Discussion Notes 1. Compare the outcome of the principal case, and its legal basis, with James v. Valtierra, 402 U.S. 137 (1971). See also, State ex rel. City of Pompano Beach v. Lewis, 368 So.2d 1298 (Fla. 1979). 2. Are the concerns about “local” and “special" laws the same? D. Direct Legislation The initiative and referendum movement around the turn of the century was another indication of public dissatisfaction with state legislatures. Initiatives enabled the public to bypass unresponsive state legislatures, and referendums provided a check on the effect of unpopular statutes. These devices are more sophisticated than the earlier procedural restrictions, most of which also reflected disapproval of legislative actions. The initiative allowed the people to take direct action when the legislature refused to act. The referendum enabled the people to target specific enactments rather than depend on the indirect deterrence of procedural restrictions. The people of South Dakota began the process of taking back, or reserving to themselves, a measure of legislative power in a constitutional amendment approved in 1898. During the next twenty years, about a dozen states followed the lead. See generally Jefferson B. Fordham and J. Russell Leach, "The Initiative and Referendum in Ohio," Ohio State Law Journal 11 (Autumn 1950): 496; Barbara F. Grossmand, "The Initiative and Referendum Process: The Michigan Experience," Wayne Law Review 28 (Fall 1981): 79. One observer during this era predicted that: The more direct legislation you have... the greater the body of judge-made law. George Lefcoe and Barney Allison, "The Legal Aspects of Proposition 13: The Amador Valley Case," Southern California Law Review 53 (November 1979): 173. Do you agree with the above statement? Compare the process of enactment of direct legislation with the legislative process. Luker v. Curtis 136 P.2d 978 (Idaho 1943) AILSHIE, Justice. This is an original proceeding for a writ of prohibition, restraining defendant, as Secretary of State, from publishing in the session laws of the twenty-seventh legislative session, H.B. No. 74, passed by the twenty-seventh legislative session, which act purports to repeal the "Senior Citizens' Grants Act," initiated by the people and approved and passed by vote of the people at the general election of November, 1942.... Now, passing to the question as to the power of the legislature to repeal an initiative act adopted by popular vote, we must examine the provisions of the constitution, sec. 1, art. III, which provides as follows: Sec. 1. Legislative power-Enacting clause-Referendum-Initiative.—The legislative power of the state shall be vested in a senate and house of representatives. The enacting clause of every bill shall be as follows: 'Be it enacted by the Legislature of the State of Idaho.' The people reserve to themselves the power to approve or reject at the polls any act or measure passed by the legislature. This power is known as the referendum, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, demand a referendum vote on any act or measure passed by the legislature and cause the same to be submitted to a vote of the people for their approval or rejection. The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature. This power is known as the initiative, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, initiate any desired legislation and cause the same to be submitted to the vote of the people at a general election for their approval or rejection pro vided that legislation thus submitted shall require the approval of a number of voters equal to a majority of the aggregate vote cast for the office of governor at such general election to be adopted. The italicized portion of the foregoing, being the initiative clause, was adopted in 1912 (1913 Sess.Laws, Amendment No. 16, p. 675). Acting under procedure prescribed by the legislature (1933 Sess.Laws, chap. 210, p. 431), the requisite number of electors initiated an act designated and known as the "Senior Citizens' Grants Act," which was submitted to and adopted by the voters at the November, 1942, election. The act was certified as passed and, by the Governor, declared in force November 23, 1942. The legislature, which convened in January, 1943, by H.B. No. 74, repealed the "Senior Citizens' Grants Act." In the first place, let it be noted, the initiative provision of the constitution places no limitation whatever on the power of amendment or repeal of an initiative act. This power of legislation, reclaimed by the people through the medium of the amendment to the constitution, did not give any more force or effect to initiative legislation than to legislative acts but placed them on an equal footing. The power to thus legislate is derived from the same source and, when exercised through one method of legislation, it is asserted, is just as binding and efficient as if accomplished by the other method; that the legislative will and result is as validly consummated the one way as the other. It is contended, however, that the legislature has no power or authority to amend or repeal an initiative act, for the alleged reason that an initiative act comes directly from the people. That may very well be answered by the fact, that the legislators, who convene on the first Monday of January, following adoption of initiative measures, also come direct from the people, having been elected at the same time and by the same electors who adopted the initiative measure. If the legislature repeals or amends an initiative act, the people have at least two remedies, both of which they may exercise at the same time, to redress their grievance, if indeed they have a grievance, over the act of the legislature: First, they may reenact the measure by another initiative and, second, at the same time and at the same election, may elect other members of the legislature who will, or may, better heed their wishes. The enactment of law by the legislature takes a very different course from enactment by initiative. In the legislature, a Bill must be introduced, printed, read on three several days; and the members thereby have an opportunity of debating the act and offering and making amendments so that the law, if on a con troversial subject, is ordinarily much discussed and analyzed. On the other hand, an initiative measure is drafted by a single person, or group of persons (Wallace v. Zinman. 