manipulated just as the old political conventions were, and made to give us a new constitution with direct legislation left out or so arranged as to destroy its effectiveness. It is true, the matter would still have to be submitted to the people and, if it were unsatisfactory, they would have an opportunity to reject it. There is one safe plan to be followed . . . that is to leave the thing alone. If we got a new constitution and it was unsatisfactory, we might be able to vote it down and we might not." 1

Some persons went further and declared that there was really no intention of allowing the people to decide on the new constitution. "The plan is to have a new constitution made and proclaimed' by the convention as the constitution of Oregon, without permitting the people to vote on that new constitution. In that way. . . the convention can make a new constitution for Oregon, leaving out the initiative, referendum and recall, and thus take from the people the power they now have to manage their public affairs." 2

That there was any real intention of bringing about the promulgation of a constitution without a vote of the people is almost impossible; but a great many voters believed this to be the case, and, perhaps chiefly for this reason, the proposition for a convention was overwhelmingly defeated at the election. However, there was at least some hope among conservatives that Oregon could be induced to "shake off a large part of her progressive garments." "

1A. T. Buxton, Pacific Grange Bulletin, Aug., 1909, p. 3, col. 4.

? People's Power League, Referendum Pamphlet, 1910, pp. 18, 19. See also Oregon Journal, Apr. 4, 1909, p. 8, col. 1; resolution of State Grange, Oregonian, May 16, 1909, p. 6, col. 1. The decisions of courts of other states holding valid constitutions "proclaimed" by constitutional conventions were cited. On this subject see especially J. A. Jameson, Constitutional Conventions, 4th ed., pp. 414, 490-503 (1887); C. S. Lobingier, People's Law, pp. 330-7 (1909).

Reported in Oregon Journal, Feb. 21, 1909, p. 8, col. 4.

CHAPTER XXII

DIRECT LEGISLATION AND THE STABILITY OF GOVERNMENT

THE original constitution provided for the submission of proposed constitutional amendments by the majority vote of all members elected to each of the two houses of two successive legislative assemblies to the electors, and required for ratification of the amendment, the vote, apparently, of a majority of all the electors voting at the election.1 This was a very slow and cumbersome procedure compared with that provided in 1902, whereby constitutional amendments may be submitted to the people in the same way as other measures by initiative petition. But since 1906 the approval by the legislative assembly at one session has been sufficient for the submission of amendments to the voters. Further, since 1906 the majority for ratification of such measures has been the same as in the case of measures submitted by the initiative, a majority of the votes cast on the measure.3

As a general rule, initiative statutory measures are, technically, subject to the same constitutional limitations as are statutes enacted by the legislative assembly, although in a few

4

1 Constitution, art. 17, sec. 1 (1859). See State v. Swift, Indiana Reports, vol. 69, p. 505 (1880); In Matter of Denny, ibid., vol. 156, p. 104 (1900); T. M. Cooley, Constitutional Limitations, 7th ed., pp. 892-3 (1906); Lobingier, People's Law, pp. 326-30 (1909). 2 Ibid., art. 4, sec. 1 (1902). Ibid., art. 17, sec. 1 (1906). For opposition to this amendment as increasing the instability of the constitution, see Oregonian, May 28, 1906, p. 6, col. 6.

Kadderly v. Portland, Oregon Reports, vol. 44, pp. 118, 146 (1903); State v. Richardson, ibid., vol. 48, pp. 309, 318 (1906); State v. Langworthy, ibid., vol. 55, pp. 303, 308 (1910). "The limitations expressed in the constitution, on the powers of the general assembly to enact laws, shall be deemed limitations on the power of the people to enact laws." Ohio Constitution, art. 2, sec. 1 (1912).

matters the restrictions apply only to action by the assembly.1 But it is evident that this technical limitation can easily be evaded. "Under the system now prevailing, a clause of the organic act appears to control only the legislative assembly, since it requires no more effort nor any greater care to amend a clause of the constitution than it does to enact, alter, or repeal a statute, for a majority vote is sufficient to give sanction to a bill, and no greater vote is required to amend the fundamental law. . . . As a majority vote of the qualified electors by an exercise of the initiative power can enact a statute, they can, by giving such a law an appropriate article and section and entitling it an amendment of the constitution, make it a part of the fundamental law and render the supposed stability of the organic act subject to sudden and serious changes.'

It had early been suggested that this would become a general practice. "In order . . . to escape conflict with the constitution, many proposed bills are likely to be adopted as parts of the constitution, whereas they should properly be enacted as statutes, if enacted at all. This possibly leaves many persons to lament that the barriers between the constitution and the statutes no longer exist." But, as a matter of fact, there has been very little statutory matter formulated into constitutional amendments for this reason, or, at least, chiefly for this reason.

