an emergency in any act regulating taxation or exemption." Montana exempts laws "necessary for the immediate preservation of the public peace, health or safety," but provides that laws shall remain in force until after they are voted upon by the people unless 15 per cent of the voters sign the petition, whereas 5 per cent is sufficient for the ordinary referendum. Missouri, in 1908, exempts from the referendum laws necessary for the immediate preservation of the public peace, health or safety, and also laws making appropriations for current expenses of state government, for the maintenance of state institutions and for the support of public schools; and similar provisions may be found in Michigan, Colorado and Washington. Arkansas (1912) merely excepts from the referendum laws necessary for the immediate public peace, health or safety. There has been, however, a definite tendency to tighten the restrictions upon the legislature with respect to emergency measures which may become effective without the possibility of a popular vote. In Oklahoma, Maine, California, Mississippi and Maryland the constitutional provisions enumerate types of measures which may not be made emergency measures and so taken out from under the control of the initiative and referendum. The Oklahoma provision is that an emergency measure "shall not include the granting of franchises or licenses to a corporation or individual, to extend longer than one year, nor provision for the purchase or sale of real estate, nor the renting or encumbrance of real property for a longer term than one year." North Dakota in 1918 adopted a somewhat similar limitation. In Maine the constitution provides that emergency measures shall not include an infringement of the right of home rule for municipalities. a franchise or a license to a corporation or an individual to extend longer than one year, or provision for the sale or purchase or renting for more than five years of real estate. Matters of special privilege and relating to the creation or abolition of offices may not be emergency measures exempt from referendum in California, Mississippi and Maryland. To limitations upon the types of measures with respect to which emergencies may be declared, there has been a tendency to add provisions requiring special majorities in the legislature for the declaration of such emergencies. In some cases the emergencies are merely to be declared by separate vote, but in others an exceptional legislative majority is required. For example, Maine requires a two-thirds vote; Maryland a three-fifths vote; Mississippi a three-fourths vote; Utah by statute a two-thirds vote; Ohio a two-thirds vote; Arizona a two-thirds vote with the Governor's approval, or a three-fourths vote in case he disapproves. Oklahoma requires a two-thirds vote of all the members elected to each house, and if the emergency measure is vetoed, a three-fourths vote for passage over such veto. Massachusets in 1918 adopted rather elaborate provisions limiting emerThe law must contain a preamble setting forth the facts gency laws. constituting the emergency and that the law is necessary for the immediate preservation of the public peace, health, safety or convenience. A separate vote is required upon such preamble, with approval by two-thirds of the members of each house voting thereon. However, an emergency measure may also be created by the governor's filing with the secretary of the commonwealth a declaration that in his opinion the act should take effect forthwith. No grant of any franchise or amendment thereto or renewal or extension thereof for more than one year may be declared an emergency measure either by the governor or by the general court. In the application of the referendum there seems some tendency to apply the principle that a law shall not be suspended by a referendum petition but shall remain in effect until voted upon by the people, an adverse popular action serving then as a repeal. Under the Nevada constitutional provision of 1905, apparently every measure remains in force until it is voted upon by the people, and then is repealed by an adverse vote. The Montana constitutional amendment of 1906 does not suspend a law on the basis of a referendum petition unless the petition is signed by 15 per cent of the voters, 5 per cent being sufficient to demand a referendum. The New Mexico constitution provides for the repeal of a law by popular vote upon a 10 per cent petition, with a 25 per cent petition to suspend the law if this is desired until the vote takes place. The North Dakota constitutional amendment of 1918 requires a two-thirds vote for passing emergency laws, and provides that either the governor or 30,000 petitioners may require a special election upon such laws. Massachusetts provides for the repeal of an emergency or other law on referendum petition. To permit all laws to come into effect as the result of legislative action would, of course, avoid the suspension of such laws by virtue of a referendum petition and at the same time avoid the necessity of distinguishing between emergency and other laws. An adverse popular vote could then serve to repeal the law, irrespective of its