2 The Two Legislative Bodies "By the adoption of the initiative and referendum into our constitution, the legislative department of the state is divided into two separate and distinct lawmaking bodies. There remains, however, as formerly, but one legislative department of the state. It operates, it is true, differently than before one method by the enactment of laws directly, through the source of all legislative power, the people; and the other, as formerly, by their representatives-but the change thus wrought neither gives to nor takes from the legislative assembly the power to enact or repeal any law, except in such manner and to such extent as may there be expressly stated. Nor do we understand that it was ever intended that it should do so. The power thus reserved to the people merely took from the legislature the exclusive right to enact laws, at the same time leaving it a coördinate legislative body with them. This dual system of making and unmaking laws has become the settled policy of this state, and so recognized by decisions upon the subject. Subject to the exceptions enumerated in the constitution as amended, either branch of the legislative department, whether the people, or their representatives, may enact any law, and may even repeal any act passed by the other.” 1 This, it has been contended, has brought the state into "a dangerous condition," and may lead to the final abolition of the legislature. "It is a condition similar to that which would occur if the sole legislative power of a state was composed of two houses which did not have to concur to enact a law, and each could enact laws to the exclusion of the other, 'and even repeal 1 Straw v. Harris, Oregon Reports, vol. 54, pp. 424, 430 (1909). See also Hall v. Dunn, ibid., vol. 52, pp. 475, 485 (1908); Kiernan v. Portland, ibid., vol. 57, pp. 454, 480 (1910); Bradley v. Union Bridge & Construction Co., Federal Reporter, vol. 185, pp. 544, 546 (1911); F. V. Holman, Some Instances of Unsatisfactory Results under Initiative Amendments of the Oregon Constitution, p. 23 (1910). K any act passed by the other.' . . . Will not the legislature become as useless as a vermiform appendix is to a human being? It may have some functions, but it is apparently a nuisance. Would it not be wise to cut it out before it becomes dangerous?" 1 But the serious possibilities of conflict of the legislature with the people and the people with the legislature have not, as will appear,2 been realized in actual experience with the system. 1 F. V. Holman, Some Instances of Unsatisfactory Results under Initiative Amendments of the Oregon Constitution, p. 24 (1910). Below, pp. 159–66. CHAPTER XIV CHECKS OF THE LEGISLATIVE ASSEMBLY UPON DIRECT LEGISLATION I The Regulation of the Initiative and Referendum "IF the legislature can restrict, limit or hamper the right of referendum which the people have reserved to themselves in the constitution, it practically annuls the amendment. Barrier after barrier could be placed around the steps necessary to invoke the referendum, until there would be so many barriers that they could not be surmounted, and the power of the referendum would be practically dead." It is the fear of some such consequence that has brought the people generally to suspect the efforts made in the legislative assembly, session after session, to "tamper" with the system, and members of the assembly, whether friends or enemies of the system, have accordingly become very chary of such movements, which consequently, whatever their real merits, have almost always been defeated. This cautious attitude appears in the governor's message in 1911. "If imperfections [in the Oregon System] exist, these in time may be remedied or adjusted. But I hold that if changes must come, they should come at the hands of the friends of the law, and I say now that during my term of office I will zealously guard the integrity of these laws of the people and will combat any attempt to injure, infringe, or subvert them. The people of Oregon, at different times and in no uncertain tones, have declared for these laws, and no men or no hostile influence should Webster, quoted in Oregon Journal, July 2, 1907, p. 4, col. 1. be permitted to attempt, in any manner, to wrest from the people their hard-won victory." 1 But two years later the governor considered conditions safe enough to permit action by the assembly. "Oregon's system of popular government, having successfully withstood the attacks of its enemies, is here to stay. The time has come therefore when its friends should take steps to remove such defects as a fair trial has shown to exist." 2 And a demand for the improvement of the system is steadily becoming greater. "Everyone except the dyed-in-the-wool standpatters knows that there are defects in the Oregon System that ought to be remedied. Everyone except these typical old reactionaries knows that unless these defects are remedied in time the Oregon System of popular government will lose caste. This is not a day of hide-bound thinking. The demand of the times is for something better than we have, no matter how good the thing we have may be. The real friends of popular government are not those who raise the long howl whenever any changes are suggested, but rather the ones who would apply the knife to real and pernicious evils." 3 However, the generally prevailing attitude seems still to be against any substantial legislation in regard to the system, whether it comes from the legislative assembly or even from the direct action of the people. Emergency Legislation The original constitution of the state provides: "No act shall take effect until ninety days from the end of the session at which the same shall have passed, except in case of emergency; 1 Message of Governor West, 1911, p. 38. See also Governor's Message, House Journal, 1913, p. 80. 2 Ibid., 1913, p. 21. Eugene Register, Jan. 8, 1913, p. 4. col. 1. See also Oregonian, Dec. 28, 1912, p. 6, col. 2; Eugene Guard, Dec. 20, 1913, p. 4. col. 1. which emergency shall be declared in the preamble or in the body of the law." When the acts of the legislative assembly were made subject to the referendum in 1902, "laws necessary for the immediate preservation of the public peace, health, or safety" were excepted from this restriction.2 Ten years later, as a substitute for a constitutional provision adopted in 1910, which required all tax laws to be referred to the voters, an amendment was approved at the election prohibiting the legislative assembly from declaring an emergency on "any act regulating taxation or exemption." 3 4 It was early suggested that in view of the practice prevailing before the initiative and referendum amendment was adopted of attaching the emergency clause to measures without regard to the reality of the emergency, the legislative assembly might be able to evade the referendum; but perhaps the prevailing opinion was to the effect that the decision of the assembly as to the existence of an emergency, under the referendum clause of the constitution, was not final. All doubts about the legal power of the assembly in this respect were soon settled by the supreme court. "Action of the legislative and executive departments [upon emergency measures] is conclusive and final so far as their enactment is concerned. No power is reserved to the people to approve or disapprove them. They are not subject to the referendum amendment. . . . The legislative assembly may, in its discretion, put them into operation though the emergency clause . . . or it may allow them to become laws without an emergency clause, the necessity or expediency of either course being a matter for its exclusive determination. ... As the legislature may exercise this power when a measure is in fact necessary for the purpose stated, and as the amendment does not declare what shall be deemed laws of the character 1 Constitution, art. 4, sec. 28 (1859). Ibid., art. 4, sec. 1a (1912). 2 Ibid., art. 4, sec. 1 (1902). Governor Chamberlain, quoted in Oregon Journal, May 20, 1906, p. 20. col. 2; June 1, 1906, p. 3, col. 5. |