of the incumbent. The procedure for removal is as follows: A petition signed by electors entitled to vote for a successor to the incumbent sought to be removed, equal in number to at least 25 per cent of the entire vote for all candidates for the office of mayor cast at the last preceding general municipal election, demanding an election of a successor of the person sought to be removed, is to be filed with the city clerk. This petition is to contain a general statement of the grounds for which the removal is sought. The signatures to the petition need not all be appended to one paper, but each signer must add to his signature his place of residence, giving the street and number. One of the signers of each paper is to make oath before an officer competent to administer oaths, that the statements therein made are true as he believes, and that each signature to the paper appended is the genuine signature of the person whose name it purports to be. Within ten days from the date of filing the petition the city clerk is to examine the voters' register to ascertain whether or not the petition is signed by the requisite number of qualified electors. If necessary, the council is to allow him extra help for that purpose, and he is to attach his certificate to the petition, showing the result of his examination. If by the clerk's certificate the petition is shown to be insufficient, it may be amended within ten days from the date of the certificate. Within ten days after such amendment the clerk is to make like examination of the amended petition, and if his certificate shows the same to be insufficient, it is to be returned to the person filing the same; without prejudice, however, to the filing of a new petition to the same effect. If the petition is deemed to be sufficient, the clerk is to submit the same to the council without delay; and if it is found to be sufficient, the council is to order and fix a date for holding the election, not less than thirty days or more than forty days from the date of the clerk's certificate to the council that a sufficient petition is filed.

The council is to provide for publication of notice and all arrangements for holding the election, which is to be conducted and returned in all respects as other city elections. The successor of any officer so removed is to hold office during the unexpired term of his predecessor. Any person sought to be removed may be a candidate to succeed himself, and unless he requests otherwise in writing, the clerk is required to place his name on the official ballot without nomination. In any removal election the candidate receiving the highest number of votes is to be declared elected. Unless the incumbent receives the highest number of votes at the election, he is deemed to be removed from the office upon the qualification of his successor. In case the party who receives the highest number of votes fails to qualify, within ten days after receiving notification of election, the office is deemed vacant.

The new charter for Lewiston, Idaho (Laws, 1907, p. 349), has similar provisions for the recall. In addition it safeguards the city from possible misuse of the law by providing that no petition for removal is to

be filed until the person has been in office at least ninety days, and that no person is to be required to stand for reëlection more than once during the term for which he was elected.

JUDICIAL INTERPRETATION OF DIRECT LEGISLATION

The validity of legislation for the initiative and referendum has been sustained in a number of recent court decisions. The former contention that the use of direct legislation substituted a pure democracy for a republican form of government no longer receives serious consideration.

In a case decided by the supreme court of California in 1906, the court declared1 that the provision of the federal Constitution (Article 4, Section 4) declaring that the United States shall guarantee to every state a republican form of government, is not violated by the initiative provision of a city charter authorizing direct legislation as to strictly local affairs by the citizens, in case the council refuses to enact the same. In an earlier decision3 the supreme court of Oregon similarly held that the initiative and referendum amendment to the Oregon constitution did not abolish or destroy the republican form of government, or substitute another in its place. The court declared: "The representative character of the government still remains. The people have simply reserved to themselves a larger share of legislative power."

Madison defined a representative government to be "a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a given period, or during good behavior."

Recent court decisions seem to be returning to this inclusive idea of representative government. On the basis of this broader interpretation, direct legislation may prove to become one method of making representative government more representative.

THE EXTENDED SPHERE OF LEGISLATIVE ACTION 5

BY JUSTICE SIMEON E. BALDWIN

Contrast, if you will, social regulation by the state as it bore upon the individual in our earlier days and as it bears upon him now.

The manufacturer finds his field of activity contracting. In one state he cannot distill or brew; in another he cannot make a cigarette.

1 In re Pfahler, 1906, Chapter 88, p. 270.

2 Charter of Los Angeles, Cal. Laws, 1903, Chapter 6.

8 Kadderly vs. Portland, 1903, 44 Or. 118.

4 The Federalist, p. 302.

6

5 From an address before the Georgia Bar Association, 1909. Reproduced by permission. 6 Iowa Code, sect. 5006; Act of February 28, 1905, of Indiana; State vs. Lowry, 166 Ind. 372; 77 Northeastern, 728.

Formerly, if an employer preferred to have none in his service who did not share his political opinions, he could discharge such as voted against the candidates of his choice at public elections. Now the state may be found punishing him for so doing by fine or imprisonment.

Once every official was free to take an active part in political campaigns. Now it would be a cause of removal in the case of very many.

Once every man's house was his castle, subject to the right of the state to take it from him for the strict purposes of government, on making him just compensation. Now the state may thus seize it for a pleasure ground, a band stand, a memorial site, a hospital, a college, a free library.1

Once his farm was his own, to plant and till as he might please. Now some public official may invade his orchard, uproot his trees, and leave him without remedy, if the state deems it necessary or expedient for the public welfare.2

The owner of a wood lot was formerly free to cut it when he pleased and as he pleased.

He may now be ordered by the legislature to refrain from cutting the whole or part of the natural growth for a period of years, and left to find his compensation only in the fact that this is deemed to be for the greatest good of the greatest number.3

If one owns land from which comes oil or natural gas, he must, on the one hand, guard against waste, and on the other, refrain from increasing the natural flow to the prejudice of his neighbors. Similar statutes have been upheld in reference to the use of water from artesian wells."

The riparian proprietor on streams not navigable has long been compelled in many states to submit to the flooding of his land by others, to create water power for them to put to milling or manufacturing purposes.

He now finds his fishing rights curtailed or perhaps denied for years, in order to secure replenishing the stream with more fish for others to catch and eat.