emergency character. The use of the referendum to repeal emergency laws is now provided for by Nebraska, Mississippi, North Dakota and Massachusetts. The constitutional provisions that emergency measures shall go into immediate effect and not be subject to a referendum necessarily commit to the legislatures in the first place the determination of what constitute emergency measures, whether that determination is required to be by an extraordinary legislative vote or not. The determination. by the legislature that an emergency exists has been held to conclude the matter by the courts of Oregon,2 Arkansas, Colorado' and Oklahoma, although the Oklahoma court does not permit the legislature to make an emergency measure of measures explicitly declared by the constitution not to be emergency measures. Under similar conditions, however, the courts of Michigan," South Dakota, Ohio, and Cali Kadderly v. Portland, 44 Ore. 118 (1913). 4 Van Cleeck v. Ramer, 62 Colo. 4 (1916). 5 In re Menefee, 22 Okla. 365 (1908); Riley v. Carrico, 27 Okla. 33 (1910). Attorney General ex rel Barbour v. Lindsay, 178 Mich. 524 (1914). State ex rel Richards v. Whisman, 36 S. D. 260 (1915), overruling State ex rel Lavin v. Bacon, 14 S. D. 394 (1901). * Miami County v. Dayton, 92 Ohio State 215 fornia, take the view that the question of the emergency is one for judicial review, and in several of these states the courts have held the referendum applicable to laws in the face of legislative declarations that the laws should as emergency measures come into immediate operation. Limitations upon the use of the referendum: The discussion above has related to the conditions under which legislatures may withdraw acts from the operation of the referendum. A statement should now be made of the constitutional provisions restricting the use of the referendum. South Dakota in 1898 prescribed that the referdum should not apply to laws for the "support of the state government and its existing public institutions", in addition to the exception which it made of laws necessary for the immediate preservation of the public peace, health or safety. Provisions similar to those of South Dakota have been placed in the constitutions of Maine, Colorado, California, Washington, Ohio, Arizona and Missouri. The specific exemption from the referendum of appropriations for the current expenses of the state government and for state institutions has been encouraged by the experience of Oregon with respect to the application of the referendum to appropriations for the State University of that state. Some of the states just referred to have much broader limitations than others with respect to matters which may not be subject to the referendum, but in general the provisions of these states may be classed together; and Ohio may also be classed with these states, although Ohio adds tax levies to the matters not subject to the referendum. Montana exempts from the referendum laws relating to the appropriation of money and local or special laws. New Mexico provides somewhat in detail that the referendum shall not apply to general appropriation laws, to the payment of the public debt, to the maintenance of public schools, or state institutions, or to special or local laws. Maryland forbids the application of the referendum to appropriations not exceeding the next previous appropriations for maintaining the state government or for maintaining or aiding state institutions. The Utah constitution merely provides that the referendum shall not extend to laws "passed by a two-thirds vote of the members elected to each house". Massachusetts has the most numerous limitations upon the use of the referendum, providing that "no law that relates to religion, religious practices or religious institutions; or to the appointment, qualifications, tenure, removal, or compensation of judges; or to the powers, creation, abolition of courts; or the operation of which is restricted to a particular town, city or political division or to particular districts or localities of the commonwealth; or that appropriates money for the current or ordinary expenses of the commonwealth, or for any of its departments, boards, commissions. or institutions shall be the subject of a referendum petition”. In another part of the Massachuetts initiative and referendum provi McClure v. Nye, 22 Cal. App. 248 (1913). sions, the referendum is excluded from use with respect to a series of rights granted by the declaration of rights of that state. Limitations upon the Initiative: A number of specific limitations have been made by constitutional provisions with respect to the use of the initiative. Montana (1906) provided that the initiative should not be applicable to appropriations of money or to local or special laws. Ohio (1912) forbids the use of the initiative or referendum with respect to laws classifying property for taxation or for the single tax. Massachusetts excludes from the application of the initiative all of the matters referred to above as not being subject to the referendum; measures relating to the recall of judges or "to the reversal of a judicial decision"; and also prohibits an initiative amendment affecting the