i (
'I 11
't I
(
u ,
tf
nw
9
ff,
:h
m
!
-
r w
w
5
;
t
M '
'!
4
.
n. n
h'M.
'
t ,
M
v
w -
io
MB
hath loft In our power to chooso what govern
ment we please for our civil and religious hap
piness." Tho bill of rights of the Massachusetts con
stitution declares that by right, the, peoplo of
tho commonwealth, "invest their legislature
with authority" and "provido for an oquitablo
mode of making laws."
b. SOVEREIGNTY EXTENDS TO CONSTITU
TIONS AND STATUTES.
Constitutions are not limited to organic law.
Whatever may be tho theoretical and
Aesthetic division between organic and statute
law, this division, as to constitutions is urged
only by text-writers as- a matter of policy, and
nowhero has a court undertaken to limit con
stitutional conventions or constitutional amend
ments to organic law.
Tho original constitutions of tho states con
tain many provisions of a statutory nature, and
since that time tho practice has grown perhaps '
to an unreasonable extent; but the practice has
its justification in tho distrust of legislatures by
the peoplo and the necessity they have found of
curbing ordinary legislative powers. That ex
tensive provisions of a statutory character are
not open to legal or political objection is notably
evidenced by tho admission of Oklahoma to the
union under a constitution which is crowded
with such provisions. Tho court likewise .have
not distingiushed between such legislative pro
visions and organic laws.
Constitutional limitations of a statutory char
acter are so extensive that upon analysis of the
existing conditions thoy will be found to con
stitute tho groat bulk of constitutional texts.
Examine Stimson "Constitutions."
The recognition of this power to enact legis
lation in constitutional form Is a definite recog
nition of the full authority of the people of a
state to enact legislation at their free will, and
under such forms as they may constitutionally
provide. Nowhero has this court or any other
court undertaken to say in what exact form the
peoplo shall give expression to their sovereign
will. Tho courts of some states, but not yet of
the United States, have recognized that con
stitutional conventions may even promulgate
constitutions without tho ratification of even
tho preliminary consent of tho people.
However questionable these decisions may be
they illustrate the great possible exemptions
from fixed forms which are allowed in express
ing the popular will, even through the mere
process of acquiescence. With how much
greater reason Is it .accorded to the people in
united action when they directly declare the
law of tho state?
No one questions the sufficiency of a consti
tution which is ratified by the popular vote, and
It seems Immaterial and technical to inquire
into the form in which popular action is thus
expressed. It must be beyond question that if
the people choose to determine constitutional
questions directly at tho polls rather than
through a convention, they have a power to do
bo, and it must be incontestable that the com
mon practice of initiation of amendments by
legislatures is a mere matter of convenience and
not of principle. When, therefore, the people
of Oregon fixed for themselves the method of
popular initiation of constitutional amendments
and a direct vote at the polls upon such amend
ments, their power so to do can not bo ques
tioned by any court.
It seems to be a necessary corollary to this
statement that the people's power at tho polls
over questions of a statutory nature is not any
more limited than it would bo in a constitutional
convention. If it were otherwise, it would be
demonstrated that there is somewhere a judicial
or political inhibition upon tho people in con
stitutional assemblage to pass from a field of
organic into a field of 'statutory enactment, but
as is above suggested no such inhibition exists.
We are, therfore, dealing in this case with a
more matter of form which, it requires very
little ingenuity to change.
In the early history of tho Plymouth colony
in 1638, tho first experiment with legislation
by delegates was made, and it was provided as
'r to any laws which such delegates might enact,
' "That tho freemen at the next eleccon court
after meeting together may. repealo tho same
and enact any other usefull for tho whole."
Tho people of Oregon might copy from tho
Pilgrim Fathers and provido that at each elec
tion any laws passed by a previous legislature
might be repealed This would constiute an
optional referendum of all legislative acts.
Surely with a greater sovereign power than
could ever be conceded to tho Plymouth colonists
the peoplo of Oregon might declare that every
election should constitute a constitutional con-
The Commoner
vontion of the peoplo to propose and enact their
own measures as well as to repeal thoso of the
legislature. Such indeed Is tho practical opera
tion, and It may bo said, tho legal effect of the
constitutional provisions now In force In
Oregon. .
Each gathering of tho peoplo at election day
Is In effect a constitutional convention at which
tho sovereign powers of the people are only
limited by their own constitution and the con
stitution of the United States.
Constitutions are creators of law they are
called organic law, because they contain the
plan or means of government, and the making
of a constitution is legislation of the highest
type. Legislatures can not meddle with it
Threadgill v. Cross, 109 Pac. Rep. 558
(Ok. 1910.)
It is conceivable that a constitution might put
forth an entire code of the law, and leave no
powers to a legislature, giving to the peoplo
locally or generally assembled or represented
the solo. power of alteration through amendment
of the constitution Itself. It has not yet been
decided that a permanent body of delegates, em
powered to legislate, is an essential of a repub
lican form of government. The town meeting
still exists unchallenged, and nowhere does it
appear that a city, a county and indeed a whole
state may not act In like accord, if the people
can find methods satisfactory to themselves.
If the perfection of the secret ballot system
provides such a method, what prohibitions of
ancient charters or customs shall avail against
this form of legislating In the state.
c. THE RIGHT OP DIRECT LEGISLATION
When this court inquires into the right of the
people of Oregon to make their laws at the
polls, it should do so in the spirit of Mr. Justice
Holmes when he made similar inquiry as a
justice of the supreme court of Massachusetts:
"I ask myself as the only question what words
express or Imply that a power to pass a law
(subject to rejection by the people) is with
held." Opinions of Justices, 160 Mass. 594
"The supremo power is in a democ
racy inherent in the people and is either exer
cised by themselves or by their representatives."
