This requirement does not apply to direct legislation.' But, although often its purpose is not achieved in the action of the legislative assembly, the extension of the provision to direct legislation would at least aid in preventing the use of misleading titles in direct legislation.

4

The Combination of Subjects in Measures

The constitutional provision just noticed 2 was intended, further, to discourage log-rolling in the legislative assembly-to prevent the practice of "combining subjects representing diverse interests, in order to unite the members of the legislature who favored either, in support of all." 3 "Thus, it was designed by the framers of the constitution that in every case the proposed measure should stand upon its own merits." 4

The restriction has been rather ineffective in properly controlling the legislative assembly but even an ideal legal standard is wholly wanting for direct legislation. At any rate it has hap

ment shall be voted on separately." Constitution, art. 17, sec. 2 (1906). Cf. Constitution, art. 17, sec. 2 (1859).

1 Palmer v. Benson, Oregon Reports, vol. 50, pp. 277, 279 (1907); State v. Langworthy, ibid., vol. 55, pp. 303, 309 (1910). Contra, State v. Richardson, ibid., vol. 48, pp. 309, 318 (1906). 2 Above, p. 43.

State v. Shaw, Oregon Reports, vol. 22, pp. 287, 288 (1892).

♦ Clemmensen v. Petersen, ibid., vol. 35, pp. 47, 48 (1899). See also Simpson v. Bailey, ibid., vol. 3, pp. 515, 517 (1869); State v. Richardson, ibid., vol. 48, pp. 309, 318 (1906); Palmer v. Benson, ibid., vol. 50, pp. 277, 279 (1907); Bailey v. Benton Co., ibid., vol. 61, pp. 390, 394 (1912).

Palmer v. Benson, Oregon Reports, vol. 50, pp. 277, 279 (1907); State v. Langworthy, ibid., vol. 55, pp. 303, 309 (1910). Contra, State v. Richardson, ibid., vol. 48, pp. 309, 318 (1906). Cf. W. P. Malburn, Can Two Propositions be Submitted to One Vote? American Law Review, vol. 47, pp. 392-431 (1913).

"When a law comprised very various provisions relating to matters essentially different, it was called lex satura, and the Lex Cæcilia Didia [B.C. 98] forbade the proposing of a lex satura, on the ground that the people might be compelled either to vote for something which they did not approve, or to reject something which they did approve, if it was proposed in this manner." Yonge, note to Cicero's Orations, Yonge's trans., vol. 3, p. 21. Cf. Finley and Sanderson, American Executive, pp. 64-5 (1908).

pened that sometimes measures of direct legislation do not stand on their own merits, that several and even very many propositions may be combined into one measure in order to secure as many supporters as possible.

But this abuse has actually occurred in only a few cases. The combination of the poll tax, county "home-rule" taxation, and other propositions has already been described. The amendment by which this was repealed was just as comprehensive. The bill of 1910 providing methods for the organization of new towns, counties, and municipal districts and for changing the boundaries of existing counties, and the bill of 1912 providing methods for the consolidation of contiguous incorporated towns, legalizing consolidations before attempted, and providing a method for the organization of new counties, may be criticized as "initiative log-rolling." The latter was drawn by representatives of towns desiring consolidation and of a district desiring the organization of a new county. But most complaint has been directed against the initiative "near-constitutions" of 1910 and 1912, which aimed to reorganize radically the whole legislative system. Even the lengthy ballot titles of these measures are not fully adequate to indicate "the wilderness of provisions" included. One of these has been estimated to contain "thirtytwo distinct subjects." But it is somewhat consoling to re2 Below, pp. 254-66.

1 Above, p. 42.

'C. H. Carey, Oregon Journal, Nov. 20, 1913, p. 16, col. 2.

The real scope of an initiative bill of 1912 providing for the abolition of capital punishment was much greater than would appear from an inspection of the measure; for the governor had reprieved until after election all convicts sentenced to be hanged and made their execution depend on the fate of the bill. Thus at the same time the voters acted on a general provision of law, they were made to feel a responsibility for the execution of certain convicts. "In this way the people of the state will act as a jury. There will be plenty of time for discussion of the proposition before next November, and all who vote for it will go into the polling booths with their eyes opened to the fact that they are either voting to aid in hanging these men or to save their necks." Governor West, quoted in Oregonian, Jan. 4, 1912, p. 7, col. 1. "These miserable wretches will be used as a bogey to frighten the people into voting down capital punishment." Eugene Register, Jan. 1, 1912, p. 12, col. 2. Similar circumstances involved the amendment for the abolition of capital punishment submitted in 1914.

member that the people of other states are occasionally called upon to consider the merits of the revision of an entire constitution.

Particularly on account of this "initiative log-rolling" it has been proposed to require the subject-matter of initiative measures to be "single in character," limited to "a single proposition in concrete form." Although the practicability of such suggestions has been doubted, it would seem that some such restriction would at least be as effective as in case of ordinary legislation, and that the provisions now applying to only one kind of legislation might well be extended to include both."

In this connection it may be observed that sometimes, instead of a combination of subjects that are not properly related into one initiative measure, there has been a separation of subjects that are properly related into two measures, with the hope of securing the enactment of one even if the other should be defeated. The two gross-earnings tax bills of 1906 and the two convict bills of 1912 are illustrations of such separation.*

The people are protected to some extent against combinations of unrelated provisions by the legislative assembly, which might make the invoking of the referendum impossible or unwise, by the constitutional amendment which permits the attack of one or more items of a measure without involving the others, after the manner provided in some states for the governor's veto of separate items. This amendment was enacted after the referendum of the general appropriation act of 1905, which was invoked chiefly on account of the presence of items for normal schools, but necessarily involved the other state institutions provided for in the same act."

