pointed by the Senate, which shall be a standing committee on special, private and local legislation. Before reference to a committee, any special, private, or local bill . . . shall be referred to and considered by such joint committee and returned to the house in which it originated, with a statement in writing whether the object of the bill can be accomplished under general law or by court proceeding; whereupon, the bill, with the accompanying statement, shall take . . . [the usual course]. The joint committee may be discharged from the consideration of a bill by the house in which it originated in the manner provided . . . for the discharge of other committees. Elections Legislature. In a number of the states the burden of electing certain non- 130. legislative officers1 is placed upon the legislature. There are by the a few procedural regulations, for instance, that the vote must be entered upon the journal2 and that voting shall be viva voce.3 Vermont is careful to declare that such elections shall be free and voluntary.* Publicity of Legisla During the making of law and the other functioning of the 131. legislative assembly, most constitutions require that the houses and Record shall be open to the public. In Kentucky, Pennsylvania' and tive Sessions. Tennessee printing presses are declared to be free to every person who wishes to discuss the proceedings of the legislature. When "business" or "public welfare" or the opinion of the house or the opinion of two-thirds of the house so demand, exceptions may usually be made to this rule." A few constitutions specify that the senate, while in executive session, may close its doors.1 These rules usually apply to the houses when sitting as committees of the whole-but fewer constitutions especially provide therefor. Alabama discreetly provides that no person may be admitted to the floor of either house while in session, except members of the legislature, officers and employees of houses, the governor and his secretaries, representatives of the press, and 1e. g., Supreme Court judges (R. I. and other states). e. g., Ala. IV, 83; S. C. III, 20 (1915). 3e. g., N. C. II, 9; V, 6; Md. II, 4; Wis. IV, 30. *II, 51. e. g., Ala. IV, 57; Ark. V, 13; Conn. III, 11; Id. III. 12; N. H. II, 8; 0. II, 13; Vt. II, 8. €8. SI, 19. e. g., Ark. V, 13; Cal. IV, 13; N. H. II, 8; Ala. IV, 57; O. II, 13. 1e. g., Fla. III, 13; Colo. IV, 6. 2IV, 57. 132. Adjourn ment. 133. Suggestions other persons to whom either house by unanimous vote may extend the privileges of its floor. The constitutions almost invariably require each house to keep a journal of its proceedings, which usually must be published from time to time, except, in some states, such parts as require secrecy.3 One house may not adjourn without consent of the other for more than two days in some states, nor for more than three days in a number of others, to which prohibition is often added, "nor to any other place." When the legislature has finally adjourned the people of most of the states, breathe a sigh of relief. Newspaper paragraphers reflect the feeling by reprinting their stock remarks of congratulations not only to the citizens, but to the governor who, now that he "has gotten the legislature off his hands," may be free to work for the public welfare. The eighteenth century trust in the legislature has altogether disappeared; from the position of guardian of liberty it has degenerated into a thing of opprobrium and reproach. Justly or unjustly this has become the fact and thoughtful students of politics have given a great deal of attention to the problem presented by a state of affairs so obviously menacing to democratic government. Reform suggestions usually seek greater simplicity of action and greater responsibility. Such proposals as a one-house asfor Reform. sembly composed of a few men representing large districts, who shall devote all or a large proportion of their time to the work of studying the needs of the state and drafting adequate laws, are becoming frequent. The fact that special commissions are often employed at high salaries to ascertain facts and write them into bills suitable for introduction into the legislature naturally raises the question why do not the people elect members of the legislature who can do more effective work themselves. Larger districts and the increased attractiveness of membership in a small, select body, are thought by many persons to furnish a way to a superior legislative personnel. By adopting genuine se. g., Ala. IV, 55. In La. (165) promulgation must be in the English language. e. g., N. Y. III. 11; Kan. II, 10 (Sundays excepted). e. g., Ark. V. 28. See, e. g., N. D. II, 51, for exceptions. In some states the governor may adjourn the legislature (e. g., Fla. IV, 10) if the houses disagree as to the time. Sometimes the fact must be certified to him by the presiding officer of one or both houses (e. g., Ark. VI, 20; Colo. IV, 10). home rule provisions for cities and counties and so leaving the legislature free to work for the state only, much improvement in the character and technique of its acts might be accomplished. A legislature composed of careful, conscientious men who really represent the people will doubtless furnish the only genuine guarantee of a reduction in the number of laws and their improvement on the one hand and the passage of needed -but now often neglected-laws on the other. Constitu Restrictions Naturally as the legislatures have declined in popular favor, 134. constitutional restrictions upon their action have grown apace. tional This is true in the first place of technical and procedural limi- Discussed. tations which, as has been indicated, have become various and complicated. In the second place, it has tempted-even forced -constitutional conventions into precarious paths away from strictly fundamental enactment-the statement of principles and construction of the framework of government-into the realms of legislation pure and simple. This tendency has resulted not only in the profuse and code-like instruments of new and radically inclined states like California and Oklahoma, but finds its most characteristic expression, perhaps, in the six thousand word article or statute on corporations in the Virginia constitutions and the twelve thousand words by means of which the constitution of Louisiana' endeavors to regulate to the smallest detail the state's judiciary