of the people on the identical question which the constitution makes it the duty of the legislature itself to decide. * * * The government of this State is democratic, but it is a representative democracy, and in passing general laws the people act only through their representatives in the legislature.16

Without doubt the position taken in such cases is perfectly sound, for the people have specifically provided, in their written constitutions, the manner in which general State laws shall be passed, and, according to our theory of government, legislation of this kind can take place in no other way. It would certainly be revolutionary for the legislature to attempt to pass general laws, in any other manner than that provided by the written constitution, and it would be equally revolutionary for the judiciary and the executive to enforce any legislative action of this kind. Here the unwritten constitution, which allowed the legislature to modify it at will, was abrogated by act of the people and a written constitution, defining the powers and duties of all branches of government, erected in its stead. The same may be said of any attempt on the part of the people to legislate for themselves directly till they had made provision for such acts by a constitutional amendment. All of the reasons applied by the several courts to local option laws, in declaring them unconstitutional because opposed to the principles of representative government and our fundamental law, would be applicable here. The cases of this kind, however, have been so few as to warrant little discussion except as a matter of discovering, in cases where no constitutional provision has been made for it, the theory of the referendum under our governmental plan.

16 See, also, Mayor and counsel of city of Brunswick v. Finney, 54 Ga., 317 (1875); State v. Hayes, 61 N. Y., 264 (1881); Bank of Chenango v. Brown, 26 New York, 467 (1863); Gould v. Town of Sterling. 23 New York, 456 (1861); State, ex rel., v. Wilcox, 45 Mo., 458.

CHAPTER X.

POPULAR CO-OPERATION IN LEGISLATION AND ADMINISTRATION (2) UNDER WRITTEN CONSTITUTIONS.

The development of constitutional provisions for popular co-operation in acts of government seems to be somewhat intimately associated with the judicial contests growing out of their use. Nothing more forcibly illustrates the desire of our society for a settled and wellestablished order. The referendum had been resorted to by the people as a means of protecting themselves against the predatory activities of the public agents to whom were entrusted the exercise of sovereign power. This means of protection had been questioned and in some instances denied. The interests of society demanded that it be protected both from oppressive acts of government and from the blight of uncertainty. It being advantageous to the public welfare that the referendum be retained as a part of our polity, the courts having denied this right or having caused doubt to exist relative. to its constitutionality, the people sought the first opportunity to incorporate the provisions desired in their constitutions. The courts having denied to the legislature and to the people those rights which had been exercised by them under the unwritten constitution, the people asserted these rights in that constituent capacity which the courts could not deny; they incorporated them in their written constitutions.

This may seem an unwarranted inference; yet the fact that no provision was made in the written constitutions. for the use of the referendum in local option laws till

1834, nearly ten years after question as to its validity had been raised-in Massachusetts; that the next provision of this kind appeared in 1848-in Illinois, immediately after question was raised in that State as to the constitutionality of a local option law, and providing for the very subject of litigation; that in the same year like provision was made in Wisconsin, a neighboring State; that no other constitutional provision for the referendum, in local matters, was made till 1850, prior to which time the validity of such laws had been questioned in nine different States; these facts, together with the further fact that the provisions for referendum in the constitutions increase very much in the same proportion as the controversies arising out of referendal uses in matters of local legislation, argue very strongly for the correctness of this view.

Two classes of provisions for referendum appear in the written constitutions: First, those providing for the referendum in general acts of government, i. e., acts affecting the State at large; and, second, those providing for referendum in acts of local government, i. e., measures affecting political subdivisions of the State. We will consider them in the order stated.

2

I.

The first class of provisions were not, in all probability, seriously affected by the decisions of courts, for, as stated before, it was quite generally conceded, that the adoption of written constitutions, providing a specific manner in which general laws should be passed and the agents for their enactment, abrogated the unwritten constitutional powers of the legislature to this extent, and required that general laws be passed in the manner and by the agents prescribed. Therefore, the growth of the

1 See supra, p. 191.

2 Supra, p. 198,

class of provisions may be attributed to the necessity arising out of political and social conditions.

The first constitutional provision for referendum, of a general character, appears in the Georgia constitution of 1798 (Art. I, Sec. 23). The subject-matter is that of State boundaries. The provision is as follows:

And this convention doth further declare and assert that all the territory within the present temporary line, and within the limits aforesaid, is now, of right, the property of the free citizens of the State and held by them in sovereignty, inalienable but by their consent.

This is followed by certain provisos. Another provision on the same subject appears in the constitution of West Virginia-constitution of 1872, Art. VI, Sec. 11— which recites that "additional territory may be admitted into and may become a part of this State, with the consent of the legislature and a majority of the qualified voters of the State voting on the question," etc., etc.

In New York, at the time of the adoption of the constitution of 1846, the question of extending the right of suffrage to negroes was referred to the people,3 and like provision was made in Michigan constitution of 1850.* Referendal provisions relative to suffrage also appear in the constitutions of Wisconsin (1848), Kansas (1858), Colorado (1876), South Dakota (1889), Washington' (1889), and North Dakota1o (1895).

But questions of boundary, territorial extent of a State and suffrage are constitutional in their nature rather

3 Journal of Convention, Vol. IV, p. 463. Mich., Cons. 1850, Sched., 30.

5 Wis. Cons. 1848, III, 1. Kans. Con., 1858, Sched., 12.

7 Colo. Cons., 1776, VII, 2.

8 S. Dak. Cons., 1889, VII, 2. Wash. Cons., 1889, Sched., 8. 10 N. Dak. Cons., 1895.

than subjects of ordinary legislation. The establishment of a State involves two things, viz.: An organized political people, and a clearly defined territory over which their sovereignty extends. The question of suffrage pertains to the former-a definition of the political people. The question of boundaries pertains to the latter, the definition of territorial jurisdiction. Both are essential. Political organization and territorial limits being essential parts of the constitution, all questions regarding suffrage, change in boundaries, sessions and annexations should have the same sanctions, theoretically, as other portions of the constitution. Eliminating these, therefore, we find no provisions for the referendum in ordinary legislation prior to 1842, at which time the people of Rhode Island incorporated in their constitution the following:

The General Assembly shall have no power hereafter, without the express consent of the people, to incur State debts to an amount exceeding fifty thousand dollars, except in time of war, or in case of insurrection or invasion; nor shall they in any case without such consent pledge the faith of the State for the payment of the obligations of others.

In 1843 Michigan amended her constitution requiring:

Every law authorizing the borrowing of money or the issuing of State stocks, whereby a debt shall be created on the credit of the State, shall specify the object for which the money shall be appropriated; and that every such law shall embrace no more than one such object, which shall be simply and specifically stated, and that no such law shall take effect until it shall be submitted to the people at the next general election and be approved by a majority of the votes cast for and against it at such election, etc.

11 Mich. Am., 1843, to Cons., 1835.