maryland\\nsays The General Assembly may continue its session so\\nlong as in its judgment the public interest may require for a\\nperiod not longer than ninety days. Special sessions which\\nmay be convened by the Governor are not to continue for a\\nlonger time than thirty days. In Montana the limit is set\\nat sixty days, and in Alabama at fifty days.^^ In Florida\\nthe regular sessions may extend to sixty days while a\\nspecial session is not to last longer than twenty days.^* In\\nIndiana a regular session may continue for sixty-one days,\\nwhile forty days is the limit prescribed for a special session.^^\\nThe limit in Kentucky is sixty days in North Dakota sixty\\n^^Constitution of 1867, art. iii, sec. 15.\\nConstitution of 1889, art. v, sec. 6.\\nConstitution of 1875, art. iv, sec. 5.\\nConstitution of 1885, art. iii, sec. 2.\\n^^Constitution of 1851, art. iv, sec. 29.\\nConstitution of 1891, sec. 42.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0097.jp2"}, "98": {"fulltext": "82 THE REFERENDUM IN AMERICA\\ndays;^^ in South Dakota sixty days in Washington sixty\\ndays f^ in Wyoming sixty days f^ in Colorado ninety days,^^\\nhaving been increased from forty days in 1884, on the initia-\\ntion of the legislature.\\nSometimes, too, it is left to the legislature itself to de-\\ntermine, by a vote somewhat larger than a majority of its\\nmembers, whether the session shall last longer than a pre-\\nscribed number of days. For example, the Constitution\\nof Virginia provides that, No session of the General As-\\nsembly shall continue longer than ninety days without the\\nconcurrence of three fifths of the members elected to each\\nhouse in which case the session may be extended for a\\nfurther period not exceeding thirty days. In West Vir-\\nginia the limit of the life of the session is fixed at forty-five\\ndays, unless two-thirds of the members of each house shall\\nvote to extend it.^^ A somewhat similar provision occurs in\\nthe Constitution of Arkansas.^-\\nAgain the conventions have adopted an indirect method of\\nreaching the same end, namely by altogether stopping, or by\\nreducing the salaries of the members of the legislature after\\nthey have been in session for a certain time, adjudged to be\\nsufficient for the transaction of their business. The members\\nof these bodies, receiving a payment from the public treasu-\\nries, are in some cases given a per diem allowance instead of a\\ndefinite sum for the session. Thus in Nebraska the members\\nare to have $3 a day each, provided, however, that they\\nshall not receive pay for miore than forty days at any one\\nsession In Idaho the payments continue for sixty days,\\nin Kansas fifty days, Kentucky sixty days, Oregon forty days,\\n2^ Constitution of 1889, art. ii, sec. 56.\\n2* Constitution of 1889, art. iii, sec. 6.\\n2^ Constitution of 1889, art. ii, sec. 12.\\n2\u00c2\u00b0 Constitution of 1889, art. iii, sec. 6.\\n21 Constitution of 1876, art. v, sec. 6.\\n^-Constitution of 1870, art. v, sec. 6.\\n^^Constitution of 1872, art. vi, sec. 22.\\ns* Constitution of 1874, art. v, sec. 17.\\n^^Constitution of 1875, art. ii, sec. 21,", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0098.jp2"}, "99": {"fulltext": "THE CONVENTION AND THE LEGISLATURE 83\\nTennessee seventy-five days. In Texas the payment is at the\\nrate of $5 per day for the first sixty days and $2 per day for\\nthe remainder of the session. Here again is another potent\\ninfluence working to limit the legislature s activity and to\\nkeep it within established bounds.\\nIn late years the legislatures, through the means lying\\nnearest to their hand, have occasionally put forth efforts to\\nrestore themselves to earlier power by making proposals to\\namend the constitution which is a privilege that they gen-\\nerally possess. Thus propositions for a return to annual ses-\\nsions, for an increase of the number of days during which\\nthe session may continue, for the increase of the salaries of\\nthe members and so on, are submitted to the people who as a\\nrule quite promptly reject them. The legislatures there-\\nfore have never succeeded in regaining very much of their\\nlost ground by these heroic attempts to re-instate themselves\\nin public favor.\\nThe conventions, however, go even farther than this in\\ntheir determined campaign against the legislature. They in-\\ncorporate in the constitution definite rules governing the ac-\\ntion of the legislatures in respect of many different classes\\nof subjects. The members of these bodies are instructed\\nminutely in regard to the performance of their duties as law-\\nmakers. They are told what they may do, and again what\\nthey may not do, so that it is a straight and narrow path, in\\nvery truth, which they must thread their way along if they\\nwish their laws to enter into the Kingdom, safe from the\\nrevision of the judicial department of the government.\\nAmong other subjects to which the conventions are turning\\ntheir attention to-day are the railways, and private corpora-\\ntions generally. Rules defining corporate rights and regu-\\nlating the conduct of corporations have been introduced into\\nthe constitutions in great numbers. These are often very\\nburdensome to capital, though often, again, quite just; the\\nonly point to be insisted on in this connection is the one with\\nwhich we started out, that laws of this kind might more\\nConstitution of 1876, art. iii, sec. 24.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0099.jp2"}, "100": {"fulltext": "84 THE REFERENDUM IN AMERICA\\nproperly come from a legislature than from a constitutional\\nconvention. There may be found, too, in all the newer con-\\nstitutions, specific directions from the convention regarding\\nthe deportment of the legislature in respect of the State s\\nrevenues and expenditures. There are rules for the pro-\\ntection of the sinking funds and for guarding the State s\\ncredit against those who would loan it or grant it away.\\nThere are definite regulations to govern the State in the\\ntaxation of property and the appropriation of the public\\nmoneys all these provisions, reflecting the distrust of the\\nconventions for the legislatures, having been framed in the\\nview of putting up walls and outworks to defend the honor\\nof the State from the spoiler, against whose machinations\\npopular government in some of its degenerate forms seems to\\nfurnish no guarantee.\\nIn the same way the conventions have sought to guard the\\nfinancial credit of the local political units and, more par-\\nticularly in the larger cities, a field in which America s fail-\\nures in government have been so notable and numerous as\\nto attract the attention of the civilized world. By many dif-\\nferent devices the conventions have undertaken to restrain\\nthe legislatures in the passage of local gevernment acts which\\napply to cities, towns, counties and the other local political\\ndistricts. The legislatures are confined within constantly nar-\\nrowing bounds in this department of their activity. There\\nhas been a distinct tendency at work for many years to\\nstrip the legislature of its power to pass so-called special\\nacts in respect of municipalities. If the affairs of cities are\\nmade the subject of legislation at all it must be in a gen-\\neral way, which is to say that rules which are established\\nfor one community must apply to all, or, at any rate, to\\nall of a class the members of which are similar in char-\\nacter and have the same general requirements. The pro-\\nhibition of special legislation has led, of course, to rather\\npeculiar results in some instances and many, no doubt, which\\nare disadvantageous to the cities so grouped together, since", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0100.jp2"}, "101": {"fulltext": "THE CONVENTION AND THE LEGISLATURE 85\\ntheir needs are often, in the nature of the case, very di-\\nvergent.\\nThere are many important classes of legislation, other\\nthan laws to regulate local government, concerning which\\nthe conventions declare that special acts shall not be passed.\\nIn California, for instance, according to the present Consti-\\ntution of the State the subjects regarding which the legis-\\nlature may not enact special laws are classified under thirty-\\nthree different heads.^^ By the new Constitution of Ken-\\ntucky twenty-nine classes of special legislation are prohib-\\nited,^^ and the list tends all the while to grow appreciably\\nlonger. These prohibitions extend to such topics of legisla-\\ntion as divorce, the assessment and collection of taxes,\\njudicial procedure, the punishment of crime, the conduct\\nof elections, the settlement of estates of deceased persons,\\nthe management of public schools, remission of fines and\\npenalties, regulation of the rate of interest on money, re-\\nmoval of county seats, the granting of special privileges to\\npersons and corporations, the adoption of children, the pro-\\ntection of fish and g-ame, the regulation of labor and trade,\\netc., etc.\\nFurthermore a very large number of provisions are to be\\nfound in the more recent constitutions respecting what, by\\nany rightful interpretation of the subject, would he con-\\nsidered to be mere rules to govern parliamentary procedure,\\nsuch as would not be entitled, therefore, to a place outside\\nof a handbook for the guidance of a legislative body. The\\nconventions determine when bills shall be introduced into\\nthe legislature. In Nebraska this may be done only during\\nthe first forty days of the session in California only during\\nthe first fifty days.*^ There are rules to govern the reading\\nof bills prior to their passage, and provisions requiring that\\nConstitution of 1879, art. iv, sec. 2$.\\nConstitution of 1891, sec. 59.\\nConstitution of 1875, art. iii, sec. 4.\\nConstitution of 1879, art, iv^ sec. 2.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0101.jp2"}, "102": {"fulltext": "86 THE REFERENDUM IN AMERICA\\nthe subject of the bill shall be expressed in its title, that no\\nbill shall embrace more than one subject and that money\\nshall not be appropriated during the closing days of\\nany session. Such prohibitions in the newer Constitu-\\ntions are meant to prevent the common railroading and\\njamming methods which the legislatures to-day, to their\\ninfinite discredit, sometimes adopt. The convention again\\nin some cases has taken away from the legislature the free-\\ndom to determine when a law which it has approved shall\\ncome into effect, a future day for its going into force being\\ndefinitely set by the constitution, as for instance the July 4th\\nfollowing the date of passage.*^\\nThe conventions, it appears, have also taken unto them-\\nselves the duty of regulating the suffrage in great detail,\\nof safeguarding the ballot system and making specifications\\nof many different kinds that should be wholly foreign to a\\nconstitution. They have even intervened to the point of\\nguiding the other agents of the government in the exercise\\nof the police power as in respect to the prohibition or re-\\nstraint of the sale and manufacture of alcoholic beverages,\\nrespecting lotteries and gift enterprises libels by the press,\\npolygamy, bribery, lobbying log-rolling and the pur-\\nchase of men s votes, the duel and the punishment of those\\nwho commit offences against good morals. Various state\\ninstitutions, charitable, educational and penal, receive their\\ngrants of power through the convention and the rules for\\ntheir conduct and maintenance are more or less fully set forth\\nin the constitutions. The salaries of members of the legis-\\nlature, governors and other magistrates are fixed by the\\nconstitutions of the States. The legislature, in short, at every\\nturn must consult the charter from which it derives its\\npowers, if it would steer a course clear of the convention\\nand escape the charge of having passed an unconstitutional\\nact.\\nCf. Constitution of Iowa, art. iii, sec. 26 Constitution of North\\nDakota, art. ii, sec. 67 Constitution of Colorado, art. ii, sec. 19. In this\\ncase the legislature usually retains the right to decide whether a given\\nlaw is of immediate importance and if so it may disregard the rule.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0102.jp2"}, "103": {"fulltext": "THE CONVENTION AND THE LEGISLATURE 87\\nAs the conventions have undertaken narrowly to de-\\nfine the Hmits within which the legislatures may officiate,\\nso too have they added details concerning the executive\\nand, more particularly, the judicial departments of the gov-\\nernment. Rules which belong in the practice code to govern\\nthe conduct of proceedings in the courts and which have no\\nparticle of right in constitutional law have crept into these\\ninstruments of government to the lasting confusion of our\\nlegal systems. But upon the dignity of no other depart-\\nment than the legislature, its own vigorous rival, has the\\nconvention made such serious attacks, and for the motives\\nof no other has it expressed so much distrust. Indeed by no\\nother means than a careful perusal and study of these instru-\\nments in a comparative way can any person arrive at a\\ncorrect view of the great variety of topics which to-day are\\ntreated by the constitutional conventions in the different\\nAmerican States. This is not better indicated than by the\\ngrowing length of the constitutions. Beginning we know as\\nbrief and condensed statements of the fundamental prin-\\nciples of government, dignified in form, even though they\\nwere sometimes the work of political illusionists, they have\\nincreased in body and volume several times over. The first\\nConstitution of Virginia with its famous Bill of Rights takes\\nup only four pages in Poore s edition of the Federal and\\nState Constitutions. Virginia s Constitution adopted in 1830\\ncovers seven pages. Its successor framed in 1850 had in-\\ncreased in length so that it needed eighteen pages, while\\nthe present Constitution of Virginia fills twenty-one pages\\nin the same book, an increase between 1776 and 1870 from,\\nsay, 3000 words to 15000 w^ords. Each of the first two Con-\\nstitutions of Pennsylvania, adopted in 1776 and 1790, takes\\nup about eight pages in Poore s large quarto volumes. The\\npresent Constitution of the State adopted in 1873 occupies\\ntwenty-three pages. Missouri s Constitution was twelve\\npages long in 1820, increasing to twenty-one pages in 1865\\nand thirty-three pages in 1875. Illinois shows a striking\\nadvancement from ten pages in 18 18 to twenty-one in 1848", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0103.jp2"}, "104": {"fulltext": "88 THE REFERENDUM IN AMERICA\\nand twenty-five in 1870. All the newer Constitutions are\\nof great length. Fair types of those most recently adopted\\nare Montana s in 1889, Washington s in 1889, Mississippi s\\nin 1890, Kentucky s in 1891, each one of which contains\\nupwards of 20000 words. The Constitution of South Da-\\nkota of 1889 comprises 25000 words, while the Constitu-\\ntion of Louisiana adopted in 1898 embraces no less than\\n43000 words codified in 326 separate articles The first\\nConstitution of Louisiana, dated 1812, contained between\\n5000 and 6000 words^ swelling to loooo in 1845 ^.nd 1852\\nand 12000 in 1868. The first Constitution of New Hampshire\\nin 1776 contained only about 600 words and some of the\\nState Constitutions framed during the Revolutionary time\\ncontrast with those which are being framed to-day, even for\\nthe new and sparsely populated commonwealths of the Far\\nWest in a most striking way.\\nTo this curious and somewhat humiliating position has\\nthe constitutional convention brought the American State\\nlegislature, possessing not the sovereign power of the Federal\\nCongress in greater matters, of course, but originally ex-\\nercising a very large share of residuary authority in the\\ndistrict under its own jurisdiction; the legitimate successor\\nof the same Parliament which gradually won its freedom\\nfrom the king and the king s high judges, which fought for\\nits life against those who would prorogue it and dissolve\\nit contrary to its will, which was the one place where the\\npeople were given a voice and an opportunity to impress\\ntheir views upon the public polity, and which when the\\nStates declared their independence of England became almost\\nthe sole heir, as we have seen, to the whole governmental\\nestate. The legislature in those States in which good patterns\\nwere followed, Pennsylvania being the most notable excep-\\ntion to the rule, was effectively curbed in some directions by\\nthe executive and judicial departments of the government,\\nbut in its own field as a law maker it was practically supreme.\\nIt has been reserved to a fourth agency of government, the\\nconvention, to dispute its title to its own birthrigiit.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0104.jp2"}, "105": {"fulltext": "THE CONVENTION AND THE LEGISLATURE 89\\nBut is there not perhaps a method by which the legislature\\nor the other established agencies of government can treat with\\nthe convention, giving back to the legislature the old place\\nwhich belongs to it in the enactment of statute law, while the\\nconvention is confined within its proper bounds as a maker\\nof constitutional law Judge Jameson, our highest authority\\non the constitutional convention, suggests a simple plan by\\nwhich to restore the legislature to its own portion. Recog-\\nnizing the distinction between constitutional law and that\\nwhich, rightfully considered, must be held to belong outside\\nof these limits, he is led to some very interesting conclusions.\\nA convention he says, is competent to recommend the\\nadoption of principles in such a form and under such con-\\nditions as are consonant with the general conception of funda-\\nmental legislation and no further. It may indicate what has\\nbecome the settled policy of the State but if it go beyond that,\\ndeveloping principles into minute provisions, likely as circum-\\nstances shift to need modification, it trespasses upon the do-\\nmain of the legislature. Doubtless a constitution stuffed\\nwith legislative details may acquire legitimacy by its being\\nratified by the people, for where a constitution contains a posi-\\ntive provision the courts cannot ignore it or annul it, but the\\nimpropriety of such legislation would not thereby be dis-\\nproved or lessened. If legislative provisions are thrust into\\na constitution and passed upon by the people, ought they to\\nhave the force of laws any more than when submitted to the\\npeople disconnected with provisions truly fundamental? In\\nthe latter case we have seen that our courts pronounce them\\nwholly without validity as laws. If the same judgment be\\nnot given respecting a constitutional provision consisting of\\nlegislative details, it is simply because it would be in effect to\\npermit our judiciary to annul the charters under which they\\nact on the pretext of striking from them provisions not prop-\\nerly fundamental\\nWe of course cannot conceive of the courts going to the\\nextreme length which Judge Jameson suggests. They are\\nJameson, op. cit,, pp. 429-30.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0105.jp2"}, "106": {"fulltext": "90 THE REFERENDUM IN AMERICA\\nemployed at every session in defining the frontiers between\\nconstitutional and statutory provisions in respect of subjects\\nof very many different kinds. Laws passed by the legislature\\nare declared unconstitutional often upon mere technical\\npoints. However, as for the judiciary passing such a judg-\\nment upon a constitutional provision, no matter how much it\\nmight trench on powers which are legislative beyond any one s\\nability to question it, it is wholly inconceivable. The judiciary,\\nas the recorded cases clearly show, is not without authority\\nover the convention. There is a body of precedent and un-\\nwritten law on the point to govern the constitutional conven-\\ntion, but so long as it keeps up the disguise, incorporates its\\nacts in a code and calls it all the Constitution of Illinois, of\\nPennsylvania, or of Louisiana and no other irregularity is at\\nhand, the courts are clearly not empowered to go behind the\\npresentment and declare that what comes to them as consti-\\ntutional law is really not this at all, but something of an en-\\ntirely different character.\\nThe judicial department being without authority in the\\ncase, it is proper now to inquire if the legislature itself can\\nplace any practical restraints upon the convention. Jameson\\nhas made a special effort to show how, to a degree, the con-\\nvention is not a free agent, and theoretically the case is well\\nworked out but what does the legislature s power really\\namount to? Could it by any possible method, if it were so\\ndisposed, defend itself against the encroachments of the con-\\nvention It appears to be well recognized both in theory and\\nusage that it is a power resting with the legislature to call the\\nmembers of the convention together. The convention is an\\nextraordinary body, meeting infrequently and at irregular\\ntimes. The legislature may pass a law saying when the con-\\nvention shall meet, albeit usually only after the question has\\nbeen referred to the people. It is the authority which by cus-\\ntom and right decides how the convention shall be composed,\\nof how many members, etc., the precise day upon which it\\nshall assemble, the place at which it shall assemble. It has the\\npower to provide that the constitution which is framed shall", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0106.jp2"}, "107": {"fulltext": "THE CONVENTION AND THE LEGISLATURE 9^\\nbe submitted to the people for their approval or rejection, and\\nto prescribe an oath for the members of the convention. Can\\nit, however, require that the convention shall do certain\\nthings, or perhaps refrain from doing certain other things,\\nchanging the constitution only along the lines which the legis-\\nlature itself lays down? Considerable precedent exists which\\nwould seem to indicate that the legislature can bind the con-\\nvention, at any rate up to a certain point, and there would ap-\\npear to be only three cases in which conventions have under-\\ntaken to disobey the mandates of the authority that brought\\nthem into life.*^ The course adopted by these conventions\\nyielded them no gain and led in one instance, in Pennsylvania\\nin 1873, to judicial opinions of a very noteworthy character.\\nThere are, however, relatively few cases in which the legis-\\nlature has attempted to bring its own strength to a full test.\\nIt would be difficult, no doubt, to hold a convention in check\\nwith the precedents at hand if the restrictions weighed very\\nheavily upon it, though an oath prescribed by the legislature,\\nrequiring the members of the convention to act strictly in a\\nline with the provisions of the law by which the body was\\ncalled together, has been successfully employed. As full of\\ntheoretical interest as this subject may be, it is perhaps not\\nlikely that the legislature will make very much progress in\\nretaliation by this method so long as the constitutional codes\\nare submitted to the people and have the added force of the\\nendorsement of a body from which all the agents of govern-\\nment derive their just powers.** A most interesting and a\\nvery recent case in point is afforded by Louisiana. In 1896\\nthe legislature of that State passed an act submitting to the\\npeople the question as to whether or not a convention should\\nbe called to revise the Constitution. If the proposition were\\napproved, as it was approved, by popular vote, the convention\\nwas to meet in 1898, but it was to be subject to seven sepa-\\nrate and important limitations. The convention was pro-\\nhibited\\nCf. Jameson, op. cit., p. 375.\\nFor a full review of this subject see Jameson, pp. 362 et seq.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0107.jp2"}, "108": {"fulltext": "92 THE REFERENDUM IN AMERICA\\n(i) From impairing the bonded indebtedness of the\\nState or of any parochial, municipal, levee or other political\\ncorporation without first securing the consent of the holders\\nof the securities representing this debt.\\n(2) From increasing the rate of taxation above the limits\\nset in the old Constitution for any other purpose than to ex-\\ntend local assistance to public schools, and to aid in executing\\npublic improvements, and then only with the approval of the\\nproperty taxpayers affected by such increase.\\n(3) From changing the levee system as it was then organ-\\nized under the terms of the old Constitution and of statutory\\nprovisions enacted in pursuance thereof.\\n(4) From reducing or shortening the terms of office of\\nthe members of the legislature or of State or local officers,\\nwhether elected or appointed, or from reducing their respec-\\ntive salaries prior to April, 1900.\\n(5) From making the offices of the chief justice, or the as-\\nsociate justices, of the Supreme Court of the State elective,\\nand from shortening the term of office or reducing the salaries\\nof the incumbents.\\n(6) From legalizing lotteries.\\n(7) From removing the capital of the State from its pres-\\nent site at Baton Rouge.\\nThe legislature in order to. make its position secure re-\\nquired, furthermore, that each delegate to the Convention be-\\nfore he should be qualified to act as a member of the body\\nshould take the following oath before the chief justice or pre-\\nsiding associate justice of the Supreme Court I hereby\\nsolemnly swear that I will well and faithfully perform all my\\nduties as a member of this Convention and that I will observe\\nand obey the limitations of authority contained in the act\\nunder which this Convention is assembled. By such a\\nmethod the Louisiana Convention was bound beyond all\\npower to loose itself, and the act is entitled to rank as one of\\nthe most important counter-movements against the conven-\\ntion s usurpations which any legislature has ever organized\\nand led.*^\\nActs of Louisiana, 1896, pp. 85-87.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0108.jp2"}, "109": {"fulltext": "THE CONVENTION AND THE LEGISLATURE 93\\nThe legislature of Rhode Island lately employed still an-\\nother plan, bold in conception, though as it has developed\\nquite barren of result. Instead of calling a new convention\\nto revise the Constitution, the legislature passed a resolution\\nin 1897,*^ in response to what was described as a widespread\\nfeeling among the people of the State that the Constitution\\nshould be carefully and thoroughly revised The legisla-\\nture thereupon authorized the governor to appoint a commis-\\nsion of fifteen persons whose duty it should be to report to the\\nGeneral Assembly. The revised Constitution was then to be\\ntreated as if it were a separate and single amendment, and\\nadopted by the method prescribed in the old Constitution. It\\nmust be approved by a majority of the members of two suc-\\ncessive legislatures and be assented to later on in a refer-\\nendum by three-fifths of the electors of the State, present and\\nvoting on the proposition in the town meetings. The legis-\\nlature by this means retained its inW authority over the sub-\\nject. The commission was appointed. It met and framed\\nthe Amendment which was an entire new Constitution in-\\ncluding a Bill of Rights The Amendment was then\\nsubmitted to the legislature which received the commission s\\nreport as if it had been the report of one of its regular legis-\\nlative committees, though no very material alterations seem\\nto have been made in the draft, and it was passed by the Gen-\\neral Assembly first in March, 1898,*^ and again in June,\\n1898.*^ In November of that year it was submitted to the\\npeople of the various towns and cities, but it failed to receive\\nthe necessary three-fifths vote. The method of framing the\\nConstitution by a commission instead of by a convention was\\nregarded by many persons as very irregular. The total vote\\nupon the subject throughout the State was only about 31,000\\n(17,589 for and 13483 against), the vote of the State in the\\npresidential election in 1896 having been nearly 55,000\\n49\\nLaws of Rhode Island, January session, 1897, p. 121.\\nLaws of the January session, 1898, pp. 133-54-\\nLaws of the May session, 1898, pp. 12-34,\\nSuch a result led the Providence Journal to remark The thou-\\nsands who went to the polls but failed to vote either for or against the", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0109.jp2"}, "110": {"fulltext": "94 THE REFERENDUM IN AMERICA\\nThe method of amending constitutions, or indeed of adopting\\nentirely new instruments of government through the aid of\\ncommissions, by which means the legislatures manage to keep\\nthis power in their own hands without resort to a convention,\\nhas had other applications from time to time in this country,\\nas in New York in 1872, Michigan in 1873, Maine in 1875\\nand New Jersey in 1881. All these attempts to alter the\\nAmerican practice by subterfuge, however, have proved\\nmore or less abortive.^^\\nOne point more is deserving of mention before we pass\\nfrom the discussion of this phase of the subject. As the con-\\nstitutions increase in bulk and are swelled out with the details\\nof legislation, ceasing to be the guides to those who are to\\nmake the law and becoming the law itself, they are little better\\nqualified to have a permanency and to claim thorough consid-\\neration and respect than is the work of the legislature. If the\\nconstitution expresses the changeful whims of society and\\nsupersedes the legislature, in a certain measure, in respect of\\nmany different classes of subjects, we must expect those very\\nresults which have lately been realized, i. e., an increasing\\nnumber of conventions and frequent revisions of the organic\\nlaw This development has gone forward despite an earlier\\nbelief that the tendency would be in a contrary direction. In\\nopposing a provision which should define a method of calling\\ntogether a future convention, Daniel Webster in the Massa-\\nchusetts Convention of 1820 said, that with the experience\\nwhich we had had of the Constitution there was little prob-\\nability that after the amendments which should now be\\nadopted there would be any occasion for great changes. No\\nrevision of its general principles would be necessary and the\\nalterations which should be called for by a change of circum-\\nstances would be limited and specific Judge Jameson\\nadds upon this point Doubtless as our Constitutions be-\\ncome riper and more perfect with time and experience\\nConstitution should now study public questions enough to have some\\nconvictions upon them.\\nCf. Jameson, op. cit., pp. 570 et seq.\\nDebates of the Massachusetts Convention, 1821, p. 413.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0110.jp2"}, "111": {"fulltext": "THE CONVENTION AND THE LEGISLATURE 95\\nthe necessity of employing the more expensive mode [of\\namendment] by conventions will be found to be less and\\nless These predictions to-day seem a long way from\\nrealization. We know now that they were false prophecies\\nin every sense.\\nAs society moves backward and forward and the needs of\\nthe people change, their laws, too, must change, and even if\\nthese are incorporated in codes more or less secure from the\\nhand of the repealer they will not be guaranteed the life of a\\nconstitution which is only an outline for the organization and\\nconduct of a government. Another convention will soon\\nneed to be called or other steps must be taken to revise or\\namend it.^^\\nThe States are now calling conventions at much more fre-\\nquent intervals than was the case at a former time. Although\\nwe still have Massachusetts as a notable instance of a com-\\nmonwealth walking in the old ways, resisting these modern-\\nizing influences in favor of greater power to the convention\\nand therefore a shorter life to the constitution, there are few\\nothers like her in the Union of States. Pennsylvania has\\nalready had four Constitutions, Virginia four. Illinois has\\nhad three Constitutions since the State entered the Union in\\n1820, Texas three, since the annexation in 1845, Missouri\\nthree, including the first Constitution in 1820, Georgia six.\\nLouisiana, beginning with 1812 and ending with 1898, has\\nhad seven Constitutions; Mississippi has had four since the\\nState s history began in 181 7. When there are no unusual\\ninfluences at work, as those which unfortunately prevailed\\nin the South during the Secession period, a constitution\\nseems to be good for about twenty or thirty years which is\\na maximum of life even when the legislature exerts itself at\\nalmost every session to prepare amendments and thus alter\\nthe constitution upon its own initiative without calling a con-\\nvention, a process of which more is to be said in another\\nOp. cit., p. 552.\\nCf. Lowell, Governments and Parties in Continental Europe, Vol. II,\\np. 293.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0111.jp2"}, "112": {"fulltext": "96 THE REFERENDUM IN AMERICA\\nchapter. Nothing could be more natural than frequent con-\\nventions with new constitutions every few years when the\\nframers undertake to make them the repositories of large\\nclasses of private and administrative law. Since and in-\\ncluding the year 1890 the constitutional law of this country\\nhas been enriched by conventions in seven States Missis-\\nsippi, Kentucky, South Carolina, Delaware, Louisiana, Utah\\n{a new State) and New York (in the latter State the conven-\\ntion amending the old, instead of adopting an entirely new\\nconstitution).\\nWe have therefore advanced to that point when we take not\\nonly our constitutional law, but much also of our ordinary\\nlaw, in the States from assemblies of a single chamber. They\\nare on this account liable to every objection which can be\\nurged against single legislative assemblies of any other kind.^*\\nCertainly there can be no doubt as to the general view which\\nit seems proper for us to entertain regarding such bodies, and\\nyet the situation in practice has come to be so extraordinary\\nthat the friends of good government in this country feel con-\\nstrained to defend the convention in the face of all its usurpa-\\ntions. This is chiefly because of the higher standards that\\nwe, up to this time, have been able to secure in respect of the\\nmembership of these assemblies. The legislatures of the\\nStates are filled with men who, with the rarest exceptions, are\\nof mediocre ability. It is fortunate, if they are not actually\\ndishonest and corrupt. They have been tried and have been\\nfound wanting. In those States where they still retain a full\\nquota of pov/er, holding annual sessions and enacting each\\nyear a thick volume filled with special and private acts, undi-\\ngested, confusing and contradictory, often one week repealing\\nin whole or in part a measure which had been passed the week\\nbefore, there can be no respect and little toleration manifested\\nfor the legislators. They were deprived of their power be-\\nJameson, op. cit., p. 357. It [the convention] is liable to the ob-\\njection so fatal to single legislative assemblies that it is prone to hasty\\nand passionate determinations and is therefore a ready instrument of\\nfaction and revolution. Cf. ihid., p. 415; also Lecky, Democracy and\\nLiberty, Vol. I, pp. 363-64-", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0112.jp2"}, "113": {"fulltext": "THE CONVENTION AND THE LEGISLATURE 97\\ncause they were not careful about the exercise of it. If they\\nuse their office as an opportunity not only to display their ig-\\nnorance, but also to indulge their immoral lust for personal\\ngain, making the legislature an agency for the dishonest dis-\\nbursement of public funds, for blackmail, log-rolling, trading,\\ndickering, jamming and the other operations which are the\\ndisgraceful outgrowths of our political system in the various\\nStates, we are certainly justified in grasping at almost any\\nnew agency that promises us a hope of betterment. If de-\\nmocracy by natural process could not purge itself of such\\nabominations then some other means had to be found to gain\\nthis necessary end.\\nThe conventions, chosen more rarely and for a rather un-\\nusual purpose, have up to this time been kept comparatively\\nfree from those who are party men in the bad sense, poli-\\nticians who are seeking personal profit. Such men wish\\nfor the most part to escape the labor which is supposed\\nto attend the framing of a constitution. Should they be\\nelected to membership in the body it would be a fleeting\\nhonor Another convention might not meet for twenty\\nyears. An older idea, therefore, that our public men should\\nhave superior qualifications, that they should be chosen as\\nsome of our earlier constitutional writers expressed the\\nthought from among the wisest and best still prevails\\nwhen members of a constitutional convention are to be elected.\\nOur ablest lawyers seem not to be averse to accepting mem-\\nbership in the conventions, and those who are usually not\\ncalled upon to serve the State in any other capacity are not\\nuncommonly selected to perform this important public task.\\nUpon the subject of the contrasts in the personnel of the two\\nassemblies, an average legislature and a convention, Judge\\nJameson expresses a truth which no one acquainted with the\\nfacts will dispute, when he says If a man shows himself\\nby culture and the breadth of his views to be fitted for the\\nhighest trusts it is nearly certain that he will not be found in\\nthe legislature, but be left in obscurity at home. But when\\na convention is called it is sometimes possible to secure the re-", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0113.jp2"}, "114": {"fulltext": "98 THE REFERENDUM IN AMERICA\\nturn of such men. It is not necessarily because such a body\\nis recognized to be, as it is, the most important ever assem-\\nbled in a State, but because the measures it is expected to ma-\\nture bear less directly on the interests of parties or of indi-\\nviduals. Party management, therefore, is not usually so\\nmuch directed to the seeking of control of a convention as of\\na legislature The same facts have been observed and\\nremarked upon by Mr. Bryce,^^ and no better evidence of the\\ndifference in personal standards prevailing in respect of the\\ntwo kinds of bodies is aft orded than in the case of the great\\nState of New York. For its Constitutional Convention of\\n1894 there were secured the services of men who would not\\nhave been found in the legislature, if they had themselves\\ndesired seats in that body they could not have got elected.\\nThe influence of members drawn from this superior class in\\nthe State was of course reflected in the proceedings and de-\\nbates of the assembly which left behind it a record for honesty\\nand zeal for the public welfare in singular contrast with that\\nof any recent session of the State legislature.\\nJameson, op cit., p. 561.\\nOp. cit.. Vol. I, p. 475 cf. Godkin, Unforeseen Tendencies of De-\\nmocracy, pp. 141 et seq.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0114.jp2"}, "115": {"fulltext": "CHAPTER IV\\nTHE REFERENDUM ON ENTIRE CONSTITUTIONS\\nA CONSIDERATION of all the facts in regard to the consti-\\ntutional convention in this country, and the relations which in\\nthe later years of our political history have been established\\nbetween it and the legislature, brings us to certain definite re-\\nsults. There is incontestably a tendency in the direction of an\\nenlargement of the powers of the convention, in the direc-\\ntion of a long constitution containing minute details with re-\\nspect to subjects which, rightly viewed, do not belong within\\nthe sphere of constitutional law at all. These long constitu-\\ntions, framed to meet temporary conditions, giving expression\\nto passing ideas upon specific matters in specific terms, in the\\nnature of the case, must be more flexible. They must be fre-\\nquently changed and amended. The average lifetime of a\\nconstitution seems to be little more than twenty years when a\\nnew convention meets and another long code is adopted.\\nThus, in spite of ourselves, we have handed over to a single\\nhouse of legislature very extensive law making powers, put-\\nting greater faith in one assembly because its members^ as a\\nrule, are men of superior talent, knowledge and moral char-\\nacter, than in two houses and a Governor, who used to be our\\nlaw-givers over a wider field and of whose ability and honor\\nin the public service democracy has seemed to provide us with\\nno practical guaranty.\\nUpon this single house there is but one important check and\\nthat is applied by the people themselves, i. e., by the electors,\\ncoincident in number in most of the States with all the male\\ncitizens, without regard to race or color, who are above a cer-\\ntain prescribed age and possess various qualifications as to\\nresidence, etc., and in an occasional State as to education. In\\n99\\nt^6", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0115.jp2"}, "116": {"fulltext": "loo THE REFERENDUM IN AMERICA\\na few States, the number of which would seem to be increas-\\ning, the electoral body has even come to include women who\\nare admitted to the suffrage on the same liberal terms as men.\\nThey, the whole body of electors in the State, as a kind of\\nsecond chamber are to pass upon such legislation as the con-\\nvention prepares and submits to them. They may accept it\\nor reject it as they please. It is only by a consideration of\\nthe true character of the State constitutions, stuffed out as\\nthey are with ordinary statute law, that one can form any\\nproper estimate of the value and importance of the privilege\\nwhich the people now enjoy.\\nIn recent years attention has often been directed to the\\ncustom that prevails in Switzerland of submitting laws to pop-\\nular vote. We are recommended to introduce the system in\\nthis country and the referendum, as it is called (through\\nmeasures having been passed a long time ago in Switzerland\\nad referendum, as treaties are sometimes passed and contracts\\nare not infrequently made, i. e., subject to the approval of the\\nprincipals in the transaction) has many friends among us.\\nIn Switzerland the people as a whole were regarded as the\\nprincipals, the members of the legislature being merely their\\ndelegates, and the law which the latter proposed, to be valid,\\nhad to be ratified by popular vote. The fact is, or, up to a\\nrecent time, was, commonly overlooked that the referendum\\nis no strange feature in our system. It comes down to us as\\na result of a development extending through a very great\\nmany years.\\nIn respect of constitutions the referendum made its appear-\\nance in America in a very natural way. No one seems to\\nhave stopped to discuss the reasons for it. It appears to have\\noccurred to no one of all our leading democrats of the Revo-\\nlutionary period, not even Franklin or Paine or any of the rest\\nof the ostentatious friends of the people in Pennsylvania, that\\na constitution to be valid would needs be submitted to popular\\nvote. There were some demands of course that a referendum\\nshould be taken in that State, the Anti-Constitutionalists,\\nwhile the long contest with their opponents was in progress,", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0116.jp2"}, "117": {"fulltext": "ON ENTIRE CONSTITUTIONS loi\\nhaving repeatedly urged that, since the people had not ap-\\nproved the Constitution of 1776, its promulgation as the\\norganic law of Pennsylvania was an irregular, if not an il-\\nlegal act. But as Judge Jameson somewhere observes in ex-\\nplanation of the fact that so few of the early constitutions in\\nthis country were submitted to popular vote, there was need\\nof speedy action in nearly all the States since the Tories were\\nactive everywhere and Pennsylvania is an instance in point,\\nfor the first Constitution of that State was adopted amid very\\ngreat political excitement. Delay would have been held to\\nbe dangerous and even fatal to the future of the Common-\\nwealth and the entire American cause.\\nImmediately after the Constitution had been adopted, at the\\nmeeting of protest in the State House yard in Philadelphia,\\nOctober 21, 1776,^ it was asserted that the right of the people\\nto be consulted concerning the form of government under\\nwhich they were to live had been violated. Although a few\\ncopies of the Constitution had been printed, time was not al-\\nlowed for them to circulate. The people had not considered\\nthe subject and had not made their wishes known to the mem-\\nbers of the Convention. The Right of Petition had been\\nfreely used during the colonial period, and it was employed\\nby both parties so soon as the Pennsylvania State government\\nwas organized. The step, then, from the petition, the me-\\nmorial, and the remonstrance, was not far to the referendum\\nitself.\\nThe Supreme Executive Council in 1777 had recommended\\nthat the sense of the majority of the electors throughout the\\ncounties should be taken on the question of calling a new\\nconvention. The Assembly authorized the vote, but serious\\nmilitary operations intervened and it was not until Novem-\\nber, 1778, that it could again set a date for the elec-\\ntion. Every effort was then put forth by the Constitu-\\ntionalists to bring it to the point of rescinding its action, which\\nit did as a result of the representations made to the members\\nby petition and otherwise in February, 1779. Those states\\nC\u00c2\u00a3. Resolutions in Pennsylvania Gazette, Oct. 23, 1776.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0117.jp2"}, "118": {"fulltext": "I02 THE REFERENDUM IN AMERICA\\nonly can be denominated free which are governed under a\\nconstitution to which the citizens have given their consent\\nthe Repubhcan Society declared in their Address to the people\\nin 1779.^ Another writer who took a part in the constitu-\\ntional discussions in Pennsylvania at this time said that this\\ngreat matter must come to the voice of the people before\\nPennsylvania can enjoy any degree of domestic happiness\\nAnd once more in 1789, when the vote still had not been taken^\\nthough the constitutional struggle within the State was near\\nits end, certain memorialists declared that the power of alter-\\ning the Constitution resides wholly in the people and that\\nthey have a right to exercise that power in any way and at\\nany time they may judge proper\\nIt had been asserted on July 4, 1776, by the framers of the\\nDeclaration of Independence that governments derived their\\njust powers from the consent of the governed that when\\ncertain popular rights were infringed upon it was the right\\nof the people to alter or abolish their form of government\\nand to institute another in its stead. There were few, how-\\never, who went so far as to say that the people themselves,\\nvoting yea or nay, should determine whether one constitu-\\ntion should be adopted or another. The influence of the peo-\\nple as it would be exerted through their deputies and repre-\\nsentatives was expected to answer every need. The Anti-\\nConstitutionalists in Pennsylvania, like the plebiscitary lead-\\ners to-day in France, were the advocates of a referendum as\\na means of attaining their end, the overthrow of the govern-\\nment. The opposite party, doubtless, would have been quite\\nas eager for a direct vote of the people on this subject if the\\nproceeding had promised them any gain. When the Consti-\\ntution was finally to be superseded in 1789-90 the Assembly,\\nfortunately, was strong enough in itself to issue a definitive\\ncall for a convention without referring the subject to the peo-\\nple, and the convention having met and established the form\\nof government agreeable to the views of a majority of its\\n^Pennsylvania Packet, March 25, 1779.\\nIbid., February 13, 1779.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0118.jp2"}, "119": {"fulltext": "ON ENTIRE CONSTITUTIONS 103\\nmembers, it in turn was glad to be free of any obligation to\\npass the thing back to the people again.\\nIt is Massachusetts that affords the first example of the\\nactual application of the referendum in this country in the\\ncase of a State constitution. In 1776 the Assembly in Massa-\\nchusetts took steps preliminary to the establishment of a new\\nform of government, though it was not until May 5, 1777,\\nthat a resolution was passed recommending it to the people at\\nthe next election for members of the Assembly or General\\nCourt to make choice of men in whose integrity and ability\\nthey can place the greatest confidence, and, in addition to the\\ncommon and ordinary powers of representation, instruct them\\nwith full powers in one body with the Council to form such a\\nconstitution of government as they shall judge best calcu-\\nlated to promote the happiness of this State It was speci-\\nfied in the same resolution that when the constitution had\\nbeen framed copies of it should be printed and presented to\\nthe people of the towns, who should vote upon it. If it were\\naccepted by two-thirds of those present and voting in the\\nmeetings on the subject it was to become the valid constitu-\\ntion of the State.*\\nThe General Court or legislature, in this manner chosen,\\nadopted a constitution, as it was planned that it should do, on\\nFebruary 28, 1778, and it was submitted to the people later in\\nthe year, though for the reason that it was framed by the\\nAssembly rather than by a convention which had been spec-\\nially elected by the people for this particular task, because it\\nlacked a Bill of Rights and on other accounts, it was rejected\\nby a large majority five to one of the votes cast being\\nagainst it, while many of the towns it seems made no returns\\nJournal of the Convention which framed the Massachusetts Con-\\nstitution of 1780, Boston, 1832, p. 255. The text of the Constitution of\\n1778 is contained in the above volume. It will be found valuable for\\ncomparison with the instrument which was finally adopted. Cf. Journal\\nof Debates and Proceedings in the Convention of Delegates chosen\\nto revise the Constitution of Massachusetts begun and holden at Boston,\\nNovember 15, 1820. See Note on the Origin and History of the\\nConstitution; Hale s New Edition, Boston, 1853.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0119.jp2"}, "120": {"fulltext": "104 THE REFERENDUM IN AMERICA\\nat all.-^ On February 19, 1779, the Assembly returned to the\\nsubject. A resolve was passed, this time for taking the\\nsense of the people regarding the expediency of calling a con-\\nvention to propose a new constitution. The members of the\\nlegislature declared that they were unable to determine from\\nthe representations made to this Court what are the senti-\\nments of the major part of the good people of this State\\nsince the earlier Constitution had been disapproved of, and\\ntherefore asked the inhabitants to make known their views\\non the point.^\\nThe vote having been taken and a large majority of the\\ninhabitants of the towns making returns more than two-\\nthirds of the whole number having approved of a new gov-\\nernment and being of opinion that the same ought to be\\nformed by a convention of delegates Avho should be specially\\nauthorized to meet for this purpose V the Assembly there-\\nupon resolved (June 17, 1779) to recommend the people to\\nrequire their delegates, when the constitution was framed and\\nbefore it should be adopted, to submit the work of the conven-\\ntion to popular vote. It was provided that copies of the con-\\nstitution should be laid before the respective towns and plan-\\ntations at a regular meeting of the male inhabitants thereof,\\nbeing free and tv/enty-one years of age, to be called for that\\npurpose, in order to its being duly considered and approved\\nor disapproved by said towns and plantations And the\\nresolution further recommended the several towns within the\\nState, to instruct their respective representatives to estab-\\nlish the said form of a constitution as the constitution and\\nform of government of the State of Massachusetts Bay, if\\nupon a fair examination it shall appear, that it is approved of\\nby at least two-thirds of those who are free and twenty-one\\nyears of age, belonging to this State and present in the sev-\\neral meetings\\nNote on Origin and History of the Constitution, loc. cit. Cf. Life\\nand Works of John Adams, Vol. IV, pp. 213 et seq.\\n^Journal of the Convention of 1779-80, p. 189.\\nIhid., p. 5.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0120.jp2"}, "121": {"fulltext": "ON ENTIRE CONSTITUTIONS 105\\nThis was the Constitution which was framed by John\\nAdams, and which is still to-day in all its essential parts the\\norganic law of the State of Massachusetts. It was referred\\nto the people in their town meetings in the manner contem-\\nplated by the legislature,^ whereupon the Convention took a\\nrecess charging a committee of its members to print the\\nConstitution and to distribute the books throughout the\\nState by means of three expresses employed at the public\\nexpense. The Constitution having been approved by two-\\nthirds of those assembled in the town meetings and voting\\nupon this subject, it became the law of the Commonwealth.\\nThere were here, it is interesting to note, the two referenda,\\none following the other First, a vote to determine whether\\nthe convention should be called or not; and second, when it\\nhad been called and its work had been finished, a vote to de-\\ncide if the constitution were acceptable to the people, the\\nidentical process with which we have now become familiar in\\nnearly all the American States.\\nNew Hampshire, a State which has always drawn very lib-\\nerally upon the experience of Massachusetts in the field of\\npublic as well as private law, likewise furnishes an early in-\\nstance of the use of the referendum on a constitution. The first\\nconstitution adopted in any of the American States after the\\nseparation from England is the New Hampshire Constitution\\nof 1775-76, which was framed and promulgated by a conven-\\ntion, or Congress that met at Exeter, December 2, 1775,\\nand completed its labors in the following January. This\\nCongress, as it was authorized to do, assumed to itself the\\nname, power and authority of a house of representatives or\\nassembly for the Colony of New Hampshire The Con-\\nstitution, which is very brief, provided for a second branch of\\nlegislature or Council, but neglected to arrange for a\\nGovernor, or indeed any officer or officers charged specifically\\nwith the task of executing the laws and directing the govern-\\nment. A Committee of Safety a kind of executive board,\\n^Journal of the Convention, p. 168.\\nCf Constitution of 1776.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0121.jp2"}, "122": {"fulltext": "io6 THE REFERENDUM IN AMERICA\\nwas organized, and to it the executive powers were entrusted\\nduring intervals when the legislature was not sitting. It was,\\nhowever, a source of much dissatisfaction, though it was\\nprobably as useful a feature of the government as the prac-\\ntically headless board which was created by Franklin and his\\ncolleagues in Pennsylvania in the same year. On this and\\nother grounds the people of New Hampshire were urged to\\nchange this provisional Constitution which had been framed\\nat the outbreak of the war merely to meet a temporary need.^*^\\nA convention of delegates which had been chosen for the\\nspecial purpose of preparing a draft of a new constitution for\\nthe State, met in 1778, completing its work in a few months.\\nThe outline of government which had been framed by the\\nCongress at Exeter was not submitted to the people, but the\\nconstitution which it was proposed should supersede it was\\ndispersed throughout the State and the officers in the\\ntowns were asked to warn the inhabitants to assemble to\\nconsider the new plan of government. In the town meetings,\\nhowever, the constitution was rejected,^^ and steps were at\\nonce taken to bring together another convention, though this\\nbody did not assemble until 1781. The constitution which it\\nprepared was also referred to the people, but it proved to be\\nno more to the public taste than the last one had been, though\\nan opportunity was extended to the towns to propose such\\namendments as it was thought might make it acceptable to the\\ninhabitants. These amendments were so numerous that the\\nconvention, when it resumed its sessions, did not succeed in\\nconciliating the various interests until late in 1783, in which\\nyear the constitution being again submitted to the people was\\napproved by them and the new government was inaugurated\\nin June, 1784.^^\\nThese two States, Massachusetts and New Hampshire,\\nwere the only States, among those framing constitutions\\nCollections of the New Hampshire Historical Society, Vol. IV, p. 162\\ncf. Belknap, History of New Hampshire, Boston, 1791, p. 401.\\nIbid., p. 154.\\nCf. Belknap, op. cit., p. 435.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0122.jp2"}, "123": {"fulltext": "ON ENTIRE CONSTITUTIONS 107\\nduring the Revolutionary period, whose conventions referred\\ntheir completed instruments of government to popular vote;\\nand Massachusetts seems to stand alone in respect of the sep-\\narate convention referendum, i. e., the preliminary vote to de-\\ncide whether the convention should be called or not. The\\nConstitution of Virginia had early declared that when any\\ngovernment shall be found inadequate or contrary to these\\npurposes [the purposes for which government is instituted,\\nenumerated in the Bill of Rights] a majority of the com-\\nmunity hath an indubitable, inalienable and indefeasible right\\nto reform, alter or abolish it in such manner as shall be judged\\nmost conducive to the public weal This declaration was\\nrepeated in the Constitution of Pennsylvania.^* The Mary-\\nland Convention of 1776 announced that whenever the ends\\nof government are perverted, and public liberty manifestly\\nendangered, and all other means of redress are ineffectual, the\\npeople may, and of right ought to reform the old or establish\\na new government But the conventions in these States\\nin no instance referred the constitutions to a direct vote of\\nthe people. The constitutions were framed and were some-\\ntimes formally ratified by the delegates in the name of, and\\nby the authority of the people, as the phrase might be, but it\\nwas only in these two New England States, where the in-\\nhabitants in their local communities had long been accustomed\\nto direct legislation that the referendum made its appearance\\nas a part of our constitutional practice.\\nConstitution of Virginia of 1776, Bill of Rights, sec. 3.\\nConstitution of Pennsylvania of 1776, sec. 3.\\nConstitution of Maryland of 1776, sec. iv.\\nJohn Adams contemplated the plebiscite when he wrote in his\\nAutobiography that many questions were referred to him in 1775 and\\n1776 regarding the proper form of government for a state. How\\ncan the people institute governments Mr. Adams was asked. By\\nconventions of representatives freely, fairly and proportionately chosen,\\nhe answered. When the convention has fabricated a government, or\\na constitution rather, how do we know that the people will submit\\nto it he was asked again. If there is any doubt of that the con-\\nvention may send out their project of a constitution to the people in\\ntheir several towns, counties or districts and the people may make the\\nacceptance of it their own act.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0123.jp2"}, "124": {"fulltext": "io8 THE REFERENDUM IN AMERICA\\nIt was in New England that this development might have\\nbeen expected to begin, since the system of local government\\nthere was such as to give great encouragement to the spread\\nof the plebiscital principle. There was in the Puritan Col-\\nonies which were established on the shores of New England\\na return, in fact, to Rousseau s state of nature, where peasants\\nmet under a forest tree and deliberated on their own affairs,\\nfree from the governmental complications to which a per-\\nverted civilization had reduced mankind. A great deal has\\nbeen said and written regarding certain interesting assemblies\\nof the people surviving still in Switzerland, the old Teutonic\\nfolk-mote and other devices by which men of simple needs\\nhave cared for their common affairs. It has been assumed\\nthat it is a kind of Teutonic heritage. However absorbing\\nsuch a study may be, there is little enough connection, as it\\nseems to me, between the New England town-meeting and\\nany of the other popular assemblies of history. That one has\\nexisted is certainly no explanation for the existence of the\\nother. It appears to be the most natural thing for men when\\nthey are set out alone, if they have already reached a certain\\nstage of civilization and are dependent upon their own exer-\\ntions for survival, to co-operate in order to gain necessary\\nends. The first stage in co-operation, if they are left to them-\\nselves to work out a scheme of government, is for them to\\nmeet together in assemblies of some kind where they may pro-\\npose, discuss and vote. This was the precise course of devel-\\nopment in the New England colonies the various proprietors\\nof lands in a given territorial district grouping themselves to-\\ngether that they might mutually protect and advance their\\nown interests. The town indeed was a body of stockholders\\nassembled in corporate form V^ and powers were gradually\\nand naturally acquired in reference to the roads and highways,\\nthe support of the poor, the choice of local executive officers\\nand such other matters as were of common importance to the\\nmembers of the group. The stockholders met together\\nC. F. Adams, Three Episodes of Massachusetts History, Vol. II, p.\\n817.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0124.jp2"}, "125": {"fulltext": "ON ENTIRE CONSTITUTIONS 109\\nat intervals to determine wiiat their policy should be regard-\\ning these public, if somewhat local and trivial questions, and\\nas the settlements became more populous, as the holdings in\\nland were reduced in size, and villages, even cities, resulted,\\nthe town meeting was retained as a feature of the local po-\\nlitical system. So large a city as Boston clung to this pri-\\nmary assembly of the freemen until 1822, when it was finally\\nnecessary to introduce a representative legislature. This\\ncharacteristic form of local government, which for various\\nreasons did not secure a foothold in the more southern col-\\nonies, though it has since travelled westward through the\\nnorthern zone of States with the New England settlers,^^ is a\\nfactor that every one w^ho desires to make a correct estimate\\nof our early institutional tendencies must keep well in mind.^^\\nThe towms, at length, having been joined together, the af-\\nfairs of the larger districts, the colonies, were to be cared for\\nand administered. In the colonies of Massachusetts and\\nPlymouth all the freemen at first had a personal voice in the\\ntransaction of the public business,^^ but this system soon be-\\ncame inconvenient, and later impossible, so that deputies had\\nto be chosen by the towns. These deputies or delegates went\\nup to the capital carrying with them the people s proxies, i. e.,\\nthe identical ballot which each freeman had cast in the town\\nor other local district w^as cast for him by the deputy in the\\nGeneral Court or Assembly where the votes were counted\\nand the totals made up.^^ The freeman, coincidently with the\\ndevelopment of the proxy system, still retained the right of\\ngoing to the capital in person and voting there if he wished.\\nFor a time, the deputies from the towns seem to have\\npassed their laws ad referendum and conditional upon the\\nCf. Bryce, op. cit., pp. 600 et seq.\\nCf. John Adams to the Abbe de Mably, a French political moralist\\nwho had planned to write concerning American affairs at the Revolu-\\ntionary time, Adams Works, Vol. V, p. 495 Bryce, op. cit., Vol. I, pp.\\n589 et seq.; De Tocqueville, Democracy in America, Bowen s Transla-\\ntion. 3rd ed., Cambridge, 1863, pp. 73 et seq.\\nC. F. Bishop, History of Elections in the American Colonies, New\\nYork, 1893, p. 4. Ibid., p. 127.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0125.jp2"}, "126": {"fulltext": "no THE REFERENDUM IN AMERICA\\nsubsequent approval of the people. In Plymouth this was\\nthe method employed during a period in the seventeenth\\ncentury and in Rhode Island where the union of the towns\\nwas at first very loose, beginning with 1647, the representa-\\ntive principle was introduced, with the referendum as an\\nauxiliary feature of the system. Early in the history of the\\ncolony law-making by direct vote passed through a number\\nof interesting phases of development in Rhode Island, which\\nare quite worthy of the place Mr. Bishop has recently given\\nthem in his work on the election systems prevailing in this\\ncountry in colonial times.\\nThere are then the best of reasons for our deduction in\\nregard to the first New England constitutions. There was\\na method at hand in New England by which an expression\\nof popular opinion could be readily and economically secured.\\nThe people in their town-meetings had been made familiar\\nwith direct legislation respecting their local concerns. They\\nknew something about the referendum in a larger class of\\ncolonial affairs. It was due to no reading of Rousseau or\\nhis literary contemporaries, nor to any anticipation of our\\nadmiration for Swiss political forms to-day, that the early\\nConstitutions of Massachusetts and New Hampshire were\\nsubmitted to popular vote. In many of the more southern\\ncolonies no ballot system of any kind was in existence.^*\\nThere was instead a poll of the inhabitants. Even where the\\nballot was known there were no town meetings, and there ex-\\nisted no fiction that if the people did not actually participate\\nin the making of their own laws they at any rate had a right\\nto do this, having surrendered the privilege only rather con-\\nditionally to the deputy through a personal proxy. In Penn-\\nsylvania, for instance, where the ballot was a familiar feature\\nat all elections there is clear proof that the channels between\\nthe individual citizens and the government were not kept so\\nopen as in New England. In 1777, when it was a question\\nBishop, p. 5.\\nIbid., pp. 10 et seq. cf. Rhode Island Colonial Records, p. 149.\\nBishop, p. 155-", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0126.jp2"}, "127": {"fulltext": "ON ENTIRE CONSTITUTIONS m\\nof taking the sense of the people on the proposition to call\\na convention to frame a new constitution, a very crude\\nplan was evolved by the Assembly. The people of each\\nelectoral district were to choose a special officer to be called\\na commissioner This commissioner was to make a house\\nto house poll of his own district, asking each freeman whether\\nor not he desired a convention. The freeman then must\\nwrite his vote or answer upon a, scroll or piece of pa-\\nper which was to be placed in a box or bag kept in\\nthe possession of the commissioner.^^ This was a most\\ninconvenient arrangement and it is suggestive of the electoral\\nsystem in vogue in some of the southern provinces, in Vir-\\nginia for instance where, it is said, officers were detailed to\\ngo from one plantation to another to collect the votes of\\nthe people when it was desired to consult them in regard\\nto any given point of government.^^ In 1778, however,\\nwhen the Pennsylvania Assembly resolved again to appeal\\nto the citizens of the State for a direct expression of their\\nopinion on the convention question, a much more modern\\nmethod was proposed, the electors being invited to appear\\nat their polling places and to deposit in the boxes ballots or\\ntickets on which were written the words For a Con-\\nvention or Against a Convention as the individual\\nvoter s choice might be.^^\\nEven this plan, however, involving as it did the use of\\nthe election machinery in each separate district of the\\nState, was far from simple or free of expense and in the\\nabsence of the town meetings in which the people of Massa-\\nchusetts and New Hampshire, in the same manner that they\\ndetermined upon many other affairs, voted to ratify, reject\\nor amend a proposed constitution, there was an influence of\\na positive kind to deter the States outside of New England\\nat this early day from a more general employment of this\\npopular principle in law-making.\\nBut before the referendum had spread farther afield. New\\nHampshire gave it another trial in 1792, when the Con-\\nAnte, p. 50. Bishop, op. cit., p. 160. Ante, p. 51.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0127.jp2"}, "128": {"fulltext": "112 THE REFERENDUM IN AMERICA\\nstitution which is with amendments still in force to-day in\\nthat State, was submitted to popular vote. Connecticut\\nand Maine in 1818 and 1819 respectively, both being States\\nin which the town meeting was a familiar institution, re-\\nferred their first Constitutions to the people. Rhode Island,\\nanother New England State which with Connecticut had still\\nbeen acting under her old English charters, followed in 1824\\nwith a Constitution which the people, however, refused to\\naccept. The first State outside of New England to submit\\na constitution to popular vote was New York in 1821,\\nfollowed by Virginia in 1829, Georgia in 1833, Tennessee\\nin 1834 and North Carolina and Michigan in 1835. From\\nthis time onward when the old States adopted new consti-\\ntutions they were submitted to popular vote, and nearly all\\nthe new States admitted to the Union brought constitu-\\ntions with them which had received the direct sanction of the\\ncitizens. The Congress of the United States in several cases\\nindeed, recognized the principle, in the Enabling Acts\\nmaking it a pre-requisite to statehood that the people should\\nhave assented to the fundamental charter under which they\\nwere to live.^^ Barring the constitutions framed by the rev-\\nolutionary conventions of the Secession and Reconstruction\\nperiods in the South, there seems to have been, since Florida\\nIt is stated by Poore in his Note to the Mississippi Constitution of\\n1817 (Poore s Federal and State Constitutions, p. 1054) that it was sub-\\nmitted to popular vote. J. L. Power, Secretary of State for Mississippi,\\nin his Chapters on State History says No proposition was made in\\nthe Convention to submit the Constitution to a vote of the people for ratifi-\\ncation. It went into effect on the day it was signed, August 15, 181 7. The\\noriginal is in the office of Secretary of the State (Magnolia, Miss., Ga-\\nzette of Sept. I, 1897). Poore also states that the Missouri Constitution\\nof 1820 was submitted to popular vote (o/ cit., p. 11 04). I am unable to\\nconfirm this, as the Secretary of State writes me that the Capitol of\\nMissouri was destroyed by fire in 1837 and all the records in the Secre-\\ntary of State s office at that time perished in the flames, so that we can\\nonly go back to 1837 for official records It appears to me unlikely\\nthat the Constitution was referred to the people and the State may\\nsafely be omiitted from this list; cf. Jameson, op. cit., appendix, p. 652.\\nSee the useful work by Dr. Max Farrand on The Legislation of\\nCongress for the Government of the Organized Territories of the United\\nStates, 1789-1895", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0128.jp2"}, "129": {"fulltext": "ON ENTIRE CONSTITUTIONS 113\\npursued the course in 1839, no instance of a constitution\\nbeing put into effect without a popular vote in any Amer-\\nican State until Mississippi adopted this policy in 1890, be-\\ning followed in a few years by South Carolina, Delaware,\\nKentucky (with respect to certain amendments and details)\\nand Louisiana. Of the reasons which induced these States\\nto leave the beaten pathway of constitutional practice in this\\ncountry it will be more logical to speak in another place.^\\nIn by far the greater number of cases the electors are\\ntwice consulted First, by the legislature as to whether the\\nconvention shall be called or not, of which more will be said\\nelsewhere in another connection; and secondly, by the con-\\nvention itself when its labors have been finished and its draft\\nof the constitution is complete. Some of the newer consti-\\ntutions are specific on these points in our practice. For in-\\nstance, in Idaho the Constitution, after indicating the course\\nto be pursued by the legislature in calling a convention, pro-\\nvides that any constitution adopted by such convention shall\\nhave no validity until it has been submitted to and adopted\\nby the people When the terms of the constitution are\\ndefinite and mandatory the convention s duty in respect of\\nsubmission cannot be brought into question. It is indubitable.\\nThe old constitution continues to be effective in all its parts\\nuntil it is changed or abolished in some lawful manner,^^ and\\nif it requires that a new constitution shall be approved by\\nthe people, this is a command which the convention must\\ncertainly obey. When the constitution, however, is silent\\nregarding submission some interesting questions arise. In\\nthis event two classes of cases are distinguishable i When\\nthe legislature in the Convention Act instructs the con-\\nvention to submit its constitution to popular vote, and (2)\\nInfra, pp. 120 et seq.\\n^Constitution of Idaho of 1889, art, xx, sec. 4; cf. Constitution of\\nMontana of 1889, art. xix, sec. 8; Constitution of Utah of 1895, art.\\nxxiii.. sec. 3; Constitution of Washington of 1889, art. xxiii, sec. 3;\\nConstitution of Wyoming of 1889, art. xx, sec. 4.\\nCf, Jameson, op cit., p. 492.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0129.jp2"}, "130": {"fulltext": "114 THE REFERENDUM IN AMERICA\\nwhen the convention, being without instructions, may pre-\\nsumably consult its own pleasure on the point.\\nRespecting the first case history furnishes a great deal\\nof precedent so that the convention s course should not be in\\ndoubt. The legislature of Massachusetts in 1777, and again\\nin 1779, when it authorized the election of delegates who\\nshould meet and frame a constitution for the State, at the\\nsame time specified that the completed constitution should\\nbe submitted to popular vote. The delegates, obedient to this\\ncommand, submitted both instruments and the example has\\nsince been generall} followed throughout the United States.\\nAll the constitutions have not been referred to the people,\\nbut there seems to be no instance in which a constitution\\nwas not so referred when the legislature s directions to the\\nconvention have been imperative. It is the accepted view\\nto-day, as we have noted in the preceding chapter of this\\nbook, that so long as the legislature confines its instructions\\nwithin reasonable bounds, its mandate may not properly be\\ndisobeyed and there is considered to be no element of un-\\nreasonableness in a request that the constitution shall be sub-\\nmitted to popular vote.\\nConcerning the second case, when the convention is with-\\nout definite instructions from any outside authority, it is less\\neasy to lay down the rule. Precedent to-day, however, is\\nstrongly in favor of a submission of the constitution. The\\ntendency is unmistakable and few conventions in this century,\\nexcept for special reasons when it has been desired to gain\\nparticular ends, as recently in Mississippi, South Carolina and\\nLouisiana, have disregarded a law which^ if unwritten, is a\\nscarcely less binding part of our political system.\\nThere is still another supposable and indeed actual case.\\nThe legislature sometimes makes the specific reservation in\\nits Convention Act that the constitution which the con-\\nvention frames shall not be submitted to the people, a recent\\ninstance of this kind having been furnished in Louisiana.\\nAn act of the legislature calling a convention to meet in\\nthat State in 1898 distinctly declared that the constitution", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0130.jp2"}, "131": {"fulltext": "ON ENTIRE CONSTITUTIONS nS\\nwhich it drafted should go into effect without a vote of the\\npeople. If the legislature can bind the convention to submit\\na constitution it might be inferred that it could also bind the\\nconvention in the matter of not submitting a constitution.\\nNevertheless, it may not be quite safe to go so far as thi\u00c2\u00a7,\\neither in our theory or our practice, since, were a great\\nmatter of public policy involved, the doctrine might be\\nfraught with serious dangers. Especially perilous might it\\nbecome were we to dispense not only with the referendum\\non the entire constitution, but also with the preliminary vote\\non the proposition to call a convention.^* At some stage in\\nthe process of changing the form of government the peo-\\nple, by the development of more than a century, must be held\\nto have won the indefeasible right to a direct vote upon this\\nimportant subject. We find an exception to the rule, it is\\ntrue, in Mississippi so recently as in 1890. The present\\nConstitution of that State was adopted in total disregard of\\nthis canon, a result for which the responsibility was di-\\nvided. The legislature called the convention without asking\\nthe people whether they desired a convention to meet or not,\\nand nothing was said in the Convention Act as to the con-\\nvention s duty in submitting its completed constitution to\\npopular vote.^^ The convention when it met and finished\\nits work, having received no specific directions on the point,\\nassumed the right to declare that the Constitution should go\\ninto effect at once without a referendum. This case we are\\nbound to regard as a dangerous precedent and one little\\nin sympathy with the spirit of American practice or ex-\\nperience.\\nSince constitutions are so universally submitted to popular\\nvote they, and the bodies which frame them, have come\\nto occupy a distinctly different place in the American scheme\\nof government. A State constitution, says Mr. Bryce,\\nis really nothing but a law made directly by the people\\n33 Session Laws of Louisiana, 1896, pp. 85-87.\\nCf. Jameson, op. ch., pp. 493-94 and p. 529, note.\\nCf Laws of Mississippi of 1890, p. 53.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0131.jp2"}, "132": {"fulltext": "ii6 THE REFERENDUM IN AMERICA\\nvoting at the polls upon a draft submitted to them. And\\nagain the same writer says that the convention is now an\\nadvisory rather than a sovereign body Judge\\nJameson goes so far as to say that a convention is not a\\nbody of representatives at all, but an assembly of delegates\\nwho act as a legislative committee to propose laws of a cer-\\ntain character to the citizens. If this seems to be an ex-\\ntreme view it is theoretically a quite correct one, and it is\\nclear that a third legislative body has thus been introduced\\ninto the American practice, yielding us the legislature, the\\nconstitutional convention and the electoral body which have\\ndistributed among their three selves a work that in England,\\nfor instance, is performed by a single agent, the legislature.\\nIf we, however, look upon the convention as a committee ex-\\nercising purely advisory powers, then it is no longer a legis-\\nlative body. It must be sifted out of our system, in theory\\nat least, while the citizens en masse become the legislative\\nauthority, enacting the constitution and giving to it its vitality\\nand force. The delegates to the convention are only com-\\npetent to vote and resolve, subject to the approval of an-\\nother body, the people who commissioned them to their task.\\nIn the face of recent events in Mississippi, South Carolina,\\nDelaware, Louisiana and Kentucky it is possible, however,\\nthat we have got somewhat beyond bounds with our theories.\\nThe law of custom in regard to the submission of constitu-\\ntions, which earlier seemed to be so strong that it could not\\nbe disobeyed, really appears to be not so inviolable after all,\\nsince it has lately gained more notoriety in the breach than\\nin the observance. But whatever the theory no one should\\nallow himself to be confused for a moment in regard to the\\nactual facts. The convention may be a legislative body, or\\nonly an advisory legislative committc?c, but what practical\\nmen desire to know, is this who makes the constitution\\nDo the people make it, or does the convention make it? In\\nnot a few instances, of course, the people have rejected con-\\nOp. cit., p. 436. Ihid., p. C6y, appendix.\\n^^Op. cit., pp. 461, 530.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0132.jp2"}, "133": {"fulltext": "ON ENTIRE CONSTITUTIONS n?\\nstitutions that were submitted to them. This is sometimes\\ntaken to mean that the electors have a knowledge of the sub-\\nject superior to that which is possessed by the referring\\nbody. This conclusion cannot fairly be drawn from such a\\npremise. Wisdom or knowledge of constitutional law, we all\\nknow, does not influence the motives, or control the actions\\nof the great mass of citizens who vote to approve or reject\\na constitution. If a constitution reflects such qualities no\\none would claim that the people by the mere act of voting for\\nor against it in solido, which is the usual method of submis-\\nsion, had injected anything of real value into the instrument.\\nThe character of the le-gislation contained in one of these\\ngreat codes of law is better or worse according to the char-\\nacter of the men who have had a hand in framing it. If\\nlegislation which is received from a convention is more\\ncarefully considered and more honest than legislation re-\\nceived from a State legislature, it is so because of the greater\\ntalent and honesty of the men appointed to frame the law.\\nThe convention is extending its powers, is confining the\\nlegislature within narrower limits, and is giving form to our\\nwhole system of State and local government to an extent\\nnever known before because of the direct personal efforts to\\nthat end by the men who compose the convention. The\\nmembers of the convention may be supported, as they un-\\ndoubtedly are, by that rather intangible thing, a strong pub-\\nlic sentiment. But the people are not likely to vote against\\na constitution because it is too long. They cannot be de-\\npended on to reject it because it treats of too many different\\nsubjects, and omits one detail, or includes another. It is\\ntrue, of course, that the people could in most cases be aroused\\nto reject a constitution which they believed would restrict\\nthem in the exercise of their accustomed rights. A violent\\nchange in the form of government, or perhaps a single\\nsection which should run counter to certain well-estab-\\nlished convictions or prejudices would lead to the defeat of\\nthe whole instrument. Without a doubt, therefore, the peo-\\nple are a wholesome check upon the convention.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0133.jp2"}, "134": {"fulltext": "ii8 THE REFERENDUM IN AMERICA\\nWhen the convention desires to escape the risk of hav-\\ning its whole constitution rejected, if the members are shrewd,\\nthey will submit debatable propositions separately, i. e., such\\npropositions will be taken out of the body of the instru-\\nment so that the people need not vote down the whole con-\\nstitution in order to get at a few offensive lines. This device\\nis not new. The first Constitutions of New Hampshire and\\nMassachusetts were sent to the town meetings with the\\nunderstanding that amendments might be proposed if the\\noriginal drafts were not acceptable. The Council of Re-\\nvision, in New York, when it vetoed the Convention Act\\npassed by the legislature of that State in 1820, gave as one\\nof the reasons for its action that the bill contemplated the ac-\\nceptance or rejection of the constitution in toto^^ It was\\nthe early experience, however, that the people by rejecting\\narticles here and there as they chose would often wreck the\\nentire constitution. There were large portions of the scheme\\nof government which hung together. One part would have\\nlittle worth without the other, and thus, allowing once more\\nfor the manifest inaptitude of unorganized bodies of men\\nto make their own laws, it has come to be the rule that the\\ngeneral scheme itself must be approved or rejected as a whole.\\nSpecific propositions separately submitted are likely to be\\nthose in which the members of the convention have little\\nheart, at any rate, though there is known to be a consid-\\nerable body of public sentiment in favor of them. For in-\\nstance, articles to extend the franchise to women and pro-\\nhibiting the traffic in alcoholic liquors sometimes receive\\nthis kind of treatment, and the privilege of expressing them-\\nselves on these points the people often seem very highly to\\nappreciate. To name only a few of the more recent cases\\nIn 1889 when the Constitution of South Dakota was sub-\\nmitted to the people of that State three propositions were\\nseparately referred. These proposals were, (i) to prohibit\\nthe manufacture and sale of intoxicating Hquors (2) to es-\\ntablish a system of minority representation in the legislature,\\nJameson, op. cit., Appendix F.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0134.jp2"}, "135": {"fulltext": "ON ENTIRE CONSTITUTIONS 119\\nand (3) to select a temporary seat of State government.**^\\nWhen the Constitution of North Dakota was submitted to\\nthe people in 1889 there was a separate vote on the subject\\nof prohibiting the liquor traffic. In the State of Washing-\\nton in 1889 when the first Constitution was submitted to\\npopular vote there were three accompanying propositions,\\nrelating again to woman suffirage, prohibition and the\\nselection of a place to serve as the seat of government. The\\nNew York Convention of 1894 which made a number of\\nchanges in the Constitution of that State submitted its work\\nin three parts, i. e., in addition to the main body of the amend-\\nments there were two separate propositions, one making an\\napportionment of senators and members of the Assembly and\\na second introducing some regulations in reference to the im-\\nprovement of the canals.*^\\nReverting to an earlier period in American history the\\nquestion as to whether negroes should enjoy the right of\\nsuffrage was separately referred when the Iowa Constitu-\\ntion of 1857 was submitted to popular vote. The same sub-\\nject was separately submitted by some of the early conven-\\ntions in Kansas while the struggles between the slavery and\\nanti-slavery advocates were in bitter progress and when\\nOregon framed her first Constitution in 1857, New York\\nadopted her third Constitution in 1846, and Illinois her sec-\\nond Constitution in 1848, articles granting equal suffrage\\nto negroes or otherwise dealing with the race question, were\\nThe method of submission, which varies in the different States, ac-\\ncording to the ballot system in use, was, in this instance, as follows\\nAll persons desiring to vote for or against the Constitution or for or\\nagainst any of the articles submitted to a separate vote might erase\\nthe word Yes or No as he desired and insert the name of the\\nplace which was his choice as the site for the State capital upon the\\nballot, the latter taking the follownig form. For the Constitution\\nYes No For Prohibition Yes No For Minority Representa-\\ntion Yes No For as the Temporary seat of Gov-\\nernment The vote upon the whole constitution was Yeas 70131\\nNays 3267 upon the prohibition proposition Yeas 40234 Nays\\n34510; upon the proposal for minority representation Yeas 24161\\nNays 46200. Cf. Constitution of South Dakota of 1889, Schedule.\\nJournal of the Convention, p. 963.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0135.jp2"}, "136": {"fulltext": "i2o THE REFERENDUM IN AMERICA\\nseparately referred to the citizens of those States. When the\\nConstitution of 1870 was submitted to a vote of the people\\nin Illinois there were nine different points to which the\\nelectors were invited to assent i As to the adoption of the\\nwhole constitution, i e., such parts of it as were not embraced\\nin the portions separately submitted, (2) As to seven sec-\\ntions relating to the railroads in the article entitled Corpora-\\ntions (3) Concerning an article entitled Counties (4)\\nConcerning an article entitled Warehouses (5) As to\\nwhether a simple majority or a three-fifths vote of the peo-\\nple in the counties should be necessary to decide the question\\nof the removal of county seats, (6) As to a section in rela-\\ntion to the Illinois Central Railroad Company, a state-aided\\nenterprise, (7) As to minority representation, (8) Permit-\\nting or prohibiting municipal subscriptions in aid of rail-\\nroads or private corporations, (9) Concerning the sale or\\nlease of a canal.\\nAs has already been said, barring the irregular conven-\\ntions of the Secession period in our history at the South, not\\na single constitution appears to have been adopted in any\\nState, since Florida took this course in 1838, which was\\nnot submitted to the people until Mississippi violated the\\nAmerican law of custom in 1890. In that year a conspiracy\\nwas entered into between the legislature and the convention\\nto disfranchise a large body of the more ignorant of the\\nelectors, principally the negroes, who outnumbered the white\\ninhabitants of the State. It was planned to accomplish this\\nresult through a prescribed educational qualification of a\\nrather novel character. Each person applying to vote within\\nthe State must hereafter be able to read any section of the\\nConstitution of Mississippi, or be able to understand the\\nsame when read to him or give a reasonable interpretation\\nthereof This was, ostensibly and in fact, a method of\\ndisfranchising a large body of citizens who had been en-\\nPoore s Federal and State Co VistituHons, Vol, I, p. 493.\\nConstitution of Mississippi cf 2890, art. y.[\\\\ on the Franchise", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0136.jp2"}, "137": {"fulltext": "ON ENTIRE CONSTITUTIONS 121\\nfranchised some twenty years before by the Fifteenth Amend-\\nment to the Federal Constitution. As it was to be expected\\nthat the people, especially the negroes who were in the ma-\\njority, would vote against the Constitution and thus defeat\\nthe plan, if it were submitted to them in the usual manner,\\nthe legislature and convention decided to take the matter into\\ntheir own hands and the Constitution went into force with-\\nout a referendum.\\nAnother Southern State in which the negroes are a pre-\\nponderating force and in which they outnumber the\\nwhites as in Mississippi, is South Carolina. In the year\\n1895 a convention met to frame a new constitution for that\\nState. Unlike Mississippi, where even a preliminary vote on\\nthe convention question was dispensed with, the existing Con-\\nstitution of South Carolina provided that any proposition\\nto call a new convention should be approved by the people.\\nThe subject, therefore, was referred to popular vote by a\\njoint resolution of the two houses of the legislature passed in\\n1892,** the necessary majority was secured at an election held\\nin 1893 and the convention met without receiving instructions\\nfrom the legislature as to the submission of the com-\\npleted constitution.*^ The convention, once it had\\nmet, proceeded to adopt the Mississippi system re-\\nquiring that each person who in future should apply for\\nregistration as a voter in that State should undergo a test\\nas to his ability to read any section in this Constitution\\nor to understand it and explain it when it was read to\\nhim. It was felt in South Carolina, as in Mississippi, that\\nsuch a provision left a very wide field open to administra-\\ntive discretion. A property qualification for voters was also\\nintroduced and the suffrage was hedged about by other re-\\nstrictions meant to eliminate the negroes from the electoral\\nbody.*\u00c2\u00ae Lest its Constitution should be rejected the South\\nLaws of South Carolina, 1892, p. 6.\\nC\u00c2\u00a3. Convention Act, Laws of 1894, p. 802.\\nConstitution of South Carolina of 1895, art. ii, on the Right of\\nSuffrage.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0137.jp2"}, "138": {"fulltext": "122 THE REFERENDUM IN AMERICA\\nCarolina Convention shrewdly decided that it would not sub-\\nmit the instrument which it had framed to popular vote.\\nIn Delaware in 1895 a convention was called after a refer-\\nendum had been taken in the manner required by the Consti-\\ntution of the State. The legislature had declared in the Con-\\nvention Act that in the opinion of this legislature the con-\\nstitution framed by the convention hereinbefore provided for\\nshould be submitted for the approval of the legal voters of\\nthis State. This was regarded, however, as a mere recom-\\nmendation of the legislature, rather than a positive mandate,\\nand it had no influence in shaping the policy of the conven-\\ntion. The delegates adopted the Constitution definitively and\\nit was not submitted to popular vote. In it, also, various\\nexperiments are tried with a view to preserving the freedom\\nand purity of elections Any person desiring to qualify\\nas a voter after January i, 1900, it is specified, must be able\\nto read this Constitution in the English language and write\\nhis name It is scarcely to be supposed, however, that\\nthis provision would have served as cause for formidable\\npopular opposition to the Constitution if the referendum had\\nbeen taken. It manifestly was not meant to abridge the\\nrights or privileges of any class of the people considered\\nas a class. Numerically the negroes are not so strong a\\npower in Delaware as in the more Southern States. With-\\nout having the Debates of the convention before me, I am\\ninclined to accept the statement of a prominent Delaware\\nlawyer in explanation of the convention s course on this\\noccasion. He rather pertinently remarked in response to my\\ninquiry The Constitution was not submitted to popular\\nvote because it was felt that the delegates who were elected\\nfor this purpose knew more about making a constitution than\\nthe people did. Another consideration influencing the con-\\nvention to adopt such a policy was undoubtedly the fact that\\nit had been so hard to bring the body together. The people\\nhad voted on the subject repeatedly and there was no desire\\nSec. 8 of the Act; Delaware Laws of 1895, p. 231.\\nConstitution of Delaware, 1895, art. v, sec. 2.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0138.jp2"}, "139": {"fulltext": "ON ENTIRE CONSTITUTIONS 123\\nnow to jeopardize a work which was the culmination of so\\nmany years of effort.*^\\nIn the case of the Louisiana Convention of 1898, which\\nalso did not submit its Constitution to popular vote, motives\\nprecisely similar to those at hand in Mississippi and South\\nCarolina influenced the members to adopt their unusual\\ncourse. The legislature had referred to the people the ques-\\ntion of calling a convention, and they had decided it in the\\naffirmative. In the same act the legislature in specific\\nterms declared that the convention should have full power\\nto frame and adopt a constitution without submission to\\nthe people Agreeable to this grant of authority, and\\nthe understanding which existed among the political leaders\\nof the State, the Constitution was not referred to popular\\nvote. In this case greater cause existed for omitting the refer-\\nendum than in the other two Southern States. The conven-\\ntion scarcely took the trouble to conceal its daring purpise\\nwhich was of course to disfranchise large bodies of the negro\\nvoters. Again the educational qualification with some\\nmodifications was resorted to, each person who applied for\\nregistration as. a voter being compelled to write out his own\\napplication after a form composed of some eighty words.\\nFailing, should he be not able to read or write to the satisfac-\\ntion of the registration officers, he might qualify on any one\\nof two other tests: (i) If he possessed property within the\\nState assessed at a value of at least $300, and (2) if he were\\nentitled to vote by the laws of any State prior to January\\nI, 1867, or should be a son or grandson not less than twenty-\\none years of age at the date of the adoption of this Con-\\nstitution of some person entitled at that period to exercise\\nthe franchise. Citizens of foreign birth naturalized prior\\nto January i, 1898, were specifically excepted from the re-\\nstrictions and need undergo none of the tests. Thus with-\\nInfra, p. 135.\\nActs of Louisiana of 1896, pp. 85-87.\\nArt. 197 of the Constitution of 1898.\\nConstitution of 1898, art. 197, sec. 5.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0139.jp2"}, "140": {"fulltext": "124 THE REFERENDUM IN AMERICA\\nout openly purporting to do this, though the motive is ill-\\nconcealed, the Constitution excludes from the franchise just\\nsuch classes in the electorate as the political leaders desired\\nto reach. The illiterate negroes are not likely to have $300\\nworth of property, and did not enjoy the right of suffrage\\nprior to 1867. The illiterate white men may possess $300\\nworth of property, or if they do not, are pretty certain with\\ntheir sons and grandsons to get in through the curious provi-\\nsion about citizens of standing in 1867. Foreign naturalized\\ncitizens, who are nearly always white, are subject to no one\\nof these harsh restrictions. Such discriminating tests have\\npractically disfranchised all but a relatively small propor-\\ntion of the negroes in Louisiana while touching none of the\\nwhite voters. To have submitted such a constitution to the\\npeople would have been certainly fatal to its success, so the\\nlegislature issued directions which the convention carefully\\nobeyed not to put the fate of the instrument in doubt by a\\nreferendum. This is the most peculiar case in the recent\\nseries in the South in that the legislature openly authorized\\nthe convention to dispense with the election. Nevertheless it\\nmust be remembered that a preliminary vote was taken to\\ndecide whether a convention should meet or not. It was\\nMississippi which omitted both the preliminary and subse-\\nquent votes and by premeditation and stealth violated all the\\nI ules of our unwritten law on this subject.\\nIn Mississippi the conspiracy of the legislature and the\\nconvention, acting together to deprive the electors of any\\ndirect part in the adoption of the Constitution, became the\\nsubject of an interesting opinion by the judiciary of the\\nState.