135. Expert Drafting.

and, furthermore, that direct proceedings, in the nature of quo warranto should be allowed to the representative of any interest affected by the act. Even better, perhaps, would be the constitutional requirement that

no statute should be questioned in any event by reason of the alleged violation in specific respects of a formal requirement where prior to its approval the attorney general had given his written opinion to the effect that its form or the procedure of its enactment did not in those specific respects violate the constitutional requirements. .

After that chance has been given and no one has availed himself of it, the violated constitutional provision becomes merely a technical loophole of escape from the law, and the constitution makes it possible, not to protect legitimate interests, but to defeat the legislative will.3

That these various restrictions have failed to make American legislation technically equal to that of England or Germany where no such restrictions exist show how futile it is to attempt by mechanical devices

to bring about what can be achieved only by sound tradition and by voluntarily accepted restraint and influence.

Professor Freund makes two significant suggestions for improvement,

(1) The employment of a staff of expert draftsmen, trained for the work of drawing up statutes, and secure in their positions as part of the legislative service. To the extent necessary to secure this the provision that each house may elect its own officers should be abrogated.

(2) In order to secure expert criticism of bills and expert information, on demand of the governor or the presiding officer of either house, any bill should

be referred for opinion and suggestion to any designated official bureau or commission; upon its being so referred action to be postponed for not exceeding a specified period; the legislature to be free to accept or reject any suggested alteration. . . . Emergencies would have to be provided for, but only under effective safeguards; as. e. g., a special message of the governor. declaring the urgent necessity for the immediate passage of the bill."

ib., 108.

4ib., 109-10.

Legislative reference libraries and bureaus of expert draftsmen have been established in a few states, notably Wisconsin. See McCarthy, Charles, The Wisconsin Idea, ch. VIII, esp. pp. 196, seq., and 214, seq.

136.

Executive.

Professor Freund believes, furthermore, that the executive Coöperation should take a more active and responsible part in legislation-of the that the governor should be allowed to introduce bills and be given more opportunity for critical scrutiny of their technical character; also that the legislature's acceptance of gubernatorial suggestions should be encouraged."

In most European systems the two chambers represent different political elements of the state, and the executive has practically the monopoly of initiating measures. The government is thus a petitioner, parliament a critic and the final judge. The reciprocal interaction of different organs of the body politic creates all around a heightened sense of responsibility for legislation.

TENNESSEE NOTE.-The Tennessee legislature has, during its last half dozen sessions, been distinctly more prolific than ever before. In 1909 nearly 600 bills became law; in 1911 the number was 749; only 73 of which were public acts. The printed acts of 1915 comprise 180 of a public nature, covering 530 pages, and 697 of a private nature, covering 2,230 pages. There were 57 house resolutions, 30 house joint resolutions, 30 senate resolutions and 53 senate joint resolutions. The legislature was, as usual, in session seventy-five legislative days. It took two recesses, however, of about one month each, so that final adjournment did not occur for more than five months after it convened.

The constitutional provisions governing the legislature are contained chiefly in Article II, which provides that the legislative authority of the state shall be vested in a general assembly of two houses. The members hold office for two years from the day of election. There are 99 representatives and 33 senators, apportioned according to the number of qualified voters. The quorum, privileges of members and various procedural requirements and regulations of the form of acts are among the other provisions. The governor's veto may possibly be overridden by a smaller vote than is required originally to pass the act. Passage See Ala. IV, 70.

'See Ala. V, 125; Ill. Act of 1905 relative to Chicago Ordinances.

Freund, op. cit., 101. Interesting suggestions concerning problems of legislation, see Lindsay, S. M., Reciprocal Legislation (proposing that certain legislation, like child labor laws, which may be detrimental unless other states pass similar laws, should be enacted to go into effect when a certain number of other states should likewise have passed them)-Political Science Quarterly, XXV. 437-457; Bruncken. Ernest, Defective Methods of Legislation, American Political Science Review, III, 167, and Some Neglected Factors in Law Making, ib., VIII, 222.

Several acts passed by the legislature, e. g., an anti-tipping bill and a bill practically abolishing capital punishment, were vetoed by the governor; but after the publication of the acts the supreme court declared that the veto, following a recess of the legislature, came too late.-City of Johnson City v. Tenn. Eastern Electric Co., 133 Tenn., 632 (Jan. 8, 1916). Const. III, 18. On Feb. 1 the attorney-general gave an opinion that these acts must be published in the same form as other acts.

For constitutional provisions in detail, see text in the appendix.

over the veto requires the vote of a majority of the members elected to each house. Original passage requires a majority of all the members to which each house is entitled under the constitution. The legislature cannot suspend any general law for the benefit of an individual nor pass any law for the benefit of individuals inconsistent with the general law of the land. Nor can it pass any law granting any right or privilege unless "extended to any member of the community who may be able to bring himself within the provisions of such law." Corporations may be created only by general laws. These are the only restrictions upon the legislature's authority to pass local, special and private bills.

Each house is authorized to determine the rules of its proceedings. Special rules are frequently adopted to meet particular exigencies and special sessions usually adopt their own sets of rules. But in practice there is very little change from session to session either in rules of order or standing committees.

