done away with and all legislation and administration be performed by the people direct, with whatsoever success might be possible." And it must be admitted that evidence of a tendency to avoid responsibility does at times appear in the legislative assembly. On the other hand, however, there is more evidence of an increased sense of responsibility there for what is done, due, in part, to the referendum, for what is not done, due, in part, to the initiative." "We have had some experience with the referendum, and we should go slow." 3 "Shall we put this before the people ourselves, or shall we ask the people to place it on the ballot by petition of eight per cent of the voters?" 4 But there is danger that the clamor of special narrow interests will be mistaken by the legislative assembly for public opinion, and, in fact, during the session of the assembly disappointed advocates or opponents of legislation, however broad or narrow the interests they represent, are constantly threatening to invoke either the initiative or the referendum.

The constitutional provision which permits the legislative assembly to submit statutes to the people of the state for approval or rejection 5 is vicious in that it may tempt the assembly

1 Eugene Register, Jan. 5, 1913, p. 12, col. 2. See also J. N. Teal, Practical Workings of the Initiative and Referendum in Oregon, Proceedings of the Cincinnati Conference for Good City Government, 1909, pp. 309, 311; S. A. Lowell, Oregonian, Jan. 25, 1913, p. 6, col. 5.

2 Cf. R. W. Montague, Oregon System at Work, National Municipal Review, vol. 3, pp. 256, 268 (1914).

'C. Schuebel, house of representatives, Oregon Journal, Feb. 17, 1913, p. 4, col. 2. A. H. Eaton, house of representatives, Eugene Guard, Feb. 8, 1913, p. 13, col. 1. The ever-increasing amount of legislation enacted by the legislative assembly (above, pp. 78-80) might appear to be evidence against any tendency of the assembly to shift its responsibility upon the people. But, although the increase in the volume of legislation might be interpreted to prove that the assembly does not refrain from action in view of the power of the people to obtain desired legislation independently of the assembly through the initiative, it might as well be interpreted to indicate that the assembly is becoming less conservative and tending to cast the final responsibility for action upon the people in view of their power to nullify undesired legislation by the referendum. However, this increase in the volume of such legislation has doubtless been due mostly, if not wholly, to causes unconnected with direct legislation. Constitution, art. 4, sec. 1 (1902). Above, pp. 9-10.

to shift the responsibility for the enactment of legislation, for which it has been chosen, back upon the electors, and also to add to the already overloaded ballot. The action of the legislature is practically a substitute for an initiative petition whereby the legislature may suggest rather than enact legislation, and thus become in this regard a mere "probouleutic" assembly.

However, so far the possibilities of evil of this power of referendum have been little realized. The two statutes submitted in this manner at the election of 1914 are the first of the kind, and they come within the class only by a technical construction of the law. They had both been submitted to the people before and had been rejected, and hence, on the principle of the practical "rigidity" of direct legislation, could not consistently have been finally enacted by the legislature.1

1 Above, pp. 132-44. Cf. proposed Wisconsin constitutional amendment prohibiting the legislature from referring statutes to the voters. Proposed Wisconsin Constitution, art. 4, sec. 1, rejected (1914).

CHAPTER XIX

THE REFERENDUM AS A SUBSTITUTE FOR CONSTITUTIONAL LIMITATIONS UPON THE LEGISLATIVE ASSEMBLY

NUMEROUS limitations upon the power of the legislature have been considered in the past an absolute necessity on account of the actual or possible mistakes or abuses of power by the legislature. The legislature has thus been unable, in many matters, to institute reforms except by the submission of constitutional amendments to the people, and the people, on the other hand, have had to vote upon questions which in some instances they would doubtless have preferred to leave to the judgment of the legislature if they had had any power to correct the action of the legislature in case correction might be really needed. The check upon the legislature now secured through the referendum makes unnecessary many of the present limitations, and this opens the way for entrusting more power to the legislature. The substitution, to some extent, of the optional for the obligatory referendum would bring a very great advantage, especially in case of technical measures of legislation, which the voters are likely to reject when submitted to them for the simple reason that they do not understand them. Further, in removing some of the sources of possible conflict between constitutional and statutory provisions, this reform would, so far, substitute the legislation of the assembly for the jurisdiction of the courts, and thus favor policy rather than technicality in legislation.2

1 Above, pp. 37-41, 112–13.

2 "The judicial control over legislation is not in any case an unmixed blessing, because it decreases legislative efficiency and as employed to the present time has

The amendment of the constitution adopted in 1912, which removes to a considerable extent the limitations imposed upon the legislative assembly in the organization of the judicial department of the state government, is in accord with this idea.

often checked for many years needed reforms which the courts have been forced to accept in the end, but the state judicial power over legislation when employed as frequently and as irresponsibly as during the past thirty years, can hardly be considered an instrument of very great value. In fact the referendum has in some cases been advocated because of the belief that it will weaken or destroy this very power." W. F. Dodd, Revision and Amendment of State Constitutions, pp. 254-5 (1910).

CHAPTER XX

DIRECT LEGISLATION AND THE COURTS

I

The Interpretation of Direct Legislation

1

POPULAR legislation, like ordinary legislation enacted by the representative assembly, is of course interpreted and applied by the courts, and the courts necessarily in some cases of crudely constructed measures "practically legislate amendments by decisions." And since statutes adopted by the people are in general subject, from the standpoint of law,2 to the restrictions imposed by the constitution upon ordinary legislation, there is a possibility also that the courts may find popular legislation to be unconstitutional, although so far, in actual practice, this possibility has scarcely been realized at all. There is a tendency to jealousy of any interference with the "people's laws" on the part of the courts, as on the part of the legislative assembly.3 "Of course there is going to be trouble over the enforcement of the workmen's compensation act, which has just been adopted by such an overwhelming majority by the people of the state. . . . The next step will be to call upon the courts for a judicial decree, and by the time they get through juggling with it, it will be hard for the people to recognize the law they have so unanimously adopted. ... It is to be hoped that in case the decision as to the enforcement of the law is thrown into the courts that the legal wise-acres will have judgment enough to listen to the 1 F. V. Holman, Some Instances of Unsatisfactory Results under Initiative Amendments of the Oregon Constitution, p. 2 (1910).

Below, pp. 180-1.

8 Above, pp. 145-56.