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Some Recent Tendencies in State Constitutional Development, 1901–19081
Published online by Cambridge University Press: 04 October 2013
Extract
This paper confines itself to some of the more important general tendencies in state constitutional development during the years from 1901 to 1908, leaving entirely aside any discussion of the unsuccessful efforts to obtain constitutional revision in New England, and mentioning only incidentally the Southern constitutional provisions with reference to the exercise of the suffrage.
The past twenty years have been perhaps the period of greatest activity in state constitutional development; and are comparable with the two decades, 1860–1880, during, which, however, constitutional activity was to a large extent confined to the Southern States, as a result of the extraordinary conditions of the civil war and reconstruction periods. But the constitutional development during the past twenty years has been different from that of earlier periods in that it has been to a greater extent accomplished by constitutional amendments rather than by the adoption of new constitutions. During the past eight years, to which this discussion is confined, four new constitutions have been adopted: Alabama, 1901; Virginia, 1902; Oklahoma, 1907; and Michigan, 1908. From 1901 to 1907 one hundred and eighty-one state constitutional amendments were submitted to and adopted by the people, and during the same period one hundred and one amendments were submitted to and rejected by the people; twenty-three amendments were adopted in Louisiana, eighteen in California, twelve in Michigan, ten in Missouri, and eight each in the states of Colorado, New York, South Carolina, and South Dakota.
- Type
- Papers
- Information
- Proceedings of the American Political Science Association , Volume 5: Fifth Annual Meeting , December 1909 , pp. 149 - 164
- Copyright
- Copyright © American Political Science Association 1909
Footnotes
1
A portion of Dr. Dodd's address will appear in the Political Science Quarterly under the title “The Growth of Judicial Power.”
References
2 For a review of constitutional changes from 1895 to 1903, see an article by Prof. J. B. Phillips in the Yale Review, XII, 389.
3 For discussions of these constitutions see the following articles: McKinley, A. E. Two New Southern Constitutions, Political Science Quarterly, XVIII, 480 Google Scholar; Sanborn, J. B. The Oklahoma Constitution, American Law Review, XLII, 362 Google Scholar; Fairlie, J. A. The Constitution of Oklahoma, Michigan Law Review, VI, 105 Google Scholar; Fairlie, J. A. The Michigan Constitutional Convention, Michigan Law Review, VI, 533 Google Scholar.
4 Information regarding the final action of the people upon all of these amendments has not yet been received. All of the fifteen amendments voted upon in Louisiana were adopted by the people.
5 As, for example, the constitutional amendments and provisions made necessary in order to permit the use of voting machines, in Pennsylvania, 1901; California and Virginia, 1902; Connecticut, 1905; and Colorado, 1906. See the cases of Nichols v. Election Commissioners, 196 Mass. 410; and Helme v. Election Commissioners, 149 Mich. 390.
6 Dealey, J. Q. General Tendencies in State Constitutions, American Political Science Review, I, 200 Google Scholar.
7 Garner, J. W. Amendment of State Constitutions, American Political Science Review, I, 213 Google Scholar. The present provisions regarding state constitutional amendment are summarized in Stimson's, Law of Federal and State Constitutions, pp. 355–357 Google Scholar.
8 A proposed amendment in Mississippi attempting to accomplish the same purpose was defeated in 1902.
9 Virginia, secs. 155, 156 l. Oklahoma, Art. IX, see. 35; Art. XII, sec. 3; Art. XX, sec. 2. See the suggestion made by Dr. Whitten in New York State Library, Review of Legislation, 1901, p. 29 Google ScholarPubMed.
10 The rejected Missouri amendment of 1904 made a similar distinction between constitutional amendments and laws, by requiring a larger popular petition for the proposal of amendments.
11 Reference may also be made to the constitutional amendment now pending in North Dakota. The development of the initiative and referendum in the states is not all represented by constitutional provisions. Illinois in 1901 adopted by statute an advisory referendum applicable both to the state and to municipal corporations. A popular vote in Delaware in 1906 decided in favor of the establishment of an advisory initiative and referendum. See Schaffner, Margaret A.: The Initiative, the Referendum, and the Recall, American Political Science Review, II, 32 Google Scholar; Popular Legislation in the United States. The Development of the System, by C. S. Lobingier. The Value of the System, by Sanborn, J. B.. Political Science Quarterly, XXIII, 577, 587 Google Scholar.
12 For a further discussion of this subject see Oberholtzer, , Home Rule for our American Cities, Annals of the American Academy of Political and Social Science, III, 736 Google Scholar; and the same author's Referendum in America, Chapter XIV. See also Maltbie, , City-made Charters, Yale Review, XIII, 380 Google Scholar.
13 For an account of the municipal referendum before 1900, see Oberholtzer, , Referendum in America, 306–310 Google Scholar.
14 Alabama, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, Wyoming. See bulletin no. 1 of the Rhode Island Legislative Reference Bureau on The Veto Power in the Several States (Providence, 1907)Google Scholar.
15 The referendum in these states, and in South Dakota, Montana and Missouri, however, does not apply to “laws necessary for the immediate preservation of the public peace, health, or safety.”
16 A constitutional amendment rejected by Florida in 1904 proposed a great reduction in the power of the legislature of that state to enact local and special laws.
17 This is the more general judicial position upon constitutional provisions of this character. Under such a holding the Oklahoma provision mentioned above would be given precisely the same effect as the provision in the Virginia constitution. Cooley, , Constitutional Limitations, 181, note 4Google Scholar. Indiana v. Kolsem, 14 L. R. A. 566. American Digest, Century Edition, X, 1425; American Digest, Decennial edition, IV, 1623.
18 These amendments will probably be held to be invalid when contested in the federal courts. The Louisiana, Virginia, and Oklahoma provisions for rate-making by judicial procedure were evidently intended to prevent the issuance of injunctions by inferior federal courts restraining the enforcement of rates after they had been made, inasmuch as by federal law writs of injunction may not be granted by any court of the United States to stay proceedings in any court of a state. The purpose of these state constitutional provisions has, however, been nullified by the Supreme Court of the United States in the case of State Corporation Commission of Virginia v. Railroads, decided November 30, 1908; in this case the Supreme Court held that rate-making is a legislative and not a judicial function, that judicial bodies in fixing rates are acting in a legislative capacity, and that an injunction may therefore be issued by the federal courts to prevent the enforcement of rates so fixed. This decision seems to warrant the statement that the states cannot devise any effective system of rate-making for intrastate traffic, for if rates are in every case subject to be enjoined by the inferior federal courts, a state rate will, even if finally upheld by the federal courts, not go into effect until after long judicial proceedings in each case. This is in effect to say that the states, although they are the only bodies having control over intrastate rates, will not be permitted to exercise their power of control except in the cases where they may do so in agreement with the railroads affected. It would seem that the Supreme Court might better have taken the view that injunctions should not issue by federal courts where private rights are properly secured by judicial proceedings in rate-making by the states, assuming that the corporation if it felt aggrieved would exercise its right of appeal from the highest state court to the Supreme Court of the United States.
19 A proposed amendment for this purpose was defeated in Maryland in 1905.
20 During recent years there have been numerous amendments proposed with reference to state and municipal taxation. See a note on Taxation—Pending Constitutional Revisions and Amendments, by Campbell, Robert Argyll in American Political Science Review, II, 427 Google Scholar.