IV. OUTLINE OF DEVELOPMENT OF THE INITIATIVE AND REFERENDUM IN OTHER STATES.

This outline deals primarily with the state-wide initiative and referendum although a large number of the constitutional provisions adopting the initiative and referendum have at the same time either explicitly provided for local initiative and referendum, or have explicitly authorized the legislatures to provide for these institutions.

The referendum is a much older institution in this country than the initiative. Since the first state constitutions there has been a steady tendency to permit constitutional changes only as the result of a popular vote, and Delaware is today the only state whose constitution may be amended without a referendum. There has also been a tendency in constitutional development to specify certain types of legislation as operative only after a popular vote of the state at large. This is illustrated by the constitutional provisions in Illinois that all changes in banking legislation shall come into effect only after a popular vote, and that a popular vote of the state is necessary for the increasing of indebtedness beyond a certain small amount. Under these constitutional provisions a rather active application of the referendum has existed in this country for a number of years. Between 1901 and 1908 about 400 constitutional proposals were submitted in the several states, and for the whole period between 1901 and 1919 more than 1500 such proposals were submitted. These proposals are ones which would have required a popular vote, even before the adoption of the referendum in a number of states for ordinary legislation; although the number of proposed constitutional amendments submitted in the several states has been somewhat augmented by the fact that in an increasing number of states between 1902 and 1919 a popular initiative upon constitutional amendments has been established in addition to the power of the representative legislative bodies to submit such amendments.

South Dakota in 1898 was the first state to adopt the initiative and the referendum. Since that time nineteen other states have adopted the initiative and referendum for state-wide measures, or have provided for the application of the principles of these institutions, and two states (New Mexico and Maryland) have adopted the referendum. Utah in 1900 adopted a constitutional amendment authorizing the legislature to establish the initiative and referendum for ordinary legislation, but no legislation was enacted for this purpose until 1917. Idaho in 1912 adopted a constitutional amendment authorizing the legislature of that state to establish the

initiative and referendum, but up to the present time no legislation has been enacted in Idaho. Idaho may, therefore, be excluded from this list, and the number of states having the state-wide initiative and referendum reduced to nineteen. Maryland and New Mexico have only the referendum, the other nineteen states having both the initiative and the referendum for state-wide legislation. Of the nineteen states having the initiative and the referendum, five do not apply the initiative to constitutional amendments.

A table is presented below indicating the development of the state-wide initiative and referendum in this country, with some indication of the character of the initiative and referendum amendments adopted in the states which have amendments dealing with these subjects:

State-wide Initiative and Referendum.

In all of the states except Utah and Idaho, and perhaps South Dakota, the constitutional amendments with respect to the initiative and the referendum have been self-executing, but have provided that legislation should or might be enacted to carry them into operation. The amendments adopted have in some cases been general in form and have left a large amount of detail to be covered

by statutes. Others have dealt with matters in detail themselves and have left a less amount of detail to statutory regulation. However, in all but two or three of these states, legislation has been enacted supplementing the constitutional provisions, and it is necessary in many cases to have this legislation in mind in discussing the operation of the constitutional provisions.

In addition to the establishment of the initiative and referendum by constitutional provisions, these provisions themselves have in a number of cases expressly authorized the establishment of the local initiative and referendum, or have themselves established such institutions. In states not having constitutional provisions, there have been a number of statutory provisions adopted for the local initiative and referendum, most frequently in connection with commission government legislation for cities.

V. DETAILED ANALYSIS OF THE INITIATIVE AND REFERENDUM.

This analysis deals primarily with the constitutional provisions of the twenty-two states which have such provisions, and primarily also with the state-wide initiative and referendum for these states, although statutory provisions are discussed where they are important, and some reference is made to judicial decisions throwing light upon the interpretation of the constitutional provisions.

Types of the Initiative: Of the nineteen states having a popular initiative in operation ten have a direct initiative.1

That is, in ten of the states a measure is proposed by popular petition, and then goes directly to a vote of the peole as a result of such proposal.

Nine states have some form of what may be termed an indirect initiative, although these states must be divided into several classes:

(a) South Dakota adopted the first constitutional amendment in this country for the initiative and referendum, and under the South Dakota amendment a popular petition proposes a measure which the "legislature shall enact and submit." The only function. of the legislature in the South Dakota indirect initiative is that of adopting the proposal of the people and of submitting it in the form in which it was proposed. The function of the legislature is mandatory (although there is of course no judicial means of enforcing its performance), and the legislative act of adoption is a matter of pure surplusage which has no bearing in any way upon the actual operation of the initiative.

(b) Maine (1908), Nevada (1912), and Michigan (1913) have an indirect initiative under which measures proposed by petition. (but not constitutional amendments in Michigan) must be submitted to the legislature. However, in these three states the legislative function is that of accepting or rejecting without change the measure as it is proposed, although in these states the legislature has authority to submit competing or substitute proposals with the recommendation that such proposals be adopted by the voters.

(c) In three states a choice is given of either direct or indirect initiative. In Washington (1912) a measure initiated by petition goes to the legislature if the petition is submitted not less than ten days. before the legislative session. If the petition is submitted not less than four months before an election, the measure goes directly to the popular vote at the election. Under the 1917 statute of Utah a 5 per

1 Oregon, Montana, Oklahoma, Missouri, Arkansas, Colorado, Arizona, Nebraska, Mississippi, North Dakota.