i ; : 1 i 1 ■• : i ^ ©otJttrfl Hmwisitg pitotg THE GIFT OF .^yrkgAjUtrr /Q.ftVsJL^t ^ fJ(%<^f*J^-VV^«rr«y^ ,k^&.^j^.i"^ ^"^..priAi 7583 Jl 10 '37 -•a 2 4 "38 •^j:^ fj41f OiILiXl2Z2J' Cornell University Library JK2421 .A16 V.1 The revision of the state constitution olin 3 1924 030 487 999 Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030487999 PROCEEDINGS OF THE ACADEMY OF POLITICAL SCIENCE IN THE CITY OF NEW YORK Volume V] OCTOBER, 1914 [Number 1 THE REVISION OF THE STATE CONSTITUTION GENERAL PRINCIPLES AND MECHANICS OF REVISION THE STRUCTURE OF STATE GOVERNMENT PUBLISHED QUARTERLY BV THE ACADEMY OF POLITICAL SCIENCE Colombia University ii6th Street and Broadway, New York BnUred at ttntil November 20, 1914. (82) THE CONSENT OF THE GOVERNED 83 citizens voted by local districts or wards; but so long as all free Romans were held to military duty, they all voted. When the Roman armies became mercenary forces, their commander and paymaster became lord of the Roman world and voting disappeared. In the medieval and modern history of Europe, the proportion of the population whose consent must be obtained in the oper- ation of government has broadened or narrowed with the right and duty of exercising armed force to protect the fron- tier, to maintain internal peace, and to secure submission to the law. In the eighth and ninth centuries of the Christian era, when the tribal armies of Western Europe, fighting on foot, were unable to resist the Moorish horsemen and it be- came necessary to meet this light cavalry with a superior heavy cavalry, knight service became the basis of political power. Those who furnished bodies of knights were the only persons whose consent was important. When at a later period a new and efficient infantry was developed, first in the shape of pikemen, and then, after the invention of gunpowder, in the shape of musketeers, the cities which could equip such forces began to count politically ; and when, as in many of the cities, the duty of defending the walls as well as that of main- taining the internal peace was imposed upon all able-bodied male citizens, democratic government reappeared. When, at the close of the middle ages, some of the kings and princes, by taking money in lieu of feudal services and by developing other fiscal rights of the crown, were able to hire and equip bodies of soldiers which replaced the feudal and city troops, they were in a position to dispense with the express consent of any of their subjects. In the nineteenth century, when the hired armies were replaced, first by volunteer armies, then by 'drafted armies, and finally by armies based on universal mili- tary training, the manhood suffrage of the early tribe reap- peared in Western and Central Europe. In England the line of political development was somewhat different. Here the monarchy was never able to break the power of the feudal aristocracy so completely as on the conti- nent ; and the great landed estates, although freed from feudal (83) 84 REVISION OF THE STATE CONSTITUTION [Vol. V duties, retained the power they had formerly earned by ser- vice. Naturally, under these circumstances, the theory devel- oped that the parliamentary franchise existed to protect prop- erty; it was even asserted that the state was based on prop- erty; and the gradual widening of the suffrage in the nine- teenth century was based on the claim of other economic in- terests to their share of political power. These English the- ories we inherited or borrowed, and they were largely invoked in the early part of the last century by those who supported property qualifications and opposed the demand for universal manhood suffrage in the United States. To-day, however, alike in England and in the United States, suffrage may be regarded as resting, in principle, on the his- toric basis of armed service that may be exacted; not alone upon the duty of service in foreign or civil war, but also on the duty to maintain the peace and to aid in the enforcement of the law. Under our national and state laws every male citi- zen within certain age limits may be called upon for such service. This duty is a more defensible basis of suffrage than the protection-of-interest theory. This latter theory assumes that, in some mysterious way, general social interests will be realized through the clash of conflicting class interests. It seems certain, on the contrary, that social interests are ef- fectively secured only through the subordination of class in- terests to the general good. II It must be conceded that the antiquity of any social or politi- cal arrangement affords no conclusive proof of its continued necessity. In course of time all such arrangements are sure to be superseded or modified. At any given time, however, there is at least a presumption in favor of the existing system. As far as we can judge from history, social progress demands, at any given time, the modification of only a relatively small part of the entire social order. Even in such periods as the late Roman Empire and the old regime in France, the great majority of the existing institutions, laws and customs were well adapted to contemporary conditions ; and what was swept (84) No. I] THE CONSENT OF THE GOVERNED 85 away in the Teutonic conquests of the fifth and sixth centuries and in the revolutions of the eighteenth and nineteenth cen- turies was far less important than what persisted. The per- ennial belief of the radical reformer that the greater part of the social order needs to be changed, and that there is a pre- sumption against any existing institution in proportion to its antiquity, springs from the concentration of his attention upon the things which he dislikes. This very concentration causes him to overlook the far more numerous things with which even he is content. The presumption in favor of an ancient institution is never- theless one that may be overthrown by evidence ; and it is al- ways legitimate to inquire whether it is not now antiquated. The historical argument in favor of manhood suffrage is com- monly met by the assertion that conditions have changed. In the middle of the last century it was claimed that human so- ciety had passed from the militant to the industrial type of organization. During the last fifty years, however, the civil- ized portion of the world has been more militant than dur- ing the preceding fifty years. At present it is claimed, more vaguely, that we have at least emerged from the period when the state should be viewed as the organized force of the com- munity and law should be regarded as an enforceable system of order. This claim rests, unfortunately, rather on aspirations than on facts. There is really no evidence that the nature of the state or that of law has materially changed. I do not assert that the state has ever been based on force alone. On the con- trary, I emphatically repudiate any such theory. Even in the earliest stages of political organization, economic interests and what we may fairly call ethical forces have played an irrfpor- tant part. It is nevertheless true that until the physical force of the community is brought under central control there is no state; and whenever this central control ceases to exist the state is in abeyance. That is to-day the condition of Mexico. When in November, 1914, President Gutierrez announced that the agreement between the leaders of the warring factions at Aguas Calientes had re-established " the government of the (8S) 86 REVISION OF THE STATE CONSTITUTION [Vol. V people," he of course meant government by the consent of those people whose consent counted; and we must admit that, if the agreement had been generally and loyally observed, it would have gone far to re-establish the Mexican state. It is still true, moreover, that force is the characteristic and proper implement of the state — the means by which the state realizes its purposes. That the state requires this implement in its international relations, and will probably require it for an indefinite future period, need hardly be argued to-day. Visions of universal peace appear only after long periods of peace. And it is quite clear, as Mr. Roosevelt has recently said, that if international war is ever to disappear, it will be suppressed through international federation and the develop- ment of an efficient international police. Even in the world state armed force will be required. In the internal operation of government, also, force is still the characteristic and proper tool of the state. So far from being true of early forms of state alone, this becomes increas- ingly true in proportion as society grows more civilized and the state attains its highest development. An imperfectly de- veloped state permits physical coercion by groups and associa- tions within its territory. The fully developed state restricts the use of physical force, except by individuals in self-defense, to its official agencies : it asserts complete monopoly of force. In our conception of law, again, the potential support of physical force cannot be disregarded. I do not assert that the substance of legal rules has at any period been determined by physical force ; might has never made right. I maintain, how- ever, that the rule that cannot be supported by physical force is not law, and is not any more like law to-day than in the earliest stages of legal development. A proposal to make a law involves two considerations : first, is the proposed rule de- sirable? second, shall it be supported by physical force? The first question is usually determined before voting begins. It is settled by all those complex processes through which public opinion is formed. In the formation of public opinion women have always played an important part. It is only in answer- ing the second question that they have no voice. (86) No. I] THE CONSENT OF THE GOVERNED 87 From these points of view, it seems wholly reasonable that the determination of state policy and the making of law, di- rectly or through chosen representatives, should be left to that part of the community which may be called upon to support the policy or to enforce the law with arms. Broadly — and all social arrangements are necessarily made on broad lines — this means that such matters should be left to the adult males. Ill So long as force plays any part in the determination of policy, in the operation of government and in the maintenance of the legal order, there is possible and even probable danger in the inclusion of women in the electorate. We are accus- tomed to think that when we have voted, the defeated party must necessarily accept the result. The earliest method of counting votes was probably by division. The division was prob- ably, at the outset, a line-up for a fight, and the submission of the shorter to the longer line was due to ocular demonstration that resistance would be hopeless. To-day we come nearest to such a demonstration when we hold a referendum, submit- ting a proposal to the direct vote of a masculine electorate. But under the representative system it is not always certain that the victorious party is really a majority. And when, as sometimes happens, the struggle is one in which important sec- tional or class interests are at stake and party feeling rises to passion, if the defeated party does not believe that the vic- torious party really possesses superior physical force, there is serious risk that it will resort to the wager of battle. In our own country, in i860, Lincoln had a majority in the electoral college. The Southerners knew, however, that he was a minority president, and they declined to accept the result. In England, in 1913, an Irish home-rule bill was passed by a considerable parliamentary majority. The men of Ulster and the Unionists asserted that this majority in Parliament did not represent the majority of the men in Great Britain. A referendum was suggested to test the point, but it proved im- possible to carry such a proposal through Parliament. James Russell Lowell once said that voting was counting heads in (87) 88 REVISION OF THE STATE CONSTITUTION place of breaking them. Here was a case where the count could not be made and the breaking was imminent. It seems highly probable that civil war was averted only by the out- break of the European war. We are accustomed to think, again, that laws and judgments of courts are practically self-executing. This impression is in part due to the fact that the more perfect our administra- tive machinery becomes, and the more certain it is that force will be used if it be needed, the less often is it necessary to use force. But when class interests are involved and class feeling runs high, obedience to the law is by no means assured. In some of our states the struggle between employers and em- ployed is so keen as to amount to continuous latent war; and not infrequently it comes to open war. A similar situation ex- ists in some of our states in consequence of race hostility. When the results of an election are peacefully accepted by the defeated party, and when laws and judgments appear to be self-executing, it seems highly probable that acquiescence still depends to some extent upon the conviction that resistance is hopeless. If now we inject into the electorate that portion of the adult population which does not represent fighting force — which was taken off the fighting line when men advanced from savagery to barbarism — what will be the effect upon the men who have been defeated in elections or who object to the enforcement of particular laws? Their disposition to acqui- esce will certainly not be increased. How far it will be les- sened depends on two further questions. The first of these questions is whether, in any given case, these men are likely to believe that the election was carried or the law established by the votes of women rather than by those of men. Where this is not ascertainable, they may choose to believe whatever they wish to believe. The second and more fundamental ques- tion is, how far the most civilized nations of the present day have emerged from barbarism and become wholly and sweetly reasonable. It is not until this last evolution is completed that men will always and unhesitatingly accept a vote as an ex- pression of the social will, ceasing to ask or to care how much force there is behind the will. (88) RECENT EXPERIENCE WITH THE INITIATIVE, REFERENDUM AND RECALL CHARLES FREMONT TAYLOR Editor of Equity, Philadelphia WHEN we realize that the constitution of every state in the Union, except Delaware, has been adopted by referendum to the voters of the respective states, we see that the referendum is no new thing. When we realize that every amendment to every state constitution, except that of Delaware, has been adopted by referendum to the voters of the respective states, and that at every general election new emiendments are submitted either by action of the legislature or by means of the voters' initiative in one or more states, we see that the referendum is a " going concern." As an illus- tration, amendments more or less numerous were referred to the voters at the recent election, November 3, in the follow- ing states, the number in parenthesis following the name of each state denoting the number of amendments submitted : Ari- zona (5), California (30), Colorado (8), Georgia (10), Kan- sas (2), Louisiana (17), Michigan (4), Mississippi (9), Missouri (11), Nebraska (4), North Dakota (6), Ohio (4), Oklahoma (4), Oregon (20), South Carolina (11), South Dakota (8), Texas (3), Washington (i), Wisconsin (9), Wyoming (4), and Arkansas — September election — (3). However, by no means all of these submissions were in the so-called initiative and referendum states. Of the states men- tioned above, the voters' constitutional initiative does not exist in the following: Georgia, Kansas, Louisiana, Mississippi, North Dakota, South Carolina, Texas, Washington, Wisconsin, and Wyoming. Hence the amendments in these states were submitted nec- essarily in the old-fashioned way; that is, by the legislatures. (89) 90 REVISION OF THE STATE CONSTITUTION [Vol. V Amendments by Both Processes The remainder of the first-mentioned states have the voters' constitutional initiative, by which the voters can, by petition, initiate constitutional amendments. But the legislatures also continue to submit amendments in these states. We give here the number of amendments submitted by each process in these states for this year's election : By initiative By legislature Arizona S Arkansas i 2 California 8 22 Colorado 5 3 Michigan . . .' I 3 Missouri 3 ^ Nebraska I 3 Ohio 4 Oklahoma 4 Oregon II 9 S. Dakota 8 Tf.tal 43 S8 To the total here given by legislature, we must add the 72 amendments submitted by the legislatures in those states which have no other process ... 72 130 This gives succinctly the recent referenda of state constitu- tional amendments, which may be summarized as follows. By simply adding we find the following totals: 130 amendments were submitted by the old process of legislative submission, and 43 were submitted by the voters' initiative, that is, by petitions. It is evident that the old process of submitting amendments is still active, even in the states where the voters have the privilege of initiating constitutional amendments. Thus we see also that the voters' constitutional initiative has not been abused, as was feared by some anxious statesmen and educators lacking confidence in the people. If abuse is here indicated, it is by the legislatures and not the voters. In an article contributed by Governor Glynn to the Nem York Times for October 25, 1914, the statement is made that in New York state since 1895 over 600 proposed amendments to the consti- (90) No. I] INITIATIVE, REFERENDUM AND RECALL 91 tution have been introduced into the legislature. No such activity by means of the voters' constitutional initiative has ever been known. The official returns on constitutional amendments from the secretary of state of South Carolina arrived just as this article was needed for the press. The surprising data that he presents illustrate the imperfections of many of our state constitutions. The total vote for governor was 34,606 for Manning, Demo- crat, and 83 for Britton, Socialist. Seemingly there were no other candidates for governor. Eleven constitutional amendments were submitted. "■ Though ^ The following were the amendments and the vote thereon : Amendment to Article X, State Constitution, empowering the cities of Sumter and Darlington and the towns of Belton and Walhalla to assess abutting prop- erty for permanent improvements. Total vote, 2,754 \ fo"", 2,089 \ against, 665. A Joint Resolution to amend Section 8, Article II, of the Constitution, by adding thereto, on line three, after the word " College " and before the word " the " the following : " South Carolina School for the Deaf and Blind, located at Cedar Springs." Total vote, 13,924; for, 10,730; against, 3,194. A Joint Resolution to amend Section 7, Article VIII, of the Constitution, relating to Municipal Bonded Indebtedness, by adding a proviso thereto, re- lating to the School District of Yorkville. Total vote, 10,607; for, 5,324; against, 4,283. A Joint Resolution proposing an amendment to Article X of the Constitu- tion, by adding thereto Section 16, to empower the Cities of Florence and Orangeburg and the Town of Landrum to assess abutting property for per- manent improvements. Total vote, 10,267; for, 5,971; against, 4,296. A Joint Resolution to amend Section 20, Article III, of the Constitution, by adding thereto the following : " Except where there is only one candidate nominated for the place to be filled at such election, in which case the election shall be viva voce without any roll call." Total vote, 9,478 ; for, 5,348 ; against, 4,130. A Joint Resolution to amend Section 7, Article VIII, of the Constitution, relating to Municipal Bonded Indebtedness, by adding a proviso thereto as to the City of Florence. Total vote, 9,018; for, 5,455; against, 3,563. A Joint Resolution to amend Section 7, Article VIII, of the Constitution of this State by adding a proviso thereto so as to empower the Cities of Chester and Sumter each to issue bonds to an amount not exceeding fifteen per cent of the assessed value of the taxable property therein for the improvement of streets and sidewalks. Total vote, 8,998 ; for, 5,273 ; against, 3,725. A Joint Resolution proposing an amendment to Article X of the Constitution, by adding thereto a section to be designated as Section 15a, to empower the Towns of Latta and Dillon to assess abutting property for permanent improve- ments. Total vote, 9485; for, 5,606; against, 3,879. A Joint Resolution to amend Section l. Article XII, of the Constitution, by (91) 92 REVISION OF THE STATE CONSTITUTION [Vol. V most of them dealt with matters of small consequence, and many were of only local application, yet the constitution of the state itself made it necessary to submit them to the voters of the entire state and to embody them in the constitution. It is obvious to any student of government that these are purely legislative matters, and most of them should be settled by local legislatures. The voters of South Carolina cannot order a measure of any kind to be put on the ballot, but the legisla- ture must put these trivial matters on the ballot. But South Carolina is not alone in palpable constitutional imperfections. The following were some of the measures acted upon by the Massachusetts state legislature in the ses- sion of 1913 : That Boston may appropriate for Museum of Fine Arts. That Boston may appropriate for Boston Opera House. On expenses of Cambridge Department Public Safety. For reorganization of Boston School Committee. That Boston police have a day off in eight. On playgrounds of Worcester. On automatic sprinklers in Boston. On salaries of Boston Licensing Board. For police commissioners and license board in Chelsea. For inclosed athletic field in Chelsea. That Maiden and Medford may make contracts as to sewage disposal. That Dennis O'Keefe be restored to Boston Fire Department. That Brockton may pay annual salary to members of city council. That Boston may pay annuity to widow of J. J. Lehan. For controller of acounts in Newton. striking out the words " Blind, Deaf and Dumb " after the word " Insane " on line two, and before the word "And" on line two. Total vote, 11,617; fof) 8,217; against, 3,400. A Joint Resolution proposing an Amendment to Article X of the Constitu- tion, by adding thereto Section 17, to empower the Town of Fort Mill to assess abutting property for permanent improvements. Total vote, 9,041 ; for, 5,289 ; against, 3,752. A Joint Resolution proposing an amendment to Article X of the Constitu- tion, by adding thereto Section 16, to empower the Cities of Anderson, Green- wood and Towns of Bennettsville, Timmonsville and Honea Path to assess abutting property for permanent improvements. Total vote, 9,386; for, 5,373; against, 4,013. (92) No. I] INITIATIVE, REFERENDUM AND RECALL 93 I'or day off in seven for Boston police. For a boys' camp in Franklin ¥ark, Boston. On approval of certain Quincy streets by mayor and council. That Lynn may give cemetery lot to Relief Association of Fire De- partment. To abolish Fall River Board of Police, etc., and election of board. That Pittsfield may grade streets, etc. That Quincy may change method of sewer assessment. That Worcester may set aside sites for waiting stations. For one day off in eight for police in Chelsea, Revere and Winthrop. That Salem Police Relief Association members may continue mem- bers when not police. That Boston may pay sum to Patrick E. Kearns. To put Warren H. Brown on Boston pension list of firemen. That Worcester may take land to widen Madison Street. For widening Bridge Street, Salem, etc. That Lynn may pay simi to James S. Kennedy. That Holyoke may pay sums to widows of P. J. Riley and James Lynch. That police matrons in cities and towns may be pensioned. To encourage shipping and manufacturing in Cambridge. This show^s the need of a home- rule provision in the Massa- chusetts constitution by which all such matters may be deter- mined by the respective localities affected. Then the Massa- chusetts legislature could have shorter sessions, and biennial instead of annual ones. Statutes Initiated and Referred In some states statutes may be initiated by voters' petition; and usually these same states possess the voters' statutory ref- erendum. That is, a reasonable number of voters may, by petition, initiate a law, or suspend the operation of any law passed by the legislature until said law is ratified by direct vote. In either case the direct vote on the initiated or referred statute is taken "at the next general election;" and if it re- ceives an affirmative majority of the votes cast thereon, it is confirmed and becomes law; but if a majority of votes cast thereon are negative, the initiated law is defeated, or the pro- (93) 94 REVISION OF THE STATE CONSTITUTION [Vol. V posed law which passed the legislature is vetoed. This last is sometimes called the voters' veto. Legislatures have, of recent years, formed something of a habit of submitting proposed statutes to a referendum. Pro- posed statutes, either by the voters' initiative or by the voters' referendum or by the legislative referendum, were voted upon in the following states on November 3, the number and the process of submission being given : Voters' Voters' Legislative initiative referendum referendum Arizona Q 4 Arkansas 2 California 9 4 S Cnlnriido 3 5 Massachusetts 3 Missouri 4 Nel>raska I 2 I N. Dakota I Oregon 8 I S. Dakota 3 I Wasiiington 7 ^ Total 42 19 14 To sum up the statutes, we have : Total, 75 ; statutes sub- mitted by the voters' initiative, 42 ; statutes submitted by voters' referendum, 19; statutes submitted by legislatures, 14. This, in a general election all over the country, does not show feverish activity in the line of direct action. There is certainly no abuse here of the recently obtained powers by which voters can demand direct action. This moderation is emphasized by the facts in the next paragraph. All the way from 500 to 3,000 laws, resolutions, etc., arc passed in every state during the average legislative session; and a great many more are introduced and considered but fail of passage. So we see that the measures placed before the voters by means of the popular initiative and referendum are comparatively very few indeed. It is fitting that this should be so, for the initiative and referendum are not intended to supplant representative government, but only to restrain it when it is wrong and to supplement it when it is deficient. (94) No. I] INITIATIVE, REFERENDUM AND RECALL gj Though the number of measures thus submitted be small, they may be important. Certainly the psychological influence upon legislators of the possibility of the initiative or referendum is important; restraining them from doing what the electorate does not want, and stimulating them to pass laws that the electorate does want. The returns of the election on November 3 on referred measures are as yet very meager. The various secretaries of state say that the official count will not be complete until about the close of this calendar year. State-Wide Recall At least seven states now have the state-wide recall : Ari- zona, Arkansas, California, Colorado, Michigan, Nevada and Oregon. (Louisiana was added to this list on November 3, 1914. ) The state- wide recall has never been called into use. Local Use of the Initiative, Referendum and Recall Now let us turn to the local use of the initiative, referendum and recall. In this country there are over 350 municipalities that have the commission form of government. Nearly all of these have the initiative, referendum and recall, and some municipalities not under the commission form of government have these powers. A majority (at least 200) have all three of these powers, while some have the initiative and referen- dum without the recall. A nation-wide investigation of all these municipalities for all the time that they have possessed these pDwers discovered that only 31 had used the initiative, 26 the referendum and 33 the recall. It will be seen that the recall has been used for local purposes as freely as the other powers, but not for state purposes ; while the other powers have been used rather freely for state purposes. Further, con- cerning the local recall, 25 attempts have been made, but failed on account of the promoters not being able to get a suf- ficient number of signatures. This indicates that the securing of recall signatures is not so easy as some theorists seem to believe. Of the 33 recall elections actually held, 20 resulted (95) 96 REVISION OF THE STATE CONSTITUTION [Vol. V in recall and 13 resulted in reelection of the official sought to be recalled/ The above results show a striking conservatism on the part of voters. They do not abuse these enlarged powers, but use them to good purpose when there is occasion. The corrup- tion that a few years ago made municipal government in America notorious the world over would have been impobsible if the voters of all municipalities had possessed the initiative, referendum and recall. The above facts demonstrate that the voters, in both state and municipal matters, are very moderate and conservative in their use of these new powers which they have reserved to themselves only in comparatively recent years. They show that there is no basis in fact for ex-President Taft's state- ment : " I want to show the young men of this country the ab- surdity of having weary armies of voters tramping frequently to the polls — at the call of would-be reformers — in a struggle for incessant changes in the laws." No state or municipality in the writer's knowledge having once obtained these powers has ever given them up. Occasional use of these powers has had a salutary influence on public officers, and their use has quickened the interest of voters in public affairs. The movement to place these powers in municipal charters and in state constitutions goes steadily on ; and it will not, must not, stop until these fundamental powers of the people are placed in the charter of every municipality and in the constitution of every state. The large number of constitutional amendments submitted to the voters this year, and every year, mostly by legislatures, indicates a dissatisfaction with our present state constitutions. A great evil is the proposal of much purely statutory matter for incorporation into constitutions, evidently in order to give it greater permanency than statutes. Some means should be found to confine state constitutions to the " frame of govern- ^ For full details, see Municipal Initiative, Referendum and Recall in Prac- tice, by the present writer, in the National Municipal Review for October 1914. (96) No. I] INITIATIVE, REFERENDUM AND RECALL 97 ment." Then the voters would seldom be called upon to vote on constitutional amendments. The facts given in the first part of this article show this to be a greater cause of the "elec- toral fatigue " complained of by ex-Mayor Matthews, of Bos- ton, than the initiative, referendum and recall. A state constitution limited to the " frame of government " could and should be brief and comprehensive. A unicameral legislative body of few members, carefully chosen, with long terms, ample salary, in constant service, kept conscious of their duties with the possibility of recall, could from time to time promulgate laws so maturely considered and fitted to the requirements of the people that need would seldom if ever be felt for the statutory initiative or referendum. The writer ventures to hope that the coming New York constitutional con- vention will prepare and submit such a constitution. At the recent meeting of the national bar association the startling statement was made that our Congress and state legis- latures had passed 62,014 statutes during the five years from 1909 to 191 3 inclusive. The crying need is for fewer and better laws. A state government might well consist of a board of governors not more numerous than the members of Con- gress from the state ; it should be chosen in a manner to secure full and true representation of every considerable clciss of voters (proportional representation) ; this board of gover- nors, being in constant service and possessing all the powers of government, would appoint only properly qualified men for administrative offices; it would promulgate laws only as they were needed, and these laws would be so carefully con- sidered that they need not be numerous. With such perfect and efficient representation there would seldom if ever be oc- casion to use the initiative, referendum or recall. (97) ADDENDUM In addition to the constitutional amendments submitted by legislatures for the election of November 3, 1914, reported above, the North Carolina legis- lature submitted ten amendments, and the legislature of Minnesota submitted eleven amendments. Some amendments were submitted by the legislature of Nevada, but we have not been able to ascertain the exact number yet. These additional facts emphasize the showing that it is the legislatures and not the initiative and referendum that induce whatever " electoral fatigue " the voters suffer from, which is complained of by ex-President Taft. The figures in this note will change the total of amendments submitted by legislatures given in the body of the above article. THE PROBLEM OF ADEQUATE LEGISLATIVE POWERS UNDER STATE CONSTITUTIONS ERNST FREUND Professor of Jurisprudence and Public Law, University of Chicago IN addition to the many specific questions that agitate a constitutional convention, there must always be in the background the general problem how to construct the entire framework of the instrument in such manner that it may best serve as the paramount law of the state. The situation confronting the convention in this respect may be briefly stated as follows. State constitutions have grown vastly in bulk, and the increase is shared equally by the provisions relating to or- ganization and those relating to governmental policy and action. With regard to the former it has been chiefly an ela- boration of detail, with regard to the latter an enlargement by the introduction of new constitutional aims and functions. In the old constitution, stress was laid on governmental inaction ; in the new it is on positive policies and measures. Distrust of all public power was the keynote of the bill of rights ; distrust of the legislature and dissatisfaction with its past performances the mainspring of many, if not most, of the subsequent limitations and prohibitions. At the same time, in an increasing degree, the constitution was made the means of giving the most direct and forcible expression to the popular will. The desire to make a tem- porarily dominant policy secure against reversal by shifting political majorities was sometimes a factor in this development, but not the only one, for policies were expressed in constitu- tional clauses which had become fixed principles of legislation, removed from the strife of partisan politics, as the standing provisions relating to banks and railroads show. There was little danger that in these matters the legislature would thwart the will of the people, and as a matter of fact legislation readily (98) ADEQ UA TE LEGISLA TIVE PO WERS 99 and effectually supported and carried out the constitutional policies. In the course of time the habit of giving constitutional ex- pression to the popular will produced inconveniences which could hardly have been foreseen at the beginning in their entirety. If the object of the constitution were merely to curb and check legislation, the piling-up of constitutional provisions would serve the purpose admirably. There are some purely prohibitive and negative clauses which thus fulfil their function and operate without trouble or difficulty. It is otherwise where the constitutional provision is not self- executing. The clauses controlling legislative procedure re- quire of course legislative application ; so do all enabling and directing provisions; the articles organizing the departments of government are rarely complete without supplementary legislation ; and even restrictive clauses are often only imper- fectly eifectual without administrative statutes to enforce them. It is often said that the modern constitution usurps the function of a statute; but the truth is that the most prolix constitution is, as a piece of legislation, fragmentary and dependent. No method has yet been discovered, or is likely to be discovered^ which will make it possible to dispense with statutory legis- lation as the only adequate channel of expressing the popular will. From this arises a new problem : the constitution requires statutory regulation ; yet the constitutional status of the matter to be regulated withdraws it from the fulness of legislative power in respects unforeseeable by the most careful framer of the provision. Almost every word of the constitution, though it purport to be enabling, is apt to operate in some way as a limitation upon legislative action. The statute is subordinate to the constitution, and the courts annul the statute which is not in accord with the paramount law. Constitutional supremacy is meant to be the domination of the legislature by the people; in effect it must mean the domin- ation of the legislature by the courts. While it is true that the court applies only the checks which it finds in the con- stitution, it is also true that it is the court that finds the checks. (99) 100 REVISION OF THE STATE CONSTITUTION [Vol. V In making a constitution, the people, so far from speaking di- rectly, interpose between themselves and their will two organs instead of one. It must be doubted whether the situation is fully realized. The movement for the recall of judicial decisions is directed only against the possible misinterpretation of the most general clauses of the constitution, in applying which the judiciary is as likely to be the guardian of right and justice as to be the thwarter of the popular will. It does not touch the numerous cases in which the popular will is defeated by a strict con- struction of specific clauses. The bitter hostility with which the recall of decisions is opposed and the slight headway which the movement has made, also show that the people are reluctant to risk so radical and imperfectly thought out an experiment with a fundamental feature of our institutions. Yet since a purely negative attitude toward a widespread political demand is generally futile, it behooves us to inquire whether the present relation between constitution and legisla- tion is not capable of readjustment so as to remove conceded shortcomings and grievances. What is needed is some modus vivendi between the various constitutional organs, a plan that will establish constitutional supremacy without defeating the popular will through con- stitutional technicalities, that will check the abuse and careless use of legislative power without destroying its fullest liberty for useful and adequate service, that will preserve the benefit of judicial control without reducing constitutional principles to the plane of statutory rules : that will, in other words, set the various organs free to perform their functions beneficially and not obstructively, and preserve the essence of constitu- tional checks without hampering the work of legislation by un- essential and unintended accidents. This result can be accomplished if a constitutional conven- tion can be induced to do the following things : 1. Qualify or remove limitations that experience has proved to be of slight value or unenforceable. 2. Attempt to secure superior methods of preparing and enacting legislation. (lOO) No. I] ADEQUATE LEGISLATIVE POWERS loi 3. Minimize the effect of limitations that are due to in- advertence and not to deliberate policy. 4. Emancipate the legislature from supposedly inherent restraints placed upon it by a judicial theory of the exclusive- ness, the inalienability and the non-delegability of constitu- tional powers. PROCESS OF LEGISLATION I. The Share oj the Executive in Legislation It is one of the characteristic features of American legis- lation that the multiform structure of the legislature is in nowise utilized for functional differentiation. In most Euro- pean systems the two chambers represent different political ele- ments of the state, and the executive has practically the monop- oly of initiating measures. The government is thus 'a peti- tioner, parliament a critic and the final judge. The reciprocal interaction of different organs of the body politic creates all around a hightened sense of responsibility for legislation. There is no prospect of forcing by constitutional enactment a change of so delicate a nature as a transformation of the con- stitutional relations between the organs of legislation; such a change can be only a matter of slow and spontaneous growth. But it may not be impossible to invite reforms which look in the direction of a better utilization of the share of the executive in legislation, since his cooperation is already provided for, and the clear tendency of the time is to make him a more powerful factor in shaping both legislative policies and specific measures. Three relatively simple changes are suggested for this purpose : ( I ) Let the constitution give the governor the right to intro- duce bills. He can now readily find members to bring in bills known to emanate from him and spoken of as administration bills; they have been officially recognized as such by house rules ; ^ but their status would gain if the governor could appear formally as their sponsor. The practice would not ' See as to Illinois a note in American Political Science Review, vol. vii, p. 239- (lOl) I02 REVISION OF THE STATE CONSTITUTION [Vol. V be revolutionary, since it is only a slight step beyond the existing power to recommend by message ; and it would not be necessary to give governor's bills a preferred status. For a precedent reference may be made to the constitution of Ala- bama, which provides (art. 4 sec. 70) that the governor, audi- tor and attorney general shall before each regular session of the legislature prepare a general revenue bill, to be submitted to the legislature for its information, to be used or dealt with by the house of representatives as it may elect. (2) In signing bills the governor frequently exercises a scrutiny of a technical character, discovering and pointing out legal and administrative defects. The merit of such criticism is rarely questioned. In some states the opportunity for it is unduly restrained by the short time allowed the governor for his action. What counts particularly is the time after ad- journment, when the number of bills submitted simultaneously is greatest. In some states, however, he has thirty days, in others until the next meeting of the legislature, or practically unlimited time. These provisions ought to be made general. (3) In close connection with the last suggestion, the con- stitution should facilitate a speedy method of accepting sug- gestions for amendment made by the governor. At present there is only the alternative of supporting the veto or over- riding it, of passing an imperfect bill or dropping it and starting the process of enactment de novo: There should be a constitutional provision permitting the bill as amended in accordance with the governor's suggestions to be put to the vote of the houses. Such a provision exists in Alabama (art. v sec. 125), and also with regard to ordinances in Chicago (Act of 1905). A constitutional provision to this effect would probably encounter no opposition. It is almost a necessary counterpart to another provision sometimes advocated, which however has been adopted only in Washington, namely, that the governor may veto one particular section of a bill. The Alabama provision, indeed, makes the latter provision super- fluous. (102) No. I] ADEQUATE LEGISLATIVE POWERS 103 2. Procedural Requirements Practically every constitution gives to each house the power to determine its owrn rules of proceeding. This autonomy is of course subject to specific constitutional requirements. The con- stitution of the older type is very sparing in imposing such requirements, taking over the few provisions of the federal constitution, which, being directory in their nature, cannot af- fect the validity of legislation. Nothing illustrates so strik- ingly the demoralization of American legislative bodies and the slight esteem in which they were held by the people, as the practice of transforming rules into constitutional restraints. 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 wis- dom of the unyielding restraint or requirement. Constitu- tional conventions should therefore carefully revise these pro- cedural provisions, which are too often adopted simply because they are found in other constitutions. The following are the most common or the most conspicu- ous of the procedural requirements : That bills shall be read three times; first found in North Carolina, 1776; qualified so that readings must be on separate days (first. South Carolina, 1780), or in addition so that read- ing shall be at large or at length (so in Illinois). That bills shall be referred to committees and be reported by them. Note the particular requirements in Mississippi that committees shall report on sufficiency of title, or on the reasons for resorting to a special or local act instead of enacting general legislation. That bills shall not be introduced after a stated period. That rejected measures shall not be reintroduced at the same session ; that a motion to reconsider shall not be entertained on the day of the passing of the motion. That bills shall not be amended so as to alter the subject matter thereof. That bills and all amendments shall be printed. (103) I04 REVISION OF THE STATE CONSTITUTION [Vol. V That bills shall be on the desks of members in their final form three days before their passage. That the majority of all the members is required for the passage of a bill ; that the vote must be by yeas and nays and entered on the journal. That the signature of the presiding officer be affixed in open session under suspension of business. Some of these provisions are salutary, and their fulfilment can be very readily verified, so particularly the one regarding the final vote. Others on the other hand are quite imprac- ticable; e. g., 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; e. g., the Missis- sippi provisions above referred to, or the recitals indicating an emergency. Some give rise to difliicult questions of con- struction; 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 pro- cedural requirements only under the following conditions : (i) 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, with- out any detriment to legislation, as is proved by the experi- ence 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 which will be set forth in connection with the provisions of the class next to be discussed. (104) No. 1] ADEQUATE LEGISLATIVE POWERS 105 3. Formal or Style Requirements In addition to prescribing an enacting clause, the constitu- tions deal with title and unity of subject matter, and with amen- datory acts, very exceptionally also with referential legislation. The provision concerning the title of acts is usually coupled with the other provision that the act shall not embrace more than one subject. The clause may be traced back to the in- structions issued by the Lords of Trade to Governor Tryon on February 17, 1 771, which said: You are also as much as possible to observe 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; and you are more specially to take care that no clause or clauses be inserted in or annexed to any act which shall be foreign to what the title of such respective act imports, etc. In the state constitutions the provision regarding title seems to appear first in the constitution of Georgia of 1798: " Nor shall any law or ordinance pass containing any matter different from what is expressed in the title thereof" (art. I sec. 17). The conjunction of the requirement of title with that of unity of subject matter appears for the first time in the constitution of New Jersey of 1844 (iv, 7, 4) : " To avoid improper in- fluences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object and that shall be expressed in the title." Such a provision is found now in about two-thirds of the state constitutions. In Illinois in 1848 it was confined to special and local acts and in New York it is so restricted (private or local laws) at the present time. The provision was introduced in New York in 1846. The constitutional convention of 1867 made the provision general but the constitution proposed by it was re- jected by the people. The constitutional commission in 1872 again proposed the extension of the provision to all acts, but the proposition was at that time stricken out by the legislature and no change has since been made in New York. (105) Io6 REVISION OF THE STATE CONSTITUTION [Vol. V The provision forbidding amendments of statutes by mere reference to title, but requiring the section as amended to be reenacted, appears first about the middle of the nineteenth century. (Louisiana, 1845, seems to be the first.) In 1835 it is to be found in no constitution. It is at present to be found in about twenty state constitutions. It was proposed for New York by the constitutional conven- tion of 1867 but failed by the rejection of the proposed con- stitution by the people. The constitutional commission of New York of 1872 substituted for this provision another section to the effect that no act shall be passed which shall provide that any existing law or any part thereof shall be made or deemed a part of said act, or which shall enact that any existing law or any part thereof shall be applicable except by inserting it in such act (art. iii sec. 16) . A similar provision is found in New Jersey but in no other state. It appears from Lincoln's Con- stitutional History of New York, vol. ii, p. 494, that the section was agreed to by the constitutional commission of 1872 without a division and apparently without debate and that it w'as ap- proved by the legislature and adopted with another amendment in 1874. The provision has remained without practical sig- nificance in New York, the court of appeals having sustained every law which was questioned on the ground of the violation of the section. Literally construed, it is clear that the section would make all referential legislation impossible. This could not have been the intent of the framers, and we are left to guess what they did mean. There is hardly a provision to be found in any American state constitution which so strikingly illustrates the thoughtlessness with which clauses are adopted, and, once adopted, are perpetuated in successive constitutions. The requirements regarding title and subject matter un- doubtedly inculcate a sound legislative practice, and in the great majority of cases amendment by reenacting a section is prefer- able to amending words or passages torn from their context. If the requirement to amend in the form of reenacting sections were generally construed, as it has been in Illinois and Ne- braska, as forbidding or throwing doubt on supplemental acts (106) No. I] ADEQUATE LEGISLATIVE POWERS 107 altering the effect of existing sections, its inconvenience would be much greater than its benefit; but the Illinois and Nebraska decisions are anomalous and indefensible^ Conceding that these style requirements have had on the whole a beneficial effect upon legislative practice and the clearness of statutes, they have a reverse side which must not be ignored. They have 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 indute undesirable practices especially in the prolixity of titles, the latter again multiplying the risks of de- fect. 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, liti- gation, and undesirable cumbrousness to avoid doubt and litigation. The requirements were introduced to protect legislatures from fraud or surprise, and to stop the practice of log-rolling. The experience of those states which have not adopted the provisions would probably show that they are less necessary now than seventy-five years ago, that better practices have been compelled by public opinion, and that the benefits of the im- provement may be enjoyed without the attendant risks and evils. Whether these considerations are sufficient to induce a constitutional convention to discard the provisions, is another question. If, however, these provisions are retained, another reform is suggested, which should also be applied to all procedural requirements concerning legislation. The suggestion is that the validity of a statute shall not be allowed to be 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 affect. Since an ordinary legitimate cause of action may not arise within the prescribed period, the pro- 1 See an article on Supplemental Acts by the present writer, in Illinois Law Review, v. viii, p. 507- (107) I08 REVISION OF THE STATE CONSTITUTION [Vol. V vision might well be accompanied by another provision to the efifect that such a statute may be impeached in a direct proceed- ing brought for that purpose by any citizen or any other party affected by the act (conceivably not a citizen), the attorney general being notified and having a right to intervene. The permission of a direct proceeding would merely regularize the rapidly growing practice of instituting suits for quo warranto or injunction against officials charged with administering an act, for the mere purpose of testing its validity. Even more beneficial might be a provision to the effect 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 con- stitutional requirements. The dangers against which the constitution desires to guard in formal and procedural requirements are necessarily of a transitory or ephemeral nature, which by the lapse of time be- come substanceless. If interests are prejudiced by precipitate haste, surprise, or log-rolling, a reasonable chance is given them to attack the law. After that chance has been given and no one has availed himself of it, the violated constitutional pro- vision 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. Constitutioiial Provisions to Improve the Quality of Legislation Several readings, reference to committees and requirement of committee reports, concurrence of another house and execu- tive approval, — all these are intended to make for more care- ful deliberation; all style requirements make for greater per- spicuity and for better information of legislators; the pro- visions for the final vote for greater responsibility of the in- dividual legislator. All these may be presumed to have had some effect and yet the technical quality of our legislation is inferior to that of Great Britain or Germany, in which no similar constitutional rules exist. Thus very forcibly the fact (io8) No. ij ADEQUATE LEGISLATIVE POWERS 109 is brought home to our minds that the effect of mechanical devices is limited and that it is a mistake to multiply manda- tory rules to bring about what can be achieved only by sound tradition and by voluntarily accepted restraint and influence. Clearly the organic nature of a large and distinctly politi- cal body is not conducive to high standards of workmanship. Sound and careful legislation is professional work, and dif- fused responsibility, a main characteristic of American legis- latures, prevents criticism without which professional excel- lence is impossible. If European statutes are better made, it is because they emanate from the administration, and it is a well- known fact that in America statutes prepared by commissions are superior in form to those introduced from the body of the legislature. In a few states the need of professional assistance has long been recognized, and in a rapidly increasing number of states provision has been or is being made for the organization of a drafting service in connection with legislative reference bureaus. So far as can be done without unduly hampering the freedom of legislative action, the constitution should strengthen this movement and should afford every facility for technical aid and intelligent criticism. ( I ) If a drafting service is to be successful, a staff of expert men must be trained for the work. This means security of tenure in the service. Under our present constitutions it is impossible to give such tenure. The drafting officials should be part of the legislative staff, in order to win the full confid- ence of the houses ; so long, however, as each house of the legis- lature has the constitutional right to choose its own officers, no statute can impair the right of each new house to make new selections. The constitution should therefore provide that the right to choose officers shall be subject to any legislation enacted to regulate legislative official and clerical services. In no other way can civil service principles be made applicable to the staff of the legislature. (The value of such a provision would of course extend far beyond the improvement of the quality of the drafting service). (109) no REVISION OF THE STATE CONSTITUTION [Vol. V (2) While it may be unwise to attempt to curtail freedom of action in the interest of a more perfect legislative product, the constitution might well at least secure opportunity for expert information and criticism. This purpose would be accomplished by a provision to the effect that on the demand of the governor or of the presiding officer of either house, or of a stated proportion of members, a bill shall 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. The mem- bers would thus be in a position to judge between the merits of two alternative propositions, one of which would represent the best readily available expert knowledge. If the period fixed for the delay is reasonably brief, the danger that demands for reference may be made for the mere purpose of hindering action, would not be serious ; emergencies would have to be provided for, but only under effective safeguards; as, e. g., a special message of the governor, declaring the urgent neces- sity for the immediate passage of the bill. RESULTING LIMITATIONS Resulting limitations are the consequence of positive consti- tutional provisions not intended primarily as restraints or checks upon legislation, provisions sometimes imperfectly oper- ative without further legislation, and sometimes even enabling and directory in their character. They should be distinguished from other unexpressed limitations which are regarded as in- herent in the nature of some constitutional power. To illustrate: If the constitution says the Supreme Court shall have original jurisdiction in certain classes of cases, and it is inferred that the legislature can confer no additional original jurisdiction, this is a resulting limitation. If it is held that the power of taxation can be exercised only for pub- lic purposes, that is an inherent limitation. A resulting limi- tation is a matter of constitutional construction, an inherent limitation a matter of constitutional theory. Very often the doctrine of resulting limitations means that (no) No. I ] ADEQ UA TE LEGISLA TIVE PO WERS 1 1 1 an implied power is treated as independent and exclusive, cur- tailing, if the implied power is executive or judicial, the normal functions of the legislature. Whether the implied power carries with it necessarily a resulting limitation is an open question. The first Congress in organizing the Depart- ment of State rejected a provision making the Secretary in terms removable by the President, preferring to treat the ex- ecutive power of removal as an implied power. In 1867, Con- gress, in passing the Tenure of Office Acts, treated this im- plied power as one subject to legislation. These acts were subsquently repealed, and their validity has never been passed upon by the Supreme Court, but there is quite recent legisla- tion making officials removable for specified causes only.'' If this legislation is valid, it illustrates the existence of an im- plied power without a resulting limitation. The doctrine of resulting limitations is co-equal with the final establishment of the judicial power to declare laws unconsti- tutional, for it was applied in Marbury v. Madison ( i Cranch 137, 1803), to a statute undertaking to vest the Supreme Court with original jurisdiction other than that specified in the constitution. While the decision itself has never been questioned, it is a fact of some significance that its entire reasoning has been calmly ignored in dealing with the con- verse proposition of vesting in inferior courts concurrent orig- inal jurisdiction over matters assigned by the constitution to the Supreme Court. ^ Chief Justice Marshall certainly re- garded both propositions in the same light, for he distinctly stated (p. 174) that Congress could not give the Supreme Court appellate jurisdiction where the constitution had de- clared that its jurisdiction shall be original. It should also be borne in mind that the legislation declared unconstitutional was framed and enacted by a Congress as thoroughly familiar with the spirit and intent of the constitution as the judges of the Supreme Court, and no doubt occurred to them concerning its validity. ' See Shurtleff v. U. S., 189 U. S. 311, and the subsequent Tariff Acts of 1909 and 1913 as to tenure of general appraisers. ' Willoughby, Constitutional Law, § I557- (III) 112 REVISION OF THE STATE CONSTITUTION [Vol. V The difficulties in dealing with the question of resulting limitations are well illustrated by a recent decision of the supreme court of Illinois (People ex rel. Gullett v. McCul- lough, 254 111. I, 1912). A civil service act of the usual type was enacted in 191 1, to apply to the subordinate places in the various departments of the state government. The validity of the law was contested by several clerks in the office of the secretary of state assigned to the performance of statutory functions. The contention was that since the secretary of state was a constitutional officer, his power to appoint neces- sary subordinates could not be controlled by legislation other- wise than through the constitutional power of appropriating necessary funds. The court by a bare majority decided the case against the contestants. The principal opinion took the ground that the fact that an office was constitutional did not destroy the general legislative power to regulate the details of its organization and the tenure of the subordinate officicJs. One judge specially concurred on the ground that the par- ticular duties assigned to the officials who attacked the statute were statutory, but conceded that the secretary of state can- not be controlled by legislation in the appointment of subor- dinates whom he needs to perform functions which belong to the ordinary province of a secretary of state. The dissenting judges denied, in toto, the power of the legislature to regulate the appointment of subordinates of a constitutional officer. The opinions rendered thus represent the three attitudes toward the problem of resulting limitations : the view in favor of a full legislative power of regulation in matters not ex- pressly regulated by the constitution; the opposite view that constitutional status excludes legislative regulation ; and the middle view that constitutional recognition implies at least some degree of independence asagainst the legislature; which must be determined from case to case. Only a minority of the supreme court of Illinois in the case referred to take the first view, recognizing a general legisla- tive power to place a constitutional office under civil service rules, where the constitution is silent as to the organization of the office beyond a bare mention of it. It would be difficult (112) JSTo. I] ADEQUATE LEGISLATIVE POWERS 113 to say which of the three views represents the prevailing American doctrine. Generally speaking, however, the ques- tion is sufficiently close to furnish a ready pretext for the re- fusal- to enact such legislation on the plea of lack of constitu- tional power. The lack of legislative power would be almost uncontro- verted, if the constitution gave the constitutional officer the power in terms to appoint his subordinates, as was the case in New York with regard to the superintendent of public works. In that case the court of appeals of New York was unanimous against the applicability of the civil service law (People v. Angle, 109 N. Y. 564), and an amendment of the constitution was necessary to make civil service rules applicable to that branch of the service. An analysis made about ten years ago of statutes declared unconstitutional in a number of leading states showed that these resulting limitations furnished the ground of invalidity in about twenty per cent of the cases. While in itself the pro- portion may not seem excessive, it is all too large when it is considered that no valuable principle is generally involved in this class of cases. When constitutional questions turn on fun- damental rights or policies, the judicicil decision may not com- mand universal approval, but there is at least the assurance that the statute appeared in the court in some essential respect objectionable. The resulting limitation on the other hand is generally a purely technical one, not within the contemplation of the framers of the constitution; more often than otherwise the result of an accidental turn of phrase, or due to the im- practicability of properly qualifying the rules laid down in such a compendious document as the constitution. In some cases, it is true, the resulting limitation represents what to the court appears to be an essential principle : the sav- ing of executive or judicial independence from meddlesome and abusive legislation. Cases involving the contempt juris- diction of courts furnish a striking illustration in point.^ 1 See also legislation regarding admission of attorneys to practice : ex parte Day, 181 111. 73. (113) 1 14 REVISION OF THE STATE CONSTITUTION [Vol. V When the practice of special legislation was common and the principle of equality less developed than at present, the apprehension of legislative intermeddling may have had some foundation in political tendencies or possibilities. To-day, when the danger of legislative impairment of the legitimate province of either judicial or executive action is extremely remote, it should be considered whether the doctrine of re- sulting limitations does not in its turn impair the legitimate province of legislation. It certainly has this unfortunate consequence: Neither the executive nor the judiciary have any constitutional rule-mak- ing organs. The executive may formulate a rule for his action, but it is not binding on his successor nor even upon himself. If a court has inherent power to determine the qualification of attorneys and the supreme court is not vested with a constitutional power of superintendence over all other courts, what legal guaranty is there for uniformity of rule or policy in this respect either between supreme court and in- ferior courts, or even between the various courts of original jurisdiction, each of which has equal constitutional jurisdic- tion? If a reform is desirable in contempt procedure, how can it be brought about? The exercise even of constitutional powers ought to be subject to law' — that is to say, uniform and orderly; but the constitution knows no law-making organ ex- cept itself and the legislature. Deny the validity of legislative regulation on the ground of the constitutional status of a function or power, and you proclaim that that function is amenable to no law except the voluntary restraint of the offi- cial who exercises it; the doctrine of resulting limitations be- comes a doctrine of constitutional anarchy. Who, in view of this doctrine, can tell with certainty, whether or to what extent the administration of martial law, where it is claimed directly under the constitution, is a legitimate subject of legislation? If it is not, do we not recognize as exempt from legislation a dangerous power which can be and is regulated by statute in countries supposed to have less civil liberty than we have? Must this not create a sense of legal insecurity totally at var- iance with the spirit of constitutional government? It be- (114) No. I ] ADEQUA TE LEGISLA TIVE PO WERS 1 1 5 hooves us at least to realize the far-reaching and alarming consequences of the doctrine of resulting limitations. What is needed to deal effectually with the inconveniences of this doctrine of resulting limitations, is a new canon of con- struction. Would it be wise to formulate such a canon by con- stitutional enactment? There are plausible objections. Con- stitutions have not in the past attempted to control the judici- ary in this respect, and the undertaking is one of considerable delicacy. On the other hand, the very difficulty of forcing the hand of the courts is a strong point in favor of the proposi- tion. No mandatory formula could be devised which would permanently subjugate the essential freedom of judicial con- struction; the purpose and function of any constitutional canon of construction would merely be to enable the courts to break away from doctrines to which they consider themselves, per- haps reluctantly, bound by established precedenta. A similar problem has arisen in connection with statutory rules of practice and procedure which courts felt bound, by precedent, or by the supposed limitations of judicial power, to apply in a literal and technical spirit. To meet this diffi- culty, the New Jersey Practice Act of 1912 provides as fol- lows : These rules shall be considered as general rules for the government of the courts and the conducting of causes and as the design of them is to facilitate business and advance justice they may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work surprise or in- justice. If such a provision is deemed appropriate with regard to a statutory code it would seem that a similar rule, much more conservatively framed, might be advantageously applied to a constitution which cannot speak with the particularity of a statute, and which is so much more difficult of amendment. In New Jersey the legislature set the judiciary free by declaring that the letter should not kill the spirit; a similar declaration on the part of the constitution-making power would set free not merely the judiciary but also the legislature. (IIS) Il6 REVISION OF THE STATE CONSTITUTION [Vol. V The legitimate claims of legislative power have been unduly curtailed in two ways : by excessive implication of coordinate, independent and exclusive power in other departments, and by insufficient implication of legislative power by way of rea- sonable allowances tempering unintended consequences of the strict letter of the constitution. It should therefore be ex- pressly recognized that presumably the constitution is intended to take care only of essentials, and that, subject to the effectual guarding of those essentials, the needs of government demand the fullest power of subsidiary regulation through statutory enactment. To illustrate : If the constitution fixes the term of office, this should not necessarily exclude legislation for holding over (as expressly permitted by the Rhode Island constitution of 1842, art. 4, § 16), or for changing the time of election;^ provided the change of time is not merely a contrivance for extending the term; nor should the extension of a term for the purpose of preventing a vacancy be regarded as a legislative appointment to office; nor should a constitutional appointing power be deemed inconsistent with legislation pre- scribing qualifications for eligibility to appointment. The ex- ecutive power to execute the laws should not prevent legis- lative regulation of martial law. The vesting of jurisdiction in certain courts should not prevent the fullest legislative power to regulate procedure; even the power to punish for contempt should not be withdrawn entirely from legislative regulation. It is unnecessary further to multiply instances. The phrasing of an appropriate canon of construction by the constitution is a matter of great difficulty, and there is perhaps no available formula to which exception cannot be taken in some respect. The main hope for an agreement must be found in the fact that, as pointed out before, the operation of any canon of construction will of necessity be enabling rather than mandatory, that courts will not be absolutely bound, but merely aided in adopting more liberal views of legislative power. 1 See 163 Ind. 150; 71 N. E. 478; 177 Ind. 564; 98 N. E. 342, 1912. (n6) No. I] ADEQUATE LEGISLATIVE POWERS 117 The following is tentatively suggested as a possible clause : The provisions of this constitution express fundamental principles and policies and shall be construed accordingly. The legislature may regulate the exercise of constitutional powers for the better carrying out of their purposes, and may, without violating the spirit of a provision, apply it with the necessary qualifications demanded by the practical requirements of government. Constitutional ' powers shall be exercised in subordination to the principles which they are intended to serve. Resulting limitations can also be eliminated to a consider- able extent by making constitutional provisions expressly sub- ject to change by statute. Provisions to that effect now occur, either so that after a specified time the legislature may act,^ or so that the constitutional provision is operative only until or in the absence of legislative action.^ This practice is of course capable of indefinite extension, and may be used as a compromise in dealing with the tendency to overload unduly the constitution with detailed provisions. However, it would be impossible to differentiate on principle clauses that should or might be made amenable in this way; still less, of course, to formulate in abstract terms a classification of clauses for this purpose. If the expedient is to be resorted to, it will be necessary to consider carefully in detail to what provisions it is to be made applicable. INHERENT LIMITATIONS The inherent limitation is supposed to flow from the nature of the power itself. It is not expressed in the constitution ; it is not imposed by the claims of coordinate powers, nor does it result from the operation of specific constitutional provisions; but it either indicates the bounds of state sovereignty, or ex- presses the essential integrity of legislative power as against impairment by the legislature itself. In the latter aspect, the inherent limitation practically means that beyond a certain ^ See, e. g., corporation article in the constitution of Oklahoma. • See United States constitution, time of meeting of Congress. (117) 1 18 REVISION OF THE STATE CONSTITUTION [Vol. V point the legislature cannot surrender its power or bind its future action. Such inalienable freedom does not necessarily make for increased capacity, just as an infant who cannot legally bind himself finds himself unable to do business. The problem of inherent limitations has in recent times been most discussed perhaps in connection with the delegation of powers of regulation to administrative authorities. The pres- ent tendency is to recognize the validity of such delegation to a very considerable extent. To what extent the legislature may or should justly go, is a question that only experience can solve. Expressly to sanction a power of delegation by con- stitutional provision without qualification, might throw open the doors too wide; to prescribe in detail modalities for the exercise of delegated power, might hamper unduly future de- velopments. In view of the liberal attitude of the courts, no express recognition of the power seems to be called for, and on the whole it may be wiser to omit an express provision. However, express provisions seem desirable to relax sup- posed inherent limitations in the following respects : 1. For the purpose of allowing a. state- wide referendum. 2. For the purpose of better guarding the exercise of the police power. 3. For the purpose of securing greater uniformity of legis- lation within the state. 4. For the purpose of facilitating uniform action between the states. I . The State-wide Rejerenduin There is judicial authority to the effect that the legislature may not make the taking effect of an act of state- wide operation to depend upon the result of a popular vote.^ There are weighty reasons why the legislature should not lightly pass the responsibility for its measures on to the electorate, but there are also considerations on the other side. The constitu- tion might permit the referendum by the legislature at least in certain cases or under certain conditions. 1 Barto V. Himrod, 8 N. Y. 483. (118) No. I J ADEQUATE LEGISLATIVE POWERS 119 It might also be worth while to consider whether, as a sub- stitute for the initiative (or in addition thereto), the con- stitution should not permit a referendum to the people of a measure introduced by the governor or passed by one or both houses, and which has failed to become a law, upon the mo- tion either of the governor or of one or both of the houses. In this way every measure having a respectable popular sup- port would have a chance of being submitted to the people, with more responsible endorsement and after more consider- ation than initiative propositions often have. 2. Action tinder the Police Power The prevailing doctrine is that no action of the legislature can bind the future exercise of the police power. It may be conceded that the power to protect health, safety or morals must not be bargained away ; yet the doctrine has been carried to excess, and interests acquired in reliance upon the faith of legislative declarations have been allowed to be disappointed and sacrificed. It is not merely a question of the sound con- stitutional theory of vested rights, but a matter of wisdom and policy, that it should be possible in enacting legislation to give some assurance that people may act upon it with safety. Thei'e would probably be no disposition — desirable though it might be — to allow legislation to be enacted with a provision that for a limited number of years it shall not be altered to the detri- ment of vested interests, except under urgent requirements of safety. Less objection might however be felt to a constitu- tional provision permitting a legislative provision that if valu- able rights or privileges are taken away in the exercise of in- alienable legislative power, the question of compensation on equitable principles shall be referred to judicial or arbitral authority. 3. Provision for Unity of Statute Law The practice of legislation might be considerably harmon- ized, and its quality improved incidentally, by the enactment of general statutes (comparable to the English " clauses acts ") dealing exclusively with subsidiary matters of administration, (119) I20 REVISION OF THE STATE CONSTITUTION [Vol. V enforcement, operation or interpretation, which are now taken care of as part of each particular piece of legislation, these statutes to be incorporated by reference into any legislation to which they may be applicable. In this way alone uniform administrative principles can be secured. Even after the enactment of such statutes it may happen that in preparing some particular bill provisions of the same sub- sidiary character are inserted, in disregard of the general act. If there is an express purpose to override the general pro- vision, the legislative intent should of course prevail ; often, however, it is as a case of mere inattention or ignorance of the fact that the matter is already provided for. If so, there re- sults a needless and inadvertent diversity of laws where uni- formity would be more in accord with good legislative policy or even with constitutional principles. This situation might be remedied by a constitutional pro- vision establishing as a rule of construction that if an act to which gener2d statutory rules of an administrative or other- wise subsidiary character would in the absence of express pro- vision be applicable contains special provisions which are sus- ceptible of a construction at variance with those general rules,, the special provisions shall in the absence of clear intent to the contrary be construed as subordinate to the general rule,, or as directory so that the general rule may prevail. 4. Provision for Interstate Uniformity Two ways are at present open to secure uniform legislation between several states : an act of Congress, and concurrent state legislation. The scope of congressional legislation is limited by the federal constitution, which is difficult to amend, and which lacks a provision similar to that found in the Australian constitution, permitting the common regulation by the national legislature for a number of states of any matter referred to it Dy these states. Concurrent action between the states is a alow and unsatisfactory process without any guaranties of permanence. A state constitution could, however, aid concurrent action ia at least two respects : (120) No. I ] ADEQ UA7E LEGISLA TIVE PO WERS 1 2 1 a. Legislative agreement. The federal constitution forbids the states to enter into agreements with each other without the consent of Congress. It follows from this that such agree- ments are possible provided the consent of Congress be ob- tained. Congress may probably give its consent in advance to specified kinds of agreements. At least this was done by act of March i, 191 1, whereby consent was given to any compact which states might enter into for the purpose of conserving forests and water supply. Why then should not several states make agreements for identical legislation ? Because, it seems^ the federal constitution presupposes some competent state au- thority to make the agreement, and does not undertake to^ create such authority. The contractual capacity of a state is vested in the legislature, but is undoubtedly limited to matters as to which a state under its constitution may bind itself by agreement. The legislative policy of the state does not belong to this class. There is at present no way by which a state can by agreement with another state bind itself to a certain course of legislation, or make a statute, adopted by agreement with another state, irrevocable. There is no reason, however, why this should not be possible under express constitutional author- ity. A constitutional provision authorizing agreements con- cerning legislation is therefore desirable. The power would have to be restricted in various particulars, especially as to time limits for such agreements, but the principle of the power is unobjectionable, and should at least be presented to a con- stitutional convention for consideration. b. Joint commissions. The cause of uniform legislation would be greatly strengthened by the creation of offices or com- missions common to a number of states, charged with the task of establishing technical or scientific standards for matters subject to statutory regulation. To a constantly growing ex- tent modern legislation is concerned with matters in which ef- fectual rules must be based upon conclusions reached after expert inquiry. A common bureau for the prosecution of such inquiries would have the advantage of a wider range of selec- tion of competent men; its findings would be more reliable; there would be a saving of time and money; and uniformity of provisions would be brought about without special agreement. (121) 122 REVISION OF THE STATE CONSTITUTION [Vol. V There might, however, be a constitutional difficulty in mak- ing such conclusions available for state legislation. Conced- ing that powers of regulation may be delegated to commis- sions, may they be delegated to commissions not belonging exclusively to the state? Or to put it in another form, is it a proper exercise of administrative discretion to defer to the con- clusions of persons not responsible to the state? It is to say the least uncertain how these questions would be answered. The uncertainty can be removed by a simple enabling pro- vision authorizing the legislature to join with other states in the creation of joint bureaus or commissions for the working out of technical standards, the standards thus worked out to be available as norms to be applied in the administration of state statutes, though subject to state control and alteration. A pro- vision of this kind would perhaps have the incidental effect of encouraging the establishment of these agencies of uniformity. 5. The Due-Process Clause It may be asked : if legislative powers are to be enlarged, why not also attempt to deal with the limitations that have arisen from a supposedly illiberal application of the guaranty of due process? A moment's reflection will show that we are here confronted with a totally different problem. The inter- pretation of the due-process clause involves the entire concept of the state and of state power; any attempt to control it by a comprehensive constitutional provision, short of entirely alter- ing the scope of judicial power, must fail. In this matter en- during change is possible only by altered judicial views and convictions, although particular matters may perhaps be dealt with by specific enabling provisions, as in New York in the matter of workmen's compensation. The question here is not between strict and liberal, but between right and wrong con- struction. It would be impossible to find a formula adequate to the solution of the problem. The suggestions made in this paper claim the merit of avoid- ing highly controversial ground, and of paving the way for great and needed reforms without destroying the benefits of judicial control. (122) No. I] ADEQUATE LEGISLATIVE POWERS 123 SUMMARY 1. In addition to the specific questions to be dealt with by a constitutional convention, there is the general problem of mold- ing the entire framework of the constitution in such a way as to make it most serviceable as the paramount law of the state. 2. In all states there has been a great increase in the number of provisions which are not fully operative without statutory legislation. 3. Every provision of the constitution, though intended to be enabling, operates to some extent as a limitation, enforced by the courts. 4. In so far as this is true, the people in making a con- stitution, instead of speaking directly, interpose between them- selves and their will two organs instead of one. 5. The remedy lies in devising a structure of the constitution that will preserve the benefits of judicial control without hampering the work of legislation by unessential or unintended limitations. 6. For this purpose it will be necessary : (a) To remove or qualify limitations that experience has proved to be of slight value or unenforceable. (b) To attempt to secure superior methods of preparing and enacting legislation. (c) To minimize the effect of limitations that are due to in- advertence and not to deliberate policy. (d) To emancipate the legislature from supposedly inherent restraints placed upon it by a judicial theory of the exclusive- ness, the inalienability and the non-delegability of constitu- tional powers. 7. The process of enacting laws should be improved by af- fording added facilities for executive aid in legislation, and by revising the present procedural requirements. 8. The chief organic defect of American methods of legisla- tion is that the multiform structure of the legislature is not utilized for functional differentiation. While a change in that direction cannot be forced, the following measures would en- large the share of the executive : (123) 124 REVISION OF THE STATE CONSTITUTION [Vol. V (a) A right to introduce bills, as now recognized with re- gard to general revenue bills in Alabama. (b) An enlargement of the time for executive approval in order to afford better opportunity for the scrutiny of bills. (c) A right of the governor to present with his veto amend- ments that may be voted on at once, likewise recognized in Alabama. 9. Procedural requirements should be revised for the purpose of making sure : (a) That they serve an object of vital importance. (b) That they do not unduly impede business. (c) That they are not susceptible of evasion by purely formal compliance or by false journal entries. (d) That they do not raise difficult questions of construction. (e) That the fact of compliance or non-compliance can be readily ascertained by an inspection of the journal. 10. Requirements regarding form and style of bills (title, unity of subject matter, amendatory acts) have on the whole tended to eliminate undesirable practices in legislation ; but this benefit has been largely offset by the large number of con- stitutional questions they have raised and by the needless pro- lixities which are induced by the fear of violating the require- ment, if not by the requirement itself. 11. The benefits of both procedural and form requirements can be retained and their inconveniences minimized by for- bidding the validity of statutes to be questioned by reason of the violation of either, after the expiration of a brief period to be fixed by the constitution. Any harm caused by the viola- tion of these requirements is speedily cured by lapse of time. 12. In order to improve the quality of legislation the con- stitution should encourage expert cooperation in the drafting of statutes. With that end in view : (a) It should be made possible to place drafting clerks un- der civil service rules ; under present constitutions legislative employes cannot be brought under these rules. (b) The right should be given to the governor or a stated proportion of the members of either house, to demand the sus- pension for a brief period of the proceedings on a bill in order (124) No. I] ADEQUATE LEGISLATIVE POWERS 125 to obtain the opinion of officials familiar with the subject mat- ter; the legislature to be free to act upon the opinion or not. 13. Powers of legislation are unduly curtailed by the doc- trine of resulting limitations which operates either by giving literal effect to constitutional provisions expressed without suf- ficient allowance for necessary detail or qualification, or by treating executive or judicial powers as exclusive and inde- pendent of legislation. In either case salutary legislation may be rendered impossible, and in the latter case the power is amenable to no rule whatever, since neither the executive nor the judiciary has any inherent rule-making authority. 14. This situation may be remedied by formulating in the constitution a new canon of construction, which without at- tempting rigidly to bind the courts would enable them to adopt more liberal views of legislative power. The provision might perhaps be worded as follows : The provisions of this constitution express fundamental principles and policies and shall be construed accordingly. The legislature may regulate the exercise of constitutional powers for the better carrying out of their purposes, and may, without violating the spirit of a pro- vision, apply it with the necessary qualifications demanded by the practical requirements of government. Constitutional powers shall be exercised in subordination to the principles which they are intended to serve. 15. Resulting limitations may also be diminished by mak- ing specified constitutional provisions expressly subject to change by statute. 16. The legislative power is further curtailed upon the plea of preserving it unimpaired and in full integrity. Beyond a certain point the legislature cannot surrender its power or bind its future action. An inalienable freedom in effect amounts to a reduction of disposing capacity. 17. The present tendency of the courts is to be liberal in allowing delegation of powers or regulation to administrative authorities. An express constitutional sanction of this power of delegation seems unnecessary, and it would be difficult at the present time to forecast possibly desirable qualifications. (125) 126 REVISION OF THE STATE CONSTITUTION 1 8. Express constitutional provisions would be appropriate to relax supposed inherent limitations in the following respects : (a) To allow a state-wide referendum. (b) To guard better the exercise of the police power. (c) To secure greater uniformity of legislation within the state. (d) To facilitate uniform action between the states. 19. The power of the legislature to make the effect of a statute depend upon approval by popular vote being contro- verted, the constitution should permit the practice at least under specified conditions. Perhaps the power should also be vested in the governor or in either of the houses to demand a referendum on bills which have failed to become law in the regular course of legislation. The latter provision might prove acceptable as a substitute for the initiative. 20. A constitutional provision is needed and desirable to make it possible for the legislature in enacting police legisla- tion to guarantee that if valuable rights or privileges are taken away in the exercise of inalienable legislative power, the ques- tion of compensation on equitable principles shall be referred to judicial or arbitral authority. 21. In order to harmonize the administration and enforce- ment of statutes, the usual clauses which are needed to make a statute operative should be consolidated or codified. To make these codes fully effectual, they should have appropriate con- stitutional recognition. 22. To promote uniformity of legislation between the states, the constitution should sanction concurrent legislation by way of agreement, subject to the approval of Congress. 23. For the same purpose the constitution should authorize appropriate legislation for the creation of joint bureaus or commissions to work out common standards for the states rep- resented, to be applied to the administration of state statutes, nubject to legislative control. 