CHAPTER II THE AUTHORS OF PROPOSED LEGISLATION I The Legislature WHILE the action of two legislative assemblies was required for the submission of constitutional amendments to the voters and a majority of the votes cast at the election was required for the approval of amendments, but few amendments were submitted by the assembly. But since the submission of amendments by a single assembly has been allowed and only a majority of the vote cast on the amendment at the election required for its approval, the assembly has been more active, and has submitted twenty-two amendments to the people since 1908.1 The shifting upon the people of responsibility which should be assumed by the legislative assembly is prevented by the provision of the original constitution which forbids that "any law shall be passed the taking effect of which shall be made to depend upon any authority except as provided in the constitution," but at the same time the constitution permits the assembly to submit special and local laws to the voters interested,2 who generally should be better judges than the assembly in such matters. The necessity of local legislation by the assembly has been reduced by the amendment of 1906 investing the localities with the power of initiative and referendum in matters of local 1 At the next general election three constitutional amendments originating in the assembly will appear on the ballot. Constitution, art. 1, sec. 21 (1859). interest,1 and an amendment of 1910 has reduced the power of the assembly in the direction of local legislation.2 Although the amendment of 1902 permits the people of the state to demand the referendum upon legislation passed by the assembly, it unfortunately permits the assembly of its own accord to refer any legislation to the vote of the people for final determination. This optional referendum not only encourages the assembly to shift responsibility for legislation upon the people, but is a means whereby the assembly may prevent the operation of the governor's veto, since the veto is not applicable to the measures referred to the people." "If the legislature would avoid the Scylla of a veto, it may steer its measures toward the Charybdis of the referendum."6 In view of the advantages which should accrue from further discussion of initiative measures, as well as from a hope that in this way action by the legislative assembly would often render unnecessary action by direct legislation, it has been proposed that all initiative bills shall first be presented to the legislature and that the legislature shall then either pass the bill without amendment, or substitute a rival bill and submit both bills to the people." It would seem that the creation of any tendency toward shifting the legislature's responsibility by such an optional referendum would be at least balanced by a tendency to enact needed legislation without waiting for pressure from unofficial action. 1 Constitution, art. 4, sec. 1a (1906). 2 Ibid., art. 11, sec. 2 (1910); art. 9, sec. 1a (1910, 1912). Ibid., art. 4, sec. 1 (1902). "A bill adopted by the legislature may be referred to the people for their ratification. . . . When an act comes from the legislative assembly it may be affirmed, we think, under the clause of the constitution above quoted that that body cannot leave it to a vote of the people to determine whether or not it shall become a law, because the taking effect thereof is thereby made to depend upon an authority other than that provided for in the constitution." Fouts v. Hood River, Oregon Reports, vol. 46, pp. 492, 497 (1905). See also Oregon Journal, Feb. 12, 1913, p. 2, col. 2; Oregonian, Feb. 12, 1913, p. 2, col. 1. Below, pp. 169-70 Constitution, art. 4, sec. 1 (1902). • Libby v. Olcott, Oregon Reports, vol. 66, pp. 124, 131 (1913). Below, pp. 164-5. In addition to the objection urged against the resubmission by the legislative assembly of measures enacted or defeated by the voters, as an unwarranted interference with the will of the people,1 a more substantial objection lies in the fact that such a practice encourages the over-use of direct legislation. "If the legislature at this time establish a precedent of taking from the statute books measures passed by the people and resubmitting them, you will soon have every man with anything against a measure up before the legislature with resolutions to put it in the ballot again." The same, indeed, may be said in regard to measures which have been rejected by the voters. Of course all measures passed by the legislative assembly and referred by the people are, in a certain sense, "initiated" by the assembly. In some instances the assembly has delegated the initiation of constitutional amendments or bills to committees acting under its authority. The important "rational tax reform" amendments and bills of 1912 were initiated by a "legislative tax committee" consisting of members of the senate and the house of representatives, acting in conjunction with the state tax commissioners. And a similar provision was made for the submission of tax measures in 1914. A commission appointed by the governor under authority of the legislature in 1911 was empowered to submit measures for the reform of judicial procedure either to the legislature or the people, but the commission decided in favor of the legislature. Under such arrangements, of course, the legislature is shifting its responsibility for the enactment of legislation and neglecting to exercise even the advisory function of referring legislation to the people." 