* * *

where the

"the remarkable discovery should first be made in the free representative democracies of America legislators are confessedly the mere agents and instruments of the people, to express their sovereign and superior will to save the necessity of assembling the people in mass", etc.27 This very democratic opinion is probably without its counterpart among all the decisions in the American courts on the subject of the referendum. In its disregard of the legal barriers which the "Fathers" established in this country to save the people from the rule of the crowd, it must be held to rank as a very unusual state paper and one laden with very dangerous sentiments.

A recent judicial opinion in reference to conditional legislation of this kind, was delivered in New Hampshire in 1881, the law of 1879 allowing minority representation in the boards of directors of corporations having come to the court for review. Here the judges drew a very plain distinction between the State and the localities. All our experience, and considerations of policy as well, tend to vindicate the theory that the contingency of a favorable vote of the people may be the occasion of the taking effect of a law which the State legislature has passed to apply to a county, town or other local district. "In the organization of State government," however, said the court in the New Hampshire opinion, “for reasons by them deemed sufficient, the people vested the supreme legislative power not in themselves, but in certain agents as a personal trust. * They were of opinion that while there might be good reason for granting to municipalities a limited power of making local law, it was not wise to attempt to carry on the work of State legislation in town meeting. They might have made an effort to overcome one of the difficulties of that method by authorizing a State committee to propose laws, and requiring the Governor to ascertain and proclaim the result of the popular vote in the manner adopted by the act of 1879 They preferred and they

"State v. Parker, 26 Vt. 357.

*

established a representative republic; and they did not confer upon the legislature the power of abolishing it, repealing the second article of the Constitution and changing the supreme law-making body into a committee on proposals. That power the legislature would have if they could transfer from themselves to others the responsibility of passing or refusing to pass a law of a non-local character. If the power of general legislation could be conveyed by the act of 1879, to those who might be induced to exercise it in town meeting, all laws could be made and repealed in the same way, and the representative character of the government could easily be extinguished." 28

Thus in but one State, Vermont, do we find a higher court that has made a declaration in favor of the system of submitting general State laws to popular vote, when the legislature is unable to point to a clause in the constitution which specifically authorizes the submission. In Michigan the court was equally divided on the point. The other decisions are against the proceeding. In both Vermont and Michigan, the issue was not quite direct, because of the technicalities which the legislatures had purposely raised to avoid such a result as that one earlier recorded in New York, in reference to the Free School Law. The people were to determine, not whether the bill should become a law, but the mere point of time when it should become effective. The law when it left the legislature, was a positive law in any case; the people were to decide but this single question: whether it should come into force at once, or at some future time, as for instance, nearly twenty years hence, which was the alternate date in Michigan.

Nevertheless these decisions seem to have availed the referendum very little either in Vermont or Michigan. Justice Pratt, in his opinion against the constitutionality of the Michigan law in 1854, alluding to the unfortunate division in the court, and filled with alarm for the future, said: "This

a State v. Hayes, 61 N. H. 264.

Sovereign law of our constitutional system of government. [the Constitution] says that the legislature shall make the laws for the State; that this and this only is its legitimate business as a distinct branch of the government. But the members of this constitutional body meet and say we will not be governed by the expressed will of the sovereign. * A majority of the electors sanction such an unauthorized proceeding. * * * The question is taken to the court of last resort, whose duty it is under the Constitution, to determine the question, but the members of that court are unable to agree, being equally divided, so that no affirmative decision upon it can now be made. In view of such a state of things, what is to be the final result and end of this kind of legislation? Our boasted system of representative government is to be perverted, and a collective democracy the most uncertain and dangerous of all governments to be arbitrarily substituted in its stead." 29 Even in Vermont where the court was so well convinced that the people could be introduced into the system at the legislature's will to accept or reject State laws, the referendum has not enjoyed any marked development.

The unconstitutionality of laws of this character is a general principle so firmly established throughout the Union to-day, that the legislature prefers not to run the risk of submitting its acts to popular vote. In the case of prohibitory liquor laws, and other legislative questions of a vexatious character, it is a much more feasible plan, as I have noted on earlier pages, to embody the proposal in an amendment to the State constitution. With the liberalization of our ideas in regard to constitutional law, and the simplification of the process by which amendments may be submitted to popular vote, there is little reason now why the legislature should pursue a course that may bring down upon itself the charge of having misunderstood and violated the charter from which it derives its whole authority.

People v. Collins, 3 Mich. 368.

CHAPTER IX

THE LOCAL REFERENDUM-BILLS AFFECTING THE SCOPE AND FORM OF THE LOCAL GOVERNMENTS

It is in the counties, cities, towns and the other local districts of the States, by whatever name they may be designated, that the referendum has reached the fullest measure of its development in America. In no other field is it so laborious for the student to assemble the facts, since the laws governing the localities make very large volumes in every State, and they are being changed at each legislative session. Rules of a general character are observed in each State, however, in the enactment of such legislation, and all the Constitutions have more or less to say for the guidance of the legislatures. Indeed, in many States, and it is a tendency which has become firmly established in our practice, special legislation in regard to localities is being prohibited altogether, or the privilege of passing "special laws" is at any rate being very much curtailed. This again is an important restriction upon the powers of the legislature, which, as we have seen, has been losing on so many sides, and fewer legislative sessions, shorter sessions and smaller volumes of laws are the most natural and not unwelcome result. The great numbers of private acts which earlier burdened the statute books, and which had reference to separate municipalities, cities, counties, towns, townships, etc.,-meant to serve a purpose in single emergencies, have been superseded by "general laws in most of the States. It is true that there are some important Commonwealths in which "special laws" are still permitted by the Constitution, but the evils which have crept into the legislative halls through this system, especially with the growth and development of great cities, have become so of

fensive that the tendency against such legislation is very marked, even where it is not made entirely impossible by a constitutional prohibition. The lobbying, log-rolling, “ jamming" and other abuses of even a worse character have come up in the train of the "special law ", and this kind of legislation has been made a mark therefore for the conventions which in many ways in recent years have done so much to give new form to the State governments.

The "general law" is a law, which is passed by the legislature to apply to all the cities, counties or other local districts of the State, or to certain classes or groups of cities, counties or districts. By this means it becomes very much more difficult for the legislature to pass a law for a single city or other locality, and it would be impossible for it to do so were it always acting in good faith, obedient to the spirit as well as the letter of the constitution. Some of the devices which are employed to evade this constitutional restriction are very clever, and at the same time very amusing. It is usual for the legislatures when they pass their general laws, to divide the counties and cities into a number of “ classes". This course seems to be quite essential, especially in the case of cities, since these unwieldy giants which have come up to confuse and make more difficult the problems of State administration often have enormous populations. A very large percentage of the whole population of a State may be urban, and in all likelihood one or two cities will have got such a start over rivals in the State, that they will contain as many as a third or fourth part of the inhabitants of the whole Commonwealth. A city of 1,000,000 inhabitants cannot be governed by the same organic law as a city of 100,000, and the latter will have needs differing in a material way from those of a municipality which has a population of only 10,000. The State legislature therefore creates "classes", and it not infrequently happens that there is but a single city in a class. For instance, in Pennsylvania, cities, for purposes of government, are divided into three classes: the first made up of cities containing a population of 600,000 or more, the second,