local councils and boards which are too prone inconsiderately to dispose of valuable holdings of this kind. More jealously guarded than some other forms of public property are the "school lands" which the Congress of the United States, in pursuit of its policy with respect to the public lands, made over to the States for the benefit of education. "Section number 16" in each township was regarded as school land and when this section was not available for the grant equivalent transfers were made to the State. This land was vested in the townships, each holding its share for the use of its common schools, and it was sometimes a condition of the grant that neither the section nor any part of it should ever be sold except with the consent of the inhabitants. Thus by the act of Congress of February 15, 1843, in reference to the school lands of Illinois, Arkansas, Louisiana and Tennessee it was provided that these lands in any township "shall in no wise be sold without the consent of the inhabitants of such township or district to be obtained in such manner as the legislatures of said States shall by law direct" 18 Two methods have been employed with the object of securing the assent of the people to a sale, the petition and the referendum. Thus in Illinois 19 and Arkansas 20 the popular sense regarding this question is secured by circulating a petition for the signatures of the citizens; while in Indiana,21 Ohio, 22 Alabama,23 and Louisiana,24 a vote of the people of the township at a referendum, in which the ballots bear the words "Sale" or "No Sale", or their equivalents, is requisite. The people are sometimes directly consulted also in regard 18 United States Statutes at Large, Vol. V, p. 600. 19 Starr and Curtis' Statutes, p. 3719. 20 Sandels and Hill's Statutes, secs. 7114 et seq. 21 Horner's Indiana Statutes, secs. 4329 et seq. 22 Revised Statutes of Ohio, secs. 1418 et seq. 23 Code of Alabama, secs. 3635 et seq. 24 Wolff's Revised Laws of Louisiana, sec. 2958; ef. Telle v. School Board, 44 La. An. p. 365. to the lease of school lands, as in Indiana.25 This referendum has found its way into the Constitution of at least one State, Kansas.20 Public property of other kinds-not lands-is sometimes vested in the people of a community in this special manner, a legal sale being possible only after a petition requesting that this course shall be taken, has been signed by a large number of the inhabitants, or an election is held and the people vote in favor of the sale. In the counties of Kansas poor asylums or poor farms which represent a value in excess of $3,000 may be sold or leased only by way of the referendum.27 In Missouri in cities of the "first class" the "municipal assembly" may pass an ordinance for the sale or lease of "any of the parks, places or squares" of the city. However "no such sale or lease shall be made by the municipal assembly unless the ordinance providing therefor be submitted to a vote of the qualified voters of the city for ratification at a general election, and be ratified by a majority of the qualified voters of the city ".28 Any township in Ohio may sell "real estate or buildings which it does not need", if the people of the district indicate their approval of the policy.29 An act passed by the legislature of Ohio in 1887 authorized a poll of the people in the city of Cincinnati on the question of selling a line of railway which had been under the ownership and control of the commonalty.30 25 Horner's Indiana Statutes, sec. 4329; cf. Acts of Tennessee, 1889, p. 72. 20 Constitution of Kansas, art. vi, sec. 5. 27 Webb's Statutes of Kansas, chap. 156, sec. 37. 29 Revised Statutes of Missouri, 1889, p. 348. 29 Revised Statutes of Ohio, sec. 1481. 20 Ibid., sec. 9868. CHAPTER XII THE LOCAL REFERENDUM-LOCAL OPTION LIQUOR LAWS AND VEXED QUESTIONS We have arrived now finally at the third and last general class in the scheme which was originally mapped out for the discussion of this subject. In this class are embraced the referenda on vexed questions of various kinds regarding which the people hold very opposite opinions and are likely violently to disagree. I have noted in my remarks concerning some of the earlier classes of local referenda, more particularly those on financial questions, that many of these proposals are essentially of a disagreeable and vexing character. The legislature hesitates either to enact or to refuse to enact a certain measure. It would be criticized by partisans no matter what policy it should adopt. The legislators say then to the people: "We will refer this question to you. You elect us and we represent you. In this matter we will submit the law directly to you and if you are in favor of it you may pass it; if, however, you are opposed to it you will reject it. In any case you cannot blame us." The most familiar type of conditional legislation of this kind in local communities relates to the control and prohibition of the traffic in intoxicating liquors. In the local districts, as in the States, the referendum in respect of this subject enjoys a wide application and it has been in common use for more than fifty years. This local veto, a majority of the electors in a county, a township or a borough having the power to decide whether or not liquors shall be sold therein, has come to be looked upon as an almost necessary feature of American government. It is generally approved by writers on constitutional subjects and by the courts, and lacking this method it would be difficult to suggest another which would be so satisfactory to great bodies of the people who are the bone and sinew of the American democracy. Whether an attempted regulation of the habits of men with respect to what they eat and drink is a perilous attack on individual rights without which no society can have native strength and original purpose, or whether it is not, there is a general disposition to say to the drinker or the dram seller on the one side that he must conform to the wishes of the majority, and to the teetotaler and the reformer of mankind on the other that he must do the same thing. Constitutional thinkers familiar with our practice will remark, whether they are individualists or advocates of state intervention, that a community has the undoubted "right" to prohibit the sale of liquors inside its borders, if the people at a plebiscite express their approval of this policy. Such a community is held to possess the "right", even without a direct vote of its inhabitants in favor of prohibition, in the regular exercise of the police power. Through its appointed agents liquor selling may be restricted by the local corporation; it may also be forbidden, but the latter is a course which the legislature on its own responsibility will rarely authorize the officers of a county, a township or other local district to pursue until public sentiment shall become much more nearly unanimous than it is to-day. The referendum affords a most convenient way out of a disagreeable predicament, for by our "local option " system a "general law" may be enacted by the legislature and may stand upon the statute book permitting a vote of the people whenever certain conditions shall be fulfilled, and it still remains there even though not a single district in the State has chosen to avail itself of the privilege. It enforces or repeals itself automatically according as the sentiment of the electors with the passage of time may undergo change regarding this question. A more elastic form of legislation it would be hard to devise, and a more ingenious method of escape from the bitter attacks of the teetotalers on the one hand and of the users of liquors and the publicans on the other can scarcely be conceived. It is pleasant to encounter the hostility of neither faction, as politicians in this country very well know, and the temperance" campaigns" draw political lines so closely and divide social classes so sharply that any device by which a legislator may pass the charge of bias or bad faith back again to the people, from whom it emanates, finds a cordial welcome. Out of such conditions the "local option " principle with respect to subjects of this kind in this country has been a natural development. One of the earliest of the local option laws in reference to the sale of liquors which I have been able to find was passed by the legislature of the State of Pennsylvania in 1846. There were probably local option liquor laws applying to single and separate counties prior to that time, but this date marks with approximation the beginning of the history of this referendum in the United States. The Pennsylvania law of 1846 took into account no larger units than boroughs, wards of cities and townships and these only in some eighteen counties, the names of which were distinctly specified. The elections were to be annual commencing with 1847. The ballots were to contain the words "For the sale of liquors" or Against the sale of liquors". If a majority of the votes cast on the proposition were in favor of the sale, inns and taverns were to be licensed as they had earlier been; if, however, a majority of the votes cast were against the sale the traffic would be declared to be a "public nuisance" and it would be prohibited and penalized.1 66 A similar law, of application to the separate counties of Delaware, was passed by the legislature of that State in 1847. The people in that year and at any subsequent annual election, when a number equal to one-fourth of those voting at the last preceding election should request it in writing, were to deposit ballots bearing the words "License" or "No License" in "a box provided for that purpose ". In any county voting Session Laws of Penna., p. 248; cf. ibid., p. 431. |