24. No attempt should be made to control by a comprehen- sive constitutional provision the application of the guaranty of due process of law. (126) PARTICIPATION OF THE EXECUTIVE IN LEGISLATION ' E. M. SAIT Assistant Professor of Politics, Columbia University THE impression seems generally to prevail that during the last generation representative assemblies have de- clined in popular regard, and that the high confidence once reposed in them has given way to doubt and disillusion- ment. This change may be observed in France; it may be observed to some extent in England ; but nowhere else has the legislature sunk so low in public esteem as in our American states. Contempt is expressed openly in the newspapers and reflected in the endless limitations upon legislative power which the constitutions impose. As each session ends, a uni- versal sigh of relief shakes the atmosphere, and men go about estimating the extent of the damage. No such phenomena are to be observed across the border, in the Canadian provinces. Criticism there may be, but no contempt. Why should the legislature be still respected in Ontario (let us say) and regarded with profound distrust in New York? In part, no doubt, the ballot explains the differ- ence. In Canada, with a short ballot, the elector knows the candidates and votes effectively; in New York, on November 3, when both houses of the legislature were chosen, thirty-three other offices had to be filled in some districts. But another explanation seems to me quite as fundamental. In Ontario, as in England or France or Italy, the executive has assumed a position of recognized leadership and responsibility in the legislature. The prime minister, during his term of office, occupies a place of power tempered only by searching criti- cism and complete publicity. And when election-time comes, the people inquire : " What were the pledges which this man 'Read at the meeting of the Academy of Political Science, November 19, 1914. (127) 128 REVISION OF THE STATE CONSTITUTION [Vol. V made when we chose him to lead us? How faithfully has he discharged the trust?" If they are satisfied, they keep him in his place ; they may keep him there for ten or twenty years ; . and as long as he is there the legislature must obey him. Here in our states, though only in a half-conscious, tenta- tive fashion, the advantages of executive leadership are com- ing to be recognized. Has not the governor been elevated into a kind of tribune of the people? Is it not tolerably well un- derstood that, while our legislators, bound to the service of their little districts, do not lead or represent the people of the state, the governor does — just as the prime minister fioes — and that through him the people must find a way to control and formulate public policy? But though much is expected of the governor in the way of performance, relatively little has been done to strengthen his legal position. His power has developed mainly with the accumulation of precedent and the growth of custom. He must proceed to his task satisfied that moral support will be forthcoming from the people of the state and yet forced to rely on indirect and half-questionable methods to gain his ends. If we concede to the governor the message and the veto, if we thus recognize him as an integral part of the legislature, why should we make the exercise of his legislative functions so difficult and uncertain? The mes- sage, implying the right of initiative, and the veto, implying the right of amendment, must be reinforced with further spe- cific authority if the actual power of the governor is to cor- respond with the power which the people evidently expect him to wield. Is it fair to demand leadership and then refuse the means of persuasion or compulsion which are necessary to its eff'ective exercise? What practical and immediate changes might be made in existing practice without the danger of dislocating govern- mental machinery or incurring the charge of leze majesty? First as to the message. Would it not receive new force and dignity if delivered orally before both houses in joint session? Would it not make a stronger impression both upon the legislature and upon the constituencies outside? The ex- perience of President Wilson and Governor La Follette indi- (128) No. I] THE EXECUTIVE IN LEGISLATION 129 cates that it would. This practice might very properly be regulated by the constitution. The message is only a general statement of what the execu- tive proposes. The details have still to be worked out. If left to its own devices, the legislature may, through lack of in- I formation and through lack of prolonged consideration, de- vise an inadequate bill ; or it may, with the intention of throw- ing discredit on the proposal^ embody in the bill objectionable features. The message, therefore, should be followed by the submission of bills drafted by the governor and heads of de- partments (who should be his appointees, of course) with or without assistance from members of the legislature. It is true that under present conditions administration bills are occa- sionally submitted and that the practice is becoming more fre- quent. But until the practice is applied in every case, and with public knowledge, responsibility as between the governor and the legislature will be difficult to place. This initiative of the governor should be exclusive as to some matters and concurrent as to others. He alone should frame money bills; and the legislature, while free to reduce the proposed grants, should not be permitted to increase them or to alter their destination. This is the system which pre- vails in England and in the self-governing colonies, and which has proved such an effective check upon log-rolling and ex- travagance. It is substantially the system which prevails in New York city. Under such an arrangement the legislature still retains the power of the purse, the right to refuse supply, and is at the same time saved from its besetting weakness. No other way has been found to prevent raids upon the treasury ■or definitely to fix responsibility for expenditures. In other matters the initiative may well rest equally with the governor and the legislature. But there are obvious reasons why the administration measures should have prece- dence over all other business in both houses. This is no new suggestion. It was advocated by Governor O'Neal, of Ala- bama, and others at the conference of governors last year. It has been adopted as a rule of the Illinois house of representa- tives. Under that rule an administration measure may be (129) I30 REVISION OF THE STATE CONSTITUTION [Vol V sent to the appropriate committee or, on the request of the in- troducer (who may have reason to distrust the committee), to the committee of the whole house ; and, when reported, the bill has precedence over all other business except supply. But a concurrent initiative, even coupled with a right to prior consideration, would not strengthen the hands of the governor sufficiently. The committees may refuse to report his bills, or the legislature may incontinently reject them. It happened so in Illinois. What then ? Of course the governor is at liberty to spread his gospel from end to end of the state if he can. But though he may convert a good meiny people, he may fail to convert the legislature — as Governor Hughes found in the case of his direct-primary bill. Could not the matter be settled by a popular vote? It has been suggested that, in case of deadlock, a referendum might be had upon the governor's proposal. The referendum clearly affords a possible solution. In the western states it is considered as something in the nature of a universal remedy. And what more natural than to have the governor and legislature submit their differences to arbitra- tion by the common source of their authority? But there are objections to the referendum. First of all, it places a further burden upon an already overburdened electorate and adds a further complication to our already complicated political ma- chinery. Moreover, the issue would be laid before the people, as Mr. Stimson has remarked, without the face-to-face de- bate, the cross-examination, the asking of awkward questions which would be possible if the governor and his cabinet were admitted to the floor of both houses. The governor, taking advantage of his position as popular leader, might assail the obstructionists; and they might answer, not openly, but by means which experienced politicians know how to employ. And finally, while the particular subject of disagreement might be settled, the referendum would have had no direct influence in correcting the evils which have gone so far in discrediting the legislature. By use of the referendum the popular will may be vindicated in a particular instance, though with tremendous expenditure of energy. But how much will this accomplish in rehabilitating representative assemblies? (130) No. I] THE EXECUTIVE IN LEGISLATION 1 3 i Another proposal has been made, and with increasing fre- quency of late — that the governor and his cabinet should be permitted to appear in both houses not only to explain and defend administration measures, but also to answer questions relative to public business. Under an Oregon plan, defeated by the voters in 19 12, it was even proposed to seat defeated candidates for the office of governor as leaders of the oppo- sition. In any European country to-day it would be regarded as absurd to exclude the executive from free intercourse with the legislature. Nor in the minds of the Fathers was the separation of powers such a rigid thing as its exponents would have us believe to-day. Madison, showing in the Federalist how impossible the complete isolation of the departments is, cites the case of New Hampshire, where the doctrine of separ- ation was laid down and the chief executive nevertheless elected by the legislature, made a member of the senate with the right to vote, and advised by a council composed of mem- bers of the legislature. Practice tinder our first two Presi- dents sanctioned the appearance of cabinet officers in Con- gress; and since the Civil War, committees, of distinguished personnel, have twice recommended that these officers should be allowed to participate in debates and that they should be compelled to appear for the purpose of answering questions. President Taft, after the close of his administration, endorsed this recommendation strongly, as did his Secretary of War, Mr. Stimson. And why not? Is there some peculiar condi- tion in American government which relieves it from all the necessities taught by European experience? Have our legis- lative bodies been so successful, relatively to others, that we alone can continue to walk in the steps of Montesquieu? To be accurate, we are not even walking in his steps; for whatever misconception Montesquieu had about the executive power in England, he at least knew that the ministers sat in Parliament and were members of Parliament and led it with a strong hand. And consider what advantage would proceed from the pres- ence of the governor and his cabinet in the legislature, even without the right to vote. Consider the improvement in ad- (131) 132 REVISION OF THE STATE CONSTITUTION [Vol. V ministration. For the state engineer and the state treasurer (this may recall recent events !) it would be a perpetual grand- jury proceeding, with searching and pertinent questions which they could by no means evade. Constantly subject to criticism, the department heads must be men familiar with legislative ways and able to defend themselves in debate. They must always be alive to the duties of their offices. As the Hon. Samuel W. McCall remarks with regard to the national gov- ernment, it would no longer be possible to appoint a mediocre lawyer as attorney general. And consider the inevitable improvement in legislation. No one can doubt that the governor would assume a far more important role in this direction; he would present a coherent program which the electorate could fairly judge on its merits because debate would take a higher level and attract public attention in a new way. The members would be infinitely better informed, because openly and of right they could ask for information from the heads of departments and be sure of getting a direct and straightforward reply. The personnel would be greatly improved. Remember that in view of the new position of cabinet officers only men of previous experi- ence in the legislature would eventually be appointed ; that good men would come into the legislature and stay there with the expectation of receiving such an appointment; and that the minority party would therefore have at its disposal men who had held or expected shortly to hold cabinet office and who could take an authoritative part in debate. With com- petent, recognized leaders on both sides — like the front benches in the Commons — opposing arguments would be co- gently presented for the legislators and the voters to weigh. It is also probable that the leadership of the governor and cabinet, representing the people of the whole state, would ex- tinguish that all-pervasive subservience to local interests which is so generally decried. Better still, new members, coming up full of good intentions, would find I'eputable leaders to fol- low and would no longer have to choose between being rele- gated to oblivion and accepting affiliations which their con- science could not approve. (132) No. I] THE EXECUTIVE IN LEGISLATION 133 And what are the objections to this closer association of ex- ecutive and legislature? Like the objections to the short ^ ballot they are rather elusive and not always rational when discovered. Governor Spry, of Utah, justified his opposition by saying: I may be a reactionary. I plead guilty to being one. ... I am simple enough to believe that those men were inspired when they wrote the Constitution of the United States. I believe that the Con- stitution was given to this Republic as an anchorage, and I pray God sincerely that the Republic may never go so far away from the Constitution as to be considered to be drifting from its moorings, because if it does we are liable to go out at sea and drift upon the rocks and go to pieces. This is the kind of argument which Wcis used in justifying the rotten boroughs of England. Strictly speaking, it is not argument at all. What then do the more or less rational op- ponents of executive leadership say? Nothing more damag- ing has been said than that the independence of executive and legislature would be endangered. Perhaps so; personally I view the danger with profound indifference. Separation of powers, though a time-honored theory of American govern- ment, is now worn pretty thin, especially in our cities ; and theory never counted for much beside practical expediency among men of solid political sense. But there are people, ap- parently, who would rather see representative assemblies per- ish from the face of the earth than have their cherished doc- trine for one moment under partial eclipse. (133) PARTICIPATION OF THE EXECUTIVE IN LEGIS- LATION ^ OGDEN L. MILLS Senator-elect from the Seventeenth District of New York THE very serious problem which confronts us to-day is that of making our state governments more responsible, responsive and efficient, and so restoring them to that degree of public confidence which is absolutely essential to effective government. Aside from the increase of efficiency and responsibility which can be accomplished by diminution of the number of elective executive officers and the concentra- tion of the appointing power in the hands of the governor, many people believe that a closer relationship between the executive and legislative branches will be highly beneficial. Much, of course, can be accomplished by the preparation and submission of administration bills along the lines suggested by Professor Sait, particularly the submission by the governor of an annual budget. The United States is the one civilized country to-day in which a scientific budget is unknown, and there is no question that much of the waste and extravagance which have invariably characterized our governments, both state and national, is due to this fact. The budget is nothing more nor less than an estimate of the cost of running the gov- ernment for the ensuing year together with suggested methods of raising the necessary funds. Inasmuch as the executive department disburses the money, it is but fair to assume that the executive is in the best position to know the needs, while the legislature, which votes the money, can readily prevent extravagance by being permitted to cut and pare wherever, in its judgment, the appropriations demanded are excessive, but under no circumstances to increase such appropriations. Under the present system there is a tendency on the part of the legis- 1 Discussion at the meeting of the Academy of Political Science, November 19, 1914. (134) THE EXECUTIVE IN LEGISLATION 135 lature to increase appropriations as reported from committee, not to cut them down, a tendency continually accelerated by the very natural desire on the part of each member to look after his own district. I am one of those who would go a step further and establish a direct relationship ' between the executive and legislative branches by giving to the governor and his department heads seats in the legislature, with the right to take part in debate though not to vote. A system of checks and balances by the separation of the three great powers of government is an in- herent part of our governmental structure, but we must not confuse separation and isolation. The former may or may not be wise; the latter is fatal, yet it is to the latter that we have been steadily and constcintly tending. As Judge Story said in criticizing our present- system : The heads of the departments are in fact thus precluded from pro- posing or vindicating their own measures in the face of the nation in the course of debate and are compelled to submit them to other men who are either imperfectly acquainted with the measures or are indifferent to their success or failure. Thus that open and public responsibility for measures, which properly belongs to the executive in all governments, and especially in a republican government, as its greatest security and strength, is completely done away with. The executive is compelled to resort to secret and unseen influences, to private interviews and private arrangements to accomplish its own appropriate purposes, instead of proposing and sustaining its own duties and measures by a bold and manly appeal to the nation in the face of its representatives. There is no question in my mind that the presence of the chief executive in the legislature would result in the passage of wise and beneficial legislation; for who is better qualified to foretell the effect of laws than those charged with their exe- cution? Such participation would also furnish that coopera- tion and cohesiveness so necessary to the smooth running of any intricate and delicate machine. Moreover, the governor and his cabinet should be under a duty to answer, upon due notice being given, all proper inter- (135) 136 REVISION OF THE STATE CONSTITUTION [Vol. V pellations. In this way the legislature will most promptly, economically and effectively perform its function of critic, the object of investigations be at once attained without ex- pense and delay, and any wrongdoing be given publicity through the legislature, which will thus perform functions now depending upon the newspapers as the result of our clumsy and inefficient legislative methods. This one benefit is in itself invaluable, as anyone who has studied the English system, or has been present in the House of Commons when " questions " are in order, will testify. Mr. Bryce says: British ministers are obliged to tell Parliament everything that is being done in the course of our administration which it is not incon- sistent with the public service to disclose. They must answer all questions put to them about what they are doing, and how they are doing it, and why they are doing it. It is good for them. Like other ministers, I have, when a member of the British cabinet, some- times found the process tiresome. But I never doubted that it was a good thing for everybody concerned. The great argument against this particular reform is that it would further diminish the power of an already declining legislature. To this view I take sharp exception. Far from weakening the legislature, it would, to my mind, prove invig- orating. It is true, of course, that it is becoming increasingly hard to get our ablest men to become senators and assembly- men ajid that those positions are no longer looked upon with the same degree of honor as they were in the earlier days of the republic. This is due to a great extent to the fact that the legislature has been limited in power, and consequently has diminished in dignity, and in the second place to the fact that it no longer furnishes a real stepping stone to larger and more responsible positions in public life. The presence of the chief executive on the floor of either house would not only add dignity to its debates, but would serve the further pur- pose of attracting public attention to deliberations which are no longer held with the people as audience. It could not but have a stimulating influence on the members while offer- ing an inducement to ambitious men to enter this branch of (136) No. I] THE EXECUTIVE IN LEGISLATION 137 the public service. The Icist is particularly true when you consider that under such a system a practice would almost inevitably grow up of choosing heads of departments from among the members of the legislature not only because of their familiarity with the machinery of government, but be- cause of their skill in debate acquired while either supporting the administration or opposing it. Thus might we not reasonably hope to see in a compara- tively short space of time the able men of the state serving it in a legislative capacity, and preferring service at the state capital rather than service at Washington as the best means of advancement; our legislatures restored to public confidence and honor; and representative government saved from the attacks which now threaten its very existence? EDGAR DAWSON Professor of Political Science, Hunter College My contribution to this discussion is some added emphasis on two facts : First, that all legislation must and will be the result of leadership ; and second, that we must decide whether we want this leadership to be in the hands of a governor whom we elect or in the hands of a party boss with whose elec- tion we have nothing to do. I use the word boss only because there is no other way of conveying my meaning, not because I attribute any undesir- able characteristics to the person to whom I apply it. I have in mind the unofficial, somewhat inconspicuous person who really controls a party's councils and directs its policies. Everyone who knows anything of party organization knows that the party is closely organized and that discipline is rigid. There is no doubt in the minds of any of the party workers who is boss, who controls the action of the party. It is this head of the organization or machine to whom I refer when I use the unfortunate term boss. When one analyzes it, the legislative process falls naturally, it seems, into three elements. These elements are the initia- tion, the drafting, and the ratification of laws. (137) 138 REVISION OF THE STATE CONSTITUTION [Vol. V One need not argue that initiation is the work of a leader. We know that the initiation of laws in the state of New York is not satisfactorily done at present. There is so much dissatis- faction that there is even talk of adopting the popular initia- tive, which of course is going in the opposite direction from reform to secure responsibility, though it might in isolated cases be needed, as would a gun behind the door, to use Presi- dent Wilson's words. The governor is selected as the representative of the ma- jority of the people of the state. I assume the short ballot in existence, for if we cannot get this amendment when the con- stitution is revised any talk of reform is out of the question. Everyone with any influence is committed to it. The governor is selected as the representative of the majority party, and he is the only person who does officially represent the whole state. If laws are to be initiated, is not he the person who should speak for the majority? He must see that the party pledges are redeemed. He knows on what principles he has been elected. He will be pointed out with scorn if his administra- tion fails to do the things the people hopefully expected of him and of it. The initiative is not enough for him to control, however ; he must also be empowered to present his bills to the legislature drawn in the form in which he would have them enacted. It is said that Governor Wilson, of New Jersey, went into power on a platform that demanded that grade crossings be abol- ished. But when he received the bill which the legislature passed to abolish grade crossings, he found that they did not want them abolished, and had therefore written a bill in which they had placed conditions which were impossible. He would have stultified himself had he signed the bill. It was neces- sary for him to veto a bill providing legislation which he had himself advocated and in which he ardently believed. The need of careful and honest bill-drafting is one of the reasons for doubting the efficacy of the popular initiative and of pre- ferring the reform we are advocating to-day. But there is no use in sending a well-drafted bill to the legislature unless there is a way of getting action on it. State (138) No. i] THE EXECUTIVE IN LEGISLATION 139 legislatures are adepts at letting bills die a natural death. The governor must have the privilege of requiring a vote on his bills within a reasonable length of time. We hear now and then a good deal about the usurpation of the executive. Most of our best governors have been accused of this sort of usur- pation — Roosevelt, Hughes, Wilson and others. The expres- sion means that the governor supports his demands that the party platform be carried out, and supports his demand with cogent arguments that appeal to the great body of citizens, thus making those persons who do not find it convenient to carry out the party platform very uncomfortable. They are injured by this sort of executive usurpation. It is the duty of a legislature to impeach a governor guilty of real usurpation. All that the legislature need do to resist the kind of usurpa- tion meant by the critics referred to is to refuse to vote for the governor's bills. Then of course it is necessary for the members to settle with constituents, which may be difficult. During the last four years the legislature of the state of New York has considered on an average each year about 3,000 bills; it has sent up to the governor each year on an average about 1,000 bills. At least one of these bills contains about 275 large pages. Certainly the legislature does not consider in two houses meeting less than three months in the year this mass of legislation. There is leadership if not dictation in it all ; but it is leadership that is willing for a great deal of use- less or meaningless legislation to go through in order that other legislation may not attract attention. I would not, how- ever, leave the impression that I impute viciousness, or any more viciousness than is inherent in things human generally. It is not viciousness that I charge; it is inefficient manage- ment due to a stupid system. Whether our present system is the result of a Frenchman's misconception of the English constitution, or of a desire on the part of the fathers of our political system to protect us from the too direct control of the democratic multitude, or is a mixture of these, it is certain that the separation of powers (I do not refer, as Mr. Cleveland in his discussion seemed to suppose, to the division of powers, but to their separation, or (139) I40 REVISION OF THE STATE CONSTITUTION as Mr. Mills says, their isolation) was imposed upon us before our party system was developed. Party management is what makes our system of separation of powers more unbearable than it would otherwise be. As Professor Ford has pointed out, it gives the machine or the leader of the machine an op- portunity to become the mediator between the legislature and the executive and thus to secure more or less control of both of them. Neither one can act satisfactorily without the aid of this ever-present mediator. If the governor is not the leader of his party, then let us find the leader of the party and elect him. If we do not want to elect the boss governor, then let us give the man we do elect an opportunity to act as the party leader, as the one who initiates the policies of his own administration, and requires the legislature to say whether it is willing to do what the leader of the majority believes the party has promised to do. The separation of powers was imposed upon us when con- ditions were entirely different from our present conditions. It was accepted under an erroneous impression of the English constitution which we were following. There is no valid ar- gument in favor of it at present except conservatism or stag- nation. Why should we not give it up ? Is there any reason why the greatest state in the union should not set the example of surrendering this outworn and useless formalism? Where are the defenders of this separation of powers? Who brings forward any reason why it should survive? We are asking that the state undertake the following re- form, which is advocated by many of the most careful stu- dents of government, and opposed by none. No practical statesman of any considerable standing believes the change will work anything but good for our public business. Let us provide in the constitution that the governor and his heads of departments may sit in either house of the legislature, and introduce and defend there bills drawn under the governor's direction. Let us give the governor power to require that the legislature vote on the bills thus presented within a reasonable length of time from their introduction. (140) CONSTITUTIONAL PROVISION FOR A BUDGET' FREDERICK A. CLEVELAND Director, Bureau of Municipal Research IN 1 91 2 President Taft, by special message, submitted to Congress a definite budget plan for the management of national finances.^ Shortly before the end of his ad- ministration he sent a second message/ urging that next year's plans and next year's finances be taken up as a whole, and in a manner to locate and define responsibilty for proposals in- volving the raising and spending of public money. This sug- gestion was presented to Congress as an alternative to having financial measures split up and virtually decided by one or an- other of some twenty unrelated congressional committees, and forcing the administration later to patch together enactments like a crazy-quilt after official requests had been dragged over the crooked and thorny paths of legislative compromise. These two eiforts to obtain the cooperation of Congress in es- tablishing a budget procedure stand out in four years of Presi- dent Taft's official life as efforts which received universal ap- proval; even in the face of a bitterly partisan and personal campaign, editorial opinion of all political faiths joined in support of his proposal. Public opinion has reacted in the same way when state and municipcil budgets have been pro- posed. The idea of having some way of presenting a financial plan in a form which can be understood appeals to everyone. Notwithstanding this fact, we are a budgetless people. In the constitutional sense the federal government has no budget; state governments are without budgets ; most of our municipali- ties are without budgets. ^ Read at the meeting of the Academy of Political Science, November 19, 1914. 2 The Need for a National Budget, House doc. 854, 62d Cong., 2d sess. ^A Budget — Submitted by the President to Congress, Sen. doc. 1 1 13, 63d Cong., 1st sess. (141) 142 REVISION OF THE STATE CONSTITUTION [Vol. V Confusion of Thought in this Country Concerning a Budget This is not because we have not been keenly alive to a need for the orderly consideration of public business; but because public men have not had clearly before them what a budget is and its relation to constitutional government. In the United States, the estimates and requests for appropriations are usu- ally called the budget. This very loose use of the term could not obtain if we had an effective budget procedure. Imagine one attempting to give such a meaning to the term " budget " in England, for example, where the departmental estimates of expenditures are submitted to Parliament at a different time and are considered by a different committee than the budget. Here in America, again, the appropriation bill not infre- quently is called the budget. Such is the practice in New York city. But in governments where budgets are made a part of the machinery of public business the appropriation bill could not be so mistaken; often the appropriation items are all voted before the budget is sent in. The British practice is this : Early in each annual session the estimates are submitted to the House of Commons, which, upon hearing them, sits as a committee of the whole house, known as the committee of sup- ply. Each department presents its estimates in a huge quarto volume with minute entries of moneys wanted for the follow- ing year. Condensed synopses of these quartos are made with the object of rendering clear the policy back of the requests for money. Any member may ask what pertinent questions he pleases of the minister who is presenting the departmental es- timates, so that no request need be passed by without full ex- planation. After the statement has been completed to the satisfaction of the committee, a vote is taken. But the votes are only the first steps in Parliament's annual supervision of the public finances. In order to consider the means by which money is to be raised to meet the expenditures sanctioned by the committee on supply, the House resolves itself into a com- mittee of the whole, under the name of committee of ways and means. It is to this committee that the Chancellor of the Ex- chequer submits his budget.^ ^ Wilson, Congressional Government, pp. 138 et seq. (142) No. 1] PROVISION FOR A BUDGET 143 What is a Budget? So far we have spoken on what a budget is not. Having in mind this confusion of ideas, as well as the purpose of the Academy in bringing the subject before the constitutional convention, would it not be well, even at the risk of tedium, to go over some of the commonplaces descriptive of what a bud- get is ? England is said to be the mother of budgets. There the budget idea was incorporated in its most fundamental consti- tutional document — Magna Charta. There a settled budget practice long antedated the settled use of the name. The word budget was introduced from the French, but the constitutional principle to which it applies was English. Thus we find that Major General Balfour, in a paper read before the Statistical Society of London, in 1866, said: I use the word " budget " in the sense attached to it by M. le Mar- quis d'Audiffret, ... an author who appears to be a good authority on financial questions. . . . Monsieur d'Audiffret says the word " budget " or " bouge " or " bougette,'' according to Pesquier and ancient writers, as well as in the old language of Rabelais, is derived from the Latin word bulga, become Gallic, which expresses a bag, a pocket, a purse. England has applied it to the great leather bag which for a long time contained the documents presented to Parlia- ment to explain the resources and the wants of the country. This new interpretation has also been adopted in our language in imita- tation of the forms and expressions of the constitutional idioms of Great Britain, and only appeared for the first time in the Acts of the French Government, in the decrees of the consuls, in the interval between the month of August 1802, and the month of April 1803, in which this term budget replaced the former estimate of receipts and expenditures.'^ ^ Whatever else a budget is or is not, it must have these essen- tials : ( I ) It must be a definite plan or proposal for financing the present and future needs of the state; and (2) it must be ' Journal of Statistical Society, vol. 29, p. 325. ^ " Budget, a word borrowed from the English, is used in the public admin- istration to signify the annual statement of expenses which it is presumed shall have to be made, and of funds or sources applicable to those expenses." — Dic- tionnaire d' Academic Frangaise. (143) 144 REVISION OF THE STATE CONSTITUTION [Vol. V submitted to a legislative body by an officer who may be held responsible for the wisdorri or unwisdom of its proposals, i. e. it must serve as an instrument through which both executive and legislative responsibilities to the electorate may be located and enforced. What a Budget Should Contain As it is of much importance thjat there be no question, in this discussion, with respect to what is meant by a budget, I ^hall be still more concrete and attempt to state what the bundle or bag full of papers referred to should be and contain. I. A budget should contain a summary statement, in the simplest possible terms, setting forth a proposed plan for financing next year's requirements ; ^ and this statement should balance prospective resources against estimates and requests for expenditures.^ ,2. A budget should be an instrument of accountability — a statenjent prepared by a responsible executive or administra- tive. officer^sjipwing present financial conditions and past re- sults.* 3. As an instrument of accountability and financial plan- ning, a budget should contain (a) statements showing actual and estimated revenues and expenditures;* (b) statements ' It jp^ould comprehend the fiscal program. — Lowrie, The Budget, p. 11. That,. the budget should be introduced as a comprehensive document will doubtless be conceded. . . . The budget should be clear, simple, easily under- stood. . . About all that the rank and file of the legislative body is called upon to consider is the aggregate of expenditures and the apportionment . . . to the several lines of public service ; for so far as income is concerned it is hartlly to be expected that individual members . . . will proceed in their analy- sis .. . beyond a study of general principles underlying the project of law. It is, of course, necessary that estimates should rest on a careful scrutiny of details . . . but this task is either performed by the government or is intrusted to a specially appointed committee. — Adams, Finance, p. 142. ' A balance of needs and resources of the state. — -J. B. Say. ' The aim of this report is to give information to the legislative body. ... The budget is a report on the nation's finances, designed primarily to show to the legislature the condition of the public treasury and the fiscal means of the state. — Adams, Finance, p. 105. In this relation it is of interest to know that the French law puts its budget provisions in that part of the code dealing with public accounting. * The general condition of a nation's finances must be known before a rational (144) No. I] PROVISION FOR A BUDGET 145 showing actual and estimated financial condition, surplus or deficit. 4. Budget statements showing actual estimated revenues and expenditures should provide all the information needed for considering and determining executive recommendations, as well as legislative action, relative to money-raising policy; and executive recommendations, as well as legislative action, relative to money-spending policy.^ 5. The budget information pertaining to estimated expendi- tures should be such as to support and explain items in the ap- propriation bill, if one is presented with the budget, or, if not, to enable the proper authorities to draw such a bill. 6. Since the amount of money to be voted for payrolls, sup- plies, etc., must be governed by work to be done, the budget should contain a well-defined " work program " — ^a statement setting forth what it is that the administration proposes to do with the supplies requested. 7. The " work program " set forth in a budget should be in two parts — one which shows the necessary or proposed costs of rendering public service, and one which shows the proposed costs of making public improvements or betterments — i. e., current expenses and charges should be clearly distinguished from capital outlays. 8. A budget should be transmitted as a part of a speech or message or letter from the responsible officer who prepared the plan or program interpreting the significance of the statement and estimates to the legislative body which is asked to pass on it. opinion upon any particular proposal, respecting either income or expenditure, can be entertained. ... It is necessary . that a budget statement should begin by an exhibit on a single page of the aggregate of actual receipts and expenditures for the year past ; the aggregate of receipts and expenditures, actual and estimated, of the year current ; and the aggregate of estimated re- ceipts and expenditures for the year for which laws are enacted. — Adams, Finance, p. 142. ' To say that the budget statement should be comprehensive, does not, how- ever, answer all the questions that arise respecting its form; for the query still remains respecting the classification of revenue and expenditure most condu- cive to clearness of discussion and intelligent legislation. — Adams, Finance, p. 142. (145) 146 REVISION OF THE STATE CONSTITUTION [Vol. V Still greater concreteness may be given to what is meant by the summaries and statements described by illustrations. For this purpose some of the forms recently submitted to councils of the city of Philadelphia are attached as an appendix to this paper. '^ The Constitutional Purpose of a Budget So much for the formal aspects of a budget — the program. The element of responsibility is still to be considered. Critical appraisement of budget forms and procedures can be made only after consideration of their constitutional purpose. The original and fundamental purpose of a budget was to enforce official responsibility. Magna Charta was a protest against ir- responsible government; therefore the king was forced to sign an agreement that no revenues would be raised, except after consent and approval by representatives of the people. This fundamental constitutional requirement, this provision for con- trol over revenue-raising, laid the foundation for all modifica- tions in government structure and practice. This principle of constitutional law for curbing official irresponsibility has lain back of all budget procedure. Before the king could obtain consent to his proposals for money-raising, he must do two things : 1. He must satisfactorily explain what he did with moneys previously obtained. 2. He must satisfactorily explain what he proposes to do with future grants. The constitutional formulae which have followed are found : in the inhibitions laid on spending officers that no money shall be expended except pursuant to an act of appropriation ; in the constitutional prescription that the executive shall each year submit to the legislative branch of the government a full state- ment and account of moneys received and disbursed ; in the re- 1 The summaries shown on pp. 163 et seg. following the main text of this paper will serve to illustrate the formal requirements of a budget. The second essential, the element of responsibility for the proposals, is missing in the Phila- delphia practice. In New York city, provision is made for the element of responsibility, but the formal element, the program itself, is missing. (146) No. 1] PROVISION FOR A BUDGET 1 47 quirement that the executive annually shall give information by message of the conditions and needs of the state and recom- mend such measures as he shall deem expedient. More minute working adjustments have taken the form of enactments, the purpose of which was to make these constitutional principles effective. Control over the purse has been the most powerful influence in differentiating and defining legislative and execu- tive functions — the ultimate force that has determined the de- velopment of our whole modern governmental system. How Control over the Purse was Used to Develop Ojficial Responsibility A broad In this relation it is of interest to note the contrast between the development of constitutional provisions for locating offi- cial responsibility in the United States and abroad. Up to the time of our independence constitutional government had been largely a matter of unwritten law. The American states or- ganized around the most advanced ideas of responsible gov- ernment which had been developed through centuries of con- flict between Crown and Parliament in England and through a long colonial experience. The American states became the pioneers in expressing these advanced constitutional ideals in written form : the separation of powers ; giving to the legis- lature control over the purse; making executive officers ac- countable. To these we added the principle of regular and frequent elections, as a means of insuring that those who were selected to exercise political powers would not usurp these powers, that they would remain both responsible and respon- sive to the popular will. But after our independence, what happened? Abroad a pro- cedure was gradually evolved which was adapted to making governing officers more responsive to public opinion. Eng- land and France, and later Germany, all the nations of Europe, Japan, China, all the British colonies, continued to elaborate the means for holding officers to their responsibilities. Our governmental agencies (national, state, municipal) failed to do this and have become more and more irresponsible — in fact, the most irresponsible of all governments of our time, except (147) 148 REVISION OF THE STATE CONSTITUTION [Vol. V possibly those of Mexico and some of the South American re- publics. And this growth in irresponsibility has come about largely through a different application of the principle and a different procedure for the exercise of power over the purse. In Europe a procedure was developed requiring the executive to assume responsibility for preparing and submitting a plan, and requiring the legislature to assume, responsibility for sanc- tioning or refusing to sanction executive proposals. Here a procedure was developed which did not require the executive to assume responsibility for preparing and submitting a plan, and which did not make the legislature responsible for acting on the executive proposals. England and the principal Euro- pean governments adopted the theory of governmental action commonly used by private corporations, the underlying as- sumption of which is that the chief executive is the only one competent to formulate plans and proposals and bring these before the board for adoption or rejection. Not only did their procedure locate in the executive responsibility for the origina- tion of proposals with respect to work policy and financial policy, but they also formulated a legislative procedure for testing the character and propriety of executive proposals by making the " opposition " effective. The committees of Par- liament were so organized that they might serve as the agen- cies of the "administration ;" the floor of Parliament was made the opportunity of the " opposition " to inquire critically into every line of estimates, every detail of the work plans and financial measures of the " administration." This not only had the effect of giving to the country the benefits of strict offi- cial scrutiny, of getting every issue before the country, but of giving to the administration the benefit of knowing what the opposition would be before measures were passed. So it was that other governments were made more and more responsible and responsive to public will. Note the effect of this in the development of the constitu- tional machinery of Great Britain. Fox, in 1782, was the first minister to admit that he was responsible to the House of Commons as the electoral college, the representatives of the people in their choice of the executive. Prior to that time (148) No. I] PROVISION FOR A BUDGET 149 ministerial responsibility meant only legal responsibility, and legal responsibility could be fixed only in the entire cabinet. Says Anson in his Law and Custom of the Constitution : "There was no instance before 1830 of a ministry retiring because it was beaten on a question of legislation." The formal recog- nition of executive responsibility to the electorate in England, as we understand it, dates from the Reform Act of 1832. Since that time a procedure has been gradually perfected there that makes the British government more and more nearly what was conceived by our forefathers to be fundamental and to conform with ideals of popular sovereignty. Now the refusal to accept any substantial financial measures submitted and insisted on by the executive amounts to a recall of the executive and may operate as a recall of both executive and legislative. As has been said, the procedure developed in the leading constitutional governments other than in the United States was one which forced the executive as the constitutional head of the government to stand before the country as the one who must develop a definite business plan ; and one which forced him as the operating head of the corporation to lay before par- liament the measures which he deemed necessary and expe- dient. As a condition to favorable action or a vote of confi- dence it also forced him to render an account of stewardship, to tell what had been done with supplies voted. To make re- sponsibility doubly sure it forced the executive not only to state what his plans were, what supplies would be needed and how revenue might be raised to meet the government's needs, but to formulate authorizations to spend and to raise money in the form of " bills " on which the legislature was to act. The last step was a restriction imposed by Parliament on itself, denying itself the right to increase any item, thereby putting the executive in the position where he must amend his proposed measure if the " opposition " seemed to make this desirable. Hoiu Control over the Purse was Used Here to Develop Official Responsibility In America all of this would have been possible under our constitution. In fact, a reading of the constitution of the (149) 150 REVISION OF THE STATE CONSTITUTION [Vol. V United States makes it clear that some such procedure was contemplated by the federal convention/ It is also quite as clearly worked out in many of our state charters. There can be no question about the intent ; i. e., no question about the power of the executive and the power of the legislative branch. The same principle is there but the procedure developed under these fundamental charters was one which gradually operated to defeat this principle. The procedure was not adapted to locating responsibility; it was not adapted to enforcing it through appeal to the electorate. Here not only has official responsibility not been enforced by the legislature through control over the purse, but the power of the legislature to con- trol the purse has been exercised to subvert the underlying purpose of our constitutions. Instead of developing a practice which would hold the executive to strict accountability, as head of the administration, through acts of appropriation and the riders attached, the legislature gradually maneuvered itself into the position of head of the administration and left to the executive practically nothing but his veto power over legis- lation. The reason for this is also quite plain. When we adopted cur constitution the one great fear was that of executive power. The abuse of executive power was the thing that loomed large in the popular mind during the War of Independence. Since that time we have gone on in the thought that we must protect 1 " To the President also has been given very definite responsibility. To the end that the Congress may effectively discharge its duties the article of the constitution dealing with legislative power provides that • a regular statement and accounts of receipts and expenditures of all public moneys shall be pub- lished,' and the article dealing with the executive power requires the President ' from time to time to give to Congress information on the state of the Union and to recommend to their consideration such measures as he shall deem nec- essary and expedient.' . Although the President, under the constitution, may submit to Congress each year a definite well-considered budget, with a mes- sage calling attention to the subjects of immediate importance, to do this with- out the cooperation of Congress in the repeal of laws which would be conflict- ing and in the enactment of laws which would place on the heads of depart- ments duties to be performed that would be in harmony with such procedure, would entail a large expenditure of public money and duplication of work." — Message of President Taft, June 27, 1912. (ISO) No. I] PROVISION FOR A BUDGET 151 ourselves from the exercise of executive power. This, like most of our governmental practices, has grown out of a purely negative philosophy. Now we are beginning to long for some- thing positive and we find that our government is tied ha.nd and foot. The fact that the underlj^ing principles and purposes of our constitutions had been subverted has been before us for thirty years, yet nothing has been done. In 1885 President Wilson, in his work on Congressional Government, said : We have been conscious . . . that there has been a vast alteration In conditions of government, that the checks and balances are no longer effective and that we are really living under a constitution es- sentially different from that which we have been so long worshiping as our own peculiar incomparable possession. . . . The noble charter of fundamental law given us by the convention of 1787 ... is now our form of government rather in name than in reality. What was also pointed to at that time and what the whole peo- ple have come to realize is this, that our real danger is not the exercise of power, but irresponsibility. To paraphrase President Wilson's conclusions in this respect: every phase and detail of administration is reduced to prescription of law by a legislature composed of hundreds of members, each of whom has his eye on a local constituency — men who have no responsibility to the state or nation as a whole, who have no responsibility for administrative acts or results. Public busi- ness that costs the country millions of dollars each year is con- ducted by an irresponsible bureaucracy, operating under the direction and control of irresponsible legislative committees. There can be only one result — irresponsible government. Five Propositions for the Consideration of the Constitutional Convention The purpose of this meeting is to raise questions for con- sideration by the constitutional convention. With respect to provisions that have to do with control over the public purse, two negative and four positive proposals are submitted, viz. : I. That while to the legislature of the state is given the (iSi) 152 REVISION OF THE STATE CONSTITUTION [Vol. V power to raise money and to make appropriations, the legis- lature is not and in the very nature of things cannot be ef- fective as a budget-making body. 2. That the state " Board of Estimate " as at present legally constituted cannot be an effective budget-making body, that the preparation of an annual statement and a plan for financing future expenditures by such a body cannot do otherwise than defeat every constitutional purpose which a budget is to serve. 3. That preparation and submission of a budget is essentially an executive function. 4. That an executive cannot be effective as a budget-maker unless he is provided with a specialized " staff," which will have no responsibility for the execution of policies involving the expenditure of money. 5. That an executive "staff" which prepares the budget should be responsible to the executive or head of the " line " of administrative authority ; and that the head of the " line " must be responsible to the electorate. 6. That, with a view to enforcing responsibility on the exec- utive as well as on members of the legislature, the legislative branch should be so organized as to make the " opposition " effective — ^this in place of the present theory and practice of legislative organization, the purpose of which is to smother opposition. The Legislature not an Elective Budget-Making Body Frequently in this country the legislature is spoken of as the budget-making body. This is cunong the worst of our fallacies. Constitutionally, the legislature is and must remain the branch through which control over the purse is exercised. To this end it is necessary that the constitution shall retain the inhibi- tions that no money shall be raised or expended except pur- suant to its acts. But this is quite a different thing than mak- ing a budget. To confuse an act of appropriation with a bud- get is like confusing a resolution of a board of directors of a corporation with the annual report. As has been said, a budget to serve its constitutional purpose must have two essentials : it must serve as a report on the re- (152) No. I] PROVISION FOR A BUDGET 153 suits of past management which carries a well-considered plan and financial program for the future; and it must be prepared and submitted to the legislature by someone who can be held responsible to the body politic for its proposals. The legisla- ture cannot meet either of these requirements. The personnel of the legislature cannot report on the results of past manage- ment and be effective in the formulation of plans for future work because it is not in charge of the details of public busi- ness, and even if it could, its report and proposals could not serve the purpose of a budget. The underlying purpose of a budget is to force the executive to account for supplies prev- iously granted, and to lay before the legislature and the coun- try his plans before another grant is made. The only effective function that the legislature can perform is that of an agency of review and inquiry on the one hand, and of decision with respect to matters of policy on the other. When the legisla- ture itself undertakes to formulate plans for the administra- tion, the country is deprived of all the benefits of a budget. Even if the legislature were a small body, it would be in no better position to prepare and submit to itself or to the country a report and financial prospectus with recommendations than is a board of trustees of a private corporation which as a matter of business sense puts this responsibility on the chief execu- tive. Recognizing the impracticability of such action on its part, the board of trustees requires the president of the cor- poration to submit at the annual meeting a statement of affairs and a definite program for the approval of the board as a guide for action. Again, the personnel of the legislature cannot be held re- sponsible to the electorate for the plan and proposals sub- mitted. Each member represents a local or narrow interest. No member knows what is required to facilitate the business in hand. No member has before him the needs of the state as a whole. No member can be held to account for his acts to the state electorate as a whole, but even if he could, he is not in touch with the everyday needs of the government as they have developed in course of administration. It is in recogni- tion of the local and restricted interest and contact of each (153) 154 REVISION OF THE STATE CONSTITUTION [Vol. V member of the legislature that a political party united by some expression of principle, rather than the individual, has become the instrument for enforcing responsibility in acting on budget proposals and other legislative matters. The State "Board of Estimate" not Adapted to Budget- Making In 1 91 3 an act was passed establishing a state board of esti- mate.'^ The primary purpose of this board was to make a budget. The board is made up of the governor, lieutenant- governor, president pro tempore of the senate, chairman of the finance committee of the senate, speaker of the assembly, chairman of the ways and means committee of the as- sembly, controller, attorney-general, and commissioner of effi- ciency and economy — four members ex officio of the legisla- tive branch and five members ex officio of the executive and administrative branch of the government. The powers and duties of this board as defined by statute are as follows : 1. To keep minutes of meetings which shall be open to pub- lic inspection. 2. To prepare " estimates " of amounts required to be ap- propriated. 3. To examine all requests for appropriations. 4. To hold such public hearings as may be advantageous. 5. To transmit its estimates to the legislature with such recommendations, reasons, and explanations as shall be deter- mined. 6. To prescribe forms for the preparation of departmental estimates. 7. To transmit the estimates of the department with its own estimates to the legislature. 8. To aiford heads of departments a reasonable opportunity for explanation and hearing. 9. To make an estimate of all moneys required to be ap- propriated for the payment of interest and sinking funds. An Act to Establish a State Board of Estimate. — Laws of igi3, ch. 281. (IS4) No. I] PROVISION FOR A BUDGET 155 10. To make an estimate of the revenues of the state ex- pected to be received during the next fiscal year and to make such recommendations with respect thereto as shall be deemed appropriate. 11. To ascertain and report the amounts of all unexpended balances of appropriations theretofore made and to make such recommendations to the legislature as shall be deemed ap- propriate for the disposition thereof. From the foregoing analysis it will be seen that the per- sonnel and the duties are partly executive and partly legisla- tive. Not only is the plan itself one which tends to confuse rather than to define responsibility, but the futility of such an agency for the purpose was shown the first year. The board was unable to agree; it failed to formulate definite proposals; it did not submit to the legislature a report. In this relation it is also to be noted that at the time this committee was created, there were two other agencies on which had been conferred powers similar in character, namely, the controller, and the commissioner of efficiency and economy. For example, the latter officer was given the following powers : ^ 1. To make a careful and thorough study of each office. 2. To examine the accounts and methods of business ac- counting and administration of the several offices. 3. To prescribe forms for the submission of departmental estimates. 4. To examine such statements and to make such recom- mendations as in the opinion of the commissioner would con- tribute to promote efficiency and economy in the administra- tion of the state's business. Pursuant to the powers which were given to the commissioner of efficiency and economy and to the controller, each of them made a report to the legislature with recommendations bear- ing on next year's finances. However, the controller con- fined his attention largely to the discussion of proposals for ^ An act to provide efficiency and economy in the public service and to create a department of efficiency and economy. — Laws of 1913, ch. 280. (ISS) 156 REVISION OF THE STATE CONSTITUTION [Vol. V raising revenues, and the commissioner of efficiency and econ- omy confined his report largely to recommendations with re- spect to the appropriations. Budget-Making Essentially an Executive Function Mention has already been made of the practical reason for having the executive or administrative branch of the govern- ment prepare and submit an annual statement of aflfairs, with proposals for the consideration of the legislature. There is another and still more vital reason for making the chief ex- ecutive the one to prepare and submit these proposals. This reason relates to the second essential of a budget, namely, that the budget-making officer should be one who may be held responsible to the electorate. The governor is the only offi- cer chosen by a state-wide constituency on whom this im- portant function may devolve. Various other officers have been required to perform this function for state government, but to little purpose. Even though other officers may be elected at large, they have little or no responsibility for the business to be reported and proposed. The governor is the head of the administration ; he can be made responsible only by requiring him to submit to the legislature a definite finan- cial plan or program, with recommendations as to what shall be undertaken by the state. But the requirement that the chief executive shall make and submit a budget is not ^dl that is necessary to define responsibility. The proposals must stand on their own merits. If every member of the legislature is permitted to come in and tinker with the plan before adoption, all responsibility is destroyed. If it will not stand criticism, then the executive should be required to amend it so that it will still be his plan, and if the executive is not able or willing to submit a plan which will be approved, then some method must be provided for getting the issues before the electorate. This can be done in any one or several of these ways : ( i ) by giving to the executive the power to prorogue; (2) by giving to the legislature the power to call an election; (3) by a provision in the constitution authorizing the administration to run on the basis of previous appropriation until the next elec- (156) No. I] PROVISION FOR A BUDGET 157 tion; or (4) by giving to the electorate a right to recall the governor and the legislature. A Specialized Staff an Essential In ■ nine states constitutional provision has ' been made requiring the governor " to present estimates, at the com- mencement of the session, to the legislature of the amount of money required to be raised by taxation for all state purposes." ^ These provisions, however, have failed in part at least to fulfil their purpose for lack of an effective staff agency by means of which the executive may inquire into working conditions, keep himself informed and formulate well- considered plans for the future. In fact, it may be said that government in this country has differed essentially from gov- ernments abroad, in that we have almost wholly disregarded the " staff " side of our political organization. As time goes on, as our public institutions have become more complex, executive officers have had an increasing load of responsibilities placed upon them by law with no added means provided for their discharge. The result is that from the first day of official life they have found that they were slaves to an official grind which left little or no opportunity for planning or for the consideration of plans. In public, as well as in private business, there has been an increasing need for the development of a " staff," an agency which will be free from the routine of administration, one which rnay devote itself to inquiry and to the preparation of plans ; to the consid- eration of results; to the making of recommendations; and to advising with executive officers on matters that are before them for decision. The primary purpose of a budget is institutional planning. An institutional plan must necessarily be based on considera- tion of the details of work-plans. Each service to be per- formed, each improvement to be made, must be taken up with a view to determining what are the needs to be met and what are the requirements in order to meet these needs. There 1 Frederick J. Stimson, Federal and State Constitutions of the United States, pp. 242-3. (157) 158 REVISION OF THE STATE CONSTITUTION [Vol. V must be careful consideration of the wisdom or lack of wis- dom of proposals made by the various offices and departments. These are interested in the development of their own services. But, if responsibility is to be defined and enforced all plans should " clear " through the chief executive — the one who must stand or fall on his record. To become effective, there- fore, as a budget-maker, the chief executive must be provided with a specialized staff free from administrative burdens and responsibilities that it may approach consideration of executive policy and needs and the expenditure of public money objec- tively — a staff which is both adequate and competent inde- pendently to advise the chief executive on every matter of state business. The Budget-Making Staff Should be Responsible to the Executive Accepting the budget as an executive document, there is the same reason for making the "staff" which prepares it an execu- tive agency, responsible to the governor. This is supported not only in reason, but in experience. In England, for ex- ample, the responsible head of the government is the Prime Minister. He usually chooses the portfolio of the treasury, because this is not a department of public service. Under the Prime Minister in the treasury is an executive officer corres- ponding roughly to our Secretary of the Treasury. The Chan- cellor of the Exchequer is himself largely detached from the various public-service departments and is in position independ- ently to review their action. But below him are various staff agencies which have been set aside for the specific purpose of auditing and reviewing the transactions of departments, pre- paring reports and formulating plans for financing the gov- ernment's needs. Although there are differences in organiza- tion for accomplishing the result, the same principle obtains in all European countries. It is a peculiar fact that although we have been developing staff agencies in this country in var- ious departmental service relations no staff agency has been developed around the work of planning the go\-ernment's busi- ness as a whole, except the recently established staff agencies (158) No. I] PROVISION FOR A BUDGET Ijg of the board of estimate and apportionment of the city of New York and a few other cities ; and in various civil service com- missions, which later have had the negative purpose of stand- ing in the way of the exercise of executive power instead of being of service to the executive in the development of an efficient personnel. An Effective "Opposition" Necessary to Enforce Responsibility Reference has been made to the procedure in the House of Commons for giving the " opposition '! a chance, especially in discussion of authorizations to the administration to raise and spend money. To this end departmental estimates are sub- mitted to Parliament long before the budget is sent in. Par- liament then decides what time will be given to the considera- tion of these estimates. After this has been fixed, the House regularly under its rules resolves itself into a committee of the whole to give the " opposition " an opportunity to ask ques- tions about the items requested. When submitted, the esti- mates have already been gone over by representatives of the majority. In other words, through caucus and committees the chief executive takes the steps necessary to find out what will be the attitude of the supporters of the administration. The chief executive and the country as well have the advantage of developing the " opposition " on the floor of the house. Con- trast this with our own method. Our whole legislative practice has developed on the principle of "gag rule." The purpose has been to smother the opposition, giving no opportunity for in- telligent criticism before measures are passed. The adminis- tration and the majority party, therefore, go ahead blindly until the next election when they wake up to find that they have been relegated to the political junk-heap; men who have tried to serve their constituency well have been given a vote of ■■' lack of confidence," with no opportunity to adjust themselves and their policies to public opinion. The effect of our system is, therefore, not only to deprive the government of the benefit of criticism on the part of those who have opposing views, but to defeat all effort toward establishing responsible govern- ment. While we have developed more orderly methods, the (159) l6o REVISION OF THE STATE CONSTITUTION [Vol. V result is essentially the same as in Spanish American countries. The people are always in the attitude of wanting a change. They do not pass on issues which arise in the course of busi- ness with a view to enforcing responsibility; they follow a leader who promises well, then sit by and wait on the com- mittee on rumor till another candidate presents himself with new promises. Under such circumstances there can be no con- tinuity of policy ; and an irresponsible bureaucracy subservient to irresponsible legislative committees is the only thing that can survive. Recommended Changes in the Constitution Since the purpose of this meeting is to develop concrete, con- structive recommendations as well as discussion of constitu- tional principles I have the following to propose : I. That in the pa^rt of the constitution dealing with the ex- ecutive, it be required of him that he shall each year and not later than one week after the beginning of the regular legis- lative session submit departmental estimates with an appropria- tion bill in such form and- with such conditions attached as shall be deemed desirable to promote the efficiency of the pub- lic service and the economy of expenditures ; and that, not later than sixty days after the beginning of the regular session, he shall submit to the legislature a budget which shall con- tain a financial plan for the next fiscal year, supported by sum- mary statements setting forth (a) the actual and estimated reve- nues and expenditures for a period beginning not less than two years prior to the period to be financed; (b) the present assets, liabilities and surplus or deficit, and the estimated con- ditions as of the beginning and the end of the period to be financed; (c) the present condition of funds and the esti- mated condition of funds as of the beginning and end of the period to be financed; (d) such revenue bills as are deemed necessary to meet the financial needs and ratably and equitably to distribute the public charges ; (e) such measures for borrow- ing and refunding the public debt as may be deemed ex- pedient; and (f) a message in support of the measures and explanatory of the proposals submitted. (i6o) No. I] PROVISION FOR A BUDGET igi 2. That in the part of the constitution dealing with the legis- lature, the following provisions be made : That upon receiving the departmental estimate of expenditures with the appropria- tion bill the assembly shall resolve itself into a committee of the whole house not less than one day each week, at which time the governor and heads of departments may have the privi- lege of the floor to present the estimates submitted, to explain the appropriations requested, and to answer such questions as may be raised with respect to items or proposed conditions to be attached to items of the appropriation bill ; that upon receiv- ing the budget with any amendments which the governor may propose to the appropriation bill previously submitted and dis- cussed, the assembly may take such further time in discussion of items and conditions as may be determined, but no amend- ment shall be in order except an amendment to reduce, and no new subject or item may be appropriated fof except by separ- ate bill which may be independently vetoed by the governor, whose veto shall be final ; that in case the legislature is unable to agree on the appropriation bill as submitted by the gover- nor, or as reduced by the assembly, the several established de- partments, bureaus and offices shall be authorized to expend the same amounts and under the same conditions as were previously authorized; that all appropriations for the legis- lature, and all appropriations for the courts and for officers not under the jurisdiction of the governor, shall originate in separate bills, which shall be subject to the veto of the gover- nor as other legislation, and the legislature and the courts and other officers not under the jurisdiction of the governor shall be required to submit to the governor their estimates within one week after the regular session begins. 3. That an office and department of auditor- general be cre- ated, the head of which shall be elected from the state at large, and in this part of the constitution it be made the duty of the auditor-general to audit revenues and expenditures and the receipts and disbursements as well as the property and other accounts and reports of the treasurer, and of each of the de- partments, bureaus and offices ; the powers of the auditor-gen- eral to be confined entirely to the function of independent (161) 1 62 REVISION OF THE STATE CONSTITUTION audit and report, such reports to be made to the legislature and printed for public distribution. 4. That in the new constitution provision be made for the establishment of a bureau of executive control under the gov- ernor, at the head of which would be a comptroller who would be appointed by the governor and under whom would be organized the following divisions: 1 . A division of legal advice on matters of administration. 2. A division of planning and standardization, the pur- pose of which would be : to prepare constructive recommen- dations to the governor; to review and advise the governor with respect to the laws of the departments ; to review and recommend action on allotments ; to promulgate procedures governing the methods of transacting public business, in so far as these may not be delegated by the governors to the departments ; to develop unit standard specifications and standards for judgment of the efficiency and economy of the administration; and to promulgate methods of accounting and reporting. 3. A division for the compilation of reports and statistics, one of the functions of which would be to cooperate with the division of planning and standardization in the preparation of the annual budget. 4. A bookkeeping division, the duties of which would be to keep central and controlling accounts of the government, and to prepare current reports therefrom, in accordance with standards promulgated. 5. A division of inspection, the purpose of which would be to inspect independently and to prepare reports for the con- troller to the governor on work and methods of the several de- partments, bureaus and offices for which he is responsible. (162) APPENDIX TO MR. CLEVELAND'S PAPER ILLUSTRATIONS OF BUDGET SUMMARIES ADAPTED TO SUB- MISSION BY THE EXECUTIVE TO THE LEGISLATIVE BRANCH OF THE GOVERNMENT Exhibit I . Summary showing "financial plan " for the next fiscal period. Exhibit 2. "Balance Sheet" — showing actual and estimated current assets, liabilities and reserves of the government as a body corporate. Exhibit 3. " Operation Account" — actual and estimated reve- nues and expenditures. Exhibit 4. "Surplus Account" — an analysis of actual and estimated net charges in the relation of assets and liabilities. Exhibit 5. "Receipts" — actual and estimated, available for the general fund. Exhibit 6. " Fund Statement" — showing the actual and esti- mated condition of funds. Exhibit 7. "Expenditures" — actual and estimated by organ- ization units under the jurisdiction of the mayor. Exhibit 8. "Expenditures" — actual and estimated by organ- ization units not under the mayor. Exhibit 9. " Public Service Program " — expenditures actual and estimated, classified by functions or activities. Exhibit 10. "Contracting and Purchasing Requirements" — actual and estimated expenditures classified to show amounts of things bought or to be bought and contractual obligations made or to be made ; also recapitulation of character of use. (A further Exhibit, " Public Improvement Program" was not prepared. This, however, should be made a part of a budget.) (163) 1 64 REVISION OF THE STATE CONSTITUTION [Vol. V 1^^ !_) .3 S 13 •c a, o a, < O vo O ro o o o 'i- O lo O w 6 •^o o O O^ lOOO vo f*^ t^ O I I I! 1 I I I I I I I I I I ri-oo in ON 0\ lO I 00 ^ Hi Hi ri. d\ O fO o fO t^oo CT; fO CO t-- t^ ^ 0\ r>.00 O *-< ON o ITi o w o ■* o irl lO 00 00 1 ■+ 00 -"^fHi H(t-»ioO fO O POO rot^OvO •* ONrOfOt^t-*OsO M Ch r^oo O i-< CO moo u^\0 N m o o ■* o o « d d in o o mo*'! ■■1 in I-! ^ « o ■^"3 s"? " s s u S o"i:;3 a.-2 ■BPLcOlgl/lHcfii-J o CA ro O :2 ^ s .top fe 9 2 Sits o PI •B 60 in J) c 60 c 5 (J bn 5 rJ-00 »n ON On lo OO M- I (164) t^ 1 tv. 00' HI ro Tt IN N *a =eft «% On N ^ « ro m ""^ vo vO vO ■0 fn ro N ■^ m m PO U-) \o t^ ■ch ON t^ m CO CO M fO ro Th =e5t =99t =a^ ■^ flj •■s a -3 W ■a j: 3 .§ No. I] PROVISION FOR A BUDGET 165 a; Q z < W H Cd != g U Q u % >< m ft < .1^ < f, H <: ^ ^ 1 < § z; o K CO S 2>.§ ■^ a\ w u^oo -^ t^ u^ c\ ^ r-^ ON r-. o moo "Owt^O"* M OOwOThO CO N t^vD O CO ^ i>.vo in lO ^ o o o» N«ni^t^N'^^ 'd' fO Qod*^ in a»i-iO\^c*:icoN -o m t>.co w M M ■^t>.i-« r^vo M CO coo r^ ON-^rf woo -* t-t C4 vo w T*- _j M tn t^vo 00 00 bH vo 00 n CO pni>.iM m in o^vo a\ H. Ti- ^t^ vo M ON r>. 5 n Tt- en a\ 00 00 CO I/- N ^m Th m t>.00 M 1^ 00 CO CO N coo '<^ OS N « COOO vo -^ VO ON -^ int^ c^ t^c4 "+ CO >-" rr c^ N OMX) t^ cS w vo CO 00 r^-^m fo moo" OS OM^ ■^ t^ ON vo m o\ « « m in- ■" o d bo "! o-s 9 "" X S a U *^ "^ o ti ^ ||-f fr^ a :^ s c c c go 0) OJ . O m ■- tX) WitH lO q.- N r^oo o t^ "^ •I O »-; q 1^ ^vO CO in O moo lO i^vO o^ M ^ CO Q ^ c^ rooo « vo I-; vq q ^q •-; d\ d\od 00 r^ 00 ro u-i-O o q; in c^ t^ « i ON ro invtf l>^ HH « I>.00 ro O i-( (-( li-i ^?1 H PQ I— I -^lO HH w r^« COOO t^ O '^ro CO CO lo^o OxxO tj- « N vo f4 d NN o 0\vO « CO 00 XO 00 -^00 !>. w OX O xO Ox N CO S lO fi| Tf (M t^\r\\rt 00 r^ Ml ThXO o r^ 00 o ■^ LO o CO O ^ ■^00 O t^xo Ox xq q ■^ NH hH q looq ^ dit^w r^tnoddd I I oo-NTJ-|Oc^OLnT^t-« I I '^'^ ^1 "^ *^ '^ ^ '^ "* CO Lnod" 'if CO ^ d" dx ONOxt^ OOOii CON Ox CSI C4 « M CO 11 i ^ rt (A c -£• 3 o ti 0) S rt llllt 1 S-a ! 8 B 3 3 ■5.0 2 & 6 S Is 4J "TS - IH u o § I I n (A [/] "as M t/2C/3 00 t^O\ ii% •51- *-" »OM t^ VO vn irivo vo m 00 VO Ov M OvQO 00 00 4 vd cS vo r~» CO ON 00 t-t ^00 ".> T3 e ■3^ s 42 (166) No. i] PROVISION FOR A BUDGET 167 EXHIBIT 3 "Operation Account" Actual and Estimated Revenues and Expenditures Revenues Accrued Taxes Water Rents Personal Property Taxes Miscellaneous Total Revenues .... Excess of Expenses over Revenues. . . Total January i to September 30, 1914 (actual) October i to December 31, 1914 (estimated) ;?ii,988,228.92 3,210,205.18 1,827,426.01 6,528,114.32 fe98S.992.33 1,061,600.08 688,449.37 1,609,981.32 iS23>S53.97443 ^57,346,023.10 iSS23.5S3.974-43 ;fS7,346,023.io January i to December 31, 1914 (actual and estimated) s15.974.221.2s 4,271,805.26 2.515.875.38 8.138,095.64 ^30,899.997.53 ^30.899.997-53 January i to December 31, 1915 (estimated) ;iSi6,i 72,584.16 4,100,000.00 2,280,000.00 9,555.785.31 ^32,108.369.47 ■ 3.893.46774 ;^36,ooi,837.2i Expenses incurred and Payment of Debt Administration . Operation Maintenance ■■ . Debt Service — Other Expenses Total Expenses and Payment of Debt . . Excess of Revenues over Expenses Total.. January i to September 30, 1914 (actual) $ 2,548,843.12 13,229,527.84 1.203,053.46 5,637,818.72 716,540.98 October i to December 31, 1914 (estimated) ^23,335,784.12 218,190.31 $ 549,614.37 2,263,342.81 840,727.79 3,176,983.15 238,847.00 *7.o69,Si5.i2 276,507.98 •...*..... 24,570.00 24,570.00 25,000.00 ^^\j AtEKju,L±y ••■• •••• •••• •■ Additions to Delinquent Taxes 1.16 .29 1.45 24.937-52 Additions to Delinquent Water Rents 914-75 228.69 1.143.44 11,031.23 Additions to Delinquent State Taxes •>••■■•■•.■• 251,071.72 — 251,071.72 145.21 t^kLbb^ ^ lAJ^^J ■•■••■■•■••• Additions to ' Inventory of Postage on Pland 2,990.38 — 2,990.38 — Estimated Advances from the Capital Account, 191 5 — — — 2,500,000.00 Total ^6,370,981.39 $276,736.96 ^6,647,718.35 $9,147,944.00 Charges Against Surplus : 1 Excess of Expenses over 1 Revenues (see above) . . . — — — $3,893,467.74 AUovi'ances and Reductions of Delinquent Taxes $ 8,548.20 $ 2,137.05 i 10,685.25: 44,424.84 Allowances and Reductions j of Delinquent Water Rents 24,167.85 5,041.96 29,209.81 29,571.30 Allowances and Reductions of Delinquent State Taxes 62.60 1,015.65 1,078.25, 171,636.06 Invoices of 1913 Audited in 1914 in excess of amount reported by Departments as of December 31, 1913 19,915.00 — 19,915.00 20,000.00 Surplus Carried to General Ac- count at end of Period .... 6,318,287.74 268,542.30 6,586,880.04 4,988,844.06 Total Debits ^6,370,981. 39 $276,736.96 it6 fi/i 1 *T I J? 1C ^^ T A M f\ 1 A nn #HJ,UiCt/,/l,O.J^ tpvt't/t'j'^^-'jyj (168) No. I] PROVISION FOR A BUDGET 169 ^ 00 00 •-< m ■3- ^o t^ M VO s!=^° q. vo^ M g^ no •^ -* t^ M H •o u^ « *9= m ^ M n ON 00 t^ (U N en o\ VO 00 m n VO ^- °. VO t^ VO CO ^ 0\ *^ *& VO o" w PJ O r^ N o\ ■* ^n N » VO M ■!h ■sh tT> ■u-i OS rn 00 M o\ * OS OS m 00 VO *a *& eS o o 53 >< -"r? ef^ ^s g O.T3 ':3 i" is c y QJ m 13 ^■a S § n : tJ > • rt . *© xt ■ "u t; f^ S " fci ■K <:w ■S o?. 0) I" n. o S « S ■J3 *" CS O 0; S 60 S '^ S ■?! X 3 « 3 L -t-i fi '-^ C!,2 P-i Si (U O jj "^ o ^, '-i C cj a; C (A S -2 .5 d en C W -45 .0 o-o^ - i ° ^ c fi o o *j _S S3 O « -2 ^ bJO O Oh O Uh O O d 1- ra • .0 0-( J-* s Cm t^ > • 'S ^T3 ri q c a a < (169) 3 5 in <1 OS i-i 00 W ,_, _ en VO m m 10 00 m v VO !>. 00 t->. vO !>. r-» 00 t^ vd ■^ n 2^8 OS VO N !>. ri ^ ^ n ■^ m 00 * * * ■< K CO s - p,o .9 u g ■ EfS.S. ■tfi ^ o>rt.S O ffl H " JS" "0.2 » .w intcd'*^ 4) O o — 2 M ro 0) PI S^ oj SiTS B " .-S f^ 'tT K « C. — OsAr) O-^ S, S f»o aS^E I/O REVISION OF THE STATE CONSTITUTION [Vol. V EXHIBIT 6.—" Fund Statement "—Showing General Debit Balances. January i, 1914 (Actual). September 30, 1914 (Actual). December 31, 1914 (Estimated). December 31, 1915 (Estimated). Appropriation Accounts f Estimated Receipts and Net Assets) : City Controller's Estimated Re- ceipts • ■ Unapplied (Net Cash) Balance . .. $31,015,204.22 *2,330,640.86 t2S3.445.898.32 *8,534,29i.S9 *$2,686,96i.29 *$i,273,487.4S Total Debit Balances )?33.345.845-o8 $11,980,189.91 $2,686,961.29 $1,273,487.45 * See " Surplus — Cash over immediate Demands for Cash " — General Account Balance Sheet, t Balance of the City Controller's Estimated Receipts for 1914 yet to be collected. Loan Loans Unissued and Net Assets : Loans Authorized and Unissued . . Unapphed (Net Cash) Balance. .. $13,150,000.00 ♦10,012,329.40 $6,210,000.00 *7,864,44i.52 $16,785,000.00 *6,258,7I2.69 $16,285,000.00 *6,86o,274.37 Total Debit Balances $23,162,329.40 $14,074,441-52 $23,043,712.69 $23,145,274.37 * See " Surplus — Cash over immediate Demands for Cash " — Capital Account Balance Sheet. Park Unapplied (Net Cash) Balance *;^9.938.37 *$i2,077.7s ♦$12,275.48 *$ 1 2,885.68 Total Debit Balances «9.938-37 ^12,077.75 $12,275.48 $12,885.68 * See " Surplus — Cash over immediate Demands for Cash " — Feeble-Minded Building Account. (170) No. I] PROVISION FOR A BUDGET 171 Actual and Estimated Condition of Funds. Fund. Credit Balances. January i, 1914 (Actual). September 30, 1914 (Actual). December 31, 1914 (Estimated). December 31, 1915 (Estimated). Appropriation accounts (Unexpended Balances) : Unencumbered Balance of Appro- priations Reserve for Contracts $31,166,577.18 493.162.29 1,511,105.61 175,000.00 $9,220,129.60 2,532,201.00 227,859.31 $689,924.90 501,468.44 1.495.567-95 $530,076.20 584,594.80 158,816.45 Unappropriated Balances : Funds Available for Appropriation. Reserve for Mandamuses Total Credit Balances IS33.345.845-08 $11,980,189.91 $2,686,961.29 $1,273,487.45 Funas. Appropriation accounts (Unexpended Balances) : Unencumbered Balance of Appro- priations Reserve for Contracts Unappropriated Balances: Funds Available for Appropriation. Reserve for Mandamuses Reserve for Loans Authorized and Unissued $6,166,679.48 3.554.945-21 290,692.65 12.06 13,150,000.00 Total Credit Balances I $23,162,329.40 $10,564,133.44 3,501,187.24 9,120.84 $14,074,441.52 ? 1 8,333,859-68 4.709.853-01 $23,043,712.69 $17,500,369-17 5,644,905.20 $23,145,274.37 Funa, Unencumbered Balance of Appropri- ations Funds Available for Appropriation . . $2,034.93 7.903-44 $7,164.52 4.913-23 $4,358.26 7,917.22 «4.368.88 8,516.80 Total Credit Balances i!9,938-37 $12,077.75 $12,275.48 $12,885.68 (171) 172 REVISION OF THE STATE CONSTITUTION [Vol. V \o OJ IV s csi 10 cd vc ) CO l~t ^ CM n of ith] ituri Q IN mpariso squest w Expend CM i NO C CO C g ] ss:? 8 g OJ hN CM C3 t-H C± J On nOCm'-h Tt 00 g K (N) C NC c H NO.-INO -^ ) COrvNO NC , S ^rt ]-i ir- tv oT 00 ^ ■'; C n" ':|-"o"cm" ^ a\ oc I— 1 »— » 5 NOio in 1— i ^ I ! S « J § 88 g 8 g c 5 ■a-oo Oiop c 8 +J LT J \J~ c a ir oio 00c c N ■'^lOCSN 1 |s.«. i CO CO 10 Tl- 0(M ^ CM 5^ 00 c ^ > CO ocM >-; CO o- in CO On CO t-H 'O H^^ ^ '*■ 3 10 rO'^ ■^ OC 0\ CM CM CM tM ^ CM ^-^ C 5 tv IV 1— 1 3" oc CM CM^tN "on 00 T— a\x>* 00 ^ fN. 10 tv LO ■^ 00 CO (U r^ tv c N CO OC omoo in 1— t !P tvl S T-H CM 06 00 rf tv CM ONi>^ CM ■^ tv 00 oc CM ■>>. 00 I^ ON CO ON CO 00 On LO 5 fi- I— 1 10 82,2 188,7 43,4 39,1 .W,8 CNJ C3N NO ^ 01 00 '^■<^-<:h CO s 0\ 4_i dj ^ s IV IV -* S3 CMOnco -h CO in T— I IV (N "* 10 COr4" ^ Tj . — 1 . — -^ ^0000 CM Tj-T:t-IN. 8 tv. ro ■^ i-H '-H c ON ^ u-3 in s s S2 CO C3 C In. CO 00 t^ 'C S 1— 1 S'p-c On 0- ■^0\^ CM \C t5 CM int-io CM 5^ g ^ M3 o> ^' OCm" ^ 00 CO CM c Ocoi-T CM S5 T-* *-• '^ CO i-H LOOO \0 NO NO ^ ■^ Cn 1— « Cm P,-M rr c^ Iv^CM IE in 00 04 2 ; °' rf cm" t-h" 00 -^"t-T sa f)3 ^o '-'NO 10 ■'^ ^H r— 1 ro 00 On CO CM ■^ oc ^ 1—1 CM CO CO CM 00 CO -<*■ OjCOVO IT T-H •l-H T— ro tv *o odu-i CO On iri vo ONinlil ^ On Cm On ^ «-^ '^ to 00 On OC 000 OC CNl ,-H \o r^ ^ t^ ^ Os_ -^O^ CO_ .-H ir cr sScM R c^ "^F re 8 c 1 On S NO NO NC CM 1-^ 18 CO tOtv'tvT rt •rj-u-iin CM -;t-io S3 w s< tv 00 -*.-(" c -o .. . C5 S ■■fi § & f the Mayor Jbrary ;lphia mu- s s schools museums . . f Supplies f) B : . U ; OJ * ^ : p-1 I Office . E Police, f Fire . . f Boiler ion "s S'^ J. ■E§ MH > N -Z°°°^ 03 '? cu DmPQCQ pq ^ Q Q u Q (172) No. I] PROVISION FOR A BUDGET 173 ITi rt -sh OST-t .-HON tn OJ3 c-t; iS TD s c^ to o\ CO OC -* I^N CM CM ^ Jf s^ tMVO c:Ccm" a\0\ ^10 s in cu On cr 1— I OJ 00 cT OCM cm"^" CM t^ 88 8 00 t^CM CO 0^ o'cm" 00 00 s On" CO 1— I T— t 8S88 88 0\OCMO CMOMOOO QOOOOnt-h '^Cvf 0( 001 pom 60 CO rjio O o ■*CM CMOS O^ csToC SPSS CM 00 ON-* InTlo 00 0\ 00\ jCi-T CM ^H t^OO 0_-*OCM oOi-TcMrC 00 00O\ CM 0\irj 0\0 00 c5 Td o tn T-H ^H vo CM On On ON t^ CO CM § CO xn 10 cr\ On^ 28" UT-i CM t-^ 00O>-i^ co'^o nT c\f r^ CM '-' VOIO CM u3og t^oo NO'CNf I-H CM -STTo" CO 00 yioN t^oo ■*^ "* CO "in < ^,-1 \o o On 10 in On CM-* oo"t-~r ITiy-t g m^-ii-JcK CO '— I VO CO OOCOCO^OO VO'^^fCO CO I-H CO ^H irji-H 3^£ 2 1-2 < s ^CM s ^ COI^ On CO lOrf CM 00 in s 2R C3N ocT CM CD NO NO On On t^ON CMNONOO 0**T-( o ■*cot-^o cood"i-H"cr O 001^ »-H t^t^ NO ino 1— (lO On^O, 00 ON 2cS *— I On odK NOVO Om NO-NO" 0\N0 ^ON (MCM On5 CM-io" OlNO T-H CO loco tCoo' ^8 SSn :s s '-l'**NO T— 110 O T— I 10 T-H^CM^IO CM r-TT-TON" - NOC3N ■*-* 00 On NO CO OXO O 0) S u i+j S a « 4J U : 3 o oU CP pq 033 "tj cd rt -i Lj .3 3 3-" or" Oram « Q (173) ifi £K o 3 033i .!:!33!^S333P-l'^ OFQW pqpqeqcq ■" u u u cS, 1-H tN. Og oo CO rOO\ 00 o lO '^ CO ^ p -!j;00 lO lJ^ u- c -^ cK lo o i>li>.; in VO O -^ OD lOO tN in en T— ( a CM C4 o 5 ""i, ^^ ^« '"t ^-^ ^„ -ij- o t^ c od" Tj-" '<:f ■^ irT^-T ■^'" lo" H t^ C*" PO Ch -^ On OOO ^ ON oc o IN f— 1 CO C\J CDi-H 00 cu u- ^ O --T ;-( 1 « "t^ o IN ^H O ^O CM 1— 1 CO !>. t^ •o o o 00 Cv Tj- CNJ tN. \0 Tf T-H IN. l< rrj c^ -rt t-H* tN CO -^O O TI-' •a On Tl- u- fe ^ ^. S f^S K ^ c PT CVl ^ r\ i \0 co" "O CO Oco ■^ ON CO K ui CO VO 1— 1 O VO (M CO 3 1— t>r VO_^ ^ ^ OS •3 a ~0\ ^ CO On VQ 0\ oo ti.CO O ON vq CO CO O^ 00 CO IL) lO ■* 00 P. O ■M rH 00 cm' o On 00 tN VQ CO l< -^ 00 ■^ VO OO -^00 lO O VO (M O OnO oo o « t— t t^ •^ oo W Ik t; ^. lo o <1J PO <^ \o 00 VO tN t>* Ot-( CO IT) 0\ ^^ o lO VO ^ CM^ 0\ "oT CSI o ^ 1 ^ 1 II 1 o 1 ^H o\ CN o n! 00 cj in S O ^ ro OCM n- in -'P u-> m o CM '^ CM ^• .-1 ^ t^ rt TJ-CM CM ■* o\ P o o" o" o 00 ■* cm" -H (sT-h" in in XJ Ih .S xn o C3\ CO C7\ \0 On On 0\ CM ON S**^ ^_ cn: ^ \0_ CM CMi^H O in Tt" oT CNf T-( ^ "oT s t-» 00 O (M CM ONVO CM Tj- T— I CO t^ t< 00 ooTf in 5 -rH 00 v8 Oj ^ CO NO 00 NO CO On NO 00 rv ^ t-^—i £> ^ ^-.''^ to t^ CO !2 C S CM 5 ■^ tN^ On ^ NO*^ -^ T— 1 2 Is oo" tC o in c» ^ CO cTco <^ CO 00 1^ oo ONOO O 00 CM o CM NO !«J -^ t^ 00 o\ ^^ ^H CM CMt-i NO w CM t-H O" rn" c o "rf ■ ^^^u :i3 ::s :p^ ><^u fc S ■S.|,oEcBg°HB>EE6» ineral and L( Funds '§ o 1- • l^B p ariso est w pend VO CO m ON 00 lo t^ 5 00 a, 3 i«! (A ?;' '^ 'i. '- to -tI-CN CM ag-w 6^ 1-1 5; s S. J§ S SS s. in CO vo" 00 vo tth y C3NON hH CO CO 888888 88 S88I -4-1 ir^ uS c: cDTTh 0\ m Tt- 00 ^ T-H S ''d- 1—100 CM "^ in uot^5^ooS\o^l^*o| On a* :* oo" -i 00 1—1 m On "O t—i r>* *— 1 (U Cq IN. \5 0\ 0\ lO(M (M fO C>J 1 pci —< (\J ^ '-H ^s (NI in CO NO a to T-H tN -t:!- u- O" CO tv^ NO CM NO u nJ n 4-5 u -1-t QJSr ? S ^" S^ ^ CO NO 00 tN. 1 en 00 ON-^ -^ t^ ! 1 00 OJ 1-. 3 f2-° r^ H S o4Kir>^ocomo\^oc^io' (U in Cv] -=:j- CO CO In. CMin vo 00 s- S^ -^'cKo-^'invdoNcKoxqio X 1— 1 CO o\ ^-1 MD 00 CMin vo oO 00 w 13 -»-* in On ON ■^ '^ NO CM On cm no CO ;* 2& je 5" g s s 8 ss {^ s SI On ^w to , tH- Q NO m T— NO CM 'Jl- C^ 8 88 S S 8 _tS Otjlriocil^OOu-iONCM'KOOl S S f5 S £ 00 000 Cv) CM m Sac NO NO no on 0\ I o\ CM NO 00 S On -^ t^CM "* CM t^ iij !-..« 00 into CM CM CM 1 n-M --H a r t m e n t o County Prison eed St. Prison Dnvict Prison - Holmesburg .. imissioners o Fairmount Pari imissioners o Sinking Fund. rot ho Court mon epartme oner epartme corde epartme ister epartme trict . u piu g g Ph Q Q Q Q Q Q U U 1 (I7S) 176 REVISION OF THE STATE CONSTITUTION [Vol. V * * * o ^ On IJ-) -.^ ^ « ) fsl oi 00 (U CN 1 T-i oi -4-> o \ * * yD fO CO 0\ !>. Cs! 3 S u. .4-) 3 3 ,_ Cvj t^C u-J p ^ s ? ?^ «.^ O S < C" 1" ^ od" CO g CM ^ 0\ w o . oW 6= J- * * 00 • ON '■ On ^ »— 1 i (y ^ : CM : 1— 1 NO M On *C '"* en ' * * c 3 o s a 1 8 i s \ ^ J' iW IN On" ; 00 ; 00 »— t < 1 "^ i g 8 8 S 8 : 8 : 8 +j LT li-i n LT o o o liS O .-^ "^ LT K £ ^^ lo LO OJ t^ ^ : o\ g. \C vo" '-C ^c 00 ro u^ a« ^ CO CM IN. 00 r^ n (/ "~ o tN r^. u- IT) a J u- CO ^ (>f c ) & (M 12 g \0 CO CO O o s O C \i: C^ !>; CM o o \c l< o ■^ CM !>.' in ^ ; g : 00 cn a CM OC in O -^ 00 S; G *" f^ c^ ^ CO a\ -^ cM_ : CM : NO N CM ^ lO I g 00 in CO : ^ ! S3 • On 1913 ;pend ures 00 0\ 00 O CO tN 00 CN! t f^ of o o^ ■-^ 00 in : 00 o" rC • on_ : NO o" tM O CM 00 On ^ CO ■ NO ■ NO ■ ■ j<; -w -a- CO T— '^ W ivT f^ V "is : i ••§ ■ S •. ti ■2 § ° a ^ rt S ^S ?3-^.s£ t h : § : S • 2 : O. •a S cj 3 r- in * o c ■•a 5 : &J g 3-2 -a OT »-t (3 3 rt ifl e o O gSc •J3 rt u o cd !% g H H B< S O [i< ►JPh :^> w 1 IJ Q 1 (176) No. I] PROVISION FOR A BUDGET 177 00 to 0^ »-* (si to s^ 8 ocsi ss 8 00 8 S \n-u-i •-H CM r-l ^ H I— ( 8 S S o o ro '-H O 00" "2 INI OlO tvrtvf ■5)-'' CO '-H ^H fO 8 CM CSl .-(CO coO^ On-* 10 VO ON ^ "^ ^ CO o tC 0\ o o 00 010 ^ -0 ^0\ CM 0\ CV -HO CV ^3; 0" C^l g -55- OIJ-) 10 00 CMCO" 8 S o 00 s ON 06 CM 0; (Nl ■* CM r^ 10 00 t^ i-H CM Ov CO i-H CM NO 00- O CM O IQ CO NO -H O O NO -Ji- OS ON !:i! CO Th s t-H CO -H 00 uS o 3: S '^ On O CNl rf rC cj" CT -I 0.jj^ "c > o ^ m 3 o > efl ■■n.S WW °^5 ■0.2 " i rt d O ■O (U o >-• rt c X -.- — "" M 2 " pL, >.2 ■H rt a o c o ^ „„ 0.rt J, m I in -t-J Oi3 I -t-> O « OJ ™ 178 REVISION OF THE STATE CONSTITUTION [Vol. V * * V CM ^ •^ s m CO 1 * lO <" „ qj CO 00 r^ —1 c - rt O OOO (N 00 NO to O" NO H ^^5S ^ COCM (> 1 1- < OO *"• I-H lO ■S s ;- ^^ '"' r ■. 1 vqpvq rO CS •^o c 3 Om— 1 Cn. 5 O-^ OO H2 o oa Ph T3 O (U -Ml— t 00 r- 1 ON 00 "■ NO t^ lO k •O rguSo\ v^ tN -=hO , CO Soo VOO'O > tN C\Ii-i w 5 VOOO On CM ON r>. 1— ( g °1 "^ 00 c^ ON_-* tr r cooC a 3 lOI^ CO ON no" lO 00 co" 00" pq 1— I tn .i3 Qj iJ OJf-it^ CM ■^o\ CM 3 t^ •r-tin X. ^ c _ w OtI-00 t^ QC ) T-HCM c 3 i-HON CO U-) "~0 00 1 S t^osoo ■* o \ ONu^ 1/ ■i ONli^ T-H CO '^. ■^ 1 '5' o »-iu-}i>.! d rv oduS o i On CM '^ ON 1- o X 4J T-H §8^^ E! t^ lo;^ O N ^^ in CO i }Q W nl -M O f I '1'^ O! D »-tr^„ (Ni. lO O NO s & ^"cso"-* c^ ir r lot— t c ■T locd m5" rC t^ ■^ ro^t?) OnC^ t- H lO CO "t« ON 2 < t>.CM t^ "o c > "^C^ c 3 OO o o 5 5 O 1 oqooirj CO »- 1 oqcq c :> OO o O £> o a ■«:i-or>; t< c 5 co^ ^£ 5 \do ON in C3N m ■c .. 0\0\0 rt u- ^ oom -^ r- T-(ro o 0\ CO t^ 1914 propi tions (^lOO ON ^ 1 «poo, c^ q I>.ir) 1— 1 CO NO O, ^\d"»-r r-T O C oCo o 4 Cdco -^ 00" cT to VOCM^ Tl- f^ rsi o ^ ^00 *— ! S to 00 rsim 9- ^ < rooco "F» f I ?s s ■4 00-^ O TT ^ u^ .■ ^r-(VO 00 c> T ^ ro i-H On to NO •Jh KTf K <2 m: 3 lOCVj c ^ OnO (m CM to to 1 TZ) ,_ c^ioo O u I SS5 g C3N H ^ 1913 pen ures VOl-HN ^ a Nj^ CM^iO 0\ t^ O --I vD'odtC rC v£ S OOco" -T odco CO no" o" tC ITKN to CO oocM r •q I-H OO y-i \n ^ XI ■" U-) •* w *"* crim- ention Fire.. g and g ... build- equip- ing... Steam e and nspec- :2.2 O s O ■ ° '. : 53 ■ * O 03 MH . >■ ■ (U G C -r! - -H <-!t-H '. 'j:i^ 11 l+H C ■-?: MH ... > Om-i " > nJ ■" C CO rt .. 3 2 ^ 3 o^g ^ 3 bo g C B pec lildi S.S.KS 5^8£is.ss; K gWpq- i"S-H S S-a.s.si ^ te S w<: U fe s W,i5^ WW « 1 eq pq cq (178) No. I] PROVISION FOR A BUDGET 179 * * \ CO ■* ^ 00 ■* to -^ ■ _ * ■X- a s s g : CM tv lO C 0\ \o m c^ 0\ CO o CN ! o\ Os" ir • • * # * * * XT CO 1-H ^ -=* rn ■rt \o lO ON lO c > js;\d c^ vd 0\ 00 f^ c 00 c- > "* ts CM CO -* * * * * » s > OCM Q vc ) O O 00 -Tf CM \ oo\ C > t>^ to \0 CM tr o « ) o\o\ d fS^ !>; CK '«:t o p^; d Is ■«i- CM 3 On 00 -^ C s o\ (X. ) r-lt^ CM VO to VC ^ < rt o u- r '"^ CO to vo o 00 H T-l Tt fO TJ- ■* Cv 1— 1 g ? §s s c: IT s ss ) C^ O O lO to o ts» irj lo tN. CM O 8 c I oo rv c\ o o-^ - !>; vc5 r^' Ti^ cK 1% CM ex ? oooo 5r o ro i-Hl> rO vo GO to ^H CM CM 5_ i»on_ e ■5t in o Cs 1 CM CM 0\ QO fO lO VO c ^ vocrT cs " ^ r ■^*' ^"^a -" C3C vif OT lo" ■'I-" Tf vo" 1 ir ^ T-t CO c\ ?^s t^ y- vo 00 rt -H lO cs ' rt rt ■* CV f *""* a 3 OOO CT c : s S5 o c > CM rt lO OC a\ c 3 OO r> IS i o c > 00 irj Ov ^ ON 1- < ^d "S o c5 locN i O t< vd to ov Tf ^ o( v; CM "$0 \ rt- tN. CO "^ '^ CM CO o tx ) U-J VO.- ON to "^ CM lO to a 3 u-Tcd" o. " vc Tf oa r --^ CM -^ <3\ 0\ rf GO c ■> -HCM t^ ss Tj- i-H VO ro CM IS. ro Os rt rt CM *— T-l l> ; 00O\ Cf s o loa i-H lOVC o o CM c^ lo Tj- ON ^ 1- -iJ-ON -^t lo o oo tN, o^ 00 ON 1/ i locK oc o* 00 dcv Tf 00 O c<- s CO ^ 1 VOlO Tl lO OVC O »-t O lo ts 3 ve J C^rt u- '^ J^lv T^ o o\ a\ 00 ■* c 5 lOOO <- CO rt rsr- lO -"^ vo ■* c t^ tsT '" < o> oog CM m u~ vo r—i CM cr\ o so c ■ ■= ij- ) ind \o o> sis C*" c*- CC) "^t VC ts o8 ir ) voCTv r-> iri \c f*- VC CVJ 0\ t-> y—t Tj coo ■* li" O Ki'* lO lO to CM vc T-H ir r ;t- rs. CO "^ -"^ CM CO r' J ri\o ^ 00 ID Oc^ ON to -^ C^J to ^ CM O " inco li^ " \c ^ -^ -^^Tt ■!t- CM '^ CO C3V CM vcf ^ 3 r-(CM CV TT T-H VO CO CM IX CO CM CM« 1—* T— CM . ^~ c 3 vAr^ ^ CO ■^ -^IN CM CM r^, o c<^ to ^ '^ 00 -^ to On vq -^ t> « C*^CD l-H rs 1-1 CMC c 5 rslvd oc ir- rO ONl>. o t>^ vd 00 CO lo 00 2 3 i£^rq vc 85 *-i to VC T— 1 tN. o On t^ t>. On ■^ VOu" to CO CM to lO TT- tN. tN r irf^-T vc - vc ■<;^ rj-vc " 00 vo ON vo to O vo r' 3 '-(CM 0> 00 vc ^ i-H to CM CO Cx CM ^CT T-4 *-t »-t CO 1 *" ' T-4 W I 3 y ft a . . ccounting and reporting . . . etention of petty offend- ers 1 : 1 lectrical I n - spection levator s e r v- ice, City Hall ire alarm and telephone service xat, light and power service lectrical i 1 1 u- mination o f public build- i n g s and Installation and care of tele- phone, tele- graph and electric signal instruments . 3 (4>ii^ d < Q i ' tt IW W fe w w cq CP U 3 (179) i8o REVISION OF THE STATE CONSTITUTION [Vol. V " 3 a> OS OJ -' o. O i* u ^ ^ 00 00 OS CM csi ON H 1—1 pq I— I H! X w o 8 g csi s o\ 8 o o -a- o ^ 00 CM S ^ 1 00 o^ £.2 W c o h-1 ■a " — 'r^ o ^ "O o 00 CM CM 'Tl- CM CM \n on fO o CO n\ - -~<-> o\ o\ CI c'2 3 e fu.t CO i:j o u 3 S o '"'d i-i C8 i3 O C o rt EtS^ oU U ^ s— CO OS ^H OS g 2 O oo fOCM <»5_OS «Os 00 OS'* 00 OS OSO\ osr^ to CM OS to lOOs CMTl- ogo OS" o ^ .£;4- g 8 s 0\ S S ■* 1—1 1^ so CO T— 1 o -a- S r^ o - o CX) g 5 g £< bOtii "ti P c 5 S^ ot3'Pt-. 3 C « n u 23 f. « c " 0-2 is S >< § S» o-o g-S S WU (X, cd (i8o) No. I] PROVISION FOR A BUDGET I8l J— ( I— 1 K W o 8 o oo 00 s s ^ o M3 8 § i 1 ^ 00" 8 8 i o o CM m" VO s 00 o CM cm" o 00 o o o lO o in CM 'S •* 1^ 00 o o o 00 lo <> 6(5 00 i i oi-HOiiu-Co>g', (i8i) r3 O) I 82 REVISION OF THE STATE CONSTITUTION LVOL. V =fr * * * 1 • * 1 • 1 CMO CS CO • t^ 1 • o ^ COQ COO •* CO I— I ;s i ; * * * -»- • * • •4-* S9 o CM in :S : Is )H t! irit^ O csi :on : 3 t-H o_ gg Q i CO ocT • oC ■Ci in 't3 0\ 0) OJ M- •o_ lin* ; "-1 o. 1 ■ * » * * * * * « 0(i) VO o< On OC ■5i-i^ ON c> NO to §3 ^ ■* 5S l< ir "d^CM m CM ^ r^ 1'? * * * * * * * * lU m oc m 00 If NO Tf CM C?N 2 OV NC o CO*- NO *- m 00 t-. (J c f— 1 C 3 oc ON s ^S 3 ^ m T-4 CM CO -* T-* OOrt 00 U o S ^ X CNf OC ~ id's Tf »— cm" no" <; 00 lOTt LO l^C c^ On ON NC O 8 oo 8 -a- tM IN t-N NOli- (M ^NO TJ o oo -M 00 00 u- 00 (\ir- CM cKco cs m lO oo O o TfO> ON t^NC OO CM-^ t-s I>N OCM 00 »— i ONO' tv CMC t^ -a- CO c\ Tf a NOO »— ( tr) <^ro^ Tf oCoc 3 (vTcv « s NO'^ lO O-^ CO CNJO' r^oo c*- t-s 00 ■^ ^^ >o CN r-l coco c o m CO ^Hl^^ t^ r^ o OO T— 1 ■^;^ c^ Tf NO CXJ o irj ■*N0 o NO^N S oqm c CO OC ^. NO 1— 1 ^ cocv 8 c\i ^ rrs ^N.*^H l/- o IN.* CM On 00 Ui o\ NOO rtf^ irj t^-* c^ t^ CM ■^K, to c "rt t^ »-H C^ oc incM c Tf O Tf NC o^ •T3 -H u^ T-Tcv bs ' t< CO Tf^T-H IW «s» m !M CM^ m NOt^ -* NO NO NO CO 1 CO »— 1 coco CM _ NC m ^ S Q 1 OO Om CO •^ hs t^ NOO NC CO Tf CTNin 00 c^ •S2 o CMa o 00 CO '<:t coo CM NO CM COTf •a S T— t ■^ ^8; NO OOO VC On l< OC t< ci t. ■^NO OC On r^ ON CO mTf VO H Ol S-ri o tNT ^""^ rt"00 " s no" no' NO oi 0C3 T-To' (tT 1— 1 cn •-1 9i cu r-l NO rtTf ^^ m T-H o f— ( pq Q "Si- y-i r~\ *-^ in 1— 1 3 OC Tf 1 lO - <-HCNO a: coco ' »— t m -^ ts. *— 1 CM " " ON in CO W CO COvH ^NC 00 rt CM Tf ■^ NO CM <" 1 ■* CM CM ON T-H T-^ 1 ' CO — ONCJ ? •^O ^ 5?^' _ CNJ VO NOO 1 o\ On On NOt^ ^H IT Nd ■^NO ,— ) zi w^ -*o6 CO csi— ; ^ cm'i< ^ cK "O to' On od ^H 00^ On zs*^ CO ■^ CM g K On t-h o\ 00 00 Tl- O Oco 00 •^.Ol t^ o NOON ^ oC (NON rC NOIN.' oo" ss OC ocT s tI^InT ro" ON t..2 ■* fc'-' CM CM in in CO NO o CO T-( 0<+J 00 CM T— I coco OC NO 3* «< in <; *-H iO NU»J-) CN i^^^ m OONO CM C3N NO CN ___. ON ON CM OO '^. "*. o OTJ- "a; o f-; CO NO ^ 1 '^ ON NO id NO T-H o incM gN o t-N CNJ Tf CM CO ^-H OJ J_. \o 00 CO O QOO 00 OONO o o<^ o ON On 00 °\. t^ CM CM in^ °o. lN.^CO CO o~ ONpTf J? ?si CO tCin Tf rC in^ocj ,_J" 2^2 "* OO^-H CM CO t^-* CM 1—1 CO NO CM CO °\ »— t o w " cm" O G T3 — r-r ■'3 >>« '.M O s and nds acturing. 1 . ■" s t. O IS > Production o f food stuffs . . Social service. . S.3 : .£ft^ : •o c • f indigent f insane. O • 3 ■ ^1 « u en > ation of prehen- plans . . . f Surveys > rt[£ 3 16 1 n g grou Manuf Care o: in Ci tions Care o sick. Care o -iH o Execut Prepar com sive jreau o 1 t^ -i 8 d 10 NO o" CO ■!|- Q VO CO OCJ NO ■^ in 0; CO T-5 fO ss 5 A s ?^ ^H CJn" l-H ^" On" 00 d -H CM 00 ■* NO cm" no" e ci : c c a : *^ 00 rf ri ^ ;i Jj Ci C *;? n-l "JU o'H'ti >- 3 0.0 o u C C ;3 ri 4_j --T-f M OJ3 U o cj ,£j CO C o (183) 1 84 REVISION OF THE STATE CONSTITUTION [Vol. V I- (L) w —< o. C'-i u ^ !> -' m Id (U t. o ID Q o < ', XT) 3 I H 3 X w W^ ■ CO is ■ o\ — ^ OJ ui rt ■».) (U c b C — ( 3 O e <; S^ 8 S : K s s 1— 1 • 8 ss o CM 8S \DGQ 1— ( oo d 8^ oo s o CMVO On O vo ^N doN ^ p CM -Hc4 M3 ^ ■*■ COt-h O CM CO^_ ro 0\ 00 ro^ o" CO VO" CO 00 CO CM ^o T— 4 OS IT) ^ g ^H ,-1 CM »-H r^ oo t^ 1— * iN* 0"^COO\0 00 u-TlNrCM Th"l-C 00 lO O-QO CM-* 1— 1 -* ooo'oo" CM a — — ir^ ^ ~ CM CO o ■*-' T— 1 00 OOO cK 1-H 1-4 CO COt-< "rt -M CM t>._co_ 3 a VO" cm'"ut' ■H "J O lO "CO ^_ < t-T '5 fo c S On Oh 3 C8 O rt C — . 3 o *— 1 O --^fe 4 S3 vd ^ rood 00 00 CM lo i—trn lO OO^H oo" -H,-r CO NO cm" \0'-i0 OOOOt^ NO NO 23 5 vot^r^ooc_ _ ^ini/^t^co T—t oo't^o^T-rN^ CO t^OONONOi-H t>. "^ On CM CO ONodiooo ^hcoOn-^io »-H NOlO CM l^ cvToCcjCtir.-H' (vi-^'i-O-* lO On CM CO ••o : c . n! ■ 60 U S 3 3 O o (U (J X o •o a a 00 c •- c W •a o-a c . . . . c :-3 3 c ■ti O "^ to q3 C ._rH ^ bog' NO CM On NO 3 pq •^ S o ■ - ^ ■" C '^ i O, bo 3 CO ■"« (184) No. I] PROVISION FOR A BUDGET 185 ■S I— ( >< o o o o 00 0\ CO 00 o 3 c in u « * toco oq_cr> s 9 s 00 O 000 o CMOO O Oro »-* unro 000 00 «^ oCco s 3 0\ to .—I in cvf in CM CO 10 vOO\ CSI cvfod CD'-H PO n " O CO CM CO O i-H loqd o c2 T— I \o 10 o 010 O CO OOCO -^ r-f 000 voo 00 ■*".-<" CM CO S cm" »-l CO 00 10 »-i CO ® ^ m a" oT S" "^' — g- s 1 S i i 00- ^ t (M -»— I — O i— I t^ ^»^ 00 00 00 0\ CM »-H »o" tn ^ CO s s i s § sf £• : 3 ••d > bo •a c gn 3 3 WPh U : B S rt E ° u u u ffi 00 CO oo" o o o vb in On 00 * CO 1 in CM s 8 g 8 o<5 rr £N 00 i-H CO 8 S? 8 s^ S \s^ iri l< u-3 CM r^ 10 ?2 ^^ ■>o t-x -!f in S 10 on" C3n CM CM T-T 8 0' ■* NO CO CO "5 CO CM S3 o\ t^ »— 1 00 00 'St- "J- ._ CM in_ 00_ (nT 10 cm" co" irf CM NO ■ NO — »— ( ^ e On *"-. K NO K oei s NO CN] T— 1 NO ^. 01 \D cm" On -^ §8 §" - 00 — 00 ■^ p CO ^ CO in 00 S ^. in s irT T— ) vo" JI-" 00 t^ s rt NO ^H CO O n! 3 o •S o Cfl ^ Ph ■3. m : > O^ p. " o'S o"-« c« O m i-t nS O a^ ::Ph (185) 1 86 REVISION OF THE STATE CONSTITUTION [Vol. V O 1— I .2 0> u s I— I 1—* W w ^ ^ * CO 8 8 0\ §1 rt o H 13 o 3 Oh <; o^ S 2 si- '^ x- W c O OJ o ■5f 8 o o g 1 o S 8 fe" ui 1— 1 o <^ oa •^ fo 0\ °\ ^ "^ o r^ — 00 — o CO § ^ s 00 s 8 O lU -; - S M i ..Ti o tu G B 'n lu 1-' o M i- 88 t-iCVl odio 00 CM oSrf 00 rj.-* oo_ oo_^_^ 00 oCu-T 0\ ~ CO T-< 00 cvioj in odod r-l O OO 00 CM mm CD 00 OOO CM 00 00 00 ••a • a bo O o t < o n H < S H tn ^ W ?! S o >«^ " o ^-o CO Q 0.3 X eg'w c3f^ CO MD n" 00" S * * 00 t^ ocsi T— I fO O" 10 1^ roCM coo" ■OOO CM X 10 CM* 00 FN « pq D CM Iz; fe W <;h C5 t^ •z, n s < 15 pj ri n a °^ 2 9 o C3N NO OnONONO LOOOOOtJ- 00 OOIOU-J ■ S S3 P-lC/J • is o ••a -a : c c B * ■? « tn 2 i-H "w ■< P o <^ ti.S <; "3B !G W ^ s p4 ■^ ss ^ o p 8 1 g in s ^" lO s ss g T— t g 8S S3 CD"^ s Ss o CD s; -*" 0^ - 883 "" in CD as 00 ON. Cvf S" ^ vo ON c O •a c O "S S c S " « C *" -g o o 5 Ph no" • • w I ■ • . fH rt tn ^ in " « rt w "2 en ■*-* M-t u.^ C e _ ° S c e 2.2 O re (i88) -3- -t^ '-H '-^ O N. CO . -^ CO -o i-H •XT) (MroiT) S : 85,009 ,305,074, 554,549. S : 1— 1 . — ' inONOmCM"" OO "O i-H COJ^s. VO oq^ c> CM ^^"^ ^„ '?