is a distinct disadvantage in making it necessary to submit such measures to the people. Provisions of the sort just referred to increase the compulsory referendum; that is, make a popular vote necessary in order to accomplish a certain purpose, and as has been suggested above, the compulsory referendum, as distinguished from the optional, is now responsible for the submission, not only of the greater number of measures, but also for the submission to the people of a great mass of immaterial detail for whose submission in a great number of cases there has been and would have been no popular demand.

In some states also there is a tendency toward making the use of the initiative easier than the use of the representative body. The constitutional provisions in Nebraska, Arkansas and Mississippi regarding the adoption of constitutional amendments make the passage and adoption of amendments by initiative petitions substantially easier than the adoption of such amendments upon the basis of legislative proposal. The necessary result of this will be to force the use of the initiative as distinguished from the ordinary legislative process. The Nevada constitutional provision previously referred to is one which may be construed as requiring a popular vote to amend or repeal any act of the legislature which has been approved upon a popular referendum, and if so construed would be a distinct means of giving preference to a pulsory popular vote upon measures as distinct from the ordinary legislative procedure.

com

Relation between the initiative and referendum and the constitution: As has already been suggested, the initiative and referendum provisions of Oregon, Nevada, Missouri, Arkansas, Colorado and Mississippi permit the proposal and adoption of constitutional amendments through the initiative and referendum by precisely the same methods as are employed with respect to the proposal and adoption of ordinary laws. The California constitutional provisions for the initiative and referendum make substantially no difference between the proposal and adoption of constitutional amendments and of ordinary legislation, and little difference is made by the constitution of Michigan. This means that in their formal aspects of proposal and adoption constitutional amendments are in these states placed upon the same basis as ordinary legislation. Not only this, but the requirement in a number of states that amendments or repeals of laws approved by the people be enacted only upon a popular vote places the amendment and repeal of such legislation upon substantially the same basis, establishing a compulsory referendum for such amendments and repeals in the same manner as for constitutional amendments.

Of course, the constitutional referendum already existed before the adoption of the initiative and referendum for ordinary legislation, but it is possible, as has been done in a number of states, in adopting the initiative and referendum, to continue some formal distinction between statutes and constitutional changes.

Votes under a compulsory referendum have steadily tended to increase in this country, even before the adoption of the initiative and referendum, and this increase in compulsory referenda, (that is, in the measures which must be submitted to the people if changes are to be made) has taken place primarily as a result of the increased detail in state constitutions.

The briefer and less detailed a constitution is, the less frequently will amendments be needed and the more important in fact such amendments are likely to be, although of course even a brief constitution will necessarily contain some matters requiring change and such a constitution should not be unduly difficult to amend.

The placing of numerous details in a constitution has also a direct bearing upon the use of the initiative and referendum if these institutions are to be adopted. If details as to a matter are placed in the constitution and there comes a popular demand for legislation in conflict with these details, two steps must be taken in order to obtain such legislation:

(1) If an initiative for constitutional change exists, or if the legislature is convinced that there should be constitutional change, a proposed amendment must first be submitted to the people and adopted.

(2) The way is then, and only then, open for legislative action or for the use of the initiative to propose legislation. That is, putting the detail in the constitution will multiply by two the measures which must be submitted to a popular vote, and will hamper the use of the initiative by forcing two separate steps to accomplish the purpose desired, as distinguished from one if details as to the matter are not included in the text of the constitution.

Limitation of measures to be submitted to popular vote: It has already been suggested that if the initiative and referendum are to be adopted, a limitation as to subject matter not to be dealt with by such institutions is likely to prove undesirable. At the same time it is highly desirable that questions to be submitted to the people either as constitutional amendments or as laws, should be only those of real importance, and that the number of such submissions should not be so numerous as to make effective popular action difficult if not impossible.

The tendency to increase compulsory referenda has already been commented upon, and this tendency results both from increasing detail in constitutions, and from the requirement of popular votes. with respect to the amendment or repeal of measures approved by the people.

It is possible to reduce or limit the number of measures to be submitted to a popular vote, if the initiative and referendum are to be adopted. Such a limitation can be accomplished to a large extent in the following ways:

(a) Reduce to as great an extent as possible compulsory referenda upon constitutional questions, by reducing the detail in consti

tutions.

(b) Do not provide for a compulsory referendum upon the amendment or repeal of measures once approved by a popular vote, but merely permit legislative amendment or repeal subject, as in other cases, to a referendum upon popular demand.