^^ This opinion is quite out of harmony with the\\nwhole history of our constitutional development, marking a\\nreturn to the theory that the convention is a sovereign\\nbody and therefore a revolutionary body if it selects to be,\\nsubject only to the one condition imposed by the Federal Con-\\nstitution that the government which it establishes shall be\\nrepublican in form, a term which has never been accu-\\nSproule V. Fredericks, 69 Miss., p. 898.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0140.jp2"}, "141": {"fulltext": "ON ENTIRE CONSTITUTIONS 125\\nrately or satisfactorily defined, and is indeed so vague and\\nuncertain in meaning that it would perhaps include any gov-\\nernment whose chief magistrate was not called eo nomine an\\nemperor or king. The judges in Mississippi have asserted,\\nwith historical tendencies nearly all opposing them, that it is\\nonly a theory of the political essayist and the legal doctrin-\\naire by which it is sought to be established that the expres-\\nsion of the will of the legislature shall fetter and control the\\nconstitution- making body This was an obiter dictum in\\nevery sense, an opinion for which the court was not asked,\\nsince the legislature had made no attempt to bind the conven-\\ntion by commanding, or even recommending it to submit its\\nconstitution to popular vote. To require the convention to\\nfollow the legislative direction in the matter or obey the un-\\nwritten law of the land respecting a referendum on entire\\nconstitutions would be, the court declared, to degrade this\\nsovereign body below the level of the lowest tribunal clothed\\nwith ordinary legislative powers The court chose to re-\\npudiate in unmeasured terms the whole doctrine of check or\\ncurb upon the authority of this unicameral law-making as-\\nsembly, joining the other departments of the Mississippi gov-\\nernment, the legislative, the executive, and the conventional\\nin their cabal to restrict the suffrage rights of a large body of\\nthe citizens.\\nAnother judicial opinion, scarcely more reassuring, is con-\\ntributed by the Kentucky Court of Appeals.^* It appears\\nthat the Constitution of Kentucky framed in 1891, while sub-\\nmitted to the people, as the legislature in the act calling to-\\ngether the convention had required^^, was altered and\\namended by the convention after it had been approved by and\\nreceived back from the electoral body. By an ordinance\\npassed in April, 1891, the convention referred its completed\\ncode to the people, adjourning to meet again in the following\\nSeptember. The referendum was taken during the recess,\\nbut the delegates when they reconvened voted to make cer-\\nMiller v. Johnson, 92 Ky., 589.\\nActs of Kentucky, 1890, p. 124.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0141.jp2"}, "142": {"fulltext": "126 THE REFERENDUM IN AMERICA\\ntain changes in the ratified instrument, some of which were\\nof an important character. This raises another interesting\\npoint as to the rights and powers of the convention, one which\\nseems hitherto to have received scarcely any attention. Nor\\nhas the Kentucky court yet given us any definite or proper\\nprecedent in respect of this subject, since it evaded the direct\\nissue, which was again whether or not the legislature can\\nbind a convention. If it were to submit its work to the peo-\\nple did this not mean its finished work, rather than a mere\\ndraft which it might later amend and rearrange to its own\\nmind The court on a technical point found in favor of the\\nvalidity of the constitution in order, it would seem, to save\\nthe State from disturbance and expense which were sure to\\nensue if acts performed and proceedings already taken should\\nbe declared illegal. A new referendum would needs be held\\nand indeed in case of an adverse popular vote a new conven-\\ntion might have to be assembled. So much difficulty had\\nbeen experienced in bringing the late convention together\\nthat it was no pleasant prospect to think of doing all this\\nwork over again.^\u00c2\u00ae The court decided therefore that when\\nthe political department of the government had assumed\\nand recognized the constitution to be a valid instrument it\\nwas not within the scope of the court s powers to compel\\na co-equal department i. e., the convention, to perform\\nits duty when the result would be to bring confusion and\\nanarchy upon the State Such an opinion is without very\\nmuch general legal interest and it contributes little to either\\nside of this important discussion. It was dictated by consid-\\nerations of temporary expediency and it must be viewed in\\nthis light. There was a vigorous dissenting opinion in which\\nit was declared that the principle established by the court was\\nheavily laden with mischief to the inherent and inalienable\\nrights of the people A protest was therefore entered\\nagainst the exercise by the convention of this arbitrary\\npower which if carried to its legitimate results would re-\\nInfra, p. i34-", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0142.jp2"}, "143": {"fulltext": "ON ENTIRE CONSTITUTIONS 127\\nfleet baek the harsh grating of the dungeon door and the rat-\\ntle of the tyrant s chains\\nAhhough it is impossible to think that our entire historical\\ndevelopment respecting this subject of a referendum on com-\\nplete constitutions is now lightly to be disregarded, the re-\\ncent practice in several States is calculated to unsettle many\\nof our cherished theories. We are brought to these con-\\nclusions that if the old constitution is silent as to the question\\nof the submission of a new constitution, the legislature and\\nconvention cooperating, in the South at least where public\\nopinion seems not to discountenance it, especially when some\\nparticular end is to be gained thereby may reckon without\\nthe electors as a ratifying force. In cases in which the\\nlegislature still demands a vote of the people, although the\\nconventions of Delaware and Kentucky have come dan-\\ngerously near the point of violating the law of American cus-\\ntom and tradition on this subject, there fortunately is yet no\\nauthority for extending to this unicameral assembly unlim-\\nited and sovereign powers which would release it from\\nproper control. The Mississippi opinion is at hand, of\\ncourse, in favor of an unchecked convention, though this we\\ncan certainly regard as no very valuable or authoritative\\nprecedent. We seem to stand therefore just about where we\\ndid when Judge Jameson laid down his pen at the end of his\\nmasterly investigation of this subject, and Americans may\\nentertain the hope that the rules governing the convention\\nwhich he so clearly perceived and so well classified and which\\nhave our respect because they are the rules that have been\\ndeveloped out of our practice and experience, may not soon\\nbe departed from.\\nSproule v. Fredericks, loc. cif.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0143.jp2"}, "144": {"fulltext": "CHAPTER V\\nTHE AMENDMENT OF CONSTITUTIONS BY CONVENTIONS\\nAnother topic is now to be considered, and this has to\\ndo with the development of the system by which the State\\nconstitutions may be amended. When constitutions are to be\\nchanged, the normal method, as we have seen, is by calling\\ntogether a new convention, if these changes are so important\\nas to amount to a general revision. Coincidently with the\\nreferendum on whole constitutions, if not somewhat antedat-\\ning it, there has developed another referendum, on the subject\\nof assembling a new convention. The electors in the States\\nare themselves to determine, (i) whether the constitution\\nor form of government which the convention has framed,\\nshall be adopted, and (2) when the constitution or form of\\ngovernment has been adopted, whether it shall be abolished\\nor changed. Such a poll of the people to decide upon the\\nexpediency of calling a convention to revise the constitution,\\nwas proposed in Pennsylvania in 1777, and 1778,^ though\\nthe legislature rescinded its action before the referendum\\nwas really taken. The Massachusetts legislature in 1779,\\ndesiring to ascertain the sense of the people respecting a new\\ngovernment, asked the electors to decide whether a con-\\nvention should be called or not. Their answer being in the\\naffirmative, John Adams Constitution was framed and sub-\\nmitted to popular vote, the first constitution in the United\\nStates, to be made the subject of a plebiscite.\\nThe Constitution of Pennsylvania of 1776, and the early\\nConstitutions of Vermont, provided for their own amendment\\nthrough that curious and unsatisfactory body the Council\\nof Censors. When this Council proposed amendments, they\\n^Ante, pp. 4Q-52,\\nia8", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0144.jp2"}, "145": {"fulltext": "CONSTITUTIONAL AMENDMENT BY CONVENTION- 129\\nwere to be submitted to a convention specially chosen for\\nthe purpose of considering them. This method of revision\\nwas abolished in Pennsylvania in 1790, but it continued to\\nbe a feature of the constitutional practice of Vermont until\\n1870, several conventions having met under authority de-\\nrived from this odd provision, and the Constitution having\\nbeen several times amended by this process. The Constitu-\\ntion of Massachusetts of 1780, provided that in 1795 the\\nelection officers in the various towns, etc., should collect\\nthe sentiments of the people concerning the necessity and\\nexpediency of revising the constitution in order to amend-\\nments Upon a two-thirds vote of the people, a conven-\\ntion was to be called by the General Court or legislature.^\\nThe Georgia Constitution of 1777 also provided for a con-\\nvention, when it was a question of altering the constitution,\\nbut upon the presentation of petitions bearing the signatures\\nof a majority of the voters in each county, instead of an act-\\nual assembling of the votes pro and con at the polling places.^\\nThe Constitution of New Hampshire, adopted in 1784,\\ncontained a clause which made it necessary for the legislature\\nto call a convention, at the end of seven years, or in 1791.\\nThis provision was self-executory, the convention meeting\\nwithout a reference of the subject to popular vote. No alter-\\nation should be made in the constitution by the convention,\\nhowever, unless it were first laid before the towns and\\nunincorporated places of New Hampshire, and approved\\nby two-thirds of the qualified voters present, and voting\\nupon the question By the New Hampshire Constitution\\nof 1792, the people were to be polled at the expiration of\\nConstitution of Massachusetts, chapter vi, art. x.\\n^Constitution of 1777, article Ixiii. No alteration shall be made in\\nthis Constitution without petitions from a majority of the counties, and\\nthe petitions from each county to be signed by a majority of the voters\\nin each county within this State at which time the Assembly shall\\norder a convention to be called for that purpose, specifying the altera-\\ntions to be made, according to the petitions preferred to the Assembly\\nby the majority of the counties as aforesaid.\\nCf. final paragraph of the Constitution of New Hampshire of 1784.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0145.jp2"}, "146": {"fulltext": "I30 THE REFERENDUM IN AMERICA\\nevery seven year period, on the subject of calling a con-\\nvention to revise the fundamental law of the State. It was\\nagain provided that all amendments originating in this man-\\nner should be laid before the people assembled in the town\\nmeetings.^ In Delaware by the Constitution of 1792, the\\nelectors were declared to be the only authority competent to\\ndecide the convention question.\u00c2\u00ae Kentucky by the Consti-\\ntutions of 1792 and 1799, and Tennessee by the Constitu-\\ntion of 1796, left it to the people to determine when a con-\\nvention should be assembled.\\nIt soon came to be so generally understood that it was a\\nprerogative of the citizens at large directly to determine this\\nimportant point, that the Council of Revision the plural\\nvetoing power in New York, vetoed a bill which had been\\npassed by the legislature of that State in November, 1820,\\nand which authorized a constitutional convention without\\nfirst securing the people s consent. Chancellor Kent, a mem-\\nber of the Council, prepared the statement which accom-\\npanied the bill on its return to the legislature, with the\\nCouncil s disapproval. The first reason for the Council s\\ndissent was that the convention would meet without having\\nfirst taken the sense of the people whether such a conven-\\ntion for such a general and unlimited revisal and alteration\\nof the Constitution be in their judgment necessary and ex-\\npedient The various precedents were carefully examined,\\nand it was asserted thus early in the century in the leading\\nState of the Wnion, by a body composed of some of the ablest\\nlegal minds in the United States, that the law of custom as it\\nhad been developed in this country with respect to this\\n^Constitution of 1792, sectiOTis 99-100.\\nConstitution of 1792, article x. No convention shall be called\\nbut by the authority of the people and an unexceptionable mode of\\nmaking their sense known, will be for them at a general election of\\nrepresentatives to vote also by ballot, for or against a convention, as\\nthey shall severally choose to do and if, thereupon, it shall appear\\nthat a majority of all the citizens in the State having right to vote for\\nrepresentatives, have voted for a convention, the General Assembly\\nshall, accordingly at their next sessions call a convention etc.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0146.jp2"}, "147": {"fulltext": "CONSTITUTIONAL AMENDMENT BY CONVENTION 131\\nsubject, was not to be lightly set aside. The Council said:\\nThe declared sense of the American people throughout the\\nUnited States on this very point, cannot but be received with\\ngreat respect and reverence; and it appears to be the almost\\nuniversal will expressed in their constitutional charters, that\\nconventions to alter the constitution shall not be called at\\nthe instance of the legislature, without the previous sanc-\\ntion of the people by whom those constitutions were or-\\ndained. The Council declared that there ought to be two\\nreferenda, one to determine, in the first instance, as to the\\ngeneral expediency of calling the convention, and a second\\nas to the advisability of accepting the work of the con-\\nvention, and promulgating it as the constitution of the\\nState. The legislature, having failed to do its part well in\\n1820, thereupon in the following year took up the subject\\nagain, and passed a law which properly embodied the Coun-\\ncil s recommendations.^ The people were to vote Conven-\\ntion or No Convention as they might prefer, and such\\nchanges as the body might make in the organic law, should\\nthe people authorize it to meet, would have then to be sub-\\nmitted to the decision of the citizens of this State\\ntogether or in distinct propositions as to them [the members\\nof the convention] shall seem expedient\\nNearly all the constitutions now contain definite provisions\\non this subject. When the legislatures leave it to the people\\nto decide whether a convention shall be called or not, they do\\nso as a rule, pursuant to no law of custom, nor by virtue of\\nany implied power, but because of an imperative command\\nin the constitution. For instance, the Constitution of Utah,\\nthe newest of the States, declares Whenever two-thirds\\nof the members elected to each branch of the legislature shall\\ndeem it necessary to call a convention to revise or amend\\nSee the objections of the Council to the bill calling a convention,\\ndated Nov. 29, 1820. This paper may be conveniently referred to in\\nJameson s Constitulional Conventions, Appendix F.\\nCf. Hammond s History of Political Parties in the State of New\\nYork, Vol. I, p. 539 Laws of New York, 1821, p. 83.\\nArt. xxiii, sec. 2.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0147.jp2"}, "148": {"fulltext": "132 THE REFERENDUM IN AMERICA\\nthis Constitution, they shall recommend to the electors to\\nvote at the next general election for or against a conven-\\ntion, and if a majority of all the electors voting at such elec-\\ntion shall vote for a convention, the legislature at its next\\nsession shall provide by law for calling the same.\\nThe Constitution of Delaware of 1897, another recently\\nadopted instrument, treats this subject as follows The\\nGeneral Assembly by a two-thirds vote of all the members\\nelected to each house, may from time to time provide for the\\nsubmission to the qualified electors of the State at the gen-\\neral election next thereafter, the question Shall there be\\na convention to revise the Constitution and amend the same\\nand upon such submission, if a majority of those voting on\\nsaid question shall decide in favor of a convention for such\\npurpose, the General Assembly at its next session shall pro-\\nvide for the election of delegates to such convention at the\\nnext general election.\\nIt appears that thirty of the forty-five different State\\nConstitutions contain definite provisions of a similar kind\\nrespecting a referendum on the convention question, and in\\nonly fifteen is the legislature left to decide upon its own\\nauthority what it will do in the matter, when the occasion\\narises, and a general constitutional revision is required.^\\nA closer examination of these Constitutions will show\\nthat in seventeen of the thirty cases, the method of submis-\\nsion is as in Utah and Delaware, i. e., in pursuance of an\\naffirmative vote of two-thirds of the members elected to the\\nlegislature. In one State, Nebraska, three-fifths of the\\nmembers must concur before the subject is submitted. A\\nsimple majority of the members of the legislature voting on\\nthe question, as in the case of other laws, seems to be suf-\\nficient to bring the matter to the referendum in Alabama,\\nMissouri and Tennessee, while in Wisconsin an ambiguous\\nmajority of the Senate and Assembly and in West Vir-\\nThese fifteen are Arkansas, Connecticut, Georgia, Indiana, Louisi-\\nana, Maine, Massachusetts, Mississippi, New Jersey, North Dakota,\\nOregon, Pennsylvania, Rhode Island, Texas, and Vermont.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0148.jp2"}, "149": {"fulltext": "CONSTITUTIONAL AMENDMENT BY CONVENTION 133\\nginia a majority of the members elected to each house of\\nthe legislature are required. In Kentucky the proposi-\\ntion must be approved by a majority of all the members\\nelected to the legislature, in two successive General Assem-\\nblies, a rather effective curb upon hasty or precipitate action.\\nIn another class of States, following the example of Massa-\\nchusetts and New Hampshire, the Constitutions specify that\\nthe subject of calling a convention shall be submitted to the\\npeople by the legislature at regular intervals in New Hamp-\\nshire every seven years, in Iowa in 1870 and each tenth\\nyear thereafter, in Michigan in 1866 and each sixteenth year\\nthereafter, in Maryland in 1887 and every twenty years fol-\\nlowing, in Virginia in 1888 and thenceforward at periods of\\ntwenty years, in New York in 191 6 and every twentieth\\nyear thereafter. In these cases it is often declared expressly\\nthat the legislature may submit the question at other times\\nwhen it may consider this policy to be expedient, e. g., in\\nNew York, Michigan and Iowa, and where not so declared\\nthere is a fair implication that it may do so.\\nIn the referendum on the convention subject, it is the al-\\nmost uniform practice that a majority of the votes cast, de-\\ntermines the fate of the proposal. In Kentucky alone is this\\nrule definitely qualified and there it is necessary, if a majority\\nshall be in favor of the question, that the total vote for the\\nconvention shall be equal to at least one- fourth of the num-\\nber of votes cast in the last general election in the State, a\\nlimit which is certainly not high, and established in a\\nrighteous spirit with a view to safeguarding the State against\\na convention which might perhaps receive its mandate from\\na very small minority of the citizens. Although Kentucky,\\nby her Constitution of 1891, still throws some difficulties in\\nthe way of the legislature in assembling a convention, the\\nprocess is simplicity itself, in comparison with that which\\nsome very shortsighted men introduced in the State Con-\\nstitution of 1850.^^ This odd system comprised a vote of\\nArticle xii.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0149.jp2"}, "150": {"fulltext": "134 THE REFERENDUM IN AMERICA\\na majority of all the members elected to each house of the\\nGeneral Assembly and two subsequent ratifying votes\\nof a majority of all the citizens of this State entitled to vote\\nfor representatives taken at successive general elections\\nfor members of the legislature. Thus more than four years\\nwere required to call a convention, granting that it were at all\\npossible to fulfill so difficult a condition as securing for the\\nproposal a majority, not of the votes cast, but of all those\\nentitled to be cast, and not once, but on two occasions and\\nat succeeding elections. For instance, one General Assembly\\ncould vote to submit the question to the people, but the peo-\\nple could not be consulted until the next election for repre-\\nsentatives nearly two years later, and the proposition could\\nnot be approved a second time before another period of two\\nyears had elapsed. The act definitely authorizing the con-\\nvention, then, was still to be adopted by the Assembly at a\\nsubsequent session. Strangely enough, there was no other\\nmethod of amending the Constitution of Kentucky, than by\\nconvention. Upon the legislature was conferred no power\\nof initiation, with respect to separate amendments, which it\\nnow possesses so generally in the various States. Such a\\nthing as changing the Constitution was for long years, there-\\nfore, a practical impossibility. Although sporadic attempts\\nw^ere earlier made to meet the conditions precedent to the\\ncalling of a convention, there was not a single regular ses-\\nsion of the legislature, beginning with 1879-80, until the\\nconvention was finally authorized in 1890, when this subject\\nwas not before the General Assembly of Kentucky State.\\nThe necessary popular majorities were at last secured, in\\n1887 and 1889, the members of the convention were\\nelected in 1890, and in 1891 the old Constitution was super-\\nseded by a new one in w^hich good care was taken that the\\nState should not again get into such a trap.\\nDelaware, under the Constitution of 183 1, which was in\\nforce until a very recent date, had somewhat similar trials in\\nLaws of Kentticky, 1887-8, p. 4.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0150.jp2"}, "151": {"fulltext": "CONSTITUTIONAL AMENDMENT BY CONVENTION i35\\nthe course of her attempts to assemble a new convention.\\nHere, too, if a convention were to be called, the proposition\\nmust be approved by a majority of all the citizens in the\\nState having right to vote for representatives This ma-\\njority, it was specified, should be ascertained by reference\\nto the highest number of votes cast in the State at any one\\nof the three general elections next preceding The con-\\nvention question was to be voted on by the people, at a spe-\\ncial election when as American experience has demon-\\nstrated, it is even more difficult to bring together any large\\nnumber of men who have definite views to express respect-\\ning public questions, than at general pollings, a point which\\ndeserves to be dwelt on more at length in another place. At\\nthe election on November i, 1887, the vote on the subject of\\ncalling a constitutional convention was 14431 yeas and 398\\nnays, the number of votes required being 15640. At the\\nelection of May 19, 1891, there were 17105 votes for a con-\\nvention, and 115 against it, the number of votes required at\\nthis time having increased to 17674.^* However, the Dela-\\nware Convention of 1831 had not, like the Kentucky Conven-\\ntion, excluded the legislature from changing the Constitution.\\nAmendment could be effected by a two-thirds majority vote\\nof one legislature, and a three-fourths majority vote of the\\nnext (without a referendum). After various fruitless en-\\ndeavors to call a convention by the method regularly pre-\\nscribed, the legislature at last set itself to the task of adopting\\nan amendment, which would change this troublesome pro-\\nvision of the Constitution and open the way to a revision of\\nthe entire instrument.^^ The Delaware Convention, which\\nsoon met, disposed of the last trace of this old check, and put\\nthe State in line with the other Commonwealths, where the\\ntendency had been at work for a long time to make it easy\\nConstitution of 1831, art. ix.\\n^*Cf. McPherson s Handbook for 1888 and 1892.\\nLaws of Delaware, 1893, chapter 540. The amendment simply au-\\nthorized the vote to be taken at a general instead of at a special elec-\\ntion.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0151.jp2"}, "152": {"fulltext": "13^ THE REFERENDUM IN AMERICA\\nrather than hard for the agents charged with this task, to\\neffect changes in the constitution.\\nWe need, too, to look at the case in which the constitution\\nis silent on the point of the legislature calling a convention.\\nWhat, then, is the legislature s duty? Has it the power to\\ncall a convention anyhow, without express constitutional au-\\nthorization to that effect, and if so, is it restricted as to the\\nways and means to be adopted in attaining this end? When\\nthe constitution says that it shall be amended by some one\\nparticular method, and that method is not by convention,\\nexplicitly stating that no other shall be employed, it seems\\nto be admitted that to act in contravention of the terms of\\nthat instrument, would be revolutionary, an offence no\\nsmaller than to violate any other constitutional provision.^\u00c2\u00ae\\nFor instance, the Constitution of Delaware of 1776, a very\\nimperfect instrument, we will all say, at least in this respect,\\nprovided, after declaring that certain portions of the Consti-\\ntion ought never to be violated on any pretence what-\\never that no other part shall ever be altered,\\nchanged or diminished without the consent of five parts in\\nseven of the Assembly, and seven members of the Legisla-\\ntive Council It must be remembered, of course, that the\\nlegislature might have changed that part of the Constitution\\ngiving it the sole right to amend the same, just as it might\\nhave changed any other portion of the instrument. Then\\nthe convention, apparently prohibited, could have been le-\\ngitimated by the legislature by way of a constitutional\\namendment. It is Judge Jameson s opinion that such a pro-\\nvision inhibited the amendment or general revision of the\\nconstitution by a convention or by any other authority than\\nthe General Assembly. There was no implication of power\\non the part of the legislature to call a convention, the Consti-\\ntution having omitted to give its directions on the point.\\nSuch an assumption would have been quite unwarranted,\\nfor no power can be impHed in the face of a direct and ex-\\nJameson, op. cit., pp. 600-601.\\nArt. XXX.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0152.jp2"}, "153": {"fulltext": "CONSTITUTIONAL AMENDMENT BY CONVENTION 137\\npress prohibition But where there is no prohibition of\\nthe exercise of the power or allegation of the existence of\\nthe right of the legislature to call a convention, for the pur-\\npose of amending the constitution, that prerogative rests with\\nthe General Assembly by inference, as a part of the general\\ngrant of legislative authority.\\nThe case, too, is distinguishable of a constitution which es-\\ntablishes an alternate mode of amendment, without having\\nexpressly prohibited the use of the convention method, as\\nthe framers of the Delaware Constitution of 1776 are held to\\nhave done. We will soon sketch the development of what\\nhas been called the legislative mode of amendment, that is,\\none by and through the legislature, which is meant to sim-\\nplify the problem of constitutional change, and save the\\nState from the cost and labor of putting the cumbrous con-\\nvention system into operation. Now, when the constitution\\nspecifies that it may itself be amended by the legislature in\\nsuch and such a manner, and there is no word in disparage-\\nment or prohibition of any other method, are we to infer that\\nthe elder and primal method by convention has been inter-\\ndicted? Assuredly not. There is the force of a great deal\\nof precedent and principle to show that such a claim would be\\nquite untenable. The fact has been clearly established\\nthat the legislative mode, except when there are ex-\\npress declarations to the contrary, is intended only to cover\\nthe case of a few specific alterations in the fundamental law,\\none, two or a half dozen. A convention on the other hand,\\nis an agency by which the entire constitution is revised, and\\nalthough it may after investigating the subject, recommend\\nonly a partial remodelling, the opinion is entertained by those\\nwho have called the convention together, that large changes\\nare needed, and the body undertakes its labors committed to\\nthis task. There are thus two separate agents to accomplish\\ntwo separate objects, and one agent exercising its preroga-\\ntive, cannot prejudice the other in the exercise of its peculiar\\nJameson, p. 601. Ibid., pp. 211, 601. Ibid., p. 615.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0153.jp2"}, "154": {"fulltext": "138 THE REFERENDUM IN AMERICA\\nrights. The constitution may be wholly silent in regard to\\nthe calling of a convention; it may specify that separate\\namendments may be initiated by the legislature, but if there\\nis no prohibition respecting the convention as an agency for\\nthe general revision of the constitution, there is the unmis-\\ntakable impHcation that this agency may be employed. Up\\nto 1887, Judge Jameson found that in the history of our\\npractice twenty-seven conventions had met without special\\nauthority for their assembling having been contained in the\\nState constitutions and since that time at least two conven-\\ntions have been added to the list, Mississippi s in 1890, and\\nLouisiana s in 1898. Our custom has so well established the\\nrule upon this point, that it is too late now to question the\\nlegitimacy of these conventions.^^\\nThe converse of this proposition, as we will see on a later\\npage, is not true, for there is no inferable power resting with\\nthe legislature to change the constitution in a smaller way,\\nunless definite provisions can be pointed to in that instru-\\nment, to which the right to exercise such a prerogative may\\nbe traced back. The legislature when it acts alone, or in con-\\njunction with the electors in adopting amendments to the\\nconstitution, does so in an unusual capacity. It acts as a\\nconvention, not as a legislature, and it must be able to justify\\nits course at every step. It serves us thus on sufferance only,\\nand it has won its title to this share in constitutional law-\\nmaking, because it is realized that the great, long, and de-\\ntailed constitutions of to-day must be frequently changed,\\nand some method must be at hand, simpler and less expen-\\nsive than calling delegates together from all parts of the\\nState, for the special purpose of making these minor changes\\nin the language and spirit of the instrument.^*\\nNow, when the legislature is not specifically prohibited\\nJameson, p. 211. It must be laid down as among the established\\nprerogatives of our general assemblies that the constitution being silent,\\nwhenever they deem it expedient they may call conventions to revise the\\nfundamental law.\\nIbid., p. 210. Ibid., p. 602.\\n^^Ibid., pp. 549, 621, 622.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0154.jp2"}, "155": {"fulltext": "CONSTITUTIONAL AMENDMENT BY CONVENTION 139\\nfrom calling a convention (a case of only theoretical inter-\\nest), and it acts upon authority derived from general impli-\\ncation alone, what direct part are the people to play in the\\nproceeding? May the referendum respecting the expediency\\nof issuing the call be dispensed with by the legislature?\\nThe weight of authority is distinctly on the side of a submis-\\nsion of this question to the people. The opinion of the New\\nYork Council of Revision, in 1820, which is cited so fre-\\nquently, that body, clothed with a power later con-\\nferred in nearly all our States upon the Governor alone, with-\\nout whose assent to a bill, none could become a law except\\nby a two-thirds vote over the veto, is against a convention\\nassembled at the sole instance of the legislature. The New\\nYork Constitution of 1777, which it was proposed should be\\nchanged, contained no word concerning the method of calling\\na convention, nor did it seem to contemplate the case arising\\nwhen such a body would need to be convened. The Council,\\nnevertheless, unhesitatingly declared that it was the duty of\\nthe legislature to submit the question, just as it was its pre-\\nrogative in general to set the machinery in motion for a con-\\nvention to assemble, despite the Constitution s silence in ref-\\nerence to that larger point. Because the legislature had\\nfailed to provide for a poll of the people, the Council had\\nvetoed the bill, and the former acting in pursuance of better\\nadvice, promptly passed a measure to refer the matter to the\\nelectors of the State.\\nDoubtless it is within the power of the legislature, when\\nthe constitution contains no specific directions to the con-\\ntrary; to call a convention, without first acquainting itself\\nwith the sense of the people on this subject. Even in those\\nStates in which the constitution is not wholly silent on the\\npoint, and a method is prescribed for calling a convention,\\nthough without a definite command as to the submission of\\nthe question to popular vote, the legislature may undoubtedly\\nomit this latter feature of the process. Perhaps there is here\\nan added implication that the plebiscite is unnecessary, but\\nlacking the constitutional mandate to dispense with the vote,", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0155.jp2"}, "156": {"fulltext": "HO THE REFERENDUM IN AMERICA\\nthe legislature may, of course, require the popular sanction,\\nand if it desires to keep itself in line with all our historical\\ntendencies, it will make no effort to evade what must be con-\\nsidered to be its manifest duty in the case. For instance, the\\nConstitution of Georgia declares that no convention of the\\npeople shall be called by the General Assembly to revise,\\namend, or change this Constitution, unless by the concurrence\\nof two-thirds of all the members of each house of the General\\nAssembly It contains no command to submit, nor pro-\\nhibition from submitting to the electors by way of the refer-\\nendum, the question of the expediency of the call, and with-\\nout a doubt, the legislature can refer the subject to them or\\nnot, at its own pleasure.^\u00c2\u00ae\\nOf one thing there seems to be some certainty, if our prac-\\ntice is closely studied and the lessons which it teaches are\\nrightly viewed and considered, and it is this that the peo-\\nple should be directly consulted at some stage in the process\\nof constitutional change. One or other of the two refer-\\nenda, either the preliminary vote to decide as to the expedi-\\nency of calling the convention, or the vote upon the accept-\\nance or rejection of the whole constitution after the conven-\\ntion has framed it, should be taken. If we look at those\\nStates in which constitutions have recently been adopted\\nwithout a reference of the instruments to popular vote, Mis-\\nsissippi, South Carolina, Delaware, Kentucky (in part), and\\nLouisiana, there is but one case, that of Mississippi in which\\nthe legislature, or the legislature and convention acting to-\\ngether, took the matter wholly out of the people s hands, and\\nConstitution of 1877, art. xiii, sec. i, par. 2.\\n^^A usual form in which to submit this subject, since more modern\\nballot systems have been introduced, is as follows For the [or a] Con-\\nvention Against the [or a] Convention as in California and\\nTennessee Shall there be a Constitutional Convention Yes or\\nNo a space for the voter s mark being left after either word, as in\\nMinnesota For a general revision of the Constitution Yes or\\nFor a general revision of the Constitution No as in Michigan\\nConstitutional Convention Yes or Constitutional Convention\\nNo as in Ohio.\\nCf. Jameson, op. cit., p. 494.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0156.jp2"}, "157": {"fulltext": "CONSTITUTIONAL AMENDMENT BY CONVENTION 141\\nwithdrew from them all part in the proceedings, both before\\nand after the convention met. It is true that in South Caro-\\nlina, Kentucky and Delaware, the old Constitutions required\\nthat conventions should be called only after a polling of the\\npeople, and in Kentucky the vote had to be taken on two oc-\\ncasions, but the fact remains that it is now only in the rarest\\ninstance that all our agents which co-operate to this end, fail\\nus, and a constitution is added to the American collection,\\nwithout the people having said by yea or nay, somehow, at\\nsometime, whether or not they are ready to make this change\\nin their organic scheme of government.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0157.jp2"}, "158": {"fulltext": "CHAPTER VI\\nTHE AMENDMENT OF CONSTITUTIONS BY THE LEGISLATIVE\\nMETHOD\\nAnother method of amending the constitution, the legis-\\nlative method, remains to be specifically considered. It was\\nthe practice in England, whence we got so much that is valu-\\nable in our political forms, to receive constitutional as\\nwell as statutory law from Parliament or the legislature.\\nWe had introduced Montesquieu s trinity of English agents,\\nthe legislative, executive and judicial departments of govern-\\nment, each balanced against and checking the two others.\\nBut we were to go farther, and bring upon the scene a fourth\\nbrake upon the wheel, the convention, differentiating con-\\nstitutional and ordinary law, not only in its intrinsic char-\\nacter, but as well in respect of the source from which it was\\nderived. The legislature for a time in this country, was al-\\nmost entirely without power in the matter of constitutional\\nlaw-making, except as the agent to call the convention to-\\ngether. In those early cases in which the legislature itself\\nattem.pted to act as a convention, the constitutions were con-\\nsidered to have been irregularly adopted, and therefore in-\\nvalid.^ It came to be pretty generally understood that what\\nthe legislature was not competent to make, it also was not a\\nsuitable authority to break down or change. If experience\\nshould later show that amendment was needed, it was plainly\\nstated, or fairly implied in the constitution, that the mode at\\nhand was to call another convention. The Constitutions of\\n1776 in Delaware and Maryland, indeed, gave to the legis-\\nlature rather general powers to change those instruments\\nunder certain safeguards, calculated to prevent hasty and ill-\\nAnte, p. 74.\\n142", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0158.jp2"}, "159": {"fulltext": "AMENDMENT BY THE LEGISLATIVE METHOD 143\\nconsidered action. In the Maryland Constitution, it was\\nspecified that this form of government and the Declaration\\nof Rights, and no part thereof shall be altered, changed or\\nabolished, unless a bill so to alter, change or abolish the same\\nshall pass the General Assembly, and be published at least\\nthree months before a new election, and shall be confirmed by\\nthe General Assembly after a new election of delegates, in\\nthe first session after such new election Here was a plan\\nfor amendment by simple majority vote of two successive\\nlegislatures, and in lieu of the referendum there was intro-\\nduced the device of publishing the proposals for the consider-\\nation of the people prior to the election of the members of the\\nGeneral Assembly which should pass upon them the second\\ntime.^\\nIn Delaware the Constitution of 1776 prescribed, with the\\nexception of some cases not to the purpose here, that no part\\nof the Constitution should ever be altered, changed or\\ndiminished without the consent of five parts in seven of the\\nAssembly, and seven members of the Legislative Council\\nThus of the Constitutions of the Revolutionary time in those\\nof two of the original States, the legislature was created the\\nagent for amending the Constitution.* In the Constitutions\\nof New Jersey, New York, North Carolina and Virginia,\\nthere were no provisions on this subject. In New Hamp-\\nshire, Massachusetts and Georgia, the convention method\\nwas adopted, as it was also in Pennsylvania with the addition\\nof that odd feature, the Council of Censors. As silence is\\nan inference in favor of the convention, there were then but\\ntwo States of the eleven (the other two needed to make up\\nthe original thirteen being Connecticut and Rhode Island,\\nand they retained their English charters) which held the leg-\\nislature to be competent in amendment, even with respect\\n2 Art. lix. Art. xxx.\\nThe example of South Carolina in 1778 may be disallowed, for the\\nSupreme Court of that State decided that as the Constitutions of 1776\\nand 1778 had both been framed by the legislature, the latter could at\\nits own pleasure change them again.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0159.jp2"}, "160": {"fulltext": "144 THE REFERENDUM IN AMERICA\\nto minor details. It is true, of course, as Judge Jameson\\nhas very clearly shown, that these original Constitutions, if\\nwe except those of Massachusetts and New Hampshire,\\nwhich adopted their instruments near or after the conclusion\\nof the war, were merely intended to serve temporary ends,\\nuntil independence should be secured, if, indeed, that much\\ndesired result could be attained. The effort for independent\\ngovernment failing, the constitutions would have had little\\nfuture value anyhow, not more than those which were framed\\nby the Secession conventions in the Southern States at the\\noutbreak of the great Civil War. There was little thought\\nthen of how the constitutions should be changed; the press-\\ning question was to establish them, adopt them and live\\nunder them. Systems by which to amend the instruments\\nof government were to be devised at a somewhat later date.\\nThe need was soon felt, and it had been prophetically\\nanticipated in Maryland and Delaware in 1776, for\\nsome easier mode of amendment than by assembling a new,\\nconvention. The legislature was holding sessions fre-\\nquently. While it was engaged in its own specific line of\\nwork, it might too act in the capacity of a convention in\\nadopting, or at any rate in proposing for adoption, such\\namendments to the constitution as might seem to be required\\nfrom time to time for the good of the State. From the .be-\\nginning it was understood that in enacting constitutional\\nlaw, even to this extent, the legislature was stepping outside\\nof its own rightful province. It ought to be more difficult\\nfor the legislature to amend the constitution than to pass an\\nordinary law. Delaware, therefore, had specified that\\nchanges in her Constitution should be made only with the\\nconsent of five parts in seven of the Assembly, and seven\\nmembers of the Legislative Council Maryland declared\\nthat the legislature, if it should desire to alter the Constitu-\\ntion of the State, must announce its intention to the people\\nby publication, and twice approve its proposition for amend-\\nment, though a simple majority vote on each passage suf-\\nArt. XXX.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0160.jp2"}, "161": {"fulltext": "AMENDMENT BY THE LEGISLATIVE METHOD MS\\nficed. In the Constitution of South Carolina, in 1790, a\\nsomewhat similar provision was introduced. Amendments\\nwere to be proposed in one legislature, published for the in-\\nformation of the people previous to the next election of rep-\\nresentatives, being then confirmed by the next legislature. A\\ntwo-thirds vote of the whole representation in both\\nbranches was necessary at each passage, however, a condi-\\ntion tending to make it still more difficult for the legislature\\nto exercise its amending power.^ A provision almost the\\nexact counterpart of that found in South Carolina,\\nwas incorporated in the Georgia Constitution of 1798,\\nand the second Constitution of Delaware adopted in 1792\\narranged for its own amendment by the legislative mode,\\nthough again in a slightly different form, viz a two-thirds\\nmajority vote of each house of one legislature, with the\\napprobation of the Governor the publication of the pro-\\nposals for popular consideration, and a three-fourths vote of\\neach branch of the next legislature.^\\nConstitutional amendment by legislature originated in the\\nSouth, and there had its most notable early developments.\\nBut in no case did the amendment come nearer to the people\\nthan in printing and circulating it for their consideration,\\nthree or six months before the next election for representa-\\ntives whose duty it would be to ratify the proposed change.\\nThe rejected Constitution of New Hampshire of 1779, con-\\ntained a provision for its own amendment, which specified\\nthat the General Court shall have no power to alter any part\\nof this Constitution, but in case they should concur in any\\nproposed alteration, amendment or addition, the same being\\nagreed to by a majority of the people, shall become valid\\nThe Constitutions of New Hampshire adopted in 1784 and\\n1792, provided that alterations in the constitution should be\\napproved by two-thirds of the qualified voters present, and\\nConstitution of 1790, art. xi. Art. iv, sec. 15.\\nConstitution of 1792, art. x.\\nSec. 32 of the Constitution, which is printed in the Collections of the\\nNew Hampshire Historical Society, Vol. IV, p. 154.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0161.jp2"}, "162": {"fulltext": "146 THE REFERENDUM IN AMERICA\\nvoting on the subject at the various town meetings, but the\\nchanges which were contemplated were to come from a con-\\nvention and not from the legislature. It is Connecticut in\\n1818, when she abandoned her old charter and adopted her\\nfirst Constitution, that won for herself the historical distinc-\\ntion of having originated the plebiscital method which was\\ndestined soon to meet with general application throughout\\nthe States. It was the New England system of a popular\\nvote upon constitutions or parts of constitutions, received\\nfrom conventions, grafted on to the Maryland scheme of\\namendment by legislature, which was generally coming into\\nvogue in the South. Instead of simply publishing the propo-\\nsition for the consideration of the people the people were\\nto have the whole subject directly referred to them, so that\\neach elector might say for himself whether he approved of\\nthe amendment or disapproved of it. Moreover the poll of\\nthe citizens was not introduced between the two votes of the\\nlegislature, a system which soon came into favor in the\\nSouthern States, but after that body had both times passed\\nthe measure. To the people the last word was given. The\\nConnecticut plan did not call for simple majority votes twice\\nrepeated, nor yet for two-thirds majorities, but as if to strike\\nanother compromise among the various precedents at hand,\\nthe Constitution prescribed that at the first passage a simple\\nmajority should suffice^ and curiously, of but one chamber\\n(the House of Representatives) while at the second passage\\na two-thirds vote in each of the two houses would be neces-\\nsary. A difficulty was averted in the subsequent ratifying\\nvote of the people, by providing that a simple majority of\\nthose voting, rather than some larger number, should de-\\ntermine the point as to the approval of the amendment.\\nThis interesting Connecticut provision is, in full, as follows:\\nWhenever a majority of the house of representatives shall\\ndeem it necessary to alter or amend this Constitution, they\\nmay propose such alterations and amendments, which pro-\\nposed amendments shall be continued to the next General\\nAssembly and be published with the laws which may have", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0162.jp2"}, "163": {"fulltext": "AMENDMENT BY THE LEGISLATIVE METHOD M?\\nbeen passed at the same session; and if two-thirds of each\\nhouse at the next session of said Assembly, shall approve\\nthe amendments proposed by yeas and nays, said amend-\\nments shall by the secretary be transmitted to the town\\nclerk in each town in the State, whose duty it shall be to pre-\\nsent the same to the inhabitants thereof for their considera-\\ntion at a town meeting, legally warned and held for that pur-\\npose, and if it shall appear in a manner to be provided by law\\nthat a majority of the electors present at such meetings shall\\nhave approved such amendments, the same shall be valid, to\\nall intents and purposes, as a part of this Constitution.\\nThe Massachusetts Convention of 1820, of which Daniel\\nWebster was a member, he himself having had a part in giv-\\ning form to this particular provision, adopted the Connecticut\\nplan with but slight modification. This Convention did not\\nframe an entire new constitution, but simply submitted to the\\nelectors of the State a number of proposals for the amend-\\nment of the instrument. The Constitution having been de-\\nficient in respect of a method for its own change, in case any\\nspecific and particular amendment or amendments should\\nbe needed, the example which Connecticut had set the coun-\\ntry was studied with interest in Massachusetts. This sec-\\ntion as it was proposed by the Massachusetts Convention in\\n1820-21, and was ratified by the people in 1822, specified that\\nthe proposal for amendment should be passed by a majority\\nvote of the Senate, and a two-thirds vote of the House of\\nRepresentatives of one legislature, and a like vote of the two\\nbranches of the next succeeding legislature, when, if it were\\nreferred to the people, and a majority of the qualified electors\\nvoting on the subject should approve it^ it should become a\\npart of the Constitution of the State.\\nConstitution of i8i8^ art. xi.\\nAmendments to Massachusetts Constitution of 1780, art. ix. The\\ntext of the provision is as follows If at any time hereafter any\\nspecific and particular amendment or amendments to the Constitution\\nbe proposed in the General Court, and agreed to by a majority of the\\nsenators and two-thirds of the members of the house of representa-\\ntives present and voting thereon, such proposed amendment or amend-", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0163.jp2"}, "164": {"fulltext": "145 THE REFERENDUM IN AMERICA\\nThe New York Convention which met at about the same\\ntime, in 1821, incorporated in the Constitution which it\\nframed, a similar provision for the amendment of the instru-\\nment. There was here once more a sHght variation in re-\\nspect of terms and forms, but the referendum was again\\nmade to follow the vote of two successive legislatures. A\\nsimple majority vote of both houses of the first legislature\\nsufficed, while a two-thirds majority vote in both houses was\\nnecessary on the second passage, in order to bring the sub-\\nject to the people.^^\\nIn the meantime, about a year after the Connecticut plan\\nof amendment was adopted, Alabama being admitted in 18 19\\nto the Union of States brought with her a Constitution con-\\ntaining a provision for its own alteration of still a different\\nkind. It was a modification of the Maryland scheme of 1776,\\nwith a plebiscite introduced after the proposal came from the\\nments shall be entered on the journals of the two houses with the yeas\\nand nays taken thereon, and referred to the General Court then next\\nto be chosen, and shall be published and if in the General Court\\nthen next chosen, as aforesaid, such proposed amendment or amend-\\nments shall be agreed to by a majority of the senators, and two-thirds\\nof the members of the house of representatives present and voting\\nthereon, then it shall be the duty of the General Court to submit such\\nproposed amendment or amendments to the people, and if they shall\\nbe approved and ratified by a majority of the qualified voters voting\\nthereon at meetings legally warned and holden for that purpose, they\\nshall become part of the Constitution of this Commonwealth.\\n^^Constitution of 1821, art. viii, sec. i. This provision was as follows:\\nAny amendment or amendments to this Constitution may be proposed\\nin the Senate or Assembly, and if the same shall be agreed to by a\\nmajority of the members elected to each of the two houses^ such pro-\\nposed amendment or amendments shall be entered on their journals,\\nwith the yeas and nays taken thereon, and referred to the legislature\\nthen next to be chosen and shall be published for three months pre-\\nvious to the time of making such choice and if in the legislature next\\nchosen, as aforesaid, such proposed amendment or amendments shall be\\nagreed to by two-thirds of all the members elected to each house, then\\nit shall be the duty of the legislature to submit such proposed amend-\\nment or amendments to the people, in such manner and at such time\\nas the legislature shall prescribe and if the people shall approve and\\nratify such amendment or amendments by a majority of the electors\\nqualified to vote for members of the legislature, voting thereon, such\\namendment or amendments shall become part of the Constitution.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0164.jp2"}, "165": {"fulltext": "AMENDMENT BY THE LEGISLATIVE METHOD i49\\nlegislature the first time, and before it was submitted to that\\nbody for final confirmation.^^\\nMaine, forging ahead of the parent State, Massachusetts,\\nfrom which she had just voted to separate, in order to or-\\nganize an independent government adopted in her Consti-\\ntution, framed in 1819, a scheme of amendment by legisla-\\ntive means, which in breaking the way to a future type, is\\nentitled to rank with the rather famous Connecticut plan.\\nMaine, before Massachusetts and New York had yet gath-\\nered their delegates together to discuss the question, had\\nswung over to one legislature instead of two, simplifying the\\nwhole process. A two-thirds vote of both houses of the\\nlegislature was required to pass the proposal but everything\\nelse was left to the people, a simple majority of the qualified\\nvoters who chose to express an opinion on the subject being\\ncompetent to declare the popular will. This section of the\\nConstitution of Maine, still in force in that State, is as\\nfollows\\nThe legislature whenever two-thirds of both houses shall\\ndeem it necessary, may propose amendments to this Constitu-\\ntion, and when any amendment shall be so agreed upon, a\\nresolution shall be passed and sent to the selectmen of the\\nseveral towns, and the assessors of the several plantations,\\nempowering and directing them to notify the inhabitants\\nof their respective towns and plantations, in the manner\\nprescribed by law, at their next annual meetings in the month\\nof September, to give in their votes on the question, whether\\nsuch amendment shall be made and if it shall appear that a\\nmajority of the inhabitants voting on the question are in\\nfavor of such amendment, it shall become a part of this Con-\\nstitution.\\nIt was the example of such States as Massachusetts and\\nNew York that turned the balance in favor of the legislative\\nmode of amendment in general, and of the system embodying\\n^^Constitution of 1819, final paragraph preceding the Schedule\\nArt. X, sec. 2, of the Amended Constitution, and article x, sec. 4, of\\nthe original Constitution.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0165.jp2"}, "166": {"fulltext": "I50 THE REFERENDUM IN AMERICA\\nthe referendum in particular. After these great States had\\nspoken, the development was rapid and natural until we have\\ncome to the point to-day, when there is not a State Consti-\\ntution among all our forty-five, except New Hampshire s,\\nwhich does not contain some kind of a provision respecting\\nits own amendment through legislative initiative, and with\\nbut one exception, Delaware, there is a later reference of the\\nsubject to the people.^^ Delaware by her Constitution of\\n1 83 1, long enjoyed the reputation of being the only State in\\nthe Union which amended her fundamental law without di-\\nrectly consulting the people on the different points involved,\\nand she has chosen to hold to this feature of her policy, since\\nby her new Constitution of 1897, there is still no referendum\\non amendments, the legislature changing the instrument\\nfrom time to time, practically by the same process invented\\nby the Maryland Convention of 1776/\u00c2\u00ae\\nIn all the States amending their constitutions by legislature\\nad referendum, that is, in forty-three Commonwealths, the\\npeople are the final arbiters, except in a single instance. This\\ntime it is South Carolina that occupies the isolated place,\\nclinging, even in her new Constitution of 1895, to the old\\nSouthern system introduced into Alabama in 1819, of bring-\\ning the people in, not as the last ratifier, but as a mere adviser\\nafter the amendment has once passed the legislature, and\\nbefore it has yet gone to that body a second time. In such a\\nThe provision relating to this subject in Delaware is as follows:\\nAny amendment or amendments to this Constitution may be proposed\\nin the senate or house of representatives, and if the same shall be\\nagreed to by two-thirds of all the members elected to each house, such\\nproposed amendment or amendments shall be entered on their jour-\\nnals, with the yeas and nays taken thereon, and the secretary of state\\nshall cause such proposed amendment or amendments to be published\\nthree months before the next general election in at least three news-\\npapers in each county in which such newspapers shall be published, and\\nif in the General Assembly next after the said election, such proposed\\namendment or amendments shall upon a yea and nay vote be agreed\\nto by two-thirds of all the members elected to each house, the same\\nshall thereupon become part of this Constitution. Constitution of 1897^\\nart. xvi, sec. i.\\nCf. Constitution of Maryland, 1776, art. lix.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0166.jp2"}, "167": {"fulltext": "AMENDMENT BY THE LEGISLATIVE METHOD 151\\ncase, the people are clearly not the enacting power at all;\\nthat power still rests with the legislature, which asks for an\\nexpression of public opinion, and then heeds the popular\\ninstruction or not, as fits its own mood.^\\nIn the forty-two States remaining, some interesting ten-\\ndencies are to be observed and noted. In twenty-seven\\nStates it has now come about that it is sufficient if the amend-\\nments pass a single legislature before they are voted on by the\\npeople. This is following the example of Maine, in 18 19,\\nand in this class are included all the new States of the West\\nexcept North Dakota; i. e., Utah, Idaho, Montana, Wyo-\\nming, Washington and South Dakota. There are, there-\\nfore, only fifteen States remaining, in which amendments\\nmust by varying majorities twice pass the legislature, prior\\nto their submission to popular vote.\\nOf the first class of twenty-seven States, seventeen require\\nthat any proposed amendment shall pass the legislature by a\\ntwo-thirds vote. These are Alabama, California, Colorado,\\nGeorgia, Idaho, Illinois, Kansas, Louisiana, Maine, Michi-\\ngan, Mississippi, Montana, Texas, Utah, Washington, West\\nVirginia and Wyoming. Here again there is room for dif-\\nference as to the meaning of the two-thirds vote. In most\\nof the States it is clearly stated that this shall be two-thirds\\nof all the members elected to each of the two houses In\\nothers the phraseology is two-thirds of all the members\\nof each of the two houses while in a few, as Alabama,\\nMaine and Mississippi, it is simply two-thirds of each\\nhouse which seems to mean two-thirds of those members\\npresent and votmg on the subject, a very different matter.\\nFour States, Arkansas, Minnesota, Missouri and South Da-\\nkota, by their present Constitutions, find passage by a simple\\nmajority instead of a two-thirds vote sufficient. Here again,\\nthe rule is a majority of the members elected to each of the\\ntwo houses though in Minnesota the Constitution calls for\\na majority of both houses of the legislature In six\\nStates, Florida, Kentucky, Maryland, Nebraska, North Caro-\\nSee Constitution of South Carolina of 1895, art. xvi, sec. i.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0167.jp2"}, "168": {"fulltext": "152 THE REFERENDUM IN AMERICA\\nlina and Ohio, a three-fifths vote of the legislature is neces-\\nsary to refer amendments to popular vote. Once more there\\nis ambiguity in North Carolina, where the Constitution\\nspeaks loosely of three-fifths of each house of the General\\nAssembly\\nOf the second general class, comprising fifteen States, in\\nwhich proposed amendments must pass two legislatures be-\\nfore going to the people, the greater number of those still\\nadhering to this system, or eleven,\u00e2\u0080\u0094 Indiana, Iowa, Nevada,\\nNew. Jersey, New York, North Dakota, Oregon, Pennsyl-\\nvania, Rhode Island, Virginia and Wisconsin, find that a\\nmajority vote at each passage satisfies every requirement.\\nThe very fact of a repetition of the vote being required, is\\nregarded as a sufficient check upon a possible disposition on\\nthe legislature s part to tinker with the Constitution. In\\nall these States, the Constitutions uniformly provide that the\\npassage shall be by a majority of all the members elected to\\nthe two houses.\\nThe remaining four States in this general class do not ad-\\nmit of any grouping. Connecticut retains the same process\\nshe led oE with in 1818; namely, a vote of a majority of\\nthe house of representatives of one legislature, and the ap-\\nproval of two-thirds of each house in the next General\\nAssembly.^^ Massachusetts, clinging to the method which\\nshe introduced in 1821, requires that propositions for amend-\\nment must have received a vote of a majority of the sen-\\nators, and two-thirds of the members of the house of repre-\\nsentatives present and voting thereon in two successive\\nlegislatures.^^ Vermont, in 1870, by an amendment to her\\nold Constitution, by which the system of septennial meetings\\nof the so-called Council of Censors was abolished, brought\\ninto our practice another anachronism. There amendments\\nprior to their reference to the people must be approved in the\\nsenate by a vote of two-thirds of its members and be\\nconcurred in by a majority of the members of the house of\\nArticle xi.\\nArticle ix of the Amendments.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0168.jp2"}, "169": {"fulltext": "AMENDMENT BY THE LEGISLATIVE METHOD 153\\nrepresentatives of one legislature, being then confirmed by\\na majority of the representatives of the next following Gen-\\neral Assembly Moreover, as if to adhere to a tradition\\nin the matter of a periodic system, the legislature in Vermont\\nmay only propose amendments at specified intervals of ten\\nyears, in 1880, 1890, 1900, etc.^*^ Finally Tennessee, reaffirm-\\ning in her present Constitution, which dates from 1870, an\\nold rule, introduced in the practice of that State in 1834,\\nprovides for a vote of a majority of all the members elected\\nto each of the two houses of one legislature, and a concur-\\nring vote of two-thirds of all the members elected to each\\nhouse of the next General Assembly.^^\\nAs for the referendum itself in the forty-two, or forty-three\\nStates, if we include South Carolina, in the greater number\\nof cases a simple majority of the qualified electors voting on\\nthe amendment suffices for ratification, but there are varia-\\ntions in the language of the Constitutions, which have led to\\ngreat confusion. Judicial opinions have been called out on\\nthe subject, but these themselves are conflicting, and the\\nprocedure is so diverse that it is scarcely possible to make\\na classification. Mr. Bryce gave up the task in despair, and\\nother students of the subject will be disposed, too, to think\\nit a labor quite out of proportion to the return. A ma-\\njority in a certain context, may mean a majority of all\\nthose who are qualified to vote, including the stay-at-\\nhomes Again it may mean a majority of all those voting\\nfor certain classes of officers or representatives or magis-\\ntrates, such as members of the State legislature, and again a\\nmajority of those voting on the specific proposition or\\namendment. There is often a wide difference in these totals,\\nsince in the American experience it has been found that\\ngreater popular interest is felt and expressed in the success or\\ndefeat of individual candidates, than of laws and measures.\\nThere is one notable exception in the case of Rhode Island,\\nwhere a majority in none of its forms prevails since\\nArticle xxv of the Amendments.\\nArticle xi, sec. 3.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0169.jp2"}, "170": {"fulltext": "T54 THE REFERENDUM IN AMERICA\\npropositions for the amendment of the Constitution must\\nreceive the approving vote of three-fifths of the electors\\nof the State present and voting thereon\\nHaving finished this rather tedious recital as to the actual\\nprovisions on the pointy some important tendencies may be\\nnoted. In the first place, we have been making it easier all\\nthe while, to change our State constitutions. To begin with\\nwe took the function of constitutional law-making out of the\\nhands of the legislatures, and gave it over to conventions\\nspecifically assigned to the task. We gradually perceived\\nthat as the States grew and conditions changed, it was es-\\nsential to introduce some simpler process of amendment than\\nby calling together a new convention every time any change\\nin the constitution, however slight, might be adjudged to be\\nneedful. Still entertaining that distrust of the legislature as\\na constitutional law-giver, which had been characteristic of\\nAmericans from the time they severed their political rela-\\ntions with England, we in 1818 in Connecticut brought in\\nthe people themselves as a brake upon the legislature in the\\nexercise of the amending power, and from that time onward\\nthe legislative mode of amendment with respect to specific\\nand particular amendments rapidly spread throughout the\\nUnited States. Still earlier we had taken the people into\\nour confidence as direct participants in the enactment of\\nconstitutional law, inasmuch as conventions in some States\\nwere called only after a favorable vote in a plebiscite whole\\nconstitutions in some States were submitted to the citizens\\nat large, and specific amendments passed by conventions\\nwere referred to the people, as they were now also to be re-\\nferred to the people when proposed by the legislatures. At\\nfirst there were other checks upon the legislature in the ex-\\nercise of the constituent power, which are gradually tending\\nto vanish away. It was usual at an earlier time for the con-\\nstitution to require that a proposition for amendment should\\ntwice pass the legislature before being sent to the referen-\\ndum. Although Maine started out on another track in\\nArticle xiii.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0170.jp2"}, "171": {"fulltext": "AMENDMENT BY THE LEGISLATIVE METHOD 15^\\n1819, she stood alone in her provision that passage a single\\ntime would suffice, until joined by Michigan in 1850, and\\nOhio in 1851. To-day there are twenty-seven States which\\nemploy this simpler process, several, indeed, satisfying them-\\nselves if the proposal for amendment shall be passed by a\\nsimple majority of the m.embers elected to the legis-\\nlature, rather than by a two-thirds or a three-fifths majority\\nvote. Furthermore, while it was not unusual some years ago\\nfor the constitutions to specify that an amendment should be\\napproved by a larger number of electors than a majority of\\nthose voting on the subject, which would again have the\\neffect of making constitutional change more difficult, there\\nhas been a tendency in later years toward a liberalization of\\nour standards in reference to this point also. There is a ten-\\ndency at work to establish the rule that one person over a\\nhalf of those voting on a proposition, may determine the\\npopular will. A majority of those who present themselves\\nto vote on a subject, define the policy of the State, and speak\\nthrough it not only for the minority, but for that vast num-\\nber of men who are so negligent as to political duty, and who\\nfeel so little personal interest in public questions, that they\\nremain away from the pollings altogether, and say neither\\nyea nor nay. Democracy, doubtless, is powerless to suggest\\nany other reasonable plan.\\nIt must be noted, too, that our conceptions of constitu-\\ntional law have all the while been enlarging. Distrust for\\nrepresentatives, particularly those chosen to our legislatures,\\nhas increased. The conventions have absorbed important\\npowers in the matter of constitution making, inasmuch as\\nsubjects are handled thus now, which earlier would not have\\nhad a place in the constitutions at all. Statute law disguised\\nas constitutional law, is put in these comprehensive State\\ncodes, to be kept safe away from the discredited legislature.\\nNevertheless we have been manifesting no distrust of our\\nlegislatures, acting in their capacity as makers of the fun-\\ndamental law, but have been strengthening their hand in\\nthis particular. Faith has been put in the referendum as a", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0171.jp2"}, "172": {"fulltext": "156 THE REFERENDUM IN AMERICA\\npower to deliver us from evils arising from the legislature\\nthrough this source. To-day it is more essential than it ever\\nwas before that the constitution should be easily and quickly\\nchanged, since a constitution which is full of details con-\\ncerning nearly every small topic of legislation, must not be\\nbound about by hard and fast barriers, upon which impress\\ncan be made only with great difficulty. It is almost impos-\\nsible, except when public opinion is wrought up in some ex-\\ntraordinary manner to change the Constitution of the Fed-\\neral Union. Most of us will agree that it is a very fortunate\\nsafeguard, a proud feature of our political system which we\\nshould hold fast to. Yet in our States political conditions\\nhave got to be so abnormal that we are probably compelled\\nto approve of a different tendency. Certainly if we look with\\nfavor upon the movement to restrict the power of the legis-\\nlatures, and enlarge the authority of the constitutional con-\\nventions, in order to stop the diabolism that has lately come\\nto flourish at the State capitals, we must have an easy means\\nof changing our codes of law again, if they need change,\\nwhich they must from time to time, as human conditions un-\\ndergo amendment. We have at hand no better agent than the\\nlegislature; there ought to be none higher or better among\\nthose peoples who are bred in the traditions of the British\\nConstitution, but we seem powerless to improve the char-\\nacter of our representatives, and therefore we authorize\\nthem to propose changes in the fundamental law, upon the\\none condition that they will submit them to the people.\\nThat the people are the legislators here to a degree that\\nthey are not when they vote upon constitutions submitted\\nin solido by conventions, there is abundant evidence to show.\\nIt is of diminishing importance to us whether the amend-\\nment is passed by the legislature one time or twice, or\\nwhether two-thirds of the members or only a majority of the\\nsame approve the measure. We look to the people to guard\\nthe constitution against unnecessary and improper change,\\nand if they permit such a change, even though their course\\nbe against the better judgment of certain elements in the", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0172.jp2"}, "173": {"fulltext": "AMENDMENT BY THE LEGISLATIVE METHOD i57\\nelectorate, we are disposed to accept the result philosoph-\\nically, with no thought of committing this important duty\\nto any other of the State s agents. The people in the case\\nof constitutional amendments, are in very truth their own\\nlaw makers, and they have made a record as legislators\\nwhich we must not judge with too much severity, when it\\nis remembered how necessary it is to have some method of\\nchanging the State constitutions, other than by convention,\\nand what singular untrustworthiness has lately been devel-\\noped in our representative legislatures.\\nNearly all the constitutions recognize the importance of\\nthe popular vote, when they require that if more amendments\\nthan one are submitted at the same election, they shall be\\nnumbered or otherwise designated, so that they may be\\nreadily distinguished by the voters, and may be accepted\\nor rejected separately. Yet, in some States, there is the lin-\\ngering suggestion of a tendency to hold the legislature\\nwithin bounds, in the reference of amendments to popular\\nvote. For instance, in Vermont there are only some certain\\nsessions of the legislature, once every ten years, in 1880,\\n1890, etc., when amendments to the Constitution may be\\nproposed to the people,-^ and in Tennessee such proposals\\nmay be made by the legislature not oftener than once in six\\nyears.-* In some States again, the legislature is restricted\\nin the number of amendments which it may submit at any\\none time in Arkansas three, in Kansas three, in Mon-\\ntana three and in Kentucky two. In other States a different\\nmethod is adopted, as for instance, in Colorado and Illinois,\\nwhere amendments to more than one article may not be pro-\\nposed at the same legislative session,-^ and Indiana, where\\nthe Assembly, having proposed one or more amendments,\\nmust wait until these are definitely disposed of by the people\\nArticle xxv, sec. i, of the Amendments to the Constitution.\\nArticle xi, sec. 3, of the Constitution.\\nThe Illinois legislature, latelj made an effort to extend its powers\\nin this respect by a constitutional amendment, but the latter was re-\\njected by the people to whom it was submitted in 1896.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0173.jp2"}, "174": {"fulltext": "158 THE REFERENDUM IN AMERICA\\nbefore it can propose any more. In a few States, too, there\\nare provisions which forbid the legislature from submitting\\nthe same amendment or amendments again when they have\\nbeen once rejected by the people, except after the lapse of a\\nspecified period, as for instance, five years. These pro-\\nvisions occur, however, in but a small minority of the\\nStates. In the larger number the legislature is given a free\\nhand to do what it will in this field. at the time that it will.^^\\nIt has now come about, therefore, that a very large\\namount of law reaches us in this manner. The constitutions\\nbeing themselves stuffed out with extraneous matter which\\nstrictly viewed is not constitutional law at all, the amend-\\nments, as might be expected, partake of the same character.\\nAs we have noted already, one reason why this power must\\nbe at the legislature s hand, is because of the radical change\\nwhich has come over our notions of constitutional law, for\\nsince the constitutions are filled with details, meant to serve\\ntemporary ends, they must be susceptible to some remodeling,\\nwhen the conditions which called them forth have passed\\naway again, and they stand out as obstacles in the pathway of\\na natural political development. This is one explanation of\\nthe tendency to much and frequent amendment of constitu-\\ntions through the legislative mode. Another is the timidity\\nand weakness of the State legislatures, which often knowing\\nnot what to do when public opinion, or that which they\\ntake to be such, demands the passage of this or the other law,\\nevade the whole issue by incorporating the subject in an\\namendment to the constitution, and submitting it to popular\\nvote. There are objections which tower up and look rather\\nWhen an amendment is submitted to popular vote, the ballots are\\nusually, For the Constitutional Amendment or Against the Con-\\nstitutional Amendment The proposition is as a rule summarized and\\nbriefly described by title, and when there are several amendments to\\nbe voted on at the same time, they are often separately numbered, as a\\nfarther means to distinction. In this case, by the Australian ballot\\nsystem, the vote is by yes or no, the elector s preference being indicated\\nby a cross mark in a space reserved for that purpose. In other cases\\nthe ftiU text of the proposed amendments is printed on the ballots.\\nVarious methods are in use in the different States.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0174.jp2"}, "175": {"fulltext": "AMENDMENT BY THE LEGISLATIVE METHOD i59\\ninsurmountable, in thus submitting an ordinary statute law,\\nas I shall show in a subsequent chapter of this work, but the\\nwhole matter is taken out of the reach of the courts, when\\nit is embodied in a constitutional amendment. If the peo-\\nple who are the source of power under our system of govern-\\nment the members of the legislature argue, are in favor\\nof this measure for which there seems to be a popular de-\\nmand, then let them vote for it at the polls. They can de-\\ncide for themselves whether they want it or not. If they\\ntry to hold us responsible at the next election, we will tell\\nthem that we did all that ought to be asked of us. We passed\\na law submitting the question to them, to do with it as they\\nliked. Thus laws to prohibit the manufacture and sale of\\nintoxicating liquors have been submitted in the States again\\nand again, by legislatures whose members have had no feel-\\ning of responsibility regarding their action. In a period of\\nten years, or from 1880 to 1890, some twenty States appear\\nto have had referenda on this subject. This was an era in\\nwhich the temperance sentiment was thought to be as-\\nsuming formidable political proportions, and the leaders of\\nthe parties and the various local bosses saw in the ref-\\nerendum an easy and respectable method of holding the sup-\\nport of elements which were threatening to break away\\nfrom the party. The movement reached its height in 1889,\\nwhen the people of no less than eight States voted on the\\nquestion, nearly all adversely.^^\\nOf this general character, too, are the propositions for\\ngranting suffrage to women, for although qualifications for\\nthose who are to exercise the franchise, are now quite com-\\nmonly a subject of constitutional treatment, and perhaps\\nvery rightly so, there is here again no intent behind the sub-\\nmission on the part of the submitting power, except to shift\\nthe responsibility from its own shoulders. In recent years\\nsuch amendments have been repeatedly referred to the peo-\\nple, and full suffrage has thus been conferred upon women\\nCf. Oberholtzer, The Referendum in America, Philada., 1893,\\n46-47.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0175.jp2"}, "176": {"fulltext": "i6o THE REFERENDUM IN AMERICA\\nin two States Colorado in 1893 and Idaho in 1896,^^ while\\nschool or municipal suffrage has been acquired by women in\\nthis way in several Commonwealths. The people of South\\nDakota in 1897, New Jersey in 1897, Kansas in 1894, Cal-\\nifornia in 1896, Washington in 1898, and several other\\nStates, have voted upon this question. In submitting such a\\nproposition, the legislature considers that it neither gives its\\nfavor nor withholds it. It assigns to itself indeed a place\\ninferior to that of a legislative committee, which when it\\nreports a subject, is usually able to add its endorsement to\\nit, and render some explanation of its action. This there\\nis no pretense of doing in the case of these prohibitory and\\nwoman suffrage amendments. The subjects are not de-\\nbated, and the votes of the members are recorded perfunc-\\ntorily without any one asking himself whether he desires\\nthat this bill shall become a law or not, or whether in his\\njudgment it is advisable or expedient that it should become\\na law.\\nOf a similar character is the famous lottery amendment in\\nLouisiana. This bill was passed by the legislature, and the\\nquestion was submitted to the people of granting a charter\\nto the so-called Louisiana Lottery which was to pay\\ninto the public treasury millions of dollars, in aid of the\\nlevees, schools, charities and the pension, drainage, and\\nother specific and general funds of the State. The legis-\\nlature feared to renew the public authorization of this im-\\nmense enterprise, which, in fact, the Constitution prohibited\\nbeyond the year 1895, and the friends of this great instru-\\nment of debauchery aimed to secure for it another term of\\nlife, by this specious amendment which was in the nature\\nof a bribe to the taxpayers. The people in 1892, when the\\nmatter was referred to them, promptly and to their great\\ncredit, rejected the insidious proposal.^\u00c2\u00ae\\nNevada, in 1889, held a referendum on a constitutional\\nWyoming and Utah have had woman suffrage ever since they\\nentered the Union, the former in i88q and the latter in 1895.\\nCf. McPherson s Handbook of Politics for 1890, pp. ^66-67.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0176.jp2"}, "177": {"fulltext": "AMENDMENT BY THE LEGISLATIVE METHOD i6i\\namendment, meant to put it in the power of the State legis-\\nlature to establish and incorporate a lottery, the proposal\\nhaving been defeated by the people, while New Jersey in\\n1897, when it was a question of prohibiting the legislature\\nfrom authorizing lottery enterprises, poolselling book-\\nmaking or gambling of any kind within the State, also voted\\non the side of virtue and good order, though the fate of the\\namendment for a time seemed in doubt, and the majority\\nagainst the iniquity was so small as to argue little in favor\\nof the people s ability rightly to decide a plain moral ques-\\ntion which is thus submitted to them en masse. The result\\nof the ballot was 70,443 for, and 69,642 against the amend-\\nment, the day having been saved, as it were, by accident.\\nSomewhat similar in character are amendments in certain\\nSouthern States to grant pensions to veterans of the Con-\\nfederate Army, the legislatures desiring by the submission\\nto free themselves from unpleasant consequences. Such an\\namendment was submitted to the people of Georgia in 1894,\\nLouisiana in 1896, and Texas in 1898.\\nNot only in the matter of prohibiting the manufacture and\\nsale of alcoholic beverages, but also in granting licenses for\\ntrafficking in liquors, as in Nebraska in 1890, and for in-\\ntroducing a socialistic system of State agencies or liquor\\ndispensaries, as in South Dakota in 1898, the legislature\\nescapes its just responsibility by calling for a popular vote.\\nSuch an appeal to the acclaim of the crowd as an amend-\\nment proposing to prohibit trusts, monopolies and com-\\nbinations in trade was made in South Dakota in 1896, and,\\nas if there could be two sides to such a question as the leas-\\ning out of State convicts to private companies, the people\\nof Louisiana were asked to express their views upon a con-\\nstitutional amendment in reference to this point. In Minne-\\nsota in 1896, there was a referendum on an amendment pro-\\nposing a tax on sleeping car and parlor car companies, and\\nin Missouri in the same year, the people were called upon to\\ndecide whether the minimum age of attendance among chil-\\ndren at the public schools could be properly reduced from", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0177.jp2"}, "178": {"fulltext": "i62 THE REFERENDUM IN AMERICA\\nsix to five years. The Minnesota legislature in 1888 sub-\\nmitted an amendment to prohibit under penalty, any move-\\nment to monopolize the markets for food products, or to\\ninterfere with or restrict the freedom of such markets\\nAn unusual instance of irresponsibility on the part of\\nlegislatures in submitting questions to popular vote, is met\\nwith in California in 1893, when it is related that late one\\nnight a member in a moment of pique at something which\\nhad been said in a Sacramento newspaper regarding the\\nbody to which he belonged, got through an amendment to\\nmove the State capital to San Jose, a rival city two hundred\\nmiles distant. The legislature took this means, it is said, of\\navenging itself on some ill-humored critics who were re-\\njoicing in print that it was nearly time for the body to ad-\\njourn, and for the members to return to their homes.\\nA proposal to change a well-founded rule of our consti-\\ntutional system, wrung at great cost from their kings and\\ngovernors by our Anglo-Saxon ancestors, and now holding\\na place in nearly all our Bills of Rights, is also occasionally\\nmade a subject for popular vote. This is, namely, a proposi-\\ntion to permit less than the whole number of jurors, as for\\ninstance five-sixths, to render a verdict. Such an amend-\\nment, full of historical interest for the student of legal in-\\nstitutions, was referred to the people of Nebraska in 1896,\\nand although defeated there, has actually secured a foothold\\nin some of the Western Commonwealths. Minnesota\\nadopted such an amendment in 1890. In 1897 the people\\nof Maryland voted on and rejected an amendment, plainly\\nin the interest of good government, to make appointments\\nin the civil service of the State in the municipalities and\\ncounties of the State, according to merit and fitness to be\\nascertained as far as practicable by examination Under\\nno possible circumstance should the legislature have been in\\ndoubt regarding this subject, and there was nothing to pre-\\nFor this amendment see Statutes of California for 1893, p. 657. It\\nwas declared to be void by the Supreme Cpurt gf the State, Livermore\\nV. Waite, 102 Cal., p. 113", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0178.jp2"}, "179": {"fulltext": "AMENDMENT BY THE LEGISLATIVE METHOD 163\\nvent its definitive action by the passage of a statute, which\\nwould have taken immeaiate effect without a referendum.\\nConcerning the actual quantity of this kind of legislation\\nreferred to the people each year, some authoritative statis-\\ntics will be of interest, and these are fortunately at hand\\nin the annual compilations of the New York State Library.\\nIn the volume for 1895, record is found of thirty-seven\\namendments which were submitted to the people in fifteen\\ndifferent States. Nearly all of these were voted on at elec-\\ntions held in the year 1894, and fifteen out of the thirty-\\nseven were rejected by the people, while twenty- two w^ere\\napproved. Classifying these amendments in a general way\\nby subjects, it appears that thirteen related to taxation and\\ndebt, either in the States or in local communities, eight to\\nlocal and municipal government, five to suffrage qualifica-\\ntions, four to the Governor and other State officers excluding\\nthe members of the legislature, six to the legislature, three\\nto schools and education, three to the judiciary, two to\\nwoman suffrage, while one proposed the removal of a State\\ncapital, one the exclusion of aliens from holding real estate,\\none a granting of aid to soldiers homes and one the pay-\\nmerit of pensions to Confederate veterans. In 1896 the\\nsame authority gives us a list of sixty-two amendments\\nthat were submitted to the people in that year, of which\\ntwenty- four were approved and thirty-eight rejected. Of\\nthese again, fourteen related to suffrage and elections, twelve\\nto the judiciary and the courts, eleven to tax and debt sub-\\njects, eight to local and municipal government, eight to edu-\\ncation, four to legislative procedure, four to the Governor and\\nthe executive department of the government, two to cor-\\nporations, one to prohibition, one to Confederate pensions,\\ntwo to penal and correctional subjects, one to the removal\\nof a State capital, one to the lease of State forest reserve\\nlands and one proposing compensation for damage to pri-\\nvate property.^^ In 1897, however, according to this record,\\nNew York State Library s Legislative Bulletin for 1895.\\n^^Ibid., for 1896.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0179.jp2"}, "180": {"fulltext": "1 64 THE REFERENDUM IN AMERICA\\nonly eleven amendments were submitted to the people, four\\nof which were approved and seven rejected,^^ while in 1898\\nthere was again a large number of such propositions referred\\nto popular vote, including seven in California, four in Minne-\\nsota, and three in South Dakota. For an earlier period, Mc-\\nPherson s biennial report in 1888 gives us forty amend-\\nments for the two preceding years, covered by the compila-\\ntion, of which twenty-seven were rejected and thirteen were\\napproved.^* In 1890 there are again forty amendments re-\\nported, of which eighteen were adopted and twenty-two re-\\njected,^ while in 1892, when this record unfortunately\\ncloses, there are thirty-six amendments in the compiler s list,\\nof which twenty-three were adopted and thirteen rejected.^\u00c2\u00ae\\nOne fact claims our attention on the threshold oi a further\\ntreatment of this subject, and that is with respect to the time\\nof submission. The different States are tending toward uni-\\nformity on this point, selecting the even-numbered years, or\\nthe years when the general elections occur, i. e., the elec-\\ntions for Governors, general State officers and Congressmen.\\nIn all but three of the States, Congressmen are now chosen\\non the same day, namely, the first Tuesday after the first\\nMonday in the November of every second year. There are\\nlocal elections at other times, and it is still not unusual for\\namendments to be submitted to the people at special elec-\\ntions, at which no other issues are at hand to divert the in-\\nterest or attention of the electors. Thus the three amend-\\nments referred to popular vote in September, 1897, in New\\nJersey, were submitted at a special election, as were two\\namendments in Pennsylvania in June, 1889, including one to\\nprohibit the liquor traffic, three in Texas in August, 1897,\\nfourteen in Nevada in February, 1889, to name but a few of\\nmany instances that might be given. The constitutions often\\ncontain a definite command that amendments shall only be\\nsubmitted at general elections, and when this is not the case,\\nthe legislature acting on its own authority, usually selects\\nBulletin for 1897. hicPh tson i Handbook of Politics ior 1888.\\n^Ihid., for 1890. Ihid., for 1892.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0180.jp2"}, "181": {"fulltext": "AA-IENDMENT BY THE LEGISLATIVE METHOD 165\\nthis time as most suitable for taking the popular vote. On\\nthe other hand, there are constitutions which positively re-\\nquire that all amendments shall be submitted at special elec-\\ntions, as in New Jersey, by the Constitution of 1844. ^^at\\nState when an amendment is proposed, it must be approved\\nby the people at a special election to be held for that pur-\\npose only\\nThere is a general realization of the fact that it is much\\nmore expensive to the State specially to open and equip the\\npolls for an amendment election. Separate ballots must be\\nprinted, and the entire machinery necessary for the conduct\\nof elections must be set up just as if a Governor, Congress-\\nmen, members of legislature, and an entire list of officers\\nwere to be chosen. It is now considered better to vote upon\\nall these subjects on the same day, to print the amendments\\non one end of the large ballot sheets, since the Australian sys-\\ntem has come into use, and to ask for the voter s yea and nay,\\non propositions at the same time he is choosing from among\\npersons. Again, it has been shown clearly and conclusively\\nby experience, that while it is difficult enough to induce\\nvoters to express themselves with respect to laws and prop-\\nositions at general elections, it is yet harder to get them to\\ntake any interest in such a subject at special elections. There\\nis no topic in our practice, so far as it has gone, which calls\\nforth more popular interest, perhaps, than the prohibition of\\nthe manufacture and sale of liquor. A large industry is here\\nattacked on the one side, and a personal right to gratify\\nstrong tastes and desires is put in jeopardy, while on the\\nother side is the ever active group of teetotalers and prohi-\\nbitionists. These factors inherent to a democracy are to be\\nreckoned with in any case, quite independent of whatever\\nsentiment there may be which is opposed to, or in favor of a\\npolitical philosophy justifying drastic State regulation of\\nsuch a subject, and which would be expected to have some\\nforce with those who are entrusted with the duty of making\\nthe State s laws.\\n3^ Art. ix.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0181.jp2"}, "182": {"fulltext": "1 66 THE REFERENDUM IN AMERICA\\nIn 1889 when two amendments were submitted to the\\npeople of Pennsylvania at a special election^ one on prohibi-\\ntion, the other on a suffrage question, the total vote cast\\nwas 781,261 and 603,694, respectively. Therefore, when\\nthere was nothing else to be voted on but these two propo-\\nsitions, upwards of 175,000 persons were interested in the\\none question who would not put themselves to the trouble\\nto vote upon the other. The total vote of the State at the\\nPresidential election of 1888, was about 1,000,000, and for\\nGovernor in 1890, over 900,000, In Connecticut in 1889, the\\ntotal vote on a prohibition amendment which was submitted\\nsingly and separately unaccompanied by any other proposi-\\ntion, was 72,353, as compared with a vote in the State for\\nPresident in 1888 of 153,978. In New Hampshire in 1889,\\nand Texas in 1887, when prohibition amendments were sub-\\nmitted, together with several other propositions, those upon\\nthe prohibition subject received the votes of many thousands\\nof persons who seemed to have no interest in the other mat-\\nters referred to them. In the latter State, for instance, the\\nprohibition amendment polled 349.897, nearly the full vote,\\nwhile no one of the other five amendments submitted at the\\nsame election secured more than 235,000 votes. In New\\nJersey in 1890, when two amendments were submitted to the\\npeople at a special election, the vote was 62,378 and 62,367\\nrespectively, against 303,741 votes for President in 1888,\\nand in the referendum on the three amendments in 1897,\\nthe vote was 140,018, 140.085 and 140,191 respectively, as\\ncompared with a total vote of 371,014 for President in 1896.\\nOn the other hand, it is argued by some who seem how-\\never to have the weight of our tendencies against them, that\\nat special elections there is a much better opportunity to se-\\ncure an unbiased expression of public opinion, since parties\\nthen are not at a white heat, and men are not absorbed in\\nquestions having to do with the success of particular candi-\\ndates. Indeed the prohibitionists were earlier clear in their\\nThese figures are from McPherson s Handbook, and the World Al-\\nmanacs.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0182.jp2"}, "183": {"fulltext": "AMENDMENT BY THE LEGISLATIVE METHOD 167\\ndemands that their amendments should be submitted at\\nspecial elections, though, other things being equal, as a\\nmeans of securing the largest possible number of votes upon\\na proposition, there is little in our recent experience to rec-\\nommend such a policy.\\nAt some recent general elections, when amendments have\\nbeen submitted to the people, instructive comparisons may\\nbe made to show how many voters there are who, through\\nignorance, or indisposition to perform their duties as citi-\\nzens of a democracy, will omit expressing themselves on\\neither side in a referendum. Of six amendments adopted\\nin Minnesota in 1896 when the total vote varied from\\n158,027, on an amendment which related to taking private\\nproperty for public use, to 206,616 on an amendment to tax\\nsleeping car, telegraph, express and other companies, there\\nwas a vote for President at the same election of 341,644.\\nAn amendment in Minnesota, in 1894, levying a tax on in-\\nheritances, secured a total vote of 149,574, when the whole\\nvote for Governor at the same election in the same State,\\nwas 296,337. Two amendments which were submitted to\\npopular vote in Kansas in 1890, polled 192,504 and 188,237\\nvotes respectively, as against 294,584 for Governor at the\\nsame election. Even in Massachusetts, our leading State of\\nNew England, where it is often thought that men look upon\\ncitizenship more seriously, two amendments in 1890 received\\nonly 141,863 and 127,130 votes respectively, while 285,515\\nvotes were cast for Governor, and in 1891 when two amend-\\nments were again referred to the people, 182,278 and 198,485\\nvotes were recorded on the propositions as compared with a\\ntotal vote of 320,237 for Governor. In Colorado, in 1892,\\ntwo amendments in reference to taxation were submitted to\\npopular vote. They drew forth 26,054 and 24,173 votes re-\\nspectively, with a total vote of 93,843 in the State for Presi-\\ndent at the same election. Three amendments in 1894 in\\nColorado received about 75,000 votes each, out of a total of\\n176,966 cast for State officers. At the general election in\\nGeneral Laws of Minnesota of 1897, pp. iii to ix.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0183.jp2"}, "184": {"fulltext": "1 68 THE REFERENDUM IN AMERICA\\nCalifornia in 1898, seven amendments polled the following\\nnumbers of votes: 144,615, 149,849, 144,927, 137,971, 146-\\n008, 142,438, and 144,464, respectively. A proposition to\\ncall a constitutional convention polled only 107,563 votes.\\nThe vote for Governor at the same election was 287,064.\\nIn South Dakota in 1898, three amendments received 40,299,\\n42,681 and 42,727 votes respectively, against 74,276 cast for\\nGovernor.\\nThree amendment elections recently held in Texas are in-\\nstructive. At a special election, August 3, 1897, three\\namendments, one permitting the formation of irrigation dis-\\ntricts in West Texas, the second authorizing certain counties\\nto give aid in the construction of railways, the third validat-\\ning bonds held by the State as an investment for the per-\\nmanent school fund, attracted only about 75,000 electors to\\nthe polls. Another special election on an amendment was\\nheld on November i, 1898. The legislature had intended\\nto make this submission at the regular general election, but\\nby an oversight, the resolution declared that the election\\nshould be held on the first Tuesday in November, instead of\\nthe first Tuesday after the first Monday in the month. This\\nwas an amendment to authorize the payment of pensions to\\nConfederate soldiers, and the total vote cast was about iio,-\\n000. An amendment to increase the salaries of members of\\nthe State legislature, submitted a week later at the general\\nelection, received a total vote of 291,022.