make a permanent provision for special elections for the purpose within a reasonable period after the adjournment of the assembly,1 or to change the time for the sessions of the assembly so that they will come in the same years as the general election."

3

The Division of Legislative Measures

In order to discourage the use of the referendum, it is charged, the legislative assembly in some cases has distributed matter naturally covered by one act among several acts, and thus rendered petition making more difficult. An act may be thus divided also with the hope that, should the several acts be referred, some of them will be approved though some may be rejected.

1 Cf. especially Oregonian, Nov. 2, 1913, sec. 3, p. 6, col. 1; Jan. 16, 1915, p. 8, col. 3.

2 Cf. Eugene Register, June 1, 1913, p. 12, col. 1; report in Oregonian, Jan. 20, 1915, p. 4, col. 3. W. S. U'Ren, quoted in Equity, vol. 15, p. 129 (1913).

CHAPTER XV

THE AMENDMENT AND REPEAL OF DIRECT LEGISLATION BY THE LEGISLATIVE ASSEMBLY

"ARE any and all acts by the people in whom sovereign power resides liable to be turned down by legislators who are mere representatives?" The constitution is silent in the matter, but the supreme court has answered in the affirmative. "Our legislature. . . can, if it chooses, repeal all the laws (not included in constitutional amendments) enacted at the . election." And likewise the legislature may legally enact any laws previously rejected by the people. "If the people intended by the initiative or referendum to take from the legislature its power to legislate, why did they provide precisely the same method for popular enactment of a constitutional amendment and a statutory law? Yet the clear distinction is: In the one case there is specific inhibition upon legislative interference; in the other, the way is intentionally left open for legislative amendment, revision or repeal." 4 In fact it was clearly the intention of the promoters of the direct legislative movement to leave such powers with the legislative assembly. But from the very first there has been a feeling of "delicacy in dealing with a law placed

1 Oregon Journal, Feb. 12, 1911, sec. 2, p. 6, col. 1.

2 Kiernan v. Portland, Oregon Reports, vol. 57, pp. 454, 480 (1910). See also Kadderly v. Portland, ibid., vol. 44, pp. 118, 146 (1903); State v. Schuler, ibid., vol. 59, pp. 18, 26 (1910). Cf. above, pp. 129–30.

* State v. Cochran, Oregon Reports, vol. 55, pp. 157, 195 (1909). Oregonian, Dec. 3, 1912, p. 8, col. 2.

W. S. U'Ren, Oregonian, Feb. 9, 1913, sec. 3, p. 4, col. 4; W. S. U'Ren, quoted in Oregonian, July 9, 1904, p. 6, col. 1 ; Oregon Journal, Feb. 6, 1913, p. 5, col. 2. There was at least some contemporary opinion to the contrary. Oregonian, Dec. 27, 1903, p. 16, col. 2.

on the statute books through the initiative and referendum.” 1 Logical consistency demands that action by the legislative assembly should be regarded as an interference with the popular will as much in the case of referendum measures as in the case of initiative measures adopted at the polls, and that negative majorities at the election should be regarded as much an instruction to the assembly as positive majorities. In fact, positive and negative majorities have been placed about on a par in this regard, but there has always been greater jealousy of interference with initiative than with referendum measures.

The proper attitude of the legislative assembly toward questions once decided at the polls is the subject of doctrines which vary all the way from the doctrine of absolute non-interference to the repudiation of the notion of the peculiar “sanctity” of direct legislation.

"I do not believe the legislature should amend any law that has been adopted by the people by the initiative."2 "If an error has been made [by the people] let the people . . . correct it." "As to measures that have been enacted by the voters, I shall oppose any changes except those that are clearly intended to aid the operation of the bill and make it more effective. As to measures rejected by the voters, I shall oppose their enactment by the legislature, and use the veto power on such measures if necessary."4 Although there is opinion which favors the resubmission of a matter once determined by the people as an alternative to direct interference by the legislature, such resubmission has been opposed as "tampering with the laws of the people."

1 Quoted in Oregonian, July 6, 1904, p. 6, col. 5.

M. A. Miller, senate, Oregon Journal, Feb. 7, 1907, p. 10, col. 3.

J. A. Westerlund, house of representatives, Eugene Register, Feb. 10, 1911, p. 1, col. I.

W. S. U'Ren (candidate for governor), Oregon Grange Bulletin, Nov., 1914, p. I. E.g., Governor's Message, Senate Journal, 1913, p. 1036.