^O^0C0'-^ O c^'oC"^ oo"T-r cm" OOOCO csft^Tfo 0\T-iCM T— ( Cn. On \OCM t^ oCcvfoo" ON'^tN. C^Onio^ CO erT T-.CMVO 1-iOnOO OO fo ■'i- 00 lO'^ "OOnpo t-s.COON coCvJO OO »— I lil CM00i-H_ u-TvcTi-r 00-^ I-H ■**■ oo" o»-f On 04t^ to o6 Osi CM '-h' o o On t-H Lo CO VO ■* O 1-H^ 1-H^ CO "^ vo cT vo lo Tj^irfrC CM -^ 0\ lO CM tN. in cM^co 1-H^m T^ i-Tt-Tcm'^ lo J>s IOI--V -^ CO 00 vo ^ i-H^. OO CM CM t-I t:^ ^' CO lO loio T-H o^N ■^ On T-H T-H tN. CM lO CM^io" OO" cm" CCCJn" 1-H tN. in CM CO CM ''^ 0\iO O^OO On^ CM^f^f^oC in" Ti-inCM lOOOVD ©©■-^"cm" CM«rj^^ Cvf'Oco T-H CMCO irj vo lO On CM 00 "^t>.vO 00 rC ^ o I) l> o.u r4 C3 > 4-> (U en en ^ C ^ X O ou g. s c o o c -a a E bo c 3 ■a o CONSTITUTIONAL PROVISION FOR A BUDGET^ CHARLES D. NORTON Vice-President, First National Bank, New York TO regard government as a business enterprise merely, would be a narrow and illiberal view, for the activities of government are undertaken, not for purposes of profit, but to enhance the safety and the welfare of citizens. It is for the voters or their representatives to decide what activi- ties government shcill undertake. Once the government has embarked upon any definite enterprise, however, a question fairly arises as to the merits of the administration, and for the purpose of examining results and measuring efficiency of administration, it is proper to consider that a constitutional government is a corporation organized to carry on public busi- ness. The managers of a public corporation have much the same kind of business problems as the managers of private corporations. They must make plans and provide the means of carrying them out. Public officers are hampered, however, by constitutional and charter restrictions which make it diffi- cult, if not impossible, for them to execute their plans as effi- ciently as do the managers of private business. When the president of a large business corporation goes be- fore the annual meeting of his stockholders or directors, he makes a statement of the assets, the liabilities, the surplus and the profits of the year. The figures are so displayed that they tell their own story and show the results of the year's opera- tions. He states what his plans are for the next year's work ; whether he wishes to expand or contract the business ; what he wishes to spend in permanent improvements; what new capital he needs, and how he proposes to raise it. He is ready to an- swer questions and to explain his plans and policies. That 1 Discussion at the meeting of the Academy of Political Science, November 19, 1914. (189) I go REVISION OF THE STATE CONSTITUTION [Vol. V Statement is his " budget." If approved, it becomes his pro- gram for next year's work. If the natural businesslike relation which exists between the head of a private business and his directors and stockholders can be created between the governor and the legislature, and if this relation can be defined in the constitution of the state, a budget system will certainly be the logical outcome. At the present time our federal, state and municipal charters and constitutions have surrounded government executives with fan- tastic regulations which, if applied in private business, would certainly wreck any enterprise dependent for its existence on yearly profits. Of all the propositions made by Dr. Cleveland none is more important than this — that the making of a budget is essen- tially an executive function. The oldest standing order of the House of Commons, dated July 1713, is: " The House will receive no petition for any sum relating to public service, or proceed upon any motion for a grant or charge upon the public revenue unless recommended by the Crown." That order is the foundation of efficiency in the English public service ; upon that foundation a budget system is firmly placed. The House of Commons demands and secures a bud- get which is a clear, understandable, well-indexed document, and the representatives of the Crown who make the budget ap- pear in person before the House to explain it. The House of Commons, like the board of directors of a well-conducted private English business corporation, controls the purse, but has deprived itself of the privilege of dipping into it. Our difficulty is that, as a general rule, the man at the top — ^president, governor, or mayor — is not entrusted with sole authority to formulate and to amend the financial program of the year; he and his assistants are not permitted to appear in person to explain and to defend his program; so that he can- not be held personally responsible for good or bad results. Congress, legislatures, city councils, exceed their proper function with respect to finance, which is to vote or to refuse (190) No. I] PROVISION FOR A BUDGET 191 to vote public moneys for the estimates submitted by the re- sponsible executive. As a rule, they reserve to themselves the power to introduce appropriation bills without first securing executive approval. These appropriation bills are divided up into sections quite arbitrarily for hasty consideration among many sub-committees, who work without coordination with each other. " Log-rolling," " riders," " pork barrels," and immense public expenditures are the logical and inevitable re- sult in our public business. What private corporation could survive such procedure on the part of its directors ? What man of ability and character would retain the presidency of a private business corporation in the face of such dangerous prac- tice on the part of his directors ? Guardians of the treasury, possessors of the power to levy taxes, our legislators — national, state, and municipal — fritter away their proper and supreme control of the executive. By meddling with his authority they release him from personal resiponsibility for public expenditures. They sell their birth- right for a mess of pottage. What they gain is the right to " log-roll " or get " pork " for constituents; what they lose is responsible and efficient government. Periodically, the growing uneasiness of taxpayers culmin- ates in an angry protest. We seem to have reached such a period .of protest at this time. The European war, with its waste and losses; the diminished profits of trade; unemploy- ment; the creation of new forms of taxation ; the arbitrary atti- tude of certain public commissions; the astounding recent growth of public debt, have brought a sense of uneasiness if not of positive alarm to taxpayers and to investors. The debt of New York state as shown by census reports is typical. De- ducting sinking-fund assets, it grew from $8,540,427, or 99 cents per capita, in 1907, to $86,205,247, or $9.05 per capita, in igi2 — that is, it multiplied ten times in five years, and has since risen to $124,772,980, which is fifteen times as much debt in 1914 as' in 1907. Taxes and debt have everywhere risen together. The feeling grows that our government agen- cies are going too fast and too far; that they are not organized in a way to do their work efficiently; that they have not the means of locating and removing inefficiency. (191) 192 REVISION OF THE STATE CONSTITUTION There is no permanent improvement except along the well- trodden path which the rest of the civilized world has fol- lowed. We learned this lesson in the reform of our currency and banking laws. The studies of the Monetary Commission convinced men of all parties that Europe had much to teach us in the reform of our banking and currency system. The studies of President Taft's Commission on Economy and Effi- ciency lead to the same conclusion concerning our public finance. Our power to govern ourselves efficiently has been taken from us and it must be restored by correcting the faulty organic law which controls our government finance. We must introduce into the charters and constitutions which control our government procedure the sound principles and practices which make private business effective the world over. (192) THE ORGANIZATION AND PROCEDURE OF THE COURTS ' HENRY W. JESSUP THE remarks of the President of the United States before the American Bar Association in Washington in Octo- ber last were not so much an original statement as they were the summation of a criticism of the administration of jus- tice in our courts which has been made in one form or another for many years, namely, that the justice administered in a court is not identical with that justice which the innate sense of jus- tice in every human breast by intuition conceives to be appli- cable to the particular dispute. The President repeated his conversation with a lawyer on the rational validity of precedents in the administration of justice, which he closed by asking, "After all, isn't our object justice?" And the lawyer replied, " God forbid. We should be very much confused if we made that our standard. Our standard is to find out what the rule has been and how the rule that has been applies to the case that is." Mr. Justice Crane of the supreme court of this state, in his remarks before the Phi Delta Phi Club of New York, before this meeting of the bar association in Washington, had stated this paradox in substantially identical form. It has been recog- nized from the beginning of the development of our law. Doctor John Norton Pomeroy in examining the origin of equity jurisprudence and showing the arbitrariness and formalism of the original five actions that constituted enforcement of civil rights in the earliest period of Roman law, quotes from the Institutes: "All these actions of the law fell gradually into great discredit, because the over-subtlety of the ancient jurists made the slightest error fatal." Going on later to emphasize the importance of a correct notion of equity, which he says is ' Read at the meeting of the Academy of Political Science, November 19, 1914. (193) 194 REVISION OF THE STATE CONSTITUTION [Vol. V not a theoretical but a very practical inquiry, he observes : " If a certain theory of its nature which now prevails to some extent should become universal, it would destroy all sense of certainty and security which the citizen has, and should have, in respect to the existence and maintenance of his juridical rights." These observations, I may note, were made in 1881. And this conception to which he refers, he says, was known to the Roman jurists, and was described by the phrase, arbitrium boni viri, which he translates, " the decision upon the facts and cir- cumstances of a case which would be made by a man of intel- ligence and of high moral principle." He closes by observing: " It needs no argument to show that if this notion should become universally accepted as the true definition of equity, every decision would be a virtual arbitration, and all certainty in legal rules and security of legal rights would be lost." This leads me to observe by way of preface that it is the function of conferences such as this, and of deliberations of associations of the bar everywhere to try to re-solve this para- dox and approximate the administration of justice in the par- ticular case in a court of justice to that arbitrium boni viri, or intuition of the right thing that is exercised by the man of in- telligence and conscience. Are red-tape and meticulous tech- nicalities, elaborate codes and conflicting jurisdictions, aids to that approximation? When men of common sense are considering the question of the performance of duty by their courts of justice it is highly reasonable to assume that they will apply to that inquiry and discussion every common-sense idea or test that is available. During the last twenty years a great stride forward has been made in respect to increased efficiency in every line of practical endeavor, so that we have to-day what are known as " efficiency experts." Economy of effort, economy of fuel, standardization of parts and function, the diminution of the intermediate cogs in the machine, the more direct application of power to the pro- peller — in other words, the elimination of friction and waste — is the object of the efficiency expert. Every one of these ideas may be applied to any institution, even to the courts of justice. They are sacred, in a sense, whether you call it a historic sense, (194) No. I] ORGANIZATION AND PROCEDURE OF COURTS 195 or a constitutional sense, but there is no reason why, when the time comes for a discussion of whether or not changes shall be made, the most practical tests should not be applied in this very- respect of efficiency which is now a determining factor in form- ing an estimate of the effectual operation of any enterprise or business or system. Therefore, if we should re-state the inquiry with regard to the administration of justice in practical terms, we should ask to see if the result desired is secured without friction or waste, — and the word " waste " includes waste of time, waste of energy, waste of material. The answer to that inquiry can only be negative. There is a great waste of power. The energies of judges of learning and ability are frittered away by irritating and vex- atiously long-drawn-out procedural applications which involve how, and not what. They are adjective, not substantive. The agitation and litigation of such matters merely defers, delays or complicates the determination by a court of justice of the issues of fact between the two particular litigants. This involves, of course, a waste of time, and when it comes to the determina- tion of questions of fact or of law and the actual trial of a case, a justice of our supreme court of New York county may enter the trial of that case on Monday after having been a week or more in special term part I with a calendar of from ninety to one hundred practice motions per diem to be dealt with before him, many of which still remain undisposed of and perhaps are seething in his mind. Then we have too many cogs in our judicial machine ; that is to say, we have too many courts — courts of general, of special, and of limited jurisdiction. A litigant can go just so far in one ot these courts in which he is advised to bring his particular proceeding ; then, after several years of litigation, he perhaps finds that there is still something to be done in another court before the result can be duly achieved in the court he began in, or that he has lost his remedy because he proceeded in the wrong court. Not to mention our federal courts, we have in New York our supreme court, with its appellate branches, and our court of appeals. We have our city courts and our county courts. We have our surrogates' courts and (19s) 196 REVISION OF THE STATE CONSTITUTION [Vol. V our municipal courts. We have our magistrates' courts and our courts of general and special sessions and the criminal branch of the supreme court. Disregarding absolutely and for the purposes of this discussion what gave rise to their organiza- tion or the purpose of the constitutional embodiment of any or all of these courts, we ask, Is there any valid reason why they should be continued with this sometimes conflicting, often over- lapping or concurring jurisdiction, and with such remedial in- equality? Is the average litigant so benefited as that any valid objection could be raised to their elimination and to the stand- ardization of our whole judicial system by taking these courts up into the supreme court, making it a general court of juris- diction at law and in equity, with power to grant every remedy that is applicable to the facts as proved in the particular case before it? That is, approximating the English system, could not the various particular kinds of work that have been special- ized in these special courts be committed to the administrative divisions of the supreme court so that we might have a probate division, by which the work now done by the surrogate might be done, and an equity division, a tort, contract and commercial- law division, and so on, a system regulated by rules of the ap- pellate division in each department, and hence elastic and adjustable to the volume of business at any particular time? The erroneous assignment of a cause to a wrong division should not be jurisdictionally defective, but on discovery; the cause should be transferable to the particular division without loss of priority or position. The Committee of Seven of the Phi Delta Phi Club of the city of New York, which has for months been engaged in the examination of this question, has made a report which has been privately published and which embodies a recommendation of this character in the form of suggested amendments to the judiciary article of the constitution.' In the particular we are now discussing, this report makes certain sug- gestions, drastic as we supposed. The only criticism so far re- ceived from members of the bar who have examined them is ' A copy of part II of the report recommending these changes is appended to this paper as an exhibit for the information of such as may desire to study the matter further. (196) No. I] ORGANIZATION AND PROCEDURE OF COURTS ig7 that they are too conservative. The report deals with the pro- priety of yielding, for the time being (so that the change will not be too abrupt), to the feeling that there should be a " poor man's court," that is, a court available by locality of exercise of jurisdiction to everybody. In the ordinary county of this state the county court is such a court. The county seat is the mecca of the surrounding inhabitants. In great cities like the city of New York the municipal court has been this " poor man's court." Therefore, the report suggests that accompanying the standard- ization of the supreme court by taking up into it the city and surrogates' courts, there be preserved the system of county or neighborhood courts which in turn shall be standardized by taking up into them in appropriate parts of the state these municipal courts and making them divisions of the county court at the particular places where more than one part is required to do the business. That is to say, we should have two courts : the neighborhood court, limited in the pecuniary extent of the judgment it could award to either party but within that pecun- iary limit having broad and general powers to do justice or equity between the parties, and then the supreme court, un- limited in any respect as to its jurisdiction. Of course the court of appeals would remain the court of last resort. The second feature of the report is that the results desired from such a standardization are not going to be secured if we are still to have waste of energy and time. This waste of en- ergy and time arises out of that which unduly engrosses our courts, i. e., our highly meticulous and highly articulated code of civil procedure. For the purpose of discussion before the constitutional con- vention the reports that have been made by national commit- tees, such as that of the National Economic League or the American Bar Association, which deal with uniform legislation, and with short practice acts in all the states, need not be re- ferred to, because they are within the province and power of the legislature, and do not require constitutional embodiment or direction or authority. We believe that the movement for uni- form legislation which has already found acceptance in respect to negotiable-instruments or bills-of-lading laws and the like, (197) igg REVISION OF THE STATE CONSTITUTION [Vol. V and which, we trust, will extend to the laws of marriage and divorce, and to every other feature of our ordinary law, is bound to come. We believe also that even the state of New York will yield to the influences that demand a short practice act, so that procedure will be relieved from the hard-and-fast and high- ly technical channels of a code, and will be left more and more to the control of an elastic and adaptable scheme of rules of court — in the formulation of which, however, it may be sugges- ted in passing, the bar should have a voice equally with the bench. And so the report of the Committee of Seven suggests that an additional idea be adopted from the English system ; i. £,, a constitutional provision authorizing the appointment by the appellate divisions of the different departments where this waste of effort and energy is going on, of commissioners, or supreme court masters, to whom all procedural and interlocu- tory matters should be assigned by some system of rotation so as to equalize their work. That is, as soon as a cause is at is- sue it should be s&nt pro forma to a master. And before him, on his summons for direction, the parties and their counsel should appear and at an informal hearing — at which, however, their testimony could be taken on oath — he should determine all questions as to the forms of pleadings, as to bills of particu- lars, as to injunctions or receiverships, and should boil the case down by eliminating sham or frivolous or dilatory issues, and frame an issue which thereupon would go to a justice of the supreme court who would try that issue so boiled down and relieved of all interlocutory red-tape. To engraft such a scheme of relief upon our judicial system requires constitutional amendment, not as a matter of law, we believe, but as a matter of fact, for the following reason. This same scheme was suggested by the Commission on the Law's Delays, one of our ablest commissions, appointed pursuant to chapter 485 of the Laws of 1902. The legislature enacted a bill to carry their recommendations into effect, but it was vetoed by the governor on the opinion of the then attorney- general that it was unconstitutional. The impression at the time was that it was desired to veto the bill because it would affect disastrously the distribution of patronage in the appoint- (198) No. I] ORGANIZATION AND PROCEDURE OF COURTS igg ment of referees, to whom part of this work of relieving the bench is now committed. In respect to references to hear and determine issues which present questions so compHcated that they would unduly preempt the time of the court in the trial of the causes of other litigants, there is no question that the appointment of masters and commissioners would, by simplify- ing the issues to be tried, gradually result in destroying the referee system. The result, as many justices of the supreme court have admitted to the speaker, would be to relieve them from the intolerable pressure of applicants for patronage, a pressure which dates back many, many years. The Honorable Noah Davis, who was a presiding justice in the supreme court in this department for many years, told me, after his retirement from the bench, that I could have no conception how many or how reputable were the men who from time to time had come to him and besought him to give them a reference to compute to carry their families over Sunday. That is the least intoler- able form of the pressure, personal or political, that is exerted upon the incumbent of judicial office. The third material suggestion that grows out of this effort to eliminate this procedural work from the domain of the justice on the bench is addressed to a more debatable point. One of the most remarkable results of the convention that adopted the constitution as it now stands was the limitation on the powers of the court of appeals, the elimination from their considera- tion of questions of fact and the precluding of their review of certain unanimous decisions of the appellate division. If there is any reason in the world for the mediation of the appellate term and the appellate division between the determination of the judges of the supreme court and the determination of a court of last resort, it is not founded on essential justice. A county judge may try a man for a felony, and appeal from his determination goes directly to the court of appeals. If a man's life requires no intermediation of subordinate appellate courts for his protection, why should his pocket? The old general term, it is true, succeeded by the appellate division, has been composed almost without exception of men who have com- manded the respect of the bar for their energy, their abilit y (199) 200 REVISION OF THE STATE CONSTITUTION [Vol. V their learning, and their earnest attempt to facilitate the business of the court. And yet, from the standpoint of the litigants, it is hard to explain why the court of last resort should, when it comes to determining finally the controversy, be precluded from going into the case in all its aspects of fact and of law. Take the rule of the preclusive effect of unanimity of the appellate division in certain cases. That unanimity may not be, after all, entire. It may have been a unanimous determination to reverse the .justice before whom the parties and their witnesses appeared, and who had the consequently increased opportunity of forming a correct judgment on the facts. At least in respect to such cases there has not been unanimity of judicial determi- nation in that particular case, and therefore the committee has suggested that this matter be reconsidered, and that where there is no unanimity of both trial and intermediate appellate court, the appellant should be entitled to a careful scrutiny of the whole record in all its aspects by the court of last resort. The reason for limiting the jurisdiction of the court of ap- peals at the last constitutional convention was because it was so far behind in its work that even the erection of a second divis- ion of that court had not sufficed to clear up its calendar. The organization of the appellate division was a scheme to reduce the demands upon the time and energy of the court of last re- sort. In that particular respect it has been successful. There- fore the Committee of Seven had to consider the effect of its recommendation in this regard, and it came to the conclusion that it would be wise to eliminate, except in rare instances, all procedural, interlocutory matters from the consideration of the justices in the first instance. In this way, arguing from the operation of the practice in England, it is believed that the large percentage of appeals which fill our law reports and which involve the adjective law as distinct from the substantive law would inevitably be materially reduced, if not eliminated wholly, that the work of the appellate courts would thereby be lessened, and that there would then be no valid reason why the court of last resort should be relieved in any respect or in any degree of the labor of considering the whole case in all its aspects, and of rendering in its final judgment a determination, nor be absolved (200) No. I] ORGANIZATION AND PROCEDURE OF COURTS 2OI by reason of any lack of power to do this or to do that under the law as it stands. If in any system of administering justice we desire to secure that approximation referred to by the words arhitrium boni viri, or if we wish to secure general just results under the law as it has been as applicable to the case as it is, it is essential that the litigants who appeal to these courts of jus- tice should be satisfied that they have had a square deal. It is obvious that the time allotted to this paper does not permit of any extended discussion of the detailed working-out of these three main recommendations. They are shown by the annexed exhibit and they are being thoroughly studied and criticized by committees of the County Lawyers' Association, the New York City Bar Association and the State Bar Association, and by in- dividual lawyers and judges throughout the state. I close with the recommendation that in respect to all of the proposed topics for the consideration of this approaching con- vention the same practice be followed that the Committee of Seven has adopted, i. e., the practice of stating in black and white and by italics and parentheses, where there are already constitutional provisions dealing with the topic to be considered, the exact nature of the change or development desired, wheth- er it be the repeal or the new enactment advocated in behalf of ballot reform or suffrage or municipal home rule or referendum or franchises or taxation or any other question. If the propo- sition which you advocate is formulated in the words which you desire to write into the constitution, then everybody can tell what it is desired to accomplish, and the colored individual in the verbal woodpile, if there be one, is sure to be detected. There is nothing that so crystallizes one's own thought and con- viction as the attempt to put it in appropriate words. " Great is the power of statement." (201) 202 REVISION OF THE STATE CONSTITUTION [Vol. V APPENDIX TO MR. JESSUP'S PAPER. Report to the Phi Delta Phi Club of New York City, by the Committee of Seven appointed to consider and recommend possible amendments to the Judiciary Article of the Constitution of the State of New York : Part II We recommend, accordingly, that the Sections of the Judiciary Article be amended as below, by inserting the new matter indicated by italics, and by eliminating the present text when the words are bracketed thus [ J . § 1. Supreme Court; how constituted; judicial districts. The Supreme Court is continued with general jurisdiction in law and equity, subject to such appellate jurisdiction of the Court of Ap- peals as now is or may be prescribed by law not inconsistent with this article. The existing judicial districts of the State are continued until changed as hereinafter provided. The Supreme Court shall consist of the Justices now in office, and of the Judges and Surrogates trans- ferred thereto by the fifth section of this article, all of whom shall continue to be Justices of the Supreme Court during their respective terms, [and of twelve additional Justices who shall reside in and be chosen by the electors of, the several existing judicial districts, three in the first district, three in the second, and one in each of the other districts; and of their successors.] The successors of said Justices shall be chosen by the electors of their respective judicial district. The Legislature may alter the judicial districts once after every enumeration under the Constitution, of the inhabitants of the State, and thereupon reapportion the Justices to be thereafter elected in the districts so altered. The Legislature may from time to time increase the number of justices in any judicial district except that the number of justices in the first and second district or in any of the districts into which the second district may be divided, shall not be increased to exceed one justice for each eighty thousand, or fraction over forty thousand of the population thereof, as shown by the last State, or Federal census or enumeration, and except that the number of justices in any other district shall not be increased to exceed one justice for each sixty thousand or fraction over thirty-five thousand of the population thereof as shown by the last State or Federal census or entmieration. [The Legislature may erect out of the second judicial district as now constituted, another judicial district and apportion the justices in office between the districts, and provide for the election of (202) No. I] ORGANIZATION AND PROCEDURE OF COURTS 203 additional justices in the new district not exceeding the limit herein provided.] Const. 1846, art. VI, § 6, amended in 1905. § 2. Judicial departments ; appellate division ; how consti- tuted; Governor to designate justices; reporter; time and PLACE OF holding COURTS. Supreme Court Commissioners. The Legislature shall divide the State into four judicial depart- ments. The first department shall consist of the counties of New York and of the Bronx j the others shall be bounded by county lines, and be compact and equal in population as nearly as may be. Once every ten years the Legislature may alter the judicial departments, but without increasing the number thereof. There shall be an Appellate Division of the Supreme Court, con- sisting of seven Justices in the first department, and of five Justices in each of the other departments. In each department four shall constitute a quorum, and the concurrence of three shall be necessary to a decision. No more than five Justices shall sit in any case. From all the Justices elected to the Supreme Court the Governor shall designate those who shall constitute the Appellate Division in each department ; and he shall designate the Presiding Justice thereof, who shall act as such during his term of office, and shall be a resident of the department. The other Justices shall be designated for terms of five years or the unexpired portions of their respective terms of office, if less than five years. From time to time as the terms of such designations expire, or vacancies occur, he shall make new designa- tions. A majority of the Justices so designated to sit in the Ap- pellate Division, in each department, shall be residents of the de- partment. He may also make temporary designations in case of the absence or inability to act of any Justice in the Appellate Division, or in case the Presiding Justice of any Appellate Division shall certify to him that one or more additional Justices are needed for the speedy disposition of the business before it. Whenever the Appellate Division in any department shall be unable to dispose of its business within a reasonable time, a majority of the Presiding Justices of the several departments at a meeting called by the Presiding Justice of the department in arrears may transfer any pend- ing appeals from such department to any other department for hearing and determination. No Justice of the Appellate Division shall, with- in the department to which he may be designated to perform the duties of an Appellate Justice, exercise any of the powers of a Justice of the Supreme Court, other than those of a Justice out of court, and those pertaining to the Appellate Division, or to the hearing and decision of motions submitted by consent of counsel, but any such Justice, when not actually engaged in performing the duties of such (203) 204 REVISION OF THE STATE CONSTITUTION [Vol. V Appellate Justice in the department to which he is designated, may hold any term of the Supreme Court and exercise any of the powers of a Justice of the Supreme Court in any county or judicial district in any other department of the State. From and after the last day of December, nineteen hundred fifteen [eighteen hundred and ninety- five], the Appellate Division shall have the jurisdiction now exer- cised by it [the Supreme Court at its General Terms and by the General Terms of the Court of Common Pleas for the City and County of New York, the Superior Court of the City of New York, the Superior Court of Buffalo and the City of Brooklyn], and such additional jurisdiction as may be conferred by the Legislature. It shall have power to appoint and remove a reporter. The Justices of the Appellate Division in each department shall have power to fix the times and places for holding Special Terms therein, and to assign the Justices in the departments to hold such terms ; or to make rules therefor. They shall also have power to provide by appropriate rules for Divisions of the Court at Trial and Special Terms, such as Probate Divisiorij Equity Division^ etc., and to prescribe the number of justices in each department to be assigned to such several Divisions, and to revoke, or alter, such rules as necessity may require. They shall also have power to appoint Supreme Court Commis- sioners or Masters, in such numbers in each department as the Legis- lature may provide, but not exceeding one for each thousand of population in the department, to exercise the powers and perform the duties defined in § 6 below, or which the Legislature may pre- scribe. Const. 1846, art. VI, §§ 7 and 28, added in 1882, amended in 1905. § 3. Judge or justice when not to sit in review ; testimony IN equity cases. No Judge or Justice shall sit in the Appellate Division or in the Court of Appeals in review of a decision made by him or by any court of which he was at the time a sitting member. The testimony in equity cases shall be taken in like manner as in cases at law; and, except as herein otherwise provided, the Legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity thatit has heretofore exercised. Any Justice of the Supreme Court, except as otherwise provided in this article, may hold court in any county (transferred from § 6). Const. 1846, art. VI, §8. § 4. Terms of office ; vacancies, how filled. The official terms of the Justices of the Supreme Court shall be (204) No. I] ORGANIZATION AND PROCEDURE OF COURTS 205 fourteen years from and including the first day of January next after their election. When a vacancy shall occur otherwise than by expira- tion of term in the office of Justice of the Supreme Court the same shall be filled for a full term, at the next general election, happening not less than three months after such vacancy occurs ; and, until the vacancy shall be so filled, the Governor by and with the advice and consent of the Senate, if the Senate shall be in session, or if not in session the Governor, may fill such vacancy by appointment, which shall continue until and including the last day of December next after the election at which the vacancy shall be filled. Const. 1846, art. VI, §§ 9, 13. § 5. New York City Court [s and the Surrogates' Courts abol- ished; JUDGES BECOME JUSTICES OF SUPREME CoURT ; SALARIES; JURISDICTION VESTED IN SUPREME COURT. [The Superior Court of the City of New York, the Court of Common Pleas for the City and County of New York, the Superior Court of Buffalo, and the City Court of Brooklyn.] The City Court of the City of New York, and the Surrogate's Court in every County are abolished from and after the first day of January, one thousand fiine [eight] hundred [and] sixteen [ninety-six], and thereupon the seals, records, papers and documents of or belonging to such courts, shall be deposited in the offices of the Clerks of the several counties in which said courts now exist ; and all actions and proceedings then pending in such courts shall be transferred to the Supreme Court for hearing and determination. The Judges and Surrogates of said courts in office on the first day of January, one thousand nine [eight] hundred [and] sixteen [ninety-six], shall, for the remainder of the term for which they were elected or appointed, be Justices of the Supreme Court ; but they shall sit only in the counties in which they were elected or appointed. But this shall not apply to those Counties where the County Judges are also Surrogates. In such counties the County Judge shall no longer act as Surrogate after the first day of January, IQ16, but his office and term as County Judge shall not he hereby otherwise affected. In respect to such counties the Legisla- ture may provide for an additional Justice of the Supreme Court if the business heretofore done by the existing Surrogate's Court re- quire it. The Legislature shall prescribe the time and manner of transfer of the clerks of the Surrogates' Courts and offices throughout the State that they may be available for the business of the Probate Division of the Supreme Court if and when provided for by the appropriate Ap- pellate Division under § 2 hereof. Their salaries shall be paid by the said counties respectively, and shall be the same as the salaries of the other Justices of the Supreme Court residing in the same counties. (205) 2o6 REVISION OF THE STATE CONSTITUTION [Vol. V Their successors shall be elected as Justices of the Supreme Court by the electors of the judicial districts in which they respectively reside. The jurisdiction now exercised by the several courts hereby abol- ished, shall be vested in the Supreme Court. [Appeals from inferior and local courts now heard in the Court of Common Pleas for the City and County of New York and the Superior Court of Buffalo, shall be heard in the Supreme Court in such manner and by such Justice or Justices as the Appellate Divisions in the respective de- partments which include New York and Buffalo shall direct, unless otherwise provided by the Legislature.] New. § 6. Supreme Court commissioners or masters. [Circuit Courts AND Courts of oyer and terminer abolished.] From and after July ist, igi6, in any judicial department of the State, where, in the judgment of the Justices of the Appellate Divi- sion, or of a majority thereof, the volume of business demands it, there may be appointed by such Appellate Division Masters, or Supreme Court Commissioners, who shall be members of the bar, of at least years' standing, who shall exercise in respect to interlocutory and procedural matters in any litigation pending in such department, including the direction of summary judgments, such powers and functions and who shall receive such compensation c^ the Legislature may prescribe; but the Legislature may commit to each Appellate Division the power to prescribe such power and functions, and the manner of their exercise, by rules, which such Appellate Division may from time to time amend or revoke. In respect to jnatters which may be thus committed to Masters thus appointed, their orders shall be final until reversed in the manner to be prescribed by law. The compensation and allowances of such Commissioners shall be provided for and paid as are th-e salaries of Supreme Court Justices. [Circuit Courts and Courts of Oyer and Terminer are abolished from and after the last day of December, one thousand eight hundred and ninety-five. All their jurisdiction shall thereupon be vested in the Supreme Court, and all actions and proceedings then pending in such courts shall be transferred to the Supreme Court for hearing and determination.] New. § 7. Court of Appeals. The Court of Appeals is continued. It shall consist of the Chief Judge and Associate Judges now in office, who shall hold their offices until the expiration of their respective terms, and their successors, who shall be chosen by the electors of the State. The official terms (206) No. I] ORGANIZATION AND PROCEDURE OF COURTS 207 of the Chief Judge and Associate Judge shall be fourteen years from and including the first day of January next after their election. Five members of the court shall form a quorum, and the concurrence of four shall be necessary to a decision. The court shall have power to appoint and to remove its reporter, clerk and attendants. When- ever and as often as a majority of the Judges of the Court of Ap- peals shall certify to the Governor that said court is unable, by reason of the accumulation of causes pending therein, to hear and dispose of the same with reasonable speed, the Governor shall des- ignate not more than four Justices of the Supreme Court to serve as Associate Judges of Court of Appeals. The Justices so designated shall be relieved from their duties as Justices of the Supreme Court and shall serve as Associate Judges of the Court of Appeals until the causes undisposed of in said court are reduced to two hundred, when they shall return to the Supreme Court. The Governor may desig- nate Justices of the Supreme Court to fill vacancies. No Justice shall serve as Associate Judge of the Court of Appeals except while hold- ing the office of Justice of the Supreme Court, and no more than seven Judges shall sit in any case. [As amended in 1899.] Const. 1846, art. VI, § 3, amended in 1869. § 8. Vacancy in Court of Appeals^ how filled. When a vacancy shall occur otherwise than by expiration of term, in the office of Chief or Associate Judge of the Court of Appeals, the same shall be filled, for a full term, at the next general election hap- pening not less than three months after such vacancy occurs ; and un- til the vacancy shall be so filled, the Governor, by and with the ad- vice and consent of the Senate, if the Senate shall be in session, or if not in session the Governor may fill such vacancy by appointment. If any such appointment of Chief Judge shall be made from among the Associate Judges, a temporary appointment of Associate Judge shall be made in like manner ; but in such case, the person appointed Chief Judge shall not be deemed to vacate his office of Associate Judge any longer than until the expiration of his appointment as Chief Judge. The powers and jurisdiction of the court shall not be suspended for want of appointment or election, when the number of Judges is sufficient to constitute a quorum. All appointments under this section shall continue until and including the last day of Decem- ber next after the election at which the vacancy shall be filled. Const. 1846, art. VI, § 3, amended in 1869. § 9. Jurisdiction of Court of Appeals. After the last day of December, one thousand nine hundred and fifteen [eight hundred and ninety-five], the jurisdiction of the Court of Appeals, except where the judgment is of death, shall be limited (207) 2o8 REVISION OF THE STATE CONSTITUTION [Vol. V to the review of questions of law whenever the decision of the Ap- pellate Division appealed from be unanimous in affirmance of the Court below. But, if the Appellate Division be divided, or if its de- cision appealed from be one of reversal the Court of Appeals may re- view the facts and the law. But no unanimous decision of the Ap- pellate Division of the Supreme Court that there is evidence support- ing or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals. Except where the judgment is of death, appeals may be taken, as of right, to said court only from judgments or orders entered upon decisions of the Appellate Division of the Supreme Court, finally determin- ing actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon af- firmance judgment absolute shall be rendered against them. The Appellate Division in any department may, however, allow an appeal upon any question of law which, in its opinion, ought to be reviewed by the Court of Appeals, and may in any case allow an appeal and certify that justice requires that the Court of Appeals should review the fcu:ts as well as the law. Where the Appellate Division shall refuse to so allow an appeal and to so certify any Judge of the Court of Appeals shall have power to allow such an appeal. The Legislature may otherwise [further] restrict the jurisdiction of the Court of Appeals and the right of appeal thereto, but the right to appeal shall not depend upon the amount involved. The provisions of this section shall not apply to orders made or judgments rendered by any Appellate Division {^General Term] be- fore the last day of December, one thousand nine hundred and fifteen [eight hundred and ninety-five], but appeals therefrom may be taken under then existing provisions of law. New. § 10. Judges not to hold any other office. The Judges of the Court of Appeals and the Justices of the Su- preme Court shall not hold any other office or public trust. All votes for any of them, for any other than a judicial office, given by the Legislature or the people, shall be void. Const. 1846, art. VI, § 10, amended in 1869. § 11. Removal of judges. Judges of the Court of Appeals and Justices of the Supreme Court may be removed by concurrent resolution of both houses of the Legis- lature, if tv,'o-thirds of all the members elected to each house concur therein, or they may he impeached before the Court for the Trial of (208) No. I] ORGANIZATION AND PROCEDURE OF COURTS 209 Impeachments^ either by resolution of the Assembly or on written- charges by any Bar Association in the State preferred to the Governor, ■who in such case shall convene the said Court. All other judicial officers, except Justices of the Peace and Judges or justices of inferior courts not of record, may be removed by the Senate, on the recommen- dation of the Governor, if two-thirds of all the members elected to the Senate concur therein. But no officer shall be removed by virtue of this section except for cause, which shall be entered on the journals, nor unless he shall have been served with a statement of the cause alleged, and shall have had an opportunity to be heard. On the question of removal, the yeas and nays shall be entered on the journal. Const. 1846, art. VI, § 11, amended in 1869. § 12. [Am''d. 1909] Compensation of judges; tenure of office. No person shall hold the office of judge or justice of any court longer than until and including the last day of December next after he shall be seventy years of age. Every Judge of the Court of Ap- peals, including Justices of the Supreme Court while serving as As- sociate Judges, shall receive from the State the sum of seventeen thousand five hundred Dollars per year. The Chief Judge shall re- ceive fifteen hundred dollars per year additional. Each Justice of the Supreme Court shall receive from the State the sum of $10,000 per year. Those assigned to the Appellate Divisions in the third and fourth departments shall each receive in addition the sum of $2,000, and the presiding justices thereof the sum of $2,500 per year. Those justices elected in the first and second judicial departments shall con- tinue to receive from their respective cities, counties or districts, as now provided by law, such additional compensation as will make their aggregate compensation what they are now receiving. These justices elected in any judicial department other than the first or second, and assigned to the Appellate Divisions of the first or second de- partments shall, while so assigned, receive from those departments respectively, as now provided by law, such additional sum as is paid to the justices of those departments. A justice elected in the third or fourth department assigned by the Appellate Division or desig- nated by the governor to hold a trial or special term in a judicial dis- trict other than that in which he is elected shall receive in addition ten dollars per day for expenses while actually so engaged in hold- ing such term, which shall be paid by the state and charged upon the judicial district where the service is rendered. The compensation herein provided shall be in lieu of and shall exclude all other com- pensation and allowance to said judges or justices for expenses of every kind and nature whatsoever. The provisions of this section shall apply to the judges and justices now in office and to those who become such by virtue of \ S hereof, or who may be hereafter elected. (209) 2IO REVISION OF THE STATE CONSTITUTION [Vol. V § 13. Trial of Impeachments. The Assembly shall have the power of impeachment of any judicial or public officer, by a vote of a majority of all the members elected, preferred to the Senate. The Court for the Trial of Impeachments shall be composed of the President of the Senate, the senators or the major part of them, and the Judges of the Court of Appeals, or the major part of them. On the trial of an impeachment against the Governor or Lieutenant-Governor, the Lieutenant-Governor shall not act as a member of the court. No judicial officer shall exercise his office, after articles of impeachment against him shall have been preferred to the Governor or to the Senate, until he shall have been acquitted. Before the trial of an impeachment the members of the court shall take an oath or affirmation truly and impartially to try the impeachment according to the evidence, and no person shall be convicted without the concurrence of two-thirds of the members present. Judgment in case of impeachment shall not extend further than to removal from office, or removal from office and disqualifica- tion to hold and enjoy any office of honor, trust or profit under this State ; but the party impeached shall be liable to indictment and punishment according to law. Const. 1846, art. VI, § I, amended in 1869. § 14. [Am^d. 1913.] County Courts. There shall be one in each and every cotmty of the state, including New York County as hereinbelom) set forth. The [existing] county courts are continued [and]. The judges of the present county courts [thereof] now in office shall hold their offices until the expiration of their respective terms. [In the county of Kings there shall be four county judges.] The number of county judges in any county may also be increased, from time to time, by the legislature, to such number that the total number of county judges in any one county shall not exceed one for every two hundred thous- and, or major fraction thereof, of the population of such county. [The additional county judges in the county of Kings shall be chosen at the general election held in the first odd-numbered year after the adoption of this amendment.] The additional county judges whose offices may be created by the legislature shall be chosen at the gen- eral election held in the first odd-niunbered year after the creation of such office. All county judges, including successors to existing judges, shall be chosen by the electors of the counties for the term of six years from and including the first day of January following their election. County courts shall have the powers and jurisdiction they now possess, and also original jurisdiction in actions for the recovery of money only, where [the] either plaintiff or defendant[s] (210) No. I] ORGANIZATION AND PROCEDURE OF COURTS 2II resides in the county, and in which the complaint demands judg- ment for a sum not exceeding $2,000. County Courts shall have all powers legal or equitable requisite to finally determine the con- troversies of which they have jurisdiction. But the legislature may hereafter enlarge or restrict the jurisdiction of the county courts, pro- vided, however, that their jurisdiction shall not be so extended as to authorize an action therein for the recovery of money only, in which the sum demanded exceeds $2,000, [or in which any person not a resi- dent of the county is a defendant. Courts of sessions, except in the county of New York, are abolished from and after the last day of December, 1895. All the jurisdiction of the court of sessions in each county, except the county of New York, shall thereupon be vested in the county court thereof, and all actions and proceedings then pend- ing in such courts of sessions shall be transferred to said county courts for hearing and determination.] Every county judge shall perform such duties as may be required by law. His salary shall be established by law, payable out of the county treasuiy. A county judge of any county may hold county courts in any other county when requested by the judge of such other county. The existing Municipal Courts are abolished from and after the 31st day of December^ igi5, and the justices thereof then in office shall hold their offices until the expiration of their respective terms but shall become judges of the County Court of the county within whose bounds the particular municipal court of which they were justices exercised jurisdiction. All the jurisdiction of such municipal courts as now exercised shall thereupon be vested in the County Court of the particular county within whose bounds such municipal court or district thereof existed, and all actions and proceedings then pending shall be transferred to such county courts for hearing and determination, and all seals, records, documents, papers and books delivered to the Clerk of the County Court. In any county where there may thus be by rea- son hereof more than one Judge of the County Court, the said judges may, with the consent of the supervisors, or within the City of New York the Boavd of Estimate and Apportionment, appoint as many Divisions and designate as many court rooms and local clerks' offices for such Divisions as may be necessary to transact the judicial busi- ness theretifore transacted by both the existing County Court, if any, and by the Municipal Courts with their various districts in such par- ticular county. The County Court of Ne%v York County shall be constituted of the Justices of the Municipal Court in and for the districts within its territorial limits. The Legislature shall by appro- priate enactments in respect to salary provide for the organization of such County Court in any county where there is no such court at present. From Id., Art. VI, § 15, as am'd in 1869. Further am'd in 1913. (211) 212 REVISION OF THE STATE CONSTITUTION [Vol. V § 15. [Surrogates' Courts; Surrogates, their powers and jurisdiction; vacancies.] County judges. [The existing Surrogates' Courts are continued, and the Surrogates now in office shall hold their offices until the expiration of their terms. Their successors shall be chosen by the electors of their respective counties, and their terms of office shall be six years, except in the county of New York, where they shall continue to be fourteen years. Surrogates and Surrogates' Courts shall have the jurisdiction and powers which the Surrogates and existing Surrogates' Courts now possess, until otherwise provided by the Legislature. The County Judge shall be Surrogate of his county, except where a separate Surrogate has been or shall be elected. In counties having a popu- lation exceeding forty thousand, wherein there is no separate Surro- gate, the Legislature may provide for the election of a separate officer to be Surrogate, whose term of office shall be six years. When the Surrogate shall be elected as a separate officer his salary shall be established by law, payable out of the county treasury.] No County Judge [or Surrogate] shall hold office longer than until and in- cluding the last day of December next after he shall be seventy years of age. Vacancies occurring in the office of County Judge [or Surrogate] shall be filled in the same manner as like vacancies occurring in the Supreme Court. The compensation of any County Judge [or Surrogate] shall not be increased or diminished during his term of office. But the Legislature may provide for increased compensation of County Judges whose jurisdiction is exercised within the territorial limits of a city of the first class. — Until such provision shall have been made or until the expiration of their respective terms of office to which on December 31st, 1915, they may severally have been elected, municipal court justices who then shall become by oper- ation of this article county judges, shall continue to receive the salaries theretofore received by them to he paid in the same manner and from the same source as theretofore during their several terms to which they have been elected. [For the relief of Surrogates' Courts the Legislature may confer upon the Supreme Court in any county hav- ing a population exceeding four hundred thousand, the powers and jurisdiction of Surrogates, with authority to try issues of fact by jury in probate cases.] Const. 1846, art. VI, § 15, amended in 1869. § 16. Local judicial officers. The Legislature may, on application of the board of supervisors, provide for the election of local officers, [not to exceed two in any county,] to discharge the duties of County Judge [and of Surrogate,] in cases of [their] inability or of a vacancy, and in such other cases as (212) No. ij ORGANIZATION AND PROCEDURE OF COURTS 213 may be provided by law, and to exercise such other powers in special cases as are or may be provided by law. Const. 1846, art. VI, § 16, amended in 1869. § 17. Justices of the Peace; [district court justices.] The electors of the several towns shall, at their annual town meet- ings, or at such other time and in such manner as the Legislature may direct, elect Justices of the Peace, whose term of office shall be four years. In case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the un- expired term. Their number and classification may be regulated by law. Justices of the Peace and judges or justices of inferior courts not of record, and their clerks may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or may be prescribed by law. Justices of the Peace [and District Court Justices] may be elected in the different cities of this State in such manner, and with such powers, and for such terms, respectively, as are or shall be prescribed by law ; all other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, shall be chosen by the electors of such cities, or ap- pointed by some local authorities thereof. Const. 1846, art. VI, § 18, amended in 1869. § 18. Inferior local courts. Inferior local courts of civil or of [and] criminal jurisdiction may be established by the Legislature, but no inferior local court here- after created shall be a court of record. The Legislature shall not hereafter confer upon any inferior or local court of its creation, any equity jurisdiction or any greater jurisdiction in any [other] re- spect [s] than is conferred upon County Courts by or under this article. Except as herein otherwise provided, all judicial officers shall be elected or appointed at such times and in such manner as the Legislature may direct. Const. 1846, art. VI, § 19, amended in 1869. § 19. Clerks of courts. Clerks of the several counties shall be clerks of the Supreme Court, with such powers and duties as shall be prescribed by law. The Justices of the Appellate Division in each department shall have power to appoint and to remove a clerk, who shall keep his office at a place to be designated by said Justices. The Clerk of the Court of Appeals shall keep his office lat the seat of government. The Clerk of the Court of Appeals and the clerks of the Appellate (213) 214 REVISION OF THE STATE CONSTITUTION Division shall receive compensation to be established by law and paid out of the public treasury. Const. 1846, art. VI, § 20, amended in i86g. § 20. No JUDICIAL OFFICER^ EXCEPT JUSTICE OF THE PEACE^ TO RECEIVE FEES ; NOT TO ACT AS ATTORNEY OR COUNSELOR. No judicial officer, except Justices of the Peace, shall receive to his ovra use any fees or perquisites of office ; nor shall any Judge of the Court of Appeals, or Justice of the Supreme Court, or any County Judge [or Surrogate] hereafter elected [in a county having a popula- tion exceeding one hundred and twenty thousand,] practice as an attorney or counselor in any court of record in this State, or act as referee. [The Legislature may impose a similar prohibition upon County Judges and Surrogates in other counties.] No one shall be eligible to the office of Judge of the Court of Appeals, Justice of the Supreme Court, or [except in the county of Hamilton, to the office] of County Judge [or Surrogate], who is not an attorney and counselor of this State. Const. 1846, art. VI, § 21, amended in l86g. § 21. Publication of statutes. The Legislature shall provide for the speedy publication of all statutes, and shall regulate the reporting of the decisions of the courts ; but all laws and judicial decisions shall be free for publica- tion by any person. Const. 1846, art. VI, § 23, amended in 1869. § 22. Terms of office of present justices of the peace and local judicial officers. Justices of the Peace and other local judicial officers provided for in sections seventeen and eighteen, in office when this article takes effect, shall hold their offices until the expiration of their respective terms. Const. 1846, art. VI, § 25, amended in 1869. § 23. Courts of special sessions. Courts of Special Sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law. Const. l8<(^, art. VI, §26, amended in 1869. (214) ORGANIZATION AND PROCEDURE OF THE COURTS ' WILLIAM L. RANSOM Justice of the City Court of the City of New York I HAVE had before me for several days the manuscript of Mr. Jessup's suggestions and the report of the com- mittee of the Phi Delta Phi, and have had opportunity to examine them with some care. In many respects they par- allel recommendations which the bar associations are likewise urging, but you have under consideration here the coordinated plan proposed by Mr. Jessup, and I shall shape my discussion accordingly. I am sure that the bench and the bar of the whole state will recognize their debt to Mr. Jessup for his labors in behalf of a more efficient judicial system, and also their debt to the committee of the Phi Delta Phi for the con- crete and tangible form in which its recommendations are pre- sented. In no respect will this conference of the Academy per- form a greater public service than in thus placing emphasis, now and hereafter, upon the importance of concrete formula- tion of every suggestion which anyone has to make along the lines of constitutional change, to the end that the same may be thought out and fought out before the convention itself comes together in Albany next April. I hope that the Academy and its program committee will strongly recommend, if not abso- lutely insist, that I and every other speaker who utilizes this platform to urge any change in the existing constitution of the state, shall follow Mr. Jessup's example and annex to the printed version of his remarks, in at least some tentative form, " the black-and-white " of exactly what he proposes. No length of experience on the bench or at the bar is avail- able to give weight to anything I may say in discussion of the ' Discussion at the meeting of the Academy of Political Science, November 19, 1914- (215) 2i6 REVISION OF THE STATE CONSTITUTION [Vol.. V details of Mr. Jessup's suggestions, but I come to you from a tribunal of which each member conducts probably more jury trials of civil cases each month and each year than does any jus- tice of any other court in America, and I can at least indicate to you how some of these things appeal to me, from the view- point of that daily contact. It seems to me that Mr. Jessup's proposals, and the parallel proposals of the Phi Delta Phi and some of the bar associations, have the merit that they spring, not from preconceived abstractions or pre-disposition to change, but rather from the actualities, " the grass roots," of the hard, day-by-day experience of the bench and bar. Con- sidered as a whole and with due allowance for some difference as to details, they represent only conservative and well-demon- strated changes in either the substance or the phraseology of the existing constitutional provisions ; and it seems to me to be the first axiom of any revision of the judiciary article, that there should be no change in its well-litigated wording or its well-tried substantive provisions, except on the basis of what has been established by convincing experience and what offers reasonable certainty of improvement in that which we already have. You may or may not believe, as I do, that other and further changes in the judiciary article, over and above what Mr. Jessup has discussed, should and will receive careful con- sideration at the hands of the constitutional convention; but this I do not believe can be gainsaid, that if the convention should bi'ing about no other thing than the writing into our fundamental law of substantially the provisions formulated by the Phi Delta Phi, the work of the convention would neverthe- less be worth to the state a thousand times more than the con- vention will cost, and New York would be placed actually in the lead of all the states in the efficiency and suitableness of her machinery for the administration of justice. Improved in detail these recommendations can, and doubtless will be; but they represent an acceptable minimum of positive advance. Doubtless you all were impressed by what Mr. Jessup said regarding the relative inefficiency of our judicial system as a mechanism for securing the results to which it is consecrated.. I do not suppose that an alert business man or " business law- (216) No. I] ORGANIZATION AND PROCEDURE OF COURTS 217 yer " ever comes from his well-organized, perfectly coordi- nated office into a court in this city without feeling somehow, consciously or unconsciously, that the court has failed to keep pace with the life of the community which surges outside its walls, and that somehow the organization, procedure, and ad- ministrative routine of the court are still of an era which the community outside has necessarily superseded, in order to hold its own in the commercial competition of the times. The tribunal to which, as a last resort, the business man submits his controversies with his fellows, is practically the only institu- tion of private or public activity which, in its administrative and procedural methods, still lumbers on in the same old way of fifty years ago. Right here, I am inclined to believe, will be found the responsibility for a large part of that variance to which Mr. Jessup has referred, between justice as administered in a court and justice as innately conceived by the average man of intelligence and good conscience. I do not find men unwill- ing to have their disputes and controversies determined and their rights of property adjudicated according to the princi- ples of our substantive law. It is not a desire to avoid the ap- plication of rules of law which drives business men out of our courts, into reluctant settlement of controversies which should be litigated or into the submission of them to arbitration tribu- nals established by private agencies. Litigants do not submit themselves before arbitration committees of commercial organ- izations in order to secure the arbitrium boni viri or to subject their property and rights to individual judgment as substitute for long-established rules of the substantive law. The aver- sion of the business man is to the procedural and administra- tive side of our legal machinery. He believes in and needs the administration of justice according to law; the safety of his transactions requires certainty and rule as the basis of in- dividual and property rights. Popular dissatisfaction with the law, as I find it, is based not so much upon the variance be- tween justice according to the substantive law and justice ac- cording to the arbitrium boni viri, as upon the variance be- tween the justice which would result from a fair, prompt de- termination of controversies according to substantive legal (217) 2i8 REVISION OF THE STATE CONSTITUTION [Vol. V principles and the justice which does result from the existing procedural mechanism of our courts. Business men go to ar- bitration to avoid legal procedure and not legal principles. I wish I had time to comment further on this phase of Mr. Jessup's remarks, but I have not, except to say that to tune up and speed up our judicial mechanism, to cut out the delay and the " lost motion," to organize our courts along lines which take cognizance of twentieth-century experience and expe- dients, and to bring to the aid of the courts those direct and simple administrative aids which modern progress has made available in every field of activity, is, to my mind, one of the paramount tasks of to-day. As Mr. Taft said in Chicago in 1909 : " Of all the questions that are before the American peo- ple, I regard no one as more important than this : to wit, the improvement of the administration of justice." Much of this improvement will come, and is coming, not from changes in constitutions or even in codes or statutes, but rather from changed point of view and added efforts on the part of both judges and lawyers. Some of these matters we have lately been at work upon in New York county, and in my own court, at least, I know that it is not too much to say that administrative changes made by the justices themselves have increased by not less than twenty-five per cent the abso- lute efficiency of the court in the dispatch of business; and in the enhanced suitableness of the court as a forum for meeting the public needs to which it is designed to minister, the relative increase has been far greater. For example, within the pres- ent month we have put in force a separate commercial calen- dar, on which actions on commercial paper or for goods sold and delivered, and the like, are reached for trial within three or four weeks, instead of a year or more, after suit is started. In actions of this character, delay of determination is, to an unusual degree, likely to amount to a denial of jus- tice, and by administrative changes in other parts of the court, it has been possible to give this preference to commercial causes without appreciably prolonging the time within which other classes of actions may be reached for trial. When one sees at first hand the things which can and some day will be done, by (218) No. I] ORGANIZATION AND PROCEDURE OF COURTS 2ig way of " taking the slack " out of the existing judicial mechan- ism, utilizing the waste and avoiding the indirection therein, organic change seems far less importajit and there comes a powerful disposition to concentrate energies on the task at hand. Nevertheless, the people of the state have chosen a con- stitutional convention, and have elected to it men peculiarly adapted to deal intelligently and remedially with the existing judiciary article. The convention will, I take it, be especially inclined to give weight to the recommendations of the bar as- sociation and similar organizations, and it will be both sur- prising and disappointing if the labors of the convention do not give us a substantially improved judicial establishment, one which will lend itself even more suitably to the forward movement along the lines to which I have referred. But I must hurry on. Perhaps the best thing I can do, in the few minutes remaining, is to refer to one or two other things which seem to deserve consideration by the convention. These conveniently classify themselves under three heads : (i) Improvement in the method of selecting judges. (2) Provision for adequate representation and presentation of the public interest in judicial consideration of the constitu- tionality of statutes. (3) Aids to the development of a more simple, direct and suitable judicial procedure and the prompt determination of controversies according to established legal principles. Time does not permit me to do more than refer to these topics. Improvement in the Method of Selecting Judges Ought not the new constitution to bring about at least some substantial improvement in the methods of nominating and electing judges? Are we not ready to make some substantial advance in this respect? Ought not the new constitution at least to make mandatory the providing of a separate ballot for the election of judges, such ballot to bear no party names or emblems and no numbers or other designations of candi- dates ? I grant that for executive and legislative officers, it is (219) 220 REVISION OF THE STATE CONSTITUTION [Vol. V desirable to continue, even under the Massachusetts form of ballot, the presence of the party names and emblems on the ballot, because there is a Republican way or a Democratic way or a Progressive way of administering those offices, and it may well be urged that a voter is entitled, and should be enabled, if he so desires, to vote for officials who will administer those policy-determining offices from a party point of view, even though the voter knows neither the names nor the qualifica- tions of the candidates. In the case of judges, should we longer permit that method of choice? Should we suggest, by our form of ballot, that there is a partisan way of administering a judicial office or that party membership should be a basis of election thereto? Ought not the new constitution to put a premium on intelligence and discrimination in the choice of judges, and separate their election distinctively from the cate- gory of offices which are or may be voted for in a blind and purely partisan manner? The constitutional convention will doubtless consider the subject of requiring non-partisan judi- cial primaries, in complete substitution for the present system of party nominations of candidates for judicial office; but if it be deemed that the time has not yet come to stipulate in the organic law for a purely non-partisan mode of nomination as well as election, the requirement of a separate judicial ballot, bearing no party names, emblems, or numbers, would seem to be a step for which public sentiment in the state is fully pre- pared.^ The new constitution ought to help along the cause of greater care and intelligence in the choice of judges, at least to the extent of making it impossible for an elector to partici- pate in the election of judges without at least ascertaining the ' The following is a tentative suggestion of the possible phrasing of an amendment to the existing constitution to accomplish the above-indicated pur- pose : Amend Article II, Section 5 thereof, entitled, "Manner of Voting," by- adding at the end of Section 5 the following new matter : " At any election at which a judge or justice Cf a court of record is to be chosen by the electors, a. separate ballot therefor shall be provided, which ballot shall contain the names of all the persons nominated for any such judgeship or justiceship to be filled at such election, but shall not contain the name or emblem of any political party or other nominator, or any number or other designation in connection with the name of any candidate appearing thereon.'' (220) No. I] ORGANIZATION AND PROCEDURE OF COURTS 221 names of the men for whom he wishes to vote ! In connection with this same subject of selection of judges, another interest- ing suggestion has been made, which is regarded by some as combining the advantages of both the system of popular elec- tion and the system of executive selection. It is that the ex- ecutive be given the power, whenever any judicial office is to be filled at an election, to make seasonably a selection or nomi- nation of a candidate for the place, such candidate to be, by virtue of such executive designation, entered as a competitor in each of the party primaries and at the polls, subject to the right of the person so designated to decline to be a contestant in the primaries of any particular party or, in his later discre- tion, at the polls. If upon full consideration, this plan seems to offer a desirable modification of the elective system, it will be found in accord with our fundamental political theory of giving to the executive large powers for the proper direction of government, with full opportunity for the people to deal effectively with the unwise exercise of that power. Personally, I have not yet reached a conclusion whether such a combination of the appointive and elective system is desirable. Closely related to the selection of judges is the question of their tenure, accountability and discipline. In every state con- stitutional convention in recent 'years, this has been a subject most vigorously debated, not always with fortunate outcome. Strangely and most illogically, the emphasis has commonly been on improving, or at least changing, the modes of removal, rather than on improving the mode of selection. Most illogic- ally, the efforts of supposedly " progressive " elements in such gatherings have been centered on forcing through more facile means of getting rid of thoroughly objectionable judges after election, rather than means of preventing the election to the bench of men at all objectionable. Likewise illogically, it seems to me, the efforts of those opposing innovation in judicial tenure have been too often confined to mere opposition ; they have failed to recognize that the way to obviate any need for easier ways of getting rid of objectionable judges is to adopt means ensuring a more careful and discriminating popular choice in the first instance. May we not hope that in our New (221) 222 REVISION OF THE STATE CONSTITUTION [Vol. V York convention the emphasis will be placed on prevention rather than on subsequent surgical relief from the consequences of poor choice? Over and above this, however, it seems to me that those of us who oppose, as I have always opposed, the adoption of the " i-ecall of judges " owe it to ourselves and to our deep convic- tions on the subject to offer constructive methods for dealing with the conditions which give rise to the demand for the ex- pedient which we deem unsuitable and dangerous. There are such conditions and there is such a demand. I doubt whether anyone could read the report of the State Bar Association Com- mittee (1913) on the Causes Underlying the Dissatisfaction with Our Judicial System, without realizing that there is dissat- isfaction and prevalent criticism, on the part of great numbers of our people, and that this dissatisfaction and criticism is based, in large part, upon specific instances which are believed to show judicial misconduct or perversion of justice, but which have, with rare exceptions, never been the subject of any inquiry or report by any judicial or other tribunal. The average man, when he is the victim of what he believes to be judicial impro- priety or when he learns of a judicial act which he believes has inflicted injustice on a friend or neighbor, is inwardly exasper- ated and embittered because of the lack of remedy, the lack of forum to which to complain, the lack of tribunal which can give him a hearing, which will let him bring his grievance into the light, and will take pains to develop the facts on the issue whether his grievance is well-founded. Ought not there to be in this state a permanent tribunal, before which complaint re- garding the conduct of any judicial officer might be made at any time by any lawyer or by any citizen, and ought not such a tribunal to have plenary power to investigate and report con- cerning any such complaint, power to censure and perhaps to discipline, power also to institute before the legislature impeach- ment or removal proceedings as to any judge, and power to in- stitute before the appellate division proceedings for the disbar- ment or discipline of any lawyers involved in any matters as to which complaint was laid before such tribunal ? Would it not be for the best interests of judges, lawyers and litigants alike, (222) No. I] ORGANIZATION AND PROCEDURE OF COURTS 223 that there should be such a tribunal always open to receive and promptly investigate complaints concerning our judicial system, rather than that such grievances, real or fancied, should be left to rankle long in the minds of those concerned, embittering them with our free institutions, or that these self- magnifying grievances should be left to form the subject-matter of inflam- matory and unfair appeals to an electorate which cannot pos- sibly investigate the facts concerning them, at the time when the judicial officer in question goes before the people for re- election on his whole record ? Would it not be better to have the charge or suspicion threshed out at the time it arose, and the facts judicially ascertained? That is why I suggest that the convention consider the adoption of some such plan as was worked out in the Ohio convention, whereby, in addition to the removal and impeachment provisions (which Mr. Jessup's draft strengthens in important particulars), constitutional sanction might be given for the creation and powers of such a tribunal. The make-up and mode of selection of so august a body would not necessarily be fixed in and by the constitution itself ; author- ity for its creation by the legislature would be sufficient. Would not the results be most wholesome? Would they not tend to strenghten our whole juridical system in the public con- fidence? The best thing you can do for and with a man with a grievance is to let him tell it, " out loud," as we used to say in school, and let him try to prove it before his fellow men. A grievance regarding the fairness or integrity of a judicial officer is the last of all grievances that a democracy can permit to re- main " un-aired " and unadjudicated. In this connection, I may say that I think the effect upon the relations between the bench and bar would be most advantageous and salutary. There is no reason why men should not have opportunity to tell what they honestly think about judges and courts. The frank re- cognition of such a right will be a good thing for both lawyers and judges. I have great regard for the dignified and mutually deferential relation which should, and usually does, obtain be- tween court and practitioner ; I look on it as an indispensable aid in the impressive administration of justice ; but I would rather see that dignity and deference builded on respect rather (223) 224 REVISION OF THE STATE CONSTITUTION [Vol. V than primarily on suppression and fear of " contempt " or dis- barment proceedings. I should dislike to think that the acci- dent of an election which transferred me from an administra- tive to a judicial office could deprive members of the bar, who came before me then and come before me now, of their right to comment freely and complain vigorously, in my presence or elsewhere, concerning anything which they might honestly think was an abuse, on my part, of official propriety and discre- tion. It would greatly improve the administration of justice if a lawyer could safely present his client's right, and his own and his client's sense of grievance, to some such tribunal as I have indicated, even though that right or that sense of grievance arose from some abuse of power or breach of propriety on the part of a judicial officer. A lawyer, litigant, or ordinary citizen, who conscientiously believes that a judge has been guiltj' of improper conduct, and is willing to take the responsibihty of complaining about it and doing what he can to prove it, should be afforded a fair opportunity and a suitable, at-hand tribunal for so doing. And when that tribunal has been brought into being, there should be coupled with its creation the further pro- viso, so well phrased by Mr. Charles A. Boston in a remark- able address before the State Bar Association last year, that " no court in this state shall have hereafter any power to disbar or discipline, jn his official relation, any lawyer, for making any charge against the manner of administering justice in the court, until the lawyer has had an opportunity to demonstrate the truth of his charges before such a tribunal, and not then, unless this tribunal shall first certify that the lawyer acted without probable cause." Representation of the Public Interest in Judicial Consideration of the Constitutionality of Statutes Ought not the coming convention to give careful considera- tion to ways and means of ensuring that in judicial considera- tion of the constitutionality of statutes, there shall be not only adequate representation of the public point of view in the suit in which the question of constitutionality is raised, but also adequate presentation of the public interests involved? Under (224) No. I] ORGANIZATION AND PROCEDURE OF COURTS 225 our form of government, we are committed to the determina- tion of far-reaching questions of constitutional power and gov- ernmental policy in inconspicuous suits between ordinary- private litigants — oftentimes in suits brought into being by interests seeking to obtain thereby a decision adverse to the validity of the statute and therefore controlling the conduct of both sides of the litigation to that end. The conference of hostile interests to frame a " test case " is a familiar prelimi- nary to an acute legal onslaught on the constitutionality of a legislative enactment. Are we willing to leave our constitu- tional questions to an arbitrament in which counsel on both sides represent the hostile private interests and only the court is the possible champion of the public rights and the public interests? Might it not well be provided that no appellate court should hear or determine any appeal in which such a constitutional question was involved, except upon proof that the appellant therein had duly notified the attorney general of the state that such a question was involved in the appeal then pending and on proof that copies of the appeal papers and briefs had been duly served on the attorney general, who should have the right to intervene and be heard upon the ar- gument of any such appeal ? ^ Or might a similar result be more satisfactorily secured by providing that the state of New York is a necessary party defendant in any action in which either party asserts the unconstitutionality of a state statute?^ ' This result could be brought about through the insertion, as a new section or at the end of a suitable existing section, of phraseology somewhat as fol- lows : " In the trial or hearing of any action or proceeding in any court, in v/hich the invalidity of a statute of this state is asserted by any party thereto, the attorney-general shall have the right to intervene at any time and be heard upon the question of the validity of such statute. The appellate division or the court of appeals shall not hereafter hear or determine any appeal in which the invalidity of any such statute is asserted, except upon proof that the ap- pellant in such court had seasonably notified the attorney-general of the pen- dency of such appeal and had duly served him with all papers on such appeal, as though the state of New York were a party to such action or proceeding." ^ A method of giving formulation to this plan would be to add to the judic- iary article a new section, to read somewhat as follows : " In any civil action in which a party thereto asserts the invalidity, under this constitution, of a statute of this state, the state of New York shall be a necessary party defend- (225) 226 REVISION OF THE STATE CONSTITUTION [Vol. V In dealing with this general subject of the relation of the courts to legislation, the convention may perhaps also give con- sideration to the advisability of adopting, in this state, some provision similar to that contained in the present constitution of the state of Ohio, to the eifect that the concurrence of more than a majority of the judges of the court of appeals sitting in a particular case shall be necessary to a determination that a statute involved therein is unconstitutional.'- In Ohio, the con- currence of all but one of the members of the highest court of appeal is required, except in cases where the court of inter- mediate appeal has itself held the statute unconstitutional. Aids to the Siinpliflcation of Procedure and the Prompt Deter- mination of Controversies Finally, what constitutional aid may be given to the simpli- fication of legal procedure, the avoidance of jurisdictional tech- nicalities, the clarification of litigated issues, and the prompt disposition of all phases of a controversy in a single trial? I have not discussed, and shall not discuss, in these remarks, the details of what Mr. Jessup urges as to the consolidation of courts. I feel that what he urges is sound in principle, but I am not yet sure that in details he presents altogether the wisest plan. For example, I am not certain as to the wisdom of the abolition of the surrogates' courts as county tribunals in up- state New York. In this county, it makes perhaps no funda- mental difference whether the function of the existing surro- gates' courts is performed by those courts or by a probate division of the supreme court for New York county; but I am ant; but no such action shall be deemed a suit against the state, within the meaning of this constitution, and in no such action shall any award of costs or any other money or thing be made for or against the state as such party de- fendant." 'A formulation of such a provision would be the following, to be added to an existing section of the judiciary article or to constitute a new section thereof : " Except in affirmance of a decision of the appellate division of the supreme court that a statute of the state is invalid under and by reason of the provisions of this constitution, the concurrent action of more than a majority of the judges of the court of appeals hearing an appeal therein shall be nec- essary to a determination by the court of appeals that such a statute is in- valid as aforesaid." (226) No. I] ORGANIZATION AND PROCEDURE OF COURTS 227 not clear that the electors of upstate counties will wish to see the intimate and almost sacred functions of the surrogates' courts taken away from officials chosen by them in and for their particular county and turned over to supreme court jus- tices chosen by a judicial district of many counties, some of which are rarely, if ever, represented in the supreme court for the district. Again, in the upstate counties, the county court is an invaluable local tribunal, which no revisers would ser- iously think of tearing down. It meets the local need most suitably. But that is not by any means conclusive proof that the establishment of a county court in New York county would be the best means of dealing with our metropolitan situation. Neighborhood or district courts are required for the handling of the smaller causes, and what is needed, I am inclined to be- lieve, is not the transfer of those controversies to any tribunal which will follow, even more closely than the present municipal courts, the formalities and technicalities of the procedure in courts where trials are conducted by able counsel. What is preferable, it seems to me, is that the municipal courts shall be made, to an even greater extent than now, tribunals of arbi- tration, conciliation and adjustment, rather than of formal trial. What is needed is to free these district or neighbor- hood courts of the incubus of the code of civil procedure and make them even more fully a forum in which substantial jus- tice, common sense and fair dealing according to well-settled principles of the substantive law, are administered through methods of inquiry which more nearly resemble the simple, di- rect, exact business methods of the time than the technical pro- cedure and involved evidentiary rules of the courts of law. If the municipal courts were made a tribunal of that character, it might then be practicable to vest in a court of general juris- diction the trial of all cases in which a formal trial at law was to be had, irrespective of the amount involved. When every phase of a case, every phase of a subject-matter of controversy, can be determined in one court, and can receive the continuous attention of but one judge rather than the casual animadver- sion of many, we shall have made progress in bringing the machinery of the law abreast of present-day standards of effi- (227) 228 REVISION OF THE STATE CONSTITUTION [Vol. V ciency and directness; and I do not believe that we can have an economical, expeditious and common-sense system until we have eliminated from justice as administered in the courts the jurisdictional disputes and technicalities which are the by- product of the present illogical, awkward and expensive divi- sion between uncoordinated tribunals. What constitutional aid may be given to the summary and scientific disposition of all procedural and preliminary appli- cations ? I am of the opinion that the recommendation of Mr. Jessup's committee for supreme court commissioners or masters is the soundest that has been made, and that it would work a really monumental reform in the administration of justice. What is needed is that up to the time a civil action comes on for trial, it should have the continuous oversight of one trained judicial mind; that there should be one judge or one master who would hear all preliminary and procedural application in the case, and who would have both the power and the duty to see to it that the pleadings are in proper shape to present the issues, that the issues are narrowed and clarified, that all facts not really in dispute are reduced to written concessions of the parties for the purposes of the trial, that sham and fictitious issues are eliminated, that bills of particulars are furnished and proper examinations before trial are conducted, and that the controversy is made ready for prompt and expeditious trial on the merits. The evils of having procedural applications in the same case submitted successively to perhaps a dozen judges are the bane of the daily life of the judge who has finally to try the' case, and are a prolific source of trouble on appeal. Rarely does a case come before the trial judge in which he does not painfully realize how much the controversy really entitled to be litigated might have been simplified and short- ened, had the cause had some such preliminary oversight as I have mentioned. In addition, every lawyer will realize that any such oversight would mean that many actions would never survive this oversight and never would reach the day calendar for trial at all, but would be settled or disposed of in the pre- liminary stages. How many baseless causes of action and how many fraudulent and unfounded defenses would go down in (228) No. I] ORGANIZATION AND PROCEDURE OF COURTS 220 such a first-hand oversight. Calendar congestion would be greatly reduced, through shortening the time required for the trial of cases and lessening the number of cases actually tried. The most practicable plan I have yet seen for bringing about the results we all have in mind along these lines is the system of "commissioners" or "masters" for which the Phi Delta Phi report proposes constitutional sanction, jind I hope for the unabridged adoption of this portion of the report. Ought not the new constitution definitely to give the weight of its great authority and influence to the prompt determina- tion of causes on their substantial merits, without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties ? Ought not this to be made the constitutional ideal of our judicial system? May not the new constitution give a definite impetus, a far-reaching funda- mental sanction, to a conception of law which looks on rules of procedure as instruments of justice, rather than ends in themselves, and looks beyond the forms to the substance?^ Who can estimate the effect of writing so salutary a provision into our organic law? You may say that a similar provision could be passed by the legislature, without making it a part of the constitution, but I believe that a provision which relates so closely to the fundamental spirit of our judicial system, deserves a place in the constitution and ought to have back of it the emphasis which such a place could alone give it. In this same connection, might not the appellate courts well be given express constitu- ^ A new section of the judiciary article is suggested, to read somewhat as fol- lows : " No judgment shall be set aside or reversed or a new trial granted by any court in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error or omis- sion as to any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire cause, it shall appear that the error or omission complained of has injuriously affected the substantial rights of the parties and that some substantial wrong or mis- carriage was thereby occasioned at the trial." — [Note : This provision closely follows the phraseology of the act binding on the English appellate courts and also of the bill introduced by Senator Root and repeatedly endorsed by the American Bar Association for the government of appeals in the federal courts.] (229) 230 REVISION OF THE STATE CONSTITUTION [Vol. V tional sanction for a broad power as to the entry of what they deem to be the proper judgment in the case before them, in- stead of merely remanding for a new trial if unable to affirm the judgment below ?^ That is to say, if the appellate court does not find that there was rejected or omitted from the record of the trial below any evidence which might affect the proper dis- position of the case, ought not the appellate court to have a con- siderable power to render the judgment which it thinks ought to be rendered, in view of all the testimony in the case, instead of sending the case back to a re-trial, from which it will prob- ably come again to the appellate tribunal? ^ Injustice might in some cases result from the exercise of such a power by the appellate court, just as injustice results in other cases from the remanding for a re-trial. It is difficult to tell which rule and practice would ordinarily achieve a larger degree of sub- stantial justice, but may not this discretion well be given to ' This should doubtless be made the subject of a new section of the judiciary article, somewhat as follows : " Upon any appeal from a judgment or order, the appellate division, or the court of appeals in any case in which its review is not limited to questions of law, may reverse or affirm, wholly or partly, or may modify, the judgment or order appealed from, and shall thereupon render judgment of affirmance, judgment of reversal, and final judgment upon the right of any or all the parties, or judgment of modification thereon, according to law, except where it may be necessary or advisable to grant a new trial or hearing, in which event a new trial or hearing may be granted." ^ Reversals for omissions of evidence and the like might be still further re- duced in number by the adoption of a constitutional provision along the fol- lowing lines, paralleling some of the provisions of a statute enacted in Massa- chusetts by chapter 716 of the Laws of 1913 of that state, but for which con- stitutional sanction would probably be required in New York, in view of the construction placed on existing provisions of our state constitution : " The ap- pellate division and the court of appeals, upon the hearing of any appeal, shall have all the powers of amendment of the trial court; and whenever exceptions have been taken to the exclusion of evidence, or where the alleged error arises from the omission at the trial of some fact which, under the circumstances of the case, may subsequently be proved without involving any question for a jury and without substantial injustice to either party, the appellate court shall have power, in its discretion, to cause such further testimony to be taken as it deems necessary, either by oral examination in court, by reference, by produc- tion of a document or record, by affidavit, or by deposition, and the court shall have the power to render any judgment and to make any order that ought to have been made upon the whole case." (230) No. I] ORGANIZATION AND PROCEDURE OF COURTS 231 the appellate court itself? Looking at the matter in a large way and in the long run, would not the efficiency of our judi- cial system be promoted through the wise exercise of such a power, better than through a more general resort to the expen- sive and dilatory practice of re-trials and re-appeals? The legislature in 1912 enacted section 1317 of the code of civil procedure. This section represents a valuable step in the di- rection of the ends sought by the amendment first referred tD under this heading (see note i on the preceding page) , and the court of appeals has very recently, in the case of Lamport v. Smedley, decided November 10, 1914, given a broad and wholesome construction to the powers conferred by the new section. Embodiment in the fundamental law of the supple- mental provisions which I have indicated, would tend still further, and far more decisively, in the same salutary direction. I believe that the appellate courts ought to be encouraged and fortified in entering the final judgment they deem proper, when unable to affirm the judgment below, and that as a rule such a power will be exercised in a way more consonant with sub- stantial justice than could be worked out through clogging court calendars with protracted re-trials and re-appeals. In one " grist " of appellate division decisions not long ago, it was estimated that enough cases were sent back for re-trial to keep the trial parts of the supreme court busy for a week. On the whole, I think the litigants would be likely to get as satis- factory and just a determination from the appellate tribunal as from a re-trial, and to get it much sooner, with less clog- ging of the way of other litigation coming on for its day in court. The whole subject at least deserves the thoughtful con- sideration of the convention. You may ask: "Why should even the brief provisions you have tentatively phrased be put into the constitution? Why may not all these matters be left to form the subject-matter of statutes?" The answer is at least three-fold: In the first place, for all except one or possibly two of the suggestions, constitutional action is probably requisite to their valid adop- tion in this state. Decisions interpreting existing constitu- tional provisions raise serious doubts whether these things (231) 232 REVISION OF THE STATE CONSTITUTION [Vol. V could be brought about by statutes. In the second place, these suggestions relate to and would vitally affect the fundamental spirit of our laws and our judicial system. For example, cer- tain of them propose a transformation of our appellate tribu- nals from courts of error to courts of appeal — tribunals in which error would be corrected and not merely detected, tribunals in which further delay and expense would not be the inevitable penalty of the appellant's success or the discov- ery of more or less consequential errors below, tribunals with an affirmative responsibility for determining the right result rather than merely a negative responsibility for saying whether the court below has permitted a wrong result. Surely so fun- damental a change in the spirit and theory of our judicial sys- tem should have its basis in constitutional provisions and have behind it constitutional sanction. In the third place, if the re- sults to be secured are as important as they seem to be, we can well afford the few lines of printed matter requisite for their expression in the fundamental law. Better a few more lines arid a few short sections there, than the continuance of the delay and technicality and denial of justice which recurs through their absence. If we can shorten the time, lessen the expense, and simplify the machinery, for the trial of contro- versies which come into our courts, and can attain more closely to that certainty and fairness in the application of rules of law which is the ideal of our jurisprudence, we can afford the space required to give a constitutional basis for it, and thus enable the submission to the people of a judiciary article which will be the most notable feature of the new constitution. ROBERT LUDLOW FOWLER Surrogate of the County of New York When I had the honor to accept the invitation of the Academy of Political Science to discuss Mr. Jessup's paper I stated that I could make no preparation and should have to trust to such observations as occurred to me without premedita- tion. Mr. Jessup is a learned specialist in a department of (232) No. I] ORGANIZATION AND PROCEDURE OF COURTS 233 law in which I take great interest, and I naturally desired to be present on this occasion. If I understand the purport of Mr. Jessup's paper, it unfolds three propositions. The first, and perhaps the most important in the abstract, is that the justice commonly administered in the courts of our country, and I presume in the courts of our own state, is not at one with "justice;" in other words, that the law which we administer is not consistent with that abstraction which is known as " justice." I had al- ways supposed that law was justice and that justice was law, and that there could be no great distinction between law and justice; at least, I labored under the vain hope that in the court in which I sit the law I administer is justice and the justice I administer is law. It is a very old philosophical discussion, the difference between justice and law. The common law is a very great system. It is the tradition of the dead of our race and kind. It is the legacy of all the men of the past. It is the crystallized wisdom of the ages which have preceded us. If that law and that experience were not consistent with justice, it would be a very singular thing. One of the greatest names in the philosophy of the common law, undoubtedly, is that of Thomas Hobbes, who investigated the question and came to the conclusion that there could be no definition of " justice " except " law." My learned and very esteemed friend, Mr. Jessup, has sug- gested that perhaps law could be found in what he termed the arbitrium boni viri ; that is, " in the opinion of a good man ;" but that, you will see in an instant, is pure idealism. Law can- not exist in the bosom of any good man. Law is a concrete thing; it is a force; it is the force of government, and it is not the arbitrium. boni viri ; so much for that. It is rather the fashion at this day — and we live in a singular day of criticism and change — to criticize the law which is ad- ministered by the courts of this country ; but let me say to you that the courts are the very bulwark of the country. They are the one persistent force which gives order to our society ; more respectable than any other branch of the government, more permanent, more conservative than the executive or the legis- (233) .234 REVISION OF THE STATE CONSTITUTION [Vol. V lative branch of the government are the courts of justice. I think there can be no doubt that it would be the verdict of the citizenship of this country, for example, that the contri- bution of the Supreme Court of the United States to good government, to permanency of institutions and to our general prosperity, exceeds, or certainly equals, that of any other branch of the public service. The second idea which my learned friend unfolds is, that the improvement in the workings of the law and of the judi- ciary in this state will be fostered by consolidation of the various courts of this community. No doubt some of the courts may be consolidated with some advantage. My off- hand suggestion would be that the small courts must continue to exist. The small courts are the " small change " of society; just as small change is necessary for small transactions, small courts are necessary for small litigations and small suitors. Whether or not it would be good policy to consolidate the small courts with what we regard as the more important courts of the community I think may be open to some question. It might prove a leveling down instead of a leveling up, and after all, the object of courts is efficiency and dignity in the admin- istration of justice. I think we may safely leave those con- siderations to the action of the constitutional convention as it has been chosen. The next point developed in the paper of my friend is that it is desirable to cut off all sorts of technicalities from our ju- dicial proceedings. Up to a certain point that is undoubtedly a valuable suggestion ; but we belong, of course, to a technical profession, and the first point for the consideration of judges and lawyers is accuracy of judicial proceedings. It is not a waste to spend time in ascertaining what the real point of a litigation is. I think part of the embarrassment, if there be embarrassment, in the working of our present system, has been occasioned by the excess of legislation affecting procedure, and particularly affecting the code which was originally presented for the action of the legislature about 1847. This was a small and admir- (234) No. I] ORGANIZATION AND PROCEDURE OF COURTS 235 ably drafted instrument. Amendments and alterations of that instrument by the legislature should be stopped. The procedure in courts of justice may safely be left to the judges; perhaps somewhat after the plan adopted in Eng- land. It is not always the case, however, that plans adopted in England are well adapted to our system. If it is possible for the constitutional convention to take up the question of procedure, there is no doubt that good work may be done in simplifying the procedure in the courts of justice of this state. (235) THE EXECUTIVE AND THE JUDICIARY^ FRANCIS LYNDE STETSON AS Mr. Mills was speaking of a more direct relation between the executive and the legislature, I recalled perhaps the first practical experiment in that direction made in this state, in the year 1873. The new charter of the city of New York adopted at that time provided that the heads of depart- ments might sit and debate, but without a vote, in the common council or in the board of aldermen. I believe that right still continues. At least it did continue for a long time, but with- out the slightest consequence, and largely for a reason which underlies the question of President Schurman ; namely, that no consequence attached to the flouting of the advice of the head of a department and no responsibility rested upon the head of a department for giving bad advice. I do not believe that any great popular movement ever de- veloped without having behind it some element of sense, and I have been rather inclined to think that, in A blind, groping way, the people have been trying to enforce responsibility upon the executive by the suggestion of what is called the recall. That is one way in which they are trying to get at the public officer who in their estimation is not doing his duty. While I am not an advocate of the recall as it has been projected, yet I can see that in some way or other, we might combine with our system of fixed terms, to which President Schurman has justly referred, some method of imposing upon the executive the necessity of giving good and acceptable advice, at his peril, or upon the legislator of accepting good advice, or re- fusing it at his peril, such as prevails under the British prin- ciple of responsible ministries. As to the judiciary, I believe in the establishment of a rule to which men may refer for instruction and information as to ' Discussion at the meeting of the Academy of Pohtical Science, November 19, 1914. (236) THE EXECUTIVE AND THE JUDICIARY 237 what is " justice." The late Francis N. Bangs used to refer contemptuously to the justice administered by many judges as "the justice of the kadi," the magistrate who in the presence of the son of the one woman, or of the other, threatened to put the child to death, with the idea that the way to extract the best testimony as to the maternity of the threatened infant would be an appeal to the emotions. Now that is the rule according to the kadi for the particular case, but that rule affords no guidance or help for the student of law. It gives no settled basis upon which the lawyer can advise his client, be it remembered, and rules are not ordained solely for the advantage of the lawyer. They are for the benefit of the inexpert client, who, in order that he may have justice in his particular case, is entitled to the benefit of the advice of a man learned in the law, and no man can be learned in the law unless there has been an established and continuous rule of law. Whether that law shall be embodied in a series of just decisions or precedents, or whether it shall be established by the mandate of the legislature, has been a secular con- troversy, which is not going to be settled in the next constitu- tional convention of the state of New York, either for all time or probably for any considerable time. Probably we can do best, as has been suggested, by attempting to distinguish con- clusively and clearly between the adjective law and the sub- stantive law, and then, as also has been suggested, by leaving the adjective law, so far as it concerns procedure, for develop- ment by the courts through their rules. Mr. Root sometime ago very wisely said that he objected to any new legislation upon the subject, no matter what it was, for the reason that it would constitute simply one additional bulwark over which the judge would have to leap before he could find his way toward the ideal justice which we are all seeking. Therefore, on that branch, I feel strongly, and not having been a candidate, either successful or unsuccessful, for the constitutional convention, I speak freely. Concerning the structure of state government, there is one point that was not touched at all in the program, and that, in my mind, is perhaps more important than any other. What- (237) 238 REVISION OF THE STATE CONSTITUTION [Vol. V ever the framework of government, we must finally come back to the administration of government by humans ; by poor, pec- cable, corruptible, vain, futile, learned, benevolent, philan- thropic, blessed mankind, and after all, and under all these forms the problem is to get the benevolent, the beneficent, the intelligent activities of the human mind in operation in the service and under the forms of government. I do not say, as has been suggested by my greatly admired friend, the master of juridical expression, Judge Fowler, that the judiciary is greater or is less than all the other branches of the government; that the executive is greater or is less than all the others in dignity ; but I do say that for power, the legis- lature is equal to all the rest together. Give me the power to enact a law, and I will take care of the way in which it is either interpreted or administered, if I have the power of continuing enactment. If the power of enactment is going to be continuous, there is nothing like the legislature, and about that you have said nothing. What is the difficulty we are having in this state to-day ? It was pointed out in advance, in 1846. It is, to quote Mr. Jessup, the " meticulous " division of legislative districts. Before the constitution of 1846 in this state, and up to the present time in New Jersey, all of the legislative candidates in a county were placed upon a single ticket. That runs right up against another modern reform — we are oscillating between one and another — the short ballot. We could not elect thirty- six or forty members of the legislature from this district to- day, from this county to-day, without having a ballot longer than, I believe, is the coming fashion. That objection, how- ever, would not apply in respect to the election of senators, of whom there would be only one-third as many. The senate is made up of the satraps of the state of New York. Each sena- tor of the fifty-one has his own little district, and woe to the man, be he governor or anyone else, who undertakes to do anything affecting that district ! I hope that in the new structure of our state government, we may return to the system which we had in this state prior to 1846, namely, of electing four or five senators, or possibly six, (238) No. I] THE EXECUTIVE AND THE JUDICIARY 239 from larger senatorial districts corresponding perhaps in num- ber to our nine judicial districts. Prior to the constitution of 1846 there were thirty-two sena- tors who became part of the court for the correction of errors and appeals. The senate was made up from eight distinct senatorial districts, out of which our present districts were later formed ; from each of those districts four senators were chosen upon a single ticket. With the " short ballot " we might elect them, by what is known as the " ride and tie " system, in which one goes out one year, and the others one each in the three succeeding years. You can keep the ballot short and yet have the larger unit of representation. Unless something of that kind is done we shall never free the government, the executive, from the restraint imposed upon it by the particular representation in each small district of a personal political power.