*^ The vote for\\nGovernor on the same day was 409,554.*^\\nWe are thus led to the odd conclusion that while, as is\\ngenerally understood, there is a considerable body of men\\nin the electorate not valuing the franchise sufficiently to ex-\\nercise it on any occasion, even in the elections for President\\nof the United States, a contest in which the most interest is\\nalways aroused, there is but a fraction equal to about a half\\nof all those who know their own minds respecting candi-\\ndates who seem to care anything about measures. When the\\nThere were only 35,901 votes for this amendment and 255,121 votes\\nagainst it. Biennial Report of the Secretary of State of Texas, J898,", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0184.jp2"}, "185": {"fulltext": "AMENDMENT BY THE LEGISLATIVE METHOD 169\\nelections are held on special dates, that is, separate from the\\nelections of men who are to represent the people in legis-\\nlatures and in executive positions, it is impossible to get out\\neven half the vote, unless it be on a proposition to deprive a\\ncitizen of his beer and gin. Even a proposal to enfranchise\\nan entire new half of the race, and to double the electorate,\\nor to ally the State openly with lottery men and gamblers,\\nwill awaken from their lethargy a relatively small number\\nof those who come out from their homes and places of work\\nand business, to help a Republican or Democratic candidate\\ninto the White House\\nIn general elections when the electors are at the polls any-\\nhow, and are voting for President, or Governor, or Con-\\ngressmen, they might, it would seem, without too much\\ntrouble to themselves, vote at the same time for or against a\\nproposition that may perhaps be referred to them. Here,\\ntoo, there is so much unconcern as to the result, that even\\nwhen the amendment, or other project, is printed on the\\nsame ballot with the names of the officers to be voted for,\\nonly about five persons out of every ten will indicate what\\ntheir wishes are on the point. When several proposals are\\nsubmitted, if there is any way left open to the voter by which\\nhe in his illiteracy and carelessness can shirk his duty, he\\nwill do so, and many thousands of men who say yea or nay\\nto one or two of the amendments, will often ignore the others\\naltogether.\\nIt is a strange result which has often been remarked upon,\\nnot only with us, but in Switzerland also, that when several\\npropositions are voted on at the same time, they will all be\\ntreated alike, that is, approved in bulk, or rejected in the\\nsame way. The experience in Minnesota in 1898, when four\\namendments were submitted to the people, is more or less\\nthat of the entire country when it appeared, to quote the\\nrather picturesque language of a Western newspaper, that\\nmost of the voters either let the whole batch slide, or voted\\nfor all four We have the case, too, of Texas in August,\\nAU four were adopted.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0185.jp2"}, "186": {"fulltext": "170 THE REFERENDUM IN AMERICA\\n1887, to which allusion was earlier made, when six separate\\namendments were referred to the people, one among them\\nbeing a proposition to prohibit the manufacture, sale or\\ntrade in intoxicating liquors. All together were carried\\ndown with the prohibitory law, against which there was a\\nvery large majority. Perhaps the other five, or four\\nof them at least, would have been quite to the people s mind\\nunder other circumstances. In Pennsylvania in 1889, wdien\\ntwo amendments were submitted, one to prohibit the liquor\\ntraffic and the other to make some harmless and apparently\\nbeneficial change in the conditions regulating the exercise\\nof the suffrage, both were voted down by very large ma-\\njorities. In Louisiana in 1896, when the legislature at-\\ntempted to amend the Constitution of that State, by the\\nmethod afterward adopted by the Convention of 1898, prac-\\ntically disfranchising the negroes, the people rejected not\\nonly this one amendment affecting the suffrage, but some\\ntwenty others as well, without reason or discrimination, and\\nin Nebraska in 1896, the people disposed of ten amend-\\nments in the same thorough fashion. In this case the con-\\ncrete thing at which they were trying to vent their dis-\\ngust was a proposition of the legislature, that it should it-\\nself fix the rates of salaries of the various executive officers\\nof the State, and otherwise enlarge its own powers. The\\nhonorarium of these officials hitherto had been definitely lim-\\nited by the Constitution. In 1898 in California, when seven\\namendments and a proposition to call a convention v/ere sub-\\nmitted to popular vote, only one amendment, and that a very\\nimportant measure in reference to the executive department,\\nwas saved from the general debacle. The opposition in this\\ncase seemed to center about a proposal which the legislature\\nhad made to extend the length of its sessions, and to increase\\nthe salaries of its members.\\nIn some instances, this tendency produces quite a con-\\ntrary result. Thus a measure having popularity with the\\nelectors, will sometimes exert an influence to help through a\\nproposition to the passage of which the people are indififer-", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0186.jp2"}, "187": {"fulltext": "AMENDMENT BY THE LEGISLATIVE METHOD 171\\nent, or perhaps really hostile. In South Dakota in 1896,\\nwhen a proposal was made to repeal a prohibition clause\\nwhich had earlier been inserted in the Constitution of the\\nState, three other amendments were carried along, which,\\nthough of rather a colorless character, might not have fared\\nso well had it been a question of enacting rather than re-\\nscinding the prohibitory liquor law. Some such influence\\nwould seem to have been at work, too, in Minnesota, in 1896,\\nwhen it was proposed to tax the property of sleeping, draw-\\ning room and parlor car companies, telegraph and telephone\\ncompanies, express companies, and insurance companies do-\\ning business within the State. The people were so much\\nelated with the idea of getting a revenue out of these cor-\\nporations, which earlier had seemed to be escaping the tax\\ngatherer, that five other propositions were approved at the\\nsame election, thougn by much smaller majorities.\\nNevertheless, it would convey an erroneous impression\\nwere we to leave the subject without calling attention to the\\nmany cases in which the people can say yes and no at the\\nsame breath and really with a knowledge, it would appear,\\nof what those words mean. In November, 1898, three\\namendments were referred to popular vote in South Dakota,\\nall of first rate importance, one to introduce into the State s\\npolitical system the Swiss referendum and initiative (23,816\\nfor, and 16,483 against), another to confer suffrage upon\\nwomen (19,689 for, and 22,983 against), a third to introduce\\na dispensary system by which the State would take charge of\\nthe liquor business (22,170 for and 20,557 against). The\\nreturns show therefore that the people accepted two of the\\namendments, but rejected that one in reference to woman\\nsuffffrage. Although only about one-half of the persons\\nvoting for candidates at this election chose to vote upon the\\namendments, of those so doing there is a fair presumption\\nthat they recorded their wishes with respect to the different\\nIt is nevertheless suspected that the adoption of the dispensary\\namendment was an accident. Cf. Session Laws of South Dakota for\\n1899, P- 73-", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0187.jp2"}, "188": {"fulltext": "172 THE REFERENDUM IN AMERICA\\nsubjects submitted to them. The people of Cahfornia in\\n1894 voted on ten different amendments, approving of seven\\nand disapproving of three, among the latter being a foolish\\nproposition to move the capital of the State, and\\na proposition to increase the salaries of the mem-\\nbers of the legislature, a project^ as I have already noted, for\\nwhich the people rarely evince any enthusiasm. In a v^ord,\\nnot a little evidence is at hand to show that there is method\\noften in what at first sight the casual onlooker might be\\ntempted to call pure madness. This, perhaps, is quite what\\none should expect, yet the hope might be rightly enter-\\ntained that the people at all times would manifest interest,\\njudgment and discrimination, else we must conclude that\\nthey are not our ideal law-givers. The spasmodic and the\\nhalf-hearted law-maker, who does what is to be done in a fit,\\nand then reverts to indifference regarding public affairs, can\\nnot claim our unqualified admiration. It may, indeed, be nec-\\nessary as a result of certain natural tendencies in American\\npolitical life, which have long been at work, to accede to the\\nview that the people are a proper and competent authority,\\nfinally to pass upon amendments to their constitutions. But\\nwhile recognizing the force of historical development, and all\\nthat adheres to it, it is certainly a duty to call attention to\\nthe fact that in practice, the system is liable to great objec-\\ntions. We are doubtless committed thoroughly to a third\\nbody of legislators, that is, the electors themselves, who have\\nbeen introduced to so large an extent to supplement the\\nwork of the representative assemblies, i. e., the legislatures\\nand the conventions. Nevertheless they are not what we\\nwould have them be.\\nIn these chapters we have looked a little way into the rec-\\nord of the people as the makers of their own constitutional\\nlaw as it is submitted to them by the conventions and the\\nlegislatures. It is now time to pass on to an examination of\\nthe people s powers and qualifications as their own law-\\nmakers in respect of other classes of legislation.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0188.jp2"}, "189": {"fulltext": "CHAPTER VII\\nTHE REFERENDUM ON STATUTES OF GENERAL OPERATION\\nWITHIN THE STATE WHEN THE VOTE OF THE PEOPLE\\nIS AUTHORIZED BY THE STATE CONSTITUTION\\nWe have come now to the legislature s submission of stat-\\nutory legislation to the people and we are to inquire whether\\nit is necessary for the legislature to embody its bill in the\\nform of a constitutional amendment, if it should desire to\\nescape its full responsibility as a law-giver. The people have\\nconstituted the legislature in its fields and the convention in\\nits field, to represent them and to legislate for them is it\\ncompetent for either to refer the work back again to the\\npeople? There is no particle of doubt that the convention\\nmay call upon the electors to approve or reject its proposals,\\nand indeed the American tendencies lead us straightway to\\nthe view that a neglect of this submission is a very irregular\\ncourse, if not one that is fraught with positive peril to the\\nState. From the convention our organic law is derived. That\\nbody gives the government basic character and form, creates\\nthe legislature and endows it with its authority as an organ\\nin the constitutional system. The legislature thus acts un-\\nder delegation of authority from the convention can it again\\nlay its mantle upon other shoulders without some specific\\ndirection to do so from the constituent power in the State,\\nwhich sometimes, of course, is the convention itself, regularly\\nassembled by the legislature, or more often the convention\\nand the whole body of electors, or again, in the case of\\namendments, the legislature and the electoral body, co-oper-\\nating? If the law-making power is regularly entrusted to\\nother bodies, for instance to local communities, as is often\\nthe case, to the Governor, to judicial officers, to boards and\\n173", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0189.jp2"}, "190": {"fulltext": "174 THE REFERENDUM IN AMERICA\\ncommissions, all of which have come to exercise legislative\\nauthority of more or less importance, we are accustomed to\\nregard it as a strictly legal development, if not, indeed, a\\nscientifically correct development from the point of view of\\npolitical philosophy. There is no room to doubt then that\\nthe makers of the constitution may place the legislative au-\\nthority of the State in the hands of the people, if this is a\\nchange of which they approve. If it is desirable to find a\\nnew law-making agency, other than the two houses, or to\\ndivide this power among several authorities, the constituent\\nassembly is undoubtedly competent to make these reforms\\nin our system of government. Just as it might clothe some\\none person or committee of persons with the legislative\\npower in the State, if this government were still republi-\\ncan within the meaning of the Federal Constitution, so it\\nmay go to the whole people and give them, under such con-\\nditions as may seem to be suitable and expedient, the\\npower themselves to enact the law either upon all subjects\\nor upon some prescribed classes of subjects. It is this de-\\nvelopment which is to be traced in this place and we secure\\nat once a point d appui for the referendum in America, out-\\nside of the field of constitutional law.\\nWe come in the first place, therefore, to South Dakota,\\nwhich in 1898 introduced the referendum on statute laws\\nin a more extended form, and has determined to give the\\nprinciple a wider application than any other Commonwealth.\\nThis change, one of the most important that has ever been\\nmade in the American system of government, was accom-\\nplished by amending a section of the State Constitution,\\nwli^h is common to the Constitutions of all the States, in\\neffect, if in slightly altered language, and which in South\\nDakota ran as follows The legislative power shall be\\nvested in a legislature which shall consist of a senate and a\\nhouse of representatives This clause has nov/ been\\namended so that while the legislative power of the State\\nis still vested in an assembly of two houses, the people ex-\\nConstitution of South Dakota of 1889, art. iii, sec. i.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0190.jp2"}, "191": {"fulltext": "ON STATUTES OF GENERAL OPERATION i75\\npressly reserve to themselves the right to propose measures,\\nwhich measures the legislature shall enact and submit to a\\nvote of the electors of the State (the right of initiative and\\nthe referendum combined), while, too, the people reserve to\\nthemselves the right to require that any laws which the\\nlegislature may have enacted shall be submitted to a vote of\\nthe electors of the State before going into effect, except such\\nlaws as may be necessary for the immediate preservation of\\nthe public peace, health or safety, support of the State gov-\\nernment and its existing public institutions (the refer-\\nendum pure and simple). The people may initiate laws\\nfor submission to popular vote upon the petition of five per\\ncent, of the whole number of the qualified electors of the\\nState They may require a vote upon any law which has\\nearlier been passed by their representatives in the legislature,\\nwith the exceptions noted, upon the request of a similar\\nnumber of persons. It is interesting to observe that the\\nGovernor, with this development, ceases longer to exercise\\nthe veto power with respect to such laws as may be initiated\\nby the people upon their own petition. While in the case\\nof a bill which has originated in the legislature, there being\\nno method of knowing whether five per cent, of the electors\\nof the State will later ask for a submission of it or not, the\\nGovernor will certainly exercise his prerogative as before.\\nThis is manifestly the only course to pursue. If the veto\\ndisposes of the bill, the people will need to revive it through\\ntheir own initiation, should they wish to bring it to popular\\nvote. The amendment specifically confers upon the legisla-\\nture, the power to make suitable regulations for carrying\\ninto effect the provisions ot this section and the system by\\nthis means will soon be developed in greater detail, much to\\nthe interest and enlightenment of students of government\\nin the United States.^\\nSession Laws of South Dakota for 1897, p. 88, art. iii, sec. i, of the\\nConstitution of South Dakota, as amended by vote of the people at the\\nelection in November, 1898, reads as follows: The legislative power\\nof the State shall be vested in a legislature, which shall consist of a\\n_v", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0191.jp2"}, "192": {"fulltext": "176 THE REFERENDUM IN AMERICA\\nOne of the earliest instances of the submission of statutory\\nlegislation to popular vote in the States, is met with in con-\\nnection with the choice of sites for capitals. In new States\\nthis is a matter calling forth a great deal of interest among\\nthe people, and moreover, it is one likely to stir up the feel-\\nings of the representatives constituents to such a depth that\\nneither convention nor legislature is very eager to decide\\nthe question definitively at its own risk. Several conven-\\ntions have submitted this subject of the location of the seat\\nof State government to popular vote, and it is regarded now\\nas a proper matter for a referendum by the Constitutions\\nof many States. When Texas was annexed, in 1845, the\\nConstitution with which the State entered the Union pro-\\nvided that an election for a capital should be held in 1850\\nfrom among the different places considered to be eligible\\nfor the enjoyment of this honor and distinction. If any one\\nof the different places voted for should have a majority\\nof the whole number of votes cast the seat of government\\nsenate and house of representatives, except that the people expressly\\nreserve to themselves the right to propose measures, which measures\\nthe legislature shall enact, and submit to a vote of the electors of the\\nState, and also the right to require that any laws which the legislature\\nmay have enacted shall be submitted to a vote of the electors of the\\nState before going into effect, except such laws as may be necessary\\nfor the immediate preservation of the public peace, health or safety,\\nsupport of the State government and its existing public institutions\\nprovided that not more than five per centum of the qualified electors\\nof the State shall be required to invoke either the initiative or the ref-\\nerendum. This section shall not be construed so as to deprive the\\nlegislature or any member thereof, of the right to propose any meas-\\nure. The veto power of the executive shall not be exercised as to\\nmeasures referred to a vote of the people. This section shall apply to\\nmunicipalities. The enacting clause of all laws approved by vote of the\\nelectors of the State shall be Be it enacted by the people of South\\nDakota. The legislature shall make suitable provisions for carrying\\ninto effect the provisions of this section. Ordinarily laws in South\\nDakota have run, Be it enacted by the Legislature of the State of\\nSouth Dakota though even with representative legislatures in some\\nStates, the phrase has been Be it enacted by the people of the State\\nof or The people of the State of enact Cf. Session\\nLaws of South Dakota for 1899, pp. 121 et seq. Laws of Oregon.\\n1899, p. 1 129.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0192.jp2"}, "193": {"fulltext": "ON STATUTES OF GENERAL OPERATION 177\\nwas to be located there. If no one place received so many\\nvotes, a second election was to be held between the two high-\\nest on the list.^ Accordingly the legislature, in January,\\n1850, passed an act, submitting the question to the people,\\nin the manner contemplated by the Constitution.*\\nOregon by her Constitution of 1857 authorized the legis-\\nlature at the first regular session after the adoption of the\\nConstitution to arrange for a referendum upon the capital\\nquestion.^\\nThe Constitution of Kansas of 1859, the first Constitution\\nof the State, and the one which is still in force, fixed the seat\\nof government temporarily at Topeka. The legislature at\\nits first session, however, was to submit the question of the\\npermanent location of the capital to popular vote.\u00c2\u00ae\\nDenver was selected as the permanent seat of government\\nof Colorado, by a referendum taken in 1881. The Consti-\\ntution of that State framed in 1876 had authorized the legis-\\nlature at its first session to submit the subject to the people.\\nAs in Texas, if no one place received the necessary majority\\nof the votes cast, choice between the two places which had\\ngot the largest number of votes at the first election was to be\\nmade at a second polling. Only one election was neces-\\nsary.^\\nA similar course was pursued in South Dakota in 1889,\\nwhen that State entered the Union, with respect to the se-\\nlection of the capital. The legislature was to refer the ques-\\ntion to the people at its first session after the admission of the\\nState. This election was held in November, 1890. The\\nquestion of the choice of a town to serve temporarily as the\\nState capital, had been previously voted on by the people of\\nConstitution of 1845, art. iii, sec. 35.\\nLaws of the Third Legislature of the State of Texas, chapter Ixvii,\\nP- 77-\\nArt. xiv, sec. i.\\nConstitution of Kansas^ art. xv^ sec. 8,\\n^Constitution of 1876, art. viii, sec. 2. The vote was taken Novem-\\nber 8, 1881, and it resulted as follows: Denver 30,248. Pueblo 6047,\\nColorado Springs 4,790, Canon City 2,788, Salida 695, Scattering 929.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0193.jp2"}, "194": {"fulltext": "178 THE REFERENDUM IN AMERICA\\nSouth Dakota in 1889, the proposition having then been sub-\\nmitted by the constitutional convention.^\\nThe Constitution of Montana, of 1889, provided for a vote\\nin 1892 on the question of locating the seat of government\\nof that State,*^ and in Washington in 1889, the Convention\\nsubmitted the same question. If a majority of votes were\\nnot cast for any town at the first balloting the legislature\\nwas to arrange for a subsequent election on the subject.^^\\nOnce the seat of government has been located there is risk\\nof course that it may be removed again, and the legislature\\nin several of the States is put under restraint to the extent\\nthat it m.ay not pass any law to change a capital site without\\nfirst submitting the statute to the people for their ratifica-\\ntion. For instance, the Pennsylvania Constitution of 1873\\ndeclares that, No law changing the location of the capital\\nof the State shall be valid until the same shall have been\\nsubmitted to the qualified electors of the Commonwealth at\\na general election, and ratified and approved by them\\nProvisions somewhat akin to this occur in the present Consti-\\ntutions of the following States California, Colorado,\\nGeorgia, Idaho, Minnesota, Mississippi, Montana, Nebraska,\\nOregon, Washmgton and Wyoming. California requires\\nthat the law proposing the change, before it is submitted\\nto the people, shall be passed by a two-thirds vote of each\\nhouse of the legislature while Georgia requires the same\\nvote as in the case of constitutional amendments, that is\\ntwo-thirds of the members elected to each of the two\\nhouses In the other States, regular majority passage, as\\nin the case of ordinary laws, seems to suffice. In Colorado,\\nMontana and Washington, a two-thirds rather than a simple\\nmajority vote of the people is necessary to ratify the propo-\\nsition. In Oregon the legislature is prohibited from sub-\\nmitting such a proposal until twenty years after 1857,\\nConstitution o\u00c2\u00a3 1889, art. xx.\\nConstittition of 1889, art. x, sec. 2.\\nConstitution of 1889, art. xiv, sec. i.\\nArt. iii; sec. 28.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0194.jp2"}, "195": {"fulltext": "ON STATUTES OF GENERAL OPERATION I79\\nin Idaho until twenty years after 1889, and in Wyoming\\nuntil ten years after 1889. It must be understood, of course,\\nthat the legislature is still free to propose constitutional\\namendments to the people on the same subject, and on prac-\\ntically the same terms. This point was made clear in Cali-\\nfornia in 1893, ^he legislature having submitted a proposition\\nto change the seat of government of the State, in the form\\nof a constitutional amendment, when it could as well have\\nembodied its proposal in a statute. A referendum would\\nhave been required in either case.^^ For even when the\\nConstitutions are silent respecting the submission of statu-\\ntory legislation of this character, the door still stands open\\nfor a poll of the people on this subject through a constitu-\\ntional amendment. In the case when the capital of a State\\nhas been definitely fixed by the convention, and is named in\\nthe constitution, it is plain that it can only be changed when\\nthe constitution is changed. Many of the State Constitu-\\ntions contain provisions of this character, as for example,\\nin Missouri, where it is declared that the General Assembly\\nshall have no power to remove the seat of government of this\\nState from the city of Jefferson The State legislature,\\nquite undeterred, however, desiring recently to take the sense\\nof the people on the question of a removal of the capital to\\nSedalia, made such a proposal in the form of a constitutional\\namendment, which was voted on and rejected at a refer-\\nendum in 1896. It has become as easy in Missouri, and this\\nis true in many other States, for the legislature to pass a\\nconstitutional amendment as an ordinary bill.\\nOf a somewhat similar character are statutes which the\\nlegislature is sometimes authorized to submit to the people\\nin reference to the selection of sites for State universities,\\neleemosynary, correctional and like institutions. This is a\\nsubject of only a little less interest to the people than the\\nchoice of a spot at which the State capital buildings shall be\\nerected. The rivalry of the towns in the newer States for\\nCf. Livermore v. Waite, 102 Cal., p. 113.\\nConstiUition of 1875, art. iv, sec. 56.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0195.jp2"}, "196": {"fulltext": "i\u00c2\u00abo THE REFERENDUM IN AMERICA\\nthe honor of possessing these institutions, has often assumed\\nstrange and amusing proportions. There is, of course, more\\nthan a local pride involved, for State buildings are likely to\\nenhance the value of real estate in the vicinity and to open\\nthe way to subsistence and profit to a considerable number\\nof people who perhaps purvey to the institutions, or other-\\nwise directly or indirectly benefit from the distribution of\\nlarge amounts of public money. In no recent case has the\\ncontest for public buildings reached such comical dimensions\\nperhaps as in South Dakota in 1889 and 1890.\\nThe people of Texas in 1881 at the invitation of the legis-\\nlature, voted upon the question of a choice of site for a State\\nuniversity, a referendum which had been contemplated when\\nthe constitution was framed. The Convention of 1876 de-\\nclared that the legislature shall, as soon as practicable, es-\\ntablish, organize and provide for the maintenance, support\\nand direction of a university of the first class, to be located\\nby a vote of the people of this State, and styled the Uni-\\nversity of Texas The legislature got ready to submit\\nthe question in 1881, when somewhat exceeding the strict\\nterms of its authority, three propositions were referred to\\nthe people First, should the medical department and the\\nmain university be separated second, if so, where should the\\nmain university be established, and third, where should the\\nmedical school be located. The people of the State deter-\\nmined that this university of the first class should be of\\ntwo parts, the main institution being placed in Austin, the\\ncapital of the State, the medical department at Galveston,\\nthe leading port and commercial city of the State. Per-\\nmissive authority was conferred upon the legislature also to\\nestablish and provide for the maintenance of a college or\\nbranch university for the instruction of the colored youths\\nof the State, to be located by a vote oi the people This\\nArt. vii, sec. 10.\\nGeneral Laws of Texas for 1881, pp. 77-79; McPherson s Hand-\\nhook for 1882, p. 80.\\nConstitution of 1876, art. vii, sec. 14.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0196.jp2"}, "197": {"fulltext": "ON STATUTES OF GENERAL OPERATION i8i\\nreferendum seems not yet to have been taken, though certain\\nlands have been set aside by the legislature which are to ac-\\ncrue to a fund for the endowment of this branch univers-\\nity for the colored people.\\nThe Wyoming Convention of 1889, at the same time that\\nit chose a site for the capital, which it was specified the legis-\\nlature should not remove until after ten years, and then only\\nupon yote of the people, adopted a like rule with respect to\\nthe State university, the State insane asylum and the State\\npenitentiary. After ten years, the legislature may move\\nthese institutions to new sites, in case the propositions for\\nremoval shall be submitted to the people and be approved\\nby a majority of all votes upon said question cast at such\\nelection Furthermore, the Constitution declares that\\nthe legislature shall not locate any other public institutions\\nexcept under general laws, and by vote of the people\\nUnder authority derived from this clause of the Constitution,\\nseveral referenda have been taken in Wyoming, as in 1892,\\nto locate a State institution to be known as the Home for\\nFriendless Women and Children The legislature here\\nsomewhat exceeded its delegated power in asking the people\\nfirst to determine the general point as to whether such a\\nhome should be established or not. The Constitution con-\\ntemplated that the legislature would decide this larger ques-\\ntion as to the establishment of the institution on its own re-\\nsponsibility.^^ In the same year the people of Wyoming\\nwere asked to select a site for a State Hospital for Miners.\\nThe legislature declared that at the election every city, town\\nor village in the State of Wyoming at or within three miles\\nof which shall be employed not less than one thousand\\nminers, shall be eligible as a seat for such hospital Places\\nwere to be nominated just as individual candidates for office\\nare nominated, the certificates of nomination being filed\\nwith the Secretary of State.^*^ The people of Wyoming\\nConstitution of 1889, art. vii, sec, 23.\\nLaws of Wyoming for 1890-91, p. 330.\\n^^Ibid., p. 352. ^Uhid.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0197.jp2"}, "198": {"fulltext": "i82 THE REFERENDUM IN AMERICA\\nwere also consulted in the year 1892 regarding their choice\\nof a place at which to establish a State Agricultural College,\\nsome site to be selected from among the various cities, towns\\nand villages of the State, which contained not less than one\\nhundred inhabitants each, and were situated at an eleva-\\ntion above the sea level of not more than 5500 feet\\nAs a mark of the distrust which the conventions feel for\\nthe State leg-islatures, we find that an interesting series of\\nrestraints are placed upon the latter with respect to the col-\\nlection and expenditure of public money, the care of State\\nproperty, and the loaning away of the State s credit. Here\\nagain the people have been introduced in many States, as a\\ncheck upon legislative activity, and statutes upon a large\\nnumber of subjects of this general class, which we will at\\nonce proceed to subdivide, must be ratified by popular vote\\nbefore they can be of any effect or validity. The Consti-\\ntutions are distinct in their specifications on this point.\\nThere is in the first place that rather numerous body of\\nStates which limit the legislature in its power to contract in-\\ndebtedness on the State s account to a certain definite maxi-\\nmum amount. Under no circumstances, unless it be to repel\\ninvasion, suppress insurrection or defend the State in time\\nof war, a contingency not very likely to occur in the present\\nstate of our Federal relations, can the legislature pass this\\nlimit unless it shall first refer the law creating the liability to\\na vote of the people, and the latter shall give the proposition\\na direct sanction. Many of the States were involved in debt\\nby the legislatures, at an earlier period, and their outstanding\\nobligations were in some cases so large that it actually led\\nto repudiation. Several Southern States, and some in the\\nMiddle West contracted debts and loaned out the public\\ncredit beyond their ability or disposition again to make the\\namounts good. The political financiers of new or poor and\\nsparsely settled parts of the country thus brought scandal\\nupon American statecraft, which it was generally desired\\n2^ Laws of Wyoming for 1890-91, p. 373.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0198.jp2"}, "199": {"fulltext": "ON STATUTES OF GENERAL OPERATION 183\\nshould be taken out of the field of possible repetition in the\\nfuture.^^\\nThe Convention of 1842 in Rhode Island, which seems to\\nhave originated this referendum, incorporated a provision\\nin the Constitution of the State in terms as follows The\\nGeneral Assembly shall have no power hereafter without the\\nexpress consent of the people to incur State debts to an\\namount exceeding $50,000, except in time of war or in case\\nof insurrection or invasion Michigan followed with\\nan amendment to her Constitution in 1843, which practically\\ndivested the legislature of the entire function of debt-mak-\\ning for every law authorizing the borrowing of money or\\nthe issuing of State stock, whereby a debt shall be created on\\nthe credit of the State unless it should be for the purpose\\nof raising money for defraying the actual expenses of the\\nlegislature, the judicial and State officers, for suppressing\\ninsurrection, repelling invasion or defending the State in\\ntime of war was henceforth to be submitted to the people.\\nThere was no limit as $50,000 or $100,000, within which the\\nLegislature might exercise a free hand. Every law of this\\ncharacter except for the purposes named in the constitution\\nshould, before it took effect, be approved by a majority of\\nall the votes cast for and against it at a general election.^*\\nThe New Jersey Convention of 1844 named a limit like\\nRhode Island, placing the maximum amount, beyond which\\nthe legislature might not go, without a referendum, at\\n$100,000.^^ Iowa and New York adopted similar provisions\\nin 1846, and to-day this referendum is established in thirteen\\nstates, with varying conditions and limits, which may be\\nbriefly set forth as follows\\nCalifornia, referendum when the debt exceeds $300,000\\nIllinois in 1848, 50,000\\nAn excellent work giving the history of this rather discreditable\\nphase of American public finance is The Repudiation of State Debts, by\\nW. A. Scott, Ph.D., New York, 1893. Art. iv, sec 13.\\nAmendment to the Constitution ot 1835, No. 2.\\nConstitution of 1844, art. iv, sec. 6.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0199.jp2"}, "200": {"fulltext": "1 84 THE REFERENDUM IN AMERICA\\nIllinois in 1870, refer m\\nIowa,\\nwhen the debt exceeds\\n(I li it\\n$250,000\\n250,000\\nKansas,\\nKentucky,\\nMissouri,\\n1,000,000\\n500,000\\n250,000\\nMontana,\\n100,000\\nNew Jersey\\nNew York,\\n100,000\\n1,000,000\\nRhode Island,\\nWashington,\\n50,000\\n400,000\\nIdaho, a referendum when the indebtedness which it is\\nproposed to create exceeds the sum of ij per cent, of the as-\\nsessed value of the taxable property in the State.\\nWyoming, a referendum when the debt to be incurred in\\nany year exceeds the revenues for that year.^\u00c2\u00ae\\nThis limited power to issue bonds and put out State paper\\nis granted to the legislature, it is usually explained, in order\\nto meet deficits or failures in the revenue although in\\nKansas it seems to be for defraying extraordinary ex-\\npenses and making public improvements In nearly all\\ncases it is directly asserted, or the inference is plain, that\\nthe limit is meant to apply not to new loans solely, but to all\\nwhich have gone before and are outstanding in the State s\\nname. No debt or liability is to be incurred which shall\\nsingly or in the aggregate with any existing debt or lia-\\nbility exceed the sum designated in the constitution unless\\nthe law is first submitted to and approved by the people.\\nIn Missouri, however, the limit, $250,000, appears to relate\\nto debts incurred in any one year, an important modification\\nof the rule. There is a provision common to most of the\\nconstitutions that the restriction shall not apply to debts con-\\ntracted to repel invasion, suppress insurrection or defend\\nIn Nebraska by the Constitution of 1866 there was a referendum\\nwhen the debt was in excess of $50,000. By the present Constitution\\nof the State, adopted in 1875, there is no provision for a popular vote\\non this subject.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0200.jp2"}, "201": {"fulltext": "ON STATUTES OF GENERAL OPERATION 185\\nthe State in time of war In nearly all the States it is\\nspecified also that at the time the law authorizing the legis-\\nlature to incur the debt is submitted to popular vote, another\\nlaw shall accompany it, levying a tax sufficient regularly\\nto pay the interest on the. amount, and also the principal\\nwithin a given number of years, as for instance, eighteen,\\ntwenty, thirty or thirty-five. In the usual case the constitu-\\ntions find a majority of all the votes cast upon the proposal\\nsufficient to pass it, though Illinois prescribes a majority\\nof the votes cast for members of the General Assembly\\nand Missouri requires a two-thirds majority The refer-\\nendum as a rule is taken at a general election though in\\nMissouri it must be at an election held for that purpose\\ni. e., at a special election.\\nInstances of such referenda are not at all rare. Recent\\ncases are to be found in New York in 1895, when the people\\nwere asked to confer upon the legislature power to issue\\nbonds to the amount of $9,000,000 for the improvement of\\nthe Erie Canal, the Champlain Canal and )the Oswego\\nCanal State waterways which stood in need of extensive\\nrepairs and in California in 1892 when the California\\nlegislature invited the electors to assent to a loan of\\n$600,000 for the construction and furnishing of a general\\nrailroad, passenger and ferry depot in San Francisco,^^\\nand a loan of $2,528,500 for the purpose of taking up and\\nrefunding certain outstanding State issues.\\nThe new Constitution of South Carolina altogether pro-\\nhibits the legislature from creating any further debt or\\nobligation, either by the loan of the credit of the State, by\\nguaranty, endorsement or otherwise, except for the ordinary\\nand current business of the State unless it shall submit\\nthe question to the qualified electors of the State, and two-\\nthirds of those voting on the proposition shall approve the\\nlaw.^^ In many States other kinds of restraints are placed\\nBanks Revised Statutes of New York, 9th edition, p. 3020.\\nStatutes of California, 1891, p. no.\\nIbid., p. 210. Constitution of 1895, art. x, sec. 11.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0201.jp2"}, "202": {"fulltext": "1 86 THE REFERENDUM IN AMERICA\\nupon the legislatures with respect to the contraction of debt.\\nSome conventions have wholly withdrawn the power from\\nthe legislatures again, definite limits are sometimes pre-\\nscribed beyond which the legislature cannot go under any\\ncircumstances, even with the popular assent again, loan\\nbills must often be passed by a number of members of the\\nlegislature larger than a simple majority, and there are other\\nmethods employed by the conventions with a view to making\\nit difficult for the representatives to incur financial obliga-\\ntions, which are likely to occasion trouble and disaster later\\non. Of course, in all these cases, if the legislature finds\\nsuch a restriction a serious afifair, it may initiate an amend-\\nment to the constitution proposing a change in the terms of\\nthe restraining provision, and here again there is no one be-\\ntween the existing order and those who would create the\\ndebt, but the people themselves.\\nThere are a number of States too in which the conventions\\nhave made still more specific reservations regarding the con-\\ntraction of indebtedness on public account. A deal of the\\nbad financiering by the legislatures has been traceable to sub-\\nsidies and guarantees granted to internal improvement com-\\npanies, with a view to conferring benefits on certain com-\\nmunities. Thus, highways, railroads and private develop-\\nment companies of one kind or another have repeatedly\\nprofited, while the State has been run seriously into debt.\\nThe conviction has taken a firm hold of the people that\\nmuch of this legislation was enacted to serve private\\nends, to put money into circulation in certain districts,\\nto benefit landholders of one part of the State, while the rest\\ngot none of the gain, it having been alleged even that the\\nlegislators received large bribes in the way of stock and the\\nlike, for attending to matters of this kind. Guarantees in\\nbehalf of railroads have often disastrously involved the\\npoorer States. Therefore a series of provisions will be\\nfound in the Constitutions specifically limiting the legisla-\\nture in such appropriations, unless the laws shall first receive\\nthe popular assent. North Carolina by a clause which dates", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0202.jp2"}, "203": {"fulltext": "ON STATUTES OF GENERAL OPERATION 187\\nfrom 1868, requires a referendum when it is a question of\\nlending out the State s credit in aid of any person, associa-\\ntion or corporation, except to aid in the completion of such\\nrailroads as may be unfinished at the time of the adoption\\nof the Constitution, or railroads in which the State has a di-\\nrect pecuniary interest The North Dakota Constitution\\nputs the legislature under the same restraint in loaning its\\ncredit or making donations in aid of any individual, asso-\\nciation or corporation, except for necessary support of\\nthe poor in subscribing to or becoming the owner\\nof the capital stock of any association or corpora-\\ntion or engaging in any work of internal improve-\\nment There is to be no deviation from these rules, ex-\\ncept through the referendum and a ratification of each sep-\\narate proposal by a two-thirds vote of the people A\\nreferendum is provided for by the Constitution of Wyoming,\\nwhen the legislature desires that the State shall embark upon\\nany work of internal improvement The law must be\\napproved by a two-thirds vote of the people.^^\\nIn i860 the Constitution of Minnesota was so amended\\nthat no law levying a tax or making other provision for the\\npayment of interest or principal of the bonds denominated\\nMinnesota State Railroad Bonds should take effect unless\\nit were directly voted on and approved by the people of the\\nState. In 1858 an amendment to the Constitution author-\\nized an issue of bonds to the value of $5,000,000 to aid in the\\n.construction of certain railways. The companies in some\\nway failed to meet the conditions imposed upon them, and the\\nsecond amendment was designed to protect the State against\\nthe impulsive action of the legislature. From time to time\\nvarious acts were passed by the legislature, and submitted\\nto the people with a view to adjusting the indebtedness of the\\nState as it was represented by these bonds, first in 1866, then\\nin 1867, 1870 and 1871, some of which plans were objection-\\n^^Constitution o\u00c2\u00a3 1876, art. v, sec. 5.\\n^^Constitution of 1889, art. xii, sec. 185.\\nConstitution of 1889, art. xvi, sec. 6.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0203.jp2"}, "204": {"fulltext": "1 88 THE REFERENDUM IN AMERICA\\nable to the people and others to the bondholders. At last\\nthe State Supreme Court in i88i^* decided that the amend-\\nment was unconstitutional, on the ground of its being an\\nimpairment of the obligation of contracts, and a settlement\\nwas effected by the legislature without again submitting the\\nquestion to popular vote.\\nThe Constitution of Illinois invested the people of the\\nState with power finally to determine as to the sale or lease\\nof the Illinois and Michigan Canal, a State property.^^ The\\nlegislature passed an act in 1882 ceding the canal to the\\nUnited States, to be maintained as a national waterway\\nfor commercial purposes The people voted For the act\\nceding the Illinois and Michigan Canal to the United\\nStates or Against the act ceding the Illinois and Mich-\\nigan Canal to the United States at the general election of\\n1882, and the proposition was ratified by the necessary ma-\\njority of the votes cast.^^\\nAnother subject is made the matter for a referendum in\\ntwo States, namely, the appropriation of money for the erec-\\ntion of capitol buildings. The Illinois Convention of 1870\\nrestricted the legislature to an expenditure of $3,500,000\\non account of the new capitol grounds and the construc-\\ntion, completion and furnishing of the state house If\\ngreater outlay were to be made, the laws authorizing the ap-\\npropriation must be approved by the people of the State.^\\nIn 1881 a balance of $531,712 was still needed to complete\\nthis building. After the law which carried with it an appro-\\npriation to cover this sum was twice submitted to the people,\\nin 1882 and 1884, it was finally ratified by them, and the\\nfunds were made available to the legislature.^^\\nThe Constitution of Colorado contemplated a vote of the\\npeople upon any proposition to create a State debt for the\\nState V. Young, 29 Minn., 474.\\nConstitution of 1870, separate section.\\nStarr and Curtis Annotated Statutes of the State of Illinois, 26.\\nedition. Vol. I, p. 543-\\n^Art. iv, sec. 33.\\n\u00c2\u00ab\u00c2\u00abCf. Laws of Illinois, 1881, p. 55 ibid., 1883, P- 39; ibid., 1885, P- S3.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0204.jp2"}, "205": {"fulltext": "ON STATUTES OF GENERAL OPERATION 189\\npurpose of erecting public buildings which in any one year\\nshould exceed one-half mill on each dollar of valuation of\\ntaxable property or which at any one time should make the\\n^g g i e a-te amount of such debt more than $50,000. The\\nwhole indebtedness incurred on this account could be run\\nup to three mills on each dollar of valuation with the consent\\nof the people of the State, but no higher under any considera-\\ntion.^ Such proposals have been repeatedly submitted to\\nthe people of Colorado, both as statutes and as amendments\\nto the Constitution. Statutes were submitted in 1883, when\\nbonds to the amount of $300,000, for the erection of the\\ncapitol buildings in Denver were sanctioned by a vote of\\n13,220 against 8,703; in 1889, when a law to create an addi-\\ntional debt of $250,000 for the same purpose was defeated\\nby a vote of 15,010 yeas, and 16,286 nays; in 1891, when\\nauthority to issue bonds to the amount of $300,000 was\\nasked for by the legislature, the people again refusing the\\nrequest by the still more decisive vote of 14,543 yeas and\\n36,322 nays.*^\\nTurning from the State s expenditures, which all these\\nreferenda are meant to check, we find that the people have\\nwon a direct part in deciding some questions, too, in regard\\nto the State s revenues. Thus the Convention of Colorado\\nin 1876 put an important restriction upon the legislature,\\nwhen it declared that the rate of taxation on property for\\nState purposes shall never exceed six mills on each dollar\\nof valuation, and w^henever the taxable property w^ithin the\\nState shall amount to $100,000,000 the rate shall not exceed\\nfour mills on each dollar of valuation, and whenever the\\ntaxable property within the State shall amount to $300,000,-\\n000, the rate shall never thereafter exceed two mills on each\\ndollar of valuation, unless a proposition to increase such\\nrate specifying the rate proposed, and the time during which\\nthe same shall be levied, be first submitted to a vote of such\\nConstitution of 1876, art. xi, sees. 3, 4 and 5.\\nMills Annotated Statutes of the State of Colorado, Vol. I, and Sup-\\nplement, Notes to art. xi, sec. 3, of the Constitution.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0205.jp2"}, "206": {"fulltext": "I90 THE REFERENDUM IN AMERICA\\nqualified electors of the State, as in the year next preceding\\nsuch election shall have paid a property tax assessed to them\\nwithin the State, and a majority of those voting thereon shall\\nvote in favor thereof, in such manner as may be provided\\nby law An act to increase the rate to five mills for the\\nyears 1889 and 1890 was rejected by the people in 1888, by\\na very large majority, the vote standing 762 for, and 10,102\\nagainst. The vote for President in Colorado in the same\\nyear was upwards of 90,000.*^ The plebiscital feature of\\nthis provision was repealed by a constitutional amendment\\nadopted in 1892, which put an absolute limit on the legis-\\nlature in the following terms The rate of taxation on\\nproperty for State purposes shall never exceed four mills\\non each dollar of valuation.\\nReferenda on the same subject which are to be taken under\\nvery similar conditions are provided for by the Constitutions\\nof Montana and Idaho,*^ when it is a question of estab-\\nlishing tax rates higher than the limits there definitely named,\\nand the provisions in these two States are still in effect\\nto-day. As compared with Colorado a difference must be\\nnoted in that the law proposing the increase in the rate in\\nMontana and Idaho is to be submitted to the people i. e.,\\nto all the qualified electors rather than to the property tax-\\npayers alone, a restricted portion of the electoral body.\\nThe Constitution with which Utah entered the Union in\\n1895, contains a somewhat similar provision. There taxes\\nin excess of five mills on the dollar when the taxable prop-\\nerty shall exceed a value of $200,000,000; above four mills\\non the dollar when it exceeds a value of $300,000,000, must\\nbe authorized by direct vote of the property taxpayers of\\nthe State.^^\\nThe people of Minnesota in November, 1896, voted on and\\nConstitution of Colorado of 1876, art. x, sec. 11.\\nLaws of Colorado for 1887, p. 29; Annotated Statutes of Colorado,\\n1891, p. 317, note to art. x, sec. 11, of the Constitution.\\nMills Annotated Statutes, Supplement, 1896, note to art. x, sec. ii,\\nof the Constitution.\\n**Art. xii, sec. 9. Art. vii, sec. 9. Art. xiii, sec. 7.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0206.jp2"}, "207": {"fulltext": "ON STATUTES OF GENERAL OPERATION 191\\nadopted two legislative acts, one touching the taxation of\\ncertain lands owned by railway companies within the State,\\na referendum authorized by the Constitution,*^ and another\\nmaking a transfer of moneys from the internal improvement\\nland fund a proceeding declared by the Constitution to be\\nillegal, except with the direct sanction of the people.\\nAnother question closely bound up with the public credit\\ndeveloped into a subject for a referendum at about the same\\ntime that the State legislatures were being put under limit\\nin the contraction of debt. The soft money politicians\\nfound in State banks an unfailing source of the wealth\\nwhich they believed it was one of the functions of a state to\\ncreate. By chartering banks, and granting them extended\\nrights of issue, a circulating medium was secured in outlying\\nparts of the Union. Certain public improvements were thus\\nhelped forward, only to be followed, of course, by serious\\ncollapse later on. This wild cat banking through po-\\nlitical banks came to claim the attention of the conventions\\nat an early date and in several States, beginning with Iowa,\\nm 1846 the people were introduced as a direct check upon\\ntheir untrustworthy representatives. The Constitution of\\nIowa declared that no act of General Assembly authorizing\\nor creating corporations or associations with banking powers,\\nnor amendments thereto shall take effect, or in any manner be\\nin force until the same shall have been submitted sepa-\\nrately to the people at a general or special election, as pro-\\nvided by law, to be held not less than three months after\\nthe passage of the act, and shall have been approved by a\\nmajority of all the electors voting for or against it at such\\nelection\\nA similar provision made its appearance in the Constitu-\\ntions of Illinois and Wisconsin in 1848, of Michigan in 1850,\\nand Ohio in 185 1. This referendum in one or another of its\\nLaws of Minnesota, 1895, pp. 378, 728; ibid., 1897, pp. x, xi.\\nConstitution of 1857, sec. 32a, an amendment adopted in 1871.\\nIbid., sec. 32b, amendment of 1872.\\nConstitution of 1846, art. viii, sec. 5.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0207.jp2"}, "208": {"fulltext": "192 THE REFERENDUM IN AMERICA\\nforms is at present authorized by the Constitutions of seven\\nStates Illinois, Iowa, Kansas, Michigan, Missouri, Ohio\\nand Wisconsin. The most comprehensive provision in the\\ngroup is that which occurs in Wisconsin, where there is a\\ndouble referendum, first to determine in a general way\\nwhether a law on this subject shall be drafted and submitted\\nto the people, and then when the law is prepared, whether or\\nnot it shall be adopted. Such a method finds its counter-\\npan in the usual course of procedure in the States, when it\\nis a question of changing the constitution. The general\\nproposition is first submitted to the people, and they are\\nasked to decide whether they want a new constitution, and\\nthen afterward whether they approve of that particular con-\\nstitution which has been prepared for them. In some of the\\nStates the restriction requiring popular assent has been held\\nto apply only to banks of issue, as in Ohio.^^ In Missouri\\nbanks of discount and deposit are expressly excepted from the\\noperations of the provision and the legislature may establish\\nsuch institutions at will, without seeking the direct author-\\nization of the people. A banking law was submitted to the\\npeople of Wisconsin by the legislature of that State in 1852,\\nand was adopted.^^ Amendments to this law have been sev-\\neral times referred to popular vote, as in 1858, 1861, 1862,\\n1866 and 1867.^* An act specially providing for the organ-\\nization of savings banks and savings societies was approved\\nby the people of Wisconsin in 1876.^^ The entire subject\\nwas committed to a number of competent authorities on the\\nfinancial question, and a new banking code, prepared with\\nmuch care and designed to supersede the earlier law with\\nits amendments was adopted at a referendum in 1898.^\u00c2\u00b0\\nIn Illinois a banking act was adopted by the people in\\nConstitution of 1848, art. xi, sec. 5.\\nDearborn v. Bank, 42 O. S. 617.\\nSanborn and Berryman s Wisconsin Statutes, 1898, pp. 1525 et seq.\\n^*Ibid. Ihid., p. 1 54 1.\\nLaws of Wisconsin for 1897, chapter 303, p. 647. The vote was\\n86,872 for and 92,607 against the law, or a total of 179,479 as compared\\nwith a vote of 329,430 for Governor at the same election.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0208.jp2"}, "209": {"fulltext": "ON STATUTES OF GENERAL OPERATION i93\\n1888, and amended by popular vote in 1890.\u00c2\u00b0^ This law was\\nagain amended in 1898/ It would be a tedious and per-\\nhaps profitless task to follow the course of this referendum in\\nother States.\\nIn a certain number of States, the extension of the suffrage\\nto new classes of citizens, is held to be a matter which the\\nlegislatures should not determine, except upon the advice\\nof the people. Those already invested with the privilege of\\nthe franchise, shall directly sanction or reject proposals\\nwhich may be made for an enlargement of the electoral body.\\nFew questions are so important and serious in democracies as\\nthose which are bound up with the suffrage. In nearly all\\nthe States, this subject has come to be treated in great de-\\ntail in the constitutions, and little latitude is allowed to the\\nlegislatures in giving form to this feature of our political\\nsystem. If it is desired, therefore, to change the basis upon\\nw^hich the suffrage rests, it is necessary either to refer the\\nsubject to the people in the form of a constitutional amend-\\nment, or call a convention to revise the constitution, which\\nas we have noted already, is the method in favor in the\\nSouth, when it is desired to accomplish reactionary and in-\\ndeed almost revolutionary results, taking us backward on\\nthe line of universal suffrage and excluding from further\\nexercise of the privilege many of those persons who have\\nearlier enjoyed it. It is, of course, a very difficult matter\\nto induce any body in the electorate to agree to its own dis-\\nfranchisement. It is in the extension of the suffrage that the\\npeople, i. e., those already enfranchised by the constitution,\\nplay an important part in the direct enactment of legislation.\\nThus the Wisconsin Convention of 1848, after specifying\\nwhat should constitute the qualifications of electors within\\nStarr and Curtis Annotated Illinois Statutes, 2d edition, 1896, p.\\n514.\\nLaws of Illinois for 1897, p. 184. The amendment was adopted by\\na popular vote of 124,656 yeas and 55,773 nays, a paltry total of 180,429,\\nas compared with a total vote of 874,115 at the same election for State\\nTreasurer, the leading State officer on the ticket. Illinois at the Presi-\\ndential election of 1896 polled a total vote of 1,090,869.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0209.jp2"}, "210": {"fulltext": "194 THE REFERENDUM IN AMERICA\\nthat State, declared that the legislature may at any time\\nextend by law the right of suffrage to persons not herein\\nenumerated, but no such law shall be in force until the same\\nshall have been submitted to a vote of the people at a gen-\\neral election, and approved by a majority of all the votes cast\\nat such election Under this clause the legislature in\\n1849 submitted the question of equal suffrage to colored\\npersons thus admitting negroes to voting privileges on the\\nsame terms as white men.^^ Again in 1885 the legislature\\nsubmitted an act to confer upon women the right of suffrage\\nin school matters. This proposition came to popular vote, in\\n1886, and was adopt ed.^^\\nThe Convention of Colorado in 1876, had left to the dis-\\ncretion of the legislature of the State the question of bring-\\ning forward a measure to enfranchise women. This bill was\\nto become a law if it were approved by the qualified electors\\nof the State (male) at a general election. Very soon after\\nColorado was admitted to the Union, a woman suffrage act\\nwas made the subject of a referendum. The law, how-\\never, was rejected by a vote of 6,612 yeas to 14,053 nays.*\\nAnother law which was submitted by the Colorado legis-\\nlature in 1893, was more successful.* It was accepted by\\nthe people, the ballots containing the words Equal Suf-\\nfrage Approved and Equal Suffrage not Approved\\nThe Constitution of North Dakota conferred upon the\\nlegislature similar authority in the matter of further ex-\\ntensions of the suft rage to all citizens of mature age and\\nsound mind, not convicted of crime, without regard to\\nConstitution of 1848, art. iii, sec. i.\\nLaws of Wisconsin for 1849, chap. 137, p. 85. The vote was 5)265\\nfor, and 4,075 against the law. Cf. Gillespie v. Palmer, 20 Wis. 544.\\nLaws of Wisconsin for 1885, chap. 211, p. 184.\\nConstitution of 1876, art. vii, sec. 2.\\nLaws of Colorado for 1877, p. 648.\\nMills Annotated Statutes of Colorado, note to art. vii, sec. 2, of the\\nConstitution. Laws of 1893, p. 256.\\n\u00c2\u00b0\u00c2\u00b0The act having been adopted by the people, cannot be repealed by\\nthe General Assembly. In re Woman Suffrage, Report of Attorney\\nGeneral of Colorado, 1893-4, p. 378.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0210.jp2"}, "211": {"fulltext": "ON STATUTES OF GENERAL OPERATION i95\\nsex But no law of this kind, having for its purpose\\neither the extension or restriction of the right of suffrage,\\nwas to have any effect until it was ratified by a majority of\\nthe electors of the State.^^ There is no record of the legis-\\nlature having yet availed itself of the privilege of submit-\\nting to the people a law of this character.\\nIn South Dakota the convention provided that the legis-\\nlature at its first session after the admission of the State into\\nthe Union should consult the people upon the proposition of\\nstriking the word male from the article of the Constitu-\\ntion relating to elections. This question was submitted to\\nthe people in 1890, and the proposal was disapproved of.\\nA proposition for the enfranchisement of women was again\\nreferred to popular vote in South Dakota, in the form of an\\namendment to the Constitution, at the general election in\\n1898, when it was again rejected.\\nAnother matter, which is sometimes left to the treatment\\nof the legislature, acting in conjunction with the people, is\\nthat of arranging a scheme of legislative representation or\\nsystem of apportionment. In Maine by the Constitution of\\n1820, plans were laid for a membership not to exceed 200\\npersons in the house of representatives or lower house of the\\nState legislature. When this limit was reached it was the\\nduty of the legislature to take the sense of the people, in\\norder to decide if this number should be increased or dimin-\\nished. No matter what the result of the vote, an election on\\nthe same subject was to be held regularly at the expiration of\\nevery ten year period thereafter. A constitutional amend-\\nment adopted in 1841, made other arrangements with respect\\nto this subject, and eliminated the referendum, substituting\\ntherefor a definite system of apportionment. The Consti-\\ntution of Virginia of 1850, provided that in 1865 ^I ^d\\nevery tenth year thereafter, if the legislature could not agree\\nConstitution of 1889, art. v, sec. 122.\\nIbid. Constitution of 1889, art. vii, sec. 2.\\nLaws of South Dakota for 1890, p. 117.\\nConstitution of Maine of 1820, art. iv, part i, sec. 2.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0211.jp2"}, "212": {"fulltext": "196 THE REFERENDUM IN AMERICA\\nupon a principle of legislative representation, the people at\\nan election to be called for the purpose, should choose from\\namong four proposed systems. The people were to decide\\nwhether representation should be arranged on the basis of\\nthe number of voters, or of the amount of taxes paid, or of\\ntwo possible mixtures of these two systems. In case no one\\nsystem was the choice of a majority of the voters at the first\\nelection, a second election was to be arranged for, as between\\nthe two systems which had proved to be most in favor at the\\nfirst polling.\\nThe Convention of West Virginia of 1872, authorized the\\nlegislature of that State to submit to the people in 1876,\\nor at any general election in any subsequent year a plan\\nor scheme of proportional representation in the senate of\\nthis State i. e., a scheme for an apportionment of mem-\\nbers on the basis of the number of inhabitants residing in\\nthe various districts, according to the system generally em-\\nployed in organizing the American lower or second cham-\\nbers.\\nOccasionally, too, the referendum has found an applica-\\ntion when it is a question of changing the boundaries of a\\nState, in reducing or increasing its area and the extent of\\nits territorial jurisdiction. Thus when the so-called Dis-\\ntrict of Maine was to be organized as a separate State,\\nthe result was accomplished by way of a plebiscite which\\nwas authorized by act of the legislature of Massachusetts,\\nJune 19, 1819, of which State, up to that time, the Dis-\\ntrict had been a part. The law specified that if the num-\\nber of votes for the measure shall exceed the number of\\nvotes against it, by fifteen hundred, then and not otherwise,\\nthe people of said district shall be deemed to have expressed\\ntheir consent and agreement that the said district shall be-\\ncome a separate and independent State The election was\\nConstitution of Virginia of 1850, art. iv, sec. 5. Art. vi, sec. 50.\\n^^-Laws of Massachusetts passed at the Several Sessions of the Gen-\\neral Court, beginning May, 18 18, and ending February, 1822, Boston,\\n1822, chapter clxi, p. 248.", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0212.jp2"}, "213": {"fulltext": "ON STATUTES OF GENERAL OPERATION i97\\nheld in the July following, and the necessary majority hav-\\ning been secured, a convention was called to frame a con-\\nstitution. In this manner Maine was admitted to the Union\\nof States.\\nThe Constitution of West Virginia provides that addi-\\ntional territory may be admitted into and become part of\\nthis State with the consent of the legislature, and a majority\\nof the qualified electors of the State voting on the ques-\\ntion\\nA referendum of this general class, it may be remarked in\\npassing, was authorized by the Congress of the United\\nStates in 1846. The land which had been ceded by the\\nState of Virginia to the Federal government^ to be used for\\nthe purpose of establishing a national capital in the District\\nof Columbia, was not needed for that purpose. The Virginia\\nlegislature declared its willingness to take it back, where-\\nupon Congress agreed to the retrocession contingent upon\\nthe assent of the people of the territory involved in the\\ntransfer, i. e., Alexandria County. It was distinctly stated\\nin the law that this act shall not be in force until after the\\nassent of the people of the county and town of Alexandria\\nshall be given to it in the mode hereinafter provided The\\nvote was to be taken viva voce upon the question of accept-\\ning or rejecting the provisions of this act and in this man-\\nner the territory was reattached to the State of Virginia.\\nWhen the question of the constitutionality of law-making by\\npopular vote afterward came up in the State courts this\\ncase was freely cited as a Federal precedent and one entitled,\\ntherefore, to unusual consideration and respect.\\nNo one has ever for a moment questioned the full com-\\npetence of a convention, or the constituent authority in gen-\\neral, to demand that laws on the subjects I have just cata-\\nlogued in this chapter or indeed on any other subject, shall\\nbe passed conditional upon their later acceptance by the\\n^^Constitution of 1872, art. vi, sec. 11.\\nAct of July 9, 1846, United States Statutes at Large from 1845 to\\n185 1, p. 35. Ihid.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0213.jp2"}, "214": {"fulltext": "198 THE REFERENDUM IN AMERICA\\npeople. Although it must be considered to be in violation of\\nall our tradition and unwritten law on this point, and out of\\nharmony with the whole system of representative govern-\\nment, the convention may undoubtedly introduce such an\\ninnovation if it likes. A usual provision in the State consti-\\ntutions is that the legislative authority shall be vested in a\\nlegislative assembly, which shall consist of a senate and a\\nhouse of representatives It is clear that this is the source\\nof the legislature s pov/er, the title to its existence, and the\\ngrant of its authority. If all reference to such a body were\\nomitted from the constitution, and the duties earlier en-\\ntrusted to it were vested in other agents, as in the people,\\nthe electors at large, there would be no saving power but,\\n(i), the Federal Government, which, however, would\\nscarcely intervene on the ground that the State government\\non this account was too democratic, and had therefore ceased\\nto be republican or, (2), the agents within the State it-\\nself and in the mercy of these we should certainly have to\\nput our faith. All the various organs in this field it was the\\naim. of the Fathers so to arrange that one agent could not de-\\nvelop unduly at the expense of another. The different\\nchecks and balances interacting one upon the other in the\\npresence of that indefinite force known as public opinion,\\nmust be the safeguard of our American liberties.\\nIt is certain that the constituent power may decree that\\nvarious classes, and indeed all classes of laws shall be passed\\nsubject to the ratification of the people, being only proposed\\nby the legislature as by a committee, and this point having\\nbeen established I shall next inquire what is the status of a\\nlaw v/hich is passed by the legislature, and submitted to the\\npeople without our being able to point to any clause in the\\nconstitution from which the authority for this submission is\\nderived.\\nMay a representative legislature to which power has been\\ndelegated to enact laws for the people cf the State redele-\\ngate its power or shirk its task by referring its work to some", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0214.jp2"}, "215": {"fulltext": "ON STATUTES OF GENERAL OPERATION i99\\nother agent or agents This brings us to an interesting field\\nof discussion, into which many of our highest American\\nState courts have entered, adding a great deal to the elucida-\\ntion of the points at issue.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0215.jp2"}, "216": {"fulltext": "CHAPTER VIII\\nTHE REFERENDUM ON STATUTES OF GENERAL OPERATION\\nWITHIN THE STATE WHEN NO AUTHORIZATION FOR THE\\nVOTE IS CONTAINED IN THE CONSTITUTION\\nWe distinguish in the practice of the States, two classes\\nof conditional laws, those affecting the people of the en-\\ntire State, and referred to the whole electoral body of the\\nState, which are being considered in this present connection\\nand those affecting local districts, municipalities and sub-\\ndivisions of the State, which will be separately treated in\\nensuing chapters of this work. Laws of the latter class are\\nnow generally held to be valid and constitutional, so that they\\nhave come to occupy a very important place in the legislative\\neconomy of nearly all the American States, but the former\\nclass of laws it has been the almost uniform policy of the\\ncourts to disallow.\\nIn the first place we have here to clear up the point as to\\nthe competence of the legislature to give over its power of\\nlegislation to the people with respect to laws which are of a\\ngeneral nature, and apply to the State at large. In the 30 s\\nand 40 s, the people became profoundly impressed regarding\\nthe evils of intemperance, and the aid of the local govern-\\nments was invoked as a means of regulating the manufac-\\nture and sale of intoxicating liquors. The agitation at last\\ntook the form of a demand that the business should be pro-\\nhibited altogether, that wines, spirits, beers, etc., should not\\nbe sold at all as a beverage, and only for medicinal purposes\\nunder eflfective restrictions. Violations of the law were to be\\nheavily penalized.\\nThe legislatures in many cases, however, were not willing\\nto go to such lengths on their own responsibility, and intro-\\n200", "height": "3649", "width": "2351", "jp2-path": "referenduminamer00ober_0216.jp2"}, "217": {"fulltext": "ON STATUTES OF GENERAL OPERATION 201\\nduced the local option system whereby any community, the\\ncounty being usually regarded as the unit, could prohibit\\nthe liquor traffic within its own borders, upon a majority\\nvote of the electors residing in the district. This means of\\nrepressing the evil was not thought to be far-reaching\\nenough in some States, as liquor was still being introduced\\nsurreptitiously over the frontiers of the county which pro-\\nhibited the business from neighboring counties which had\\nvoted to continue to license inns and public houses. Thus\\nthere was developed a demand for State prohibition laws,\\nwhich were enacted in a number of States, beginning with\\nMaine in 185 1, with a measure that soon came to be widely\\nfamous as the Maine Law It was entitled An act for\\nthe suppression of drinking houses and tippling shops\\nand it was passed by the legislature as a complete and\\ndefinitive piece of legislation like any ordinary law. This\\nact the legislature declared, shall take effect from and\\nafter its approval by the Governor Later, however, in\\n1856, the legislature proposed that the State should return\\nto the license system, but this change of front did not seem\\nto give public satisfaction. Not knowing what policy it\\nought to pursue regarding the troublesome question, the leg-\\nislature passed a bill in March 1858, to ascertain the will of\\nthe people concerning the sale of intoxicating liquors\\nAt a special election to be held in June 1858, the people\\nwere asked to choose between the License Law of 1856\\nand the Prohibitory Law of 1858 and to make it known\\nwhich they preferred.\\nThat the people were to make or unmake the law in this\\ncase while the legislature simply stood by to propose it, is\\nclearly evidenced by a reading of Section 3 of the act which\\nwas as follows If it shall appear that upon a ma-\\njority of the ballots so returned the words License Law of\\n1856 are written or printed, then the act entitled An act\\nfor the suppression of drinking houses and tippling shops\\nLaws of Maine, 185 1, ch. 211, p. 210.\\nLaws of Maine, 1858, ch. 50, p. 61.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0217.jp2"}, "218": {"fulltext": "202 THE REFERENDUM IN AMERICA\\napproved March 25, 1858, is hereby repealed, and the act en-\\ntitled An act to restrain and regulate the sale of intoxicating\\nliquors, and to prohibit and suppress drinking houses and\\ntippling shops approved April 7, 1856, shall thereby be re-\\nvived. The law of 1858 having been approved in the\\nreferendum, it was convenient for the legislature in 1867\\nagain to pass an act for ascertaining the sense of the people\\nwith respect to a measure which it had just adopted, increas-\\ning the penalties for violations in the hope of making the\\nprohibition policy more enforceable. Those in favor of\\nthe act were to have the word yes printed on their ballots,\\nand those opposed to it the word no If a majority of the\\nballots so returned had the word yes printed or written\\non them, the act would thereby be repealed.^ In this connec-\\ntion it is to be noted that the laws which were submitted to\\nthe people of Maine on these two occasions, were technically\\nperfect acts when they left the hands of the legislature.\\nNothing was said in the laws themselves regarding their\\ncoming into force as the result of a contingency, such as the\\nfavorable vote of the people in a referendum. The laws were\\nsubmitted to the electors afterward, by authority derived\\nfrom separate and distinct acts, which again were complete\\nwithin themselves, point it may be of considerable interest to\\nkeep in mind until we come to the consideration of some of\\nthe legal questions that have been brought out by the courts,\\nin reviewing legislation of this kind.\\nSoon after the Maine law of 1851 was enacted, and its\\nfame had spread afield, the legislatures of other States were\\nled to follow the interesting, if somewhat radical example of\\ntheir sister Commonwealth. Prohibitory liquor laws, either\\nwith or without the referendum feature, were passed in con-\\nsiderable number and variety. The legislature of Vermont\\nin 1852 enacted a measure of this kind, which was to go\\ninto effect in March 1853. the meantime, however, a vote\\nof the people of the State was to be taken as to their judg-\\nLaws of Maine, 1867, ch. 133,", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0218.jp2"}, "219": {"fulltext": "ON STATUTES OF GENERAL OPERATION 203\\nmerit and choice in regard to this act and if a majority of\\nthe ballots shall be no then it was not to become effective\\nuntil December 1853 (instead of in March).* Here, again,\\nthere was no direct submission of the law to the people.\\nThey were technically to determine only one point, the time at\\nwhich the act should come into force, though it was under-\\nstood that if they voted no the legislature which would be\\nin session again before December, would repeal the law, so\\nthat it would be e ntirely nugatory. In effect it was a sub-\\nmission of the question whether the act should be a law for\\nand during the time intervening from March to December\\n1853, which is hardly distinguishable from the case of the\\nopen reference of the whole subject to the electoral body.\\nThe vote v/as in the affirmative, and the law took effect on\\nthe first named of the alternate dates.\\nA somev/hat similar device was employed by the Michigan\\nlegislature in 1853. This legislature approached the great\\nconstitutional question, however, with all the sail out-\\nspread. Its law was an act prohibiting the manufacture of\\nintoxicating beverages and the traffic therein The legis-\\nlature distinctly declared that this act shall be submitted\\nto the electors of this State for their approval or disapproval\\nat a special election to be held in June 1853. However, it\\nwas added that if it shall appear that a majority of the votes\\n[ballots] cast have thereon adoption of the law prohibiting\\nthe manufacture of intoxicating beverages and the traffic\\ntherein, yes this act shall become a law of the State from\\nand after the first day of December 1853 but if a majority\\nof the votes cast upon the question have thereon adoption\\nof the law, etc. no this act shall take effect and become a\\nlaw of the State from and after the first day of March\\n1870 Here was another odd subterfuge the law was a\\npositive law to take effect anyhow, no matter whether the\\npeople voted yes or no upon it, but in the one case it should\\nLaws of Vermont, 1852, p. 19.\\nCf. State V. Parker, 26 Vt. p. 357.\\nLaws of Michigan, 1853, p. 100.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0219.jp2"}, "220": {"fulltext": "504 THE REFERENDUM IN AMERICA\\nbe in force from and after December i, 1853, the other\\ncase, not until March i, 1870.\\nThe referendum was attacked by a kind of flank movement,\\ntoo, in Rhode Island in 1853, when it was again a question of\\nvitalizing a prohibitory liquor law. In the Rhode Island act\\nit was provided that the legal voters in the several towns\\nof the State at the annual election for State officers in April\\n(the law was passed in January) should vote upon the ques-\\ntion of repealing this act In the event of a majority of\\nsuch ballots being cast in favor of the repeal of this act, the\\nsame shall be limited in its operations and have no effect after\\nthe tenth day from and after the rising of the General As-\\nsembly at its next May session.\\nThe Iowa legislature in 1855, was much more straight-\\nforward than any which had yet submitted this question to\\npopular vote. It declared simply and plainly that at an elec-\\ntion to be held in April 1855, the question of prohibiting\\nthe sale and manufacture of intoxicating liquors shall be sub-\\nmitted to the legal voters of this State The ballots should\\nbear the words For the Prohibitory Liquor Law or\\nAgainst the Prohibitory Liquor Law If a majority of\\nthe votes cast on the subject were for the adoption of the act,\\nit was to take effect on July i, 1855, otherwise it was to be\\nnull and void, the latter however only by implication.^\\nThe Maine Liquor Law was the subject of referenda\\nin several other states of the Union while the same wave of\\ntemperance sentiment was sweeping over the country. Al-\\nthough it has lately been regarded a much better method to\\nincorporate a proposition for the prohibition of the liquor\\ntrade in a constitutional amendment^ which reaches the people\\nin such a way that the legality of the submission cannot pos-\\nsibly be brought into question. North Carolina furnishes a\\nrather recent instance of a popular vote upon a statute. In\\n1 88 1 the legislature of that State passed a prohibitory law\\nwhich was to have full force and effect on and after Oc-\\nLaws of Rhode Island, 1853, p. 232.\\nLaws of Iowa, 1855, p. 58; Santo v. State, 2 Iowa, 165.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0220.jp2"}, "221": {"fulltext": "ON STATUTES OF GENERAL OPERATION 205\\ntober I, 1 88 1. In August, 1881, however, the sense of the\\nelectors was to be taken upon the question of prohibition. If\\nat this election a majority of the votes cast w^ere against\\nprohibition then no person was to be prosecuted or pun-\\nished for any violation of this act Without using plain\\nwords, this was nothing less than a positive repeal of the law,\\nif the people should vote against it in the referendum.\\nIt is difficult to draw distinctions, in fact, even if these\\nshould be possible by appeals to technicalities of language\\nbetw^een such cases of law-making by popular vote, and the\\nactual redelegation of power by the legislature, which all\\nstudents of our law and institutions declare to be a wholly\\ninvalid proceeding.\\nAnother referendum for which no specific authority had\\nbeen derived from the constitution, was that taken many\\nyears ago in California on the question of selecting a per-\\nmanent seat of government for that State. An act passed\\nby the State legislature in 1850 authorized an election upon\\nthis subject.^ The people in this case, however, seem to have\\nbeen regarded by the legislature merely as an advisory body,\\nwhose recommendations were not binding upon it. Cali-\\nfornia s permanent seat of government was twice changed\\nv/ithin four years in the early days of her career as a State,\\nthe first choice having been Vallejo, the second Benicia and\\nthe third Sacramento, the present capital.\\nOne of the boldest attempts ever made to introduce the\\npeople as an active factor in law-making, a case which soon\\ncame to be of standard authority as a model to be well\\navoided in the future, in view of the unfriendly judicial opin-\\nions it immediately evoked, is to be credited to New York.\\nThe legislature of that State in March 1849, passed a so-\\ncalled Free School Law The public system of gratuitous\\nschools had just begun to secure a foothold in this country\\nand it was yet a question with the legislature whether the\\npeople ought to be taxed for their own education. This law\\nLaws of California, 1850, p. 412.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0221.jp2"}, "222": {"fulltext": "2o6 THE REFERENDUM IN AMERICA\\nprovided that common schools should be free to all per-\\nsons between five and twenty-one years of age, residing in the\\nvarious districts into which the State was divided for pur-\\nposes of school administration. The law, however, was a\\nmere bill or proposal, since the electors were to determine by\\nballot at the annual election to be held in November, 1849,\\nwhether this act shall or not become a law The ballots\\ncast in favor of the adoption of the act were to contain the\\nwords School For the New School Law. Those cast\\nagainst its adoption School Against the New School\\nLaw. It was specified, moreover, that the ballots should be\\nfolded so as to conceal all the words except the word\\nSchool and in case a majority of all the votes in the\\nState shall be cast against the New School Law, this act shall\\nbe null and void but in case a majority of all the votes in\\nthe State shall be cast for the New School Law, then\\nthis act shall become a law and shall take effect imme-\\ndiately\\nThe legislature of New Hampshire submitted to the voters\\nof that State in 1880, a question in regard to minority rep-\\nresentation in corporations, a matter it would seem of little\\ngeneral interest to the public. It was proposed that share-\\nholders at elections for directors or managers of corporations\\nshould cast the whole number of votes for one candidate,\\nor distribute them upon two or more candidates, as he may\\nprefer The law, however, must be referred to the citizens\\nof the State and be approved by a majority of the electors\\nvoting upon it, or otherwise it should be of no ef-\\nfect\\nIn 1883, in order to feel how the popular pulse beat as to\\nthe very disagreeable question of contract labor in the State\\nprisons, the legislature of New York authorized a referendum\\nLaws of New York, 1849, pp. 192, 561.\\nLaws of New Hampshire, 1879, p. 365. The vote upon this law\\nwas 22,560 for, and 10,375 against, a total of 32.935- The whole vote\\nof the State for President in 1880 was 86,174. Cf. State v, Hayes, 61\\nN. H., 264.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0222.jp2"}, "223": {"fulltext": "ON STATUTES OF GENERAL OPERATION 207\\non this subject. The trades unions and other workmen s or-\\nganizations complained that their labor was being brought\\ninto competition with that of the public convicts. This vote\\nw^as wholly advisory to guide the legislature in its future\\ncourse. There v\\\\^as presented no law which the people were\\nto accept or reject.^ The State officers were asked to make\\na record of the number of votes which had been cast for and\\nagainst the proposition, and to publish the result for the pub-\\nlic information. Of a somewhat similar nature, though in-\\ntended for the guidance of the Federal rather than the State\\ngovernment, was a vote of the people of Nevada, in 1880,\\nfor and against Chinese immigration into the United States.\\nThe sense of the electors being made known, the Governor\\nwas to memorialize the President and Congress on the sub-\\nject, in the hope that the referendum would exert an influence\\nupon national legislation.^^\\nCalifornia furnishes some cases of a similar kind.\\nFor a long time much public sentiment, if rather indefinite in\\nstrength, has existed in favor of the election of United States\\nSenators by direct vote of the people instead of by the legis-\\nlatures, as is the method at the present time. In 1892 the\\npeople of California w^ere authorized to record their views\\non this point for the information of the President and Con-\\ngress.^* In the same year the California legislature asked\\nfor popular advice on a question of State policy, the electors\\nbeing invited to express their views for or against an educa-\\ntional qualification requiring every voter to be able to write\\nhis name and read any section of the Constitution in the Eng-\\nlish language\\nLikewise in Massachusetts, in 1895, the legislature asked\\nall persons qualified to vote for school committee therefore\\nboth men and women, to give in their votes at the next State\\nelection, yes or no in answer to the following ques-\\nAct o\u00c2\u00a3 May 25, 1883. Laws of New York for that year.\\nLaws of Nevada, 1879, p. 2y.\\nLaws of California, 1891, p. 46.\\n^^Ibid., p. 115.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0223.jp2"}, "224": {"fulltext": "2o8 THE REFERENDUM IN AMERICA\\ntion Is it expedient that municipal suffrage be granted to\\nwomen This referendum was quite unofficial, being with-\\nout binding force upon the legislature, which submitted no\\nlaw but simply requested the people to express their sense on\\nthis subject, presumably for legislative guidance later on.^\u00c2\u00ae\\nThe legislature in 1894, had asked the justices of the\\nSupreme Court of Massachusetts for their opinion as to the\\nconstitutionality of the submission of such a law, and al-\\nthough there was some difference in the court, a majority of\\nthe judges united in declaring that an act so adopted would\\nbe invalid. While this was strictly speaking, not an of-\\nficial deliverance being intended merely for the legislature s\\ninformation and advice, it is an admirable review of an im-\\nportant constitutional question. The opinion deterred the\\nlegislature from passing a conditional act on this subject,\\nand led it instead to adopt the simple plan of taking the sense\\nof the people on a proposition disconnected with any con-\\ncrete law. There is nothing, it would seem, that could pre-\\nvent the legislature from resolving to ask the people for ad-\\nvice. It is perhaps, as constitutional for it to do this, as to\\nask the Supreme Court or an executive officer of the govern-\\nment, or any other department, court or body, for an opinion\\nregarding any subject about which they may be presumed to\\nhave useful information.^^\\nThat there is not a greater number of instances in which\\nthe legislatures have submitted general State laws to a vote\\nof the people, and that in those cases at hand, they have gone\\nabout the work in so roundabout a way, is due to the hostility\\nwhich was early encountered in the State courts. As to the\\nconstitutionality or unconstitutionality of law-making\\nby popular vote in and for the States, always excepting\\nlaws for counties, cities and local districts, there is\\nto-day little difference of opinion. The general prin-\\nSupplement to the Public Statutes o\u00c2\u00a3 Massachusetts^ 1889-1895,\\nBoston, 1897, p. 1389.\\n*^For this opinion of the Massachusetts Justices, see 160 Mass., Sup-\\nplement, pp. 586 et seq.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0224.jp2"}, "225": {"fulltext": "ON STATUTES OF GENERAL OPERATION 209\\nciple that a body acting under delegated authority can-\\nnot redelegate its powers to some other person or body,\\nis a well-settled point in American law. Delegata potestas\\nnon potest delegari is a rule the virtue of which no one dis-\\nputes. Where the sovereign power of the State has located\\nthe authority there it must remain, says Judge Cooley,\\nand by the constitutional agency alone, the laws must be\\nmade until the constitution itself is changed. The power to\\nwhose judgment, wisdom and patriotism this high preroga-\\ntive has been entrusted, cannot relieve itself of the responsi-\\nbility by choosing other agencies upon which the power shall\\nbe devolved, nor can it substitute the judgment, wisdom and\\npatriotism of any other body for those to which alone the\\npeople have seen fit to confide this sovereign trust. The\\nAmerican courts have again and again reiterated this prin-\\nciple, and even where they have admitted that there might be\\nexceptions to the general rule, as in the case of local com-\\nmunities, the truth of the fundamental doctrine has never\\nbeen seriously questioned by any one.^\u00c2\u00ae\\nCooley, Constitutional Lunitations, p. 137; c\u00c2\u00a3. also the opinion of\\nthe Justices of the Supreme Court of Massachusetts, 160 Mass., Supple-\\nment.\\nThe first important case bearing upon this subject in any State came\\nto a decision of the Supreme Court of Delaware in 1847, Rice v. Foster,\\n4 Harr. 479, on a local option liquor law, which was declared to be un-\\nconstitutional. Other leading cases are the following Parker v. Com-\\nmonwealth, 6 Barr (Penn.) 507; Barto v. Himrod, 4 Seld. (N. Y.) 483;\\nThorne v. Cramer, 15 Barb. (N. Y.) 112; C. W. Z. R. R. Co. v. Clin-\\nton County, I O. S. 77; Boyd v. Bryant, 35 Ark. 69; Upham v. Super-\\nvisors of Sutter County, 8 Cal. 379 Ex-Parte Wall, 48 Cal. 279 State\\nV. Wilcox, 42 Conn. 364 Maize v. The State, 4 Ind. 342 Santo v. State^\\n2 Iowa, 165 Geebrick v. State, 5 Iowa, 491 State v. Weir, 33 Iowa, 134;\\nCommonwealth v. Weller, 14 Bush. (Ky.) 218; Fell v. State, 42 Md.\\n71; People V. Collins, 3 Mich. 343; Alcorn v. Hamer, 38 Miss. 652;\\nState V. Hayes, 61 N. H. 264; City of Paterson v. Society for Estab-\\nlishing Useful Manufactures, 4 Zab. (N. J.) 385 Morgan v. Monmouth\\nPlank Road Co., 2 Dutch. (N. J.) 99 Bank of Chenango v. Brown, 26\\nN. Y. 467; Gordon v. State, 46 O. S. 607; State v. Swisher, 17 Texas,\\n441. These cases are arranged chronologically and by States in ~ber-\\nholtzer. The Referendum in America, 1893, and may there be \u00e2\u0080\u00a2on-\\nveniently referred to.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0225.jp2"}, "226": {"fulltext": "2IO THE REFERENDUM IN AMERICA\\nIn six States only have the higher courts given in their\\nopinions on the direct question of the vahdity of law-making\\nby popular vote, in respect of measures which apply to the\\nwhole State. First and foremost is the opinion called out by\\nthe New York Free School Law of 1849, which was, as has\\nbeen observed already, a mere projet de loi, since the elec-\\ntors were to determine by ballot at an election to be held\\nin November next whether this act shall or not become\\na law The constitutionality of the law was made the text\\nof opinions by the Supreme Court in three separate judicial\\ndistricts before it reached the Court of Appeals. In two of\\nthese districts, all the judges concurring and with full\\nbenches, the law was declared to be unconstitutional, and of no\\neffect since it was only the draft of an act referred by a body,\\nwhose constitutional function it was to pass it definitively\\nitself, to another body which was unknown to the constitution\\nas a law-giver. In the other district where a different con-\\nclusion was arrived at, there was not a full bench, and there\\nwas a dissenting opinion. The New York Court of Appeals\\nto which the law came in 1853, delivered a notable opinion\\non this subject, establishing a line of argument which has be-\\ncome classic in the theory and practice of the United States.\\nChief Justice Ruggles in the majority opinion said\\nThe exercise of this power by the people is not expressly\\nand in terms prohibited by the Constitution but it is forbid-\\nden by necessary and unavoidable implication. The senate\\nand assembly are the only bodies of men clothed with the\\npower of general legislation. They possess the entire power.\\nThe people reserved no part of it to themselves excepting\\nin regard to laws creating public debt, and can therefore exer-\\ncise it in no other case. The legislature had no power\\nto make such submission, nor had the people the power to\\nIn the seventh district, Johnson v. Rich, 9 Barb. 680 in the second\\ndistrict Thorne v. Cramer, 15 Barb. 112, and in the fifth district Brad-\\nley V. Baxter, 15 Barb. 122.\\nJohnson v. Rich, 9 Barb. 680.\\nBarto V. Himrod, 4 Seld. ((N. Y.) 483.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0226.jp2"}, "227": {"fulltext": "ON STATUTES OF GENERAL OPERATION 211\\nbind each other by acting upon it. They voluntarily sur-\\nrendered that power when they adopted the Constitution.\\nThe government of the State is democratic; but it is a rep-\\nresentative democracy, and in passing general laws the\\npeople act only through their representatives in the legisla-\\nture.\\nThe theory was early developed that a representative law-\\nmaking body could pass a law whose going into effect was\\nmade conditional upon the happening of a future contingent\\nevent, which might perhaps be the vote of a majority of the\\nelectors in its favor. Such legislation was pointed to both\\nin the Federal and State practice, and it has since become\\nquite common, especially with respect to municipalities and\\nlocal communities in which connection it will receive fuller\\nconsideration in another part of this work. It is not ques-\\ntioned that a legislature may pass laws for local districts\\nwhose going into effect depends upon a contingency, which\\ncontingency is frequently a majority vote of the people in\\nfavor of the act. This theory was developed in Massachu-\\nsetts as early as in 1826.-^ But the question here is this,\\ncan the referendum on laws covering the entire State seek\\nand find the same defense? There is no support for this\\nview in Barto v. Himrod, for in this opinion the New York\\nCourt of Appeals said The event on which the act was made\\nto take effect was nothing else than the vote of the people on\\nthe identical question which the Constitution makes it the duty\\nof the legislature itself to decide. The legislature has no\\npower to make a statute dependent on such a contingency,\\nbecause it would be confiding to others that legislative discre-\\ntion which they are bound to exercise themselves, and which\\nthey cannot delegate or commit to any other man or men\\nto be exercised. They have no more authority to refer such\\na question to the whole people than to an individual. The\\npeople are sovereign, but their sovereignty must be exercised\\nin the mode which they have pointed out in the Constitution.\\nWales V. Belcher, 3 Pick. 508.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0227.jp2"}, "228": {"fulltext": "212 THE REFERENDUM IN AMERICA\\nJustice Willard in a separate opinion on the same case, in\\nconcluding his argument, forcibly said If this mode of leg-\\nislation is permitted, and becomes general, it will soon bring\\nto a close the whole system of representative government\\nwhich has been so justly our pride. The legislature will be-\\ncome an irresponsible cabal, too timid to assume the responsi-\\nbility of law-givers, and with just wisdom enough to devise\\nsubtile schemes of imposture to mislead the people. All the\\nchecks against improvident legislation will be swept away,\\nand the character of the Constitution will be radically\\nchanged.\\nIn Iowa, in respect of the prohibitory law which was sub-\\nmitted to the people in 1855, the court took up a similar posi-\\ntion. The highest judicial tribunal of that State in its opin-\\nion respecting this act said The General Assembly cannot\\nlegally submit to the people the proposition whether an act\\nshould become a law or not; and the people have no power\\nin their primary or individual capacity to make laws. They\\ndo this by representatives. There is no doubt of the au-\\nthority of the legislature to pass an act to take effect upon\\na contingency. But what is a contingency in this sense and\\nconnection? It is some event independent of the will of the\\nlaw-making power as exercised in making the law or some\\nevent over which the legislature has no control.\\nThe will of the lawmaker is not a contingency in relation to\\nhimself. After a bill has passed the two houses\\nand received the approval of the Governor, and thus becomes\\na law by the constitution, how could a vote of the people\\naffect it? As well might this court submit the decision of\\nthese causes to a vote of the people of the State, or of a judi-\\ncial district, or the Governor his pardoning power.