INTRODUCTION

For the past few years the recall has occupied a place well to the front among the measures designed to give the people direct control of their government affairs. Originally a companion of the movement for the initiative and referendum, the recall is now considered distinctly on its own merits rather than as part of a larger scheme. The latest tendency is to broaden its scope to include judicial officers and even a special class of decisions rendered by the courts.

The recall has been defined as "a legal provision for the retirement of a public officer before his term of office expires, if he has forfeited the confidence of the voters." The manner in which it is employed varies considerably in the different states but the usual form of procedure is as follows: A petition, containing a brief statement of the charges preferred against the official sought to be recalled, and signed by a fixed percentage of the voters of the district from which he was elected, is filed with the proper recording officer or clerk. If the petition is properly presented and bears the requisite number of signatures, within a stated time an election must be called at which the officer in question must stand for re-election, usually competing with other candidates for the same office. In most cases a majority vote decides the result of the election.

Although instances of the recall, or something closely resembling it, have been found in Greece and in the governments of the early Germanic tribes and of our colonies, it was first employed in its present form in Switzerland along with the initiative and referendum, where it is still used occasionally. The recent movement for the recall in the United States began in Los Angeles in 1903, where it was employed in a form very similar to that used in some of

the cantons of Switzerland. San Diego, San Bernardino, Pasadena and Fresno adopted it in 1905 and Seattle followed suit a year later. The movement spread gradually, and the recall is now employed in many cities all over the United States. The states of Alabama, Idaho, Kansas, Louisiana, Nebraska, Nevada, New Jersey, North Dakota, Washington, Wisconsin and Wyoming, have passed state laws under which cities of a certain size may adopt charters providing for a commission form of government, and including provisions for the recall. Other states have permitted certain of their cities to adopt the commission form of government and many of these cities have included provisions for the recall in their charters.

Legislation providing for the recall of state officials has been adopted in the states of Oregon, California, Arizona, Nevada, Colorado, Washington, Idaho and Michigan. In the first five states mentioned, the recall applies to judicial officers also, and in Colorado, it has been extended to include the recall of judicial decisions. An amendment to the constitution of Arkansas providing for the recall of all state officers including judges, was accepted by the voters in 1912, but was held unconstitutional by the courts because the measure was not properly presented. The legislatures of Kansas and Minnesota recently enacted legislation adopting similar amendments to their constitutions, and the legislature of Wisconsin adopted a resolution for the recall of all elective officers except judges, but these measures must be ratified by the voters before going into effect. Legislation for the recall has also been attempted in North Dakota, Louisiana, Mississippi, Ohio and Pennsylvania, but without success.

An interesting feature in the history of this recall movement is the increasing tendency to apply it to the judiciary, both to the judges themselves and to their decisions, and the serious opposition to such extension on the part of the American Bar Association. An illustration of this opposition was given when President Taft refused to sign the resolution admitting Arizona as a state into the union, until the clause in her constitution providing for the recall was amended to include the words "except members of the judi

ciary." This was done by special election on December 12, 1911, but after admission to statehood, the first legislature of Arizona proposed as a constitutional amendment that the recall be again extended to include judges, and this amendment was adopted in November of the following year.

For two years the American Bar Association has maintained a committee which has for its special object the carrying on of a campaign of education to show the harmfulness of the recall as applied to judges and to decisions. The 1913 report of this committee states that over 350,000 pamphlets were distributed during the last year alone, in addition to securing the publication of many articles in newspapers and magazines. Public discussions have also been participated in on many occasions especially in states where the subject was under discussion in the legislature.

The newest feature in the recall movement is the attempt to apply it to the recall of judicial decisions. This form of recall was first proposed in modern times in the Australian Constitutional Convention of 1895-1901, where it was discussed and finally rejected as repugnant to the proposed Constitution. This Constitution was adopted in 1901 and established a judicial system very similar to that of the United States with practically the same functions. Colonel Roosevelt, first in his editorials in the Outlook and then more definitely in his Columbus and Carnegie Hall speeches, urged the adoption of the recall of decisions upon the states of this country, as more effective to accomplish what he considered most desirable to obtain-that is a remedy for that class of decisions of the courts where legislation passed for the social welfare has been pronounced unconstitutional because it violated the "due process of law" clauses of the Constitution. Colonel Roosevelt has defined his plan as follows:

"I am proposing merely that in a certain class of cases involving the police power, when a state court has set aside as unconstitutional a law passed by the legislature for the general welfare, the question of the validity of the law be submitted for final determination to a vote of the people, taken after due consideration."

So far the only state to adopt the recall of decisions is

Colorado, although similar laws have been proposed in Illinois and Massachusetts, and even in the Senate of the United States. While no trial has yet been made of the recall of decisions in Colorado, the form in which it was enacted seems to have given rise to a curious situation. Mr. Rome G. Brown, Chairman of the Committee of the American Bar Association to Oppose the Recall, says:

"The recall of judicial decisions in Colorado applies

to all decisions of the Supreme Court declaring unconstitutional as contravening the state or federal constitution, not only any law of the state, but also charter provisions or charter amendments of cities acting under Chapter XXthat is, all cities of the first and second class having home charters. In the case of these cities, the decision of the Supreme Court may be recalled by the majority of the votes actually cast at an election of the city in question called upon to pass upon the decision. This is the establishment of a sort of 'local option' as to the enforcement of constitutional limitations. It is manifest that this illustrates the viciousness of the decision recall. One city might uphold the Constitution and another might abrogate it, both as to the same provision. More than that, the same city might vote to uphold a certain constitutional provision in one case, and later abrogate it in an exactly similar case."

Since the recall of judges and the recall of decisions involve questions not belonging to the discussion of the general subject of the recall, it has seemed desirable to group the reprints, making a separate division of the book for each of the three questions. The bibliography has been similarly subdivided, and two briefs are furnished. Students desiring material in opposition to the judicial recall will find it advisable to keep in touch with the Committee of the American Bar Association to Oppose the Recall, to whose present chairman, Mr. Rome G. Brown of Minneapolis, grateful acknowledgement is made for the loaning of material for examination and for much valuable information.

August 20, 1913.

THE RECALL

GENERAL DISCUSSION

Annals of the American Academy. 43:216-26.

September, 1912.

Recall-Its Provisions and Significance.

H. S. Gilbertson.

The Growth of the Idea

For the first legal enactment of the recall principle we are indebted to the charter of Los Angeles, which contained the provisions first in 1903. During the next four years a number of other California cities adopted the idea. In 1906 it was incorporated into the charter of Seattle, Wash. Soon also the initiative and referendum advocates of Oregon became interested in it as a supplement to their own "People's Power" measures, and by employing the intiative, they succeeded in getting it inserted in their constitution in 1908, where it was made applicable to all elective officers, local and general, including the judiciary. It may then be said to be one of the peculiar contributions of the Pacific coast to the present movement, a movement that looks toward a more direct participation of the rank and file of the people . in affairs of government.

But the circumstance which gave to the recall its greatest vogue was its incorporation in the commission government laws of Iowa, and almost simultaneously into those