The work of law-making, that is to say shaping important bills and passing upon bills introduced by members, is, of course, in the hands of the committees, appointed by the speakers of the house and senate. To take a single example of committee organization, there were in the House of Representatives, for the regular session of 1913, thirty-six standing committees containing from seven to twenty-eight members each, or an average of about sixteen. The speaker appointed one of the members of each committee chairman and another secretary. Membership in between five and six committees was the average for each representative. Obviously the importance of committee functions varies enormously, for instance, from the important committees on Finance, Ways and Means, on Judiciary and on Rules to such comparatively uncalled for ones as those on immigration or military affairs. The following is a list of the committees and the number of members of each,Agriculture (26), Banks (18), Charitable Institutions (21), Claims (17), Commerce (16), Constitutional Conventions and Amendments (21), Corporations (17), Education (28). Elections (16), Enrolled Bills (8), Federal Relations (16), Finance, Ways and Means (16), Fish, Forestry and Game (20), Insurance (21), Internal Improvements (17), Immigration (17), Jails and Workhouses (18), Judiciary (25), Labor (15), Liquor Traffic (13). Manufactures and Mining (19), Military Affairs (19), Municipal Affairs (19), New Counties and County Lines (21), Penitentiary (20), Pensions (21), Public Grounds and Buildings (21), Public Printing (19), Public Roads (24), Public Utilities (16), Railroads (19), Redistricting (8), Retrenchment (20), Rules ( 7), Sanitation (20), Waterways and Drainage (20).

III, 18 and II, 18. 3XI, 8.

For the cases on the subject, see Shannon, R. T., The Constitution of the State of Tennessee, pp. 528, seq.

Held not to include municipal corporations,-Luehrman v. Taxing Dist., 2 Lea (70 Tenn.), 431.

eRules of Order, House of Representatives, 1913. Prepared by Chas. Cason, chief clerk.

CHAPTER XI.

THE MAKING OF STATUTE LAW BY THE ELECTORATE DIRECTLY.1

137. Nature and

of Initiative

endum.

By far the most striking and significant of modern limitations upon the prerogative of state legislatures are the systems Development of political machinery whereby the electorates of certain states and Refermay enact laws on their own account or nullify enactments of the legislature. These are known respectively as the initiative and referendum. It is, of course, impossible for the electorates of political bodies like the states to assemble for the purpose of legislating; consequently when direct legislation is resorted to the process of voting by ballot for or against specific propositions must be employed.2

So far as statute law is concerned the referendum-which antedates the initiative-first came to be practiced about the middle of the nineteenth century. It arose from a practical demand for a check upon the legislature when dealing with matters that involve peculiar temptations or the pressure of local and other interests and was early applied to the selection of sites for state capitals and public buildings, to the contracting of state debts, to taxation in excess of a fixed amount, to the charters of banks, to the extension of the suffrage, and to a few other matters.3 Many constitutions make express provision for the referendum of certain classes of acts* and occasionally legislatures have referred questions to the people without constitutional authorization. The latter practice of shifting leg islative responsibility has, however, been disallowed by the

General References: Barnett, Jas. D., The Operation of the Initiative, Referendum and Recall in Oregon; Munro, W. B., Ed., The Initiative, Referendum and Recall; Oberholtzer, E. P., The Referendum, Initiative and Recall in America; Lowell, A. L., Public Opinion and Popular Government; Beard and Shultz, Select Documents on the State-Wide Initiative, Referendum and Recall.

"The referendum began in America in 1778, when Massachusetts first submitted to popular vote the ratification or rejection of the State Constitution. Direct action on constitutions and amendments will be discussed in Chapter 22. In the present chapter discussion is confined chiefly to the statutory initiative and referendum-which has, of course. tended somewhat to lessen the distinction between fundamental and statute law.

Lowell, op. cit., 172.

4e. g., N. Y., VII, 4; Ky. tax amendment, 1915.

138. Illinois "Public Opinion

System."

139. Direct Legislation in the States.

weight of judicial opinion and Massachusetts, desiring to authorize the legislature to order referenda of general legislation, felt the necessity of passing a constitutional amendment for the purpose."

In 1901 Illinois' adopted a law under which ten per cent. of the registered voters of the state may secure the submission of "any question of public policy" to the entire electorate. If the electorate approves the proposition, the legislature is supposed to understand that public opinion demands its enactment into law. In other words, the legislature is advised by the people to enact it into law. Its members, however, are under no compulsion to obey their constituents.

In 1898 the general compulsory referendum of acts of the legislature by popular petition—and with it the constitutional right of a small number of electors to propose enactments for acceptance or rejection by a popular vote-was introduced into the United States. It was due in part to conscious imitation of the Swiss, who had for more than a generation been experi menting with the idea, but it appeared chiefly as one phase of the growing dissatisfaction with the state legislatures. Though having a theoretic basis in the supposed desire of the sovereign electorate to express its wishes in law with more certainty and directness than had been hitherto possible, the adoption of the initiative and referendum provisions were more pronouncedly mere practical expedients devised to meet the present need of curbing the legislature and accomplishing what it leaves undone.

The first state to adopt these expedients was South Dakota. Seventeen other states have followed the lead, the latest of which was North Dakota in 1914. Two states, New Mexico and Maryland, have adopted the referendum without the initiative, the latter at the November election of 1915. The initiative is considered direct when the measure proposed must be voted upon by the people without being passed upon by the legisla

See Barto v. Himrod, 4 Seld. (N. Y.), 483 (1853), holding void "act establishlishing free schools throughout the state" (Laws of 1849, ch. 140) because dependent on popular vote.

1913, Amend. Art. XLII.

Laws of Illinois, 1901, p. 198. Not more than 3 propositions at any one election. Questions may be submitted to local electorates on petition of 25 per cent of the

voters.