\\nSanto V. State, 2 Iowa, 165. It is interesting to note in this connec-\\ntion that the court, although declaring the referendum which was pro-\\nvided for in the law, to have been unconstitutional, upheld the constitu-\\ntionality of the law itself. The judges said it was a complete law, and\\nhaving been regularly passed by the legislature, and signed by the Gov-\\nernor, they could regard as invalid only that part of it providing for\\na vote of the people. The question was not referred to popular vote as", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0228.jp2"}, "229": {"fulltext": "ON STATUTES OF GENERAL OPERATION 213\\nThe singular method of securing a vote of the people on\\nthe prohibitory liquor law of Rhode Island, namely by a refer-\\nendum to decide whether or not an act which was complete\\nwhen it came from the hands of the legislature should be re-\\npealed, also led to a judicial opinion. The court here said that\\nthe Constitution of the State had vested in the General As-\\nsembly alone composed of the two houses, the power of enact-\\ning laws and the Assembly could not call to their aid any\\nother body making the existence of a lav/ depend in whole or\\nin part upon the will of such other body. They held, how-\\never, that this law could not be objected to on such a ground\\nfor the vote was not for or against the enactment, but for\\nor against the repeal of the law, and the referendum was to\\nhave no effect unless it should be favorable to repeal. The\\ncitizens voted against the repeal of the act, and the court were\\nof opinion therefore that they were not called upon to take\\na hand in the matter, though the inference was plain that an\\nadverse decision could have been expected in any other\\ncase.^^\\nIn Michigan on the question of the constitutionaHty of\\nthe referendum upon a prohibitory liquor law, to determine\\nwhether the act should take effect in 1853, or not until 1870,\\nthe court was equally divided. All the judges concurred in\\nthe proposition that the power of enacting general State laws\\ncould not be delegated by the representative body, even to\\nthe people themselves. One opinion, however, went out from\\nthe view that the favorable vote of the people could be the\\nhappening of a future event which was a contingency such as\\nmight rightly be named by the legislature. The act was com-\\nplete when it left the hands of the legislature. The people\\nwere simply to decide when it should go into effect. It was\\na positive law in any case, for the only question to be de-\\ntermined was whether it should come into force on December\\nin the case of the New York Free School Law whether this act shall\\nor not become a law in which event the Iowa court lead us to infer\\nthat they would have held the whole act to be unconstitutional.\\nBrown v. Copeland, 3 R. I. 33.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0229.jp2"}, "230": {"fulltext": "214 THE REFERENDUM IN AMERICA\\nI, 1853, or March i, 1870. The other opinion was a vigorous\\ndenial that the vote of the people which was required by the\\nlaw could be regarded as a contingency in any proper sense.\\nLaws to take effect upon the happening of a future event\\nmust be complete and positive in themselves, when they\\npassed from the hands of the legislature. It was not per-\\nmissible that they should become laws at the will of some\\nforeign or extraneous power which has been asked to\\ndetermine as regards the expediency of the law itself. Such\\na determination as to the expediency of the legislature s\\ncourse, the judges in their opinion said, had here been\\ncontemplated, and the act therefore, must be held to be un-\\nconstitutional. This act of the legislature, the leading\\nopinion adverse to the law continued, was a most flagrant\\nviolation of the Constitution, and of our representative sys-\\ntem of government in whose stead now it v\\\\^as proposed\\nthat a collective democracy, the most uncertain and danger-\\nous of all governments should be arbitrarily substitu-\\nted\\nIn Vermont s prohibitory liquor law of 1852, like Michi-\\ngan s, the point submitted to the people was the date upon\\nwhich the law should become operative. The Supreme Court\\ndeclared in this case that the form of the law was such that\\nits coming into force did not depend upon the vote of the\\npeople. An adverse vote could have only suspended the\\noperation of the law for a few months. It was a positive act\\nwith or without the referendum. This court, however, went\\nmuch farther than any of the other tribunals. They declared\\nthat a favorable vote of the people was a good and sufficient\\ncontingency for the going into effect of general State laws,\\nas well as laws affecting local districts. No distinction was\\ndrawn between laws for the whole State and laws for the\\nlocalities. There had been such legislation in free states, the\\ncourt said, for hundreds of years, and as for its being void and\\nirregular, the opinion continued, it was a singular fact that\\nPeople V. Collins, 3 Mich. 343.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0230.jp2"}, "231": {"fulltext": "ON STATUTES OF GENERAL OPERATION 215\\nthe remarkable discovery should first be made in the free\\nrepresentative democracies of America where the\\nlegislators are confessedly the mere agents and instruments\\nof the people, to express their sovereign and superior will to\\nsave the necessity of assembling the people in mass etc.^\\nThis very democratic opinion is probably without its counter-\\npart among all the decisions in the American courts on the\\nsubject of the referendum. In its disregard of the legal bar-\\nriers which the Fathers established in this country to\\nsave the people from the rule of the crowd, it must be held to\\nrank as a very unusual state paper and one laden with very\\ndangerous sentiments.\\nA recent judicial opinion in reference to conditional legis-\\nlation of this kind, was dehvered in New Hampshire in 188 1,\\nthe law of 1879 allowing minority representation in the boards\\nof directors of corporations having come to the court for re-\\nview. Here the judges drew a very plain distinction between\\nthe State and the localities. All our experience, and con-\\nsiderations of policy as well, tend to vindicate the theory that\\nthe contingency of a favorable vote of the people may be\\nthe occasion of the taking effect of a law which the State\\nlegislature has passed to apply to a county, town or other\\nlocal district. In the organization of State government,\\nhowever, said the court in the New Hampshire opinion, for\\nreasons by them deemed sufficient, the people vested the su-\\npreme legislative power not in themselves, but in certain\\nagents as a personal trust. They were of opinion\\nthat while there might be good reason for granting to mu-\\nnicipalities a limited power of making local law, it was not\\nwise to attempt to carry on the work of State legislation in\\ntown meeting. They might have made an effort to overcome\\none of the difficulties of that method by authorizing a State\\ncommittee to propose laws, and requiring the Governor to as-\\ncertain and proclaim the result of the popular vote in the\\nmanner adopted by the act of 1879 They preferred and they\\nState V. Parker, 26 Vt. 357.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0231.jp2"}, "232": {"fulltext": "2i6 THE REFERENDUM IN AMERICA\\nestablished a representative republic; and they did not con-\\nfer upon the legislature the power of abolishing it, repeal-\\ning the second article of the Constitution and changing the\\nsupreme law-making body into a committee on proposals.\\nThat power the legislature would have if they could transfer\\nfrom themselves to otiiers the responsibility of passing or re-\\nfusing to pass a law of a non-local character. If the power\\nof general legislation could be conveyed by the act of 1879,\\nto those who might be induced to exercise it in town meeting,\\nall laws could be made and repealed in the same way, and the\\nrepresentative character of the government could easily be\\nextinguished.\\nThus in but one State, Vermont, do we find a higher court\\nthat has made a declaration in favor of the system of sub-\\nmitting general State laws to popular vote, when the legis-\\nlature is unable to point to a clause in the constitution which\\nspecifically authorizes the submission. In Michigan the\\ncourt was equally divided on the point. The other decisions\\nare against the proceeding. In both Vermont and Michigan,\\nthe issue was not quite direct, because of the technicalities\\nwhich the legislatures had purposely raised to avoid such a\\nresult as that one earlier recorded in New York, in reference\\nto the Free School Law. The people were to determine, not\\nwhether the bill should become a law, but the mere point of\\ntime when it should become effective. The law when it left\\nthe legislature, was a positive law in any case; the people\\nv^ere to decide but this single question whether it should\\ncome into force at once, or at some future time, as for in-\\nstance, nearly twenty years hence, which was the alternate\\ndate in Michigan.\\nNevertheless these decisions seem to have availed the ref-\\nerendum very little either in Vermont or Michigan. Justice\\nPratt, in his opinion against the constitutionality of the\\nMichigan law in 1854, alluding to the unfortunate division in\\nthe court, and filled with alarm for the future, said This\\nState V. Hayes, 61 N. H. 264.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0232.jp2"}, "233": {"fulltext": "ON STATUTES OF GENERAL OPERATION ^17\\nsovereign law of our constitutional system of government\\n[the Constitution] says that the legislature shall make the\\nlaws for the State; that this and this only is its legitimate\\nbusiness as a distinct branch of the government. But the\\nmembers of this constitutional body meet and say we will\\nnot be governed by the expressed will of the sovereign.\\nA majority of the electors sanction such an unau-\\nthorized proceeding. The question is taken to the\\ncourt of last resort, whose duty it is under the Constitution,\\nto determine the question, but the members of that court are\\nunable to agree, being equally divided, so that no affirmative\\ndecision upon it can now be made. In view of such a state of\\nthings, what is to be the final result and end of this kind of\\nlegislation? Our boasted system of representative govern-\\nment is to be perverted, and a collective democracy the\\nmost uncertain and dangerous of all governments to be arbi-\\ntrarily substituted in its stead. Even in Vermont where\\nthe court was so well convinced that the people could be in-\\ntroduced into the system at the legislature s will to accept or\\nreject State laws, the referendum has not enjoyed any marked\\ndevelopment.\\nThe unconstitutionality of laws of this character is a general\\nprinciple so firmly established throughout the Union to-day,\\nthat the legislature prefers not to run the risk of submitting\\nits acts to popular vote. In the case of prohibitory liquor\\nlaws, and other legislative questions of a vexatious char-\\nacter, it is a much more feasible plan, as I have noted on\\nearlier pages, to embody the proposal in an amendment to\\nthe State constitution. With the liberalization of our ideas\\nin regard to constitutional law, and the simplification of the\\nprocess by which amendments may be submitted to popular\\nvote, there is little reason now why the legislature should\\npursue a course that may bring down upon itself the charge\\nof having misunderstood and violated the charter from which\\nit derives its whole authority.\\n^People V. Cdilins, 3 Mich. 368.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0233.jp2"}, "234": {"fulltext": "CHAPTER IX\\nTHE LOCAL REFERENDUM BILLS AFFECTING THE SCOPE AND\\nFORM OF THE LOCAL GOVERNMENTS\\nIt is in the counties, cities, towns and the other local dis-\\ntricts of the States, by whatever name they may be designated,\\nthat the referendum has reached the fullest measure of its\\ndevelopment in America. In no other field is it so laborious\\nfor the student to assemble the facts, since the laws govern-\\ning the localities make very large volumes in every State, and\\nthey are being changed at each legislative session. Rules\\nof a general character are observed in each State, however,\\nin the enactment of such legislation, and all the Constitu-\\ntions have more or less to say for the guidance of the legis-\\nlatures. Indeed, in many States, and it is a tendency which\\nhas become firmly established in our practice, special legis-\\nlation in regard to localities is being prohibited altogether,\\nor the privilege of passing special laws is at any rate\\nbeing very much curtailed. This again is an important re-\\nstriction upon the powers of the legislature, which, as we have\\nseen, has been losing on so many sides, and fewer legislative\\nsessions, shorter sessions and smaller volumes of laws are the\\nmost natural and not unwelcome result. The great numbers\\nof private acts which earlier burdened the statute books, and\\nwhich had reference to separate municipalities, cities, coun-\\nties, towns, townships, etc., meant to serve a purpose in\\nsingle emergencies, have been superseded by general laws\\nin most of the States. It is true that there are some important\\nCommonwealths in which special laws are still permitted\\nby the Constitution, but the evils which have crept into the\\nlegislative halls through this system, especially with the\\ngrowth and development of great cities, have become so of-\\n218", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0234.jp2"}, "235": {"fulltext": "ON BILLS AFFECTING LOCAL GOVERNMENT 219\\nfensive that the tendency against such legislation is very\\nmarked, even where it is not made entirely impossible by a\\nconstitutional prohibition.. The lobbying, log-rolling, jam-\\nming and other abuses of even a worse character have come\\nup in the train of the special law and this kind of legisla-\\ntion has been made a mark therefore for the conventions\\nwhich in many ways in recent years have done so much to\\ngive new form to the State governments.\\nThe general law is a law. which is passed by the legis-\\nlature to apply to all the cities, counties or other local dis-\\ntricts of the State, or to certain classes or groups of cities,\\ncounties or districts. By this means it becomes very much\\nmore difficult for the legislature to pass a law for a single\\ncity or other locality, and it would be impossible for it to do\\nso were it always acting in good faith, obedient to the spirit\\nas well as the letter of the constitution. Some of the devices\\nwhich are employed to evade this constitutional restriction\\nare very clever, and at the same time very amusing. It is\\nusual for the legislatures when they pass their general laws,\\nto divide the counties and cities into a number of classes\\nThis course seems to be quite essential, especially in the case\\nof cities, since these unwieldy giants which have come up to\\nconfuse and make more difficult the problems of State ad-\\nministration often have enormous populations. A very large\\npercentage of the whole population of a State may be urban,\\nand in all likelihood one or two cities will have got such a\\nstart over rivals in the State, that they will contain as many as\\na third or fourth part of the inhabitants of the whole Com-\\nmonwealth. A city of 1,000,000 inhabitants cannot be gov-\\nerned by the same organic law as a city of 100,000, and the\\nlatter will have needs dififering in a material way from those\\nof a municipality which has a population of only 10,000. The\\nState legislature therefore creates classes and it not in-\\nfrequently happens that there is but a single city in a class.\\nFor instance, in Pennsylvania, cities, for purposes of govern-\\nment, are divided into three classes the first made up of\\ncities containing a population of 600,000 or more, the second,", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0235.jp2"}, "236": {"fulltext": "2 20 THE REFERENDUM IN AMERICA\\nof cities below 600,000, but not less than 100,000 inhab-\\nitants, the third, of cities having less than 100,000 inhabitants.\\nNow it so happens that Philadelphia is the only city in the\\nState of the first class, and until a rather recent time Pitts-\\nburg was the only city of the second class, so that while os-\\ntensibly engaged in passing a general law, the legislature\\nthough not naming them, could unrestrainedly legislate for\\nPhiladelphia and Pittsburg, through laws applying to all\\ncities of the first class and all cities of the second class\\nThis arrangement of classes has been held to be within the\\nmeaning and intent of the Constitution by the highest court\\nin the State.^ Acts dividing the cities of the State into five\\nand seven classes respectively were, however, declared to\\nbe unconstitutional, in that it was carrying the classification\\ntoo far, thus recognizing a vicious principle which ought\\nto be unhesitatingly condemned\\nThis vicious principle however, has not always been\\ncondemned in other States. The number of classes has\\nby no means been confined to three, even where the consti-\\ntutional restraints seem ciuite as rigid as in Pennsylvania, and\\nthe intent to evade the constitutional limitation on the part\\nof the legislature quite as deserving of the courts disappro-\\nbation. For instance, Missouri recognizes four classes of\\ncities, California six,, and Ohio no less than seven, and below,\\nthese villages and hamlets.* In California the counties of the\\nState are divided by the legislature into no less than fifty-\\nthree classes.^ There are only fifty-seven counties in the en-\\ntire State. More than one county could scarcely find mem-\\nbership in the 46th class, for instance, which includes all\\ncounties having a population over 4,930, and under 4,980, or\\nin the 33d class of counties having a population in excess of\\n10,030, and less than 10,070, or in the 49th class containing\\nPepper Lewis, Digest of Pennsylvania Laws, Vol. I, p. 555.\\nWheeler v. Philadelphia, yj Pa. 34.\\nAyars Appeal, 122 Pa. 266.\\nGiauque s Revised Statutes of Ohio, 7th edition, sec. 1546.\\nStatutes and Amendments to the Codes of California, 1893, P- 384.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0236.jp2"}, "237": {"fulltext": "ON BILLS AFFECTING LOCAL GOVERNMENT 221\\nover 3,700 and under 3,780 inhabitants. In Ohio also a num-\\nber of laws pretending to be general have been passed, in\\nwhich trivial differences of population furnish the basis for\\nthe classification, as for example, a law of March 29, 1879,\\nwhich was to apply to all counties having a population at the\\nFederal census next preceding the passage of the act, of not\\nless than 29,130, nor more than 29,135 and another of May\\n14, 1894, containing a reference to all counties having a\\npopulation of not less than 31,940 nor more than 31,960, and\\nnot less than 35,400 nor more than 35,500. There is some-\\ntimes even greater definiteness in the act e. g., a direction to\\nthe commissioners of any county in Ohio containing a popu-\\nlation by the last census of 49,974 Again a law of 1S95 in\\nTennessee w^as made to apply to counties of not less than\\n30,000 nor more than 34,000 inhabitants, to those of a popula-\\ntion of 55,000 and over, and to such adjoining counties as\\nmight have inhabitants numbering 35,100 or over. Such in-\\ngenious attempts to enact special laws despite constitutional\\nprohibitions have several times reached the courts, and have\\ncalled forth unfavorable opinions from the judiciary.^\\nAgain efforts have been made to introduce geographical\\ndistinctions in making up the classes, as in Pennsylvania,\\nwhere a few years ago a law was passed to apply to all\\ncounties in this Commonwealth where there is a population of\\nmore than 60,000 inhabitants, and in which there shall be any\\ncity incorporated at the time of the passage of this act with a\\npopulation exceeding 8,000 inhabitants, situate at a distance\\nfrom the coimty seat of more than twenty-seven miles by the\\nusually travelled public road This covert designation of\\nCrawford County and the city of Titusville, the Pennsylvania\\nSupreme Court likev/ise declared to be an unconstitutional\\ndevice and the judges offered the interesting opinion that\\nGiauque, op. cit., sec. 2107-7.\\nActs of Tennessee, 1895, pp. 380-81.\\nSee 21 O. S., I 36 O. S., 481; 53 O. S., 94; 54 O. S., 470; 96\\nTenn., 696.\\nAct of Apr. 18, 1878, Pennsylvania Laws, p. 29.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0237.jp2"}, "238": {"fulltext": "22 2 THE REFERENDUM IN AMERICA\\nthere could be no proper classification of cities or counties,\\nexcept upon the basis of population.\\nIn addition to the important restriction upon the power of\\nthe legislatures, which is conveyed in this prohibition of\\nspecial legislation, there are other prohibitions materially\\nlimiting these bodies in this field of their activity, with respect\\nto local communities. The conventions, in their desire to\\nsafeguard local interests, and insure local governments\\nagainst too much legislative interference have conferred upon\\nthe counties, cities, etc., a considerable amount of authority,\\nwhich they are to exercise directly and independently. The\\nagencies of local government within the State therefore act\\nunder the Constitution, to a certain degree without the media-\\ntion of the legislature. They can point to the Constitution\\nas the charter from which their powers are directly derived.\\nIn those respects, therefore, in which the conventions have\\nlaid down definite rules for the local districts, the legislature\\ncan act only in a supplementary way. It can still legislate,\\nif not forbidden to do so, but only in filling out the framework\\nwhich has been set up by the convention, and in passing laws\\nwhich are necessary to a proper carrying out of the conven-\\ntion s will.\\nIn several States indeed there are tendencies at work to free\\nthe localities almost altogether from the legislature s au-\\nthority, and to make them separate and self-governing, to a\\ndegree never before suggested or contemplated. In four\\nStates such a result has been arrived at, with respect to cities,\\nin that they may frame their own charters, namely, Mis-\\nsouri, California, Washington and Minnesota. They are\\nthus created almost independent Commonwealths within the\\nCommonwealth, so to speak, subject, of course, to the general\\nsupervision of the State in administrative and judicial matters.\\nThe city is empowered to elect its own Board of Free-\\nholders which acts like a constitutional convention. It\\nframes a charter, submits it to the people of the city, and the\\nCommonwealth v. Patton, 88 Pa. 258.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0238.jp2"}, "239": {"fulltext": "ON BILLS AFFECTING LOCAL GOVERNMENT 223\\nlegislature s influence over the city s affairs, by this means, is\\nconfined within very narrow bounds. It was even proposed\\nin California a few years. ago to extend a similar privilege\\nto counties, thus introducing a new principle into another im-\\nportant field of local government. There is risk to-day, in-\\ndeed, in view of recent developments in several States of\\nlosing sight of the fundamental fact that the municipal and\\nlocal governments have stood, and in the nature of the case,\\nmust certainly continue to stand in very close relation to the\\nState legislature.\\nThe system of local administration in this country, rural\\nand urban, is a very difficult one for any but the careful stu-\\ndent clearly to understand. There are different methods of\\ndividing and subdividing the burden and the responsibility\\nof local management in the different States. There are dif-\\nferent units, some larger and some smaller, the result of an\\nhistorical development. Some bear one name and some an-\\nother, though systematiza tion, taking the Union as a whole,\\nis not at all impossible. Our whole scheme of local govern-\\nment rests on the idea that by an administration of affairs\\nin local districts, through officers locally chosen, public func-\\ntions can be exercised to better advantage, and with more hope\\nof the people s acquiescing in the result, than if all power\\nemanated from some distant central authority.^^ The power\\nof the law-making agents of the State, the convention and the\\nlegislature, over these municipal corporations and local dis-\\ntricts is very great, both theoretically and in actual fact.\\nThey are derivative creations of the State.^^ There is\\nno limitation upon the power of the legislature in respect of\\nthese corporations, except as it is found in the Federal or\\nState Constitutions, though to the latter, as I have already\\nindicated, a considerable number of restraints can now be\\ntraced. The legislature in the natural course of things, not\\nonly creates, but it can also alter or abolish the local govern-\\nment, except of course and always as it is limited in the exer-\\nDillon, Municipal Corp orations j 4th ed., 1890, Vol. I, p. 29.\\nIbid., p. 55.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0239.jp2"}, "240": {"fulltext": "2 24 THE REFERENDUM IN AMERICA\\ncise of its prerogative by the constitution. But as a result of\\ndifferent influences, chief of them being the convention, the\\nlocal governmental districts are plainly gaining larger liber-\\nties. To an extent that was scarcely intended even by those\\nwho framed our very liberal system of local government,\\nthe communities are coming to be more free from the State\\ncapitals, and especially from the State legislatures. Grad-\\nually political power and influence are being more and more\\ndistributed. In other words, we are living in the presence\\nof a movement whose leading characteristic is greater political\\ndecentralization. The convention looking about for agents\\nit could trust, has given greater powers to these local corpora-\\ntions, and thus has pressed in upon the legislature from still\\nanother side.\\nWhile we before had in this country what we named local\\nself-government, in distinction to some forms abroad which\\nhave been evolved as a part of a highly centralized system,\\nwe seem to be extending this idea, enlarging our notions in\\nthis regard, and making the corporations freer still. Es-\\npecially marked is the tendency to emancipate large cities from\\nthe legislatures as the result of a movement toward what has\\nbeen popularly called Home Rule and we have the re-\\nmarkable manifestation, therefore, of municipalities govern-\\ning themselves, not under charters granted them by the legis-\\nlatures, but framed by committees of their own citizens, and\\nadopted by their own citizens by plebiscite, under authority\\nderived from a rival law-making body, the constitutional con-\\nvention.\\nThere are in this country, as Mr. Bryce has so clearly ex-\\nplained, three general systems of local government. He has\\ncalled these the town system, the county system and the mixed\\nsystem, the latter being one in which neither the town, nor the\\ncounty is of preponderating influence, though both units are\\nat hand. In New England, the town, of course, forms the\\nbasis for all local government, and although there are counties\\nalso, these are only loose aggregations of towns. It is in the\\nlatter that political interest centers, and they can trace their", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0240.jp2"}, "241": {"fulltext": "ON BILLS AFFECTING LOCAL GOVERNMENT 225\\nhistory back to a time when a central colonial or State gov-\\nernment had not yet been developed. The primary assembly\\nof citizens still meets in each town to legislate upon questions\\nof common importance. In the South, as a development from\\nthe plantation system, the county, called in Louisiana the\\nparish, is the predominating unit in local government, while\\nin the central belt of States, the county and town or township,\\nwhich exist side by side, are contending for the mastery so\\nhotly, that it is difficult to say whether the larger or the\\nsmaller area will gain the victory. In those parts of the West\\nwhere settlers from New England have established them-\\nselves, they have taken with them a love for the town and its\\nmass meeting of citizens, though in many other sections the\\ncounty, in view of the thinness of the population, and the\\ngeneral disadvantages attending many governments where\\none would just as well serve the people s few needs, is in the\\nascendency.\\nExisting side by side with these various forms, and coinci-\\ndent in some cases with them, are the municipal corporations,\\nthe cities of various classes and grades, the boroughs, villages,\\nincorporated towns and hamlets, which act under charters of\\nmore specific derivation. Usually when a certain area is in-\\ncorporated, it combines in its new government, with whatever\\nnew powers it may have obtained, those formerly exercised\\nover this district by the township. The township govern-\\nment, therefore, in respect of this territory, ceases to exist, and\\nthe village, borough or whatever its name, takes its place.\\nThe relations of the new incorporation to the county, how-\\never, continue as before. With respect to larger cities, they\\nnot infrequently attain such size that they occupy entire\\ncounties, or are created into separate counties. Thus the\\nboundaries of not a few of our great municipalities are co-\\nterminous with the counties in which they are situated, the\\ncity and county administration being carried on in such a way\\nthat to the ordinary citizen the point at which one ceases to\\nact and the other enters upon the fulfillment of its duties, is\\nnot readily to be distinguished.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0241.jp2"}, "242": {"fulltext": "2 26 THE REFERENDUM IN AMERICA\\nThere are, too, other local districts which have been organ-\\nized to serve some specific purpose, and which exercise quasi\\ncorporate power. One of the most common forms is the\\nschool district, a territorial area sometimes coincident with the\\ntown or township, though more often having different bound-\\naries. This exists as its name implies, to further the system\\nof public education, enabling the people to tax and bond them-\\nselves for school purposes. There are likewise irrigation\\ndistricts in arid regions, sanitary districts in swampy\\nlands, levee districts in States bordering on rivers which\\noverflow their banks, notably the Mississippi, road dis-\\ntricts where it is a question of extending and improving\\nhighways, park districts fire districts fencing dis-\\ntricts etc.\\nIt is a fact, then, beyond dispute, that the legislature\\nhas very large and indeed almost unlimited powers\\nover municipal corporations, and the quasi corporations, such\\nas counties, townships, school districts, etc., except as this\\npower is in words withheld from it, or it is restricted in the\\nexercise of its functions by the constitution. The State has\\ncreated the local governments, and the State acting through\\nits two law-making bodies, the legislature and the convention,\\nis responsible for the general conduct and management of the\\nlocal corporations. They may be self-governing to a larger or\\na less extent, according as to the terms of the bill or charter\\nfrom which their authority is derived. Some are self-govern-\\ning by title drawn from the legislature, some point to the con-\\nvention as the source of their extensive powers. It is here\\nour special task to indicate to what degree the people have\\nbeen brought in, by one or the other or both of these bodies,\\nand have become their own law-makers in the various local\\ncommunities of the United States.\\nn the first place, as we shall later see, the distinction which\\nVawn in the State is valueless in the city, the county and\\nocal district. While in the State, the legislature must\\nit to the constitution if it desires to submit a law to the\\n^eople, and make its passage depend upon their acceptance", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0242.jp2"}, "243": {"fulltext": "ON BILLS AFFECTING LOCAL GOVERNMENT 227\\nof the act, in the matter of laws for the locaHties, the legis-\\nlature has original authority by reason of its comprehensive\\npowers over the corporations which it creates. There are\\nnot a few instances in which law-making by popular vote in\\nthe local districts is provided for in the State Constitutions,\\nbut the legislature can employ the referendum without such\\ndefinite authorization. The practice of many years en-\\ntrenches us in this view, the judiciary has generally given its\\nacquiescence and support to this steadily developing tendency,\\nand the only distinction to be observed in this connection is\\nthis, that while a legislature must submit a question of local\\ngovernment to vote of the people when enjoined so to do by\\nthe constitution, it can in other cases in which the constitution\\nis silent, act at its own sole discretion. In what classes of\\nsubjects, and to what degree legislation by the people has se-\\ncured a foothold in this department of American law, will\\nnow be explained.\\nIn the States, as we have noted, three general classes of\\nsubjects have become topics for a direct vote of the people\\nFirst, subjects pertaining to the form, the scope and\\njurisdiction of the State governments, as in the referenda on\\nthe question of calling a constitutional convention, on new\\nconstitutions, on the change of State boundaries, and the lo-\\ncation of State capitals second, subjects having to do with\\ndebt, taxation and finance; third, subjects of a vexatious\\ncharacter upon which the people are likely violently to dis-\\nagree, as the regulation or prohibition of the trade in intoxi-\\ncating liquors, the extension of the suffrage, etc. This classi-\\nfication may be conveniently carried down into the local dis-\\ntricts, and we come first to that large group of subjects which\\nhave a bearing upon the character, form and jurisdiction of\\nthe local governments.\\nIt will conduce to a more intelligible result if this class be\\ndivided into four separate sub-classes of referenda which will\\nbe found to relate to the following matters\\n(i) The determination of the area of the local political\\ndistricts, their boundaries, etc.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0243.jp2"}, "244": {"fulltext": "2 28 THE REFERENDUM IN AMERICA\\n(2) The selection of county seats and sites for court-\\nhouses, city halls and other public buildings.\\n(3) The selection of a corporate name.\\n(4) The choice of a city charter or local government act,\\nand the determination of the particular legal form which the\\ngovernment shall take.\\nWe have (i), therefore, referenda to determine local ter-\\nritorial and boundary questions. In this class there is in the\\nfirst place a vote of the people in the matter of forming a new\\ncounty, or of changing the boundaries of counties already\\norganized; Just as the people of the District of Maine were\\nallowed in 18 19 to decide for themselves whether or not they\\nshould organize a separate State and part company with\\nMassachusetts, so it is usual for the people of the principal\\ndistrict into which the State is divided for purposes of local\\nadministration, i. e., the county, to determine the question\\nof cutting loose from an older county, and of leading a sep-\\narate life. In many of the newer States of the West, the or-\\nganization of new counties takes place very frequently. As\\nthe inhabitants increase in number, the counties already in\\nexistence are found to be inconveniently large, and it appears\\ndesirable and expedient to reduce the limits of the political\\ndistricts, and thus consolidate the work of local adminis-\\ntration.\\nSometimes the change of boundaries is not so thorough-\\ngoing. A separate county is not created, but a part of one\\ncounty is stricken off, and is added to another county. This\\nreferendum, like many that are to follow, had its birth in\\nspecial acts of the legislature passed to meet specific needs\\nin individual districts. It then came to be a subject for\\ngeneral laws, a uniform process being prescribed in all parts\\nof the State when it was desired to form new counties, and\\nalter the boundaries of old ones. More recently the consti-\\ntutional conventions have taken hold of the question, and as\\nif to put it securely into the State practice and prevent any\\nfailure by the legislature, the Constitutions of twenty States\\nto-day require this referendum, viz Arkansas, Colorado,", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0244.jp2"}, "245": {"fulltext": "ON BILLS AFFECTING LOCAL GOVERNMENT 229\\nIdaho, Illinois, Kentucky, Louisiana, Maryland, Minnesota,\\nMississippi, Missouri, Nebraska, North Dakota, Ohio, South\\nCarolina, South Dakota, Tennessee, Texas, Utah, West\\nVirginia and Wyoming.^^ It is usual to consult not only the\\npeople of the district which is to be created into the new\\ncounty, or the people of the old county which is to receive the\\nnew territory, as the case may be, but also the citizens of that\\ncounty from which it is proposed that the territory shall be\\ntaken away. This rule, however, is not always observed.\\nOften only the qualified electors residing within the limits of\\nthe im^mediate district to be transferred, participate in the ref-\\nerendum.\\nAgain, when it is a question of abolishing a county govern-\\nment, and merging or consolidating it with another, the oc-\\ncasion is frequently held to call for a vote of the people, and\\nthis plebiscite, in several States, is guaranteed by the Consti-\\ntutions. Definite rules are often established by these instru-\\nments for the guidance of the legislatures in their w.ork of\\norganizing new counties, and in moving county lines. It is\\nsometimes prescribed, for instance, with a view to preventing\\nthe people from making too free use of this privilege, that\\nthere shall be no changes which will reduce a county s popu-\\nlation below a certain limit or its area below a certain num-\\nber of square miles.\\nIn municipal corporations, townships and other local dis-\\ntricts which are of smaller size than the county, the citizens\\nat large often have a voice in deciding territorial questions.\\nIn practically all parts of the Union, it is usual to consult\\nA single reference may perhaps suffice. The Constitution of Ne-\\nbraska of 1875, art. X, sees. 2 and 3, says: No county shall be divided\\nor have any part stricken therefrom, without first submitting the ques-\\ntion to a vote of the people of the county, nor unless a majority of all\\nthe legal voters of the county voting on the question shall vote for\\nthe same. There shall be no territory stricken from any organized\\ncounty, vmless a majority of the voters living in such territory shall\\npetition for such division, and no territory shall be added to any or-\\nganized county without the consent of the majority of the voters of the\\ncounty to which it is proposed to be added.\\nCf. Constitution of South Carolina, art. vii, sees. 3 et seq.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0245.jp2"}, "246": {"fulltext": "230 THE REFERENDUM IN AMERICA\\ntheir wishes when the people inhabiting any definite area are\\nto be incorporated for purposes of government. Thus, at the\\nbeginning of the Hfe of the municipahty the people may de-\\ncide what the scope of the corporate powers shall be, and from\\nthe hamlet or village upward to the largest city, the refer-\\nendum finds its application.\\nWhen fresh territory is to be added to the district, a vote\\nof the people is very common. When one municipal corpora-\\ntion is to be united with another, it is the almost universal\\nrule to consult directly with the people of the districts which\\nare to be parties to the merger, if not of both municipalities,\\nat any rate of the smaller, whose individuality is likely thus to\\nbe swallowed up. We have, therefore, the referenda upon the\\nannexation of one area to another, the extension or reduction\\nof corporate limits and the like, which are provided for in the\\nstatutes on local government in nearly all the States. Local-\\nities which have once been consolidated may be separated\\nagain, upon vote of the people. Having once received a\\ncharter of organization, the people of a municipal district\\nmay decide whether it shall be surrendered. They may vote\\nto remit certain portions of the municipal area to the county.\\nIrrigation, sanitary and other local districts organized to\\ncarry on local improvements are created, their boundaries are\\nchanged, and they are disorganized again by direct vote of\\nthe people. New school districts are organized and two or\\nmore districts are united by vote of the citizens, sometimes\\nboth male and female, in States which have school suffrage\\nfor women. In Wyoming^^ and South Carolina^ the Con-\\nstitutions specifically provide that no city or town shall be\\norganized as a corporation, without the consent of its inhabi-\\ntants. The boundaries of judicial districts (subdivisions\\nof a county) in Mississippi^\u00c2\u00ae may be changed only after a\\nreferendum. The subdivision of townships is often made a\\nCalifornia and Idaho afford a number of statutes in point.\\n^^Constitution of 1889, art. xiii, sec. 2.\\nConstitution of 1895, art. viii, sec. 2.\\nConstitution of 1890, art. xiv, sec. 260.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0246.jp2"}, "247": {"fulltext": "ON BILLS AFFECTING LOCAL GOVERNMENT 231\\nsubject for popular vote/^ and wards in cities are sometimes\\ndivided and new wards are created in tlie same way.-\u00c2\u00b0 In\\nIndiana, oddly enough, the people of the entire city rather\\nthan of the single ward to be divided, determine the question\\nof the establishment of a new ward.^^ Coming down to po-\\nlitical districts still smaller in size, we find that the people vote\\nby referendum in Ohio for the consolidation of the precincts\\nof a township.^- So general, indeed, is this local plebiscite\\nin its various forms that it may now be regarded as a neces-\\nsary part of the American system of local government,\\nthough, of course, since the legislature is in possession of\\nunlimited powers over the local corporations, except as it is\\nrestrained by the State constitution, it may usually confer this\\nprivilege upon the people or withdraw it from them again\\nat its own pleasure.\\n(2) The people of local districts very generally enjoy the\\nright to decide at what point the local government shall be ad-\\nministered. Thus the unpleasant question of a choice of site\\nfor the county capital is often referred to the people. There\\nare local rivalries and jealousies which might react to the dis-\\nadvantage of the members of the legislature, when they\\nsought a re-election, if they should undertake to decide such a\\nmatter on their own responsibility, and they are usually well\\nsatisfied in this case to make over their functions as the law-\\nmakers to some other agent. As the electors of the State are\\nfrequently asked to select a site for the State capitol buildings,\\nso the electors of the counties have come to be looked upon\\nas the proper authority to make a choice of county seats.\\nThis referendum has become so firmly established in the\\nAmerican practice, that the Constitutions of twenty-two\\nStates now contain guarantees on this subject, as follows:\\nArkansas, California, Colorado, Georgia, Idaho, Illinois, Kan-\\nCf. Pennsylvania Laws of 1857, p. 93; ibid., 1879, P- 52; Revised\\nStatutes of Missouri, 1889, p. 1954.\\nPennsylvania Laws of 1874, P- 230; ibid., 1889, p. 2yy,\\nHorner s Indiana Statutes, 1896, sec. 3038.\\nRevised Statutes of Ohio, 7th ed., 1896, sees. 1398 et seq.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0247.jp2"}, "248": {"fulltext": "232 THE REFERENDUM IN AMERICA\\nsas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi,\\nMissouri, Montana, Ohio, South Carohna, South Dakota,\\nTennessee, Texas, Utah, Washington and Wisconsin. The\\nConstitution of Louisiana of 1898, so recently adopted, says\\nupon this point All laws changing parish [county] lines,\\nor removing parish seats, shall before taking effect, be sub-\\nmitted to the electors of the parish or parishes to be affected\\nthereby, at a special election held for that purpose, and the\\nlines or the parish seat shall remain unchanged unless two-\\nthirds of the quahfied electors of the parish or parishes af-\\nfected thereby vote in favor thereof at such election.\\nEven in States in which the vote is not made obligatory by\\nconstitution the legislatures usually submit county seat ques-\\ntions to the people, and this referendum is now very familiar\\neverywhere.\\nIn order to minimize the ill effects of too frequent change,\\ndevices of different kinds are employed. Thus it is often\\nspecified that when the seat of government has once been lo-\\ncated, the question shall not be referred to the people again\\nfor a definite number of years. This period may be four\\nyears or five years or ten years or even twenty-five years\\n(Indiana) If the county buildings are of considerable value,\\nchecks of other kinds are often introduced as a means of pre-\\nventing a removal of the capital to another town, where new\\nbuildings would have to be erected at the taxpayers expense.\\nThe tendency in recent years, as will be explained in my\\nchapter devoted to the Initiative, has been wholly in the direc-\\ntion of restricting the people in the exercise of this privilege.\\nIn new communities, the desire of those persons residing in\\nsome particular locality to get the seat of government which\\nthey believe will enhance the importance of their town, is so\\ngreat that unless restraint were put upon the people, these\\ncounty seat contests would be engaging the electors attention\\nalmost constantly. Such restrictions, it is fair to say, how-\\never, have been introduced to counteract the very democratic\\nConstitution of Louisiana, art. 278.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0248.jp2"}, "249": {"fulltext": "ON BILLS AFFECTING LOCAL GOVERNMENT 233\\ninfluence of the initiative rather than of the referendum. So\\nmuch bitterness has been engendered in the Western States\\nin the struggle for county capitals, that rioting and bloodshed\\nhave sometimes been brought into the argument, when words\\nwere exhausted, and the whole subject affords chapters which\\nare not very creditable parts of the history of the progress of\\ndemocratic government in the United States.\\nAs in the counties, so in other local districts, corporate and\\nquasi-corporate, the choice of the sites of public buildings is\\na question which is often referred to popular vote. In Phil-\\nadelphia, for instance, when it was desired that a site should\\nbe designated for a city hall, which it was proposed to erect,\\nthe legislature submitted the question to the people of the\\ncity.^* That site receiving a majority of the whole number\\nof votes cast was to be selected. The choice lay between\\nPenn Square and Washington Square and it may be\\nof interest to note that the total number of persons voting was\\n84,450, Penn Square receiving 51,625 votes, and Washington\\nSquare 32,825. The total vote for Governor in Philadelphia\\nin 1872 was about 118,000, so it is seen that a question of this\\nkind is sometimes capable of arousing a great deal of local\\ninterest, as more than 70 per cent, of all the electors voting for\\nGovernor in 1872, had voted for the city hall proposition in\\n1870.\\nIn Kansas, in reference to cities of the first and second\\nclasses, which are county seats, there is a general law re-\\nquiring that a proposed change of a court house site from one\\npart of the city to another, shall be submitted to popular\\nvote.^^ An election was held in a Pennsylvania township\\nin 1877, to determine upon a site for a poor house,^^ and in\\nIllinois the people of townships vote to change the place of\\nholding their town meetings, a matter which of course\\nwould be decided by the people anyhow, in all local dis-\\nPennsylvania Laws, 1870, p. 677.\\nWebb s General Statutes of Kansas, 1897, chapter 27, sec. 22.\\nLaws of 1877, P- 40.\\nStarr and Curtis Annotated Statutes of Illinois, 1896, p. 209.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0249.jp2"}, "250": {"fulltext": "234 THE REFERENDUM IN AMERICA\\ntricts where they still retain their primary assemblies, in com-\\nmon with other questions affecting the local government.\\n(3) In local commmiities there is sometimes a referendum\\nto select a corporate name. Thus in Idaho, by a law of 1891,\\nthe name of any town, village or city in the State may be\\nchanged only upon a two-thirds majority vote of the electors\\nof the particular district concerned. A special election on\\nthis subject must be called upon the presentation to the proper\\nauthorities of a petition, signed by a majority of the legal\\nvoters of the town, village or city, as the case may be.^^\\nA somewhat similar provision respecting the change of\\nname of local districts is found in the laws of lowa.^^ In\\nIowa towns the ballots read as follows Shall the propo-\\nsition to change the name of to be adopted the\\npeople voting yes or no In Kansas also the people\\nmay vote upon proposals to change the name of any town, vil-\\nlage, city or township,^^ and in Minnesota the electors of\\ncities and villages possess this privilege. These are inter-\\nesting instances of the people s direct participation in a kind\\nof law-making which must have a sentimental rather than\\nany real or practical interest for them.\\n(4) Again the people of local districts often decide as to\\nthe legal form and character of the government under which\\nthey are to live, once more, of course, only in so far as the\\nconvention or the legislature accords this privilege to them.\\nThe most complete and thoroughgoing resignation of func-\\ntions to the whole body of electors in the local communities\\nis met with in the submission to popular vote of city charters\\nand local government acts. There are, for example, refer-\\nenda on special acts of incorporation, that is, on acts ap-\\nplying to separate single designated cities where this kind of\\nLaws of Idaho, 1890-91, p. 127.\\nCf. Annotated Code of the State of Iowa, 1897, sees. 461 and 580.\\nIbid., sees. 628-629.\\nWebb s General Statutes of Kansas, 1897, ch. 125, sec. 3.\\nLaws of Minnesota, 1895, pp. 16 and 641 ibid., 1897, p. 510; cf. also\\nLaws of New York, 1897, p. 454; Public Laws of North Carolina, 1895,\\np. 41, and Compiled Laws of Utah, 1888, Vol. I, p. 314.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0250.jp2"}, "251": {"fulltext": "ON BILLS AFFECTING LOCAL GOVERNMENT 235\\nlegislation is still permitted by the State constitution. In\\nStates having general laws, the people of municipalities\\ndecide whether they shall give up a town, village or borough\\ngovernment, and adopt city government, or abandon a special\\ncharter under which they have previously acted, and come\\nunder the general law they may decide too when they have\\nonce been incorporated under the general law whether they\\nshall advance or reduce their grade, and enter a new class,\\nthus securing a charter which may perhaps be better adapted\\nto local needs. In some States, as Missouri, California,\\nWashington and Minnesota, there is finally an almost com-\\nplete surrender of the charter-making power to the cities, the\\npeople thereof voting to approve or reject the charter, the\\nframe of which their own delegates have prepared. In Cali-\\nfornia, it was lately proposed to give the people of counties\\nsimilar rights with respect to the framing of their county gov-\\nernment acts,^^ a measure which, had it become a part of the\\nState Constitution, would have marked a new and sweeping\\ndevelopment in the annals of local government in the United\\nStates. This reform would have rendered each county in\\nthe State of California, as well as each city containing a pop-\\nulation of more than 3,500, in a measure self-governing, and\\nfree from the legislature s control.\\nSince it illustrates an important phase of American political\\ndevelopment, and is a contribution to the great number of\\npanaceas which have been suggested as a cure for the singular\\nmaladies afflicting the government of cities in the United\\nStates the referendum on city charters is entitled to and will\\nreceive separate treatment in a subsequent chapter of this\\nbook.^*\\nIt is the custom too for many legislatures to submit various\\nkinds of bills which ostensibly or disguisedly amend city\\ncharters and the established systems of local government.\\nThese are mostly presented as special laws or as laws\\nStatutes of California, 1897, P- 641.\\nInfra, chap. 14.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0251.jp2"}, "252": {"fulltext": "236 THE REFERENDUM IN AMERICA\\nwhich if nominally general are essentially special in their\\neffect. They are of many different outward types. There\\nare alternate laws, the people of a city or county selecting\\none or the other as they may prefer, and local option laws\\nwhich are general for all the localities, but which come\\ninto effect only in such districts as may by popular vote agree\\nto adopt them. Many of these laws will appear in our subse-\\nquent classifications, but others, because of the subject matter\\nof which they treat, must be alluded to in this place.\\nThe recent practice in New Jersey furnishes some notable\\nillustrations. We have, for instance, the act of 1886, con-\\ncerning cities^^ which fixes the terms of office of the mayor\\nand the members of the city council, develops the mayor s\\npowers and prescribes his duties in respect of ordinances and\\nresolutions, selects a day for the holding of municipal elec-\\ntions, etc. This is clearly not a regular charter or act of in-\\ncorporation though it is in effect an act amending a charter.\\nIt is to be forceful in no city until it is submitted to the people\\nthereof, and they shall vote to accept it. By a law passed\\nby the legislature of New Jersey in 1885, a proposition to\\nplace the public schools of cities in charge of a board of\\neducation which should be newly created and take the place\\nof an older administrative body, was referred to the people.\\nThe board of aldermen or common council might submit\\nthe question of the acceptance or rejection of the act to the\\nvoters of any city which should express a desire to avail itself\\nof this privilege.^^ The question of removing the fire\\nand police departments of the cities of New Jersey from\\npolitical control by the creation of boards of commission-\\ners to be nominated by the mayor, thus materially modifying\\nthe scheme of government in those municipalities voting to\\nadopt this policy w^as left to the arbitrament of the people by\\na law which passed the legislature of that State in 1885.^^\\nLaws of this kind, many of them comprehensive enough to\\nGeneral Statutes of New Jersey, 1896, p. 575 P. L. 1886, p. 361.\\nGeneral Statutes of New Jersey, p. 3085.\\nIbid., p. 1551-", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0252.jp2"}, "253": {"fulltext": "ON BILLS AFFECTING LOCAL GOVERNMENT 237\\nserve as entire charters, some being financial proposals of un-\\ncertain worth, for which the members of the legislature are\\nnot desirous of assuming the responsibility, and others mere\\nacts arranging alternate systems of government and admin-\\nistration, abound in the statute books of New Jersey. Such\\nconfusion exists in the public corporation law of no other\\n.State, and there are conditional acts it would seem to meet\\nalmost any conceivable need, which may arise in any town\\ncr city in the Commonwealth.\\nIn Illinois by an act passed in 1895, ^^e people of any city\\nin the State may adopt the provisions of a general law regu-\\nlating and reforming the civil service. In the submission of\\nthis law the legislature probably had a mixture of motives.\\nThere ought to have been, in the first instance, no question\\nabout the desirability of such a law, but as it was a reform\\nof which some classes of American politicians seem not to be\\nfond, as it involved some outlay in salaries for certain admin-\\nistrative officers (civil service commissioners) and as it al-\\ntered the city charters, it was passed in a conditional form.\\nIn Iowa the people may vote upon the proposition to in-\\ncrease the number of supervisors as the members of a\\ncounty administrative board are called, from three to five or\\nseven members. Later the number may be reduced again\\nto five or to three, as the voters may elect. Somewhat sim-\\nilar privileges are enjoyed by the people of the counties of\\nNebraska,*^ and of North Dakota.*^ In certain local districts\\nof Ohio, the electors may determine whether the number of\\nmembers of the board of education shall be increased from\\nthree to six, the ballots containing the words Board\\nChange and Board\u00e2\u0080\u0094 No Change\\nAlthough it is rarely that laws bearing upon the important\\nStarr and Curtis Annotated Statutes of Illinois, 2nd ed., 1896, p.\\n826.\\nAnnotated Code of the State of Iowa, 1897, P- 221.\\nCompiled Statutes of Nebraska, Sth ed., 1897, p. 430.\\nRevised Codes of North Dakota, 1895, sec. 1892.\\nRevised Statutes of Ohio, 7th ed., 1896, sec. 391 1.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0253.jp2"}, "254": {"fulltext": "238 THE REFERENDUM IN AMERICA\\nsubject of the administration of justice are passed in a con-\\nditional form, a few points as to the organization of the\\ncourts are sometimes left to the determination of the people.\\nThus in South Carolina, county courts are established upon\\npopular vote in the counties,* and in West Virginia with the\\nassent of a majority of the voters of a county, the county\\ncourt may be abolished, and may be replaced by another tri-\\nbunal.** In any city of more than 7,000 inhabitants, in Iowa,\\na superior court may be established to take the place of the\\npolice court The court so created may be abolished\\nagain by direct vote of the people.*^\\nA law of 1892, in Kentucky, gives the people of counties\\na choice as to the character of the county governing board.\\nThey may have a fiscal court composed of the judge of the\\ncounty court, and the justices of the peace of the county, or\\na fiscal court composed of three commissioners elected\\nscrutin de liste for the whole county for their special task, to-\\ngether with the county judge. A majority of the votes cast\\nupon the question are decisive, and the election on this sub-\\nject in any county shall not be held oftener than once in every\\neight years.*^\\nIn any town in Massachusetts, containing at least 12,000\\ninhabitants, which may desire to adopt a city government, the\\npeople may determine whether the city legislature shall have\\none chamber or two, and the terms for which the members\\nthereof, and the mayor, shall continue in ofiice.*^ In cities\\nof Illinois, the question of minority representation in the\\ncity council is referred to popular vote.*^ In Missouri cities\\nof the second class, with the approval of the people, may es-\\ntablish boards of public works, which as their name would\\nConstitution of South Carolina, art. v, sec. i.\\nConstitution of 1872, art. viii, sec. 34.\\nCode of Iowa, p. 171.\\nIbid., p. 174.\\nKentucky Statutes, 1894, p. 687.\\nSupplement to the Public Statutes of Massachusetts, 1889, 1895.\\np. 623.\\nAnnotated Statutes of Illinois, p. 687,", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0254.jp2"}, "255": {"fulltext": "ON BILLS AFFECTING LOCAL GOVERNMENT 239\\nimply, are to exercise control over the various public works\\nand buildings within the city limits. These boards may be\\nabolished again on vote of the people in which case the en-\\nterprises under their care revert to other administrative\\nagents.\\nThe electors are sometimes given a hand too in matters\\npertaining to local administration by the system of alternate\\nlaws This kind of conditional legislation is well illus-\\ntrated in West Virginia in several acts on the subject of roads.\\nIn that State the legislature has definitely prescribed a method\\nby which in the usual course of things, highway affairs are\\nlocally regulated. In addition, however, there are as many\\nas three alternate methods provided for, in the laws of 1872-\\n73, 1 88 1, and 1891, respectively, which may be adopted in any\\ncounty or district in the State when the people thereof vote\\nin favor of the change. Having once accepted the provisions\\nof the alternate law, the electors if they desire, may later vote\\nto discontinue the new system of administration.^^ In Michi-\\ngan the voters decide whether the county or the township\\nshall take charge of the roads,^^ and in Minnesota and in some\\nother States, the people determine whether the county or\\nthe town shall care for the poor.^^ Several other questions\\nhaving to do more or less directly with the form and char-\\nacter of the local governments are sometimes referred to\\npopular vote, and thus the whole body of citizens put their\\ndirect impress upon the legal system by which their common\\naffairs are regulated.\\nIn many States it is a matter for the people themselves to\\ndetermine whether or not counties shall be subdivided and or-\\nganized into townships, and once organized, whether they\\nshall be disorganized again. Mr. Bryce regards this referen-\\ndum as one of the results of the conflict between the county\\nLaws of Missouri, 1891, p. 52.\\nCode of West Virginia, 3rd ed,, 1891, pp. 338 et seq.\\nLaws of Michigan, 1893, P- 239.\\nGeneral Statutes of the State of Minnesota, 1894, sec. 1984; cf.\\nLaws of Pennsylvania, 1879, P- 7^-", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0255.jp2"}, "256": {"fulltext": "r4o THE REFERENDUM IN AMERICA\\nand the township system of government in the Middle West\\nwhere the streams of influence from New England and the\\nSouth join, and it is uncertain for the time being, which shall\\nhave the mastery. In a measure this is true, but it is further-\\nmore a natural development in newly settled territory, to pass\\nfrom the larger to the smaller unit. A sparsely settled dis-\\ntrict can naturally manage with a simpler form of government\\nthan a community in which men s interests meet and over-\\nlap on every hand. When a county becomes more populous,\\nand public affairs engross a larger share of the people s at-\\ntention, the need is felt for a more intensive system of ad-\\nministration.\\nThe citizens of the counties often themselves decide when,\\nin their view, the time has arrived for the township system\\nto be introduced. In seven States, California, Illinois, Mis-\\nsouri, Nebraska, North Dakota, Washington and Wyoming,\\nthis referendum finds a place in the Constitutions. For ex-\\nample, the Constitution of Missouri says The General As-\\nsembly may provide by general law, for township organiza-\\ntion, under which any county may organize whenever a ma-\\njority of the legal voters of such county voting at any general\\nelection, shall so determine. k jj^ ^^y. county which\\nshall have adopted township organization, the question of con-\\ntinuing the same may be submitted to a vote of the electors of\\nsuch county at a general election, in the manner that shall be\\nprovided by law and if a majority of all the votes cast upon\\nthat question shall be against township organization, it shall\\ncease in said county.\\nConstitution of 1875, art. ix, sees. 8 and 9.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0256.jp2"}, "257": {"fulltext": "CHAPTER X\\nTHE LOCAL REFERENDUM LOAN BILLS AND FINANCIAL PRO-\\nPOSALS\\nComing now to the second large class of referenda in com-\\nmunities in the United States we find that it includes those\\nin relation to taxation and expenditure and the administra-\\ntion of the local finances. This is a department of public man-\\nagement in which there is room for much abuse, especially in\\nlarge cities, and as a convenient method, in the first place,\\nof putting a wholesome check upon representative officials\\nand, in the second place, of transferring the responsibility for\\nsome rather debatable policy to the shoulders of those upon\\nwhom the burden will bear, that is the people at large, this\\nplebiscite has attained a remarkable development in all parts\\nof the Union. The officers of cities, counties and towns in\\nmany cases grossly betrayed the trust reposed in them and\\noften heaped up large debts which were contracted on the\\ncredit of the community. This debt at times has weighed\\nvery heavily upon the ratepayers, and in some cases had\\nwholly to be repudiated, as in a few of the States also, at an\\nearlier period. To avoid the repetition of such scandals and\\nto keep the debt contracting proclivities of city councilmen,\\ncounty commissioners and other officers entrusted with such\\npowers in reference to the various local communities within\\nproper bounds, the constitutional convention at last took this\\nsubject in hand. It has thus come about that there is a\\nlarge number of constitutional provisions on this topic at\\nthe present time, and these have been supplemented by laws\\npassed by the legislatures, until the enactments in this field\\nof legislation are of almost endless variety. There is not a\\nState in the Union in which the electors at large have not been\\n241", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0257.jp2"}, "258": {"fulltext": "242 THE REFERENDUM IN AMERICA\\nbrought in to some extent to balance the representative boards\\nand legislatures, with the object of securing honester and\\nmore economical management. In the main the results are\\nconsidered to have been better, strange as this may seem\\nto those who cannot well conceive of government except as\\nit is embodied in the persons of a few wise and considerate\\nmen, than under the old system prior to the time the people\\nwere invested with the local veto.\\nThis referendum appears in at least three separate forms on\\nthree large classes of subjects as follows:\\n(i) Loaning the public credit to industrial and other pri-\\nvate companies.\\n(2) Expenditure of public money directly by the govern-\\nment itself.\\n(3) The sale or lease of public lands and other public prop-\\nerty.\\nThe local plebiscite on these three different classes of sub-\\njects is almost entirely an outgrowth of the latter half of the\\nnineteenth century. A beginning was made with it, how-\\never, at a somewhat earlier period in a form which is so char-\\nacteristic that I have put it at the head of the list, namely,\\n(i) The loaning of the public credit to industrial and other\\nprivate companies organized for the purpose of helping for-\\nward with the economic development of a given territorial\\ndistrict. The experience has not been the same among all\\npeoples but it was the method in vogue in the self-govern-\\ning Anglo-Saxon communities of America at first to give as\\nlittle as possible to the government, retaining for private pur-\\nsuit and gain the business of transportation, public lighting,\\nthe furnishing of a public water supply, etc. The American\\ncommunities had in the beginning only a bare framework of\\npower. When roads were to be built they were constructed\\nand owned by private companies who charged travellers a\\nfee for passing over them. When streams were to be crossed\\nprivate persons bridged them and collected tolls of those\\nwho wished to reach the other side. The railways and most\\nof the American canals have had a similar history and the", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0258.jp2"}, "259": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 243\\ngovernment with us at any rate in the newer communities\\nuntil a recent time, has exercised few functions which would\\nmake it a competitor in any way with private enterprise. So\\nfirmly established was this idea in our polity that it was car-\\nried to the point of excluding the community from the func-\\ntion of educating the young at government cost, and many\\nother of the state s activities, now rarely brought into ques-\\ntion by anyone, had not yet begun to be exercised. It was\\nargued, on the one hand, that it could not be the duty of\\nthe richer and more favored classes to assist in educating the\\nchildren of the poor, and, on the other hand, that it would\\nbe an injustice for government to found and maintain free\\nschools since those citizens who conducted educational in-\\nstitutions for private profit would thus be deprived of a\\nmeans of personal financial advancement. Ideas in the\\nlai^sez faire economy so extreme as these have been gen-\\nerally abandoned. But the general question as to the ex-\\npediency of performing many classes of local functions at\\nthe public expense is still a matter which is frequently re-\\nferred to a direct vote of the taxpayers.\\nIt was an early stage of the development toward complete\\nstate ownership and management to assist private corpora-\\ntions in respect of local works, and the people s participation\\nin voting grants and guarantees to improvement companies of\\nthis kind was an interesting phase of the movement. A very\\nearly instance of the employment of such a method as a means\\nto an amicable result in the settlement of a question of appro-\\npriating public money in behalf of an internal improvement\\nis furnished by Virginia.^ In 1784 the legislature of that\\nState passed an act which had for its object the deepening\\nof the channel of the James River. Later it was desired still\\nfurther to open up the interior of the country, to establish,\\nindeed, a complete line of communication from tidewater by\\nway of the James and Jackson Rivers to the Kanawha River\\nand thence to the Ohio and the Mississippi. A large ma-\\n^Acts of Virginia, 1832-33, p. 57.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0259.jp2"}, "260": {"fulltext": "244 THE REFERENDUM IN AMERICA\\njority of the citizens of Richmond being of opinion that\\nthe corporate authorities should subscribe to the stock of\\na company, the James River and Kanawha Company an\\nact was adopted by the Virginia legislature in 1833 authoriz-\\ning the city to make a subscription of $400,000 to this en-\\nterprise.^ In 1835 a second act conferring authority upon\\nthe city to subscribe an additional sum of $250,000 to the\\nstock of the company was passed by the State legislature,\\nagain at the expressed desire of the people of Richmond.^\\nIn each case the city authorities were empowered to borrow\\nmoney on the credit of the municipality and to tax the citizens\\nin order to raise the necessary funds to pay the interest on the\\nloan and the principal of the same as it should fall due. Al-\\nthough these laws were not submitted to the people of Rich-\\nmond by way of the referendum, they were passed in response\\nto petitions very numerously signed, and the principle is so\\nsimilar that the case is of much interest as indicating how\\none important class of conditional legislation made its way\\ninto the American practice.\\nThe question of communication was a very serious one as\\nthe colonists pushed farther and farther into the interior of\\nthe continent. The commercial interests of the country were\\nrapidly expanding, the need for facilities of transport from\\none section of the Union to another was much greater than\\nwas the ability of a financially poor population to satisfy it.\\nCanals were to be constructed wherever water communica-\\ntion was possible. Turnpikes plank roads and other\\nhighways of public traffic were to be built so that wagoning\\nover the natural, unimproved routes would be less laborious\\nand haulage by horse or mule or ox between the principal\\npoints might become a feasible form of commerce. A con-\\nditional law to the advantage of private turnpike companies\\nwas passed by the legislature of Pennsylvania in 1842.* By\\n^Acts of Virginia, 1832-33, p. 57.\\nActs of Virginia, 1834-35, P- 70 cf. Goddin v. Crump, 8 Leigh,\\np. 120.\\n*Laws of 1842, p. 233.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0260.jp2"}, "261": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 245\\nthis act whenever at least twelve taxpayers of any town-\\nship should petition the supervisors of public highways to\\nsubscribe to the stock of a turnpike company, which pro-\\nposed to construct its roads through the township, the super-\\nvisors, after advertising the election in notices posted up at\\nsix of the most noted places in the township, were obliged\\nto submit to the people the question of accepting the pro-\\nvisions of the act. At the same time the electors were to\\ndecide what sum the township should subscribe to the com-\\npany. This act in common with some of a similar nature in\\nother States remains unrepealed to this day though elections\\non the subject in Pennsylvania have been rarely held in re-\\ncent years. The governing boards of counties in Kentucky\\nmay take stock in companies organized to construct and\\noperate turnpike, plank and gravel roads within the bounds\\nof these counties, if the people first assent to the levy of a tax\\nto pay for the subscription.* The citizens of any township\\nin Michigan, in lieu of an actual grant of money, may vote\\na plank road company the right of way through the town-\\nship, giving to the company, therefore, the privilege to use\\nthe public highways.^ Counties, towns, cities and other local\\ncommunities exercising fiduciary functions in Minnesota may\\nwith the popular assent issue their bonds in exchange for\\nthe stock of companies which are organized to construct ca-\\nnals and improve the waterways of that State.^ The citizens\\nof counties, cities and towns in Virginia have the less specific\\nprivilege of voting a public subscription to the stock of\\nany internal improvement company which has been incor-\\nporated by the State legislature.^\\nWhen the railway appeared as an agent in the work of in-\\nternal development, yet larger outlays were required and\\nnearly all the States^ in order to help on with railway build-\\nC\u00c2\u00a3. Brightly s Purdon s Digest of Pennsylvania Laws, 12th ed.j.\\n1894, p. 2045.\\nBarbour and Carroll s Kentucky Statutes, 1894, sees. 4734 et seq.\\nPublic Acts of Michigan, 1897, p. 118.\\n^Statutes of Minnesota, 1894, sees. 1441 et seq.\\nCode of Virginia, 1887, see. 1243.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0261.jp2"}, "262": {"fulltext": "246 THE REFERENDUM IN AMERICA\\ning, permitted the people to decide whether the local gov-\\nernments should subscribe to the stock of the companies on\\npublic account. The people in this case, however, as in\\nsome others which I shall soon mention, have seemed not to\\nserve as an effective brake upon the too free use of public\\nmoneys. Although the theory clearly indicates that those\\nupon whom such a burden will ultimately fall would aim to\\ndiscourage large expenditures of this kind, the public funds\\nto most men appear to come from an inexhaustible source,\\nand they vote money away with little thought as to how the\\ndebt shall be paid. In the presence of a proposition for the\\nconstruction of a railway through their own county or town\\nthe prospects are such as often to induce great liberality to\\nprivate companies. As a result, grants have been made most\\nunwisely, and the experience of municipalities in nearly all\\nsections of the Union has been very unfortunate. By these\\nlocal subsidies railwa3^s were built which were in no sense\\nprofitable as business enterprises. Financial difficulties fol-\\nlowed and involved the counties and cities seriously, so that\\nthe legislatures or the conventions in many States have lately\\nprohibited such grants absolutely. The public policy regard-\\ning railways has undergone a complete volte-face, so that\\nto-day railway corporations must exercise great alertness to\\ndefend their own interests in the legislative assemblies, and\\nthe tendency is distinctly in the direction of applying restraint\\nto the companies, while there is a growing disposition to look\\nupon the whole business of transportation as one inhering\\nsolely in the government as in most European states.\\nThe subscription abuse was considered to have become so\\ngreat in Illinois by 1870 that a separate section of the con-\\nstitution was submitted to and adopted by the people of the\\nState. This provision was as follows No county, city,\\ntown, township or other municipality shall ever become a sub-\\nscriber to the capital stock of any railroad or private corpora-\\ntion or make donation to or loan its credit in aid of such\\ncorporation. This is an effectual prohibition upon the\\nConstitution of Illinois 1870, separate section.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0262.jp2"}, "263": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 247\\nlegislature and prevents it authorizing such grants even by\\nway of the referendum.\\nIn several States, hov/ever, liiC practice is still permitted\\nand is in general and frequent use. In not a few cases a\\nplebiscite, when it is a question of making public grants to\\ncompanies, is specifically authorized by the State constitu-\\ntion, as in North Dakota, Nebraska, Tennessee and North\\nCarolina. In North Dakota, for instance, the Constitution\\nsays Neither the State nor any county, city, township,\\ntown, school district or any other political subdivision shall\\nloan, or give its credit, or make donations to or in aid of any\\nindividual, association, or corporation, except for necessary\\nsupport of the poor, nor subscribe to or become the owner\\nof the capital stock of any association, nor shall the State\\nengage in any work of internal improvement unless author-\\nized by a two-thirds vote of the people.\\nThe Constitution of Tennessee says The credit of no\\ncounty, city or town shall be given or loaned to or in aid of\\nany person, company, association, or corporation except upon\\nan election to be held by the qualified voters of such county,\\ncity or town and the assent of three-fourths of the votes cast\\nat said election, etc.^^\\nAnd in Nebraska the Constitution says No city, county,\\ntown, precinct, municipality or other subdivision of the State\\nshall ever make donations to any railroad or other work of\\ninternal improvement unless a proposition so to do shall have\\nbeen first submitted to the qualified electors thereof at an\\nelection by authority of law, etc.^^\\nThe compiled statutes of Maryland,^* North Carolina,^^\\nArt. xii, sec. 185.\\nArt. ii, sec. 29.\\nArt. xii, sec. 2 cf. Constitution of Maryland, art- xi, sec. 7, for a\\nsimilar plebiscite in Baltimore, and Constitution of North Carolina, art.\\nvii, sec. 7.\\nCf. Laws of Maryland, 1890, p. 430; Laws of 1892. p. 489; Laws\\nof 1894, PP- 202, 884, etc.\\n^\u00c2\u00b0Cf. Laws of 1887. pp. 82, 157, 191, 215, zzd, 346, 374, 434, 456, 523,\\n528; Laws of 1897, pp. 72, 98. 213, 493, etc.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0263.jp2"}, "264": {"fulltext": "248 THE REFERENDUM IN AM:ERICA\\nSouth Carolina and Tennessee contain many recent in-\\nstances of conditional legislation, authorizing public donations\\nand loans to railway companies. In the laws passed at a sin-\\ngle session of the legislature of North Carolina in 1889 I\\nhave found fourteen separate special acts by which the ques-\\ntion of making such subscriptions was submitted to the people\\nof local districts in that State. The citizens of townships,\\ntowns or cities in Iowa may vote a grant of money to any\\nrailway company which is or may become incorporated under\\nthe laws of the State to aid in the construction of a projected\\nrailroad with in the State In Kansas in the same way\\ncounties, cities and townships may extend their aid to rail-\\nway companies, if the electors thereof directly approve the\\nappropriation.^^ In Louisiana the people of any parish, city\\nor incorporated town have the more general privilege of\\nvoting a special tax in benefit of any work of public im-\\nprovement or railway enterprise There are elections on\\nthe same subject in the counties and other local districts of\\nWest Virginia and in Wisconsin donations may be made\\nto railway corporations by a like process. In towns and\\ncities in Iowa the citizens may agree by way of the referendum\\nto donate to any railway company owning a line of railroad\\nin operation or in process of construction in such city or\\nto^\\\\ sufficient land for depot grounds, engine houses and\\nmachine shops\\nNot infrequently the inhabitants of local communities in\\nAmerica are invited to determine whether they will grant a\\nbonus to an industrial or manufacturing company which it is\\ndesired shall establish a plant in a certain neighborhood. In\\nLaws of 1894, pp. 949, 1068; Laws of 1896, p. 333, etc.\\nLaws of 1897, p. 57; Laws of 1890, extra session, p. 73.\\nAnnotated Code of Iowa, 1897, sees. 2084 et seq.\\nWebb s General Statutes of Kansas, 1897, chap. 48, sees. 13 ef seq.,\\nand chap. 70, sec. 70 cf. ibid., chap. 37, sec. 73.\\nRevised Laws of Louisiana, 1897, p. 373; cf. ibid., p. 374.\\n^^Warth s Code of West Virs^inia, 3rd ed., 1891, p. 284.\\nSanborn and Berryman s Wisconsin Statutes, 1898, sees. 945-46.\\nCode of Iowa, sees. 885-86 cf. General Statutes of Kansas, chap.\\n70, sees. 107 et seq.\\nI", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0264.jp2"}, "265": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 249\\ncities of Kansas the electors may sanction an appropriation\\nof money which shall be used to encourage the establish-\\nment of manufactories and such other enterprises as may\\ntend to improve the city Recently the city of Wilming-\\nton, in North Carolina, was authorized by the State legislature\\nto hold an election to decide whether the municipality should\\nborrow the sum of $150,000 to be given as an encourage-\\nment to new manufacturing enterprises which may be estab-\\nlished within the limits of the city, or enlargements of plants\\nalready existing The amount in this way granted for this\\nuse was to be placed in the hands of the members of a specially\\nconstituted board of trustees to be distributed for the best\\ninterests of the city to individuals and firms making the\\nnecessary guarantees.\\nGrants to private companies which have in hand the\\neconomic development of a district in respect of some one\\nparticular industry are also not unfamiliar. Thus the peo-\\nple of counties or cities in Kansas may vote to subscribe, up\\nto certain definitely limited amounts^ to the capital stock\\nof companies mining or boring for coal or natural gas or con-\\nstructing artesian wells.^^ Townships and certain classes of\\ncities in Kansas may extend the same encouragement to\\ncompanies engaged in the manufacture of sugar and syrup\\nout of sorghum cane in their respective localities if the\\nelectors assent to the expenditure.^^\\nWithout going to the point of subscribing to the stock of\\nan industrial company, or making it an actual cash donation\\nlocal governments encourage business enterprises which\\npromise to increase the wealth and prosperity of the com-\\nmunity by exempting them from taxation. Here again the\\npeople, voting in the referendum, are brought forward to\\ndecide as to the advisability of adopting such a course. For\\nexample, I may refer to the new Constitution of South\\nGeneral Statutes of Kansas, chap. 37, sec, 95.\\nLaws of North Carolina of 1889, p. 867.\\nGeneral Statutes of Kansas, chap 36, sec. 5.\\nIbid., chap. 152, sees, i et seq.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0265.jp2"}, "266": {"fulltext": "2 so THE REFERENDUM IN AMERICA\\nCarolina which says Cities and towns may exempt from\\ntaxation by general or special ordinance, except for school\\npurposes, manufactories established within their limits for\\nfive successive years from the time of the establishment of\\nsuch manufactories Provided that such ordinance shall be\\nfirst ratified by a majority of such qualified electors of such\\ncity or town as shall vote at an election held for that pur-\\npose. In Rhode Island the people residing in towns\\nand cities may also agree to exempt manufacturing prop-\\nerty from taxation, the exemption in that State continuing\\nthroughout a period of ten years.^\u00c2\u00ae\\nIn the contest between municipal and private ownership of\\nwater works, lighting plants and the like there are instances\\nof public grants to private companies, but here we at once\\ncome into another phase of the development. The people\\nare introduced into the system again, and this time in a dif-\\nferent capacity, not to decide, as before, whether private\\ncapital which promises to do much to improve the condition\\nof a neighborhood shall be encouraged to settle there, but\\nwhether private capital grown strong shall be given control\\nof immensely valuable natural monopolies. The people were\\nearlier to determine whether a certain amount of money\\nshould be expended to aid a struggling enterprise; now\\nthey are to fix upon the sum which the company controlling\\nthe enterprise shall pay in aid of the municipality. The situa-\\ntion has been reversed and, still not trusting their representa-\\ntives, who in many cases have proven that they were open\\nto pernicious and most dishonest influences, the people them-\\nConstitution of South Carolina, art. viii, sec. 8. A carpet mill was\\nrecently established in Gaffney, S. C. The question of exempting the\\nfactory from taxation for five years was submitted to the people of the\\ntown on February 17, 1899, and the proposition was approved by a\\nvote of 273 to 29.\\nGeneral Laivs of Rhode Island, 1896, p. 177; cf. Local Acts of\\nMichigan, 1891, p. 50, for an interesting provision of this kind in an\\nact incorporating the city of North Muskegon. Here the exemption\\nwas to include taxes for both city and school purposes, as well as water\\nrates for a period of ten years.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0266.jp2"}, "267": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 251\\nselves have been made the judges of the subject.. Thus it is\\nhoped to prevent city authorities from giving away vakiable\\nprivileges to private lighting and water companies, to or-\\nganizations of men who wish to use the streets for conveying\\npassengers on the payment of a fee and for laying down or\\nstringing wires for telegraph, telephone and other purposes.\\nFrom the point of the city paying a private company to set-\\ntle within its limits, to the point of the company making\\npayments to the city for business advantages, seems rather a\\nlong step, and one which in this new country it has been very\\ndifficult to take.\\nCompanies, however, have found the exploitation of cer-\\ntain lines of business so profitable in large centres of popula-\\ntion that they not infrequently can spare a share of the gain\\nfor the members of city legislatures in return for favorable\\nconcessions. This abuse has recently become so great in many\\nparts of the United States that v/e have turned helplessly to\\nthe referendum as a means of securing needed relief. Thus\\nin Iowa we meet with an interesting statutory provision which\\nis couched in the following terms No franchise shall be\\ngranted, renewed or extended by any city or town for the\\nuse of its streets, highways, avenues, alleys or pubHc places\\nfor any of the purposes named in the preceding section\\n[telegraphs, telephones and electric street railways] unless a\\nmajority of the legal electors voting thereon vote in favor of\\nthe same at a general or special election.\\nIn Nebraska a law. relating to cities of the metropolitan\\nclass i. e., cities containing more than 80,000 inhabitants,\\nsays No new franchise shall hereafter be granted, nor\\nany extensions of franchises heretofore granted be lawful,\\nunless an annuity to the city be provided, based upon either\\na fixed reasonable amount per year or a percentage on the\\ngross earnings of the owners of said franchise, nor until a\\nproposition for the same has been submitted to a vote of the\\nelectors of the city at a general city election or a special city\\nelection called for that purpose, and to carry such a proposi-\\nCode of Iowa, sec. 776 cf. ibid., sec. 720.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0267.jp2"}, "268": {"fulltext": "252 THE REFERENDUM IN AMERICA.\\ntion it shall require a majority of the electors voting at sucli\\nelection. In any city or village in Wisconsin if ten per\\ncent, of the qualified electors sign a petition in favor of an\\nelection on the subject, the question whether the village\\nboard or city council shall sell the street railway, lighting,\\ntelephone, waterworks or other rights and franchises to the\\nhighest bidder must be submitted to the people. In the event\\nof a favorable vote in the referendum, any other method of\\ndisposing of these franchises than by competition and sale\\nis precluded.^^ The electors of any city or village having\\ndecided to sell these valuable rights may later revoke their\\naction in the same manner, i. e., by petition and referen-\\ndum.^^ In certain cities in Missouri the council may itself\\ngrant the original rights to private companies, but these are\\nnot to extend over a longer period than twenty years, and\\nexpiring, they are not to be renewed without the consent of\\nthe people.^* The Constitution of Nebraska provides that\\nno general law shall be passed by the legislature granting\\nthe right to construct and operate a street railway within any\\ncity, town or incorporated village without first requiring the\\nconsent of a majority of the electors thereof This ref-\\nerendum respecting city franchises has made its appearance\\namong us very recently, but it seems likely to have rather\\nextended use as a means of correcting an evil of wide preva-\\nlence and of real magnitude.\\n(2) Another large class of referenda in local communi-\\nties, separately grouped for convenience sake, includes such\\nas relate to the expenditure of public moneys, not in aid of\\nor in alliance with private enterprise, but by the government\\nitself for its own general or special purposes in the exercise\\nof its original powers. A government in its corporate and\\nfiduciary capacity may issue bonds against the public credit\\nand sell them in the money markets it may contract a teni-\\nCompiled Statutes o\u00c2\u00a3 Nebraska, sec. 754 c\u00c2\u00a3. ibid., sec. 4036.\\nWisconsin Statutes, 1898, sec. 940J. Ibid.\\nLaws of Missouri, 1891, p. 60.\\nArticle on Miscellaneous Corporations, sec. 2.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0268.jp2"}, "269": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 253\\nporary loan to be repaid out of current revenues it may make\\na direct appropriation, if it has money in hand in the treas-\\nury; and again it may levy taxes which in the usual case\\nis a government s principal source of income. The peo-\\nple of local communities are called upon by law to approve\\nor disapprove of all these transactions under varying con-\\nditions in the various States. They are often asked more-\\nover to give their opinion upon the plain proposition for\\nwhich the expenditure is to be made, whether it be the pur-\\nchase of waterworks, the erection of a county courthouse or\\nthe improvement of a road. To the discretion of the repre-\\nsentative boards or legislatures then is left the whole problem\\nof providing the means to carry forward the specific work\\nwhich the people have authorized. Sometimes the people\\nvote twice or thrice on what is essentially the same proposi-\\ntion, first to engage in the undertaking, secondly, to incur\\nthe debt necessary to execute it, and thirdly, to levy the tax\\nto take care of the debt. So far as we are concerned here, it is\\nno matter in what manner the financial obligation is incurred\\nby the local government the principle is the same in all these\\ncases and it will be our object in this place to keep in view\\nsimply the one fact the purpose for which the money is to\\nbe expended.\\nVery usual is the submission of propositions which involve\\nan outlay by the local governments for the erection of build-\\nings for county, city or other public purposes and the pur-\\nchase of sites for these structures. In the first place there\\nare buildings which are used by the local government in its\\nexercise of the police power and the administration of jus-\\ntice, as court houses and town halls jails, workhouses\\nand houses of correction. Thus when bonds are to be issued\\nto build, repair or remodel courthouses, clerks offices, jails\\nand other public buildings in the several counties of Kentucky\\nor to provide for the building, repairing or remodeling of the\\nsame there is a referendum. Again in Iowa the board\\nBarbour and Carroll s Kentucky Statutes, 1894, sees. 1872 et seq.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0269.jp2"}, "270": {"fulltext": "254 THE REFERENDUM IN AMERICA\\nof supervisors of a county may not order the erection of a\\ncourthouse, jail, poorhouse or other building or bridge when\\nthe probable cost will exceed $5,000, nor the purchase of real\\nestate for county purposes exceeding $2,000 in value until a\\nproposition therefor shall have been first submitted to the\\nlegal voters of the county, and voted for by a majority of all\\npersons voting for and against such proposition at a gen-\\neral or special election In townships in Iowa the follow-\\ning question is submitted to the people Shall the proposi-\\ntion to levy a tax for the erection of a public hall be\\nadopted In Minnesota the council of any city, borough\\nor village with a population not exceeding 10,000 may sub-\\nmit the question of erecting a city hall, market house, en-\\ngine house, city offices or city prison Likewise in Ohio\\ntwo or more counties, the proposal having first been approved\\nby the electors of the same, may unite to erect and main-\\ntain for their joint use a workhouse in which to utilize the\\nlabor of public misdemeanants.*^ This referendum in regard\\nto workhouses also exists in counties in other States.*^ In\\ncertain counties in Georgia the people may decide whether\\na reformatory prison shall be established at the public ex-\\npense for the purpose of taking care of misdemeanants under\\nsixteen years of age.*- Houses of correction with the\\nsame humane end in view are the subject of a plebiscite in the\\ncounties of Arkansas.*^\\nWith a beneficent interest in the welfare of the people, and\\nAnnotated Code of Iowa, 1897, sec. 423; cf. Webb s Statutes of\\nKansas, 1897, chap. 27, sees. 17-18; Revised Statutes of Florida, 1892,\\np. 275; Revised Codes of North Dakota, 1895, sec. 1923; Session Laws\\nof Minnesota, 1895, pp. 693, 699; Constitution of Colorado, art. xi, sec.\\n6; Constitution of Missouri, art. x, sec. 2; Constitution of Michigan,\\nart. X, sec. 9 Revised Statutes of Missouri, 1889, p. 278.\\nCode of Iowa, sec. 567 cf. Revised Statutes of Ohio, 7th ed., 1896,\\nsec. 1479.\\nStatutes of Minnesota, 1894, sec. i43S-\\nRevised Statutes of Ohio, sec. 2107a.\\n^^Cf. Kentucky Statutes, 1894, sec. 4879 1 Minnesota Statutes, 1894,\\nsec. 1987.\\n^Code of Georgia, 1896, Vol. Ill, sees. 1192 et seq.\\nDigest of the Statutes of Arkansas, 1894, pp. 382 et seq.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0270.jp2"}, "271": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 255\\nwith the object of protecting the incapable and the unfortu-\\nnate, the local governments take charge of the poor. In\\ncertain communities in some States expenditure on this\\naccount is, however, conditional upon the direct assent of the\\ncitizens. Thus poor farms poor houses and poor\\nasylums are acquired and established by the local govern-\\nments by way of the referendum and the taxpayers them-\\nselves decide whether they desire to expend so much money\\nas will be required to maintain this branch of the administra-\\ntion. In Ohio children s homes may be established in\\ncounties in the same manner. These institutions are intended\\nto serve as asylums for orphans or children for whose sup-\\nport parents have failed to provide.*^ By an act passed by the\\nlegislature of Illinois in 1891 cities are authorized to estab-\\nlish and maintain non-sectarian public hospitals to be sup-\\nported by an annual tax which is to be turned into a hos-\\npital fund This tax is n^t to be collected in any city of\\nthe State, however, until the people of that city have first\\ngiven their consent to the levy.*\u00c2\u00ae The purchase of land for\\nthe sites of public hospitals is contingent on the popular assent\\nin certain cities of Nebraska,* and the erection of market\\nhouses in cities and towns is a subject which in other States\\nis sometimes referred to popular vote.*^\\nIn the exercise of the local governmental function of guard-\\ning life and property from destruction by fire, questions in\\nrelation to the expenditure of public money are often sub-\\nmitted to the people. In many American cities there are\\nvolunteer fire departments which find their support in the\\nsame sentiments that induce private individuals to maintain\\nCf. Statutes of Minnesota, 1894, sec. 1987; Webb s General Statutes\\nof Kansas, 1897, chap. 46, sees, i et seq. General Statutes of New\\nJersey, 1896, p. 2522 Revised Codes of North Dakota, 1895, sec. 1495.\\nRevised Statutes of Ohio, sec. 929; cf. ibid., sec. 7821.\\nStarr and Curtis Annotated Statutes, p. 823 cf. Session Laws of\\nTennessee, 1897, p. 606; Acts of Idaho, 1890-gi, p. 53.\\nCompiled Statutes of Nebraska, 1897, sec. 1048.\\nStatutes of Minnesota, 1894, sec. 1435; Laws of Maryland, 1893,\\np. 450.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0271.jp2"}, "272": {"fulltext": "256 THE REFERENDUM IN AMERICA\\nfree hospitals and schools, and to raise military companies\\nfor the common defence. In the more populous cities pro-\\ntection from fire tends all the while to become a public func-\\ntion and paid fire departments are organized as an in-\\ntegral part of. the municipal system receiving their support\\nfrom the public treasuries. In New Jersey, for instance, the\\npeople of cities may determine by a plebiscite whether they\\nwill adopt the paid fire department system and abandon the\\nvolunteer service.* In New Jersey, too, the people of in-\\ncorporated towns may vote upon the question of the purchase\\nof steam fire engines.^* The legislature of Maryland recently\\nauthorized the officers of a town to submit the proposition\\nof expending public money for the erection of a hose\\nhouse in another town to consult the people in reference\\nto making a fire improvement loan which was to be\\napplied and used exclusively for the construction of a fire\\nalarm system In Pennsylvania boroughs the local officers\\nmay submit the question of levying a tax and expending the\\nproceeds for the purchase of hose for fire engine companies\\nas may be required to furnish the said boroughs with a suf-\\nficient supply of water for the extinguishment of fires and\\nfor the erection of fire plugs or hydrants\\nAgain, the local governments have developed a function of\\nproviding water and light, and in other ways the needs of the\\npeople are supplied through the public corporation instead of\\nby private enterprise. Public ownership and control of these\\nbusinesses in cities are undertaken with the object of supply-\\ning the necessities of the inhabitants at a reasonable price,\\nand safeguarding them from abuses too likely to develop\\nfrom a system which permits private companies to operate\\nfreely in this field. To take over water works, pumps, mains,\\ngas or electric lighting plants from private companies or to\\nGeneral Statutes of New Jersey, p. 1504.