1

the people cannot be trusted with legislative powers and that all legislation must be done by proxy." And doubtless, too, the optimistic view is influenced by a preconceived belief that the people in their collective capacity are wholly or nearly infallible. "There is no infidelity in the collective citizen body. Its judgments are sound and its collective honesty complete. It has a sober sense, rational mental processes and its purposes are exalted. The whole trend of legislation by the electorate is for social and economic betterment. If a people are given the means of control, instead of having all control by proxy, state government will be swiftly purified. It has been so under direct legislation in Oregon, and it will be so in any state that adopts the system." 2

In spite of the difficulties in the situation, the results of the several elections are, in general, competent evidence as to the intelligence of the vote cast. That the voters have done remarkably well under the circumstances is generally conceded, even by opponents of direct legislation, although there is of course much difference of opinion as to the relative merits of many individual measures that have been approved or rejected at the elections. "On the whole the people of Oregon have exhibited discernment and intelligence in separating the good from the bad or doubtful. If direct legislation has revealed fault it is not in the inconsiderate acts of the mass of voters, but rather in the selfish or experimental activity of minorities in holding up acts of the legislature desired by the people or in submitting laws that have no chance to gain the approval of the majority. Moreover, that fault is not with the principle, but with the unguarded, unrestricted manner in which it may be applied and is possible of correction."3 And whatever adverse criticism may be deserved by the action of the voters, it is believed that the results of direct legislation

1 Oregon Journal, Nov. 2, 1907, p. 6, col. 3. Ibid., July 3, 1910, sec. 2, p. 4, col. I. Oregonian, Nov. 13, 1913, p. 10, col. 2.

Nov. 9, 1912, p. 8, col. 1.

See also ibid., July 21, 1909, p. 8, col. 2;

1

at least compare favorably with those of representative legislation. "Upon all measures submitted to it, the electorate of Oregon has acted with a ripe and deliberate wisdom which compares favorably with the proceeding of the legislature." "We are all under hallucination as to the wisdom of the average legislator. He has no monopoly of brains. He has no corner on honesty. He has no monopoly of legislative wisdom. There is nothing hallowed about the Oregon legislature. There is no halo about the head of an average member. He is just a plain man and often a very common one." 2

1 Oregonian, Mar. 2, 1907, p. 8, col. 1.

& Oregon Journal, Nov. 21, 1912, p. 8, col. 2. See also especially ibid., July 30, 1913, p. 6, col. 2.

CHAPTER XII

DIRECT LEGISLATION AND THE EXECUTIVE

It follows from a constitutional provision to the effect that "the veto power of the governor shall not extend to measures referred to the people," 1 that the veto power does not extend to initiative measures or to measures referred by the legislature, but that the possibility that measures passed by the legislature may be referred by petition does not exempt them from the governor's veto.2

Recently, on account of long contests in the legislative assembly over vetoed bills, it has been suggested that provision should be made for "a constitutional amendment which will automatically refer all vetoed bills direct to the people instead of back to the legislature," on the ground "that if there are sufficient flaws in a bill to merit the governor's veto, the people of the state should be given the right and privilege of sustaining or rejecting the veto instead of making it the bone of contention in a political fight in the legislature." But under conditions usually present in Oregon, this would add greatly to the burden of the ballot. However, at times such a right for appeal would have saved the necessity of initiating a measure by petition.

1 Constitution, art. 4, sec. 1 (1902).

2 Kadderly v. Portland, Oregon Reports, vol. 44, pp. 118, 146 (1903); State v. Kline, ibid., vol. 50, pp. 426, 430 (1907); Oregon v. Pacific States Tel. & Tel. Co., ibid., vol. 53, pp. 162, 164 (1909). Cf. F. Foxcroft, Constitution-Mending and the Initiative, Atlantic Monthly, vol. 97, pp. 792, 793 (1906); G. A. Thacher, Initiative and Referendum in Oregon, Proceedings of the American Political Science Association, vol. 4, pp. 198, 202-4 (1907).

3 Reported in Oregon Journal, Feb. 2, 1913, p. 5, col. 5. See also C. H. Carey, New Responsibilities of Citizenship, Proceedings of the Oregon Bar Association, 1908-10, pp. 18, 40 (1909).

It has been noted above that the governor and other executive officers of the state have assumed the leadership in the submission of several important measures to the decision of the voters. This seems to be but in keeping with the general tendency toward executive leadership in legislation.

The administration is further removed than the legislature from the action of direct legislation, but doubtless the responsibility of the administration is affected, for good or evil, in some degree as in the case of the legislature.2

1 Above, pp. 12–13.

Below, pp. 167–70.

CHAPTER XIII

THE DIRECT AND THE REPRESENTATIVE LEGIS

LATURES

I

Direct Legislation and Representative Government

"It is difficult to conceive of any system of lawmaking coming nearer to the great body of the people of the entire state, or by those composing the various municipalities, than that now in use here." 1 But "the initiative and referendum amendment does not abolish or destroy the republican form of government, or substitute another in its place. The representative character of the government still remains. The people have simply reserved to themselves a larger share of legislative power." 2

However, during the period of the operation of the system of direct legislation, there has been lack of confidence in the legislative assembly, encroachment upon the functions of the assembly by unnecessarily overloading the ballot with measures, and even a desire, on the part of some extremists among the advocates of direct legislation, entirely to abolish the assembly and place all responsibility for legislation directly upon the people.3

1 Kiernan v. Portland, Oregon Reports, vol. 57, pp. 454, 472 (1910).

Kadderly v. Portland, ibid., vol. 44, pp. 118, 145 (1903). The constitutionality of the initiative and referendum was upheld in Kadderly v. Portland, ibid., vol. 44, p. 118 (1903) and Kiernan v. Portland, ibid., vol. 57, p. 454 (1910). In Pacific States Telephone and Telegraph Company v. Oregon, United States Reports, vol. 223, p. 118, Lawyers' ed., vol. 56, p. 377 (1912), the question was considered to be of a political and not judicial nature, and the case was hence dismissed for want of jurisdiction. This case in particular aroused an intense interest in Oregon. Below, pp. 159-61.