establishment. The longer the constitution, of course, the more restrictions of this kind it is likely to contain.' The constitutional restrictions as they have become numerous have created new problems. Though this "constitutional supremacy," says Professor Ernst Freund,2 is meant to be the domination of the legislature by the people, in effect it must mean the domination of the legislature by the courts. While it is true that the court applies only the checks which it finds in the constitution, it is also true that it is the court that finds the checks. In making a constitution, the people, so far from speaking directly, interpose between themselves and their will two organs instead of one. "See ch. 18 and ch. 21. Art. XII. Concerning the additional encroachment of the people themselves, through vesting in the electorate the powers of the initiative and referendum, see ch. 11. The Problem of Adequate Legislative Powers Under State Constitutions,Proceedings of Academy of Political Science, V, 1, pp. 98, seq. (99-100). Nothing illustrates so strikingly the demoralization of American legislative bodies and the slight esteem in which they were held by the people, Professor Freund continues, as the practice of transforming certain of the ordinary procedural rules "into constitutional restraints."3 A rule may be salutary as such, and vicious as an absolute requirement. If a body cannot be relied upon to frame proper rules or to respect them when adopted, there is something fundamentally wrong. The presumption is against the wisdom of the unyielding restraint or requirement. Constitutional conventions should therefore carefully revise the procedural provisions, which are too often adopted simply because they are found in other constitutions. Admitting that some of the procedural restraints are salutary -particularly those the enforcement of which may be easily verified, like requiring the final vote on a measure to be entered on the journal, he cites others that are "quite impracticable," for instance, "that a bill be read at large three times." In the case of long bills this must be ignored, and the clerk will simply read the first and last few words; and the necessary fraud will be covered up by a false entry on the journal. Some can be reduced to unmeaning and perfunctory forms, so that really nothing is gained by the requirement; c. g., the Mississippi provisions above referred to, or the recitals indicating an emergency. Some give rise to difficult questions of construction; as, e. g., whether an amendment alters the subject matter of the bill, or still more, whether it alters it substantially. The sound policy of constitution making is to impose procedural requirements only under the following conditions: (1) that they serve an object of vital importance; (2) that they can be complied with without unduly impeding business; (3) that they are not susceptible of evasion by purely formal compliance or by false journal entries; (4) that they do not raise difficult questions of construction; (5) that the fact of compliance or non-compliance can be readily ascertained by an inspection of the journal. The application of these tests would lead to the discarding of most of the existing provisions, without any detriment to legislation, as is proved by the experience of the states which never adopted them. As to those retained, the judicial power to enforce compliance should be limited in accordance with the recommendations зib. 103. The older constitutions when they contained such regulations made them directory only and without effect upon the validity of legislation. *Requiring committee to report on sufficiency of title. See, also, supra, p. 178. which will be set forth in connection with the provisions of the class next to be discussed." 6 This next class includes formal or style requirements." most important of these are in regard to the title of bills. The first provision regarding title to appear in a state constitution was the clause in the Georgia constitution of 1798' which prohibited the passage of any law or ordinance "containing any matter different from what is expressed in the title thereof." The New Jersey constitution of 18448 in addition to the requirement of title provided for unity of subject matter and from these beginnings the several requirements of present constitu tions have been developed and have on the whole, Professor Freund thinks, proven beneficial. They have, however, he says, given rise to an enormous amount of litigation, they have led to the nullification of beneficial statutes, they embarrass draftsmen, and through an excess of caution they induce undesirable practices especially in the prolixity of titles, the latter again multiplying the risks of defect. While the courts lean to a liberal construction, they have in a minority of cases been indefensibly and even preposterously technical, and it is that minority which produces doubt, litigation, and undesirable cumbrousness to avoid doubt and litigation.1 Originally devised to prevent fraud and log-rolling, public opinion has now so far advanced, probably, as to render them unnecessary. The benefits that may arise from their abolition are consequently practicable. If, however, they are to be retained, Professor Freund suggests that the validity of a statute shall not be allowed to be questioned by reason of the alleged violation of any of these provisions in any action commenced later than a brief stated period either after the expiration of the session of the legislature or after the act has taken effect;2 Dib., 104. As early as 1771 the instructions given to William Tryon, newly appointed royal governor of New York, commanded, so much as possible, "in the passing of all laws that whatever may be requisite upon each different matter be accordingly provided for by a different law without intermixing in one and the same act such things as have no proper relation to each other.' 7I, 17. SIV, 7, 4. "Op. cit., 107. In addition to formal limitations upon the legislature there are, of course, such limitations as those "resulting" from positive provisions-as, if the constitution says an organ of government shall have a certain power and it is held that the legislature cannot make that power more extensive; and such as are "inherent" in the exercise of certain powers provided,-as that the power to tax must be exercised for public purposes only,-ib., 110. 2ib. |