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kinds of property is sometimes forbidden. A few states, however, expressly authorize their governments to engage in industrial pursuits or business enterprise.
Educational institutions are recognized in most of the constitutions and usually the establishment and support of common schools—and sometimes of colleges or universities—is made mandatory upon the legislature. Occasionally such matters of detail as the age limits of persons entitled to free education and even subjects of instruction? or methods of teaching are specified. Compulsory education of children within certain ages is now and then authorized or prescribed. The protection of school funds and their sources, the regulation of school districts and the administration of the school system are the subjects of most extensive constitutional treatment.
Numerous detailed directions concerning the organization of business corporations, their regulation by the state and even their private management, occur. They must as a rule be chartered under general laws only. The most notable constitutional clauses, however, are those governing public service companies. A number of states, unwilling to trust their legislatures with the creation and possible abolition—of public service commissions, have provided for them in their constitutions and have minutely set forth their powers and functions.
In their anxiety to secure to individuals their private “rights” constitution-makers have frequently set up standards of personal liberty and governmental non-interference that have proved inconvenient or intolerable under the more complex conditions that have later developed. Chief among these is the famous "due process” clause already mentioned.” In more recent years, as a result, there has grown up a body of constitutional provisions which seek to guard the welfare of society as a whole, or of considerable portions of the people. They are
Ge. 9., Ariz., II, 34; N. D., XIV (Amend. 1914); Okla., II, 31.
Te. 9., Okla. (XIII, 7) requires the elements of agriculture, horticulture, stock-raising and domestic science in the common schools.
8Colo., IX, 11; Del., X, 1; Ida., IX, 9; N. C., IX, 15; Nev., XI, 2; Va. IX, 138; Wyo., VII, 9. The legislature may, of course, without constitutional authorization, make school attendance compulsory.
N. M., XIT, 5; Okla., XIII, 4. 16. 9., Va., XII. 2See, infra, ch. 17 and ch. 20.
usually the result of economic needs, like the clauses concerning irrigation in some of the western constitutions, or of social or industrial conditions, like the provisions authorizing workmen's compensation and other protective laws. The limitation of the liability of debtors, especially the provision that their homes may not be taken by forced sale, is perhaps the most frequent of such provisions. Though incidentally they secure "rights” to individuals their main purpose is that of social wel. fare.
Scattered through the constitutions is a very great variety of miscellaneous provisions of all kinds. Some of them are obsolete—as the occasional disqualifiation for voting based on race or color, others pertain to the particular state's peculiar needs or situation as the articles relating to harbors and navi. gation in some of the seaboard states. Frequently the boundaries of the state are set forth in its constitution.
A careful study of the constitutions would reveal many provisions reflecting the states' prevailing economic activities and interests.
The relations of the various parts of a constitution as well as their arrangement are illustrated by the following description of a single typical instrument, that of Ohio.
The constitution of 1851, which still remains in force in
Ohio, contained, prior to its revision in 1912, the provision that Constitution proposed constitutional amendments or proposals for calling
a convention must receive, in order to make them effective, a majority of all the votes cast at a legislative election. Since a large proportion of any electorate, while voting for the candidate of their choice for office, invariably remain silent upon constitutional questions, such a provision makes constitutional change nearly impossible in the absence of extraordinary methods.
Accordingly, in 1910, the legislature of Ohio passed an act permitting political parties to make the question of calling a constitutional convention a part of their tickets. Consequently every voter who marked his ballot so as to vote the straight
3See ch. 17. *e. g., Ore., II, 6 (Negroes, Chinese). The work of the convention of 1873-4 was rejected at the polls.
party ticket would ipso facto vote upon the calling of a convention. The leading parties declared in favor of the convention, and it was called by an almost unanimous vote.
The convention met early in 1912 and at a special election held September 3, submitted to the voters forty-two separate proposals for amending the constitution. Thirty-four were accepted and the constitution was far more radically changed by them than some so-called new constitutions have differed from their predecessors.
Of the eight rejected proposals, woman suffrage, abolition of capital punishment and the issuance of bonds for the construction of a state roads system were the most noteworthy.S
The constitution as it at present stands, including the schedules, is an instrument of forty-two closely printed octavo pages, containing approximately 20,000 words. It is divided into eighteen articles following a brief preamble.
The first article is the Bill of Rights, in twenty sections, embracing for the most part the subjects commonly found in the constitutional enumerations. Amendments of 1912 authorize verdicts by three-fourths of the jury in civil cases,' laws permitting suits against the state, trial of misdemeanors without presentment or indictment of a grand jury, regulation by law of the number of persons constituting a grand jury and of the number whose concurrence is necessary to indict, and the use of depositions in criminal cases. The accused is given the right to be present when the depositions are taken and counsel may comment upon the fact that a person accused fails to testify at the trial.2
Without pausing to deal with any distribution of the several powers of government, the second article proceeds at once to declare the “legislative power” vested in a “general assembly
Patterson, I. F., Constitution of Ohio and Allied Documents. See Laws of Ohio. 1910, pp. 169 and 18; see, also, act of May 31, 1911. Laws of Ohio, 1902, p. 352. in force until 1908, allowed political parties to make an amendment part of their tickets.