^ JACOB GOULD SCHURMAN President of Cornell University The last speaker observed that what would work well in England might not work well here. I have wondered whether the gentlemen who advocate a closer connection between the executive and legislative departments of our government, in conformity with the English practice, have faced what none of them have mentioned, — I mean the circumstance that in this country both the executive and the legislator have fixed terms. Each now goes his own way to the end of his term, no matter if a conflict arises between them. Under cabinet government, however, as it is practised throughout the British Empire, when a conflict occurs between the Cabinet as executive and Parliament, there is a dissolution of Parliament and an appeal to the people, who decide the question. Might not that difference in the constitutional meth- ods and practices of the two countries have, conceivably, some '- Arguments in support of the plan by Governor Hoffman and the constitu- tional commission of 1872 will be found in Lincoln's Constitutional History^ vol. II, pp. 484-487. See also p. 317 for Convention of 1867. (239) 240 REVISION OF THE STATE CONSTITUTION bearing on the questions which have been discussed here this afternoon ? I have been much interested also in the discussions referring to the judiciary. I trust that the judges do administer justice and that there is a practical identity between law and justice. The Roman jurisprudence described justice as " giving to each one his due — suum cuique." I do not think anyone short of Providence can perfectly do that. There is, therefore, it seems to me, in our best courts only the possibility of an ap- proximation to the work of Providence, giving each one his due. With all respect to the distinguished speakers of the afternoon, I do think that while too much praise cannot be be- stowed upon the Supreme Court of the United States, there is in the mind of intelligent people, as well as of uneducated people, a good deal of dissatisfaction with our state courts. There is a feeling, and in many cases a conviction, that sub- stantial justice is often defeated by the interminable intricacies of proceedings and technicalities. I have wondered whether New York state is necessarily committed to a code which does not always work justice, and which falls short of the code that we had half a century ago. Might it not be worth while to consider whether in this state of New York we should not substitute for this lengthy code of procedure a simple act like the practice act of Connecticut? I have so much respect for the judges that I do not like to see them hampered, as I think they are hampered, by the pro- cedural la:ws of so many of our states. If there is an advant- age in favor of the British system as compared with the system of the state of New York, I ask myself whether it is not perhaps due to the fact that Great Britain trusts her judges far more completely than we trust ours and imposes fewer restrictions upon them. (240) EXISTING CONSTITUTIONAL LIMITATIONS ON SOUND STATE FISCAL POLICY ERNEST CAWCROFT Deputy State Treasurer of New York THE future fiscal policy of New York state will be an im- mediate concern of the coming constitutional conven- tion. It is easy to advocate political or economic re- form and to urge alterations in the administrative structure of the state government and its local agencies ; but while isound and necessary reforms should not be estopped on the pretext of impending expense, they should not in turn be made the basis of maximum expenditures with minimum results. To the extent that the existing constitution will permit of admin- istrative changes on a sound financial basis, it should be re- tained and strengthened in those particular provisions ; and in so far as the present instrument is a " limitation on sound state fiscal policy," it should be broadened with a vision of the in- creasing functions of government, especially as to the manage- ment of municipal enterprises, during the generation in which the new compact is to be operative. Thus, in respect to its fiscal features, the new constitution must so check proposed state and local expenditures that deliberation will precede in- vestments in capital accounts or for operative expenses; but it must likewise provide a method whereby the people of the state or its subdivisions may be aided, not retarded, in carry- ing out projects of accepted merit, once the merit has been determined. The primary duty of the makers of the new constitution is to safeguard existing investments in public securities. There must be no impairment of present obligations in the name of progress. The letter of the bonds must be respected. This is the essence of sound law and good morals; but indeed it is more. When these state and municipal projects and enter- prises are contemplated, which must receive the sanction of the (241) 242 REVISION OF THE STATE CONSTITUTION [Vol. V new constitution if that instrument is to be something other than the foe of true progress, it becomes evident that the sov- ereign and its local agencies will need increasing markets for public obligations during the generation ahead. Any pro- posed feature, then, of the coming constitution which seeks to alter the letter of these obligations, defeats the larger future purposes of the state. Strong as is the state, its creditors are given no fundamental protection such as is afforded to private creditors under the federal provision preventing the impair- ment of the obligation of contracts by state legislative action. Where the law of the obligation is weak, the moral sense must be keener. It follows from these premises that any sinking- fund or retirement provisions relating to bonds outstajiding must be re-inserted in the new constitution as to those issues, even though the same clauses seem to be a limitation on the future fiscal policy of the state. It will require, indeed, the best thought of the convention to preserve the sanctity of pres- ent obligations, while devising a fiscal system for the benefit of a state and cities destined to enter upon larger undertakings during the present century. A consideration of some features of this task is the purpose of this paper. The financial policy of this state may be found in section four of article seven and section ten of article eight of the constitution. To be sure, there are certain other sections as to canal and highway bonds, as well as provisions as to uni- formity of taxation, but the essentials of the state's policy from a constitutional standpoint were incorporated in the clauses mentioned. These sections must be read together because, while one defines just what are permissible expenditures for the state government and its subdivisions, the other determines how these funds shall be secured and repaid. A change in one means an alteration in the other, or perhaps additions thereto. For the purposes of this discussion let us bear in mind these essential provisions of section four: (a) no debt shall be con- tracted unless authorized by law, (b) unless the bill authoriz- ing the debt or expenditure provides for the levying of an annual tax sufficient to pay the interest and discharge the prin- cipal obligation within fifty years, and (c) with certain excep- (242) No. I] SOUND STATE FISCAL POLICY 243 tions recited in preceding sections, unless the people have au- thorized the indebtedness. These clauses are followed by sec- tion five, providing for the separate investment of tax moneys raised for sinking-fund purposes and declaring the same to be inviolate. Notice the relationship of the more important parts of sec- tion ten of article eight to the preceding provisions. It pro- hibits counties, cities and villages from loaning their credit to, investing in the stock of, or purchasing the bonds of cor- porations ; nor can those local subdivisions incur any indebted- ness except for county, city or village purposes ; this is coupled with the proviso limiting such indebtedness to ten per centum of the assessed valuation of the real estate of the par- ticular subdivision, except that water bonds of twenty years duration may be issued, even though the current obligations exceed ten per centum, or even though by such issuance the total indebtedness is brought above the constitutional limita- tion. This is followed by certain clauses whereby in given in- stances obligations of Greater New York, issued for specific projects, may be withdrawn or eliminated in the calculation of the debt limit. The constitutional convention will be fulfilling its duty to the holders of present public securities, as well as providing a sound basis for the future, if it re-adopts these cited sections, in the main. This conclusion is true because the obligations have been issued under these sections; the courts have inter- preted them in liberal fashion; and they have met the test of experience, especially from the standpoint of state, rather than local, fiscal policy. But there must be additions to these sec- tions and some changes in detail, especially from the view- point of the cities, in order to provide a fiscal system which will promote municipal progress on a sound basis. The specific change in public sentiment, since the present constitution was adopted in 1894, is not difficult to determine. In relation to the political subdivisions of the state, in distinc- tion from the sovereign itself, the constitution limits expendi- tures to " city purposes " and then provides the method of borrowing and repaying the sums expended by these localities. (243) 244 REVISION OF THE STATE CONSTITUTION [Vol. V It has been the problem of the courts to determine just what were warrantable expenditures for local purposes. The courts of this state in meeting this problem have kept just far enough in the rear of public sentiment to impel deliberation, before expenditure, upon the part of municipalities. It is certain that during the last decade of this constitution, and with cer- tain exceptions of a wholly local nature, the courts have broad- ened the meaning of " city purposes " as rapidly as the people and officials of the political subdivisions have shown their ability to administer enterprises made permissible thereunder. But it is a notable fact in these days of municipal lighting plants and city-constructed subways, that the only " city pur- pose " mentioned on a state-wide scale in the original draft of this section in 1894 is the clause relating to the issuance of bonds for municipal water plants. It is true that even before 1894 certain cities had engaged in trading or business enter- prises other than the conduct of water plants. But those de- partures were regarded with suspicion, and even the owner- ship of water systems was still apologetically excused by some on the ground of public health. But in the interval the man who opposes the public ownership of certain accepted public utilities has been placed on the defensive. The ownership of certain public services on a widening scale is a part of every municipal program. The need for broadening certain fiscal features of the constitution arose the day that the court of appeals decreed that Dunkirk had a right under the " city- purposes " clause to sell commercial lighting as an incidental part of the operation of a municipal lighting plant. This initial decision of the court, coupled with succeeding opinions involving some phase of similar city conditions, furnished the groundwork of that brief whereby Edward M. Shepard in- duced the court to sanction the construction of rapid-transit systems by the city of New York. The f ramers of the new constitution, then, will be confronted by the arguments of two classes of municipal-ownership advo- cates. One class will urge that the constitution should sanc- tion all that the courts have done; that the privilege of engag- ing in certain enterprises should be authorized specifically, (244) No. I] SOUND STATE FISCAL POLICY 245 lest some turn in the tide of public sentiment prompt the courts to reverse their liberal and broadening interpretations of the " city-purposes " clause of the constitution ; and they will want to add to this list, as first approved by the courts, and then sanctioned by the new constitution, certain other municipal activities. The writer has no quarrel with the intentions of these advocates. He favors an extension of municipal owner- ship, but he knows that its permanent extension must be on a basis of financial solvency authorized by the constitution. Thus he hopes that in the interests of genuine municipal fiscal progress, the convention will give heed to the other school of city thinkers, who urge and hope that the constitution will not bind the courts and the people by a specific enumeration of city purposes or projects, but that it will leave to the judiciary and to the people of given localities by some definite method to determine just what additional municipal ventures are per- missible under the constitution as applied to the prevalent local conditions. Put this latter proposal to the test of practicabil- ity. What would be the measure of municipal progress to-day had the last constitution enumerated, in the then adverse state of public sentiment, just what municipal enterprises constituted " city purposes?" Has not more real progress been made, and on a sound, deliberate basis, by the courts countenancing from year to year, first one and then another municipal enterprise as within the " city-purposes " clause? And will not the true interests of municipal progress be served if the convention es- tablishes a broadened fiscal system as a means of enabling cities to finance such enterprises as may be approved by the courts and the local taxpayers? There is no paradox in op- posing the specific enumeration of city purposes and projects and then urging the incorporation of a particular fiscal system in the constitution, because it is a matter of business experience that bonds for either a smaller or a larger measure of municipal enterprise cannot be marketed unless the method of their issuance is general in scope and possessed of express constitutional sanction. There will be an insistent demand for home rule for cities, in the coming convention. " Home rule " is an indefinite (24s) 246 REVISION OF THE STATE CONSTITUTION [Vol. V term, and it can be made to suit the purposes of any visionary ; but it is assumed for the purposes of this discussion that some measure of home rule will be granted by the constitution makers. But the financial aspects of home rule will be the most troublesome feature. It is certain that the convention cannot meet the expectations of home- rule advocates in that respect. The demand for home rule centers in the commis- sion-government needs of cities. The latter is a movement of business men for business-like local government, and it should not be deprived of that merit by the convention's granting an unwise measure of home rule, especially as to the financial policies of municipalities. The writer favors home rule, and he is convinced that this generation will witness a larger degree of public ownership by cities. But those who are for, and those who are against, an extension of municipal ownership should unite in insisting that the constitution place it on a basis of assured solvency. Those home- rule advocates who think that the existing debt limitation for cities should be abolished, and that the nature and extent of city indebtedness should depend upon the wis- dom or prejudices, or both, of local taxpayers, no less than those municipal ownership advocates who think that the "city- purposes " clause should be broadened so as to include by spe- cific enumeration a large number of additional municipal en- terprises, or those who want the taxpayers of a city privileged to determine by a referendum what are " city purposes " and how the acquirement and operation of plants thereunder shall be financed, not only are defeating their own ends, but are proving themselves to be foes of municipal progress. The home-rule advocates must remember that cities are gov- ernmental agents and not sovereigns; that those agents are without inherent rights, but enjoy privileges in the discretion of the state, and by concession of the whole people when power is delegated to local subdivisions by the ratification of a con- stitution. These home-rule advocates may point to the fact that the cities of England issue obligations for a large variety of municipal projects and without the protecting or restraining hand of a written constitution ; but they fail to recall that each (246) No. I] SOUND STATE FISCAL POLICY 247 bond issue requires the authorization of Parliament, except where it is for those ordinary purposes which may be approved by the local administration board. Certainly the cities of New York have enjoyed a larger and safer measure of local control under the constitution than if the legislature had been empowered to determine what enterprises they should acquire and how they should finance their acquirement. Either the English legislative or the American constitutional method must be followed in determining the fiscal policies of our cities; and the former is justified only where the legislative body, like Parliament, is the supreme arbiter of the state and the interpreter of its constitution. Obligations of the cities of New York are now outstanding under constitutional sanction. The same instrument declares invalid any bonds issued outside its purview. These obliga- tions have been taken by city creditors in good faith, and be- cause of the constitutional assurance that the present and future issues would be limited. The increase in the assessed valuation of local real estate is made the measure of bond- issuing possibilities. This is the truest standard of municipal finance. To sweep away this standard, even under the guise of home rule, is a fraud. There is nothing sacred about a ten per cent limitation, but some definite limit of municipal in- debtedness, in relation to assessed valuation, should be con- sidered sacred. Under and because of this existing limita- tion, municipal securities have been legalized as investments for savings banks in several of the states and for the trustees of estates. It is certain that the withdrawal of this limitation and the vesting in cities of the power to determine the purpose and extent of local indebtedness, will be followed by the re- peal of the acts authorizing these investments. But that will not be the final effect. The municipal-ownership advocates as a class favor home rule ; but it will not be possible to market the city securities needed in any extension of city ownership unless there are constitutional clauses limiting the possible in- debtedness. If successive bond issues await only the favor- able action of a locality, funds will not be available for public ownership on the scale contemplated by some. Those who (247) 248 REVISION OF THE STATE CONSTITUTION [Vol. V want a broadening of the meaning of " city purposes " should be the very ones to insist that these projects be placed on a business basis. Nor should the sinking-fund provisions of the coming con- stitution be ignored. No bond should be issued without auto- matic provision for its retirement. The provision of the con- stitution limiting the years for which the state or cities may issue obligations should remain. A yearly tax should be levied to meet a part of the principal of each bond issue. The accu- mulation of large sums out of current tax levies, to constitute a sinking fund with which to retire a bond issue, in the distant future, is a fruitful cause of public corruption. It seems that the states and cities should reserve the right to retire a pro- portionate part of a bond issue each year. And there are some reasons why the latter should be a posi- tive requirement in connection with the obligations issued by cities for the purchase of business enterprises. In fact, in re- drafting the fiscal features of the new constitution, it will be well for the convention to keep in mind the distinction be- tween bonds issued for city halls, sewers and pavements, which do not yield a revenue, and for which service no charge may be made, and obligations authorized for the purchase of water and lighting plants, or the like, which yield a return and for whose service to private citizens charges may be made. City demagogues have thriven by eliminating sinking-fund and depreciation charges from the calculations of municipal- ownership expenses, and then convincing the people that this type of vicious and indirect subsidy is in their interest. The placing of city-owned systems under the jurisdiction of the public service commission has tended to stop this practice. If bonds issued for the purchase of property, in contradistinc- tion to obligations issued in connection with the exercise of a local governmental function, were retired proportionately each year it would be necessary to calculate the sinking-fund charge with precision, and the protests of the taxpayers would pre- vent those moneys from coming out of the annual levy, rather than out of the revenues of the particular property. Moreover, by careful investigations and adjudications the average life (248) No. I] SOUND STATE FISCAL POLICY 249 of a particular type of municipal system may be determined, and no bond issue should be permitted for a period longer than the life of the plant. All these things cannot be inserted in a constitution. The constitution must be considered as the embodiment of neces- sary fiscal principles. These items are mentioned to empha- size the conviction that the next constitution must delegate large discretionary powers to the legislature in relation to state fiscal policies and city government. And if the state is to hold the cities to a high standard of fiscal policy ; if the cities are to be granted home rule, but sub- ject to debt Itinitations under the constitution; if the localities are to be allowed to join with the courts in giving a broader meaning to permissible " city purposes " from year to year, as regards municipal-ownership activities, then should there not be some automatic method which will to a partial extent grant to those cities which conduct their systems efficiently a larger measure of home rule, than to those which burden the tax- payer by poor service or by requiring tax levies to maintain their plants ? This method can be found ; but it cannot be ap- plied unless the constitution draws the distinction, as previously suggested, between obligations issued for governmental pur- poses and those required for the purchase of quasi-business systems. The same rule should not apply to a bond issue for a city hall and a revenue-producing water plant. One must be paid for by the taxpayer and the other should be paid for by the consumer. In fixing city debt limits, the new constitu- tion should separate the two and make provision accordingly. As to bonds for city-hall purposes and the like, the clause should be definite and inelastic ; but as to obligations for water, light and similar municipal plants, the provision should be elastic and discretionary. As a matter of public credit, all bonds issued, in the first instance, and without respect to the principle underlying the suggested separation, should be a municipal lien and be counted against the debt limit. But it is urged that the constitution should empower the legislature to permit a city which conducts a particular enterprise with success and which provides for the sinking-fund and depre- (249) 250 REVISION OF THE STATE CONSTITUTION ciation charges without resort to taxation, for a given period of years, to establish those facts before a commission, or in an appellate court proceeding and then to withdraw that bond issue from the calculation of the permissible city debt limit. This enables a city to acquire other enterprises when it has demonstrated its capacity to conduct existing systems. In the investigation of the financial features of several state and city enterprises in the United Kingdom the writer found that in many instances the public service systems were pur- chased, subject to existing trust mortgages and bonds. This simplified the acquirement of these properties, and the method has been successful; but it does not follow that it should be adopted in this state, even though it is now being tried in the cities of western Canada. The plan may be permitted, or not, in England or the Dominion, because an enabling act must be obtained from Parliament or the provincial legislature. This requirement permits the legislators to pass upon the de- sirability of taking over a public service system, subject to existing mortgages, instead of issuing city bonds for the whole purchase price, upon the merits of each proposition ; but where, as in New York, it is necessary to devise a uniform method of municipal financing, and insert it in a constitution, this plan is not feasible. The advantages of the plan may be gained here by withdrawing from the calculation of the debt limit those bonds issued for plants paying a revenue for suc- cessive years. No new constitution may be deemed a liberal instrument, vi?hich does not enable the state and its subdivisions to absorb those values accruing through the exercise of governmental functions, and community effort. The " excess-condemnation " amendment was a step in that direction. A constitution which embodies a sound state fiscal policy must provide not only for efficient and inexpensive administration; but it must assure to the people the profits accruing from an extending ownership of systems inherently quasi-public in their nature and service, coupled with payment into the treasury of those franchise and site values which are enhanced by the efficiency of the govern- ment and by its increasing ownership of public utilities. (250) THE CIVIL SERVICE CLAUSE IN THE CONSTITUTION SAMUEL H. ORDWAY Chairman Executive Committee, New York Civil Service Reform Association THE civil service reform movement in New York state may be said to have had its beginning on May 1 1, 1877, when a call was issued for the organization of an " As- sociation for the promotion of Civil Service Reform." This association devoted its efforts to the federal as well as to the state service, and helped to secure the passage of the Pendleton civil service bill on January 16, 1883. Four months later a state civil service bill prepared by this association received the approval of Governor Cleveland, who designated as commis- sioners President Andrew D. White of Cornell University, Attorney General Augustus Schoonmaker of Ulster County, and Henry A. Richmond of Buffalo. Mr. White finding it impossible to serve, Hon. John Jay was appointed in his stead. The eighth section of the state law authorized the mayor of each city in the state having a population of 50,000 or up- wards to establish a merit system of municipal appointments. Mayors Low of Brooklyn, Scoville of Buffalo and Edson of New York subsequently issued rules in accordance with the civil service act. For the first two years the system was sympathetically and effectively administered as an aid to good administration. This record did not continue, however, and during Governor Flower's administration the situation required a thorough in- vestigation by a committee of the legislature. This legisla- tive inquiry showed that in New York state the operation of the civil service law had been almost nullified by bad adminis- tration, while it was demonstrated beyond all question by the testimony of executive officers of the United States and Massa- (251) 252 REVISION OF THE STATE CONSTITUTION [Vol. V chusetts civil service commissions that elsewhere the success of the merit system had been unqualified. Closely following the senate investigation came the adoption by the constitutional convention of 1894 of the following civil service amendment: Appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late Civil War, who are citizens and residents of this state, shall be en- titled to preference in appointment and promotion without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section. The Civil Service Reform Association had been engaged for several months before the convention met in promoting a move- ment to bring to the attention of the delegates the importance of this recognition of the principle of civil service reform. In recognition of the general demand for careful consideration of the subject. President Joseph H. Choate appointed a com- mittee on the civil service, and a series of hearings was ac- corded to the organized advocates of civil service reform. The section was reported and came up for consideration in the clos- ing days of the convention. There was a spirited fight over the adoption of the amendment. Some of the delegates were opposed to the merit system in every way; others objected to putting such matters into the constitution, claiming that they fell only within the province of ordinary legislation. The amendment was finally carried by a vote of 97 to 54. Of the Republican delegates, 58 voted in its favor and 41 against it; of the Democrats, 39 voted for and 13 against it. A strong speech by Elihu Root of New York is credited with holding a majority of the Republican vote to the affirmative side, as a good many delegates of that party manifested a disposition to break away. (252) No. I] THE CIVIL SERVICE CLAUSE 253 Two features of the amendment as finally framed were added to it after the form agreed on by the Civil Service Reform Association and the civil service committee of the convention had been reported, — the application of the section to counties, towns and villages, and the veteran preference clause. The former cost the amendment 40 Republican votes, and it is be- lieved that had the amendment been put on its passage without that feature the vote would have been very nearly unanimous. The ratification of the constitution followed in November of 1894, and New York became the first state of the union to embody the principle of civil service reform in its organic law. In 191 2 Ohio followed New York's example by putting a similar civil service clause (except that the preference of veterans of the Civil War was omitted) into its constitution by a popular majority of more than 100,000. One of the practical results of the adoption of the constitu- tional provision was the extension of the civil service rules to cover the 1200 employes of the public works and prisons departments who had been exempted since 1887 under a de- cision of the court of appeals holding it unconstitutional to vest the power of appointment elsewhere than in the official heads of the departments in question. These employes formed at that time one-fourth of the state civil service. Dur- ing the administration of Governor Morton a thorough revision of the rules and classification was made, which greatly reduced the number of exempt and non-competitive places. Governor Black, who succeeded Governor Morton, declared that in his judgment " civil service would work better with less starch." Late in the session of 1897 the "Black civil service bill " appeared, which provided as radical a piece of reactionary legislation as could have been devised. The bill required that in all examinations for the state, county and municipal services not more than fifty per cent might be given for " merit " and the rest of the rating, representing " fitness," was to be designated by the appointing officer. While it was clearly shown that the passage of the bill would wreck the merit system, yet, as a party measure, it was placed on the statute books. The results of the operation of the Black civil (253) 254 REVISION OF THE STATE CONSTITUTION [Vol. V service act showed that in the larger cities department officers, with few exceptions, continued the old system of designating the civil service commissions to act as their examiners for " fitness " as well as for " merit." Wherever the act had been permitted to go into full operation in accordance with its spirit it was shown that the competitive scheme as understood by the f ramers of the constitution in 1 894 had been destroyed, while a cumbrous and unsatisfactory system had been set up in its stead. In 1899 all this was changed. The " Black act" was re- pealed and its operation in the state departments discontinued. A new law, general in its application and superior to any civil service statute theretofore secured in America, was enacted. The passage of this bill relieved an anomalous and confusing situation. As a result of the vicious legislation under Gover- nor Black four systems of widely differing character had come into existence by January 1899. New York city had its charter rules, the state departments were conducted under two adaptations of the Black law, and in the smaller cities the plan of the original law of 1883 was followed. Owing to tlie firm attitude of Governor Roosevelt, a complete revision of the law was accomplished. Seventeen previous statutes enacted with- in the period from 1883 to 1898, including the Black law, were repealed and superseded. The state commission, after recasting its own system, was authorized to prescribe rules for the larger counties as rapidly as proved practicable. It was also given greatly increased supervisory powers over municipal commissions. For the purposes of investigation of the admin- istration of the law and rules it was given all the power of a legislative committee. The law provided no substantial safe- guard against the unwarranted removal of competent em- ployes, but it was far superior to the statutes it repealed, and its passage was one of the valuable achievements of Governor Roosevelt. Since 1899 the classification has been extended to the larger counties and villages, resulting in increased efficiency in those services. The law in the hands of effective and sympathetic adminis- trators has worked in the interest of good administration. In (254) No. 1] THE CIVIL SERVICE CLAUSE 255 the hands of its enemies the constitutional provision has been the bar which has prevented the complete debauchery of the service. The clause is sufficient to protect the essential ele- ments of the merit system. So much for the history of the provision. What are its essentials, and the principal suggestions which will probably be made for amendments ? The provision reads as follows : Appointments and promotions in the civil service of the state and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive. This provision starts out with a general statement of prin- ciple applying to all appointments and promotions, i. e., they shall be made for merit and fitness. It then proceeds to provide that merit and fitness shall be ascertained by examin- ation, if practicable, and by the competitive method, if this is further practicable. In other words, it recognizes that ex- aminations for appointment and promotion are not necessarily applicable to all positions by inserting the words " so far as practicable." The provision is properly elastic. It provides for improved methods of examination for testing competency by which appointments under the competitive system formerly not practicable may, through the use of these methods, become practicable. It is brief in its statement, in accordance with recognized principles in drafting a constitution, and yet is comprehensive in applying to the state and all civil divisions thereof and to all appointments and promotions. The principal suggestions which may be made for amend- ments to this provision are four in number: I. An extension of the competitive principle to cover all appointive offices and employments. This means that all pub- lic officers and employes other than those elected by the people, including on the one hand heads of departments, elec- tion officers, appointive judicial officers, private secretaries, etc., (255) 256 REVISION OF THE STATE CONSTITUTION [Vol. V and on the other mere laborers, shall be appointed as the result of some form of competitive examination. No half-way step between this broad proposition and the present constitutional provision for competition so far as practicable seems possible, for it is impracticable satisfactorily to name or specifically de- scribe in the constitution the positions which shall be exempt. Moreover, there is at present no general agreement as to how far competition should be extended. Some civil service re- formers believe, as suggested, that all positions should be filled as the result of competitive examination. Others just as sin- cerely believe that the higher and more responsible offices can- not be successfully filled by any form of competitive examin- ations yet devised. All the friends of the merit system desire to see the scope of competition extended as far and as fast as is practicable, and most of us hope that in time all public officers and employes who are not engaged in determining, as dis- tinguished from executing, the policy of an administration, may be brought within the competitive principle. Great pro- gress is being made in devising and conducting competitive examinations for very important and responsible positions, and the success achieved in that direction assures us that it will be found practicable in the future to extend the scope of com- petition far beyond the line now reached. For the present, however, the writer believes that it will be wiser to leave the constitutional provision as it is, especially as it has been settled by the courts that the civil service commission has very broad discretion in determining that competition for any par- ticular position is practicable, and that the courts will not interfere with the exercise of its discretion unless it is " palpably illegal." 2. An extension of the preference now conferred upon veterans of the Civil War to veterans of the Spanish War and other minor wars and military expeditions, such as those to China and Mexico, and possibly to the militia and to volun- teer firemen. Civil service reformers are opposed to the creation of any privileged classes in the civil service, on the ground that it is unjustifiable and detrimental to good admin- istration. The interests of the service itself should be para- (256) No. I] THE CIVIL SERVICE CLAUSE 257 mount to the personal interests of any class, however deserv- ing of public recognition, and the interests of the service re- quire that persons classified alike under the civil service law should be treated alike. We would not deny any proper recognition to those who fought in the wars of the country, but this recognition should take some other form than prefer- ence in the civil service, which makes for a privileged class and discriminates against other classes of employes equally competent to serve the state. It is true that Civil War veterans now have a preference in appointment and promotion. The history of that preference is interesting. Undoubtedly, it is not in accordance with the true principles of civil service re- form. But those who fought in the defense of our country over 50 years ago had extraordinary claims to the country's gratitude. They were favored for office before the institution of the merit system, and the laws establishing that system simply continued the then existing preference. The Civil War veterans are old men, and do not take examinations in such numbers as to interfere seriously with the competitive system. It would be ungracious and have little effect upon the service to take now from these old veterans the preference they have so long enjoyed. This is not true as regards veterans of the Spanish War and other minor wars, or the militia and the volunteer firemen. In giving to those who have rendered military service a preference in appointment which virtually amounts to an op- portunity to monopolize the great mass of public positions, the way is open for further class distinction. Legislation creat- ing class distinctions and preferences, especially based upon military service, is not consonant with the ideals of this nation, whose founders declared against the military being superior to the civil power and for equality of opportunity for all men. If this preference were granted, persons who were not preferred would scarcely find it worth while to compete in the examinations, and the civil service would lose its representa- tive character and be confined to a military office-holding class. The proposal to give this preference to veterans is based upon a fundamentally unsound theory of public office. Public office (257) 258 REVISION OF THE STATE CONSTITUTION [Vol. V should not be regarded as a gratuity, but as an opportunity for service to the community by those most fitted to perform that service. To the extent that public office is an honor and means of livelihood all should enjoy equal opportunity to com- pete to gain such honor and livelihood. Thse who serve the nation in time of war deserve well of a grateful country. If this state wishes to reward in a fitting manner those citizens who have represented the state in time of national peril there can be no objection raised. It cannot be called, however, a fitting reward of patriotic service to grant to those who have rendered military service the privilege of impairing its civil service. If preference were granted to these veterans it would serve as an entering wedge for still further extension of the prefer- ence plan. Members of the state militia, many of whom have served in riots and all of whom hold themselves ready for service in war, claim to be equally entitled to a preference with those whose brief war service was only in camps on home soil. There are also the volunteer firemen, who base a claim to preference on the services they have rendered to the public. Indeed, in previous legislatures resolutions amending the constitution have been introduced proposing a preference for these various classes. The extent to which these preferences might go, once a start was made, is shown by the bills intro- duced in previous legislatures proposing a preference in ap- pointment to civil offices for ex-members of the legislature. 3. Some provision for the protection of officers and employes against removal. This is a problem for the legislature to solve, and has no place in the constitution. The organized advocates of civil service reform are absolutely opposed to any introduction of this principle into the constitution. It is not in the interests of the public service that obstacles should be put in the way of the removal of inefficient or undesirable public servants. The departments ought not to be clogged with persons whom it is exceedingly difficult to remove even if inefficient, and the heads of departments ought not to be un- duly hampered in the administration of their offices. The early supporters of the merit system started out with (258) No. I] THE CIVIL SERVICE CLAUSE 259 the doctrine, so epigrammatically announced by Mr. Curtis, that if the front door was properly safeguarded the back door would take care of itself; in other words, where the merit system was in force and appointments had to be made from a competitive eligible list there would be no necessity of re- stricting the head of the department in the exercise of the power of removal. Experience has shown that this view is not entirely correct, and various efforts have been made to solve the problem. The first civil service commission in this country recom- mended a procedure requiring reasons to be given and an op- portunity to reply, and this recommendation was repeated fre- quently afterwards. In the federal service in 1897 a new rule was issued by President McKinley requiring a statement of reasons and an opportunity to reply in writing before dis- missal. A similar procedure was provided for in the New York charter. Members of the classified service in the police and fire departments, however, acquired a right to trial, and this has been slowly extending to other departments, accom- panied with a greater or less right to review of removals in the courts. Veterans of the Civil War as a preferred class acquired years ago a right to trial and review in the courts by certiorari, which has been extended to veterans of the Spanish War and veteran volunteer firemen. Civil service re- formers in Chicago drafted, and have always defended, a provision of their law for a hearing before the civil service commission itself on removals, and some other western com- missions have gone far in the same direction. Every year in New York the legislature is the battle ground where advocates of court review for dismissed employes meet representatives of the Civil Service Reform Association, who oppose such legislation as fatal to efficiency and wholly wrong in principle. New York city civil service reformers believe that the passage of laws granting court review has come through the fact that administrative tribunals are not recog- nized in this country, and through failure to perceive that re- moval is as much an administrative function as appointment. The New York Civil Service Reform Association hcis approved (259) 26o REVISION OF THE STATE CONSTITUTION [Vol. V a bill placing removals in the hands of an administrative trial board under the jurisdiction of the civil service commission. On the other hand, the employes and heads of departments, regardless of party affiliation, have declined to approve this legislation. All this goes to show that the best thought in the country is divided with reference to an effective and equitable solution of this important problem. In the presence of such a situ- ation it would be unwise to attempt to solve the problem by some hard and fast provision embedded in the constitution. It must be largely a matter of careful experiment, and it would be much wiser to leave to the legislature its solution by trying the various plans, such as the administrative board under the jurisdiction of the civil service commission. 4. Provisions for civil pensions. This is a very broad and difficult subject, upon which there is as yet no general agree- ment. The friends of the merit system believe that it is not a matter for constitutional regulation, but should be left to the legislature and to the municipalities. Even before the legis- lature gives serious consideration to this problem a thorough investigation should be made to determine whether a retire- ment system can be devised which, without imposing an undue burden upon the taxpayers, will tend to increase the efficiency of the public service through caring for the old age of those who have served long and faithfully. A system of retiring annuities embodying correct principles can be made to rest upon a sound actuarial basis. At the present time, however, the data are almost wholly lacking for devising a sound plan for retiring at reasonable cost to the taxpayers the civil em- ployes already in the service. Such investigations as have already been made into the conditions of employment in the federal service lead to the . conclusion that a more thorough investigation is needed. This inquiry should ascertain and set forth accurately the facts essential to determining the cost to the taxpayers of establishing upon a sound actuarial basis a retirement system applicable to employes already in the pub- lic service. We need to know, for example, the length of ser- vice and the age of each employe, his salary at entrance, all (260) No. I] THE CIVIL SERVICE CLAUSE 26 1 increases since, and his present salary. It is not necessary to emphasize the unwisdom of enacting any retirement system into law without the prior official collation and publication of such necessary statistical information. We have not this in- formation at hand and, inasmuch as this matter is still con- troversial, it ought to be left to the legislature to provide for as the result of careful and intelligent inquiry and experience. There is one other point which should be borne in mind in framing cunendments to the present constitution; that is, the danger that the broad terms of some " home-rule " amend- ment may interfere with the present system of administering the civil service. Under the present system, which has ob- tained from the beginning in 1883, the state civil service com- mission has general supervision and some control over local municipal commissions, while the latter have the general right of initiative in local administration and entire control of de- tails. This is as it should be, for the merit system is a state system founded on a general constitutional provision and a general state law. Enforcement of the constitutional pro- vision and uniformity in administration are secured through the powers vested in the state commission. Supervision by the state commission is the only real safeguard provided in this state against the turning over of the control of the adminis- tration of the civil service law in cities to the exigencies of local politics. It provides an absolutely necessary check against non-enforcement of the law by local authorities and against falling below the standards established by the state commission. It acts not merely as a restraint, but also as a much needed support to the municipal commissions in times of stress when they are subjected to undue pressure by local authorities. In other states, such as Massachusetts and New Jersey, the law does not provide for local commissions, but places the control of the entire system in the hands of one gen- eral state commission. In New York the combined system of state and local commissions, with general supervision and control in the hands of the state commission, has worked well, and we believe it should not be changed. Not only should no change in this respect be made in the civil service clause of (261) 262 REVISION OF THE STATE CONSTITUTION the constitution, but care should be taken that no other clause of the constitution should indirectly take from the state civil service commission its present general powers over municipal commissions. To sum up, generally, the present civil service provision of the constitution has worked satisfactorily and well ; it is short and simple, and yet elastic ; it embodies general principles and avoids details; it has been construed often by the courts, and its construction and meaning are definitely settled. It should be left as it is, and retained in the new constitution without amendment. (262) THE POLITICAL SCIENCE QUARTERLY The Quarterly, published for the Academy, is under the edi- torial control of the Faculty of Political Science of Columbia University, and is devoted to the historical, statistical and com- parative study of politics, economics and public law. Its list of contributors includes university and college teachers, politicians, lawyers, journalists and business men in all parts of the United States, and European professors and pub- licists. It follows the most important movements of foreign politics but devotes chief attention to questions of present in^ terest in the United States. On such questions its attitude is nonpartisan. Every article is signed; and every article, includ- ing those of the editors, expresses simply the personal view of the writer. Each issue contains careful book reviews by specialists, and in March and September large numbers of recent publications are characterized in brief book notes. In June and December is printed a valuable record of political events throughout the world. Communications in reference to articles, book reviews and exchanges should be addressed to the managing editor, Professor Thomas Reed Powell, Columbia University, New York City. Intending contributors are requested to retain copies of articles submitted, as the editors disclaim responsibility for the safety of manuscripts. If accompanied by stamps, articles not found available will be returned. Members of the Academy receive the Political Science Quarterly without further payment. THE ACADEMY OF POLITICAL SCIENCE IN THE CITY OF NEW YORK President Samubl McCunb Lindsay Vice-Presidents Albert Shaw Paol M. Warburg Secretary Hbnry Raymond Mussby Treasurer George A. Plimpton Assistant to the President Emma S. Lake Editor of the Political Science Quarterlv Thomas Reed Powell Editor of Proceedings of the Academy Henry Raymond Mussey Trustees A. Barton Hepbhrn Thomas W. Lamont Thomas Reed Powell Henry R. Seager Edwin R. A. Seligman William R. Sbefhioud MuNROB Smith Frank A. Vanderlip Advisory Council Nicholas Murray Butlbk Eliho Root Francis Lynde Stetson The Academy of Political Science, founded in 1880, is com- posed of. men and women interested in political, economic and social questions. The annual dues are JS5. Members re- ceive without further payment the four issues of the Political Science Quarterly and the four issues of the Proceedings, and are entitled to free admission to all meetings, lectures and receptions under the auspices of the Academy, Two regular meetings are held each year, in April and November, Gonuuunications regarding the Academy should be addressed to the secretary of the Academy of Political Science, Kent Hall, Columbia University. PROCEEDINGS OF THE ACADEMY OF POLITICAL SCIENCE IN THE CITY OF NEW YORK Voluine V] JANUARY, 1915 [Number 2 THE REVISION OF THE STATE CONSTITUTION CITY AND COUNTY GOVERNMENT KEGtrtATION OF ECONOMIC AND SOCIAL CONDITIONS PUBLISHED QUARTERLY BY THE ACADEMY OF POLITICAL SCIENCE CoLmtBiA University ii6th Street and Broadway, New York Entertd ai ttemd^Uat matUr Nm.ii, 1<)I0, at tht post tffice at Iftvn York, N. Y. under the Act ^C^grttt,jfuly lb, tSg4. CavVSIGHT, igi4, BY THE AcADBuy OF POLITICAL SciKHCE PROCEEDINGS OF THE ACADEMY OF POLITICAL SCIENCE The Proceedings are issued by the Academy as a record of its activities and as a means of giving detailed treatment to special subjects of importance. Each volume consists of four numbers, published in January, April, July and October. The January and July numbers give in full the papers read at the meetmgs of the Academy, together with the discussions and the addresses at the dinner meetings. The numbers thus far issued are as follows: Vol. I, No. I. The Economic Position of Women. No. 2. The Reform of the Currency. No. 3. The Year Book of the Academy. No. 4. The Reform of the Criminal Law and Procedure. Vol. II, No. I. Capital and Labor Unified. No. 2. Business and the Public Welfare. No. 3. National Housing Association. No. 4. Organization for Social Work. Vol. Ill, No. I. The Year Book of the Academy. No. 2. Efficient Government. No. 3. The Bryce Meeting. No. 4. The Caged Man. Vol. IV, No. I. Banking and Currency in the United States. No 2. Good Roads and Convict Labor. _Nc 3. Yearbook of the Academy. No. 4. Essays on Banking Reform in the United States. Vol. V, No. I. The Revision of the State Constitution. Part I. No. 2. The Revision of the State Constitution. Part II. Separate copies of numbers i, 2 and 4 of volume I, numbers 2 and 4 of volume II, numbers 2 and 4 of volume III, numbers i, 2 and 4 of volume IV may be obtained in paper covers at ^1.5° each, and numbers i and 2 of volume V may be obtained in paper covers at i^i.SO for the two. A limited number of copies are also available in cloth binding at ;J!2.oo. Communications in reference to the Proceedings should be addressed to Henry Raymond Mussey, Editor of the Pro- ceedings of the Academy of Political Science, Kent Hall, Colum- bia University. Subscriptions should be forwarded and all busi- ness communicatif^^addressed to the Secretary of the Academy of Political Science, Kent Hall, Columbia University. Mem- bers of the Academy receive the Proceedings without further pay- ment. PROCEEDINGS OF THE ACADEMY OF POLITICAL SCIENCE IN THE CITY OF NEW YORK V«diiine V] JANUARY. 19(5 [Number 2 THE REVISION OF THE STATE CONSTITUTION PARt II CITV AND COUNTY GOVBRNMENT REGULATION OF ECONOMIC AND SOCIAL CONDITIONS The Academy of Political Science Columbia University, New York 191S Copyright by The Academy of Political Scirncr CONTENTS CITY AND COUNTY GOVERNMENT A. Home Rule for Cities PAGE Home Rule for Cities i Howard L. McBain A Proposal for a Revision of the Municipal Arti- cle . 39 Laurence Arnold Tamer Local Government and the State Constitution . 57 Martin H. Glynn The City and the State Constitution . 61 John Purroy Mitchel Discussion 68 Delos F Wilcox Robert S. Binkerd Walter T. Arndt B. County Government The Organization of County Government^ . 80 George S. Buck Discussion • . . 87 H. S. Gilbertson V. Everit Macy REGULATION OF ECONOMIC AND SOCIAL CONDITIONS Constitutional Limitations on Governmental Powers 93 Samuel McCune Lindsay iv CONTENTS PAGB The Future of the Workmen's Compensation Amend- ment 98 Thomas I. Parkinson Discussion ... 118 Henry R. Seager y. Hampden Dougherty Labor Legislation 130 Abram I. Elkus Discussion 138 Owen R. Lovejoy John B. Andrews State Policy of Forest and Water-Power Conser- vation 144 John G. Agar Public Service Commissions and the State Consti- tution .... ... 165 John N. Carlisle Charitable and Correctional Institutions and Pub- lic Health . . ... .172 Homer Folks The Constitution and Public Franchises .186 Delos F. Wilcox Report of the Meeting . . ... 203 Index 207 HOME RULE FOR CITIES' HOWARD LEE McBAIN Associate Professor of Municipal Science and Administration, Columbia University THE brief in the long-standing case of the People of the City V. The Legislature of the State of New York has, during the last fifty years, been repeatedly filed and argued at the bar of public opinion in this state. It was first formally filed in behalf of the cities of the entire state by mem- bers of the ill-fated convention of 1867-8.° It was. re-filed in like behalf before the constitutional commission of 1873 ; again by the Evarts commission in 1877; again by the Fassett com- mittee in 1891 ; and once again in the convention of 1894. It has found expression in numerous messages and vetoes of suc- cessive governors. And this is not to mention the countless recorded pleas and protests that have gone up from the cor- porate authorities and civic organizations of specific cities all over the state. In the case of New York city such protests have been registered, with a regularity as persistent as it has been futile, since the years preceding the Civil War when Jacob Westervelt, Fernando Wood, and Daniel Tieman were sitting in the chief executive office of the city. In discussing the problem of home rule at this late day I take it that certain general propositions are so fairly estab- lished as to require little if any argument. I take it, in the first place, that historical events have con- clusively demonstrated the vanity of the hope that legislatures will, when subject to no specific constitutional restriction, al- ways refrain from interfering with the affairs of cities for ^ Read at the meeting of the Academy of Political Science, November 20, 1914. ' Argument was made in the convention of 1846 in favor of general legisla- tion for cities, but it was clearly advanced in the interest of property owners rather than in the interest' of cities as such. (263) 2 REVISION OF THE STATE CONSTITUTION [Vol. V political or sinister purposes; or that they will, even in the absence of ulterior motives, give sufficient attention to special laws relating to the government of cities to accomplish an end that is highly to be desired, namely, that city governments should be founded upon some understandable principle of political organization,, and -once- founded Upon such principle, should not be subjected to '-fragmentary additions and altera- tions that take no account of the original design of the structure. In laying this down as a proposition that requires little to.be said in, its support,^ I a.m,not unaware that the record of the average modern legislature, even in the states which impqse no constitutional limitations upon its power over cities or whichi as in this state, impose only slight limitations in that regardj stands in strikingly virtuous contrast with that of the average legislature of .the, two generations., next behind .us. The.widej spread agitation in. this country against thefoutrages committed by legislatures, upon cities could not have, fajled .to produce some moral effect. It is certain that a more whojesome att^T tude of mind is now to. be found in legislative halls; and in counting achievements, it matters- not whether this attitude may be rightly attributed to conscience and increase of knowledge or simply to. the |ear of political consequences. Such legisla,*. tive liberality, for ejfample,- as that which found expressijon in the so-called " home-rule " law .enacted in this state in 1913 or in the optional-charter law Jivhich was passed in the spring of this year would have been . well-nigh unthinkable in the state of New York not many years ago. But however grateful we may be for this comparative change of heart on the part of ._ our legislatures,, we must not be unmindful of the fact, that fthe ■ cities of New York are for the most part to-day governe4 >• under a veritable chaos of general and special laws that Ganj= . not but make for yncertainty and conflict of jurisdiction and impose serious handicaps in the conduct of the people's busi- ness. The charter of New York, in' spite of" its many adrrrirable features, is as to its bulk and sublime disarray a statutory atrocity. Even, in ,cities of the second ,class-;7-.A,lbany,.Troyj Schenectady, Syracuse, Utica; and YonkersT--whiehisthe,only class of cities in the state under a uniform charter, it is a fact (264) No. 2] HOME RULE FOR CITIES 3 that the government of these cities is determined in consider- able part by the unsuperseded provisions of earlier charters and by special acts enacted since 1 894, which are not applicable to all the cities of this class. I take it to be settled, in the second place, that the problem of the city's relation to the state legislature cannot be solved to the satisfaction of the city by constitutional provisions which seek merely to outlaw certain specified acts of interference of th,e more flagrant variety. Something has unquestionably been accomplished by the introduction into certain state constitu- tions of clauses guaranteeing to the city the right to have its own officers locally elected or appointed, or the right to deter- mine for itself matters relating to the vacating, opening or im- provement of streets, or the laying of railway tracks in the streets, or the right not to have the legislature impose com- pulsory taxes ■ for corporate purposes. But everyone knows the unhappy experience of the cities of New York under one of these specific guarantees. The constitution of 1846 specifi- cally established the right of cities to elect or appoint city offi- cers, but under the almost grotesque interpretation put by the courts upon this provision of the constitution, the government of the city of New York was, beginning in 1857, taken over in large part by the state itself, control being vested in a num- ber of commissioners named in Albany. Most of the legisla- tive practices that were sought to be outlawed in one or more states by specific provisions of this character have long since ceased to be a positive menace, even in those states which con- tain no such constitutional provisions. And, in a view of the matter, such provisions, aimed as they are at this or that par- ticularly outrageous abuse, cannot furnish a complete solution of the difficult problem of the city's legal relation to the state. It would be impossible, as well as absurd, to cover the entire gamut of municipal grievances against the state legislature by a list of prohibitions directed at defined abuses. I take it to be settled, in the third place, that the general prohibition upon, special legislation for ci]ties and the require- ment that the legislature should provide for the government of cities under general laws has, speaking broadly, proved to (26s) ,^ REVISION OF THE STATE CONSTITUTION [Vol. V be a lamentable failure in the states which have adopted this policy. It has resulted in most states in the classification of cities for the purpose of legislation,^ and under the usual judicial interpretation of the reasonableness of claissification it has resulted in the continuation on a very extensive scale of special legislation in the specious guise of general laws. Thus, at the present time, there exist in the states which have abol- ished special legislation for cities at least nineteen instances of classification on the basis of population in which a single city finds itself to be the sole member of a so-called class. ^ It has resulted also in the enactment of innumerable laws which have ignored even the general schemes of classification estab- lished by the legislature itself and have cloaked their true character under the thin veil of a special classification created solely for the purpose of a particular enactment.* It has re- sulted in the passage of many laws which appear upon their face to be genuinely applicable to all the cities of a class, but which upon a knowledge of actual conditions could not, be- cause of their subject-matter, relate to more than a single city. It has resulted in the enactment of innumerable optional laws — laws which were passed at the behest of perhaps only a single city and which were never intended for any other. With the exception of the state of Ohio* from 1902 to 191 3, it may be said that in no state of the Union, having important cities, has a prohibition upon special legislation for cities actu- ' Classification is made by the constitution in Kentucky, Minnesota and New York. In a number of other states the right of the legislature to classify is recognized. ^ In the case of St. Louis and Kansas City, Missouri, and of San Francisco, Los Angeles and Oakland, California, this isolation of the city is of no great importance since each of these cities operates under a home-rule charter, but the government of the other fourteen cities is determined entirely by state laws. These are : Philadelphia, Pennsylvania ; Milwaukee and Superior, Wisconsin ; Indianapolis, Indiana ; Louisville, Kentucky ; Birmingham, Mobile, and Mont- gomery, Alabama; Omaha, Lincoln, and South Omaha, Nebraska; Salt Lake City, Utah ; Charleston, South Carolina ; and St. Joseph, Missouri. ' This legislative practice, i. c, special classification for every law enacted, is no longer used so frequently as formerly. * In the general code of Illinois there is a considerable amount of special legislation that arises from classifications that are introduced. (266) No. 2] HOME RULE FOR CITIES 5 ally prevented the enactment of laws which were in plain point of fact special in application. And while it is unquestionable that some deleterious interference on the part of the legisla- ture hcis been prevented by such provisions, it seems to me that by and large their most important net result has been to develop in the legislature an amazing capacity for subterfuge and to introduce a degree of chaos and confusion in respect to the statutory sources of city government that is appalling to contemplate. It would not be difficult to demonstrate, more- over, that the requirement of general legislation for all the cities of the state or for all the cities of a class, even where such requirement is met by the legislature with honesty and an open-minded endeavor at fulfilment, never has offered and never will offer a complete solution of the problem of rela- tions between the city and the state. In my opinion, the New York constitutional convention of 1894 displayed great wis- dom in eschewing this particular method of attempting to se- cure to the cities of the state freedom from legislative tyranny. I take it to be settled, in the fourth place, that the provision of the present New York constitution, whereby cities are given a limited veto (through the action of the mayor in first-class cities — New York, Buffalo, and Rochester — and of the mayor and council in all other cities) on special acts of the legisla- ture enacted for their governance leaves a large margin of the unachieved in the matter of establishing a satisfactory relation in law between the city and the state. Perhaps it may be well to take brief counsel here as to what this provision of our coKjtitution has accomplished and wherein it has been found wanting. There is no warrant whatever for asserting that this right of a suspensive veto has not been highly beneficial to the cities of the state. Indeed, I would go so far as to say that it has in very large measure, though not entirely, put an end to posi- tive legislative interference in the affairs of cities. It is ridicu- lous to declare that the legislature is " interfering with," or " dominating over," or " imposing itself upon " cities in the enactment of special laws which receive the formal endorse- ment of the local corporate authorities after a public hearing, (267) 6 REVISION OF THE STATE CONSTITUTION [Vol. V and which more often than not are passed by the legislature at the direct request of such authorities. As typical of the legislature's practice in this regard I select, wholly at random, the session of 1907. During that session, there were passed about 160 special acts relating to the cities of the state, of which a little less than one-third related exclusively to the city of New York. Of these 160 acts, only eleven were enacted without the approval of the designated corporate authorities of the city concerned, seven of these being applicable to New York. It may be worth while in passing to glance at the character of these statutes that were passed over the heads of the cities directly affected. The most important of them in that year was the law creating the two public service commissions of the state, one of which was given jurisdiction in New York city. Others of greater or less importance were an act creating a park board for Utica; an act authorizing the appointment of a commission to inquire into the local government of the city of New York; and an act amending an act to provide for the construction and maintenance of a sanitary trunk sewer in Westchester County, which was accepted by Yonkers but re- jected by Mt. Vernon. All the other acts in question were dis- tinctly petty and overbearing in character. One of them re- quired New York city to bear the entire cost of widening Liv- ingston Street in Brooklyn in spite of the fact that the board of estimate and apportionment had settled upon the plan of assessing costs upon the owners of abutting property. An- other amended the charter of Olean in respect to the matter of the fees of the police justice. Another provided for a re- count of the votes cast for the office of mayor in New York city at an election held on November 7, 1905 (nearly two years before the enactment of the law), and this was supplemented by an act imposing the cost of making such recount upon the city. Another established a police pension fund in the city of Poughkeepsie. Another directed the board of estimate and apportionment of New York to provide in the hall of records room for the office of the clerk of the county of New York and his records. Still another regulated the removal of danger- ously sick patients from hospitals in the city of New York. (268) No. 2] HOME R1JI.E JOR CITIES 7 In the light- of this -recital of .acts passed in a single legis- lative session, I cannot agree -yvith- Mr, Seth Low when he as- serts jthat ''it is only in mattery of the, -first consequence that the judgment of the city is ever overruled by the legislature." But the fact remains that less than seven per cent of the special acts relating to cities that were .passed by. the New York legislature of 1907 were enacted withoyt the approval of the city concerned. It may be argued of cqurse — and ,not without great force in every instance savejthfit of. the -Westchester sewer legislation, where the interests of .t^^Q cities ' were affected — that none of these acts should^ ha^je gone upoQ ithe statute books without the. conseAt of the city .aifected.. Itimay.be ar- gued also that, owing to .considejations of party .^politics, the ratification of the action qf legislature: by. the jnayor or by the mayor and council is -not always a conclusive expression of the will of the city, _ I am willing to concede both- of these con- tentions to the utmost limits of their possible force, even though concession as to the latter be to register a large indictment against the very premises of representative government. Yet I reiterate the view that, as compared with the practices of the legislature before the -constitution of 1894, and in considera- tion of the number, size, and importance from.'numerous politi- cal angles of the cities oi^this state, the provision of our. pres- ent constitution has eliminated in large part, though not en- tirely, anything that m.ay with justice and propriety be called positive " legislative i.nt-erference " in the affairs- of cities. Moreover, it will not do to lose sight of the large number of instances in which the legislature, by its failure to reenact measures rejected by the corporate authorities of cities, has allowed the veto of such cities to stand effective. It is perhaps especially in respect to measures enacted in the dying hours of legislative sessions, that this, power of veto has proved to be a stout weapon of defense in the hands of cities-. Why, then, this agitation for a change in the present con- stitutional provision upon this subject? And this brings us to consider wherein our system of a local referendum to the cor- porate authorities of cities has failed to- produce the best pos- sible government for our ; cities. . (269) 8 REVISION OF THE STATE CONSTITUTION [Vol. V When the constitution of 1894 became the organic law of the state of New York, every city of age and importance in the state was governed as to its organization, its duties, its powers and the manner of their exercise, by a conglomeration of special laws generically referred to as its " charter." This accumulation of laws dealt not only with the fundamentals of municipal organization — I will not say fundamental principles, for in many of these governments few if any principles were established and consistently adhered to — ^but also with innum- erable minute details of official relationships, official duties, and official procedure. These chaotic charters were the joint and several product of sincere endeavor, of profound appre- ciation of political principles-, of profound ignorance, of crimi- nal indifference, and of insidious political chicanery, on the part of many successive legislatures. In them the anachron- istic phrases of colonial, post- revolutionary, and ante-bellum legislation locked intimate arms with the anfractuous verbiage of more modern enactments. For it is to be noted that in passing a so-called new charter for a city, legislatures have seldom ventured to repeal all that went before. Cities, there- fore, did not find the source of their authorities and obliga- tions in a statute or group of statutes that were simple, direct, and unambiguous and that regulated only the fundamentals of their governments. Under these circumstances it is not at all surprising that cities were compelled to make frequent application to Albany for trivial or prime changes in their charters. But why should the city be forced to plead its cause perennially at the bar of the state? I have said that the cities of New York have not been greatly interfered with by the legislature since 1 894, that they have not had many laws imposed upon them against their will. But this is not to say they have not been operating under complicated schemes of government founded, in part at least, upon innumerable acts of interference prior to that date. Nor is it to say — and this is of far greater significance — ^that the legislature has not interfered in countless instances by refus- ing tO' give to the corporate authorities of cities the opportu- nity to decide for themselves upon changes of great or minor (270) No. 2] HOME RULE FOR CITIES g importance in the government of their cities. In other words, while there has been little positive imposition of changes by the legislature there has been a considerable amount of legis- lative negation upon changes that were sought. The experience of the city of Buffalo under this provision of the constitution is eminently illustrative of its shortcomings from the viewpoint of the city. Six years ago active agitation began in that city for a radical change of governmental form. For four long years the forces behind this agitation were com- pelled to wage earnest fwarfare at Albany to secure the adop- tion of the necessary charter law. In the assembly they were unable to make substantial headway until they had elected a number of members of that body upon the specific issue of whether they would or would not support the movement to give the people of Buffalo the opportunity to decide this char- ter question for themselves — and this in spite of -the fact that in November 1909, the people had, upon a referendum, voted in favor of submitting a new charter to a direct vote. In 19 13 the charter was at length got through the legislature, but in- stead of providing for a popular referendum it merely fol- lowed the constitutional requirement of submission to the mayor. The mayor, who was known tO' be of a political party which had taken a firm stand against the type of government proposed, promptly vetoed the charter. Immediately the battle-ground was re-shifted to Albany, where a futile effort was made to get the charter enacted over the mayor's veto. Early in 1914, citizen delegations once more made their pil- grimage to the capital. A new charter was again put through the legislature and this time provision 'was made for a refer- endum. The charter was adopted by a small majority on the first Tuesday of the present month. I hold here no brief for the commission form of government adopted in Buffalo. But I do hold that the people of Buffalo are quite as capable of forming an intelligent opinion upon the relative merits of types of government as is the legislature of the state, and that they are infinitely more concerned in the form of government under which they must live than is any- one else. If they wanted a change, it is little short of ridicu- (271) jtO REVISION OF THE STATE CONSTITUTION [Vol. V lous that they were forced not only to stir up sentiment and come to agreement among themselves but also to wage their major battle in a distant city with a group of representatives who for the most part had only a political or a remote and highly theoretical interest in the result of the contest. This, then, from the viewpoint of the city, is wherein the pro- vision of our existing constitution has been tried and found lacking. It gives a large measure of freedom from positive interference but almost no measure of opportunity for con- structive local action. The city must eternally petition to be allowed to live its life as it desires. If it be argued that it is necessary to impose some check upon the city that it may not wander too far into the field of political experimentation and fad, it may be rejoined, first, that the worst conceivable ex- periments could be no worse than some of the hybrid govern- ments that have been imposed by legislative enactments; and second, that municipal intelligence does not commonly fall far below the level of legislative intelligence ; and third, that even if a time-cherished check is desirable, this particular brand of check is quite as absurd in theory as it has proved harassing in ^practice. Certainly as to most of its provisions, there is no more inherent reason why the honorable member from West- chester county should be asked to approve or reject a charter for Buffalo than there is reason that it should be submitted to the President of the Chinese Republic. Much could be said also in behalf of the right of the legislator in justice and in reason to be liberated from the necessity of performing this absurd and sometimes onerous obligation ; but into this phase of the subject I need not go. Suffice it to say that from whatever angle you view the matter, it is comparatively easy to reach the conclusion that, in a general way at least, the city should enjoy the right to determine its own form of government. It is by no means easy, however, to draft a constitutional provision which will give satisfactory legal expression to this right, for there are a number of serious difficulties surrounding this problem. It is to some of these that I wish to call your attention. Fortunately we are not compelled to discuss this subject (272) No. 2] HOME RULE FOR CITIES 1 1 wholly upon an abstract or speculative beisis. There are now twelve states of the Union which confer upon some or all of their cities the power to draft and amend their own charters. These states are: Missouri (1875), California (1879), Wash- ington (1889), Minnesota (1896-98), Colorado (1902), Ore- gon (1906), Oklahoma (1908), Michigan (1908), Arizona (1912), Ohio (1912), Nebraska (1912), and Texas (1912). So far as actual experience under and judicial interpretation of home-rule provisions are concerned, the first five of these states ought to furnish us certain highly instructive lessons. The provisions of the remaining states are of less importance in this connection and for somewhat obvious reasons. Practice under the Oregon provision has extended no further than to the making of a few charter changes in minor cities and the adoption of a charter in Portland so recently as May 1913. In Oklahoma, at least fourteen cities have adopted home-rule charters; but most of them are of negligible importance; and in any case none of these charters have run more than a very few years. Experience in Michigan since the constitution of 1908 has been very limited. Bay City, with forty-five thousand inhabitants, being the largest city that has adopted a complete charter. Municipal corporations in Arizona are of course quite inconsiderable. In Ohio there has been widespread ac- tivity among cities since the power to frame their own charters was conferred upon them beginning with January i, 191 3 ; but about half of the proposed charters have been rejected at the polls, and the oldest home- rule charter in that state has been in operation less than a year and a half. On the other hand, the first city-made charter in Missouri dates i from 1 876, the first in California from 1889, the first in Washington cfrom 1890, the first in Minnesota from 1900, the first in Colorado from 1904. At the present time there are operating under charters ofitheir;own establishment the two largest citiesi. of Missouri, nearly 30 cities in California, including all of any importance, the four largest cities of Washington, more than 40 cities in Minnesota, although most of them are insignifi* cant, and the important city of Minneapolis is not included^ and the three largest' cities as well as one minor city of Colo- (273) 12 REVISION OF THE STATE CONSTITUTION [Vol. V rado. It is to these states especially, therefore, that we must look for the enlightenment of experience. I want to discuss for you, from two main points of view, the difficulties of phrasing a constitutional provision upon this subject. The first of these concerns the scope of the power that will be conferred upon cities wholly irrespective of any question of conflict between the city and the state in the exer- cise of their respective powers. The second concerns the somewhat more important question of possible conflict between charter provision and state law. Let us assume that the authority conferred is couched in some such general clause as this : " The cities of this state are hereby empowered to amend and to frame and adopt charters" or " charters for their own government." It is manifest that under such a grant each city must itself decide ab initio what powers may be exercised under a " charter for its own govern- ment." And the question presented is whether any difficulty will arise over the attempted exercise by cities of powers which, in somebody's view at least, do not properly belong to a muni- cipal government. By such a grant of power it is certainly not intended that the city shall be able to draw unto itself the complete powers of a state. It is not intended, for example, that the city should be empowered to enact ordinances relating to private con- tracts, or marriage and divorce, or wills and administration, or the conveyance and mortgaging of property, or prohibiting combinations in restraint of trade, or regulating banking and insurance, or providing for workmen's compensation, or defin- ing and punishing the several degrees of murder or larceny. It would certainly be difficult to phrase a limitation that would accurately and definitely prohibit municipal corporations from exercising such powers as these; but personally I do not feel that it is necessary to devise such a restricting clause. In the first place, I believe that cities will rarely if ever attempt to exercise such powers. And in the second place, I do not think the courts would find great difficulty in construing that the power to frame " a charter for its own government " did not embrace such powers. I am well aware that any attempted, (274) No. 2] HOME RULE FOR CITIES 13 municipal control over these specific matters which I have named would give rise to a question of conflict between state and municipal law rather than to the simple question of muni- cipal power. I have specified them, however, merely to indi- cate a class or classes of powers which I should have some dif- ficulty in describing satisfactorily in general terms. On the other hand, it is not at all inconceivable that in the attempted exercise of certain powers, difference of opinion will arise as to whether or not they are appropriate to the city's " own government." You will observe that this is a question wholly separate and distinct from the question that is fre- quently presented to the courts as to whether the city enjoys this or that power under its charter. This latter question in- volves merely the application of the time-honored (or time- dishonored) rule of somewhat strict construction of the char- ter grant of powers. Such a question may arise under a home- rule as well as under a legislative charter. But the inquiry here is not as to the extent of the city's power under terms of its charter, but as to the extent of its power under the consti- tutional grant to control these terms. In discussing this aspect of the subject I shall content myself with calling attention to a few specific questions of this char- acter which have arisen in other states, and in doing so I wish again to emphasize that I am discussing merely the question of whether the right to frame a charter includes the right to ex- ercise this or that power, regardless of any consideration of conflict between state law and charter provision. In some of the instances I cite it will be manifest to you that in this state the issue would have been one of conflict. Likewise it may be said that some of the cases which in other states have in- volved questions of conflict would in this state have presented simply an issue of power. Whether the one or the other ques- tion is involved depends upon the extent to which the legisla- ture has enacted laws upon this or that subject. Here, then, are a few of the questions relating solely to the matter of the competence of a city in framing a home-rule charter which have been raised in the courts of other states. I. Does the right to frame a charter for its own government (27s) 14 REVISION OF THE STATE CONSTITUTION [Vol. V confer upon a city the power to create a police court? The supreme court of California answered this question in the nega- tive, although.it must be remarked that it did so chiefly by ap- plying another provision of the constitution which empowered the legislature to "establish inferior courts " and to " fix their jurisdiction by law." It is unnecessary to point out the maze of inconsistencies into which this decision led the California courts. Sufifice it to say that in 1896 by constitutional amend- ment cities were expressly empowered to provide in freehold- ers' charters " for the constitution, regulation, government, and jurisdiction of police courts." But the end was not yet. - A series of highly important cases arose over this amendment, and' in One of themi it was expressly declared that the charter of San. Francisco could not confer upon the police court of the city " concurrent jurisdiction with the superior court " of mis- demeanor cases arising under the general laws of the state. Resort for this ruling was again had to another constitutional provision, although the construction put upon this provision was undoubtedly highly strained. Most of the California cases, however, that arose over charter provisions relating to police courts — and there have been many of them — involved, as might be expected, conflicts between state laws and charter provisions. We are considering at this point only cases in- volving questions of power in the absence of conflict. 2. Does the power to frame a charter carry with it the right to provide for the annexation of territory? The courts of Cali- fornia have repeatedly answered this question in the negative. On the other hand, it has been held that such power does carry with it the right to separate territory. Apparently the Mis- souri and Minnesota courts take somewhat the same view, al- though the precise question has not been so clearly raised in those states. It is easy to see that the annexation of territory is a power which must directly affect persons living beyond the jurisdiction of the city. It is not strange, therefore, that the courts have declared it to be a power which may not be regulated exclusively as the city sees fit. 3. May a city under such charter exercise the power to ac- quire water and a waterworks outside of the city? In the (276) No. 2] HOME RULE FOR CITIES 1 5 opinion of the supreme court of California the city apparently enjoys this power. 4. Has the city the power under a freeholders' charter to regulate matter pertaining to education to the extent that such matters are not regulated by state law? ~ The California court has in effect held that the city has such power, although it has been expressly disclaimed that the control of education is a " municipal affair." In other words, it has been held that a city might control a state affair of this kind in the absence of any substantial action by^ the state- itself. ■ 5. Does the power to frame a charter confer upon the city the power to create a department of health? The California court answerted this question by a unanimous vote in the af- firmative; but the judges were not all agreed upon the ground of the decision they reached, nor as to whether the control of matters pertaining to public health was a state or a municipal function. The situation involved in the case that arose was ■one in which Sail Francisco enjoyed the luxury of a board of health created by state law, the members of which were ap- pointed by the governor, and also a board of health created by the city charter. But the manner in which the case was presented, involving as it did only the question as to whether the charter board had any legal existence, enabled the court to avoid the necessity of deciding any question of conflict of jurisdiction between the two boards. Apparently, under the views expressed by the court, this would have required the obviously impossible determination of the precise extent to which public health is a concern of the state and the extent to which it is a local affair. Fortunately for the court the legis- lature cEune to the rescue by abolishing the state-appointed board before this embarrassing question arose. 6. fias a city the power under a home-rule charter to pro- vide for the regulation of rates and other matters pertaining to, privately owned public utilities ? In Missouri it has been emphatically declared that the power to regulate public utility 'rates'" "is- not. a power appertaining to the government of a city and does not follow as an incident to a grant of power to frame (277) 1 6 REVISION OF THE STATE CONSTITUTION [Vol. V a charter for a city government." In last analysis the only reason advanced by the court for this amazing rule of law is that it is not such a power simply because it is not. It seems that there has been no question of the competence of the cities of California in respect to this matter, nor of their power to control to the fullest extent the conditions under which public service corporations shall occupy the public streets.^ In Wash- ington, although the home-rule provision of the constitution was apparently self-executing, the legislature immediately took upon itself the authority to set forth in somewhat elaborate detail the precise limit of powers which a city framing its own charter might exercise. It was urged upon the court by the city of Tacoma that although its power to regulate gas rates was not " conferred " by the statute in question, it was never- theless contained in the direct constitutional grant of author- ity " to frame a charter for its own government." But the court curtly dismissed this reasonable contention with the as- sertion that it was sufficient to say " that the legislature hav- ing passed a general law upon the particular subject, the power to fix such rates must be found therein, if at all." In other words, the city's power under a direct constitutional grant of home rule was just as large and just as small as the legis- lature chose to make it. Astounding doctrine! But it may be said generally and with little further reference to specific cases that, whenever a question of the competence of a home- rule city has arisen in Washington, the court has settled this question by reference solely to the so-called " enabling act " in which the legislature assumed to declare in detail what powers such a city may exercise. Thus it has been indicated that the only reason why the commission form of government may be established under a freeholders' charter is because the legislature, not the constitution, has impliedly conferred this power. 7. Does a city under a freeholders' charter enjoy the power to provide for the municipal ownership of public utilities? ' The power of California cities in this regard was made more definite by a specific amendment adopted October 10, igii. (278) No. 2] HOME RULE FOR CITIES jy The supreme court of California, in a case involving the right of San Francisco to construct street railways, answered this question emphatically in the affirmative, even before the adop- tion in 191 1 of a constitutional amendment which specifically conferred this power. By specific provision also the constitu- tions of Oklahoma, Michigan, and Ohio leave no uncertainty as to the competence of home-rule cities in this regard. 8. Has the city under such a charter the power to construct an opera house, an auditorium for conventions and public en- tertainments, or a moving-picture theater? This question has been answered affirmatively in Colorado and Oklahoma. In California, while it was strongly intimated that a city would be competent to undertake such an enterprise, it was denied that the city could furnish the land and a private association the building, where the entire property is to be controlled largely by the private association. In Ohio it is evidently the view of a majority of the supreme court that a city operating under a charter of its own making will have no power to own and operate a moving-picture theater.. It is obvious that ques- tions such as this involve logically a consideration and applica- tion of the broad doctrine of our law which asserts that taxes may not be imposed for a private purpose — a doctrine which has no special relation to home-rule powers, but may be and usually has been applied to determine the competence of the legislature itself. It is simply a fact, however, that where these questions have arisen in home-rule cities this doctrine of law has been almost completely ignored, the issue being de- cided upon a consideration of the scope of powers conferred by the general grant of authority to frame a charter. 9. Does the power to frame a charter confer the power to make provision for the imposition of taxes, special assessments, the levying of Jicenses for revenue purposes, and the exercise of the power of eminent domain? The California, Missouri and Minnesota courts have held, as might be expected, that it does. Elsewhere this somewhat absurd question in respect to the financial competence of cities has not been raised. 10. Is a city under a freeholders' charter competent to con- fer power, in respect to matters in which it has an interest, upon (279) 1 8 REVISION OF THE STATE CONSTITUTION [Vol. V one of the courts which form a part of the general judicial sys- tem of the state? Apparently such competence has been sus- tained in Missouri, in California, and in Minnesota. 11. Is a city empowered to provide in its charter for a poll tax to be paid by all male adult residents who do not vote at every general city election? In other words, may the city establish by this somewhat indirect method a system of com- pulsory voting? In asserting that Kansas City could exercise no such power as this, the Missouri court waxed eloquent; but when all was said no substantial ground had been ad- vanced to sustain the invalidity of the provision. The court was indignant and outraged, but not rational — as may be judged by the following flight of oratory with which the opin- ion was brought to a close : But who can estimate the money value to the public of a vote? It is degrading to the franchise to associate it with such an idea. It is not service at all, but an act of sovereignty above money and above price. The ballot of the humblest voter in the land may mould the destiny of the nation for ages. Who can say it will be for weal or woe to the republic? Who, that it is better that he should cast, or withhold, it? Who dares to put a price upon it? The judgment of the circuit court is reversed. All concur. 12. Has the city the power under a freeholders' charter to provide for the administrative removal of municipal officers for specified offenses and also for a judgment upon such re- moval of perpetUcd disqualification from holding any city office? The California court gave an affirmative answer in re- spect to the mere matter of removal, but was luckily able to avoid the necessity of determining the more important question of disqualification. 13. It is a well-known fact that legislative charters fre- quently contain provisions governing the rights of private per- sons in their enforcement of damage, contract, special assess- ment, and tax claims against cities. Obviously neither a sta- tutory nor a home-rule charter may so restrict the rights of private persons in this respect as to run against the formidable obstacle of the guarantee of due process of law. But does the (280) No. 2] HOME RULE FOR CITIES 1 9 power to frame a charter include the power to regulate such matters at all? In Minnesota it has been settled that a city may provide in its charter the procedure to be followed by private persons in the enforcement of claims arising under con- tracts. In California it has been held that a city has the power to impose a time limit in which persons may file a claim for compensation for injury to property resulting from the con- struction of a public improvement. But in Missouri, by a very narrow construction and very doubtful application of the re- quirement of due process, it was held that a city could not de- prive an abutting property owner of his right to plead any defense that he might choose in a suit to enforce a tax lien by requiring that he should within sixty days after a tax bill was issued file a statement of his defenses before the municipal board of public improvements. On the other hand it has been decided in the same state that a city is competent to relieve itself of liability for injuries re- sulting from failure to keep the streets in proper repair by requiring that notice of the defect be given in writing even though the common-law rule, which would have been applic- able in the absence of such charter provision, required only constructive notice. It has been held, further, that in the ex- ercise of the police power a city may under a home- rule char- ter create a civil liability from one person to another for in- jury resulting from a violation of a local ordinance. This power was sustained in a case which asserted that an ordinance requiring street railway companies to see to it that motormen keep vigilant watch upon street traffic was not void as to the provision which made such companies liable in damages to persons injured in consequence of a violation of such ordi- nance. But in the same state — Missouri — the competence of a city to impose upon the occupiers of premises, who are not also the ■owners, the duty of keeping the sidewalks in safe repair has been denied, although it must be admitted that the argument of the court went little beyond the expression of strong dis- approval of such a policy, which could place " mere renters of property ... at the mercy of charter framers." (281) 20 REVISION OF THE STATE CONSTITUTION [Vol. V In view of the long-established attitude of the courts of this country toward the rights of persons in property — rights which must be protected by the strong arm of the judiciary against assaults made by the so-termed political departments of the government — it is scarcely surprising that these same courts should view with some illiberality the attempted exercise by cities alone of powers which directly affect the rights of per- sons and of property under the law. I refer here, of course, to powers other than police powers, which time out of mind have been exercised by municipal corporations. I have indicated, then, the character of some of the ques- tions that have actually arisen in other states as to the scope of powers included in the grant to a city of the authority to frame a charter for its own government. I could easily elab- orate the list with supposititious questions that would be neither academic nor foolishly theoretical. But enough has been said to demonstrate that the phrase, " a charter for its own government," does not describe a concept that is capable of exact legal definition. Nor should there be occasion for astonishment at this. Every thoughtful or observant person has a tolerably clear general notion of what functions are ap- propriately municipal in character. But most sensible persons would hesitate before the task of translating that general no- tion into precise definition. The courts have had no more and no less difficulty in the task of specifically defining this general phrase than you or I would have, were the obligation imposed upon us, although it may be that each of us feels cer- tain that he could have given far readier and far more satis- factory answer to some of these questions. You may have noticed that I have found answers to the con- crete questions propounded far more frequently in the decisions of the Missouri and California courts than in those of the other states in which the right of home rule has prevailed for some time. And you may naturally ask : why this difference in the amount of litigation? The answer for Washington has al- ready been indicated. There the legislature early assumed the authority to determine for all cities what powers they might exercise, and this asumption of authority was recognized as (282) No. 2] HOME RULE FOR CITIES 21 valid by the courts, though the reason does not appear. Ap- parently the four home-rule cities of that state, upon the basis of this view, have not attempted to overstep the bounds of their competence as thus marked out by the legislature. It may be remarked also that the statute in question was in point of fact fairly liberal in its enumeration of the powers that might be exercised. The absence of litigated controversies upon this point in Minnesota may be attributed in large part to a some- what similar cause. The important difference, however, be- tween Minesota and Washington is that the provision of the Minnesota constitution expressly declares that " the legislature shall prescribe by law the general limits within which such charter shall be framed." To a partial extent at least the legislature has fulfilled this obligation of setting the limits of the city's legal capacity.'