\\nIbid., p. 1481; c\u00c2\u00a3. ibid., p. 1528, and Acts of Idaho, 1890-91, p. 53.\\nLaws of Maryland. 1890, p. 309.\\nLaws of 1894, p. 72.\\nBrightly s Purdon s Digest, p. 241.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0272.jp2"}, "273": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 257\\nconstruct these newly requires a large expenditure of money,\\nand when such a step is contemplated the electors are very\\noften asked to decide as to the advisability of engaging upon\\nso important and responsible a task. In many States there\\nare laws providing for referenda in cities, boroughs and\\ntowns on these subjects. One of the most thoroughgoing\\nmay be instanced, and this occurs in Iowa where cities and\\ntowns are authorized to purchase, establish, erect, main-\\ntain and operate, within or without the corporate limits,\\nwaterworks, gasworks, or electric light or electric power\\nplants with all the necessary reservoirs, mains, filters, streams,\\ntrenches, pipes, drains, poles, wires, burners, machinery, ap-\\nparatus and other requisites But no such works or\\nplants shall be authorized, estabhshed, erected or purchased,\\nleased or sold unless a majority of the legal electors voting\\nthereon vote in favor of the same at a general or special\\nelection The new Constitution of South Carolina says\\nCities and towns may acquire by construction or purchase,\\nand may operate, waterworks systems and plants for fur-\\nnishing lights, and may furnish water and lights to individ-\\nuals, firms and private corporations for reasonable com-\\npensation; provided that no such construction or purchase\\nshall be made except upon a majority vote of the electors\\nin said cities or towns who are qualified to vote on the bonded\\nindebtedness in said cities or towns.\\nThe construction of sewers and drainage systems in cities\\nand towns is also a subject that is sometimes referred to popu-\\nlar vote. As necessary as such sanitary arrangements would\\nseem to be, the installation of a suitable sewerage system is,\\nAnnotated Code of Iowa, sec. 720.\\nArt. viii, sec. 5. For similar provisions respecting waterworks or\\nlighting plants compare Starr and Curtis Annotated Statutes of Illinois,\\np. 869; Session Laws of Pa., 1885, p. 163; ibid., 1891, p. 90; Mills\\nAnnotated Statutes of Colorado, Supplement, 1897, p. 1144; Laws of\\nConnecticut. 1893, p. 380 Acts of Idaho, 1890-91, p. 53 Supplement to\\nthe Public Statutes of Massachusetts, 1889-95, P- 484 Annotated Code\\nof Mississippi, 1892, sees. 2948 and 3014, and many others.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0273.jp2"}, "274": {"fulltext": "258 THE REFERENDUM IN AMERICA\\nin some cases, made to depend upon the contingency of a\\nfavorable vote of the taxpayers.\\nThere are very many instances which might be cited to\\nillustrate the part the people play in voting money to increase\\nthe fertility and cultivability of the soil, to improve the\\nmethods of public communication over roads and other high-\\nways, to facilitate navigation and to assist in the economic\\ndevelopment of neighborhoods. The people vote in special\\nirrigation districts and other local entities for or against\\ntaxation and the expenditure of money to improve arid lands.\\nThey vote to drain swampy lands, and to construct embank-\\nments and levees so that rivers may not overflow, doing\\ndamage, during freshets, to the surrounding country. In\\nTexas a tax for the construction of sea walls and breakwaters\\nis the subject of a referendum. The Constitution of that\\nState says All counties and cities bordering on the coast\\nof the Gulf of Mexico are hereby authorized upon a vote\\nof two-thirds of the taxpayers therein (to be ascertained as\\nmay be provided by law) to levy and collect such tax for\\nconstruction of sea walls, breakwaters or sanitary purposes\\nas may be authorized by law, and may create a debt for such\\nworks and issue bonds in evidence thereof.\\nThe construction of roads, streets, bridges and pavements\\nand the improvement and repair of the same are subjects upon\\nwhich the people often vote in local districts. This refer-\\nendum appears in a great variety of forms. We find that in\\nIllinois, for instance, fifty land owners in any township may\\nhave an election called on the question of levying a tax not\\nto exceed $1 on each $100 of the assessed valuation of all\\nCode of Mississippi, 1892, sec. 3014; General Statutes of New Jer-\\nsey, p. 207; Acts of Idaho, 1890-91, p. 53.\\nCf. Acts of California, 1891, p. 147; Laws of Idaho, 1895, pp. 184\\net seq. Webb s General Statutes of Kansas, chap. 79, sees. 71 et seq.\\nBarbour and Carroll s Kentucky Statutes, sec. 2414; Wolff s Revised\\nLaws of Louisiana, 1897, p. 375; ibid., p. 718; Code of Mississippi, sec.\\n3014; Session Laws of South Dakota, 1897, P- 219; Shannon s Annotated\\nCode of Tennessee, 1896, sees. 3856 et seq.\\nConstitution of Texas, art. xi, sec. 7,", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0274.jp2"}, "275": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 259\\nthe taxable property in the township for the purpose of con-\\nstructing and maintaining gravel, rock, macadam or other\\nhard roads Roads may be improved in the same way in\\nlocal districts in Indiana and in Kentucky.\u00c2\u00ae^ In Minnesota\\nthe citizens with their own consent may be taxed for the\\nconstruction of roads to be used for steam traction trans-\\nportation In Michigan the board of supervisors of any\\ncounty may authorize a township, to borrow or raise by tax\\nupon such township any sum of money not exceeding $1,000\\nin any township in any one year to build or repair any roads\\nor bridges in such township if the assent of the people shall\\nfirst be obtained.^^ In States in which the privi-\\nlege of managing turnpikes has been granted away to\\nprivate companies the citizens may decide whether the local\\ngovernments shall take control of the highways, abolishing\\nthe toll houses which have become a source of annoyance to\\ntravellers. The question of free turnpikes is submitted to\\npopular vote in the counties of Kentucky,^* Ohio and\\nIndiana.^^\\nSimilarly the people of local districts may decide whether\\npublic funds shall be expended for the erection or purchase\\nof bridges. At an earlier day rivers, if sufficiently shallow,\\nwere forded; if deeper, wagons were usually carried over by\\nferry. These primitive devices were followed by the private\\nbridge for the use of which the owners charged the traveller\\na fee. Later it came to be a question for the citizens to de-\\ntermine whether the community should not own and control\\nthe bridges. In several States the people vote to tax them-\\nselves or to issue bonds for this purpose, as in Kentucky,\\nMichigan and Kansas. In North Carolina there is the\\nStarr and Curtis Annotated Illinois Statutes, p. 3599.\\nHorner s Indiana Sfntutes, 1896, selc. 5114CCC.\\nBarbonr and Carroll s Kentucky Statutes, sees. 4742 et seq.\\nStatutes of Minnesota, 1894, sees. 1934 et seq.\\nHowell s Annotated Statutes of Michigan, 1882, p. 202.\\nLaws of Kentucky, 1896, p. 39.\\nRevised Statutes of Ohio, sec. 4934.\\nHorner s Indiana Statutes, sec. 5107.\\nCf Webb s General Statutes of Kansas, chap. 44, sees, g and 24", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0275.jp2"}, "276": {"fulltext": "2 6o THE REFERENDUM IN AMERICA\\ncase of the people being called upon to decide whether bridges\\nwhich were free shall be converted again into toll bridges. It\\nwas believed that the cost of keeping two certain bridges in a\\ncounty in good repair was burdensome to the taxpayers,\\nwhereupon the question of re-establishing toll houses was\\nsubmitted to popular vote.\u00c2\u00ae^ In many cities and towns the\\npeople are directly consulted in regard to the construction of\\nstreets and boulevards.\u00c2\u00ae^ The creation of indebtedness for\\nthe building or maintenance of board walks along the sea-\\nfront in cities located on or near the Atlantic Ocean, in the\\nState of New Jersey, is a subject for a poll of the people.\\nWater courses and the channels of streams are sometimes\\ndeepened with the aim of improving navigation when the\\npeople declare their willingness to bear this additional ex-\\npense.\\nA park within a city in the strict sense is not a necessity,\\nespecially among a people who are still in a very utilitarian\\nstage of civilization. There is a disposition to-day even in\\nsome very large American cities to leave it to private bene-\\nfactors to establish and maintain public pleasure parks. In\\nthe cities of many States, however, the taxpayers may decide\\nwhether such an expenditure shall be made on the common\\naccount.\\nAs a means of beautifying the city, as a public health\\nmeasure and for other reasons which are good and sufficient,\\nibid., chap 45, sec. i ibid., chap. 46, sec. i Kentucky Statutes, sees.\\n1862 et seg. Michigan s Annotated Statutes, p. 202; ibid., p. 406;\\nIndiana Statutes, sees. 2880b. et seq., and many others.\\nPublic Laws of 1893, p. 139.\\nCf. Code of Mississippi, sec. 3014; General Statutes of New Jersey,\\npp. 2150 and 2156; Acts of Idaho, 1890-91, p. 53; Laws of Colorado,\\n1893, PP- 462-63.\\nLaws of New Jersey, 1896, p. 71.\\nCf Code of Iowa, sec. 799.\\nCf Laws of Colorado, 1893, PP- 462-63; Acts of Idaho, 1890-91, p.\\nS3 Starr and Curtis Annotated Statutes of Illinois, p. 852 Code of\\nIowa, sec. 860; Webb s General Statutes of Kansas, chap. 42, sees. 57\\net seq.; Kentucky Statutes, sec. 2854; Compiled Statutes of Nebraska,\\n1897, sec. 1009; General Statutes of New Jersey, pp. 2613 and 2618;\\nActs of West Virginia, 1893, p. iii.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0276.jp2"}, "277": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 261\\nthe city and other local districts sometimes purchase land for\\ncemeteries. Thus in townships in Kansas and Ohio the ques-\\ntion of selling bonds and investing the proceeds in ceme-\\nteries is submitted to popular vote. In the cities and towns\\nof Idaho there is the same referendum. In Minnesota in\\ntowns, cities, villages and boroughs the people may vote to dis-\\ninter bodies in abandoned cemeteries, to move and reset the\\ntombstones in new grounds and then improve the old ceme-\\ntery lands as public parks. In a local district in Ohio the\\npeople were recently polled to determine whether certain\\ngraveyards, earlier under private control, should be trans-\\nferred to the trustees of a township.\\nPublic money is also expended in a variety of ways with\\nthe object of advancing the general economic development of\\na community, but in a number of instances the popular assent\\nto the grant which many of the taxpayers may possibly re-\\ngard as an extravagance, must first be obtained. Thus in any\\ncity of the first class, in Kansas, the people may authorize a\\nbond issue to an amount not exceeding $20,000 for the pur-\\npose of prospecting for coal within the city limits. The\\nquestion of the issue of bonds in like amount to defray the\\ncost of boring or prospecting for coal may be submitted to\\npopular vote in the counties of Nebraska. In any county\\nof the State of Washington on the receipt of a petition signed\\nby twenty taxpayers the county commissioners must submit\\nthe question of making a public appropriation for the pur-\\npose of boring or drilling into the earth for valuable minerals\\nsuch as coal, oil, gas, salt or any other valuable subterranean\\nproduction that is supposed to exist in quantities sufficient to\\njustify boring for The citizens of counties or townships\\nWebb s General Statutes of Kansas, chap. 42, sees. 57 et seq. Re-\\nvised Statutes of Ohio, 7th ed., sec. 1465.\\nActs of Idaho, 1890-91, p. 53; cf. Laws of West Virginia, 1893, P\u00c2\u00bb\\nIII. Laws of Minnesota, 1897, p. 23.\\nLaws of Ohio, 1896, p. 736.\\nWebb s General Statutes, chap, z^, sees, i et seq.\\nCompiled Statutes of Nebraska, sec. 2272.\\nCode of Washington, 1896, sec. 2456.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0277.jp2"}, "278": {"fulltext": "262 THE REFERENDUM IN AMERICA\\nin Kansas may vote to assess and collect a fire tax which\\nshall be used to prevent the incursion of prairie fires by\\nbreaking, plowing, mowing or any other necessary method,\\nburning strips at intervals etc.^^ In the townships of\\nMinnesota the people may determine to build and main-\\ntain a fence at or near the township line for the purpose of\\npreventing the spreading of Russian thistles over the lands\\nof the township V^ and in the same State the people may\\ncuriously vote to tax themselves to an amount not exceeding\\nfive mills on each dollar of assessed valuation to pay for the\\ndestruction of grasshoppers and their eggs\\nIn Ohio if a county agricultural society and the com-\\nmissioners of any county are of opinion that the interests of\\nthe society and the county demand an appropriation from the\\npublic treasury for the purchase and improvement of the\\ncounty fair grounds the question may be submitted to popular\\nvote.\u00c2\u00ae^ There is a referendum on the same subject in the\\ncounties of Kansas.^* A law of 1897 authorized the people of\\ncounties in Nebraska to vote upon the question of appropriat-\\ning money to an inter-state exposition.^^ In several States\\nthe people in their local communities determine whether pre-\\nmiums shall be paid from the common treasury for the de-\\nstruction of various species of noxious wild animals. In\\ncounties in Nebraska the people may vote For Bounties or\\nAgainst Bounties and if bounties are approved of any\\nperson presenting the scalps with the two ears and face\\ndown to the nose to the proper officials, with his oath that\\nthe animals were killed within the county where the pre-\\nmium is applied for, will receive $3 for each wolf or mountain\\nlion and $1 for each w41d cat or coyote so killed. Any\\ncounty desiring to be released from the obligation of making\\nWebb s General Statutes of Kansas, chap. 170, sees, i et seq.\\nLaws of Minnesota, 1895, p. 62Z-\\nStatutes of Minnesota, 1894, sees. 7885-86.\\nRevised Statutes of Ohio, sec. 3703.\\nWebb s General Statutes, chap. 174, sees, i et seq.\\nCompiled Statutes of Nebraska, sec. 2303a.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0278.jp2"}, "279": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 263\\nthese payments may later revoke its action by popular\\nvote.^^\\nBy a law which passed the legislature of Kansas in 1871\\nthe question of paying a bounty in counties to encourage the\\ngrowing of hedges was submitted to popular vote. If the\\nproposition were approved in any county in which the sub-\\nmission was made an annual payment from the county treas-\\nury of $2 for every forty rods of osage orange or hawthorn\\nfence was authorized, for a period of eight years, to the\\nperson successfully growing and cultivating the same\\nThis law was repealed in 1883.^^ In 189 1 the Nebraska\\nlegislature passed an act authorizing the officers of any\\ncounty, if the proposition were approved by the people at a\\nspecial election, to issue and sell its bonds to an amount not\\nexceeding $20,000, the proceeds to be used for the purpose\\nof raising money to purchase grain to be planted and sown\\nin order to raise crops for the year 1891 and for feeding\\nteams used in raising said crops This interesting bit of\\nsocialistic legislation was induced by a serious drought which\\nit was claimed had left many farmers without the means to\\nput their crops in the ground for the next harvest. The\\nlegislature had earlier made an unconditional appropriation\\nfrom the State treasury of $100,000 for the relief of distress\\narising from the same cause.^*^ In Kansas, by an act passed\\nin 1875, counties were in the same way empowered to bond\\nthemselves to an amount varying from $5,000 to $20,000 each\\naccording to their population and their presumable ability to\\nbear the burden. These bonds were to be known as relief\\nbonds and the funds secured In this manner, in each county\\nwhich voted at a referendum in favor of the outlay, were to\\nbe used for the purpose of supplying the destitute with wheat,\\nCompiled Statutes of Nebraska, sec. 472 cf. Howell s Annotated\\nStatutes of Michigan, sec. 2259, for a poll of the people in townships on\\nthe payment of bounties for the destruction of wolves and panthers.\\nSession Laws of Kansas, 1S71, p. 211 (chap. 91).\\nIbid., 1883, chap. 112.\\nSession Laws of Nebraska, 1891, p. 310 (chap. 41).\\nIbid., p. 302 (chap. 39).", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0279.jp2"}, "280": {"fulltext": "264 THE REFERENDUM IN AMERICA\\ncorn, oats and potatoes. This too was a measure induced\\nby a drought and it was meant to assist the poor in respect\\nof the next harvest.\u00c2\u00ae^\\nIn at least two States, Pennsylvania and West Virginia, a\\nvery odd system is employed. Sheep farmers are compen-\\nsated by way of the referendum for injury inflicted upon\\ntheir flocks by dogs. By a law of 1878 in Pennsylvania the\\nowners of dogs were annually assessed and taxed fifty cents\\nfor each male dog and one dollar for each female dog. The\\nsum thus collected in each county was to go into a sheep\\nfund from which payments were to be made from time to\\ntime to flock-masters to indemnify them for losses traceable\\nto dogs. The amount in damages due any claimant was to be\\nestablished by appraisers regularly appointed to this task.\\nThe surplus remaining in the county treasury after payment\\nof all necessary sums was to be made over to the school\\ntreasurers of the various school districts into which the\\ncounty was divided. The tax was not to be levied in any\\ncounty, however, until the electors had voted For the Sheep\\nLaw or Against the Sheep Law and a majority of them\\nhad accepted the provisions of the act. To avoid the too\\nfrequent recurrence of elections the people were to be polled\\non this subject not oftener than once in two years. Dogs\\nare taxed in the same way in West Virginia, the proceeds\\nbeing set aside as a fund from which damages will be paid to\\nthe owners of sheep whose flocks have suffered from this\\ncause. In forty-six counties of the State the taking effect\\nof the act is made conditional upon a favorable vote of the\\npeople at an election For the Dog Tax or Against the\\nDog Tax The law when it has once come into opera-\\ntion in any county may be repealed as it was originally adopted\\nby popular vote.^*\\nThere are not a few instances in which the erection of\\nGeneral Statutes of Kansas, 1889, sees, i860 et seq.\\nCf. State ex rel. v. Osawkee Tv/p., 14 Kan. 418.\\nSession Laws of Pa., 1878, p. 198.\\nCode of West Virginia, 3rd ed., 1891, p. 600.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0280.jp2"}, "281": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 265\\nmonuments to soldiers, naval or military heroes and other\\neminent men is made the subject of a referendum. Thus\\nin Iowa, when a petition which has been signed by a ma-\\njority of the members of the Grand Army posts within any\\ncounty is presented to the board of supervisors of that county,\\nthe proposition to levy a tax to aid in the erection of a sol-\\ndiers and sailors monument or memorial hall must be sub-\\nmitted to popular vote.^^ In counties in Ohio when suf-\\nficient money has not been privately subscribed for the erec-\\ntion of a monument in memory of those who died or were\\nkilled during the war of 1861 a referendum may be taken\\non the question of collecting a county tax for this purpose.\u00c2\u00ae^\\nIn Wisconsin, upon a favorable vote of the people, any\\ncounty board may appropriate a sum not exceeding $10,000\\nfor a monument or other memorial to the soldiers of the Civil\\nWar,^ and any town, city or village in Wisconsin may, by\\npopular vote, determine to erect a suitable monument or\\nmemorial building to the memory of any such residents\\nthereof as may have lost their lives in the military or naval\\nservice of the State or United States, or in rendering great\\nState or national service or in consequence of any such serv-\\nice By a law of 1896 the people of certain cities in Ohio\\nmay vote a tax for the erection of a monument to General\\nAnthony Wayne.^^ In the same State a county tax may be\\nlaid, by way of a plebiscite, for a soldiers library and\\narmory building for the use of posts of the Grand Army\\nof the Republic and kindred and auxiliary organizations\\nBy a law of 1869 in New York the legislature extended the\\nright to the electors of any town at any regular town meet-\\ning or of any county at any regular election to vote any sums\\nof money to be designated by a majority of all the electors\\nvoting at such town meeting or election for the purpose of\\nCode of Iowa, 1897, sec. 435. Revised Statutes oi Ohio, sec. 893.\\nSanborn and Berryman s Wisconsin Statutes, sec. 670.\\nIbid., sec. 937.\\nSession Laws of Ohio, 1896, p. 651; cf. ibid., p. 718,\\n^^Ubid., p. 700.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0281.jp2"}, "282": {"fulltext": "266 THE REFERENDUM IN AMERICA\\nerecting a public monument within such town, or for the\\ncounty as the case may be, in memory of the soldiers of such\\ntown or county or in commemoration of any public person\\nor event\\nIn some States the people in their local communities may\\ndetermine whether they shall pay their road tax in money\\nor in labor. To work out the tax is a privilege upon\\nwhich a high value is placed in many rural communities, since\\nit enables the farmers who have few resources besides their\\ntools and implements, their teams and their own muscular\\nstrength to escape a money payment. The repairs to the\\nhighways are made at a season of the year when the popula-\\ntion is not otherwise busily engaged and, under the direction\\nof a locally designated officer, large parties of men who are\\nthus working out their tax may be met at certain periods\\nalong the American countryside. That the service rendered\\nby a force of men recruited in this way is in the nature of the\\ncase quite poor and ineffective is not a conclusive argument\\nin favor of the abandonment of the system in many parts\\nof our democracy. If the system is to be abandoned the tax-\\npayers ask that they shall at least be consulted in regard to\\nthe change, a right that they have won in IlUnois,^^^ Wiscon-\\nsin,^^^ and Michigan,^^*\\nA rather peculiar referendum is met with in North Caro-\\nlina. When convicts are employed in work on the public\\nroads they must be fed and maintained in some manner. In\\na North Carolina county the citizens were lately asked to\\ndecide whether a tax should be laid for the benefit of a fund\\nto be used for the support of convicts and prisoners and\\npersons owing otherwise non-collectible fines while thus\\nengaged on the roads in the public service.\\nIn the exercise of its benevolent task of caring for the poor\\nSession Laws of New York, 1869, p. 2056, chap. 855.\\nStarr and Curtis Annotated Statutes of Illinois, p. 3586.\\nSanborn and Berrj ^man s Wisconsin Statutes, sec. 776.\\nHowell s Annotated Statutes of Michigan, p. 398.\\n^Public Laws of North Carolina, 1895, P- 3So.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0282.jp2"}, "283": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 267\\nthe local governments sometimes tax the citizens for the pur-\\nchase of a hearse and the erection of a vault in order that\\nno one may be without suitable burial. The proposition that\\na tax shall be levied for either or both of these purposes is\\nsubmitted to popular vote in townships and villages in\\nOhio.i\\nA question which is referred to the people of local districts\\nin Ohio with curious frequency is deserving of special re-\\nmark. This concerns the payment of the claims of officers\\nand magistrates, holding positions of local trust, who have lost\\nthe public money by investing it in unsound banks and who\\nhave been obliged to make up the amount themselves, or their\\nsureties for them, in order to indemnify the public treasury.\\nFor instance a township treasurer, one Alpheus Wilson, had\\nplaced $1,642.77 in a bank which afterward failed. When\\nthe affairs of the institution were wound up it was found that\\nit could pay to its creditors only 80 per cent, of the amount\\ndue them. There was thus a deficit in the accounts of Wilson\\namounting to $328.55. The State legislature was unwilling\\nto relieve the treasurer and his sureties on its own responsi-\\nbility, but declared that this would be done in case a majority\\nof the electors of the township voting on the subject should\\nagree to the peculiar proposition. The people voted then\\nFor the relief of Alpheus Wilson yes or For the relief\\nof Alpheus Wilson no\\nIn the same year a still more curious case of this kind\\nmade its appearance in Ohio. This was a proposal for the\\nreimbursement of a supervisor of highways, one Rodney\\nPrentis, who while in office, it was said, had caused certain\\nparties to be arrested for leaving dead animals unburied near\\nthe highway to the annoyance and discomfort of the public\\nand the detriment of the public health Later on one of\\nthe parties in question had instituted a suit at law in a\\ncounty court against Prentis for alleged malicious prosecu-\\ntion whereby said Prentis was put to a great expense in de-\\nRevised Statutes of Ohio, sees. 1485 et seq., 2556.\\n^Laws of Ohio, 1896, p. 456.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0283.jp2"}, "284": {"fulltext": "268 THE REFERENDUM IN AMERICA\\nfending said cause, and while said action finally terminated\\nin favor of said Prentis, he was, by reason of the insolvency\\nof the plaintiff, compelled to pay a large amount of costs in\\naddition to attorney fees to his counsel The people then\\nwere to be polled at a township election to find out whether\\nthey would pay a sum not to exceed $400 to reimburse the\\nRodney Prentis estate In another case a referendum\\nwas taken in a township in Ohio for the reimbursement of a\\nfirm of builders and contractors who were alleged to have\\nsustained a loss of $500 in the construction of a school\\nhouse.^*^^ In 1896 alone the legislature of Ohio appears to\\nhave passed no less than twelve of these conditional laws for\\nthe relief or reimbursement of local officers, or individuals,\\nor firms. This is all a singular commentary on the foresight\\nand talent of local financiers who seem not to be able to\\nadjust matters of this kind without appeals to the State legis-\\nlature, or else it is an odd feature of the American system\\nof party government devised by the politicians in or der that\\nthey may keep in the good graces of their lieutenants in rural\\nconstituencies, which is much more likely to be the true ex-\\nplanation of the phenomenon.\\nThe referendum is also employed quite frequently in ad-\\njusting the salaries of city and other local officers, and in\\ngranting pensions to members of the civil service. Thus in\\nColorado in cities and towns of not more than 5,000 in-\\nhabitants, incorporated under the territorial laws of Colorado\\nor by special charter, the mayor and aldermen, or the trus-\\ntees in places having such officers, shall not receive any\\ncompensation for services rendered by them as such mayor,\\naldermen or trustees, unless the question of paying such\\nmayor, aldermen or trustees for their services shall first be\\nsubmitted to the legal voters of such city or town, and unless\\na majority of those voting thereon shall vote in favor\\nLaws of Ohio, 1896, p. dyz-\\nIbid., p. 533; cf. Local Acts of Michigan, 1891, p. 865; ibid., 1893,\\nP- 579-", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0284.jp2"}, "285": {"fulltext": "ON LOAN BILLS AND FINANaAL PROPOSALS 269\\nthereof The question of increasing the salary of the\\nMayor of Hagerstown, in Maryland, was recently submitted\\nto a vote of the people of that city. In New Jersey there\\nare a number of conditional acts of this kind. One refers\\nto the people of cities the question of creating a new office,\\npresident of the board of aldermen, common council or\\ncouncil who is to receive in salary half as much as the mayor\\nof the same city;^^^ others, the question of increasing the\\ncompensation of employees of the fire department others\\nof increasing the pay of persons engaged in the city police\\nservice. In New Jersey, too, the people of cities may de-\\ntermine whether pensions shall be granted to police officers\\nand policemen who have reached a certain age and have been\\nin the service of the city for a period of twenty years. In\\nthe cities of Missouri the people may decide whether or not\\npensions shall be paid to policemen who may have sustained\\ninjuries while on pubHc duty.^^\u00c2\u00ae In any town in the State of\\nNew York teachers who have taught continuously in the\\npublic schools for a period of twenty-five years or more may\\nreceive monthly payments from a pension fund^ if the tax-\\npayers of the town shall vote in favor of making them such\\ncompensation.^^^\\nAn annual budget to take the place of the great number of\\nseparate appropriation bills, putting science and system into\\na field where only disorder has reigned hitherto, is gradually\\nmaking headway in the local governmental practice of the\\ndifferent States. Where this reform has been introduced the\\nreferendum is often applied as a kind of penalty on all appro-\\npriation bills which the council or board of government has\\nneglected to include in the general budget. Thus in North\\nMills Annotated Statutes of Colorado, 1891, sec. 4537.\\n^Session Laws of Maryland, 1894, p. 151.\\nGeneral Statutes of New Jersey, p. 500.\\nIbid., pp. 1506, 1 5 19, 1524, 1558.\\n^^^Ibid., pp. 1536, 1537, 1543, 1545, 1557- Ibid., p. 1537.\\n^Session Laws of Missouri, 1895, p. 236.\\nBanks and Brothers Revised Statutes of New York, 9th ed., p.\\n3089.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0285.jp2"}, "286": {"fulltext": "270 THE REFERENDUM IN AMERICA\\nDakota, with respect to cities, it is provided that there shall\\nbe an annual appropriation bill covering all necessary sub-\\njects, and that no further appropriations shall be made at\\nany other time within such fiscal year unless the proposition\\nto make each appropriation has been first sanctioned by a ma-\\njority of the legal voters of such city either by a petition\\nsigned by them or at a general or special election duly called\\nfor that purpose Similar provisions occur in the\\nstatutes of South Dakota,^^^ Nebraska,^^^ Illinois/^^ and\\nMichigan. An interesting exception to the general pro-\\nhibition is met with in Illinois where upon a two-thirds vote\\nof the council or legislative board in any city or village an\\nappropriation bill may be passed definitively and without a\\npoll of the people, if the money which it carries with it is in-\\ntended for improvements rendered necessary by a casualty\\nor accident happening after such annual appropriation is\\nmade\\nIn the school administration a prolific field is afforded for\\nthe development of the referendum. The progress which has\\nbeen made in introducing the people as direct agents in legis-\\nlation, in the specially organized school districts and other\\nlocal governmental subdivisions with which the responsibility\\nfor public education rests, is very noteworthy. At a very\\nearly time, it having been recognized that gratuitous school-\\ning of the masses the cost of which was to be borne by the\\ntaxpayers, was a rather unusual exercise of public power,\\nthe people were asked to declare whether they were in favor\\nof such an extension of local functions. And from the be-\\nginning onward in the erection of new school buildings,\\nthe introduction of new equipment and new and higher\\ncourses, the increase of the length of the school term and\\nother proposals which are made from time to time to improve\\nthe public school system, involving as they all do a free ex-\\nRevised Codes of North Dakota, sec. 2262.\\nLaws of 1890. p. 89. Compiled Statutes, p. 196.\\nStarr and Curtis Statutes, p. 726. Local Acts of 1891, p. 134.\\nStarr and Curtis Statutes, p. 726.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0286.jp2"}, "287": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 271\\npenditure of public money, the taxpayers are called upon to\\ngive their assent before fresh financial obligations are in-\\ncurred. Thus as early as in 1825, when it was a question of\\nestablishing a general system of free primary schools in Mary-\\nland, the local option principle was made use of. The electors\\nof each county of the State when they next voted for delegates\\nto the General Assembly were to declare (it would appear\\nviva voce) whether they were for or against the establish-\\nment of these schools. The act was to become operative only\\nin counties in which a majority of the votes cast on the propo-\\nsition were in favor of the schools in other counties remain-\\ning void and of no effect.\\nLikewise in Pennsylvania by an act, passed by the State leg-\\nislature in 1836, to consolidate and amend the several acts\\nrelative to a general system of education by common schools\\nevery township, borough or ward in the State was constituted\\na separate school district the officers of which could tax\\nthe inhabitants and exercise other functions. In each district,\\neach year until a favorable majority should be secured for the\\nproposition, the citizens were to deposit their ballots marked\\nSchools or No Schools in the boxes at the polling\\nbooths. In districts in which the proposition had been de-\\nLaws of Maryland for 1825, chap. 162, An act to provide for the\\npublic instruction of youth in primary schools throughout this State\\nThe last two sections of the act were as follows Sec. 29, Be it en-\\nacted that at the next election of delegates to the General Assembly\\nevery voter, when he offers to vote, shall be required by the judges of\\nelection to state whether he is for or against the establishment of primary\\nschools and the said judges shall record the number of votes for and\\nagainst primary schools and make return thereof to the legislature dur-\\ning the first week of the session and if a majority of the said votes in\\nany county shall be in favor of the establishment of primary schools,\\nas is therein provided for, then and in that case the said act shall\\nbe valid for such county or counties, otherwise of no effect whatever.\\nSec. 30. And be it enacted that if a majority of the votes of any\\ncounty in this State shall be against the establishment of primary\\nschools as established by this act then and in that case the said act\\nshall be void as to that county. This law led to one of the most im-\\nportant of the early judicial opinions on local option measures. Cf.\\nBurgess v. Pue, 2 Gill. 11.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0287.jp2"}, "288": {"fulltext": "272 THE REFERENDUM IN AMERICA\\nfeated, the people might vote on it again a year later. Dis-\\ntricts which in any year should adopt it could retrace their\\nsteps and discontinue the system upon a vote of the people in\\n1837 and every third year thereafter. Where the people had\\ndeclined to assume the increased obligations children whose\\nparents could not afford to educate them privately were still,\\nhowever, at this comparatively late period in the State s his-\\ntory not brought up in total ignorance, but were sent to school\\nunder a more economical system in obedience to the terms of\\nan act to provide for the education of the poor gratis\\nNevertheless such a law gave to those children who availed\\nthemselves of this opportunity to obtain a free schooling, a\\nrather opprobrious position in the community as paupers and\\ndependents, and was far from being a general system of public\\neducation which the law of 1837 contemplated and which has\\nsince been the outgrowth of these modest beginnings\\n126\\n^Cf. Acts of Assembly of Pa., 1808-9, chap. 114; Acts of Assembly,\\n1835-36, p. 525, sec. 16.\\nThe law of 1836 in Pennsylvania which is to be found in P a. Acts\\nof Assembly of that year. No. i66, p. 525, sec. 13, says: The school\\ndirectors of every school district which shall not have adopted the\\ncommon school system shall annually call a meeting of the qualified\\ncitizens of the district on the day of election for directors to be held\\nat the usual place of holding township, ward or borough elections by\\nat least six advertisements put up in the most public places in the dis-\\ntrict for the space of two weeks and the said meeting shall be organ-\\nized between the hours of one and four o clock p. m. on the said day,\\nby appointing a President and the secretary of the board of directors,\\nor in his absence some other member of the board shall perform the\\nduties of secretary to the meeting; when the meeting is so organized\\nthe question of establishing the common school system in the district\\nshall be decided by ballot and the said president and secretary shall\\nperform the duties of tellers to the meeting and shall receive from\\nevery person residing within the district qualified to vote at the gen-\\neral election a written or printed ticket containing the word Schools\\nor the words No Schools and shall continue without interruption or\\nadjournment until the electors who shall come to the said election shall\\nhave opportunity to give in their respective votes and the said tellers\\nshall count the votes and if a majority shall contain the word\\nSchools the secretary shall certify the same to the board of directors\\nof the district who shall proceed to establish schools therein agreeably\\nto the provisions of this act, but if a majority shall contain the words\\nNo Schools the secretary shall certify the same to the county com-", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0288.jp2"}, "289": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 273\\nThis referendum with respect to school taxes made its ap-\\npearance at about the same time in other States of the Union.\\nThe Free School Law which was submitted to the people\\nof the State by the legislature of New York in 1849, leading\\nto that notable judicial opinion in Barto z Himrod/ fur-\\nnishes additional evidence that public expenditure on account\\nof the public schools was early regarded as a suitable subject\\nfor a popular vote.\\nThroughout all the later stages of the development of our\\nsystem of public education into its present form the people\\nhave continued to figure extensively as a law-making agency.\\nThere is a polling of the citizens of local districts in reference\\nto the collection of taxes which are to be used to supplement\\nthe appropriations for general school purposes received from\\nthe treasury of the State. Thus in Arkansas a plebiscite is\\ntaken in school districts at the instance of the county court to\\ndetermine what rate, not in excess of five mills on the dollar,\\nshall be levied for the support and maintenance of public\\nschools This tax would appear to be in benefit of a local\\nfund for general school purposes, and is not to be allocated to\\nany special line of educational work. If the people should\\nrefuse to vote this money to the school administration it is to\\nbe presumed that public schools would still exist within the\\ndistrict, though their efficiency would not be so great.^^* A\\nmissioners of the proper county and the school directors of every\\nschool district which may have adopted the common school system\\nmay, if they deem it expedient, call a meeting of the qualified citi-\\nzens of the district on the first Tuesday in May in the year 1837 and\\non the same day in every third year thereafter, to be held at the usual\\nplace of holding township, ward or borough elections, at which time\\nand place an election shall be held to decide by ballot whether the\\ncommon school system shall be continued or not; the notice for hold-\\ning said elections to be in conformity with the preceding part of this\\nsection; and should there be a majority of the taxable inhabitants of\\nsaid district in favor of No Schools the secretary shall certify the\\nsame to the county commissioners of the proper county and the opera-\\ntion of the common school system shall be suspended in said district\\nuntil such time as a majority of the citizens shall otherwise decide.\\n4 Seld. 483.\\nSandels and Hill s Digest of the Statutes of Arkansas, 1894, sec.\\n6416; cf. Constitution of Arkansas, art. xiv, sec. 3.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0289.jp2"}, "290": {"fulltext": "274 THE REFERENDUM IN AMERICA\\nsupplementary tax for school purposes may be voted by the\\npeople of local districts in Georgia. In Florida, Texas,\\nWest Virginia, Kentucky and Missouri there are local elec-\\ntions on the subject of levying taxes which are to supplement\\nthe appropriations from the State school fund and place\\nlarger sums at the disposal of school officers with a view to\\nraising the standards of instruction and increasing the effi-\\nciency of this branch of the public administration.^^*^\\nIt will be noted by all who will stop to examine into this\\nsubject that a poll of the people in regard to school levies,\\nwith its attendant uncertainties, still finds favor to-day only in\\nthose sections where the common school system has not yet\\nbeen established on very firm foundations. Where the pov-\\nerty of the people and their general heedlessness in regard to\\neducation is so great that the State legislature hesitates to lay\\nthe tax definitively and fix upon its amount, the referendum\\nis an institution whose intrinsic value will not greatly impress\\nany competent student of political forms. It is here a mere\\ndevice by which the representatives of the people in a democ-\\nracy are enabled to escape their just share of responsibility.\\nFurthermore there are referenda with specific ends in view\\nrespecting the public school administration, as for instance, on\\nthe subject of the purchase of land upon which to erect school\\nbuildings, the construction of these buildings and the equip-\\nment of the same.^^^ As the charges on school account are\\nCode of Georgia, 1895, sees. 1399 et seq. of. Constitution of\\nGeorgia, art. viii, sec. 4. The ballots are to contain the words For\\nlocal taxation for public schools or Against local taxation for public\\nschools\\nConstitution of Florida, art. xii, sec. 10 Constitution of Texas,\\nart. vii, sec. 3; Sayle s Civil Statutes of Texas, 1888, art. 425a; ihid.,\\nai t. 3733 et seq.; supplement to Sayle s Civil Statutes, 1888 to 1893,\\nart. 3730; ihid., 3733a et seq.; Code of West Virginia, 3rd ed., 1891,\\np. 361; Barbour and Carroll s Kentucky Statutes, sees. 4457 et seq.;\\nConstitution of Missouri, art. x., sec. 11.\\nSayles Civil Statutes of Texas, 1888; sec. 3733; Laws of California,\\n1891, p. 264; ibid., 1893, pp. 249, 263, 267:, Starr and Curtis Annotated\\nStatutes of Illinois, pp. 3689, 3692; Code of Mississippi, 1892, sec. 3014;\\nMontana Codes, 1895, Vol. I, sees. 1940, 1962; Constitution of Colo-\\nrado, art. xi, sec. 7.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0290.jp2"}, "291": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 275\\nin some measure proportionate to the number of months in\\nthe year school is kept, this subject in many communities\\nis also left to the decision of the whole electorate. If the tax-\\npayers desire it teachers will be employed for a longer time\\nand the pupils can therefore be given a more thorough train-\\ning at the public expense. With increased funds the stand-\\nards can be raised, the instruction improved and the results\\nwill be very much better as measured by the mental develop-\\nment of the children. Although such a subject, in common\\nwith most others affecting public education, would seem to\\nbe one which the people en masse are not well qualified to\\ndeal with, they are often called in to say yes or no on grave\\nquestions of this character. Pecuniary considerations in local\\ndistricts, where men reside to whom education is a name, in-\\nstead of an experience, are likely to operate actively to prevent\\nthe development of an enlightened policy in regard to schools.\\nFor instance, in West Virginia it appears that the legislature\\nmakes it compulsory for a district to keep school during only\\nfour months out of the twelve. On the initiation of the\\nBoard of Education or on the petition of twenty voters\\nof any district, the question of extending this period must be\\nsubmitted to popular vote. The electors who favor the in-\\ncrease of time are to vote For months school the\\nnumber desired being supplied, and those opposed to the ex-\\ntension of the period Against more than four months\\nschool This referendum occurs in a number of States.\\nIn Illinois it is not lawful in any township for a board of\\ndirectors to levy a tax to extend schools beyond nine months\\nwithout a vote of the people\\nWith the development of the public school system the idea\\nhas gained ground that text books should be supplied free of\\ncost to the pupils. Since this policy increases the expense\\nof administration the specific question of free text books is\\n^^^Code of West Virginia, 1891, p. 382; cf. Session Laws of West\\nVa., 1897, PP- 169, 172.\\nStarr and Curtis Statutes of Illinois, p. 3689 cf. Kentucky Stat-\\nutes, sees. 4457 ^i seq.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0291.jp2"}, "292": {"fulltext": "276 THE REFERENDUM IN AMERICA\\nsometimes referred to the electors in counties and school dis-\\ntricts, as in South Dakota,^^* Montana^^^ and other States.\\nAs the school term is increased in length, new courses be-\\ning added and the standards of instruction heightened, the\\ndemand arises for graded schools. Effective results were not\\nto be secured, especially in cities and towns where there are\\nmany pupils to be taught, by confining all the children in one\\nroom or even in one building and bringing them all before the\\nsame teacher or teachers. The High School soon made\\nits appearance in our public educational scheme. In cities\\nit now exists almost everywhere and there are sometimes\\ncounty high schools and township high schools, which are\\nmaintained at places in the county or township convenient to\\nthe students who are entitled to receive free instruction in\\nrural districts. In many parts of the country, however, it\\nis not regarded as an indispensable feature of the school ad-\\nministration, and, since the establishment of a graded system\\nmeans the outlay of a considerable sum of money, the ques-\\ntion is submitted to popular vote. In some cases townships\\nand other local districts, which could not separately afford so\\ngreat an outlay, unite to establish and maintain high schools.\\nThey then use them jointly. The local referendum in respect\\nof high schools occurs in lowa,^^^ California,^^^ West Vir-\\nginia,^^^ Illinois,^^^ Kansas, Kentucky,^*^ Nevada,^*^ ^^[^_\\nconsin^*^ and other States.\\nSimilarly in the establishment of schools of a still higher\\nor of a special character the public money is sometimes ap-\\nSession Laws of 1891, p. 237.\\nSession Laws of 1897, p. 61.\\nCode of Iowa, 1897, sec. 2728.\\nLaws of California, 1891, pp. 57, 182; ibid.j 1893, p. 268.\\nCode of West Virginia, p. 371.\\nStarr and Curtis Statutes, p. 3660.\\nWebb s General Statutes of Kansas^ chap. 64, sees, i et seq.\\n^Kentucky Statutes, sec. 4464; cf. ibid., 4487, for a peculiar plebis-\\ncite in which only negroes vote on the question of establishing a\\ngraded school for colored chldren.\\nStatutes of Nevada, 1895, p. 28.\\nSanborn and Berryman s Statutes, 1898, p. 384.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0292.jp2"}, "293": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 277\\npropriated subject to the popular approval. The Constitution\\nof Kentucky says No sum shall be raised or collected for\\neducation other than in common schools until the question of\\ntaxation is submitted to the legal voters and the majority of\\nthe votes cast at said election shall be in favor of such taxa-\\ntion In Illinois, in such counties as have not yet taken\\nup township organization, the question of founding and main-\\ntaining a county Normal School in which to educate and\\nfit teachers for their profession, is submitted to popular vote.\\nIn other counties in Illinois representative officials may act\\nupon their own initiative in the establishment of such\\nschools.^*^ In North Carolina by a law of 1891, elections\\nwere authorized in cities and towns in respect of a subscrip-\\ntion of money to a newly established Normal and Industrial\\nSchool for White Girls V*^ and in South Carolina similar\\nsubscriptions might be made on authority of the people of\\ncounties, cities or towns in benefit of a branch of the State\\nUniversity to be known as The Winthrop Normal and\\nIndustrial College of South Carolina\\nAkin to this referendum on school questions is another in\\nrespect of public libraries. The free Hbrary as a government\\nestablishment is a still later development than the free school.\\nThe value of rooms to which the people may freely go in order\\nto read, and of loan libraries, from which they may take out\\nbooks to peruse them at their leisure in their homes, is in many\\ncommunities not fully understood. Where such advantages\\nare appreciated it is often felt that it may be left to private\\nbenefactors to supply the people with library facilities. As\\nin respect of universities and establishments of higher learning\\nwhen private donations are forthcoming the government is\\ndisinclined to enlarge its sphere and add to its obligations.\\nIn many communities in which it is pretty well recognized that\\na public library would be a desirable thing there is fear that\\nConstitution of Kentucky, sec. 184.\\nStarr and Curtis Statutes, p. 3733.\\nSession Laws of North Carolina, 1891, p. 126.\\nRevised Statutes of South Carolina, 1894, Vol. I, p. 397.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0293.jp2"}, "294": {"fulltext": "278 THE REFERENDUM IN AMERICA\\nthe taxpayers would not care to be charged with the expense\\nand thus in cities, towns, townships and other local districts\\nthe referendum comes into play. In Illinois when a petition\\nwhich bears the signatures of fifty or more legal voters is\\npresented to the officers of any incorporated town, village or\\ntownship requesting that an election be held to determine\\nwhether a tax not exceeding two mills on the dollar shall be\\nlevied therein for establishing and maintaining a free public\\nlibrary the proposition must be submitted to popular vote.^*^\\nThe same question is referred to the people of local districts\\nin many other States as in lowa,^*^ Kansas, Michigan,^^^\\nMinnesota,^^^ Missouri,^^^ New Jersey,^^* New York,^^^\\nOhio,^ and Utah.^ In New York the people of local dis-\\ntricts may vote upon the question of appropriating a sum of\\nmoney in aid of private libraries on the condition that these\\nlibraries shall be kept open for the public s free use.^^^\\nStarr and Curtis Statutes, p. 2531.\\nCode of Iowa, sec. 727.\\n150 Webb s Statutes, chap. 39, sec. 28, and chap. 42, sec. 53.\\n^Howell s Annotated Statutes, 1882, p. 1362.\\nStatutes of Minnesota, 1894, sec. 1425.\\nSession Laws, 1897, p. 50.\\nGeneral Statutes, 1896, pp. 1950, 1953 ^^d 1956,\\nBanks and Brothers Revised Statutes, 9th ed., p. 1490.\\nRevised Statutes of Ohio, sec. 1476.\\nLaws of 1896, p. 144.\\n^Banks and Brothers Revised Statutes, p. 1490.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0294.jp2"}, "295": {"fulltext": "CHAPTER XI\\nTHE LOCAL REFERENDUM LOAN BILLS AND FINANCIAL PRO-\\nPOSALS CONTINUED\\nr There is a tendency constantly at work among munici-\\npalities and other local governments impelling them to in-\\ncrease the public indebtedness excessively. With a view to the\\nprevention of overissues of bonds, extravagant expenditures\\nand too free a use of the taxing power, the constitutional con-\\nventions, as I have noted already, not infrequently take the\\nmatter in hand. Definite limits are established beyond which\\nlocal governments may not go in debt-making and these pro-\\nvisions are often of a general character applying to all forms\\nof indebtedness, no matter what the specific purpose of the\\nloan. As a method of applying restraint to the local councils\\nand boards, and the State legislatures as well, since the latter\\nmight give too much play to the communities in this particu-\\nlar, we have gone behind these agents and have put our pro-\\nhibitions in the constitutions. One of the most thorough-\\ngoing of these constitutional provisions, in so far as the refer-\\nendum has been employed and has become a feature of the\\nplan, occurs in the Constitution of North Carolina. This\\nprovision is as follows No county, city, town or other\\nmunicipal corporation shall contract any debt, pledge its faith\\nor loan its credit, nor shall any tax be levied or collected by\\nany officers of the same, except for the necessary expenses\\nthereof, unless by a vote of the majority of the qualified\\nelectors therein\\nIn Colorado no city or town may make a loan of any amount\\nwhatsoever except for the purpose of securing a suitable water\\nsupply for the citizens imtil the proposition shall first have\\nbeen approved by popular vote. The aggregate amount of\\n*Art. vii, sec. 7.\\n279", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0295.jp2"}, "296": {"fulltext": "28o THE REFERENDUM IN AMERICA\\nthe outstanding debt of any such municipality shall never ex-\\nceed a sum equal to three per cent, of the assessed valuation\\nof its taxable property.- In Louisiana, likewise, all propo-\\nsitions to incur debt and issue negotiable bonds therefor\\nmust be submitted to popular vote and, being approved by the\\npeople, loans may be contracted to the extent of one-tenth\\nof the assessed valuation of the property within said municipal\\ncorporation, parish, drainage district etc.^ In West Vir-\\nginia counties, cities and other local districts may incur in-\\ndebtedness with the approval of the people, but in no case may\\nthe aggregate amount of such indebtedness be in excess of\\nfive per cent, of the assessed valuation of the taxable property\\nin these districts.*\\nIn some States the provisions on this subject are not quite\\nso far-reaching. Within certain limits local officers may con-\\ntract debt at their own pleasure. It is only when these limits\\nare passed that the referendum is employed. Of these various\\nprovisions the most usual is that which restricts the local\\ngovernments in the creation of debt in any one year to a sum\\nnot exceeding the income and revenue for that year Ex-\\npenditures or loans for any purpose in excess of this amount\\nare made illegal, except with the approval of the people, by\\nthe Constitutions of six States, California,^ Utah,^ Ken-\\ntucky, Idaho,^ Missouri,^ and Wyoming.^*^ In Pennsyl-\\nvania the debt of municipalities and other local districts is\\ndefinitely limited at seven per cent, of the assessed valuation,\\nin special cases at ten per cent. Under no circumstances\\nshall the debt be allowed to pass this limit, and every propo-\\nsition to increase it to a point beyond two per cent, of the\\nassessed valuation in any district must have the approval of\\nthe people.^^ In the local districts of Georgia proposals to\\nArt. xi, sec. 8. ^Constitution of Louisiana, art. 281.\\nConstitution of West Virginia, art. x, sec. 8 of. Constitution of\\nSouth Carolina, art. viii, sec. 7.\\n^Art. xi, sec. 18. Art. xiv, sec. 3.\\nSec. 157. Art. viii, sec. 3.\\nArt. x^ sec. 12. Art. xvi, sec. 4.\\nConstitution of Pennsylvania, art. ix, sec. 8.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0296.jp2"}, "297": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 281\\ncreate a debt in excess of one-fifth of one per cent., but not\\nhigher than seven per cent, (in special cases ten per cent.)\\nof the assessed valuation must be submitted to popular vote\\nin the State of Washington beyond one and a half per cent,\\nbut not exceeding five per cent, (ten per cent, in special\\ncases In Montana no county shall incur any indebted-\\nness or liability for any single purpose to an amount exceed-\\ning $10,000 without the approval of a majority of the electors\\nthereof voting at an election to be provided by law\\nIn West Virginia county officers are put under restraint\\nin the assessment and collection of taxes. Except for a few\\npurposes which are enumerated in the Constitution, taxes\\nin excess of 95 cents per $100 of valuation in any one year\\nmust be authorized by popular vote.^^ In the counties of\\nIllinois the limit is 75 cents per $100 of valuation and pro-\\nposals for a higher tax rate must be approved by the people.\\nThe same referendum occurs in counties in Nebraska, when\\nit is a question of making the rate higher than $1.50 per $100\\nof the assessed valuation.^^\\nThe loan bill and bond elections are very familiar in cities\\nand other local political districts in all parts of the United\\nStates. While the people are, in general, a rather effective\\nrestraining influence upon officers who might otherwise heap\\nup indebtedness inordinately, they are not a certain safe-\\nguard. They have a habit of forgetting one year what loans\\nthey have authorized the year before, and are in no sense well\\nfitted to judge when a community s bonded debt is overstep-\\nping the limit which prudent financiers would establish for it.\\nA city s population, its resources and its ability to meet its\\nobligations conveniently are not far from fixed quantities.\\nThat the people know nothing of all this need not be said.\\nThey do not know how much debt has been voted before, what\\nConstitution of Georgia, art. vii, sec. 7.\\nConstitution of Washington, art. viii, sec. 6.\\nConstitution of Montana, art. xiii, sec. 5.\\nConstitution of West Virginia, art. x, sec. 7,\\nConstitution of Illinois, art. ix, sec. 8.\\nConstitution of Nebraska, art. ix, sec. 5.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0297.jp2"}, "298": {"fulltext": "282 THE REFERENDUM IN AMERICA\\nprovision has been made for meeting it as it falls due, or how\\nmuch in safety the district could properly carry. The consti-\\ntutional conventions recognize this fact in a general way when\\nthey fix definite limits to the debt as, for instance, five per\\ncent, or seven per cent, of the assessed valuation.\\nWhen the voters of a city are asked to assent to a loan of\\none, or five, or twelve million dollars, they in the best case\\nconsider how it is to be expended, as for instance, for free\\nlibraries, new streets or an improved water supply. If they\\nindividually feel the need of these improvements and have\\nreason to think that their lot will be made more happy thereby\\nthey are very likely to vote for the loan. Often no considera-\\ntions as good as these are at hand. At a recent election on\\nthe question of borrowing a large sum of money in Phila-\\ndelphia, to be applied to improvements in different parts of\\nthe city, purely local and selfish considerations made them-\\nselves felt. Those parts of the city which were to be directly\\nbenefited by the loan returned large majorities for it while\\nin other sections it was viewed with curious indifference.\\nNot a few electors who, upon being asked how they had voted\\non the proposition, explained in all seriousness that they had\\ncast their ballots in favor of the bill because they believed it\\nwould put more money in circulation and give the poor a\\nchance to secure some of it. The professional politicians are\\nusually to be found on the side of a loan bill for they know\\nthat whenever a large sum of money is to be paid out by the\\ncity, for no matter what purpose, there will be opportunities\\nfor them and their friends to enrich themselves at the public\\nexpense.\\nHowever, one rather important distinction must be noted.\\nWhile the average voter cares very little whether his city has\\na debt of $10,000,000 or $100,000,000, since he does not ag-\\ngravate himself with a thought of how it is eventually to be\\npaid, he as a rule approaches a proposition to increase the tax\\nrate in a very dififerent frame of mind. It is of course true\\nthat every loan means a heavier burden of taxation, if not at\\nonce, at some future time. The postponement of the evil day", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0298.jp2"}, "299": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 283\\nis however very seductive to the taxpayer. He will look on\\nindifferently while bonds are issued in large sums but it is an-\\nother matter altogether when a direct proposal is made to him\\nfor an increase of the tax rate, say, from $1 to $1.25 on each\\n$100 of the assessed value of his property. No matter how\\ngood the purpose for which the additional revenues are\\nneeded taxpayers will vigorously resist this open attempt to\\ninduce them to make over a larger portion of their substance\\nto the state\\nAs with other referenda, so with these in respect of finan-\\ncial subjects, a majority of the votes cast on the proposition\\ni usually decisive. The approval of a larger number of elec-\\ntors, as two-thirds, must however be secured to validate any\\nincrease in the local debt in some of the States, where it is\\ndesired to make the conditions more difficult in order the\\nbetter to protect the public credit.\\n(3.) Coming finally to the last sub-class of the referenda\\nupon financial subjects in local communities we find that the\\npeople are sometimes consulted, too, with respect to the sale\\nor lease of property which is vested in^ or is commonly held\\nby them in a corporate political capacity. The citizens have\\nvoted in many cases to determine whether they shall be\\ntaxed to acquire this property they are now to decide whether\\nit shall be sold or otherwise alienated by the community. In\\nthe former case there was a mixture of sentiments inducing\\nthe referendum, the chief of which was a fear lest the people\\ndisapprove of the new taxes that may be laid perhaps for\\nrather questionable purposes, and will later vote to retire from\\noffice those who have imposed these charges upon them. If\\nthe people can be made to incur these obligations themselves\\nat their own instance and on their own responsibility repre-\\nsentative officers may escape much unpleasant blame. But\\nin the case of a referendum on the sale of lands and other\\npublic property the controlling motive seems to be another.\\nHere, as with a poll of the people on the question of granting\\nfranchises and concessions to private water and lighting com-\\npanies in cities, the people are introduced as a brake upon the", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0299.jp2"}, "300": {"fulltext": "284 THE REFERENDUM IN AMERICA\\nlocal councils and boards which are too prone inconsiderately\\nto dispose of valuable holdings of this kind.\\nMore jealously guarded than some other forms of public\\nproperty are the school lands which the Congress of the\\nUnited States, in pursuit of its policy with respect to the\\npublic lands, made over to the States for the benefit of educa-\\ntion. Section number 16 in each township was regarded\\nas school land and when this section was not available for the\\ngrant equivalent transfers were made to the State. This land\\nwas vested in the townships, each holding its share for the use\\nof its common schools, and it was sometimes a condition of\\nthe grant that neither the section nor any part of it should\\never be sold except with the consent of the inhabitants.\\nThus by the act of Congress of February 15, 1843, i^ reference\\nto the school lands of Illinois, Arkansas, Louisiana and\\nTennessee it was provided that these lands in any township\\nshall in no wise be sold without the consent of the inhabit-\\nants of such township or district to be obtained in such\\nmanner as the legislatures of said States shall by law di-\\nrect\\nTwo methods have been employed with the object of se-\\ncuring the assent of the people to a sale, the petition and the\\nreferendum. Thus in Illinois^^ and Arkansas^^ the popular\\nsense regarding this question is secured by circulating a pe-\\ntition for the signatures of the citizens; while in Indiana,^^\\nOhio,^^ Alabama,^^ and Louisiana,^* a vote of the people of\\nthe township at a referendum, in which the ballots bear the\\nwords Sale or No Sale or their equivalents, is requi-\\nsite.\\nThe people are sometimes directly consulted also in regard\\nUnited States Statutes at Large, Vol. V, p. 600.\\nStarr and Curtis Statutes, p. 3719.\\nSandels and Hill s Statutes, sees. 71 14 ef seq.\\nHorner s Indiana Statutes, sees. 4329 et seq.\\n-^Revised Statutes of Ohio, sees. 1418 et seq.\\nCode of Alabama, sees. 3635 et seq.\\nWolff s Revised Laws of Louisiana, sec. 2958; cf. Telle v. School\\nBoard, 44 La. An. p. 365.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0300.jp2"}, "301": {"fulltext": "ON LOAN BILLS AND FINANCIAL PROPOSALS 285\\nto the lease of school lands, as in Indiana.^^ This referendum\\nhas found its way into the Constitution of at least one State,\\nKansas.-^\\nPublic property of other kinds not lands is sometimes\\nvested in the people of a community in this special manner,\\na legal sale being possible only after a petition requesting that\\nthis course shall be taken, has been signed by a large number\\nof the inhabitants, or an election is held and the people vote in\\nfavor of the sale. In the counties of Kansas poor asylums\\nor poor farms which represent a value in excess of $3,000\\nmay be sold or leased only by way of the referendum. In\\nMissouri in cities of the first class the municipal assem-\\nbly may pass an ordinance for the sale or lease of any of\\nthe parks, places or squares of the city. However no\\nsuch sale or lease shall be made by the municipal assembly\\nunless the ordinance providing therefor be submitted to a\\nvote of the qualified voters of the city for ratification at a gen-\\neral election, and be ratified by a majority of the qualified\\nvoters of the city Any township in Ohio may sell real\\nestate or buildings which it does not need if the people of\\nthe district indicate their approval of the policy.^^ An act\\npassed by the legislature of Ohio in 1887 authorized a poll\\nof the people in the city of Cincinnati on the question of sell-\\ning a line of railway which had been under the ownership and\\ncontrol of the commonalty.^*^\\nHorner s Indiana Statutes, sec. 4329; cf. Acts of Tennessee, 1889,\\np. 72.\\nConstitution of Kansas, art. vi, sec. 5.\\nWebb s Statutes of Kansas, chap. 156, sec. 27\\nRevised Statutes of Missouri, 1889, p. 348.\\nRevised Statutes of Ohio, sec. 1481.\\nIbid., sec. 9868.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0301.jp2"}, "302": {"fulltext": "CHAPTER XII\\nTHE LOCAL REFERENDUM LOCAL OPTION LIQUOR LAWS AND\\nVEXED QUESTIONS\\nWe have arrived now finally at the third and last general\\nclass in the scheme which was originally mapped out for the\\ndiscussion of this subject. In this class are embraced the\\nreferenda on vexed questions of various kinds regarding\\nwhich the people hold very opposite opinions and are likely\\nviolently to disagree. I have noted in my remarks con-\\ncerning some of the earlier classes of local referenda,\\nmore particularly those on financial questions, that many of\\nthese proposals are essentially of a disagreeable and vexing\\ncharacter. The legislature hesitates either to enact or to re-\\nfuse to enact a certain measure. It would be criticized by\\npartisans no matter what policy it should adopt. The legis-\\nlators say then to the people We will refer this question to\\nyou. You elect us and we represent you. In this matter we\\nwill submit the law directly to you and if you are in favor of\\nit you may pass it if, however, you are opposed to it you will\\nreject it. In any case you cannot blame us.\\nThe most familiar type of conditional legislation of this\\nkind in local communities relates to the control and prohi-\\nbition of the traffic in intoxicating liquors. In the local dis-\\ntricts, as in the States, the referendum in respect of this sub-\\nject enjoys a wide application and it has been in common use\\nfor more than fifty years. This local veto, a majority of the\\nelectors in a county, a township or a borough having the\\npower to decide whether or not liquors shall be sold therein,\\nhas come to be looked upon as an almost necessary feature of\\nAmerican government. It is generally approved by writers\\n286", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0302.jp2"}, "303": {"fulltext": "ON LIQUOR LAWS AND VEXED QUESTIONS 287\\non constitutional subjects and by the courts, and lacking this\\nmethod it would be difficult to suggest another which would\\nbe so satisfactory to great bodies of the people who are the\\nbone and sinew of the American democracy. Whether an\\nattempted regulation of the habits of men with respect to what\\nthey eat and drink is a perilous attack on individual rights\\nwithout which no society can have native strength and original\\npurpose, or whether it is not, there is a general disposition\\nto say to the drinker or the dram seller on the one side that he\\nmust conform to the wishes of the majority, and to the tee-\\ntotaler and the reformer of mankind on the other that he must\\ndo the same thing. Constitutional thinkers familiar with our\\npractice will remark, whether they are individualists or advo-\\ncates of state intervention, that a community has the un-\\ndoubted right to prohibit the sale of liquors inside its\\nborders, if the people at a plebiscite express their approval of\\nthis policy. Such a community is held to possess the\\nright even without a direct vote of its inhabitants in favor\\nof prohibition, in the regular exercise of the police power.\\nThrough its appointed agents liquor selling may be restricted\\nby the local corporation it may also be forbidden, but the lat-\\nter is a course which the legislature on its own responsibility\\nwill rarely authorize the officers of a county, a township or\\nother local district to pursue until public sentiment shall be-\\ncome much more nearly unanimous than it is to-day.\\nThe referendum affords a most convenient way out of a\\ndisagreeable predicament, for by our local option system\\na general law may be enacted by the legislature and may\\nstand upon the statute book permitting a vote of the people\\nwhenever certain conditions shall be fulfilled, and it still re-\\nmains there even though not a single district in the State has\\nchosen to avail itself of the privilege. It enforces or repeals\\nitself automatically, according as the sentiment of the electors\\nwith the passage of time may undergo change regarding this\\nquestion. A more elastic form of legislation it would be hard\\nto devise, and a more ingenious method of escape from the bit-\\nter attacks of the teetotalers on the one hand and of the users", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0303.jp2"}, "304": {"fulltext": "288 THE REFERENDUM IN AMERICA\\nof liq^uors and the publicans on the other can scarcely be con-\\nceived. It is pleasant to encounter the hostility of neither\\nfaction, as politicians in this country very well know, and the\\ntemperance campaigns draw political lines so closely and\\ndivide social classes so sharply that any device by which a\\nlegislator may pass the charge of bias or bad faith back again\\nto the people, from whom it emanates, finds a cordial welcome.\\nOut of such conditions the local option principle with\\nrespect to subjects of this kind in this country has been a\\nnatural development.\\nOne of the earliest of the local option laws in reference to\\nthe sale of liquors which I have been able to find was passed\\nby the legislature of the State of Pennsylvania in 1846.\\nThere were probably local option liquor laws applying to\\nsingle and separate counties prior to that time, but this date\\nmarks with approximation the beginning of the history of\\nthis referendum in the United States. The Pennsylvania law\\nof 1846 took into account no larger units than boroughs,\\nwards of cities and townships and these only in some eighteen\\ncounties, the names of which were distinctly specified. The\\nelections were to be annual commencing with 1847. The\\nballots were to contain the words For the sale of liquors\\nor Against the sale of liquors If a majority of the\\nvotes cast on the proposition were in favor of the sale, inns\\nand taverns were to be licensed as they had earlier been if,\\nhowever, a majority of the votes cast were against the sale\\nthe traffic would be declared to be a public nuisance and\\nit would be prohibited and penalized.^\\nA similar law, of application to the separate counties of\\nDelaware, was passed by the legislature of that State in 1847.\\nThe people in that year and at any subsequent annual election,\\nwhen a number equal to one-fourth of those voting at the last\\npreceding election should request it in writing, were to deposit\\nballots bearing the words License or No License in\\na box provided for that purpose In any county voting\\nSession Laws of Penna., p. 248; cf. ibid., p. 43i", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0304.jp2"}, "305": {"fulltext": "ON LIQUOR LAWS AND VEXED QUESTIONS 289\\nNo License the sale of alcoholic beverages became, ipso\\nfacto, a punishable offense.^\\nFrom this time forward local option laws on the sub-\\nject of liquor licenses gained ground rapidly and steadily\\ndespite occasional unfavorable opinions from the State su-\\npreme courts. To-day there are such laws in perhaps half\\nthe States of the Union, the system having met with much\\nfavor in the South where it has spread irresistibly. There\\nare License and No License elections also in New\\nEngland, notably in Massachusetts and Connecticut, where\\nthe principle has the support of a public sentiment which is\\nas intelligent as any in the United States.\\nIn three States, Florida, Texas and Delaware, this refer-\\nendum is guaranteed to the people in their local communities\\nby the Constitutions. Thus in Florida the Constitution pro-\\nvides as follows The Board of County Commissioners of\\neach county in the State, not oftener than once in every two\\nyears, upon the application of one-fourth of the registered\\nvoters of any county, shall call and provide for an election in\\nthe county in which application is made to decide w^hether\\nthe sale of intoxicating liquors, wines or beer shall be pro-\\nhibited therein, the question to be determined by a majority\\nvote of those voting at the election called under this section,\\netc.^\\nThe Constitution of Texas prescribes that the legislature\\nshall at its first session enact a law whereby the qualified\\nvoters of any county, justice s precinct, town, city or such sub-\\ndivision of a county, as may be designated by the commis-\\nsioners court of said county, by a majority vote from time\\nto time may determine whether the sale of intoxicating liquors\\nshall be prohibited within the prescribed limits\\nThe new Constitution of Delaware declares The Gen-\\nSession Laws of Delaware, p. 178. This law was declared un-\\nconstitutional by the State Court of Errors and Appeals in the notable\\nopinion Rice v. Foster, 4 Harr. 479.\\n^Constitution of 1885, art. xix, sec. i.\\nConstitution of 1876, art. xvi, sec. 20.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0305.jp2"}, "306": {"fulltext": "290 THE REFERENDUM IN AMERICA\\neral Assembly may from time to time provide by law for the\\nsubmission to the vote of the qualified electors of the several\\ndistricts of the State, or any of them mentioned in section 2\\nof this article [i. e., four districts, Sussex county, Kent\\ncounty, the city of Wilmington and the rural and remaining\\nportions of New Castle county, the State containing only\\nthree counties] the question whether the manufacture and sale\\nof intoxicating liquors shall be licensed within the limits\\nthereof; and in every district in which there is a majority\\nagainst license no person, firm or corporation shall thereafter\\nmanufacture or sell spirituous, vinous or malt liquors, except\\nfor medicinal or sacramental purposes within said district,\\nuntil at a subsequent submission of such question, a majority\\nof votes shall be cast in said district for license. The As-\\nsembly must submit the prohibition question in any district\\nwhenever a majority of the members of each house of the\\nlegislature of Delaware for that district request that an\\nelection shall be held on this subject.^\\nGeneral local option liquor laws are to-day to be found\\non the statute books of the following States Arkansas,\\nConnecticut, Florida, Georgia, Kentucky, Massachusetts,\\nMichigan, Minnesota, Mississippi, Missouri, Montana, New\\nYork, North Carolina, Ohio, South Dakota, Texas, Virginia,\\nand Wisconsin. Such laws have earlier been in force in other\\nStates but have now been repealed. Furthermore many\\nStates to-day have special laws authorizing a plebiscite on this\\nsubject in separate local districts, as New Jersey, Pennsyl-\\nvania, Colorado, Alabama, West Virginia and Maryland. In\\nseveral States, too, general and special laws exist side by side.\\nConcerning the general laws it may be noted that some\\napply to counties, and others only to smaller districts sub-\\ndivisions of counties. There is local option with the county\\nas the unit in Arkansas,^ Florida, Georgia,\u00c2\u00ae Michigan,\u00c2\u00ae\\nConstitution of 1897, art. xiii, sec. i.\\nSandels and Hill s Digest of Arkansas Statutes, p. 11 15.\\nRevised Statutes of Florida, p. 329. Code of Georgia, sec. 1541.\\nHowell s Annotated Statutes, Suppleraent 1885-1890, pp. 3173 et seq.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0306.jp2"}, "307": {"fulltext": "ON LIQUOR LAWS AND VEXED QUESTIONS 291\\nMississippi/ Montana.^^ There is local option in the coun-\\nties, and as well and at the same time in the cities, towns, pre-\\ncincts, wards and other constituent parts of counties in Ken-\\ntucky,^^ Missouri, North Carolina/* Texas,^^ and Vir-\\nginia. There is local option on this subject in towns, town-\\nships and in districts smaller than the county only, in Con-\\nnecticut,^ Massachusetts,^\u00c2\u00ae Minnesota,^\u00c2\u00ae New York,^ and\\nWisconsin.^^\\nA method employed rather generally in the South, where\\nthe county is the chief territorial unit for purposes of local\\ngovernment, makes it possible for election districts and pre-\\ncincts to secure prohibition even though the whole county\\nand the contiguous districts in the same county vote for\\nlicense It is provided that when the people of the entire\\ncounty, that is of all the election precincts added together,\\nshall vote against the sale of liquors then none shall be sold\\nin any part of the county. However, if the vote of the people\\nof the entire county shall be for the sale there may still\\nbe no licenses granted in such precincts of the county as have\\nreturned majorities for prohibition. This is a saving feature\\nof the law in Arkansas, Florida, North Carolina, Texas, and\\nVirginia, which appears to indicate that it was framed in the\\ninterest of the temperance element rather than of the saloon\\nkeeper The legislature, though desiring to avoid any ap-\\npearance of friendliness or unfriendliness to either party, here\\nseems to err on the side of those who would close the inns and\\nCode of Mississippi, sees. 1609 et seq.\\nPolitical Code, sees. 3180 et seq.\\nBarbour and Carroll s Kentueky Statutes, sees. 2554 et seq.\\nRevised Statutes of Missouri, p. 1050.\\nCode of North Carolina, sees. 31 13 et seq.\\nSupplement to Sayles Civil Statutes, 1888 to 1893, Title 6^, art.\\n3227.\\nCode of Virginia, 1887, p. 200.\\nGeneral Statutes, 1888, sec. 3050.\\nPublic Statutes of Massachusetts, 1882, pp. 524-25.\\nStatutes of Minnesota, 1894, sees. 1266, 1990.\\nLav/s of 1896, p. 57; cf. ibid., 1897, P- 216.\\nSanborn and Berryman s Wisconsin Statutes, sec. 15653.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0307.jp2"}, "308": {"fulltext": "292 THE REFERENDUM IN AMERICA\\ndrinking shops since a rule is adopted which does not work\\nboth ways If the county votes no Ucense the sale of\\nliquors is prohibited everywhere. If the vote is for license\\nthe trade is permitted only in such precincts of the county as\\nhave given local majorities in favor of the traffic.\\nIt is interesting to observe with what limit of frequency\\nthese local option elections may be held. In some States the\\nlaws contain no specific restrictions on this subject. The\\nplebiscite is taken at the initiation of local officers, or of a\\ncertain percentage of the electors, who may at any time sign\\nand present a petition in favor of an election. If the vote\\nbe in the affirmative the law remains in force until similar\\nsteps are taken for another referendum and the people deter-\\nmine to repeal it, and resume the stattis quo ante with respect\\nto the liquor selling business. If the vote be in the negative\\nlicenses, of course, continue to be issued until at some future\\ntime a no license majority is secured.\\nBy the laws of several States, however, definite periods are\\nprescribed at which the elections may or shall take place.\\nThus in the cities and towns of Massachusetts and in North\\nCarolina annual elections are contemplated. In Arkansas,\\nFlorida, Michigan, Montana, New York, Ohio, Texas and\\nVirginia the referendum may be taken not oftener than once\\nin two years. With a view to reducing the confusion and\\ncurtailing the expense of frequent pollings Kentucky and\\nMississippi have fixed the period at three years, while Georgia\\nand Missouri do not permit an election more frequently than\\nonce in four years. In towns in New York four separate\\npropositions are submitted to the people with reference to the\\nsale of liquors. The electors are to decide (i) whether\\nliquors shall be sold to be drunk on the premises (2) whether\\nliquors shall be sold when they are not to be drunk on the\\npremises; (3) whether liquors shall be sold on a pharma-\\ncist s or physician s prescription (4) whether liquors shall be\\nCf. Sandels and Hill s Arkansas Statutes, p. 11 15; Revised Statutes\\nof Florida, p. 329; Code of North Carolina, sees. 31 13 et seq.; Supp.\\nto Sayles Civil Statutes of Texas, art. 3227 Code of Virginia, p. 200.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0308.jp2"}, "309": {"fulltext": "ON LIQUOR LAWS AND VEXED QUESTIONS 293\\nsold by hotel keepers. If the election results affirmatively\\nwith respect to any or all of these propositions licenses must\\naccordingly be granted to applicants by the proper officers.-^\\nThe ballots, it may also be of interest to observe^ bear\\nvarious words and phrases For Selling or Against\\nSelling in Florida For the Sale or Against the Sale\\nin Georgia and Mississippi; Prohibition or License\\nin North Carolina For License or Against License\\nin Wisconsin For Prohibition or Against Prohibition\\nin Texas Shall licenses be granted for the sale of intoxi-\\ncating liquors in this town (or city) Yes or No\\nin Massachusetts. The method of submitting this question,\\nas well as other propositions of the kind is being amended\\nfrom time to time as changes are made in our ballot systems.\\nThe object always is to find a descriptive phrase which, while\\nbeing concise, will at the same time make it easy for the voter\\nat once to distinguish the propositions and deposit his\\nticket or put his cross on the ballot paper as intelligently\\nand as expeditiously as possible.\\nIn the same way when it is a question of not entirely pro-\\nhibiting the liquor trade in local districts, but only of regu-\\nlating it, the referendum, has occasionally found application.\\nIn two States, Wisconsin and New Jersey, the people may de-\\ntermine how large a fee shall be collected from innkeepers\\nand the proprietors of tippling shops, and saloons\\nHigh license as a method of reducing the evils of intem-\\nperance has had many advocates in this country. By a high\\ntax it is hoped to restrict the business within certain definite\\nbounds by materially limiting the number of places of sale.\\nIn Wisconsin, for instance, electors of cities, villages and\\ntowns may, by popular vote, determine the amount of the\\nlicense fee, though the election must not be held in the same\\ncommunity oftener than once in three years. In towns when\\nthe sum paid hitherto has been $100 the people may vote to\\nincrease it to $250 or $400, as they may select. In cities, vil-\\nNew York Laws of 1896, p. 57 ibid., 1897, P- -216.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0309.jp2"}, "310": {"fulltext": "294 THE REFERENDUM IN AMERICA\\nlages, etc., when the fee has been earlier fixed at $200, the\\npeople may choose between increases to $350 or $500. Choice\\nis always to be made from among three different sums, and it\\nis provided that if the highest amount voted for does not\\nreceive a plurality of the votes cast, then the votes cast for\\nsuch amount shall be considered as having been cast for the\\nnext lower amount and shall be so counted\\nIn cities, boroughs, towns or townships in New Jersey on\\nthe receipt of a petition signed by a certain number of citizens\\nasking that not less than a specified sum of money shall be\\ncollected of applicants for liquor licenses local officers must\\narrange for a plebiscite. The people are to vote For\\nlicense fee (the amount named in the petition being inserted\\nin the blank space on the ballot) or Against license\\nfee \\\\2s\\nVery recently socialistic experiments in relation to the\\nliquor trade have been undertaken in several States. These\\nhave assumed a form akin to the so-called Gothenburg and\\nother Scandinavian systems. Some of the American schemes\\nof regulation have involved the state still more closely in the\\nbusiness. A state monopoly is created and official dispen-\\nsaries are established, alcoholic beverages being sold by\\nagents appointed by the government who act in obedience to\\ndefinite rules. Such a scheme of public managernent in refer-\\nence to the whole State has lately been introduced in South\\nDakota, by an amendment to the Constitution approved by\\nthe people at the autumn elections in 1898.^^ In counties,\\ncities and towns in South Carolina in which the sale of liquors\\nhas earlier been prohibited by law elections may be held on\\nthe question of adopting the dispensary plan as an alternate\\nsystem.^^ In the neighboring State of North Carolina there\\nSanborn and Berryman s Statutes, 1898, sec. 1548b.\\nGeneral Statutes of New Jersey, p. 18 10.\\nSession Laws of South Dakota of 1897, p. 88 cf. Constitution of\\nSouth Carolina^ art. viii^ sec. 11.\\nLaws of South Carolina of 1893, p. 434; ibid., 1894, p. 721; ibid,,\\n1896, p. 129.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0310.jp2"}, "311": {"fulltext": "ON LIQUOR LAWS AND VEXED QUESTIONS 295\\nhave been local elections, also, respecting the establishment\\nof dispensaries with a view to putting the liquor trade under\\nmunicipal control.-^\\nSomewhat similar to local option on the prohibition ques-\\ntion is the referendum which exists in a considerable number\\nof the Western and Southern States in respect of the building\\nof fences and the restraint of domestic animals. Although\\nthis is a matter which touches the finances of private citizens,\\nit certainly is not a form of public expenditure such as the con-\\nstruction of a town hall, a jail, a school house or a road. On\\nthe other hand, it is, of course, a financial proposition pure\\nand simple when fencing districts are organized and the\\ncitizens resident therein tax or bond themselves to build a\\nfence about the whole district in order to protect their lands\\nfrom stock roaming over unfenced territory, as in Arkansas.\\nThis case, however, is exceptional.^^ It is a subject *upon\\nwhich men are certain to entertain very different opinions\\nas in the case of the sale of intoxicating liquors and being\\nessentially a vexed question it is rightly included in this,\\nrather than the preceding chapter.\\nIt is the rule at the common law which is the back-\\nground for all our legal canons on this subject that another s\\ncattle and domestic animals go abroad at their owner s risk,\\nwhether there are fences to hinder them or not. It is enough\\nthat the animals being at large should damage another per-\\nson s property. The laws which have been passed by the\\nvarious State legislatures on this subject are in modification\\nof this well established rule, and the optional Stock Laws\\nHerd Laws and Fence Laws are meant to give the\\ncitizens of counties, townships and other local districts the op-\\nportunity to decide whether practical conditions in many\\nAmerican communities do not demand a rather different\\npolicy. In new communities, as so many have been and still\\nare in the United States, it is expensive for large landowners\\nPublic Laws of North Carolina, 1895, p. 310.\\nCf. Sandels and Hill s Digest of the Statutes of Arkansas, 1894,\\np. 443.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0311.jp2"}, "312": {"fulltext": "2g6 THE REFERENDUM IN AMERICA\\nto build fences either for the purpose of confining their own\\nanimals or for keeping out the herds of their neighbors. All\\ninterests then are likely to agree to let live stock run at large,\\nthe respective owners employing their own guards and\\nherdsmen at a less cost to themselves than it would be were\\nthey to enclose their fields and pastures.\\nWhen the two interests, agricultural and pastoral, are\\nbrought into close juxtaposition, however, important differ-\\nences are likely soon to arise among the inhabitants. Civili-\\nzation moves forward. If an owner has beautiful grounds\\nabout his home he desires that they shall not be overrun and\\ndamaged by other men s roving stock. He desires that his\\nfields of growing grain, his pastures, so soon as they are cul-\\ntivated and cease to be mere natural tracts, his gardens and\\nhis orchards shall not be feeding places for others herds and\\nflocks. He wants a guarantee also that his own animals shall\\nnot be associated against his will with the males of other\\nowners lest there shall be a mixture of breeds. Thus what\\nwas at first in a primitive, pastoral community a tolerable,\\neven a satisfactory condition, becomes with the division and\\nsubdivision of land into smaller parcels a matter of serious\\nconcern. The richer and more well-to-do farmers are willing\\nto enclose their lands and pen up their stock. They wish their\\nneighbors to do the same thing, a policy however which in\\nthe democratic local communities of America is certain to meet\\nwith strong resistance. The poor man wants to escape the\\nexpense of building a fence. If he does build one it is likely\\nto be a cheap structure and ineffective for its purpose. He\\nis likely too to keep it in poor repair, so that it is no longer\\nhorse high, bull strong and pig tight a test legally estab-\\nlished in rural sections many years ago. He may desire to\\nkeep and breed cows, sheep, hogs or poultry when he has no\\nland of his own, merely a small tenement in some industrial\\nvillage, or a house and lot by the roadside. He then\\nturns his animals loose so that they may forage for a living\\nin the roads and streets, in vacant wood lots, forests and other\\nopen spaces which are not enclosed within strong fences.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0312.jp2"}, "313": {"fulltext": "ON LIQUOR LAWS AND VEXED QUESTIONS 297\\nThis is the most aggravating phase of the whole development\\nand it creates classes in nearly all rural communities. The\\nricher farmer is arrayed against the poor man who wants\\nto keep his cow and his hog and let them run at large in the\\npublic streets and commons. Since the politicians in the\\nState legislatures are afraid to incur the displeasure of the\\npoor men in their constituencies just as they are afraid\\nof the temperance element, they try to escape their rightful\\nshare of responsibility by submitting the whole question to\\npopular vote.\\nThere are general optional laws on this subject to-day in\\nArkansas,^ Georgia,^^ lowa,^^ Kansas,^^ Kentucky,^* Minne-\\nsota,^^ Mississippi,^^ Missouri, New Jersey,^* North Caro-\\nlina,^^ Oregon,^^ Rhode Island,*^ Texas,*^ and West Vir-\\nginia.^^ Besides these there are special laws relating to sepa-\\nrate districts which are named in the legislative acts in Ala-\\nbama, Maryland, Virginia and several other States.** The\\nSandels and Hill s Digest of the Statutes of Arkansas, pp. 443, 1570.\\nHere the optional feature is enforced through a written petition signed\\nby a majority of the qualified electors of the district, instead of by\\nan actual poll of the people by ballot.\\nCode of Georgia, sees. 1777 et seq.\\nAnnotated Code of Iowa, sec. 444.\\nGeneral Statutes of Kansas, chap. 137, sees, i et seq.; ibid., chap.\\n137, sees, 54 et seq.; ibid., chap. 138, sees. 6 et seq.; ibid., chap. 138,\\nsees. 10 et seq.\\nBarbour and Carroll s Kentucky Statutes, sees. 4646 et seq.\\nStatutes of Minnesota, sec. 941.\\nCode of Mississippi, sees. 2056 et seq.; cf. Session Laws of Missis-\\nsippi, 1896, p. 145.\\nRevised Statutes of Missouri, pp. 186 et seq.\\nGeneral Statutes of New Jersey, pp. 59, 60.\\nCode of North Carolina, 1883, sees. 281 et seq.; Public Laws of\\nNorth Carolina, 1895, p, 54; ibid., p. 537.\\nCodes and General Laws of Oregon, 1892, p. 1501 Session Laws of\\n1893, p. 89.\\nGeneral Laws of Rhode Island, 1896, p. 420.\\n*2 Constitution of 1876, art. xvi, sec. 23 Sayles Revised Civil Stat-\\nutes, 1888, articles 4592 et seq.\\nCode of West Virginia, pp. 593, 1034.\\nCf. Session Laws of Pa. of 1885, p. 142, and Frost v. Cherry, 122\\nPa. 417.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0313.jp2"}, "314": {"fulltext": "298 THE REFERENDUM IN AMERICA\\ntendency as might be expected is toward definitive legisla-\\ntion which will prohibit cattle from running at large abso-\\nlutely thus m.arking a return to the common law rule.^^\\nAs population increases and the interests of the people mul-\\ntiply a haphazard system has less and less to commend it, and\\nthe demand is for an unalterable and a just rule which shall\\napply to all parts of the State uniformly. That animals should\\nbe allowed to run at large to molest the lands of any person\\nwho has not taken the precaution to put strong fences around\\nthem is an untenable claim. An immemorial Anglo-Saxon\\npractice and the sense of what is appropriate, orderly and\\nright are wholly on the side of a policy of restraint of live\\nstock so soon as a community passes out from that primitive\\nsocial condition which has induced men to look temporarily\\nwith toleration upon a different legal system.\\nAs with local option respecting the granting of liquor\\nlicenses, so in regard to the building of fences various terri-\\ntorial units are selected within which the poll of the people\\nmay be taken, according as the county or the town system\\nis of predominating influence in giving form and char-\\nacter to local government within a State. Counties, towns,\\ntownships, villages, militia districts and magisterial dis-\\ntricts are all designated as units, and frequently in the same\\nState provision is made for a plebscite in both the larger\\nand the smaller district. Animals of several species come\\nwithin the purview of these rather curious optional laws.\\nThey are made to include not only horses and cattle but also\\nhogs, and sheep and sometimes goats and geese as well. In\\nother cases the term stock has a more restricted meaning,\\nbeing limited to cattle, horses, mules and asses as in Iowa.\\nIn several States the scope of the proposal to restrain domestic\\nanimals is defined in the petition for the election, which must\\nbe signed by a certain number of citizens before the plebis-\\ncite can be taken. Any one or more species may be desig-\\nThus Illinois in 1895 which had earlier had an optional law on this\\nsubject repealed it. Starr and Curtis Statutes, 2nd ed., 1896, p. 398;\\nibid., ist ed., 1885, p. 279.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0314.jp2"}, "315": {"fulltext": "ON LIQUOR LAWS AND VEXED QUESTIONS 299\\nnated in the petition and the election is held upon the ques-\\ntion of restraining these animals only. In other cases there\\nare two separate stock laws both of which are optional, one\\nrelating to horses and neat cattle, the other to hogs, sheep and\\nsometimes goats. Thus in Arkansas, Mississippi and Texas\\nhogs, sheep and goats are specially provided for. Hogs and\\nsheep are in a category to themselves in Missouri^ while in\\nOregon and Kansas a referendum may be separately taken\\nwith respect to swine. In communities where other kinds of\\nlive stock are still allowed to go at large, there is often little\\ndisposition to be lenient with hogs which are a source of great\\nannoyance to careful husbandmen. Geese may also be re-\\nstrained from running outside their owners enclosures upon\\na vote of the people in West Virginia and Rhode Island. As\\nwith License and No License elections in local dis-\\ntricts, so too with the stock laws there is fear that the poll\\nmay be taken too often. In Georgia, North Carolina and\\nTexas stock and fence law elections may not take place\\nmore frequently than once in any one year; in Kentucky\\nnot oftener than once in four years.\\nAn odd variation in this form of referendum in the Amer-\\nican States is met with in Iowa. Here in counties four sepa-\\nrate propositions may be submitted to popular vote: (i)\\nwhether stock shall be restrained from running at large ab-\\nsolutely and at all times. (2) Whether stock shall be re-\\nstrained from running at large between sunset and sunrise?\\n(3) Whether stock shall be restrained from running at large\\nfrom the first day of (inserting the name of the month) in\\neach year until the first day of (inserting the name of the\\nmonth) following? (4) Whether stock shall be restrained\\nfrom running at large between sunset and sunrise from the\\nfirst day of (name of month) in each year until the first day\\nof (name of month) following?**^ By this means the electors\\nmay compel owners to enclose their stock at night time while\\nfarmers cannot be on guard, and at certain seasons of the\\nyear when the crops are in the ground and when a general\\nAnnotated Code of Iowa, sec. 444.