Referenda and the Court

The constitutionality of referenda giving voters a choice between effective dates was repeatedly upheld by the Supreme Court; see, for example, Bancroft & Riker v. Dumas, 21 Vt. 456 (1849); State v. Parker, 26 Vt. 357 (1854); and State v. Scampini, 77 Vt. 92 (1904). Challenges centered on whether a choice between effective dates left an act incomplete and were thus an unconstitutional delegation of the legislative power; as unsuccessfully argued in State v. Parker, a choice between enactment dates meant “[t]he law was incomplete of itself, when it left the hands of the legislature...”

In Bancroft, the first judicial challenge to this mechanism, the challenge stated that “[n]o power, but the legislative body, can enact laws; and the legislature are bound to exercise the power, thus conferred on them, in the mode prescribed by the constitution; and any law, made in any other mode, is unconstitutional and void. The people have no more constitutional right to decide, by ballot, that an act of the legislature shall go into operation as a law, than they have to decide by ballot, that an act of the legislature shall be suspended and become inoperative. The representative cannot transfer his duty, even to the whole people; much less can he to a portion of the people.”

The Court responded, “Was not our statute a law in itself, when passed by the legislature? Had it not the force and authority of law, independent of any action of the people?...The law was complete in itself, when passed by the legislature, and did not require the creative power of the people, or of any body; to give it vitality, or force.”

The Court went on to find that “[l]aws are often passed, and, by the terms of the statute, made to take effect upon the happening of some event, which is expected to occur;...So it has not been unusual for the legislature to pass laws altering the lines of towns, with a proviso, that the same should not take effect, until the several towns in interest should by vote signify their assent to the same.”

On a different issue, in Martin v. Fullam, 90 Vt. 163 (1916) the Court clarified that referenda held on town meeting day were state, not town, elections.