- The Michigan constitution confers precisely the same authority upon the legislature — an authority which has been acted upon by the en- actment of an elaborate statute prescribing the powers which the city must exercise, the powers which it may exercise, and the powers which it may not exercise. Little controversy upon this point, therefore, need be ex- pected in that state. That there have been only one or two adjudicated cases in Colorado must be ascribed to the fact that the cities of that state have, as to their powers at least, fol- lowed the beaten and indisputable path, or to the highly im- probable fact that the va^t host of ever-present persons who are potentially interested in defeating the progressive activities of cities have been marvelously passive in Colorado. I know of no other causes to which the almost total absence of contro- versies upon this point may be attributed. It is doubtless unnecessary for me to define and explain the distinction between the functions of a municipal corporation as an agent of the state and as an organization for the satis- faction of local needs — a distinction which has been laid down ' It was early contended that 'the legislature had not performed its duty in this respect in suflficient detail. But this contention was disallowed by the court. Evidently, however, as in Washington, the commission form of govern- ment was valid only because the legislature had permitted it. (283) 22 REVISION OF THE STATE CONSTITUTION [Vol. V by the courts as a premise for the formulation of governing rules in many branches of the law of municipal corporations. I cannot pause to point out the hopeless inconsistencies of ut- terance into which the courts have drifted in their efforts to apply this distinction in the numerous and highly various cir- cumstances in which necessity for its application has arisen. I can only say that if you have patience to read broadly in the cases, you may find that you can follow the reasoning of many — perhaps most — of them with considerable concurrence, but you will also find in the end that this much-reiterated distinc- tion varies very nearly all the way from something of great vitality and importance to nothing at all. It may be that as to some of its aspects it is a distinction that rests upon nothing more substantial than the theoretical and somewhat arbitrary views of judges. But however variant a legal concept it may be, and whatever may be the soundness of its foundation in logic, it is a distinction that is woven deeply into the fabric of our law. Now the point that I wish to make in this connection is that the courts have been called upon in very few cases indeed to apply this distinction in the determination of the competence of the city which drafts a home-rule charter. And the reason is patent. In respect to those functions in the performance of which the city has been held to be acting as an agency of the state, the legislature has commonly enacted many laws of gen- eral application. The controversies that have arisen, there- fore, have involved questions of conflict rather than merely questions of power. On the whole, this has been fortunate, for otherwise the courts might have been called upon in numerous cases to decide whether a city in providing for its " own gov- ernment " had authority to provide for departments of fire, police, health, education, elections, charities, corrections, or even streets. In respect to one and all of these functions the city has been held in one or more branches of the chaotic law of municipal corporations to be acting merely as a representa- tive of the state. It would certainly have reduced the right of home rule to a ludicrous farce had the courts asserted that a city in providing for its " own government " had no power (284) No. 2] HOME RULE FOR CITIES 23 to regulate any of these matters. And yet it may not unrea- sonably be asked: if the city in its control of such matters is merely an agent of its creator — the courts have seldom gone so far as to declare even that its agency relation is one that is coupled with an interest — how can it be held that such matters pertain to its "own government?" As I have already said, there has been scarcely any determination upon this point for the reason that in the controversies that have arisen there has nearly always been some state law that has given rise to the much more obvious contention that the city was attempting to controvert some general established policy of the state. And this brings me to a consideration of the second and far more important of the difficulties to be encountered in draft- ing a constitutional provision upon this subject. This is the difficulty of wording a restrictive phrase that will prevent the city from overruling the will of the state upon a matter of state-wide interest and concern. Let me briefly review for you the existing constitutional phrases upon this subject and indicate — quite inadequately, I regret to say, because of time limitations — something in regard to the manner in which our judges have interpreted them. The constitution of Missouri expressly declares that the charter framed by a city " should always be in harmony with and subject to the constitution and laws of the state." ^ Else- where the legislature is prohibited from enacting special laws relating to cities; but since under court adjudication each of the home-rule cities — St. Louis and Kansas City — is in a class by itself, this prohibition is of no material consequence. It is practically impossible to describe briefly the definition which the courts of the state have given to this phrase, " laws of the state," which charters must be " in harmony with and subject to." In 1904 the supreme court itself admitted that it was a wholly futile undertaking to tread the maze of adjudication, perhaps to become lost in the 1 It also declares that " notwithstanding the provision of this article, the gen- eral assembly shall have the same power over the city and county of St. Louis that it has over other cities and counties of this state." (285) 24 REVISION OF THE STATE CONSTITUTION [Vol. V labyrinth of the ingenious and divergent reasons which pervade the cases in respect to the power of the state at large over municipalities incorporated under article nine of the constitution, and in respect to the power of municipalities to adopt charters regulating matters of mere local concern, with which the state at large has no concern, which have the effect of repeating prior general state laws on the same subject, or which place such cities in respect to such matters beyond state control. " Exhaustive investigation " had, in the court's own opinion, " led to such poor results " that " repetition and reiteration " had become " offensive." This is certainly an amazing con- fession either of the absurd and hopeless ambiguity of the constitution itself or of judicial incompetence. But it has the commendable virtue of frankness. Attempting, then, what the court itself declared to be a futile undertaking, I think it may be said in a general way that at the outset the courts were inclined to assert that a home-rule charter was subordinate in every respect to any law that the legislature might enact. This, you will see, was a perfectly literal interpretation of the terms of the constitution. But ulti- mately the court came to see that such a construction trans- formed the constitutional right of home rule into a rapidly dis- appearing shadow. In general effect, therefore, but not with- out much hesitation and many excursions into by-ways of ar- gument and discourse, the court may be said to have read into the provision a qualification which asserts that the controlling laws of the state must be laws relating to matters of general or state concern as distinguished from local concern. And here are some of the concrete examples of the manner in which this qualification has been applied either specifically or by fair implication : A state law supersedes a charter provision in any matter re- lating to the police department. (It may be remarked paren- thetically that the police departments of both St. Louis and Kansas City are still controlled by state-appointed commis- sions, as they were prior to the adoption of home-rule char- ters. ) A law regulating the issue of liquor licenses takes pre- cedence over a charter provision on the same subject. So does (286) No. 2] HOME RULE FOR CITIES 25 a law providing the number of constables that may be chosen in each ward of the city. So does a law regulating the conduct of elections, municipal or general. So does a law regulating peddlers. A law governing the manner in which taxes on rail- way property shall be extended on the tax books renders the charter provision on this subject void. So likewise it may be said to have been implied that a state law providing for the biennial assessment of property would supplant a charter pro- vision requiring annual assessments. Likewise, in cases in which a city and a private person are jointly responsible for a street construction, a city may not by charter provision regu- late the recovery of damages against itself where a state law regulates generally the rights of persons to bring joint action against several persons. It has even been implied that a state law displaces a charter provision governing the manner in which a city shall enter into contracts. On the other hand it has been held directly or by implica- tion that a charter provision relating to the control of parks, or to the matter of street improvements or the payment of awards under condemnation proceedings, or to the removal of municipal ofi&cers generally, will supersede a state law upon any of these subjects. In any candid view of the cases, one is compelled to admit that the Missouri courts, however curious and unsatisfactory many of their decisions are, had before them the difficult task of interpreting a constitutional provision which contained declarations as to the powers of cities on the one hand and the power of the legislature over cities on the other hand which were in a literal sense utterly contradictory. It should doubt- less be registered to their credit that out of this chaos of con- flicting utterances they have rescued a considerable element of the home-rule right. The original provision of the California constitution de- clared that every charter framed by a city should " be subject to and controlled by general laws." Almost immediately the courts interpreted this phrase " general laws " to include any law which was not special in application. This meant that a freeholders' charter could be amended, and, by piecemeal at (287) 26 REVISION OF THE STATE CONSTITUTION [Vol. V least, wholly abolished by the enactment of "general laws" ap- plicable to the cities of a class. For it is to be noted that the court did not declare that general laws were laws governing matters of general or state concern as distinguished from local or municipal concern. In 1896, however, this distinction was incorporated into the constitution by the insertion of four important words. Cities were thereafter made subject to and controlled by general laws " except in municipal affairs." This merely gave specific expression, you will note, to the same qualification that was ultimately read into the Missouri provision by the courts of that state. You will note further, that the fundamental premise of the exception that was thus introduced into the California constitution is that all possible governmental affairs may be separated into one of two precise categories — municipal and non-municipal. I need not take your time to demonstrate that, whatever degree of general truth may lie in this premise, a division of governmental powers along this line cannot pro- ceed with anything like exactness and precision. Opinions will diifer; and after all, whether certain entirely proper func- tions of government are or are not to be labeled municipal af- fairs is in last analysis not a question of law or of fact but of individual opinion. Indeed one cannot but feel sympathy for the California judge who, voicing his irritation and resentment over this constitutional provision, exclaimed : " The section of the constitution in question uses the loose, indefinable, wild words ' municipal affairs,' and imposes upon the court the al- most impossible duty of saying what they mean." But let us see how the California court has acquitted itself of this " impossible duty." It has been held that matters pertaining to the election of municipal officers are a municipal affair in respect to which provisions of the general law do not supersede charter provi- sion ; but whether matters relating to the election of a board of freeholders to draft a charter are such a municipal affair has, by reason of a diversity of opinion among the judges, been left in a state of uncertainty, and in practice is regulated largely by state law. So also the opening of streets is a municipal (288) No. 2] HOME RULE FOR CITIES 27 aifair, although it was the emphatically asserted doctrine in an earlier case, not overruled, that in the control of its streets a " municipality acts merely as the agent of the state." In re- spect to control of public health I think it may be said that three out of seven judges regard this as a municipal affair in which a charter provision would control a state law; three other judges apparently believe that health matters may be di- vided into two parts, control over some matters being desig- nated a municipal affair and over other matters a state affair; one judge holds that the regulation of public health is in all of its aspects a state affair and that laws upon this subject take precedence over conflicting charter provisions. The court has not been compelled in any case up to the present time to come into closer agreement than this. It has been held that a state law prohibiting licenses for revenue cannot affect a charter provision imposing such licenses, although it is manifest that a series of different revenue policies established by the cities of a state might seriously disarrange and embarrass the reve- nue policy of the central government. The opinions expressed by the California courts in answer to the question whether the control of public education is or is not a municipal affair are in irreconcilable conflict. If, for example, considering the plain recognition by the constitution of only two kinds of affairs — municipal and non-municipal — you can harmonize the declaration that the " school system of the state is a matter of general concern and not a municipal affair " with the later assertion in the same case that the " erection of school houses . . . was justly to be regarded as a municipal affair," I can only say that your powers of synthesis are more highly devel- oped than mine. It has been declared that " the city in grant- ing a street railway franchise is but an agency of the state, and if there were any conflict between the ordinance contain- ing the grant, and the general laws of the state, the latter would govern." But on the other hand, it has been held that a charter may require a franchise from the city for the erection of telegraph and telephone poles, the control of the streets being a municipal affair, even though the state law expressly confers this right without authorizing such a franchise. Again (289) 28 REVISION OF THE STATE CONSTITUTION [Vol. V I must confess that my capacity to follow the court's logic is somewhat wanting. For some time it was uncertain whether in the purview of the courts the provisions of a home- rule charter would supersede those of a state law upon the subject of removals from office; but this uncertainty was resolved in favor of the authority of the charter by a specific amendment upon this subject adopted in 1906. Finally, it may be re- marked that it has been held, collaterally at least, that matters pertaining to the prosecution of persons accused of violating municipal ordinances are a municipal affair which supplants a state law upon this subject. From this hurried review of the more important California decisions involving questions of conflict between state laws and charter provisions, I think it may be concluded that while the court has on the whole been more liberal than otherwise in the scope it has given to the term " municipal affairs," it has left the law in certain important aspects in a state of nebulous uncertainty. That it has not been forced into larger and more numerous difiiculties, is doubtless due in part to the fact that the legislature of the state, composed in considerable pro- portion of members who come from cities having home-rule charters, has been somewhat hesitant to enact laws that might operate to repeal charter provisions, and in part to the fact that municipal charters have in many instances voluntarily adopted by general reference the provisions of state laws upon numerous subjects. In Washington the constitution employs a phrase practi- cally identical with that of the Missouri provision. Home- rule charters must be " consistent with and controlled by gen- eral laws." Unlike Missouri, .however, the courts of this state have never construed that the " general laws " here referred to are laws of general or state concern in contradistinction to laws relating to municipal or local affairs. They have thus avoided the necessity of defining and applying this difficult distinction ; but in doing so they have flung wide the door of opportunity for the amendment and alteration of home-rule charters in any respect whatever by legislative enactments. Any law passed by the legislature and made applicable to (290) No. 2] HOME RULE FOR CITIES 29 cities of the first class is binding upon the cities of Seattle, Spo- kane, Tacoma, and Everett, notwithstanding the fact that the charters of their own making may contain contrary provi- sions. Indeed, if I read the cases correctly, the Washington court has gone so far as to declare that a law establishing a state public service commission and vesting it with power over municipal utilities ipso facto deprives a city of such power even before the state commission has taken action. In view, therefore, of the general rule of construction applied to the term " general laws " it is wholly unnecessary for us to consider here any specific instances in which charter provisions have been superseded by general laws. Whatever degree of actual home rule survives in Washington survives by legislative grace rather than because of constitutional grant. But in jus- tice to the legislature of that state it ought to be said that their graciousness has been considerable. As I have already re- marked, they inaugurated the era of home rule by the enact- ment of a statute detailing the powers which cities might exer- cise ; but this statute was exceedingly generous in scope. They have not attempted to legislate for individual cities under the specious guise of special classification. And on the whole it cannot be said that they have enacted many laws affecting generally the charters 'of home-rule cities, which constitute the " first class " of cities in the state. It is only in compara- tively recent years that certain serious inroads have been made upon the charter provisions of such cities. The situation in Minnesota is practically identical with that in Washington. In this state, however, the constitution specfi- cally empowers the legislature to enact " general laws relating to the affairs of cities," in accordance with a classification cre- ated by the constitution itself, and provides that such laws shall apply equally to all cities of any class and " shall be para- mount while in force to the provisions relating to the same matter included in the local charter " — home rule, or legisla- tive. Under such a provision there can be very little question of the authority of the legislature to alter in any respect the char- ter of a home-rule city by a law made applicable to the cities of a class. And it may be remarked that the courts have permitted (291) 30 REVISION OF THE STATE CONSTITUTION [Vol. V the legislature to create sub-classifications in the classes es- tablished by the constitution. Thus, to illustrate, the cities of Minneapolis, St. Paul, and Duluth constitute a constitutional class, being the only cities of the state with more than 50,000 inhabitants. St. Paul and Duluth have been under home- rule charters since 1900. Minneapolis has made six vain attempts to have such a charter ratified at the polls. At every session of the legislature a crop of laws relating t? cities of this " first class " is harvested. Some of these laws exempt from their operation cities under home-hule charters. Such laws apply only to Minneapolis. Others apply equally to all these cities and operate to amend the charters of St. Paul and Duluth as well as that of Minneapolis. The point of importance is that the so-called home-rule charters of Minnesota are absolutely subject to legislative control under laws applicable to classes of cities. Nor has the legislature of that state been nearly so deferent in its attitude toward the principle — I will not say right — of home rule recognized by the constitution as has the legislature of Washington. Professor Schaper, of the Univer- sity of Minnesota, is authority for the assertion that the home- rule charter of St. Paul was amended 313 times by the legis- lature between 1900 and 1911. To call this "home rule" either in law or in practice is merely to carp. In the Colorado constitutional amendment of 1902, which conferred upon Denver specifically and upon cities of the first and second classes generally the power to frame and adopt their own charters, no phrase was used which required that the charter so enacted should be subordinate to state laws in any respect. The legislature continued to pass laws relating to the government of cities of the first and second classes, but no- body ever thought that such laws applied to cities under home- rule charters and no contention to this effect has ever been made before the courts. There is, however, one, and only one, significant decision in the Colorado books upon this subject. It was decided there in 191 2 that a state law which provided generally the manner in which judges of elections should be chosen superseded and repealed a provision of the Denver char- ter relating to the same matter. The opinion rendered was a (292) No. 2] HOME RULE FOR CITIES 3 1 vigorous expression of the view that the purpose of the home- rule amendment was to give the people of the city " exclusive control in matters of local concern only," that the whole sub- ject of elections, " municipal or otherwise," is a matter of " gDvernmental and state-wide importance." It was even de- clared that " if by article 20 it had been undertaken to free the people of the city and county of Denver from the state con- stitution, from statute law, and from the authority of the gen- eral assembly, respecting matters other than those purely of local concern," the constitutional amendment itself would have been held void. It is manifest at once that the effect of this decision was to read into the constitutional provision a clause asserting the subordination of charter provisions to all general laws deal- ing with matters of state as distinguished from local concern. In other words, the Colorado provision, under judicial inter- pretation, is very nearly identical with that of California, as declared in express terms, and with that of Missouri as con- strued by the court of that state. What is and what is not a matter of state as distinguished from local concern has been determined by the Colorado court only in this one specific in- stance. But when it is considered that the control of city elec- tions at least has been held in California, Oklahoma, and Ohio to be a matter of local concern, I must say that upon a careful examination of the home-rule charters of the cities of Colo- rado I find many provisions in respect to the validity of which I have little doubt that successful contest could be made. What may be the ultimate fruits of this comparatively recent de- cision in that state remain to be seen. The Oregon constitutional amendment of 1906 requires that home-rule charters shall be " subject " only " to the constitu- tion and criminal laws of the state " and " to the provisions of the local-option law of the state." As I have already indi- cated, practice under this amendment has been so limited that the courts have not as yet been compelled to give judicial de- termination of its meaning. In Oklahoma, as in Missouri and Washington, home-rule charters must be " consistent with and subject to the constitu- (293) 32 REVISION OF THE STATE CONSTITUTION [Vol. V tion and laws of this state. Here again, then, is a manifest ambiguity, if not indeed a direct contradiction, of terms. For how could a city enjoy any substantial right in the framing of its own charter if at the same time the legislature has the power generally to enact laws that supersede and control the provisions of such charter? The first legislature which met after Oklahoma was admitted as a state evidently appreciated the uncertainty of the constitutional declaration upon this point. They immediately passed a law which in part at least gave definiteness and clarity to the provision. This law pro- vided that whenever conflict was found to exist between a charter and a law relating to cities, " the provisions of such charter shall prevail and be in full force, notwithstanding such conflict, and shall operate as a repeal or suspension of such state law or laws to the extent of such conflict." Under this statute there could be no question that when the legislature enacted a law applicable to cities of the first class this law af- fected only such cities as were not under home-rule charters. It was the legislature itself, therefore, that forestalled at the outset the possibility of the courts' asserting, as we have seen was asserted in certain other states with similar provisions, that general laws relating to the cities of a class operated to amend home-rule charters. But this did not, as events soon showed, solve the whole difficulty in Oklahoma. For there were other laws than those relating specifically to cities with which charter provisions might come into conflict. Several cases of difficult solution have already arisen and the court, referring always to the law I have mentioned as well as to the constitu- tion itself, has been forced to introduce and apply the vague distinction between municipal and state affairs. Thus it has been held that any law relating to public education takes precedence over a charter provision.^ It has been held, further, that while a charter provision regulating the election of municipal officers takes precedence over the general election laws, the latter will control the charter in the matter of the nomination ' Subsequently the legislature conferred upon cities the right to control cer- tain matters relating to education. (294) No. a] HOME RULE FOR CITIES 33 of such officers, this strange situation being the result of a con- stitutional mandate that the legislature shall establish a pri- mary system applicable to " all " elective officers, including municipal. Apparently also there is no question but that the legislature has the power to prescribe the form and manner in which bonds shall be issued by home-rule cities and to require that they shall be submitted to the attorney-general for his certification as to the regularity of their issue. Under the home-rule provision of the Michigan constitu- tion the entire matter of the procedure by which charters may be adopted or amended, of the powers which the city may or may not exercise, and of the character of its government, must be determined by the legislature ; but such determination must be made " by a general law." So far as I can see there is nothing to prevent the legislature of that state from enacting a general law which would in effect impose a uniform charter upon all the cities of the state, leaving to them the merest counterfeit of a home-rule right. Moreover, there is appar- ently nothing, except the possibility of judicial interdiction, to prevent the legislature from introducing classification into this general law and thus in effect gaining as complete control over municipal affairs as is enjoyed by the legislature in Washing- ton and Minnesota. Certain it is that the constitution does not recognize the right of the city to be free from legislative con- trol under this single general law (which of course may be amended at will) even in respect to its most local affairs. In the "enabling act" of 1909 the legislature of Michigan did not by any means exhaust its powers of control, yet I am in- clined to believe that many advocates of home rule would re- gard this statute as falling far short of embodying that degree of home rule which they believe cities should enjoy. The Arizona constitutional provision upon this subject is in all respects identical with that of Oklahoma, and the legisla- ture has likewise passed a law similar to the Oklahoma statute referred to above. There has as yet been no judicial construc- tion in that state. The home-rule provision of the Ohio amendment of 1912 embodied an attempt to express the right conferred upon cities (295) 34 REVISION OF THE STATE CONSTITUTION [Vol. V in somewhat new phraseology. It is no less general in char- acter than provisions in other states. It is simply different. That it has not defined the powers of cities with more exactness than other provisions is, it seems to me, clearly demonstrated by the fact that in the first year of its operation the learned judges of the supreme court in that state spread their opinions, in two cases only, over considerably more than one hundred printed pages of their reports. The language of the constitu- tion seems to indicate that a city has the power to " frame and adopt or amend a charter for its own government " and " to exercise thereunder all powers of local self-government " sub- ject to the limitation that its police regulations shall not be in conflict with general laws. Just what this means and what re- lation of superiority and subordination is established between conflicting state laws and charter provisions I would not ven- ture to explain. So far at least it has been held that a charter provision relating to municipal elections supersedes a state law with which it is in conflict. The Texas amendment adopted in 191 2 follows the Michi- gan model somewhat closely. Home-rule charters are not only made absolutely " subject to such limitations as may be prescribed by the legislature " but must also contain no provi- sion that is " inconsistent " with " the general laws enacted by the legislature." Under this provision, the legislature has passed an " enabling act " that confers quite generous power upon cities that elect to frame charters. But it is manifest that it is entirely within the power of the legislature to reduce the home-rule right to a hollow shell. It seems probable, more- over, that even though a charter provision should be clearly referable to this enabling act, it would be void if in conflict with a " general state law." Whether the courts will construe this term to mean a law relating to a matter of state as dis- tinguished from local or municipal concern is yet unanswered. The Nebraska amendment of 191 2 contains the uncertain limitation of the original — Missouri — provision. Charters must be " consistent with and subject to the constitution and laws " of the state. Freeholders' charters have been rejected! by the voters of Omaha and Lincoln ; and to date, therefore, (296) No. 2] HOME RULE FOR CITIES 35 the courts have been spared the necessity of resolving coher- ence out of incoherence. From this inadequate review of the constitutional provi- sions upon this subject and of their history before the courts, it is obvious that there are grave difficulties to be encountered in the phrasing of a clause which will prevent the city from becoming completely independent of the state in those matters which the courts have held in many branches of the law of municipal corporations to be primarily of state-wide rather than of local concern and which many thoughtful persons be- lieve should not be given over to the exclusive control and determination of cities. I cannot discuss here whether the state or the city, presuming that one attempts to occupy the particular field in its laws and the other in its charter, should have paramount authority in such matters as those pertaining to public education, to public health, to police and public safety, to the regulation of public utilities, to elections, to finance. Every one of these questions is a large and intricate question of public policy. Among students and statesmen there is no common agreement upon any one of them. The point that I wish to emphasize is that there must be agreement if we would have the metes and bounds of the right of home rule clearly defined. Most of the states have vaguely set these metes and bounds by declaring that locally made charters shall be subject to or in harmony with " general laws; " and such a restriction has been read into at least one constitution from which it was omitted. But, as we have seen, this indefinite phrase " general laws " has been given a variety of con- structions, not one of which is wholly satisfactory. The phrases " municipal affairs " and " local self-government," as used in the California and Ohio constitutions, are not more precise on the other side. I regret that it is impossible here to discuss the problem of how this difficulty might possibly in part at least be overcome. I do not know that it can be completely overcome. I have some notions as to how the problem should be approached at least, but it would unduly prolong this paper to set these forth even in brief outline. My purpose here has been to lay stress (297) 36 REVISION OF THE STATE CONSTITUTION [Vol. V upon the inherent difficulties that lie in the way of phrasing a satisfactory clause upon this subject. We cannot profitably discuss the solution of any problem until we have a clear un- derstanding of its difficulties. I could not in the brief time allotted to me attempt both to explain the difficulties and to discuss the possible modes of meeting and conquering them. As between performing the function of an expositor of diffi- culties and constructive proposer I have elected to appear here in the former role; first, because proposition without exposi- tion would be foolish, and second — I am frank to admit it — because the role of the expositor of difficulties in such a matter is the far easier and simpler of the two. On one point, however, I feel profound conviction. This difficulty of mapping out a safe yet full sphere of local au- tonomy is a real one. We have no right to close our eyes to obvious facts nor to ignore in our enthusiasm the lessons we can easily learn from the experience of other states. But if this problem is a difficult one, its solution is no more difficult, and is certainly far more appropriate, for a constitutional con- vention than for the courts of law. The courts already have a sufficiently onerous task in construing and applying the time-honored vague and elastic provisions of our fundamental law. We directly impose this duty upon them of making law and determining policy — a duty from which they cannot es- cape while we retain these undefined clauses in our constitu- tions. But we do not hesitate to criticize them with great severity and sometimes with acrimony when their views of economic and social policies do not happen to agree with our own. I should regret to see incorporated into the 191 5 consti- tution of the state of New York a new indeterminate clause — a clause granting a wholly unspecific measure of home rule to cities. I should regret it for the sake of the cities, who will be uncertain of their rights, and will, I feel certain, in this state, be drawn into an endless amount of litigation. I should regret it for the sake of the courts, who will be compelled against their will to give precise definition to terms which have no precision of meaning. I should regret it for the sake of the convention itself, for this would be a frank confession (298) No. 3] HOME RULE FOR CITIES 37 of incapacity and a very unjust and unreasonable transference of obligation to be carried by the judicial branch of the gov- ernment in the years ahead. And yet — I say this with due forethought — if the conven- tion is unable or unwilling to face this problem with all that it involves, and attempt to give accuracy and definitive mean- ing to the right which they grant — if, in other words they can find no solution of the problem that does not entail the em- ployment of indefinite terms which of necessity the courts must ultimately define and apply, I am nevertheless convinced that the right of home rule should be conferred. For I am fully persuaded that, even under such circumstances, the ad- vantages far outweigh the disadvantages. We must recognize, however, that in doing so we are, to a considerable extent at least, merely transferring the power of negation upon cities from the legislature, where, it now lies, to the courts. In conclusion, I beg to present very briefly my views on a few less important matters connected with the subject of draft- ing a constitutional provision extending home-rule powers : 1. I think that whatever provision is framed should be self- executing. It should not be within the power of the legisla- ture to nullify the right conferred by failure to act or by sur- rounding the exercise of the right with provisions that render a working scheme difficult or impractical. The unhappy ex- perience of Portland, Oregon (where the constitution merely confers a naked legal right) , in her efforts to secure a charter through .the agency of private civic associations at logger- heads with one another is a sufficient argument in favor of the fixing of an orderly procedure within the fundamental law. 2. I think that nothing can be gained by requiring, as in California, that the charter be submitted to the legislature for approval or rejection in toto, or, as in Oklahoma and Arizona by constitutional provision and in Michigan by law, that it be submitted to the governor with like power. The net result of such provision in California, where legis- lative approval early became a thing of trite formality, was to introduce into judicial decisions a wholly unnecessary de- gree of chaos and confusion of utterance. It is obvious that (299) 38 REVISION OF THE STATE CONSTITUTION [Vol. V the governor cannot, will not, and should not be required to examine every charter and amendment to see that it is in har- mony with the general laws of the state. Nor would his rati- fication be at all conclusive that such harmony actually existed. 3. I am convinced that the convention should be at special pains to examine all other provisions of the constitution with particular reference to the home- rule rights conferred. In more than one state other provisions, framed with no thought of or regard for the article conferring the charter-making power, have been raised to defeat its purpose in cases where a careful wording or the introduction of an exception would have saved the situation. 4. And finally, I would urge that, wholly within the article dealing with cities, it should be remembered in the phrasing of every section that in all probability some of the cities of the state will organize under charters of their own making and some will not. The effect of every word that is used should be weighed with reference to this possible and highly probable situation. (300) HOME RULE: A PROPOSAL FOR A REVISION OF THE MUNICIPAL ARTICLE OF THE CONSTITUTION ' LAURENCE ARNOLD TANZER THE need of home rule for the cities of the state has been amply demonstrated in the addresses delivered at the sessions of the Academy. The difficulties to be over- come in framing a constitutional grant of municipal home rule have been fully presented in Prof. McBain's paper with a wealth of material gathered from the experience of other states. It may be appropriate to consider the means of meeting those difficulties, which the Municipal Government Association of New York State has embodied in a proposed revision of the article of the state constitution relating to cities. This revision was prepared after three years' study of the subject and with reference to the experience of other states. It was presented to the legislature of 1914 in the form of a joint resolution amending the constitution, a copy of which is appended.^ It was endorsed by the New York State Conference of Mayors, the Citizens Union, the City Club and a number of authorities on the subject; it passed the assembly and narrowly failed of passage in the senate. The amendment applies not only to cities, but also to villages and to counties wholly within a city. The first difficulty — that of defining the extent of the powers granted to cities — is inherent in the nature of the subject. The advocates of home rule all agree that a city should have power over its own municipal affairs — but what are its own municipal affairs? That question is a practical political question, not one to be answered by a precise legal definition. The impossibility of framing a complete definition of this subject was pointed out by the court of appeals of this state in ' Discussion at the meeting of the Academy of PoHtical Science, November 20, 1914. 2 Cf. infra, pp. 52 et seq. (301) 40 REVISION OF THE STATE CONSTITUTION [Vol. V a case involving the question whether the acquisition by the city of New York of land in Westchester county for a park system was a " city purpose " within the meaning of the consti- tutional prohibition against incurring a debt except for city purposes.' The court said : While . . . it is impossible to formulate a perfect definition of what is meant by a city purpose, yet two characteristics it must have. The purpose must be primarily the benefit, use or convenience of the city as distinguished from that of the public outside of it. . . . And then the thing to be done must be within the ordinary range of municipal action. Some modern critics may deem the last phrase, " the ordinary range of municipal action," too conservative, as not admitting of wholesome experiment in new directions. If, however, the " range of municipal action " be understood relatively, not as signifying any absolute limitation on local freedom of action, but rather as referring to the distinction between municipal action and state action, then I think that the court has well described the nature of a city purpose for which alone a city may spend its money and over which alone it should be given exclusive authority. It is this relative nature of the very idea of municipal affairs that makes impossible a more precise definition. I do not agree that no line can be drawn between municipal affairs and state affairs. Such a line must be drawn if a separate sphere of municipal action is to be set aside and secured against legisla- tive interference. Just as every permissible subject of legisla- tion affecting the people of a state is within the jurisdiction either of the federal government or of the state government and perhaps of both, so every permissible subject of legislation affecting the people of a city (excluding federal questions) must become either a matter for state regulation or a matter for municipal regulation, or both, as soon as municipal home rule exists at all. The question then reduces itself to this : where is the line to 1 Matter of Mayor, etc., 99 N. Y., 569, 590. (302) No. 2] A HOME-RULE AMENDMENT 4I be drawn between state action and municipal action? If gen- eral phrases are to be avoided as too indefinite, definition by- enumeration must be resorted to. A list of subjects must be formulated over which the municipality is to have entire control to the exclusion of the state government. A first attempt will demonstrate the utter futility of trying to make up such a list. The draftsman who should undertake the task would find a few matters like street paving and others of minor importance which are exclusively of local interest, but as soon as he approached the things of vital importance to the city — such as police, health, education, the administration of justice, the control of public utilities — he would find so many points of interest to the state as a whole as to make it dangerous and undesirable, if not im- possible, to oust the state from control over these subjects. The suggestion made in some quarters that the line of de- markation between state functions and municipal functions may be found in the legal distinction between the governmental functions performed by city officials as agents of the state and' the functions performed by the city as a corporate entity for the satisfaction of local needs, overlooks this difficulty. That line of demarkation would leave outside the municipal sphere the subjects just mentioned and others touching the most vital interests of the city, and would confine home rule within limits so narrow as to make it almost meaningless. The distinction above referred to between governmental acts and proprietary or corporate acts, as it is sometimes put — a distinction itself none too clearly defined, — is a legal distinction concerning the nature and source of the various powers exercised by a city ; whereas the distinction between the sphere of state action and the sphere of municipal action ought to be a practical political distinction depending partly on the subject-matter over which the power is exercised and partly on the manner and extent of exercising the power in the particular case. A single illustration may make this clear. Everyone who believes in home rule at all will admit that the city should have control over the grant of local franchises within the city limits, — subject, of course, to general restrictive legislation to prevent the sacrifice of the in- terests of future generations. Yet it is now established doctrine (303) 42 REVISION OF THE STATE CONSTITUTION [Vol. V in the courts of this state that in granting the franchise the city acts as the agent of the state. A line of demarkation which should give a city control over those matters only in which it does not in a legal sense act as agent of the state, would there- fore leave the grant of local franchises entirely outside the do- main of municipal action. Illustrations of this kind might be multiplied. Consequently it must be clear that in order to secure an adequate measure of home rule some other line of demarkation must be found. The division between the sphere of state action and the newly safeguarded sphere of municipal action cannot for the most part be a division between certain general subjects of legislation fall- ing on one side and certain other subjects on the other side of the line. The state and the city are largely interested in the same subjects of legislation. The establishment of a new sphere of independent municipal action must not be at the expense of the vigor and efficiency of state legislation on matters of state concern. What is to-day or in one part of the state a matter of local interest may to-morrow or in another part of the state become a matter of concern to the state as a whole. Any de- tailed enumeration of matters over which the city is to have exclusive power must, therefore, either curtail the power of state legislation or else afford a field of municipal action so re- stricted as to be unworthy the name of home rule. If, then, cities are to be granted the right to govern their local affairs, without impairing the state's power of action, the grant of home rule to cities must be in such general terms as will admit of the necessary flexibility of adjustment between the rights of the city and the interests of the state as a whole. The process of so defining the relative powers of the city and the state will be substantially the same process which has been adopted with such success in our federal constitution in defin- ing the relative powers of the state and of the federal govern- ments. A constitutional command that cities shall have control over their own municipal affairs establishes a principle just as clearly and just as definitely as does the constitutional grant of power to the federal government to regulate interstate com- merce or the constitutional amendment empowering the federal (304) No. 2] A HOME-RULE AMENDMENT 43 government to see that due process of law is observed through- out the Union. What at a given time or place is a municipal affair is no more difficult of ascertainment than what at a given time or place is commerce or constitutes due process of law. Yet the constant need of applying the principle to the facts of a particular case is not seriously urged as a reason why Con- gress should not have control over interstate commerce or why the federal courts should not enforce due process of law. The true function of a constitution is fulfilled when it declares a principle in terms as clear and definite as the nature of the sub- ject admJts, leaving its application to executive and judicial offi- cials, with the aid of legislation consistent with the principle declared. General terms must of necessity be employed in laying down the principle of municipal home rule. Great care should be used in choosing the language to be employed. Professor Mc- Bain's paper shows the difficulties arising from the grant in terms of power to cities to adopt charters for their own govern- ment. The term " charter " is unfortunate in this connection. It implies the grant of power from superior authority and it would seem somewhat absurd to authorize a city to grant itself its own authority. In practice, the ordinary city charter contains three different kinds of legislation: first, the creation of the city as a local entity, granting a charter of incorporation ; second, the grant of powers to the municipal corporation, declaring what it may do ; and third, provisions regulating the exercise of its powers and the conduct of its municipal affairs. The last alone, the exercise of its powers and the conduct of its municipal affairs, is properly to be granted to the city. The right to be a city and the powers to be vested in the city must come from the sovereign state. It is in my opinion illogical to say that a city should have the right to determine the extent of its own powers. Its powers are granted and defined by the state. The advocates of home rule believe that the constitution should secure to every city, as an incident of being a city, full power over its own affairs. A city once vested with these full powers can de- termine for itself which of them it will exercise and how ; but (30s) 44 REVISION OF THE STATE CONSTITUTION [Vol. V the right to determine which of the powers granted to it shall the exercised is very different from the right to determine wha powers it shall possess. For these reasons the grant of home rule should not be in the form of power to frame a charter, but should in general terms confer power to regulate the city's municipal affairs. The framers of the present constitution of the state, in de- vising the suspensive veto over special city bills, had to find a phrase for describing what they meant by city bills. For this purpose they used the phrase, " laws relating to the property, affairs or government of cities." This phrase meets the require- ment of describing in general terms the sphere of municipal affairs and has received some judicial interpretation. It is, therefore, proposed to retain this description of the subject- matter of the home-rule power. The general grant of powers is in these words : " Each city and each village shall have full power to regulate matters relating to its own property, affairs and government, subject to this constitution and the laws of the state." The extent to which the home-rule power is to be sub- ject to legislative interference is more particularly provided for by subsequent provisions to be referred to later. This broad general grant of power should operate to re- verse the presumption of law heretofore established that a municipality, like a private corporation, has no powers other than those expressly granted and those incidental thereto, and to establish the opposite presumption that a city is presumed to have all powers over its own local affairs not expressly denied it by the constitution itself or by legislation validly enacted under its provisions. Lest this general grant of power be cut down by a grant of specific powers, excluding by implication all powers not enu- merated, it is expressly provided that " No enumeration of powers contained in any law shall be deemed to limit or restrict the general grant of powers hereby conferred." This general grant of power, if given full effect, contains within itself a grant of complete home rule. But it is desirable, if not absolutely essential, to aid in its interpretation by indicat- ing more specifically what kind of things are intended to come (306) No. 2] A HOME-RULE AMENDMENT 45 within the class of municipal affairs ; to provide means of exe- cuting the power granted, as also of restricting legislative inter- ference with it ; and to make more clear the line of demarkation between municipal functions and state functions. Accordingly, it is provided that the power of regulation is to be exercised by means of local municipal laws, which each city and each village is granted power to adopt and amend. The use of the term " local municipal laws " is not only more accu- rate than the term " charter," but will permit the city to legis- late for itself without first repealing its entire charter and adop- ting a new one. In order not to leave in doubt the general extent of the pow- er of local legislation, it is provided that the local laws so adop- ted shall be laws providing for the exercise of the powers granted by this constitu- tion or by the laws of the state and relating to the local afEairs and property of the city or village, the powers, duties, mode of selection, terms of office and compensation of all city or village officers and employes, the transaction of its business, the incurring of its obliga- tions, the acquisition, care and management of its property, includ- ing public utilities, and the government and regulation of the con- duct of its inhabitants and the protection of their property, safety, health, comfort and general welfare. This list of subjects of legislation may also be considered as in- cidentally giving some additional indication of the nature and extent of the power embraced in the general grant and is at the same time so broad in its terms as not to cut down the mean- ing of the general grant. This grant of power is not to be at the expense of the gen- eral legislative power of the state. It is not only expressly provided that "The provisions of this article shall not be deemed to restrict the power of the legislature to regulate mat- ters of state concern as distinguished from matters relating to the property, affairs or government of cities or villages," but even with regard to local affairs the legislature retains ample power of regulation by general laws. It is only with regard to special legislation concerning local affairs that there is any cur- (307) 46 REVISION OF THE STATE CONSTITUTION [Vol. V tailment of the power of the legislature. Such legislation is to be absolutely prohibited. All laws relating to the property, affairs or government of cities or villages must apply alike to all cities or all villages so that there can be no evasion by clas- sification; and evasion by mere appearance of uniformity is forestalled by requiring uniformity not only in terms but also in effect. Local municipal laws must in their nature relate to purely municipal affairs. They must not be allowed to interfere with any general policy of the state as declared by the legislature. It is expressly provided that they shall be subject to the gen- eral laws of the state. They will, however, supersede inconsist- ent provisions of local laws, and cannot be superseded by any subsequent act of the legislature dealing with local affairs, un- less such act is uniformly applicable in terms and in effect to all cities — that is to say, unless it embodies a declared state policy affecting all the cities of the state. The legislature is to be prohibited from regulating by any law, whether general or special, the amount of compensation of officers or employes of a city or village. In any given case, the power of a city to regulate a particular subject, assuming, of course, that it is a matter of local concern at all, will depend in the first instance on the question whether the subject is a municipal affair or a matter of state concern. If there is no state law in existence on the subject, other than the special legislation applicable to the particular city, or to the class of cities to which it belongs, the presumption may well be that it is a municipal affair which the city may regulate, at least until the legislature of the state lays down some general rule of policy on the subject. If, on the other hand, there is in exist- ence a general law of the state on the subject applicable alike to all cities throughout the state, the state law will prevail. It is only in a case where the state law relates to a particular city or class of cities that the question will have to be determined whether the subject-matter is a municipal affair or a matter of state concern, — whether the legislature has issued its command to the cities affected, which command in substance merely con- cerns their local affairs, or whether it has rather laid down some (308) No. 2] A HOME-RULE AMENDMENT 47 rule of state policy which happens to have an application only in particular places. If the latter (as an example of which one may suppose a state quarantine law applicable to New York city alone,) the state law will prevail, even though it is local in its application. If, on the other hand, the state law is local in substance as well as in application (as, for example, a law pre- scribing the organization of the police department in the city of New York,) then it cannot operate to deprive the city of its right to regulate its own local concerns. Thus the state is left free to legislate on matters of state con- cern by laws either general or special, and to legislate on mat- ters of local concern by statute so uniform in its application as to embody a rule of state policy with respect to the cities of the state. (An example of the latter class might be a law pro- viding that no police officer in any city of the state should be on duty for more than eight hours at a time.) The restriction on the legislative power of the state and the possible field of controversy is narrowed down to cases of legislative interference with purely local concerns by special and local law. It is proposed to retain the power given to the legislature and the duty imposed on it by the present constitution of providing for the organization of cities and villages and of restricting their power of taxation, assessment, borrowing money, contracting debts and loaning their credit so as to prevent abuses and to protect future generations, and to add the power and duty of . providing for villages becoming cities ; but all such regulations and restrictions must be made by uniform general law, appli- cable in terms and in effect ahke to all cities or all villages. The very freedom of action reserved to the state legislature — the fact that the grant of home rule to cities is not at the ex- pense of the legislature's power to guard the interests of the state as a whole — will conduce to a liberal construction of the power of home rule granted to cities. If it is made clear that the people have intended, by constitutional enactment, to grant to cities a full measure of home rule, while at the same time the legislature retains power of general legislation, no court will feel that the safeguarding of the state's interest makes it neces- sary to cut down by construction the power granted to cities. (309) 48 REVISION OF THE STATE CONSTITUTION [Vol. V When all question as to the competency of the legislature to regulate matters of local concern can be avoided in all but ex- ceptional cases by adopting a general law operative throughout the state, the courts are likely to look with just suspicion on any special or local legislation and to incline to liberality in holding its subject-matter to be a municipal affair. The experience of other states with prohibitions of special legislation, which have uniformly been evaded by the legisla- tures and the courts, has been heeded in framing the proposed amendment, and the condition which that amendment will bring about is radically different from the situation which led to the nullification of former prohibitions. The reason why these prohibitions failed was that the cities could not get along with- out special legislation. The population, the location, the needs of every city differ, more or less, from those of every other city. While the policy of the state may be the same as to all, each city needs its own regulations concerning its local affairs. Regulations framed for one city will no more be proper for another city differently situated than a suit of clothes made for one man will fit another of different build. When the people of some of the western states, aiming to prevent legislative interference with the affairs of cities, sought to prohibit special legislation, without at the same time empowering the cities to adopt the necessary local regulations for themselves, they were ignoring the needs of the cities themselves. Literally interpreted, these constitutional prohibitions would have put all the cities of the state into a strait-jacket fitting none of them and would have prevented all progress. In order to avoid this absurd and unintended result, the courts were constrained to sanction special legislation adopted under the guise of dividmg cities into classes, sometimes containing only one city, or in language so evasively drawn as in its terms apparently to apply to all cities, but in reality operating only in the city intended. These decisions merely show how a declared rule of law, if laid down in disregard of the needs of men, is bound to be nullified by evasion. The present plan proceeds upon an entirely different princi- ple. It recognizes the need of special legislation. Its very (310) No. 2] A HOME-RULE AMENDMENT 49 foundation is the right of every city to manage its affairs in its own way. It gives every city the right to adopt its own special legislation ; and in order to insure the unimpeded exercise of this right, it prohibits the legislature from passing special laws concerning local affairs. This, however, is not a prohibition of special legislation ; it is something very different, — a transfer of the power of special legislation over local municipal affairs from the legislature to the people of the cities themselves, to whom it properly belongs. Here is no disregard of local needs, but, on the contrary, the fullest recognition of local needs and pro- vision for satisfying them. Consequently there is no such situ- ation as led to the nullification of absolute prohibitions of special legislation, but rather there will be every incentive to safeguard the power of local self-government granted to cities by enforc- ing strictly the prohibition of legislative interference, which would operate to nullify it. The division of cities into classes, which in other states has been used chiefly as a means of evading prohibitions against special legislation, aqd which in the New York constitution of .1894 was adopted in connection with the suspensive veto, has proved of no value and is to be done away with. Legislation on matters of state concern should in most cases be uniform throughout the state. Special legislation to meet the varying needs of different localities should have its source in the will of the people of the localities affected. If state and local officials once get accustomed to the idea of having local affairs dealt with by the localities themselves, leav- ing the state legislature free to deal with matters of state policy, the practical benefits to the state and to the localities of muni- cipal home rule will, it is believed, be realized ; and legislative practice will be so adjusted to the legal requirements of the situ- ation as to make almost entirely unnecessary controversy and litigation regarding the extent of the home-rule power. This can readily be done under the proposed amendment by the simple expedient of making state laws general in terms and uni- form in application. There can be no question as to the validity of a state law drawn in this way ; and controversies as to the validity of local municipal laws will be confined to an inquiry as (311) 50 REVISION OF THE STATE CONSTITUTION [Vol. V to their consistency with general laws so adopted, — a question which is likely to arise much more frequently at the present day with regard to any city ordinance. The field of doubt and litigation will thus be so reduced as to be practically neghgible. If, nevertheless, there shall remain some questions to be adjudicated by the courts before the precise extent and limits of the principle of municipal home rule are definitely established and understood, it should not be forgotten that if our cities are to have home rule, the principle of municipal home rule must be written into the constitution ; that the function of a constitution is to declare principles, not to apply them in detail to every possible case ; that for the application of political principles to specific cases we are in the habit of resorting to the method of litigation in the courts, where other countries resort to executive action or to the decision of administrative tribunals ; but that everywhere the same process of defining and fixing and putting into practical application political principles by applying them to specific cases as they arise is a necessary concomitant of political progress. It is only the country that stands still that can dispense with the need of constantly adjusting itself to changing conditions and that can avoid the discomforts neces- sarily incidental to that process. In authorizing the enactment of local municipal laws, some method for adopting such laws must be provided. This pre- sents a number of difficult questions. While it is now generally recognized that municipalities should have the power of local legislation for the satisfaction of local needs, there is as yet no general agreement on the method to be followed in adopting such legislation. The whole process of local legislation is too new and in its form too experimental to make it wise to estab- lish by constitutional provision a rigid and inflexible system which cannot be changed as experience may dictate. Then, too, a constitution should lay down principles, and should, so far as possible, avoid going into administrative details. On the other hand, if municipal home rule is to become not merely an announced principle, but an actual fact, the command of the constitution should be so clear and distinct as to forestall possible legislative evasion or nullification through failure of the (312) No. 2] A HOME-RULE AMENDMENT 5 1 legislature to act. While, therefore, it is impracticable to make the constitutional provision absolutely self-executing, it should be as nearly so as is consistent with the foregoing principles. Under the proposed amendment, local municipal laws will be drafted by commissioners appointed by city authorities or by convention of delegates elected at a special election by non- partisan ballot or by a convention composed partly of appointed commissioners and partly of elected delegates. The question of drafting any such law and of the method of drafting to be employed may be determined by vote of the people of the city at a special election called by petition ; or in the absence of such a petition, the drafting of such laws may be initiated by local officials; local municipal laws may be amended in simi- lar fashion. They may, by their terms, delegate ordinance- making power to local legislative authorities, who may, if it is so desired, be authorized from time to time to amend, modify or supplement by ordinance, resolution or by-law, provisions of the charter or other local municipal law. Every charter or other municipal law must be finally adopted by vote of the people ; but such a vote is not necessary for the adoption of ordinances, resolutions or by-laws adopted by the local legislative authorities under power delegated by such a law, except in so far as the law delegating the power may also make its exercise subject to referendum. Further details must be supplied by legislation. The legisla- ture is commanded to provide for carrying into effect the con- stitutional provision by general law to be adopted at the next legislative session after the adoption of the constitution. It is not likely that this command will be disregarded; but it is believed that any danger of its not being complied with is ob- viated by the prohibition against special legislation relating to local affairs. That prohibition is absolute and goes into effect immediately on the adoption of the constitution without further legislation. Consequently, with the amendment once adopted, no city charter can be amended by the legislature, nor until the legislature provides an effective and constitutional method for its amendment by the people of the city. This ought to result in such pressure on the legislature as will bring about the pas- (313) 52 REVISION OF THE STATE CONSTITUTION [Vol. V sage of the necessary legislation, even if it be supposed that the legislature might otherwise be insensible to the mandate of the constitution. The proposed amendment, it is believed, will afford a work- able, practical plan for granting home rule to the municipalities of the state and securing them against legislative interference, while at the same time preserving unimpaired the power of the legislature, freed from the duty of regulating the internal af- fairs of cities and villages, to legislate for the welfare of the state as a whole. APPENDIX TO MR. TANZER'S PAPER Proposed Constitutional Amendment State of New York 3d Rdg. SOS. Nos. 874, 1666. Int. 827. in assembly February 25, 1914. Introduced by Mr. Phillips — read once and referred to the Com- mittee on the Judiciary — reported from Committee on Revision with recommendations — ordered reprinted and engrossed. CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY^ Proposing amendments to article twelve of the constitution, relating to cities and villages, so as to regulate, legislation concerning them and guarantee to them the right of municipal self-government. Section 1. Resolved (if the Senate concur), That article twelve of the constitution be hereby amended to read as follows: ARTICLE XII. § I. Each city and each village shall have full power to regulate matters relating to its own property, affairs and government, subject to this constitution and the laws of the state. No enumeration of powers contained in any law shall be deemed to limit or restrict the general grant of powers hereby conferred. § 2. Each city and each village shall have power to adopt and amend local lavas not inconsistent with the constitution and general ^ Explanation. — Matter in italics is new ; matter in brackets [ ] is old law to be omitted. (314) No. 2] A HOME-RULE AMENDMENT 53 laws of the State, providing for the exercise of the powers granted by this constitution or by the laws of the State and relating to the local affairs and property of the city or village, the powers, duties, mode of selection, terms of office and compensation of all city or vil- lage officers and employes, the transaction of its business, the in- curring of its obligations, the acquisition, care and management of its property, including public utilities, and the government and regula- tion of the conduct of its inhabitants and the protection of their prop- erty, safety, health, comfort and general welfare. Such local laws and amendments thereto shall be known and designated as " local municipal laws" to distinguish them from local laws passed by the senate and assembly. Such local municipal laws shall be drafted by commissioners appointed by designated officers or official body of the city or village or by convention of delegates elected at a special elec- tion by ballots containing no party designations or by convention com- posed partly of commissioners and partly of delegates. A petition by electors of a city or village, in such number or proportion as shall be prescribed by the legislature, may require the calling of a special election to determine whether a local municipal law shall be drafted, and whether the drafting shall be by commissioners, by a convention of delegates, or by a convention composed partly of commissioners and partly of delegates, and the legislature shall provide by general law for such special elections. The legislature shall also provide means whereby in the absence of any such petition, the drafting of local municipal laws may be required by action of officers or official body of a city or village, and shall prescribe by which of the afore- said methods such local municipal laws shall after the taking of such action be drafted, or the legislature may direct that the method of drafting be determined by the electors at a special election, or by officers or official body of the city or village. Every local municipal law shall be submitted to the electors of the city or village for adop- tion after publication for a period and in a manner to be prescribed by general law, but no such period shall be less than three months. Every local municipal law so adopted shall supersede and repeal, so far as the city or village adopting it is concerned, all inconsistent pro- visions of any law other than general laws applying alike to all cities or to all villages. A local municipal law may delegate to officers or official body of the city or village power to regulate by ordinance, resolution or by-law any matter which may be the subject of a local municipal law; the drafting and adoption of such ordinances, reso- lutions, or by-laws shall be regulated by law and the provisions of (315) 54 REVISION OF THE STATE CONSTITUTION [Vol. V this article regarding the drafting and adoption of local municipal laws shall not be applicable thereto. The legislature shall, at its next session after this section shall become part of the constitution, pro- vide by general law for carrying into e;ffect the provisions of this sec- tion. § J. The legislature shall not pass any law relating to the property, affairs or government of cities or villages or one or more counties lying wholly within a city, which shall be special or local either in its terms or in its effect, but all laws hereafter passed relating to the property, affairs or government of any city or village or any county lying iDholly within a city shall be general laws and shall in terms and in effect apply alike to all cities or to all villages. § [ 1 ] ^. It shall be the duty of the legislature by such general laws to provide fox the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and in contracting debt by such municipal corporations and to provide by such a general law for the conditions under which and the method by which villages may incorporate as cities[ ;] . [and t] The legislature may by such general laws regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection, welfare, and safety of persons employed by the State or by any county, town, village or other civil division of the state, or by any contractor or sub-contractor performing work, labor or ser- vices for the State, or for any county, city, town, village or other civil division thereof [.], excepting that the legislature shall not pass any law regulating the amount of compensation of officers or employes of cities or villages or counties wholly within a city. § 5. The provisions of this article shall not be deemed to restrict the power of the legislature to regulate matters of state concern as distinguished from matters relating to the property, affairs or govern- ment of cities or villages. [§ 2. All cities are classified according to the latest state enum- eration, as from time to time made, as follows: The first class in- cludes all cities having a population of one hundred and seventy-five thousand or more ; the second class, all cities having a population of fifty thousand and less than one hundred and seventy-five thousand; the third class, all other cities. Laws relating to the property, af- fairs or government of cities, and the several departments thereof, are divided into general and special city laws ; general city laws are those which relate to all the cities of one or more classes ; special city (316) No. 2] A HOME-RULE AMENDMENT 55 laws are those which relate to a single city, or to less than all the cities of a class. Special city laws shall not be passed except in con- formity with the provisions of this section. After any bill for a special city law, relating to a city, has been passed by both branches of the legislature, the house in which it originated shall immediately transmit a certified copy thereof to the mayor of such city, and within fifteen days thereafter the mayor shall return such bill to the house from which it was sent, or if the session of the legislature at which such bill was passed has terminated, to the governor, with the mayor's certificate thereon, stating whether the city has or has not accepted the same. In every city of the first class, the mayor, and in every other city, the mayor and the legislative body thereof concur- rently, shall act for such city as to such bill ; but the legislature may provide for the concurrence of the legislative body in cities of the first class. The legislature shall provide for a public notice and op- portunity for a public hearing concerning any such bill in every city to which it relates, before action thereon. Such a bill, if it relates to more than one city, shall be transmitted to the mayor of each city to which it relates, and shall not be deemed accepted unless accepted as herein provided, by every such city. Whenever any such bill is ac- cepted as herein provided, it shall be subject, as are other bills, to the action of the governor. Whenever, during the session at which it was passed, any such bill is returned without the acceptance of the city or cities to which it relates, or within such fifteen days is not returned, it may nevertheless again be passed by both branches of the legislature, and it shall then be subject as are other bills, to the action of the governor. In every special city law which has been ac- cepted by the city or cities to which it relates, the title shall be fol- lowed by the words " accepted by the city," or " cities," as the case may he; in every such law which is passed without such acceptance, by the words " passed without the acceptance of the city," or "cities," as the case may be.] § [3]6. All elections of city officers, including supervisors and judicial officers of inferior local courts, elected in any city or part of a city, and of county officers elected [in the counties of New York and Kings, and] in all counties whally within a city or whose bound- aries are the same as those of a city, except to fill vacancies, shall be held on the Tuesday succeeding the first Monday in November in an odd-numbered year, and the term of every such officer shall expire at the end of an odd-numbered year. [The terms of office of all such officers elected before the first day of January, eighteen hundred (317) 56 REVISION OF THE STATE CONSTITUTION and ninety-five, whose successors have not then been elected, which under existing laws would expire with an even-numbered year, or ia an odd-numbered year and before the end thereof, are extended to and including the last day of December next following the time when such terms would otherwise expire; the terms of office of all such officers, which under existing laws would expire in an even-numbered year, and before the end thereof, are abridged so as to expire at the end of the preceding year.] This section shall not apply [to any city of the third class, or] to elections of any judicial officer, except judges and justices of inferior local courts. § 2. Resolved (if the Senate concur), that the foregoing amend- ment be referred to the legislature to be chosen at the next general election of senators and in conformity with section one of article fourteen of the constitution be published for three months previous to the time of such election. (318) LOCAL GOVERNMENT AND THE STATE CONSTITUTION ' MARTIN H. GLYNN Governor of the State of New York THE line of demarkation between the municipality and the commonwealth is being more clearly drawn to-day than ever before. The fact that the spheres of city and state are, and ought to be, separate and distinct is more generally recognized to-day than it has ever been. We are beginning to learn that the state government has problems of its own which should engage its entire attention and that cities can best trans- act municipal business without the assistance or the interference of the state. Just as the states have reserved the right to transact their in- ternal affairs without interference from the national government, so the cities are asserting the right to meet municipal problems without interference from the state. The powers that in the past have been yielded up to the state government by its cities are being reclaimed. Municipalities are no longer willing to await the pleasure of a distant legislature before instituting changes which appeal to the head and heart of their citizens. Cities of every class have awakened to the necessity of regaining the privileges which they conceded to the state before the individual interests of the city and state grew so far apart. With more than seventy per cent of New York's total popu- lation living in towns of more than 10,000 inhabitants, it is no wonder that the sentiment for home rule has crystallized into successful action. The cost of municipal government bears more heavily on the citizen than the cost of state government. He is more person- ally affected by changes in the community in which he lives /-.oad at the meeting of the Acaden:iy of Political Science, November 20, 19 14. (319) 58 REVISION OF THE STATE CONSTITUTION [Vol. V than by changes which affect the state as a whole. While the state protects him in his civil and political rights it is the muni- cipality, in largest degree, which regulates his comfort and de- termines the conveniences and opportunities which make for his progress and prosperity. The state therefore can well afford to give to its cities full power in purely municipal affairs. There are certain rights, however, which it cannot yield in our present form of govern- ment. Being charged with the duty of preserving the legal rights of its citizens, and being responsible for the public health and the public safety, the state cannot delegate to a municipality its powers in these matters. In the local administration of a city government, the munici- pality is properly supreme. The men who administer muni- cipal affairs are acquainted with the particular needs of their cities, they know what manner of administration is most accept- able to the majority of their fellow citizens, they understand local needs and local conditions. In any matter concerning the development of their city they are able to speak and act from personal information and accurate knowledge. Every motive of expediency, therefore, as well as every prin- ciple of justice, demands that local matters should be under the sole jurisdiction of local authority, just as matters affecting the entire state should be under the sole jurisdiction of the state government. There is more than a sentimental side to agitation for home rule, but that sentimental side demands consideration in a gov- ernment which is expressly founded upon the highest ideals of equity and justice. Just as the thirteen colonies had the right to revolt from a distant government, when that government re- fused to consider the needs and the rights of the colonies, so the municipalities of a state may appeal to the same principles of justice in their unwillingness to accept the authority of a dis- tant legislature, too much concerned with other matters to act with wisdom on municipal problems. Just as free men enjoy- ing a liberty which permits them to make the most of their abilities and opportunities can climb to heights unsealed by their less fortunate brothers, so free cities endowed with the right to (320) No. 2] LOCAL GOVERNMENT 59 work out their destinies without interference from any source may achieve a degree of progress and prosperity which cannot be secured in any other way. New York has gone far to liberate its municipahties from the leading strings of the state government. It has awakened to the wisdom of permitting its cities to attain their fullest growth, their greatest measure of healthy development. It has recog- nized the injustice of compelling its cities to kneel before its legislature for the right to make necessary changes in the administration of municipal affairs. Each year sees some new measure of freedom granted to the municipalities of New York ; each decade sees the principle of home rule more firmly entrenched in New York's laws. The present year has witnessed the enactment of a law which marks distinct forward step in the emancipation of New York's cities. The optional city-charter law passed by the legislature last March is built upon the underlying principle of home rule. It frees municipalities from the necessity of applying to the legis- lature for desired changes in their charters and gives to every city of the second and third class the right to choose the sort of charter that the majority of its voters want, without appeal to any outside authority. There is no need for me to recount the details of this law. The merits of the optional city-charter law should be ex- pounded by the men who secured it rather than by the man who combined manifest duty and honest pleasure in signing it. But I may be permitted to say that the effect of the optional city-charter act will not only be to give a deserved measure of freedom to New York's municipalities, but will relieve New York's legislature of duties which are all the more onerous be- cause they are undesired. Under the optional city-charter act the municipalities of the state will at last be able to live under the precise form of muni- cipal government which their citizens believe best fitted to their needs. They will be able to select a commission form of gov- ernment or a city-manager type. And while this freedom of selection is not an absolute guarantee of good government, it does make possible the establishment of the only kind of gov- (331) 6o REVISION OF THE STATE CONSTITUTION ernment in which Americans believe, — government in accord- ance with the ideas of the governed. Great as are the problems which press upon the government of the state, they are as nothing to the problems which confront our cities. The state governments of America have, in the main, been conducted with a fair degree of honesty and effi- ciency, but the critics of America declare that the government of our municipalities has been a conspicuous failure. Instead of resenting this criticism, which comes from many quarters and in many ways, it is the duty of all good citizens to remedy conditions which make this criticism possible. Because any remedy must proceed from within the municipalities themselves, it is only proper and just that the state should give to its cities the power to take any proper means to reform and perfect their civil administration. The state of New York is doing its part. It is giving to its cities the right to adopt any one of a wide variety of means in their struggle for better government. The real battle, however, must be fought within the city walls ; the real victory will be achieved only when the citizens of each municipality realize the full importance of good government and refuse to be satisfied with any government which does not measure up to the de- mands of American citizenship. The rights of New York's cities have been asserted chiefly through legislative enactments. It is high time that they should be protected by the state constitution. The changes in the atti- tude of the state constitution toward local government should be made in the spirit of the movement toward greater municipal freedom that I have endeavored to outline. Every citizen is conscious of the forces at work to free our cities from the chains of an outgrown adjustment of powers be- tween city and state. It is to be hoped that this widespread consciousness will receive concrete and judicious expression in the organic law of New York. (322) THE CITY AND THE STATE CONSTITUTION ' JOHN PURROY MITCHEL Mayor of the City of New York WE have heard this evening a great many extremely inter- esting speeches. They have all been very serious, and I should hesitate at this late hour to impose upon you another serious speech if it were not for the fact that this is no ordinary dinner, but a serious gathering to consider the most important question before this state and the people of this city at the present time. I shall endeavor to follow the admoni- tion which your chairman addressed to those who may submit suggestions to the state convention, and be as concrete and specific as I can. It seems to me that of all the phenomena of modern civiliza- tion, the most conspicuous is the marvelous growth and devel- opment of cities. There we find the most complex problems of social life; there the greatest burden is laid upon the gov- ernment ; and there we find the greatest opportunities for that effective service that government alone can give. City prob- lems, at the same time that they are the most complex, are the most far-reaching in their effects. If city development be throttled, rural districts suffer, because trade is ruined. Our cities control the port facilities of our nation. Stop that de- velopment by hampering legislation and you put an end to commerce. Efficient city government comes only with responsibility for results, and that responsibility, to my mind, should be upon the cities and the people of the cities. To-day that responsibility is passed between half-empowered local authorities and irrespon- sible and controlled legislatures. The question which is most commonly put is, can the cities be entrusted with this meas- ure of responsibility in the control of their own affairs? I ' Address at the dinner meeting of the Academy of Political Science, November 19, 1914. (323) 62 REVISION OF THE STATE CONSTITUTION [Vol. V declare that the regeneration of our cities, and their re- birth in democracy is to-day the most hopeful sign to be found in American life. Twenty years ago the cities of America fur- nished the most apparent tangible evidence of the failure of democratic institutions. To-day everywhere our cities are rea- wakening to an understanding of their own problems and a sense of their own responsibility, and are preparing their gov- ernmental machinery for new measures of productivity and of service. For more than thirty years party platforms in this state have contained declarations and pledges of home rule. For more than thirty years triumphant parties have ignored or spurned those pledges. Home rule for cities has been the program of both the great parties in this state since 1882, but home rule has been accorded to the cities of this state by no party. Wherein has lain the failure to accord home rule? It seems to me in the failure to draw a distinction, a clear line of de- markation between those acts of the city which are its acts as a governmental agency, an agent of the sovereignty of the state, and those acts which are its acts as a local corporate entity, a social unit ; and then, after having laid down that line of de- markation, to provide for local regulation of local affairs without legislative interference, to reserve to the state and the legislature powers in state-wide matters, and to limit the right to increase the financial burden of the city in those acts which are its as a governmental agency, without the consent of the city. We have developed in all our states the practice of rushing to the legislature whenever there has been any doubt as to the power of the cities in municipal affairs. The practice in the courts has been to resolve those doubts almost uniformly against the cities. Courts have been reactionary in their decisions in these cases — probably to protect the people and the cities against the acts of corrupt officials; and a presumption has arisen against the municipality in every activity which is not secured by long-settled custom. The usual provision in state constitu- tions against special acts — which, by the way, is not found in the constitution of New York — has become useless because of judicial construction. Then we have legislation enacted pro- (324) No. 2] THE CITY AND THE STATE CONSTITUTION 63 viding for classes of cities. The courts have frustrated the provision against special acts by shutting their eyes to the facts and looking only at the theoretical possibility of a city coming into the class affected by a particular act through the growth of its population, although practically there would be no probability of any city, except the one affected by the particular piece of legislation, ever growing, within the period of the life of the constitution, to the class to be affected by that legislation. Many people think, I know, that this narrow construction by our courts is not blameworthy, because the limitation on the powers of the cities and ofiRcials has been valuable as a protec- tion. It would seem to me a great deal better not to hamstring our cities or the ofificials of our cities, but rather to give them a wide latitude and a full measure of power, and then to protect and safeguard the people by a sane measure of recall hedged about and again protected by wise safeguard. Of course, it is always important and essential not to strip the state of control of purely state matters. That principle we should always keep before our eyes, and we shall keep it if in this state convention we define and lay down that line of dis- tinction between the acts of a city as a governmental agent and its acts as a corporate entity. I have often thought that in future, state constitutions may provide for a central administra- tive body of control. If that happens, as it must happen — perhaps not in the near future, but I think it will inevitably happen some day even in this state, — the sphere of the state legislature will be necessarily restricted. Bureau heads or de- partment heads will initiate money legislation and the state business will be put, as it ought to be, upon a budget basis. If that happens, cities will come under the control of that central administrative body; but until it happens our cities must and will remain under the control of the state legislature. In the various states that have attempted to secure some measure of home rule, various devices have been adopted. There is the prohibition against special acts, nullified, as I have said, by judicial interpretation. There is the classification of cities with a provision for uniform types of charter which cities can adopt, organizing under these classifications. There is the (325) 64 REVISION OF THE STATE CONSTITUTION [Vol. V prohibition against an attempt to regulate the internal affairs of cities, which has not been very effective. Then, and this is a late development, there has been the power granted — as in Ohio, Oklahoma, and Washington — to cities to draw and adopt their own charters. This has been the longest step in advance ; but as this power has been granted in those states the plan contains the great defect that amendment of the charter, so adopted, is just as difficult as the adoption of the original charter itself, and therefore the charter has become rigid. Another device has been to prohibit legislatures from providing by special act for the creation or appointment of local officers. And then there is the provision which is, I believe, peculiar to our own state, namely, the mayoralty veto, a qualified veto given in the case of special acts. Now, to meet the suggestions of the chairman, and as con- crete suggestions to secure the kind of home rule for the cities of the state in which I, for one, believe most firmly, I should suggest that the constitutional convention first delimit, with as much detail as the subject admits, the sphere of the municipal- ity's governmental-agency activities and its purely local or cor- porate activities; that the constitution prohibit interference by the legislature or the central administrative body with the local or corporate part of the cities' activities ; that the constitution make a broad grant of all corporate powers in addition to those which the cities now have, such as may conduce to the general welfare of the people, their convenience, their necessities, or the convenient extension of the corporate activities of the city, — the only restriction upon that broad grant being that the acts of the cities thereunder shall not conflict with the consti- tution of the United States, with the constitution of the state, or with the general laws of the state relating to governmental- agency matters, or the general laws of the United States. I would have the constitution specifically include in that grant of power the right on the part of the cities to acquire, to own, to construct, and to operate public utilities ; and I should further provide that the cities shall be the sole judge of what shall con- stitute and be a public utility to be so acquired, constructed or operated ; and I should distinctly provide that the presumption (326) No. 2] THE CITY AND THE STATE CONSTITUTION 65 in the interpretation of that grant of power shall be in favor of and not against the cities. Then, further, I should limit general laws to matters incap- able of delegation to cities, and as to special laws relating to governmental-agency acts, I should retain the mayoralty veto, strengthened so that to override it would require the same number of votes in the legislature now required to override a governor's veto. The powers of the cities, it seems to me, should be limited in certain respects, namely, as to the limit of indebtedness that they may incur, as to the rate and amount of taxation that they may levy, as to the power to lend their credit to private per- sons or to corporations — as the present constitution so limits in those respects ; but in the last I should limit it even more spe- cifically than it is at present limited. Then, as Mr. Howe has said, I should give to these cities of ours in this state the right to make their own charters through commission and referendum, as in the Ohio plan. I should do it through non-partisan voting, as provided for under the Ohio constitution, with the determination, at one and the same elec- tion, upon, the question whether a new charter is to be framed, and upon the personnel of a commission to frame and present that charter. The defect in the Ohio plan is serious, and I will touch upon that in a moment. The city's charter, as has already been said tonight, should be its constitution. It should be a brief grant of power, but a broad grant of power, capable of amendment easily, but pro- tected against sudden and vicious attack. It should be in two parts : first, a general grant to be the organic act ; and second, a body of administrative rules which should bear the same relation to the organic act as the by-laws of a corporation bear to its certificate of incorporation ; and those administrative rules should be capable of easy amendment by the local legislature, subject again to the mayoralty veto. Further, I should suggest for the consideration of the constitu- tional convention the provision that any local officer, however he may be removed, or rather that the successor of any local officer, however that local officer may be removed, may be (327) 66 REVISION OF THE STATE CONSTITUTION [Vol. V chosen or appointed only by the local electorate, or by the local authority, or by the local legislature. There is a provision in the present constitution which may secure the cities in this matter at present, but it is not without question. A provision such as that would prevent the cities of our state from being subjected to the dangers involved in the kind of raid which has been recently made, and is still under way, on the part of the state civil service commission upon the civil service com- mission of the city of New York. Then I should further provide that the state shall not inter- fere with the governmental-agency activities of the city by im- posing a financial burden upon the city. The state must retain control of those matters, but when dissatisfied with the conduct of business by the city in dealing with these matters, it reserves to itself the power to take away entirely the administration of those matters from the city and take it back into its own hands,, as, for example, in the matter of the enforcement of the crimi- nal law by the police force. A restriction, it seems to me, should apply to every form of governmental activity that the municipality may engage in, so that neither the pay of men, nor the number of the force in any department or bureau or subdivision of the city engaged in what is a state as distinguished from a local function and activity, may be increased by the state legislature against the will of the local authority or the city. - These are the concrete suggestions which I make tonight without prejudice as to any further suggestions that the city may see fit to present to the constitutional convention. The establishment of