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0315.jp2"}, "316": {"fulltext": "300 THE REFERENDUM IN AMERICA\\ntrampling over the open fields would do them serious injury.\\nIn Kansas also there is a Night Herd Law owners of\\ndomestic animals in local districts at the expressed desire of\\na majority of the citizens being obliged to pen up their\\nstock.*^ West Virginia adds yet another modification to this\\npeculiar local plebiscite with an optional law for the re-\\nstraint of bulls over one year old, buck sheep over four\\nmonths old and boars over two months old. Animals of these\\nspecial classes are to be kept within enclosures by their\\nowners in districts in which the people decide in favor of such\\na local policy.\\nHere again the ballots contain various words and phrases\\nin Georgia, Fence or No Fence Kansas, For the\\nHerd Law or Against the Herd Law Mississippi, Texas\\nand West Virginia, For a Stock Law or Against a Stock\\nLaw North Carolina, Stock Law or No Stock Law\\nOregon, For Running at large Yes or For Running at\\nlarge No Kentucky, For the Running at large of Cat-\\ntle (or the species designated in the petition) in\\ncounty or Against the Running at large of Cattle, etc.,\\nin county Alabama, Stock at Large or No\\nStock at Large\\nWhen a lawful fence which will form a more effective\\nbarrier than a mere boundary line is to be built, it becomes\\na question of importance to determine of what material it\\nshall be composed. In two cases that have come to my notice\\nthis is a subject for a polling of the people. In Texas the\\nelectors of any county or subdivision of a county may de-\\ntermine by a majority vote whether or not three barbed\\nwires without a board or plank shall constitute a lawful\\nfence In Kansas elections may be held in counties to\\ndecide whether a certain Hedge Law shall be adopted.\\nIf it shall be approved by the people osage orange hedge lines\\nbecome a lawful fence\\nCf. Webb s General Statutes of Kansas, chap. 137, sees, i et seq.\\nRevised Statutes of the State of Texas, 1805. p. 999.\\nGeneral Statutes of Kansas, chap, 153, sees. 37 et seq.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0316.jp2"}, "317": {"fulltext": "ON LIQUOR LAWS AND VEXED QUESTIONS 301\\nA singular instance of lack of definite moral or political\\npurpose in a legislature is met with in Maryland. In 1890 the\\nGeneral Assembly of that State enacted a conditional law\\nrespecting the taking of oysters with scoops, scrapes or\\ndredges in the waters of Somerset county i. e., in a por-\\ntion of Chesapeake Bay. The proposition was to protect\\nthese valuable beds from those who would ruthlessly destroy\\nthem, and thus preserve the business of catching oysters in\\nthis district for the tongmen whose methods are more com-\\npatible with the perpetuation of this useful species of shell\\nfish. The boats belonging to dredgers were to be seized, for-\\nfeited and sold for the benefit of the school fund and the\\nowners and captains were to be placed under arrest and\\ncommitted to a public house of correction Before going\\ninto force, however, the law would needs be approved by the\\nvoters of nine election districts in the county, the ballots\\nhaving printed on them the words, For prohibiting the\\ntaking of oysters with scrapes or dredges and Against\\nprohibiting the taking of oysters with scrapes or dredges\\nAnother peculiar shifting of responsibility regarding a\\nquestion upon which a legislature might be expected to be\\nable of itself to pass a definitive judgment is to be noted in\\nconnection with Sunday observance. Thus the Germans of\\nSt. Louis desired the privilege of drinking beer on Sunday.\\nAs the introduction of what is often called the Continental\\nSunday was strongly opposed by other elements in the\\ncommunity, the legislature of Missouri in 1857 passed a law\\nenacting that the corporate authorities of the different cities\\nin the county of St. Louis shall have the power, whenever a\\nLaws of Maryland, 1890, p. 832. The Supreme Court of Maryland\\ndeclared this law to be unconstitutional on technical grounds, in that\\nauthority was conferred upon the citizens of nine districts of a county\\nto enact a law which affected the common right of the people of the\\nwhole State Vide Bradshaw v. Lankford, yz Md. 428. Nevertheless\\nthe legislature re-enacted the law in 1804 in a slightly modified form,\\nretaining that feature of it which required a referendum, this time,\\nhowever, submitting the measure to a vote of the people of the entire\\ncounty instead of a few of the smaller component districts. Cf. Laws of\\nMaryland of 1894, p. goS.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0317.jp2"}, "318": {"fulltext": "302 THE REFERENDUM IN AMERICA\\nmajority of the legal voters of the respective cities in said\\ncounty authorize them so to do, to grant permission for the\\nopening of any establishment or establishments within the\\ncorporate limits of said cities for the sale of refreshments\\nof any kind (distilled liquors excepted) on any day in the\\nweek A similar referendum has been proposed several\\ntimes in late years as a means of arriving at an agreeable re-\\nsult with respect to the moot point of selling liquor on the\\nChristian Sabbath day in New York city, where a very con-\\nsiderable body of sentiment has developed in favor of a less\\nrigorous application of the Sunday laws.\\nI am impelled to refer in this connection also to recent\\nCanadian experience in the city of Toronto from which can\\nbe drawn an instance I have failed to find in the municipal\\nlaw of the United States. The legislature of the Province of\\nOntario in 1892 passed an act incorporating The Toronto\\nRailway Company and conferring upon it rights and powers\\nto operate street railways in that city. It was specified, how-\\never, that no street car should ever be run by the company\\non Sunday unless the question should first be referred to the\\npeople of the city and they should assent to the proposal. It\\nappears that the elements in the city opposed to Sunday\\ncars succeeded in limiting the company s business to six\\ndays in the week until 1898.^^ Then an agreement was en-\\ntered into by which the company bound itself not to run its\\ncars beyond a certain definite speed w^hile passing churches\\nduring the hours when meetings were in progress, not to ring\\ngongs in proximity to places of worship and not to deprive\\nany of its employees of one full day s rest in every seven.\\nThis contract hedged the company about with so many re-\\nstrictions that the Sabbatarians were outvoted, though they\\nalleged afterward that this result had been attained through\\nthe aid of irreligious elements and the Jews. They there-\\nLaws of Missoiiri of 1856-57, p. 673.\\nThe question was submitted at three separate elections, on January\\n4, 1892, August 2, 1893, and May 15, 1897. The proposal was rejected\\nat the first two pollings but accepted at the third, in 1897.", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0318.jp2"}, "319": {"fulltext": "ON LIQUOR LAWS AND VEXED QUESTIONS 3^3\\nupon began a systematic boycott of the company and it is\\nstated that the residents of Toronto, even when on their way\\nto church, have put themselves to the greatest inconvenience\\nin order to avoid riding on the Sunday street cars. On other\\ndays of the week they have patronized the company s Hues\\nas before. Many of those who have regarded this Sunday\\nservice as a desecration of the Sabbath are eager, it is said,\\nfor another election on the subject when they confidently\\nexpect that there will be a more Christian result. In no tem-\\nperance fight under a local option law in an American\\ntown or village could more unpleasantness and personal\\nfeeling be injected into an electoral campaign.\\nFor a long time organizations of Socialists and labor\\nunions have demanded that legislatures should make eight\\nhours a legal day s work. As the first step they have insisted\\nthat the government should set the example by paying those\\nwhom it itself employs a full day s wage for an eight-hour\\nday. These influences having made themselves a source of\\npolitical strength in Massachusetts the legislature of the State\\nin 1899 was induced to pass a conditional law on the subject,\\nthus submitting an embarrassing issue to the people of the\\ncities and towns, without compromising itself by showing\\nfavor on either side.^*\\nCf. Laws of Ontario for 1892, p. 888; ibid., 1894, p. 450; ibid.,\\n1897, pp. 618 et seq. I am informed by Mr. J. J. Cassidey of Toronto\\nthat the opposition to the Sunday cars, as might be expected is grad-\\nually dying out, while the people of the city are now very generally\\nriding in them.. It is unlikely, therefore, that the privilege which the\\ncompany has won after so long a contest will be withdrawn from it\\nagain, since the convenience of the service has come to be appreciated\\nby the citizens.\\nActs and Resolves of Mass., 1899, p. 299. The full text of this\\ncurious law is as follows Be it enacted, etc. Sec. i. Eight hours\\nshall constitute a day s work for all laborers., workmen and mechanics\\nnow employed or who may hereafter be employed by or on behalf\\nof any city or town in this Commonwealth. Sec. 2, All acts and parts\\nof acts inconsistent herewith are hereby repealed. Sec. 3, This act shall\\nnot take effect in any city or town until accepted by a majority of the\\nvoters voting thereon at an annual election. Such vote shall be taken\\nby ballot. When so accepted this act shall take effect from the date\\nof such acceptance.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0319.jp2"}, "320": {"fulltext": "304 THE REFERENDUM IN AMERICA\\nA peculiar referendum has made its way into the municipal\\nlaw of the State of Massachusetts with the recent develop-\\nment of electric street railways. While there is assumed to\\nbe no valid objection to the use of the streets by companies\\npropelling cars by electricity when they carry passengers, and\\nnot goods or luggage commonly classed as freight or express\\nmatter, their rights respecting the transport of the latter are\\nsometimes extended upon popular vote. Thus the legislature\\nof Massachusetts enacts that the Northampton Street Rail-\\nway Company may act as a common carrier of small parcels\\nprovided said company shall not so act in the city of North-\\nampton, or in any town until authorized to do so by a two-\\nthirds vote of the voters of said city or town present and\\nvoting thereon at an annual or special election held for that\\npurpose\\nA company authorized to operate an electric street rail-\\nway line through the cities of Taunton and Brockton in\\nMassachusetts is placed under the same restriction in respect\\nof a parcels service.^*^ In cities and towns of less than 25,000\\ninhabitants in Louisiana the streets must be kept altogether\\nfree from car lines unless the people shall approve of the\\ngrants to companies applying for the right of way. Any\\nrailroad or other corporation desiring to use and occupy\\nthe streets and alleys of a town or city or to obstruct\\nthe same or any part thereof with buildings necessary to and\\nused by said corporations must seek the direct popular\\nsanction. On a favorable vote of the people Boston street\\nrailway companies were authorized to replace tracks on\\nTremont and Boylston streets in that city which had earlier\\nbeen removed in obedience to an order of the Boston Transit\\nCommission.^^ Occasionally, too, a proposition to close\\na street or alley in a city or town is submitted to popular\\nvote.^^ In the city of Youngstown, O., the question of ma-\\n^Acts of Mass., 1896, p. 394. Acts of Mass., 1896, p. 494.\\nLaws of Louisiana, 1896, p. 113.\\n^^Acts and Resolves of Mass., 1899, p. 390,\\n^^Cf. Laws of Maryland of 1890, p. 303,", "height": "3633", "width": "2351", "jp2-path": "referenduminamer00ober_0320.jp2"}, "321": {"fulltext": "ON LIQUOR LAWS AND VEXED QUESTIONS 3^5\\nking a grant to a street car company to run its lines over a\\nnew bridge was recently the subject of a referendum.^\u00c2\u00ae\\nBefore this question could be submitted to the people a pe-\\ntition must issue from the owners of more than half of the\\nland fronting on the street through which the cars would\\nrun. They must declare that in their opinion the railway\\nwould be a benefit to them, or at any rate, would do no harm\\nto their interests in contiguous property.\\nWe meet, too^ with a case of still another kind in Kansas\\nwhere the aesthetic sense of the people in local communities\\nis put in the balance and weighed against a narrow pecuniary\\ninterest. In counties the citizens in their wisdom may decide\\nwhether the owners of land bordering on public highways\\nshall keep their hedges cut and trimmed down to not over\\nfive feet high except trees not less than sixteen feet apart,\\nand hedges necessary as a protection to orchards, vineyards\\nand feed lots also whether these owners shall cut the\\nweeds in the public highways lying next their lands before\\nthey go to seed a measure which is of much practical im-\\nport to agriculturists, as well as being in the interest of a\\ncleaner and prettier countryside.\u00c2\u00ae^\\nThe Ohio legislature recently authorized a peculiar local\\nreferendum. For some years inventors have been engaged\\nin their experiments with voting machines i. e., mechan-\\nical contrivances for receiving and recording votes. So uni-\\nversal has the application of machinery now become, and so\\ngenerally has it substituted man s manual processes in many\\ndifferent fields that there is immediate prospect of an entire\\nrevolution also in our voting systems. In a number of\\nStates these machines have already been introduced in a pro-\\nvisional way and other States seem to have the change in\\ncontemplation. As a method of keeping correct account of\\nthe number of votes cast, and of furnishing the returns to\\nthe election officers quickly and accurately after the polls\\nclose, this mechanical device is held to possess many im-\\nLaws of Ohio of 1896. p. 620.\\n^Webb s General Statutes of Kansas, chap. 153, sees. 47 et seq.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0321.jp2"}, "322": {"fulltext": "3o6 THE REFERENDUM IN AMERICA\\nportant advantages. In Ohio, however, the State legislature\\ndid not desire to endorse the new invention unqualifiedly, nor\\nyet to allow the local boards to do so. It passed a law there-\\nfore in 1898 authorizing the officers whose task it is in\\ncities, villages, towns, precincts or other local divisions of the\\nState to supply ballots and other equipment for elections, to\\nsubmit to the people of these districts, a proposition for the\\npurchase and use of the machines. These officers should take\\nnote of the vote and govern themselves accordingly in obe-\\ndience to the popular will.^^\\nThere are conditional laws too on the subject of a reform\\nof the civil service in cities which is so essential to the proper\\nadministration of the government that only timidity and\\nweakness on the part of a legislature would lead it to submit\\nsuch a question to popular vote.^^ The legislature of Ne-\\nbraska desiring to introduce the Swiss systems of the initia-\\ntive and the referendum into cities and other local districts\\nof the State did not, however, have the full courage of its\\nconvictions. It only passed the law contingent upon its later\\nsubmission to and approval by the people in the various\\nlocal communities.^* Recently in Wisconsin a law to regu-\\nlate the nomination of candidates at party meetings or cau-\\ncuses, a measure of a type likely soon to become more fa-\\nmiliar in this country, devised with the view of reforming\\nthe primaries and of reclaiming popular government in\\nAmerica from its enemies was referred to the people of cer-\\ntain cities of the State. If this were a reform in our political\\npractice of which we had need the legislature could have had\\nno valid motive in submitting the proposition to any other\\nauthority. Only lack of conviction, a desire to evade respon-\\nsibility, and avoid offense to unworthy elements in the elec-\\ntorate, will explain conditional legislation of this kind.^^\\nThe discussion of this subject, as it relates to acts of the\\nSession Laws of Ohio, 1898, p. 277.\\nCf. Starr and Curtis Illinois Statutes, p. 826.\\nCompiled Statutes of Nebraska, p. 591.\\nSanborn and Berryman s Wisconsin Statutes, chap. 5, sec. iii.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0322.jp2"}, "323": {"fulltext": "ON LIQUOR LAWS AND VEXED QUESTIONS 3^7\\nState legislature in reference to specific matters submitted\\nto popular vote in local districts, having now been brought\\nto a conclusion it is of a very great deal of interest to record\\nthe progress of a movement to introduce the referendum in\\na general form into the local governmental practice of this\\ncountry. Just as South Dakota alone is the pioneer with a\\ngeneral referendum on State laws, so Iowa, California and\\nNebraska, as well as South Dakota, have taken up an ad-\\nvanced position with respect to a general referendum on local\\nby-laws passed by the local legislature. It will be advisable\\nat this point to draw a very clear distinction between two\\nkinds of local laws. Thus far our treatment of the local\\nreferendum has related for the most part to laws in regard\\nto local districts which have been passed by the State legisla-\\nture. In South Dakota, Iowa, California and Nebraska,\\nhowever, the referendum applies to laws which originate\\nwith the local boards and assemblies. While it is held that\\nthe legislature may submit laws of concern to local com-\\nmunities to the people thereof and make their going into\\neffect depend upon a favorable vote at the referendum, no\\nlocal board, or council can make such a submission of a\\nproposition except it receives direct and explicit authori-\\nzation from one or other of the law-making agents of the\\nState, the constitutional convention or the legislature. In\\nSouth Dakota, Iowa, California and Nebraska, it must be\\nnoted, such a privilege has been conferred upon the local\\nlegislative committees and assemblies in general terms, and\\ntheir power to exercise it is not open to question. In Iowa,\\nfor instance, it appears that the Board of Supervisors\\nor governing board of any county, may, on its own initia-\\ntion, or must, when petitioned so to do by at least one fourth\\nof the voters of the county, submit to popular vote either at\\na regular or at a special election the question whether\\nmoney may be borrowed to aid in the erection of any public\\nbuildings, and the question of any other local or police regula-\\ntion not inconsistent with the laws of the State The\\nregulation or ordinance must be advertised for four", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0323.jp2"}, "324": {"fulltext": "3o8 THE REFERENDUM IN AMERICA\\nweeks in some newspaper printed in the county, or if there\\nbe no newspaper, it may be legally published by posting it\\nup for thirty days in at least one of the most public places\\nin each township in the county and in addition in at least five\\namong the most public places in the county Propositions\\nand local measures adopted in this manner may also be re-\\nscinded upon the initiation of the people and a subsequent\\nreferendum in which a majority of the electors of the county\\nshall vote in favor of such rescission,\u00c2\u00ae^\\nLikewise in California on the presentation of a paper or\\npapers bearing the signatures of the legal voters of any\\ncounty equal in number to fifty per cent, of the votes cast\\nat the last preceding general election the Board of Super-\\nvisors must submit to the people any ordinance for whose\\nsubmission the petition makes a request. The new free-\\nholders charter of San Francisco, recently framed to super-\\nsede a charter and the amendments thereto which had been\\nreceived direct from the State legislature, provides for a poll\\nof the people on city ordinances and charter amendments\\nwhen an election on these measures is petitioned for by a\\nprescribed number of citizens. All bills to grant franchises\\nto private companies for the supply of light or water, or\\nfor the lease or sale of any public utility, or for the pur-\\nchase of land of more than $50,000 in value must be sub-\\nmitted to the electors of San Francisco. This referendum\\nis compulsory and no petition is necessary,\u00c2\u00ae^\\nThe Legislature of Nebraska recently introduced the in-\\nitiative and the referendum in that State, on by-laws in\\ncities and other municipal subdivisions (counties, towns,\\nvillages, school districts, etc.) in the Swiss form and by the\\nSwiss name. Any ordinance, order, resolve, agreement,\\ncontract or other legislative measure which is proposed by\\n15 per cent, of the voters of a city or other local district\\nCode of Iowa, sees. 443 ct ^c/.\\nStatutes of California _ x^SJ- 7- 348.\\n^Charter for the C- ^y *\u00c2\u00bb*y of S an Francisco, 1898, art. ii,\\nsees. 20, 21 and zz.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0324.jp2"}, "325": {"fulltext": "ON LIQUOR LAWS AND VEXED QUESTIONS 3^9\\nmust be submitted to the people thereof at a regular election.\\nIf a greater number, or at least 20 per cent, of the electors,\\nsign the petition a special election to decide the question may\\nbe held. Respecting ordinances which have been initiated\\nby the local legislatures themselves and have been duly en-\\nacted by these bodies, none shall go into force until thirty\\ndays after its passage. If within that time a petition signed\\nby 15 per cent, of the voters of the city or other local district,\\nasking for a referendum on the subject, is presented to the\\nduly authorized officers it must be submitted to popular vote\\nat a regular election; again if the number signing the pe-\\ntition equals 20 per cent, of the voters a special election may\\nbe called. Urgent measures relating to the preservation\\nof public peace or health however, are expressly excepted\\nfrom these provisions. Furthermore the mayor and city\\ncouncil, without waiting to receive a petition, may at any\\ntime at their own instance call an election in regard to any\\nquestion upon which they desire advice from the citizens at\\nlarge. The entire law is itself conditioned upon its direct\\nacceptance by the people in the various cities, counties, towns,\\netc., of Nebraska. The referendum thus curiously is itself\\nthe subject of a referendum.\\nThe recent amendment to the Constitution of South Da-\\nkota which introduces the Swiss initiative and referendum\\nin respect of State laws, to which allusion has been made in\\nan earlier chapter, is also of application to municipalities. It\\ncontemplates that five per cent, of the voters in any local\\ndistrict may originate and have submitted to popular vote\\nany local ordinance which may suggest itself to them, and\\nalso that five per cent, of the electors may demand a refer-\\nendum on any law which has already been passed by the local\\ngoverning board or council.\\nIt is to be noted in summarizing this particular section\\nof our subject that the referendum on local questions in the\\ncounties of Iowa and California is purely an American de-\\nCompiled Laws of Nebraska, pp. 588 et seq.\\nSession Laws of South Dakota, 1897, pp. 88-89.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0325.jp2"}, "326": {"fulltext": "3IO THE REFERENDUM IN AMERICA\\nvelopment m line with ouf own tendencies and traditions.\\nIn San Francisco, Nebraska and South Dakota, on the other\\nhand, it is clearly an importation, an adaptation of the Swiss\\nsystem for which American politicians of a certain type have\\nlately expressed so much interest and admiration. Their\\nagitations are now beginning to bear fruit in many parts of\\nthe Great West", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0326.jp2"}, "327": {"fulltext": "CHAPTER XIII\\nTHE LOCAL REFERENDUM IS IT CONSTITUTIONAL?\\nHaving traced the historical development of law-making\\nby popular vote as it bears directly upon local government\\nin the United States we come at once to the consideration\\nof another question the regularity and validity of the\\nsystem, especially from the view-point of the courts.\\nWe have to inquire if the referendum on local laws\\nin local communities is constitutional. It has been noted\\nalready in another place that the weight of judicial\\nopinion is quite strongly against the submission of laws\\nto popular vote, when they are general State laws of\\napplication to the entire State. On a plain issue of\\nthis kind the courts, so far as they have gone in the matter,\\nare disposed to discourage conditional legislation of such a\\ncharacter, on the ground that it is a delegation of power to\\na foreign body which is not known to the constitution.\\nWhen the constitution of a State specifically declares that the\\nlaw-making power shall repose in a representative legislature\\nunder definite conditions and regulations, it is assuredly not\\ncompetent for the legislature to decline to perform the task\\nto which it has been assigned and pass it on to some other\\nagent. Nevertheless various methods of evading the rule\\nhave gradually come into vogue in the course of the develop-\\nment of local government in the United States, and although\\nthere can be little disagreement as to the unconstitutionality\\nof the submission to popular vote of a general State law,\\nsuch as the New York Free School Law of 1849,^ there are\\nroundabout means to an end.\\nA discussion of the question of the constitutionality of the\\n^Cf. Barto v, Himrod, 4 Seld. 483.\\n311", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0327.jp2"}, "328": {"fulltext": "312 THE REFERENDUM IN AMERICA\\nreferendum excepts those cases, of course, in which the repre-\\nsentative legislatures divide the legislative power with the\\ncitizens at large by authority derived from the State consti-\\ntution. Although the referendum may still be out of harmony\\nwith our unwritten English law which places the legislative\\npower of the State in the hands of representatives, on the\\ntheory that a few of the wisest and most capable can legislate\\nmore intelligently than the whole unorganized electorate,\\nit is at any rate constitutional in the American sense, if\\nthe written constitutions expressly confer such a right upon\\nthe people.\\nWe are to discuss the case, however, of laws which are\\npassed by the State legislature subject to later ratification\\nby popular vote, when no authorization for such a submission\\nis contained in the constitution, and when the measures apply\\nto local subdivisions of the State. The question is then as\\nto the constitutionality of local option laws, an expressive\\ndesignation for legislation of this kind, in popular parlance,\\nthough without reason, restricted to prohibitory liquor laws\\nwhich are referred to the electors in counties, towns and other\\nlocal districts. It need scarcely be said that the term may\\nhave a very much wider use and it is convenient to extend\\nits meaning and scope in this place. There are various kinds\\nof local option laws, and I refer here not to the subject of the\\nlaw, but to the form in which it is submitted to popular vote.\\nThere is the case i of special laws passed by the legislature\\nwith respect to some locality particularly designated. These\\nlaws are very numerous in the few States in which special\\nlegislation is still permitted. Thus an act adopted by the\\nlegislature of Maryland, providing for the issue of bonds\\nin a certain town for the purpose of enabling the municipal\\nauthorities to subscribe to the capital stock of a railway com-\\npany, prescribes that it shall be referred to the people and\\nif a majority of the votes given in at the election on the\\nquestion shall be in favor of this act then the same shall\\nforthwith go into effect A law recently enacted by the\\nLaws of Maryland, 1894, p.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0328.jp2"}, "329": {"fulltext": "IS THE LOCAL REFERENDUM CONSTITUTIONAL? 3^3\\nlegislature of Massachusetts provides that so much of this\\nact as authorizes the submission of the question of its accep-\\ntance to the legal voters of said city shall take effect upon its\\npassage but it shall not take further effect unless accepted\\nby the legal voters of said city as herein prescribed Of\\ncourse a very large number of cases of this kind might be\\ncited. The legislature thus clearly submits a local law to\\nanother agent not clothed by the constitution with law-ma-\\nking power, i. e., the people in a body. The legislature en-\\nacts no law; it merely submits a project of a law, unless, if\\nyou choose, it definitively enacts that portion of the measure\\nwhich prescribes a method by which the referendum shall be\\ntaken, a distinction not very important or valuable.\\n(2.) We have the general local option laws which apply to\\nall the counties, townships or other local districts of the State\\n(with perhaps a few designated exceptions). These laws\\nexist in almost endless variety and relate to the location of\\ncounty seats, the sale of liquors, the restraint of live stock,\\nthe issue of bonds for many purposes, the levy of taxes, the\\nchoice of methods of administration in reference to the poor\\nand with regard to the roads, and other questions of local\\nmanagement. These too are not laws when they leave the\\nlegislature s hands. They are mere projects of laws. They,\\nhowever, relate to a large number of possible districts, any\\none or more of which may bring the measure into force\\nwithin the bounds of that particular locality. If it is not\\nadopted, however, even by one single district, the act still\\nretains its place on the statute books of the State until it is\\nrepealed or amended by the same power which placed it\\nthere, namely the legislature. It operates, in a sense, auto-\\nmatically in that any eligible locality on its own initiation,\\nthrough popular petition or through its representative offi-\\ncers, may make a request for a poll of the people on the sub-\\nject. If the necessary majority is secured the law comes into\\nforce within that one local district and remains in force until\\nit is repealed, by local procedure when that is permitted, or\\nActs of Massachusetts, 1896, p. 312.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0329.jp2"}, "330": {"fulltext": "314 THE REFERENDUM IN AMERICA\\nby the State legislature. For example a law of this kind\\nin South Dakota passed in 1891 provides: If a majority\\nof the electors at any election shall have voted in favor of the\\nproposition then all the provisions of this act shall apply to\\nand be in force in such county [the county in which the vote\\nis taken]. But if a majority of such electors shall have voted\\nagainst such proposition then the provisions of this act shall\\nnot apply to such county A recent law in Missouri says\\nThis act shall be in force and take effect only in such\\ncounties as shall adopt the same by a majority of the qualified\\nvoters who shall vote for or against its adoption\\nIn order to avoid unfavorable judicial opinions various\\nsubterfuges are sometimes employed with the result of chang-\\ning the issue verbally, if not actually and in fact. Thus it\\nis sometimes specified that the act shall take effect imme-\\ndiately but that its provisions shall remain inoperative\\nuntil the law is assented to by a majority of the legal electors\\nof those districts to which it is meant to apply.^ Again the\\nproposition sometimes is not to ratify a law, but to abolish\\ncertain provisions of the State code, or to repeal a law already\\ndefinitively enacted by the legislature. In Missouri I have\\nfound a law which prescribes that the provisions of this\\narticle are hereby suspended in the several counties in this\\nState until a majority of the legal voters of any county voting\\nat any general or special election called for that purpose shall\\ndecide to enforce the same in such county Here, curiously\\nenough, the poll of the people is taken, not to enact the law,\\nbut to decide whether it shall be enforced.^\\n(3.) There is local option also according to what may be\\ndenominated the New Jersey plan because of the ex-\\ntended use of this kind of conditional legislation in that State.\\nThis is essentially a dishonest form of law-making inasmuch\\nLaws o\u00c2\u00a3 South Dakota, 1891, p. 27.\\nSession Laws of 1893, p. 227.\\nCf. New Jersey Laws of 1897, p. 449.\\nCf Revised Codes of North Dakota, sec. 1550, and Pennsylvania\\nLaws of 1885, p. 142,\\n^Revised Statutes of Missouri, 1889, p. 186.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0330.jp2"}, "331": {"fulltext": "IS THE LOCAL REFERENDUM CONSTITUTIONAL? 31 5\\nas it professes to be general in its application to the localities,\\nwhile it in reality is wholly special, creating great confusion\\nand conflict in a field in which uniformity is much to be de-\\nsired. A law framed to meet a need in some particular in-\\nstance which has been brought to the attention of certain\\nmembers of the State legislature is passed in reference to\\ncities, boroughs or other local districts. This law is ac-\\ncepted or rejected by the electors in a referendum. At\\nsome recent sessions of the New Jersey State legislature\\nsuch conditional acts have been passed in great numbers.\\nBeing without general applicability either in subject matter\\nor intent such legislation can only be looked upon as vicious\\nboth in principle and practice. It injects great uncertainty\\ninto municipal government which above all things should\\nbe stable, pursuing a definite administrative course. It opens\\nthe way to constant change in charters and local government\\nacts which, even if they are first submitted to the\\npeople of the districts to be affected by them, should\\nthe latter desire to avail themselves of the opportunity\\nto adopt the provisions of such a law, is not the less\\na source of needless disorganization. Conditional acts\\nof this kind have been passed in rapid succession by\\nthe legislature of New Jersey in reference to the water\\nsupply of cities, the drainage systems, roads, streets,\\nparks, the salaries of civil officials, taxation, indebtedness,\\nthe purchase of land, etc., all subject to a vote of acceptance\\nby the people of separate localities. Even the most super-\\nficial and hasty consideration of these measures will serve\\nto indicate their special character and confirm us in our view\\nof the nature of this kind of legislation.\u00c2\u00ae And New Jersey\\nis not alone among the American States in submitting laws\\nof this class to popular vote.\\n(4.) The alternate law is a type which is made familiar\\nCf. General Statutes of New Jersey, 1896, pp. 495, 500, 508, 535, 539,\\n575. 617, 640, 646, 729, 739, 774, 78s, 1504, 1506, 1519, 1524, 1536,\\n1537, 1543, 1545, 1548, 1551, 1557, 1558, 2209, 2211, 2618, 2951, 3085.\\nSession Laws of New Jersey of 1896, p. 43 ibid., 1897, p. 449.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0331.jp2"}, "332": {"fulltext": "3i6 THE REFERENDUM IN AMERICA\\nin the legal system of several States. By this method laws\\nare submitted in alternate forms. The legislature in this case\\nis perhaps more than a proposer of the law. It has already\\ntaken definitive action in that it prescribes rules and regu-\\nlations to govern the subject at ordinary times, offering, how-\\never, an alternate law to the qualified voters of the localities\\nwhich they may adopt if they like. Upon a favorable vote\\nin any district this alternate law comes into force instead of\\nthe definitive law earlier enacted by the legislature. Such\\na system prevails in West Virginia for instance as regards\\nthe management of the public roads. In one sense nearly\\nall local option laws are alternate laws. The plebiscite on\\nthe subject of the prohibition of the sale of alcoholic liquors\\nfor instance has this form, since if the proposal to close the\\ndram shops be defeated the license law remains in force.\\nThere is some law on the subject in nearly every mentionable\\ncase. Even though the people should accept none of the new\\nlegislation proposed to them there would not be a complete\\nlack of legal system. From this point of view, therefore, in\\nreality if not in name, all local option laws are alternate\\nlaws\\nIt may be said of course of all these distinctions that\\nthey relate entirely to unimportant details of form. I said\\nthis at the outset, and although other modifications in the\\ntextual form of conditional laws in this country could be\\nintroduced into this classification I incline to the belief that\\nthis is a sufficiently accurate division of the subject to illus-\\ntrate the general character of such legislation as it refers to\\nlocal communities in Lhe United States. Whether the laws\\nsubmitted to the people are special or general, relate to one\\ndistrict or possibly fifty or sixty, are submitted as definite\\nsingle propositions or as whole acts, whether they are alter-\\nnate laws or laws which the people may directly enact or\\nindirectly enact by repealing some existent provisions of a\\ncode which has earlier been passed by a representative legis-\\nlature, the result is always the same from the point of view\\nCf. Code of West Virginia, 3rd ed., 1891, pp. 332, 338, 344.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0332.jp2"}, "333": {"fulltext": "IS THE LOCAL REFERENDUM CONSTITUTIONAL 317\\nof political science. There are legal differences for the jurist\\nand fine quibbles for the practical lawyer, but technicali-\\nties aside, it is in all these cases quite as if it were stated\\nexplicitly in connection with each separate law This act\\nshall not take effect until it shall have first been ratified by the\\nqualified voters of county (city, village, township,\\netc.).\\nThe question now to be determined is whether or not legis-\\nlation of this kind referred to the people of the various gov-\\nernmental subdivisions of a State by the legislature of the\\nState is constitutional. When the written State constitution\\nspecifically provides that such a subject as the location of a\\ncounty seat, the changing of a county boundary line, the an-\\nnexation of one municipality by another, the restraint of live\\nstock, the prohibition of the sale of alcoholic beverages and\\nso forth, shall be submitted to the qualified electors no one\\nfor a moment doubts the legality of this process. AVhen,\\nhowever, there is no such specific provision in the constitu-\\ntion, a very important legal question arises, and it requires\\ncareful historical consideration before we shall be able to\\ncome to a fair judgment of the case.\\nOf the large number of judicial decisions from the highest\\nState courts on the subject of law-making by popular vote,\\nmuch the greater part relate to laws in reference to local dis-\\ntricts submitted to a vote of the people of those local districts,\\nbeing therefore directly in point at the present stage of our\\ndiscussion. Measures in reference to the whole State, sub-\\nmitted to the people of the whole State, have been passed\\nupon by the courts scarcely a half dozen times in the entire\\nhistory of this government and the subject in this one of its\\naspects has been discussed already in its proper connection\\non an earlier page. Very few opinions were delivered prior\\nto 1850, since legislation of this kind before that time was\\nnot common in this country. What did exist was not of a\\ncharacter to arouse animosity and lead to a test of strength\\nbetween contending social forces until conditional laws came\\nto be passed, levying higher taxes on the people in order to", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0333.jp2"}, "334": {"fulltext": "3i8 THE REFERENDUM IN AMERICA\\ncarry out public improvement, and prohibiting the liquor\\ntraffic, thus depriving some men of their means of obtaining\\na livelihood and interfering with other men s forms of indulg-\\nence and established manners of life. Local option laws re-\\nspecting taxation and the prohibition of liquor selling are\\nto be credited with having called forth the vast majority of\\nAmerican judicial opinions on the referendum.\\nBefore 1850 I note eight opinions from the highest courts\\nof eight different States in which the question of the validity\\nof the local referendum is more or less fully considered and\\nreviewed. Of these eight, three relate to the prohibition of\\nthe liquor trade, three to taxation or the public subscription\\nof stock to private companies, and two to other questions of\\nlocal government. In six of the eight cases the validity of\\nthis method of submitting local laws to popular vote was\\naffirmed and in two, both cases arising out of local option\\nliquor laws, it was denied. The first of the eight opinions\\nwas delivered by the Supreme Court of Massachusetts in\\n1826 (Wales V. Belcher, 3 Pick., 508). A law passed by the\\nMassachusetts State legislature had referred the question of\\nthe jurisdiction of certain courts in Boston to a vote of the\\npeople of the city. A point having been raised in regard to\\nthe constitutionality of such legislation the Supreme Court\\nsaid: This objection [to the law] for aught we see stands\\nunsupported by any authority or sound judgment. Why\\nmay not the legislature make the existence of an act depend\\nupon the happening of any future event? Constitutions\\nthemselves are so made the representative body in convention\\nor other form of assembly fabricates the provisions, but they\\nare nugatory unless at some future time they are accepted by\\nthe people. Statutes incorporating companies are made to\\nderive their force from the previous or subsequent assent of\\nthe bodies incorporated. A tribunal peculiar to some section\\nof the commonwealth may be thought by the legislature to be\\nrequired for the public good and yet may not be acceptable\\nto the community over which it is established. We see no", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0334.jp2"}, "335": {"fulltext": "IS THE LOCAL REFERENDUM CONSTITUTIONAL? 319\\nimpropriety, certainly no unconstitutionality, in giving the\\npeople the opportunity to accept or reject its provisions.\\nIn an opinion from the Court of Appeals of Virginia in\\n1837 (Goddin v. Crump, 8 Leigh, 120), in a case arising\\nfrom a law which gave to the people of the city of Rich-\\nmond the right to assent to or reject a proposition for the\\npublic subscription of stock to a canal company the same\\nprinciple was affirmed. In Maryland in 1844 (Burgess v.\\nPue, 2 Gill., 11), the highest court of the State delivered an\\nopinion favorable to a local option law which levied a tax\\nfor school purposes. In Illinois in 1848 (People ex rel. v.\\nReynolds, 5 Gilm., i), a case growing out of a law to divide a\\ncounty, and in Kentucky in 1849 (Talbot v. Dent, 9 B. Mon.,\\n526), in an opinion induced by another act authorizing a\\nmunicipality to subscribe to the stock of a private company\\nthe courts again sustained the legitimacy of this kind of\\nlegislation.\\nIn June, 1847, in Delaware, however, the Court of Errors\\nand Appeals took up a new position and in unqualified terms\\npronounced against the constitutionality of a local option\\nliquor law which had been passed by the legislature of the\\nState in the preceding February (Rice v. Foster, 4 Harr.,\\n479). The entire subject was thoroughly reviewed in its\\nfundamentals. Direct legislation by the people was con-\\ntrasted with the representative system of government. The\\nlegislative power of the State being vested in the General\\nAssembly by the constitution, the judges declared that the\\npeople could not resume or exercise any portion of it\\nTo do so the court continued, would be an infraction\\nof the constitution and a dissolution of the government\\nMoreover if the problem were considered on its federal side\\nthe Constitution of the United States provided that Congress\\nshould guarantee to each State a republican form of govern-\\nment This provision prohibited any State from estabHsh-\\ning a democracy which would be a natural result were\\nlaws submitted to popular vote, a policy which would de-", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0335.jp2"}, "336": {"fulltext": "320 THE REFERENDUM IN AMERICA\\nmolish the whole frame and texture of our representative\\nform of government and prostrate everything to the worst\\nspecies of tyranny and despotism, the ever-varying will of an\\nirresponsible multitude The Delaware judges did not per-\\nceive, or at rate failed to recognize in their opinion, any dis-\\ntinction between laws of a general character relating to the\\nwhole State and submitted to the people of the whole State,\\nand local option laws. They in fact denied the whole con-\\ntention, declaring that if the legislature could refer one sub-\\nject to a vote of the people it could just as well so refer all\\nsubjects. There was in the court s view no middle ground\\nwhich might be occupied harmoniously with the established\\nsystem of government in the American States.\\nA very few months later, in November, 1847, ^he highest\\ncourt in Pennsylvania passed judgment on a local option\\nliquor law similar to that which had drawn forth the notable\\ndecision in Delaware. This court also denied the whole\\nproposition generally and without qualification or reserve\\n(Parker v. Commonwealth, 6 Barr., 507). The opinion put\\nthe court so far out of line with later developments respecting\\nthis subject indeed, that they were led to declare, that, for the\\nlegislature to surrender the law-making power to the citizens\\nat large in the local communities, was even less permissible\\nthan for it to resign its functions in favor of the people of\\nthe whole State. It is a duty [i. e., the duty of making\\nlaws] which cannot be transferred by the representative\\nthe judges said, no not even to the people themselves, for\\ntliey have forbidden it by the solemn expression of their will\\nthat the legislative power shall be vested in the General\\nAssembly much less can it be relinquished to a portion of the\\npeople who cannot even claim to be the exclusive depositories\\nof that part of the sovereignty retained by the whole com-\\nmunity\\nA local option liquor law of precisely the same character\\nled to an important opinion by the Supreme Court of Ver-\\nmont in 1849 (Bancroft v. Dumas, 21 Vt., 456). The court\\nhere took a quite opposite view of the question and, as re-", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0336.jp2"}, "337": {"fulltext": "IS THE LOCAL REFERENDUM CONSTITUTIONAL? 321\\ngards the general proposition, declared that it was in ac-\\ncordance with the theory of our government that all our laws\\nshould be made in conformity to the wishes of the people\\nIt could surely then be no objection to a law that it is ap-\\nproved by the people Passing to a more specific treatment\\nof the subject the court continued: We believe that it\\nhas never been doubted that it is competent for the legislature\\nto constitute some tribunal or body of men to designate\\nproper persons for innkeepers and retailers of ardent spirits\\nand if the legislature could legally and constitutionally sub-\\nmit the question of whether licenses should be granted to the\\ndetermination of a portion of the people [i, e., to the mem-\\nbers of some local board or tribunal], could they not with\\nequal if not greater propriety submit it to the decision of the\\nwhole people Continuing the court explained that laws\\nare often passed and, by the terms of the statute, made to take\\neffect upon the happening of some event which is expected\\nto occur but they were not aware that such laws for that\\nreason had been regarded as invalid\\n.From 1850 onward stripping the various decisions re-\\nspecting laws of this kind of needless verbiage and techni-\\ncality, which have been called forth in specific instances for\\none reason or another not germane to the discussion, some\\nconclusions may be arrived at of a rather absolute character\\nas regards the trend of judicial opinion on the subject of the\\nreferendum in the United States. In nearly all the States\\nin the Union the courts have considered and discussed this\\nquestion, and the tendency has been distinctly favorable to\\nthis kind of legislation. Since 1850 we find opinions in only\\nfour States which are adverse to law-making by popular vote\\nin local districts. These are California, Indiana, Iowa and\\nTexas, Iowa being the most notable for the number of de-\\ncisions in which the court have consistently followed their\\nown precedents. The leading cases in which unfavorable\\nopinions have been delivered in the four States named are\\n^Ex-parte Wall in California; Maize v. The State^^ and\\n48 Cal. 279. 4 Ind. 342.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0337.jp2"}, "338": {"fulltext": "322 THE REFERENDUM IN AMERICA\\nGreencastle Township, etc. v. Black^^ in Indiana Geebrick v.\\nState,^* State v. Weir^-^ and Weir v. Cram^^ in Iowa; State v.\\nSwisher^ in Texas. As Rice v, Foster and Parker v. Com-\\nmonwealth, in Delaware and Pennsylvania respectively, date\\nfrom a period anterior to 1850, so all the later cases except\\none California, one Missouri and two Iowa cases are earlier\\nthan i860. The most recent of the opinions, and also one\\nof the most vigorous in the series, is that in the case of Ex-\\npart e Wall in California in 1874. As the opinion in Parker\\nV. Commonwealth in Pennsylvania was soon modified, and\\nin 1874 in Locke s AppeaP^ directly reversed, so there has\\nbeen a like tendency at work in other States. The line of\\nargument which the court had laid down in Indiana in\\nMaize v. The State, etc., was gradually departed from until\\nin Groesch v. The State,^^ quite new ground was found.\\nState V. Swisher in Texas was directly overruled in 1883 ^J\\nthe Court of Appeals,^^ and in California both prior to and\\nsince the opinion in the case of Ex-parte Wall there have\\nbeen decisions in favor of the referendum in municipalities\\nand other local districts. In Iowa where a view hostile to the\\nconstitutionality of such laws has been most persistently held,\\nit having been reasserted by the court on many different\\noccasions, there have been not infrequent departures from the\\ngeneral principle. The court on account of their vacillating\\npolicy with respect to this subject have been led into many\\nconflicting opinions. Geebrick v. State and the later cases\\nwould seem finally to have been reversed in 1895 in State\\nex rel. Witter v. Forkner, 94 Iowa, i when there was a thor-\\nough judicial review of a prohibitory liquor law which was\\nknown as the Mulct Law a kind of legislative subter-\\nfuge for local option as regards the sale and manufacture\\nof alcoholic beverages. Unless another tendency should\\nlater set in, there is then every reason for the belief that,\\n^^5 Ind. 557. 5 Iowa, 491.\\nZZ Iowa, 134. 2,7 Iowa, 649.\\n17 Texas, 441. ^^y2 Penn. 491.\\n42 Ind. 547. 14 Tex. Court of Appeals, 505.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0338.jp2"}, "339": {"fulltext": "IS THE LOCAL REFERENDUM CONSTITUTIONAL? 3^3\\nsupported by the weight of authority of more than a half\\ncentury, the referendum regarding local matters in American\\ncommunities is now a valid and constitutional part of our\\nsystem of government in every one of the forty-five States.\\nIt is to be noted, furthermore, of these various adverse\\nopinions that nearly all were called forth by local option liquor\\nlaws, as in Rice v. Foster, Parker v. Commonwealth, State\\nV. Swisher, Geebrick v. State, State v. Weir, and Maize v.\\nThe State. If these opinions were disregarded the American\\nState courts would be in virtual unanimity respecting this\\nquestion. The student who has read after the judges that\\noccupy the benches in our highest State courts must conclude\\nthat they are not without personal bias in a consideration of\\nthis subject. They are wont to regard this as an occasion\\nwhen their own views respecting the liquor-selling question,\\nwhich has aroused so much bitter feeling in American com-\\nmunities, should be consulted, and the law in the case is there-\\nfore accorded a secondary place. There is no escape from\\nthe thought that such opinions as Ex-parte Wall were directly\\ninduced by the personal interest of the judges who if they\\nhad been asked to pass upon a local option stock law, for in-\\nstance, would have found no ground for their vigorous de-\\nfence of constitutional forms. When these additional facts\\nare properly considered the evidence from the records of the\\ncourts seems the less entitled to bear heavily against the sys-\\ntem of law-making by popular vote in local districts in this\\ncountry.^^\\nBut it is of interest to inquire a little farther as to the\\ngrounds taken by the courts in these various opinions. The\\nadverse decisions are, of course, based on the general prin-\\nciple enunciated in Rice v. Foster, which certainly holds in\\nrespect of laws not of a local character that might be sub-\\nmitted to the people of the entire State. The courts in these\\ncases have failed to recognize any distinction between legis-\\nlation for the State and legislation for local districts of the\\nState, and have declared in more or less definite terms that the\\nCf. Oberholtzer, op. cit., pp. .103, et seq.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0339.jp2"}, "340": {"fulltext": "324 THE REFERENDUM IN AMERICA\\nlegislature, being constituted a body whose specific function\\nit is to propose, discuss, deliberate upon and pass laws to\\napply to the districts under its jurisdiction, cannot resign its\\nplace in favor of any other tribunal whatsoever, not even the\\npeople themselves. Up to this point all authorities are in\\nagreement, but important modifications are subsequently\\nintroduced into the argument in nearly all the States, as we\\nhave just noted, so that the local referendum has gained a\\nsecure foothold throughout the Republic. These exceptions\\nto the general rule are taken mainly on the following grounds,\\nviz:\\n(i.) That laws may be passed whose going into effect is\\nmade to depend upon a contingency such as the happening\\nof a future event, or the fulfillment of a prescribed condition.\\nThis contingency then it is argued, may as well be a favorable\\nvote of the people as anything else.\\n(2.) That laws in reference to a municipality or local dis-\\ntrict may be enacted by the legislature at will, except as\\nlimits are established in the State constitution and by reason\\nof the legislature s extensive powers in this direction, which\\nit is not able to exercise without the co-operation of some\\nmediate authority, it may call to its aid the citizens at large.\\nIt is customary to delegate powers with respect to local gov-\\nernment to designated agents such as the commissioners of\\ncounties, the trustees of towns, the mayors and councils of\\ncities, the judges of local courts and the officers of townships.\\nIf such authority can be conferred upon agents of this kind\\nwhy may not others be appointed, as for instance, the whole\\nbody of voters?\\nRespecting the first line of argument which leads us to a\\ndeviation from the rule, the theory that a contingency may\\nexist, that there may be a condition precedent to the law s\\ntaking effect which if it is not met will prevent it from taking\\neffect, there are many opinions tending to support the view.\\nThe Federal practice has been pointed to as furnishing ex-\\namples of legislation passed in a conditional way, its going", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0340.jp2"}, "341": {"fulltext": "IS THE LOCAL REFERENDUM CONSTITUTIONAL? 325\\ninto force being dependent upon the happening of some fu-\\nture event. One of the first cases of this kind on record,\\nWales V. Belcher, supra, which was decided in Massachu-\\nsetts in 1826, drew forth an opinion from the Supreme Court\\nof that State of much interest in this connection. The court\\nsaid that a law might recognize the existence of a con-\\ntingency and that this contingency might be the acceptance\\nby the people of the provisions of the act. The judges asked,\\nWhy may not the legislature make the existence of any act\\ndepend upon the happening of any future event? and\\nadded Constitutions themselves are so made the repre-\\nsentative body in convention or other form of assembly fabri-\\ncates the provisions, but they are nugatory unless at some\\nfuture time they are accepted by the people. Statutes incor-\\nporating companies are made to derive their force from the\\nprevious or subsequent assent of the bodies incorporated\\netc.\\nStatutes incorporating companies it is well to remem-\\nber, are by no means the only laws which depend upon the\\noccurrence of a future event. One of the most common\\nforms is a statute which is to go into effect on some future\\nday. The contingency in this case, though the similitude\\nbe a little strained, is the arrival of a certain date. Such a\\ncase has been very frequently cited by the State courts in the\\ndevelopment of this principle, since it was announced in 1826\\nin Massachusetts and applied in defence of the referendum\\nin the American States. There are many laws furthermore,\\nand their constitutionality is not called into question on this\\naccount, which contemplate that certain acts shall be per-\\nformed by local magistrates and administrative boards. If\\nthese conditions are met and fulfilled the act goes into effect\\nif not it remains in whole or in part a dead letter. Thus to\\ncite only one concrete instance, among many which might\\nbe named, it was provided in a law recently adopted by the\\nlegislature of North Dakota, that the last five sections shall\\ntake effect and be in force in each county in this State only", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0341.jp2"}, "342": {"fulltext": "326 THE REFERENDUM IN AMERICA\\nupon a resolution to that effect being adopted by the board\\nof county commissioners thereof A law in reference to\\nthe capture of sturgeon in the Delaware River, approved by\\nthe legislature of New Jersey in 1895, provided in its final\\nsection that this act shall take effect when similar acts shall\\nhave been passed by the legislatures of the States of Delaware\\nand Pennsylvania Many similar cases might be men-\\ntioned and this method of enacting laws is indeed so usual\\nthat it has furnished a basis of great strength for the judicial\\nview that the contingency may as well be the assent of the\\npeople to the law as any other event or circumstance.\\nA statement of this line of argument which is perhaps as\\nclear and direct as any to be found in the Reports of any of\\nthe State supreme courts comes from the Virginia Court of\\nAppeals. The opinion was delivered so long ago as in 1855\\n(Bull z Read, 13 Gratt., 78). The case grew out of an act\\nestablishing a system of free schools, if the inhabitants of a\\nparticular district of a county should vote to accept the pro-\\nvisions of the law. The court in their review of the subject\\non this occasion said It will be conceded that the legis-\\nlature may provide that an act shall not take effect until some\\nfuture day named, or until the happening of some particular\\nevent, or in some contingency thereafter to arise, or upon\\nthe performance of some specified condition. The exigencies\\nof the government may frequently require laws of this char-\\nacter, and to deny to the legislature the right so to frame\\nthem would be unduly to qualify and impair the powers\\nplainly and necessarily conferred. Accordingly we find\\nthis a familiar feature in the legislation both of the na-\\ntional and State governments. The Non-Intercourse\\nacts of March i, 1809, May i, 1810, and May 2, 181 1,\\nwere expressly made to depend upon the course that\\nmight be adopted by England and France with regard\\nto the edicts promulgated by them, to be made known\\nby proclamation of the president. And the principle\\n^-Revised Codes of the State of North Dakota, 1895, sec. 1732.\\nGeneral Statutes of New Jersey, pp. 1593-94-", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0342.jp2"}, "343": {"fulltext": "IS THE LOCAL REFERENDUM CONSTITUTIONAL? 327\\nof this mode of legislation was sustained by the Su-\\npreme Court, Brig Aurora v. United States, 7 Cranch,\\n382. Nothing is more common than for an act of assembly\\nto be made to commence upon a future day. The code of\\n1849 is an instance of the kind. All acts of incorporation\\nare, in effect, acts to take effect upon a future event, the ac-\\nceptance of the corporators for without their consent the\\ncorporate body cannot be created. The various acts making\\nsubscriptions on the part of the State to works of internal\\nimprovement when a certain amount shall be raised by pri-\\nvate subscriptions are of this character. The several acts\\nauthorizing the Baltimore and Ohio Railroad Company to\\nconstruct their road through the territory of Virginia con-\\ntain the same feature. Such was the character of the act of\\nMarch 3, 1835, which authorized the county courts to dis-\\npense with the first and second sections of the act in their\\nrespective counties and reinstate the road law of 18 19. Such\\nalso was the act of February 3, 1846, accepting the county\\nof Alexandria upon its retrocession. Instances of the same\\nkind might be multiplied indefinitely. Now if the legislature\\nmay make the operation of its act depend on some con-\\ntingency thereafter to happen, or may prescribe conditions,\\nit must be for them to judge in what contingency or upon\\nwhat condition the act shall take effect. They must have the\\npower to prescribe any they may think proper; and if the\\ncondition be that a vote of approval shall first be given by\\nthe people affected by the proposed measure it is difficult\\nto see why it may not be as good and valid as any other\\ncondition whatever. There can be no inherent vice in the\\nnature of such a condition which shall serve to defeat the\\nact when it would be legal and effectual if made to depend\\nupon some other event.\\nThe subject was so thoroughly reviewed by the courts\\nyears ago that in recent opinions the fact that a contingency\\nmay exist, and that a favorable vote of the people of a local-\\nity may constitute that contingency, is in the nature of a well\\nestabHshed maxim. Thus in 1895 in Mississippi, Lum v.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0343.jp2"}, "344": {"fulltext": "328 THE REFERENDUM IN AMERICA\\nVicksburg, y2 Miss., 950, the court distinctly declared that\\na law may become operative upon the happening of a future\\nevent, although that contingency may be the result of an\\nelection by the people, and that this is too well settled gen-\\nerally, and in this State particularly, to be now again con-\\nsidered by us\\nIn Michigan, to mention but one more recent instance,\\nthe Supreme Court in 1890, Feek v. Township Board, 82\\nMich., 393, said The legislature in conferring upon the\\nboard the authority to pass such order \\\\i. e., an order pro-\\nhibiting the liquor business] had the right to prescribe the\\nconditions under which it might be exercised and this con-\\ndition is that the majority of the legal voters vote in favor\\nof the proposition. Numerous authorities might be cited\\nto show that it is legal and competent for the legislature\\nto provide that a law shall go into effect upon the happening\\nof a contingency, some of which are cited in the brief of the\\nAttorney-General. The proposition is too clear to need the\\ncitation of authorities.\\nAs regards the second line of argument which rests upon\\nthe admittedly large powers possessed by the State legis-\\nSome of the leading cases in the different States in which this\\ntheory has been developed in addition to those which may have been\\nalready named are the following: Fell v. State, 42 Md. 71 Trammel v.\\nBradley, 37 Ark. 374; Blanding v. Burr, 13 Cal. 343; Ex parte Wall, 48\\nCal. 279 Mayor and Council of the City of Brunswick v. Finney, 54\\nGa. 317; Groesch v. The State, 42 Ind. 547; Santo v. State, 2 Iowa,\\n165 Geebrick v. State, 5 Iowa, 491 Taylor v. McFadden, 84 Iowa, 2( 2;\\nNoffzigger v. McAllister, 12 Kan. 250; State ex rel. v. Hunter, 38 Kan.\\n578; Slack V. Maysville and Lexington Railroad Co., 13 B. Mon. i;\\nCommonwealth v. Weller, 14 Bush. 218; Roos v. State, 6 Minn. 291;\\nAlcorn v. Hamer, 38 Miss. 652 Schulherr v. Bordeaux, 64 Miss. 59\\nLammert v. Lidwell, 62 Mo. 188 State ex rel. Maggard v. Pond, 93\\nMo. 606; State v. Noyes, 10 Foster, 279; C. W. Z. R. R. Co. v. Clin-\\nton County, I O. S. 77 Gordon v. The State, 46 O. S. 607 Moers v.\\nCity of Reading, 21 Penn. 188; Locke s Appeal, 72 Penn. 491; John-\\nson V. Martin, 75 Tex. 33 14 Texas Court of Appeals, 505 State v.\\nO Neill, 24 Wis. 149; Smith v. City of Janesville, 26 Wis. 291 Bowling\\nV. The Lancashire Insurance Company, 92 Wis. 63 In re Village of\\nNorth Milwaukee, 93 Wis. 616 Trustees of Paris Township v. Cherry\\net al., 8 O. S. 564; Peck v. Weddell, 17 O. S. 271 State ex rel. Wil-\\ncox, 45 Mo. 458 Manly v. City of Raleigh, 4 Jones Eq. 370.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0344.jp2"}, "345": {"fulltext": "IS THE LOCAL REFERENDUM CONSTITUTIONAL? 329\\nlatures with reference to municipal and qiiasi-mumcip il cor-\\nporations the reasoning is very direct. The legislature, be-\\ning unable to exercise its authority without the co-operation\\nof local agents which are designated to attend to affairs of\\nlocal administration, it is an easy step to change the agents.\\nIf these powers are already entrusted to selectmen, trustees,\\ncommissioners, supervisors, mayors and members of councils\\nand other representative officers and local boards it is not far\\nto go to the whole body of electors. In New England the\\nvoters assembled in town meeting are permitted by the legis-\\nlature to make determinations in regard to many matters\\npertaining to local government, elsewhere usually left to the\\ndiscretion of a few representatve officers. The referendum\\nprovides a method, where the town meeting does not exist,\\nof collecting the sentiments of the people and of introducing\\nthem en masse as a tribunal in local government. This\\nargument deduced from the legislature s extensive rights\\nover municipalities is based also upon grounds of expediency,\\nsince the submission of such laws to local officers and bodies\\nis held greatly to conduce to the proper administration of\\nlocal affairs which, in the nature of the case, are often so\\nspecial in character as to make suitable action on the part of\\na law-giver stationed at some distant post not very feasible.\\nA judge or a local board is authorized to determine whether\\nlicenses for the sale of liquor shall be granted. Why then,\\nit is asked, may not all the electors in the district to be af-\\nfected by the order decide this question? An officer or sev-\\neral officers are authorized to decide whether a certain tax\\nshall be laid, whether a county boundary line shall be changed\\nor a county seat removed, whether one town shall be annexed\\nto another for purposes of government. Why may not such\\nquestions be referred to some other authority, namely, to the\\nvoters themselves?\\nTo how large an extent considerations of expediency,\\nrather than those of law, have had to do with this develop-\\nment in the United States, will appear from the following\\nopinions in which this theory as to the power of the legis-", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0345.jp2"}, "346": {"fulltext": "33^ THE REFERENDUM IN AMERICA\\nlature over municipalities as an explanation and defence of\\nthe referendum, seems to have been fairly stated. As early\\nas in 1844 the highest court in Maryland in Burgess v. Pue,\\n2 Gill, 19, a case arising out of a law to tax the people in aid\\nof free schools said We think there was no validity in the\\nconstitutional question which was raised by the appellee s\\ncounsel in the course of his argument, relative to the com-\\npetency of the legislature to delegate the power of taxation\\nto the taxable inhabitants for the purpose of raising a fund\\nfoi the diffusion of knowledge and the support of primary\\nschools. The object was a laudable one, and there is nothing\\nin the constitution prohibitory of the delegation of the power\\nof taxation in the mode adopted to effect the attainment of\\nit; we may say that grants of similar powers to other bodies\\nfor political purposes have been coeval with the constitu-\\ntion itself, and that no serious doubts have ever been enter-\\ntained of their validity. It is therefore too late at this day\\nto raise such an objection.\\nThe Supreme Court of Louisiana in 1853, Police Jury v.\\nMcDonogh, 8 La. An., 341, in an opinion induced by an act\\nauthorizing local districts upon a vote of the people to sub-\\nscribe to the stock of internal improvement companies, said:\\nThe right of the legislature to delegate the power of taxa-\\ntion for local purposes to municipal authorities is established\\nin this State, and in our sister States, by an uninterrupted\\ntrain of legislative precedents and judicial decisions. The\\nnecessity and propriety of such delegation are obvious. The\\nsupreme jurisdiction has not leisure nor information to take\\ncognizance of and manage all the matters which concern a\\nparticular locality. The interests of a particular town or\\ncounty are best understood and can be best administered by\\nits inhabitants, or persons of their choice selected under legis-\\nlative authority. Our own statute books and those of our\\nsister States are filled with acts creating these political cor-\\nporations whose powers are emanations from the legislative\\nwill and subject to be enlarged or curtailed by that will from\\ntime to time, as the wisdom of the legislature may dictate.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0346.jp2"}, "347": {"fulltext": "IS THE LOCAL REFERENDUM CONSTITUTIONAL? 33^\\nIf the legislature could constitutionally confer on the\\npolice jury authority to pass a taxing ordinance, it would\\nseem rather a safeguard against oppression than the reverse\\nto qualify the power of requiring it to be exercised with\\nthe approbation of a majority of those who are to bear the\\nburden. Certainly one would be inclined, with much show\\nof reason, to suppose that a system sanctioned by the legis-\\nlative will and tested by a long experience in one of the oldest\\nStates in this Union a State which was amongst the fore-\\nmost in the struggle for constitutional liberty could not\\nwell be inconsistent with the principles of representative\\ngovernment. If we look to Massachusetts how do we find\\nmunicipal matters managed there? If any change is to be\\nintroduced into the existing state of things, or if they wish to\\nundertake any new enterprise, the selectmen are obliged to\\nrefer to the source of their power. If, for instance, a school\\nis to be established the selectmen convoke the whole body of\\nthe electors on a certain day at an appointed place they ex-\\nplain the urgency of the case they give their opinion on the\\nmeans of satisfying it, on the probable expense, and the site\\nwhich seems most favorable. The meeting is consulted on\\nthese several points it adopts the principle, marks out the\\nsite, votes the rate and confides the execution of the resolu-\\ntion to the selectmen. The system practiced in Massachu-\\nsetts is not unknown in other States. It seems to us a\\nmatter of surprise that the caution of the legislature in its\\ngrant of the taxing power should be made a subject of re-\\nproach.\\nThe Court of Appeals of Kentucky in 1874, Anderson z\\nCommonwealth, 13 Bush., 485, in a case in which the special\\nsubject brought forward for review was a local option liquor\\nlaw, said Wc agree that the question of license or no\\nlicense is one properly of local police and may be constitu-\\ntionally left to the decision and discretion of the lawfully\\ncreated agencies representing and acting for the local public\\nto be immediately affected by the retail liquor traffic, such as\\nthe county courts and the municipal authorities of towns", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0347.jp2"}, "348": {"fulltext": "Z2\\nTHE REFERENDUM IN AMERICA\\nand cities. And further that the legislature may create other\\nagencies to determine this local question, and that it is no\\nconstitutional objection to the agencies created by the act\\nunder consideration that they are composed of the body of\\nthe qualified voters of the city, town or civil district in which\\nthe necessary steps may be taken to test the sense of such\\nvoters on the subject of such retail traffic.\\nThe whole topic was considered in a very satisfactory\\nmanner from an historical point of view in Maryland in 1891,\\nBradshaw v. Lankford, 73 Md., 428. The court s opinion\\nwas as follows It can hardly be necessary to say that by\\nthe Constitution of this State the power to enact laws belongs\\nto the General Assembly, composed of the senate and the\\nhouse of delegates and this being so it is a well settled prin-\\nciple of constitutional law that the power thus delegated can-\\nnot be redelegated to the people themselves. Our govern-\\nment is a representative government and to the members of\\nthe General Assembly the people have confided the power\\nto pass such laws as they, in the exercise of this judgment,\\nmay deem best for the public interests and they have no\\npower to substitute the judgment of others in matters of\\nlegislation for the judgment of those to whom this sovereign\\ntrust has been committed. But fundamental as this principle\\nmay be it is subject to certain qualifications, some of which\\nare well recognized both in this country and in England.\\nNo one questions the power of the legislature to charter\\nmunicipal corporations and to confer upon such corporations\\nthe power to pass laws and ordinances in regard to matters\\npertaining to local legislation. And it seems to be quite well\\nsettled in this country at least that, not only may the mu-\\nnicipal authorities themselves pass such laws and ordinances,\\nbut the legislature may refer laws in regard to local affairs\\nto the voters of the municipality for their acceptance or re-\\njection. Upon the same principle counties, although pos-\\nsessing the general powers of municipal corporations under\\nspecial charters, are regarded as quasi corporations and it", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0348.jp2"}, "349": {"fulltext": "IS THE LOCAL REFERENDUM CONSTITUTIONAL 333\\nseems to be well settled that questions of local concern,\\nwhether, for instance, a county seat once located shall be re-\\nmoved elsewhere, or whether the county shall subscribe to\\na particular improvement, these and other like questions\\nof local legislation may be referred to the voters of the\\ncounty for decision. Upon the same principle, too, it has\\nbeen held in this State that laws passed under the pplice\\npowers of the State regulating or forbidding the sale of in-\\ntoxicating drinks, commonly known as local option laws,\\nmay be submitted to the voters of an election district of a\\ncounty and the operation of such laws made to depend upon\\nthe result of a popular vote in said district.\\nA general study of the various deliverances of the courts\\ntouching the constitutionality of the submission of subjects\\nof local government to popular vote will develop the fact\\nthat the contingency theory, and the theory based upon the\\nlegislature s power in reference to municipalities, as well as\\nthe related consideration as to the expediency of a central and\\ndistant body submitting questions of purely local concern to\\nthe people who are to be directly affected by them in order\\nthat administration may be more smooth and effective, bear-\\ning with the least possible harshness upon the inhabitants,\\nare closely interwoven. The judges pass almost impercept-\\nibly from one to the other and whatever their own individual\\nviews may be as to the law in the case, they are at any rate\\ncompelled to recognize that conditional legislation of this\\nkind has existed in all parts of the Republic from the founda-\\ntion of the government. Whether there is in a strict judicial\\nsense justification for it or not, it is here and it must be reck-\\noned with as a part of us. A great weight of precedent and,\\nperhaps other important considerations which are not em-\\npirical, can be appealed to in its defence. The town meet-\\nFor other cases in which this line of reasoning is pursued, cf. God-\\ndin V. Crump, 8 Leigh, 120; Slack v. Maysville and Lexington R. R.\\nCo., 13 B. Mon, i; State v. Wilcox, 42 Conn. 364; Caldwell v. Barrett,\\n73 Ga. 604 City of Paterson v. Society for Establishing Useful Manu-\\nfactures, 4 Zab. 385.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0349.jp2"}, "350": {"fulltext": "334\\nTHE REFERENDUM IN AMERICA\\ning and the referendum are factors in the American system\\nof local government which will remain with us long after\\nthe jurist has ceased to seek the grounds for these interesting\\npolitical institutions.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0350.jp2"}, "351": {"fulltext": "CHAPTER XIV\\nTHE REFERENDUM ON CITY CHARTERS\\nOne of the most serious of the problems which confront\\nus in the field of government in the United States is met with\\nin our large cities. In these great metropolitan districts of so\\nrecent a development there have grown up difficulties with\\nwhich our type of government has yet seemed unable to cope.\\nThe large populations of modern cities and the diverse social\\ninterests of all these multitudes of people, coming into con-\\nflict as they must to a much greater extent than in rural dis-\\ntricts since they must live so close together within a very\\nlimited territorial area, have developed a set of problems that\\nput the present machinery of government to a severe test.\\nIt is not too much to say that our experiments in the main\\nhave been entirely unsuccessful up to this time, though there\\nis hope that within a not very long period the whole system\\nmay be reorganized in such a way as to insure very much bet-\\nter results. In what manner this end is to be attained it is\\ndifficult to foresee, but all observant persons are convinced\\nthat our system to-day is notably deficient in certain im-\\nportant particulars vital to the honest and proper manage-\\nment of city affairs.\\nThe whole political machinery is not infrequently seized\\nhold of by corrupt elements in the city who conduct the elec-\\ntions, occupy the offices and administer public affairs to serve\\ntheir own private ends. They are restrained very often, it is\\ntrue, from adopting too bold a course, and, at times, even are\\nconstrained to present for leading offices the names of can-\\ndidates whom citizens holding to higher standards may con-\\nscientiously support. When pressed hard by an aroused pub-\\nlic sentiment the office-holding cliques will sometimes make\\n335", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0351.jp2"}, "352": {"fulltext": "33^ THE REFERENDUM IN AMERICA\\nimportant concessions to save themselves from a defeat which\\nmight sweep them from position entirely. Occasionally,\\nindeed, by dint of strenuous endeavor good citizens who\\nencounter peculiar opposition and obloquy in carrying on\\ntheir patriotic work are able to organize their fellow voters\\nagainst the more ignorant and the less honest factions. But\\nthese get their living from the offices they fill and it is one\\nof the most difficult matters, except at unusual times, to dis-\\nlodge them. The good citizens from among whom leaders\\nof talent and force have risen up must return to their own\\npursuits, and so soon as the pressure of an outraged public\\nsentiment is removed the same elements make their appear-\\nance again and resume their places as before in arrogant\\ndefiance of the forces which stand for better government.\\nThe cost and sacrifice of such a campaign by men who must\\nneglect their private affairs and run the gauntlet of un-\\npleasant criticism by interested partisans and a hireling press\\ni^ so great and the victory so temporary, it is not to be won-\\ndered at that the task is seldom undertaken. It has\\nseemed to be better and easier for us to bear with a very\\ngreat deal of inefficient, if not positively bad and mischievous,\\ngovernment in cities rather than keep ourselves on guard con-\\nstantly against these strong elements that are always at hand\\nto break through the gates of virtue.\\nMuch of the merit or demerit of a city government has\\nbeen held to reside in the city charter, the grant of powers\\nreceived from the State legislature of which each city in this\\ncountry except Washington is the creation, the latter city\\nstanding under Federal supervision by reason of its being\\nthe national capital. In the main, in pursuance of some un-\\nwritten law, each American city is organized after the same\\npattern as the Federal and State governments, i. e., like the\\nEngland of Montesquieu s time. It has been adjudged\\nneedful, for some reason, to give a city government three\\nseparate departments executive, legislative and judicial.\\nAmerican publicists have seemed to recognize no other type\\nof government and to this fact it is, at least in some degree.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0352.jp2"}, "353": {"fulltext": "ON CITY CHARTERS 337\\ndue that our failures in this field have been so notably dis-\\ncreditable. This peculiar tripartite division of powers in\\ncities has been remarked upon by many excellent students of\\nour institutions and at last there seems to be a distinct\\ntendency at work to correct some of these inherited miscon-\\nceptions as to the form that should properly be given to a\\ngreat municipal corporation. The mayor s hands are being\\nstrengthened constantly and there is a movement afoot to\\ncentralize power in a few officers in a manner that some\\nearlier exponents of our democratic system might have re-\\ngarded as quite inconsistent with the rules of popular self-\\ngovernment. The movement toward a competent civil serv-\\nice under the direction of some central authority is, how-\\never, steadily going forward and there will not probably be\\nany backward step when it comes to be fully understood how\\ngreat is the need in cities of capable administrators who are\\nheld directly responsible to a few authorities possessing real\\npower over them. It is an instance in which the checks\\nand balances of government are grotesquely out of place,\\nif past experience in this country is to serve us as a guide.\\nIn this view, too, there is much positive corroboration com-\\ning from Europe where greater success in municipal govern-\\nment is being achieved by methods that we have been too slow\\nto adopt.\\nNevertheless it is possible to commit serious error if we\\nrely too fully on forms and insist upon a certain kind of\\ncharter as the only means to good government. A great deal\\nelse must be considered, though to avoid impracticable and\\nunworkable systems is, of course, an initial obligation. Pan-\\naceas in government have not yet been discovered, and al-\\nthough for this reason too much stress has been laid on\\nwhat is called the Home Rule principle as a corrective\\nfor present evils, it is in any event a very interesting devel-\\nopment and one that is to claim our special attention in this\\nCf Bryce, op. cit., Vol. I, pp. 623-24 Lowell, Governments and Par-\\nties in Continental Europe, Vol. II, p. 300.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0353.jp2"}, "354": {"fulltext": "33^ THE REFERENDUM IN AMERICA\\nchapter in so far as it has come to involve a direct vote of\\nthe people on their city charters.\\nIt is alleged that the population of a city is often so great\\nand its requirements so specific that it might better be a\\nfree city folding relations with the Federal govern-\\nment directly instead of only mediately and through the\\nState of which it is now a part. The interests of the rural\\nand urban portions of the State are so different that a legis-\\nlature common to both can minister well to the needs of\\nneither section of the population. Although the importance\\nof local self-government hag been recognized from the be-\\nginning in the United States, the power of the State legis-\\nlature over a municipality is so absolute that gross abuses\\nmay easily creep in. The legislature grants not only the\\ngeneral charter of incorporation from which the city derives\\nits self-governing powers, but it may pass bills from time\\nto time amending that charter and may withdraw it altogether\\nat its pleasure, supplanting it with another except as restraint\\nmay be found in the State constitution. The interferences\\nof th\u00e2\u0082\u00ac legislatures in city government have been so frequent\\nand disturbing in recent years that a general effort to check\\nthe tendency has been made, either by constitutional provi-\\nsion or by force of precedent upheld by public sentiment,\\nwith very interesting results in more than one State of the\\nUnion. There has sprung up a desire for Home Rule, the\\ncity being allowed to govern itself instead of being gov-\\nerned to so large an extent from the State capital by bills\\nand charters. Home Rule, indeed, has become a very\\npopular cry and it is plain, of course, that a serious evil\\nis at hand when the legislatures make improper use of their\\npower, as they can be convicted of doing in nearly all the\\nStates in which large cities exist.\\nTo go so far, however, as to recommend that the cities\\nshould be entirely emancipated from the supervision of the\\nState is a quite untenable position, though there is a marked\\ntendency for the cities to seek protection of the constitu-\\ntional conventions which do not meet so often, rather than", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0354.jp2"}, "355": {"fulltext": "ON CITY CHARTERS 339\\nplace themselves so fully as formerly under the direction\\nof the legislatures. To find some middle ground between\\ncomplete independence and absolute dependence is a prob-\\nlem that in many States we are now trying to solve. It must\\nbe admitted that we are still passing through the experimental\\nstages of the development and have not yet come to any\\nresult which may be regarded as generally satisfactory. And\\nmost of all it is important to keep the fact in mind that while\\nthis reform may have in view a great evil, and may really\\nclose one avenue to mischievous municipal government,\\nothers are likely still to remain open. If there is Home Rule\\nthere must be methods at home to secure proper and ef-\\nficient public administration, else home rule will not be better\\nthan rule at a greater distance. If the responsibility is to be\\nshifted, and what has formerly been done by the legislature\\neven though it was poorly done, is now to be prohibited to it\\nthere must be some capable body to stand in its stead. Here\\nit seems we are undertaking to introduce the whole electorate,\\nthe citizens at large, whose power is exercised through the\\nreferendum. The people are brought into our system, to\\nsupplement the legislature either i by accepting or vetoing\\na charter or local government act which the legislature may\\nsubmit to them; or (2) by approving or rejecting the char-\\nter as it is received from some local body designated to draft\\nit, in those States in which an attempt has been made by\\nconstitutional means wholly to eliminate the influence of\\nthe legislature.\\nIt is a very usual practice for some one high legal au-\\nthority or a committee of leading citizens to whom the task\\nmay be assigned by common assent of the people inhabiting\\nthe city, to prepare a charter which is then introduced into\\nthe State legislature as a bill and is regularly passed as an\\nincorporation act without change, or at any rate, with very\\nslight amendment and modification. It is but another step\\nto submit the charter to a vote of the people of the city who\\nare in future to be governed by it. Oddly enough this ref-\\nerendum is more usual in small than in large cities. The vote", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0355.jp2"}, "356": {"fulltext": "340 THE REFERENDUM IN AMERICA\\nupon abandoning village or town organization in favor of\\nincorporation as a city under a general law is in effect such\\na referendum. It is known in this case that if the poll shall\\nbe favorable to the proposition the terms of a specific law.\\nwill apply to the city ipso facto without more ado. Sim-\\nilarly when the people of a city of a certain class vote to\\nadvance its grade to another class, as when a third-class city\\nbecomes a second-class city in States in which cities are all\\nbrought under general laws, it is in effect a referendum upon\\na charter.\\nWe may pass these cases, however, which have been\\ntreated fully enough in an earlier chapter, and consider those\\ninstances specifically in which the people of a city vote\\ndirectly to accept or reject a particular charter which has\\nbeen submitted to them by the State legislature. For ex-\\nample, in Massachusetts various special acts for the in-\\ncorporation of towns and cities, or acts revising charters\\npreviously granted, are referred to popular vote. In 1896\\nan act to amend the charter of the city of Everett contained\\nthe following provision This act shall be submitted to the\\nvoters of the city of Everett who shall vote yes and no\\nupon the question of the acceptance of the several sections at\\nthe annual State election in the present year and only such\\nsections shall take effect as shall, at such election, be accepted\\nby the affirmative votes of a majority of the voters voting on\\nthe several sections at said election. Incorporation acts\\nfor cities in Massachusetts in recent years have frequently\\nbeen submitted to popular vote.^\\nIn Maryland also it is not uncommon for the legislature to\\nsubmit incorporation acts or amendments to the charters\\nof towns and cities,* and in Tennessee the same practice is\\nfollowed in certain cases which have been brought to my\\nnotice. The charter of the city of Harriman which was\\n*Acts of Massachusetts, 1896, p. 301.\\n^Cf. Acts of Massachusetts, 1896, pp. 205, 312, 364, 394, 419; Acts\\nof 1897, PP- 124, 191, 265.\\n*Laws of 1890, p. 118; Laws of 1894, p. 887; Laws of 1896, p. 608.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0356.jp2"}, "357": {"fulltext": "ON CITY CHARTERS 34i\\npassed by the legislature in 1891 was not to become ef-\\nfective until it had been ratified by popular vote. The law\\nsaid This act shall go into effect and be enforced from\\nand after its passage, the public welfare requiring it, to the\\nextent that it is hereby made the duty of the sheriff of Rome\\nCounty, in person or by one of his deputies, to hold on the\\nnineteenth day of May, 1891, at some public place within\\nthe boundaries defined in art. i, sec. 2, of this act an\\nelection at which all persons qualified to vote at the first\\nelection provided for in art. iv, sec. 4, shall be entitled to\\nvote, and the question shall be voted upon whether this\\ncharter shall be accepted or not, and those of such voters who\\nfavor the acceptance of this charter shall deposit their bal-\\nlots For Charter and those who oppose the acceptance of\\nthis charter shall deposit their ballots Against Charter\\nand if a majority of such voters shall vote in favor of the\\nacceptance of this charter, then this act from and after the\\ncanvassing of said returns, etc., shall go into effect and be\\nin force in every part thereof.\\nIn Oregon, likewise, charters of municipal corporations\\nare sometimes submitted to the people. Thus an act to in-\\ncorporate the city of P.oseburg says This act shall be sub-\\nmitted to the legal voters of the city of Roseburg at a\\nspecial election at which said election the ballots shall\\nbe written or printed as follows New Charter Yes\\nNew Charter No If a majority of the ballots cast shall\\nread New Charter Yes then this act shall immediately\\ngo into effect.\\nFurthermore in Vermont acts of incorporation are very\\nfrequently referred to the citizens residing within the dis-\\ntrict to be incorporated,^ and in Rhode Island in a law to\\nestablish the city of Johnston it was provided that this\\nActs of 1891, p. 93.\\nLaws of 1893, p. 458; cf. ibid., pp. 119, 228, 452, 504.\\nCf Laws of 1884, pp. 191, 203, 212; Laws of 1886, pp. 172, 184,\\n189; Laws of 1888, p. 260; Laws of 1890, pp. 79, 85, 92, 109, 121 Laws\\nof 1892, pp. 156, 174, 213; Laws of 1896, pp. 212, 225, 239, 247.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0357.jp2"}, "358": {"fulltext": "342 THE REFERENDUM IN AMERICA\\nact shall be submitted for acceptance to the qualified voters\\nof the town of Johnston An act to amend and reenact\\nthe charter of the city of Sistersville, in West Virginia,\\nwhich was passed in 1895, was not to take effect until it\\nbe ratified by a majority of the legal voters within the cor-\\nporate limits of said town of Sistersville\\nIn all these States yielding the cases which have just been\\ncited, however, a poll of the people is the exception rather\\nthan the rule. It is in Louisiana that a general system has\\nbeen evolved and introduced into the legislative procedure\\nin respect of charters, in Louisiana that the legislature has\\nvoluntarily surrendered to the people of towns and cities,\\nNew Orleans alone excepted, the right to determine under\\nwhat kind of a local government act they shall be organized.\\nThe steps which lead up to the referendum in this State\\nare as follows i The preparation of a charter by means\\nnot known to the law, presumably by a private organization\\nof men, or a committee of citizens. (2) The presentation\\nof this charter to the mayor and council of the town or city\\naccompanied by a petition signed by a majority of the\\nproperty owners residing within the corporate limits ask-\\ning that the proposed new charter shall be submitted to the\\nduly qualified electors to be adopted or rejected by them.\\n(3) An election to be held within ninety days from the date\\nof the filing of the petition, preceded by notices published\\nin the newspapers. If a majority of the votes cast at this\\nelection are in favor of the new charter the law provides that\\nit shall become the charter of said city or town and be duly\\npromulgated as such by the mayor\\nIn like manner when the charters of towns and cities\\n(barring New Orleans) are to be altered or changed it is\\ncontemplated that the amendments shall be submitted to\\npopular vote. Whenever a petition is received by the officers\\nof the city signed by one-third or more of the property\\nLaws of Rhode Island, 1897, chap. 516.\\nActs of West Virginia, 1895, p. 139.\\nWolff s Revised Laws of Louisiana, 1896, p. 567; cf. ibid., p. 566.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0358.jp2"}, "359": {"fulltext": "ON CITY CHARTERS 343\\ntaxpayers asking for a change in or an amendment of the\\ncharter the proposition must be referred to the people. If\\nmore than one amendment be submitted at the same time\\nthe means must be at hand for the voters to express their\\nviews in regard to each proposal separately. If a majority\\nof the qualified electors at such election shall approve and\\nratify such amendment or amendments the law provides\\nthat, the same shall be appropriately numbered and become\\na part of the charter and be proclaimed as such by the\\nmayor or other executive head\\nIt is of interest to note that the legislature here reserves\\nto itself no veto power over these charters which towns\\nand cities may adopt on their own initiation for their own\\ngovernment. It is assumed of course that the charters will\\nbe in harmony with general State laws that a municipality\\nwill not actually make itself an imperium in imperio, acting\\nover the head of the regularly established State govern-\\nment. Other agencies such as the courts failing to apply\\nthe necessary restraints a way would still be open to the\\nlegislature and one very near its hand. It could at any time\\nrepeal the law and enact such other legislation respecting\\ntowns and cities as the situation might seem to demand. In\\nno conceivable case could a town or city under this system\\nattain that position of independence which would release\\nit from the supreme authority and sovereignty of the State\\nlegislature in the sense that this singular result has been\\nattained in Missouri, California, Washington and Minne-\\nsota where the constitutions in specific terms take the char-\\nter-making power entirely out of the hands of the legis-\\nlature and place it with local agents. To charters which\\nare framed by local bodies and submitted to the people under\\nauthority derived from the State constitutions the discussion\\nwill immediately pass.\\nThere was injected into our legal system when the con-\\nvention met to frame a new constitution for Missouri in\\n1875 an entirely new principle, which though it has already\\nWolff s Rev. Laivs of La., p. 565.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0359.jp2"}, "360": {"fulltext": "344 THE REFERENDUM IN AMERICA\\nbeen accepted with greater or less modification in four\\nStates, can not yet be said to have got itself firmly estab-\\nlished in the American practice. This is because of the\\nconflict between authorities which is certain to be engen-\\ndered by a change so radical and complete. This reform was\\nnothing less than putting the city in a position in which it\\nholds direct relations with the constitutional convention in-\\nstead of with the legislature. The city adopts its own\\ncharter according to certain definite rules prescribed in the\\nconstitution. The legislature s authority in a sense ceases,\\nor is at any rate suspended, and although many questions\\ncalling for judicial interpretation^ which tend to confuse the\\nwhole subject, have arisen from time to time, municipalities\\nin some States have actually won a high degree of autonomy\\nby this method.\\nThe provision which found its way into the Missouri\\nConstitution of 1875 was especially designed to benefit St.\\nLouis. At that time the government of the city was viewed\\nwith dissatisfaction by very many people. Not only was it\\ndesired to eliminate the influence of the State legislature,\\nin so far as it might be expedient to do so, but it was hoped\\nthat a plan could be devised to separate the county of St.