GROWTH OF POWER OF ELECTORATE

Secondly, the widespread adoption of constitutional limitations upon legislative powers has greatly altered the position of the electorate in the governmental system. The least conspicuous feature of the system of checks and balances originally established in Massachusetts was the direct popular veto of legislative measures. Since in most states the work of constitutional conventions may become effective only with the express consent of the people, the process of imposing restrictions on the legislatures involved an increase in the activities of the electorates. The feeling that the people were directly participating in the making of laws was intensified when constitutional conventions began to insert substantive law of an ordinary statutory nature in the constitutions. Many conventions still further intensified this feeling by providing for separate submission of measures of an ordinary statutory character, thus making the electors conscious of the distinction between the statutory law and constitutional law in the strict sense of the term. Finally many legislatures themselves have been compelled to enact much legislation in the guise of constitutional amendments, which, but for the restrictions imposed upon them by the conventions, would have been disposed of without reference to the people. The result has been greatly to increase the importance of the state electorates as legislative bodies.

The decline in the powers of the legislatures was the result of the decline of legislative prestige. As the people's respect for the ability and integrity of their representative bodies dwindled, their reliance upon themselves was necessarily bound to grow, unless they were to confess popular government a failure. Thus direct action by the electorate came to the support of a declining system of representative government.

The rise of the electorate as an instrument for direct legislative action has been marked by the development of two distinct forms of activity. One has culminated in what is called municipal home rule; the other, in direct legislation by the people. The former has rendered the electorates of the municipalities in those states where it has been adopted independent of the authority of the legislature in local concerns; the latter has rendered the

K

electorates of certain states as a whole independent of the state legislatures. Both systems alike operate as limitations upon legislative power. The referendum alone, whether local or statewide, makes possible the popular veto of legislative enactments. Municipal home rule and the procedure for direct legislation by the people, when complete, enable the electorate not only to veto legislation that is not desired but also to take the initiative in the enactment of legislation without awaiting the pleasure of the ordinary legislature of the state. The referendum is negative in its operation; it facilitates the correction of legislative errors of commission. The initiative is positive; it facilitates the correction of errors of omission.

MUNICIPAL HOME RULE

The development of home rule has been a gradual process. In the form of the local popular veto it seems to have been introduced first in New England. There the traditional system of local government was characterized by the assemblage of all the voters at least once a year in town meeting for the election of local officers and the ordering of town affairs. When in 1820 the Massachusetts constitutional convention proposed an amendment to define the legislature's power to incorporate cities, it readily provided that the legislature should not grant a municipal charter to any town unless a majority of the townsmen voting in town meeting should approve the change from town to city. Thus the power of the legislature to incorporate cities was limited by the obligation to obtain the consent of the people of the proposed city. Thereafter the local referendum was gradually introduced in all parts of the country in connection with legislation affecting the forms, organization, powers and procedure of local government. To-day, by the constitutions of many states, the legislatures are forbidden to enact measures to incorporate villages and cities, to define the boundaries of counties or divide them into townships, to locate county seats or change county names or to alter the forms of local government without the consent of the people of the localities affected.

Once the local referendum had been established by constitutional conventions as an instrument for checking the operations of the legislatures, it was an easy step for the legislatures them

selves to extend the use of the local referendum as an instrument for checking the operations of the local governments. Thus statutes were enacted in many states forbidding local governing authorities to lend the public credit for the promotion of private enterprises of a commercial or industrial nature, or forbidding the expenditure of public money directly by the local government itself for local improvements without the express consent of the people. A further step was taken when the legislatures adopted the practice of submitting to the decision of the voters certain questions which the legislatures could not ignore and could not themselves decide without embarrassment. Thus, the question of the control of the traffic in intoxicating liquors was disposed of in many states by the enactment of laws, providing for the decision between a policy of license or no-license directly by the voters in each locality. Local option, as this procedure was called, means in New England annual referenda in each city and town, in other parts of the country referenda in the county or in subdivisions of the county. Similar procedure has been established in some states for the decision of questions such as the establishment of municipal public services, especially waterworks and lighting plants, and the granting of franchises to public service corporations.

