correct, though it bears some resemblance to the case of the owner barricading the windows and doors of his house to keep out marauders, while he must himself enter it by the chimney.

As the prohibition of special laws was a radical step we must regard the attempt of Missouri, California, Washington and Minnesota to solve this problem in the same light. A charter for a city might as well be adopted by the members of a board of freeholders elected by the citizens, if they were persons competent to frame such a charter, as by any other committee of persons. But experience has demonstrated that the city to a greater or a less extent must still be subject to the legislative and institutional system of the State within which it is situated and of which it is a part. In every instance it is recognized that the charter so adopted must be "consistent with and subject to the constitution and laws of the State". Our better judgment tells us, and theory and experience enforce us in the opinion that the city, however great a degree of independence it may have apparently attained, cannot be really free of the legislature's supervising control. Many subjects must still be regulated by uniform laws and judicial opinion has been very generally on the side of the legislature whenever conflict of authority has arisen between the city and the State.

No other view can be entertained despite the fact that State laws oftentimes appear to be onerous to local interests which, being partially freed from outside restraint, would prefer a still larger measure of independence. The freeholders' charter which the people adopt by a plebiscite, it must be acknowledged, is yet passing through its experimental stages and although it marks a tendency, it cannot be said to be an ultimate thing. That, to avoid needless disputes as to authority which the judiciary must constantly arbitrate, some device is required is evident when Minnesota's recent suggestion is taken into account. In that State it is plainly recognized that the city must be under the legislature's direction as before, and the constitution provides

that, though they may have their freeholders' charters cities must at the same time live under "general laws", which in their own province are to be "paramount while in force to the provisions relating to the same matter included in the local charters." There can be no dispute here, for whenever the local charter and the general law overlap and conflict the constitution states specifically that the general law shall have the precedence.

There is still, by the Minnesota system, however, no room for special legislation in reference to cities. To find a system harmonizing this idea with the idea of Home Rule, by which municipalities may in some degree determine the .character of the laws passed for their own government, has been reserved for New York. In New York since the constitution was revised in 1894 the enactment of special laws relative to cities is permitted of the legislature, but these laws as bills must be referred to the municipal authorities of the city which is directly affected by them. The mayor of the city may give the bill submitted to him a public hearing and he may veto it, if he sees fit, though his veto is without any effect if the legislature chooses to pass the measure over his negative and the governor chooses to sign it. It becomes a law anyhow, though in that event it is expressly declared in its title, for the information of all whom it may concern, that it was "passed without the acceptance of the city". This constitutional provision legally opens the way to special legislation, when the State legislature may adjudge such. laws to be needful. It requires that all such acts shall be referred to the regularly delegated officials within each city, whose government the legislature proposes to change, though it recognizes the supreme authority of the legislature, the governor and other agencies to which the general welfare has been committed by the sovereign people, when it provides a method for the enactment of the law in spite of possible petty local hostility.

Thus while some difficulties are put in the way of special legislation for cities it is not made wholly impossible. The

reference of the bill to the locality to be affected by it affords an opportunity for public discussion of the subject, and should it really be an unworthy measure, it is reasonable to think-at least this is the underlying theory-that it could not be so easily passed a second time in the face of local disapproval. Whatever the final outcome of this interesting contest between the city and the State, regarding municipal government, it is plain that we are all the while tending toward results which promise soon to be more definite, and it may be hoped more satisfactory to all the important interests involved. If New York has taken a step in this direction and has proven herself wise beyond her sister States in the treatment of this question her example, it may be inferred, will be generally followed throughout the country within a very few years.

CHAPTER XV

THE INITIATIVE IN AMERICA

Up to this point we have been devoting our attention chiefly to the referendum, an institution which is clearly of ancient lineage in the United States, but which recently has been making history for itself in some parts of the Union at a particularly rapid rate. Only incidental allusions have been made to the right of the people themselves to initiate legislation, a subject which is to be considered in a general way in the present chapter. It would seem that the referendum could scarcely exist anywhere without the initiative, and the experience of the American States certainly does not mark them out as exceptions to the rule in this respect. In Switzerland the one is closely associated with the other and whenever a reformer of our constitutional system in the United States, of whom there are now so many, proposes the referendum, as a means of clearing the atmosphere of much that is evil in our political life, he in the same breath asks that the initiative shall be given a trial also.

The initiative and the referendum, the initiative being mentioned logically first, have been introduced as inseparable parts of a whole into the legislative practice of South Dakota, Nebraska, California, Iowa and the city of San Francisco and they exist together in fact, if not in name, in nearly all the States of the Union. For what is the system of petition for the passage of a law but the initiative? It is true that the dearly bought right of the people to petition their kings and governors for a redress of grievances, of which we still see many surviving forms even in free states, is not the right of initiative. A petition more or less numerously signed by citizens for the enactment of a law or the

repeal of a law is merely an appeal to a legislature, the members of which will afterward do quite as they please regarding this matter when the time comes for definite action on their part. But the system which has long been with us in the New England towns and in our local communities organized according to the representative principle, prescribing that a certain number of citizens may unite in a petition in favor of some local policy-the laying out of a new road, the vacating of a street or the enclosure of domestic animals, is the initiative in one of its true forms. This needs no particular demonstration, whether the petition of the citizens interested in the settlement of this local question enacts the ordinance and executes the by-law of its own force and at once, or whether it merely brings the subject before the people so that they can vote upon it in the town-meeting or by way of the referendum. In a very great number of cases there must be a moment set when, a local ordinance or administrative measure shall come into effect; the enacting authority must name some condition which shall be fulfilled before the vote can be ordered, and the referendum taken. The legislature which desires that its laws in respect of localities shall be self-operating, and which cannot pretend to determine on its own account small details of government in a municipality or other political subdivision of a State, prefers to commit the task to the people themselves, rather than to local boards and officers.

The referendum has been described as a condition precedent to the taking effect of a law; the initiative is a condition precedent to the referendum. The referendum, itself in the nature of a contingency, is made to depend upon a contingency, and that is the filing with representative local officials of a petition signed by a definite number of persons, asking that the citizens residing within a given district shall have the opportunity to say yea or nay on the proposition that it shall be governed by the terms of a certain local bylaw which the State legislature has proposed. Thus a prescribed number of signatures from ten to several thousand,