\\nLouis from the city of St. Louis, the two governments being\\nat that time co-extensive. The proposition finally took this\\nform that the people of St. Louis should elect thirteen\\ncitizens to serve as a Board of Freeholders Not only\\nshould this board draft and propose a city charter, but it\\nwas to be its duty also to prepare a Scheme for the sepa-\\nration of the city and county governments, the adjustment\\nof their relations and so forth. To ratify the Scheme\\nand charter the assent of a majority of all those electors\\nvoting on the two subjects at a special election called for\\nthis purpose was necessary, and this vote both propositions\\nreceived on August 22, 1876, when the referendum was\\nheld.^^ It was further provided in the Constitution that\\nConstitution of Missouri, art. ix, sees. 20-25 State ex rel. v. Sut-\\nton, 3 Mo. App. 388 State ex rel. v. Finn, 4 Mo. App. 347.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0360.jp2"}, "361": {"fulltext": "ON CITY CHARTERS 345\\namendments to the charter, if they were not presented more\\nfrequently than once in two years, might be proposed by\\nthe law-making authorities of the city They would be-\\ncome a part of the charter if they were approved by three-\\nfifths of those citizens voting on the subject at a general or\\nspecial election.^^\\nLest the city might consider itself too nearly free under\\nthis system, framing and adopting its own charter and\\namending the instrument as occasion might require, pro-\\ncesses which hitherto had been solely within the province\\nof the legislature, the convention made an important declara-\\ntion. It announced in specific language that notwithstand-\\ning the provisions of this article_, the General Assembly shall\\nhave the same power over the city and county of St. Louis\\nthat it has over other cities and counties of this State\\nand also that the charter and amendments shall always be\\nin harmony with and subject to the Constitution and laws\\nof Missouri\\nFurthermore, a section of a general character was inserted\\nin the Constitution of Missouri of 1875, extending the\\nprivilege of framing and adopting a freeholder s charter\\nto any city in the State having a population of more than\\n100,000, which rank Kansas City afterward attained. In\\nthis connection the convention declared again that the char-\\nter should always be in harmony with and subject to the\\nConstitution and laws of the State\\nThere are ideas here which are not in agreement in spite\\nof an appeal for harmony. The machinery is provided by\\nwhich a city may make itself independent of the legislature,\\nyet it is declared expressly that the legislature shall still\\nexercise its authority as before, i. e., shall pass laws for the\\nmunicipality. In Missouri s experience with the freeholders\\ncharter, which in the case of St. Louis dates from 1876,\\nand with reference to Kansas City from 1889, a considerable\\nbody of opinion on this point has been handed down by the\\nConstitution of Missouri, art. ix, sec. 22. Ihid., art. ix, sec. 25.\\nIbid., art. ix, sec. 16; cf. Acts of Missouri of 1887, p. 42.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0361.jp2"}, "362": {"fulltext": "346 THE REFERENDUM IN AMERICA\\ncourts. Although many questions touching the conflict of\\nauthority are still to be decided, a number of issues have\\nbeen disposed of. The legislature has gradually succeeded in\\nregaining nearly all its former power over these two cities.\\nThe privilege, which it was thought would prove so valuable,\\nhas been reduced to a rather empty form, as is fully evi-\\ndenced by the large number of State laws for the govern-\\nment of city affairs that now stand side by side with, and\\nare superior in authority to the city-made charters and\\nordinances. The Supreme Court of Missouri in 1889 said:\\nThe legislative power of the State is vested in a senate and\\na house of representatives, and, when it is declared that\\nany city of the required population may frame and adopt\\na charter for its own government, the right thus granted and\\nthe charter adopted is subject to legislative control. The\\nproposition that when any such city has adopted a charter\\nit is out of and beyond all legislative influence cannot be\\nsustained\\nThe Supreme Court earlier in 1884 speaking in the same\\nsense said It is argued that inasmuch as these sections\\nauthorized the voters of the city of St. Louis to frame and\\nadopt a charter for the government of the city which, when\\nadopted in the manner therein provided, should take the place\\nof and supersede the charter theretofore granted by the legis-\\nlature and all amendments thereto, as to all matters of local\\nself-government, an imperiiim in imperio was created and\\nas to such matters the city was emancipated from State and\\nlegislative control It is true that constitutional au-\\nthority was given to the people of the city to frame and\\nadopt a charter which should supersede the charter and all\\namendments to it in existence at the time of its adoption,\\nbut the idea that it was thereby intended to create a sover-\\neignty and deny to the State the right of control is, we\\nthink, completely overthrown by the limitations contained\\nin the Constitution itself\\nState ex rel. Kansas City v. Field, 99 Mo. 353.\\nEwing V. Hoblitzelle, 85 Mo. 64.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0362.jp2"}, "363": {"fulltext": "ON CITY CHARTERS 347\\nAlthough there are some opinions which seem to indicate\\na deviation from this principle, the rule in Missouri is fairly\\nset forth in the declaration given above, and general\\nlaws of very many sorts in reference to many different\\nsubjects are passed by the legislature which in intent and in\\neffect profoundly influence municipal government in St.\\nLouis and Kansas City.^^\\nThe second State to adopt a constitutional provision per-\\nmitting cities to frame their own charters was California. The\\nconvention which met in 1879 to prepare a new consti-\\ntution for that State determined to extend to San Francisco\\nthe same privileges which were already enjoyed by St. Louis.\\nThe proposition led to much discussion in the convention\\nand, although it had been approved by the Committee on\\nCity, County and Township Organization to which such\\nmatters were regularly referred, it met with considerable\\nopposition from those who pretended to fear that San Fran-\\ncisco would thus be enabled to cut loose from the rest of the\\nState. This is the boldest kind of an attempt at seces-\\nsion, one delegate said in the convention, and another pro-\\nposed an amendment to the article to the effect that the\\ncity should receive from the State all the privileges and\\nconsideration accorded to the most favored nations and\\nthat the legislature should provide a duly accredited min-\\nister as representative of the State in the said city So\\nmuch feeling hostile to the scheme was developed that an\\namendment had to be accepted by those members of the\\nconvention in charge of the measure and it was arranged\\nthat the charter, after being approved by the people of the\\ncity, should be submitted to the legislature an important\\nmodification of the plan which, however, must accept or\\nreject the instrument as a whole without power of altera-\\ntion or amendment\\nFor additional cases throwing light on this point in Missouri, see\\nKansas City ex rel. v. Scarritt, 127 Mo. 642; State e,r rel. Ziegenhein\\nV. Railroad, 117 Mo. i; State v. Bennett, 102 Mo. 356; Westport v.\\nKansas City, 103 Mo. 141.\\nOberholtzer, op cit., p. 93.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0363.jp2"}, "364": {"fulltext": "348 THE REFERENDUM IN AMERICA\\nThis section of the Constitution as it was adopted by the\\nconvention, the people of the State ratifying it at the polls,\\nwas to apply to any city containing a population of more\\nthan 100,000 therefore to San Francisco only. The city\\nmight elect a board of fifteen freeholders (thirteen in Mis-\\nsouri) who should frame a charter to be submitted after-\\nward to popular vote. If it were approved by a majority of\\nthe electors voting on the question of its acceptance or re-\\njection, it must be sent to the State legislature which must\\napprove or reject it as a whole by a majority vote of the\\nmembers elected to each house If it were ratified and\\nbecame the charter of the city it could be amended at in-\\ntervals of not less than two years on the initiation of the\\ncity s legislative body, should the proposed changes be ap-\\nproved by a three-fifths vote of the people and later by the\\nState legislature as in the case of the original charter.-^\\nAlthough San Francisco had failed to avail herself of this\\nprivilege in respect of her charter, the legislature proposed\\na constitutional amendment to the people of the State in\\n1886 reducing the limit of population from 100,000 to\\n10,000. This amendment was adopted at a special election\\nheld on April 2y, 1887, and opened the way to important\\nchanges in the fundamental law of a number of the less\\npopulous cities of California. At an election in 1890 the\\nprivilege was still further extended to include any city in\\nthe State containing more than 3,500 inhabitants The\\nfreeholders charter was thus brought within the reach of\\nevery municipality in California, except the villages and the\\nsmaller corporations, for whose government less anxiety is\\nfelt by those who interest themselves in city problems in the\\nUnited States.\\nThe first city in California to adopt a freeholders char-\\nter was Los Angeles. The city s initial attempt to take\\nadvantage of this privilege, however, was unsuccessful in\\nthat the charter when it was submitted to the people was re-\\njected and another Board of Freeholders had to be elected.\\nArt. xi, sec. 8, as it stood before it was amended.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0364.jp2"}, "365": {"fulltext": "ON CITY CHARTERS 349\\nThe second board drafted a charter upon which a referen-\\ndum was taken on October 20, 1888.-^ The State legislature\\nratified it on January 31, 1889, and it at once became the\\ncharter of the city, superseding acts earlier passed by the\\nState legislature. On November 6, 1888, the people of Oak-\\nland, Cal., approved a freeholders charter which was sub-\\nmitted to them. Stockton followed with a charter which\\nwas ratified by the people of that city on November 20, 1888,\\nwhile San Diego in December, 1888, elected freeholders\\nwho prepared a charter which was accepted by the people\\nat a referendum held on March 2, 1889. Sacramento, the\\ncapital city of the State, adopted a freeholders charter at\\nan election in May, 1892.^^ Grass Valley was the first city\\nm the State having less than 10,000 inhabitants to undertake\\nself-government. This was in the year 1893, and it was\\nclosely followed by Napa, Eureka and two larger cities,\\nBerkeley and San Jose. In 1899 three charters were pre-\\nsented for and received the approval of the legislature, these\\nbeing for San Francisco,^^ a city which had voted on this\\nquestion on repeated occasions, Vallejo and Santa\\nBarbara.^^\\nUp to this time the approval of the legislature has never\\nbeen withheld from a charter which the people of a city have\\nfirst ratified, though a favorable vote on the charter in the\\nreferendum within the city itself is by no means easy to\\nsecure. It has been especially difficult in San Francisco to\\npresent the draft of a charter which the people would accept.\\nThe first attempt of this kind was made in 1880 very soon\\nafter the new Constitution of California was adopted,, and\\nonly at the fifth election on this subject eighteen years later,\\nor in 1898, was a majority vote obtained in favor of a new\\nbody of fundamental law for that city. These elections\\nwere held on September 8, 1880, March 3, 1883, April 12,\\nThe vote was 2642 for the charter and 1890 against it.\\nStatutes of California of 1893, p. 545.\\nStatutes of California of 1899, p. 241.\\nIbid., p. 270. Ibid., p. 44S.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0365.jp2"}, "366": {"fulltext": "35\u00c2\u00b0 THE REFERENDUM IN AMERICA\\n1887, November 3, 1896, and May 26, 1898. Each time a\\nboard of freeholders had been elected which, sitting and\\ndeliberating and voting like a small constitutional conven-\\ntion, prepared and proposed a charter for San Francisco.\\nThe charter submitted in 1880 was overwhelmingly defeated.\\nThe total vote polled was 23,398, of which only 4,144 ballots\\nwere in favor of the charter, while 19,143 were cast\\nagainst it, the rest of the ballots being blanks It is\\nstated that the most active opposition to the charter of\\n1880 was on account of a provision introduced in the chapter\\nrelating to the health department, which provided that from\\nand after the year 1885 no human body should be buried\\nwithin six miles of the city hall. This would have closed\\neleven cemeteries within the city limits. The opposition\\nwas led by the Roman Catholic Church, and it was more\\neffective than any other force in insuring the defeat of the\\ncharter\\nThe second charter which was submitted in 1883 met\\nspirited opposition from the professional politicians who are\\nthought to have counted it out i. e., it was defeated after\\nthe polls were closed. The returns were unaccountably\\nslow in coming in, and the later returns were all against the\\ncharter. The reports from the first 59 precincts showed a\\nmajority of 1,000 for the charter, the final returns gave 32\\nagainst the instrument in a total vote of 18,764 Four\\nyears later, in 1887, when the third charter was submitted to\\nthe people it was foredoomed to failure in the view of most\\npersons, though it called out a larger number of votes than\\neither of the other two charters. The majority against it\\nat the election was about 4,000 votes. There was then a\\nlull in charter making in San Francisco for several years.\\nThe next charter was drafted in time for its submission to\\nthe people at a special election which was to have been held\\non April 16, 1895, but the poll was delayed until the general\\nelection in 1896, when there were 15,879 ballots cast for the\\nSan Francisco Argonaut of November i, 1897.\\n2^ Ihid.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0366.jp2"}, "367": {"fulltext": "ON CITY CHARTERS 35 1\\ncharter and 17,978 against it, there having been a majority\\non the wrong side, therefore, of more than 2,000 votes. The\\ntotal number of votes polled for candidates at this election\\nwas 64,815. Thus it appears that every other person who\\nvoted for individual candidates for office had so little interest\\nin the subject of the charter that he did not declare himself\\neither for or against it.-^ It was believed that the attention\\nof the voters had been diverted by larger issues. A con-\\nviction spread therefore that when next a charter should be\\ndrafted, it should be submitted at a special, rather than a\\ngeneral election, and the fifth attempt was made on May\\n28, 1898, when a majority of about 2,000 votes was re-\\ncorded in favor of the document, so that the long and tedious\\ncontest between the politicians and the friends of good\\ngovernment in San Francisco was at last brought to an end.\\nThe charter was ratified by the State legislature at its session\\nof 1899. It went into eft ect on January i, 1900, and a better\\nera in the political life of the city is now confidently looked\\nforward to. From the beginning the elements in control\\nof the political machine in San Francisco have steadily op-\\nposed the charters which have been drafted by the free-\\nholders. They have expressed a preference for the old sys-\\ntem of taking municipal law from the State legislature, a\\nmethod which they understood and by which they could\\nsecure for themselves large benefits. It is scarcely to be ex-\\npected that they will not discover a mode after a while of\\nadvantaging by the freeholders charter, but they will at any\\nrate be under the rather unpleasant necessity of conducting\\nsome experiments with popular government in another and\\nan unfamiliar form.\\nThe new charter was supported by a number of clubs and\\nIn a letter from the office of the mayor of San Francisco, explain-\\ning the small vote for this charter, T am told The interest of the citi-\\nzens, being centered on the national ticket and the local ticket, naturally\\ndiverts attention from the charter and, as a consequence, the one which\\nwas passed was presented at a special election at which there was no\\nother issue and experience has shown us that this is the only way an\\ninstrument of this kind can be adopted.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0367.jp2"}, "368": {"fulltext": "352 THE REFERENDUM IN AMERICA\\norganizations devoted to municipal reform and the campaign\\nin its behalf was ably led and actively prosecuted. The\\nCitizens Charter Association issued an address to the\\npeople in which they said: We appeal to all good citizens\\nto endorse the work of their freeholders elected last De-\\ncember and thus crystallize into law an honest eflort to save\\nSan Francisco from the rule of the bosses, the water, lighting\\nand railroad corporations and allied interests which have\\ndaily dealings with the city government and which have in\\nthe past and will in the future, unless they are restrained,\\ndebauch our politics, rob the people and paralyze the orderly\\noperation of the law. The people can amend it from\\ntime to time if it prove defective but they can never have a\\nnew charter offered to them except by again invoking the\\nelaborate machinery required by the constitution for the sub-\\nmission of a freeholders charter. This is the fifth charter\\noffered to the people. Give it a fair trial and thus do your\\nduty to your municipality.\\nIt is this charter which introduces the initiative and the\\nreferendum of the Swiss pattern into the city practice, and\\nmakes other striking reforms in municipal government, the\\nworking out of which students of political institutions in this\\ncountry will watch with attention and close interest. Thus\\nwhile San Francisco was the first city to put forth an effort\\nto secure Home Rule in California it is^ at this writing,\\namong the last in the State to have availed itself of the\\nprivilege extended it by the constitution.\\nSome interesting points in connection with these self-\\ngoverning cities of California have been brought out in the\\njudicial opinions emanating from the higher State courts.\\nThe Constitution of the State provided that a charter, when\\nit had been approved by the people of the city should be\\nsubmitted to the legislature for its approval or rejection\\nand if accepted by a majority vote of the members elected\\nto each house it should become the charter of such city.\\nThe question arose as to whether the charter should not also\\nbe approved by the Governor as in the case of ordinary bills.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0368.jp2"}, "369": {"fulltext": "ON CITY CHARTERS 353\\nFour charters had been accepted by the CaHfornia legis-\\nlature in 1889 and in each instance this was done by joint\\nresolution. It was argued in behalf of Los Angeles that\\napproval by this method would not suffice. The signature\\nof the Governor of the State should be required as in the\\ncase of ordinary legislation. The Supreme Court to which\\nthe question came for a decision drew attention to the spe-\\ncific statement in the constitution that the charters should be\\nsubmitted to the legislature Now the Governor was no\\npart of the legislature. He was a part of the general law-\\nmaking authority of the State, but this was one thing and\\nthe legislature was another and a different thing.^^ There-\\nfore the process had been a regular one and the one that\\nhad been contemplated by the framers of the constitution.\\nThis section of the constitution in the course of its various\\nchanges and editings was later amended in this particular.\\nIt was specified that the charter should be submitted to the\\nlegislature for its approval or rejection. Such\\napproval may be made by concurrent resolution and if ap-\\nproved by a majority vote of the members elected to each\\nhouse it shall become the charter of such city etc. Lan-\\nguage so plain will avoid any further question with respect\\nto this interesting^ if rather technical point.\\nIn California as in Missouri, it has been difficult to deter-\\nmine just how comprehensive are the powers of the State\\nlegislature over cities which have adopted freeholders\\ncharters. To lay down definite rules regarding this matter\\nseems to be quite out of the question. In the nature of the\\ncase the task is rendered well nigh impossible. Some rather\\ndistinctive results have been arrived at, however, in Cali-\\nfornia by reason of the careless wording of the constitution,\\nas it left the hands of the convention in 1879. In one sec-\\ntion, for instance, the constitution declares that cities and\\ntowns heretofore or hereafter organized, and all charters\\nthereof framed or adopted by authority of this constitution,\\nshall be subject to and controlled by general laws This\\n^Brooks V. Fischer, 79 Gal. 173. Art. xi^ sec. 6.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0369.jp2"}, "370": {"fulltext": "354 THE REFERENDUM IN AMERICA\\nstatement appeared however to be in conflict with the sec-\\ntion which extended to cities the right to frame their own\\ncharters, free from the intervention of the legislature. In\\n1890 this seeming contradiction drew forth an opinion from\\nthe Supreme Court of the State. The legislature had passed\\na general law in reference to streets to apply to all the cities\\nof California. Los Angeles, having provisions of a different\\nkind in the freeholders charter which the people had re-\\ncently approved and the legislature had ratified, desired ex-\\nemption from the law, but this was refused. The court\\nsaid A charter like the one under which the city of Los\\nAngeles exists is subject to general laws and a statute like\\nthe one now attacked is a general law within the meaning\\nof the constitution. It is useless to discuss the propriety\\nof allowing the legislature to interfere by general laws with\\nthe local affairs of a city. The constitution so provides in\\nplain terms and so far as the courts of the State are con-\\ncerned this must settle the controversy. If the power given\\nthe legislature to enact laws of this kind is an evil affecting\\nthe rights of the city government the remedy is by amend-\\nment of the constitution\\nActing upon the advice of the court the people of the cities\\nconcerned were not long in seeking this remedy. Los An-\\ngeles was not alone in her dissatisfaction at being put under\\nso much restraint. San Diego and other cities which had\\nadopted freeholders charters in order to get free of the in-\\nterfering legislation of the General Assembly were ready to\\ndeclare that such a restriction went far to nullify the advan-\\ntages of the new system. And so in fact it did. The consti-\\ntution declared that the charter which the freeholders framed\\nshould be consistent with and subject to the constitution\\nand laws of this State that it should be approved by a\\nmajority vote of the members elected to each house of the\\nState legislature. But it also declared that the charter so\\nadopted shall supersede any existing charter and all amend-\\nments therecf and all special laws inconsistent with such\\nDavies v. City of Los Angeles, 86 Cal. Z7-", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0370.jp2"}, "371": {"fulltext": "ON CITY CHARTERS 355\\ncharter while elsewhere in the constitution it was provided,\\nas we have noted, that all charters framed or adopted by\\nauthority of this constitution shall be subject to and con-\\ntrolled by general lav;s How were such inharmonious\\nprovisions to be brought into agreement? The proposition\\nwas to amend the constitution by striking out the word\\nspecial which I have italicized, so that this clause thence-\\nforth would read And supersede any existing charter\\nand all amendments thereof and all laws inconsistent with\\nsuch charter the presumption being that all laws would\\ninclude inconsistent general laws as well as those of a\\nspecial nature. This amendment was approved by the\\nlegislature on March 19, 1891, and was submitted to the\\npeople of the State who adopted it November 8, 1892, by a\\nvote of 114,617 to 42,076.\\nThe California cities by this amendment were led to believe\\nthat they would enter upon an era of fuller emancipation\\nfrom the influence of the State legislature. Though to a\\ndegree they have been disappointed in this hope, they never-\\ntheless occupy a unique position among their sister munici-\\npaHties in this country. The Supreme Court of California\\nin defining the rights of the cities in this particular in a\\nrecent opinion said In all matters which may affect the\\nState at large or whenever any legislation is in its judgment\\nappropriate for all parts of the State it [the legislature]\\npossesses all the legislative power of the State that has not\\nbeen specifically denied to it, and upon whatever subjects\\nits power to pass a general law exists such general law must\\nbe the controlling rule of action in all parts of the State and\\nover all its citizens A subject of this general character\\nthe court held the public school system to be. The laws in\\nreference to public education are of general and uniform\\napplication, even in cities which have framed their own\\ncharters and may have adopted other and conflicting pro-\\nvisions regarding this question.^- There can be no t?scape\\nfrom the conclusion that the position taken by the judges\\nKennedy v. Miller, 97 Gal. 429.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0371.jp2"}, "372": {"fulltext": "356 THE REFERENDUM IN AMERICA\\nin this case is thoroughly sound, and also no escape from\\nanother conclusion namely, that absolute rules in this field\\ncannot be wisely established. To make a city wholly free\\nfrom the State legislature s control is a foolish ideal, as\\nwrong in principle and theory, as it would be impracticable\\nin its realization.\\nWhen the convention met in 1889 to draft a constitution\\nfor the new State of Washington, California s Constitution\\nwas looked upon as a valuable source of legal and political\\nforms for its neighbor commonwealth on the Pacific coast.\\nMany members of the convention had received their civic\\ntraining in California and among the features which they\\ndesired to introduce in the Washington Constitution was this\\nsection in reference to freeholders charters in cities. After\\na rather prolonged discussion of the subject by the delegates,\\na provision quite similar to that which is found in the Consti-\\ntutions of Missouri and California was adopted, to apply to\\nany city in the State containing a population of at least\\n20,000. With this figure as a minimum it was provided that\\na board of fifteen freeholders should be elected to draft a\\ncharter and refer it to the people of the city for their ap-\\nproval or rejection. If it should be approved by a majority\\nof those electors voting on the subject at a general or special\\nelection it would come into effect at once as in Missouri. In\\nWashington there was no provision like that in California,\\nrequiring that the charter should be referred to the State\\nlegislature for its approval also. Amendments might be-\\nproposed by the legislative authority of the city, and they\\nbecame parts of the organic law of the municipality when\\nthey were ratified by a majority vote of the people as in the\\ncase of the original charter.^^ Seattle, Tacoma, Spokane,\\nand perhaps one or two other cities, have adopted freeholders\\ncharters, in the manner prescribed by the constitution, and\\nthe experience of a few years has furnished useful testimony\\nas to the value of this important municipal reform.\\n^^Constitution of Washington, art. xi, sec. lo; cf. Ballinger s Codes\\nand Statutes of the State of Washington, sees. 734 et ieq.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0372.jp2"}, "373": {"fulltext": "ON CITY CHARTERS 357\\nPatterning its work after a similar provision in California\\nthe convention in the State of Washington fell into the same\\nerrors and inconsistencies which in the former State it has\\nbeen necessary to correct by constitutional amendment.\\nThe constitution provided that the charter which the city\\nshould frame for its own government should be consistent\\nwith and subject to the constitution and laws of the State\\nIt declared furthermore that all charters adopted by au-\\nthority of the constitution including freeholders charters\\nshould be subject to and controlled by general laws\\ngoing on to specify that the freeholders charter when\\nadopted by a vote of the people should supersede any ex-\\nisting charter including amendments thereto and all special\\nlaws inconsistent with such charter This of course is\\nan exact literal transcript of the corresponding provision\\nin the Constitution of California prior to the amendment of\\nthat instrument in 1892. By general laws the State legis-\\nlature may circumvent the constitutional guaranty to the\\ncities and prevent the attainment of the very object which\\nthe makers of the constitution all the while had in view. Up\\nto this time, however, no organized effort has been made in\\nWashington to find a remedy such as has been sought out\\nand applied in California.\\nThe Supreme Court of the State has been called upon sev-\\neral times to fix a boundary of authority between the State\\nlegislature and the new semi-independent city, but without\\nmarked success. We are asked to remember for example\\nthat these provisions in regard to cities are somewhat un-\\nusual and extraordinary provisions and that they are indirect\\nrestrictions on the power of the legislature which can pre-\\nscribe rules for the government of every municipal corpor-\\nation but these The court on several occasions, how-\\never, has upheld the legislature in measures to restrain the\\ncities from exercising their independent powers in respect\\nof general State matters. In denying the right of the city of\\nTacoma to establish a special tribunal and clothe it with\\nState ex rel. Siiell v. Warner, 4 Wash. 773.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0373.jp2"}, "374": {"fulltext": "358 THE REFERENDUM IN AMERICA\\npower to try contested election cases the Supreme Court\\neffectually discredited the claim that cities which had\\nadopted freeholders charters were invested with all the\\nauthority to legislate upon local matters that had theretofore\\nbeen exercised by the legislature\\nAnd again when it was necessary to call attention to the\\nfact that the right of eminent domain still adhered to the\\nState government, even after the cities had taken advantage\\nof this provision of the constitution and had become in a\\nmeasure self-governing, the court said Because the con-\\nstitution permits certain cities to frame charters for their\\nown government is no sufficient reason for their assuming\\na branch of the sovereignty of the State which has no ele-\\nment of municipal government in it.^^\\nThe fourth State to permit cities to frame their own\\ncharters under constitutional guaranty is Minnesota which\\nhas only very recently introduced this reform into her sys-\\ntem. At the general election in 1896 the people of the State\\nby a vote of 107,086 to 58,312 adopted a constitutional\\namendment which conferred a large degree of independence\\nupon the cities (and villages) of Minnesota. The amend-\\nment was itself amended respecting some slight details in\\n1898. There are several interesting and notable features\\nof the system as it has been worked out in Minnesota which\\ndifferentiate it from the corresponding provision in Missouri,\\nCalifornia and Washington. There is absolutely no mini-\\nmum as to population. Any city or village may frame\\nits own charter which it is to receive from a board of fifteen\\nfreeholders. This board, however, is to be a permanently\\nconstituted body appointed by the district judges of the ju-\\ndicial district in which the city or village is situated, instead\\nState V. Superior Court, 14 Wash. 604.\\nTacoma v. The State, 4 Wash. 64 cf. State ex rel. Wiesenthal v.\\nDenny, 4 Wash. 135 State ex rel. Snell v. Warner, 4 Wash. 773 j Sey-\\nmour V. Tacoma, 6 Wash. 138; Howe v. Barto, 12 Wash. 627; State ex\\nrel. Seattle v. Carson, 6 Wash. 250.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0374.jp2"}, "375": {"fulltext": "ON CITY CHARTERS 359\\nof being elected by the people as in the other States. The\\nfreeholders are appointed for six years (by the original\\namendment of 1896 for life) and vacancies by reason of ex-\\npiring terms or for any other cause are filled in the manner\\nin which the members were first chosen. The board must\\nalways contain its full complement of members The\\ncharter must be submitted to the people and a four-sevenths\\nmajority vote is necessary for its ratification. The board\\nof freeholders also proposes and submits charter amend-\\nments which are adopted when ratified by three-fifths of\\nthose voting upon them at a city election, though five per\\ncent of the legal voters of any city or village may originate\\nand can compel the freeholders to refer any desired amend-\\nment to popular vote.\\nNeither the charter nor an amendment needs the approval\\nof the legislature. State supervision and control over the\\nmunicipality are secured by other means. It is provided\\nin the first place that the charter shall be in harmony with\\nand subject to the constitution and the laws of the State\\nIt shall supersede any existing charter and amendments\\nthereof but it is expressly permitted of the legislature, if\\nit selects to avail itself of the privilege, to pass general laws\\nwhich shall be in force in the cities and villages coincidently\\nwith the freeholders charters. Four classes of cities may be\\nlegislated for in this general way (three classes by the orig-\\ninal provision of 1896). These are as follows: (i) Cities\\nhaving more than 50,000 inhabitants; (2) cities having\\n50,000 and not less than 20,000 inhabitants; (3) cities con-\\ntaining a population of 20,000, and not less than 10,000, and\\n(4) cities containing 10,000 or a less number of inhabitants.\\nThese general laws with respect to the cities within any given\\nclass are to be paramount while in force to the provisions\\nrelating to the same m.atter included in the local charter\\nherein provided for In no case and under no circum-\\nstance shall a provision of a local charter or any ordinance\\npassed by its authority supersede any general law of the", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0375.jp2"}, "376": {"fulltext": "360 THE REFERiENDUM IN AMERICA\\nState defining or punishing crimes or misdemeanors In\\nthis field the State is to be supreme.\\nAs indicating an attempt to exercise a certain restraint over\\nthe city and as illustrating the persistency with which we\\ncling to old forms in local government in the United States,\\nit is interesting to note a provision in this new section of the\\nConstitution of Minnesota, specifying that in any charter\\nsubmitted to the people by these boards of freeholders the\\nscheme of government shall include a mayor or chief\\nmagistrate and a legislative body of either one or two\\nhouses If there are two houses at least one of them\\nshall be elected by general vote of the citizens\\nSummarizing and recapitulating a little, we find that m\\nall four of the States in which the cities may adopt their own\\ncharters Missouri, California, Washington and Minnesota\\nthese instruments are framed by a Board of Freehold-\\ners i. e., a committee of citizens of the municipal district\\nfor which the new scheme of government is intended. This\\nboard is composed of fifteen members, except in the case of\\nMissouri where thirteen suffice. In all the States but Min-\\nnesota this body is elected by the people of the city with the\\nsingle special task of drafting a charter. In Minnesota the\\nmembers are appointed by the local judges and the board\\nis a permanent body the members serving for a term of six\\nyears, reappointments being made and vacancies being filled\\nby the same authority.\\nThe privilege is restricted to cities containing a certain\\ndefinite number of inhabitants, except in Minnesota where\\nall cities and villages, no matter what their size, may frame\\ntheir own charters. In California the lowest limit is a pop-\\nulation of 3,500 (earlier 10,000 and still earlier 100,000)\\nin Washington 20,000 and in Missouri 100,000. In all\\nfour States the charters, being drafted, are submitted to the\\npeople for their approval, a simple majority vote sufficing\\nin St. Louis and in California and Washington, a four-\\nConstitution of Minnesota, art. iv, sec. z^ General Laws of Minne^\\nsota for 1897, p. 507; cf. ibid., p. v and pp. 473 et seq.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0376.jp2"}, "377": {"fulltext": "ON CITY CHARTERS 361\\nsevenths majority being necessary in cities of Missouri other\\nthan St. Louis (Kansas City) and in Minnesota. In one\\nState, California, the charter when it has been adopted by\\nthe people must be subsequently referred to the State legis-\\nlature, though for its approval or rejection as a whole\\nwithout power of alteration or amendment in details.\\nAmendments to the charter in three States Missouri, Cal-\\nifornia and Washington may be proposed by the legisla-\\ntive authority of the city and in the fourth, Minnesota, by\\nthe permanently constituted board of freeholders or by five\\nper cent of the legal voters of the municipality. The\\namendments must be submitted to the people of the city, as\\nwere the original charters, and must be approved by them,\\na three-fifths vote being necessary in Missouri, California\\nand Minnesota, a simple majority sufficing in the State of\\nWashington. In California amendments like the charters\\nmust be ratified by the State legislature.\\nThe freeholders charters are subject to general laws\\nof the State legislature by express provision in Minnesota,\\nand by fair implication in Missouri and Washington. In\\nCalifornia the constitutional amendment of 1892 has made\\nthe cities more free than they earlier were, though in the\\nnature of the case they are still under the legislature s\\nsupervision in respect of general State matters. In no one\\nof the four States up to this time have the boundaries be-\\ntween State and local authority been clearly defined and\\nappeals to the courts are frequent with a view to determining\\ndisputed points which constantly arise.\\nIt is interesting in this connection to consider a measure\\nlooking to the greater independence of cities from the in-\\nfluence of the State legislature which was lately adopted\\nin New York. The convention which met to revise the\\nConstitution of that State in 1894 was appealed to in behalf\\nof the larger cities whose local affairs were being greatly\\ndisturbed by legislative interferences, and there were some\\nof the delegates who w^ould have been willing to go so far\\nalong the line of Home Rule as to introduce a provision per-", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0377.jp2"}, "378": {"fulltext": "3^2 THE REFERENDUM IN AMERICA\\nmitting municipalities to frame their own charters. A\\nnumber of amendments relative to Home Rule for cities\\nwere proposed by various delegates to the convention. At\\nleast two of these propositions were derived directly from\\nthe Constitutions of Missouri, California and Washington.^^\\nSuch a step, however, seemed like a long one. There were\\nmany of the more conservatively minded who desired that\\nthis subject should be approached from another direction,\\nand a scheme therefore was devised which is in fuller har-\\nmony with the representative system of government.\\nThe cities of the State are divided into three classes. The\\nfirst class includes all cities having a population of 250,000\\nor more; the second class, cities having 50,000 inhabitants,\\nbut less than 250,000; the third class all cities containing\\nless than 50,000 inhabitants. The legislature may pass gen-\\neral laws for all the cities of the State, or for all the cities of\\na certain class, at will without consultation with any local\\nauthority, but in respect of special laws which relate to one\\ncity or several cities (not all) of a class the measures must\\nbe first transmitted to the particular municipality or munic-\\nipalities affected by the proposed legislation. When any\\nsuch bill, whether it be a charter, a bill to amend a charter,\\nor any other special law relating to city government, has\\nbeen passed by both houses of the legislature it is sent to\\nthe mayor of the city to which it refers. He is not author-\\nized to submit the bill to popular vote, but he can arrange\\nfor a public hearing, when all persons who have an interest\\nin the subject may appear to present their objections to the\\nmeasure should they have any. In all cities of the State,\\nexcept those of the first class, where the matter is entirely\\nin his own hands, the mayor is to act concurrently with the\\nlocal legislative body in performing this unusual function,\\nand within fifteen days in the name of the city he must return\\nthe bill to the State legislature with his approval or his veto.\\nCf. Proposed Constitutional Amendments of the New York Con-\\nstitutional Convention, Vol. I, no. 113 by Mr. Tucker, and uo. 139 by\\nMr. Turner.", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0378.jp2"}, "379": {"fulltext": "ON CITY CHARTERS 3^3\\nIf the legislature has already adjourned and the session has\\nterminated the bill with the mayor s certificate is sent to the\\nGovernor. Should the bill be accepted by the locality to\\nv/hich it relates, it is still subject to the Governor s veto. He\\nmay disregard the legislature s and the city s wishes in such\\na matter if he believes his course to be for the welfare of\\nthe State. Should the bill be disapproved of by the mayor\\nor should it be held by that officer beyond the constitutional\\nlimit of time fifteen days it may nevertheless again be\\npassed by the legislature. Then too, however, it is still sub-\\nject to the action of the Governor, as are other bills. It is\\nprovided furthermore that any such special law shall plainly\\nindicate in its title whether it has been accepted by the\\ncity or whether it has been passed without the accept-\\nance of the city\\nOf all the devices which have been proposed as a\\nmeans of protecting American cities from the undue inter-\\nference and the increasing meddlesomeness of the State leg-\\nislatures, whose members through ignorance or lust of power\\nand gain, have driven us to the point of seeking these im-\\nportant constitutional reforms, the system so recently\\nadopted in New York will most commend itself to the judg-\\nment of careful students of this subject. As universal as\\nthe prohibition of it has become in the past quarter century,\\nwe are beginning to realize that in the very nature of things\\nspecial legislation for localities is sometimes necessary.\\nThere are matters of local administration which cannot be\\nsatisfactorily brought under a general head. For the good\\nof the city or other community which the system was in-\\nvented and designed to protect special laws are demanded.\\nTo prohibit them was a temporary expedient and a makeshift\\nat best. It was an outgrowth of the irrepressible conflict\\nbetween the constitutional convention and the legislature\\nwhich has been in progress for so many years. The leg-\\nislature has shown a marked incapacity to perform the great\\ntasks heretofore assigned it, therefore we will restrict it in\\nConstitution of New York as amended in 1894, art. xii, sec. 4", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0379.jp2"}, "380": {"fulltext": "364 THE REFERENDUM IN AMERICA\\nthe exercise of its authority and distribute the power among\\nother agents, argued the makers of the constitutions. It\\nwas perceived that great evils had crept into the system of\\ngovernment within the States by reason of the development\\nof modern cities. Through their influence there was a\\nlowering of moral standards in the legislatures, and a serious\\ninterference with a natural working out of political problems\\nin these great urban districts as well as in the rural parts of\\nthe State. The conventions sought, therefore, to divide all\\nlegislation of this kind into two kinds, general and special\\nlegislation. What the legislature desired to do in respect\\nof the different localities under its authority the constitu-\\ntions required it to embody in general laws which should\\napply not to one specific city, but to all cities or localities\\nof a general class.\\nI have noted in earlier chapters to what dishonest subter-\\nfuges this prohibition has led. Classes have been created\\nwhich contain but a single city or a single county, and al-\\nthough we may dismiss the subject by throwing the blame\\nupon the legislature which takes this course in order to evade\\nthe plain intent and purpose of the law and resume its old-\\ntime activity as a creator of evil and confusion in local gov-\\nernment, there is no escaping the thought that the legislature\\nis only seeking to do that which it ought to do, and that\\nwhich there is real need that it should do. No\\nwell informed person would contend that the legis-\\nlature is not the rightful custodian of this authority\\nunder our system of government. Municipal corporations\\nare the creations of the State legislatures except in so far\\nas this relation has been altered by recent changes in the\\nState constitutions. In the natural course of events we\\ncannot conceive of the legislatures having lost any consider-\\nable part of the full measure of their authority over the\\nmunicipalities if the power had not been abused, and gross\\nblunders had not been committed in the field of local gov-\\nernm.ent. It was an extreme measure which may have had\\njustification in the seriousness of the evil it was meant to", "height": "3638", "width": "2319", "jp2-path": "referenduminamer00ober_0380.jp2"}, "381": {"fulltext": "ON CITY CHARTERS 3^5\\ncorrect, though it bears some resemblance to the case of the\\nowner barricading the windows and doors of his house to\\nkeep out marauders, while he must himself enter it by the\\nchimney.\\nAs the prohibition of special laws was a radical step we\\nmust regard the attempt of Missouri, California, Washing-\\nton and Minnesota to solve this problem in the same light.\\nA charter for a city might as well be adopted by the mem-\\nbers of a board of freeholders elected by the citizens, if they\\nwere persons competent to frame such a charter, as by any\\nother committee of persons. But experience has demon-\\nstrated that the city to a greater or a less extent must still be\\nsubject to the legislative and institutional system of the State\\nwithin which it is situated and of which it is a part. In\\nevery instance it is recognized that the charter so adopted\\nmust be consistent with and subject to the constitution\\nand laws of the State Our better judgment tells us, and\\ntheory and experience enforce us in the opinion that the city,\\nhowever great a degree of independence it may have appar-\\nently attained, cannot be really free of the legislature s super-\\nvising control. Many subjects must still be regulated by\\nuniform laws and judicial opinion has been very generally\\non the side of the legislature whenever conflict of authority\\nhas arisen between the city and the State.\\nNo other view can be entertained despite the fact that\\nState laws oftentimes appear to be onerous to local interests\\nwhich, being partially freed from outside restraint, would\\nprefer a still larger measure of independence. The free-\\nholders charter which the people adopt by a plebiscite, it\\nmust be acknowledged, is yet passing through its experi-\\nmental stages and although it marks a tendency, it cannot\\nbe said to be an ultimate thing. That, to avoid needless dis-\\nputes as to authority which the judiciary must constantly\\narbitrate, some device is required is evident when Minne-\\nsota s recent suggestion is taken into account. In that\\nState it is plainly recognized that the city must be under the\\nlegislature s direction as before, and the constitution provides", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0381.jp2"}, "382": {"fulltext": "o\\n66 THE REFERENDUM IN AMERICA\\nthat, though th fey may have their freeholders charters cities\\nmust at the same time hve under general laws which in\\ntheir own province are to be paramount while in force to\\nthe provisions relating to the same matter included in the\\nlocal charters. There can be no dispute here, for whenever\\nthe local charter and the general law overlap and conflict the\\nconstitution states specifically that the general law shall have\\nthe precedence.\\nThere is still, by the Minnesota system, however, no room\\nfor special legislation in reference to cities. To find a\\nsystem harmonizing this idea with the idea of Home Rule,\\nby which municipalities may in some degree determine the\\ncharacter of the laws passed for their own government, has\\nbeen reserved for New York. In New York since the con-\\nstitution was revised in 1894 the enactment of special laws\\nrelative to cities is permitted of the legislature, but these laws\\nas bills must be referred to the municipal authorities of the\\ncity which is directly affected by them. The mayor of the\\ncity may give the bill submitted to him a public hearing and\\nhe may veto it, if he sees fit, though his veto is without any\\neffect if the legislature chooses to pass the measure over his\\nnegative and the governor chooses to sign it. It becomes\\na law anyhow, though in that event it is expressly declared\\nin its title, for the information of all whom it may concern,\\nthat it was passed without the acceptance of the city\\nThis constitutional provision legally opens the way to special\\nlegislation, when the State legislature may adjudge such\\nlaws to be needful. It requires that all such acts shall be\\nreferred to the regularly delegated officials within each city,\\nwhose government the legislature proposes to change,\\nthough it recognizes the supreme authority of the legislature,\\nthe governor and other agencies to which the general wel-\\nfare has been committed by the sovereign people, when it\\nprovides a method for the enactment of the law in spite of\\npossible petty local hostility.\\nThus while some difficulties are put in the way of special\\nlegislation for cities it is not made wholly impossible. The", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0382.jp2"}, "383": {"fulltext": "ON CITY CHARTERS 3^7\\nreference of the bill to the locality to be affected by it affords\\nan opportunity for public discussion of the subject, and\\nshould it really be an unworthy measure, it is reasonable to\\nthink at least this is the underlying- theory that it could\\nnot be so easily passed a second time in the face of local dis-\\napproval. Whatever the final outcome of this interesting\\ncontest between the city and the State, regarding municipal\\ngovernment, it is plain that we are all the while tending\\ntoward results which promise soon to be more definite, and\\nit may be hoped more satisfactory to all the important inter-\\nests involved. If New York has taken a step in this direc-\\ntion and has proven herself wise beyond her sister States\\nm the treatment of this question her example, it may be\\ninferred, will be generally followed throughout the country\\nwithin a very few years.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0383.jp2"}, "384": {"fulltext": "CHAPTER XV\\nTHE INITIATIVE IN AMERICA\\nUp to this point we have been devoting our attention chiefly\\nto the referendum, an institution which is clearly of ancient\\nlineage in the United States, but which recently has been ma-\\nking history for itself in some parts of the Union at a par-\\nticularly rapid rate. Only incidental allusions have been\\nmade to the right of the people themselves to initiate legisla-\\ntion, a subject which is to be considered in a general way\\nin the present chapter. It would seem that the referendum\\ncould scarcely exist anywhere without the initiative, and the\\nexperience of the American States certainly does not mark\\nthem out as exceptions to the rule in this respect. In\\nSwitzerland the one is closely associated with the other and\\nwhenever a reformer of our constitutional system in the\\nUnited States, of whom there are now so many, proposes\\nthe referendum, as a means of clearing the atmosphere of\\nmuch that is evil in our political life, he in the same\\nbreath asks that the initiative shall be given a trial also.\\nThe initiative and the referendum, the initiative being\\nmentioned logically first, have been introduced as insepar-\\nable parts of a whole into the legislative practice of South\\nDakota, Nebraska, California, Iowa and the city of San\\nFrancisco and they exist together in fact, if not in name, in\\nnearly all the States of the Union. For what is the system\\nof petition for the passage of a law but the initiative? It\\nis true that the dearly bought right of the people to petition\\ntheir kings and governors for a redress of grievances, of\\nwhich we still see many surviving forms even in free states,\\nis not the right of initiative. A petition more or less nu-\\nmerously signed by citizens for the enactment of a law or the\\n368\\nI", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0384.jp2"}, "385": {"fulltext": "TPIE INITIATIVE 369\\nrepeal of a law is merely an appeal to a legislature, the mem-\\nbers of which will afterward do quite as they please regard-\\ning this matter when the time comes for definite action on\\ntheir part. But the system which has long been with us in\\nthe New England towns and in our local communities or-\\nganized according to the representative principle, prescribing\\nthat a certain number of citizens may unite in a petition in\\nfavor of some local policy the laying out of a new road, the\\nvacating of a street or the enclosure of domestic animals, is\\nthe initiative in one of its true forms. This needs no partic-\\nular demonstration, whether the petition of the citizens inter-\\nested in the settlement of this local question enacts the ordi-\\nnance and executes the by-law of its own force and at once,\\nor whether it merely brings the subject before the people\\nso that they can vote upon it in the town-meeting or by way\\nof the referendum. In a very great number of cases there\\nmust be a moment set when, a local ordinance or administra-\\ntive measure shall come into effect the enacting authority\\nmust name some condition which shall be fulfilled before the\\nvote can be ordered, and the referendum taken. The legisla-\\nture which desires that its laws in respect of localities shall\\nbe self-operating, and which cannot pretend to determine\\non its own account small details of government in a munici-\\npality or other political subdivision of a State, prefers to\\ncommit the task to the people themselves, rather than to\\nlocal boards and officers.\\nThe referendum has been described as a condition prece-\\ndent to the taking effect of a law the initiative is a condi-\\ntion precedent to the referendum. The referendum, itself\\nin the nature of a contingency, is made to depend upon a\\ncontingency, and that is the filing with representative local\\nofficials of a petition signed by a definite number of persons,\\nasking that the citizens residing within a given district shall\\nhave the opportunity to say yea or nay on the proposition\\nthat it shall be governed by the terms of a certain local by-\\nlaw which the State legislature has proposed. Thus a pre-\\nscribed number of signatures from ten to several thousand,", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0385.jp2"}, "386": {"fulltext": "370 THE REFERENDUM IN AMERICA\\naccording to the size of the district, its population, the de-\\nsire to encourage or discourage the taking of the vote, the\\nwhims of the legislatures and other controlling influences\\nand circumstances, must be secured in a locality before the\\nelection can be held. Som-etimes the requirement is for a\\npetition signed by a definite number of persons, as ten free-\\nholders, one hundred qualified voters, two hundred resident\\ntaxpayers, etc. Again the law may require a certain per-\\ncentage of the whole number of qualified electors registered\\nwithin the district, or of the electors voting at the last elec-\\ntion as lo per cent, 15 per cent, 20 per cent, 25 per cent;\\nor the literal condition may be one-tenth, one-fourth, one-\\nthird, two-fifths, three-fifths, a majority or even three-\\nfourths of the legal voters. The legislature instead of enact-\\ning the law, requiring the referendum to be taken on a cer-\\ntain fixed date, on regularly recurring dates, or on the mo-\\ntion of local judges, commissioners, mayors and boards,\\nplaces upon the shoulders of the people themselves the re-\\nsponsibility of deciding when the time has come for an\\nelection on the subject. The prohibition of special legis-\\nlation in recent years and the restriction of the State legis-\\nlatures activities, in respect of localities, to general laws\\nhave exerted a powerful influence to forward this develop-\\nment. For if the legislature cannot adopt the laws which\\nare required by any particular community, and the need for\\nsuch legislation still exists, the natural tendency is toward\\nthe enactment of the great codes of general laws now made\\nso familiar to us in many of the States. These codes have\\nbecome so comprehensive as to include almost any possible\\ncase which from time to time may arise out of the exi-\\ngencies of local government. The legislature passes the\\nlaws without saying whether or not they are needed by all,\\nor by any one of the communities to which they purport\\nto relate. It does not even go so far as to say that the laws\\nshall be submitted to the people in the various districts,\\nfor elections are expensive and troublesome and should be\\navoided when they are likely to fulfil no purpose. An ordi-", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0386.jp2"}, "387": {"fulltext": "THE INITIATIVE 37\\nnance which would be useful to one community might be with-\\nout applicability to another, and, furthermore, while without\\ndirect interest for a locality at one time might at another time,\\na few years hence, be of much practical importance to the\\nsame locality. The legislature being unable to decide these\\nmatters for itself, whether any given ordinance should be\\nmade to apply to the localities or not and if so to which\\nones, and when, finds a simple way out of its many difficulties\\nin the signed petition, or the initiative. Shall the law which\\nhas been passed by the State legislature apply to a particular\\nlocality? The people will decide by the referendum. When\\nshall the referendum be taken The people will decide by the\\ninitiative.\\nInstances are so innumerable that it is a matter of chance\\nin selecting even leading forms. A few will have to suffice\\nsince it is a subject so closely bound up with the referendum\\nthat to cover the field fully again in this place would be but\\na repetition of much that has been said in earlier chapters.\\nThe initiative occurs in connection with propositions to in-\\ncorporate cities and villages, to advance or reduce\\ntheir grade, to organize levee districts and irrigation dis-\\ntricts, to loan the public credit and issue bonds, to levy taxes\\nfor special purposes, to change city and county boundary\\nlines, to remove county seats, to make the enclosure of\\nvarious species of live stock obligatory, to prohibit the\\nmanufacture or traffic in alcoholic liquors, to sell public\\nlands and to enact a great variety of by-laws and enforce\\nmany different regulations having to do with local manage-\\nment.\\nIn reference to local option liquor laws, for instance, we\\nfind that in Connecticut twenty-five legal voters of any\\ntown may cause an election to be held to determine whether\\nany person shall be licensed to sell spirituous and intoxicat-\\ning liquors in said town The law having been adopted\\nthe same number of petitioners may later demand that an-\\nGeneral Statutes of Connecticut, 1888, sec. 3050,", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0387.jp2"}, "388": {"fulltext": "372 THE REFERENDUM IN AMERICA\\nother vote be taken to decide whether or not it shall be re-\\nscinded. In Florida one-fourth of the registered voters\\nof any county may call for an election within the county on\\nthe subject of prohibition in Georgia one-tenth of the\\nvoters who are qualified to vote for members of the General\\nAssembly in any county in this State in Minnesota ten\\nor more legal voters in any township in Mississippi, one-\\nthird of the qualified voters of any county in Missouri,\\none-tenth of the qualified voters of any county in Mon-\\ntana one-third of the qualified electors in the counties in\\nNorth Carolina one-fourth of the qualified voters of any\\ncounty, town or township in Texas 250 voters of any\\ncounty or fifty voters of any justice s precinct, city, town\\nor other subdivision of the county in Virginia one-fourth\\nof those voting at the preceding regular November election\\nin any county, corporation (city), town or magisterial dis-\\ntrict in Wisconsin ten per cent of the number of votes\\ncast for governor at the last general election in any town,\\nvillage or city.^^ On the receipt of a petition signed by\\ntwelve qualified voters of a city, village or town in Wiscon-\\nsin the officers thereof must submit the question as to the\\nsum, greater or less, which shall be paid by dealers for\\nliquor licenses. Likewise in New Jersey a vote is taken to\\nfix the license fee upon the filing of a petition which has been\\nsigned by at least one-fifth of the legal electors of any town-\\nship, town, borough or city voting at the last previous elec-\\ntion for Governor of the State.^^\\n^Revised Statutes of Florida, 1892, p. 329.\\nCode of the State of Georgia, 1895, sees. 1541 et seq.\\nStatutes of Minnesota, 1894, sec. 1990.\\n^Annotated Code of Mississippi, 1892, sees. 1609 et seq.\\n^Revised Statutes of Missouri, 1889, p. 1050.\\nMontana Codes, 1895, sees. 3180 et seq.\\nCode of North Carolina, 1883, sees. 3113 et seq.\\nSupplement to Sayles Civil Statutes, 1888-1893, tit. 63, art. 3227.\\nCode of Virginia, 1887, p. 200.\\nSanborn and Berryman s Wisconsin Statutes, 1898, sec. is6sa.\\nIbid., sec. 1548b.\\nGeneral Statutes of New Jersey, 1896, p. 18 10.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0388.jp2"}, "389": {"fulltext": "THE INITIATIVE 373\\nThe people s right of initiative in respect of changes in\\nthe sites of county capitals also claims our interest. Thus\\nin Arkansas one-third of the legal voters of a county sign-\\ning a petition to that effect may call an election to decide the\\nquestion of removing the county seat.^* In California this\\nreferendum in any county requires a petition signed by\\nvoters equal in number to a majority of the votes cast at\\nthe last preceding general election in Colorado a majority\\nof the taxpayers in Florida one-third of the registered\\nvoters in Georgia two-fifths of the poll-taxpayers\\nin IlHnois two-fifths of the legal voters of the county in\\nIndiana forty per cent of the whole number of legal voters\\nof any county in Kansas a majority, or three-fifths, or\\ntwo-thirds of the legal voters, according to the value of\\nthe buildings which are already in use by the county and\\nwhich it is proposed shall be abandoned in Kentucky\\ntwenty-five per cent of the votes cast at the last general\\nelection for county officers.^^\\nThe laws permitting the people of counties and other\\nlocal districts to determine whether or not live stock shall\\nbe allowed to run at large are also brought to a vote through\\nthe initiative. In Georgia the election may be held in any\\ncounty when fifty freeholders petition for it, and in any\\nmilitia district on the receipt of the signatures of fifteen free-\\nholders.^^ In Iowa on the same subject the petition must\\nbe signed by one-fourth of the legal voters of a county in\\nKentucky by lOO voters in any county or twenty voters in\\nSandels and Hill s Digest of the Statutes of Arkansas, pp. 393\\net seq.\\nStatutes of 1893, p. 346.\\nSupplement to Mills Annotated Statutes, p. 307.\\nRevised Statutes of Florida, 1892, p. 281.\\nCode of the State of Georgia, 1895, sec. 391.\\nStarr and Curtis Statutes of Illinois, 1896, p. 11 17.\\nHorner s Indiana Statutes, 1896, sees. 4232 et seq.\\n^Webb s General Statutes of Kansas, 1897, chap. 26, sees, i et seq,\\nBarbour and Carroll s Kentucky Statutes, 1894, sees. 915 et seq.\\nCode of the State of Georgia, sec. 1777.\\n^Annotated Code of Iowa, 1897, sec. 444.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0389.jp2"}, "390": {"fulltext": "374 THE REFERENDUM IN AMERICA\\nany magisterial district, (a subdivision of a county) in\\nMissouri lOO householders in any county or twenty-five\\nhouseholders in a township in North Carolina one-fifth\\nof the qualified voters in any county, township or dis-\\ntrict or territory whether the boundaries of said district\\nfollow township lines or not in North Dakota one-third\\nof the quahfied electors of a county in Oregon loo or\\nmore legal voters of a county.^^\\nIn any county in California the board of supervisors may\\nsubmit the question of establishing a county high school\\nupon receiving a petition signed by fifty or more qualified\\nelectors and taxpayers of said county The same number\\nof signers may require a poll of the people on this subject\\nin the counties of Nevada. Fifty voters in any school\\ntownship in Illinois may demand an election on the question\\nof establishing a township high school. Two hundred\\nvoters in any county of Ohio may cause a referendum to be\\ntaken on the question of levying a tax to found a children s\\nhome for poor orphans, and children for whose support\\nparents are unable or unwilling to provide.^^ In Utah in\\ncities of the first class i,ooo, in cities of the second class 250\\nand in cities of the third class and towns fifty qualified\\nvoters and property taxpayers signing a petition therefor\\nmay require that a referendum be taken on a proposition to\\nassess a tax for a free public library.^* Twenty-five signa-\\ntures suffice to secure an election in any town in the State\\nof New York on a proposal to pay to public school teachers\\na regular civil pension or allowance after twenty-five years\\nBarbour and Carroll s Kentucky Statutes, sec. 4646.\\nRevised Stattites of Missouri, 1889, p. 186.\\nCode of North Carolina, 1883, sec. 2811.\\nRevised Codes of the State of North Dakota, 1895, sees. 1550 et seq.\\nLaws of Oregon of 1893, p. 89.\\n^Statutes of 1891, p. 57-\\nStatutes of Nevada, 1895, p. 28.\\nStarr and Curtis Annotated Statutes, p. 3660.\\n^Revised Statutes of Ohio, 7th ed., 1896, sec. 929.\\nLaws of 1896, p. 144.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0390.jp2"}, "391": {"fulltext": "THE INITIATIVE 375\\nof continuous service.^^ Fifty taxpayers in any county in\\nNebraska can demand an election on the question of paying\\nbounties for the destruction of wolves, wild cats, coyotes\\nand mountain lions. One hundred voters in any county\\nin West Virginia can compel the local authorities to take a\\npoll of the people on the proposition to tax dogs, the pro-\\nceeds of the levy to be used for indemnifying the owners\\nof sheep whose flocks have been attacked and injured by\\ndogs.^^ In the cities and villages of Wisconsin ten per cent of\\nthe duly qualified electors may initiate and cause a vote to\\nbe taken on a local by-law to regulate the sale of street rail-\\nway, water, lighting and other public franchises. An act in-\\ntroducing new rules respecting the civil service in cities in\\nIllinois requires a petition which is signed by i,ooo voters.\\nCounty courts in West Virginia on the receipt of a petition\\ncontaining the signatures of lOO voters must submit a propo-\\nsition for an alternative method of constructing and keep-\\ning in repair the county roads\\nInnumerable instances of this kind, similar in principle\\nif varying in matters of detail, might be cited here, though\\nit could add little to the discussion of this branch of our\\nsubject. As well might I have referred to a thousand other\\ncases as to these. But to name a greater number of examples\\nwould be as tedious as it would be devoid of useful purpose,\\nfor enough has certainly been said to indicate how widely\\nand generally the initiative is employed in this country, and\\nhow necessary a feature of our system of local govern-\\nment it has everywhere become, especially in the Western\\nStates. Sometimes, it should be remarked, the initiation\\nof a measure which the legislature has proposed to the\\nlocalities is not left solely to the people, but the law pro-\\nvides that the county commissioners or other local repre-\\nRevised Statutes of New York, 9th ed., p. 3089.\\nCompiled Statutes of Nebraska, 1897, p. 73.\\nCode of West Virginia, 3rd ed., 1891, p. 600.\\nSanborn and Berryman s Wisconsin Statutes, sec. 940J.\\nStarr and Curtis Stattites, p. 826.\\nCode of West Virginia, 3rd ed., p. 332.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0391.jp2"}, "392": {"fulltext": "376 THE REFERENDUM IN AMERICA\\nsentative officials may or upon receipt of a petition\\nsigned by, say fifteen per cent of the qualified electors of\\nthe county, must submit the question to popular vote.\\nWhen this provision occurs in the law local magistrates may\\nof course anticipate a petition, acting in the matter on their\\nown responsibility without authorization from any other\\nsource.\\nThe American experience with this institution has taught\\nus some lessons and not least useful among them is one which\\nhas been emphasized in Kansas, Indiana, Kentucky and\\nArkansas, though the same tendency is manifested in other\\nStates. The initiative has sometimes proven itself too em-\\nbarrassingly democratic, even as measured by the standards\\nof our very liberal political system of which it has now be-\\ncome so familiar a part. When important questions which\\nclosely affect the public welfare are to be determined the\\nlegislature has found it advisable to hedge in upon the privi-\\nlege. In respect of subjects upon which the people might\\nask for a plebiscite too frequently it has become necessary\\nto apply some effective restraints. Just as witli the referen-\\ndum when increased majorities, e. g., a three-fifths or a\\ntwo-thirds vote is demanded, and when elections on the same\\nsubject oftener than once in, say, two or five years are pro-\\nhibited, so with the initiative devices are employed to lessen\\nits democratic influence and force. If there is reason to\\nthink that the people will make too free a use of the right\\nto call elections on local propositions the number of signa-\\ntures which must be appended to the petition is increased.\\nIf there is no such prospect the number is always smaller.\\nIn not a few cases more signatures must be secured for the\\npetition than the number of votes needed subsequently to\\npass the measure in the referendum. Thus the people are\\neffectively held in check since it is no easy task, especially in a\\nlarge and populous community, to secure a long list of\\nsignatures unless there is serious purpose behind the move-\\nment, and a general desire that an election should be held.\\nKansas furnishes a striking instance directly in point.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0392.jp2"}, "393": {"fulltext": "THE INITIATIVE 377\\nThe people of this country seem to be almost wholly lacking\\nin a genius for quietly and properly attending to the small\\nduty of choosing locations for their county capitals. In\\nmany States of the West they have made it plain that they\\nare not disposed happily to submit to the decree of any repre-\\nsentative body respecting the choice of a site for the county\\nbuildings. Bloody riots led by the defenders of the claims\\nof rival towns have not infrequently occurred. In most\\nStates the constitutional convention or the legislature now\\nrefers the whole subject to the people of the respective\\ncounties, authorizing them to place the buildings at what-\\never spot may seem to them, in their wisdom, to be best\\nsuited for such a purpose. Nevertheless unfortunate dif-\\nferences still arise from time to time and wherever too great\\nfreedom is allowed to the people in this matter there are\\nlikely to be unpleasant if not serious consequences. The\\nproblem is simply this, to find some method by which any\\ngroup of speculators in land whose pecuniary interests\\ncentre about a certain town can be prevented from subor-\\ndinating the public welfare to their private ends. In nearly\\nall the States the number of signatures which must be as-\\nsembled on a petition for a county-seat election is relatively\\nhigh and the referendum can be taken not oftener than once\\nin a rather long period of years. The method employed in\\nKansas is novel and ingenious. A simple majority of the\\nlegal electors of a county signing a petition for the removal\\nof the county seat can demand an election on the subject\\nwhen the buildings on the present site have cost the county\\nless than $i,ooo. If, however, they shall have cost $2,000\\nor more a petition signed by three-fifths of the electors is\\nrequisite, and if more than $10,000, and if they have been\\nin one place continuously for at least eight years the names\\nof two-thirds of the qualified voters in the county must be\\nsecured. In the latter case, furthermore, the proposition\\nwhen it is submitted to the people in the referendum must\\nbe approved by not less than a three-fifths vote.^^ In\\nWebb s General Statutes oi Kansas, chap. 26, sees, i et seq.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0393.jp2"}, "394": {"fulltext": "37 S THE REFERENDUM IN AMERICA\\nGeorgia a petition for a poll of the people on the question of\\nremoving a county seat must be signed by two-fifths of the\\npoll-taxpayers and in the referendum which follows a\\ntwo-thirds majority vote is required. Moreover the elec-\\ntion cannot be held more frequently than once in five years.\\nNone of these restraints seems to be quite so rigorous,\\nhowever, nor does any manifest so much psychological\\nknowledge of men as the system by which the signers of a\\npetition for an election are made to deposit from their own\\nprivate purses a sum of money to reimburse the county for\\nany loss which may thereby be entailed. As a means of put-\\nting a brake on popular ignorance and precipitancy this is\\na rather new development in a democracy. It finds its close\\ncounterpart in South Carolina where after struggling for a\\nlong time with the lynching evil and finding our system of\\ngovernment barren of remedies, we have turned upon the\\npeople whom we have not been able to check through the\\nchurch, the school or the courts and have told them that if\\nthey cannot wait for the established judicial agencies to take\\ntheir natural course with a prisoner or suspect they shall be\\nheld financially responsible for the results of their venge-\\nful folly. The convention which framed the Constitution\\nof South Carolina of 1895 puts the pecuniary burden of a\\nlynching upon the taxpayers of the county in which it oc-\\ncurs. The Constitution provides that in all cases of lynch-\\ning when death ensues the county where such lynching takes\\nplace shall be liable in exemplary damages of not less\\nthan $2,000 to the legal representatives of the person\\nlynched As the counties in which such savage outbreaks\\noccur are usually not wealthy the hope is entertained that\\nthe taxpayers who may compose the mob will hereafter re-\\nflect a little before assisting to break open the jail door or\\nthrow the rope over the tree-limb at a Carolina lynching\\nparty and that taxpayers who are not members of the\\nmob will use their utmost endeavors to dissuade their neigh-\\nCode of Georgia, 1895, sees. 377 et seq.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0394.jp2"}, "395": {"fulltext": "THE INITIATIVE 379\\nbors from taking a step which may prove to be pecuniarily\\nso expensive to them all. If such a law would seem to give\\nan exaggerated importance to the material motives in men\\nit will be well to remember, perhaps, that the true test is\\nfound in results. The need is for restraint of popular im-\\npulse and passion while holding fast to democratic forms,\\nand to attain this end taxation, if as potent, may be quite as\\ndefensible as any other method.\\nSo likewise when it is necessary to hold the people at bay\\nin the initiation of legislation, while still allowing them to\\nretain and exercise this right, they are sometimes made\\nfinancially liable for their indiscreet deeds. In Arkansas,\\nwhen in 1893 it appeared to be expedient to modify the rule\\nof 1873 by which one-third of the qualified voters of any\\ncounty might order an election on the question of remov-\\ning the county seat, pecuniary checks were introduced. In\\n1893 it was enacted that in any county in Arkansas having\\na court house which originally cost $10,000 or more or a\\ncourt house and jail which together originally cost $10,000\\nor more the petitioners for a removal of the county seat\\nshould deposit with the treasurer of the county $5,000 in\\nUnited States currency This sum was to be used by the\\ncounty in erecting a new court house if the people at\\nthe election should vote in favor of a change of site. If,\\nhowever, the vote were against the proposed change the sum\\nwhich had been deposited by the signers of the petition must\\nbe made good to them again. Moreover as a further dis-\\ncouragement to frequent elections on this subject it is pro-\\nvided in Arkansas that when a county seat has once been\\nremoved in compliance with the act its location shall not be\\nchanged a second time until after the expiration of ten\\nyears.*^\\nIn Indiana also some very severe restrictions hedge about\\nthe initiative and the referendum in respect of the relocation\\nof county seats. By a law of 1885 no capital is to be removed\\nSandels and Hill s Digest of the Statutes of Arkansas, 1894, p. 396,", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0395.jp2"}, "396": {"fulltext": "380 THE REFERENDUM IN AMERICA\\nand relocated until it has been in its present site for at least\\ntwenty-five years. When the appraised value of the county\\nbuildings exceeds $20,000 a change of site is altogether pro-\\nhibited. In permissible cases forty per cent of the whole\\nnumber of legal voters of any county signing a petition\\ntherefor may demand a referendum on this subject if they\\nfirst deposit with the county commissioners a deed for at\\nleast two acres of ground as a site for the new buildings,\\nwith legal evidence of the validity of the title to the land,\\nan affidavit that the signatures to the petition are genuine,\\nthe sum of $200 to pay for architect s plans and a bond made\\npayable to the State of Indiana to cover the expenses of the\\nelection. Moreover in the referendum which follows no less\\nthan seventy per cent of the votes cast must be in favor\\nof the change of site in order to make it valid, a series of\\ndifficult conditions which perhaps could but rarely be ful-\\nfilled.^*\\nSimilarly in Kentucky by the local option law of 1894\\na number of signers equal to twenty-five per cent of the\\nvotes cast at the last election may ask for a poll of the peo-\\nple on the question of prohibiting the liquor trade in counties,\\ncities, towns and other local districts of the State. But it is\\nprovided that the county court shall not issue an order au-\\nthorizing the taking of the vote until the persons signing\\nthe petition have deposited with the county judge in money\\nan amount sufficient to pay for printing or posting\\nadvertisements as provided for [in the law] and the fees\\nof the clerk making entries in the order book And in\\nno case may the election on this subject be held oftener than\\nonce in three years.*^ In local elections for the restraint\\nof domestic animals the Kentucky legislature also requires\\na deposit of money. The law declares that no polls shall\\nbe opened unless the petitioners shall deposit with the\\ncounty court at the time the petition is filed an amount\\nHorner s Indiana Statutes, sees. 4232 et seq.; cf. ibid., sees. 4235b\\net seq.\\nBarbour and Carroll s Kentucky Statutes, sec. 2559.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0396.jp2"}, "397": {"fulltext": "THE INITIATIVE 381\\nsufficient in the judgment of the court to defray the ex-\\npenses of the election upon this question\\nThe initiative has a place in our local political practice\\nin still another form. It occurs with the referendum in the\\ncases which we have just noted; sometimes too it occurs\\nalone. In many instances the contingency which attends\\nthe taking effect of a law in respect of localities is merely\\na petition containing the signatures of a majority, or other\\nprescribed number of citizens. This is a very old form of the\\ninitiative in America. It was a method of taking the popular\\nsense before the referendum had yet appeared on the scene\\nand it can well be asked why when the law requires a peti-\\ntion which is signed by at least a majority of the citizens,\\nthe same number that usually suffices to adopt a measure in\\nthe referendum, it should also be adjudged necessary to poll\\nthe people on the subject? There is probably no answer to\\nthis question except this that our system has been found\\nto be too democratic and while not desiring to abolish it\\nentirely we have had to introduce devices to make its opera-\\ntion less easy and smooth. It is much harder to get the\\nsignatures of a majority of the citizens of any but the\\nsmallest communities than it is to secure the votes of the\\nsame number of men at a public election. Again it is much\\nharder to get the names of two-thirds of the voters than\\nof a simple majority and to couple the petition with the\\nreferendum and say that one must follow the other, adding,\\nperhaps, that the petitioners shall advance enough money to\\npay the cost of taking the vote before the election will be\\nadvertised, is to put a most effective check upon gov-\\nernment by the people So much has been said in recent\\nyears in regard to the desirability of making direct legis-\\nlation by the citizens easy since they, being the theoretical\\nsource of government, can do us no wrong that such a mani-\\nfestation is of peculiar interest. It is an instance perhaps in\\nwhich the people have locked their own wheels.\\nKentucky Statutes, sed. 4647 cf. Sandels and Hill s Arkansas Stat\\nutes, sec. 7277, and Compiled Statutes of Nebraska, 1897, pp. 1 591-92.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0397.jp2"}, "398": {"fulltext": "382 THE REFERENDUM IN AMERICA\\nInitiation by a small percentage of the voters a number\\nless than a majority is a natural accompaniment of the\\nreferendum in local matters. It serves to render the system\\nself-operating, and to a degree automatic, in that the peti-\\ntion determines when the referendum which the legislature\\nhas authorized shall be taken. It is a mere formal proceeding\\nsaying nothing for or against the adoption of the law. The\\nlaw is accepted or rejected by the people later on, they being\\nthe law-makers when they vote upon it in the referendum. In\\nthe case of the petition which is not followed by a poll of the\\ncitizens it is, as it were, the initiative and the referendum\\ncombined in one. The people are still the law-makers, but\\nthey sanction the law simply by signing their names on a\\nsheet of paper instead of by depositing their ballots at a poll-\\ning station. Thus in any county in Arkansas a majority of\\nthe taxpayers signing a petition may require the county court\\nto purchase a farm and erect upon it a house of correction\\nfor misdemeanants convicted of petit crimes.* In Arkansas,\\nschool lands, i. e., the sixteenth section of any congressional\\ntownship may be sold on authority derived from a written\\npetition which is signed by a majority of the male inhab-\\nitants of such township In counties and subdivisions of\\ncounties in Arkansas on receipt of a petition requesting that\\nthis be done, signed by a majority of the qualified electors,\\nthe county must grant an order obliging owners to enclose\\ntheir live stock. The order may be rescinded again by the\\nsame process.*^ In Illinois a petition containing the signa-\\ntures of two-thirds of the legal voters of a township will\\nvalidate the sale of school lands without a poll by ballot. The\\nnames must be affixed in the presence of two adult citizens\\nof the township both of whom, witnessing the document, must\\nmake affidavit as to the genuineness of the signatures. In\\nKansas a petition signed by two- thirds of the legal voters of\\nany county makes effective within the county a legislative\\nDigest of Arkansas Statutes, p. 382.\\n*^Ihid., sec. 71 14. Ibid., sees. 7274 et seq.\\nStarr and Curtis Annotated Statutes, p. 3719.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0398.jp2"}, "399": {"fulltext": "THE INITIATIVE 383\\nprovision in regard to the enclosure of domestic animals.\\nBy a law of 1896 two-thirds of the qualified voters of Vicks-\\nburg, Miss., signing a petition therefor could require that\\nbonds be issued on the credit of the city to an amount not\\nexceeding $25,000 to defray the expense of erecting buildings\\nfor the Aledical Department of the University of Missis-\\nsippi.^- In Nevada a majority of the taxpayers, or tax-\\npayers representing a majority of the taxable property in\\ncities, unincorporated towns and school districts may join in\\npetitioning for a tax to raise money to establish and main-\\ntain free public libraries. Instances of this kind in the\\nvarious States are by no means rare, the sense of the people\\nin regard to propositions and local ordinances being taken\\nusually, however, by ballot at the polling places, a much more\\nconvenient method of securing an expression of public opin-\\nion.\\nThere are then, as we have seen, three courses open to the\\nState legislature when it desires to legislate for a locality,\\nand it cannot, or is itself unwilling to pass a definitive law.\\nI It may make the going into effect of the law depend upon\\nthe will of local representative officials. (2) It may require\\na polling of the people of the district to be affected by the\\nact, the latter coming into force or not, according as the\\nvote is in favor of or against the measure. The legislature\\n(a) may itself fix a certain date when the referendum shall\\nbe taken or (b) it may require the election to be held on the\\ninitiation of a certain number of the citizens of the district\\nconcerned who shall petition for the vote; or (c) it may re-\\nsign to local ofiicers the duty of determining when the\\npeople shall be polled respecting any given subject. (3)\\nAnd finally the legislature may specify that the conditional\\nact which it passes shall go into effect in a local district when\\na majority of the legal electors residing therein have signed\\na paper and petitioned for the enforcement of the law.\\n^MVebb s General Statutes of Kansas, chap. 138, sees. 6 et seq.\\n-Laws of 1896. chap. 118.\\nStatutes of Nevada of i895 P- 79-", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0399.jp2"}, "400": {"fulltext": "384 THE REFERENDUM IN AMERICA\\nThese three forms often exist side b}^ side in the same\\nState. They are not inconsistent. To determine which shall\\nbe employed in any given case is a question of expediency and\\nof the existing custom in the matter, often too it would\\nseem of pure chance. In respect of many classes of subjects\\nlocal representative officials decide when the law shall be-\\ncome operative within the locality; respecting many others,\\nas we have noted on earlier pages, the referendum with or\\nwithout the initiative is employed, and in not a few cases the\\npresentation of a petition signed by a majority of the citi-\\nzens without a vote by ballot is the condition which the legis-\\nlature attaches to a law s going into effect.\\nBut it will be said of course that a petition of this kind is\\nnot the initiative of the true Swiss type. The petition is not\\nthe initiative in the form that the advocates of this feature of\\npopular government desire to see it introduced into this coun-\\ntry. The right of initiation includes the right to demand a\\nvote of the people, not only on laws already proposed or\\npassed by the representative legislature, but also on new\\nmeasures. The right of initiation is the right to initiate the\\nlaw as well as the election for and against the law. It is\\na democratic agency by which a minority party and elements\\nwhich are without representation in the legislature may force\\nthe latter s hand and compel it to submit any desired measure\\nto popular vote. The initiativejs..a lever by which th\u00c2\u00a3,jgeo_ple\\nmay exert power upon their governors even if these be\\nno other persons than those whom the people at intervals\\nthemselves elect. Such is the purpose of the reform as it\\ncomes recommended to us by the democratic-jsacialis t leaderg\\nof whom we now have so many in the United States. Very\\nwell. We have the initiative in this form in America also;\\nin some States it is true only as a result of considerable agi-\\ntation of the subject on the part of these outspoken advocates\\nof direct legislation as in South Dakota, Nebraska and\\nSan Francisco, but also as a natural development of our town\\nmeeting principle as in Iowa and California.^*\\n^*Ante, pp. 307 et seq.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0400.jp2"}, "401": {"fulltext": "THE INITIATIVE 3^5\\nBy an amendment to the Constitution which was adopted\\nby the people in 1898 both the initiative and the referen-\\ndum, closely patterned after the Swiss forms were introduced\\ninto the political practice of South Dakota. The system was\\nfurther worked out and developed by an act passed by the\\nSouth Dakota legislature in 1899.^^ ^hat State the people\\nmay demand that a vote be taken on all laws which have been\\napproved by the legislature except those of immediate\\nurgency. If a number of electors equal to five per cent of\\nthe votes cast for Governor at the last preceding general\\nelection file a petition with the secretary of state within ninety\\ndays after the adjournment of the legislature, asking that\\nany law which it may have passed during that session shall\\nbe submitted to the people of the State, a referendum must\\nbe taken on the question of the adoption or rejection of the\\nmeasure. Not only this but five per cent of the electors of the\\nState may propose any measure that they may deem to be for\\nthe public welfare and the legislature receiving the petition\\nmust submit it to popular vote. In either case the petition,\\nwhether for a vote on a new law which the people have pro-\\nposed, or on a law already passed by the legislature, must be\\nsigned by the citizens in person and in addition to the name\\nmust give the place of residence^ the occupation and the post\\noffice address of each individual signer of the paper. The\\npetition, too, must contain the substance of the law upon\\nwhich it is desired that the referendum shall be taken. A\\nmajority of all the votes cast both for and against the measure\\nis decisive, and if the law is approved in the referendum it\\ngoes into effect at once.^^ In the same way in South Dakota\\nby-laws and ordinances passed by the local legislative bodies\\nfor the government of their respective towns and cities, ex-\\ncept emergency measures are submitted to a vote of the\\npeople in the municipalities to be affected by them. Qualified\\nelectors of the municipality equal to five per cent of the\\nvotes cast for the highest executive officer of the city or\\nSession Laws of South Dakota, 1897, P- 88.\\nSession Laws of 1899, pp. 121 et seq. Ibid.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0401.jp2"}, "402": {"fulltext": "o\\n;6 THE REFERENDUM IN AMERICA\\ntown at the last general election may propose an ordinance\\nand have it voted on by the people, as they may also demand\\nwithin a certain period after its passage a poll of the people\\non any by-law already enacted by the local representative\\nassembly. A majority of the votes cast will approve the\\nmeasure, the rules respecting the filing of the petition and the\\ntaking of the vote being in all essential respects similar to\\nthose which prevail when the initiative and the referendum\\napply to the State at large.^\u00c2\u00ae\\nBy the new charter of the city of San Francisco a num-\\nber of electors equal to fifteen per cent of the votes cast at\\nthe last preceding election may propose local ordinances and\\ndemand a poll of the people upon them. Any such ordinance\\nmust be set forth and described in the petition and if it is\\napproved by a majority of those who attend at the polling\\nbooths and vote on the proposition it at once becomes a law\\nof the city. It is specifically required that the signatures\\nto the petition need not all be appended to one paper and\\neach signer in writing his name must add his place of resi-\\ndence giving the street and number so that he may be\\nidentified. It is specially provided also that the local repre-\\nsentative legislature shall not repeal or amend measures\\nwhich the people thus adopt, but it may on its own initiation\\nsubmit to popular vote propositions for the rescission or\\namendment of such laws.^^\\nComing to Nebraska, the law which was passed by the\\nlegislature of that State in 1897 introduces the initiative and\\nthe referendum by those names, and in the Swiss form, for\\ncities and other municipal subdivisions of the State a des-\\nignation which we are told includes counties, villages, towns\\nand school districts. In these local districts fifteen per cent\\nof the voters may demand a vote on any proposed ordinance\\nat a general election; twenty per cent may have the subject\\nsubmitted at a special election. If the local representative\\nlegislature alters or amends the initiated measure, after it is\\nSession Laws of Sonth Dakota, 1899, pp. 121 et seq.\\nCharter of San Francisco, art. ii, chap, I, \u00c2\u00a7ec, 20.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0402.jp2"}, "403": {"fulltext": "THE INITIATIVE 3^7\\nreceived and before it is submitted to popular vote, the orig-\\ninal ordinance and the amended bill shall together be referred\\nto the people, so that they may make their choice or, if it be\\ntheir will, reject both propositions. In the same manner a\\nreferendum may be demanded on any by-law proposed and\\npassed by the local legislative boards, at a regular election\\nby a petition signed by fifteen per cent of the voters of the\\ncity, county, etc., and at a special election by a petition con-\\ntaining the signatures of twenty per cent, of the voters.\\nUrgent ordinances are excepted from the provisions of\\nthe act and may be passed definitively to go into effect at\\nonce.^^\\nOf a purely American development, the outgrowth of na-\\ntive conditions existing before the wave of Swiss influence\\nswept over the country, is the initiative as we find it in Cali-\\nfornia and Iowa. A law of California contains the following\\ninteresting provision Whenever there shall be presented to\\nthe board of supervisors a petition or petitions signed by legal\\nvoters of said county equal in number to fifty per cent of\\nthe votes cast at the last preceding general election, asking\\nthat an ordinance to be set forth in such petition be submitted\\nto a vote of the qualified voters of such county it shall be the\\nduty of the board of supervisors by due proclamation to\\nsubmit such proposed ordinance to the vote of the qualified\\nvoters of such county. The election shall be conducted and\\nthe returns canvassed in all respects as provided by law for\\nthe conducting of general elections and canvassing the re-\\nturns thereof. If a majority of the votes cast upon such\\nordinance shall be in favor of the adoption thereof the board\\nof supervisors shall proclaim such fact and thereupon such\\nordinance thus adopted shall have the same and equal force\\nand efifect as though adopted and ordained by the board of\\nsupervisors.\\nThis board of supervisors is a body composed of five\\nmembers who are elected by the people of each county by the\\nCompiled Statutes of Nebraska, 1897. pp. 588 et seq.\\nStatutes and Amendments to the Code of California, 1893, p. 348.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0403.jp2"}, "404": {"fulltext": "388 THE REFERENDUM IN AMERICA\\nsystem, to borrow the French term, of scrutin d arrondisse-\\nment and not scrutin de liste, the latter being the method\\nusually employed in making choice of county government\\nboards in the American States. The supervisors hold office\\nfor four years and to them are committed very extensive\\nlegislative and administrative powers with respect to local\\nmatters of various kinds.\\nLikewise in the State of Iowa the board of supervisors\\nmay submit to the people of any county at a regular election,\\nor a special election to be called for that purpose, the ques-\\ntion whether money may be borrowed to aid in the erection\\nof any public buildings and the question of any other local or\\npolice regulation not inconsistent with the laws of the State\\nPropositions for the repeal of local regulations may be re-\\nferred to the people by the board of supervisors in the same\\nmanner. Furthermore the board shall i. e., it must sub-\\nmit the question of the adoption or rescission of such a\\nmeasure when petitioned therefor by one-fourth of the voters\\nof the county Whether the vote is taken on the motion of\\nthe board or of the people themselves on being satisfied that\\na majority of votes were cast in favor of the proposition the\\nsupervisors shall cause the same and the result of the vote\\nto be entered at large in the minute book and the proposition\\nshall take effect and be in force thereafter\\nSummarizing these results for the initiative we find, there-\\nfore, that one State, South Dakota, grants the people the right\\nof initiative on the large matter of State laws. The petition\\nmust be signed by a number of electors equal to five per\\ncentum of the votes cast for Governor at the last preceding\\ngeneral election, while with respect to the initiative in local\\ndistricts on local by-laws and ordinances the showing is as\\nfollows\\nAnnotated Code of the State of Iowa, 1897, sees. 443 et seq.