1 C. H. Carey, Proceedings of the Oregon Bar Association, 1908-10, pp. 18, 41 (1908); Oregon Journal, Nov. 29, 1908, p. 2, col. 1; ibid., Nov. 20, 1913, p. 16, col. 2. 2 Cf. Oregon Journal, Nov. 22, 1908, sec. 5, p. 6, col. 2.

3 Cf. Oregonian, July 26, 1913, p. 6, col. 1.

Where two or more provisions are related and offered as separate measures, the failure of one may largely or wholly nullify the effect of another which has passed. Constitution, art. 4, sec. 1a (1906). Cf. Oregonian, Sept. 10, 1905, p. 24, col. 1.

5

Conflicting Measures

If two or more conflicting laws or conflicting constitutional amendments are approved at the same election, the measure receiving the greatest number of votes is "paramount in all particulars as to which there is a conflict." 1

Since there is no method of insuring coördination of the various separate movements for direct legislation - except those inaugurated by the legislative assembly — at a given election there is of course a possibility of great confusion as a result of the appearance of two or more conflicting measures at the same time.

In 1906 several sets of rival measures appeared, but rivalry was eliminated before the measures were filed. In 1908 two opposing bills for the control of fishing in the Columbia river were initiated. In 1910 one measure providing for single

1 Laws, 1907, ch. 226, sec. 7; Lord's Oregon Laws, sec. 3477. "In other words, where two bills on the same subject are adopted it is necessary to combine them into one act, retaining the parts of both that do not conflict and eliminating the conflicting provisions from the one receiving the lesser affirmative vote." Oregonian Nov. 26, 1912, p. 10, col. 1. Note a discussion on the question held in the absence of statutory provision. Ibid., Jan. 24, 1906, p. 8, col. 1; Jan. 29, 1906, p. 1, col. 1 ; Jan. 31, 1906, p. 6, col. 1; Feb. 3, 1906, p. 14, col. 1; Feb. 5, 1906, p. 6, col. 2. No provision is made regarding a conflict between a constitutional amendment and a statute approved at the same election, but probably, upon principle, the constitutional amendment would prevail. Cf. Oregonian, Nov. 26, 1912, p. 12, col. 1; Oregon Journal, June 8, 1913, p. 2, col. 3. But see Oregonian, Nov. 30, 1912, p. 8, col. 2; Sept. 9, 1913, p. 6, col. 1 ; opinion of attorney-general, ibid., Dec. 10, 1912, p. 7, col. 4. A constitutional amendment submitted in 1912 "amends and repeals all constitutional amendments or acts in conflict herewith, including any acts or provisions relating thereto submitted to the people concurrently with this amendment." Referendum Pamphlet, 1912, no. 360, p. 206.

Statutes and constitutional amendments are put on exactly the same footing by amendments proposed by the People's Power League. "If conflicting measures submitted to the people shall be approved by a majority of the votes severally cast for and against the same, the one receiving the highest number of affirmative votes shall thereby become law as to all conflicting provisions." Referendum Pamphlet, 1910, no. 360, sec. 1, p. 187; Referendum Pamphlet, 1912, no. 362, sec. 1a, p. 210. City charter amendments and ordinances are already on the same footing in this respect. Laws, 1907, ch. 226, sec. 12; Lord's Oregon Laws, sec. 3482.

district elections and another including provision for proportional representation in the legislative assembly had places in the ballot, and a provision for a commission on employers' liability had place with an employers' liability bill. In 1912 there was a conflict between the "single-tax" proposal and the proposal for exemption of household goods from taxation,' and another, apparently, between this household exemption bill and a taxation amendment, another conflict between three sets of road measures, one of them a constitutional amendment, two "majority rule" amendments appeared, the proposal of the office of lieutenant-governor conflicted with a provision in another measure for an election in case of a vacancy in the office of governor, and the university and agricultural college millage-tax bill was really a substitute for the university appropriations referred at the same election. At the election of 1914 the two amendments abrogating the rule of "equal and uniform" taxation were in direct conflict with another amendment which retained this rule, and the latter amendment contained a tax exemption provision which conflicted with the fifteen-hundred-dollar exemption amendment. Moreover, the tax-code commission bill submitted at this election was really the rival of all the tax administration bills submitted."

1 "It is conceivable that a man who favors single tax would as second choice vote for the bill exempting household effects from taxation. Had both household exemption and single tax carried, the former by the higher affirmative vote, we should have attained a ridiculous situation. The single-tax measure would have exempted all household effects, other personal property and improvements from taxation. The specific household exemption bill would have conflicted with the other in probably but one particular. It affirmatively declared that any building used jointly for public worship and for business purposes should be taxed. The single-tax measure would, without conflict, have exempted all other buildings. If the household exemption bill had received the greater affirmative vote and both had carried, the only building of any kind that would be taxed would be the church used for other purposes than public worship. What could be more senseless?" Oregonian, Nov. 26, 1912, p. 10, col. 1. See also ibid., Oct. 1, 1911, p. 7, col. 3; Oregon Journal, June 6, 1913, p. 2, col. 3. 2 Below, p. 116.

3 A conflict, in form, between measures appeared in the case where the same numbers of article and section of the constitution were appropriated for two initiated amendments adopted at the election of 1914. This doubtless has no legal significance. Cf. Oregonian, Nov. 30, 1914, p. 9, col. 3.