1 In practice, new-county statutes are the only examples of such initiative legislation. A constitutional amendment of 1910 made the referendum on tax bills passed by the assembly obligatory, at the same time that it exempted from constitutional limitation tax measures referred to the people either by the legislature or by initiative petition (Constitution, art. 9, sec. 1a (1910)), but this was repealed two years later. Constitution, art. 9, sec. 1a (1912).

State v. Schluer, Oregon Reports, vol. 59, pp. 18, 27 (1911).

Oregonian, Dec. 27, 1903, p. 16, col. 1. Cf. W. F. Dodd, Revision and Amendment of State Constitutions, pp. 252-8 (1910).

When a bill is in conflict with existing provisions of the constitution, it has been contended that the constitution must be amended before the bill can be submitted to the voters; but doubtless the better view is that an act will be valid if passed simultaneously with the constitutional amendment. Cf. Oregonian, May 10, 1912, p. 12, col. 1. However, in the analogous case where a law has been declared by the courts to be unconstitutional and the constitution has been later so amended that such a

But, under the circumstances, it seems absurd that a mere detail of the form of a measure should be of such consequence.1 However, it is clear that so far as initiative legislation is concerned, there is practically no constitution in Oregon. "The constitution of Oregon is only a check or restriction on the legislature. The people's will rises above it." 2 "There is no constitution, for it is subject to such flux and change as no longer to be the mainstay of our government." "The only constitutional protection enjoyed by the people of this state to-day lies in the federal constitution, but as that instrument bears only indirectly upon important questions . . . it is quite evident that in all ordinary matters of government the people of Oregon are practically without constitutional protection." 4

Not only on account of such practical absence of constitutional limitations upon initiative legislation, but on account of the extreme ease of working the initiative and referendum, these institutions have been branded as "revolutionary." "They violate the very principles upon which and for which organized society forms a constitution. . . . They upset society. . . . They have the effect practically of abolishing constitution and laws altogether; or at least keeping people who would defend the stability and orderly progress of society, always on guard, always under arms, for their defense." "Why . . . should the state be kept in continual turmoil and uproar, to hold a check law could be enacted, the weight of decision favors the view that the law declared void must be reënacted in order to be valid. But the authority of the United States supreme court is to the contrary. See especially Cyclopedia of Law and Procedure, vol. 8, p. 768; T. M. Cooley, Constitutional Limitations, 7th ed., pp. 259-60 (1903). 1 Cf. Oregonian, May 10, 1912, p. 12, col. 1.

8 Oregonian, Dec. 22, 1912, sec. 3, p. 8, col. 3.

'C. H. Carey, New Responsibilities of Citizenship, Proceedings of the Oregon Bar Association, 1908-10, pp. 18, 33. "The people inaugurated constitutional government, and have not yet abandoned the constitution they promulgated in the beginning." Andrews v. Neil, Oregon Reports, vol. 61, pp. 471, 474 (1912).

C. N. McArthur, Need of a Constitutonal Convention, Proceedings of the Oregon Bar Association, 1908-10, pp. 148, 154. See also Oregonian, Mar. 19, 1908, p. 8 col. 1; Jan. 18, 1909, p. 6, col. 2; July 6, 1909, p. 8, col. 1; F. V. Holman, Chicago Civic Federation Bulletin, no. 3, p. 12 (1911). Oregonian, Feb. 18, 1908, p. 8, col. 1.

upon this dangerous system, and often be plunged into terror about it?" 1

The rights of the minority are declared to be in constant danger from the system. "It is an evil [of] our initiative and referendum, that a slender majority can on the exciting impulse of a single election now ride rough-shod over all the rights of a minority, even to sweeping away any or all of the elementary constitutional safeguards which the experienced wisdom of ages have established as supposed permanent guarantees of the rights of individuals, and of minorities, against sudden encroachments of majorities. Nobody knows when it may go off

And indeed some of the best friends of the system of direct legislation are of the opinion that at least constitutional amendments can be made too easily under the present law. is a fact that as matters now stand, the constitution can be amended far too easily for the safety and security of the state. I venture to call attention to this matter again this year merely to suggest that it would be well for friends of the system to give consideration to means of its modification in this particular before more sweeping changes are forced by its enemies." And doubtless more friends of the system occasionally long for a "closed season" against its operation. There is additional cause for such an attitude in the fact that questions "settled by the people" in some cases do not remain settled, but come up before the legislature or the people again and again in the original or a somewhat modified form.

The various proposed checks upon the use of the initiative and referendum have been discussed above.1

It is true that under the old system the constitution was changed but once in the period of forty-three years, and that it

1 Oregonian, July 21, 1909. p. 8, col. 2. See also ibid., July 5, 1912, p. 10, col. 1. M. C. George, Oregonian, Mar. 23, 1908, p. 9, col. 2.

Master of the State Grange, reported in Oregonian, May 13, 1909, p. 6, col. 3. See also Oregon Journal, Nov. 22, 1908, sec. 5, p. 6, col. 2. 'Pp. 84-5.