• Debate in senate, Oregonian, Jan. 30, 1913, p. 7, col. 1; Eugene Register, Feb. 8, 1913. p. 1, col. 7; Eugene Guard, Feb. 8, 1913, p. 13, col. 1.

Friends of the bill "contend that the moral conditions supersede any sentimental

More moderate views are thus expressed. "I believe [the]

wishes [of the people] expressed at the ballot box should remain inviolate until changed by them, except only in case of some great . . . emergency. I have always . . . opposed any material change in the people's laws." "If there is to be important change in the primary law, it should be made by the people." 2 Views shade off until there is no distinction made in this respect between direct and ordinary legislation. "Sometimes the people make mistakes. . . . When the initiative was introduced that idea was carefully considered, and we thought that it might transpire that the people would enact laws with defects that would need to be remedied. They might make a serious mistake in passing a bill, and I do not see why the legislature should not change it. It has been said, somewhere, that man is prone to err, and the most of us do, sometimes." "The legislature has its place in the political economy of the commonwealth and it is clearly its duty to correct errors in legislation, whatever the source of that legislation may be. All that is needed is to learn the lesson of experience, and to act honestly and courageously thereon; the people will sustain such action." 4 "If the people have been misinformed, or if time shows that they have made a mistake, or if the issue has not been presented to them in fair and simple terms, or if it be apparent that the people in defeating a measure preferred that the legislature

regard for an amendment passed by the people." Oregon Journal, Jan. 21, 1913, p. 1, col. 2. Further, it has been urged that when at an election voters have been mistaken as to the nature of a measure submitted, it is proper thus to allow them a resubmission of the question to correct their error. And when the suffrage was extended to women it was contended that the "home-rule" liquor amendment and the anti-capital-punishment bill should be resubmitted because they had not been passed upon by all the electorate.

1 J. A. Carson and Jay Bowerman, Senate Journal, 1911, p. 65.

Oregon Journal, Feb. 23, 1911, p. 8, col. 1. See also Governor's Message, Senate Journal, 1913, p. 1036.

W. S. U'Ren, quoted in Oregon Journal, July 6, 1913, p. 5, col. 2. But see above, p. 146, note 4. See also W. S. U'Ren, quoted in Oregonian, July 9, 1904, p. 6, col. 1; letter in Oregonian, Feb. 9, 1913, sec. 3, p. 4, col. 4; F. M. Gill, Oregonian, Feb. 16, 1911, p. 10, col. 5. S. A. Lowell, Oregon Journal, Nov. 29, 1912, p. 18, còl. 4.

should handle the problem that particular bill presents, or if it appears that a popular law can be improved - in these events ... the legislature is justified in amending 'people's laws' or enacting measures the people have disapproved." Of course no one contends that the legislature has any "moral right to interfere wantonly with the people's laws, or any other laws." 2

Even assuming that the voters generally make no mistakes at the election, majorities do not necessarily in all cases indicate public opinion either upon individual measures or upon the several provisions contained in some individual measures. For so far as the defeat of measures is due to negative votes cast as a protest against the submission of such measures, or is due to the habit of voting "no" on propositions not fully understood, the popular vote is no instruction whatever to the people's representatives. Further, when defeat is due to the presence of conflicting measures on the same ballot, it is difficult if not impossible for the legislature to obtain any guidance for action from the vote. Moreover, in the case of negative majorities it is generally impossible to be at all certain as to whether a measure has been rejected because all of its provisions were objectionable to the voters, or whether the voters objected only to one or more of the provisions. And a positive majority does not necessarily indicate the popular will as to the whole of a measure adopted at the polls. For the measure may have been adopted in spite of individual provisions obnoxious to most of the voters, or some provisions may have been entirely unknown to most of the voters.

It would seem that direct legislation has not been in operation here long enough to have allowed the development of a compromise theory admitting the "rigidity" of direct legislation, but limiting the duration of that "rigidity" to a reasonable length of time.

1 Oregonian, Mar. 3, 1913, p. 6, col. 2. See also ibid., May 3, 1904, p. 6, col. 3; Feb. 25, 1911, p. 8, col. 3. It has been observed that the solution of some legislative problems, as in the case of agreement with other states upon needed uniformity of laws, may necessitate the legislature's revision of direct legislation. Oregonian, Sept. 14, 1911, p. 12, col. I.

2 Oregonian, Feb. 17, 1911, p. 10. col. 2.