James Wilson, Elliot's Debates, Vol. II, p. 365.
Andrew Jackson, In his Inaugural address,
said: "Experience proves that in proportion
as agents to execute the will of the people are
multiplied there is danger of their wishes being
frustrated. Some may be unfaithful; all are
liable to err. So far, therefore, as the people
can with convenience speak, It is saferr fpr
thom to express their own will."
Commenting on the statement that the people
who delegate power "have a right to resume it,
and place it in other hands or keep it them
selves, whenever It is made uso of to oppress
them, &c." John Adams answered:
"These are what are called revolution prin
ciples. They are the principles of Aristotle
and Plato, of Llvy and Cicero and Sidney, Har
rington and Locke; tho principles of nature and
eternal reason; the principles on which the
whole government over us now stands. It is
therefore astonishing, if anything can be so,
that writers, who call themselves friends of
government, should In this age and country be
so inconsistent with themselves, so Indiscreet,
so immodest, as to Insinuate a doubt concern
ing them." Works, Vol. IV, p. 14.
Jameson (Constitutions, p. 21) gays:
"Sovereignty manifests Itself In two ways,
first Indirectly, through Individuals, axjting as
the agents or representatives of the sovereign
and constituting the civil government; and
secondly, directly, by organic movements of tho
political society itself without the ministry of
agents."
. "A portion of this sovereign power has been
delegated to government which represents and
speaks tho will of the peoplo so far as they
choose to delegate their power."
Luther vs. Borden, 7 How. 29.
Tho sovereignty of the people being conceded
the claim that tho law making power can only
be exorcised through delegates has a fair paral
lel in the reasoning of the chambermaid, who
Insisted upon hanging a picture of the leaning
tower of Pisa awry, and explained that she
could only get the tower to hang straight by
hanging the picture crooked.
The assertion that the sovereignty of tho
people is sufficiently exercised by a legislature,
is well met In the words of Washington, when
tho confederation was toppling and he was asked
to use his influence:
-"Influence is not government."
d. OREGON IS A REPUBLIC
If the people roservo their original power
VOLUME 11, NUMBER 41
to themselves and delegate to their agents only
limited functions, the republican form Is not
lost but perfected. The only test of guch form
is the supremacy of the popular will, and no
where Is it supreme except in the original exer
cise. Any uncontrolled delegation Is a qualified
or indirect supremacy.
A monarchy Is not less a. monarchy because
the sovereign elects to act personally rather
than through ministers; aristocratic sovereigns
need not put their power out of their own
hands in order to act effectively. By what token
shall it be said that a sovereign people, con
stituting a republic, ceases to be republican,
when it dispenses with delegates and acts
directly?
Surely the people may grant such restricted
power to their delegates as they choose, and
powers not granted and thus reserved are not
lost to the peoplo. Wo can not make any key
fit such a lock.
There is no law, which sets the legislature
above the people; not in the decisions of courts,
not in the constitutions or the qonventions which
made or ratified them, not in early colonial his
story, where pure democracy had been tho
foundation of government.
There is a rank incongruity in the proposi
tions that in a republic the people must be
sovereign, and that a government ceases to be
a republic when the people refuse to delegate
all their sovereign power of legislation to agents.
A people is not sovereign which has not the
power to exercise its sovereignty, and a delegate
body is the sovereign if It has power to deny
to its principal the right to resume and exercise
the delegated power. Only when tho sovereign
voluntarily relinquishes its right to exercise any
sovereign function to delegates can the dele
gates have logical claim to possess the sovereign
power. We call this voluntary relinquishment
a constitution.
After a century of repetition of the evident
truth that delegates of the sovereign function
must trace their authority to the constitutional
grant, the 'claim is now made, that our republi
can form has ceased to exist, and the republic
has disappeared If the sovereign has declined
to abdicate its full sovereign power to its
agents, and chosen to reserve certain of such
powers to itself, and indeed only power which
is withdrawn upon the failure of the represen
tatives to represent.
May not the sovereign say to his agents, "You
must represent me, you must execute my will,
or I shall exercise the power myself." If this
Illogical contention can stand, it must involve
the downfall of the entire theory of popular
sovereignty.
James Wilson, whose influence in the federal
convention and with the people of tho states
was second to uono made brilliant and conclu
sive answer to the contention of this appellant.
"No, sir, I have no right to imagine that the
reflected rays of delegated power can displease
by a brightness that proves the superior splen
dor of the luminary from which they proceed."
The people of Oregon have not been disap
pointed in the direct exercise of their sovereign
functions. "Nine other states have followed in
tholr footsteps; the wisdom of their course Is
reflected in the laws they have thus enacted.
-Democracy has been vindicated; it promises to
bring better government, better citizenship and
a perfect republic. The people are fit to govern
themsolves; and are justifying the confidence
and Injunction of the martyred Lincoln.
"No men living are more worthy to be trusted
than those who toll up from poverty; none less
inclined to take or touch aught which they have
not honestly earned. Let them beware of sur
rendering a political power which they already
possess, and which, if surrendered, will surely
be used to close the door -of advancement
against such as they, and to fix new disabilities
and burdens, upon thom till all of liberty shall
be lost."
GEORGE FRED WILLIAMS,
Counsel for the states of California, Arkansas,
Colorado, South Dakota and Nebraska, who pray
to be heard as amlcl curiae.
Of counsel for the state of Oregon.
THE PRAUD CONSmiMATED
The Standard Oil trust is "reorganized" with
the Rockefeller interests in as complete control
as they were before. The Tobacco trust is also
"reorganized" with no change in the control.
The court refused to allow the independents to
intervene and the government declined to ap
peal, so the fraud Is consummated.
How long can a confiding public be deceived
by such slight-of-hand performances?
iK
In