eighteenth amendment of the constitution as ap proved and ratified in 1918 and with respect to the limitations imposed upon the initiative. The eighteenth amendment is the one relating to prohibition of state aid to sectarian institutions. The proposal of a measure after it has once been rejected is dealt with by constitutional provisions in Oklahoma, Nebraska and Massachusetts. Oklahoma provides that a measure rejected under the initiative and referendum shall not be again submitted within three years by less than a 25 per cent petition. The Nebraska constitution (1912) provides that "the same measure either in form or in essential substance shall not be submitted to the people by initiative petition (either affirmatively or negatively) oftener than once in three years". Massachusetts (1918) has a constitutional provision almost identical with that of Nebraska. Use of the Initiative for Constitutional Changes: The initiative and referendum provisions in South Dakota, Utah, Montana, Maine and Washington do not permit the popular initiation of constitutional amendments. Maryland and New Mexico do not have the initiative, and Idaho without legislation for the purpose, of course, does not have the initiative with respect to constitutional matters. The constitutions of a group of states provide for the use of the initiative upon constitutional amendments in the same manner as upon statutes, this statement being applicable to Oregon, Nevada, Missouri, Arkansas, Colorado and Mississippi. California substantially belongs in this same class, the only distinction in this state being that for statutes there is both a direct and an indirect initiative while for constitutional amendments there is merely a direct initiative. In seven states distinctions are made between constitutional amendments and statutes. In Oklahoma, Arizona, Nebraska and North Dakota a larger petition is required to propose a constitutional amendment. In Oklahoma an 8 per cent petition is sufficient for ordinary legislation and a 15 per cent petition is required for constitutional amendments. In Arizona and Nebraska the initiation of ordinary legislation is accomplished by a 10 per cent initiative but for constitutional amendments a 15 per cent petition is required. In North Dakota the initiative for ordinary statutes requires a petition of 10,000 voters and the initiation of a constitutional amendment requires a petition of 20,000. Michigan provides for an indirect initiative of 8 per cent for ordinary legislation and for a direct initiative of 10 per cent for constitutional amendments. Ohio provides for an indirect initiative upon ordinary legislation, with an original petition of 3 per cent and a supplemental petition of an additional 3 per cent, but for a 10 per cent direct initiative upon constitutional amendments. Massachusetts provides for a much more complex method of initiating constitutional amendments than for the initiation of statutes. Under the Massachusetts constitution, 25,000 voters may present an initiative petition for a constitutional amendment. The proposed amendment then goes before a joint session of the general court and three-fourths of the members voting in joint session may amend the proposal. If in such joint session an initiative amendment receives the affirmative vote of not less than one-fourth of all the members In the next general elected it is referred to the next general court. court if an initiative amendment or if a legislative substitute for such amendment receives the affirmative votes of at least one-fourth of all the members elected, the proposed amendment is submitted to the people at the next state election, and is adopted if it is approved by a majority of those voting on the amendment, such majority equaling at least 30 per cent of the total number of ballots cast at the election. Use of the referendum upon federal questions: A constitutional amendment in Ohio in 1918 expressly provides that the action. of the legislature in ratifying a proposed federal amendment shall be subject to the referendum. The questions here present themselves as to whether the state amendments for the referendum are in terms broad enough to apply to federal questions, and also as to whether they may apply under the terms of the constitution of the United States. The constitution of the United States provides that the times, place and manner of holding elections for members of Congress shall be prescribed in each state by the legislature thereof. In the case of State ex rel. Schrader v. Polley,10 the court took the view that it was proper to submit a South Dakota act dividing the state into congressional districts, holding that the word legislature as used in the constitution of the United States refers to the state legislative power and includes therefore the initiative and the referendum; and the same view is taken in the Ohio case of State ex rel. Davis v. Hildebrant.11 With respect to the ratification of amendments to the constitution of the United States it is prescribed that ratification shall be made by "the legislatures of three-fourth of the several states". In the case 10 26 S. D. 5 (1910). 11 94 Ohio State, 154 (1916). |