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About The commoner. (Lincoln, Neb.) 1901-1923 | View Entire Issue (Nov. 10, 1911)
VOLUME 11, NUMBER 44
The Commoner. Direct Legislation Before Supreme Court
t . I
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The initiative and referendum will be passed
on by tho United States supreme court. The
suit was brought by the Pacific States Telephone
and Telegraph company against the state of
Following is an Associated Press dispatch:
Washington, Nov. 3. The critical manner in
which the supreme court of the United States
today listened to arguments that the initiative
and referendum method of legislation in this
country was unconstitutional brought encourage
ment to the friends of the system. Oral argu
ments on both sides of the question were com
pleted before the court adjourned for the day.
E. S. Pittsbury of San Francisco and R. R. Dun
way of Portland, Ore., were heard in opposition
to the method in two Oregon cases. When Mr.
Pittsbury remarked that there could not, with
due regard to the federal constitution, be two
legislative powers in a state, namely the legis
lature and the people, Justice Lurton interrupted
"What is a state constitution but an organic
act of legislation by the people?" inquired the
"That is expressly what I understand it to
be," responded Mr. Pittsbury.
"Then there is legislative power in the
"To make a constitution, yes."
Mr. Pittsbury suggested that the people might
put into their state constitution anything not
in conflict with the restriction of the federal
"What are the restrictions which you claim
are violated in this particular case?" inquired
Chief Justice White.
"The provision for a legislature."
The chief justice asked him to read.
"I can not read it; it is implied in a dozen
places," said the attorney. "And also the con
stitution has been construed by this court to
imply that there must be a legislature."
Tho chief justice asked -for the cases in which
the point had been in issue, but the attorney did
not give them.
It was further argued that taxes imposed
under the initiative method were not by "due
process of the law" and violated "the equal
protection of the laws," so long as some persons
were taxed under initiative laws and other
Attorney General Crawford, of Oregon, de
clared that the question of whether the method
violated the guaranty of the United States in
the federal constitution of a "republican form
of government to every state" was a 'political
question for congress to decide and not a judicial
one for the courts to pass on. He inquired how
the court would enforce its decision if congress
and Oregon were opposed to it.
Frank S. Grant and William N. Benbrow of
Portland, Ore., spoke in the interests of "home
rule." George Fred Williams, of Boston, argued
that only a party to the "guaranty to the states
could ask the United States to make good its
promise that every state should have a republi
can form of government. A corporation, he
said, could not do so, because the guaranty was
to the states.
"I have heard no state objecting to the Oregon
form of government," said Mr. Williams.
Chief Justice White suggested that the word
"form" in the constitution lent support to Mr.
Williams' interpretation of the word "guaranty."
Jackson L. Ralston of this city, contended that
the opponents of the method were wrong in
arguing that the word "republican" was used
!n the constitution as a synonym for "represen
tative." He aTgued it was used in contradis
tinction with "monarchial."
Justice Holmes suggested this interpretation
would be in conformity with a rule of logic.
Prominent lawyers from the Atlantic to the
Pacific, representing the states of Oregon, Cali
fornia, Arkansas, Colorado, South Dakota, Ne
braska, Missouri and Washington, tho city of
Portland, Ore., and a number of civic organiza
tions were in the case fighting for the "exercise
of sovereignty by the people."
Two cases accorded tho basis of the conten
tion. One was the constitutionality of a tax
Imposed on tho Pacific States company. Another
was tho validity of a bond issuo for the con
struction' of a $2,000,000 bridge in Portland.
Ore. . '
Both cases hinged on tho constitutionality of
the Initiative and referendum method of legis
lation adopted in Oregon by a state constitu
George Fred Williams of Massachusetts has
filed an interesting and instructive brief in this
case. The Commoner will reproduce this brief
in full and prints the first installment in this
issue. The first installment of Mr. Williams
THE ISSUE: UNITED STATES CONSTITU
TION, ARTICLE IV, SECTION 4
The real Issue raised by the assignment of
errors is to be found in the eighteenth thereof,
claiming an invasion of appellant's rights under
U. S. Constitution, Art. IV, Section 4, as
"Section 4. The United States shall guaran
tee to every state in this union a republican
form of government, and shall protect each of
them against invasion: and on application of
the legislature, or of the executive (when the
legislature can not be convened) against do
(Exact form as engrossed; Farrand, Records
of the Federal convention, Vol. II, p. 662.)
The other claims under Art. I, Section 2,
3, 4, 8, 10; Art IV, Section 3; Art. V, relate
to the requirements of the United States consti
tution for legislative action in the states. It
may be conceded that these requirements would
impose upon the states the duty to maintain
legislatures for national purposes, and the short
answer to the' appellant's claims in this regard
is that such a legislature is maintained in
Oregon in due form and with full powers to
conform to the requirements of the United
The claims under the Article of Amendment
XIV are not to be considered, because the State
of Oregon Has promulgated the tax law of which
appellants complain,' every citizen of Oregon is
subject to laws so enacted, and there was duo
process of equal protection accorded to the ap
pellant pursuant to the constitution of Oregon.
That constitution and the form of law-making
it provides are not subject to revision by this
court unless jurisdiction is taken under above
Art. IV, Section 4.
The supreme court of Oregon has determined
that there is no infraction of the constitutions
of Oregon and the United States.
"The courts of the United States adopt and
follow the decisions of the state courts on ques
tions which concern merely the constitution and
laws of the state."
Luther v. Borden, 7 How. 1.
Duncan v. McCall, 139 U. S. 449.
Taylor v. Beckham, 178 U. S. 578.
"The people of the states created, the people
of the states can only change, its constitution.
Upon this power there is no other limitation but
that imposed by the constitution of the United
States; that it must be of the republican form."
Chlsholm v. Georgia, 2 Dall, 448.
I. THE SUBJECT-MATTER OP CONTENTION
A. Tho Oregon System
"The legislative power of the state shall be
vested in a legislative assembly but the people
reserve to themselves power to propose laws and
amendments to the constitution and to enact
or reject the same at the polls, Independent of
the legislative assembly, and also reserve power
at their own option to approve or reject at the
polls any act of the legislative assembly."
"The first power is the initiative" based upon
a petition by eight per cent of the legal voters.
"The second power is the referendum" based
upon a petition by five per cent of the legal
Such is the plan at issue, adopted by Oregon
1. THE PRECEDENT IN SWITZERLAND
It was not an experiment. Some of the Swiss
cantons had legislated in mass meetings from
days of antiquity. After the republic was
formed in 1848 by union of the cantons, all the
vices to which free governments are subject rent
the politics of the republic. Political bosses,
legislative corruption, corporate Influences,
partisan violence and intrigue were the rule in
In 1874 the referendum was adopted In na
tional affairs, and, in 1891 the initiative was
added. Experience justified these measures in
the cantons and republic. The evils abated,
popular verdicts were found to be considerate
and wise, party virulence was allayed, ex
perienced legislators were retained in office.
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