A grazier or butcher could formerly dress his meat products for such purposes as he saw fit. Now, if he should use his tallow to make a cheap substitute for butter, he might find himself under arrest as a criminal, and liable to a sentence to imprisonment."

Once a man could educate his children as he pleased, or not at all. Now the state may compel him to educate them in a certain way.

In obedience to its commands he sends them to a public school, and

1 United States vs. Gettysburg Electric Railway Co., 160 U. S. 668.

2 State vs. Main, 69 Conn. 23, 36, 37; Atlantic, 80; 36 L. R. A. 673; 61 Am. St. 30.

3 Opinion of the Justices, - Maine, -; 69 Atlantic, 626.

4 Ohio Oil Co. vs. Indiana, 177 U. S. 190; Manufacturers Gas Co. vs. Indiana Gas Co., 155 Ind. 467; 50 L. R. A. 768.

5 Ex parte Elam, 152 Cal. -; 91 Pac. 811. 6 Freund on the Police Power, sect. 419.

9 Powell vs. Pennsylvania, 127 U. S. 678.

the state may refuse to receive them unless they are submitted to vaccination, although he may regard it as both unnecessary and dangerous.1

He may think that he provides them at home with food sufficient for their wants, but if a school committee think otherwise, he may be forced to pay for other meals furnished by them and charged to him.2

Formerly a private school could be open to all whom the master thought fit to receive. Now it may be made a criminal offense to admit children of different colors.

8

Once, if a man contemplated marriage, no considerations of personal health need debar him from a free choice. Now the state may forbid him, under heavy penalties, from marrying an epileptic or one of feeble mind.*

Here one may remark a reversion to the ways of thought in ancient society. There the individual was merged in the family. His good was not thought of, but the good of the head of his house and of all the members of that house.

Not dissimilar in origin is the public school.

The family formerly was its own educator. Then came the church, acting through parochial schools and monasteries. Last appears the state, declaring that the liberty of the father may be justly restrained in the interest of the child, and also in the interest of the public.

The man should be accorded more freedom of will than the child, and yet that freedom, as respects the child, may fairly be curtailed in the child's interest.

He may be justly compelled to send his children to school. He may be justly compelled not to send them to the factory.

Compulsory education is the sole salvation of modern government. "Educate your masters" was the only cry that could wake slow-moving England to her duty.

Why is the German a leader in the domain of knowledge, of industry, of military power? Because, for one thing, Prussia led Europe in forcing her people to send their children to school. In the German army there was, in 1904, but one man in every twenty-five hundred who could not read and write. In the French army, in 1906 and again in 1907, there were eighty-three in every twenty-five hundred who could not.

The distribution of one's estate by will, with few limitations, was, up to recent times, left mainly to his discretion, provided he were not grossly unfair to his next of kin; and their title to succeed, if there were no will, was commonly regarded as in the nature of a vested right. Now the

1 Morris vs. Columbus, 102 Ga. 792; 42 L. R. A. 175. As by Kentucky Act of March

22, 1904.

2 An act of Parliament to this effect was passed in England in 1906, Chapter 57, and the courts support it.

3 Berea College vs. Commonwealth, 29 Ky. Law, 284; 94 Southwestern, 623; S.C. 211 U.S. 42 Howard on Matrimonial Institutions, 400, 477, 480; Gould vs. Gould, 78 Conn. 242; 61 Atlantic, 604; 2 L. R. A. (N.S.) 531.

state demands a share for itself, and one that is to be increased progressively with the magnitude of the inheritance.

The artificial person has lost more even than the natural person. Its field of action is continually being circumscribed; its manner of action continually subjected to new limitations.

It may have large interests that would be injuriously affected by legislation favored by a political party on a certain subject, say the tariff. Formerly it could cast its influence against such legislation, contributing to the expenses of the opposing party. Now such action would constitute a crime.

But it is not so with all artificial persons.

Once, if a malicious prosecution were brought against a man, whoever brought it could be held answerable in court for the resulting damages. A corporation had no more immunity from such an action than the humblest individual. The courts looked through its intangible form to the real men who composed it and held it liable for what they did.1

But by the Trades Dispute Act, passed by the parliament of England in 1906, no action for a malicious prosecution nor any other act of private wrong can be maintained against any trade-union whatever.

2

In a recent judgment, dismissing such a case, the judge (Mr. Justice Darling) observed that the object of the act was to alter the law on that subject as laid down in the Taff Vale case," "and to remove tradeunions from the humiliating position of being on a level with other lawful associations of his Majesty's subjects; adding that trade-unions are now super legem, as the medieval emperor was super grammaticam."

The individual laborer has also been often treated by our legislators like a ward incapable of protecting his own interests. The number of hours for which he can agree to work in a day have been cut down, and his liberty of contract in many other directions circumscribed.*

On the other hand, the power of the state has often been exerted to depress that of organized labor.

It has regulated and, under some circumstances, forbidden strikes. It has forbidden boycotts. It has forbidden (though it knew it not) combinations of labor in different states in restraint of commerce between those states.

But there is no time to multiply references to a kind of legislation with which every man before me is familiar, and in shaping which many of whom have had a part.

It is the age of collectivism. The functions of the state multiply. Its circle of activities expands, and the circle of activities around each individual is correspondingly reduced.

1 Goodspeed vs. East Haddam Bank, 22 Conn. 530.

2 Barry vs. Amalgamated Society of Railway Servants, Law Journal, March 2, 1908, p. 174. 8 L. R. Appeal Cases of 1901, 426, Chapter 47.

4 See N. Y. Labor Law of 1906; People vs. Williams Engineering Co.,— N. Y.-; 85 Northeastern, 1070.