SUPPLEMENTARY CHAPTERS

COVERING THE YEARS FROM 1900 TO 1911

CHAPTER XVI

THE INITIATIVE AND THE REFERENDUM IN THE STATES

THE nineteenth century closed with the initiative and referendum intrenched in the Constitution of only one State, South Dakota, but with a pertinacious agitation in progress in all parts of the Union. The ferment, of which the Farmers' Alliance movement was a prominent manifestation, and which came to influence and alter the entire form and character of the Democratic party, set forward on every side the work of the advocates of direct legislation. This essay, when it was published in 1893, and upon its revision in 1900, was meant to indicate to what extent the submission of laws to popular vote was a native institution. Investigators in the field of comparative politics were pointing curious fingers at the initiative and referendum in Switzerland. It was made clear by such writers as Mr. Bryce and Woodrow Wilson that our political practice provided cases of popular law-making quite as interesting to the world, and it was my task to study the subject and state in what certain particulars there was experience of this character in the annals of our American commonwealth. It was not a Tendenzwerk, a work with a tendency or a purpose, though it has been used at times in support of the movement to extend the range of direct and unhindered democracy. No point was intended except the making clear that to our political system law-making assemblies of all the people, and the refer

ring of laws to the people by representative legislatures, are not at all foreign, to which fact was added advice to the effect that if this development were to be continued it could well be gradual on the lines we ourselves had laid down.

Such a process, however, would be too slow for the American "reformer." He has always the hope of bringing other men to his point of view by the passage of laws-to make them honest and temperate, and clean and healthy by lawto make them, if they are poor, well-to-do by law-to take their wealth from them, if they are rich, and scatter it among less-favored persons by the agencies of government. If he cannot bring about his end through the governors, courts, and legislatures of our properly established system he will set aside, or at any rate modify, the system, and put in its place some other which, in his view, promises to be speedier and less refractory in operation. The "reformer" is without particular interest in the history, or the regular progress out of history, of institutions; his interest inclines him to change, often only for the sake of change, and more often for the sake of bringing in an era of policies which he conceives will work for the personal advantage of him and of members of his social class. The initiative and the referendum, to which has now been added the recall, i. e., the removal of a public officer by vote of the people and the election of his successor, were in the hands of the "reformer" at the end of the century. They were bludgeons with which he hoped to be able to beat the heads of the slower-going parts of the population-the college-trained, the reflecting, the established property-holding parts of the nation; and the movement is still in progress. To what lengths it will be carried it would be hazardous even to guess. It is the author's purpose in the pages which follow to describe what has been done since 1900 to engraft these democratic forms upon the political system of the United States.

The initiative and referendum amendment to the Constitution of South Dakota was passed by the legislature in 1897, and adopted by the people in November, 1898, by a

vote of 23,816 yeas and 16,483 noes. In that State the people expressly reserve to themselves "the right to propose measures, which measures the legislature shall enact and submit to a vote of the electors," and the further right "to require that any laws which the legislature may have enacted" shall be submitted to the people, except such as can be considered "necessary for the immediate preservation of the public peace, health, or safety, support of the State government and its existing institutions." Five per cent of the voters, signing their names to petitions, may propose a law which the legislature is bound to submit. The same number of petitioners can compel the submission of any law which the legislature has initiated and enacted of its own motion. The petition for the referendum must be filed in the office of the Secretary of State within ninety days after the adjournment of that session of the legislature at which the law was passed, and a majority of those electors voting on the subject decide the question of its adoption or rejection. The Governor may not exercise his veto power in reference to measures submitted to a vote of the people. The submission is made only at general elections. The ballot reads: "Shall the above measure or law (as the case may be) become a law of this State." Immediately to the left is printed the words "Yes" and "No," each preceded by a square in which the elector is asked to place a cross to indicate his choice.2

The new constitutional provision was without use until 1908 when four measures were submitted to popular vote. The people circulated and filed papers, in accordance with their right of initiative, asking the legislature to submit a local option liquor law. Should twenty-five or more legal freehold voters in any township, town, or city have the right to order an election on the question of granting permits to sell intoxicating liquors? Should ten per cent of the voters of a county have this right in reference to a county? 3

1 Ante, pp. 174-5.

Session Laws of 1907, p. 369.

2 Political Code of S. D., 1903, secs. 21-7.

The people at the same time were requested to express their views on the subject of three laws which the legislature had enacted on its own authority, and for which more than five per cent of the voters had demanded a referendum. On February 20 the legislature had passed and on February 25, 1907, the Governor had signed a bill prohibiting under penalty any theatrical or kindred performances in South Dakota on Sunday. The advocates of liberal Sunday laws joined in a petition for an election and their papers were filed with the Secretary of State on May 24.*

On March 6 the legislature passed and on March 8, 1907, the Governor signed a bill to curb the operations of the divorce lawyers. Hereafter any plaintiff in divorce proceedings must have been "an actual resident in good faith" for one year within the State and for three months within the county before the action shall be instituted. The petition was filed on May 14.5

On March 7, 1907, the legislature passed and the Governor signed a bill making it unlawful to kill quail within the State for a period of more than five years, or before October 1, 1912. The petition was filed on June 4, 1907. The going into operation of all three laws was suspended until they could be submitted to popular vote. The result at the election in 1908 was as follows:

The three laws which had been originated by the legislature were adopted, two by decisive majorities, and the local option liquor law, initiated by the people, was defeated. The total vote for Governor at the same election was 113,904, so that the proportion of all the electors voting for candidates who voted for laws ranged from about 70 to 87 per

cent.

4 Session Laws of 1907, P. 470.

s Ibid., p. 197.

• Ibid., p. 338.