(c) Do away with the cases in which constitutions now provide for compulsory referenda upon laws, where such compulsory referenda have ceased to be of any real value, leaving laws in such cases to an optional referendum upon popular petition. This statement would apply to the matter of banking legislation in this state.

(d) Under initiative and referendum provisions, do not permit the legislature to refer measures of its own motion. Such a reference permits the legislature to shift responsibility, and under an initiative and referendum provision, if there should be a popular demand for submission, this can be had by a popular petition without the need for submission by the legislature itself. However, legislative power to submit measures has not been freely exercised in the states where it exists.

(e) A large amount of popular voting could probably be avoided by an indirect initiative with a possibility of legislative deliberation and action before a measure shall be submitted to the people. In such cases it is probable that the legislative action would oftentimes at least meet popular approval without the need for further popular action.

Comments upon initiative and referendum provisions in the constitutions: There has been a tendency toward greater detai. in the constitutional provisions for the initiative and the referendum. The Massachusetts constitutional amendment adopted in 1918 is a striking example of this, and it seems probable that a number of judicial decisions will be necessary before all points regarding the working of this amendment are clear. Constitutional provisions like those of Oregon (1902, 1906), and of North Dakota (1918) leave the detail to be worked out by legislation, and appear to be more satisfactory than does the method of trying to put all of the detail into the constitution itself.

In Utah and Idaho the constitutional provisions merely authorize legislation to provide for the initiative and the referendum. Constitutional provisions of this character would pretty clearly not meet the desires of those favoring the initiative and referendum, and these persons can as an argument point to the fact that the Utah amendment was adopted in 1900, but was not made effective by legislation. until 1917, while the Idaho amendment adopted in 1912 has not yet been put into operation by legislative action.

The constitutional amendments regarded as most typical of the different types of the initiative and referendum are printed in an

appendix to this pamphlet. These amendments are those of Utah, Oregon, North Dakota, Nebraska, Michigan, Ohio and Massachu

setts.

The Wisconsin proposed amendment which was rejected in 1914 is also given in the appendix, together with the final form in which a proposed Illinois amendment was voted upon by the House of Representatives in 1913. A possible combination may be made of elements from the Wisconsin and Illinois proposals, and a tentative draft of such a combination is also presented in the appendix. The presentation of this draft implies no view in favor of or against it or with respect to the initiative and referendum in general, but the draft is submitted merely in order that the various phases of the subject may be put in concrete form. If the adoption of the indirect initiative is to be considered, the Wisconsin plan has advantages over that of Ohio. There is no difficulty whatever about obtaining the introduction of a bill in the general assembly, and to require a petition for this purpose seems unnecessary, although a popular petiton in such a case does accomplish the purpose of establishing a different status for a bill so presented, and the two methods of introduction into the general assembly could be adopted if this were desired.

VIII. RECALL OF JUDICIAL DECISIONS.

Colorado is the only state which has adopted a recall of judicial decisions, and since 1912 there seems to have been relatively little popular interest in such a proposal. In fact, the recall of judicial decisions as adopted in Colorado does nothing which cannot be accomplished by a relatively simple amending clause, and it is p:obably for this reason that little use has been found for such a provision. In view of this fact it is unnecessary to do more than to call attention to the existence of the Colorado provision and to the fact that it has not been used since its adoption.

The recall of judicial decisions is, as provided for in Colorado, merely an adaptation of the referendum, the people by a petition requiring a popular vote upon a law found unconstitutional by the supreme court, and the law upon a favorable popular vote standing independently of the judicial decision. Substantially what the popular vote does is to create an exception from the constitution as interpreted by the supreme court with respect to the particular law voted upon, and to this extent amending the constitution.

Numerous cases have occurred and will probably continue to occur in which the constitution as construed by the highest state court does not meet the popular needs and in which a constitutional amend ment is proposed and adopted with respect to such a matter. Amending the constitution has an advantage over the recall of judicial decisions in that it deals not merely with the specific law in dispute, but with the principle underlying the legislation; and also in that it makes a specific change in the terms of the constitution itself. If a recall of judicial decisions were employed, it would be difficult for a court to know to what extent if any it was intended to lay down a rule for the future, or for a law upon the same subject different in text or in policy. In the table dealing with the recall upon page 120 will be found an outline of the Colorado provision for the recall of judicial decisions.