1 Below, p. 146. 2L. G. Lewelling, senate, Oregon Journal, Feb. 8, 1913, p. 14, col. 1. In 1911 the legislative assembly could not act finally upon taxation bills, and of course must still submit any proposals for constitutional amendments affecting taxation to the people. The action of the "legislative tax committee" of 1912 was obnoxious to the supporters of rival measures, and it was doubtless for this reason that in a proposed constitutional amendment of that year there was included a provision to the effect that the legislative assembly should not "appoint or create any committee, board or commission to prepare or propose any measure by initiative petition," and should not appropriate any money for the making of initiative or referendum petitions.1 This proposition was criticized as "a step to deprive the people, to a certain extent, of the right to call on their legislatures for preparation and submission of bills, which in the end would be submitted to the people." 2 2 The Executive Recently a quasi-official form of organization for the preparation of initiative measures has been developed. On account of the failure of enactment of "good roads" legislation at the legislative session of 1911, the governor, upon his own responsibility, appointed a "state-wide committee" who prepared several measures on the subject. These were later revised by a "harmony committee" similarly appointed, and were finally submitted to the popular vote. The "blue-sky" bill and the "millage-tax" bill, submitted at the same election, were prepared, both without legislative sanction, the first by the corporation clerk under the direction of the secretary of state and with the coöperation of the governor, and the latter by a "joint committee" made up from the governor's "special committee" and from the boards of regents of the university and the agricultural college (the institutions affected), working with the presidents of the respective institutions. The governor was also largely responsible for the submission of the anti-capital punish1 Referendum Pamphlet, 1912, no. 362, art. 4, sec. 3f, p. 214. See Oregonian, Aug. 11, 1912, sec. 2, p. 7, col. 1. 2 Reported in Oregonian, Aug. 11, 1912, sec. 2, p. 7, col. 1. ment bill at the same election, and he was the real author of the bill for the consolidation of the desert land board and the state land board submitted at the next election. Such procedure on the part of executive officials has met with objection. In regard to the initiation of the "blue-sky" bill it was said: "The sole question here is whether the executive department, through the secretary of state, or the legislature shall legislate for the people of Oregon. It is an unwarranted invasion by one branch of the state into the constitutional territory of another." And it has even been suggested that it should be made unlawful for public officials other than the governor to prepare any measure affecting his own public service or employment.2 The objections asserted against executive interference in direct legislation of course apply to the proposal for appeal by the governor from the legislature to the people in case of vetoed bills. 1. Authors Concealed. 3 At times the real authors of initiative and referendum measures find it to their interest to conceal their identity from the public, and so the voters are at times confronted with measures the sources of which are unknown or uncertain. Thus, the origin of the attack on the corporation bill of 1903 was uncer 1 Oregonian, Oct. 20, 1912, sec. 3, p. 6, col. 3. Reported in Oregonian, Dec. 17, 1912, p. 10, col. 1. Cf. California Laws, 1913, ch. 196. Below, p. 126. A proposed constitutional amendment which authorized the governor to introduce bills and resolutions in the house of representatives at the same time authorized him to order a referendum on any of his measures which might not pass, and, in case the legislature passed a measure on the same subject, to order the referendum on both measures, so that the people might choose between them. C. H. Chapman and others, Introductory Letter. 1909, pp. 8, 33-4. Cf. E. L. Norris, Strengthening the Power of the Executive, Governors' Conference Proceedings, 1911, pp. 19-20, |