200 Cal. 585, 254 P. 946, 62 A.L.R. 1341, 1345), and after it is circulated and filed, there is no opportunity for amendment or change until after it is voted upon. Indeed, the public, except the signers of the initiative petition, have no ready opportunity of seeing or reading an initiative measure until the Secretary of State mails copies out to the auditors of the several counties for distribution, preceding the general election. . . . It may have been, and is, altogether probable, that the framers of the initiative amendment to the constitution had these considerations in mind, when they drafted the amendment, and therefore refrained from inserting any prohibition against the legislature amending an initiative act; but rather preferred to leave that entire legislative field of deliberation to the people and their chosen legislators. It is not unreasonable to infer, that the people themselves realized that emergencies might arise requiring amendment, alteration or repeal of initiative laws, as well as legislative acts, that could not, with safety to the public welfare, be deferred for two years or until the next general elections. That, however, is a political question involving governmental authority and policy, over which the courts have no jurisdiction to consider or pass upon. The people adopted a constitution which divides the powers of state government into three distinct branches, Const., art. II, sec. 1, the first and foremost of which is the legislative power, Const.Art. III, sec. 1, "vested in a senate and house of representatives." Then, as an afterthought and by way of amendment (in 1912), they reclaimed certain specified powers, one of which was "the power to propose laws, and enact the same at the polls independent of the legislature." This created an alternative method for passage of a law and, by the very terms of the reservation, the alternative method can only be exercised "under such conditions and in such manner as may be provided by acts of the legislature." The initiative and referendum provision of the amendment to the constitution lay dormant for more than twenty years until the legislature by chap. 210 of the 1933 session enacted the provisions of that chapter, prescribing the manner and method of exercising the initiative and referendum privileges. Johnson v. Diefendorf, 56 Idaho 620, at 634-637, 57 P.2d 1068. So it can readily be seen that the people, in reclaiming and retaining the initiative legislative power, were nevertheless content to leave the manner and conditions of its exercise to their chosen senators and representatives; and in no form or manner limited the power of the legislature in time, manner or method of legislating on any subject upon which the lawmaking power can operate. We are not without judicial authority concerning the adoption and operation of the principles of initiative legislation. The subject received attention by the people of Wisconsin and the court of that state as early as 1860. State ex rel. Bank v. Hastings, 12 Wis. 47, 52; Van Steenwyck v. Sackett, 17 Wis. 665 (*645), 675 (*654). In that state the constitution of 1848 reserved to the people the right to legislate by initiative and referendum on the subject of banks and banking. Sections 4 and 5, art.XI, Wis.Const. The same principle, as related to municipal government, was recognized in Indiana by the constitution of 1816. See State ex rel. Jameson v. Denny, 118 Ind. 382, 21 N.E. 252, 4 L.R.A. 79, 83. About half a century ago (in the '90s), a number of new theories of legislation and political policies came into vogue and resulted in the formation of various political and civic organizations, advancing new theories of popular government. It is generally considered, however, that the first initiative and referendum amendment to an American constitution (12 Encyc. Brit., p. 358) was adopted by the people of South Dakota in 1898. Const. sec. 1, art. 3; State ex rel. Richards v. Whisman, 36 S.D. 260, 154 N.W. 707, 709, L.R.A. 1917B, 1. That amendment, while differently phrased, was in substance and effect the same as the Idaho initiative and referendum amendment, supra. The scope and effect of the amendment came under review of the supreme court of South Dakota in State ex rel. Richards v. Whisman, supra; and the court, among other things, said: As we view this constitutional amendment, there is nothing therein contained which, either expressly or impliedly, in any degree, conflicts with, inhibits, limits, abridges, or prohibits any part of the legislative power originally granted to it to enact, amend, or repeal any law which it might have enacted before the adoption of this amendment. The fact that the people themselves may propose or enact laws in connection with the Legislature in no manner conflicts with or prohibits the Legislature from itself also enacting the same law that might be desired by the people. If the Legislature of its own volition should enact the same law desired by the people, the initiative would then become unnecessary and useless as to such law. The evident purpose of this constitutional amendment was not to curtail or limit the powers of the Legislature to enact laws, but the purpose was to compel enactment by