In the courts of the States, general direct legislation (referendum) laws were in a few early cases held unconstitutional on the ground that their effect is to establish a democratic in place of a republican - that is, representative - form of government. Thus, for example, in Rice v. Foster4 the court of Delaware declared: "Although the people have the power, in conformity with its provisions, to alter the Constitution, under no circumstances can they, so long as the Constitution of the United States remains the paramount law of the land, establish a democracy or any other than a republican form of government." And this, the court went on to declare, would in effect be done, should the electorate be given a direct legislative power.5

In addition to being in violation of the federal Constitution, direct legislation laws of a general character have frequently been held void as in violation of the state Constitutions in that they attempt to delegate to the people that law-making power which has been intrusted to the legislature. In answer to the point that the law-making power was not thus transferred, but simply the operation of the statutes in question made dependent upon the happening of a particular event, namely, the approving vote of the people, the court of New York, in Barto v. Himrod,6 said: "It is not denied that a valid statute may be passed to take effect upon the happening of some future event, certain or uncertain. But such a statute, when it comes from the hand of the legislature, must be a law in praesenti to take effect in futuro. . . . The event or change of circumstances on which a law may be made to take effect must be such as in the judgment of the legislature affects the question of the expediency of the law; an event on which the expediency of the law in the judgment of the lawmakers depends. On this question of expediency the legislature must exercise its own judgment definitely and finally. . . . But in the present case no such event or change of circumstances affecting the expediency of the law was expected to happen. The wisdom or expediency of the free school law, abstractly considered, did not depend on a vote of the people. If it was unwise or inexpedient before that vote was taken, it was equally so afterward. The event on which the act was made to take effect was nothing else than the vote of the people on the identical question which the Constitution makes it the duty of the legislature itself to decide. . . . The government of the State is democratic, and it is a representative democracy, and in passing general laws, the people act only through their representatives in the legislature."7

4 4 Harr. 479.

5 This case involved only a local option law. Its reasoning, however, applies, and has continued to be applied to general laws. As to local option laws, however, and laws establishing local governments and equipping them with adequate powers, the case may be said to have been overruled.

6 4 Seld. 483.

7 While, as indicated, direct legislation laws of a general character have at times been held unconstitutional, special referendal, or local option, laws, have been held valid, the point being taken, among others, that at the time the federal and state Constitutions were adopted, measures of this character were generally recognized as proper, and construed to provide for delegation of local governing, rather than legislative, powers. Thus Cooley, summing up the argument upon this point, says: "It has already been seen that the legislature cannot delegate its power to make laws; but fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the legislature, in the absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon them the powers of local government, and especially of local taxation and police regulation [liquor laws, etc.] usual with such corporations, would pass unchallenged. The legislature in these cases is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and officers is not understood to belong properly to the State, and when it interferes, as sometimes it must, to restrain and control the local action, there should be reasons of state policy or dangers of local abuse to warrant the interposition." Constitutional Limitations, 7th ed., p. 264. In the earlier cases (Wales v. Belcher, 3 Pick. 508; Godden v. Crump, 8 Leigh, 120; Burgess v. Pue, 2 Gill, 11) general referendal laws were sustained, but since the decision of the Delaware court in 1847 (Rice v. Foster, 4 Harr. 479) the general practice, as indicated in the text, has been to hold them void as a delegation of legislative power.