efficient and genuine democracy in this country has been of slow evolution. Independent nationality was achieved one hundred and thirty-eight years ago through the War of the Revolution, but it took the terrible struggle of the Civil War to establish universal human liberty throughout this country. And now, after fifty years more of struggle and of evolution and of progress, I trust and I believe that we are about to re-democratize our institutions, to re-acknowledge and to re-estabhsh those ancient rights of local self-government and municipal autonomy that found their first expression and their (328) No. 2] THE CITY AND THE STATE CONSTITUTION 67 origin in the earliest recorded days of English history, that were brought over here to this country by the first English colonizers, as much a part of their inherent rights as the right to breathe itself, and to be surrendered no less stubbornly ; which on the adoption of our fundamental law remained in full force and effect except as specifically limited therein, but which since that day have been circumscribed, limited and reduced until the cities of this country are neither self-governing nor autonomous. If the cities of this country are free to work out their own destinies in their own way, untrammeled by legislative inter- ference, I entertain the hope that they will soon become what they should long since have been, the dynamic centers of the democracy and the progress of our great republic. (329) HOME RULE FOR CITIES' DELOS F. WILCOX IN reading Professor McBain's paper, it occurred to me that, in common with most other home-rulers, he had been mis- led by the fact that we usually personify our cities as females and had come to the conclusion that government is clothes ; that a municipal home-rule charter is a code of fashions. Ever since reading the celebrated witticisms of Professor Teu- felsdroeckh on the subject of clothes, I have had the greatest respect for them. They are of the greatest importance. It is especially important for us to have such clothes that we can work in them. As you know, some clothes make work very ' difficult, while others make us very uncomfortable unless we work while we have them on. It is from this point of view alone that the discussion of the clothes, the fashions, the forms of municipal government, as an essential factor of home rule, is important. I think that more important than the right to choose between the commission form of government and the city-manager plan, more important than the right to frame a charter controlling the details of special assessments, the organ- ization of the police force, and so forth, is the right to do things. The fundamental question in this home-rule proposition is this : Shall we continue the American policy from which we have been trying to get away, in our academic discussions at least, for the past twenty years, of considering that municipal- ities have only those rights which are specifically expressed in their charters, granted by the legislature ; or shall we reverse that process and give to cities, by a broad grant of general power, applicable ahke to cities which frame their own charters and to other cities, the right to control their local affairs? I confess that it is not easy, as Professor McBain has said, actually to formulate a home-rule clause that will prevent the cities from becoming imperia hi imperio, and at the same time ' Discussion at the meeting of the Academy of Political Science, November 20, 1914. (330) HOME RULE FOR CITIES 69 prevent the legislatures of the states from unduly interfering with the exercise of municipal functions. Two or three days ago, in Baltimore, the committee on mu- nicipal program of the National Municipal League had a meet- ing, and as Professor Lindsay asked me to discuss this question somewhat from the point of view of that committee, I want to read to you the declaration of powers which that committee tentatively recommended for inclusion in the constitutions of the states. Though as yet unable to agree upon the specific restrictions to be placed upon the exercise of these powers, we were able to agree that the cities should, to begin with, have a broad, sweeping, general grant, somewhat as follows : Cities and villages shall have, and are hereby granted the power to borrow money and levy taxes and assessments; to control, per- form and furnish all public services, and appropriate or otherwise acquire, hold, manage, control, lease and dispose of property, either within or without their corporate limits, for such purposes and for the protection and preservation of public improvements, by excess condemnation, or otherwise ; to issue and sell bonds on the security of such property, or of the earnings thereof, or of both ; to adopt and enforce local police, sanitary and other similar regulations, not in conflict with general laws ; to do whatever they inay deem neces- sary or proper for the safety, health, convenience and general welfare of their inhabitants, and to exercise all other powers of local self- government. It seems to me that we ought to insist in this state, as in any other state where home rule is a serious issue, upon putting into the constitution some general grant of powers at least as specific and comprehensive as this one. No doubt we shall have to formulate some modifying clause. In the first place, unrestricted home rule may run amuck, in that the cities may try to arrogate to themselves those things which are properly state functions. They might even try to control matters of crime, which are properly controlled by the state law, and in the regulation of which the entire state has a fundamental in- terest. In the second place, with absolute home rule, there is danger that the cities in this generation may give away the (331) 70 REVISION OF THE STATE CONSTITUTION [Vol. V treasures of future generations. Therefore, home rule must be subject to two kinds of restrictions ; one, to protect the people of the state, and the other, to protect future generations in the city itself. I want to read you a tentative provision covering the first of these difficulties, which, however, is not presented with the authority of the National Municipal League committee, because, as I said, thus far we have been unable to agree upon just what should be done in the way of restrictions : Such powers shall not be exercised in conflict with the provisions of this constitution [referring to possible limitations in other portions of the constitution] and shall be subject to such specific limitations and restrictions as may hereafter be imposed by general law, ap- plicable alike to all the cities, or to all the villages of the state; but the enumeration of particular powers herein, or in any general law, shall not be deemed to limit or restrict the general grant of powers herein conferred. Under this provision cities, having received a full grant of powers, may exercise the initiative in doing anything that they desire to do, or that they deem for the benefit of their inhab- itants. Then, perhaps, it may safely be left to the legislature, representing the people of the entire state, to enact restrictions upon the activity of all cities, whenever any particular city shows by its eccentricities that it is necessary to do so. The theory is that when the cities start with a complete grant of powers it will be extremely and increasingly difficult for the leg- islature to withdraw from all the cities of the state any powers which they might properly exercise ; that the legislature will be restrained by the public opinion of the state and by the united power of the cities of the state from improperly limiting the powers granted by the constitution. No one can tell just how this plan would work in practice, but if this power to place limitations upon home rule by general law were made subject to the referendum so that no legislature controlled by a boss or a partisan machine would have the au- thority to take away any powers from the cities without having that legislation subject to the popular veto, this power conferred (332) No. 2] HOME RULE FOR CITIES 71 upon the legislature would not seem to be an unsafe grant. The cities ought to be endowed with the broadest powers and duties of home rule, and then if the people of the state desire subsequently to limit these powers in specific ways, at particular times, they should have the right to do so. The only other point I wish to speak of to-day, and this was not touched upon at all in Professor McBain's paper, is with reference to the protection of the future. I know that the Citizens' Union, in preparing its campaign issues for constitu- tional convention delegates, put down, as one of its planks, a demand for a provision in the constitution forbidding the grant of perpetual franchises. I agree with that, but I feel that a prohibition of the grant of perpetual franchises means substan- tially nothing, unless some limitation a long way short of perpetuity is required. In our constitutional law, we ought to make some provision limiting the grant of franchises — to refer to that subject alone — in such a way as to preserve to every generation of electors in every city, the right, without undue handicaps, to undertake the acquisition, ownership and operation of their utilities, if they so desire ; and of course it is wholly impossible to preserve to the future this means of home rule, if we leave the cities of the present day so much home rule that they can give away their streets forever, if they choose. Municipal home rule should be limited to the right of the cities in this generation to con- trol the affairs of this generation. ROBERT S. BINKERD Secretary of the City Club of New York I feel that Professor McBain has performed a very real and friendly service to a great cause in setting forth the diffi- culties in the way of its achievement. We must be per- fectly clear as to what conclusions are to be deduced from the experience which he has recited for us. It seems obvious that the insertion of a few loose sentences in a state constitution does not establish a stable system of municipal government, free in all that concerns municipal (333) 72 REVISION OF THE STATE CONSTITUTION [Vol. V affairs. It must be equally plain that the constant attempt absolutely to eliminate the legislature transfers the whole prob- lem to the courts, with results not in the least satisfactory. This line of endeavor also leads us to no kind of solution. The little group of men in this state who have made the term " municipal home rule " have the meaning and vitality attained by it in the last few years have realized this fact from the very start. We have realized that the great systems of stable home rule in Europe are founded not upon constitutional provisions but upon legislation, and we should have been willing to accom- plish our entire program in this state by legislation were that legally possible. Far from pursuing the loose theories, to call them no worse, followed in some of the western states, we have pursued a diametrically different policy. The West has placed its entire emphasis upon the right of a city to control the form of its municipal organization. Those of us in the state of New York who have been working on this problem recently have put our whole emphasis upon the fact that home rule is essentially a question of the breadth and sufficiency of the legal powers with which a municipal corporation is clothed. Therefore, long before we thought of raising seriously the question as to the form of municipal organization, we sought to establish, for the first time in the history of the state, a common pool of mu- nicipal powers which each city of the state shared with every other city. That was the object and the partial accomplishment of chapter 247 of the laws of 191 3. It is not possible, without constitutional change, to pursue this program to its ultimate conclusion, for these reasons : First, the rule of construction regarding municipal law has to be changed, so that instead of everything being construed as against the probability of a city having power to do anything, the municipality shall be assumed, prima facie, to have power. In order to accomplish that exact reversal of the rule, of con- struction, we must amend our constitutions. Second, though we should not in the least seek to eliminate the exercise of the legislative power, either in matters of state concern, or even in the definition and re-definition and expan- (334) No. 2] HOME RULE FOR CITIES 73 sion of the municipal empowering act, yet we do need by consti- tutional definition to confine the action of the legislature to gen- eral municipal law. Once deprive the legislature of the opportunity to treat a par- ticular city in a particular way, as though it had absolutely no reference to a municipal system in existence in the state, and we are entirely willing to take our chances with the legislature, because we know perfectly well that if the forty-nine cities of this state have a common interest in an identical list of powers, conferred upon them by the legislature, the legislature cannot invade that pool of powers except over our dead bodies. Third, we need constitutional change, because the decisions of our highest court have been exceedingly technical upon the question of what is and what is not a delegation of the lawmak- ing power. In order to stimulate a highly desirable local initiative in re-framing the forms of our municipal organization, so that this group of powers may be well exercised, we need to clear up this question, so that the state may be able to permit the people of its cities to devise and to change their city char- ters. The above is all that we seriously require in a constitutional way. I believe that Professor McBain will agree with me that the pursuit of this policy eliminates the most troublesome ques- tions which have arisen in the general municipal experience in the United States, and that our decision to trust to the legislature the legislative power, provided it is confined to real, general legislation affecting our cities, is a safe and sane method of bringing about municipal home rule. WALTER T. ARNDT Executive Secretary, Municipal Government Association of New York State So much has been said about the powers of cities, and the legal and constitutional aspects of the municipal-home-rule problem, that I am not going to address myself to that at all. I think there are some phases of the home-rule movement, however, some points in the struggle that we have been waging in this state for municipal home rule, that may well be empha- (335) 74 REVISION OF THE STATE CONSTITUTION [Vol. V sised at this time, because they have a very direct bearing upon what we may expect after we succeed in writing into the con- stitution a broad, far-reaching home-rule provision. There is more than a grain of truth in the proposition that municipal home rule, its practice and its application, depends almost as much on men as on measures, and it is this personal aspect of the thing, the personal and political aspect of it, that I want to consider. The personal equation certainly does enter into the home-rule question just as it must enter into any problem where there re- mains a certain amount of discretion in the enforcement or limitation of statutes. To some extent, this has been indicated in the paper of Professor McBain, who has shown that there is a great deal of difference in the actual degree of home rule enjoyed in the several states, the provisions in whose constitutions would seem to indicate that they possessed an equal share. Home rule, to be effective, must be something more than a theory or set of principles. It is not enough to write a strong home-rule provision in the constitution, and follow it up with the enactment of laws based on that provision. That, of course, is necessary; we could not have real home rule without it; it is for that we are fighting in this state now. We must insist that these principles be incorporated in statutory form ; they must be as far-reaching as possible, and as clear and explicit as they can be made. But the most far-reaching provision will be of little real value in solving the great problems of municipal home rule unless the principles are practised. Practice is the personal aspect; that is where the personal equation comes in. It is this personal equation that we must depend on to see that the home-rule provision, once it is incorporated in the constitu- tion, does not become a dead letter. We have got to wipe out once and for all from the minds of the men who administer the law the idea that the presumption is in favor of the power of the state in every debatable crisis, just as surely as we have to wipe off from the statute books the presumption which is now given the force of law. I believe that we can accomplish this result. I believe that the lawmakers and the municipal authori- (336) No. 2] HOME RULE FOR CITIES' 75 ties are tired and digusted with the old system, the system that has probably given rise to more serious problems of administra- tion, and to more waste and extravagance than any other in the administration of our statutory law. Few men to-day will go so far as to say they do not beheve in municipal home rule. As a general proposition, they all agree they do believe in it, but they are very apt to add an " if " or a " but " that changes their whole meaning, and it is our particular mission to eliminate those " ifs '' and " buts." The campaign we have been waging in behalf of muni- cipal home rule in this state for the past few years has been necessarily a campaign of education ; but we have not been, happily, dependent entirely on the logic of our arguments. We have been helped by certain elements or factors which are worth considering and analyzing now, as they must be considered and taken account of later, after we have been successful in writing a home-rule provision into the constitution. During the past three years, in connection with the campaign for home rule conducted by the Municipal Government Associa- tion, I have had an opportunity to consider these factors at close range. They are all political and they are all practical. I might say they are all personal. I refer to these three elements in particular : the attitude of the municipal authorities ; the attitude of the party leaders, par- ticularly the party bosses; and the attitude of the lawmakers. The attitude of the courts, of course, is a determining factor in the proper and successful enforcement of any constitutional provisions, where there is placed on the courts the burden of deciding the. scope or extent of any law passed under the home- rule provision ; but that can be left out of consideration here for the reason that its bearing is rather on the construction of the statute as passed, than on the influences that make or may make such a statute practical and possible of enforcement. First, take the point of view of the local boss, the political leader, if you will. It is, perhaps, the least important of the three, and possibly the least worthy of serious consideration. Yet as part of the personal equation it is important. His organization or machine will thrive, must base its plea for the (337) 76 REVISION OF THE STATE CONSTITUTION [Vol. V favor of a local electorate on what it can do for the city ; on the sort of administration that the officials it puts into office can give. Slowly but surely the local boss has come to see that he can accomplish more, that the officials his organization puts into office can make a record of real achievement more easily, if they themselves have the power to do things. He prefers to shoulder the responsibility if he may have the in- creased power. If he must depend upon the legislature, if he has to go to Albany every time he wants anything — and I am considering this purely from the selfish and narrow point of view of the practical politician — anything that he thinks he needs to help out his local party machine, he meets certain difficulties at once. The legislators from his district may be of opposite political faith, in which case he cannot accomplish what he wants through them unless he can prevent their seeing the motive behind his desire. If he has legislators that he can command, and sends them to Albany with laws that he wants enacted, then he is confronted by another difficulty. The legislature may not hap- pen to be of his political faith, and, even if it is, he has to start in, or his representative at Albany has to start in, on a long lobbying program of dicker and trade and bargaining to get what he is after. If he lacks influence, or if he is unable to strike a bargain, he is very likely not to get it in the end. And after all this there is the governor's veto to consider. Thus the municipal boss has found out that it is difficult to obtain through Albany anything that will help the local machine. Purely from the personal and partisan point of view, therefore, he is inclined to be an advocate of home rule. The importance of this to us is that we can probably count on the help and friendship and interest, in putting through proper home-rule provisions, of the very individual whom we might for many reasons expect to be the last man in the state to agree that cities ought to have home rule. Then take the problem of the local municipal official with whom inability to " do things " is an even more serious difficulty than with the political boss, because he has certain things to ac- complish, and it is more than likely, after he has been in office (338) No. 2] HOME RULE FOR CITIES n a little while, that he finds he cannot accomplish them without additional power. He is handicapped in every possible way, and at every step. A thousand problems probably arise in the administration of even the smaller cities of the states every year where some official sees something that needs to be done and tries to do it; where the mayor wants to put a certain policy into operation : where the head of one of the departments wants to enlarge his powers in a perfectly proper way. He finds that he cannot do it, or, at any rate, he does not know whether he can do it or not, which amounts to the same thing. For, under the existing system, wherever there is any doubt about the power of a city, the only safe way to do, and the practice that is invariably followed, is to go to Albany and try to get the leg- islature actually to grant the power, so that there may be no question of its existence. This difficulty has been brought home so emphatically and vitally to every mayor in the state that at present we find the mayors of the state virtually unanimous in their demand for home rule. They have a strong organization known as the State Conference of Mayors. That conference is made up for the most part of practical politicians ; men with no very definite ideals or ideas, in many respects, as to civic problems or politi- cal principles. They are, nevertheless, facing a hard problem of administration, and no matter what the impelling motive may be, there is not one of them who does not want to make a record as mayor. There are few mayors, of course, who have not enough interest in their city to want to benefit it, yet they find with the cities hobbled as they are it is almost impossible ; therefore they too have come to see the vital necessity for a greater degree of municipal home rule. Thus they are in- fiuenced, and influenced strongly, to support the home-rule proposal, and in this state it is a matter of great importance to the home-rule movement that the mayors in their annual con- ference have, for two years past, advocated the very constitu- tional amendment which Mr. Tanzer has framed, and which the Municipal Government Association has put forth. Finally, as a factor in this situation, there is the legislature, the lawmakers. We usually assume that the legislature is the (339) 78 REVISION OF THE STATE CONSTITUTION [Vol. V chief stumbling-block in the way of home rule ; that it is its jeal- ousy of its own powers which prevents its delegating those pow- ers to others. As a matter of fact, that is probably, and has been, to a large extent, true, but as legislation has increased in volume — and it has increased enormously in this state, — the proportion of local legislation to the whole body of laws con- sidered has increased even more rapidly, and the legislature finds itself absolutely swamped with local laws, local bills, which it is compelled to consider. Of course it cannot consider this mass of proposals as a body, in any intelligent manner. It has to take somebody's word for something. The members are tired of barter and trade on these matters. It used to be thought an excellent thing for a member to go to Albany with his satchel full of measures that he could trade for the support of other legislators. He used to have the notion that he could easily get his measures through in that way, but he soon found that there were too many slips in such a method. If he failed he was compelled to go home empty-handed and explain to his constituents. If he has not been able to get the legislature to validate the bonds of his home city, to authorize the construc- tion of a bridge over a certain creek, or appropriate money for a stretch of state road in his district, the farmers are up in arms against him for that failure. Explanations count for little. They may want a new primary law or a workmen's compensation act, but not at the price of local improvements. So he discovers that a system that makes him responsible for the passage of a measure in a body where he has only one vote out of a hundred and fifty is not entirely satisfactory. He comes to consider it a burden and not a help, and he is glad to get rid of it. We have found in the last two years, in our work in the legislature, that the members of the legislature are rather eager to support some proposal that will tend to relieve them of this burden. Therefore I think we have the assurance that we shall have the lawmakers with us, not only the present legislators, but all those that have been trained in lawmaking within the last decade. All this promises well for the carrying out, both in letter and in spirit, of any home-rule mandate contained in the new con- stitution. (340) No. 2] HOME RULE FOR CITIES 79 To sum up, the point I have been trying to make is this : that given a far-reaching provision in the new constitution pro- viding for municipal home rule, we must have an intelligent, well-directed home-rule spirit awake in the state to make it effective. There does exist a real demand for home rule. We have come about to the end of the preaching stage. I believe that the work of the last few years has developed, in the state of New York, the necessary spirit. There is a fertile field to work in. If we can secure the incorporation of proper home-rule provisions in the constitution to be drafted next year, I believe that we shall have an easier time putting them into operation, and having them lived up to and accepted in spirit as well as in letter, than a great many of these western states have had which have accepted the thing first and thought about it afterward. (341) THE ORGANIZATION OF COUNTY GOVERNMENT ^ GEORGE S. BUCK Auditor of Erie County FROM the choice of this topic there is plainly considerable interest in the present organization of county govern- ment in New York state, as well as the question of how it works and what may be done to make it work better. My jus- tification for attempting to speak on this subject is an experi- ence of eight years as a Buffalo member of the Erie county board of supervisors and of three years as head of what is in fact, though not in name, a county comptroller's office. For a period of four years prior to holding any office, I was a mem- ber of the Republican county committee, so that my acquaint- ance with the influences at work in county affairs has been gathered by practical experience in several different positions. Except in the region included in Greater New York, every county has a board of supervisors of one member from each township and one from each ward in the cities. This method has been followed since the office of supervisor of the town was first created in 1703. The number of members constituting a board varies greatly in different places. Some- times the supervisors from the cities are in the majority, some- times those from the towns. In Erie county the board is equally divided in spite of the fact that about four-fifths of the population is in Buffalo. As the city has grown, new wards have been created and new towns have been made to preser've the balance of power until our county board has fifty-four members. The powers of the supervisors are, briefly, to audit accounts, fix salaries, have general charge of all tax matters and appro- priations, a share in the care of roads and bridges and many other minor matters. A board organizes itself like any legis- 'Read at the meeting of the Academy of Political Science, November 20, 1914. (342) ORGANIZATION OF COUNTY GOVERNMENT 8 1 lative body with a clerk and committees to handle various classes of subjects, as the finance committee, to pass on ques- tions relating to the county's mdney matters, or as the alms- house and penitentiary committees, with jurisdictions shown by their names. Everything which comes before the board is first referred to the appropriate committee. Most boards have committees on purchasing of supplies and auditing of claims. A few appoint officials to perform these acts. In addition to the supervisors chosen from small districts, each county elects at large a treasurer, sheriff, district attor- ney, county judge, surrogate, coroners, and county clerk, who is both clerk of the courts and register of deeds. Erie county elects an auditor, and a commissioner of charities who appoints the keeper of the penitentiary and of the almshouse, the medical excuniner who takes the place of the coroners, and the keeper of the lodging house. There have been so many special acts allowing different counties tO' handle the same offices in different ways that enumeration of the variations would be tedious and unprofitable. Now let us come to the question, how does it work? The officials elected at large are all dependent upon the board of supervisors for appropriations. It is a matter of course to grant an appropriation the same as the year before, but any increase, any improvement of service is dependent upon the good-will of the supervisors for the necessary grant of money. Sometimes this leads to a division of responsibility, as the head of an office will say that he did something to please the committee of the board in charge of his department, and the committee will allege that they acted to accommodate him. There are several worse defects than this, however. There is no compulsory cooperation between the units. Each office, or department, can go its own way without reference to the others. For example, in the matter of supplies each depart- ment buys certain classes of its own, and the board the rest, thereby sacrificing all the advantage which comes from con- centrated purchases. The men who buy for departments are likely either to have political friends to remember, or the sup- plies are a minor matter, as the department will be judged by (343) 82 REVISION OF THE STATE CONSTITUTION [Vol. V its administrative work in other fields. Carelessness in buying may not matter much in one department, but when many are added together it becomes a serious loss. There are two counties which have purchasing agents, but they represent a reform bound to go forward slowly because the supervisors do not want to give up their powers, nor do the heads of de- partments wish to be held down to standard articles by a pur- chasing agent. There are other wasteful effects from lack of cooperation, but the purchasing of supplies is the most glaring. As the supervisors are elected from towns or wards, they naturally consider first the interests of their constituents. There is constantly present the temptation to sacrifice the in- terests of the county as a whole to the interests of one locality. It sometimes happens that a supervisor makes a very bad record, judged by the demands of the public interest, but if he is personally known and liked in the little district from which he is elected, the anathemas of the press and citizens' organi- zations have no effect, and back he comes term after term, waiting until he finds a congenial majority in control to heap up for himself more wrath from the public who cannot get at him. The wonder is that results are not worse than they have been when one is familiar with what men must go through in certain localities in order to be elected. Usually the rural supervisor is a leading farmer or merchant or local lawyer. From the cities there are some men anxious to make a good name and reputation, and in no other way able to secure politi- cal recognition. But at the best, these men are all busy at something beside county affairs. They cannot give more than a part of a couple of days weekly to the board and its com- mittee meetings. The greater part of the work that is done is due to a few members, while the rest are spectators. The annual equalization of taxes is a source of perpetual trouble. All assessors are sworn to assess property at its full value, but in practice their appraisals vary from forty to one hundred per cent. To distribute a tax fairly these discrep- ancies between the assessments of towns and cities must be equalized by the board of supervisors of each county. It is a (344) No. 2] ORGANIZATION OF COUNTY GOVERNMENT 83 duty of the board to appoint a committee of its members to ascertain in each town or city the difference between the as- sessed and reai values. In a large county like Erie it would take so much time to do this properly that the supervisors will not attempt it, and they have no authority to hire it done for them except at such a low figure that no one capable of doing the work will take the job. Consequently equalization is the resultant of guesswork and conflicting interests. If a board is under the control of an unscrupulous majority an inde- pendent country supervisor is in danger of punishment by having more than a fair share of the equalization spread against his town by the board, and there are towns which for years escape with too little. A town supervisor is held re- sponsible by his people for the tax rate, and the dread of equalization day settles more questions than the merits in- volved. The town assessors frequently do not do their work properly, so that when county treasurers try to sell unpaid taxes, they cannot. So much for how county government works ; now as to how to make it do better. There is a widespread and growing opin- ion that a small board elected at large from a municipality is more truly representative of the community as a whole than one chosen from little districts ; that the latter will reflect the civic intelligence or the lack of it in each district, but will never be imbued with the spirit and point of view of the muni- cipality as a whole. New York has elected at large and from boroughs a small board in the powerful board of estimate and apportionment, and Buffalo has just voted by a large majority in favor of giving all legislative and executive powers in the city to five councilmen to be selected at large. There are many states in the union where county affairs are managed by a small board chosen at large and there is no agitation for change. Why is it not fair to conclude that a small board of supervisors chosen from the county as a whole would be an improvement over the large boards elected from small districts? Three or five men, paid good salaries, could devote all their time to county business and become familiar with it and expert in the matters demanding their attention. (345) 84 REVISION OF THE STATE CONSTITUTION [Vol. V Each supervisor would be sensitive to the wishes of his con- stituents in any part of the county, so that they would suffer no neglect, but he could never afford to back the interests of one small section against the rest of the county. Personally I should like to see the district attorneys ajid sheriffs appointed by the governor. We know that as a peo- ple we are lacking in respect for law, and we are prone to blame the delays and technicalities of the courts and the im- possibility of keeping up with the multitude of statutes ground out annually by the legislatures. But why is it that there is respect for federal statutes? This contrast was first called to my attention by a United States attorney. What is the ex- planation? The federal laws are enforced by marshals and district attorneys who are responsible to Washington. Local opinion has no influence on their actions. The state laws are enforced by sheriffs and district attorneys chosen by local opinion. If a man holds views contrary to such opinion, he cannot be elected, or if chosen in ignorance of his ideas, he retires to private life at the end of his term. If United States attorneys and marshals were elected by the districts in which they serve, the enforcement of federal statutes would be a local issue. The enforcement of state statutes, particularly the liquor law, is a local issue, not openly to be sure, but to one in touch with the political situation the issue is there, and its in- fluence on the course of events is easy to follow. If the public opinion of the state wants certain laws, why should it not see that they are uniformly enforced ? The right and duty of the state seem undeniable, but at present public opinion is wedded to the local control of the sheriff's office and the district attorney. In view of this situation, it is prob- ably better that those officers should be elected at large rather than appointed by a smaller board of supervisors. Nullifica- tion of state laws is bound to be an issue as long as sheriffs and district attorneys are chosen locally. If they should be ap- pointed by the board, then nullification would be an issue in the election of supervisors, and a great hindrance to the choice of men properly qualified. It would seem far better to keep the board out of this kind of politics. (346) No. 2] ORGANIZATION OF COUNTY GOVERNMENT 85 It is probable that the coming constitutional convention will abolish the surrogates' courts and turn over their work tO' the supreme court. I can think of no objection to the appointment of all other county officials by the supervisors, except that where a county is so large that the proper handling of its business demands a comptroller, care should be taken to pre- serve his independence either by election at large or in the manner of fremiing the government. A brief consideration of his duties will make that plain. A comptroller is the chief bookkeeper of the county. He controls the accounts and audits the disbursements and receipts. He should make enough of an inspection of supplies delivered and work done to know that a fair return is received for money spent. He should present at frequent intervals state- ments that will show the real financial condition of the county ; get out a budget that will inform the public how it is proposed to spend its money, and clearly show increases asked, and then struggle to hold departments down to their appropriations. Let us suppose counties to be governed by small boards of three members each with power to appoint all the executive officers. Will a comptroller appointed by such a board be vigorous in rejecting claims, pointing out waste or extrava- gance, calling attention to overdrawing of appropriations or otherwise criticizing departments ? It is not to be expected that he will, because he will himself be a product of the adminis- tration, and an administration cannot be expected to furnish political capital against itself. The appointees of the board of supervisors will reflect the wishes of those who chose them. It will be done consciously and unconsciously. It is simply inevitable. The inspector whose orders come from a chief, who looks to the same chief as the buyer, will not be so criti- cal of the work of the buyer, because he will feel that what the latter has done must reflect the wishes of the powers that be. The comptroller should be a, check upon the treasurer, . and in order that both should not be under the same control, if the board of supervisors should appoint a treasurer and one of its members should be required to assume the duties of the comp- troller as his special field, probably the effectiveness of that (347) 86 REVISION OF THE STATE CONSTITUTION department would be preserved because its head would have to account personally to the public for its conduct. A change from a large to a small board of supervisors would involve some modifications of town government because the supervisor has much to do outside of his duties as a county- official. He is really the mayor of the town, but it would be easy to arrange to fill his place. The problem of equalization could be settled by abolishing the town assessors and creating a county board of assessors. This would insure a more uni- form and intelligent handling of the tax problem. It would do away with much injustice, incompetence and hard feeling, and would be a great improvement. The comptroller of the state of New York has a corps of expert accountants whose duty it is to examine the affairs of county officials. They were recently at work in Buffalo and one of them told me that throughout the state the present sys- tem of county government wastes about a third of the money raised. I do not know how much is spent by the counties of New York state, but if they expend on the average one-fourth of what Erie county does the total loss for the state, exclusive of the counties in Greater New York city, is nearly $7,000,000 annually. There must be localities in which the percentage of waste is not so high. It certainly is not so great in our county, and no government can be devised that will not show some loss in operation, but in spite of these factors it is clear that a goodly sum is thrown away every year. The time has come when the burden of taxation has risen so high that the public will no longer tolerate the wasteful methods of the past. A change in county government is bound to go with other changes in government that are upon us. In conclusion, let me say, that to one who has wrestled for some years to get results out of our present imperfect county machinery, it is a source of hope and inspiration to find the intelligence and power for leadership represented by the Academy of Political Science turning its attention to this neglected but important field of local government. (348) A COUNTY GOVERNMENT ' H. S. GILBERTSON Executive Secretary, National Short Ballot Organization LL the speakers at last night's session emphasized the importance of getting away from the popular political doctrines of separation of powers and division of re- sponsibility. No branch of American government illustrates these traditions quite so well as the counties. Mr. Buck has pointed out that the county government in this state consists of a variety of independently elected officers operating as separ- ate units, and very frequently out of harmony with one an- other. In our counties there is no executive head, there is in practice no definite form of executive control, except such as may be effected by gentlemen's agreements among a group of mutually congenial men, or by extra-legal agencies such as county chairmen or other party leaders. If you will examine the county law you will find that practically the only form of legal compulsion which can be exercised over any county offi- cial by any other is a resort to the courts. It goes without saying that an organization of this kind is about as ill-fitted as anything could be to respond to public opinion. And we know that when government does not so re- spond, we need not be surprised at anything it does, or fails to do. But it is not only their internal organization which makes counties unresponsive. The very nature of the county func- tions removes the officers from the field of public interest. This is particularly true in urban counties where nearly all the in- teresting local functions which come under constant view, and more or less affect the daily lives of every citizen, are handled 1 Discussion at the meeting of the Academy of Political Science, November -20, 1914. (349) 88 REVISION OF THE STATE CONSTITUTION [Vol. V by the cities, while the county officials, outside of the district attorney, and to a certain extent the sheriff, perform nothing but the driest of routine functions. These conditions make the county offices particularly attractive to the kind of poli- ticians who are not nearly so keen about serving the public interest as they are about drawing the salaries, which in some of our counties, in this part of the state at least, are out of all proportion to the importance of the offices. The county, moreover, is the unit of partisan organization, and it is therefore the county which more than anything else determines the tone of politics throughout the state. If the form of county government lends itself to the development of politiccil machines — and it is quite certain that it does — then we have in county government an important key to the whole matter of state-wide political conditions. Another difficulty with county government, particularly in this state, has been the attempt in the past to impose a uni- form system upon all counties, regardless of their composition or environment or any other factor which makes the problems of one county distinct from those of another. The same basic type of county government which is in use in Warren county in the Adirondacks is employed in Westchester, one of the most populous counties in the United States. Of course, this policy can result in nothing but failure, and the county law in practice does not apply in all respects to all counties. And so, most of the counties have been obliged at one time or another, and some very often, to appeal to the legislature for special acts which will help them to meet their local conditions. There is a mass of this kind of legislation, and it makes for endless confusion. Senator Root last evening asked for specific suggestions for the guidance of the delegates. In view of what I have just been saying, our discussion on county government should sug- gest an answer to this question : What shall the constitutional convention do to provide counties with a more responsive and responsible form of government, and one which is adapted to local needs? In the first place, there is certain negative action to-be teiken. (350) No. 2] COUNTY GOVERNMENT %g The requirement in the constitution that certain county offi- cers, to wit, the sheriff, county clerk, register of deeds and dis- trict attorney, be elective, should be eliminated and the legis- lature should be empowered to determine how in certain groups of counties these officers should be selected, whether by election or by appointment. In the second place, I think the constitution should enun- ciate the principle of home rule as applied to counties. I do not mean home rule in the same sense that will be used later in this session in connection with cities, but I do think that, subject to the necessity for their maintaining a proper estab- lishment for the execution of state laws, the counties should be free to adapt the form of their government to the kind of population they have and the degree of interest which their citizens are willing to take in the management of county af- fairs. The constitution, in other words, should not only make it possible for the legislature to give the various counties options between two or more sound types of responsible gov- ernment, but it might go so far as to lay down this course of action as a definite obligation upon the legislature. It should go even so far as to permit counties and cities where the boundaries are coterminous, to consolidate in such a way as to leave but a single local agency for executing the laws of the state. Such a form of organization would be of particular benefit to New York city. It might help Erie county; and in Schenectady, where about eighty-five per cent of the county is in the city of Schenectady, a number of leading citizens already have this idea in mind. It has been put into effect in other communities in other states, as for example, Denver, San Francisco and St. Louis. County government is opening up as one of the most fruitful fields of political investigation. We shall not go far astray if in the present undeveloped stage of this thought and investigation we accept as our guiding principles the short ballot and the largest measure of home rule which is con- sistent with the proper execution of state laws. (351) go REVISION OF THE STATE CONSTITUTION [Vol. V V. EVERIT MACY From a short experience with county government I believe its present inefficiency results from two main causes: first, that all counties are under the same form of government re- gardless of their widely varying conditions; second, that the law provides for innumerable local elective minor officials with overlapping duties and divided responsibilities. When our county government was first developed, the con- ditions in all counties were practically the same. The state then had a scattered and rural population. These conditions have changed until now a single city occupies more space than one entire county, as in the case of New York county. The cities of Buffalo and Rochester comprise practically all of the inhabitants of Erie and Monroe counties and most of their assessed valuations. Westchester county represents still a different development. This county contains three cities, one of which has a population of over 90,000; 25 villages, most of which have populations of from 5,000 to 18,000; be- sides 18 towns. The population of the entire county is well over 300,000 and the assessed valuation of property ex- ceeds $360,000,000. Some of these 25 villages have a larger population than entire up-state counties and much greater assessed values. There are other counties of the state where the conditions are not fundamentally different from what they were a hundred years ago, the population being still rural and scattered. Owing to the fact that all counties have had the same form of government, each county, as it has grown in population and assessed property values, has had to resort to special legislation in order to meet its more complex needs. Such a method has resulted in producing a mass of conflicting and confusing statutes which are a serious block to efficiency and responsibility in administration. Some years ago order was brought out of the chaos of spe- cial municipal charters by classifying the cities according to the size of their population and by providing within each class a choice of several forms of government. With the constitu- tional convention approaching, an opportunity is afforded of (35') No. 2] COUNTY GOVERNMENT gi giving the counties the benefit of a similar classification. Coun- ties like Westchester should no longer be hampered by archaic laws that have ceased to meet the requirements of the county, nor should the smaller, less populated and less wealthy coun- ties be compelled to adopt a form of government unsuited to their simpler needs. Any change in the constitution permitting the classification of counties should be in the broadest form, leaving the legis- lature to determine the details of the classification. Such a re- vision should grant a much larger degree of home rule to the counties than that they now enjoy. It is absurd that every county must obtain special legislation at Albany in order to make even trivial changes in its administrative methods. In Westchester there are two large hospitals connected with the county almshouse, and all patients in these hospitals must first be committed to the almshouse as paupers before they can be admitted to the hospitals. There is a widespread desire in the county to have patients received in these hospitals without first stamping them as paupers, yet this cannot be done without special legislation at Albany, although the county pays the entire expense of these hospitals, and they are administered by a county official. Why should the time of the legislature be taken up by a purely local matter and why should not West- chester citizens admit patients to their own hospitals on their own terms? Such local and special legislation should be re- moved from Albany and located in the counties. This would result in much benefit both to the counties and to the state. The confusion and lack of responsibility that come from electing innumerable officials and governing boards cannot be better illustrated than by the situation in Westchester. There are some 25 county officials and a board of 42 supervisors; there are 19 town boards of 7 members each; there are the 3 city administrations; besides the 25 villages, each of which has its board of trustees, consisting of from 5 to 12 members. To these bodies must be added 1 73 school districts each with a board of at least 5 trustees. These school districts do not conform to town or village lines and in several instances vil- lages spread beyond the limits of one town. Yet all of these (353) 92 REVISION OF THE STATE CONSTITUTION 2i8 independent boards can issue bonds and appoint officials without regard to any other board. Allowing five members to each school board, six to each village board, seven to each town board, two overseers of the poor to each town, forty-two supervisors and various elective town and village officials such as constables and assessors, we have a total of at least 1,400 elected office-holders in one county. Is it any wonder that under such conditions responsibility is divided, with increased taxes and decreased efficiency as the result? There are many minor difficulties in our present form of county organization such as the lack of an administrative head of the government, making impossible therefore the coordina- tion of the various departments; but the two difficulties that have been especially mentioned are the most important, namely, the uniformity in county government enforced by state laws and the multitude of minor elective officials. I see no way for the counties to meet their present and future re- sponsibilities unless constitutional changes give them sufficient freedom to permit each county to adopt a form of government suited to its own constantly changing conditions. Such amend- ments must provide for a greater degree of home rule ajid must reduce the number of elective officers. It is only by cen- tralizing control and thereby focusing responsibility that the standards of county government can be raised. Editor's Note. — A valuable contribution to the discussion of county govern- ment will be found in the president's address, by Graham Taylor, at the National Conference of Charities and Correction, Memphis, Tennessee, May 8, 1914. See "The County — A Challenge to Humanized Politics and Volunteer Cooperation,'' Proceedings of the Forty-First National Conference of Charities and Correction, pp. 1-14. See also "' Administration of Justice in the Modern City," by Roscoe Pound, Harvard Law Review, vol. xxvi, pp. 302-328. (354) CONSTITUTIONAL LIMITATIONS ON GOVERNMENT POWERS ' SAMUEL MCCUNE LINDSAY Professor of Social Legislation, Columbia University; President of the Academy of Political Science THE business of a constitution is to formulate in general principles the mutual understandings of a people with respect to their government. It defines powers, it sets up agencies of government to execute and carry out the princi- ples it formulates. In defining powers, a constitution partakes of the nature both of a grant of power and of a hmitation of power. As has been said at the other sessions of this meeting, the problems of government are very different to-day from what they were twenty years ago when we last revised the con- stitution of the state of New York, and from what they were one hundred years ago or more, when we adopted many of the general statements of governmental powers which have found a place in each successive constitution of the state from the earh- est times. The constitution when it defines powers necessarily sets limits, by virtue of such definition, upon the powers of government. There is therefore greater need than ever before in our history to examine the constitution, because the social- welfare tasks of government are more pressing and complex from the point of view of the Hmitations that are set up, either consciously or unconsciously, and that operate to impede the carrying out of a special policy with respect to any of the prob- lems that are enumerated here on our program this morning and with respect to many others which might equally well be suggested. We may perhaps render a service to the delegates to the con- stitutional convention, who are willing to pay any attention what- soever to the proceedings of this meeting, if at this session we ' Introductory address as presiding officer at the meeting of the Academy of Political Science, November 20, 1914. (355) 94 REVISION OF THE STATE CONSTITUTION [Vol. V follow the plan in the minds of the program committee and consider how far the subjects that are before us this morning present well-defined social policies that demand governmental action, that the people desire to have carried out, that have been widely considered and publicly debated, and upon which there is a well-known, definite public opinion, and yet upon which action is impeded, prohibited, or restricted by the statement of principles and the definition of powers which we find in the state constitution as it exists to-day. The intelligent and scientific consideration of the problems of constitutional revision in New York or elsewhere demands a scrutiny of the constitution as a whole from the point of view of the Hmitations it places directly or indirectly upon the power of government, as an instrument or agency of society, to deal with social welfare. People are increasingly looking to government in all its forms — national, state and local — as a force working all the time and capable of exercising, as no other agency can, the collective power and intelligence of the community. The aid of this powerful force is sought in the accomplishment of their aim to establish and enforce standards and rules of conduct, such as those required in the control of industry, labor legisla- tion, public health and sanitation, fire protection, and like activ- ities ; or to execute enterprises of such magnitude that no agency with less power and resources than government itself can under- take them, such as town-planning, social insurance, and so-called public utilities of various kinds. There is no more significant change in the popular concept of government within the past century than that found in the de- sire of the people to use it as a powerful instrument to attain the positive ends of social welfare rather than as a negative and repressive agency to secure protection of life and property. As a recent writer on the British system of constitutional control of the functions of government very truly says : In the modern state it is everywhere being recognized that there are possibilities of beneficial collective action which only the state, as representing the community, can effectively carry out. But at no time has it been more necessary to have clear ideas as to what the state (356) No. 2] LIMITATIONS ON GOVERNMENT POWERS 95 should undertake, and what it should leave to private enterprise, commercial, social, or philanthropic. To foresee and determine such requires deep economic understanding and judgment. It is neces- sary to avoid rashness on the one hand and inert indifference on the other.^ The business before us at this particular session on " Limita- tions of Governmental Powers " is to discuss a few of the more important social problems, such as workmen's compensation, labor legislation, woman suffrage, conservation of forests and water power, upon which public attention is already focused, and concerning which certain definite standards have back of them a considerable weight of public opinion, but action upon which is blocked by the constitution. Where the legislature or any other department of government is either prohibited by the constitution from dealing with the subject at all, or limited in the scope of its power to deal with it, the constitutional conven- tion should squarely face this fact and either decide the ques- tions of policy involved, or give adequate powers to some de- partment of government to ascertain and express the will of the people. If the revisers of the constitution wish to decide that the principle of workmen's compensation should be made effective in law, or that labor legislation should be extended in scope to include the regulation of wages or the fixing of hours for adult males, or that the franchise should be given to women, or that any particular policy of forest or water-power conservation should be adopted, they may of course frame and submit to the vote of the people suitable articles embodying their decisions. A better way and one more consistent with the view that a con- stitution ought to be a brief statement of general principles would be so to revise or frame the restrictions placed on gov- ernmental powers that the people at all times may have in their legislature or elsewhere an agency of government competent to entertain and decide such questions, and perhaps better able to discuss and examine them on their merits than the constitutional ' The Treasury and Financial Control. PoliiUal Quarterly (Oxford University Press), Sept. 19 14. (357) 96 REVISION OF THE STATE CONSTITUTION [Vol. V convention itself. The people would then enjoy the further ad- vantage of being able to change these decisions of policy to suit changing conditions more easily than through constitutional amendment. Greater freedom of action both in ascertaining and giving the force of law to the will of the people in dealing with new but well-defined social problems is the fundamental reason for the demand for any revision of the constitution at all. This is why the people of Ohio recently changed so radically their funda- mental law, and why the people of Illinois, Indiana, Pennsyl- vania and other states are thinking seriously of undertaking thorough-going revisions of their state constitutions. The dele- gates to the New York constitutional convention will mistake the signs of the times and the real mandate they have from the people of this state if they confine their attention too much to the machinery of government and fail to consider seriously the way in which the constitution as a whole, or the bill of rights, if they decide to retain any bill of rights at all in the state con- stitution in view of the protection already guaranteed by the bill of rights of the federal constitution, or the way in which the implied powers and restrictions of the constitution may operate to deprive the people of any method other than amendment of the constitution, however easy that may be made, for the de- termination of governmental poHcies on such questions as we are asked to discuss here on the program of this session. It will be difficult to revise the constitution so as to remove all such limitations or even to know how far the new constitu- tion goes in that direction, and there will be need for courage- ous and radical action if it is to be effective, as may be well illustrated by the history of the workmen's compensation dis- cussion in this state. We supposed that under a certain inter- pretation which had the sanction of able jurists and students of constitutional law, the constitution as it existed before it was amended in this particular, permitted the enactment of a work- men's compensation act, perhaps limited to extra-hazardous oc- cupations. The court of appeals, when such a law, applying only to extra-hazardous occupations, was enacted in accordance with the recommendations of a state commission that had fully (358) No. 2] LIMITATIONS ON GOVERNMENT POWERS g-j considered the constitutional questions involved, held that no such power existed in the constitution. Admitting the demand for and desirability of the principle of workmen's compensation, the court held that it could not be applied under the constitu- tion as it then existed without coming in conflict with the guar- antee of due process of law — that is, without running foul of a constitutional limitation adopted without any possible reference to such a situation as that arising under the compensation act. The widespread feeling of antagonism and impatience shown by the people in connection with the workmen's compensation dis- cussion after the Ives case and the subsequent amendment of the constitution of New York in that particular ought to be care- fully studied by the constitutional convention. It may well serve to indicate the need for the most painstaking scrutiny of every provision of the constitution from the point of view of its possible limitation of powers as well as its primary purpose of a grant of power or guarantee of a right. The speakers who will discuss the interesting topics which we are now to consider from the point of view just presented will doubtless give us a clear statement of the policies that have secured a large measure of public approval and are now knock- ing at the door of the constitution, not asking necessarily for admittance within the sacred and secure declarations of the fundamental law itself, but asking not to be denied a hearing before some tribunal of the people, and asking that the people may be permitted to give expression to their will on such sub- jects as workmen's compensation, labor legislation, woman suff- rage, and conservation of forests and water power, without hav- ing to amend or do violence to their state constitution in each specific case. (353) THE FUTURE OF THE WORKMEN'S COMPENSATION AMENDMENT ' THOMAS I. PARKINSON Columbia University EVENTUALLY the constitutionality of workmen's com- pensation legislation must be determined by the United States Supreme Court. The question before that court will be, does the imposition on employers of liability without fault and of the duty of insuring prospective liability constitute a deprivation of property without due process of law contrary to the Fourteenth Amendment? Cases involving the compen- sation acts of Ohio and Washington will shortly be argued before the Supreme Court. No state compensation act can be effective which violates the Fourteenth Amendment ; but on the other hand satisfying the Fourteenth Amendment will not insure the validity of the act. The state constitution must also be satisfied. As was said in the Ives decision, the supreme courts of the states are the final arbiters of the meaning and effect of the state constitutions and even when the language of the federal instrument is identical — as in the case of the due-process clause — the state court is not bound to follow the federal Supreme Court. Indeed, the court of appeals in the Ives case distinctly asserts its intention not to follow the liberal interpretation of that clause suggested in re- cent opinions of the federal court. The Ives case declared that the fundamental principles of workmen's compensation were inconsistent with the state con- stitution ; that liability without fault and without contract con- stituted a deprivation of property without due process. There was no appeal from this decision except to the people to amend the state constitution. This appeal was made in an amendment submitted to and adopted by the people in November 191 3. • Read at the meeting of the Academy of Political Science, November 20, 1914. (360) WORKMEN'S COMPENSATION AMENDMENT 99 This amendment took effect on January i, 1914, and is now section 19 of article I. No such amendment, however broad or emphatic, can avoid the necessity of making compensation legislation comply with the Fourteenth Amendment; but on the other hand some amendment to the state constitution was rendered absolutely necessary by the Ives decision before New York could have a compulsory workmen's compensation act. It is idle to argue that the Act of 19 10 deserved the condemnation which it re- ceived in the Ives case because it was a half-way measure, a cross between liberal employer's liabilty and the most restricted form of workmen's compensation, and that its condemnation did not necessarily constitute a precedent against the constitu- tionality of a real workmen's compensation act. The court of appeals made it plain that it considered liability for industrial injuries on any basis but that of fault a taking of private prop- erty in violation of the due-process clause. Moreover, by the time the decision in the Ives case was announced the movement for workmen's compensation legislation had spread so rapidly that the constitutional questions involved not only imposition of liability without fault but also the requirement of compulsory insurance of possible future liability. Admitting the need for and desirability of the amendment, there has been a sharp difference of opinion as to whether it should be merely a " recall " of the previous judicial opinion — an authorization of that which the court had found contrary to the existing constitution — or a grant to the legislature of ade- quate power to deal with the subject-matter. Many believe that a constitutional amendment should merely provide for a present exigency, leaving broader grants of power to await the develop- ment of popular demands. This point of view explains the vigorous criticism of the amendment at the 191 3 meeting of the New York Bar Association. The burden of the criticisms was that the amendment went far beyond anything required for a recall of the Ives decision. The fact is, it was not intended as a popular recall of that judicial decision ; it was intended to be precisely what the legal profession has generally asserted a con- stitutional amendment ought to be, viz., not a reversal of a (361) lOO REVISION OF THE STATE CONSTITUTION [Vol. V previous judicial decision but an authorization of future action broad enough to give the legislature discretion as to the details of the legislation which it authorizes. The problem of inserting such a grant of power in the state constitution is not so simple as it appears on first consideration. Mere authorization of " workmen's compensation legislation " or the imposition of liability without fault will not suffice. This might have done when the compensation movement was in its infancy in this country; but a compensation act like that re- cently passed in New York involves not only liability without fault under a system exclusive of other remedies but also com- pulsory insurance of possible liabihty. Insurance of the liability is now recognized as of prime importance in the distribution of the employer's financial burden and in securing to the beneficiary the payment of the compensation awarded. Compulsory insurance involves even greater strain on the due- process clause than liability without fault; for it is one thing to say to an employer, " You must compensate the victims of an injury actually suffered in the course of your employment," and quite a different thing to say to him, " You must, before any injury in your employment and despite the possibility that such an injury may never occur, contribute to a common insurance fund from which will be paid compensation not only for injuries suffered in your employment but also for those suffered in the employment of other contributors to the fund." The employer may well assert that even if liability for an injury which has act- ually happened may be placed on his shoulders without regard to fault, nevertheless it is a taking of his property without due process of law to compel him to contribute to compensation for injuries to his competitors' employes. I am not arguing against compulsory insurance, because I believe it is essential to ah effec- tive compensation system, but only -arguing that its constitu- tional authorization requires something more than authorization of liability without fault. With the exception of express mention of occupational dis- eases — leaving it to court interpertation whether or not they are included — the 191 3 amendment substantially provides the neces- sary legislative authority. It is probable, however, that chan- (362) No. 2] WORKMEN'S COMPENSATION AMENDMENT iqi ges in the form or substance of this amendment will be made by the coming convention. Unquestionably, numerous pro- posals of such changes will be submitted. Indeed when the amendment was submitted it was expected that the experience under it would be fruitful of suggestion for whipping a compen- sation provision into final shape in the convention. Experience has justified this expectation. The establishment and adminis- tration of the state fund, for example, involved such further constitutional problems as the adjustment of statutory provisions for the current disbursement of money under state control, to the constitutional requirement of specific appropriation. Moreover, the probabilities of opportunity for revision are increased by the fact that in choosing the language of the amendment an effort was made to phrase it so that it would not arouse in the voter unnecessary objection to its fundamental provisions. Perhaps this caution was unnecessary. An ex- perience with referendum legislation in the west may be per- tinent. A charter provision authorizing the issue of bonds had been referred to the people, together with a pamphlet required by law explaining its purpose. The pamphlet contained a sub- stantial error respecting the maturity of the bonds. The issue was approved and offered to bankers, who pointed to the error in the pamphlet as a possible flaw in the legality of the bonds. The city attorney, when his attention was called to the error, promptly offered to prove by affidavit " that only one voter in the town had read the pamphlet and he had not noticed the mistake." As I have stated, the amendment gives the legislature ample discretion to deal with all the fundamental principles of com- pensation. But it does more than that. It contains a general authorization of legislation to protect the lives, health and safety of employes, and it also contains detailed provisions which are objectionable because they are legislative rather than constitu- tional in their nature. The authorization of legislation to protect the lives, health and safety of employes does not affect compensation. Indeed it is doubtful if it adds anything to the existing police power as declared by the courts. It was inserted in the hope that it (363) I02 REVISION OF THE STATE CONSTITUTION [Vol. V might result in a more liberal attitude on the part of the courts in dealing with labor legislation. Its importance has frequently- been over-estimated, with resulting vigorous denunciation of the entire amendment. If it is to be retained in the constitution it ought not to be permitted to encumber the compensation pro- vision, but should be transferred to some other section. The detailed legislative provisions, viz., excepting from com- pensation injuries self-inflicted or resulting from intoxication, and authorizing public utility companies to charge the cost of compensation to operating expenses in the computation of the reasonableness of their rates, could and should be dropped from the amendment as unnecessary and undesirable detail These provisions were inserted in the amendment during its hasty progress through the assembly after it had been carefully framed in the senate. They have been variously ascribed to a desire to favor employers, particularly public utility companies, and to the political ambitions of a Republican assembly to share the credit with a Democratic senate for a measure of such im- portance because of its appeal to the labor vote. In any event, they are of no value to the amendment and they have inspired more criticism than have its important provisions. These aye good examples of the tendency to cumber consti- tutional grants of general powers with details more properly left to the legislature. Such details frequently so becloud the main issue as to prevent a fair expression of opinion on that issue at the polls. Sweeping condemnation of this amendment when analyzed has been found to rest solely on objection to these details. One prominent lawyer declared that the amend- ment was cunningly devised to turn the employes over to the mercy of the corporations because it authorized addition of the cost of compensation to operating expenses, a provision which is of importance only to public utility companies. Constitu- tional provisions should, so far as possible, be free from specific details. If it be desirable to have the voters pass on matters of detail it would be far better to adopt a constitution containing general provisions, with a very liberal initiative and referendum section, under which changes in detail might be submitted to the voters without at the same time jeopardizing general con- stitutional principles. (364) No. 2] WORKMEN'S COMPENSATION AMENDMENT 103 Stripped of these unimportant and undesirable provisions the amendment would read : Nothing contained in this constitution shall be construed to limit the power of the legislature to enact laws ... for the payment either by employers or by employers and employes, or otherwise, either di- rectly or through a state or other system of insurance, or otherwise, of compensation for injuries to employes or for death of employes resulting from such injuries without regard to fault as a cause thereof, . . or for the adjustment, determination and settlement with or without trial by jury of issues which may arise imder such legisla- tion ; or to provide that the right of such compensation and the rem- edy therefor shall be exclusive of all other rights and remedies for injuries to employes or for death resulting from such injuries ; or to provide that the amount of such compensation for death shall not ex- ceed a fixed or determinable sum. . . . At first reading these provisions may seem to the casual reader unnecessarily indefinite and readily capable of improvement; but to the ambitious reviser who undertakes its re-statement, appreciating the responsibility of producing a satisfactory and adequate grant of power, I repeat the words of Judge Clear- water, " If anybody thinks he can write a satisfactory constitu- tional amendment on this subject, — well, let him try it." It is true, the provisions of the present amendment do not read smoothly; indeed, they have been declared unintelligible to the ordinary reader. But it must be remembered that that which seems most intelligible to the " ordinary reader," with his limited knowledge of the technical problems involved in the drafting of a constitutional amendrnent, frequently develops into a mass of generalities and ineffective words when the rights of the same " ordinary reader," under legislation passed in pursuance of the amendment, are before a court for adjudication. By that time, the " ordinary reader '' has become familiar with some of the technicahties of the subject-matter and he is interested not so much in a smooth statement as in an effective one. As Lord Macaulay once said, the drafter of laws must frequently disre- gard smoothness and attractiveness of statement for accuracy. Irrespective of its style, that is a good constitutional amend - (36S) I04 REVISION OF THE STATE CONSTITUTION [Vol. V ment which, when applied to concrete problems by persons familiar with the subject-matter and after careful analysis and consideration, accomplishes its purpose without at the same time unnecessarily disarranging other and unrelated constitu- tional provisions. Simplicity and good style will not help the compensation amendment if, when future compensation laws come before the court of appeals, their essential provisions, as for example, compulsory insurance, are found to be unauthorized by its language. On the other hand, an amendment, unless very carefully phrased, may authorize too much or something quite apart from the purpose of its proponents. A constitu- tional amendment recently submitted to the people of Louisi- ana by the state legislature was so carelessly phrased that it com- pletely failed of its purpose — indeed, exactly reversed its pur- pose — and its proponents who urged and secured its passage through the legislature were obhged just as vigorously to urge its rejection by the people. I do not mean to underestimate good style and lucidity in constitutional expression. On the contrary, I should like to see all of our constitutional provisions drafted in the dignified and graceful style of a Blackstone, a Hamilton or a Jefferson. I simply want to emphasize the necessity for a grant of adequate power to the legislature. While I do not mean to suggest that the amendment in its present form, even when stripped of its unimportant provisions, is letter perfect, I do believe that with the insertion of express authorization of compensation for oc- cupational diseases as well as for injuries it will constitute a satisfactory grant of power to the legislature to deal with the essential problems of compensating the victims of industrial accidents and diseases without unnecessarily disturbing the gen- eral guarantees of the bill of rights. Efforts to improve the amendment by revision in the con- vention may be expected along the following lines : (i) Broadening of the legislative power to include as much as possible of the whole program of social insurance. (2) Adding restrictions on the legislative power through qualifying provisions which would be more appropriate in legis- lation enacted under the amendment, but which, if inserted in (366) No. 2] WORKMEN'S COMPENSATION AMENDMENT 105 the fundamental law, are secure against change by succeeding legislatures. (3) Changing its form, phraseology and present position in the constitution. Constitutional authorization of the social-insurance program should be sought, if at all in the convention, through an inde- pendent provision rather than by burdening the compensation provision. Undoubtedly the legislature will be called upon to give serious consideration to social insurance within the next few years — indeed, bills are already in course of preparation — and the convention may decide to remove, so far as possible, the constitutional barriers to legislative discretion in this field. The point I want to make is that unless a complete re-writing of the constitution is to be undertaken by the convention — which seems highly improbable — the compensation provision should not be further complicated by adding to it provisions for social insurance. Irrespective of other considerations the link- ing of these two propositions would involve the fate of work- men's compensation at the hands of the voters with that of the more extended and less understood program of social insurance. There will, undoubtedly, be numerous suggestions for revision by the insertion of descriptive and quahfying phrases limiting compensation to " injuries arising out of employment" or to in- juries in " hazardous employments " or to a " reasonable " amount. The addition of the seemingly harmless words " arising out of employment" would have the effect of seriously limiting leg- islative discretion and of substantially engrafting on the compen- sation system the common-law doctrine of assumption of risk. The English courts and some of our American courts have held that where an injury occurs during an employe's departure from particular work assigned to him or from the prescribed method of doing his accustomed work, it arises not out of his employ- ment but out of his departure from his usual work or the rules for its performance. The addition of these words would build up a great body of constitutional construction in a field in which it is particularly desirable that Htigation be reduced to a min- imum. In any event, the hmitation of compensation to injuries (367) I06 REVISION OF THE STATE CONSTITUTION [Vol. V " arising out of employment" is a matter which should be left to the legislature rather than inserted in the fundamental law. Limiting compensation to "hazardous employment" would also provide a fruitful field for judicial construction, as is evi- denced by the difficulty of discovering what employments are and what are not included in the hst of hazardous employments in the New York act. Adding the word " reasonable " as descriptive of compensa- tion would afford further opportunity for judicial construction as to the amount of compensation which the legislature might pro- vide. Other instances might be given of the possibihty of seriously restricting the legislative discretion in determining the details of compensation legislation through the insertion of similar quali- fying words ; but these sufficiently indicate the importance of avoiding such words even where they appear harmless. They were excluded, so far as possible, from the 19 13 amendment because it was realized that they would unnecessarily hamper the legislature in dealing with changing circumstances. Work- men's compensation is still in the experimental stage in this country and unless we are to continue the necessity for piece- meal empowering amendments to meet each new constitutional exigency, adequate power to deal with the general subject should be granted at once. Assuming that it is desired to grant such adequate power, we should, in judging proposals for revision of the form, general wording and position of the amendment, consider the requisites of an empowering compensation provision. As I have said, it is impossible by an amendment to the state constitution to affect the question of constitutionality under the Fourteenth Amend- ment. It is also immaterial that the state amendment authorizes what some believe the Supreme Court will hold a violation of the Fourteenth Amendment. In that event the objectionable provision will be invalidated by the Supreme Court and its in- clusion in the state constitution will have done no harm. The important test of the state amendment Is its effectiveness in re- moving all objections arising from the present provisions of the state constitution. (368) No. 2] WORKMEN'S COMPENSATION AMENDMENT 107 What are these objections? What are the limitations on the legislative power under our state constitution ? Article 3 section I vests in the senate and assembly the full legislative power of the state. This power is limited, therefore, only by other pro- visions of the constitution. These other provisions are : Art. I, § I. Guarantee of the rights and privileges of citi- zens. Art. I, § 2. Guarantee of trial by jury. Art. I, § 6. Guarantee of due process, etc. Art. I, § 18. Guarantee of the right of action for unlimited damages for death. In addition to these provisions which apply to any satis- factory system of compensation there are other provisions of the state constitution which might prevent the legislature in- cluding in the system certain desirable details ; as, for example, the financial provision of section 21 article 3, which has been urged against legislation authorizing payments from a state insurance fund without specific legislative appropriation. This section would also interfere with a continuing appropriation to pay the premiums on insurance of the state's employes if in the future it should be deemed advisable to bring them within the compensation system. The guarantee of the existing right of action for unlimited damages for death contained in article i section 18, which, like the due-process clause, is a serious if not fatal obstacle to any compensation act, can be qualified so as to permit the sub- stitution of limited compensation for unliquidated damages by adding at the end of the section an exception to the effect that : " This section shall not affect workmen's compensation legis- lation authorized by section — of this constitution." This was not done in the 191 3 amendment because it would have in- volved submitting to the people two amendments instead of one. In the revision by the convention it may and should be done. Such an exception would obviate the necessity of re- ferring to this matter in the compensation provision, permit the dropping of a lengthy and technical provision, and reduce (369) Io8 REVISION OF THE STATE CONSTITUTION [Vol. V the necessary provisions of the compensation section to a quali- fication of the due-process and jury-trial sections. Even this simpler authorization of compensation legislation would become unnecessary if the convention should adopt a proposal likely to be urged upon it, viz., the elimination from the state constitution of trial by jury and due process and like provisions of the bill of rights which are substantially dupli- cated by the Fourteenth Amendment. If these provisions of our state constitution should be dispensed with on the ground that they are effectively guaranteed by the United States con- stitution, the validity of compensation legislation under the state constitution would depend only on the exceptions to spe- cific sections above noted. It is, to say the least, doubtful whether the convention can be persuaded to do anything so radical as to eliminate these ancient and honorable provisions. If the problem cannot be disposed of so readily, then the question arises, how can the people indicate in the constitu- tion their desire that despite the due-process and jury-trial guarantees the legislature shall, nevertheless, have adequate power to pass compensation legislation? Amendments to ac- complish this purpose have been adopted in Arizona, Cali- fornia, Ohio, and Vermont, and proposals to amend are pend- ing in Pennsylvania and Wyoming. For the purpose of com- paring the amendments adopted or proposed in these states with the New York amendment a synopsis of each amendment is appended hereto.^ The provisions of these amendments vary greatly. In some a simple declaration of power to pass a workmen's compensation act is considered sufficient, while in others detailed provisions with attempts at careful limitation are considered necessary. Moreover, details considered de- sirable in one state are not mentioned in another. Intelligent determination of what is necessary in such an amendment depends on an appreciation of the fundamental or essential elements of a compensation system. The legislature must be authorized at the least to deal with these essentials. They are: 1 See p. 112, infra. (370) No. 2] WORKMEN'S COMPENSATION AMENDMENT 109 1. Imposition on employers of liability for industrial in- juries without regard to fault. 2. Settlement of disputes without trial by jury. 3. Substitution of fixed compensation for unliquidated com- mon-law damages. 4. Authorization of compulsory insurance of compensation liability. Assuming that it is desired to give the legislature full power to deal with these subjects, the problem reduces itself to the choosing of language on the one hand effective to accomplish the purpose and on the other not undesirably affecting unre- lated matters. Too much consideration cannot be given to the phraseology of a constitutional provision. The excellent draft- ing found in the United States constitution, as compared with that of recent constitutional conventions, is unquestionably due to the careful deliberation of able minds and persistent striv- ing for precise expression. The coming convention will be obliged to devote much of its time to the settlement of broad questions of policy; but it is to be hoped that the equally im- portant question of precise and effective expression of ap- proved policies may not be neglected. The compensation amendment adopted in this state in 1913 is certainly not a model of good constitutional drafting. Above all other suggestions it needs to be freed from unrelated pro- visions and unnecessary detail. If, however, it is revised in accordance with the suggestions which I am about to make, I believe it will be hard to improve upon it as an effective and satisfactory grant of needed legislative power. My sugges- tions for the revision are : 1. Transfer to some other part of the constitution the pro- visions authorizing the legislature to pass laws " for the pro- tection of the lives, health and safety of employes." 2. Drop the provisions excepting from cDmpensation in- juries wilfully self-inflicted or due to intoxication. 3. Drop the provision qualifying in favor of a compensation act the prohibition (article i section 18) of legislation abro- gating the right of action for death or limiting the amount (371) no REVISION OF THE STATE CONSTITUTION [Vol. V recoverable. This purpose may be readily accomplished by adding a simple exception at the end of that section. 4. Drop the provision authorizing the charge to operating expenses of the cost of compensation. 5. Add words authorizing the legislature to require pay- ment of compensation for occupational diseases as well as for " injuries." Most of these changes have to do with formal matters only and do not vary the substantive provisions of the amendment. If made they will result in reducing the length of the amend- ment from 239 words to 94 words, and will to that extent sim- plify its provisions. That part of the amendment authorizing the legislature to impose liability for compensation and to require its insurance is said to afford plenty of opportunity for restatement. As now phrased the amendment authorizes the legislature to impose liability for industrial accidents without regard to fault. It authorizes legislation requiring the payment of compensation by the employer or by the employer and his employes jointly " or otherwise," which at least makes possible state contribu- tion to the compensation. It authorizes legislation requiring insurance of possible liability and the payment of the insur- ance premiums by the employer or by the employer and his employes jointly. It authorizes the payment of compensation by a system of taxation if this should come to be regarded as more desirable than a system of insurance. It authorizes the settlement of disputes without recourse to trial by jury, and it leaves to the discretion of the legislature other details which may be involved in a desirable system. Like most other Eng- lish composition it is capable of improvement in phraseology and I am one of those who hope to see its form and phrase- ology perfected by the convention. At the same time I want to impress upon those who undertake the task the difficulty of providing the necessary grant of power without on the one hand interfering with desirable constitutional guarantees and on the other circumscribing the legislative discretion. Like many constitutional amendments recently enacted or (372) No. 2] WORKMEN'S COMPENSATION AMENDMENT m proposed in the several states, this compensation amendment involves the engrafting of a limited exception upon the limita- tions on legislative power contained in the bills of rights. This comparatively modern problem in the drafting of consti- tutional provisions arises from the novel purpose of many re- cent constitutional amendments. The early constitutions in this country were concerned principally with limitations on legislative power for the protection of the individual. Such limitations were imposed largely through general guarantees of individual rights and liberties which the legislature was forbidden to abridge. Recently we have recognized the need of legislative power to affect particularly the property rights of some individuals in the interests of the personal rights of others and of the public welfare. In the past we depended upon the courts to read into the constitution by liberal inter- pretation those exceptions which have been necessary to sup- port desirable legislation depending upon interference with property or personal rights of individuals. The courts have supported much legislation of this kind by establishing ex- ceptions to the bill of rights under such broad principles as the inherent police power of the state to limit the individual in furtherance of the general welfare. We should have had no need for a compensation amendment had not our court of appeals failed in the Ives case to make an exception in favor of the workmen's compensation principle. By this decision we were confronted with the necessity of phrasing an express exception to the general limitations on the legislature's power; not a restriction on the legislative power but an amplification of the restricted power. What has been necessary for workmen's compensation may likewise become necessary in other fields of social legislation. Social insurance is already on the horizon. Unless the courts by more liberal interpretation of the due-process and like clauses find constitutional support for this legislation — or un- less the late lamented recall of judicial decisions is resurrected in more popular form — we must go on adding similar excep- tions to the present constitutional limitations on legislative power until finally we shall be obliged to face frankly the (373) 112 REVISION OF THE STATE CONSTITUTION [Vol. V problem of rewriting our state constitutions from that point of view from which our fathers approached their task, viz., what, in view of existing problems and conditions, ought now to be inserted in our fundamental law by way both of grants of governmental powers and of restrictions on those powers. APPENDIX TO MR. PARKINSON'S PAPER Text of Workmen's Compensation Constitutional Amendments Arizona The legislature shall enact a workmen's compulsory compensation law applicable to workmen engaged in manual or mechanical labor in such employments as the legislature may determine to be especially dangerous, by which compulsory compensation shall be required to be paid to any such workman by his employer, if in the course of such employment personal injury to any such workman from any ac- cident arising out of, and in the course of, such employment is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inher- ent in the nature thereof, or by failure of such employer, or any of his or its officers, agents, or employe, or employes, to exercise due care, or to comply with any law affecting such employment. Pro- vided, that it shall be optional with said employe to settle for such compensation, or retain the right to sue said employer as provided by this constitution. California The legislature may by appropriate legislation create and enforce a liability on the part of all employers to compensate their employes for any injury incurred by the said employes in the course of their employment irrespective of the fault of either party. The legislature may provide for the settlement of any disputes arising under the legislation contemplated by this section by arbitration, or by an in- dustrial accident board, by the courts, or by either, any or all of these agencies, anything in this constitution to the contrary notwith- standing. New York Nothing contained in this Constitution shall be construed to limit the power of the Legislature to enact laws for the protection of the (374) No. 3] WORKMEN'S COMPENSATION AMENDMENT "3 lives, health or safety of employes; or for the payment, either by employers or by employers and employes or otherwise, either directly or through a state or other system of insurance or otherwise, of com- pensation for injuries to employes or for death of employes result- ing from such injuries without regard to fault as a cause thereof, ex- cept where the injury is occasioned by the willful intention of the injured employe to bring about the injury or death of himself or of another, or where the injury results solely from the ' intoxication of the injured employe while on duty ; or for the adjustment, deter- mination, and settlement, with or without trial by jury of issues which may arise under such legislation ; or to provide that the right of such compensation, and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employes or for death resulting from such injuries ; or to provide that the amount of such compensation for death shall not exceed a fixed or determinable simi ; provided that all moneys paid by an employer to his employes or their legal representatives, by reason of the enactment of any of the laws herein authorized, shall be held to be a proper charge in the cost of operating the business of the employer. Ohio For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment, laws may be passed es- tablishing a state fund to be created by compulsory contributions thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made there- from, and taking away any or all rights of action or defenses from employes and employers, but no right of action shall be taken away from any employe when the injury, disease or death arise from fail- ure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of employes. Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of con- tribution to such according to such classification, and to collect, ad- minister and distribute such fund, and to determine all rights of claimants thereto. Vermont The general assembly may pass laws compelling compensation for injuries received by employes in the course of their employment (375) 114 REVISION OF THE STATE-CONSTITUTION [Vol. V resulting in death or bodily hurt, for the benefit of such employes, their widows or next of kin. It may designate the class or classes of employers and employes to which such laws shall apply. Pennsylvania (Proposed by the legislature, 1913). The General Assembly may enact laws requiring the payment by employers, or employers and employes jointly, of reasonable compen- sation for injuries to employes arising in the course of their em- ployment and for occupational diseases of employes, whether or not such injuries or diseases result in death, and regardless of fault of employer or employes, and fixing the basis of ascertainment of such compensation and the maximum and minimum limits thereof, and providing special or general remedies for the collection thereof. Wyoming (Proposed Session Laws, 1913, p. 75). As to all extra-hazardous emplo5^ments the legislature shall pro- vide by law for the accumulation and maintenance of a fund or funds out of which shall be paid compensation as may be fixed by law according to proper classifications to each person injured in such employment or to the dependent families of such as die as the result of such injuries, except in case of injuries due solely to the cul- pable negligence of the injured employe. Such fund or funds shall be accumulated, paid into the state treasury and maintained in such manner as may be provided by law. The right of each employe to compensation from such fund shall be in lieu of and shall take the place of any and all rights of action against any employer con- tributing as required by law to such funds in favor of any person or persons by reason of any such injuries or death. Analysis of Provisions of Workmen's Compensation Consti- tutional Amendments [Showing variation in details) I. Express Authorization of Liability without Fault. California. Irrespective of fault of either party. New York. Without regard to fault, except where self-inflicted or due to intoxication. Pennsylvania. Regardless of fault of employer or employe. Arizona, Ohio, Vermont and Wyoming. No mention beyond general authorization of workmen's compensation. (376) No. 2] WORKMEN'S COMPENSATION AMENDMENT nt. II. On Whom Legislature May Impose Liability for Compensation. Arizona. Employer. California. Employer. New York. Employer, or employer and employe, or otherwise. Ohio. Employer. Pennsylvania. Employer, or employer and employe jointly. Vermont and Wyoming. No mention. III. Limitation of Legislative Discretion to Particular: 1. Employments. Arizona. Especially hazardous. Wyoming. Extra-hazardous. Other states. No mention. 2. Employers in such Employments. None in any state. 