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the electors, for their approval or rejection by majority vote. It is over this form of Referendum that present-day opinion and practice, in the several States, most widely differ.

States have brought the Statutory Referendum into their constitutions in the following order:

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The Statutory Referendum first found its way into an American State constitution in South Dakota, 1898, in the declaration that the right was reserved to the people "to require that laws which the Legislature may have enacted shall be submitted to the vote of the electors before going into effect." In Oregon, the State which has used this form of the Referendum most freely, its enunciation was as follows: "The power is reserved to the people at their own option to approve or reject at the polls any act of the Legislature, except . . ." etc. The most widely adopted formula reserves "the power to approve or reject at the polls any act, item, section or part of a bill, act or law passed by the Legislature, except . . ." etc.

There is wide diversity as to the scope of the Referendum's applicability. California, Idaho and Nevada declare it to be applicable to any law. Fifteen States make it applicable to any measures except those specifically prohibited. A dozen States concur in declaring exempt from Referendum petition

"laws necessary for the immediate preservation of public peace, health or safety." In many States laws for the support of the State government, or its various institutions, including the public schools, are excluded from the Referendum's test. Maine makes elaborate provision to prevent the trammeling of the Legislature by Referenda on resolutions concerning its procedure, etc.

In order that ample opportunity may be afforded for the filing of Referendum petitions, it is ordinarily provided that no law (with the exception of those classes to which the Referendum is not applicable, as cited above, or of "emergency measures," to be discussed later) shall go into effect for a certain period after its passage. In the great majority of the States which have adopted the Referendum, this interval is ninety days from the end of the legislative session in which the act was passed. Utah prescribes only sixty days. Ohio provides that the ninety days shall run not from the end of the session but from the time when the Governor files the approved law.

Emergency Measures. In drafting a Constitution's sections relating to the Referendum, the clause relating to emergency measures presents a difficult problem. Unless the power is given to the Legislature to forestall the use of the Referendum in time of stress, there is danger that the public interest may be seriously injured through the delay of needed legislation by the filing of a referendum petition against the measure in question. On the other hand, there is a real danger that a Legislature, if given any discretion as to the forestalling of a Referendum, may abuse that power by alleging an emergency, in the case of many a measure, where no real emergency exists. In Oregon this abuse is said to have led to the Governor's vetoing several measures to which the Legislature had applied an emergency clause. The record of the South Dakota Legislature in this matter is highly suggestive.1

1 In 1916, however, the Supreme Court of South Dakota held in State ex rel. Richards v. Whisman that the emergency clause cannot defeat a Referendum unless an actual emergency, as defined by the Constitution, exists. A falling off in the number of emergencies seems to have set in.

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The States differ widely in the degree of discretion which they leave to the Legislature in dealing with this matter. In Missouri any act is an emergency measure which is declared so to be. Acts making appropriations are privileged as emergency measures in Michigan, and measures for the support of the State government and State institutions are so listed in Arizona. The definition of "emergency measures" which has found widest acceptance is: "measures immediately necessary for the preservation of the public peace, health or safety." Substantially this phrasing is found in the Constitutions of nine States. (Arizona, Michigan, Nebraska, New Mexico, Ohio, South Dakota, California, Maine and Oklahoma.) But several of the States, distrusting the interpretation which a heedless or reckless Legislature might put upon these simple phrases, have sought to remove temptation by narrowing the range of possible interpretation. Thus, the California Constitution adds to the above definition the following: "Provided, however, that no measure creating or abolishing any office or changing the salary, term or duties of any officer, or granting any franchise or special privilege, shall be construed to be an emergency." Maine makes special exclusion of the following: "(1) an infringement on the right of home rule for municipalities; (2) a franchise or license to a corporation or individual to extend longer than one year, or (3) provisions for sale or purchase or renting for more than five years of real estate."

Five of the States secure the desired object not by sharper definition of "emergency" but by requiring that the Legislature shall explicitly declare in the act itself that the proposed act is an "emergency measure." Some insist that this declaration be placed in a separate section. Maine and North Dakota require that the section declaring it an emergency shall state the facts constituting the emergency, and California and Ohio require that that section be passed only by a yea and nay vote, upon a separate roll-call thereon. Nearly all of the States which exempt emergency measures from the Referendum require that the justification for such action shall be evidenced by an exceptional vote, the ordinary minimum being a twothirds vote of all members elected to each house. Other States require an aye and nay vote in each house, to be entered on the journal, and a three-fourths vote, in case of the Governor's veto. It is generally provided that acts passed as emergency measures shall go into effect "immediately" (California, Michigan, Ohio, Oregon, Washington) or "when the Legislature directs" (Maine, Missouri, Nebraska, South Dakota).

Number of Signers required. - Nine of the States which have introduced the statutory Referendum insist that the petitions therefor shall bear the signatures of five per cent ("not more than five per cent," says South Dakota) of the legal voters in the State. (Reckoned on the list of registered voters in November, 1916, in Massachusetts, this would mean 32,544 signatures.) It may be a matter of some significance that the table of enactments of Initiative and Referendum amendments seems to indicate a distinct tendency to increase the percentage required. Ohio and Washington insist upon six per cent, but

in the latter State in no case more than 30,000 voters. Four States require ten per cent. Maine and Maryland make the test not a percentage but a minimum number, "not less than 10,000 electors." Missouri, Montana, Ohio and New Mexico insist that the petitioners shall be widely distributed, New Mexico stipulating that that aggregate of ten per cent of the voters shall comprise "not less than ten per cent of the qualified electors of each of three-fourths of the counties."

Time of Filing the Petition. — The provisions as to the filing of the petition, of course, vary in accordance with the individual

State's rule as to the time when the acts of its Legislature go into effect. A dozen of the States allow ninety days after the adjournment of the Legislature by which the measure in question has been enacted. Ohio dates the ninety days from the Governor's filing of the law. Montana extends the time to six months from the end of the Legislature's session. New Mexico starts from the other end, insisting that the petition must be filed not less than four months prior to the next general election. Does the Filing of a Referendum Petition Suspend the Law? - In fifteen States, upon the filing of a Referendum petition within the allotted time and bearing the requisite number of signatures, the operation of the measure against which it is directed is suspended until it shall have received the approval of the voters at a general or special election. In this very fact lies the cause of filing some petitions. The Statutory Referendum has been advocated mainly as a device for blocking bad measures. But, like all modes of obstruction, it can be used for unworthy ends, and from several States comes convincing evidence of the filing of referendum petitions against measures which were passed in the public interest and which were sure to be approved at the polls; but the possibility of securing nearly two years' delay in the law's going into effect was a stake worth striving for on the part of the real instigators of the petition.

To prevent this misuse of the petition, Nevada provides that the challenged measure shall remain in force until its rejection. Both California and Ohio provide that acts for the immediate preservation of the public peace, health or safety shall continue in effect until rejected by the voters or repealed by the Legislature. Although Montana requires the signatures of but five per cent of her legal voters upon a referendum petition, she insists upon the signatures of fifteen per cent to an extraordinary petition to effect the suspension of the measure, and New Mexico requires the signatures of twenty-five per cent upon a similar petition.

The Referendum may apply to Part of a Measure. — In nine States the Referendum has been planned on the model of the itemized veto possessed by the Governor in many of the States. In substantially identical language, it is provided that the

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