Separate in accordance with the requirements of legislative enactment. See Tennessee note to ch, 22.
For a most interesting analysis of the vote, see Mr. R. E. (ushman's article, Voting Organic Laus, Political Science Quarterly, XXVIII, 207 (June, 1913).
'I, 5. 11, 16. 21, 10.
consisting of a senate and a house of representatives," immediately adding
but the people reserve to themselves the power to propose to the general assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided.
Elaborate provisions are set forth for popular initiative in lawmaking and for popular demand for a referendum on laws made by legislatures to extend, with certain exceptions, to “any law, section of any law, or any item in any law appropriating money.?'3
The initiative applies both to constitutional amendments and ordinary statutes. For the former a petition, signed by ten per cent. of the electors4 and containing the full text of the proposed amendment, is filed with the secretary of state ninety days before the next regular election and at that time submitted to the electors. For the latter a petition signed by three per cent. of the electors and reciting the text in full is filed with the secretary of state at least ten days before a session of the general assembly convenes, to be transmitted to the general assembly. If such proposed law is passed or amended by the general assembly it is subject to referendum just as in the case of other statutes. If not passed, or if amended, or if no action is taken on it for four months, an additional three per cent. of the electors may procure its submission to popular vote at the next regular election. In case a proposal so submitted is adopted by the electorate, an act of the legislature adopting
II. 1. The popular legislative powers are in addition to those of the legislature and constitutional limitations apply equally to both. The initiative and referendum provisions are 1912 amendments.
4Such petitions must be headed "Amendment to the Constitution Proposed by Initiative Petition to be Submitted Directly to Electors."
The supplementary petition "must be signed and filed with the secretary of state within ninety days after the proposed law shall have been rejected by the general assembly or after the expiration of such term of four months, if no action has been taken thereon, or after the law as passed by the general assembly shall have been filed by the governor in the office of the secretary of state. The proposed law shall be submitted in the form demanded by such supplementary petition, which form shall be either as first petitioned for or with any amendment or amendments which may have been incorporated therein by either branch or by both branches of the general assembly." Such petitions "shall have printed across the top thereof, in case of proposed laws: 'Law Proposed by Initiative Petition First to be Submitted to the General Assembly.'" (II, 1b.)
the original initiative proposal in amended form becomes void.?
Laws passed by the general assembly go into effect after ninety days from the time they are filed by the governor with the secretary of state, unless, meantime, a petition, signed by six per cent of the electors shall order a submission to the electorate at the next regular election at least sixty days after the petition is filed, and the law or part of the law must await the verdict of the voters before going into effect.8
Initiative and referendum upon all subjects which the leg. islature may authorize them to control is reserved for munici. palities.
The legislature is elected biennially and its members hold office from the first of January following the November election." To the ordinary legislative functions and duties, is expressly added the power
to obtain, through committees or otherwise, information affecting legislative action under consideration or in contemplation, or with reference to any alleged breach of its privileges or misconduct of its members, and to that end to enforce the attendance and testimony of witnesses, and the production of books and papers,
If approved by a majority of those voting thereon, popularly initiated stat. utes and amendments take effect thirty days after the election. In case conflicting proposals are submitted the one receiving the greater number of affirmative votes prevails. Statutes initiated by the petition of voters are not subSect to veto by the governor (II. 1b).
The initiative and referendum must not be used "to pass a law authorizing any classification of property for the purpose of levying different rates of taxation thereon or of authorizing the levy of any single tax on land or land values or land sites at a higher rate or by a different rule than is or may be applied to improvements thereon or to personal property" (II. le).
"Laws providing for tax levies, appropriations for the current expenses of the state government and state institutions, and emergency laws necessary for the immediate preservation of the pubilc peace, health or safety," setting forth the reasons for the emergency (in one section of the law, which section shall be passed only upon a yea and nay vote, upon a separate roll call thereon), and passed upon a yea and nay vote by two-thirds of each branch of the legislature, are not subject to the referendum, and go into effect immediately (II, id).
SII, 1c. Regulations governing the exercise of the initiative and referendum are set forth in great detail. It is provided, for example, that "no law or amendment to the constitution submitted to the electors by initiative and supplementary petition and receiving an affirmative majority of the votes cast thereon, shall be held unconsitutional or void on account of the insufficiency of the petitions by which such submission of the same was procured ; nor shall the rejection of any law submitted by referendum petition be held invalid for such insufficiency." Printed copies of the proposed laws and amendments to. gether with "arguments and explanations, not exceeding a total of three hun. dred words" for and a similar number against each, shall be distributed by the secretary of state "to each of the electors of the state, as far as may be reasonably possible." (II, 1g.)