3. Employes in such Employments. Arizona. Workmen engaged in manual or mechanical labor. Other states. None. IV. Express Authorization of Legislative Classification of Employ- ments, Employers or Employes, and inclusion of some only of those within the Constitutional Provision. Vermont. Express authorization to classify employers and em- ployes. Other states. No mention. V. Constitutional Description of Injuries for Which Legislature May Provide Compensation. Arizona. Arising out of and in course of employment and caused by risk inherent therein or by employer's failure to exercise due care or to comply with any law. California. In course of employment. New York. Injuries and death resulting from injuries, except intentionally self-inflicted or due to intoxication. Ohio. Death, injury or occupational diseases occasioned in course of employment. Pennsylvania. Injuries arising in course of emplojnment and oc- cupational diseases whether or not resulting in death. Vermont. In course of emplojrment resulting in death or bodily hurt. Wyoming. In course of employment and death resulting there- from, except where due to culpable negligence. (377) Il6 REVISION OF THE STATE CONSTITUTION [Vol. V VI. Amount of Compensation Which Legislature May Provide. Pennsylvania. " Reasonable." Other states. No mention. VII. Constitutional Description of Beneficiaries. Arizona. Workmen alone mentioned. California. Employes alone mentioned. New York. No specification. Ohio. Workmen and their dependents. Pennsylvania. No specification. Vermont. Employes, their widows and next of kin. Wyoming. Workmen or their dependent families. VIII. Constitutional Provision as to Exclusiveness of Compensation System. Arizona. Injured employe expressly given option after the in- jury to take compensation or sue at law. California. No mention. New York. Legislature authorized to make compensation ex- clusive. Ohio. Legislature authorized to take away other rights of action or defense, except that employe's right of action shall not be taken away where injury results from employer's fail- ure " to comply with any lawful requirements for the protec- tion of the lives, health and safety of employes." Pennsylvania. No mention. Vermont. No mention. Wyoming. Right to compensation made exclusive of any other right of action. IX. Settlement of Controversies. Arizona. No provision. California. " By arbitration or by an industrial accident board, by the courts or by either any or all of these agencies." New York. " With or without trial by jury." Ohio. Legislature authorized to establish a board to administer funds and " to determine all rights to claims thereto." Pennsylvania. Legislature authorized to provide "special or general remedies." Vermont. No provision. Wyoming. Legislature given general control over insurance fund. (378) No. 2] WORKMEN'S COMPENSATION AMENDMENT 117 X. Express Authorization of Legislation Limiting Amount Recover- able for Death. New York. Authorization to provide that compensation " for death shall not exceed a fixed or determinable sum." Pennsylvania. Legislature authorized to fix maximum and minimum. Other states. No provision. XI. Express Authorization to Charge Compensation Cost to Operat- ing Expenses. New York. Employers expressly authorized to charge such costs to operating expenses. Other states. No provision. (379) THE FUTURE OF THE WORKMEN'S COMPENSATION AMENDMENT' HENRY R. SEAGER Professor of Political Economy, Columbia University THE most satisfactory basis for the discussion of a paper is strong "dissent from the views expressed in it. I am in the embarrassing situation of agreeing very cordially with nearly everything that Mr. Parkinson has said. This is perhaps because we have worked together on this compensation question from the time when the Ives case was decided, ap- peared together at Albany in support of this amendment, and discussed so fully every important phase of the problem that we have come to view it in very much the same way. There ought to be no question as to the future of the compensation amendment. An overwhelming majority of the people of the state — nearly all wage-earners, a very large number of em- ployers and most disinterested citizens — desire that in the new constitution, as in the present one as amended, the legislature shall have a free hand to deal with the compensation problem as reason, a sense of justice and experience may determine to be best. The aspect we are to discuss, I take it, is not whether the result secured through the amendment shall be jeopardized, but by what means that result can most surely be preserved. Mr. Parkinson has clearly analyzed the amendment into its three parts. I agree with him that the phrase authorizing the legislature to pass laws for " the protection of the lives, health and safety of employes " ought to be put in a separate section. I think, however, that so long as the bill of rights is retained that phrase serves the useful purpose of admonishing the courts that they are not lightly to set aside enactments which have these ends in view. So long as the Fourteenth Amendment ' Discussion at the meeting of the Academy of Political Science, November zo, 1914. (380) WORKMEN'S COMPENSATION AMENDMENT ng Stands, there is no danger that liberty or property rights will be unreasonably invaded through the exercise of this legislative power. I also agree with his formulation of the essential provisions of the amendment. After struggling over the phrasing of these essential provisions, first as a member of the Wainwright Com- mission, later as a member of a special committee of the Asso- ciation for Labor Legislation, and lastly in consultation with Senator Bayne when he was giving the amendment its final form for introduction in the senate, I feel even more strongly than he does that the burden of proof that the phrasing can be improved should rest heavily on the proponent. As he has re-stated it, it removes all the difficulties which other provisions of the constitution might be held to oppose to a well-rounded compensation system. Form is doubtless important in consti- tution drafting, but substance is even more essential. I think that all agree that in the amendment as it stands we have all the substance that we are after. That the additional clauses inserted in the assembly, and accepted by the senate only to avoid the catastrophe of having no compensation resolution at all adopted, should now be dropped out as inappropriate, even though harmless, I think all will agree. This is one way of preserving the result achieved when the amendment was adopted. If the constitutional con- vention is to limit itself to turning out a re-edited and expur- gated edition of the present constitution it is all that we should demand. There is, however, another and more radical way of preserv- ing the result. Instead of qualifying the provisions in the pres- ent constitution that stand in the way of compensation legislation, those provisions might themselves be dropped out. This seems at first a revolutionary proposal. We have become so accus- tomed to the idea that the protection of liberty and property from legislative encroachment depends on the inclusion of a bill of rights in our state constitution that the proposal that we omit this feature seems equivalent to the suggestion that we surren- der a precious inheritance. But this clearly is not the case. The Fourteenth Amendment as interpreted by the Supreme (381) I20 REVISION OF THE STATE CONSTITUTION [Vol. V Court preserves those rights as surely as does the bill of rights in any state constitution. Why retain both these bulwarks of liberty and property, when one would suffice ? To do so has the obvious disadvantage of encouraging diversity of state leg- islation as regards those very matters where uniformity is most desirable. The interests of business men demand uni- form compensation laws, uniform labor laws and uniform stand- ards as regards all the relations of employers and employes from one end of the country to the other. Only through such uniformity can the employers of one state be protected from be- ing placed at a competitive disadvantage in comparison with the employers of other states. And so far as constitutional limitations influence the course of legislation, the only method of securing uniformity is to leave it to one tribunal, the Su- preme Court of the United States, to decide when liberty has been unreasonably restricted or property has been taken with- out due process. I submit that such an omission from the con- stitution of all the provisions that stand in the way of compen- sation laws, labor laws and other needed social legislation is more rational and expedient than the method we have been pur- suing in the past. In place of the bill of rights and the other limiting provisions on legislative power I should like to see in- serted in the new constitution a broad provision that the legis- lature shall have power to enact laws regulating the relations between employers and employes and promoting the health, safety, morals and general welfare of employes that are not in violation of the federal constitution. This procedure would go far toward realizing the ideal that was presented by several of the speakers yesterday of a constitution that is so plain, so sim- ple and so brief, that in voting upon it every elector could under- stand clearly what he was doing. By adopting such a con- stitution in New York and in the other states we might as the years go on gradually extricate durselves from the confusing hodgepodge of diverse statutes and conflicting judicial decisions that now impede our national progress. I see no other equally simple means of escape from our present constitutional diffi- culties. (382) No. 2] WORKMEN'S COMPENSATION AMENDMENT 121 J. HAMPDEN DOUGHERTY Workmen's compensation involves abandonment of the com- mon-law rules as to master and servant first definitely formulated in England in 1837 and in this country in 1841. The new doc- trine takes no account of the fault of master or fellow-servant, pays no heed to contributory negligence, but proclaims that wherever a workman has been injured in the course of his em- ployment unless by his own wilful act, compensation should be paid to him. This compensation is not the equivalent of the dam- ages which might be assessed at common law, but ordinarily is about one-half of such sum. The underlying theory is that in- dustrial risks are apparently inseparable concomitants of modern industrial enterprise. Attempt to decide who is at fault proves in most instances to be futile. The application of common-law rules has been found impracticable. The litigation consequent upon injuries has. been expensive to employers and unsatisfac- tory to employes. Not only is there a failure of justice be- tween master and workman, but society has to bear an intolera- ble burden through the death or maiming of workmen and the impoverishment of their dependents. In such a situation the common law has proved to be bankrupt. There are many divergent views of workmen's compensation, although it seems obvious that it has come to stay. Starting in Germany it has made its way over Europe and into parts of the distant east, and has been adopted in one-half of our states. It has been said that " the time-honored principles of the law of torts have been cast aside, a wider rule of responsibility has been framed and no man can now say what will be the ultimate effects of the new doctrine;" that "workmen's compensation marks the commencement of a new era in relation to liability for personal injuries;" is " based upon a new and startling prin- ciple ;" that " the common-law system of law rules ... is ethic- ally bad and economically unsound, and should be thrown into the scrap heap with other wornout machinery". In explaining the principle of the lever Archimedes told the tyrant of Syracuse that with a long enough lever he could move the world. It was merely a question oi pou sto. With a proper (383) 122 REVISION OF THE STATE CONSTITUTION [Vol. V understanding of the workmen's compensation doctrine it would seem possible to fit it into our system of jurisprudence without a revolutionary shock to that system or abandonment of justly cherished fundamental principles. Damage to the human organism is as much a destruction of material of industry as is the wear and tear upon machinery. It is part of the cost of the commodity in the production of which the injury occurs. We have all seen mechanism acting under hidden guidance, moving accurately to its place of duty at the precise moment when needed, seizing the material there awaiting it and carrying it to an appointed spot as if it were a living creature obeying a superior will. Use and new inven- tions lead to the discard of such a mechanism, its value being charged off and a machine of similar or superior function re- placing it, all at the cost of the business in which it is a factor. The human machine fulfilling an analogous place in production is under the inexorable logic of an archaic legal rule sardonically treated as a free agent, consciously accepting unimagined risks and assenting to common-law theories, unmindful of the fact that they may place life or limb at the mercy of agencies invisible and incomprehensible. The common-law theory is that no matter what form industry may assume, what peril may habitually be incurred, law cannot curtail liberty of contract between employer and workman. There is said to be implied in the contract an assumption of all risks inherent in the employment, however appalling or unim- aginable, as well as those due to fellow-servants, or those to which the workman himself may have contributed in the most remote degree. This implied contract extends even to children of tender years who, under other principles of law, are deemed incapable of contracting. Upon any different terms, it is said, the employer could not conduct his business, as he could never foresee the extent of the financial risks he would run. From his side this is perfectly sound, although he is oblivious of the risks which the workman runs who, upon his side, may answer that he contracts to do service, and that the destruction of his life or the maiming of his person would interfere with the per- formance of his contract. This is one of many paradoxes in (384) No. 2] WORKMEN'S COMPENSATION AMENDMENT 123 which the subject is involved. The courts admit that the legis- lature may abolish the rule of contributory negligence and the fellow-servant principle, but some seem to say that it cannot abolish assumption of risk. If the legislature may abrogate the first two defenses, it can impose upon the employer liability for the fault of the fellow-servant or the contributing fault of the in- jured workman, even though the master be not himself at fault. What is the essential difference between such legislation and a compensation law? Part of the business of modern society is done under conditions habitually perilous to those who carry it on. Society must therefore have the right to decide under what restrictions this labor is to be conducted. The broader one's study of this subject the more compelling is the conclusion that jurisprudence must recognize that a situation has arisen in which old categories have ceased to be of value ; they must indeed be relegated to the scrap heap, and new principles adopted. The profoundly grave nature of the problem becomes the more apparent when the decision of the court of appeals in the Ives case is analyzed. If workmen's compensation offend against due process of law, the principle of compensation can never be incorporated in our state constitution, and if it could, it would still run counter to the fourteenth amendment to the federal constitution. If liability cannot properly be imposed upon the employer regardless of fault, insertion of the counter- proposition in a constitutional amendment will not save that amendment from successful attack in the courts. If the court of appeals was right in the Ives case, it would be its duty, if ever the case arise, to condemn the new statute and the con- stitutional amendment as an infringement of due process of law. The people of the state have no more real power than the legislature to override fundamental constitutional guaran- tees. And if the court was right, there is no way to secure a compensation law without an amendment to the federal con- stitution. In effect the court itself has said just this. The Wainwright law takes the employer's property away and gives it to the employe — something forbidden by the state constitu- tion, as it then was, and still forbidden by the federal consti- tution, and something that can never be permitted while the (3SS) 124 REVISION OF THE STATE CONSTITUTION [Vol. V federal constitution remains as it is. Why then should the court recommend " an appeal to the people? " As has been well said : " A court which condemns a rule of law as contrary to due process should not suggest a remedy by an appeal to the people, for such a suggestion creates the impression that the principle of due process is one susceptible of improve- ment." This was the initial problem confronting the framers of a constitutional amendment — how to draft an amendment con- taining such an artificial limitation upon due process as the decision of the court necessitated, unless all hope of amelior- ating legislation was to be abandoned. If such legislation was unconstitutional as against due process of law a constitutional amendment would have to invade the field of due process and limit it in order to permit of such legislation. What must be clearly understood is that the court of appeals has forced this issue. Those who advocate workmen's compensation must either acknowledge its irreconcilability with the fundamental principles of our government, or hold that the court was wrong. Whatever criticism of the form or scope of the amendment may be proper, the amendment really settles nothing. The issue persists. Was the court right or wrong? If right, no amendment is possible until the constitution of the United States shall have been so changed as to except legislation in the interest of labor from the operation of the due-process clause of the federal constitution. The Constitutional Amendment of igi2 We are now in a position to consider the phraseology of the recent amendment to the state constitution. In effect, it de- clares that due process shall not stand in the way of whatever the working classes seek. It goes much further than neces- sary. It establishes a class principle, is a constitutional recog- nition of workmen as a favored class ; whereas the state police power is ample for the protection of all classes without singling out one class for specific mention. The primary object of those who drafted the present amendment was so to broaden (386) No. 2] WORKMEN'S COMPENSATION AMENDMENT 125 the constitution as to permit any legislation whatever that labor might demand as in its interest. There is truth in the criticism that it would justify " any enactment, however op- pressive or confiscatory, . . . provided only that it related in any way, directly or indirectly, to the multiform and complex subject of the protection of the lives, health or safety of em- ployes." Mr. Parkinson is quite correct in asserting that " if any such authorization was proper, it ought not to be per- mitted to encumber the compensation provision." Who is responsible for the insertion of the clause authorizing public utility companies to charge the cost of compensation to oper- ating expenses in the computation of the reasonableness of their rates, is one of the mysteries behind legislative activity. No such idea was formulated in the proposed amendment at the time when it was under discussion before the joint legislative committee. I was present at the hearings, criticized the amend- ment, and urged the committee to report in favor of the bar association amendment. The Form of Amendment Proposed by the Bar Association As one of the draftsmen of this form of amendment in which, I think, first appeared the initial expression, " Nothing in this constitution," etc., I am able to explain the reasons for using this expression. The court of appeals having held the due-process clause of the state and of the federal constitution to be an insuperable obstacle in the way of the Wainwright law, the question was how to formulate an amendment which should not say upon its face that although workmen's compen- sation laws were in violation of due process, due process should nevertheless be held not to be thus infringed. There were two precedents which might be followed in an evasion of an apparently flagrant antagonism: (i) the amendment to the state constitution of 1801 declaring that nothing in that clause of the constitution of 1777 creating the council of appointment should be deemed to withhold from any member of the coun- cil the right of nominating persons to office; and (2) the better known case of the eleventh amendment to the constitu- tion of the United States which declares that " the judicial (387) 126 REVISION OF THE STATE CONSTITUTION [Vol. V power of the United States shall not be construed to extend to any suit at law or equity commenced or prosecuted against one of the United States by citizens of another state or sub- jects of any foreign state." Nearly all the subsequently drafted forms of amendment copied this initial phrasing, " Nothing . . . shall be construed," etc., and it is now part of the constitution. The bar association's draft, as originally pre- pared, conformed quite closely with the model which Mr. Parkinson seemingly has in mind. It did not limit compen- sation to " reasonable " compensation, made no reference to hazardous employments, and had little if any superfluousi phraseology. It contained no authorization of legislation to protect the lives, health or safety of employes. The words, " arising in the course of employment," do not, I think, " en- graft on the compensation system the common-law doctrine of assumption of risk." Perhaps they might be eliminated. However that may be, such an amendment would be prefer- able to that actually adopted with its " general-welfare " pro- vision for workmen as a favored class. Mr. Parkinson gives a brief skeleton of what a workmen's compensation amendment should properly contain. It is 94 words in length ; the amend- ment originally presented to the bar association of the city of New York, 102 words, and several of these might be expunged. How close is the correspondence between the two will be seen by placing them in parallel columns : (388) No. 2] WORKMEN'S COMPENSATION AMENDMENT 127 Bar Association Draft Nothing in this constitution shall be construed to forbid the enactment of laws requiring the pajrment, by employers or em- ployers and employes jointly, of just compensation for in- juries to employes arising out of and in the course of the em- ployment, whether the same be fatal or otherwise, and regard- less of fault of employer or em- ploye; or to forbid the enact- ment of laws in relation to the assurance of such compensa- tion; or to deny the power of the legislature to abolish com- mon-law or statutory rights of action for damages for such in- juries, when providing for pay- ment of such compensation or the asstirance thereof. Mr. Parkinson's Draft Nothing contained in thiSf constitution shall be construed to limit the power of the legis- lature to enact laws for the pay- ment either by employers or by employers and employes, or otherwise, either directly or through a state or other system of insurance, or otherwise, of compensation for injuries to or occupational diseases of em- ployes or for death of employes resulting from such injuries or diseases, without regard to fault as a cause thereof, or for the adjustment, determination and settlement with or without trial by jury of issues which may arise under such legislation. The phrase used by Mr. Parkinson " without regard to fault as a cause thereof " might be held to embrace injuries alto- gether due to outsiders — not within the risks of employment. The words in his draft, " issues which may arise under such legislation," are somewhat obscure. And the words "or other- wise " would sanction general taxation as the basis of compen- sation. The people have not, I think, definitely decided to impose the risks of business directly upon taxpayers. It should be noted that the workmen's compensation statute enacted in 1914 fails to provide how any deficit in the state insurance fund shall be made good. The employer who pays premiums into a state fund is released from all liability, the statute ex- plicitly declaring that " the persons entitled to compensation under this chapter shall have recourse therefor only to the state fund and not to the employer." Any possible deficit is not, however, to be made up by the state. There can be no fair criticism of the first form of amend- (389) 128 REVISION OF THE STATE CONSTITUTION [Vol. V ment as antagonistic to either section i, 2, 6 or 1 8 of article I of the state constitution. Nor would it, I think, conflict with the provision (section 2i article III) forbidding payment from the state treasury of funds of the state or funds under its management except by legislative appropriation. It would not be felicitous drafting to place at the end of that section words implying that the section is not to apply to the work- men's compensation fund. If any reference to that subject be necessary it could more aptly be made in the middle of the section (21 ). Many would like to see adopted a constitution that would be a model in form and idea, but expediency may require a sacrifice. All superfluous phraseology should be resolutely cut out. Every word should be challenged to ex- plain its office. To summarize as to this point : There should be taken from the amendment the broad grant of legislative power to put workmen in a favored class, and the amendment should be limited to the subject of compensation to be secured through insurance, and ascertained not by a jury trial but by means of a commission, ; ■,; To take out of the state constitution the bill of rights, as Professor Seager proposes, which has been in the organic law since 1822, because there are like guarantees in the federal constitution,'' might prove a dangerous innovation. Ever since constitutions have- been submitted to the voters of this state for ratification the policy has always been to submit them en bloc, because of the practical difficulty in having a vote on each section separately. Separate questions have at times been submitted, but there has never been a submission section by section of the entire constitution. This makes it important that changes of doubtful wisdom be not approved by the con- vention lest the momentum which carries the good would in- sure their adoption also or opposition to them prevent the ac- ceptance of a constitution that without them would probably have been ratified. Uniformity of decision as to due process ^The fifth amendment to the federal constitution has no application to the states, in no way affects their powers. That is the province of the fourteenth amendment. (390) No. 2] WORKMEN'S COMPENSATION AMENDMENT 129 might be realized if the federal law permitted review by the United States Supreme Court of decisions of state courts, whether those decisions upheld or set aside a state statute. The Senate of the United States, at the instance of Senator Root, has twice passed a bill of this kind. In closing let me briefly repeat what I have already said. The magnitude and complexity of modern industrial enter- prises are such that the legal principles found adequate in a simpler and more rudimentary society are unsuited to the situ- ation. It is comparatively easy for courts to say that the common-law rules underlie every contract of employment, that any legislative attempt to substitute a different system of ad- justment for the common-law procedure in cases of workmen's injuries is unconstitutional, but that will no more be accepted than Judge Taney's dictum regarding the negro in the Dred Scott case. Beside framing an amendment — a task sufficiently difficult — we must find the principles upon which it shall se- curely rest, and that is a work to enlist the best juridical thought. This serious obligation confronts us, for the mere existence of the power to carry a constitutional amendment is not sufficient to justify it and will not save its offspring, a new compensation law. Something more than force majeure is needed. Workmen's compensation cannot be made right by mere count of votes. A constitutional provision declaring that legislation shall not be construed to deny due process of law, which nevertheless does deny it, must itself be unconstitutional. One of two things follows: Either such legislation is and al- ways has been defensible under our organic law, or it can never be made so under our system of jurisprudence. Such immemorial guarantees as that of due process of law are co-extensive with the whole field of human rights, are abiding and immutable. But they may be maintained in full vigor without S'olidifying society into a condition of immo- bility in which social and legal reform becomes impossible. They cannot fairly be held to stand in the way of the beneficent purpose of an enlightened and intelligent people in dealing with labor problems that are peculiar to modern industry and for the solution of which the old rules are totally unfitted. (391) LABOR LEGISLATION AND THE CONSTITUTION* ABRAM I. ELKUS Chief Counsel, New York State Factory Investigating Commission PRACTICALLY all our labor legislation derives its author- ity from what is known as the police power. There is a section in the present constitution of this state (article I section 19) which has been alluded to by the previous speak- ers, and particularly by Mr. Dougherty, which provides that nothing in the constitution " shall be construed to limit the power of the legislature to enact laws for the protection of the lives, health or safety of employes." I am rather inclined to agree with Mr. Dougherty's criti- cism that it is improper to limit such a provision to employes alone, as being in a measure a class provision. But after all it does seem absurd that anything should have to be put in the constitution which, in so many words, provides that noth- ing in the constitution shall prevent the legislature from legis- lating for the protection of the life and health of all the peo- ple of the state. Despite the fact that the police power of the state seems broad enough to cover legislation of the kind which we are discussing, as a matter of fact there have been three or four cases which it was claimed come clearly within the provisions of the constitution, where the courts have said that the legislation was unconstitutional. We have had the earlier workmen's compensation law declared unconstitutional because it violated the provision of " due process of law," al- though it provided for the protection of the lives of employes. We have had two cases which seem in a more marked de- gree to come within that provision. One was where the legis- lature passed an act providing that women should not work in factories during the night, which the court of appeals de- 1 Read at the meeting of the Academy of Political Science, November 20, 1914. (392) LABOR LEGISLATION AND THE CONSTITUTION 131 dared was unconstitutional, as interfering with the liberty of the individual.^ The second was the case where the legislature passed an act prohibiting the making of cigars in tenement houses, and the courts declared the law unconstitutional.^ In the case relating to night work for women, it is true that the decision in part was based upon the particular facts in that case. There was nothing before either the legislature or the courts which appeared to justify a statute prohibiting women from working at night because of injury to their health or to their morals. Therefore upon the recommendation of the Factory Commission, based upon facts gathered by the com- mission itself, and upon observation of women working at night in the factories of the state, a statute differently worded was passed by the legislature, declared constitutional by the appellate division of the supreme court of this department, and is now before the court of appeals for its final decision. There are four subjects for amendments or additions to the constitution which I should like to have the privilege of dis- cussing with you to-day. In the first place, we now have upon our statute books sta- tutes regulating the hours of labor of women and children; that is, there are laws which provide that a woman shall not work more than a certain number of hours a week in a factory or in a mercantile establishment. There are other statutes which provide that children shall not work more than a cer- tain number of hours a day. These laws have all been held to be a proper exercise of the power given to the legislature, and not contrary to the constitution. But the courts have held that the legislature has not the power to regulate or prescribe the number of hours during which men may work, and the first subject I want to take up is whether or not the constitution should authorize the legislature to enact such legislation. During the course of work of the commission we found men working sixteen, eighteen and twenty hours a day. We found these men working in dust, in dirt and in grime, under con- 1 People V. Williams, 189 N. Y. 131. 2 In re Jacobs, 98 N. Y. 98. (393) 132 REVISION OF THE STATE CONSTITUTION [Vol. V ditions which seem almost impossible to describe, and which one would doubt if he had not seen them for himself. It is true that the men in most of the trades have organized; they have their own unions and associations, and with the power of association and cooperation they have been able, without legislative authority, to regulate the hours of labor in many of the trades. But it seems impossible that this form of co- operation could extend and apply to every trade and to every workingman. As long as we regard the life of the working- man as one of the greatest assets of the state, as we should, w& ought by the constitution at least to authorize and empower the lawmaking body of the state to say that men shall not work longer than a certain number of hours, when existing facts make such a law necessary, and this whether the excessive hours of labor are due to the employe's desire for gain or to the cupidity of the employer. Judge Vann, of the New York court of appeals, said : It is to the interest of the state to have strong, robust, healthy citizens, capable of self-support, of bearing arms and of adding to the resources of the country. Laws to effect this purpose by pro- tecting the citizen from overwork and requiring a general day of rest to restore his strength and preserve his health, have an obvious con- nection with the public welfare. . . . The physical welfare of the citizen is a subject of such primary importance to the state, and has such a direct relation to the general good, as to make laws tending to. promote that object proper under the police power, and hence valid under the constitution, which " presupposes its existence, and is to be construed with reference to that fact." ^ Another matter of importance, so far as labor legislation is concerned, with which, it seems to me, the constitutional con- vention should deal, is empowering boards or commissions to do what has been termed by the courts as legislating, not giving a widespread power to do what they please, but within limits properly safeguarded and cared for giving them power to make more than mere rules and regulations in order to carry out statutes which are broad and general in their nature. ^ People V. Havnor, 149 New York, 195. (394) No. 2] LABOR LEGISLATION AND THE CONSTITUTION 133 When, after the investigations of the commission I have re- ferred to, we drafted many laws to remedy the conditions that existed, we were bound not only by the precedent of previous legislation but by the inhibition of the constitution, as it was construed, to make detailed requirements in the statutes for the safety of men and women and children who worked, for their preservation in case of fire, and for the improvement of the sanitary conditions surrounding them in their work. We had to deal with broad general conditions, and then to state in the statute every detail we possibly could to cover every case that might come before the administrative officials for their consideration. When by statute we reorganized the labor department, we did attempt to provide for some little discre- tion. An industrial board, consisting of five members, was created, and to them was given power, within certain limits, to make rules and regulations carrying out more or less gen- eral statutes. The board was given power to make, alter and repeal rules and regulations for carrying into efEect the provisions of the labor law, and to apply such provisions to spe- cific conditions and to prescribe specific means, methods or practices to make such provisions eflEective. Such rules and regulations may apply in whole or in part to particular kinds of factories or work- shops or.to particular machines, apparatus or articles, or to particular processes, industries, trades or occuJ)ations. It was generally thought that labor laws, like many others, should be absolutely rigid, for then there would be no discre- tion lodged in anyone, and consequently no abuse of discre- tion. But after the laws have been in effect for a year, the commission has been surprised to learn that from all over the state, from every source, the employers and manufacturers as well as the workingmen, there has arisen a demand, increasing every day, that this power to make rules and regulations should be broadened immensely and that the discretion vested in the board should be increased. To what end? Because it was found that such a board, being in close touch with the in- terests involved, and seeing with its own eyes the situations (395) 134 REVISION OF THE STATE CONSTITUTION [Vol. V about which it was to make rules and regulations, could act in a way satisfactory to all. Now the courts did decide that a general statute could be passed and the legislature could leave to administrative offi- cials the power, as was expressed in one opinion, " to fill in de- tails." And in an opinion of the United States Supreme Court, Chief Justice Marshall — ^the greatest justice the court ever had — said that when that power was exercised, the courts would be very slow to interfere, and very hesitant to say that the exercise went beyond mere regulation, the mere making of rules. The learned justice said: But the maker of the law may commit som.ething to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a coiurt will not enter unnecessarily.^ But anything beyond regulation would be beyond the power of the legislature to delegate constitutionally, being contrary to the " due-process-of-law " provisions in the state and fed- eral constitutions. The distinction between powers strictly legislative and those which may lawfully be delegated to ex- ecutive authorities is somewhat tenuous. May not the rights, therefore, of individuals be quite as safely and properly controlled by the judgment and discretion of an administrative body — if, indeed, not a great deal more safely and properly — as by the discretion of the legislature? The courts have realized that the practical necessities of gov- ernment have compelled them to overcome the objection to the delegation of power to legislate. The diversity and the intricacy of the situations calling for legislation require that undoubted authority to " fill in details " in a general statute shall be given to an administrative body, wisely and carefully chosen, whose authority shall be carefully safeguarded. Au- thority to a legislature to delegate its powers should be grudg- ingly, if not sparingly, accorded. But if labor laws are to have that broadness and elasticity necessary, then authority ^ Nayman v. Southard, lO Wheaton i. (396) No. 2] LABOR LEGISLATION AND THE CONSTITUTION 135 should be given to the legislature tO' grant powers which may- be beyond the mere making of rules or filling in of details. While it is true that " the executive, legislative and supreme judicial powers of the government ought to be forever separate and distinct," it is also' true that the science of government is a practical one. Therefore, while each branch of government should firmly maintain the essential powers belonging to it, it cannot be forgotten that the three coordinate parts constitute one brotherhood, that they have a common trust requiring mutual toleration of the occupancy of what seems to be a "com- mon because of vicinage " bordering the domains of each. One whose rights are affected by governmental action is usually protected from an arbitrary exercise of power by one official or body because concurrent action of two or more de- partments is required. But is this necessary in all cases? Will not an administrative body, with limited general author- ity, protect and preserve such rights just as fairly — nay, even more so ? Surely far less complaint will be had with a law so administered. The third proposition relates to what is known as " home work." I do not know whether many of you know that in this state, not alone in the cities, but outside, the factories send a part of the work to people to be done in their homes. Now I have no doubt that originally that was beneficial. It helped many a woman to eke out her husband's scanty pay by doing some work in her spare hours. But an investigation showed ■ that most of this work was carried on under conditions which were distressing from the public standpoint, especially from the standpoint of public health. In many cases foodstuffs, things that we daily eat, were manufactured in conditions that were vile beyond expression, where there was sickness, sometimes of a contagious nature, where there was filth, and in rooms where people lived day and night; and were handled by people who were unclean. Wearing apparel and clothing of every description was, and is to-day, manufactured under these conditions. The legislature, it was thought, had no power beyond cer- tain limits to affect this business or industry. The legislature (397) 136 REVISION OF THE STATE CONSTITUTION [Vol. V did prohibit the manufacture of foodstuffs in homes because it was deemed that that was within the exercise of the police power. It also prohibited the manufacture of clothing for children, because it was found that clothing so manufactured had carried with it the germs of disease to the children who wore it, and that deaths resulted as a consequence. But be- yond that, all that the legislature could safely do was in some way to endeavor to regulate, by tracing the ownership of these materials. This question is one that should come before the convention as to whether or not the legislature should be authorized to deal with the subject of making goods in the homes of the workers, either to prohibit it or to place it under such strict regulation that no harm and no injury could come to the great body of the people who use unknowingly all of these things which are made under these conditions. There is an economic side to that problem also. The manu- facturer who carries on his business in his factory must neces- sarily pay rent and the other expenses of carrying on his busi- ness. By making the tenement house or the home an annex to the factory, the manufacturer who does that kind of work of course saves a proportionate amount of expense, and he hcis an unfair advantage in the competition of business over the manufacturer who does not. The last question which I wish to discuss is what is known as the minimum-wage question. The commission during the past year has been engaged in gathering statistics, getting exact facts as to wages paid in various employments through- out the state, so that it will be able to present to the legisla- ture which meets next year, and also to the convention, a mul- titude of facts and figures upon which both the legislature and the convention may base action. New York has long been accustomed to legal protection of its workers as to conditions under which labor is carried on. Regulation, by law, of wages in private employment is com- paratively new in any state of the Union. Massachusetts began with the provisions for a wage commission in 191 2, and since then eight other states have enacted some kind of wage legislation. (398) No. 2] LABOR LEGISLATION AND THE CONSTITUTION 137 That the legislature should be authorized to enact such legislation is far better than to have such legislation enacted and then go through the agonies of testing its constitutionality. The constitution need not commit itself to the principle of the minimum wage, if its framers are either undecided or ad- verse, but no harm, and only good, can come if power be given to the legislature to provide for a minimum wage if it deems it advisable. Despite the fact that authority may be found for sustaining a minimum-wage law under our present constitu- tion, it would be far better to enact some suitable provision au- thorizing the legislature to do what it wishes in this matter. It is true that law is a progressive science, and it hcis been well said that while the principles of justice are immutable, changing conditions of society and the evolution of employ- ment make a change in the application of principles absolutely necessary to an intelligent administration of government. The state uses all its power to conserve its great natural re- sources and assets — its rivers and streams, its trees and forests, its land, its animals, fish, fowl and mineral wealth — and the constitution should give every power to the legislature to en- able it to conserve its greatest asset — human life. To regulate labor fairly and properly means that our hospitals will not have so many inmates, sick and maimed; our people will not grow old or die before their time, or be sick when they should be well — an economic gain not alone to those who work but to all the people of the state. (399) LABOR LEGISLATION AND THE CONSTITUTION ^ OWEN R. LOVEJOY Secretary, National Child Labor Committee THE time is so brief I will confine myself to one point, the third, which Mr. Elkus mentioned in his outline — the possibility of incorporating in the constitution a provi- sion which shall give the legislature power to regulate abso- lutely the nature and condition of places in which manu- facturing is carried on. The regulation of employment in tenement houses was one of the important questions before the factory investigating commission during the past two years, and some of the most striking evidence of bad industrial conditions was regarding child labor and unsanitary surroundings in tenement homes in this city. When we presented some of the evidence gathered before the commission was created, and further evidence gathered in cooperation with it, we urged upon the commission the possi- bility of introducing a bill in the legislature which should ab- solutely prohibit the manufacture or preparation of any goods for commercial purposes in tenement rooms, and unless I £un mistaken there was a very strong conviction on the part of the commission that this would be in the interest of social conservation as well as in the interest of good business. But the commission faced the problem which Mr. Elkus has been discussing, of having such a bill meet the test of the courts. It was believed that if a broad provision covering every- thing should become law, the courts would hold it unconstitu- tional; therefore, as he has explained, the new law provides against the manufacture of foodstuffs and of infants' wear, and it further provides that no child under fourteen years of age ^ Discussion at the meeting of the Academy of Political Science, November 20, 1914. (400) LABOR LEGISLATION AND THE CONSTITUTION 139 shall be employed in tenement rooms to work either for out- side parties or for its own parents. The point we urged against this bill, while pending, was that in its very nature it is un- enforcible. No matter how imperative it is from the stand- point of good law to see that a law is so constructed that it will pass the test of the courts, we, as laymen, as citizens of the state, are concerned to see that conditions shall not con- tinue to jeopardize the health both of the producer and of the consumer. We contended that whereas a small force of fac- tory inspectors might inspect our factories, or mercantile in- spectors might inspect our stores, because everything is open, and one man going on the floor of an establishment will be able to see practically all that is going on, tenement-house in- spection is of an entirely different nature. If we were to ad- here to the state's policy of an eight-hour day for its employes it would require thirty-nine thousand inspectors in order to inspect thoroughly the thirteen thousand licensed tenements in this city, in which goods might be manufactured for the market. We should need one inspector for each tenement for each eight-hour shift in the twenty-four; because the hour before the inspector comes or the hour after he is gone, no one can tell whether child labor is being employed or not, or whether conditions prevail that could not pass the test of the state's rules. We contended that it is impossible for one inspector to go about from place to place and be sure that his inspection is thorough; that tenement-house inspection, in a way, is like meat inspection, where the government inspector goes into a packing house, and stays in one place from the time it opens until it closes, inspecting every particle of product that passes through the establishment. We are not sure what the result of the new law has been be- cause we have been unable to make any investigation, and I think the commission has been unable to make any investiga- tion since the new law went into effect. We have the impression from various sources interested only in public welfare, that while the inspectors have been vigi- lant and faithful in the performance of their duties, they have (401) I40 REVISION OF THE STATE CONSTITUTION [Vol. V not been able to discover the root of the evil, and that chil- dren, even to-day — or rather after school hours to-night, and as late into the night as they can be kept awake — children as young as six and five and four years are still employed in pick- ing apart petals for the manufacture of artificial flowers, doing the simpler processes in embroidery work, and doing other things still carried on legally in the tenement houses of this city. Therefore, as neither a political economist nor a lawyer, but simply as a citizen of the state of New York, I want to urge with all possible emphasis that the new constitution shall provide in some way, either specifically, or by withholding any limitations, that a law may be passed which shall prevent the continuance of the distribution of the charges of manu- facture among the helpless, disorganized, inarticulate army of ignorant workers who are employed to do the simple processes in our industrial work. They are helpless; they cannot get together; there is no way for them to organize; they do not even know of one another's existence, and the possibility of improving conditions seems to me to lie only in the absolute elimination of the process. That is the first point I want to present. But even if we do this as citizens of New York, we should still be, in a measure, helpless, because the legal provision I have been urging is not only for the protection of the em- ployes, of the producers in the tenements, but for the protec- tion of the consumer. We do not wish to receive goods pre- pared under conditions which may jeopardize health when they come into our homes. Suppose this law were passed or incorporated in the new constitution. We should then see a still greater exodus than has already occurred of the New York city tenement-house manufacturing industries to the Jersey shore, to be carried on under the very conditions we have condemned in the metro- politan district on this side of the Hudson River. In order to prevent that, let me suggest that under the general " limita- tions on governmental powers " the citizens of New York are powerless to protect themselves from the bad policy that may continue for a few years in New Jersey. Since New York is (402) No. 2] LABOR LEGISLATION AND THE CONSTITUTION 141 powerless to protect itself, since it has delegated this power to another governmental power, namely, the federal govern- ment, I want to urge that those interested in securing this sort of protection shall interest themselves also in the passage dur- ing tlie present Congress of the Palmer-Owen Bill, which seeks to forbid interstate commerce in the products of child labor. Such a law would make it impossible for our friends over in Jersey to ship their tenement-made goods to us. JOHN B. ANDREWS Secretary, American Association for Labor Legislation Concerning the points raised by Mr. Elkus I wish merely to say that the movement for minimum-wage legislation for women is well under way. Probably we have not very much to worry about concerning it. It is largely a ques- tion of making the need clear. This is also true in a meas- ure with respect to the legal regulation of working hours. With reference to the delegation, so-called, of legislative power to commissions for the handling of questions of safety and sanitation, no one can emphasize too much the need of such provisions. It would be absurd for us in this country to at- tempt to get specific safety regulations and specific sanitary legislation through a state legislature, and make these rules fit conditions over the whole industrial field ; it cannot be done that way. This administration method, which is not new in public utilities, in health matters, and in various other forms of social control, must be further extended in the field of labor legislation. Instead of discussing these points, I shall try to present merely a point of view which has not been much stressed in these meetings. During the last twenty-four hours we have had the complex question of " constitutionality " presented from almost every point of view. It has been discussed from the points of view of the man who wants laws, the man who drafts laws, the man who gets them passed, the man who passes them, and I think also from the standpoint of the man who (403) 142 REVISION OF THE STATE CONSTITUTION [Vol. V finally passes upon them. But these laws are supposed to be made for a purpose. I should like to try to express the point of view of the people for whose benefit these laws are supposed to be passed. About fifty years age, in troublous times, Abraham Lincoln made an appeal ending with these words : " Let reverence for law become the political religion of the nation." We have made some progress since that time, but there have also been serious reactions. It has been very popular, for instance, dur- ing the past few years in certain quarters rather to sneer at labor legislation. It has been rather popular to minimize the value of laws which are passed for the protection of the work- ers. The I. W. W., for example, refer to labor laws as " gold bricks," " narcotics," and " scarecrows that scare no crows." And there is a reason for that. The principal reason is that the laws are not sufficiently en- forced. That is, after all, the greatest trouble — not the con- stitutions, not the legislature. The greatest trouble is in getting these laws enforced after we have them on the statute books, and one way to do that is to get them so plainly stated and to get the constitutional limitations so plainly stated that there will be no further doubt concerning what can be done. In California, only three years ago, the women, the social workers and the labor group decided that they would try, by the legislative method, to get an eight-hour law for women in certain employments, and the wise lawyers in California, many of them, said it could not be done, that that would be " class legislation," that it applied to only one group of workers and to them in only a few of the occupations. A few weeks ago, in California again, a bill was drafted and was presented at the recent election, providing for a universal eight-hour day for all employes, men and women, and- the same lawyers said that that clearly would be unconstitutional. Just before election Governor Johnson referred the matter to the attorney general of the state, and he promptly handed down an opinion that this clearly would be unconstitutional, because it applied to all employments and to all workers. The significant thing is that in spite of this, 250,000 voters in the (404) No. 2] LABOR LEGISLATION AND THE CONSTITUTION 143 state of California voted for that bill. Similar bills were before the people in Oregon and in Washington. A similar bill is to be presented to the legislature in Utah in January. Hardly had the ballots been counted in those western states when in Ohio a big movement was under way to get 33,0001 signatures upon a petition in order to present a plan for a uni- versal eight-hour day to the people of the state of Ohio. These movements sweep rapidly over the country. Clearly the point made by Mr. Elkus regarding the need of legislative regula- tion of hours should be faced squarely and honestly and should be stated with unmistakable clearness by the constitutional convention in this state. There is in this field a great opportunity for careful work in draftsmanship, and I believe it is. partly through the work of such men as Mr. Parkinson and his associates that the real result at which we aim can be reached. Unless we do get legal authority plainly stated, in order, for example, that the work- ers may select, clearly and in advance of expensive campaigns, either one of the two forces which they can use — either the method of strikes and collective bargaining, or the method of legal enactment — we are bound to increase in this country a contempt for the law, rather than to develop a reverence for the law. (405) STATE POLICY OF FOREST AND WATER POWER CONSERVATION ' JOHN G. AGAR THE two greatest natural resources of the state of New- York outside of its strictly agricultural products are its forests and its waters. For something like thirty years the state government has exercised its power in an in- creasing degree for the conservation of the forests, and for something like ten years efforts have been made to exercise government control over the use of waters. The constitutional and statutory and common-law conditions controlling the utili- zation of both of these resources are so clear and restraining in some cases and so vague in others that it is timely, upon the eve of a constitutional convention, to consider how far, if at all, governmental powers should be either re-stated or ex- tended or relaxed. Assuming that the intimate relations between forest and stream-flow are generally understood, our brief discusision will be facilitated by considering the subjects of forests and waters separately, and by remembering that my suggestions will be limited to wide provisions which should form part of a funda- mental law professedly limited to the statement of general principles. It would, in the first place, be wise to provide in the new constitution for a management of the forests separate and dis- tinct from the management of the water powers. Though the subjects are related, the duties involved in the management of each are so large and varied that no one department can effi- ciently promote them. One department should, therefore, be created to maintain and operate the state forests and one de- partment should have exclusive management of the water powers in the state. Both should be placed, as far as may pos- sibly be done, beyond the sphere of partisan politics. ^ Read at the meeting of the Academy of Political Science, November 20, 1914. (406) FOREST AND WATER POWER CONSERVATION 145 The Forest Preserve Government control over the forests of the state is limited to the forests upon the 1,825,882 acres of land owned by the state itself and constituting the forest preserve. Legislation has been proposed recently with a view to extending state con- trol over private forests; but such a policy is subject to many objections and has as yet secured no place in our statute books. The forest preserve, therefore, is at present the sole embodi- ment of the idea of government control of forests in New York state. The history of the development of this forest preserve is not a little interesting. It is not a reservation of virgin forest land which has always been in the possession of the state, such as the national forest reserves. Prior to the Revolution, when the state was forest-covered from Montauk to Niagara and from Manhattan to the St. Lawrence, northern New York, which is now the seat of the greater portion of the forest pre- serve, belonged either to the Indians or to the Crown, and immediately after the Revolution tO' the state. At a time when trees were so thick in places as to be a nuisance to the house-builder and the farmer, the colonial and state govern- ments did not foresee any necessity for reserving tracts of for- est land for future use. They therefore made enormous grants to private individuals for a song. In 1772 Joseph Totten and Stephen Crossfield, with the permission of the royal governor, secured from the Indians, for the sum of 1,135 pounds, a tract estimated to contain 800,000 acres. In 1791 Alexander Ma- comb offered eight pence an acre for between 3,000,000 and 4,000,000 acres of unappropriated land lying north of the Totten and Crossfield Purchase and known as the Macomb Pur- chase. By transactions like these, in kind if not in extent, the state alienated for a few dollars a patrimony which it has since been recovering in part at an hundred -fold increase of cost. Of the present forest preserve^ covering an area more than twice the size of Rhode Island, only 25,000 acres repre- sent original ownership. In the first half of the nineteenth century the owners of forest land in the more favorable parts of the state laid their (407) 146 REVISION OF THE STATE CONSTITUTION [Vol. V trees under the ax, and the havoc had advanced so far in 1822 that Governor DeWitt Clinton, in his message to the legislature, was moved to lament, not only the rapid felling of the trees, but also the fact that " no system of plantation for the production of trees and no system of economy for their preservation has been adopted." First the canals and later the railroads facilitated the denudation in the accessible regions west of the Catskills and south of the Adirondacks, while the mountain regions remained comparatively untouched. But with the exhaustion of the forests elsewhere, the enlarged de- mand for trees due both to increased population and to new uses, and the building of railroads in northern New York, the lumbermen transferred their activities to the Adirondacks. In those early lumbering operations, no idea of reproduc- tion was entertained. The object of the lumberman was to get his trees off the land. That being done, the function of the land was considered ended. Many owners did not deem their denuded property worth the taxes which were levied upon it, and at the tax sales which followed, the state took the lands in satisfaction of the taxes. In this manner 753, 186 acres of the forest-preserve lands were acquired. Somewhat more than that, namely, 769,136 acres, have been purchased by the state. The first actual appropriation of money for the purchase of land for forest purposes was $10,- 000 appropriated in 1883 during Governor Cleveland's ad- ministration. No further appropriation for land purchases was made until 1890. From 1890 to 1909, both inclusive, the state appropriated $4,075,000 for this purpose, but during the past five years, the policy of extending the forest preserve, so well begun, has unfortunately been held completely in abey- ance. The prices paid in many instances for the lands purchased by the state illustrate the folly of having parted with it in the first place and the costliness of procrastination in recovering it. In 1850 the Legislature passed a law (ch. 250) providing that the state should not sell public land on the Raquette River for less than 15 cents an acre. The state has paid over $7 an acre to repurchase the same kind of land. Virgin forest land (408) No. 2] FOREST AND WATER POWER CONSERVATION 147 which the state granted to Macomb for eight pence an acre commands to-day anywhere from $25 to $100 an acre. Following is a recapitulation of the source of titles to the forest preserve : Acres Purchase 769,136.96 Tax sales 753,186.53 Appropriated 68,192.41 Original ownership 25,290.48 Mortgage foreclosures 8,249.01 Land area 1,624,055.39 Waters 201,827.32 Total Forest Preserve 1,825,882.71 The interruption in the policy of extending the forest pre- serve, before alluded to, brings us to the consideration of the causes which led to the creation of the preserve and to the re- fusal of the legislature further to enlarge it. The creation of the forest preserve was first dictated by the desire to check the disappearance of the trees and to conserve them for future use. Later, considerations of scenic beauty, health and pleasure entered into the situation. Impelled by the primary motives of conservation Clinton suggested forest protection in 1822; Verplanck Colvin publicly advocated state care of the forests in 1868, and in 1870 urged a state park; in 1872 the legislature created a commission to consider and re- port upon the creation of an Adirondack park; and Governor Dix in 1874 and Governor Cornell in 1882 urged the same policy; but nothing substantial was accomplished up to that time. In 1883, however, by chapter 13, the sale of state land was prohibited in ten Adirondack counties. In 1885, during Governor Hill's first term, the legislature created the forest preserve, embracing the lands owned by the state in fourteen (later increased to sixteen) Adirondack and Catskill counties. Five years later (in 1890), as before stated, the extension of the state's forest-land holdings by purchase was actively in- augurated. (409) 148 REVISION OF THE STATE CONSTITUTION [Vol. V The next important landmark in the history of the forest preserve, and really the most effective act of forest conserva- tion in the history of the state, was the adoption of section 7 of article VII of the constitution in 1894. It was well to have created a forest preserve, but it was more important to preserve the preserve after it had been created. That is what was needed and that is what section 7 of article VII did. After the lapse of twenty years, when it is proposed to modify this provision of the constitution, it is well not to forget the com- pelling reasons for its adoption. Partly on account of the pas- sage in 1883 of the laws forbidding the sale of state lands, and partly because railroads and increasing public appreciation of the Adirondacks enhanced the value of lands in the North Woods country, private parties desiring to acquire land en- deavored to circumvent the law prohibiting the sale of state land by attacking the state's tax titles. Yielding to these de- mands pliant state officials prior to 1895 parted with about 100,000 acres of land in disregard of the law and rights of the state. '^ When the seekers of state land could not get the land, they sought the timber on the land. There was nothing in the law of 1883 to prevent the sale of timber; but with the reckless lumbering methods then employed, fifty trees would be de- stroyed while one was being taken out." When trees could not be bought legally, they were sometimes taken illegally. A sys- tem of timber-stealing grew up with the acquiescence or con- nivance of state officials. Trees were also killed by flooding, unsanitary conditions were created by dams, and the general misuse and mismanagement of the forests became so intolerable that in 1 894 the constitutional convention unanimously adopted section 7 of article VII in the following words : The lands of the State now owned or hereafter acquired consti- tuting the Forest Preserve as now fixed by law shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged or ' Comptroller's Report, 1895. ' McClure, Constitutional Convention, 1894. (4:0) No. 2] FOREST AND WATER POWER CONSERVATION 149 be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed. In 191 3 the section was modified so as to permit the use of three per cent of the forest preserve for water storage. This provision will be expltiined in treating of water powers here- after. The " limitation on governmental powers " — to quote the title of the topic of this meeting — thus imposed with respect to the forests was necessary and salutary. That is admitted by those who, during the last decade, have most vigorously criticized it. The question which now confronts us, in view of the approaching constitutional convention, is whether the time has arrived for a relaxation of these limitations on gov- ernmental powers, and, if so, to what extent. Let us glance at what this section of the constitution accom- plishes, and then consider whether, in the lapse of twenty years, conditions have changed sufficiently to warrant its modifica- tion. We must readily admit that this proposition has saved the land and partially saved the trees belonging tO' the state in the forest preserve. The immense importance of that achieve- ment should not be forgotten. On the other hajid, the critics of the section charge the con- stitution with having prevented : ( i ) the cutting of ripe tim- ber from w^hich the state might derive a revenue; (2) the re- moval of dead, down and diseased trees which would improve the health of the forests and reduce the risk of fire; (3) the cutting of roads and fire trails, which would increase the public use of the forest preserve and decrease the fire danger; and (4) the leasing of camp-sites, which would contribute greatly to the public enjoyment of the state's property. At one time they made much of the prevention of water-storage on state lands, but that objection has been removed by the amend- ment of 191 3. These objections are summed up in the sweep- ing and inaccurate statement that the state has a property valued at so many million dollars which it cannot use. That statement does not take into consideration the use of the forest In regulating stream-flow and performing other useful func- (4") 150 REVISION OF THE STATE CONSTITUTION [Vol. V tions even when standing apparently idle; nevertheless it ap- peals to many, and has had the effect on the legislature of com- pletely cutting off appropriations for the extension of the forest preserve. It must be confessed that the arguments are not all on one side; we are forced to balance the opposing considerations and estimate whether or not more will be gained than lost by the proposed changes. The cutting of mature trees is favored chiefly on three grounds : (a) It will yield a revenue to the state. (b) It will improve the forest. (c) It will encourage the extension of the forest preserve. (a) Governor Glynn, in a message to the legislature on March 5, 1914, stated that " if the constitution were amended so that responsible state officers could direct the cutting of this matured timber, an annual revenue of $1,600,000 could be obtained for the state and thousands of men would find em- ployment in our forests." It is held to be uneconomic for the state to buy forest land and not use its products ; and the ex- amples of the United States government in selling stumpage in national forests and of private reserves like that of the Adirondack League Club are cited as precedents for the sale and profitable utilization of the growth. (b) It is claimed that the cutting of mature trees will im- prove the forest by preventing the trees from falling and going to rot, to the injury of the forest, and by promoting forest growth by letting in the light on the younger trees. Thus, while the state will derive a revenue from the sale of mature trees, it will at the same time create a cleaner forest and accel- erate the growth of the coming crop. (c) It is apparent that if the recent temper of the controlling influences in official life is to continue, it is not likely that ap- propriations for the enlargement of the forest preserve will be made while it remains impossible to utilize the tree product. The modification of the constitution therefore will open up the way to a resumption of the policy of extending the state's (412) No. 2] FOREST AND WATER POWER CONSERVATION 151 holdings of forest land. If the cutting be restricted to soft- wood trees above a fixed diameter limit under strict state regu- lation, it is believed that the forest preserve will not be de- prived of the covering necessary for the protection of the watersheds, the preservation of the scenery, the maintenance of game refuges and the existence of health and pleasure resorts. The objection to the cutting of trees in the forest preserve is due largely to the feeling that politics plays too large a part in the state forest administration. The unlawful removal of timber from state land is only one of a series of abuses, be- ginning before the adoption of the constitutional provision of 1894 and continuing after its adoption, which has created in many minds a distrust which time has not dissipated. The frequent changes in the personnel of the forest administration have also unsettled public confidence and thwarted the estab- lishment of a consecutive forest policy. In many minds there is skepticism about so-called "scientific forestry," and a belief that what is practicable on private preserves is impracticable under state auspices. It is also believed by many that the allurements of a large revenue from the sale of stumpage are deceptive, and that while a good revenue might be derived from favored localities, a continuous revenue of $1,600,000 a year is impracticable. The first stumpage sought will be in the most accessible parts of the forests, and therefore the tracts first to be deprived of the trees will be those near the railroads, lakes and streams which are most conspicuous to residents and visitors. It is held that trees are worth more as a standing forest cover and as a source of material for the forest floor than as a source of revenue from lumbermen ; that in their far-reaching influence on climate and run-off of water they benefit the whole state ; and that the complaint that standing forests yield no benefit to the state proceeds from a limited knowledge and one-sided view, which ignore their im- portant effect on local meteorological conditions and stream conservation. The removal of dead, down and diseased trees is favored for the safety of the forests. Dead and down timber, when dry, is more inflammable than green timber and adds greatly (413) 152 REVISION OF THE STATE CONSTITUTION [Vol. V to the fire hazard. This is particularly the case on land which has once been burned over. Many fire-killed trees are avail- able for lumber if used within two or three years and might yield a revenue to the state. If left on the ground, they be- come the habitat of numerous parasites which are injurious to the forests. Diseased but living trees, it is held, should also be removed in the interest of the health of the forests, and to prevent the spread of disease like the chestnut blight. It is objected, on the other hand, that dead wood performs a useful function in the forest. In the natural life cycle of a tree, its elements return to the ground. The removal of trees tends to impoverish the soil for future crops. Furthermore, the dead trees serve a useful mechanical purpose in providing the humus which acts as a sponge and restrains the run-off of rains and melting snows. This has a direct effect on local atmospheric conditions, and tends to restrain floods in streams. The other objection to the removal of dead trees is that it will encourage incendiary fires for the production of more dead trees. This fear has frequently been expressed by practical woodmen who know Adirondack conditions, but it is only fair to say that that spirit has probably abated materially in late years and would not exist at all if the cutting of mature green trees were permitted. As to the removal of diseased trees, it is claimed that there have always been forest parasites and that the forests have survived them in past ages. The great spruce blight which began in 1862 and culminated in 1878 is cited as an instance. Roads and fire trails are needed for the use and the protec- tion of the forests. The phenomenal ' development of self- propelling vehicles in recent years has resulted in an increased use of public highways, and places heretofore inaccessible are now reached with ease by means of good roads. The public should not be kept out of the state forest preserve by a bar erected before this revolution in travel was effected. It is felt that a change almost equal to that following the inven- tion of the locomotive engine, a change which has come since the constitution of 1894 was adopted, calls for a corresponding modernization of the constitution. Roads in the forests will (414) No. 2] FOREST AND WATER POWER CONSERVATION 153 also act as fire-breaks, and with fire trails greatly facilitate ac- cess to fires for their extinguishment. Almost no objection to the foregoing proposition has come to my notice. The only objection to roads and fire trails has come from the fear that if the cutting of trees were permitted for this purpose, more trees than were necessary would be cut. The leasing of camp-sites would allow a fuller use of the forest preserve for the general health and pleasure. Camping on state land is now permissible under temporary permits, but only temporary cover can be used. The modification of the constitution which will permit the erection of a camp more substantial than a tent will greatly enlarge the use of the for- est preserve by women as well as men. The leasing of sites under restrictions as to length of tenure and manner of use is entirely compatible with the purpose for which the preserve was created, and under proper regulations, as in the Yellow- stone Park and elsewhere, would conduce to the safety of the forests. Many complain that the rich who own private land surrounded by state property can enjoy the benefits of a forest retreat, while people of moderate means are deprived of access to state land in which they have a share of ownership. The principal objection to the leasing of camp-sites has been the fear that through favoritism certain parties would receive partial treatment at the hands of the forest administration which would thwart the very object in view, so far as the public is concerned; and that the more pretentious camps would involve a large destruction of trees and would not con- duce to the safety of the forests. The exchange of lands outside the blue lines is another desideratum sought to be allowed by a constitutional amend- ment. The bounds of the Adirondack park and the Catskill park as defined by law are indicated on the state maps by heavy blue lines. The areas within these lines are owned partly by the state and partly by private parties. Outside of these blue lines lie certain detached parcels of forest-preserve land which are practically useless for forest-preserve purposes and which are a source of expense to the state. These pieces of forest-preserve land outside the blue lines might be dis- (415) 154 REVISION OF THESTATE CONSTITUTION [Vol. V posed of to the advantage of the state and the proceeds applied to the acquisition of additional land inside the blue lines. No objection to this proposal has come to my notice. Probably no one would object to modifying the constitution in the respects mentioned if he believed that the acts so per- mitted would be performed properly. Theoretically, the sale of mature timber is the rational practice; but will the timber be removed rationally and honestly? Theoretically, the re- moval of dead, down and diseased timber is in some respects beneficial to the forest; but if this be permitted, will it or will it not lead, as many fear, to the making of a great deal more dead timber to be removed? Will the construction of roads and trails be limited to those which are necessary; and will the leasing of camp-sites be done without favoritism? In canvassing these questions with many men of large ex- perience with our forest preserve it appears that most of their answers turn upon the degree of confidence which they have in the integrity, knowledge and intelligence of the legisla- tors, and in the integrity, intelligence, training and efficiency of the public officials having to do with the forest management. Those who desire a modification of the constitution can hardly rely upon any radical change in human nature in two decades for their hope. There was probably as high a standard of honesty and good purpose in private and public life prior to 1894 as there is in 19 14. There has been, however, an import- ant change in twenty years which, many of us believe, makes it safe to relax somewhat the stringency of the present pro- visions. In twenty years there has been a great development of public intelligence and interest concerning forests and for- est management. Conservation congresses have aroused public sentiment. Colleges and schools of forestry have educated trained foresters and teachers of forestry. Civic associations have been formed for the dissemination of popular informa- tion about trees. And lumbermen themselves have come to- gether to consider if they might not profitably follow more productive methods than those of their fathers and grand- fathers. There are, too, more agencies now watching the ad- ministration of public affairs, and public officials are more (416) No. 2] FOREST AND WATER POWER CONSERVATION 155 re&ponsive to public opinion than twenty years ago. All of these forces serve to encourage the hope that the time has come when, with proper safeguards, section 7 of article VII may be modified. In considering the desirability of so amending the constitu- tion as to permit the cutting, removal and sale of dead and down and mature timber and trees, the building of roads or fire trails and the leasing of camp-sites, we must remember that the fundamental condition is that nothing should be per- mitted which will really impair the value of the forest for all the people. Theoretically the best means of preserving the forest is to use it. But in order to bring our protection up to that rational theory of use we must establish many safeguards : First : The constitution should permit the cutting of mature timber only, and should prohibit the cutting of all other stand- ing trees. The word " mature " should be defined as covering trees not less than ten inches in diameter at a point not less than four feet from the ground. It will be wise for the present to confine the cutting to the soft-wood trees or conifers, that is, the pine, spruce, hemlock, cedar, balsam and tamarack, and to prohibit the cutting of hard-wood trees. Of course, scien- tific forestry principles allow equally the cutting of hard and soft wood, but the vital point is to preserve our forest cover. In much of the Adirondacks it does not pay to cut the hard- wood trees, hence the limitation of cutting to the conifers will not greatly diminish the possible revenue to the state. More- over, as the forests are in general more or less evenly divided between hard and soft-wood trees, the exclusion of the hard- wood trees from the cutting will preserve a satisfactory forest cover. It would also be desirable, and indeed imperative, to pro- hibit the cutting of any trees and the removal of dead and down timber on the steep forest slopes of the principcil water- sheds, as any change from natural conditions there seriously augments erosion, and would be detrimental to forest growth. Second : Politics must be eliminated as far as possible from the management of the forests. The administration should be (417) 156 REVISION OF THE STATE CONSTITUTION [Vol. V placed in the hands of experts, and responsibility should be concentrated. A single commissioner, who should be an ex- perienced forester, should be appointed by the governor, with- out confirmation by the senate, for a long term of years or during good behavior, and should be removable only for cause. This commissioner should appoint all officers and employes in any way engaged in the forest service, as the result of open competitive civil service examinations, which should be of a practical nature. This single commissioner, appointed by the governor, concentrates responsibility and seems to be better than a commission of several members. Third : Any citizen should have the right to bring suit in the supreme court to enforce the provisions of the constitu- tion and enjoin violations. This power and duty have been conferred in the past upon the attorney general alone, but ex- perience has shown that some attorneys general could not be relied upon, and it is important to supplement the action of that official by that of the watchful friends of the forest. In order to carry out these suggestions which will allow the use of the forests and at the sajne time preserve them, I submit that article VII, section 7, should be re-adopted in its original form and that its prohibitions should be relieved by subsequent provisions, authorizing a large use in such manner as would not be detrimental to the forests. The entire provi- sion would read as follows : The lands of the state now owned or hereafter acquired consti- tuting the forest preserve as now fixed by law shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed. The foregoing prohibitions shall not prevent the cutting or re- moval or sale of dead or fallen timber or trees, or mature spruce, pine, cedar, balsam, tamarack and hemlock trees not less than ten inches in diameter four feet from the ground, detrimental to forest growth on lands constituting the forest preserve, nor the leasing of camp-sites, nor the construction of roads and fire trails. The legis- lature may authorize the sale of lands outside the limits of the Adirondack park and of the Catskill park as such parks are now established by law. (418) No. 2] FOREST AND WATER POWER CONSERVATION 157 The proceeds of such sales of lands and all other net revenue from the forest preserve shall be set apart in a separate fund and shall be used for the purchase of lands by the state in the Adiron- dack and Catskill parks, for the reforestation of lands owned by the state in said parks and for such other purposes for the benefit of the forest in said parks as the commissioner shall approve. The forests of the state shall be under the care and management of one commissioner called the forest commissioner. The commis- sioner shall be appointed by the governor for a term of ten years and may be removed by the governor for cause and upon reasons publicly stated and after a public hearing if the commissioner de- mand one. The commissioner shall not be charged with any public duties except those which relate to the forests and he shall appoint all officers and employes engaged in the service of the commission from eligible lists resulting from open competitive examinations con- ducted by the civil service commission. Action may be brought in the supreme court by any citizen to en- force the provisions of these sections and to prevent their violation. Furthermore, the state within a reasonable time should ac- quire and hold all the forest lands in the Adirondack arid Catskill parks. The best method of raising funds for acquir- ing these lands would be to enable the, state to issue bonds for that purpose alone, arid authority to do so should be given in the new constitution. Water Power Coming now to the subject of the state policy with respect to water-power conservation, we find ourselves confronted with new and complex problems. Until the beginning of our modern hydro-electric age, the use of water power was simple in manner, and simple laws were adequate for its regulation. The mill was built on the mill-stream and the power was used there. A power develop- ment was a localized enterprise. Comprehended within nar- row physical limits, its legal relations were easily compre- hended ; and until recent years, the common-law doctrine that the riparian owner was entitled to the exclusive and beneficial use of the water flowing by his property was accepted in this state. (419) 158 REVISION OF THE STATE CONSTITUTION [Vol. V But the advances made in the application of electric power developed from water have created new social demands and have caused established legal principles to be questioned, if they have not created new legal rights. It is not merely the transformation of hydraulic energy into electrical power that produces our new problems; but also the fact that the energy thus developed may be transmitted two hundred miles or more from the point of development. Instead of the customer carry- ing his grain or lumber to the mill-power, the mill-power is transmitted to the customer. It is thus widely diffused, and in multifarious forms of light, heat and power, it has become intimately and indispensably incorporated in modern life. For about twenty years, but more particularly during the past ten years, legislators and others interested have been groping about for a legal formula which would fit modern conditions and permit the development of the water resources of the state with justice to both public and private interests; but as yet without satisfactory results. Now, upon the eve of the constitutional convention, this problem should at least be analyzed and stated. The forest question might, if desired, be left in statu quo without serious loss, but the water-power problem cannot be so treated. Let us see, then, what water resources we have and who owns them ; and then determine, if possible, some general fea- tures of the policy that should be established with respect to them. Many estimates have been made of the potential energy of the waters of this state. Mr. Walter McCuUoch, in his testi- mony before the joint committee of the legislature on water conservation, of which Hon. T. Harvey Ferris was chairman, on September 7, 191 1, testifying concerning the results of a census of developed and undeveloped water-power in this state, made under his supervision in igo8, stated that there were then 1,824 hydro-electric power plants in the state with a total actual development of 619,020 horse power. He also estimated that there was from 880,000 to 1,000,000 horse- power undeveloped in the state of New York, exclusive of Niagara and the lower St. Lawrence, and not including devel- (420) No. 2] FOREST AND WATER POWER CONSERVATION icg opments on the Canadian side. If to this be added 100,000 horse power as the resource of the lower Niagara River, and 400,000 horse power as the resource of the St. Lawrence, the total hydro-electric power resource of the state, actual and potential, would appear to be about 2,000,000 or 2,100,000 horse power. From figures derived from various sources, it is estimated that from 5 to 7j4 per cent of this resource is within the Adirondack park. These figures, when converted into equivalent terms of coal values, are alluring and indicate the enormous potentialities of this resource. But without enlarging upon the quantitative details, let us consider what must be done to pave the way for the development of these possibilities. And first, who owns these waters, and then what modifica- tion of the constitution and statutes is necessary to their fullest use? Titles along the Hudson and Mohawk rivers, titles along the Niagara and St. Lawrence rivers, and titles along other streams rest on somewhat different legal principles. The courts have held that because the grants along the Hud- son and Mohawk rivers were made originally by the Dutch, the civil law applies thereto, and title to the bed of the stream is vested in the state. As a matter of fact, however, the state, during the past hundred years, has granted the bed of the river at practically all the available power sites to adjacent land owners, so that so far as present legal problems are con- cerned, these rivers differ little from the other inland streams of the state. Along the Niagara and St. Lawrence rivers a condition an- alogous in nature but not in comparative extent exists. The courts assume that by the Revolution title to the bed to mid-stream became the absolute property of the state. At Niagara Falls, however, the state, beginning in 1886, has made prodigal grants of water power to private corporations, without compensation to the state, so that at that point along the international boundary the question of private ownership must also be met. Elsewhere along the Niagara and St. Law- rence the situation is simpler owing to the undisputed title of the state. (421) l6o REVISION OF THE STATE CONSTITUTION [Vol. V The authority of the state to grant away irrevocably the people's right to use water power on boatable streams has been questioned, and in view of the opinion of the Supreme Court of the United States in the Chandler-Dunbar case/ that contention cannot be ignored. But for the purposes of this discussion we assume that the irrevocable grants by the state of water power and sites to private parties without adequate compensation are final and irrevocable. With respect to the other streams of the state, the common law of private owner- ship to the middle of the stream applies. We thus find the water-power resources of the state, actual and potenticd, in two kinds of ownership — state and private. Concerning the former, the duty of the constitutional conven- tion would appear to be clear to put an immediate prohibi- tion upon any further absolute alienation of state ownership in water power. It may not be practicable to recover what has been given away at Niagara Falls, but what the state now owns should be saved. It would have been well if we had put into our constitution thirty years ago a prohibition of the alienation of state lands under water, or water power in any form — a prohibition corresponding to the forest-preserve sec- tion which we adopted twenty years ago for the preservation of the forests. It is to be hoped some such provision will be inserted in the revision of 191 5, and a further and more gen- eral provision prohibiting the legislature and state officials from parting with state property of any kind without due pro- cess of law and just compensation to the people. The Niagara charters parted with state property without just compensation to the people and the Long Sault charter proposed the same surrender in the St. Lawrence without adequate return. The water-power amendment to article VII section 7 of the present constitution should be continued. This reads that the legislature may by general laws provide for the use of not ex- ceeding three per centum of such lands for the construction and maintenance of reservoirs for municipal water supply, for the canals of the state and to regulate the flow of streams. ' U. S. -v. Chandler-Dunbar Co., 229 U. S. 53. See particularly pp. 68-9. (422) No. 2] FOREST AND WATER POWER CONSERVATION igl Such reservoirs shall be constructed, owned and controlled by the state, but such work shall not be undertaken until after the boundaries and high flow lines thereof shall have been accurately surveyed and fixed, and after public notice, hearing and determination that such lands are required for such public use. The expense of any such improvements shall be appor- tioned on the public and private property and municipalities benefited to the extent of the benefits received. Any such reservoir shall always be operated by the state, and the legis- lature shall provide for a charge upon the property and munic- ipalities benefited for a reasonable return, to the state upon the value of the rights and property of the state used and the services of the state rendered, which shall be fixed for terms of not exceeding ten years and be re-adjustable at the end of any term. Unsanitary conditions shall not be created or continued by any such public works. A violation of any of the provisions of this section may be restrained at the suit ■of the people or, with the consent of the supreme court in ap- pellate division, on notice to the attorney general at the suit of any citizen. Again, the new constitution should provide with proper safeguards that power companies engaged in the transmission of electrical energy to municipalities should have the right to cross any portion of the forest preserve under proper condi- tions and upon making proper compensation therefor. One of the most perplexing aspects of the problem before us is presented by the privately owned riparian rights. A hun- dred years ago it was a comparatively easy matter for the owner of a mill-site to acquire by purchase all the land he needed for his mill-pond. To-day, the economic development of power sites seems to require either that the state shall pro- vide legal means by which a private riparian owner may con- demn adjacent private property for his own use, as is done under the mill acts of the New England and some other states, or that the state itself shall appropriate the riparian property and develop it or supervise its development for the general good. Under the constitution the right of eminent domain may (423) 1 62 REVISION OF THE STATE CONSTITUTION [Vol. V be exercised by one private property owner over the land of another in two cases, namely, to build private roads and to build private drains for agricultural lands; but the people of this state would not regard favorably a proposition to amend the constitution so as to permit one riparian owner, for the purpose of water-power development, to appropriate the prop- erty of another, even with just compensation. We are therefore driven back to the question whether the development of a water power is a " public use " for which the state may now condemn private property under the constitu- tion, and if not, whether we shall amend the constitution so as to permit it. In view of the existing doubt on this point, it would seem to be advisable to make distinct provision in the new constitution for the taking of private property by the state for the development of water-power. With this fundamental principle established by the constitu- tional convention, the formulation of a water-power policy may be safely left with the legislature. The possible methods of water-power development afford a wide field of choice and may be stated in the following order somewhat with respect to the share of state participation : (i) The private development on private property with which the state has practically nothing to do, being subject to only a moderate measure of state regulation through the public service commission. (2) The possible mill-act plan, which would permit one private owner to condemn the property of another and con- duct the business privately — a plan which never had any foot- hold in this state. (3) The plan proposed in the Jones Bill in the last legisla- ture, in which the state builds reservoirs primarily for regu- lating stream-flow, and simply assesses the cost on the bene- ficiaries without disturbing them in the private use of the regulated waters. Power production at the reservoir site would be only incidental to such a plan. (4) Going a step further, we come to the plan suggested in various proposed legislation for the creation of river-improve- (424) No. 2] FOREST AND WATER POWER CONSERVATION 163 ment corporations or quasi-public service companies, which shall have power to develop and sell electrical energy, under state regulation, furnishing the capital themselves and pay- ing an annual charge to the state. The title to the property would vest in the state at the end of fifty years. This plan might also be used for power developments on property al- ready owned by the state, as in the Niagara and St. Lawrence rivers, instead of granting franchises outright to private parties as was proposed in the Long Sault bill. ( 5 ) And lastly we have the proposition that the state, from the very outset, shall furnish the capital, develop and own the property, and sell the electrical energy to the public — in other words, enter into the water-power business in competition with private enterprises. We do' not know which general plan will be adopted. That does not concern us here. All the convention can do is to make it possible by constitutional provision for the legisla- ture to work out a plan just and practicable. My idea is that the state shall help and encourage private enterprise rather than supplant it, at the same time imposing such regulations as shall prevent monopoly, secure adequate public service at reasonable rates, and provide for a return to the state for the benefit of its assistance. , To sum up, the new constitution should provide : ( 1 ) That three per cent of the lands of the state in the for- est preserve may be taken for the construction of reservoirs for the purposes and on the conditions provided for by the amend- ment of 191 3 to article VII section 7 of the constitution. (2) That power companies engaged in the transmission of electrical energy to municipalities may have the right to cross any portion of the forest preserve under proper conditions and upon making proper compensation therefor. (3) That the development of the water power of the state is a proper governmental function and that private property therefor may be taken upon just compensation being made. (4) That water power owned or controlled by the state in any form may not be sold, granted or given away or alienated (42s) 1 64 REVISION OF THE STATE CONSTITUTION in perpetuity or in any manner removed from public owner- ship, and that leases when made should be limited to a period of years sufficient to attract the investment of capital, and should be irrevocable except for cause and reviewable by the court. (5) That no state property of any kind should be alienated without just compensation. (6) That the water powers should be administered under one commissioner. He should be appointed by the governor for a long term of years and might be appointed by the gov- ernor for cause and upon reasons publicly stated, and after a public hearing if the commissioner demanded one. The com- missioner should not be charged with any public duties except those which relate to the water powers, and he should appoint all officers and employes engaged in the service of the com- mission from eligible lists resulting from open competitive ex- aminations conducted by the civil service commission. In conclusion, it may be said that the people of the state will look forward hopefully to the coming constitutional con- vention for assistance in preparing the way for something which may properly be called a " state policy " in reference to our forests and waters. The opportunities for the highest order of constructive statesmanship are great. (426) PUBLIC SERVICE COMMISSIONS AND THE STATE CONSTITUTION JOHN N. CARLISLE Highway Commissioner of the State of New York IN 1907, when the law creating the public service commis- sions of New York state was proposed, it was bitterly opposed, but it is conceded to-day by all students of gov- ernment that it was one of the most constructive pieces of legislation placed upon the statute book in our state in years. To-day it has become recognized that public service corpora- tions operating public utilities have come to stay, and every state in the Union, except three, has passed laws providing for a regulating commission of some sort with various powers and duties. Since the passage of the original act in this state, numer- ous amendments and additions have been made to it at differ- ent times, and the matters connected with the supervision and regulation of public service corporations have been given careful study so that now the jurisdiction, powers and duties of the commissions can be clearly defined. The public service commissions of New York state will never be placed upon the right basis until the commissioners are made constitutional officers, with their terms of office and salaries fixed, and their powers and duties defined in the state constitution. One of the reasons for a written constitution is to provide a stable form of government that can not be dis- turbed yearly by legislative acts, and it being now generally conceded that public service commissions are here tO' stay, the protection of constitutional powers should be thrown around them, and they should be made as free and independent as the courts. The reason why this should be done is apparent to all who have followed the history of the law in this state, or who have been connected in any way with either commission. There are two separate commissions in New York, one hav- (427) 1 66 REVISION OF THE STATE CONSTITUTION [Vol. V ing jurisdiction over corporations in the city of Greater New- York, and the other over the corporations in the remainder of the state, the exception being telephone and telegraph com- panies, which are under the sole jurisdiction of the up-state commission. There are five members of each commission, ap- pointed for five years, with a large staff of employes, a great number of whom are engineers and experts in their lines of work. The importance of the work of the commissioners, with the large salaries paid to them and to their employes, natur- ally creates a demand for these places, not only from office seekers, but also from those who would like to control their actions. In our state, nearly every year bills have been introduced or a controversy has been raised as to whether there should be one commission instead of two, or whether both commissions should be abolished altogether and their work divided and given to a number of separate boards, each having jurisdiction over the different classes of work now under their control. This yearly agitation can not but lower the efficiency of the work of the commission, and, worse than that, it can not but help prevent the acceptance of office by men who are unwilling to leave their present positions and subject themselves to the un- certainties of their official tenure of office. It particularly af- fects the employes of the commissions. Necessarily the work of the commissions can never be satisfactorily and successfully carried on without a very high class of expert men in their employ who will feel certain that they are going to have a permanent position. To my own personal knowledge, the state has not only been unable to attract men into the service who were peculiarly qualified to discharge some important functions of the work, but has repeatedly lost some of its most valuable men on account of the continual agitation as to a change in the law. Not only does the present situation tend to lower the effi- ciency of the work of the commissions, but the failure to grant them exclusive power also tends to nullify their work. At every session of the legislature innumerable bills are intro- duced, and some have been passed, affecting not only the ques- (428) No. 2] PUBLIC SERVICE COMMISSIONS i^j tion of rates to be charged by public service corporations but also requiring them to do certain specific acts in relation to the service to be rendered by them, and even affecting the number of their employes. Naturally no legislature can properly and intelligently pass upon a question of rates with- out a most thorough investigation, and if such an investiga- tion is made by the legislature it must be a duplication of the work of the commission, and can lead only to absolute chaos and confusion. To show the extremes to which this matter can be carried, it was seriously proposed last year to have a joint investigation of telephone rates by both the commission and a committee of the legislature. There is very grave doubt as to whether the legislature would have asked for this power if it did not involve some political advantage or the expendi- ture of a large sum of money in making the investigation. No proper regulatory body can make proper orders affect- ing the service which they may require a corporation to give, unless they have absolute jurisdiction over the question of the rates which the corporation shall be permitted to charge. The people of the state are entitled to have from public service cor- porations reasonable, safe and adequate service at a fair and reasonable rate, but such service can never be ordered unless the state permits the corporations to exact a rate sufficient to allow it to comply with the orders given to it. If the legisla- ture, without regard to the service which the public service commission believes ought to be required to be rendered, is given the right to regulate and fix the rates which the corpor- ation shall charge, the whole theory of the law can be made a farce. The American people are willing to pay a fair price for what they receive, and they desire only to know that a careful investigation has been made by a competent board of men qualified to pass upon such problems before they are re- quired to make their payments. To place the commissions and their employes properly out- side the field of continual political agitation and uncertainty, their positions should be fixed and made permcment by the constitution. It is no less important that the jurisdiction and powers of the commissions should be incorporated in the fun- damental law of the state. (47'3) 1 68 REVISION OF THE STATE CONSTITUTION [Vol. V Certain general principles relating to the operation of public Utilities are now pretty generally accepted: 1. That it is impossible to regulate them by competition. 