the Legislature of measures desired by the peo ple, and, if the Legislature neglected to act If the framers of this constitutional Soon after the South Dakota experiment was launched, and in 1902, the Oregon constitution was amended, art. 4, sec. 1, reserving to the people the right to initiate and adopt legislation in substantially the same language and to the same effect as our amendment. The scope and purpose of the reservation by the people, of the power to initiate legislation, has been several times before the Oregon court and considered at great length. Soon after adoption of the amendment, and in 1903, the court, speaking through Mr. Justice Bean, gave the question a very thorough consideration and review, in Kadderly v. City of Portland, 44 Or. 118, 74 P. 710, 720, 75 P. 222, and, among other things, said: The people have simply reserved to themselves a larger share of legislative power, but they have not overthrown the republican form of the government, or substi tuted another in its place. The government is still divided into the legislative, executive, and judicial departments, the duties of which are discharged by representatives selected by the people. Under this amendment, it is true, the people may exercise a legislative power, and may, in effect, veto or defeat bills passed and approved by the legislature and the Governor; but the legislative and executive departments are not destroyed, nor are their powers or authority materially curtailed. Laws proposed and enacted by the people under the initiative clause of the amendment are subject to the same constitutional limitations as other statutes, and may be amended or repealed by the Legislature at will. The Kadderly case has been uniformly approved and followed by the Oregon court. . . . Oklahoma incorporated the initiative and referendum in its constitution at the time of its admission to the Union; and that provision is similar to and substantially the same as the Oregon initiative. Ex parte Wagner, 21 Okl. 33, 95 P. 435, 18 Ann.Cas. 197. As recently as 1935, in the case of Granger v. City of Tulsa, 174 Okl. 565, 51 P.2d 567, 568, 569, the Oklahoma court had occasion to consider the effect of the initiative provision of their constitution and said: There is no express provision in the State Constitution prohibiting the Legislature or a municipal legislative body from repealing or amending the measures initiated by the people of the state or the municipality, respectively.... The initiative principle of legislating has been attacked in the courts from time to time, on the theory that it was contrary to and destructive of a representative form of government and therefore in violation of the Federal constitution. That contention was finally set at rest by the supreme court of the United States in Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377, wherein the court, speaking through Chief Justice White, held that the manner, method and instrumentalities, through which the people of a state determine to legislate, are political (28 AmJur., 153) and not judicial questions; and that the courts can not consider the wisdom or unwisdom of the methods or instrumentalities by which the people of a state determine to accomplish legislation. See Johnson v. Diefendorf, supra. The authority of the legislature is limited only by the Constitution itself, and it is axiomatic that any such body may alter, limit, or repeal, in whole or in part, any statute passed by a preceding one, unless there is some constitutional inhibition to the contrary. Higgins' Estate v. Hubbs, 31 Ariz. 252, 252 P. 515, 519. We conclude and hold that the legislature had the constitutional power to enact the repealing statute. We express no opinion as to the wisdom or unwisdom of the act. HOLDEN, Chief Justice (dissenting). Whether the "Senior Citizens' Grants Act" was, or is, wise or unwise and whether, for instance, a pension of $20.00 per month is too little or a pension of $100.00 per month too much, are social questions, and not judicial questions; also whether the initiative principle of legislation as provided by Section 1, Article III of our State Constitution, was, or is, wise or unwise, is a political and not a judicial question. With the determination of such questions this court has nothing whatsoever to do. So that the sole question presented to this court for determination is: Has the legislature power to repeal an initiative act adopted by popular vote under and pursuant to Section 1, Article III of the Constitution of the State of Idaho? It is therein provided that: "The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature." (Emphasis mine.) In other words, it is expressly provided, without any qualification or exception whatever, that all legislation initiated and enacted by the people, shall be "independent of the legislature." To hold, as the majority does, the legislature has power to repeal legislation enacted by the people under and pursuant to this provision of the Constitution, at once makes such legislation absolutely dependent upon the will of the legislature, not "independent of the legislature, as our Constitution so clearly provides. Not only can no hint be found giving the legislature power to repeal initiative legislation, but, on the contrary, the above quoted language of the Constitution, expressly negatives any such power. Furthermore, if the legislature has the power to repeal, as the majority holds, then, it could repeal, any and all legislation enacted by the people, as often as enacted, thus not only annulling this provision of the Constitution, but at the same time rendering it useless, absurd and ridiculous. It will be conceded, I am sure, the legislature has no power whatever to directly annul any provision of our Constitution. Can the legislature, then, do indi |