The most important development of the local referendum has been in connection with the adoption and revision of municipal charters. In Massachusetts the legislature early established the practice of submitting to the people of the towns and cities for their acceptance or rejection all proposals for the adoption or revision of charters. In other states this practice was made mandatory upon the legislature by the constitution. The final step in the development of municipal autonomy was taken in Missouri in 1875. The constitution adopted in that year provided that on petition of a certain number of citizens in any city an election should be held for the choice of a board of freeholders whose duty it should be to prepare a charter and submit it to the people. If approved by them, it should go into effect without any special action on the part of the state legislature, nor should the state legislature be able to alter it in any manner except by general law applying to the whole state. Thus an effective power of local popular initiative was added to the local referendum.

This or similar procedure for the establishment of municipal home rule has now been adopted in a dozen states. In some states home rule charters must be submitted to the governor of the state for his approval in order to ensure the elimination of provisions in conflict with the general laws of the state, but in most states the adjustment of cases of conflict between home rule charters and the general laws of the state is left to the courts. The last step in the development of local home rule has been taken in California, where the application of the procedure for the adoption of home rule charters has been extended to the county.

THE STATE-WIDE REFERENDUM

The state-wide, like the local, referendum was first employed in Massachusetts, and was subsequently copied and extended by other states. At the present time it may be employed in five different cases: (1) in connection with the revision and amendment of state constitutions, as has already been described; (2) in connection with ordinary legislation, which is submitted by a state legislature to the electorate for approval or disapproval either by reason of a constitutional limitation or directly upon its own motion; (3) in connection with ordinary legislation duly enacted by the legislature and referred to the electorate upon petition by a certain fraction thereof; (4) in connection with proposals for ordinary legislation which the legislature has neglected to enact, submitted directly to the electorate upon petition of a certain fraction thereof; and (5) in connection with proposed constitutional amendments which may be submitted directly to the electorate upon petition of a certain fraction thereof without the intervention of the legislature. The third case is that which is often described as the direct popular referendum. The fourth is often described as the direct popular or statutory initiative, and the fifth as the constitutional initiative. The third and fourth together or the third, fourth, and fifth together constitute the procedure often collectively described as direct legislation by the people. The second case, which may for convenience be described as the legislative referendum, is that which developed next after the development of the referendum upon proposed constitutional revisions and amendments.

Legislative referenda are of two kinds: those expressly authorized by the constitution, and those not expressly authorized. One of the earliest instances of the legislative referendum expressly authorized by the constitution is found in connection with choice of a site for a state capital. Texas was the first state to make provision for the submission by the legislature to the people of a measure to indicate their preference respecting the location of the permanent seat of government. Oregon, Kansas, and Colorado, and several other states more recently, did the same when they were admitted to the Union. The constitutions of at least a dozen states now provide that the legislature shall enact no law providing for the relocation of the capital without the approval of the people. A still earlier instance of the legislative referendum was its use in order to control more effectively the legislative power to raise and expend the public revenues. In 1842 a provision was inserted in the new constitution of Rhode Island forbidding the legislature to contract any indebtedness beyond $50,000, except in time of war or in case of invasion or domestic insurrection, without the approval of the people. Similar limitations upon the power of the legislatures to contract debts have since been adopted, subject to various exceptions respecting the amount of debt, in at least a dozen states. The amount of indebtedness for ordinary public purposes which may be contracted without the necessity of ratification by the people varies from $50,000 in Rhode Island to $1,000,000 in New York, but the principle is the same. The legislature must keep the state expenditures within its revenues, or secure authority for thé contraction of debt directly from the people. This limitation serves also as a limitation upon the power of the legislatures to engage in expensive works of public improvement without the express approval of the people, although in a few states the legislature may not even adopt a project of public improvement, much less finance it, without the express approval of the people. In a few states the legislatures are forbidden to dispose of certain public properties without the express approval of the people, and in a few others they are forbidden even to increase the rate of taxation upon property beyond a maximum fixed in the constitution without the express approval of the people. The state-wide legislative referendum has also been employed in several states