\\nIt must be noted always of course that the initiative and the ref-\\nerendum on municipal laws in South Dakota, Nebraska, California,\\nIowa and San Francisco apply to local laws locally enacted, not to local\\nlaws received from the State legislature such as we have been con-\\nsidering in the earlier part of this chapter. Cf. antej p. 307.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0404.jp2"}, "405": {"fulltext": "THE INITIATIVE\\n389\\nSouth Dakota.\\nUnit.\\nCities and towns,\\nNebraska Cities, counties,\\ntowns, villages,\\nschool districts,\\netc,\\nCalifornia Counties.\\nIowa Counties.\\nSan Fran Cisco... City.\\nNumber of petitioners necessary to\\ninitiate.\\nFive per cent of the votes cast at\\nthe last election.\\nFifteen per cent of the voters for\\na general election 20 per cent\\nif the submission is to be made\\nat a special election.\\nFifty per cent of the votes cast\\nat the last election.\\nOne fourth of the votes cast at the\\nlast election.\\nFifteen per cent of the votes cast\\nat the last election.\\nThe fact must be kept in mind therefore that if the refer-\\nendum is not unknown to our poHtical system in the United\\nStates, so likewise is the initiative no stranger among our\\ninstitutions. Both have been developing side by side until\\nthey have become familiar to us by general usage in all but\\nevery State in the great American Republic.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0405.jp2"}, "406": {"fulltext": "CHAPTER XVI\\nTHE REFERENDUM VS. THE REPRESENTATIVE SYSTEM\\nIt will now be desirable, I think, to summarize and review\\nin a final chapter the results of our studies and investigations.\\nIt would not be safe, perhaps, to make any prophecies re-\\ngarding the future of the initiative and the referendum in\\nthe United States. The philosophical movement led by J. J.\\nRousseau, which had for its natural consequence the up-\\nheavals in the latter part of the eighteenth century, was a\\nmere vague and fanciful appeal for a new political order, in\\nwhich the people would receive back their own from unau-\\nthorized agents who had got into control of the machinery\\nof government and maintained themselves there through the\\ncomplexity of the political organization. It was a protest\\naimed against monarchical forms, as they were these forms\\nthat then prevailed nearly everywhere. Although primary\\nassemblies were spoken of as the ideals in government it was\\nnot supposed, even by Rousseau himself, that Paris or France\\ncould be ruled by a town meeting, and a ballot system of the\\nmodern type had not yet been devised. The people were\\nstill to act through representatives, albeit as a necessary evil\\nfrom which it was thought there could be no escape, at any\\nrate in populous countries of a large territorial area. The\\nresult was a demand for a representative system with the\\nelimination of kings, governors and indeed all magistrates\\nwho were not directly elected by the people and were not\\ndirectly responsible to them. The struggle v/hich followed\\nwas between those who wished to organize this representa-\\ntive system after two different plans. The radical wing\\ndeclared its preferences for a government by an unchecked\\nconvention of a single house which was to be legislature, ex-\\n390", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0406.jp2"}, "407": {"fulltext": "REFERENDUM VS. REPRESENTATIVE SYSTEM 39^\\necutive and judiciary combined in one. The other wing, led\\nso ably in this country by John Adams, aimed to give the new\\ngovernment a more complex form so that it might withstand\\nthe first gust and effectually perform the great tasks set for it\\nto do while at the same time owing the necessary responsi-\\nbility to the people. That this contest was a bitter and pro-\\nlonged one, I think I have shown in this essay, in some early\\nchapters from the constitutional history of Pennsylvania\\nwhere the struggle centred on this continent. England, un-\\nmoved by the storms which have shaken France, has gone\\nforward by a gradual process developing a type of govern-\\nment that is greatly admired in all parts of the world. Our\\nown government, especially as a Federal model, has attracted\\nmuch attention and in one form or another the representative\\nsystem with the main features of a congress or parliament\\nelected by the people, and a president or king with a cabinet\\nwhich is usually responsible to the parliament, has spread over\\nthe civilized earth being incorporated in all the leading consti-\\ntutions of Europe, America, Africa, Australasia and even in\\nJapan.\\nAlthough parliamentary government has been so widely\\nintroduced and has now so generally come to supersede other\\nforms of government in which the people are not directly\\nrepresented in a legislature, the system is not without its\\nweaknesses. These have manifested themselves in a great\\nvariety of ways. They have pressed themselves on the atten-\\ntion of thinking men throughout a long period of years in\\nmany different lands, and it is natural that some corrective\\nshould be eagerly sought. It is very generally understood\\nthat any system in which the people are not represented in a\\nparliament, and by which they must take and obey such laws\\nas others make for them, is quite distasteful to most modern\\npopulations. If such tractable peoples can be found and\\nthey are willing peaceably to be governed by a few men it is\\nnot to be denied that the state may be so organized as very\\nmuch to advance the social interests of the inhabitants. In\\nrecent years the progress made by the Russian nation and by", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0407.jp2"}, "408": {"fulltext": "392 THE REFERENDUM IN AMERICA\\nthe Germans, among whom there are still traces of arbitrary\\npower adhering to the crown, has been very great. A gov-\\nernment which anticipates the people s wants and provides\\nfor them, can do a great deal to advance civilization in one\\nway or another. A great modern socialistic engine, it can\\ncarry roads and railways into wildernesses, erect telegraph\\nand telephone lines, build schools, markets, hospitals, post\\noffices and even employ the people in factories, mines and on\\npublic works, so as to create an appearance of prosperity and\\nthrift. Whether it is not better for a race to work out its\\nown destiny without aids of this kind remains an open ques-\\ntion which social philosophers will long continue to discuss.\\nIt is a fact, however, that when a people have once come to\\nknow and to appreciate the privilege of being able freely to\\nadvance without the aids or interferences of a power which\\nis set up over their heads it is hard to get them again to sub-\\nmit with good grace to any body of rulers or bureaucrats, no\\nmatter how much the latter may protest that they are working\\nsolely in the public interest. In the presence of great modern\\nstanding armies under strict organization, revolutionary sen-\\ntiments may be suppressed and the state may pursue its\\ncourse more or less independent of public opinion. These,\\nhowever, are not the conditions which should naturally rule\\nin a society and a representative system of popular govern-\\nment is to-day a factor which must be reckoned with nearly\\neverywhere.\\nThe evils which have developed in this system are not\\nsmall ones. The growth of dangerous groups in parlia-\\nments, such as those which gather under the name social-\\nist the advocates of unsound forms of currency, the\\nthoughtless popular leaders who clamor for a war of con-\\nquest in order to please the multitude and ride back on a wave\\nof public enthusiasm to another term of office, the selfish and\\nthe dishonest who would use the government to enrich them-\\nselves personally and the class which they represent, the\\nBoss and his men who are the curse of the system in\\nAmerica all these are manifestations which cause reflective", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0408.jp2"}, "409": {"fulltext": "REFERENDUM VS. REPRESENTATIVE SYSTEM 393\\npeople to pause and tremble for the future of representative\\ngovernment. If a legislature chosen by the people is to de-\\nvelop traits like these there are plainly very great evils at hand\\nfor which we are justified in seeking some drastic remedy.\\nIf the people cannot select from among themselves delegates\\nwho are above a desire to overturn the present social order,\\nor to perpetuate themselves in office, or to steal from the state\\nand from society, or to cheapen the currency, or to precipitate\\na war for the sake of the excitement and exhilaration that it\\nyields to the lowest classes of the inhabitants, parliamentary\\ngovernment must indeed have passed through the day of its\\ngreatest glory and usefulness.\\nIn the United States we have arrived at such a point that\\npolitical organizations under party names are created to deal\\nand traffic in offices. The political organization like a busi-\\nness organization has its chief who appoints his subordinates\\nand this group, each member faithful to the one over him\\nunder penalty of discharge from his place, so controls the\\nparty and the electoral machinery that no one can get a\\npublic office of profit or honor in the state except through the\\nBoss. This extraordinary personage, wholly unknown to the\\nconstitution, levies upon private individuals and corporations,\\nand makes and unmakes laws as they pay him for doing.\\nThe system is so well established and it is in practice so diffi-\\ncult to uproot the great evil, that influential citizens rather\\nthan put themselves to the trouble and expense and undergo\\na campaign of personal abuse which would be conducted\\nagainst them by the Boss and his men, prefer to sit down\\nquietly and submit unless the suffering perchance should be-\\ncome so acute as actually to be no longer tolerable. We see\\npublic money being wastefully spent, taxes raised to be de-\\nvoted to unworthy ends, laws passed which treat one interest\\nunjustly at the expense of another until we have become cal-\\nlous to the sight. The good citizen realizes by experience\\nthat it would require the possession of unusual political talent\\nand ability were he to organize an effective opposition move-\\nment to overthrow this peculiar system, the expenditure of", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0409.jp2"}, "410": {"fulltext": "394 THE REFERENDUM IN AMERICA\\nvery large sums of money this is one of the most expensive\\nforms of patriotism in the United States while he and those\\nwho enlisted to aid him would be assailed and ridiculed on\\nall sides, on the public platform and in the Boss subservient\\npress. Even with all the best elements in the community\\nco-operating with him and the newspapers and the clergy on\\nhis side, he still could not hope to win the battle unless he\\nwent to the real source of things and perfected his organiza-\\ntion in such a way in each local district and precinct that he\\nhad control of the machinery for making nominations\\nand conducting the elections. How little influence the press\\nseems nowadays to exert in such matters has been demon-\\nstrated over and over again in reform campaigns in New\\nYork, Philadelphia and other large American cities. All the\\nnewspapers of a great city may be opposed to the vicious gov-\\nerning elements and yet it may avail nothing if the reformers\\ndo not go down to each polling place to organize the electors\\nand assemble the votes, a difficult as well as a most unpleasant\\ntask, though it is the source of every Boss peculiar power.\\nMoreover and in addition to all this even when one campaign\\nis successfully conducted against such elements, experience\\nhas shown that it is only a few years until the people, forget-\\nful of their earlier wrongs, again become apathetic. Break-\\ning ranks they disorganize and, being busily engaged again in\\nthe conduct of their private affairs in an individualistic com-\\nmunity, they allow the administration to drift into the hands\\nof the same classes which were but lately driven out of the\\noffices they had so long disgraced. It seems incredible that\\nsuch an evil should have developed and should continue to\\nflourish without our finding some way to combat it. It, how-\\never, has so long been with us that it must be regarded as a\\nrather natural if every illegitimate outgrowth of the repre-\\nsentative system in a democracy.\\nThis abomination has assumed an especially aggravated\\nform in the States and cities, the lanes and by-ways of our\\nconstitutional system. The adoption of the Federal Constitu-\\ntion and the development of the national government by grad-", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0410.jp2"}, "411": {"fulltext": "REFERENDUM VS. REPRESENTATIVE SYSTEM 395\\ntial process running through a long period, helped forward\\nso greatly by the Civil War which finally disposed of the\\ntheory of State Rights, has centred popular interest in the\\nnation to a degree which would have astounded the most\\nardent Federalist a hundred years ago. There are two\\npatriotisms in the United States, Mr. Bryce somewhere tells\\nus. If this is still true to-day it is a very small portion of\\npatriotism which is reserved for Pennsylvania, or New York,\\nor Louisiana, or Maryland. It does not thrill the average\\nman very much to be the citizen of any particular State of the\\nUnion in comparison with the satisfaction that he feels in\\nbeing a citizen of the United States an American He\\nis much more intent upon the outcome of national politics in\\nthe election of Presidents, Congressmen and other Federal\\nofficers and in watching the development of a national legis-\\nlative and administrative policy. There is little interest left\\nto be bestowed upon the States. It is not to be denied that\\nthe Bosses in the States exert a very considerable influence\\non the Federal government, but we have yet produced no such\\nthing as a national Boss in the sense that we have this man\\nin a city or a State. It is outside national politics, away from\\nthe public gaze, in the dark places of the American political\\nsystem that this evil thrives.\\nThe people seem to-day to have no general understanding\\nor appreciation of their State governments. A citizen who\\ncould tell you the period for which Presidents, Senators and\\nCongressmen were elected, the number of members sitting\\nin the Federal legislature, the names of the representatives\\nfrom his own district, would in all likelihood be unable to\\nanswer the same questions regarding the political organiza-\\ntion of his State. The subject does not interest him. He\\ndoes not perceive that the State now fills any important place\\nin the system and beyond his conviction that the legislature\\nis a source of political confusion and disturbance whenever\\nit meets, and that it ought to be restricted as much as possible,\\nin the exercise of its authority, his ideas on the subject are\\nvery vague. The representative system in the States is ma-", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0411.jp2"}, "412": {"fulltext": "39^ THE REFERENDUM IN AMERICA\\nking way for the referendum; in the first place through the\\ndevelopment of the powers of the convention which submits\\nits constitutions to popular vote; and secondly, through the\\npoll of the people on State and local laws which are passed\\nalong to them by the general assembly or legislaturcA-^This\\nmethod of polling the people to find out what they think of\\na proposed legislative measure, as a means of avoiding the\\nevils which have grown up in connection with the representa-\\ntive system, has been supplemented, moreover, by the develop-\\nment of a curious activity by local administrative boards,\\nwhich are sometimes elected by the people^ though many are\\nappointed by executive and judicial officers. It is noteworthy\\nto how great an extent judges, who have fortunately proven\\nmore incorruptible than other classes of public officials, have\\nbeen saddled with extra-judicial duties, as for instance in re-\\ngard to the laying out of roads and the granting of liquor\\nlicenses. By one makeshift or another, therefore, the tend-\\nency to place the responsibility upon the shoulders of new\\nagents has gone forward until the books on American gov-\\nernment will soon have to be rewritten.\\nNot only are the constitutions, with their great body of pro-\\nvisions and specifications in respect of so many various\\nsubjects, submitted to popular vote, as well as the amend-\\nments to these instruments, but so, too, are many acts of the\\nlegislature. Restricted as they have been to a constantly nar-\\nrowing field of activity the legislatures must submit a number\\nof matters to the vote of the people of the State, such as\\nmeasures to borrow money on the State s credit, banking acts,\\nbills to remove State capitals, etc. In one State, South\\nDakota, the initiative and the referendum have been intro-\\nduced into the constitutional system in a more general form,\\ni. e.y from this time forward any law which the representative\\nlegislature has passed must be submitted to the people, if a\\ncertain number of the citizens request it. And, moreover,\\nentirely new measures may be initiated or originated by the\\npeople and these if accompanied by petitions containing a des-", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0412.jp2"}, "413": {"fulltext": "REFERENDUM VS. REPRESENTATIVE SYSTEM 397\\nignated number of signatures must also be submitted to pop-\\nular vote. If, however, no special authorization to submit\\na subject to the citizens is contained in the constitution the\\nlegislature of the State is without the power to call for a ref-\\nerendum on general State laws. To the legislature the people\\nhave delegated the law-making power and it is not compe-\\ntent for it to re-delegate its authority to any other body, not\\neven to pass it back again to the people themselves. This is\\na well established principle in American public law.\\nOn the other hand, respecting acts which relate to the man-\\nagement of the people s common affairs in the local political\\ndistricts, the legislature is held to have more extensive powers.\\nIt may and does submit, without specific authorization de-\\nrived from the State constitution, laws establishing the\\nboundaries of cities, towns, counties, etc., fixing local cap-\\nitals and seats of government, levying taxes and contracting\\nloans for local purposes, exercising the police power with\\nreference to the liquor traffic and the running-at-large of live\\nstock, and in relation to many other different subjects. In\\nthis case the courts conceive that the legislature does not dele-\\ngate its authority as a law maker, and distinctions are drawn\\nbetween laws to apply to the whole State and to be voted\\non by the people of the whole State, and laws applying to and\\nsubmitted in the separate local subdivisions of the State.\\nThere is one limitation here which it is worth while to ob-\\nserve and it is this, that it is not competent for the legisla-\\nture at its pleasure to treat subjects of State and local\\nlegislation as if they were interchangeable. The legislature\\nof Massachusetts in 1894 asked the justices of the Supreme\\nCourt of that State for their opinion upon two important\\nquestions, as follows\\nI Is it constitutional in an act granting to women the\\nright to vote in town and city elections to provide that such\\nact shall take effect throughout the Commonwealth upon its\\nacceptance by a majority vote of the voters of the whole Com-\\nmonwealth", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0413.jp2"}, "414": {"fulltext": "398 THE REFERENDUM IN AMERICA\\n(2) Is it constitutional to provide in such act that it shall\\ntake effect in a city or town upon its acceptance by a majority\\nof the voters of such city or town?\\nIn this opinion a majority of the justices recognized that a\\nlaw applying to the whole State referred in this manner to\\npopular vote would in general be unconstitutional as a re-\\ndelegation of power, while, on the contrary, a law relating to\\na local district would usually be held to be constitutional.\\nNevertheless the subject of the local law must be one that\\nlends itself properly to local treatment. Changing the con-\\nditions upon which citizens shall exercise the franchise is not\\na subject of this kind. Such a proposition could not be sub-\\nmitted in local districts, the adoption of the law being made\\noptional with the people in their separate communities. The\\njustices therefore answered both questions in the negative,\\nthus calling attention to a fact which is entitled to general\\nrecognition, in order that a check may be put upon a serious\\nabuse growing out of the confusion that has arisen in many\\nStates by reason of the legislature s disregard of plain legal\\ndistinctions of this character.\\nThe courts have made use of two main lines of argument in\\njustification of the submission of laws to popular vote in local\\ndistricts. In the first place it is argued that a legislature may\\npass a law contingent upon the happening of a future event,\\nor the fulfillment of a specified condition, e. g., the arrival of\\na certain future date when the law is to go into effect, or the\\nperformance of some act by other parties or individuals.\\nThis condition, it is conceived, may also be a favorable vote\\nof the people. Of this legal theory much has been made in\\nmany States, throughout a long series of important decisions,\\nand it finds some support in several leading Federal cases.\\nIf such a condition may be an affirmative vote of the people\\nof a city or county one is impelled to ask why it may not also\\nbe a vote of the people of a State, in which case, however, the\\nargument seems in general to have won no favor in the\\nCf. Cargo of the Brig Aurora v. United States, 7 Cranch, 382 Field\\nV. Clark, 143 U. S. 649.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0414.jp2"}, "415": {"fulltext": "REFERENDUM VS. REPRESENTATIVE SYSTEM 399\\ncourts. No other impression is created by a study of the\\nvariotis judicial opinions bearing on this subject, in the face\\nof such odd distinctions, than that a beHef exists that a Hmit\\nmust be estabhshed somewhere to a practice which in the\\nend may carry us a perilous distance away from the principles\\nof representative government. For this reason the courts\\nseem willing to accept the contingency theory in the one case\\nwhile they reject it in the other.\\nAs for the second argument urged in defense of the refer-\\nendum on local government acts, it is developed from the fact\\nthat the legislature is in possession of extensive powers over\\nmunicipalities and the local political subdivisions of the State.\\nThis theory appears to rest on a more substantial basis. The\\ncity, the county and the other local governmental districts are\\nthe creations of the State through its agent the legislature.\\nThe legislature may do with them very much as it likes except\\nas it has been limited in plain terms by the State constitution.\\nIf it is desired that the city shall be governed by one person,\\nor a committee of persons, it is undoubtedly its right to make\\nsuch a rule and to enforce it. City, county and town affairs\\nare administered in obedience to laws and in accord with prin-\\nciples which are very diverse. The legislature certainly does\\nnot go outside its constitutional bounds when it passes an act\\nrespecting local government which is to be submitted to a\\nvote of the people. Legally it is as competent for it to put\\nthe responsibility for the management of local afifairs on the\\nshoulders of the people as a whole, as upon a mayor, a board\\nof aldermen, a commission or any other local agency. It is\\nargued, too, that it is expedient for the legislature to submit\\nmany local questions to popular vote, those for instance upon\\nwhich the people are likely to disagree such as financial pro-\\nposals and laws for the prohibition of the liquor trade. If\\nrules are to be established by a distant authority for a local\\ndistrict it is in the highest sense desirable that there should be\\nan assurance of the acquiescence of the people in them. This\\nacquiescence is the more likely if the citizens have been al-\\nlowed to vote on the subject by way of the referendum.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0415.jp2"}, "416": {"fulltext": "400 THE REFERENDUM IN AMERICA\\nIt is of course to be understood that the local government\\nin its turn, through its representative legislature city coun-\\ncil, village trustees, etc. may not submit its own by-laws ad\\nlibitum except upon authority expressly derived from the\\nState (through the legislature or the convention). This\\nwould be a re-delegation of power for which there could\\nbe no legal justification. The municipal corporation or other\\nlocal political district is a derivative creation. When it is\\nassigned a task it can no more pass it on to another body, as\\nfor instance to the people, than can the legislature itself.\\nThe general rule that the legislature may not re-delegate the\\nlaw-making power, with the well recognized exception to the\\nrule that the submission of local government acts to popular\\nvote is no such re-delegation of authority, however the courts\\nmay seek to justify it, is firmly grounded in the American\\npractice.\\nWithin a few years past the Swiss institutions, the initia-\\ntive and referendum, have been studied in many lands by\\nmany men who have had many different interests to serve.\\nWherever in Europe, west of the German Empire, representa-\\ntive government has already established itself on substantial\\nfoundations the next step seems to be the referendum or\\nplebiscite, advocated either as a corrective of evils which have\\ndeveloped in the representative system or as a means of help-\\ning some agitator gain his ends. In France a revolutionary\\ngroup has for years urged a plebiscite on the republican con-\\nstitution in the hope that the people would vote against it\\nand the way would then be opened for another form of gov-\\nernment. The name plebiscite in French and Italian history\\nis at once suggestive of the plebiscites of the Napoleons, and\\nof Victor Emmanuel during the reconstruction days in Italy,\\nwhen questions of allegiance were submitted to the people\\nI under the auspices of an army of occupation, a not very cer-\\ntain method of securing a free expression of public opinion.^\\nCf Maine on Popular Government, 2nd ed., London. 1886, pp. 65-66;\\nA. V. Dicey, Ought the Referendum to be Introduced into Eng-", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0416.jp2"}, "417": {"fulltext": "REFERENDUM VS. REPRESENTATIVE SYSTEM 401\\nIn Belgium, when the constitution of that kingdom was\\nrecently revised, the subject of the referendum was generally\\ndiscussed throughout the country. A proposition to intro-\\nduce this feature of the Swiss system in a modified form into\\nthe new Belgian constitution was seriously entertained by the\\nconstituent assembly at Brussels and it led to a number of\\nuseful and thorough inquiries into the history of law-making\\nby popular vote. By far the most important of these works\\nby Belgian writers is The Referendum in Switzerland, by\\nSimon Deploige. This excellent book is made more available\\nto English readers by Mr. Trevelyan s translation, with the\\nfull and instructive notes by Miss Lilian Tomn.^ The sub-\\nject lias been treated in a less specific way by M. de Lave-\\nleye and other eminent students of constitutional questions\\nin Belgium.*\\nIn England the subject has received not a little attention\\nfrom Prof. A. V. Dicey, Mr. Lecky, Mr. Bryce, Mr. St. Loe\\nStrachey and other writers who have approached the subject\\nin a spirit of sincere inquiry. The leaders of the Socialist\\nand Labor party in England have expressed an interest in the\\nreferendum also, though with different motives. In a recent\\nparliamentary campaign the Liberal party put forward as one\\nof its issues a Local Veto bill which, had it been passed,\\nwould have introduced into England the principle of allowing\\nthe people to vote in local districts on the question of pro-\\nhibiting the liquor trade, in very much the same manner as\\nin the American States. In the British Islands it is not un-\\nusual for a poll to be taken in parishes and towns on the sub-\\nland Contemporary Review for April, 1890; C. Borgeaud, Histoire\\ndu Plebiscite^ 1887; Lecky, Democracy and Liberty, Vol. I, pp. 14-15,\\n38, 40, 478, 483.\\nLe Referendum en Suisse par Simon Deploige, avocat, precede d une\\nlettre sur le Referendum en Belgique par J. Van Den Heuvel, Brussels,\\n1892. The English translation was published in London in 1898.\\nCf. Le Gouvcrnement dans le Democratie, Vol. II, pp. 146 et scq.\\nLecky, Democracy and Liberty, Vol. I, p. 285 A. Le Ghait, The Re-\\nvision of the Belgian Constitution, North American Review, Vol. 157,\\np. 550.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0417.jp2"}, "418": {"fulltext": "40 2 THE REFERENDUM IN AMERICA\\nject of establishing free libraries or constructing water\\nworks.\\nIn Canada, where it is to be hoped this subject may soon\\nreceive the attention it deserves from some Canadian student,\\nthere is a large fund of material for a scientific treatise on the\\nreferendum. Local matters such as the issue of bonds in aid\\nof industrial enterprises and the increase of the rates are fre-\\nquently submitted to popular vote. In the Dominion, where\\nthe referendum is usually known as the plebiscite, the ques-\\ntion of prohibiting the liquor traffic, since the passage of the\\nScott Act in 1878,\u00c2\u00ae has frequently been submitted to the\\npeople in their local communities. More recently this subject\\nhas been referred to popular vote in the provinces. Such a\\nplebiscite was not, in a strict sense, a reference of a law to the\\npeople but simply a device by which the legislature could ac-\\nquaint itself with the popular sense. As the provincial legis-\\nlature in Ontario declared, it was desirable that opportunity\\nshould be afforded to the electors of this province to express\\na formal opinion as to whether or not the importation, manu-\\nfacture and sale into or within this province of intoxicating\\nliquors as a beverage should be immediately prohibited\\nThis opinion it was conceived could be most conveniently\\nascertained through a plebiscite.\\nIn 1898 a poll of the people of the entire Dominion was\\ntaken on the subject of prohibition, again merely in an ad-\\nvisory way, no law being actually submitted and the govern-\\nment binding itself to no course or policy afterward. As in\\nthe States of the United States the Canadian legislature re-\\nferred this question to the people in order to conciliate the\\ntemperance element which had begun to exert an active in-\\nfluence in politics. This act, known as The Prohibition\\nPlebiscite Act of 1898 proposed that the following question\\nshould be addressed to each voter in the Dominion Are\\nFor instances of local option on the liquor question in Norway see\\nthe London Times for April 13, 1898.\\n^4ist Victoria, chap. i6.\\n^Statutes of the Province of Ontario, 56th Victoria, p. 156.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0418.jp2"}, "419": {"fulltext": "REFERENDUM VS. REPRESENTATIVE SYSTEM 403\\nyou in favor of the passing of an act prohibiting the importa-\\ntion, manufacture or sale of spirits, wine, ale, beer, cider and\\nall other alcoholic liquors for use as beverages to which\\nthe voter was to reply yes or no by placing a cross-\\nmark in a space prepared for the purpose.^ The vote is\\nvery noteworthy from the fact that it is the first attempt that\\nhas ever been made to collect the sense of the people on a sub-\\nject of legislation over any territorial district of so great an\\narea. Although plebiscites are frequently taken in the indi-\\nvidual States of the United States we have never yet had a\\nreferendum which included all the States, embracing there-\\nfore the whole Federal area. This election cost the Dominion\\nof Canada about $300,000,^ and although there was a small\\nmajority on the face of the returns in favor of prohibition,\\nall the provinces voting for the proposition except Quebec,\\nless than 30 per cent of those entitled to vote on the subject\\nwent to the polls.\\nThe Canadian experience as to the apathy of the people on\\nquestions of legislation which are referred to them is therefore\\nin complete harmony with our experience in the United\\nStates. Unlike the legislatures in the United States, the\\nParliament and legislatures in Canada may submit laws to\\npopular vote if they consider this course to be politic and\\nexpedient. The Canadian legislatures, federal and pro-\\nvincial, have plenary powers. They are not in any sense\\ndelegates of the Imperial Parliament at V\\\\^estminster but\\npossess powers quite as large as those held by that body it-\\nself. The Dominion Parliament as well as the legislatures\\nof the separate provinces may legislate conditionally, there-\\n*Acts of the Parliament of the Dominion of Canada, 6ist Victoria,\\nVol. T, p. 219 cf. also New York Nation of May 5, 1898.\\nLondon Times of Oct. i, 1898, p. 5.\\nA Canadian correspondent wrote to the New York Evening Post on\\nthe day after the election as follows In some cases half the electorate\\npolled but these were exceptional. From one-fourth to a third was a\\nmore common proportion, and in some districts it fell as low as one-\\neighth. Many of those who did vote seemed to wander into the polling\\nstations more by accident than by set purpose.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0419.jp2"}, "420": {"fulltext": "404 THE REFERENDUM IN AMERICA\\nfore, as for instance by enacting that a law shall come into\\neffect only on petition or vote of a majority of the electors.\\nIn the Anglo-Saxon communities in Australia and New\\nZealand the referendum has already gained considerable\\nheadway and it seems likely to enjoy a much greater develop-\\nment within the next few years.^^ The same principle has\\nlately had several applications in the course of the efforts\\nwhich have been made to bring the various colonies together\\nin a Federal Union, a result that is now at last assured. It\\nwas even proposed when the Commonwealth Bill was being\\ndiscussed that the referendum should be incorporated in the\\nFederal Constitution as a permanent feature, under definite\\nlimitations, of the new government.\\nIn our own Republic the reform has recently been given a\\ngreat impetus by reason of the admiration which has been\\nexpressed for Switzerland s example. This result has been\\ninduced in some degree by a study of the subject by a large\\nnumber of competent writers on constitutional questions,^*\\nCf. A. H. F. Lefroy, The Law of Legislative Poiver in Canada, To-\\nronto, 1898, pp. 244-59, 495-96 New York Nation of May 5, 1898.\\n^2 C\u00c2\u00a3. Miss Lilian Tomn, The Referendum in Australia and New\\nZealand Contemporary Review, Vol. 72, p. 242.\\nCf. J. M. Vincent, State and Federal Government of Switzerland,\\nBaltimore 1891 A. L. Lowell, Governments and Parties in Continental\\nEurope, 1896, Vol. II, pp. 240 et seq., and The Referendum in Switz-\\nerland and America Atlantic Monthly for April, 1894, p. 517; E. L.\\nGodkin, Some Unforeseen Tendencies of Democracy, 1898, pp. laS\\net seq.; J. R. Commons, Proportional Representation, 1896, pp. 186\\net seq.; G. Bradford, The Lesson of Popular Government, Vol. II, pp.\\n189 ct seq.; A. B. Hart, Vox Populi in Switzerland New York Na-\\ntion, Vol. 59, p. 193 New York Nation, Vol. 58, p. 206. The leading\\nwritings and works in other countries on this subject, which may be\\nprofitably consulted by the student are: Adams and Cunningham, The\\nSwiss Confederation, London, 1889; W. E. H. Lecky, Democracy and\\nLiberty, London, 1896, Vol. I, pp. 277 et seq.; Maine on Popular Gov-\\nernment, 1886, pp. 41, 68, 95-6; E. A. Freeman, Growth of the English\\nConstitution, chap, i, for an account of the Swiss Landsgemeinde C.\\nB. Roylance-Kent in MacMillan s Magazine, Vol. 69, p. 15 National\\nReview for February, March and April, 1894; London Spectator, Vol.\\n72, p. 188, and Vol. 73, PP- 234, 494; Speech by Mr. A. J. Balfour re-\\nported in the London Times of Feb. 5, 1894; A. V. Dicey, The De-\\nfence of the Union Contemporary Review, Vol. 61, p. 314; S. Deploige,", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0420.jp2"}, "421": {"fulltext": "REFERENDUM VS. REPRESENTATIVE SYSTEM 405\\nbut it has been chiefly encouraged by a popular poUiical\\nmovement in the West of far-reaching proportions. A de-\\nmand for the introduction of the initiative and the referen-\\ndum into the practice of the United States is to be found in\\nthe platforms of a party whch has lately made itself a\\ndominating force in a number of States. There are Direct\\nLegislation Leagues Articles on this subject are constantly\\nappearing in newspapers and magazines which are devoted\\nto radical social and political reforms. Large classes of the\\npopulation seem to have become imbued with the idea that if\\nthe people should once secure the privilege of originating\\nand adopting their own laws all other difficulties would vanish\\naway. A Convention attended by more than 500 dele-\\ngates was recently held in Ohio at which a full list of\\nState officers was nominated upon a platform of a single\\nplank Direct legislation under the system known as the\\ninitiative and the referendum.\\nThe initiative and the referendum, called by these names,\\nas a result of this movement have been introduced into South\\nDakota with respect to all laws passed by the State legislature,\\nas well as by the local municipal legislatures in Nebraska\\nwith respect to laws passed by the State legislature in refer-\\nence to localities; and in San Francisco, by the new charter,\\nwith respect to city by-laws. These recent manifestations of\\ninterest in an imported institution real students of American\\ngovernment will regard with less favor than were the same\\ninterest expressed for the more natural outgrowths of our\\ntown-meeting system. I think it has been sufficiently well\\nindicated by this time to what a degree of development the\\ninitiative and the referendum or plebiscite have attained in\\nop. cit. J. Signorel, Etude de legislation comparee sur Ic referendum\\nlegislatif, Paris, 1896, a work of 470 pages crowned by the Faculte\\nde Droit of Paris in 1894; Borgeaud, Etablissement et Revision des\\nConstitutions, Paris, 1893 Saleilles in Revue du Droit Public, Septem-\\nber-October, 1894, pp. 345 et seq. Numa Droz, Etudes et Portraits Poli-\\ntiques, Geneva, 1895, and The Referendum in Switzerland in the\\nContemporary Review of March, 1895 E. de Laveleye, op. cit.. Vol. II,\\npp. 146 et seq.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0421.jp2"}, "422": {"fulltext": "4o6 THE REFERENDUM IN AMERICA\\nthis country by a natural historical evolution. The referen-\\ndum on State Constitutions, beginning with Massachusetts\\nand New Hampshire, and spreading over the entire Union;\\nthe poll of the people on calling a convention to revise the\\nconstitution and on constitutional amendments proposed by\\nthe legislature the referendum on propositions to make loans\\non the credit of the State, on banking acts and laws to change\\nthe sites of State capitals the referendum on local govern-\\nment acts, financial propositions and local option laws\\nin respect of the sale of liquors and the running at large of\\ndomestic animals these are all the outgrowths of a natural\\nmovement which can be traced down historically step by step\\nfrom the New England town-meeting. Again, the petition\\nfor an election on prohibition or on a proposition to issue\\nbonds, which has had a place in the American system of local\\ngovernment for many years, is the initiative in the same\\nform in which it to-day occurs in Switzerland. We do not\\nneed to go outside of our own national borders for the ma-\\nterial for a work upon the initiative and the referendum. It\\nexists inAmerica in abundance,^^ and if the system of submit-\\nting laws to popular vote shall be destined to enjoy a still\\ngreater development in this country it would be much safer\\nand much more legitimate were we to draw more freely upon\\nthe native experience instead of turning all the while to\\nanother land in which social and political conditions are nec-\\nessarily very different from our own. At this day it will be\\nfound to be no wiser to introduce strange features into the\\ngovernment than it proved to be in Pennsylvania in 1776.\\nWhatever is of greatest value in a government and, especially\\ntrue is this maxim in reference to democratic government, is\\nthat which flows naturally out of a people s experience. They\\nare accustomed to types and forms. They have social and\\npolitical habits which are grounded in deep-rooted racial\\ntraits. To disregard the teachings of history in this respect\\n^*The Canadian plebiscite is also a natural development without con-\\nnection with the Swiss influence.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0422.jp2"}, "423": {"fulltext": "REFERENDUM VS. REPRESENTATIVE SYSTEM 407\\nis to invite social friction which may lead to serious disorders\\nas experience with government running through many cen-\\nturies tends abundantly to show.\\nWhatever may be the future of the initiative and the refer-\\nendum in the American States it will always be necessary to\\ntake account of several basic facts of which great bodies of the\\npeople seem often to be unmindful. These are of various\\nsorts, but they may all be resolved into one primary fact which\\nhas to do with the manifest inequality of men. All men are\\nclearly not endowed with the political genius to an equal de-\\ngree. All are not equally intelligent, moral or capable. The\\nwhole social and economic order testifies to this inequality,\\nas do our biological progress and evolution which go forward\\nonly because of the existence of this important fundamental\\nprinciple. We know very well that over and against this\\nnatural principle is set a great deal of humanitarian sentiment\\nwhich sometimes has taken one form and sometimes another.\\nIt was this sentiment manifesting itself through Rousseau\\nand the philosophy which was the forerunner of the French\\nRevolution. It is this sentiment that is at the bottom of the\\ngreat social upheaval which to-day threatens the world, and\\nwhich in one country, as in Germany, may become a demand\\nfor sweeping economic reforms and in another, where the\\npopular disposition is less academic and speculative, for some\\nsuperficial political reform. Elements in the American pop-\\nulation, which are more or less the same, have repeatedly or-\\nganized political parties to secure paper money, silver money,\\nto prohibit the liquor trade, to enfranchise women, to combat\\nlarge associations of capital in industry, to tax the rich, and\\nwhen thwarted in their purposes by the Federal Supreme\\nCourt to abolish or curtail the powers of that august body.\\nThese dissatisfied groups of persons impelled by the Amer-\\nican character for superficiality and the desire to attain results\\nby sudden applications of energy to some one particular end\\nhave more recently turned their attention to the system of\\nlaw-making in general, and, quite as vehemently and appar-\\nently as full of conviction as before, they announce that they", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0423.jp2"}, "424": {"fulltext": "4o8 THE REFERENDUM IN AMERICA\\nhave at last found the true source of their troubles in the\\nrepresentative principle. Acts are passed that are an of-\\nfense to the people and many subjects upon which there\\nshould be legislation are entirely neglected by the people s\\ndelegates. Therefore the initiative and the referendum\\nshould be imported from Switzerland in order to re-establish\\nthe principles of justice and insure the future happiness of\\nthe state. Such a line of thought must manifestly rest upon\\nan assumption that laws are of an exaggerated potency in\\nmaking the citizens prosperous, a view which has long been\\nfostered in the United States by the protective tariff cam-\\npaigns.\\nIt was Rousseau who desired to simplify government and\\nlegislate by an unchecked convention in order to bring the\\nstate back to a condition as near as possible to that ideal orig-\\ninal form in which the citizens met together under an oak\\ntree and made their own laws. John Adams and other\\npatriots in this country successfully combatted such theories\\nin the American States and organized a government of checks\\nand balances. In all States where universal suffrage has\\nbeen introduced there is a certain presumption of human\\nequality and we usually grant the theory a good deal of in-\\ndulgence in the belief that democracy is, for us at least, the\\nmost expedient and perhaps the only practicable form of\\ngovernment. We in America, however, have so organized\\nthe state that the people as a mass do not draft their own\\nlaws, or generally adopt them. They do not in a body exe-\\ncute or administer the laws; nor again do they interpret\\nthem and adjust conflicting interests in the courts of justice.\\nAll these functions adhere to representatives whom the peo-\\nple themselves elect, or who are chosen at second hand by\\nagents which the people directly elect. We look to the people\\nunder our system so to organize themselves in their various\\nlocal districts, neighbors with neighbors, that they will choose\\nto represent them men of more than average capability and\\nmen who can creditably represent them. All the stock-\\nholders of a private company, or the members of a private", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0424.jp2"}, "425": {"fulltext": "REFERENDUM VS. REPRESENTATIVE SYSTEM 409\\nassociation or a church are not fitted equally well to conduct\\nits affairs. It should be a matter of pride with them, how-\\never, as well as a matter of self-interest, that the very best\\nmen available for the service should be put forward into\\nplaces of responsibility and leadership. This is what we have\\nassumed would occur in each political precinct under the\\nrepresentative system to the end that the wisest men and the\\nmost honest men, having been returned from each com-\\nmunity, would co-operate in the work of public management.\\nThat we are a long way from having realized our hopes and\\ndreams it takes no extraordinary insight to perceive. We\\nare now offered the initiative and the referendum as correc-\\ntives for the evils that have developed in the system of gov-\\nernment by representatives in two ways, as these institutions\\nhave come down to us by natural evolution and as a foreign\\nimportation recommended to us by Switzerland.\\nJudge Jameson writing of this subject, now a number of\\nyears ago, and alluding to the submission of the work of the\\nconstitutional conventions to popular vote, suggested the ad-\\nvisability of bringing the people into the system as their own\\nlaw-makers to a still greater extent. He observed that the\\npeople acting as legislators need the antecedent ministry of\\nintelligent and skilful committees to gather and to embody\\nin fitting forms their collective sense. Our conventions are\\nsimply committees of such a kind. And if we look closely\\ninto the principles of legislation the fact that the people\\nnever legislate in a single body, but in groups assembled in\\nseparate districts, not to debate but to vote upon the measures\\nproposed to them does not constitute a radical difference be-\\ntween them and a legislature. The latter might enact the\\nstatute law in the same way and to those familiar with the\\npractices of such bodies it may be doubtful whether legisla-\\ntion so conducted would not be more honest, if not more in-\\ntelligent than it is now.\\nMr. Bryce in reviewing the disadvantages of direct legis-\\nlation by the people in general arrives at a very similar con-\\nOp. cit., pp. 529-30.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0425.jp2"}, "426": {"fulltext": "4IO THE REFERENDUM IN AMERICA\\nelusion with reference to the United States. He says These\\nconsiderations [touching the manifest incapacity of crowds\\nto make their own laws] will to most Europeans appear\\ndecisive against it. The proper course they will say is to\\nimprove the legislatures. The less you trust them the worse\\nthey will be. They may be ignorant; yet not so ignorant\\nas the masses. But the improvement of the legislatures is\\njust what the Americans despair of, or as they would prefer\\nto say, have not time to attend to. Hence they fall back on\\nthe referendum as the best course available under the circum-\\nstances of the case and in such a world as the present. They\\ndo not claim that it has any great educative eifect on the\\npeople. But they remark with truth that the mass of the\\npeople are equal in intelHgence and character to the average\\nstate legislator and are exposed to fewer temptations.\\nAnd again in another connection Mr. Bryce says\\nIt would doubtless be better if good legislatures were at-\\ntainable to leave the enactment of what are really mere stat-\\nutes to the legislature, instead of putting them in a consti-\\ntution. But if good legislatures are unattainable, if it is\\nimpossible to raise the senate and the house of each State\\nabove that low level at which they now stand, then the sys-\\ntem of direct popular action may be justified as a salutary\\neffort of the forces which make for good government, open-\\ning for themselves a new channel.\\nMr. E. L. Godkin in an essay on The Decline of Legis-\\nlatures says Democracies do not admit that legislatures\\nsuch as we see them are the last thing they have to try. They\\nseem to be getting tired of the representative system. In no\\ncountry is it receiving the praises it received forty years ago.\\nThere are signs of a strong disposition, which the Swiss have\\ndone much to stimulate, to try the referendum Inasmuch\\nas all important matters devised by the convention are sub-\\nmitted to the people with eminent success there is no reason\\nOp. cit., Vol. I, p. 472.\\nIbid., p. 476.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0426.jp2"}, "427": {"fulltext": "REFERENDUM VS. REPRESENTATIVE SYSTEM 41 1\\nwhy all grave measures of ordinary legislation should not\\nbe submitted also.\\nI may say again in concluding this chapter what I said at\\nits beginning. The final result of the development, in the\\nmidst of which we now are no one can predict with confi-\\ndence. Though the evils of the representative system are ad-\\nmittedly great the fact must be kept in mind that direct leg-\\nislation by the people is also attended by abuses of a very\\nserious kind. So far as our experience has already gone in\\nthe United States a number of glaring defects have been ex-\\nhibited by the people in their role as law-makers. The most\\nimpressive of these is their strange apathy even in the face of\\ngreat issues. They as a mass have so little interest in legis-\\nlative subjects that only a small percentage will attend the\\npolls for special elections and at general elections when in-\\ndividual candidates are to be chosen, though the propositions\\nbe printed on the same ballots with the names of the candi-\\ndates, a large proportion of the voters will not put themselves\\nto the slight trouble of placing a pencil mark under the word\\nyes or no The conclusion is unavoidable that the\\npeople considered as a bod}^ do not know anything, nor do\\nthey care anything about the merits or demerits of a particular\\nlaw. They may know little in the opinion of most of us\\nabout the respective merits of candidates for representative\\noffices. For one reason or another, however, the people still\\nhave enough interest in this subject to record their prefer-\\nences. It is true that the largest possible vote is never polled\\nfor candidates, but, speaking roughly, twice as many electors\\nUnforeseen Tendencies of Democracy, pp. 138, 143 5 cf. A. V. Dicey,\\nWill the Form of Parliamentary Government be Permanent Har-\\nvard Law Reviezv, Vol. XIII, pp. 67 et seq. Ought the Referendum to\\nbe Introduced into England? Contemporary Review, April, 1890, and\\nThe Referendum National Review for March, 1894; Lecky, Democ-\\nracy and Liberty, Vol. I, pp. 277 et seq. E. V. Raynolds, The Ref-\\nerendum and Other Forms of Direct Democracy in Switzerland Yale\\nReviezv, Vol. I, p. 289 The Referendum in America London, Spec-\\ntator, Vol. 71, p. 904; The Decline of Legislatures London Econ-\\nomist of June II, 1898.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0427.jp2"}, "428": {"fulltext": "412 THE REFERENDUM IN AMERICA\\nvote for individuals as vote for measures. Furthermore,\\nvery strange popular idiosyncrasies are developed at elections\\non propositions. When several are submitted at the same\\ntime all are likely to be defeated, or else all adopted. There\\nseems to be little capacity for discrimination. Again very\\nradical measures and many indeed of dangerous tendencies\\nare not always rejected by the people, or if they are there are\\nnot a few cases in which this result seems to have been\\nbrought about by accident rather than by serious moral pur-\\npose. It is easy to see on a most cursory examination that\\nunder such circumstances the people are very far from be-\\ning an ideal body of law-makers.\\nIt is proper to keep the fact in mind, however, that the\\ninitiative and the referendum, as we know them, are under\\ncheck and restraint and we are a long way from government\\nby the masses, even in South Dakota, where the principle has\\nbeen carried to its greatest length. Whether the referendum\\nis authorized by the convention or the legislature, the meas-\\nure is framed or proposed by a representative body of limited\\nmembership. The people are merely vetoers or ratifiers, and\\nalthough their rights with respect to constitutional law are\\nvery comprehensive in no case are their powers general re-\\ngarding ordinary statute law. In the worst case, if the\\nsubmission is not made on express authority of the legis-\\nlature, there must be presented a petition which contains the\\nsignatures of at least five per cent of the qualified voters\\nof the State. To assemble the names of so many citizens,\\nas experience -will show, is not so easy a task as it may appear.\\nWhen we are asked, therefore, to declare ourselves for the\\nrepresentative system or for unbridled popular rule the\\nquestion, in so far as it has to do with the initiative and the\\nreferendum, at any rate 3s these institutions have been\\ndeveloped in this country i -ide the mark. The referen-\\ndum will not supplant the ^esentative system, though it\\nhas been and may still be an influence to modify this sys-\\ntem in a very material way. Whether we approve of the", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0428.jp2"}, "429": {"fulltext": "REFERENDUM VS. REPRESENTATIVE SYSTEM 413\\nprinciple per se or disapprove of it, it is something that\\nhas fastened itself securely upon our constitutional practice\\nand it appears to be assured of a much more extended devel-\\nopment in the immediate future. One cannot escape the\\nthought, therefore, that there may be compensations in the\\nmethod, at any rate with regard to local government and that\\nit may at least not be an agency to make our system, already\\nbad, in any essential respect the worse. If this may seem\\nlike modest praise it is perhaps the natural conclusion of this\\nvolume which is not a Tendenzwerk, but an unvarnished\\nhistorical account of some important developments in the\\nfield of popular government in the United States of\\nAmerica.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0429.jp2"}, "430": {"fulltext": "", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0430.jp2"}, "431": {"fulltext": "INDEX\\nAcademy of Sciences In Paris,\\nhonors of, shown to Franklin,\\n31-\\nAdams, Chas. Francis his trib-\\nute to John Adams, 12.\\nAdams, John his moderate re-\\npubhcan views, 5 his views\\nof Paine, 5-8 his scheme of\\ngovernment for the American\\nStates, 7-12; his warnings dis-\\nregarded in Penna. 17, 21 his\\nConstitution in Massachusetts,\\n26, 69, 70, 105 his view of\\nFranklin, 31, 43; his defence\\nof the American Constitutions\\nagainst Turgot s attack, 34, 35,\\n69, 70, 71 ambassador to Eng-\\nland, 69 his services to Amer-\\nica, 66, 67, 391, 408.\\nAdams, Samuel, views of, re-\\ngarding single chamber sys-\\ntem, 70.\\nAlabama, limit of legislative ses-\\nsion in, 81 submission of con-\\nvention question in, 132;\\namendment of Constitution by\\nthe legislative mode in, 148,\\n150, 151; school lands in, 284;\\nfence laws in, 297, 300.\\nAmendment of State Constitu-\\ntions, by conventions, 128-141\\nby legislative mode, 137, 142-\\n172.\\nAnderson v. Commonwealth, 331,\\nAnti-Constitutionalists in\\nPennsylvania, 11, 38, 45, 55,\\n100, 102.\\nArkansas, amendment of Consti-\\ntution of, 151, 157; division of\\ncounties in, 228; choice of\\ncounty sites in, 231, 373, 379;\\nloans in local districts of, 254;\\nschool tax in, 273; school\\nlands in, 284, 382; local option\\nliquor law in, 290, 291, 292;\\nfence laws in, 297, 299, 382;\\npurchase of local lands in, 382.\\nAustralia, ballot system of, 165;\\nreferendum in, 404.\\nBache, Richard his opposition\\nto the first Constitution of\\nPenna., 30, 49; his alleged\\nTory inclinations, 52.\\nBallot system, necessary to the\\nreferendum, 3, no, in, 390;\\nin Penna., no, in; of Austra-\\nlia, 165.\\nBancroft v. Dumas, 320.\\nBanks, laws regarding, submitted\\nto popular vote, 191, 192, 193.\\nBarto V. Himrod, 211, 273.\\nBayard, Col. John his opposi-\\ntion to the first Constitution of\\nPenna., 45.\\nBelgium, referendum in, 401.\\nBeakeley, freeholders charter in\\ncity of, 349.\\nBiddle, Owen, a member of the\\nPenna. Convention of 1776, 16.\\nBiennial sessions of state legis-\\nlatures, 79, 80, 81.\\nBills of Rights in America. 2, 5.\\nBoss government in America,\\n392, 395-\\n415", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0431.jp2"}, "432": {"fulltext": "4i6\\nINDEX\\nBoston, representative system in,\\n109; street railway tracks in,\\n304.\\nBounties; for the scalps of wild\\nanimals, 262 for hedges, 263.\\nBradshaw v. Lankford, 332.\\nBridges, public control of, 259.\\nBrig Aurora v. United States,\\n327-\\nBryan, George, one of the fram-\\ners of the first Constitution of\\nPenna., 27.\\nBryce, James, views of, on Con-\\nstitutional Conventions, 98, 115,\\n116; on local government in\\nthe United States, 224; on the\\nreferendum, 409, 410.\\nBudget, annual in cities, 269.\\nBull V. Read, 326.\\nBurgess v. Rice, 319, 330.\\nBurnet, influence of writings of,\\n10.\\nCalifornia, special legislation\\nin, 85 rules governing par-\\nliamentary procedure in, 85\\namendment of Constitution of,\\n151; woman suffrage in, 160;\\nremoval of state capitol in, 162,\\n178, 179, 205 amendment elec-\\ntions in, 167, 170, 172; finan-\\ncial referendum in, 183, 185\\nadvisory referendum in, 207;\\nclasses of cities and counties\\nin, 220. 221 Home Rule\\nfor cities in, 222, 235, 347-356,\\n360, 361, 362; Home Rule for\\ncounties in, 223, 235 choice of\\ncounty sites in, 231, 373; town-\\nship system in, 240; high\\nschools in, 276, 374; limit of\\ndebt of local districts of, 280;\\ninitiative and referendum in,\\n307, 309, 368, 384, 387, 399; ju-\\ndicial opinions on lawmaking\\nby popular vote in, 321, 322,\\nCanada, liquor legislation in, 402,\\n403 powers of legislatures of,\\n403, 404, 406.\\nCanals, public aid to, 243, 244.\\nCannon, James a member of the\\nPenna. Convention of 1776,\\n16, 27, 48.\\nCapital, state, selection of site for\\n119, 176-179; removal of, in\\nCalifornia, 162, 178, 205 in\\nTexas, 176; in Oregon, 177,\\n178; in Kansas, 177; in Colo-\\nrado, 177, 178; in South Da-\\nkota, 177; in Montana, 178; in\\nGeorgia, 178; in Idaho, 178;\\nin Minnesota, 178; in Missis-\\nsippi, 178; in Nebraska, 178; in\\nWashington, 178; in Wyoming,\\n178; in Pennsylvania, 178.\\nCemeteries, purchase of land for,\\n260, 261.\\nCharters for cities, 222, 22.2)^ 224,\\n234, 235, 2 7 ^-Z^7-\\nChecks and balances in govern-\\nment, 7, 8, 6^, 72, 198.\\nChinese immigration in Nevada,\\n207.\\nCities, government of, 219-224,\\n234-236, 335-367 sites for pub-\\nlic buildings in, 233 selection\\nof name for, 234 special legis-\\nlation for, 236, 237; failure of\\nthe representative system in,\\n241, s-zzi, 363-364-\\nClymer, George a member of the\\nPenna. Convention of 1776, 16,\\n19, 45-\\nColorado, limit of legislative ses-\\nsion in, 82 amendment of Con-\\nstitution of, 151, 157; woman\\nsuffrage in, 160; amendment", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0432.jp2"}, "433": {"fulltext": "INDEX\\n417\\nelections in, 167 choice of cap-\\nital site in, 177, 178; poll of\\npeople in, on loan for capitol\\nbuildings, 188, 189; poll of peo-\\nple on tax questions in, 189,\\n190 on the division of counties\\nin, 228; on choice of county\\nsites in, 231, 2)72) on mayor s\\nsalaries in, 268 on limit of\\ndebt in local districts of, 279.\\nCommon Sense, Paine s, 5, 6,\\n7,8.\\nCondorcet; his advocacy of sin-\\ngle chamber government in\\nFrance, 28, 2 2,7 his friend-\\nship with Franklin, 31, 37.\\nConfederate pensions, 161.\\nConnecticut, first Constitution of,\\nreferred to popular vote, 112;\\nplan for amending Constitution\\nof, 146, 147, 152; amendment\\nelections in, 166; local option\\nin, 289, 290, 291, 371, 372.\\nConstitutions, state, growing\\nlength and changed character\\nof, 87, 88, 89, 94, 96, 99, 100,\\nI55 156, 158; who makes them,\\n116, 117; referendum on, 99-\\n127; the amendment of, 93, 94,\\n128-172; length of life oi, 94,\\n95, 96, 99-\\nConstitutional convention. The,\\nrise to power of, 71-08; local\\ndistricts seeking protection of,\\n222, 224, 338, 2 ^2, 364; is it a\\nsovereign body? 124-126; pow-\\ner of in adopting and amending\\nconstitutions, 128-141; high\\ncharacter of, 97, 98, 117.\\nConstitutionalists in Penn-\\nsylvania, II, 38, 53, 56, 58, 59,\\n60, 62, 65.,\\nConstitutional Society in\\nPennsylvania, 27, 50, 61.\\nContinental Congress, 8, 13, 21,\\n48, 78.\\nContingent event, what consti-\\ntutes a, in law-making, 211,\\n324-328, zzz, 398.\\nContrat Social, influence of,\\nin America, 2, 3, 6.\\nConvict labor in New York, 206-\\n207.\\nCooley, Judge, views of, on dele-\\ngation of legislative power, 209.\\nCouncil of Censors in Pennsyl-\\nvania, 21, 22, 52, 54-60, 65,\\n128, 129, 143; in Vermont, 24,\\n129, 152.\\nCouncil of Revision in New\\nYork, 79, 118, 131, 139.\\nCounties, classification of, in\\nCalifornia, 220, 221 Home\\nRule for, in California, 223,\\n235 as local government units,\\n224, 225 division of, 228, 229\\nselection of capitals of, 231-\\n^3Z, Z72 377-380; organization\\nof, into townships, 239-240.\\nD Alembert; his friendship with\\nFranklin, 31.\\nDeclaration of Independence, 5,\\n42, 102.\\nDeclaration of the Rights of Man\\nin France, 2.\\nDelaware, first Constitution of,\\n45, 78; biennial sessions in,\\n80; last convention in, 96;\\nConstitution of, not submitted\\nto the people, 113, 116, 122;\\nconstitutional provision regard\\ning conventions m, 130; sub-\\nmission of convention question\\nin, 132, 134, 135; amendment\\nof Constitution of 1776, 136,\\n140, 142-145 amendment of\\nlater Constitutions of, 150;", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0433.jp2"}, "434": {"fulltext": "4i8\\nINDEX\\nlocal option law in, 288-289;\\njudicial opinion on law making\\nby popular vote in, 319.\\nDelegated authority not to be re-\\ndelegated, 209, 397-\\nDickinson, John; his opposition\\nto the first Constitution of\\nPenna., 45, 47, 48, 52.\\nDiderot, 32.\\nDirect Legislation Leagues, 405.\\nDogs, laws to tax, 264.\\nDubourg, Franklin s friendship\\nwithv 29.\\nDupont, Franklin s friendship\\nwith, 29.\\nEcoNOMiSTES, Franklin s interest\\nin the, 29.\\nEducational test for suffrage: in\\nMississippi, 120; in South\\nCarolina, 121 in Delaware,,\\n122; in Louisiana, 123; in\\nCalifornia, 207.\\nEnabling acts for admission of\\nstates, 112.\\nEngland, constitutional forms\\nof, carried over to America, 7,\\n10, 13, 26, 35, 38, 64, 66, T]\\\\\\nhow ^he American system dif-\\nfers from that of, 116, 142;\\nlater constitutional develop-\\nments in, 391; referendum in,\\n401.\\nEquality of men, doctrine of,\\n407-408.\\nErie canal, improvement of, 185.\\nEureka, freeholders charter in\\ncity of, 349-\\nExecutive power; how exer-\\ncised, in American states, 9,\\n78, 79 in Pennsylvania, 20, 56,\\n57, 58, 64, 106 restraint on, by\\nthe constitutional convention,\\n87.\\nEx parte wall, 321-323\\nFederal Constitution (United\\nStates), 35, 62, ^z, 64, 69, 71,\\nT7, 79, 121, 156.\\nFeek v. Township Board, 328.\\nFence laws in local districts, 295-\\n300; 373-374-\\nFire, protection from in cities,\\n255.\\nFinancial credit; of states, 84,\\n182-191 of localities, 84, 241-\\n285.\\nFlorida, limit of legislative ses-\\nsion in, 81 adoption of Con-\\nstitution of, in 1839, 113, 120;\\namendment of Constitution of.\\n151; school tax in, 274; local\\noption in, 289, 290, 291, 292,\\n293, 372 choice of county sites\\nin, 373-\\nFolkmote in Switzerland, 3, 108.\\nFrance, revolutionary Constitu-\\ntions in, I, 37, 76; influence of,\\nin constitutional matters in\\nAmerica, 4 et seq.; single\\nchamber system in, 28, 62, 63,\\n67, 71 Franklin in, 28-39, 62\\npolicy of, toward America, 42;\\nconstitutional conventions in,\\n75 plebiscite in, 102, 400.\\nFranchises for private companies\\nin cities, 250-252, 308.\\nFranklin, Benjamin; democratic\\nviews of, 5 president of the\\nPennsylvania convention of\\n1776, 16, 18, 27; part taken by,\\nin framing the first Constitu-\\ntion of Pennsylvania, 27, 28, 30,\\n42, 61 his years in France, 28-\\n34; his friendship with the\\nFrench philosophers, 36-39\\npresident of Pennsylvania, 38,\\n62 his defense of the Pennsyl-\\nvania Constitution, 38-42 his\\nuniversal reputation as a phi-", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0434.jp2"}, "435": {"fulltext": "INDEX\\n419\\nlosopher, 42-44; his return to\\nAmerica, 60-Ci.\\nFreeholders charters for cities,\\n343-361.\\nGeebrick v. State, 322, 323.\\nGeneral elections, 135, 164-169.\\nGeneral laws for cities and local\\ndistricts, 219, 235, 287, 353-359-\\n361, 371-\\nGeorgia, first Constitution of, 25\\nannual legislative sessions in,\\n80; number of Constitutions\\nin, 95 reference of Constitu-\\ntion of, to popular vote. 112;\\nconstitutional conventions in,\\n129, 140, 143; amendment of\\nConstitution of, 145, 151 con-\\nfederate pensions in, 161 re-\\nmoval of capital in, 178; choice\\nof county sites in, 231, 373,\\n378 public buildings in local\\ndistricts of, 254; school tax in,\\n274; limit of debt in local dis-\\ntricts of, 2S0; local option law\\nin, 290, 292, 293, 372; fence\\nlaws in, 297, 299, 300, 373.\\nGermany^ Constitution of, 77\\npolitical system of, 392.\\nGoddin z Crump, 319.\\nGodkin, E. L., views of, on refer-\\nendum, 410.\\nGrass Valley, freeholders charter\\nfor city of, 349.\\nGreencastle Township v. Black,\\n322.\\nGroesch v. The State, 322.\\nHamilton, Alexander; his serv-\\nices to America, 66.\\nHarrington, influence of writings\\nof, ID, 12.\\nHedge Law in Kansas, 300, 305.\\nHerd Laws, 295-300.\\nHoadly, influence of writings of,\\n10.\\nHome Rule for cities, 222-\\n224, 337-361.\\nHouse of Lords in England, pro-\\nposed abolishment of, 18.\\nIdaho, limit of legislative session\\nin, 82; submission of Constitu-\\ntion in, 113; amendment of\\nConstitution of, 151 woman\\nsuffrage in, 160; removal of\\ncapital of, 178, 179; financial\\nreferendum in, 184 referen-\\ndum on rate of taxation in,\\n190; division of counties in,\\n229; choice of county sites in,\\n23,1 selection of names of\\ntowns and cities in, 234 loans\\nfor cemeteries in, 261 limit of\\ndebt in local districts of, 280.\\nIllinois, length of Constitution\\nof, 87; number of Constitu-\\ntions of, 95 suffrage proposi-\\ntion in, 119; amendment of\\nConstitution of, 151, 157; finan-\\ncial referendum in, 183, 184,\\n185 lease of canal in, 188\\npoll of people on expenditure\\nfor new capitol in, 188; bank-\\ning laws in, 191, 192; partition\\nof counties in, 229; choice of\\ncounty sites in, 231, 373; town\\nmeetings in, 233 reform of\\ncivil service in, 237, 375 city\\ncouncils in, 238 towmship sys-\\ntem in, 240; public aid to rail-\\nwaj^s in, 246; expenditure for\\nhospitals in local districts of,\\n255 road tax m, 258, 266 city\\nbudgets in, 270; high schools\\nin, 276, 374 normal schools\\nin. 277; library tax in, 278;\\nlimit on tax rate in, 281 school", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0435.jp2"}, "436": {"fulltext": "420\\nINDEX\\nlands in, 284, 382; judicial\\nopinion on law-making by pop-\\nular vote in, 319-\\nIllinois and Michigan canal, sale\\nor lease of, 188.\\nIndiana, method of amending\\nConstitution of, 152, I57;\\nchoice of county sites in, 232,\\nZ72 379; road tax in, 259;\\nfree turnpikes in, 259; school\\nlands in, 284; judicial opin-\\nion on law-making by popular\\nvote in, 321-323.\\nIndustrial companies, public aid\\nfor, 248-250.\\nInternal improvements, 242-248.\\nIowa, suffrage proposition in,\\n119; propositions submitted to\\npeople of, 120; submission of\\nconvention question in, 133;\\namendment of Constitution of,\\n152; financial referendum in,\\n183, 184; banking laws in, 191,\\n192; prohibition law in, 20A,\\n212; choice of name of cities\\nand towns in, 234; county gov-\\nernment boards in, 237 public\\naid to railways in, 248; fran-\\nchises in cities of, 251; public\\nbuildings in local districts of,\\n253-254 waterworks and light-\\ning plants in cities of, 257 tax\\nfor monuments in, 264; high\\nschools m, 276; library tax in,\\n278; fence laws in, 297, 299,\\n373; initiative and referendum\\nin, 307, 309, 368, 384, 388, 399;\\njudicial opinion on law-making\\nby popular vote in, 321-323.\\nIrrigation districts, 226, 258.\\nItaly, plebiscites in, 400.\\nJameson, Judge; his views on\\nconstitutional conventions, 7Z,\\n76, 77, 87-89, 97, 98, 116, 127; on\\nthe referendum, 409.\\nJellinck; his studies regarding\\nAmerica and France, i, 2, 34.\\nJudiciary, place of, in system of\\ngovernment in American\\nStates, 9, 21, 52, 57, 58, 65;\\nconvention s restrictions on the,\\n87 referendum in reference to\\nthe, in local districts, 238.\\nKansas, limit of legiolative ses-\\nsion in, 82; suffrage proposi-\\ntion in, 119; amendment of\\nConstitution in, 151, 157; wom-\\nan suffrage in, 160 amend-\\nment elections in, 167; site of\\nstate capital in, 177; financial\\nreferendum in, 184; banking\\nlaws in, 192; choice of county\\nsites in, 231, 2,73, Z77 sites for\\npublic buildings in cities of,\\n233 selection of name for\\ncities and towns of, 234 public\\naid to railways in, 248; public\\naid to industrial companies in,\\n249; free bridges in, 259;\\ncemeteries in, 261 encourage-\\nment to coal mining in, 261\\nfire tax in, 262; hedge bounty\\nin, 263 appropriations for poor\\nin counties of, 263; high\\nschools in, 276; library tax in,\\n278 school lands in, 285 poor\\nfarms in, 285; fence laws in,\\n297, 299, 300; hedge law in,\\n305.\\nKansas City, charter of, 345-347.\\n361.\\nKent, Chancellor, views of, on\\nsubmission ot Constitutions,\\n130.\\nKentucky, limit of legislative\\nsession in, 81, 82; spe-", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0436.jp2"}, "437": {"fulltext": "INDEX\\n421\\neial legislation in, 85; length\\nof Constitution of, 88; con-\\nstitutional convention in, 96;\\nno submission of Constitu-\\ntion in, 113, 116; 125, 126;\\nsubmission of convention ques-\\ntion in, 130, 133, 134, 140;\\namendment of Constitution of,\\n151, 157; financial referendum\\nin, 184 partition of counties\\nin, 229 choice of county sites\\nin, 232, 2)73 y county govern-\\nment boards in, 238; public\\ngrants to road companies in,\\n245 public buildings in local\\ndistricts of, 253 road tax in\\n259 free turnpikes in, 259\\nfree bridges in, 259; school tax\\nin, 274, 277; high schools in,\\n276; limit of debt in local\\ndistricts of, 280 local option in,\\n290, 291, 292, 380; fence lavi^s\\nin, 297, 299, 300, 37? 382; ju-\\ndicial opinion on law-making\\nby popular vote in, 331.\\nLabor question in New York,\\n206-207 in Massachusetts,\\n303-\\nLandsgemeinde, in Switzerland,\\n3, 108.\\nLa. Rochefoucauld, the Duke de;\\nhis advocacy of the single\\nchamber system, 28, 36, 2)7, 3^;\\nhis friendship with Franklin,\\n206-207 in Massachusetts,\\n31, 32, 62.\\nLee, Richard Henry, views on\\ngovernment of, 8.\\nLegislatures, Rousseau s theories\\nregarding, 3 Adams theories\\nregarding, 8. 9, 67, 68 decline\\nof power of, in the American\\nstates, 71 et seq.; rights of, in\\nframing constitutions, 73-75 in\\nthe election of magistrates, 78,\\n79; biennial sessions of the,\\n79-81 limit of length of ses-\\nsions of, 81-83; limit of field of\\nactivity of, 84-86, 218, 219, 222;\\nattacks of, on conventions, 91,\\n92, 93; degeneracy of, 97. 156,\\n158, 186, 219,286,363, 364, 391,\\n395, 410; constitutional amend-\\nment by the, 141-172; delega-\\ntion of authority by, 173, 209,\\n397; power of the, over local\\ngovernments, 223, 224, 328-\\nLeibnitz, Franklin compared\\nwith, 43.\\nLe Veillard; his friendship with\\nFranklin, 38, 39.\\nLibraries, taxation for, 277, 278.\\nLighting, franchises for, 251, 252;\\nplants for, as municipal en-\\nterprises, 256, 257.\\nLiquor legislation in states, 159,\\n160, 161, 200-205; in local dis-\\ntricts, 286-294, 318-323, 371,\\n372 in Canada, 402, 403 in\\nEngland, 401.\\nLive stock, restraint of, in local\\ndistricts, 295-300.\\nLocke, John Adams studies of,\\n12.\\nLocke s Appeal, 322.\\nLos Angeles, freeholders charter\\nin, 348, 353, 354.\\nLottery in Louisiana, 160 in Ne-\\nvada, 160-161 in New Jersey,\\n161.\\nLouisiana, length of Constitution\\nof, 88; efforts of legislature\\nof, to bind convention of, 91,\\n92 number of constitutions\\nin, 95 constitutional conven-\\ntion in, 96; no submission of", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0437.jp2"}, "438": {"fulltext": "422\\nINDEX\\nConstitution in, 113-1^16, 138;\\ndisfranchisement of negroes in.\\n123, 124, 140; amendment of\\nConstitution in, 151; lottery\\namendment in, 160; confeder-\\nate pensions in, 161; leasing\\nout of convicts in, 161 amend-\\nment elections in, 170; parti-\\ntion of counties in, 229 choice\\nof county sites in, 232, public\\naid to railways in, 248; limit\\nof debt in local districts of,\\n280 school lands in, 284 right\\nof way for street car lines in,\\n304; judicial opinion on law-\\nmaking by popular vote in,\\n330 popular vote on city char-\\nters in, 342, 343.\\nLum V. Vicksburg, 327.\\nLynching, methods of restricting,\\n378.\\nMadison, James, views of re-\\ngarding single chamber gov-\\nernment, 69.\\nMagistrates, election of, by the\\nstate legislatures, 78, 79.\\nMaine, constitutional commission\\nin, 94; first Constitution of,\\nreferred to popular vote, 112;\\namendment of Constitution of,\\n149, 151, 154; legislative repre-\\nsentation in, 195; separation\\nof, from Massachusetts, 96,\\n228; prohibition law in, 201-\\n202, 213, 214.\\nMaize v. The State, 321, 322, 323-\\nMajority, meaning of, IE3 pow-\\ner of, 155-\\nMaryland, salutary example of\\nfirst Constitution of, 64, 107;\\nbiennial sessions in, 80; limit\\nof legislative session in, 81\\nsubmission of convention ques-\\ntion in, 133 amendment of\\nConstitution of, 142, 143, 144,\\n151; civil service in, 162; par-\\ntition of counties in, 229; pub-\\nlic aid for railroads in, 247,\\n312; expenditure for city fire\\ndepartment in, 256; salary of\\nmayor in, 269; free schools in,\\n271 fence laws in, 297 oyster\\nlaw in, 301; judicial opinion\\non law-making by popular vote\\nin, 319, 330, 332; incorporation\\nof towns and cities in, 340.\\nMassachusetts, reference of first\\nConstitution of, to popular\\nvote, 18, 103, 104, 105, no. III.\\n114, 118, 406; sentiment in\\nfavor of single chamber in, 69-\\n71 early Constitutions of, 74,\\n75 features of first Constitu-\\ntion of, 78, 143 annual legisla-\\ntive sessions in, 80; proxy sys-\\ntem in, 109 submission of con-\\nvention question in, 128, 129;\\namendment of Constitution of,\\nby the legislature, 147, 152;\\namendment elections in, 167\\nMaine s separation from, 196;\\nmunicipal suffrage for women\\nin, 208; contingency theory in,\\n211; city government in, 238;\\nlocal option in, 289-293 eight\\nhour day in, 303; rights of\\nelective street railways in, 304\\nform of submission of local\\nlaws in, 313; judicial opinion\\non referendum in, 318, 325?\\n397; town-meeting system in,\\n331; incorporation of towns\\nand cities in, 340.\\nMatlack, Timothy; a framer of\\nthe first Constitution of Penn-\\nsylvania, 27, 30.\\nMcKean, Thomas his opposition", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0438.jp2"}, "439": {"fulltext": "INDEX\\n423\\nto the first Constitution of\\nPennsylvania, 45.\\nMichigan constitutional commis-\\nsion in, 94; reference of Con-\\nstitution of, to popular vote,\\n112; submission of convention\\nquestion in, 133 amendment\\nof Constitution of, 151, 154;\\nremoval of capital of, 179; fi-\\nnancial referendum in, 183\\nbanking laws in, 191, 192; pro-\\nhibition law in, 203, 204, 216;\\nchoice of county sites in, 232\\nlaws regarding roads in, 239,\\n245, 259, 266; city budgets in,\\n270; library tax in, 278; local\\noption law in, 290, 292; judi-\\ncial opinion on referendum in,\\n328.\\nMilton, John, Adams studies of,\\n12.\\nMinnesota, amendment of Con-\\nstitution of, 151; amendment\\nelections in, 161, 162, 167, 169,\\n171 removal of state capital\\nof, 178; financial referendum\\nin, 187, 190, 191 Home Rule\\nfor cities of, 222, 235, 358, 361\\npartition of counties in, 229;\\nchoice of county sites in, 232\\nselection of name of cities and\\ntowns in, 234; road laws in,\\n239, 259; public aid to canal\\ncompanies in, 245 loans for\\npublic buildings in local dis-\\ntricts of, 254 loans for ceme-\\nteries in, 261 fence laws in,\\n262, 297; library tax in, 278;\\nlocal option law in, 290, 291,\\n372.\\nMinority representation; in cor-\\nporations in New Hampshire,\\n206, 215; in cities in Illinois,\\n238.\\nMirabeau; his advocacy of the\\nsingle chamber system in\\nFrance, 28, 36.\\nMississippi, quadrennial legisla-\\ntive sessions in, 80; length of\\nConstitution of, 88; number\\nof constitutions in, 95 new\\nConstitution in, 96 no submis-\\nsion of Constitution in, 113-\\n116, 120, 125, 126, 138, 140; suf-\\nfrage test in, 120, 121 amend-\\nment of Constitution in, 151;\\nremoval of capital of, 178; di-\\nvision of counties in, 229; di-\\nvision of judicial districts in,\\n230; choice of county sites in,\\n232; local option law in, 290,\\n292, 293, 372; fence laws in,\\n297, 299, 300; judicial opinion\\non referendum in, 327; uni-\\nversity of, 383.\\nMissouri, length of Constitution\\nof, 87; number of constitu-\\ntions of, 95 submission of\\nconvention question in, 132\\namendment of Constitution of,\\n151, 161; financial referendum\\nin, 184, 185; banking laws in,\\n192; classification of cities in,\\n220; Home Rule for cities of,\\n222, 235, 343-347, 360, 361 di-\\nvision of counties in, 229;\\nchoice of county sites in, 232;\\nboards of public works in cities\\nof, 239; township system in,\\n240; city franchises in, 252;\\npensions to policemen in, 269;\\nschool tax in. 274; library tax\\nin, 277; limit of debt in local\\ndistricts of, 280; sale of parks\\nin, 2S5 local option law in,\\n290-292, 372 fence laws in,\\n297, 299, 374; Sunday law in,", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0439.jp2"}, "440": {"fulltext": "424\\nINDEX\\n301 conditional legislation in,\\n314-\\nMontana, limit of legislative\\nsession in, 81; length of Con-\\nstitution of, 88 amendment of\\nConstitution of, 151, 157 5 re-\\nmoval of capital in, 178; finan-\\ncial referendum in, 184; rate\\nof state taxation in, 190 choice\\nof county sites in, 232; school\\ntax in, 276; limit of debt in\\nlocal districts of, 281 local op-\\ntion law in, 290-292, 372.\\nMontesquieu, influence of, in\\nAmerica, 7, 12, 64, 142.\\nMonuments, tax to erect, 264,\\n265.\\nMuhlenberg, F. A. President of\\ncouncil of censors in Pennsyl-\\nvania and opponent of single\\nchamber system, 56, 59, 64.\\nMunicipal government, failures\\nin, 84, 363, 364; legislature s\\npowers regarding, 32S-333 338.\\n399; problems of, in America,\\n335-367-\\nNapa, freeholders charter of city\\nof, 349-\\nNapoleon, plebiscites of, 400.\\nNebraska, limit of legislative ses-\\nsion in, 82 parliamentary pro-\\ncedure in, 85; submission of\\nconvention question in, 132;\\namendment of Constitution of,\\n151 liquor license in, 161\\namendmient elections in, 162,\\n170; removal of capital in, 178;\\ndivision of counties in, 229;\\ncounty government boards\\nin, 237; township system in,\\n240; public aid for railroads\\nin, 247; city franchises in, 251,\\n252; public aid for hospitals\\nin, 255 encouragement of coal\\nmining in, 261 aid for exposi-\\ntion in, 262; bounties for\\nwolves in, 262, 375 bonds to\\nrelieve poor in counties of, 263\\ncity budgets in, 270; limit on\\ntax rate in, 281 initiative and\\nreferendum in, 306-310, 368,\\n384, 386, 389, 405-\\nNedham, influence of in America,\\n10.\\nNegro suffrage, 119, 120-124, 194.\\nNevada, method of amending\\nConstitution of, 152; lottery in,\\n160; Chinese immigration in,\\n207; high schools in, 276, 374.\\nNeville, influence of, in America,\\nID.\\nNew England, democratic system\\nof government in, i, 3, 106-\\niio, 329.\\nNew Hampshire, first Constitu-\\ntions of, 18, 74, 78, 105-107,\\nno, III, 118, 406; insurrection\\nin, 70; length of Constitutions\\nof, 88; amendment of Consti-\\ntution of, 129, 133. 143, 1^5,\\n150; amendment elections in,\\n166; minority representation\\nin corporations in, 206, 215\\nconstitutionality of the referen-\\ndum in, 215.\\nNew Jersey, annual legislative\\nsessions in, 80; constitutional\\ncommission in, 94; method of\\namending Constitution of, 152;\\nwoman suffrage in, 160;\\namendment elections in, 165,\\n166; financial referendum in,\\n183, 184 special laws for cities\\nin, 236, 237; city fire depart-\\nment systems in, 256; tax for\\nboard walks in seaside cities of\\n260 salaries of local officers in.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0440.jp2"}, "441": {"fulltext": "INDEX\\n425\\n269; library tax in, 278; high\\nlicense in, 293, 294, 372; fence\\nlaws in, 297; local option in,\\n315 what may be a contin-\\ngency in, 326.\\nNewton, Franklin compared to,\\n43.\\nNew York, features of first Con-\\nstitution of, 78; annual legisla-\\ntive sessions in, 80; constitu-\\ntional commission in, 94 last\\nconstitutional convention in, 96\\n98, 119; Constitution of 1821,\\nin, 112, 118, 130, 131, 139; suf-\\nfrage proposition in, 119; sub-\\nmission of convention question\\nin, 133 amendment by legisla-\\ntive mode in, 148, 152; finan-\\ncial referendum in, 183-185;\\nfree school law in, 205, 206,\\n210, 216, 273, 311; convict labor\\nin, 206, 207; tax for monu-\\nments in, 265 pensions for\\nschool teachers in, 269, 374; li-\\nbrary tax in, 278; local option\\nin, 290-292; freedom of cities\\nin, 361-363, 366, 367.\\nNew York City, Sunday laws in,\\n302.\\nNew Zealand, referendum in,\\n404.\\nNon-Intercourse Acts, 326.\\nNorth Carolina, first Constitu-\\ntion of, 12; submission of later\\nConstitution of, to popular\\nvote, 112; amendment of Con-\\nstitution of, 151; financial ref-\\nerendum in, 186, 187; prohibi-\\ntion law in, 204-205 public aid\\nfor railroads in, 247-248; pub-\\nlic aid to industrial companies\\nin, 249; free bridges in, 259;\\nconvicts on roads in, 266; nor-\\nmal school in, 277; limit of\\ndebt in local districts of, 279;\\nlocal option law in, 290-293,\\n372; liquor dispensaries in.\\n294; fence laws in, 297, 299,\\n300, 374.\\nNorth Dakota, limit of legisla-\\ntive session in, 81 submission\\nof debatable propositions in,\\n119; method of amending Con-\\nstitution of, 152 financial ref-\\nerendum in, 187; woman suf-\\nfrage in, 194; division of coun-\\nties in, 229; county govern-\\nment boards in, 237; township\\nsystem in, 240; public aid for\\nrailroads in, 247; city budgets\\nin, 270; what may be a con-\\ntingency in, 325; fence law in,\\n374-\\nOakland, freeholders charter in\\ncity of, 349.\\nOhio, amendment of Constitu-\\ntion of, 152, 155; banking\\nlaws in, 191, 192; classification\\nof cities in, 220; special legis-\\nlation for cities in, 221 divis-\\nion of counties in, 229; choice\\nof county sites in, 232; boards\\nof education in, 237; public\\nbuildings in local districts of,\\n254, 285 relief of poor in local\\ndistricts of^ 255 free turn-\\npikes in, 259; cemeteries in,\\n261 public money for county\\nfair grounds in, 262 tax for\\nmonuments in, 265 hearse tax\\nin, 267; reimbursement of local\\nofficials in, 267, 268; library\\ntax in, 278; school lands in,\\n284 sale of railway in, 285\\nlocal option law in, 290, 292;\\nvoti/ng machines in, 305 chil-\\ndren s homes in, 374.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0441.jp2"}, "442": {"fulltext": "426\\nINDEX\\nOntario, Sunday law in, 302;\\nliquor legislation in, 402.\\nOregon, limit of legislative ses-\\nsion in, 82; suffrage proposi-\\ntion in, 119; method of amend-\\ning Constitution of, 152; state\\ncapital of, i77, 178; fence laws\\nin, 297, 299. 300, 374; in-\\ncorporation acts in, 341.\\nOysters, law for protection of,\\nin Maryland, 301.\\nPaine, Thomas; his activity in\\nAmerica and France, 5, 6, 7,\\n8, 13, 27, 48.\\nParker v. Commonwealth, 320,\\n322, 323-\\nParks, tax for, in cities, 260.\\nParliamentary government, 391.\\nPenn, William, admiration of\\nviews of, in France, 33.\\nPennsylvania, democratic feeling\\nin, during the Revolution, 7\\net seq.; adoption of first Con-\\nstitution of, 11-13, 17-22, 27-\\n34, et seq.; county committees\\nin, 14; provincial conference\\nin, 14, 15; first constitutional\\nconvention in, 14-18; Frank-\\nlin s defence of first Constitu-\\ntion of, 38-41 opposition to\\nand downfall of Constitution\\nof, 45 et seq. second Constitu-\\ntion of, 64, 65; method of\\namending first Constitution of,\\n74, 128, 129; length of Consti-\\ntutions of, 87 number of Con-\\nstitutions of, 95 no submission\\nof first Constitution of, loi,\\n102, 107, 128; ballot system in,\\nno, hi; method of amending\\npresent Constitution of, 152;\\namendment elections in, 166,\\n170; removal of state capital\\nin, 178; classification of cities\\nin, 219, 220; special legislation\\nin, 221 poor house sites in,\\n233 road law in, 244 dog tax\\nin, 264; free schools in, 271,\\n272; limit of debt in local\\ndistricts of, 280; local option\\nlaw in, 288; constitutionality\\nof referendum in, 320.\\nPensions to civil officials, 269.\\nPeople, as their own law makers,\\n117, 170-172, 281, 282, 232, 233,\\n376-380; indifference and apa-\\nthy of, 166-172, 403, 411.\\nPeople ex rel. v. Reynolds, 319.\\nPetition, right of, loi its like-\\nness to the initiative, 368. 369.\\nPhiladelphia, the first capital of\\nthe united colonies, 16; a cen-\\ntre of opposition to the first\\nConstitution of Pennsylvania,\\n52; city government of, 220;\\nchoice of site for city hall in,\\n233 election on loan bill in,\\n282.\\nPhilosophical Society, in Phila-\\ndelphia, 43.\\nPhysiocratie Franklin s in-\\nterest in the, 28.\\nPlato, Adams studies of, 12.\\nPlymouth colony, proxy system\\nin, 109, no.\\nPolice Jury v. McDonough, 330.\\nPolitical Philosophy, what is, 72.\\nPolitical Science, what is, 72.\\nPoor, relief of, 254, 255, 263,\\n266.\\nPrice, Dr. his advocacy of the\\nsingle chamber system, 34, 2 7-\\nPrimaries, law to reform the, 306.\\nProhibition of liquor trade; in\\nstates, 118, 119, 159, 165, 166,\\n170, 200-205, 212-214; in local\\ndistricts, 286-293.", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0442.jp2"}, "443": {"fulltext": "INDEX\\n427\\nProprietary government; in mid-\\ndle states, 11; in Pennsylvania,\\n14, 40.\\nProxy system in New England,\\n109.\\nPublic buildings, loans for; in\\nstates, 188, 189; in local dis-\\ntricts, 253, 254.\\nPublic lands, sale or lease of,\\n283-285.\\nPublic opinion, influence of, 117,\\n198.\\nQuESNAY, Dr., Franklin s friend-\\nship with, 29.\\nRailways, public aid for, 245-\\n248.\\nRepublican government, 124,\\n125, 174, 198, 319.\\nRepresentative government, na-\\nture of. 3. 9, 70, 97, 198, 212,\\n214, 215-217, 311, 312, 319, 390,\\n391; decline of, 96, 97, 241, 242,\\n250, 251, 2 2S-3Z7, 392-396, 408-\\n411.\\nRepudiation of public debt, 182,\\n241.\\nRhode Island, annual legislative\\nsessions in, 80; Constitutional\\ncommission in, 93 represen-\\ntative system in, no; submis-\\nsion of first Constitution of, to\\npopular vote, 112; method of\\namending Constitution of, 152,\\n153 financial referendum in,\\n183, 184; prohibitory liquor\\nlaw in, 204, 213 industrial\\ncompanies in, 250 fence laws\\nin, 297, 299; incorporation acts\\nin, 341.\\nRice V. Foster, 319, 322, 2)22\\nRittenhouse, David a member\\nof the Pennsylvania Constitu-\\ntion of 1776, 16.\\nRoads, laws regarding, in West\\nVirginia, 239; public grants to\\ncompanies engaged in building,\\n244; public construction of,\\n258, 259; working out the\\ntax for, 266.\\nRoss, George, in Pennsylvania\\nconvention of 1776, 16, 19, 45.\\nRotation of offices, 11, 22, 57.\\nRousseau his influence on polit-\\nical thought in America, i, 2,\\n3, 4, 24, 32, 34, 66, 390, 407, 408.\\nRush, Benjamin; his opposition\\nto the first Constitution of\\nPennsylvania, 45.\\nRussia, political system of, 391.\\nSacramento, freeholders char-\\nter in, 349.\\nSalaries of civil officers, adjust-\\nment of, 86, 268, 269.\\nSan Diego, freeholders charter\\nin, 349, 354.\\nSan Francisco, freeholders char-\\nter in, 347-352; initiative and\\nreferendum in, 308, 310, 384^\\n386, 389, 405.\\nSan Jose, freeholders charter in,\\n349.\\nSanta Barbara, freeholders char-\\nter in, 349.\\nSchools, legislation for, 205, 206,\\n210, 226, 243, 270-277, 284.\\nSeattle, freeholders charter in,\\n356.\\nSecession conventions in the\\nSouth, y6, 95, 112, 120, 144.\\nSenators, election of by popu-\\nlar vote, 207.\\nSewerage system, loans in be-\\nhalf of, 257.\\nShay s Rebellion, in Massachu-\\nsetts, 70.\\nSheep, laws to protect, 264.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0443.jp2"}, "444": {"fulltext": "428\\nINDEX\\nSidney, influence of, in America,\\n10.\\nSingle chamber government, 7,\\n10, II, 17, 18-21, 23, 24, 26,\\n30-41, 52-58, 64, 65, 69-72, 96.\\nSocialists, interest of, in the ref-\\nerendum, 401.\\nSouth Carolina, first Constitu-\\ntions of, 74, 78; annual legis-\\nlative sessions in, 80 last con-\\nvention in, 96; no submission\\nof Constitution of, 113, II4,\\n116, 140; educational test in,\\n121 amendment of Constitu-\\ntion of, 145, 150; financial ref-\\nerendum in, 185 division of\\ncounties of, 229; incorpora-\\ntion of towns and cities in,\\n230; choice of county sites in,\\n232; county courts in, 238;\\npublic aid to railways in, 248;\\ntaxation of industrial com-\\npanies in, 249; waterworks\\nand lighting plants in, 257;\\nnormal school in, 277; liquor\\ndispensaries in, 294; lynching\\nevil in, 378.\\nSouth Dakota, limit of legisla-\\ntive session in, 82; length of\\nConstitution of, 88; submis-\\nsion of debatable proposi-\\ntions in, 118, 119; amend-\\nment of Constitution of, 151\\nwoman suffrage in, 160, 195;\\nliquor legislation in, 161, 290,\\n294; amendment elections in,\\n171 initiative and referen-\\ndum in, 174, 175, 307, 309, 3io\\n368, 384, 385, 388, 389, 405,\\n412; state capital site in, 177;\\nchoice of county sites in, 232;\\ncity budgets in, 270; school\\ntax in, 276.\\nSovereignty, where it resides, 72.\\nSpecial elections, 135, 164-169.\\nSpecial legislation, 84, 85, 218-\\n221, 236, 237. 2 ^2 -z^6, 370.\\nSpokane, freeholders charter\\nfor, 356.\\nSt. Louis, Sunday laws in, 301\\ncharter of, 344-347, 360.\\nState governments, the people s\\nlack of understanding of their,\\n395-\\nState ownership of utilities, 242,\\n243-\\nState Rights, 395.\\nState ex rel. Witter v. Forkner,\\n322.\\nState V. Swisher, 322, 323.\\nState V. Weir, 322, 323.\\nStatutes, poll of the people on\\ngeneral state, 173, et seq.\\nStock Laws, 295.\\nStockton, freeholders charter\\nin, 349.\\nSuffrage, regulation of the, 99,\\n100, 1 18-123, 159, 160, 193-195,\\n207, 208.\\nSunday Laws in St. Louis 301\\nin New York 302; in To-\\nronto, 302, 303.\\nSwitzerland, primary assemblies\\nin cantons of, 3, 108; force of\\nexample of, in America, 100,\\n169, 400, 404, 408, 409.\\nTacoma, freeholders charter in,\\n356, 357-\\nTalbot V. Dent, 319.\\nTaxation, rate of, in Colorado,\\n188, 189; in Montana, 190; in\\nIdaho, 190; in Utah, 190; in\\nlocal districts, 282, 283.\\nTennessee, limit of legislative\\nsession in, 83 submission of\\nConstitution of, to popular\\nvote, 112; convention question", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0444.jp2"}, "445": {"fulltext": "INDEX\\n429\\nin, 13a, 132; method of amend-\\ning Constitution of, 153, 157;\\nspecial laws in, 221 division\\nof counties in, 229; choice of\\ncounty sites in, 232 public aid\\nfor railroads in, 247, 248;\\nschool lands in, 284; public\\nincorporation acts in, 340.\\nTexas, limit of legislative ses-\\nsion in, 83; number of Con-\\nstitutions in, 95 amendment\\nof Constitution of, 151; con-\\nfederate pensions in, 161\\namendment elections in, 166,\\n168, 170: site of state capital\\nin, 176; choice of site for uni-\\nversity in, 180; division of\\ncounties in, 229; choice of\\ncounty seats in, 232 sea walls\\nin, 258; school taxes in, 274;\\nlocal option in, 289-293, 372;\\nfence laws in, 297, 299, 300.\\nTories, influence of, on consti-\\ntutional development in Amer-\\nica, 17. 26, 52, 53, lOI.\\nToronto, Sunday laws in, 302,\\n303-\\nTown, the, as a unit of local\\ngovernment, 224, 225.\\nTown meeting in New England,\\n3, 108- 1 10.\\nTownship, as a local unit, 225, 240.\\nTramway companies, franchises\\nfor, 251, 252.\\nTrial by jury, 162.\\nTurgot; his advocacy of the sin-\\ngle chamber system, 29, 34, yj,\\n42, 69, 71.\\nTurnpikes, public aid to, 244,\\n245, 259.\\nUniversities, choice of sites for,\\n179-181.\\nUtah, submission of convention\\nquestion in, 131 amendment\\nof Constitution of, 151; rate\\nof taxation in, 190; division\\nof counties in, 229; choice of\\ncounty sites in, 232, library\\ntax in. 278, 374; limit of debt\\nin local districts of, 280.\\nVallejo, freeholders charter of\\ncity of, 349.\\nVermont, early Constitutions of,\\n23, 24; number of Constitu-\\ntions in, 95 ballot system in,\\nhi; submission of Constitu-\\ntion of, to popular vote, 112;\\ncouncil of censors in, 129;\\nsubmission of convention\\nquestion in, 133; method of\\namending Constitution of, 152,\\n157; prohibition law in, 202,\\n203, 214, 216, 217; constitu-\\ntionality of referendum in,\\n321 public incorporation acts\\nin, 341.\\nVeto power of governor, 175,\\n352, 353, 363-\\nVictor Emmanuel, plebiscites of,\\n400.\\nVirginia, Bill of Rights of, 2;\\nfirst Constitution of, 9, 10, 11,\\n13, 74, 107; biennial sessions\\nin, 80; limit of legislative ses-\\nsion in, 82; length of Consti-\\ntution of, 87; method of\\namending Constitution of, 152;\\nlegislative representation in,\\n195 retrocession of land to,\\nby Congress, 197, -^^y aid to\\ncanals in, 243, 244; internal\\nimprovements in, 245 local\\noption law in, 290-292, 372\\nfence laws in, 297; constitu-\\ntionality of referendum in,\\n319, 326.", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0445.jp2"}, "446": {"fulltext": "430\\nINDEX\\nVoltaire, meeting of, with Frank-\\nlin, 33.\\nVoting machines, 305.\\nWales v. Belcher, 318, 325.\\nWashington, length of legisla-\\ntive session in, 82; length of\\nConstitution of, 88; debatable\\npropositions submitted in, 119;\\namendment of Constitution of.\\n151; woman suffrage in, 160;\\nstate capital site in, 178; fi-\\nnancial referendum in, 184;\\nHome Rule for cities in, 222,\\n235, 356, 357, 360, 361; choice\\nof county sites in, 232; town-\\nship system in, 240; encourage-\\nment of coal mining in, 261\\nlimit of debt in local districts\\nof, 281.\\nWaterworks, franchises of com-\\npanies to operate, 251, 252; as\\nmunicipal enterprises, 256, 257.\\nWebster, Daniel, views of, on\\nConstitutions, 94, 147.\\nWeir V. Cram, 322.\\nWest Virginia, limit of legisla-\\ntive session in, 82; submission\\nof convention question in, 132;\\namendment of Constitution of,\\n151 legislative representation\\nin, 196; annexation of terri-\\ntory by, 197 division of coun-\\nties in, 229; county courts in,\\n238; alternate road laws in,\\n239, 316, 375; public aid to\\nrailways in, 248; dog taxes\\nin, 264, 375 school taxes in,\\n274, 275 high schools in,\\n276; limit of debt in local\\ndistricts of, 280; tax rate in,\\n281 fence laws in, 297, 299,\\n300; public incorporation acts\\nin, 342.\\nWhig party, division of, in\\nPennsylvania, 53.\\nWhig Society in Pennsylvania,\\n27, 48-SO.\\nWilson, James; his opposition\\nto the first Constitution of\\nPennsylvania, 45, 52.\\nWisconsin, submission of con-\\nvention question in, 132\\nmethod of amending Constitu-\\ntion of, 152; banking laws in,\\n191, 192; negro suffrage in,\\n193 choice of county sites in,\\n232 public aid to railways in,\\n248; city franchises in, 252,\\n375 tax for soldiers memo-\\nrials in, 265 road tax in, 266\\nhigh schools in, 276; local op-\\ntion in. 290, 291, 293, 372 high\\nlicense in, 293, 372; reform of\\nprimaries in, 306.\\nWoman suffrage, 100, 118, 159,\\n160, 194, 195, 207, 208, 397,\\n398.\\nWyoming, limit of legislative\\nsession in, 82 amendment of\\nConstitution of, 151 site of\\nstate capital in, 178, 179; sites\\nfor buildings of public institu-\\ntions in, 181, 182; financial\\nreferendum in, 184, 187; di-\\nvision of counties in, 229 or-\\nganization of cities and towns\\nin, 230; township system in,\\n240; limit of debt in local dis-\\ntricts of, 280.\\nYoung, Dr. Thomas one of the\\nframers of the Pennsylvania\\nConstitution of 1776, 27, 48-", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0446.jp2"}, "447": {"fulltext": "", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0447.jp2"}, "448": {"fulltext": "", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0448.jp2"}, "449": {"fulltext": "", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0449.jp2"}, "450": {"fulltext": "\u00c2\u00a3P 8 woo\\nL", "height": "3617", "width": "2281", "jp2-path": "referenduminamer00ober_0450.jp2"}, "451": {"fulltext": "I", "height": "3656", "width": "2330", "jp2-path": "referenduminamer00ober_0451.jp2"}, "452": {"fulltext": "", "height": "3916", "width": "2400", "jp2-path": "referenduminamer00ober_0452.jp2"}}