2. That they must either be left to do as they please, be regulated by the government, or be operated by the public. 3. That they should not be permitted to do as they please, and the only question therefore is as to whether they should be regulated or operated by the government. 4. That under present political and economic conditions the government should not go intO' public ownership except in cases where the public health or public safety is involved. 5. That all corporations, public or private, operating public utilities should be subject to regulation by the government. 6. That all future franchises or grants of power to private corporations should be subject, after a certain fixed period, to purchase by municipalities wherein they are located. 7. That as public regulation means restriction of the free- dom of private action, statutes granting powers of regulation must be carefully drawn so as not to make it impossible tO' ob- tain the money necessary to develop new enterprises, to secure new capital for existing companies, and to enable the oper- ating company to maintain its plant in the highest state of efficiency. 8. That officials of the highest character should be chosen to administer the law, and should be retained in office long enough to enable the people to reap the benefit of their ex- perience gained while holding office. The following general powers and functions to be entrusted to a commission are also generally accepted : 1. The placing under their jurisdiction of all persons or cor- porations in the following categories : carriers of passengers and freight; telephone and telegraph companies; gas, electric and power companies, including transmission companies ; water companies, including those furnishing water for irriga- tion purposes; oil pipe-line companies, steam producing and distributing companies. 2. Supervision and control over the issuing of stocks ajnd (430) No. 2] PUBLIC SERVICE COMMISSIONS iQg bonds and any indebtedness by way of promises to pay not payable within one year from the date thereof. 3. The requiring of safe and adequate service. 4. The establishment of fair and reasonable rates ; the pub- lication of such rates, and the power to prevent unfair and discriminatory rates. 5. The approval of all public franchises granted by any municipality, and any and all transfers of the same. 6. The right of summary investigation; of the inspection of the books and physiced properties ; the requiring of uniform systems of accounts, and the making and filing of proper and suitable reports. 7. Control not only over the organization of all new public utility corporations, but also over all consolidations and mer- gers of existing corporations. The granting of jurisdiction and power as above outlined will be ineffectual unless there is also incorporated in the con- stitution a clear prohibition against the exercise of any such granted jurisdiction or power by the legislature. This last prohibition is possibly the most important of all. If public service corporations are to be regulated and con- trolled, the work must be done by one separate body in the state. To permit separate and distinct bodies tO' have the same power is absurd. In a republican form of government we must admit that, unless government is a failure, proper offi- cials, clothed with certain authority, will be qualified and com- petent to perform and discharge such duties. If corporations are to be subjected to the control of a regulating commission, that commission should be the sole body having power to issue orders affecting their service or rates (under proper re- view by the courts), and any constitutional provisions which would still permit the legislature to pass special laws or gen- eral laws affecting rates and service would only leave the matter in the same condition that affairs are now in. No legis- lative body, except by the employment of expert men and the expenditure of a large sum of money, can make a proper in- vestigation for the purpose of fixing rates, and any such (431) I70 REVISION OF THE STATE CONSTITUTION [Vol. V legislative functions would require the expenditure of moneys and the employment of men when such men ought already to be in the employ of the commission and the funds available to the commission for such a purpose. The two public service commissions of New York should not be disturbed. It was my pleasure to serve at one time as a member of the Second District Commission, and to have in- vestigated, at the request of the governor of New York state, the workings of the First District Commission. Their duties in a way are so separate and distinct, and the volume of work which they are called upon to perform is so extensive, that it would be a great misfortune if any attempt to consolidate the work of the commissions should be successful. The city of Greater New York, with its wonderful growth, its congestion of population, and its continual changes in public service de- mands, furnishes the First District Commission a work peculiar to itself. It should be supervised and directed by residents of New York who are acquainted with the peculiar conditions existing in that section. The First District Commission, in addition to its regular work as a regulating commission, has charge of the engineer- ing work in connection with the location and building of the new subways in the city of Greater New York. This work is entirely local in its character, and the problems involved are so complex and voluminous that the people of the city would properly object to having their local affairs supervised by men who reside outside the city and who do not understand the local conditions involved. The present term of office of the commissioners, five years, is short enough, as men, even of the highest character and good judgment, must have an opportunity to gain by experi- ence the knowledge necessary to perform their duties properly. I believe that a longer term should be provided for, as it would make a more permanent body and would help, pos- sibly, to attract men who at present might refuse to accept office on account of the short term of service. The two commissions also ought to be made non-partisan by a provision that not more than three members should be (432) No. 2] PUBLIC SERVICE COMMISSIONS 171 appointed from any one political party. This would tend to prevent the making of the commissions into political machines and would give minority representation. The placing of the functions and powers of the public ser- vice commissions in the constitution, the making of the com- missioners constitutional officers, and the prohibiting of the legislature from interference with their work, at once putsi these boards beyond the power of politicians and political parties to destroy or cripple, and will also place them upon as high and as stable a basis as our court of appeals. (433) CHARITABLE AND CORRECTIONAL INSTITUTIONS AND PUBLIC HEALTH HOMER FOLKS Secretary, State Charities Aid Association; President, State Probation Commis- sion ; Ex-Commissioner of Charities of New York City IN this paper it will be assumed that the process of con- stitutional revision will involve an examination of the provisions of the present constitution, a study of their operations, and a consideration of desirable amendments, omis- sions, or additions, rather than an effort to evolve a new con- stitution. The paper will consider the following subjects: I. Bond Issues. II. State Funds to Private Organizations. III. State Inspection of Charitable and Correctional Institutions. IV. Management of State Institutions. V. Local Appropriations to Private Charities. VI. County Government. VII. Appointment of Local Officers. VIII. Home Rule. IX. Public Health. X. Flexibility. Bond Issues One of the first constitutional provisions, which has an im- portant direct bearing on the welfare of the public charitable and correctional institutions of the state, is that relating to the manner of incurring indebtedness. The charitable and cor- rectional institutions of the state are notoriously inadequate. Sing Sing prison is a standing disgrace. The state hospitals for the insane are overcrowded by about twenty per cent of their certified capacity, and their certified capacity is undoubt- edly in excess of their proper capacity. The institutions for the feeble-minded receive only a small proportion of those who (434) CHARITIES, CORRECTION, PUBLIC HEALTH 173 should be cared for. The reformatories turn away those who should be committed to them for their own protection and that of the public. This condition has become much more acute during the last few yeirs and appears to be steadily growing worse. Appropriations for construction of state institutions are made wholly from current revenues. In considering these appropriations the legislator always has before him the limita- tion in the current resources of the state from indirect taxes and the political danger of a direct tax. New York city and, speaking generally, the municipalities of the state, and to some extent the counties also, provide for the construction of buildings by the sale of bonds, thus extending the burden over a series of years as the benefits are similarly extended. There has been much discussion during the last few years of the desirability of provid- ing for the construction of state institutions by the sale of bonds. This course was strongly favored by Governor Glynn and by the senate at the last session, but was opposed by the assembly. It has been consistently urged by the state board of charities for several years. Unfortunately, under the existing constitution there is sub- stantial doubt as to the possibility of relief in this direction. .Article 7 section 4 of the constitution limits the power of the legislature to incur state debt by providing in substance that any law contemplating the incurring of indebtedness must be submitted to a vote of the people, that it must be " for some single work or object," and that it may not be submitted at any election at which any other bill or law is submitted for popular decision. The question as to what constitutes a " single work or object " is embarrassing. Would a bond issue providing for the construction of a new prison, a new hospital for the insane, and a new reformatory, be constitutional? It is the judgment of many competent lawyers that it would not. Would a bond issue for the construction of a hospital for the insane in Westchester county and for one in Monroe county be for a " single work or object?" The more practical question probably is, would the counsel for prospective bond-buying houses consider such an issue absolutely free from any doubt (435) 174 REVISION OF THE STATE CONSTITUTION [Vol. V as to legality? Grave doubt has been expressed as to this point by lawyers highly competent to express an opinion thereon. As to the merits of the case, it is to be noted that New York city, after pursuing the policy of construction of buildings by bond issues for many years, has recently, under the stress of financial depression, entered into an agreement with a syndi- cate of bankers, one feature of which is that the city agrees, after the present year, to provide for an increasing portion of its permanent improvements out of current revenues and that at the end of four years all of its improvements are to be so provided for. In other words, the city, so far as its present authorities can do so, has agreed to abandon the bond-issue plan. The necessity and wisdom of so doing have been sharply called in question. Nevertheless, such action by the city authorities shows that on the merits of the case there is a necessity for careful consideration. Apart from the wisdom of urging the state to enter upon a bond-issue policy for the construction of public buildings, it would seem that the constitutional convention should very care- fully consider giving the legislature a freer hand to take such action as in its best judgment, from time to time, the interest of the state demands. In other words, the present limitations upon the debt-incurring capacity of the legislature should in our judgment be relaxed. State Funds to Private Organizations Article 8 section 9 of the constitution provides in substance that state funds shall not be given to any private organization except for the education of the blind, deaf and dumb, and juvenile delinquents. This constitutional provision antedates the constitutional convention of 1894, and in fact comes down from the constitutional commission of 1873. The state had granted subsidies to numerous private charities for many years, amounting in 1872 to a total of $910,000. The objectionable practices which had grown up in this connection led the con- stitutional commission of 1873 to adopt the provision referred to. It was ratified by the people in November 1874 and has (436) No. 2] CHARITIES, CORRECTION, PUBLIC HEALTH 175 stood unchanged since that time. No one, probably, would suggest that the provision be modified in the direction of re- newing such appropriations. Undoubtedly the convention should consider whether the developments of the last forty years have now made it desirable to eliminate any of the ex- ceptions contained in this provision. The number of the blind and of the deaf and dumb is not large and is not increasing. So far as the deaf and dumb are concerned there can be no question, I think, that any impartial study of the situation would lead to the conclusion that the work would be better done if done directly by the state. It has not been the custom of the state to grant appropriations for juvenile delinquents except to one institution, the House of Refuge on Randall's Island. The state has purchased a site for an institution in- tended to take over the work heretofore done by the House of Refuge, a private corporation, but has not yet constructed buildings thereon. The importance of any modification of this particular provision would be rather as to the principle involved than as to present operations. State Inspection of Charitable and Correctional Institution's The constitutional convention of 1894 attempted to establish for the first time, so far as the constitution was concerned, a comprehensive system of state inspection of all charitable and correctional institutions. It provided for the continuance of the then existing state board of charities and state commission in lunacy and for the creation of a state commission of prisons. It relieved the state board of charities of the duty of inspecting hospitals for the insane, a duty which for some years had been exercised by both the state board of charities and the state com- mission in lunacy. It defined specifically the fields to be cov- ered in their inspectorial duties by these three bodies, and ap- parently attempted to make the field absolutely inclusive of all charitable, correctional, and eleemosynary institutions, speci- fically stating that it included " all institutions, whether state, county, municipal, incorporated or not incorporated, which are of a charitable, eleemosynary, correctional or reformatory character." (437) 176 REVISION OF THE STATE CONSTITUTION [Vol. V The constitutional convention of 1915 will find, however, that the court of appeals has played havoc with this provision by reading into it an intent which is nowhere expressed or im- plied, so far as the average citizen can see, namely, that the convention did not intend these public bodies to inspect any in- stitutions which are not in receipt of public funds. This as- sumes that the whole system of inspection is established for the purpose of preventing waste of public money and not for the purpose which the debates of the constitutional convention seemed to imply, that of protecting the beneficiaries of in- stitutions from abuses. Undoubtedly the constitutional convention of 1915 should inform itself as to how this policy of state inspection of chari- table and correctional institutions has worked out in practice, what results have been secured, and what changes, if any, should be made in the light of experience. We think it will find, if it looks for facts, that such inspections have been ex- tremely valuable; that, in part at least as a result of such in- spections, the enormous hospitals for the insane have been managed so as to be substantially free from scandals ; that the standards of care in the charitable institutions, both public and private, have improved in many cases, though vast room for improvement still remains in some instances; and that jails and other correctional institutions have also in many instances been vastly improved as a result of the inspection by the state com- mission of prisons. It is inconceivable that the constitutional convention will not desire to perpetuate this system of state in- spection. In doing so, however, several questions of detail will inevitably arise : 1. Ought the definition of the field of inspection to be made so clear that it will be impossible for the court of appeals to exclude institutions not in receipt of public funds, but having within their care and power the far more precious lives of future citizens? 2. Ought the field of inspection to be so defined as to in- clude detention homes for children, such as those managed by societies for the prevention of cruelty to children, which would seem, on a fair reading of the present constitutional provisions, (438) No. 2] CHARITIES, CORRECTION, PUBLIC HEALTH ij-j to be included, but which the court of appeals has held to be excluded ? 3. Is the present distribution of inspectorial duties that which should be continued ? Should institutions for the feeble- minded remain under the inspection of the state board of charities? Or should they be placed, as they are in Massa- chusetts, under the state commission in lunacy? Are reforma- tories for adults more properly under the state board of chari- ties or under the state commission of prisons? Probably everyone would now agree that all state prisons should be re- formatories for adult prisoners and that the creation of certain institutions under the name of reformatories, such as Elmira and others, does not in fact remove them from the correctional field. The question may arise, in fact, as to whether the con- stitution should attempt to define in every detail the respective duties of the inspecting bodies, or whether some margin should be left for the legislature to determine from time to time their relative jurisdictions, the constitution meanwhile establishing beyond peradventure the principle and fact of state inspection. 4. Perhaps some may wish to raise the question as to whether there should continue to be the three separate bodies. If so, we shall find that the trend of experience in the more populous states is strongly in favor of such division. The enormous task devolving upon each of these three bodies and the sharp differences between the main features of their work would seem to be practically conclusive in favor of the continuance of three separate boards for these three distinct purposes, rather than the merging of their duties into one enormous agency. 5. Doubtless the question will be raised as to whether the constitution should not determine in greater detail the nature of the inspecting agency. At the moment, the state board of charities is a substantially unpaid board with a membership of twelve, the state commission in lunacy a paid body with a mem- bership of three, and the state commission of prisons an un- paid body with a membership of seven. The present constitu- tion leaves it open to the legislature at any time to change the size and composition of these boards. In fact, since 1895 the state commission of prisons has undergone two transformations, (439) 178 REVISION OF THE STATE CONSTITUTION [Vol. V the latter one restoring it to nearly its original form. The danger on the one hand, of course, is that a body inspecting numerous and powerful institutions and doing its duty fear- lessly is bound to arouse antagonisms which are likely to take the form of efforts to reorganize the inspecting body, and on the other hand, that a body whose continuance is securely provided for in the constitution is apt to become somewhat aloof from the development of public opinion and from chang- ing conditions in the social life and needs of the state. Management of State Institutions The constitution is silent as to the mechanism for the ad- ministration of the state charitable institutions and of the state hospitals for the insane. It provides, however, and has so pro- vided for some decades, that there shall be a state superin- tendent of prisons. It also defines his powers and duties in some detail. This particular provision dates from a time when there were few administrative offices other than the elective state officers. The position of state superintendent of prisons is coordinate with and is established by the same aritcle as that which provides for the superintendent of public works and also for the elective state officers. There is no adequate rea- son, however, for determining by constitutional provision the form of administrative agency for the management of state prisons and for leaving undetermined the administrative agency for the management of state hospitals for the insane and of state charitable institutions. In the management of the state prisons the one salaried official established by the con- stitution, the state superintendent of prisons, is practically supreme. There are no boards of managers of the state prisons, and the sweeping powers of the state superintendent of prisons are beyond legislative interference. It must be admitted that as to the management of the state charitable institutions the legislature and the successive governors have made a rather sorry mess of it. Starting out with the system of adminis- tration by unpaid boards of managers, subject to inspection by the state board of charities, authority has been taken piece- meal from these boards of managers and conferred upon a (440) No. 2] CHARITIES, CORRECTION, PUBLIC HEALTH 1 79 wide variety of central state authorities. A few powers have been transferred to the state board of charities. Far-reaching powers of fiscal control have been conferred upon the fiscal supervisor of state charities. There have also been estab- lished a state buildings commission with power to pass on plans, a salary-classification commission to determine salaries, a site commission to select and acquire sites and determine gen- eral layout, and still other commissions having to do with state charitable institutions. The state hospitals for the insane, orig- inally under boards of managers, have not fared quite so badly. The state commission in lunacy has been given a very large portion of the powers formerly exercised by the boards of managers, but there is not the bewildering variety of govern- mental agencies which baffles those undertaking to promote the development of state charitable institutions. If, however, one turns from the question of orderly and logical administrative machinery to that of actual accomplishment, it is perfectly clear that the one salaried official established by the constitution has been far less successful than either of the forms of control es- tablished by the legislature, muddled and confusing as the latter have been as to the state charitable institutions. Prob- ably the most successful instance of state administration of institutions on a large scale is that of the state hospitals for the insane. Next would come the state charitable institutions, and at the bottom of the list the state prisons, with their continuing glaring scandals, inefficiencies, and inhumanities. Under these circumstances it would seem to us that the constitutional con- vention should either proceed to outline an administrative agency for each of these three groups of institutions, or should eliminate from the constitution the hard-and-fast provision for a state superintendent of prisons to administer the state prisons. If the convention should determine to outline in the con- stitution the frame-work of the administrative agencies of the government, certainly it will find few departments having greater responsibilities than the state commission in lunacy, for instance, the expenditures of which form one of the largest single items in the state budget. In a sense, in establishing inspection and remaining silent as (441) l8o REVISION OF THE STATE CONSTITUTION [Vol. V to administration, the present constitution emphasizes the least important matter. A correct system of administration is cer- tainly far more important than a correct system of inspection. Inspection may diminish but cannot remove evils due to a faulty system of administration, and in fact can diminish them ordi- narily only after the lapse of a considerable time when the evils have become pronounced or obvious. Local Appropriations to Private Charities The constitutional commission of 1873 virtually discontinued state appropriations to orphan asylums and similar institutions, but was silent as to local appropriations to such institutions. As a matter of fact, they were already in receipt of appropria- tions from local authorities, as well as from the state, and the cutting off of the state subsidies only increased the effectiveness of their demands upon local treasuries. The constitutional convention of 1894 found that local appropriations by cities, counties, and towns to private charitable institutions, particu- larly orphan asylums, had grown to enormous proportions and appeared to be still growing at a rate vastly in excess of the increase of the population of the state. Apparently convinced that here was a matter requiring correction, and equally unable to devise a remedy, it referred the entire matter to the state board of charities with power. It adopted a provision pro- hibiting the legislature from requiring local authorities to make appropriations to charitable institutions, but permitting the legislature to authorize such appropriations, and providing further, and most importantly, that no payments should be made by local authorities for the support of inmates of private institutions unless those inmates were received and retained in accordance with rules to be established by the state board of charities, which rules Were to be subject to the control of the legislature by general laws. The constitutional convention will undoubtedly wish to consider how this provision has worked out in practice during the past twenty years. It will be exceedingly fortunate if it secures a comprehensive and im- partial statement of the facts. The facts do not lie upon the surface. Many of them can be secured only by careful and (442) No. 2] CHARITIES, CORRECTION, PUBLIC HEALTH i8l extended digging among the dusty piles of official records. Some of the most important, perhaps, cannot be secured at alL Speaking broadly, it will be found that the all-important question of determining who are suitable public charges was almost immediately referred back by the state board of chari- ties to local poor-law officials with power. In other words, their rules provided that only those inmates of private institu- tions should be paid for by public funds who were accepted as suitable public charges by the local officials, in most cases the local poor-law officials. The efficiency of the plan has of course depended on the efficiency from time to time of the various local officials. It will be pertinent to inquire what machinery has been established for ascertaining how the various local officials from time to time have discharged this highly responsible duty. Speaking generally and without precise information, which can be had only by long and care- ful study, it would seem that the very alarming increase in the number of dependent children up to the time of the constitu- tional convention of 1894 has been measurably held in check since that time, and that in this respect, at least, conditions have not become worse. It will also be found, I think, that the rule-making power has been exercised by the state board of charities, possibly somewhat indirectly, for the purpose of improving certain physical aspects of the institutions, such as sanitation and fire protection. It will not be found, I think, that the rule-making authority has been exercised in a manner to affect the more underlying and important policies involved in the care and education of these future citizens of the state. I doubt if any question which will come before the convention will be more baffling than this subject of the regulation of appropriations of the public funds to private institutions for the care of needy children. The subject was obscured in the constitutional convention of 1 894 by the efforts of an organiza- tion which attempted to secure a prohibition of payments of public funds to sectarian institutions, leaving other private institutions free to continue to receive such aid. It is to be hoped that this effort will not be repeated; that it will be frankly recognized that the state has to deal not with sectarian (443) 1 82 REVISION OF THE STATE CONSTITUTION [Vol. V institutions as such, but with the possibility of the control of the use of public funds by public officials through private agencies. The vested interests concerned are enormous. The sum paid by New York city alone to private charitable institu- tions each year is equal to the income from a one-hundred- million-dollar Rockefeller Foundation at five per cent and is ten times the income of a Sage Foundation. The problem is beset with almost insuperable difficulties at every point. One of these, which is somewhat typical, may be instanced. It is recognized that the public should not appropriate funds to such institutions for the acquirement of lands or buildings, for these become the property of the private institutions, and it is expected that their contribution will include the providing of such lands and buildings. It is also' now very generally recog- nized that dependent children, in so far as they are to be cared for in institutions, should by all means be cared for in cottage institutions. The large congregate institution in the densely crowded city, with its huge dormitories and dining-rooms, its miniature play-rooms, its lack of opportunity for healthful recreation and employment, its deadening of individuality, is an anachronism. Elsewhere it is rapidly passing or has disap- peared, but note the difficulties in the city of New York. Each institution is a free agent as to how, when, and where it will rebuild, if at all. No public authority can require it to change from one plan or place to another, except possibly indirectly. All the Protestant institutions and all but one of the Jewish institutions caring for needy children in New York city have removed to suburban or rural sites and have rebuilt upon the cottage plan. The Catholic institutions, however, are far more numerous and care for far more children than all the Protes- tant and Jewish agencies combined, and of their institutions, many of them of enormous size, not one has adopted a real cottage system, and many of them are still in the densely crowded portions of the city. Several reasons contribute to this result, but the prevailing reason is probably the fact that the institutions cannot afford to rebuild. The sum involved in providing up-to-date cottage institutions for the dependent children in institutions of this faith would approach twenty (444) No. 2] CHARITIES, CORRECTION, PUBLIC HEALTH 183 million dollars. Whence is this vast sum to be secured? In what way can modern public opinion be brought to bear upon the situation ? This is only one of the baffling facts involved in this most perplexing subject. The constitutional convention will certainly need both wisdom and courage in ample degree in dealing with it, if indeed it attempts to deal with it at all. County Government There are practically no other provisions of the existing con- stitution relating directly to the subject of charitable and cor- rectional institutions. Naturally these institutions will be strongly affected by changes in the structure of government. This will be notably true in the matter of county government. The counties with few exceptions administer almshouses, have some authority over outdoor relief, deal with appropriations to private institutions, administer hospitals for tuberculosis through boards of managers, are authorized to establish county laboratories and do so in a few instances, provide county pro- bation officers when they think it wise, and in many other ways deal with matters of social concern. As an administrative agency the county is easily the least effective of all the exist- ing governmental agencies. A thorough-going revision of county government from the point of view of administrative efficiency is of the first importance. Such revision should help to make the counties vastly more effective in the varied and comprehensive social work which they are now carrying on and in which they will doubtless engage in larger degree in the future. Appointment of Local Officers Article 10 section 2 of the constitution provides in substance that local officers whose election or appointment is not provided for by the constitution shall be elected by the people or ap- pointed by the local authorities of cities, towns and villages. This has had some probably unlooked-for results. It has been held, for instance, that a statute providing that when -the state commissioner of health removed a local health officer for incompetency he might appoint his successor, is uncon- (44S) 1 84 REVISION OF THE STATE CONSTITUTION [Vol. V stitutional. It would be equally unconstitutional to provide that the appointment of probation officers by local authorities should be subject to the approval of a state probation com- mission, or that the appointment of local poor-law authorities of any grade whatever should be subject to the approval of the state board of charities. There are undoubtedly some instances in which such a sweeping prohibition is not desirable, notably in the case of public health. Home Rule It is quite evident that the constitutional convention will be strongly urged to confer a large degree of home rule upon cities, and perhaps also upon counties and towns. It is highly important that the convention should recognize, also, that certain matters are not appropriate subjects for home rule, but should be retained within the potential exercise of state authority. This is notably true of public health. It would be the height of unwisdom to permit any city to endanger the health not only of its own citizens, but of those of the entire state. Home rule in matters of local concern is one side of the subject. The other side, equally important, is state rule in matters of state-wide concern. Niagara Falls acted for years as a distributor of typhoid fever to thousands of visitors, not only from all parts of this state, but from all over the world. More recently, yielding to the importunity of the anti-vaccina- tionist, it developed a serious epidemic of small-pox, inflict- ing not only upon itself, but upon the entire western portion of the state, enormous loss and inconvenience and actually spread- ing the disease quite impartially through a large area be- yond the limits of the city of Niagara Falls. The situation was corrected only by the prompt, vigorous, and almost harsh exercise of the supervisory powers vested in the state com- missioner of health for the protection of the public from epidemics. It is highly important that no backward step be taken in this matter in an eff'ort to meet the legitimate demand for home rule in suitable matters. (446) No. 2] CHARITIES, CORRECTION, PUBLIC HEALTH 185 Public Health Practically the entire frame-work of public health agencies, state and local, has developed since the adoption of the last constitution. The present constitution may be examined with a microscope and no trace of the existence of such a subject as public health can be found. The extent to which the con- stitution should outline the frame-work of state administration is of course an open question. However, if it should seem wise to the convention to indicate in outline the frame-work of the more important administrative departments, certainly the department of health should not be overlooked. The edu- cational chapter provides that the legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated. Perhaps the time has come when the constitution should state that the legislature shall provide for a system of agencies, state and local, for the protection of the public health, the benefits of which shall be available for all the people of the state. Flexibility The ever recurring question in relation to constitutional pro- vision is, what shall be put intO' the constitution and what shall be left to the legislature? This involves the question as to whether, on the whole, state administration tends to be too flexible or too inflexible. Things put into the constitution become inflexible. A close study of the operation of certain administrative agencies of the state for a period of over twenty years leads me to feel that the greater danger is that of in- flexibility, inelasticity and tradition, rather than their op- posites. Although the legislature at any time during the past twenty years could have reorganized the state commission in lunacy or the state board of charities, changing them from a paid to an unpaid body or from a small board to a large board, it has not done so in either case. Both these organs of gov- ernment, in fact, have had a Continuous history since their original establishment. In general, therefore, I should be inclined to say, whenever in doubt as to the wisdom of making a given matter permanent, leave it to the legislature. (447) THE CONSTITUTION AND PUBLIC FRANCHISES DELOS F. WILCOX NOTHING could make our paper constitutions and char- ters in America appear more futile — mere child's play — than to find in them sections or series of sections bravely prohibiting perpetual franchises and imposing whole pages of lucid restrictions upon franchise grants, when we know all the while that most of the actual franchises con- trolling the utilities in the commonwealth or the city for which the constitution or charter has been written have long since been bartered away in perpetuity and are in no respect sub- ject to the restrictions imposed. So far as the framework of government is concerned, a new constitution or charter is ef- fective in establishing the principles it declares. The old legislature, the old judiciary, the old counties, the old munic- ipal departments, are superseded and displaced by the new, in so far as the constitution or charter calls for changes in the organization of government. But when we come to consider, not the forms of government, but its substantive acts, we find that a constitution drafted in 1915 is subordinate to a contract executed in 1914, or in 18 14 for that matter. The result is that modern constitutions and charters, with their manifold and far-reaching provisions in regard to public utilities and public utility franchises, are often mere masks concealing rather than revealing the truth. In large measure they are theoretical and have no practical significance. Where franchises are granted in perpetuity, a city does not have to be very olr" or very large before the power to control its public utilities tiuough charter provisions or constitutional amendments applying only to the future is lost forever. Even in the case of street railways, where franchises are usually granted for specific streets rather than for all the streets within the limits of a given municipality, the early grants are almost uniformly on the down-town thoroughfares in the (448) PUBLIC FRANCHISES 1 87 strategic locations, with the result that they command the future development of transit facilities almost as much as if they covered all the streets of the municipality and were ex- clusive. Competition is a wholly inadequate remedy. Com- petition of street railways in the same streets, even though temporary, has long since been regarded as impracticable and intolerable except under extraordinary conditions. Competi- tion in water supply and gas service, involving as it does the construction of duplicate systems of mains and the wanton tearing up of pavements and consequent interference with or- dinary street traffic, is almost as unbearable as competition in street railways. In electric light and power and in telephone service, the disadvantages of competition from the standpoint of the street itself are serious, but not so forbidding under or- dinary circumstances as in the case of the other utilities men- tioned. From the standpoint of the public, however, competi- tion in telephone service is theoretically intolerable, while in electric service it may have some immediate advantages. Under the Dartmouth College decision, a private charter granted by a sovereign state becomes an inviolable contract, unless by specific reservation the grant is subject to amendment or repeal by the granting authority or its successors. In New York, where this reservation has been contained in the consti- tution for a great many years, the courts have distinguished between a corporation's charter and its special franchises, the latter being regarded in the nature of irrepealable grants of privileges, equivalent to the sale or gift of property, which, once made, is beyond recall by the city. This distribution, coupled with the ruling that a franchise or consent for the construction of public utility fixtures in the streets, unless spe- cifically limited in the grant or in the laws under which the grant is made, is to be construed as being in perpetuity, has resulted in the intrenchment of public service corporations in the streets of New York so as to make their dislodgment ex- tremely difficult. The constitution makers have this practical situation to face. The principal streets, and in some cases all the streets, of the municipalities have been mortgaged in perpetuity to some or (449) 1 88 REVISION OF THE STATE CONSTITUTION [Vol. V Eill of the principal utilities, with the result that a prohibition of perpetual franchise grants written into the constitution in 19 1 5 might remain there for a thousand years without hav- ing any direct effect upon the rights of the principal public service corporations operating in the cities now in existence, no matter how large those cities may become. Constitutions may come and constitutions may go, but Jake Sharp's Broad- way franchise goes on forever, and the Eighth and Sixth Ave- nue purchase clauses have been abrogated for all time. This situation is intolerable. To make a written constitu- tion a lie is to make a mockery of our most fundamental politi- cal enactments. It not only violates the pride of self-respect- ing citizens of a free state, but it gives the state itself a false position in recorded history. But in addition to this senti- mental and ethical reason, a constitutional provision that ignores the past and applies only to the future, that leaves the great body of public utilities unaffected and touches only the comparatively insignificant extensions and new experiments which need new franchises, creates a practical condition that defeats its own purpose. The streets of New York cannot re- main permanently nine-tenths slave and one-tenth free. Short-term and indeterminate franchises do not mix with per- petual franchises. Restriction of future grants, while past grants remain unlimited, merely creates a deadlock in the de- velopment of the utilities and results in hardship to the public. It checks expansion by increaising the risk of new investments. It compels the slender outermost branches of the utility tree to carry heavier burdens than the strong trunk itself. If perpetual franchises have proved to- be contrary to public policy and a menace to the state, then the makers of the new constitution should not be satisfied to leave this menace asi formidable and as threatening as ever, while at the same time depriving the people of the state of the slender advantages which may be claimed for the old system. Public utility cor- porations enjoying perpetual franchises will not accept partial re-locations advantageous both to the public and to themselves, if such re-locations involve the exchange of perpetual for limited rights. They will not permit the civic blacksmiths to (450) No. 2] PUBLIC FRANCHISES 189 insert a twenty-five year link in a perpetual chain. They are very loth indeed to allow twenty-five year links to be welded onto the ends of their perpetual chain. As a result, a city, where the heart of its utility system has been constructed under perpetual franchises, finds that the enactment of stringent re- strictions in regard to the grant of new franchises intensifies its distress. It is hard enough under any kind of a franchise to induce public utility corporations, operating for profit, to expand their lines as rapidly as the needs of the public de- mand. But when extensions and possible competing plants are made subject to stringent regulations not applying to the old lines having the cream of the business, then this reluctance is translated into violent and persistent refusal. If restrictions are to be imposed upon future franchise grants, the only reasonable and safe policy for the state to adopt in its constitution is a policy looking toward the gradual extinguishment of all outstanding franchise rights and the substitution therefor of new grants under the restrictions con- sidered proper for the future. Nothing is more absurd than the attempt to develop and operate a public utility under a multiplicity of conflicting franchises, and certainly the great- est absurdity of all is the attempt to leave undisturbed the per- petual franchises at the heart of the city and to develop the utility by piecing on short-term or indeterminate franchises at the extremities. It is equally futile to attempt to dislodge an intrenched utility by the doubtful expedient of private com- petition, when the competitor, in addition to the normal dis- advantages he would have to meet in breaking into a new field and building a plant under more difficult conditions than his older rival originally had tO' meet, is put tO' the disadvan- tage of having a less favorable franchise and a shorter lease of life within which to recover his investment. A constitution serves a double function. First, it organizes the government, adjusts conflicting political interests, and brings into action the constructive spirit of democracy. Sec- ond, it protects the future against exploitation by the present. In the performance of the first of these functions, the con- stitution establishes the organs of state and local government, (451) I go REVISION OF THE STATE CONSTITUTION [Vol. V differentiating so far as seems necessary their spheres of action, and confers upon them power to act on behaJf of the organized public. So far as public franchises are concerned, the constitution must confer the franchise-granting power upon either state or local organs of government, and the right to own and operate public utilities will be similarly conferred unless it is expressly denied. If cities are to have any power in regard to franchises or public utilities except as it may be delegated to them by the legislature, such power must be conferred directly by the constitution. If the legislature is to be prevented from granting local franchises, then the consti- tution must make this restriction explicit. In the protection of the future from exploitation by the present, the constitu- tion must impose limitations upon all contracts executed by any agent of the people, whether state or local. It certainly would be unintelligent to prohibit the legislature from grant- ing perpetual franchises while permitting the municipality to grant them, or vice versa. We may assume for the purposes of this discussion that the main outlines of the frame of government will remain the same under the new constitution as under the old. We shall doubtless continue to have a state legislature as well as cities, villages, counties and towns organized for local governmental and administrative purposes. The privilege of using public streets as rights of way for public utility fixtures will be ob- tained from the legislature, from some commission exercising delegated powers, or from the local authorities, or possibly from all of them. Hitherto in New York the constitution has left to the state legislature the franchise-granting power and the power to acquire, own and operate public utilities, to be exercised or delegated as the legislature may see fit, subject to a very few limitations. Under section i8 of article III of the present constitution the legislature may not pass a private or local bill granting to any corporation, association or individual, the right to lay down railroad tracks or granting to any private corporation, association or individual any exclusive privilege, immunity or franchise. All such grants must be by general (452) No. 2] PUBLIC FRANCHISES igi law. But the legislature is further prohibited from authoriz- ing the construction or operation of a street railroad except upon condition that the consent of the local authorities having control of the streets be obtained and also that the consent of the abutting property owners be secured, or, in case of their refusal, the consent of the appellate division of the supreme court, upon the recommendation of special commissioners ap- pointed to inquire into the necessity of the construction of the railroad. There is nothing in the constitution limiting the duration of franchises, and nothing to prevent the legislature from granting franchises other than street railroad franchises by general law without the consent of either the local authori- ties or the abutting property owners. There is nothing in the constitution to prevent the legislature from passing laws to provide for the regulation, acquisition, construction or oper- ation of public . utilities, either by the state itself or by the municipalities; but the constitution does not itself give the cities the right either to regulate or to own and operate public utilities, or to grant franchises therefor. The requirement that the construction or operation of street railways may not be authorized without the consent of the local authorities is purely negative. It confers no actual franchise-granting power upon the cities, and no street railways could be built ex- cept under general state laws authorizing their construction. As a matter of fact, many of the most important perpetual street railway franchises of New York city, and perhaps of other cities of the state, were originally granted in perpetuity by special acts of the legislature, prior to the time when the existing constitutional restrictions were adopted, and even since that time the legislature has granted perpetual gas franchises in New York city. But for many years it has been customary to require the consent of the local authorities for the construction in the public streets of most classes of utilities. It has always been doubtful, however, to what extent cities have the right to go, even in connection with the construction of street railways, in imposing terms and con- ditions in their franchise grants. This doubt has been so ser- ious that the city of New York, under its special charter, re- (453) 1 92 REVISION OF THE STATE CONSTITUTION [Vol. V duces every franchise grant to the form of an elaborate con- tract to be executed by the grantee and protected by stringent and easily enforced penalties. Even with these precautions, there remains a doubt as to the validity of some of the condi- tions imposed. One practical question to be determined by the constitutional convention is whether or not it will be advisable to confer larger constitutional guaranties upon cities with reference to the control of their streets and the regulation or ownership and operation of public utilities. This question is a part of the larger question of municipal home rule. Many advocates of home rule lay stress upon the import- ance of giving cities the right to frzime their own charters, in- cluding particularly the right to organize their local govern- ment. This right would permit them to choose the mayor- and-council plan, the commission plan, the city-manager plan, the federal plan, or any other plan of organization that seemed to the people of the city best suited to their local purposes and conditions. It might also secure to any city framing its own charter the right within certain limits to describe its own powers and functions. How far this latter right would be se- cured in this way would depend upon the particular wording of the home-rule charter provision as well as upon the inter- pretation of it by the courts, and probably would also depend upon the future action of the legislature by general laws. At best, the plan merely to grant cities the right to frame their own charters lays the principal emphasis on the form, of local government and leaves the extent of the powers an'd functions of the cities uncertain and subject to future determination. This plan gives the husk but not the kernel of municipal home rule — the shadow but not the substance. The fundamental trouble that has. given rise to the muni- cipal-home-rule movement in this country is well understood by students of municipal affairs. At the bottom of it is the old rule of American law that a municipality is a corporation having enumerated rather than general powers. Under this theory a city may not do anything except what it has been ex- pressly authorized to do by legislative act. This means that (454) No. 2] PUBLIC FRANCHISES Iq, whenever a particular city wants to do anything, it has to in- quire whether or not the right to do this thing has been con- ferred upon it, and if the right has not been conferred, then the thing cannot be done until the city's charter has been amended by vote of the legislature. Where special acts are prohibited, it is likely to be even more difficult to secure the new power desired than it is where special legislation is still in vogue. The new theory of municipal government upon which the home-rule movement is founded is that a city should be a cor- poration of general powders, having the right to do anything it sees fit to do for the protection, welfare and government of its inhabitants, unless there is some specific provision of the con- stitution or the statutes prohibiting it from taking such action. At the bottom of the home-rule movement is this desire to re- verse the rule of law with reference to the powers of munic- ipalities in this country. It appears that this rule cannot be effectively reversed except by constitutional guaranties. Therefore, an essential part of the home-rule program, so far as the constitution is concerned, is the grant to all cities of broad powers of local self-government and self-help. But the courts are so jealous to protect the sovereign powers of the state government, and the relations between state and munic- ipal functions are so intricate and confused, that a home-rule constitutional provision, in order certainly to be effective, must be comprehensive and specific, so far as the most important municipal functions are concerned. This is especially true with reference to public utilities, where enormous vested private interests are involved. The importance of making this grant specific has been recognized in recent years by such great commonwealths as Michigan, California and Ohio. The new constitution of Michigan, adopted in 1908, contains the following provision (art. 8 sec. 23) : Subject to the provisions of this constitution, any city or village may acquire, own and operate, either within or without its corporate limits, public utilities for supplying water, light, heat, power and (455) 194 REVISION OF THE STATE CONSTITUTION [Vol. V transportation to the municipality and the inhabitants thereof; and may also sell and deliver water, heat, power and light without its corporate limits to an amount not to exceed twenty-five per cent of that furnished by it within the corporate limits; and may operate transportation lines without the municipality within such limits as may be prescribed by law ; Provided, That the right to own or oper- ate transportation facilities shall not extend to any city or village of less than twenty-five thousand inhabitants. In 191 1, California adopted a series of important amend- ments to its constitution. One of these conferred the right to own and operate public utilities upon all the municipal cor- porations of the state. This provision, as amended in 1914, is as follows (art. 11 sec. 19) : Any municipal corporation shall have power to acquire by pur- chase, lease, condemnation or otherwise, in whole or in part, or to construct, and to own, maintain, equip and operate public utilities; and to grant franchises to persons, firms or private corporations to establish, equip, maintain and operate public utilities, upon such conditions and under such regulations as may be prescribed under the organic law of such municipality or otherwise by law. Any municipal corporation may furnish the product or service of any public utility conducted or operated by it to other municipal corpor- ations and the inhabitants thereof, and to consumers and users out- side of its limits. The Ohio constitutional convention of 191 2 submitted a long series of amendments. One of those related to " Municipal Corporations." The following sections were adopted as a part of this amendment (art. 18 sections 4 and 6) : Sec. 4. Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. The acquisition of any such public utility may be by condemnation or otherwise, and a municipality may acquire thereby the use of, or full title to, the property and franchise of any com- pany or person supplying to the municipality or its inhabitants the service or product of any such utility. (456) No 2] PUBLIC FRANCHISES ig^ Sec. 6. Any municipality, owning or operating a public utility for the purpose of supplying the service or product thereof to the munic- ipality or its inhabitants, may also sell and deliver to others any transportation service of such utility and the surplus product of any other utility in an amount not exceeding in either case fifty per centum of the total service or product supplied by such utility within the municipality. The demands of the municipal-home-rule program will not be satisfied if the cities of this state are merely given the nominal or formal right of municipal ownership. In order to be effective as an element of real local self-government, the right must be explicit and practically available for use. One of the greatest difficulties in the way of the practical use of the right of municipal ownership is the financial one. Most cities are heavily indebted, and no one proposes to do away entirely with the constitutional limitation upon municipal debt. It is clear, however, that the right to own and operate public utilities is not worth the paper it is written on unless a city has within its grasp some means of paying for them, whether they are acquired from an existing company or constructed new. The new Michigan constitution provides that the legislature shall enact general laws limiting the rate of taxation for munic- ipal purposes and restricting the powers of cities in borrow- ing money and contracting debts. It further provides that whenever a city is authorized to acquire or operate a public utility, it may issue mortgage bonds for the purpose beyond the general limit of bonded indebtedness prescribed by law. Such bonds, however, are not to impose any liability upon the city, but are to be secured only upon the property and revenues of the utility, including a franchise for not more than twenty years to be available for use in case of foreclosure by the bond- holders. Under this provision, the legislature has granted a two per cent margin of indebtedness to be incurred against the general credit of the city for public utility uses, thus re- ducing far below the cost of construction or acquisition the amount of bonds necessarily issued against the utility prop- erty itself. Under this provision, the city of Detroit is now (4S7) ig6 REVISION OF THE STATE CONSTITUTION [Vol. V proceeding to acquire the local street railway system. The same provision with regard to the issuance of bonds in excess of the general debt limit was included in the new constitution of Ohio. These provisions are much more favorable to municipal home rule than the existing provisions contained in section lo of article 8 of the constitution of New York relating to the debt limit. Under the New York plan, water bonds, issued after certain specified dates, are not to be included in the debt limit, and so far as the city of New York is concerned, debts incurred for the construction of other public utilities, although they must come within the debt limit in the first instance, sub- sequently may be excluded therefrom for such period of time as the utilities shall be self-sustaining, provision for the amor- tization of the bonds by the time they fall due included. Under this provision as it relates to the city of New York it would be absolutely impossible to acquire any one of the principal utili- ties, unless such a utility could be acquired piecemeal. Even then, this would hardly be possible unless the gap between the city's debt and the constitutional debt limit were considerably greater than it shows any indication of being. It is appar- ent, therefore, that if this central provision of the municipal- home-rule program is to be anything more than a false prom- ise, it must be buttressed by a practical release of municipal credit for public utility purposes going far beyond the provi- sions of the present constitution of this state. When we consider the enormous capital invested in privately owned public utilities and the huge addition to municipal debts that would result from the outright purchase of these utili- ties by the cities, it becomes apparent that something more than the mere right to purchase and even something more than the release of the cities' credit for the purpose of purch^lse may be required. The city of New York now imposes heavy special taxes upon public service corporations. This has been done partly be- cause these corporations, operating for the most part under perpetual franchises, were believed to be making excessive profits for their private owners, although their franchises had (458) No. 2] PUBLIC FRANCHISES 1 97 in most cases been given to them free. The proceeds of these taxes, and of other special taxes which may be levied upon public utilities in the future, might well be put aside into a fund for the extinguishment of such outstanding franchise rights as cannot be brought under control in any other way. In so far as new franchises are important, it is clear that the interests of the cities cannot be properly protected unless the franchise-granting power is guaranteed to them. It is coming to be recognized more and more that the most prac- tical method by which most cities may acquire public utilities is by means of franchise or rate contracts under which the companies will be authorized and required gradually to with- draw their capital out of earnings and thus gradually reduce the price at which the city may purchase their property. It is essential to municipal home rule that the cities should have the power to enter into such contracts. Perhaps it is necessary in this discussion to present the rea- sons why the right to own and operate public utilities and to control franchises granted therefor should be granted to the cities. Public utilities, in the narrow sense, are primarily ser- vices essential to urban life and economically available only under urban conditions. It is true that in recent years many of the utilities have been branching out, extending into the suburbs, running from town to town, cUid in some cases spread- ing into rural regions ; but almost without exception these utili- ties depend for their success upon the use of city streets and the service of congested districts. So far as they go to the country, they are merely carrying to it some of the benefits of urban life. Essentially a public utility is an urban institu- tion. It, more than any other form of urban activity, embodies the principle of cooperation both in demand and in supply that makes modern urban life on a large scale possible. Pub- lic utilities are in their essential features, therefore, still local. It is the city that is primarily interested in the structure, rates, service and extension of the street railway, gas, water or elec- tric plant or the telephone system that serves it. Home rule would certainly be an empty name if the cities were stripped of all power to control the development of public utilities. (459) igg REVISION OF THE STATE CONSTITUTION [Vol. V This brings us to a consideration of the interests of the state in the control and development of public utilities and of the relations of cities to each other and their suburbs in connec- tion with such control and development. While utilities are primarily local, it cannot be denied that there is a wide field for uniform state control of public service corporations. It is also clear that under modern conditions, where many utilities operate in more than one community, some adjustment of the control exercised by different local authorities must be made. It is doubtful whether the time is ripe for the inclusion in the constitution itself of an elaborate analysis of these problems. This seems to be the province of statutory rather than consti- tutional law. If we are to reserve to the cities the right to ac- quire, own and operate public utilities, made practical by the release of municipal credit, and the right to prescribe the terms and conditions upon which franchises for the use of city streets shall be granted, subject possibly to a review by a state commission or court where the interests of other municipalities appear to be involved, the essential features of the home-rule program with reference to franchises and public utilities will be realized. It goes almost without saying that the granting of perpetual franchises to private parties for the use of the public streets should be prohibited, but this prohibition will be futile in the extreme unless it is supplemented by additional restrictions upon the duration and character of franchise grants. A con- stitutional provision under which Buffalo's 999-year franchises could be granted while the perpetual franchises of New York city could not be, would establish a distinction without a dif- ference. Not only should the granting of new perpetual fran- chises be prohibited, but the perpetual franchises already out- standing should be declared inimical to public welfare and contrary to awakened public conscience and the permanent public policy of the state. Penalties should be established and rewards offered calculated to recover for the state and its cities the control of outstanding franchises. In the first place, the constitution should give backbone to the rule, better known in New York judicial proceedings by its (460) No. 2] PUBLIC FRANCHISES 199 violation than by its enforcement, that all grants of special privileges in the public streets are to be construed strictly in favor of the public. The constitution should also provide that no further grant of powers or privileges shall be made to any public-service corporation except upon the surrender of its present claims to perpetual or practically perpetual franchises. It should provide that no new franchise shall be granted and no readjustment of existing franchises made without a reser- vation to the city or the state of the right to- acquire the prop- erty of the utility at the expiration of a fixed period not to exceed 20 or 25 years at the most, or at any time thereafter, without paying for the surrender of the franchise itself. Where the franchise is for the passage of a railroad or other utility rendering through service only, the option to purchase should be reserved to the state. The limitation upon fran- chise grants should apply to trunk-line railroads, power trans- mission lines, gas and oil supply conduits and long-distance telephone lines as well as to the more strictly local utility structures, but the state should be substituted for the city as the beneficiary of such restrictions in the case of through-ser- vice utilities. Eternal vigilance is the price of liberty — after we get it. But tO' get it we have to pay something more. Even after per- petual franchises have been outlawed, the posse comitatus will have quite a job catching them. The thing of real importance is not the mere form and duration of franchise grants. These are the husks. The real thing is the investment in public utilities. The price we shall have to pay for getting our lib- erty, which, when we get it, even a paper constitution will help us keep, is the definite recognition that public utilities are public servants and that money invested in them is not a per- manent private investment but a temporary investment in aid of public credit. This means that the state's and the city's protection should be extended to legitimate public utility in- vestments. Such protection is the logical result of the public- agency theoiy of public utility operations. Both the protec- tion and the theory are incompatible with the existence of per- petual franchises vested in private corporations. (461) 200 REVISION OF THE STATE CONSTITUTION [Vol. V Michigan, in its new constitution, limits term franchise grants to thirty years. Limitations of the same general nature are con- tained in the statutes of many states. But none of the states as yet provides an entirely satisfactory' substitute for the per- petual franchise. The theory of the perpetual franchise is that the investment in public utilities is a permanent one, which need not be diminished or retired, and that the ownership and operation of public utilities as private property is the perma- nent policy of the state. This theory has the advantage of being thoroughly logical and consistent. The theory of fran- chises whose duration is limited to a specified period of time, without any guaranty as to the future of the property in- vested under their protection, is dubious and inconsistent with the established nature of public utilities. Certainly, the needs of the people require that public utilities shall continue to operate and to expand with the increase of urban population, without reference to the dates for the expiration of franchises. Public utilities must be provided and developed for continuous service. A term franchise that gives the corporation no guar- anty of its investment after the expiration of the grant oper- ates directly counter to the public interest. The owner of the franchise, if a conservative financial policy is to be followed, will see to it that the consumers not only pay operating ex- penses and interest on investment, but also repay the invest- ment itself within the period of the grant. The owner then is in the happy position where he cannot lose, and stands to gain the entire value of the property in case the city concludes either to purchase the property or to renew the franchise, as it is morally certain to do. The indeterminate franchise, as estab- lished in the laws of Wisconsin and Indiana, grants rights in perpetuity, subject only to the power of the municipcdity in its discretion to terminate the grant at any time upon taking over the property of the utility at a price to be fixed by the state commission. The theory of the indetenninate franchise of the Wisconsin type is that the investment in public utilities is a permanent one and does not need to be retired out of earn- ings, but that the question of private or public ownership is one to be kept open for future determination by the city. This (462) ^°- -^ PUBLIC FRANCHISES 201 type of franchise, from the public standpoint, is much superior to the perpetual franchise, and from the investor's standpoint it is much superior to the limited-term franchise. Its great drawback is that it settles the franchise problem once for all until such time as the city is prepared to take over the prop- erty of the utility and pay for it a sum to be determined by the state commission. Technically, the Wisconsin plan abol- ishes perpetual franchises, but does not take any definite steps toward the municipalization of public utilities. It provides no means by which the financial difficulty of paying for utili- ties and retiring the private investment therein may be less- ened. The indeterminate franchise tends to quiet the relations between the people and the utility. There is no regularly re- curring period when the obligations of the utility to the city are subjected to a new scrutiny. Summarizing this discussion, I maintain that the new con- stitution of the state of New York should contain the follow- ing provisions: 1. A provision specifically conferring upon all cities the right to acquire, own and operate public utilities within or without their corporate limits, the exercise of such right out- side of the corporate limits being subject to supervision by a state commission. 2. A provision authorizing cities to issue bonds outside the general debt limit upon the security of the property and reve- nues of utilities owned by the city. 3. A provision conferring upon cities the franchise-granting power and making the action of the cities final except as to franchises to be used merely for through service. In the case of the latter, the refusal of the municipality to grant the fran- chise, or the conditions upon which the franchise is granted, should be subject to review by a state board. 4. A provision prohibiting the grant of perpetual franchises, and requiring that all franchises be granted subject to the right of the city or of the state to take over the physical prop- erty of the utility upon making proper compensation for such property. (463) 202 REVISION OF THE STATE CONSTITUTION 5. A provision forbidding the grant of additional franchises, powers or privileges to corporations or individuals claiming perpetual or very long-term franchises, except on condition that such claims be surrendered and that new franchises, in accordance with the spirit and the letter of the new constitu- tion, be accepted in their place. 6. A provision prohibiting the opening or acceptance of a public street subject to public utility easements previously granted by the owners of the land. 7. A provision prohibiting the recognition of perpetual franchise rights except on clear proof that such rights were granted by a formal recorded act of the proper authorities and in strict compliance with the law, and that such rights have not been forfeited by non-user, misuse or failure to comply with the terms and conditions of the grant. (46.') PROCEEDINGS OF THE MEETING OF THE ACADEMY OF POLITICAL SCIENCE, HELD IN NEW YORK, NOVEMBER 19 AND 20, 191 4 The autumn meeting of the Academy of Political Science, held on November 19 and 20, 1914, was devoted to the Revision of the State Constitution. Three sessions were held in Earl Hall, Columbia University, and a dinner session at Hotel Astor. Dr. Albert Shaw, Vice-President of the Academy, presided at the first session ; Hon. Elihu Root, United States Senator from New York, at the dinner session ; Professor Samuel McCune Lindsay, President of the Academy of Political Science, at the third session, and Professor Charles A. Beard at the fourth session. The program follows : FIRST SESSION Thursday, November 19, 19 14 Earl Hall, Columbia University THE STRUCTURE OF STATE GOVERNMENT 1. Introductory address by the Presiding Officer 2. Participation of the Executive in Legislation By E. M. Sait Discussion : Ogden L. Mills and Edgar Dawson 3. A State Budget By Frederick A. Cleveland Discussion : Charles D. Norton 4. The Organization and Procedure of the Courts By Henry W. Jessup Discussion : William L. Ransom and Robert L. Fowler SECOND SESSION Thursday, November 19, 19 14, Hotel Astor FUNDAMENTAL LAW MAKING I. Introductory Address by Presiding Officer (46s) 204 REVISION OF THE STATE CONSTITUTION [Vol. V 2. The Adaptation of a Constitution to the Needs of a People By Frank J. Goodnow 3. The Principle of Responsibility in Government By Henry L. Stimson 4. The Constitution and Public Opinion By Frederic C. Howe 5. The City and the State Constitution By John Purroy Mitchel THIRD SESSION Friday, November 20, 19 14 Earl Hall, Columbia University LIMITATIONS ON GOVERNMENTAL POWERS 1 . Introductory Address by the Presiding Officer 2. The Future of the Workmen's Compensation Amendment By Thomas I. Parkinson Discussion : Henry R. Seager and J. Hampden Dougherty 3. Labor Legislation By Abram I. Elkus Discussion: Owen R. Lovejoy and John B. Andrews 4. Woman Suffrage By Thomas Reed Powell Discussion : Munroe Smith 5. State Policy of Forest and Water Power Conservation By John G. Agar FOURTH SESSION Friday, November 20, 19 14 Earl Hall, Columbia University 1. Introductory address of Governor Glynn, read by the Presiding Officer 2. The Organization of County Government By George S. Buck Discussion : H. S. Gilbertson and V. Everit Macy 3. Home Rule for Cities By H. L. McBain (466) No. 2] PROCEEDINGS OF THE MEETING 205 Discussion: Delos F. Wilcox, Robert S. Binkerd, Laurence Arnold Tanzer and Walter T. Amdt The following papers which were read by title are included in the two parts of the Proceedings which contain the report of the meeting : 1. The Problem of Adequate Legislative Powers under the Constitution By Ernst Freund 2. Public Service Commissions and the State Constitution By John N. Carlisle 3. Existing Constitutional Limitations on Sound State Fiscal Policy By Ernest Cawcroft 4. Charitable and Correctional Institutions and Public Health By Homer Folks 5. The Constitution and Public Franchfses By Delos F. Wilcox 6. The Civil Service Clause in the State Constitution By Samuel H. Ordway 7. The Constitutional Convention : Preliminary Work, Pro- cedure and Submission of Conclusions By Walter F. Dodd 8. Recent Experience with Initiative, Referendum and Recall By C. F. Taylor (467) INDEX Adaptation of a Constitution to the Needs of a People^ The. Frank J. Goodnow, i, 27-38. Agak, John G. State Policy of Forest and Water Power Conservation, ii, 144-164. Amendment of constitution : By popular initiative, i, 14, 43-4, 90-93 ; should be made easier, i, 14, 43. Amendments, proposed : See under sep- arate headings. Andrews, John B. Discussion of labor legislation, ii, 141-143. Appeals, Court of, extending jurisdic- tion of, in certain cases, i, 201, 207- 208. Apportionment of delegates to conven- tion, i, 57-60. Arndt, Walter T. Discussion of home rule for cities, ii, 73-79. Auditor-general, proposal to create office of, i, 161. Ballot: See Short Ballot. Bill of rights : Abridgment of, criticized, ii, 128 ; Abridgment of, urged, ii, 108, 119; exceptions to, to permit work- men's compensation laws, ii, no- 11 2. BiNKERD, Robert S. Discussion of home rule for cities, ii, ^I-^Z^ Board of estimate, state, not adapted to budget-making, i, IS4-6' Bonds : Issue of, for charities and cor- rection, ii, 172-174; municipal, sound state policy regarding issuance of, i, 243-250 ; outstanding, must be pro- tected, i, 241-243; secured by public utilities, ii, 195-196. Budget: Contents of, i, 144-146; Eng- lish, i, 147-149, 158, 159, 190; fiscal irresponsibility in U. S. without, i, 149-151; governor should frame, i, 129, 134; legislature not adapted for making, i, 152-154; making of, an executive function, i, 156, 190; meaning of, i, 142-144; opposition necessary to success of, i, 159; pur- pose of, i, 142-144; specialized staff essential to making of, i, 157-158; state board of estimate not adapted to making, i, 154-156. Budget, Constitutional Provision for A. Frederick A. Cleveland, i, 141- 162 ; discussion, Charles D. Norton, i, 189-192. Budget Summaries, Illustrations of. Adapted to Submission by Execu- tive to the Legislative Branch of THE Government, i, 163-188. Cabinet : Governor's, should have seat in legislature, i, 16, 131, 135-136. 14°. 161 ; appointment and removal of, by governor, i, 16, 44. Carlisle, John N. Public Service Commissions and the State Constitu- tion, ii, 165-171. CawcrofTj Ernest. Existing Consti- tutional Limitations on Sound State Fiscal Policy, i, 241-250. Charitable and Correctional Insti- tutions and Public Health. Homer Folks, ii, 172-185. Charities and correction : Administra- tion of, flexibility needed in, ii, 185 ; appointment of local officers of, power (469) 208 INDEX [Vol. V of, ii, 183 ; appropriations to private, local, ii, 180-183; bond issues for, ii, 172-174! county government and, ii, 183; inspection of state, ii, 175- 178; management of state, ii, 178- 180; state funds for private, ii, 174. Charters, city : See under " Cities " and "Home Rule." Child labor, in tenements, ii, 139-140. China, constitution of : See " Adapta- tion of a Constitution to the Needs of a People." Circuit court, abolition of, proposed, i, 206. Cities : Checks upon freedom of, i, 9 ; civil service in, i, 261; classification of, ii, 4-5, 49, 62; debts of, limita- tions upon, 247; fiscal policy of state relating to, i, 243-250; suspensive veto, power of, in New York, ii, 5- 10, 65. See also, "Courts," "Fran- chises," " Home Rule," and " Munic- ipal Ownership." City and the State Constitution, The. John Purroy Mitchel, ii, 61- 67. City court of New York city, abolition of, proposed, i, 205. Civil service : Amendments relating to, proposed, i, 255-262; competitive principle in, extension of, i, 255-256; history of, in New York, i, 251-255; pensions, civil, in, i, 260 ; removals from office under, i, 258-260 ; prefer- ence to veterans, in, i, 256-258. Civil Service Clause in the Consti- tution, The. Samuel H. Ordway, i, 251-262. Cleveland, Frederick A. Constitu- tional Provision for a Budget, i, 141- 162. Commission : Government of state, pro- posed, i, 15, 97; joint, for uniform legislation, i, 121; should be em- powered to fill in details of labor laws, ii, 132-135. See " Public ser- vice commissions." Commissioners, or masters to simplify and frame issues for courts, i, 198, 206, 228, 229. Commissions, Public Service and the State Constitution. John N. Car- lisle, ii, 165-171. Committees in constitutional conven- tion, i, 62-70. Consent of the Governed, The. Dis- cussion of woman suffrage. Munroe Smith, i, 82-88. Conservation. See " Forests," and " Water power." Conservation, State Policy of For- est and Water Power. John G. Agar, ii, 144-164. Constitution : Proposed amendments to : See separate headings. Constitution, Adaptation of a, to THE Needs of a People, The. Frank J. Goodnow, i, 27-38. Constitution and Public Opinion, The. Frederic C. Howe, i, 7-19. Constitutional construction, suggested canon of, i, 117. Constitutional amendments. See separ- ate headings. Constitutional convention. See " Con- vention." Constitutional Limitations on Gov- ernmental Powers. Samuel Mc- Cnne Lindsay, ii, 93-97. Constitutional Limitations on Sound State Fiscal Policy, Existing. Ernest Cawcroft, i, 241-250. Constitutionality of statutes : See " Ju- dicial review." Convention, constitutional : Apportion- ment and election of delegates to, i, 57-60; committees in, i, 62-70; de- bate in, i, 68 ; legislative control over, i, 60-61 ; organization and procedure of, i, 60-70 ; partisanship in elections to, i, 59 ; parties in relation to, i, i ; preliminary work for, i, 54"5 7 ! P'^^" vious, in New York, i, 51; submis- sion of work of, to people, i, 71-72 ; method of filling vacancies in, i, 58; work of, must be scientific, i, 50. (470) No. 2] INDEX 209 Convention, the Constitutional : Preliminary Work, Procedure and Submission of Conclusions. Walter F. Dodd, i, 54-72. Convention, Problems of the Con- stitutional. Albert Shaw, i, 39-53. Correction, Charities and. See "Chari- ties and correction.'' Correctional Institutions and Pub- lic Health, Charitible and. Homer Folks, ii, 172-185. County courts, proposals relating to, i, ig8, 210-213. County government : Changes in, urged, ii, 83-85, 88-8g; and public charities, ii, 183 ; classification in, urged, ii, 90-gi ; comptroller in, ii, 85 ; home rule for, urged, ii, 89, 92 ; organiza- tion of, ii, 80-81 ; reform in, needed, i, 47; lack of responsibility in, ii, 81, 87, 91-92 ; short ballot in, urged, ii, 84, 89, 92 ; waste in, ii, 86 ; work- ing of, ii, 81-83. County Government, The Organiza- tion OF. George S. Buck, ii, 80-86 ; Discussion, H. S. Gilbertson, ii, 87- 89; V. Everit Macy, ii, 90-92. Court : Of appeals, extending jurisdic- tion of, in certain cases, i, 201, 207- 208; city, of City of New York, pro- posed abolition of, i, 205 ; circuit, " proposed abolition of, i, 206 ; county, proposals relating to, i, 197, 210-213 ; municipal, proposed abolition of, i, 211, 227; of oyer and terminer, pro- posed abolition of, i, 206 ; supreme, proposal relating to, i, 197, 202-20S ; surrogates', proposed abolition of, i, 205, 226; ii, 85. Courts: Proposed amendments relating to organization and procedure of, i, 202-214; appellate, to dispose finally of cases appealed, i, 230; commis- sioner or master to frame and sim- plify issues for, i, 198-199, 228 ; elim- ination of certain, proposed, i, 196- 197, 205, 206, 211; ii, 85; present inefficiency of, i, I94-I95 ; law versus justice in, i, I93-I94. 223; too many, (47 i, 195-196 ; reform of procedure in, needed, i, 217-218; technicalities of procedure in, i, 240 ; not to allow technicalities to defeat justice, i, 229; tribunal to hear complaints relating to, i, 222-223. ^^^ ^^^° " J" 39-56; Delos F. Wilcox, ii, 68-79. Home rule for counties urged, ii, 89, 92. Home rule in administration of public health undesirable, ii, 184. Howe, Frederic C. The Constitution and Public Opinion, i, 7-19. Impeachment : Need of change in pres- ent provisions relating to, i, 44 ; con- stitutional proposal relating to, i, 210. Inherent limitations, doctrine of, i, 117- 122. Initiative r In proposing constitutional amendments, i, 14, 43 ; more important than referendum, i, 18. Initiative and referendum: In propos- ing constitutional amendments, i, 90- 93 ; local use of, i, 95-96 ; in propos- ing statutes, i, 93-95; for elaborat- ing workmen's compensation amend- ment, ii, 102. Initiative, Referendum and Recall, Recent Experience with the. Charles Fremont Taylor, i, 89-97. Interstate uniformity in legislation. See " Uniformity." Irresponsibility in government : In ad- ministration, i, 21 ; causes of, i, 20- 21 ; early devices making for, i, 21 ; in legislation, i, 2 1 ; works in vicious circle, i, 25. See " Responsibility." Jessup, Henry W. The Organization and Procedure of the Courts, i, 193- 214. Judges : Changes in method of choos- ing, suggested, i, 219-221 ; tribunal to hear complaints relating to, i, 222- 223. Judicial decisions, recall of : limited scope of, i, 100. Judicial review of constitutionality of statutes: Criticized, i, 17; means domination of legislature by courts, i, 99 ; in Ohio, i, 1 7 ; suggestions for procedural limitations upon, i, 225- 226. Judiciary, The Executive and the. Francis Lynde Stetson, i, 236-239; Jacob Gould Schurman, i, 239-240. Labor legislation : Child labor in tene- ments to be regulated by, ii, 139-140; clearness in, necessary, ii, 142 ; com- missioners should be empowered to fill in details of, ii, 132-135 ; enforce- ment of, problem of, ii, 142 ; home work, necessary to regulate, ii, 135- 136, 138-141 ; hours of labor, neces- sary to limit, ii, 131 ; minimum wage, to be secured by, ii, 136 ; police power clause of constitution the basis of, ii, 130-131- Labor Legislation and the Consti- tution. Abram I. Elkus, ii, 130- 137. Discussion, John B. Andrews, ii, 141-143; Owen R. Lovejoy, ii, 138- 141. Legislation : Concurrent, legislative agreements for, i, 121; constitution, written into, i, 96, 98-99; executive, share of, in, i, 101-102 ; experts should (473) 212 INDEX [Vol. V draft, i, 109; inherent limitations, doctrine of, in, i, 117-122; local and special, evils of, i, 46 ; procedure in, constitutional requirements relating to, i, 103-104; quality of, constitu- tional provisions to improve, i, 108- lio; resulting limitations, doctrine of, in, i, 110-117; special and local, evils of, i, 46 ; style of, require- ments relating to, i, 105-108 ; uni- formity in interstate, provision for, i, 120-122 ; unity in, provision for, i, 119. Legislation, Participation of the Executive in. E. M. Salt, i, 127- 133. Discussion, Edgar Dawson, i, 137-140; Ogdeu L. Mills, i, 134-137- Legislative Povsters, The Problem of Adequate, under State Constitu- tions. Ernst Freuud, i, 98-126. Legislature : and the budget, i, 152, 161, 190-191 ; constitutional amend- ments, proposed by, i, 90-93 ; consti- tutional convention, control of, over procedure of, i, 60; delegation of its powers necessary, i, 4; distrust of, i, 8, 127; election of, present method of, criticized, i, 45 ; executive, rela- tion of, to, i, 16, 22, 101-102, 127, 140, 161 ; fiscal policies, powers of, relating to, i, 249; franchises, power of, to grant, ii, igo-193 ; governor's proposals, compelled to vote on, i, 139, 140 ; governor and cabinet to have seats in, i, 16, 22, 131, 135-136, 140, 161 ; home rule for cities, atti- tude of, toward, ii, 1-5, 47-49 ; home rule for cities, powers of, under, ii, 47-49, 65-66, 73; irresponsibility of, i, 21'; procedure in, constitutional provisions relating to, i, 103-104; public service commissions, relation of, to, ii, 165, 166-167, 169 ; sessions of, i, 8, 15 ; size, reduction in, urged, i, 16, 97; strengthening, methods of, i, 45; terms, longer, for members of, i, 97; unicameral, advocated, i, 15, 97. Limitations : Doctrine of inherent, in legislation, i, 1 17-122; doctrine of re- sulting, in legislation, i, 110- 11 7. Limitations, Constitutional, on Gov- ernmental Powers. Samuel Mc- Cune Lindsay, ii, 93-97. Lindsay, Samuel McCune. Constitu- tional Limitations on Governmental Powers, ii, 93-97. Local Government and the State Constitution. Martin H. Glynn, ii, 57-60. Love JOY, Owen R. Discussion of labor legislation and the constitution, ii, 138-141- Macy, V. EVERIT. Discussion of the organization of county government, ii, go-92. McBain, Howard L. Home Rule for Cities, ii, 1-38. Message of governor should be oral, i, 128. Mills, Ogden L. Discussion of the participation of the executive in legis- lation, i, 134-137- Mitchel, John Pukroy, The City and the State Constitution, ii, 61-67. Municipal court, abolition of, proposed, i, 211, 227. Municipal Government Association of New York State, proposed home-rule amendment of, ii, 52-56. Municipal League, National, proposed home-rule amendment of, ii, 69. Municipal ownership of public utilities : Debt limit and, ii, 195 ; fiscal policy of state relating to, i, 244-245, 248; power of, under home rule provi- sions, ii, 16 ; permission for, pro- posed, ii, 45, 64. 6S. 69, 193, 197; taxation to make possible, ii, 197. Municipalities. See " Cities." National Municipal League, proposed home-rule amendment of, ii, 69. Non-partisanship : City charter com- missions, favored in, ii, 65 ; delegates to constitutional convention, in elec- (474) No. 2] INDEX 213 tiou of, i, 59; judges, favored in election of, i, 220; public service commissions, favored in, ii, 170. Norton, Charles D. Discussion of constitutional provision for a bud- get, i, 189-192. Ordway, Samuel H. The Civil Ser- vice Clause in the Constitution, i, 251-262. Organization of County Government, The. George S. Buck, ii, 80-86. Organization and Procedure of the Courts, The. Henry W. Jessup, i, 193-201 ; Appendix, i, 202-214. Dis- cussion, Robert Ludlow Fowler, i, 232-235 ; William L. Ransom, i, 215- 232. Oyer and terminer, proposal to abolish courts of, i, 206. Parkinson, Thomas I. The Future of the Workmen's Compensation Amend- ment, ii, 98-112. Parties, relation of, to constitutional conventions, i, i, 59. Phi Delta Phi Club, constitutional amendments relating to courts pro- posed by Committee of Seven of, i, 202-214, Police power : and labor, ii, loi, 109, 118, 120, 125, 130-131 ; legislative action under, i, 119. Powell, Thomas Reed. Woman Suf- frage, i, 73-81. Power. See "Water Power." Powers, The Problem of Adequate Legislative, under State Constitu- tions. Ernst Freund, i, 98-126. Principles and Practice of Consti- tutional Revision, The. Elihu Root, i, 1-6. Problems of the Constitutional Con- vention, The. Albert Shaw, i, 39- 53- Procedure, The Organization and, OF the Courts. Henry W. Jessup, i, 193-201 ; Appendix, i, 202-214. Discussjon, Robert Ludlow Fowler, i, 232-235 ; William L. Ransom, i, 215-232. Proportional representation, advocated, i. 97- Public Franchises, The Constitu- tion AND. Delos F. Wilcox, ii, 186- 202. Public health. See "Health." Public Health, Charitible and Cor- rectional Institutions and. Homer Folks, ii, 172-185. Public Opinion, The Constitution and. Frederic C. Howe, i, 7-19. Public service commissions ; Constitu- tion, should be provided for in, ii, 165, 167; criticisms of present sys- tem of, ii, 166-167; functions of, suggested, ii, 168 ; legislature, fric- tion with, ii, 168 ; power of, should be exclusive, ii, 169 ; powers of, sug- gested, ii, 168 ; retention of existing, favored, ii, 170. Public Service Commissions and the State Constitution. John N. Car- lisle, ii, 165-171. Public utilities. See " Municipal own- ership," " Public service commis- sions." Ransom, William L. Discussion of organization and procedure of courts, i, 215-232. Recall: Advocated, i, 16; election after two years, advocated, i, 44; local use of, i, 95- Recall, Recent Experience with THE Initiative, Referendum and. Charles Fremont Taylor, i, 89-97. Recall of judges condemned, i, 222. Recall of judicial decisions, limited scope of, i, 100. Referendum : On governor's proposals, suggested, i, 119, 130; state-wide, i, 118-119. See "Initiative and refer- endum." Referendum, Recent Experience WITH the Initiative and, and Re- call. Charles Fremont Taylor, i. 89-97. (475) 214 INDEX [Vol. V Responsibility, The Principle of, in Government. Henry L. Stimson, i, 20-26. Resulting limitations, doctrine of, in legislation, i, no- 11 7. Root, Elihu. The Principles and Practice of Constitutional Revision, i, 1-6. Sait, E. M. Participation of the Ex- ecutive in Legislation, i, 127-133. Seager, Henry R. Discussion of the future of the workmen's compensa- tion amendment, ii, 1 18-120. Separation of powers : History of theory of, i, 22 ; theory of, criticized, i, 23, 131, 133, 139-140; ii, 135. Shaw, Albert. The Problems of the Constitutional Convention, i, 39-53. Short ballot: Advocated, i, 16, 44, 97, 127, 138 ; in counties, ii, 89, 92. Sinking funds, constitutional provi- sions relating to, i, 248. Smith, Munroe. The Consent of the Governed, i, 82-88. Special legislation, relating to cities, ii, 3-4, 45, 48-49 ; evils of, i, 47. Statute law. See " Legislation." Stimson, Henry L. The Principle of Responsibility in Government, i, 20- 26. Style of legislation, constitutional re- quirements relating to, i, 105-108. Submission of debated questions to the people should be separate, i, 15. Submission of Conclusions, the Con- stitutional Convention : Prelimi- nary Work, Procedure and. Walter F. Dodd, i, 54-72. Suffrage. See "Woman Suffrage." Supreme court, New York, proposal relating to, i, 197, 202-205. Surrogates' courts, proposed abolition of, i, 205, 226 ; ii, 85. Tanzer, Laurence Arnold. Discus- sion of home rule for cities, ii, 39-52. Taylor, Charles Fremont. Recent Experience with the Initiative, Ref- erendum and Recall, i, 89-97. Technicalities in judicial procedure: Commissioner or master to eliminate certain, i, 198-199, 206, 228; evils of, i, 194-195 ; not to defeat justice in reversals and new trials, i, 229-230. Terms of office, should be longer, i, 16, 43, 97; ii, 170. Terminer and oyer, proposed abolition of courts of, i, 206. Uniformity in legislation : Bills of rights of state constitutions should be abridged to secure, ii, 120; fed- eral review of state decisions on questions of constitutionality would further, ii, 129; labor legislation, lack of, in, ii, 140; proposals de- signed to secure, i, 120-122. Unity of statute law, provision for, i, 119. Utilities, public. See " Municipal ownership " and " Public service commissions." Vacancies in constitutional convention, how filled, i, 58. Veto : Cities, power of suspensive, ii, 5-10 ; executive, i, 8. Water power : Condition changed, re- lating to, ii, 154; conservation of, proposals relating to, ii, 160-164; de- velopment of, methods of, ii, 163- 164; ownership of, existing, ii, 159- 160; resources, existing, ii, 158-159. Water Power Conservation, State Policy of Forest and. John G. Agar, ii, 144-164. Wilcox, Delos F. The Constitution and Public Franchises, ii, 186-202 ; discussion of home rule for cities, ii, 68-79. Woman Suffrage. Thomas Reed Powell, i, 73-81. Discussion, Munroe Smith, i, 82-88. (476) No. 2 I INDEX 215 Workmen's compensation : Amendment providing for, existing, ii, gg-ioi, no, 124-125; bill of rights of state constitution, abridgment of, to per- mit, i, 119, 128; bill of rights, exceptions to, to permit, ii, 110-113; changes in existing provisions pro- posed, ii, 102-105, log, 118, 1 19, 125; common law defenses and, ii, 122 ; constitutionality of, ii, 97, 98, 107, 133; essentials of a system of, i, 108; insurance, compulsory, under, ii, 100 ; justification of, ii, I2i. Workmen's Compensation Amend- ment, The Future of the. Thomas I. Parkinson, ii, 98-112; Appendix, ii, 112-117. (Text and analysis of workmen's compensation amend- ments.) Discussion, Henry R. Sea- ger, ii, 118-120; J. Hampden Dough- erty, ii, 121-129. Errata in Appendix to Mr. Cleveland's Paper Part I. Page 165 ; third column, total should read $6,732,159.47, instead of $7.732.i59-47- Part I. Page 166 ; third column, total surplus should read $6,586,830.04, in- stead of $5,586,830.04. Part I. Page 168; third column, surplus carried to general account at end of period should read $6,586,830.04, instead of $6,586,880.04. Part I. Page 168 ; column headings are omitted and should be inserted as follows : * First column; Jan. i-Sept. 30, 1914 (actual). Second column; Oct. i-Dec. 31, 1914 (est.). Third column; Jan. i-Dec. 31, 1914 (est.). Fourth column; Jan. I-Dec. 31, 1915 (est.). (477) THE POLITICAL SCIENCE QUARTERLY The Quarterly, published for the Academy, is under the edi- torial control of the Faculty of Political Science of Columbia University, and is devoted to the historical, statistical and com- parative study of politics, economics and public law. Its list of contributors includes university and college teachers, politicians, lawyers, journalists and business men in all parts of the United States, and European professors and pub- licists. It follows the most important movements of foreign politics but devotes chief attention to questions of present in- terest in the United States. On such questions its attitude is nonpartisan. Every article is signed ; and every article, includ- ing those of the editors, expresses simply the personal view of the writer. Each issue contains careful Ibook rGTiew^s by specialists, and in March and September large numbers of recent publications are characterized in brief book notes. In June and December is printed a valuable record of political events throughout the world. Communications in reference to articles, book reviews and exchanges should be addressed to the managing editor, Professor Thomas Reed Powell, Columbia University, New York City. Intending contributors are requested to retain copies of articles submitted, as the editors disclaim responsibility for the safety of manuscripts. If accompanied by stamps, articles not found available will be returned. Members of the Academy ri^ceive the Political Science Quarterly without further payment. THE ACADEMY OF POLITICAL SCIENCE IN THE CITY OF NEW YORK President Samuel McCunk Lindsay Vice-Presiuents Albert Shaw ■Thomas W. Lamont Secretary Henry Raymond Mossky Treasurer George A. Plimpton Assistant to the President Emma S. Lake Editor of the Political Science Quarterlv Thomas Reed Powell Editor of Proceedings of the Acadetny Henry Raymond Mussey Trustees A. Barton HspntiRN Thomas W. Lamont Thomas RBed Powell Henry R. Seager Edwin R. A. Seligman William R. Shepherd Munroe Smith Henry L. Stimson Frank A. Vanderlip Advisory Council Nicholas Murray Butler Elihu Root Francis Lynde Stetson- The Academy of Political Science, founded in 1880, is com- posed of men and women interested in political, economic and social questions. The annual dues are $5. Members re- ceive without further payment the four issues of the Political Science Quarterly and the four issues of the Proceedings, and are entitled to free admission to all meetings, lectures and receptions under the auspices of the Academy. Two regular meetings are held each year, in April and November. Communications regarding the Academy should be addressed to the secretary of the Academy of Political Science, Kent Hall, Columbia University.